Baloco v. Drummond Co. Inc.
| Decision Date | 03 February 2011 |
| Docket Number | No. 09–16216.,09–16216. |
| Citation | 631 F.3d 1350 |
| Parties | Freddy Locarno BALOCO, through his guardian and representative Yaneth Ester Baloco Tapia, Ingrid Karina Soler Urrego, through her guardian and representative Nubia Yolanda Urrego Urrea, Ayleen Paoloa Orcasita Almarales, Stefany Loren Orcasita Cordoba, Marlon Alexi Orcasita Almarales, through his guardian and representative Elisa Almarales Viloria, Ashly Patricia Orcasita Almarales, through her guardian and representative Elisa Almarales Viloria, Sergio Esteban Soler Urrego, through her guardian and representative Nubia Yolanda Urrego Urrea, Katherine Paola Lacarno Baloco, through her guardian and representative Yaneth Ester Baloco Tapia, Plaintiffs–Appellants,v.DRUMMOND COMPANY, INC., Drummond Ltd., Augusto Jimenez, Alfredo Araujo, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Background: Children of former union leaders who were murdered in Colombia sued corporation and its subsidiary which managed its mining operations, and two employees alleging that entities and employees hired paramilitaries from United Self-Defense Forces of Colombia (AUC) to assassinate their fathers, in violation of Alien Tort Statute (ATS), Torture Victim Protection Act (TVPA), and wrongful death laws of Colombia. The United States District Court for the Northern District of Alabama, No. 09-00557-CV-RDP, R. David Proctor, J., dismissed complaint based on res judicata and alternatively for lack of standing. Children appealed.
Holdings: The Court of Appeals, Martin, Circuit Judge, held that:
(1) children had constitutional standing;
(2) children adequately pled cause of action cognizable under ATS;
(3) children could sue for damages under TVPA; and
(4) district court prematurely resolved issue of whether res judicata barred claims.
Reversed and remanded.
Terrence P. Collingsworth, Conrad & Scherer, LLP, Washington, DC, for Plaintiffs–Appellants.
William H. Jeffress, Jr., Alexandra Margaret Walsh, Baker Botts, LLP, Washington, DC, William Anthony Davis, III, H. Thomas Wells III, Philip G. Piggott, Starnes & Atchison, LLP, Birmingham, AL, for Defendants–Appellees.Appeal from the United States District Court for the Northern District of Alabama.Before BARKETT and MARTIN, Circuit Judges, and HUNT,* District Judge.MARTIN, Circuit Judge:
The children of Valmore Locarno Rodriguez, Victor Hugo Orcasita Amaya, and Gustavo Soler Mora, three former union leaders murdered in Colombia in 2001 (“the Children”), appeal from the dismissal of their complaint against Appellee–Defendants, Drummond Company, Inc., Drummond Ltd.,1 Augusto Jimenez, and Alfredo Araujo.2 The Children allege that these Drummond entities and employees hired paramilitaries from the United Self–Defense Forces of Colombia, also referred to as the AUC, to assassinate their fathers, in violation of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350; the Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350,3 and the wrongful death laws of Colombia. They allege that the murders of their fathers caused them damages including emotional harm, loss of companionship and financial support.
As the district court recounted, “the allegations contained in the complaint are troubling:”
A long history of trade union violence exists in Colombia. Shortly after the Drummond employees in Colombia successfully organized a trade union, Defendant Alfredo Araujo met with leaders of the AUC, including Northern Block leader Jorge Cuarenta (“Jorge 40”) and his representatives to arrange for the AUC to eradicate the union through violent means. Drummond paid the AUC to carry out the destruction of the union, including the murders of Locarno, Orcasita, and Soler.
At the time, Locarno and Orcasita, President and Vice President of the union, respectively, had been in negotiations with Drummond for a year on a new contract. In the course of negotiations, pamphlets were passed out around the company labeling the union a “guerilla union,” and attacking Locarno and Orcasita as supporters of guerillas. In a letter to [Drummond Ltd.], Locarno asked for security protection from the death threats he had been receiving due to the pamphlets. His request was denied by [Drummond Ltd.'s] Senior Human Resources supervisor, Ricardo Urbina Aroca.
Locarno and Orcasita also expressed concerns for their safety to Garry Drummond and other representatives of Defendants. Their request was denied despite the fact that Colombia's secret service agency, the DAS, alerted Drummond that Locarno and Orcasita were at risk of assassination.
On March 12, 2001, Locarno and Orcasita were pulled off a Drummond company bus and murdered by paramilitaries of the AUC. On October 5, 2001, shortly after becoming the new president of the union, Soler was also murdered by paramilitaries of the AUC.
The Children also allege a “close, symbiotic relationship between the military and paramilitaries in Colombia.” In support of this allegation, the Complaint cites reports from the United States State Department, the United Nations High Commissioner for Human Rights, and Amnesty International. The Children allege further:
The close, symbiotic relationship between the Military and paramilitaries in Colombia is such that the paramilitaries are acting under color of the authority of Colombia. The paramilitaries in Colombia, including those who committed the wrongful acts alleged herein, are legal creations of the government of Colombia, and they act with support from and cooperation with the official military.
While recognizing these allegations as “troubling,” the district court dismissed the Children's complaint based on res judicata and preclusion grounds and alternatively for lack of standing. First, the district court found that the claims of five4 of the eight plaintiffs were precluded under the doctrine of res judicata. The court reasoned that those five plaintiffs were parties to a prior suit, In re Juan Aguas Romero v. Drummond Co., Inc., No. 03–cv–00575–BE–2, 2006 WL 5186500 (N.D.Ala. April 19, 2006), aff'd, 552 F.3d 1303 (11th Cir.2008) (“ Drummond I”), which the court concluded involved the same claims against the same defendants.
Separately, the district court dismissed the claims of all eight plaintiffs on the basis that they lacked standing to sue under either the ATS or TVPA. The court reasoned that because the TVPA permits recovery of damages only “on behalf of” the deceased person, the Children lacked standing to sue for their own personal damages. The court likewise dismissed the ATS claim, concluding that the ATS shares the same standing requirements as the TVPA. Before us is the Children's appeal of these holdings.
We will analyze these issues separately. In Part A we address standing, both as a constitutional requirement and in terms of whether the Children possess a cause of action under the ATS and TVPA. In Part B we address the applicability of res judicata to the Children's claims.
[1][2] We begin with standing, “the threshold question in every federal case.” Maverick Media Grp., Inc. v. Hillsborough Cnty., Fla., 528 F.3d 817, 819 (11th Cir.2008) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). We review de novo whether the Children have standing to sue. See Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir.1993).
Warth, 422 U.S. at 498, 95 S.Ct. at 2205. Where, as here, Congress has conferred a right to sue on a specified class of individuals, the Supreme Court has at times discussed the standing inquiry as asking two questions: first, does the purported plaintiff possess Article III standing; and second, does the statute at issue grant the purported plaintiff a cause of action entitling them to seek relief under the applicable statute. Thompson v. N. Am. Stainless, LP, –––U.S. ––––, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011); Havens Realty Corp. v. Coleman, 455 U.S. 363, 372–73, 102 S.Ct. 1114, 1120–21, 71 L.Ed.2d 214 (1982). We find that framework useful for resolving this appeal, and thus begin with a brief analysis of whether the Children possess constitutional standing, and then turn to whether they possess a cause of action under these statutes. 5
[3] The requirement that a plaintiff must have standing to invoke the jurisdiction of the federal courts stems from the requirement of Article III of the United States Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). To establish Article III standing, the Children must show that “(1) [they] ha[ve] suffered, or imminently will suffer, an injury-in-fact; (2) the injury is fairly traceable to the defendants' conduct; and (3) a favorable judgment is likely to redress the injury.” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286 (11th Cir.2010) (citation omitted).
[4] The Children easily satisfy these requirements. First, each of the Children's fathers were murdered, causing an immediate “invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual.” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (quotation marks omitted); see also Solomon v. Warren, 540 F.2d 777, 788 (5th Cir.1976) (...
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