Doe v. Drummond Co., No. 13-15503 (11th Cir. Mar. 25, 2015)
Plaintiffs sued Defendants Drummond Co., its wholly-owned subsidiary, and company executives regarding events occurring in Colombia. Defendants were accused of hiring Colombian paramilitaries to eliminate guerilla groups near Defendants' Colombian mining operations. During the ensuing conflict, the paramilitaries purportedly killed nearly 100 Colombian civilians.
Plaintiffs, the legal heirs of the decedents, filed suit in the United States District Court for the Northern District of Alabama, accusing Defendants of war crimes, crimes against humanity, and other international law violations. They brought claims under the Alien Tort Statute (“ATS”), the Torture Victim Protection Act of 1991 (“TVPA”) and Colombia's wrongful death laws. After the district court dismissed all of Plaintiffs' claims, Plaintiffs appealed to the Eleventh Circuit Court of Appeals. The Eleventh Circuit separately examined Plaintiffs' claims under the ATS, TVPA, and Colombia's wrongful death statutes.
The court began by holding that it would not have jurisdiction over Plaintiffs' ATS claims. The ATS is a "strictly jurisdictional" statute that allows district courts to have original jurisdiction of a civil action, brought by an alien in tort only, committed in violation the law of nations or a U.S. treaty. While this dispute was being litigated in the district court, the Supreme Court decided Kiobel v. Royal Dutch Petroleum Co., a decision establishing a presumption against extraterritoriality for ATS claims and outlining when courts could overcome the presumption and exercise jurisdiction. The Eleventh Circuit used Kiobel (and subsequent lower court interpretations) to determine whether Plaintiffs' claims sufficiently "touched and concerned" U.S. territory for the court to have jurisdiction under the ATS.
While Plaintiffs seemed to meet all of the requirements set forth in the statute, Plaintiffs could not satisfy the touch and concern test as set forth in Kiobel and its progeny. Some relevant conduct did occur domestically, as Defendants were U.S. corporations and/or U.S. citizens, made policy and funding decisions in the U.S., and allegedly supported a U.S.-designated terrorist organization. However, the planning and execution of the killings, actual collaboration of Defendants' employees with the paramilitary forces, and actual funding of the paramilitaries occurred in Colombia. The actual injuries were inflicted in Colombia and the Plaintiffs' claims of domestic conduct and connections were not extensive or specific. The court thus held that, as a whole, the conduct did not sufficiently touch and concern the U.S. as to rebut the ATS's presumption against extraterritoriality.
Plaintiffs' TVPA claims were also dismissed. Since TVPA claims cannot be brought against corporate entities, the claims were specifically against two Drummond executives. The court had jurisdiction to hear Plaintiffs' TVPA claims and held that the TVPA applies extraterritorially. However, Plaintiffs' evidence was insufficient to survive summary judgment. There was no admissible evidence to show that either individual had knowledge of any scheme to support or fund the paramilitaries or that they had any part in such a scheme (if it existed).
Nevertheless, the court said that the district court applied the wrong substantive law when it dismissed Plaintiffs' claims on summary judgment. Instead of looking to international law when interpreting the TVPA, district courts should generally look to U.S. law. Knowledge was the appropriate mens rea standard for an aiding and abetting theory of liability in this context. And while the "command responsibility doctrine" would not have supported liability in this matter, it could be used as basis for liability of a private corporate officer in a different TVPA claim.
Finally, the court declined to exercise supplemental jurisdiction over wrongful death claims based on Colombian law. Even though the district court was briefed on Colombian wrongful death claims, the complex issues made it impossible for the court to navigate nuances of the applicable law. The district court's decision to decline supplemental jurisdiction based on the complexity of Colombian wrongful death claims was not a clear error of judgment.
Considering the facts and appropriate legal standards, the Eleventh Circuit affirmed the district court's decision to dismiss Plaintiffs' claims.
Adam Pascarella of the New York office contributed to this summary.