Carijano v. Occidental Petroleum Corp., CV 07-5068 PSG (PJWx).

• Decision Date: 15 April 2008
• Docket Number: No. CV 07-5068 PSG (PJWx).,CV 07-5068 PSG (PJWx).
• Citation: 548 F.Supp.2d 823
• Parties: Tomas Maynas CARIJANO et al. v. OCCIDENTAL PETROLEUM CORP. et al.
• Court: U.S. District Court — Central District of California

548 F.Supp.2d 823

Tomas Maynas CARIJANO et al. v. OCCIDENTAL PETROLEUM CORP. et al.

No. CV 07-5068 PSG (PJWx).

United States District Court, CD. California.

April 15, 2008.

COPYRIGHT MATERIAL OMITTED

Benjamin Schonbrun, Michael D. Seplow, Paul L. offman, Schonbrun Desimone Seplow Harris & Hoffman, Venice, CA, Marco B. Simons, Richard Hertz, Earth Rights International, Washington, CA, Natalie L. Bridgeman, Natalie L. Bridgeman Law Office, San Francisco, CA, Robert Kerrigan, Kerrigan Estees Rankin McLedo and Thompson. Pensacola, FL, for Tomas Maynas Carijano et al.

Daniel P. Collins, Gabriel P. Sanchez, Manuel F. Cachan, Munger Tolles & Olson LLP, Danielle L. Gilmore, John B. Quinn, Megan O'Neill, Steven G. Madison, Quinn Emanuel Urquhart Oliver and Hedges, Ernest J. Getto, Kirk A. Wilkinson, Michael G. Romey, Patricia Ann Young. Latham and Watkins, Los Angeles, CA. for Occidental Petroleum Corp. et al. Proceedings: (In Chambers) Order DENYING Plaintiffs Motion to Conduct Limited Discovery and GRANTING Defendants' Motion to Dismiss based on Forum Non Conveniens

PHILIP S. GUTIERREZ, District Judge.

Before this Court is Defendants' Motion Pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(e) and (f). The Court finds the matter appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local R. 7-15. Accordingly, the hearing set for August 27, 2007 on the present motion is removed from the Court's calendar. After considering the moving and opposing papers, the Court DENIES Defendants' Motion.

I. BACKGROUND

Plaintiffs are 25 members of the Achuar indigenous group who live along the Rio Corrientes River in the northern region of Peru, and Amazon Watch, Inc. ("Amazon"), an environmental rights group which works to defend the rights of the indigenous peoples in the Amazon basin. Defendants are Occidental Petroleum Corporation ("Occidental") and Occidental's indirect subsidiary, Occidental Peruana, Inc. ("OxyPeru") (collectively "Defendants"), both American corporations headquartered in Los Angeles.

From the early 1970's to 2000, OxyPeru operated a petroleum and oil exploration operation in Peru in an area known as Block 1-AB.'(FAC, ¶¶ 39, 42.) Block 1-AB encompassed traditional Achuar communities as well as lands upstream from such communities. (FAC, ¶¶ 38, 44.) Plaintiffs allege that Defendants' operations in Block 1-AB contaminated the environment, by releasing "produced waters" into streams and tributaries of the Rio Corrientes that degraded the waters and soil, harmed the fish, plants, and animals, and caused Plaintiffs to suffer various ailments. (FAC, ¶¶ 48-50, 63-69.) Plaintiffs further allege that Defendants released or disposed of hazardous substances which harmed the environment. (FAC, ¶ 45.)

On May 10, 2007, Plaintiffs filed a complaint in state court alleging, among other things, negligence, strict-liability, medical monitoring and trespass. Defendants removed the action to federal court, and Plaintiffs filed a First Amended Complaint ("FAC") containing twelve causes of' action: (1) negligence, (2) strict-liability, (3) battery, (4) medical monitoring, (5) injunctive relief or damages in lieu of injunction, (6) wrongful death, (7) fraud, (8) public nuisance, (9) private nuisance, (10) trespass, (11) violation of California's Unfair Competition Law ("UCL"), Bus. & Prof. Code § § 17200 et seq. and (12) intentional infliction of emotional distress.

Defendants now seek dismissal of the action based on forum non conveniens and international comity. In a separate motion, Defendants seek dismissal of Amazon Watch's claim pursuant to Rule 12(b)(1) and 12(b)(6). In addition, Plaintiffs move to conduct limited discovery prior to the Court's ruling on Defendants' motion to dismiss based on forum non conveniens and international comity.

II. MOTION TO CONDUCT LIMITED DISCOVERY

Plaintiffs request that prior to issuing a ruling on Defendants' motion to dismiss based on forum non conveniens, the Court afford Plaintiffs an opportunity to conduct limited discovery regarding the proper forum for this action. Plaintiffs' proposed discovery includes (1) discovery regarding the Peruvian legal system, including Defendants' experiences with the system and their awareness of corruption; (2) discovery regarding the location of witnesses and evidence; and (3) limited depositions of Defendants' representatives concerning the direction and control of Defendants' Peruvian operations, the current location of documents relevant to those operations, the involvement of Defendants in any bribery or corrupt transactions or accusations of such involvement, and Defendants' litigation history in Peru. (Discovery Motion at 5-1.)

A. Legal Standard

Under Fed.R.Civ.P. 26(d)(1), "A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)...." Despite this general prohibition, the rule recognizes the court's broad power over discovery by permitting authorization of discovery before a Rule 26(f) conference "when authorized ... by court order." Fed.R.Civ.P. 26(d)(1); see also Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980). Therefore, the Court does have authority to entertain Plaintiffs' Motion.

B. Discussion

Defendants contend that discovery on the issue of forum non conveniens is generally unnecessary and at odds with the doctrine's purposes. Noting that the forum non conveniens doctrine is grounded in concern for the costs of litigation and convenience of the parties, Defendants argue that "[m]otions to dismiss based on forum non conveniens usually should be decided at an early stage in the litigation, so that the parties will not waste resources on discovery and trial preparation in a forum that will later decline to exercise its jurisdiction over the case." Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 614 (3rd Cir.1991). While Defendants' contentions are generally correct, they do not preclude this Court from granting the opportunity to conduct limited discovery if doing so would "enable the District Court to balance the parties' interests." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Moreover, the district court is accorded substantial flexibility in evaluating a forum non conveniens motion, id., at 249, 102 S.Ct. 252, and "[e]ach case turns on its facts." Williams v. Green Bay & Western R. Co.. 326 U.S. 549, 557, 66 S.Ct. 284, 90 L.Ed. 311 (1946). So although in certain cases, the forum non conveniens determination will not require significant inquiry into the facts and legal issues presented by a case, other cases may well require some discovery to allow the court to weigh the parties' interests or determine the adequacy of the foreign forum.

Having reviewed Defendants' forum non conveniens motion and all related documents and exhibits, the Court concludes it has enough information to sufficiently weigh the parties' interests and determine the adequacy of the foreign forum. Therefore, Plaintiffs' request to conduct additional discovery is DENIED. The Court now turns to the merits of Defendants' motion to dismiss based on forum non conveniens and international comity.

III. MOTION TO DISMISS BASED ON FORUM NON CONVENIENS AND INTERNATIONAL COMITY

A. Legal Standard: Forum Non Conveniens

A federal court has discretion to decline to exercise jurisdiction on the grounds of forum non conveniens where litigation in the foreign forum would be more convenient for the parties. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1177 (9th Cir.2006) (quoting Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir.2001); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 91 L.Ed 1055 (1947)). "A party moving to dismiss based on forum non conveniens bears the burden of showing (1) that there is an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal." Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1118 (9th Cir.2002) (citing Lueck, 236 F.3d at 1142-43). Private factors include ease of access to sources of proof, compulsory process to obtain the attendance of hostile witnesses and the cost of transporting friendly witnesses, and other problems that interfere with an expeditious trial. Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1451-52 (9th Cir.1990). Public interest factors include court congestion, the local interest in resolving the controversy, and the preference for having a forum apply a law with which it is familiar. Id.

There is a strong presumption in favor of a domestic plaintiffs choice of forum, which can be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. Piper Aircraft, 454 U.S. at 253-57, 102 S.Ct. 252; Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir.2000) "Forum non conveniens is `an exceptional tool to be employed sparingly, [not a] ... doctrine that compels plaintiffs to choose the optimal forum for their claim.'" Dole Food, 303 F.3d at 1118 (9th Cir.2002) (quoting Cheng v. Boeing Co., 708 F.2d 1406,1410 (9th Cir.1983)).

B. Discussion

1. Availability and Adequacy of Peru as an Alternative Forum

Defendants bear the burden of demonstrating that an alternative forum exists and that it is adequate. Dole Food, 303 F.3d at 1118. An alternative forum ordinarily exists when defendants are amenable to service of process in the foreign forum, and the foreign forum provides a plaintiff with a sufficient remedy for his or her wrong. See Lueck, 236 F.3d at 1143 (citations omitted). Typically, a forum will be inadequate only where the remedy provided is "so clearly inadequate or unsatisfactory, that it is no remedy at all." Lockman Found, v. Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir.1991) (quoting Piper Aircraft, 454 U.S. at 254, 102 S.Ct. 252).

Defendants assert that OxyPeru is unquestionably subject to jurisdiction in Peru based on its past...