Carijano v. Occidental Petroleum Corp.., Nos. 08–56187

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore: MARY M. SCHROEDER, PAMELA ANN RYMER, and KIM McLANE WARDLAW, Circuit Judges.
Citation643 F.3d 1216
PartiesTomas Maynas CARIJANO; Roxana Garcia Dahua, a minor, by her guardian Rosario Dahua Hualinga; Rosario Dahua Hualinga, personally and on behalf of her minor child Roxana Garcia Dahua; Nilda Garcia Sandi, a minor, by her guardian Rosalbina Hualinga Sandi; Rosalbina Hualinga Sandi, personally and on behalf of her minor child Nilda Garcia Sandi; Elena Maynas Mozambite, a minor, by her guardian Gerardo Maynas Hualinga; Gerardo Maynas Hualinga, personally and on behalf of his minor child Elena Maynas Mozambite; Alan Cariajano Sandi, a minor, by his guardian Pedro Sandi; Pedro Sandi Washington, personally and on behalf of his minor child Alan Cariajano Sandi; Elisa Hualinga Maynas, a minor, by her guardians Daniel Hualinga Sandi and Andrea Maynas Cariajano; Daniel Hualinga Sandi, personally and on behalf of his minor child Elisa Hualinga Maynas; Andrea Maynas Cariajano, personally and on behalf of her minor child Elisa Hualinga Maynas; Cerilo Hualinga Hualinga, a minor, by his guardians Roman Hualinga Sandi and Rosa Hualinga; Roman Hualinga Sandi, personally and on behalf of his minor child Cerilo Hualinga Hualinga; Rosa Hualinga, personally and on behalf of her minor child Cerilo Hualinga Hualinga; Rodolfo Maynas Suarez, a minor, by his guardians Horacio Maynas Cariajano and Delmencia Suarez Diaz; Horacio Maynas Cariajano, personally and on behalf of his minor child Rodolfo Maynas Suarez; Delmencia Suarez Diaz, personally and on behalf of her minor child Rodolfo Maynas Suarez; Katia Hualinga Salas, a minor, by her guardians Alejandro Hualinga Chuje and Linda Salas Pisongo; Alejandro Hualinga Chuje, personally and on behalf of his minor child Katia Hualinga Salas; Linda Salas Pisongo, personally and on behalf of her minor child Katia Hualinga Salas; Francisco Panaigo Paima, a minor, by his guardians Milton Panaigo Diaz and Anita Paima Cariajano; Milton Panaigo Diaz, personally and on behalf of his minor child Francisco Panaigo Paima; Anita Paima Cariajano, personally and on behalf of her minor child Francisco Paniago Paima; Adolfina Garcia Sandi, personally and on behalf of her deceased minor child Olivio Salas Garcia; Amazon Watch, Inc., a Montana corporation, Plaintiffs–Appellants,v.OCCIDENTAL PETROLEUM CORPORATION, a Delaware Corporation; Occidental Peruana, Inc., a California Corporation, Defendants–Appellees.Tomas Maynas Carijano; Roxana Garcia Dahua, a minor, by her guardian Rosario Dahua Hualinga; Rosario Dahua Hualinga, personally and on behalf of her minor child Roxana Garcia Dahua; Nilda Garcia Sandi, a minor, by her guardian Rosalbina Hualinga Sandi; Rosalbina Hualinga Sandi, personally and on behalf of her minor child Nilda Garcia Sandi; Elena Maynas Mozambite, a minor, by her guardian Gerardo Maynas Hualinga; Gerardo Maynas Hualinga, personally and on behalf of his minor child Elena Maynas Mozambite; Alan Cariajano Sandi, a minor, by his guardian Pedro Sandi; Pedro Sandi Washington, personally and on behalf of his minor child Alan Cariajano Sandi; Elisa Hualinga Maynas, a minor, by her guardians Daniel Hualinga Sandi and Andrea Maynas Cariajano; Daniel Hualinga Sandi, personally and on behalf of his minor child Elisa Hualinga Maynas; Andrea Maynas Cariajano, personally and on behalf of her minor child Elisa Hualinga Maynas; Cerilo Hualinga Hualinga, a minor, by his guardians Roman Hualinga Sandi and Rosa Hualinga; Roman Hualinga Sandi, personally and on behalf of his minor child Cerilo Hualinga Hualinga; Rosa Hualinga, personally and on behalf of her minor child Cerilo Hualinga Hualinga; Rodolfo Maynas Suarez, a minor, by his guardians Horacio Maynas Cariajano and Delmencia Suarez Diaz; Horacio Maynas Cariajano, personally and on behalf of his minor child Rodolfo Maynas Suarez; Delmencia Suarez Diaz, personally and on behalf of her minor child Rodolfo Maynas Suarez; Katia Hualinga Salas, a minor, by her guardians Alejandro Hualinga Chuje and Linda Salas Pisongo; Alejandro Hualinga Chuje, personally and on behalf of his minor child Katia Hualinga Salas; Linda Salas Pisongo, personally and on behalf of her minor child Katia Hualinga Salas; Francisco Panaigo Paima, a minor, by his guardians Milton Panaigo Diaz and Anita Paima Cariajano; Milton Panaigo Diaz, personally and on behalf of his minor child Francisco Panaigo Paima; Anita Paima Cariajano, personally and on behalf of her minor child Francisco Paniago Paima; Adolfina Garcia Sandi, personally and on behalf of her deceased minor child Olivio Salas Garcia; Amazon Watch, Inc., a Montana corporation, Plaintiffs–Appellees,v.Occidental Petroleum Corporation, a Delaware Corporation; Occidental Peruana, Inc., a California Corporation, Defendants–Appellants.
Decision Date01 June 2011
Docket NumberNos. 08–56187,08–56270.

643 F.3d 1216
11 Cal.
Daily Op. Serv. 6522
2011 Daily Journal D.A.R. 7927

Tomas Maynas CARIJANO; Roxana Garcia Dahua, a minor, by her guardian Rosario Dahua Hualinga; Rosario Dahua Hualinga, personally and on behalf of her minor child Roxana Garcia Dahua; Nilda Garcia Sandi, a minor, by her guardian Rosalbina Hualinga Sandi; Rosalbina Hualinga Sandi, personally and on behalf of her minor child Nilda Garcia Sandi; Elena Maynas Mozambite, a minor, by her guardian Gerardo Maynas Hualinga; Gerardo Maynas Hualinga, personally and on behalf of his minor child Elena Maynas Mozambite; Alan Cariajano Sandi, a minor, by his guardian Pedro Sandi; Pedro Sandi Washington, personally and on behalf of his minor child Alan Cariajano Sandi; Elisa Hualinga Maynas, a minor, by her guardians Daniel Hualinga Sandi and Andrea Maynas Cariajano; Daniel Hualinga Sandi, personally and on behalf of his minor child Elisa Hualinga Maynas; Andrea Maynas Cariajano, personally and on behalf of her minor child Elisa Hualinga Maynas; Cerilo Hualinga Hualinga, a minor, by his guardians Roman Hualinga Sandi and Rosa Hualinga; Roman Hualinga Sandi, personally and on behalf of his minor child Cerilo Hualinga Hualinga; Rosa Hualinga, personally and on behalf of her minor child Cerilo Hualinga Hualinga; Rodolfo Maynas Suarez, a minor, by his guardians Horacio Maynas Cariajano and Delmencia Suarez Diaz; Horacio Maynas Cariajano, personally and on behalf of his minor child Rodolfo Maynas Suarez; Delmencia Suarez Diaz, personally and on behalf of her minor child Rodolfo Maynas Suarez; Katia Hualinga Salas, a minor, by her guardians Alejandro Hualinga Chuje and Linda Salas Pisongo; Alejandro Hualinga Chuje, personally and on behalf of his minor child Katia Hualinga Salas; Linda Salas Pisongo, personally and on behalf of her minor child Katia Hualinga Salas; Francisco Panaigo Paima, a minor, by his guardians Milton Panaigo Diaz and Anita Paima Cariajano; Milton Panaigo Diaz, personally and on behalf of his minor child Francisco Panaigo Paima; Anita Paima Cariajano, personally and on behalf of her minor child Francisco Paniago Paima; Adolfina Garcia Sandi, personally and on behalf of her deceased minor child Olivio Salas Garcia; Amazon Watch, Inc., a Montana corporation, Plaintiffs–Appellants,
v.
OCCIDENTAL PETROLEUM CORPORATION, a Delaware Corporation; Occidental Peruana, Inc., a California Corporation, Defendants–Appellees.Tomas Maynas Carijano; Roxana Garcia Dahua, a minor, by her guardian Rosario Dahua Hualinga; Rosario Dahua Hualinga, personally and on behalf of her minor child Roxana Garcia Dahua; Nilda Garcia Sandi, a minor, by her guardian Rosalbina Hualinga Sandi; Rosalbina Hualinga Sandi, personally and on behalf of her minor child Nilda Garcia Sandi; Elena Maynas Mozambite, a minor, by her guardian Gerardo Maynas Hualinga; Gerardo Maynas Hualinga, personally and on behalf of his minor child Elena Maynas Mozambite; Alan Cariajano Sandi, a minor, by his guardian Pedro Sandi; Pedro Sandi Washington, personally and on behalf of his minor child Alan Cariajano Sandi; Elisa Hualinga Maynas, a minor, by her guardians Daniel Hualinga Sandi and Andrea Maynas Cariajano; Daniel Hualinga Sandi, personally and on behalf of his minor child Elisa Hualinga Maynas; Andrea Maynas Cariajano, personally and on behalf of her minor child Elisa Hualinga Maynas; Cerilo Hualinga Hualinga, a minor, by his guardians Roman Hualinga Sandi and Rosa Hualinga; Roman Hualinga Sandi, personally and on behalf of his minor child Cerilo Hualinga Hualinga; Rosa Hualinga, personally and on behalf of her minor child Cerilo Hualinga Hualinga; Rodolfo Maynas Suarez, a minor, by his guardians Horacio Maynas Cariajano and Delmencia Suarez Diaz; Horacio Maynas Cariajano, personally and on behalf of his minor child Rodolfo Maynas Suarez; Delmencia Suarez Diaz, personally and on behalf of her minor child Rodolfo Maynas Suarez; Katia Hualinga Salas, a minor, by her guardians Alejandro Hualinga Chuje and Linda Salas Pisongo; Alejandro Hualinga Chuje, personally and on behalf of his minor child Katia Hualinga Salas; Linda Salas Pisongo, personally and on behalf of her minor child Katia Hualinga Salas; Francisco Panaigo Paima, a minor, by his guardians Milton Panaigo Diaz and Anita Paima Cariajano; Milton Panaigo Diaz, personally and on behalf of his minor child Francisco Panaigo Paima; Anita Paima Cariajano, personally and on behalf of her minor child Francisco Paniago Paima; Adolfina Garcia Sandi, personally and on behalf of her deceased minor child Olivio Salas Garcia; Amazon Watch, Inc., a Montana corporation, Plaintiffs–Appellees,
v.
Occidental Petroleum Corporation, a Delaware Corporation; Occidental Peruana, Inc., a California Corporation, Defendants–Appellants.

Nos. 08–56187

08–56270.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2010.Filed June 1, 2011.


[643 F.3d 1221]

Marco Simons (argued), Richard Herz, Earthrights International, Washington, D.C.; Paul Hoffman, Benjamin Schonbrun, Michael D. Seplow, Schonbrun Desimone Seplow Harris & Hoffman LLP, Venice, CA; Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, CA, for the plaintiffs-appellants.Daniel P. Collins (argued), Manuel F. Cachán, Gabriel P. Sanchez, Munger, Tolles & Olson L.L.P., Los Angeles, CA; Ernest J. Getto, Michael G. Romey, Kirk A. Wilkinson, Latham & Watkins, L.L.P., Los Angeles, CA, for the defendants-appellees.Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:07–cv–05068–PSG–PJW.Before: MARY M. SCHROEDER, PAMELA ANN RYMER, and KIM McLANE WARDLAW, Circuit Judges.Opinion by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge RYMER.

ORDER

The petition for panel rehearing is granted.

The opinion filed December 6, 2010, and reported at 626 F.3d 1137 (9th Cir.2010), is hereby withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

The clerk shall file the attached opinion and partial concurrence, partial dissent in place of the prior opinion and partial concurrence, partial dissent. The parties are free to file new petitions for rehearing or rehearing en banc pursuant to Ninth Circuit General Order 5.3 and Federal Rule of Appellate Procedure 40.

Occidental's motion for leave to file a reply in support of its petition for panel

[643 F.3d 1222]

rehearing and rehearing en banc is therefore dismissed as moot.

IT IS SO ORDERED.

OPINION
WARDLAW, Circuit Judge:

These cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (“OxyPeru”), an indirect subsidiary of defendant Occidental Petroleum Corporation (collectively “Occidental”), along the Rio Corrientes in the northern region of Peru. Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste. Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. Plaintiffs timely appeal the dismissal of their suit. Occidental cross-appeals from the district court's determination that its Rule 12 motion to dismiss Amazon Watch for lack of standing is moot.

Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal.

I. Factual and Procedural Background

We accept as true the facts alleged in the Achuar Plaintiffs' and Amazon Watch's (“Plaintiffs”) First Amended Complaint (“FAC”). See Vivendi SA v. T–Mobile USA, Inc., 586 F.3d 689, 691 n. 3 (9th Cir.2009); Aguas Lenders Recovery Group v. Suez, S.A., 585 F.3d 696, 697 (2d Cir.2009) (accepting the facts alleged in the complaint as true where the case was dismissed on forum non conveniens grounds without a factual hearing).

Occidental is among the largest oil and gas companies in the United States. Its Peruvian operations began in the early 1970s with the development of a pair of lots near the Ecuadorean border known as “Block 1–AB.” Its subsidiary, OxyPeru, built Block 1–AB into a thriving extraction, processing, and distribution site, providing 26 percent of Peru's total historical oil production from 1972 to 2000, at which point Occidental sold its stake in Block 1–AB to the Argentine oil company Pluspetrol. The Peruvian government granted Occidental its first concession in the region in 1971; oil was found the next year. The company built dozens of wells, a 530–kilometer network of pipelines, refineries, and separation batteries for processing crude oil, as well as roads, heliports and camps to support the operation at Block 1–AB.

The Achuar are indigenous people who have long resided along the rivers of the northern Peruvian rainforest. Block 1–AB encompasses significant portions of the Corrientes and Macusari rivers, home to several Achuar communities. The inhabitants use the rivers and their tributaries for drinking, fishing, and bathing. The region is remote, with access typically limited to small planes, helicopters, small boats, and canoes.

The complaint alleges that, during its thirty years in the Achuar territories, Occidental knowingly utilized out-of-date methods for separating crude oil that contravened United States and Peruvian law, resulting in the discharge of millions of gallons of toxic oil byproducts into the area's waterways. Achuar children and

[643 F.3d 1223]

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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
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    ...2001). Apple has the burden of demonstrating that an alternative forum is available and adequate. Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) (stating that the defendant seeking dismissal bears the burden). Generally, this requirement will be met when the def......
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    ...320 (1974) )).9 Because “Article III standing is a species of subject matter jurisdiction[,]” Carijano v. Occidental Petroleum Corp. , 643 F.3d 1216, 1227 (9th Cir.2011), it is properly raised in a Rule 12(b)(1) motion to dismiss[,]” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115......
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    ...resorts ‘to a strategy of forcing the trial at a most inconvenient place for an adversary.’ ” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir.2011), reh'g en banc den., 686 F.3d 1027 (2012), cert den., ––– U.S. ––––, 133 S.Ct. 1996, 185 L.Ed.2d 865 (2013) (quoting Gulf ......
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176 cases
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
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    ...2001). Apple has the burden of demonstrating that an alternative forum is available and adequate. Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) (stating that the defendant seeking dismissal bears the burden). Generally, this requirement will be met when the def......
  • Silva v. McDonald, No. CV 11–04127–ODW (VBK).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 24, 2012
    ...to promote, further, or assist in some type of criminal conduct by gang members, which may also include the crime of conviction. Emery, 643 F.3d at 1216. In light of Albillar and Emery, it is clear that the evidence in support of Petitioner's gang enhancement satisfies the Jackson standard.......
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    ...320 (1974) )).9 Because “Article III standing is a species of subject matter jurisdiction[,]” Carijano v. Occidental Petroleum Corp. , 643 F.3d 1216, 1227 (9th Cir.2011), it is properly raised in a Rule 12(b)(1) motion to dismiss[,]” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115......
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    • Court of Appeals of Oregon
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    ...resorts ‘to a strategy of forcing the trial at a most inconvenient place for an adversary.’ ” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir.2011), reh'g en banc den., 686 F.3d 1027 (2012), cert den., ––– U.S. ––––, 133 S.Ct. 1996, 185 L.Ed.2d 865 (2013) (quoting Gulf ......
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1 books & journal articles
  • DEFERRING TO FOREIGN COURTS.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 8, August 2021
    • August 1, 2021
    ...obstacle will exist regardless of where this case is tried."); Simon, 911 F.3d at 1186 (similar); Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1230-31 (9th Cir. 2011) (noting neutrality of convenience considerations when logistical challenges would be present in either forum); Tua......

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