Freddy Locarno Baloco v. Drummond Co., Inc., No. 12-15268 (11th Cir. Sept. 23, 2014) [click for opinion]

The children and heirs of three union leaders that worked at Drummond Co., Inc.’s coal mining operation in Colombia sued Drummond for the murder of the union leaders in Colombia by paramilitaries.  Plaintiffs claimed the murders were war crimes because they occurred in the context of a violent armed conflict between the paramilitaries and a leftist guerilla organization and that Drummond aided and abetted or conspired with the paramilitaries to commit the murders.

Plaintiffs brought the claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note § 2(a), and the wrongful death law of Colombia.  The lawsuit was filed in federal court in Alabama, where Drummond and its wholly-owned subsidiary have their principal places of business. 

The Eleventh Circuit affirmed dismissal of the ATS claims, holding that it lacked subject matter jurisdiction over the ATS claims.  The court also affirmed summary judgment for the TVPA and wrongful death claims, finding them barred by the doctrine of res judicata, as they had been brought on behalf of Plaintiffs by their mothers in a prior case.

In reaching its decision, the Eleventh Circuit considered the impact of the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. The ATS grants jurisdiction for a modest number of international law violations; to date, the only recognized causes of action under the ATS for a violation of the law of nations are violations of safe conducts, offenses against ambassadors, piracy, torture, and extrajudicial killing.  In Kiobel, the United States Supreme Court determined that the ATS may not be used to sue for violations of the law of nations occurring within the territory of a sovereign other than the United States where the ATS claim does not “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.” 

In this case, the extrajudicial killings and war crimes occurred in Colombia. And even though the two Drummond entities and the individual defendants were U.S. nationals, the majority in Kiobel did not place significant weight on the defendants’ nationality where the alleged relevant conduct occurred abroad.  Plaintiffs contended that at least some of the relevant conduct occurred in the United States; however, the Eleventh Circuit reasoned that even if the “relevant conduct” inquiry extended to the place of decision-making—as opposed to the site of the actual “extrajudicial killing”—the allegations still fell short of the minimum factual predicate warranting the extraterritorial application of the ATS.  This is because Plaintiffs failed to allege any facts supporting an express agreement between Defendants and the paramilitaries to execute the union leaders on Defendants’ behalf. 

Jonathan Rosamund of the Dallas office contributed to this summary.