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LUIS ALBERTO GALVIS MUJICA, et al. Plaintiffs, v. OCCIDENTAL PETROLEUM CORP., et al., Defendants.
No. CV 03-2860 WJR (JWJx)
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
381 F. Supp. 2d 1134; 2005
PRIOR HISTORY: Mujica v. Occidental Petroleum
Corp., 381 F. Supp. 2d 1164, 2005 U.S. Dist. LEXIS 21463 (C.D. Cal., 2005)
COUNSEL: [**1] For Luis Alberto Galvis
Mujica, on behalf of himself and as representative of
the Estates of Tereza Mujica
Hernandez and Edilma Leal Pacheco and Johanny Hernandez Becerra, John Mario John Mario Galvis Mujica, through his
guardian ad litum, on behalf of himself individually
and as heir of the decedents, Tereza Mujica Hernandez, Edilma Leal
Pacheco and Johnny Hernandez Becerra, Plaintiffs: Bridget Arimond,
Douglass W Cassel, Center for International Human
Rights, Northwestern University Law School, Chicago, IL; Daniel M Kovalik, United Steelworkers of America, Pittsburgh, PA;
Derek J Baxter, Jeffrey Vogt, Terry Collingsworth, International Labor Rights
Fund, Washington, DC; Paul L Hoffman, Schonbrun DeSimone Seplow Harris and
Hoffman, Venice, CA.
For United States Of America, Movant: Rupa Bhattacharyya, US Department of Justice, Civil Div,
Federal Programs Branch, Washington, DC.
For Occidential Petroleum Corporation, Defendant:
Daniel P Collins, Daniel Luke Geyser, John W Spiegel, Kristin Linsley Myles, Manuel F Cachan, Munger Tolles & Olson, Los
Angeles, CA.
For Airscan Inc, Defendant: Kenneth J Berke, Berke & Kent,
Calabasas, CA; Sara M Fotopulos, Thomas E Fotopulos, [**2] Fotopulos
& Fotopulos, Riverview, FL.
For Mario Galvis Gelvez, on
behalf of himself individually, as heir of the decedents, Tereza
Mujica Hernandez, Edilma
Leal Pacheco and Johanny Hernandez Becerra,
Plaintiff: Daniel M Kovalik, United Steelworkers of
America, Pittsburgh, PA; Derek J Baxter, Jeffrey Vogt, Terry Collingsworth,
International Labor Rights Fund, Washington, DC; Douglass W Cassel,
Center for International Human Rights, Northwestern University Law School,
Chicago, IL; Paul L Hoffman, Schonbrun DeSimone Seplow Harris and
Hoffman, Venice, CA.
JUDGES: WILLIAM J. REA, United States District Judge.
OPINIONBY: WILLIAM J. REA
OPINION: [*1138] ORDER DENYING DEFENDANT'S MOTION TO DISMISS
THE ACTION UNDER THE DOCTRINES OF FORUM NON CONVENIENS AND INTERNATIONAL
COMITY
The matter came on for hearing before the Court, the Honorable William J. Rea,
Judge, presiding, on January 10, 2005. Having considered the motion, the papers
filed in support thereof and in opposition thereto, the oral argument of
counsel, and the file in the case, the Court now makes the following decision:
the Court hereby DENIES Defendant Occidental Petroleum Corp.'s Motion to
Dismiss the Action under the Doctrines of Forum [**3] Non
Conveniens and International Comity. n1
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n1 Defendant AirScan, Inc. has joined this motion.
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BACKGROUND
I. Factual Allegations
The instant case arises from a bombing that occurred in Santo Domingo, Colombia
on December 13, 1998. In 1998, Plaintiffs lived in
Plaintiffs allege the following relevant facts. Since 1997, Defendant AirScan has provided security for Defendant Occidental's
oil pipeline against attacks from left-wing insurgents. See First Amended
Complaint ("FAC") at P 15. Prior to 1998, Defendants worked with the
Colombian military, providing them with financial and other assistance, for the
purpose of furthering Defendant Occidental's commercial [**4]
interests. See id. at P 16. On several occasions
during 1998, Defendant Occidental provided Defendant AirScan
and the Colombian military with a room in its facilities to plan the
On
While the purpose of the
Plaintiff Luis Alberto Galvis was approximately 800
to 1000 meters outside of
Plaintiff Mario Galvis, Luis Alberto Galvis' father, was also in
Plaintiff John Mario Galvis, Luis Alberto Galvis' younger brother and Mario Galvis'
son, was in
Plaintiffs have made other allegations regarding the events that took place
after the bombing. The Court [**7] will
refer to those allegations as necessary in the course of its opinion.
II. Procedural History
On
On
On
On
A. Legal standard
"[U]nder the ancient doctrine of forum non conveniens, there are circumstances under which a court may
dismiss an action because the chosen forum, while a proper venue, is
inconvenient." Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 3828, at 278 (2d ed. 1986).
The standard governing a motion to dismiss on the basis of forum non conveniens is whether "defendants have made a clear
showing of facts which establish such oppression and vexation of a defendant as
to be out of proportion to plaintiff's convenience, which may be shown to be
slight or nonexistent." Dole Food Co., Inc. v.
"A party moving to dismiss based on forum non conveniens
bears the burden of showing (1) that [**10] there
is an adequate alternative forum, and (2) that the balance of private and
public interest factors favors dismissal." Dole Food, 303 F.3d at 1118
(9th Cir. 2002) (citing Lueck v. Sundstrand Corp.,
236 F.3d 1137, 1142-43 (9th Cir. 2001)).
"The plaintiff's choice of forum will not be disturbed unless the private
interest' and public interest' factors strongly favor trial in the foreign
country."
1. Adequate alternative forum
"'The defendant bears the burden of proving the existence of an adequate
alternative forum.'" Lueck, 236 F.3d at 1143 (quoting
Cheng, 708 F.2d at 1411). "An alternative forum ordinarily exists when
defendants are amenable to service of process in the foreign
forum. [**11] A foreign forum is adequate when it provides the
plaintiff with a sufficient remedy for his wrong." Dole
Food, 303 F.3d at 1118 (citation omitted).
2. Private interest factors
"Courts consider the following private interest factors: (1) the residence
of [*1141] the parties and the witnesses; (2) the forum's
convenience to the litigants; (3) access to physical evidence and other sources
of proof; (4) whether unwilling witnesses can be compelled to testify; (5) the
cost of bringing witnesses to trial; (6) the enforceability of the judgment;
and (7) all other practical problems that make trial of a case easy,
expeditious and inexpensive.'" Lueck, 236 F.3d
at 1145 (quoting Gulf Oil Corp. v. Gilbert, 330
3. Public interest factors
"Courts consider the following public interest factors: (1) local interest
of lawsuit; (2) the court's familiarity with governing law; (3) burden on local
courts and juries; (4) congestion in the court; and (5) the costs of resolving
a dispute unrelated to this forum."
4. Choice of law determination
A district court must also make a choice of law determination [**12] in considering whether to dismiss on the basis of
forum non conveniens. See id. at
1143.
B. Application to the Instant Case
1. Burden of persuasion
Defendant argues that the typical deference given to a plaintiff's choice of
forum is lessened because the Plaintiffs are all non-citizens. See Reply at
14-15.
While this is true, the Court wishes to emphasize that the burden remains on
Defendant in this motion. The Plaintiffs' status as non-citizens means that the
Court provides less deference to their choice of this Court as the forum, but
the Court acknowledges that "less deference" is not "no
deference." See Ravelo Monegro,
211 F.3d at 514. See also Creative Technology, Ltd. v.
Aztech System Pte. Ltd., 61
F.3d 696, 703 (9th Cir. 1995) ("While there is normally a strong
presumption in favor of honoring the plaintiff's choice of forum, a foreign
plaintiff's choice is afforded less deference."); Lony
v. E.I. DuPont de Nemours & Co., 935 F.2d 604, 609 (3d Cir. 1991) (holding
that in cases involving foreign plaintiffs, defendants must establish a
"strong preponderance" in favor of dismissal).
In addition, the Court [**13] considers the
possibility that Plaintiffs chose this forum in order to obtain personal
jurisdiction over Defendant Occidental. "The more it appears that a
domestic or foreign plaintiff's choice of forum has been dictated by reasons
that the law recognizes as valid, the greater the deference will be given to
the plaintiff's forum choice." Iragorri v. United Technologies Corp., 274 F.3d 65, 71-72 (2d Cir. 2001)
(en banc). "One of the factors that necessarily affects
a plaintiff's choice of forum is the need to sue in a place where the defendant
is amenable to suit."
2. Adequate alternative forum
As an initial matter, Defendant stipulates to service
of process and consents to jurisdiction in
Defendant also argues that
[*1142] In rare circumstances, however, where the remedy offered by
the other forum is clearly unsatisfactory, the other forum may not be an
adequate alternative, and the initial requirement may not be satisfied. Thus,
for example, dismissal would not be appropriate where the alternative forum
does not permit litigation of the subject matter of the dispute.
Plaintiffs have two responses to Defendant's assertions that Colombia is an
adequate alternative forum: (1) claims brought under the Alien Tort
Statute ("ATS"), 28 U.S.C. § 1350, and the Torture Victim Protection
Act ("TVPA"), 28 U.S.C. § 1350 Note, are categorically immune from
dismissal on the basis of forum non conveniens, see
Opposition at 5-6; and (2) Columbia is not an adequate alternative forum
because Plaintiffs would be risking personal harm in bringing their claims in a
Colombian court and those courts would be unlikely to provide any redress, see
id. at 9-17. As to this second argument, Plaintiffs
have clarified that their contention is that the previous suit against the
Colombian government resulted in the dangerous conditions precluding their
ability to bring a suit against these Defendants in
a. Whether forum non conveniens applies to ATS and
TVPA claims
Plaintiffs argue, on the basis of the legislative history for
the [**16] TVPA, "that there is no basis for applying forum non
conveniens to Plaintiff's claims." See
Opposition at 5. However, the sections of legislative history cited by
Plaintiffs make no mention of forum non conveniens.
See Collingsworth Decl., Exs.
A-B. Thus, while the Court agrees that Congress
enacted the TVPA for the purpose of providing a civil cause of action for
torture committed abroad, there are no statements that courts must entertain
all TVPA claims regardless of forum non conveniens
considerations. n2
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n2 Since the ATS was enacted.as part of the Judiciary
Act of 1789, there is little available legislative history. See Sosa, 124
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In addition, as argued by Defendant, the Ninth Circuit has previously stated
that "limitations such as venue and the doctrine of forum non conveniens are available in [28 U.S.C.] §
1350 cases as in any other." In re Estate of Ferdinand E. Marcos
Human Rights Litig., 978 F.2d 493, 500 (9th Cir. 1992). See also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 106 (2d
Cir. 2000) [**17] (holding that the TVPA
has not "nullified, or even significantly diminished, the doctrine of
forum non conveniens").
Thus, the Court holds that it may address the applicability of forum non conveniens despite the presence of Plaintiffs' ATS and TVPA
claims in the instant case.
b. Plaintiffs would be risking personal harm by bringing a claim in a
Colombian court
Plaintiffs argue that a "forum is inadequate if a plaintiff's life would
be in danger were he or she to return to the foreign country to attempt to
resolve the claim." See Opposition at 11. See Iragorri
v. Int'l Elevator, Inc., 203 F.3d 8, 14 (1st Cir. 2000) [*1143]
(considering the plaintiffs' safety "relevant to the suitability of the
proposed alternative forum"); Aldana v. Fresh
Del Monte Produce, et al., No. 01-3399, slip op. at 4 (S.D. Fla. Jun. 5, 2003)
(finding that "a credible threat of retaliatory violence against
Plaintiffs renders the Guatemalan forum insufficient as an adequate alternative
forum") n3; Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.
Supp. 2d 289, 336 (S.D.N.Y. 2003) (finding the alternative forum to be
inadequate because, in part, "the victim [**18] would be
endangered by merely returning" to his home country); Cabiri
v. Assasie-Gyimah, 921 F. Supp. 1189, 1199 (S.D.N.Y.
1996) (finding the alternative forum to be inadequate because the plaintiff
"would be putting himself in grave danger were he to return to Ghana to
prosecute this action"); see also Alpha View Co. Ltd v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir. 2000) ("A
foreign forum is available when the entire case and all parties can come within
the jurisdiction of the forum.") (emphasis
added). Cf. Estate of Rodriquez v. Drummond Co., Inc., 256 F. Supp. 2d 1250,
1267-68 (N.D. Ala. 2003) (finding that the plaintiffs had adequately alleged
the unavailability of remedies, for TVPA exhaustion purposes, because they
would have been at risk of retaliation).
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- - -
n3 See Plaintiff's Appendix ("App.") at 270.
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The Court agrees with Plaintiffs that an alternative forum is inadequate if the
claimants cannot pursue their case without fearing retaliation.
Under [**19] those conditions, the foreign
alternative forum, in reality, would provide no available remedies for
Plaintiffs' claims. See Presbyterian Church, 244 F. Supp. 2d at 336; Cabiri, 921 F. Supp. at 1199 (discussing Rasoulzadeh v. Associated Press, 574 F. Supp. 854, 861
(S.D.N.Y. 1983)). In addition, the Court does not believe that there has to be
an absolute certainty that Plaintiffs would be harmed if they returned: a
significant possibility would be sufficient. Cf. Immigration and Naturalization
Service v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 94
L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (holding that, in order to establish that
they "would be threatened" for purposes of asylum, the alien
"must establish by objective evidence that it is more likely than not that
he or she will be subject to persecution").
Defendant does not directly dispute Plaintiffs' position that if they were
risking personal harm by bringing a case in
c. Whether Plaintiffs would be in danger if they returned to
Thus, the Court first examines both parties' evidence as to the conditions in
Plaintiffs have submitted a substantial amount of evidence indicating that they
would be in danger if forced to litigate in
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n4 Defendant has filed evidentiary objections to the evidence submitted by
Plaintiffs. For a variety of reasons, Defendant argues that much of Plaintiffs'
evidence would be inadmissible in court. However, this Court has found no
authority indicating that the evidence to be considered for a motion to dismiss
for forum non conveniens must be admissible. In fact,
the Court believes the opposite is true.
"As forum non conveniens doctrine seeks to
protect defendants from litigation in an inconvenient forum, courts generally
resist plaintiffs' motion for extensive discovery on the forum non conveniens question." Wright, Miller
& Cooper § 3828, at 153 (Supp. 2004). Since a determination
regarding dismissal on the basis of forum non conveniens
should be made early in the litigation and there will have been little
discovery, the Court should not be restricted to considering only admissible
evidence. Cf. Flynt Distributing
Co., Inc. v.
In its supplemental briefing, Defendant cites Van Cauwenberghe
v. Biard, 486 U.S. 519, 529, 100 L. Ed. 2d 517, 108
S. Ct. 1945 (1988), for the proposition that the Court should only consider
admissible evidence in adjudication a motion.to
dismiss on the ground of forum non conveniens is not
an appealable collateral order.
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- [**22]
In his declaration, Plaintiff Luis Alberto Galvis Mujica states that he is currently living in Pittsburgh as
a student at La Roche College. See Luis Alberto Galvis
Decl. at P 2. He claims that he "moved to the
Plaintiff Luis Alberto Galvis states that he had
never considered filing a case in
In his declaration, Tito Augusto Gaitan
Crespo, a lawyer for a Colombian human rights
organization, argues that a civil case against Defendant would be "very
dangerous for the
In her declaration, Luz Estella Nagle, a law professor and former Colombian
judge, states that Plaintiffs could not bring this case in Colombia because
"it is more than likely [**24] that the Plaintiffs in this case
would be killed by one of the numerous armed groups in Arauca
. . . in retaliation for bringing a civil action against the powerful corporate
Defendants. . . ." See Nagle Decl. at P 8.
Defendant responds that Plaintiffs' previous litigation
against the Colombian government regarding events in
i. Present residence of Santo Domingo
victims
However, to support its argument, Defendant "submitted evidence showing
that the majority [**25] of the 59 residents of Santo Domingo who
were victims of the alleged bombing and who actually testified in the Colombia
proceedings are still residing Santo Domingo or the near vicinity." See
Defendant's Supp. Memo. at 18. As support for this
statement, Defendant has submitted a declaration from Pablo Gonzalez, a
security consultant working in
In response to this information, Plaintiffs have submitted the declaration of
Daniel M. Kovalik, one of Plaintiffs' attorneys.
According to his declaration, Kovalik traveled to
On
The further information provided by Defendant regarding the present location of
individuals who had previously sued the Colombian military for the Santo
Domingo bombing is insufficient to meet its burden. The evidence submitted to
the Court indicates that a substantial number of those plaintiffs (between
one-third and one-half) have left
d. Whether Plaintiffs must be present to bring their claims against
Defendant
Even if Plaintiffs were in danger, Defendant argues that Plaintiffs would not
be required to make any personal appearances to bring a suit
in [**28] Colombia. See Reply at 6; Defendant's Supp. Memo. at 20-21. To support its argument, Defendant has offered the
declaration of Fernando Hinestrosa, a law professor
in
(1) Plaintiffs could file their case in Bogota
instead of Arauca;
(2) Pursuant to Colombian rules of civil procedure, Plaintiffs do not have to
ever appear in court to bring a case; and
(3) With respect to testimony, Plaintiffs have the option of offering their
statements before another judge in Colombia or, if they are overseas, making
their statements through the Colombian consul or through a foreign judge (at
the request of the Ministry of Foreign Relations).
See Hinestrosa Supp. Decl.
at 9-10; Morales Supp. Decl. (Corrected) at 10
(translation).
Plaintiffs respond that Hinestrosa's claims are
"misleading" and that they and other [**29]
witnesses would have to return to
While there is substantial disagreement between the parties' experts regarding
whether or not Plaintiffs' testimony can be offered in a trial, the Court
believes that Defendant has established that Plaintiffs would be able to file
their case in [**30] Colombia. The declaration provided by Luz
Estelle Nagle disputes whether Plaintiffs' testimony could be provided outside
of a Colombian court; it does not impact whether Plaintiffs could file a
lawsuit against Defendants.
Since Plaintiffs would be able to file their case in
e. Colombian rules regarding
[**31] past recovery for the same wrongful act
However, the Court finds
In its supplemental briefing, Defendant argues that Plaintiffs cannot challenge
the adequacy of the alternative forum because they had obtained a judgment in
Full reparation of damage or loss is a fundamental principle
in Colombian law. The victim must be fully indemnified, regardless of who
caused the damage or loss, whether it was a single person or many persons, or a
government agency or entity or a private party or entity. At the same time, it
is a basic principle that the damage or loss can be repaired only one single
time, namely that no one can collect and receive indemnification for the same
damage or loss several times . . .
Consequently, [**32] if the Council of State upholds the decision
of the administrative law court or Arauca, which
issued a guilty verdict against the Government, the Ministry of Defense, and
ordered that the plaintiffs be paid the amount of damages and losses claimed by
them, as evidenced and substantiated during the proceedings, the satisfaction
of that obligation will imply the full reparation of the victims, who may
not obtain any other indemnification from other parties.
See Hinestrosa Supp. Decl.,
Ex. A at 8; Morales Supp. Decl. (Corrected) at 8-9
(translation) (emphasis added).
While Defendant believes this argument supports a finding that
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n5 The Court recognizes that there is some contingency in this holding since
the judgment could be reversed on appeal. However, if the Colombian courts are
anything like those in the
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- [**34]
The Court imagines Defendant will object this is not an "inadequacy"
since it was Plaintiffs' fault for failing to pursue claims against both the
Colombian military and Defendant in a single action. However, the Court bears
in mind that it must focus on whether a "practical remedy" exists in
the alternative forum, see Lueck, 236 F.3d at 1144;
not whether it hypothetically exists. For example, in Ceramic Corp., 1 F.3d at
949-50, the Ninth Circuit found that
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n6 The Ninth Circuit did not find that Germany was an inadequate forum but
reversed and remanded the case so that the district court, which had focused on
Japan, could address that question.
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Thus, on this ground, the Court finds the alternative forum is inadequate.
Since the existence of an adequate alternative forum in a necessary condition
to dismiss, the Court DENIES Defendant's Motion to Dismiss on the basis of
forum non conveniens.
Even though the Court could ends its forum non conveniens analysis at this point, it addresses the private
and public interest factors below.
[*1149] 3. Private interest factors
The Court holds that the private interest factors favor Plaintiffs.
a. Residence of parties and witnesses
Defendant [**36] argues that the residence
of the majority of Plaintiffs and witnesses is
Plaintiffs point out that Defendant Occidental Petroleum is located in
On this factor, the Court does not focus "on the number of witnesses in
each location" but rather the "materiality and importance of the
anticipated witnesses' testimony." See Gates Learjet, 743
F.2d at 1335. The Court also bears in mind the increased speed and ease
of modern travel and communication. See id. at 1336.
Defendants seeking dismissal [**37] on the
basis of forum non conveniens need not "submit
affidavits identifying the witnesses they would call and the testimony these
witnesses would provide if the trial were held in the alternative forum."
Piper Aircraft, 454
Initially, the Court had held that Defendant has not met its burden on this
factor because it had not described with sufficient detail the relative
importance of witnesses and what testimony they anticipate from them. However,
along with its supplemental briefing, see Defendant's Supp. Memo. [**38] at 23-24, Defendant has filed the declaration of
Kristin Linsley Myles, Defendant's counsel of record.
That declaration provides more details about the categories of witnesses that
Defendant would call if this case were to proceed to trial. See Myles Decl. at P 2. These witnesses include: members of the
Colombian military (including officers on the helicopter that allegedly bombed
Santo Domingo and officers that were on the ground); former guerrillas that
were allegedly engaged in battle against the Colombian military around Santo
Domingo; civilian witnesses that lived in Santo Domingo at the time of the
bombing (many of whom are listed in the declaration of Pablo Gonzalez discussed
above); Colombian civil servants that investigated the bombing of Santo
Domingo; physicians that had treated individuals injured during the events in
Santo Domingo; forensics experts; other plaintiffs in the previous proceeding
against the Colombian military; and Plaintiffs themselves. See id. at PP 3-12. While the Court believes that some of these
categories are redundant (for example, many of the civilian witnesses were also
plaintiffs in the previous Colombian proceeding), the Court holds
that [**39] Defendant would likely
[*1150] call many Colombian witnesses to testify were this case to
proceed to trial.
Plaintiffs are located in the
b. Forum's convenience to litigants
Since Plaintiffs have chosen this forum, the Court will assume that it is
convenient for them. Defendants are also both located in the
The Court also bears in mind Plaintiffs' claims about the feasibility of
litigation in
Thus, the Court holds [**40] that this
factor favors Plaintiffs.
c.Access to
physical evidence and other sources of proof
Defendant argues that "pertinent physical evidence and documents . . .
will be found in
While the Court believes some relevant documents may be in the possession of
the American defendants, the Court holds that most of the physical evidence
would be located in
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n7 The Court notes that some key physical evidence has been brought to the
United States. See App. at 48-54 (FBI analysis of bomb fragments found in
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Thus, the Court holds that this factor favors Defendant.
d.Whether
unwilling witnesses can be compelled to testify
Defendant argues that the Court can neither exercise its subpoena power nor use
letters rogatory. See Motion at 13-14. In particular,
Defendant argues that
In Societe Nationale Industrielle Aerospatiale v. United States District Court
for the Southern District of Iowa, 482 U.S. 522, 536, 96 L. Ed. 2d 461, 107 S.
Ct. 2542 (1987), the Supreme Court held that the Hague Convention "was
intended as a permissive supplement, not a pre-emptive replacement, for other
means of obtaining evidence located abroad." "[T]he text of the
Evidence Convention, as well as the history of its proposal and ratification by
the United States, unambiguously supports the conclusion that it was intended
to establish optional procedures that would facilitate the taking of evidence
abroad."
[*1151] Rule 28(b) provides four ways in which a
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n8 The procedures provided by Rule 28(b) (3) and (b) (4) do not provide
compulsory process.
"The notice method, unlike letters of request, generally does not embrace
compulsory process."
"A commission authorizes a person, either by name or descriptive title, to
take a foreign deposition."
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Even if the Court could use letters rogatory on a
compulsory basis, the Court acknowledges that the "procedure is expensive
and time-consuming. [**44] " Torreblanca de Aguilar v. Boeing Co., 806 F. Supp.
139, 144 (E.D. Tex. 1992). "In addition, conducting a substantial portion
of a trial on deposition testimony precludes the trier
of fact from its most important role; evaluating the credibility of the
witnesses."
Outside of the potentially compulsory methods, Defendant also argues that many
But Plaintiffs counter that many witnesses would be unwilling to testify in the
foreign forum out of concern for their own safety. See Opposition at 21. For
example, the Court finds it hard to believe that a Colombian court can readily
compel a "former FARC guerrilla" to testify in open court. On this
point, the 2003 State Department Human Rights report states that:
According to the National Association of Judicial Branch Employees (ASONAL), numerous judicial [**45] branch employees received threats against their lives and some judges and prosecutors assigned to small towns worked out of departmental capitals because of security concerns. . . . On September 4[, 2003] in Bogota, suspected FARC operatives killed a former prosecutor who had been responsible for investigating the February bombing of the El Nogal social club []. Witnesses, who were even more vulnerable to intimidation, often lacked [*1152] faith in the Government's ability to protect them and refused to testify.
See App. at 12-13 (emphasis added). It does not seem that "it would be far
easier to try this case in
Indeed, it seems that this case would be difficult to try in almost any forum.
However, the Court is skeptical whether Colombian courts would be practically
able to compel unwilling witnesses to testify. And, as stated before, it is
clear that Plaintiffs and many of their witnesses would be in danger if they
took the witness stand. Even though this Court may have to use cumbersome
methods to obtain some testimony, so would the Colombian courts with respect to
these key witnesses. But the Court believes that the witnesses that
could [**46] testify in open court in this
forum are likely to be more important than those witnesses that could testify in
Colombian courts.
Thus, the Court holds that this factor favors Plaintiffs.
e. Cost of bringing witnesses to trial
This factor turns on the extent to which witnesses
must be transported from
f. Enforceability of the judgment
Neither party addresses this factor. However, the
Court holds that this factor favors Plaintiffs.
As the Defendant in the current action is an American company, it would be easier
for a
Thus, this factor favors Plaintiffs.
g. All other practical problems
Defendants present two practical problems under this heading: (1) cost and
delay of translation services; and (2) ability to view the scene at
However, the Court is skeptical that a jury would need to view the scene at
h. Ability to implead third-party defendants
Even though not part of the formal private interest [**48] factors, the Court will here discuss the issue of impleading potential third-party defendants argued by the
parties.
Defendant argues that the Court should dismiss this case because they are
unable to implead the Colombian government due to the
Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602, et seq.
The Supreme Court has held that "problems [*1153]
posed by the inability to implead potential
third-party defendants clearly support[] holding the trial" in the foreign
forum. See Piper Aircraft, 454
For the purpose of this argument, the Court will assume that Defendant could
not implead the Government of Colombia in this
litigation. However, as the basis for finding that
4. Public interest factors
The Court holds that the public interest factors slightly favor Defendant.
a. Local interest of lawsuit
Defendant sensibly argues that there is great local interest in
Despite the presence of a significant American interest in the lawsuit, the
Court holds that
b. The court's familiarity with governing law
Defendant argues that Colombian law would apply in the instant case and that
this Court is not familiar with Colombian law. See Motion at 22-23. Since the
Court, in its simultaneously filed order, dismisses Plaintiffs' state law
claims, whether the Court would have to apply Colombian law is moot.
c. Burden on local courts and juries
Defendant argues that a
As to the burden on juries, this factor significantly overlaps with "local
interest." The Alfadda court's concern was that
juries would be sitting "on cases with no relevance to their own
community." 159 F.3d at 46. As mentioned above,
the Court holds that
However, given the burden on juries, the Court holds that this factor favors
Defendant.
d. Congestion in the court
Neither party argued this factor.
e. The costs of resolving a dispute unrelated to this forum
Neither party argued this factor.
f. The impact of the Statement of Interest
Defendant argues that the Statement of Interest "clearly indicates that
the
5.Choice of law determination
"[T]he choice of law analysis is only determinative when the case
involves a United States statute requiring venue in the United States, such as
the Jones Act or the Federal Employers' Liability act." Lueck, 236 F.3d at 1148.
"Where no such law is implicated, the choice of law determination is given
much less deference on a forum non conveniens
inquiry."
In the instant case, there is no federal statute that requires venue in the
6. Defendant's residence in this forum
Plaintiffs argue that the residency of Defendant Occidental Petroleum in
While Reid-Walen holds to the contrary, the Court
agrees with Defendant that Piper Aircraft suggests that Defendant's residence
is not a factor. See Reply at 17. In that case, the Court did not find that the
movant's residence in that forum was a factor
weighing against forum non conveniens. But cf. Stangvik v. Shiley Inc., 54
7. Summary
To summarize, the Court holds that
II. International comity
A. Legal standard
"In the legal sense, comity: is neither a matter of absolute obligation,
on the one hand, nor of mere courtesy and good will, upon the other." In
re Simon, 153 F.3d 991, 998 (9th Cir. 1998) (quoting Hilton v. Guyot, 159
[*1155] "Under this doctrine, courts sometimes defer to the
laws or interests of a foreign country and decline to exercise the jurisdiction
they otherwise have." Sarei, 221 F. Supp. 2d at 1199.
"'Comity is a recognition that which one nation extends within its own
territory to the legislative, executive, or judicial acts of another.'" In
re Grand Jury Proceedings, Yanagihara Grand Jury, Impanelled
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n9 In In re Grand Jury Proceedings, this Court cited
an earlier version of the Restatement of Foreign Relations Law with approval.
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- [**55]
"The party asserting the applicability of the comity doctrine bears the
burden of proof." Sarei, 221 F. Supp. 2d at 1200
(citing Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 999 (2d Cir.
1993)).
B. Application to the Instant Case
Defendant argues that the doctrine of international comity compels the
dismissal of this action. n10 See Motion at 23.
International comity "is an abstention doctrine: A federal court has
jurisdiction but defers to the judgment of an alternative forum." Ungaro-Benages
v. Dresdner Bank AG, 379 F.3d 1227, 1237 (11th Cir. 2004).
"Abstention doctrines are prudential doctrines and this court is not
obligated under American statutory law to defer to foreign courts."
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n10 The Court notes that, in some circumstances, a stay instead of a dismissal
may be appropriate. See Turner Entertainment Co. v. Degeto
Film GmbH, 25 F.3d 1512, 1523 (11th Cir. 1994) (holding that, pursuant to the
doctrine of "international abstention", "the appropriate
resolution is a stay rather than a dismissal of the American action").
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- - [**56]
1. The existence of a "true conflict"
Plaintiffs argue that there are no grounds for dismissal on this basis due to
the lack of "legislative acts, or legal decision that even might conflict
with this Court's exercise of jurisdiction of this matter." See Opposition
at 24. The Court agrees that, at least in the Ninth Circuit, the application of
international comity is generally limited to cases where there is a "true
conflict" between domestic and foreign law. See In re Simon, 153 F.3d at
999; see also United International Holdings Inc. v. Wharf Holdings Ltd., 210
F.3d 1207, 1223 (10th Cir. 2000) ("In general, we will not consider an
international comity or choice of law issue unless there is a true conflict'
between United States law and the relevant foreign law."); In re Maxwell
Communication Corp., 93 F.3d 1036, 1049 (2d Cir. 1996) ("International
comity comes into play only when there is a true conflict between American law
and that of a foreign jurisdiction.").
In Sarei, Judge Morrow discussed whether the
existence of a "true conflict" is a. threshold requirement for
abstention on international comity grounds. [**57]
221 F. Supp. 2d at 1200-01. While Judge Morrow noted that "the
matter is not free from doubt", she would "assume that such a
threshold requirement exists."
[*1156] a. What is a "true
conflict"
In Hartford Fire Insurance Co. v. California, 509 U.S. 764, 794-95, 125 L. Ed.
2d 612, 113 S. Ct. 2891 (1993), the Supreme Court considered whether the
Sherman Antitrust Act could apply to British reinsurers.
These foreign reinsurers asserted that the principle
of international comity barred the district court's jurisdiction over them.
The British reinsurers argued that there was a
conflict because the British "Parliament ha[d] established [**58] a comprehensive regulatory regime over the
In the [**59] instant case, the Court finds
that there is no "true conflict." Since the Court has not made any
findings of liability or provided any remedies, there is no present conflict
between the Court's proceeding with the instant case and any proceedings in
However, the Court acknowledges that there is the possibility of an inconsistency
between a future, potential judgment of this Court and a judgment of a
Colombian court. See Defendant's Supp. Memo. at 14
(citing Eastman Kodak Co. v. Kavlin, 978 F. Supp.
1078, 1088-90 (S.D. Fla. 1997)). While the Court recognizes that Defendants
were not parties to any Colombian court action, the instant
litigation [**60] will touch on the
participation of the Colombian military and government in the events at
To address this concern, the Court believes it should discuss another, [**61] related doctrine -- international
abstention.
2. International abstention
The potential of conflicting findings is more properly
characterized as raising the issue of international abstention rather than
international comity. While there is substantial overlap between these two
doctrines, international abstention is more focused on parallel judicial
proceedings.
"The international abstention doctrine allows a court to stay or dismiss
an action where parallel proceedings are pending in the court of a foreign
nation." Supermicro Computer, Inc. v.
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n11 The Supermicro court ultimately did not decide
whether it should stay or dismiss the action on the basis of international
abstention. That court held that "defendant's motion [could] be resolved
by considering the discretionary nature of the jurisdiction of this court under
the Declaratory Judgment Act."
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In Neuchatel Swiss General Insurance Co. v. Lufthansa
Airlines, 925 F.2d 1193, 1194 (9th Cir. 1991), the Ninth Circuit considered
whether a district court properly entered an order staying an action pending
the outcome of parallel judicial proceedings in Geneva, Switzerland. The Ninth
Circuit reversed the district court's order because it had not properly applied
the framework provided by Colorado River Water Conservation District v. United
States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 The Ninth Circuit did not explain why it believed that there was no
significant difference between a parallel foreign proceeding rather than a
parallel state court action. One motivation for the
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- [**64]
As Neuchatel instructs, the Court applies the
a. Application of
Under the
A federal court considers six factors in deciding whether or not to apply
Colorado River: (1) whether either court has assumed jurisdiction over a res; (2) the relative convenience of the forums; (3) the
desirability of avoiding piecemeal litigation; (4) the order in which the
forums [**65] obtained jurisdiction; (5)
whether state or federal law controls; and (6) whether the state proceeding is
adequate to protect the parties' rights. n13 See Nakash v. Marciano, 882 F.2d
1411, 1415 (9th Cir. 1989). These factors are to be applied in a pragmatic and
flexible way, as part of a balancing process rather than as a mechanical
checklist. See id.
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n13 The Court notes that the fact that Defendant is not a party to any
proceeding brought by these Plaintiffs in Colombia is not a dispositive
factor. For the
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However, the Court does not need to undertake this multi-factor analysis.
[**66] Relying on Moses H. Cone v. Mercury Constr.
Corp., 460 U.S. 1, 28, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983), the Ninth
Circuit has held that "the existence of a substantial doubt as to whether
the state proceedings will resolve the federal action precludes the granting of
a stay." Intel Corp. v. Advanced Micro Devices, Inc., 12
F.3d 908, 913 (9th Cir. 1993). While the instant case involves a
Colombian judgment instead of a state court, the disposition of the Colombian
proceeding would not resolve this action because Defendant is not a party to
that foreign action. Thus, the resolution of Plaintiffs' case in
In Intel, the Ninth Circuit considered whether the district court properly
granted a stay in a copyright infringement action [*1159]
brought by plaintiff Intel against defendant Advanced Micro Devices, Inc.
("AMD").
The Intel court found that all of the issues in the federal court would only be
resolved if the arbitration award was confirmed, while the copyright issues
would not be resolved if the award were overturned. Thus, the further appeals
taken in the
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n14 The Court notes that this holding dovetails with the "true
conflict" generally required for international comity to bar federal
jurisdiction. While there is the possibility of a conflict, it is not certain.
This uncertainty undercuts a finding that there is an inevitable "true
conflict" between domestic and foreign courts.
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- -
3. The international character of the [**69] instant
case
While the Neuchatel court paid no particular
deference to foreign courts, this Court wishes to emphasize that it is well
aware of the particular circumstances of this case. n15
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n15 While this was not an explicitly important element of the Neuchatel court's analysis, the Court notes that Neuchatel involved "an ordinary commercial dispute
over the loss of cargo." 925 F.2d at 1194.
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In its moving papers, Defendant argues that the interests of Colombia and the
United States in this case weigh in favor of the application of international
comity. The Court does not deny that
4. Retrospective vs. prospective application of the doctrine of
international comity
Defendant principally argues that international comity should apply on the
basis of the Eleventh Circuit's decision in Ungaro-Benages
v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir. 2004). See Reply at 24-25.
Specifically, Defendant argues that while Plaintiffs may be correct about a
retrospective application of the doctrine, this suit should be dismissed on a
prospective application of international comity. See id.
"When applied retrospectively, domestic courts consider whether to respect
the judgment of a foreign tribunal or to defer to parallel foreign
proceedings." Ungaro-Benages, 379
F.3d at 1238. "When applied prospectively,
domestic [**71] courts consider whether to dismiss or stay a
domestic action based on the interests of our government, the foreign
government and the international community in resolving the dispute in a
foreign forum." Id. "Applied prospectively, federal courts evaluate
several factors, including the strength of the United States' interest in using
a foreign forum, the strength of the foreign governments' interests, and the
adequacy of the alternative forum."
In Ungaro-Benages, the plaintiff brought a suit
against two German banks to recover assets that were stolen from her family in
Nazi Germany via a program of "Aryanization"
during the 1930s and 1940s. 379 F.3d at 1229-30.
Plaintiff did not learn of her family's history until 2001 and thereafter
brought a claim against the defendants.
Analyzing the case under the prospective vein of international comity, the
Eleventh Circuit found that all three factors favored dismissing the suit. As
to the interests of the
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n16 In Ungaro-Benages, the Eleventh Circuit did not
discuss the existence of a "true conflict." However, one could
conclude that litigation would directly conflict with the German Foundation, a
foreign administrative body. See id. at 387.
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- - [**74]
a. The strength of the
The United States has a substantial interest in the present case. A
Supplemental Statement of Interest of the United States was recently
filed by the State Department on
The Supplemental Statement relevantly states the following:
The Department believes that foreign courts generally should
resolve disputes arising in foreign countries, where such courts reasonably
have jurisdiction and are capable of resolving them fairly. An important part
of our foreign policy is to encourage other countries to establish responsible
legal mechanisms for addressing and resolving alleged human rights abuses.
Duplicative proceedings in
In Ungaro-Benages, 379 F.3d at 1239, the Eleventh
Circuit held that the
The Supplemental Statement filed by the State Department in this case is
similar strong evidence that the
However, the Court notes that the instant case involves a different
circumstance than Ungaro-Benages. In Ungaro-Benages, the Eleventh Circuit examined a situation
in which the President of the
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n17 In addition, the United States, via the legislative enactment of the Alien
Tort Statute and the Torture Victim Protection Act, arguably has an
interest in seeing the instant case proceed. See Presbyterian Church, 244 F.
Supp. 2d 289, 342-343 (S.D.N.Y. 2003) (holding that "granting comity to
allegedly genocidal acts violates the strong United States interest in
addressing jus cogens violations through the
ATCA"); cf. Wiwa, 226 F.3d at 106 (the enactment
of the TVPA "communicated a policy that such suits should not be facilely
dismissed on the assumption that the ostensibly foreign controversy is not our
business").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - -
- - [**78]
b. The strength of
Attached to the Supplemental Statement of Interest, the State Department has
forwarded a letter from the Colombian Ministry of Foreign Relations regarding
this litigation. The translation of the
While the Colombian government provided little explanation as to why this is
true for this particular case, the Court does not believe the Colombian
government has to explain itself to a federal court. Thus, the Court finds that
However, the Court holds that the strength of
c. Adequacy of the alternative forum
As Plaintiffs argued during the hearing on this motion, the Court must consider
the adequacy of the alternative forum in its international comity analysis. See
Ungaro-Benages, 379 F.3d at 1238; Jota v. Texaco,
Inc., 157 F.3d 153, 160 (2d Cir. 1998) [**80] ("When
a court dismisses on the ground of comity, it should normally consider whether
an adequate forum exists in the objecting nation . ."). Plaintiffs assert
that "the adequacy of the forum is a prerequisite to applying the
international comity doctrine." See Plaintiffs' Supp. Reply at 7 (emphasis
added) (citing Presbyterian Church, 244 F. Supp. 2d at 343).
The Court agrees with Plaintiffs. In Hilton, the Supreme Court first considered
the doctrine of international comity in deciding whether to enforce a judgment
rendered in
In view of all the authorities upon the subject . . . we are satisfied that where
there has been an opportunity for a full and fair trial abroad before a
court of competent jurisdiction . . . under a system of jurisprudence likely to
secure an impartial administration of justice between the citizens of its own
country and those of other countries, and there is nothing to show either
prejudice in the court, or [**81] in the systems of laws under
which it was sitting, or fraud in procuring the judgment, or any other special
reason why the comity of this nation should not allow it full effect, the
merits of the case should not, in an action brought in this country upon the
judgment, be tried afresh, as on a new trial or an appeal, upon the mere
assertion of the party that the judgment was erroneous in law or in fact.
159
If a court may disregard a foreign judgment that is obtained through fraud or
that failed to abide [**82] by principles
of due process, similarly courts should not yield in favor of fora that will offer litigants no legitimate prospect of
recovery. Thus, the Court holds that the existence of an adequate alternative
forum, as with forum non conveniens, is a necessary
condition to apply the doctrine of international comity.
As the Court has previously held in its forum non conveniens
analysis that the alternative forum is inadequate, the Court also DENIES
Defendant's motion to dismiss on the basis of international comity. While the
CONCLUSION
For the foregoing reasons, the Court DENIES
Defendant's Motion to Dismiss.
IT IS SO ORDERED.
DATED:
WILLIAM J. REA
United States District Judge