A.O.A. v. Rennert
| Decision Date | 20 January 2023 |
| Docket Number | 4:11 CV 44 CDP |
| Parties | A.O.A., et al., Plaintiffs, v. IRA L. RENNERT, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
III. Background 7
IV. The Defendants and Related Entities................................................................11
V. Choice of Law ....................................................................................................15
1. Actual Conflict .............................................................................................22
2. Peruvian Law Applies to the Immunity Defense .........................................24
3. Summary Judgment Not Warranted ............................................................26
1. No Actual Conflict .......................................................................................29
2. Missouri Law Applies to Vicarious Liability Claims ..................................31
i. Undercapitalization.............................................................................32
ii. Control ................................................................................................34
VI. International Comity and Transnational Law Doctrines ...................................41
2. Place of Wrongful Conduct ..........................................................................52
3. United States-Peru Trade Promotion Agreement .......................................60
4. Consideration Given to Letters from Peruvian Officials.............................62
5. Abstention Not Warranted ..........................................................................66
VII. Certification for Interlocutory Appeal............................................................74
I. Introduction
Plaintiffs are numerous Peruvian citizens who allege that they were injured when they were exposed as children to toxic substances from the La Oroya Complex, a metallurgical smelting and refining complex operating in La Oroya, Peru. They claim that the defendants, several interrelated American companies and their executives and directors, acting from Missouri and New York, prioritized profit over safety by authorizing and directing the Complex to emit excessive levels of toxic substances into the La Oroya environment without proper safety protocols in place. Plaintiffs allege that defendants' Missouri conduct is responsible for their serious medical and developmental injuries from their exposure to lead and other toxic substances emitted from the Complex.
This Order addresses defendants' Motion for Application of Peruvian Law and Summary Judgment Under Peruvian Law, or, Alternatively, Dismissal under Transnational Law Doctrines. (ECF 1230.) In determining defendants' earlier motion to dismiss, I ruled that Missouri law would govern this dispute. A.O.A. v. Rennert, 350 F.Supp.3d 818 (E.D. Mo. 2018). In that same Order, I rejected defendants' argument that the case should be dismissed on the basis of international comity. Id. Defendants now argue that the complete factual record developed through discovery shows that those conclusions should change and, further, that additional transnational doctrines warrant dismissal.
I continue to conclude, as I did before, that Missouri law applies to most of this case. But I agree with defendants that it is appropriate to apply Peruvian law to one issue: defendants' claim that they are immune from liability because of what they refer to as the “safe harbor” of Article 1971 of the Peruvian Civil Code. Even under Peruvian law, however, numerous genuine issues of material fact remain in dispute about whether Article 1971 precludes defendants' liability in this case.
I have also fully considered defendants' alternative motion to dismiss based on various transnational law doctrines. I again decline to abstain based on international comity, and I conclude that dismissal under the other transnational doctrines proffered by defendants is not warranted. I recognize, however, that reasonable jurists might disagree on those issues. Because decisions on whether to abstain and/or dismiss under transnational doctrines are governed by factors that present controlling questions of law on which there is substantial ground for difference of opinion, I will certify the issues for interlocutory appeal under 28 U.S.C. § 1292(b).
The many other motions filed by the parties remain pending.
II. Procedural History
The long and complicated history of this litigation began in 2007 when Sister Kate Reid and Megan Heeney began filing in Missouri state court several actions as next friends on behalf of plaintiffs, alleging state tort claims against the defendant companies, executives, and directors. The first case filed in October 2007 was removed to this Court and then remanded for lack of subject-matter jurisdiction. (Case No. 4:07CV1874 CDP, ECF 61.) After amendment in state court, the case was again removed, but plaintiffs dismissed it without prejudice. (Case No. 4:08CV525 CDP, ECF 51.) Shortly thereafter, two additional cases were filed in state court; they were removed and then remanded, again for lack of subject-matter jurisdiction. (Case Nos. 4:08CV1416 CDP, ECF 19; 4:08CV1420 CDP, ECF 19.) After significant activity in the state court, one of the named defendants, The Renco Group, instituted an arbitration proceeding against Peru in 2010, seeking indemnification for these cases. Defendants again removed in 2011, this time based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, as implemented by 9 U.S.C. §§ 201, et seq. I denied the plaintiffs' motion to remand (ECF 45), and that denial as well as my denial of the defendants' motion to stay this consolidated case pending arbitration was affirmed by the Eighth Circuit Court of Appeals. Reid v. Doe Run Res. Corp., 701 F.3d 840 (8th Cir. 2012).
Since that time, more Peruvian plaintiffs have filed Missouri state-court actions through next friends Reid and Heeney, and defendants removed those cases to this Court asserting the same jurisdictional basis. All cases filed through next friends Reid and Heeney are consolidated into this action for pretrial purposes. The consolidated action presently comprises 40 cases and more than 1420 individual plaintiffs.[1] Sixteen of those plaintiffs are in a Discovery Cohort, and discovery has been fully worked up and completed as to those plaintiffs.
Plaintiffs' amended complaint filed February 21, 2017 (ECF 474) is the operative complaint before the Court. In October 2018, on defendants' motion to dismiss that complaint, I applied Missouri law and dismissed several claims and defendants. See generally A.O.A., 350 F.Supp.3d 818 (E.D. Mo. 2018). The remaining defendants have now filed a number of motions for summary judgment on all remaining claims arguing, first, that Peruvian law applies to all aspects of this case, under which they assert they are entitled to judgment as a matter of law on all claims and, second, that they are entitled to summary judgment on all claims even under Missouri law. Defendants also move to dismiss the case in its entirety arguing that various transnational doctrines require abstention. Finally, both sides have filed several motions to exclude or limit expert testimony.
For the reasons that follow, I will deny defendants' motion to apply Peruvian law to the remaining claims in this action except to the extent defendants seek to apply Article 1971's “safe harbor” defense, and I will deny their motion for summary judgment on that defense. I will also deny their motion to dismiss under transnational doctrines. The other motions for summary judgment and to exclude expert witnesses remain pending.
III. Background
In 1922, a private company founded and began operating the La Oroya Complex in La Oroya, Peru. The Complex consisted of smelters and refineries that processed minerals mined from the Andes mountains into copper, lead, zinc, and other metals. In 1974, the government of Peru expropriated the Complex and transferred its ownership and operations to Centromin Peru S.A., a Peruvian government-owned...
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