CARIJANO v. OCCIDENTAL PETROLEUM CORP. No. CV 07-5068 PSG (PJWx).
548 F.Supp.2d 823 (2008)
Tomas Maynas CARIJANO et al. v. OCCIDENTAL PETROLEUM CORP. et al.
United States District Court, CD. California.
April 15, 2008.
Benjamin Schonbrun, Michael D. Seplow, Paul L. offman, Schonbrun Desimone Seplow Harris & Hoffman, Venice, CA, Marco B. Simons, Richard Hertz, Earth Rights International, Washington, CA, Natalie L. Bridgeman, Natalie L. Bridgeman Law Office, San Francisco, CA, Robert Kerrigan, Kerrigan Estees Rankin McLedo and Thompson. Pensacola, FL, for Tomas Maynas Carijano et al.
Daniel P. Collins, Gabriel P. Sanchez, Manuel F. Cachan, Munger Tolles & Olson LLP, Danielle L. Gilmore, John B. Quinn, Megan O'Neill, Steven G. Madison, Quinn Emanuel Urquhart Oliver and Hedges, Ernest J. Getto, Kirk A. Wilkinson, Michael G. Romey, Patricia Ann Young. Latham and Watkins, Los Angeles, CA. for Occidental Petroleum Corp. et al.
PHILIP S. GUTIERREZ, District Judge.
Before this Court is Defendants' Motion Pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(e) and (f). The Court finds the matter appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local R. 7-15. Accordingly, the hearing set for August 27, 2007 on the present motion is removed from the Court's calendar. After considering the moving and opposing papers, the Court DENIES Defendants' Motion.
Plaintiffs are 25 members of the Achuar indigenous group who live along the Rio Corrientes River in the northern region of Peru, and Amazon Watch, Inc. ("Amazon"), an environmental rights group which works to defend the rights of the indigenous peoples in the Amazon basin. Defendants are Occidental Petroleum Corporation ("Occidental") and Occidental's indirect subsidiary, Occidental Peruana, Inc. ("OxyPeru") (collectively "Defendants"), both American corporations headquartered in Los Angeles.
From the early 1970's to 2000, OxyPeru operated a petroleum and oil exploration operation in Peru in an area known as Block 1-AB.'(FAC, ¶¶ 39, 42.) Block 1-AB encompassed traditional Achuar communities as well as lands upstream from such communities. (FAC, ¶¶ 38, 44.) Plaintiffs allege that Defendants' operations in Block 1-AB contaminated the environment, by releasing "produced waters" into streams and tributaries of the Rio Corrientes that degraded the waters and soil, harmed the fish, plants, and animals, and caused Plaintiffs to suffer various ailments. (FAC, ¶¶ 48-50, 63-69.) Plaintiffs further allege that Defendants released or disposed of hazardous substances which harmed the environment. (FAC, ¶ 45.)
On May 10, 2007, Plaintiffs filed a complaint in state court alleging, among other things, negligence, strict-liability, medical monitoring and trespass. Defendants removed the action to federal court, and Plaintiffs filed a First Amended Complaint ("FAC") containing twelve causes of' action: (1) negligence, (2) strict-liability, (3) battery, (4) medical monitoring, (5) injunctive relief or damages in lieu of injunction, (6) wrongful death, (7) fraud, (8) public nuisance, (9) private nuisance, (10) trespass, (11) violation of California's Unfair Competition Law ("UCL"), Bus. & Prof. Code § § 17200 et seq. and (12) intentional infliction of emotional distress.
Defendants now seek dismissal of the action based on forum non conveniens and international comity. In a separate motion, Defendants seek dismissal of Amazon Watch's claim pursuant to Rule 12(b)(1) and 12(b)(6). In addition, Plaintiffs move to conduct limited discovery prior to the Court's ruling on Defendants' motion to dismiss based on forum non conveniens and international comity.
II. MOTION TO CONDUCT LIMITED DISCOVERY
Plaintiffs request that prior to issuing a ruling on Defendants' motion to dismiss based on forum non conveniens, the Court afford Plaintiffs an opportunity to conduct limited discovery regarding the proper forum for this action. Plaintiffs' proposed discovery includes (1) discovery regarding the Peruvian legal system, including Defendants' experiences with the system and their awareness of corruption; (2) discovery
A. Legal Standard
Under Fed.R.Civ.P. 26(d)(1), "A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)...." Despite this general prohibition, the rule recognizes the court's broad power over discovery by permitting authorization of discovery before a Rule 26(f) conference "when authorized... by court order." Fed.R.Civ.P. 26(d)(1); see also Gillespie v. Civiletti,
Defendants contend that discovery on the issue of forum non conveniens is generally unnecessary and at odds with the doctrine's purposes. Noting that the forum non conveniens doctrine is grounded in concern for the costs of litigation and convenience of the parties, Defendants argue that "[m]otions to dismiss based on forum non conveniens usually should be decided at an early stage in the litigation, so that the parties will not waste resources on discovery and trial preparation in a forum that will later decline to exercise its jurisdiction over the case." Lony v. E.I. Du Pont de Nemours & Co.,
Having reviewed Defendants' forum non conveniens motion and all related documents and exhibits, the Court concludes it has enough information to sufficiently weigh the parties' interests and determine the adequacy of the foreign forum. Therefore, Plaintiffs' request to conduct additional discovery is DENIED. The Court now turns to the merits of Defendants' motion to dismiss based on forum non conveniens and international comity.
III. MOTION TO DISMISS BASED ON FORUM NON CONVENIENS AND INTERNATIONAL COMITY
A. Legal Standard: Forum Non Conveniens
A federal court has discretion to decline to exercise jurisdiction on the grounds of forum non conveniens where litigation in the foreign forum would be more convenient for the parties. Tuazon v. R.J. Reynolds Tobacco Co.,
There is a strong presumption in favor of a domestic plaintiffs choice of forum, which can be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. Piper Aircraft, 454 U.S. at 253-57, 102 S.Ct. 252; Ravelo Monegro v. Rosa,
1. Availability and Adequacy of Peru as an Alternative Forum
Defendants bear the burden of demonstrating that an alternative forum exists and that it is adequate. Dole Food, 303 F.3d at 1118. An alternative forum ordinarily exists when defendants are amenable to service of process in the foreign forum, and the foreign forum provides a plaintiff with a sufficient remedy for his or her wrong. See Lueck, 236 F.3d at 1143 (citations omitted). Typically, a forum will be inadequate only where the remedy provided is "so clearly inadequate or unsatisfactory, that it is no remedy at all." Lockman Found, v. Evangelical Alliance Mission,
Defendants assert that OxyPeru is unquestionably subject to jurisdiction in Peru based on its past activities there. (Osterling Dec, § 3.1.) As for Occidental, the parent company, Defendants state that for purposes of this motion, they will stipulate to service of process and consent to jurisdiction in Peru. (Forum Non Conveniens Motion ("FNC Motion") at 6.) When a defendant agrees to waive jurisdiction in the alternative forum, a court may dismiss the case on forum non conveniens grounds, retain jurisdiction, and reinstate the case if the foreign forum refuses to accept jurisdiction. Leon v. Million Air, Inc.,
Defendants also meet their burden of establishing that Peru is an adequate forum by offering the extensive affidavit of expert Dr. Felipe Osterling Parodi ("Dr. Osterling"), an attorney with litigation experience in the Peruvian courts since 1955. (Declaration of Dr. Felipe Osterling Parodi ("Osterling Dec."))
Plaintiffs argue, however, that several barriers prevent the Achuar Plaintiffs from full participation in the judicial system. For example, because all of the minors and five of their adult guardians do not have identity papers, known as DNI (National Identity Document), a necessary requirement to bringing a lawsuit in Peru, they cannot maintain this suit there. (See Simons Dec, ¶ 16). These Plaintiffs cannot secure a DNI since doing so requires a requires a birth certificate, which many indigenous people do not have. (Opp'n at 7.) Plaintiffs further contend that the extreme poverty in the Achuar community acts as a practical barrier, since the Achuar cannot afford DNIs and filing fees, which total more than an Achuar family would earn in one year. (Ardito Dec, attached as Ex. 2 to Simons Dec, ¶ 2, § 7.2 and 7.3.) In addition, Plaintiffs point to Peru's history of discrimination against indigenous people as demonstrating that litigation in Peru would be unfair. (Ardito Dec. at 19-20.) Plaintiffs' expert, Wilfredo Ardito Vega, a Pervian lawyer and university professor, states that "[w]ithin the Judiciary, there can be racism towards indigenous peoples on the part of guards, secretaries, officials, and the judges themselves...." (Id. at 20.)
According to Dr. Osterling, however, Peru has taken substantial measures to protect indigenous rights, including waiving litigation expenses for persons living in geographic zones of poverty (Supp. Osterling Dec. at 8), and authorizing Peruvian judges to admit a complaint filed by persons who do not have a DNI for its processing if they demonstrate material impossibility of obtaining the DNI. (Supp. Osterling Dec. at 4.) Furthermore, "[t]he mere existence of filing fees, which are required in many civil law countries, does not render a forum inadequate as a matter of law." Altmann v. Republic of Austria,
Plaintiffs also argue that Peru is an inadequate forum because it has no form of action equivalent to the American class action. As evidence of this, they proffer the declaration of Ludwig Apolin Meza, a Peruvian lawyer and University professor specializing in procedural law. (Apolin Dec, attached as Ex. 8 to Simons Dec. at 4-5, 7.) Apolin asserts that the Peruvian "Rules of Civil Procedure do not allow for filing cases whose goal it is to obtain compensation for an
The fact that Peru lacks a class action mechanism does not make it inadequate for forum non conveniens purposes. See Aguinda v. Texaco, Inc.,
Plaintiffs call into question the representations by Dr. Osterling, given the "fundamental unpredictability of the Peruvian legal system, including numerous contradictory decisions and apparent disregard for statutes." (FNC Opp'n at 8.) According to the U.S. Dep't of State's 2006 Investment Climate Statement — Peru (2007), available at http:llwivw.state.gov/e/ eeb/ifd/2007/80730.htm, "contracts are often difficult to enforce in Peru." (Id.) Plaintiffs argue that "[i]f ordinary contracts face such difficulties, complex tort actions, untested in Peru's courts, cannot hope to fare better." (Id.)
As a civil law country, "Peru allows for the existence of contradictory decisions and changes of opinion, provided they are duly supported." (Supp. McEvoy Dec, Ex. B at 9.) Unlike common law countries, in civil law countries, precedents are generally not binding. (Id.) Nonetheless, Dr. Osterling avers that "in the overwhelming majority of cases, precedent has been and continues to be respected, as compared to those cases in which this alleged irregularity has occurred." (Id.)
Plaintiffs further contend that Peru's "generalized picture of corruption" and climate of intimidation are sufficient to render it an inadequate forum. (FNC Opp'n at 9.) A number of courts have rejected this position in forum non conveniens motions for a variety of reasons. See, e.g. Tuazon,
Plaintiffs acknowledge that the "`alternative forum is too corrupt to be adequate' argument does not enjoy a particularly impressive track record." Eastman Kodak Co. v. Kavlin,
Here, Plaintiffs' record falls short of the "extensive record" described in Eastman Kodak, and is more akin to evidence proffered by the plaintiff in Tuazon, 433 F.3d at 1178. In Tuazon, the Ninth Circuit rejected the plaintiff's claims that the Philippine courts were too corrupt and plagued with delays to provide an adequate forum for his civil case. Tuazon, 433 F.3d at 1178. The court reasoned that plaintiffs evidence — "anecdotal evidence of corruption and delay," and State Department Country Reports focused on the criminal justice system and referencing corruption, judicial bias and inefficiency — provided an insufficient basis for finding the Philippine courts were an inadequate forum for the civil case. Id. Explaining that "[a] litigant asserting inadequacy or delay must make a powerful showing," the court distinguished Eastman Kodak, where the court described plaintiffs' evidence as "both specific and sordid." Id.
Plaintiffs' support their general attack on the Peruvian justice system with (1) the declarations of Ardito Vega and Apolm Meza, both Peruvian lawyers and university professors; (2) the declaration of Eliana Ames Vega ("Ames Dec." attached as Ex. 5 to Simons Dec), a Peruvian lawyer with ten years experience in environmental law; (3) internet news and newspaper articles from 1996, and 2005-2007 (Simons Dec, Exs. 19-22); and the 2007 Global Corruption Report by Transparency International, a non-governmental organization (Simons Dec, Ex. 23.) According to Ardito, widespread institutionalized corruption during the Fujimori regime still lingers over the Peruvian judicial system, and "[c]orruption is evident in lobbying [and] illicit networks (that offer themselves to act as intermediaries with magistrates)...." (Ardito Dec. at 14.) Ames
Plaintiffs' evidence of corruption falls short of the "powerful showing" of corruption necessary to defeat a forum non conveniens motion. The Transparency International report only analyzes respondents' perceived corruption, and thus is not indicative of actual corruption. Moreover, unlike in Eastman Kodak, where the plaintiffs coupled State Department reports with allegations of corruption by the specific defendants, here, Plaintiffs' specific evidence of bribery of a Supreme Court judge took place nearly eight years ago back in 2000, and did not involve Occidental or OxyPeru. Furthermore, while Plaintiffs allege "on information and belief that Defendants have bribed unnamed Peruvian officials, Plaintiffs fail to allege any facts, cite to any newspaper articles, or provide any declarations or affidavits to support such a sweeping denunciation. Accordingly, the Court accord little weight to Plaintiffs' conclusory allegations.
The Court also bears in mind that one of the central ends of the forum non conveniens doctrine is to avert "unnecessary indictments by our judges condemning the sufficiency of the courts and legal methods of other nations." See Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine,
2. Private Interest Factors
The private interest factors that the Court considers in a forum non conveniens analysis include: (1) the residence of 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." Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839, Contact Lumber, 918 F.2d at 1449.
Defendants focus on witnesses and evidence located in Peru, including Plaintiffs' family members, neighbors, teachers, employers, community and tribal leaders, and physicians; employees and consultants of Pluspetrol; Peruvian civil servants and consultants responsible for monitoring the environmental conditions in Block 1-AB; and research underlying the epidemiological reports referenced in the FAC which appear to have been prepared by the Peruvian government. Plaintiffs, on the other hand, focus on the witnesses and evidence in California, including decisionmakers at Defendants' headquarters and witnesses with knowledge of Oxy-Peru's operations. Although witnesses and documents are located in both fora, the facts of this case indicate that it centers
Defendants further argue that they cannot compel non-party witnesses resident in Peru to comply with a subpoena for documents or deposition. In support of this proposition, Defendants cite Lueck, where the Ninth Circuit noted that because witnesses and documents were under the control of the New Zealand government, "the district court [could not] compel production of much of the New Zealand evidence." Lueck, 236 F.3d at 1146-1147. Indeed, the Supreme Court has observed that "to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants." Gulf Oil, 330 U.S. at 511, 67 S.Ct. 839. Moreover, courts continue to affirm that it is not fair to make U.S. manufacturers proceed to trial without foreign witnesses who cannot be compelled to attend. See, e.g., Piper Aircraft, 454 U.S. at 242-243, 102 S.Ct. 252; Lueck, 236 F.3d at 1146-1147; Carney v. Singapore Airlines,
Defendants also maintain that the cost of transporting Peruvian witnesses to the United States weighs in favor of dismissal. Plaintiffs concede that many of the witnesses and evidence are located in remote areas of Peru, but argue that this does not mean Peru is a more convenient forum than Los Angeles. Because it can take three to four days to travel to the Achuar communities in the Amazon from the nearest Peruvian city of Iquitos (Simons Dec, ¶¶ 24-26), and because travel between Los Angeles and Lima or Iquitos is "relatively quick and easy," Plaintiffs assert that there is only a marginal difference in ease of access to witnesses and evidence between Peru and Los Angeles. (FNC Opp'n at 15.) Plaintiffs further argue that there are likely to be numerous witnesses as well as documentary evidence in California since Occidental and Amazon Watch are both located here.
While Plaintiffs downplay the relative ease and access to witnesses factor, it is clear the cost and convenience of travel between Peru and Los Angeles supports dismissal on forum no conveniens grounds. Even if all the witnesses identified by defendants were willing to testify in Los Angeles, the expense of bringing them here could be prohibitive. The price of a round-trip, coach airline ticket to Iquitos purchased three weeks in advance runs over $1000, and takes approximately 16 to 21 hours. (Cachan Dec, ¶ 16, Ex. 1.) Additionally, the Achuar Plaintiffs and most third-party witnesses likely do not speak English, so the cost of translating oral and written evidence is likely to be costly and time-consuming. (Id. ¶ 2.) Thus, the private interest factors weigh overwhelmingly in favor of dismissal.
3. Public Interest Factors
Public interest factors include court congestion, local interest in resolving the controversy, and preference for having a forum apply a law with which it is familiar. See Lockman Found, v. Evangelical Alliance Mission,
Here, Peru has a strong interest in this dispute, because Block 1-AB and the Achuar Plaintiffs are located there.
Court congestion is a neutral factor. Plaintiffs' evidence shows that in 2006, the number of new cases filed per judge in Lima and Iquitos was greater that the number filed in the Central District of California in 2006. (Ardito Dec, Pt. I, 7.2.) However, Defendants provide evidence that Peruvian courts in 2006 cleared 80% of the cases they filed in the same year; whereas in the Central District, approximately 12% of the cases have been pending for over three years. (Supp. Osterling Dec. 33; Supp. Cachan Dec. Ex. G.) The most the Court can glean from this information is that both courts have crowded dockets.
The parties disagree about which law would apply in this case. In analyzing choice of law questions, California courts apply a three-part "governmental interest" test. Arno v. Club Med Inc.,
Defendants presume that the laws differ, that there is a "true conflict" which would be resolved in favor of Peruvian law, and that Peru has a far greater interest than California in regulating environmental conditions in its own territory and addressing allegedly tortious conduct carried out against Peruvian citizens. Plaintiffs, on the other hand, argue that the Court must presume California law applies since Defendants have failed to do a proper choice of law analysis showing Peruvian law applies. Although Defendants' choice-of-law analysis is lacking, the Court need not engage in a full choice of law analysis at this stage of the litigation. See Piper Aircraft, 454 U.S. at 251, 102 S.Ct. 252 ("The doctrine of forum non conveniens... is designed in part to help courts avoid conducting complex exercises in comparative law.") Id. at 260, 102 S.Ct. 252. Given that both parties have asserted reasonable explanations that either Peruvian or California law applies, this factor remains neutral.
Deference to Plaintiffs' Choice of Forum
As stated earlier, there is a strong presumption in favor of a domestic plaintiffs choice of forum, which can be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. Piper Aircraft, 454 U.S. at 253-57, 102 S.Ct. 252; Ravelo Monegro,
Although Amazon Watch is a California plaintiff, the fact that the 25 Achuar Plaintiffs are all residents of Peru lessens the
For all the reasons stated above, the Court hereby DENIES Plaintiffs' motion to conduct limited discovery, and GRANTS Defendants' motion to dismiss based on forum non conveniens. This ruling renders MOOT Defendants' motion to dismiss Amazon Watch's UCL claim.
IT IS SO ORDERED.
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