Baloco v. Drummond Co.
| Decision Date | 23 September 2014 |
| Docket Number | No. 12–15268.,12–15268. |
| Citation | 767 F.3d 1229 |
| Parties | Freddy Locarno BALOCO; Katherine Paola Locarno Baloco, through her guardian and representative Yaneth Ester Baloco Tapia; Ayleen Paola 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; Ingrid Karina Soler Urrego; Greysi Paola Locarno Larios; Gustavo Alberto Locarno Larios; Linda Teresa Orcasita Pineda; Vanessa Katherine Orcasita Pisccioty, Plaintiffs–Appellants, v. DRUMMOND COMPANY, INC.; Drummond Ltd.; Augusto Jimenez; James Adkins; Mike Tracy, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Terrence Patrick Collingsworth, Christian Levesque, Rachel A. Sheridan, Natacha Thys, Eric J. Hager, Conrad & Scherer, LLP, Washington, DC, William R. Scherer, Conrad & Scherer, LLP, Fort Lauderdale, FL, Thomas Lavon Carmichael, Carmichael Law Firm, Jasper, AL, for Plaintiff–Appellant.
William H. Jeffress, Rachel B. Cochran, Noah R. Mink, Bryan H. Parr, David A. Super, Baker Botts, LLP, Washington, DC, William Anthony Davis, III, Philip Guy Piggott, Benjamin T. Presley, Huey Thomas Wells, III, Starnes Davis Florie, LLP, Birmingham, AL, for Defendant–Appellee.
Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 7:09–cv–00557–RDP.
Before ED CARNES, Chief Judge, and TJOFLAT, Circuit Judge, and EVANS, * District Judge.
Plaintiffs' First Amended Complaint alleges the following. Plaintiffs/Appellants (hereinafter “Plaintiffs”) are the children and heirs of three men (Valmore Locarno Rodriguez, Victor Hugo Orcasita Amaya, and Gustavo Soler Mora) 1 who worked for Defendant Drummond Ltd. at Drummond's coal mining operation in Colombia, South America. The three men were officials of a union, Sintramienergetica. They were murdered in 2001 in Colombia.
The central thrust of Plaintiffs' case is that the murders were committed by paramilitaries of the AUC 2, an organization affiliated with Colombia's military and which, together with the military, provided security against guerilla attacks for Drummond's coal mining facility and operations. Plaintiffs claim that the murders occurred in the context of a violent armed conflict between the AUC and the FARC, a leftist guerilla organization; hence, they classify the murders as war crimes. Plaintiffs allege that Drummond aided and abetted or conspired with the AUC by directly funding some of its operations and that it collaborated with the AUC to commit these murders. Plaintiffs' claims were brought under the Alien Tort Statute (“ATS” 3), 28 U.S.C. § 1350 (Counts One and Two), the Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note § 2(a) (Count Three), and the wrongful death law of Colombia (Count Four).
The Defendants/Appellees (hereinafter “Defendants”) are: Drummond Company, Inc., a closely-held corporation with its principal place of business in Birmingham, Alabama; Drummond Ltd., a wholly-owned subsidiary of Drummond Company, Inc., which has its principal place of business in Alabama and which manages Drummond's day-to-day coal mining operation in Colombia; Augusto Jimenez, a domiciliary of Colombia, who at relevant times was the President of Drummond, Ltd.'s Colombia branch; and Mike Tracy 4, who at relevant times was the Director of Mining Operations for Drummond Company, Inc. Defendant James Adkins, the former Director of Security for either Drummond Company, Inc. or Drummond Ltd., was dismissed without prejudice on July 6, 2012. Alfredo Araujo, the Director of Community Relations for Drummond Ltd., was once a Defendant but was dropped from the case when the complaint was amended.
Plaintiffs appeal the district court's September 12, 2012 order which (a) struck declarations filed in opposition to Defendants' motion for summary judgment, (b) granted the motion for summary judgment (which pertained to all claims of the first eight Plaintiffs), and (c) granted Defendants' motion to dismiss (which pertained to all claims of the remaining four Plaintiffs). They appeal the final judgment in Defendants' favor which was entered on September 12, 2012. The district court's reasoning in granting Defendants' motions was that all of Plaintiffs' claims are barred by res judicata.
Before turning to analysis of Plaintiffs' claims of error, we will first consider the impact of the United States Supreme Court's April 13, 2013 decision in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, on Counts One and Two, both of which were brought under the jurisdictional aegis of the ATS. Following resolution of that issue, we will turn to Plaintiffs' claims of error. For the reasons set forth below, we conclude that the district court did not abuse its discretion in striking the declarations and that it did not err in granting Defendants' motion for summary judgment and Defendants' motion to dismiss. For the reasons set forth below, we affirm the district court's rulings dismissing the TVPA and Colombian wrongful death claims. The ATS claims are dismissed without prejudice under Rule 12(b)(1), Federal Rules of Civil Procedure. We affirm the judgment in Defendants' favor.
The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. While the ATS grants jurisdiction to pursue a violation of the law of nations, it is well settled that it does not empower a cause of action for just any alleged violation of the law of nations. Rather, “[t]he [ATS's grant of jurisdiction] is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time [of its enactment].” Sosa v. Alvarez–Machain, 542 U.S. 692, 724, 124 S.Ct. 2739, 2761, 159 L.Ed.2d 718 (2004); Baloco ex rel. Tapia v. Drummond Co., Inc., 640 F.3d 1338, 1344 (11th Cir.2011) (hereinafter “ Baloco ”) (citation omitted).
The Supreme Court in Sosa identified only three cognizable violations of the law of nations under the ATS: (1) violations of safe conducts; (2) offenses against ambassadors; and (3) piracy. Sosa, 542 U.S. at 724, 124 S.Ct. at 2761. It did leave “the door ... ajar [for the judicial power to consider further law of nations violations] subject to vigilant doorkeeping.” Id. at 729, 124 S.Ct. at 2764. This circuit has recognized torture and extrajudicial killing as violations of the law of nations, thus expanding the “very limited category” of cognizable claims under the ATS allowed by Sosa. Id. at 720, 124 S.Ct. at 2759; see, e.g., Sinaltrainal v. Coca–Cola Co., 578 F.3d 1252, 1265–66 & n. 15 (11th Cir.2009) () abrogated in part by Mohamad v. Palestinian Auth., ––– U.S. ––––, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012); Romero v. Drummond Co., 552 F.3d 1303, 1316 (11th Cir.2008) (); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1247 (11th Cir.2005) (); Cabello v. Fernandez–Larios, 402 F.3d 1148, 1154, 1158 (11th Cir.2005) ().
Pursuant to the ATS's grant of jurisdiction and this circuit's precedent, the district court had subject matter jurisdiction over Plaintiffs' claims alleging violation of the law of nations based on torture and extrajudicial killings in the course of war crimes. In Kiobel v. Royal Dutch Petroleum Co., –––U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the United States Supreme Court determined that the ATS may not be used to sue for violations of the law of nations occurring within the territory of a sovereign other than the United States where the ATS claim does not “touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application.” Id. at 1669. When Kiobel was announced, the briefing in this case had already concluded. We directed the parties to address the effect of Kiobel in additional briefs. After considering the parties' arguments, we conclude, as explained below, that the claimed violations of the law of nations do not meet the test established by Kiobel; those claims must be dismissed.
In Kiobel, the petitioners—a group of Nigerian nationals residing in the United States—filed suit in the United States District Court for the Southern District of New York against certain Dutch, British, and Nigerian corporations under the ATS. 133 S.Ct. at 1662. The petitioners alleged that those corporations “aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.” Id. The question before the Supreme Court was “whether and under what circumstances courts may recognize a cause of action under the [ATS], for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Id. at 1662.
Chief Justice Roberts, writing for the Court, determined that the presumption against extraterritorial application applies to claims brought under the ATS. Id. at 1664–65, 1669.5 With this in mind, the Supreme Court affirmed the dismissal of the petitioners' claims, concluding:
“[T]here is no clear indication of extraterritoriality here,” and petitioners' case seeking relief for violations of the law of nations occurring outside the United States...
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...earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding.46 Baloco v. Drummond Co ., 767 F.3d 1229, 1251 (11th Cir. 2014). Issue preclusion, like claim preclusion, is an affirmative defense under Federal Rule of Civil Procedure 8(c). See C......