Doe v. Drummond Co.

Decision Date25 March 2015
Docket NumberNo. 13–15503.,13–15503.
Citation782 F.3d 576
PartiesJane DOE, et al., Plaintiffs–Appellants, v. DRUMMOND COMPANY, INC., et al., Defendants–Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Terrence Patrick Collingsworth, Conrad & Scherer, LLP, Washington, DC, for PlaintiffsAppellants.

William H. Jeffress, Noah R. Mink, David A. Super, Baker Botts, LLP, Laina Lopez, Berliner Corcoran & Rowe, LLP, Washington, DC, William Anthony Davis, III, Philip Guy Piggott, Benjamin T. Presley, Huey Thomas Wells, III, Starnes Davis Florie, LLP, Bruce F. Rogers, John W. Clark, IV, Bainbridge Mims Rogers & Smith, LLP, Birmingham, AL, for DefendantsAppellees.

Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 2:09–cv–01041–RDP.

Before WILSON and ROSENBAUM, Circuit Judges, and SCHLESINGER,* District Judge.


WILSON, Circuit Judge:

Following a prolonged period of civil unrest in the Republic of Colombia, plaintiffs-appellants (Plaintiffs) brought the instant action on behalf of over one hundred Colombian citizens killed by violent paramilitaries in the ensuing armed conflict. Plaintiffs, the legal heirs of the decedents, filed suit in federal court against numerous defendants-appellees, including a supranational coal mining company based in Alabama, its subsidiary, and several of its high-ranking corporate officers (collectively, Defendants). Averring that Defendants engaged the paramilitaries, known as the Autodefensas Unidas de Colombia (AUC), to eliminate suspected guerilla groups from around the company's mining operations in Colombia, Plaintiffs contend their innocent decedents were incidental casualties of Defendants' arrangement with the AUC.

Specifically, Plaintiffs allege that the AUC, acting at the behest and on behalf of Defendants, committed a series of international law violations, including extrajudicial killings, war crimes, and crimes against humanity, against Plaintiffs' family members in Colombia. Claiming that Defendants aided and abetted, conspired with, and entered into an agency relationship with the AUC, Plaintiffs brought suit under the Alien Tort Statute (ATS), 28 U.S.C. § 1350 ; the Torture Victim Protection Act of 1991 (TVPA), Pub.L. No. 102–256, 106 Stat. 73 (codified at 28 U.S.C. § 1350 note); and Colombia's wrongful death laws.

The district court found that the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), required dismissal of Plaintiffs' ATS claims, and the court entered summary judgment in Defendants' favor on those claims. In a series of opinions, the district court also dismissed Plaintiffs' TVPA claims on summary judgment. Further, the district court declined to exercise supplemental jurisdiction over Plaintiffs' wrongful death claims under Colombian law and denied Plaintiffs' motion to vacate the district court's grants of summary judgment, which Plaintiffs sought in order to proceed with their Colombian wrongful death claims.

Plaintiffs appeal each of the district court's opinions and the holdings contained therein. We provide a general background of the proceedings below before turning to the issues presented on appeal by Plaintiffs' claims under the ATS, the TVPA, and Colombian law, respectively. After careful consideration of the parties' briefs and those filed by the amici, the record on appeal, and the relevant legal authorities, we affirm the district court's rulings.


On May 7, 2009, Plaintiffs filed a complaint against Defendants for equitable relief and damages under the ATS, the TVPA, and the wrongful death laws of Colombia. Defendants include Drummond Company, Inc., a closely-held coal mining corporation based in Alabama (Drummond Company); Drummond Ltd., Drummond Company's wholly-owned subsidiary in charge of day-to-day mining operations in Colombia; and two corporate officers, James Michael Tracy and Augusto Jimenez.1 Drummond Company and Drummond Ltd. are incorporated in and maintain their principal place of business in Alabama. Plaintiffs, who are citizens of Colombia and resided there at time of suit, used the pseudonyms Jane Doe and Peter Doe in their initial filing.

Before the district court, Plaintiffs averred that Defendants provided substantial financial and material support to the violent paramilitaries within the AUC from 1996 until 2006, when the AUC demobilized. They further contended that Defendants continued to provide this support despite being fully aware that the AUC was designated a foreign terrorist organization by the U.S. government in 2001.

The complaint alleged that Defendants paid the AUC—through both direct payments to the AUC as well as indirect payments funneled to the AUC through the Colombian military in the form of unrestricted funds—to provide “security” for Drummond Company's mining operations and facilities.

Defendants' security objectives allegedly included driving competing, non-AUC guerilla fighters out of the area surrounding Defendants' mining operations and rail line and ensuring that the civilian population in and around that area would not provide any support to guerilla groups or rebels. Incidental to these objectives, the purported arrangement between Defendants and the AUC resulted in the AUC killing numerous local civilians. Asserting that each of the civilian deaths at issue was an extrajudicial killing in violation of the “law of nations” under the ATS and in violation of the TVPA, Plaintiffs contended Defendants were liable because the AUC paramilitaries carried out the atrocities as Defendants' agents and Defendants conspired with and aided and abetted the AUC.

Defendants moved to dismiss Plaintiffs' initial complaint on several grounds. The district court refused to dismiss the complaint entirely; instead, it permitted Plaintiffs to amend in order to “more carefully craft their complaint” in accordance with the court's stated findings. However, the court did find that Plaintiffs' wrongful death claims would raise novel and complex issues of Colombian law. The district court thus declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiffs' wrongful death claims, regardless of whether Plaintiffs properly alleged federal claims under the ATS and TVPA in their amended complaint.

Plaintiffs' amended complaint added a claim for “crimes against humanity” under the ATS in addition to their existing claims under the ATS and the TVPA. In response, Defendants renewed their motion to dismiss. The district court granted Defendants' motion in part, dismissing the crimes against humanity claim on the grounds that the attacks by the AUC were not attacks on a civilian population. Plaintiffs then filed a second amended complaint removing the pseudonyms and disclosing their identities.2 The complaint identified in detail each Plaintiff, his or her relationship to the deceased, and the facts surrounding the death of the decedent at the hands of the AUC.3

On September 29, 2011, Plaintiffs filed a third amended complaint, which serves as the operative complaint in this action, and the parties proceeded to discovery. Shortly thereafter, the Supreme Court listed Kiobel v. Royal Dutch Petroleum Co.a case involving ATS claims—for reargument on the question of [w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” See Kiobel v. Royal Dutch Petroleum Co.,

565 U.S. ––––, ––––, 132 S.Ct. 1738, 1738, 182 L.Ed.2d 270 (2012) (mem.) (internal quotation marks omitted) (calendaring the case for reargument). Defendants moved for a stay of proceedings pending the Supreme Court's decision, but the district court denied the motion.

At the close of discovery, each of the Defendants moved for summary judgment. During the pendency of those motions, the Supreme Court issued its decision in Kiobel, 569 U.S. ––––, 133 S.Ct. 1659. After ordering and considering supplemental briefing by the parties on the impact of Kiobel on the instant action, the district court dismissed Plaintiffs' ATS claims against all Defendants in a series of separate opinions and accompanying orders.

As for Plaintiffs' TVPA claims, in the same series of opinions, the district court found that the Supreme Court's decision in Mohamad v. Palestinian Authority, 566 U.S. ––––, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012), required dismissal of the claims against any corporate entities; thus, the district court dismissed Plaintiffs' claims against Drummond Company and Drummond Ltd. The court also granted the summary judgment motions filed by the individual defendants, Tracy and Jimenez, thereby dismissing Plaintiffs' remaining TVPA claims.

With all claims dismissed and the litigation at a close, Plaintiffs moved to vacate the summary judgment orders. Plaintiffs argued that the judgments should be vacated to permit limited discovery regarding actions taken by Defendants in the United States or, in the alternative, to allow Plaintiffs to amend their complaint for a fourth time to assert diversity jurisdiction and in that way pursue their wrongful death claims under Colombian law before the district court. The court denied Plaintiffs' motion, and this appeal ensued.


On appeal, we are called upon to determine whether Plaintiffs' ATS claims—that U.S. citizens, acting in part from within the United States, aided and abetted or otherwise contributed to human rights violations committed outside the United States—sufficiently “touch and concern” the territory of the United States so that we have jurisdiction to consider Plaintiffs' claims.

The “touch and concern” standard is set forth in Kiobel, wherein the Supreme Court held that ATS claims are subject to the presumption against extraterritoriality, a judicially created canon of statutory interpretation that assumes U.S. law does...

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