Romero v. Drummond Co., Inc., No. 07-14090.

• Decision Date: 22 December 2008
• Docket Number: No. 07-14090.
• Citation: 552 F.3d 1303
• Parties: Juan Aquas ROMERO, Jane Does, I through VI, John Does, I & II, Jimmy Rubio Suarez, Francisco Ruiz Daza, SINTRAMIENERGETICA, Plaintiffs-Appellants-Cross Appellees, v. DRUMMOND COMPANY, INC., Drummond, Ltd, Augusto Jimenez, Defendants-Appellees-Cross Appellants, Garry N. Drummond, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

552 F.3d 1303

Juan Aquas ROMERO, Jane Does, I through VI, John Does, I & II, Jimmy Rubio Suarez, Francisco Ruiz Daza, SINTRAMIENERGETICA, Plaintiffs-Appellants-Cross Appellees, v.DRUMMOND COMPANY, INC., Drummond, Ltd, Augusto Jimenez, Defendants-Appellees-Cross AppellantsGarry N. Drummond, Defendant.

No. 07-14090.

United States Court of Appeals, Eleventh Circuit.

December 22, 2008.

William H. Jeffress, Jr., Paul F. Enzinna, Baker Botts LLP, Washington, DC, Phillip G. Piggott, William Anthony Davis, III, Starnes & Atchison, LLP, Birmingham, AL, for Defendants-Appellees.

Terrence P. Collingsworth, Conrad & Scherer, Washington, DC, Daniel M. Kovalik, Pittsburgh, PA, for Plaintiffs-Appellants.

Appeals from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Chief Judge, and BLACK and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

These appeals present a host of issues arising out of litigation about whether executives of Drummond, Ltd., the Colombian subsidiary of a coal mining company in Alabama, paid paramilitary operatives to torture and assassinate leaders of a Colombian trade union, SINTRAMIENERGETICA.In 2002 and 2003, the union and several of its leaders and relatives of deceased leaders sued Drummond and its parent company and executives under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991, 106 Stat. 73, codified at 28 U.S.C. § 1350, note.The Alien Tort Statute grants to federal courts original jurisdiction over "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.The Torture Act establishes a separate cause of action for victims of torture and extrajudicial killing.28 U.S.C. § 1350, note § 2(a).The district court consolidated the complaints and later granted partial summary judgment against them; one claim for relief that Drummond aided and abetted the killings, which were war crimes, remained.At a trial of that claim, the jury returned a verdict for Drummond.The plaintiffs appeal the partial summary judgment and a series of discovery and evidentiary rulings made before and during the trial.Long after the discovery deadline had been extended and later expired, the plaintiffs moved for continuances and the admission of the testimonies of several new witnesses, and some of those requests were denied.Drummond challenges the subject-matter jurisdiction of the district court.We conclude that the district court had subject-matter jurisdiction, did not commit any reversible error in its other rulings, and did not abuse its discretion in denying the plaintiffs' requests about their late-disclosed witnesses.We affirm.

I.BACKGROUND

The union, its leaders, and relatives of its leaders complained that Augusto Jimenez, the president of the mining operations of Drummond, Ltd., with the knowledge of company executives in the United States, hired paramilitaries affiliated with the United Self-Defense Forces of Colombia to torture union leaders Juan Aquas Romero, Jimmy Rubio Suarez, and Francisco Ruiz Daza, and to kill union leaders Valmore Locarno Rodriquez, Victor HugoOrcasita Amaya, and Gustavo Soler Mora.The complaint included claims of torture, extrajudicial killing, and denials of the right to associate under the Alien Tort Statute, claims of torture and extrajudicial killing under the Torture Act, a claim of wrongful death under Colombian law, and claims for assault, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent supervision, and false imprisonment under Alabama law.

Our discussion of the background of this litigation is divided in five parts.We first discuss a pretrial ruling that dismissed parts of the complaint.We then turn to the discovery that occurred under the scheduling order.We next address issues about late discovery and disclosures.We then discuss the motion of Drummond for summary judgment and the ruling of the district court.Finally, we address the trial.

A.Partial Dismissal

In 2002, Drummond moved to dismiss the complaint.Drummond argued that the union lacked standing to sue for wrongful death and that corporations are not subject to suit under the Torture Act.SeeEstate of Valmore Lacarno Rodriquez v. Drummond Co.,256 F.Supp.2d 1250(N.D.Ala.2003).The district court granted in part and denied in part that motion.The district court ruled that the union lacked standing to pursue a wrongful death claim under Alabama law, id. at 1257, Colombian law, id. at 1258, and the Torture Act, id. at 1268, and that corporations are subject to suit under that Act, id. at 1266-67.

B.Discovery

Discovery commenced in July 2003.In May 2004, the district court entered a scheduling order.The court set deadlines for disclosures of information about expert witnesses of March 15, 2005, for the plaintiffs and April 15, 2005, for Drummond; a discovery deadline of August 31, 2005; and a tentative trial date of November 7, 2005.

As they scheduled depositions in Birmingham, Alabama, and in foreign countries by videoconference, the parties sought assistance from the district court in scheduling the deposition of one of the plaintiffs, Rubio, a Colombian citizen who worked for Drummond and held various leadership roles in the union.Rubio had provided the union a sworn declaration in which he stated that he was present at various meetings between paramilitary leaders and Drummond executives when the paramilitaries and executives discussed the assassination of the union leaders.In May 2004, Drummond requested that Rubio appear in Birmingham, Alabama, and in October 2004, the plaintiffs moved for a protective order to allow him to appear in Venezuela or by videoconference.The plaintiffs represented to the district court that Rubio had received threats against his life and fled to Venezuela after he provided information regarding paramilitary activities to the Colombian government.The plaintiffs also represented that Rubio was "unable to obtain a visa to enter the United States, despite his attempts to do so."On January 28, 2005, the district court entered a protective order that required Drummond to take Rubio's deposition either by videoconference or in a location outside the United States upon which the parties could agree.The parties scheduled the deposition for late March 2005 in Venezuela.

On March 15, 2005, on the joint motion of the parties, the district court revised the scheduling order.The district court extended the deadline for disclosures about expert witnesses to July 18, 2005, for the plaintiffs and August 19, 2005, for Drummond; the discovery deadline to December 1, 2005; and the trial date to May 2006.On the deadline for disclosures, July 18, 2005, the plaintiffs submitted reports from three expert witnesses: Dr. Sonja Binkhorst, Professor Luz Nagle, and Mr. Tito Gaitan.

Shortly before the deposition of Rubio was to occur, Drummond learned of an outstanding Colombian warrant for Rubio's arrest.Drummond cancelled the deposition and moved to dismiss Rubio's complaint or, in the alternative, to amend the protective order to require Rubio to appear in Birmingham.Because the warrant had been issued before Rubio requested the protective order, Drummond argued that Rubio had not been truthful with the district court.The plaintiffs asserted an interest in deposing Rubio to preserve his testimony for the trial.When it considered the motion of Drummond to dismiss Rubio's complaint, the district court learned that Rubio had received correspondence from the United States Embassy in Colombia that stated that he would be unable to obtain a visa to travel to the United States because of an outstanding arrest warrant in Colombia.Because Rubio had not been convicted of the charges against him, the district court declined to dismiss Rubio's complaint or to amend the protective order.

The plaintiffs rescheduled Rubio's deposition to occur on October 12 and 13, 2005, again in Venezuela.On September 29, 2005, Drummond moved to stay the deposition until it could obtain documents from the State Department regarding Rubio's efforts to secure a visa to enter the United States.On September 30, 2005, the district court granted the motion.On December 1, 2005, the discovery deadline passed.

C. Post-Deadline Discovery and Late-Disclosed Witnesses

In the months after discovery closed, the district court continued to adjudicate discovery disputes and receive requests from the plaintiffs to depose and offer testimony from new witnesses.On April 19, 2006, on the motion of Drummond, the district court ruled that the disclosure reports of the plaintiffs' experts failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B), and the district court barred the plaintiffs from offering any expert testimony at trial.On April 26, 2006, the district court continued the trial to October 2, 2006.

On the same day that it continued the trial, the district court, on the motion of the plaintiffs, ordered the deposition of Rubio to proceed in early July 2006.On June 13, 2006, the State Department informed the district court that it had no record of any visa application from Rubio.The district court again postponed Rubio's deposition to await further information from the State Department.On August 2, 2006, the State Department informed the district court that it was not aware of any foreign policy concern that would be raised if Rubio was deposed in a third country.The district court continued the trial for the third time, to May 14, 2007.

In the meantime, on May 16, 2006, the plaintiffs submitted a sworn declaration from a late-disclosed witness, Rafael Garcia, a former director of a Colombian law enforcement agency who is imprisoned in Colombia for erasing immigration records for drug traffickers.Garcia declared that in 2001he attended a meeting between Jimenez and a...