Penaloza v. Drummond Co.

Decision Date22 May 2019
Docket NumberCase No.: 2:13-CV-00393-RDP
Citation384 F.Supp.3d 1328
Parties Marisol Melo PENALOZA, et al., Plaintiffs, v. DRUMMOND COMPANY, INC., et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

Thomas L. Carmichael, Carmichael Law Firm, Jasper, AL, Terrence P. Collingsworth, Washington, DC, for Plaintiffs.

Benjamin T. Presley, H. Thomas Wells, III, William Anthony Davis, III, Starnes Davis Florie LLP, Birmingham, AL, David A. Super, Noah Mink, William H. Jeffress, Jr., Baker Botts LLP, Washington, DC, for Defendants.



The court has before it the Motion to Dismiss the Second Amended Complaint filed by Defendants Drummond Company, Inc., Drummond Ltd., and Drummond USA (Doc. #80) on October 23, 2018 and the Motion to Dismiss the Second Amended Complaint filed by Defendants J. Michael Tracy and the Estate of Garry N. Drummond (Doc. #81) on October 23, 2018. The Motions (Docs. #80, 81) have been fully briefed (Docs. #82-85, 91) and are properly before the court for review. For the reasons explained below, the court finds that the Motions (Docs. #80, 81) are due to be granted in part and denied in part.

I. Background

This case was filed on February 26, 2013. (Doc. #1). After the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., et. al. , 569 U.S. 108, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013),1 an amended complaint (Doc. #20) was filed. On February 4, 2014, the case was stayed (Doc. #45) due to cases then-pending in the Eleventh Circuit which implicated the claims in the Amended Complaint (Doc. #20). After the Eleventh Circuit issued opinions in Doe et al. v. Drummond Company, Inc. et al. , 782 F.3d 576 (11th Cir. 2015) (" Doe/Balcero ")2 and Baloco et al. v. Drummond Company, Inc. et al., 767 F.3d 1229 (11th Cir. 2014) (" Baloco II "), the court directed the parties to show cause why dismissal was not appropriate in this case. (Doc. #51). Based on the responses to the show cause order and representations by attorneys in conferences, the court dismissed this case in its entirety with prejudice. (Docs. #52, 53, 60).

The dismissal was appealed. On September 27, 2016, the Eleventh Circuit entered an opinion affirming in part, reversing in part, vacating in part, and remanding in part. Penaloza et al. v. Drummond Company, Inc., et al. , 662 Fed. Appx. 673 (11th Cir. 2016). After the Supreme Court denied certiorari in the Doe/Balcero case and interlocutory appeal was ruled on in the companion defamation case ("Collingsworth ," 2:11-cv-3695-RDP-TMP), the court directed the parties to meet and confer to determine the status of the case. (Doc. #70). After briefing and a hearing, the court determined that a Second Amended Complaint should be filed in this case. (Doc. #75). That Second Amended Complaint (Doc. #75) is the subject of the pending motions to dismiss (Docs. #80, 81).

II. Standard of Review

The Alien Tort Statute is a jurisdictional statute. See Sosa v. Alvarez-Machain , 542 U.S. 692, 712-13, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). A challenge to subject-matter jurisdiction under Rule 12(b)(1) may be made either as a facial attack or a factual attack. Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009). A facial attack -- the type made by Defendants here -- argues that the complaint itself insufficiently alleges jurisdiction and follows the standard for a motion to dismiss under Rule 12(b)(6).

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A court may dismiss a complaint under Rule 12(b)(6) if a plaintiff fails to provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, if a plaintiff "ha[s] not nudged [her] claims across the line from conceivable to plausible, [her] complaint must be dismissed." Id. ; see Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (complaint must "permit the court to infer more than the mere possibility of misconduct" based upon "judicial experience and common sense").

In deciding a Rule 12(b)(6) motion, the court must "accept all well-pleaded factual allegations in the complaint as true and construe the facts in a light most favorable to the non-moving party." Dacosta v. Nwachukwa , 304 F.3d 1045, 1047 (11th Cir. 2002) (citing GJR Invs., Inc. v. County of Escambia, Fla. , 132 F.3d 1359, 1367 (11th Cir. 1998) ). "[U]nsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal." Dalrymple v. Reno , 334 F.3d 991, 996 (11th Cir. 2003) (citing Marsh v. Butler County , 268 F.3d 1014, 1036 n.16 (11th Cir. 2001) (en banc)). Further, "[a] complaint may not be dismissed because the plaintiff's claims do not support the legal theory [s]he relies upon since the court must determine if the allegations provide for relief on any [plausible] theory." Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (emphasis in original) (citing Robertson v. Johnston , 376 F.2d 43 (5th Cir. 1967) ). Nevertheless, conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as facts will not prevent dismissal. Oxford Asset Mgmt., Ltd. v. Jaharis , 297 F.3d 1182, 1188 (11th Cir. 2002) ; see Kane Enters. v. MacGregor (USA) Inc. , 322 F.3d 371, 374 (5th Cir. 2003) ("[A] plaintiff must plead specific facts, not mere conclusional allegations, to avoid dismissal for failure to state a claim. We will thus not accept as true conclusory allegations or unwarranted deductions of fact.") (internal citations omitted); Kirwin v. Price Commc'ns. Corp. , 274 F. Supp. 2d 1242, 1248 (M.D. Ala. 2003) ("[A]lthough the complaint must be read liberally in favor of the plaintiff, the court may not make liberal inferences beyond what has actually been alleged."), aff'd in part , 391 F.3d 1323 (11th Cir. 2004).

III. Analysis

Plaintiffs have asserted a number of claims. The court addresses them below.

A. Plaintiffs' Claims Brought Pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350 (First and Second Causes of Action)

Plaintiffs bring two claims against all defendants pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350 – one for war crimes (First Cause of Action), and one for extrajudicial killings (Second Cause of Action). All defendants seek dismissal of these claims for lack of jurisdiction. (Doc. #80 at 5-10; Doc. #81 at 3). For the reasons explained below, the ATS claims are due to be dismissed without prejudice.

The Alien Tort Statute3 states in its entirety: "The 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. Therefore, by its terms, the ATS is a "strictly jurisdictional" statute. Sosa , 542 U.S. at 713, 124 S.Ct. 2739. It empowers federal courts to recognize private claims under federal common law, when those claims sufficiently state an international law violation "with the requisite definite content and acceptance among civilized nations." Kiobel , 569 U.S. at 108, 133 S.Ct. 1659.

To state a claim for relief under the ATS, a plaintiff must be "(1) an alien, (2) suing for a tort, which was (3) committed in violation of international law." Doe/Balcero , 782 F.3d at 583-84 (quoting Aldana v. Del Monte Fresh Produce, N.A., Inc. , 416 F.3d 1242, 1246 (11th Cir. 2005) (per curiam)). In addressing a motion to dismiss under the ATS, the court must undertake "a more searching review of the merits" than under "the more flexible ‘arising under’ formula." Aldana v. Fresh Del Monte Produce, Inc. , 305 F.Supp.2d 1285, 1292 (S.D. Fla. 2003) ; see also Aldana , 416 F.3d at 1248 (holding than in an ATS case, "[p]leadings must be something more than an ingenious academic exercise in the conceivable"); In re Sinaltrainal Litig. , 474 F.Supp.2d 1273, 1284, 1287 (S.D. Fla. 2006) ("heightened pleading standard" is required in ATS case, and court must engage in "a searching review, particularly with regard to allegations concerning conspiracy or joint action").

These statutory requirements are not the only requirements for jurisdiction. Id. at 584. Here, because aspects of Plaintiffs' claims occurred outside of the United States, the jurisdictional predicate of Kiobel must also be met. Id. And, under Kiobel , a federal court's jurisdiction under the ATS is subject to the presumption against extraterritoriality. Kiobel , 569 U.S. at 124, 133 S.Ct. 1659. A federal court lacks jurisdiction over an ATS claim with a territorial component unless the claim "touch[es] and concern[s] the territory of the United States ... with sufficient force to displace the presumption." Id. Baloco II and Doe/Balcero each considered Kiobel under the lens of ATS claims with domestic and extraterritorial aspects. Doe/Balcero , 782 F.3d at 592 ; Baloco , 767 F.3d at 1235-36. In Doe/Balcero , the Eleventh Circuit determined that "actions under the ATS with an extraterritorial component must touch and concern the territory of the United States with sufficient force to displace the presumption in order for jurisdiction to be proper. Displacement of the presumption will be warranted if the claims have a U.S. focus and adequate relevant conduct occurs within the United States." 782 F.3d at 592.

Both Baloco II and Doe/Balcero held that Plaintiffs' allegations failed to overcome the presumption against extraterritoriality and that Plaintiffs had failed to invoke federal court subject matter jurisdiction under the ATS. See Doe/Balcero , 782 F.3d at 600 ; Baloco II , 767 F.3d at 1239.4 Because Plaintiffs conceded that the Amended Complaint in this case was nearly identical to the complaints in Doe/Balcero and Baloco II , the Eleventh Circuit...

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