Sinaltrainal v. Coca-Cola Co.

Citation256 F.Supp.2d 1345
Decision Date28 March 2003
Docket NumberNo. 02-20260-CIV-DUBE.,No. 02-20258-CIV-DUBE.,No. 02-20260-CIV-MARTINE.,No. 02-20259-CIV-DUBE.,No. 02-20258-CIV-MARTINE.,No. 01-3208-CIV-MARTINEZ.,No. 02-20259-CIV-MARTINE.,No. 01-3208-CIV-DUBE.,01-3208-CIV-MARTINEZ.,02-20258-CIV-DUBE.,02-20260-CIV-MARTINE.,01-3208-CIV-DUBE.,02-20259-CIV-MARTINE.,02-20260-CIV-DUBE.,02-20258-CIV-MARTINE.,02-20259-CIV-DUBE.
CourtU.S. District Court — Southern District of Florida
PartiesSINALTRAINAL, the Estate of Isidro Segundo Gil, Plaintiffs, v. THE COCA-COLA COMPANY, et al., Defendants. Sinaltrainal, Jorge Humberto Leal Plaintiffs, v. The Coca-Cola Company, et al., Defendants. Sinaltrainal, Juan Carlos Galvis, Plaintiffs, v. The Coca-Cola Company, et al., Defendants. Sinaltrainal, Luis Eduardo Garcia, Alvaro Gonzalez, and Jose Domingo Flores, Plaintiffs, v. The Coca-Cola Company, et al., Defendants.

Mark Howard Richard, Osnat Kate Rind, Phillips Richard & Rind, Miami, Daniel M. Kovalik, United Steel Workers of America, Pittsburgh, PA, Natacha H. Thys, Terry Collingsworth, International Labor Rights Fund, Washington, DC, for Sinaltrainal, Isidro Segundo Gil, The estate of, Luis Eduardo Garcia, Alvaro Gonzalez Lopez, Jose Domingo Flores, Jorge Humberto Leal, Juan Carlos Galvis, plaintiffs.

Rima Youakim Mullins, Kirkpatrick & Lockhart, Marcos Daniel Jimenez, White & Case, Angel Castillo, Jr., Robert Mark Brochin, Christina T. Ng, Morgan Lewis & Bockius, James Edward McDonald, William Power McCaughan, Duane Morris, Miami, for Coca-Cola Company, the, Coca-Cola de Colombia, S.A., Panamerican Beverages Company L.L.C., Panamco, L.L.C., Panamco Industrail de Gaseosas, S.A. aka Panamco Colombia, S.A., Richard I. Kirby, Richard Kirby Kielland, Bebidas Y Alimentos de Uraba, S.A., defendants.

ORDER ON MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION1

MARTINEZ, District Judge.

THIS MATTER is before the court upon Defendants' Joint Motion to Dismiss for First Amended Complaint for Lack of Subject Matter Jurisdiction. Defendants', on October 9, 2001, filed a Joint Motion to Dismiss for Lack of Subject Matter Jurisdiction [DE# 35] filed on October 9, 2001. On December 10, 2001, Panamerican Beverages, Inc. sought to join in the aforementioned motion to dismiss [DE# 45]. On January 22, 2002, Plaintiffs amended the complaint [DE# 48] and Defendants moved to dismiss the amended complaint on March 5, 2002 [DE# 53]. For the reasons set forth in this memorandum, this Court will GRANT in part Defendants' Joint Motion to Dismiss for First Amended Complaint for Lack of Subject Matter Jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Introduction

The backdrop for this case is the well publicized civil unrest in Colombia, South America. Sinaltrainal ("Sinaltrainal") and The Estate of Isidro Segundo Gil ("Gil") (collectively "Plaintiffs") seek to hold Defendants Coca-Cola U.S.A., Coca-Cola Colombia, Bebidas y Alimentos ("Bebidas"), Panamerican Beverages, Inc., ("Panamerican"), Richard I. Kirby ("Kirby"), and Richard Kirby Kielland ("Kielland") (collectively "Defendants") liable for the murder of Gil committed by a paramilitary unit in Carepa, Colombia in violation of international law and the law of the United States and Florida. The six count complaint alleges that members of the paramilitary unit shot Gil, a leader in the Sinaltrainal trade union, because he was attempting to organize employees at the Coca-Cola U.S.A. bottling plant that Bebidas owned in Carepa. Counts I and II are causes of action under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350,2 and the Torture Victim Protection Act of 1991 ("TVPA"), Pub.L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 Note). Count III is a claim for violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Count IV, is a claim for Defendants' denial of the rights to associate and organize union activity in violation of the ATCA. Count V is a claim for wrongful death under state, federal and Colombian law, and Count VI is a claim for violation of state law by aiding and abetting the paramilitary unit responsible for Gil's death.

B. The parties3

The events giving rise to these claims occurred against a backdrop of civil war that has plagued Colombia with violence and terror for over forty years. The civil unrest involves so-called left wing guerrilla groups, right wing paramilitary units, and the Colombian government, including its military and police forces. "Central Unitaria de Trabajadores de Colombia," ("CUT") is the largest trade union confederation in Colombia. Sinaltrainal, as a member of the CUT, has organized local chapters in an attempt to negotiate improved working conditions for beverage industry employees such as those at the Bebidas bottling plant. Trade unions have allegedly become associated with the leftist guerrilla ideology to such an extent that various paramilitary units have tortured, abused, and murdered trade union members throughout the country. In this case, Plaintiff Gil was an employee of Bebidas and a leader in the local Sinaltrainal chapter when he was shot inside the Bebidas plant by members of a paramilitary unit as he arrived at work on December 5, 1996. Plaintiffs seek to hold the Defendants liable for his murder.

Bebidas is a small corporation, closely owned and managed by Kirby and his son, Kielland. Kirby, from his home in Key Biscayne, Florida, makes all day-to-day decisions concerning the operation of Bebidas. Kielland is the on-site manager of plant operations. Management decisions are implemented in Colombia by Kielland, other members of Kirby's family, or other authorized employees who work for Bebidas. Plaintiffs allege that profits from Bebidas are transferred to and commingled with personal bank accounts held by Kirby in Miami, Florida and other locations outside of Colombia. Plaintiffs further allege "on information and belief that Kirby and Kielland have obtained loans and other monies from Bebidas without observing corporate formalities. By dominating the affairs of Bebidas in this manner, Plaintiffs contend Kirby and Kielland have made Bebidas an alter ego or agent of themselves such that they are liable for the Bebidas plant manager's wrongful conduct that resulted in the murder of Gil, an employee of Bebidas.

Coca-Cola U.S.A., a Delaware corporation with corporate offices in Atlanta, Georgia, manufactures and distributes soft drink beverages throughout the world. Coca-Cola Colombia, a wholly-owned subsidiary of Coca-Cola U.S.A. with corporate offices in Bogota, is responsible for manufacturing and distributing Coke products to Bebidas and all other bottlers in Colombia. Coca-Cola U.S.A. makes all major decisions concerning the production, distribution, marketing, and presentation of its products, and communicates and enforces its directives to Colombian bottlers through Coca-Cola Colombia.

Coca-Cola U.S.A's control over the operations at Bebidas is governed by a Bottler's Agreement. According to the terms of the agreement, Coca-Cola U.S.A. holds the right to supervise and control the quality, distribution, and marketing of its products, including the right to terminate or suspend a bottler's operations for noncompliance with its terms and conditions. Plaintiffs allege the agreement also gives Coca-Cola U.S.A. the right to control labor policies and practices at Bebidas.

Plaintiffs allege Coca-Cola U.S.A. controls day-to-day activities at Coke Colombia and, thus, has made Coca-Cola Colombia either the alter ego or agent of Coca-Cola U.S.A.. They further allege that the level of control Coca-Cola U.S.A. exercises over the bottling operation, through the Bottler's Agreement, makes Kirby, Kielland and Bebidas the alter egos or agents of Coca-Cola U.S.A.. Thus, Plaintiffs conclude that Coca-Cola U.S.A. is ultimately jointly and severally liable for Gil's murder.

C. Colombian Law 48

In 1968 the Colombian Congress passed Law 48, which authorized the Ministry of National Defense to "protect ... as private property arms that are considered as for the exclusive use of the Armed Forces." Plaintiffs allege this law authorized armed civil patrols and thus permitted the Colombian Defense Ministry to create and provide weapons to paramilitary units that still exist today. Plaintiffs further allege that military and civil authorities tolerate the paramilitary, allow it to operate, and often cooperate, protect or work in concert with paramilitary units. Specifically, Plaintiffs allege that the people who murdered Gil were members of a paramilitary unit operating openly in Carepa, with the support and cooperation of the military and police forces in the area.4 Thus, according to the Plaintiffs' theory, the paramilitary unit responsible for Gil's death was sanctioned by the Colombian government in Carepa.

Defendants acknowledge the existence of paramilitary units, but dispute the allegation that the government supports, cooperates, sanctions or otherwise works in concert with any paramilitary unit. According to Defendants, the Colombian government does not sanction the paramilitary activity in any fashion.

>D. Isidro Gil's Murder

In June of 1995 Gil was elected to the executive board of the local Sinaltrainal union in Carepa. The following month, Bebidas hired members of the paramilitary to work in the sales and production departments of the company. In September of 1995, Kirby and Kielland hired Ariosto Milan Mosquera to manage the bottling plant. Mosquera immediately began aggressively and publicly threatening to destroy the union. He allowed paramilitary members access to the plant and made a specific agreement with local paramilitary leaders to drive the union out of the Bebidas plant by using threats and violence, if necessary. The paramilitary frequently intimidated employees at the plant.

In 1996, Sinaltrainal entered into labor negotiations with Bebidas, seeking to increase security for trade unionists and to stop Mosquera from threatening the union and cooperating with the paramilitary. Kielland, who participated in the negotiations,...

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