Keo Ratha v. Phatthana Seafood Co., Ltd. ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEO RATHA; SEM KOSAL; SOPHEA No. 18-55041
BUN; YEM BAN; NOL NAKRY; PHAN
SOPHEA; SOK SANG, D.C. No.
Plaintiffs-Appellants, 2:16-cv-04271-
JFW-AS
v.
PHATTHANA SEAFOOD CO., LTD.; OPINION
S.S. FROZEN FOOD CO., LTD.;
RUBICON RESOURCES, LLC; WALES
AND CO. UNIVERSE LTD.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted September 13, 2019
Pasadena, California
Filed February 25, 2022
Before: Marsha S. Berzon, Ryan D. Nelson, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Bade
2 RATHA V. PHATTHANA SEAFOOD
SUMMARY *
Trafficking Victims Protection Reauthorization Act
The panel affirmed the district court’s grant of summary
judgment in favor of defendants in an action brought under
the civil remedy provision of the Trafficking Victims
Protection Reauthorization Act, 18 U.S.C. § 1595, by
Cambodian villagers who alleged that they were trafficked
into Thailand and subjected to forced labor at seafood
processing factories.
Assuming without deciding that § 1595 may apply
extraterritorially, the panel held that plaintiffs did not present
a triable issue on the requirements for such application or on
the merits of their claims.
18 U.S.C. § 1596 authorizes extraterritorial application
of the TVPRA for specific criminal trafficking offenses. The
panel assumed without deciding that § 1595 permits a
private cause of action for extraterritorial violations of the
substantive provisions listed in § 1596 so long as § 1596’s
other requirements are satisfied.
As to two foreign company defendants, the panel held
that plaintiffs’ claims against Phatthana Seafood Co. Ltd.
failed because Phatthana was not “present in the United
States” at any time relevant to this lawsuit as § 1596 requires.
Because the success of plaintiffs’ claims against S.S. Frozen
Food Co. Ltd. depended on the success of their claims
against Phatthana, their claims against S.S. Frozen also
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RATHA V. PHATTHANA SEAFOOD 3
failed. The panel held that even assuming § 1596 requires
foreign companies to possess nothing more than minimum
contacts with the United States, plaintiffs did not establish
that Phatthana or S.S. Frozen had sufficient contacts with the
United States to meet that standard. The panel held that the
record did not support either specific or general jurisdiction
as a basis for finding minimum contacts. The panel rejected
plaintiffs’ argument that Phatthana and S.S. Frozen were
present in the United States through an agency relationship
or joint venture with defendant Rubicon Resources LLC, a
Delaware limited liability company with its principal place
of business in California.
As to defendants Rubicon and Wales and Co. Universe
Ltd., a Thai company registered to conduct business in
California, the panel held that plaintiffs failed to produce
evidence establishing a triable issue of defendants’ liability
under § 1595 on a theory that they knowingly benefitted
from Phatthana’s alleged human trafficking and forced labor
abuses, financially and by accessing a steady stream of
imported seafood. The panel held that no reasonable jury
could infer from the evidence that Rubicon benefitted,
financially or otherwise, from Phatthana’s alleged TVPRA
violations. The panel held that plaintiffs did not raise a
triable issue on whether Wales knew or should have known
that Phatthana was engaged in alleged violations of the
TVPRA when it received a benefit from the alleged venture.
The panel further held that the district court did not abuse
its discretion by denying plaintiffs’ motion for an extension
of time to respond to defendants’ motions for summary
judgment.
4 RATHA V. PHATTHANA SEAFOOD
COUNSEL
Paul Hoffman (argued) and Catherine Sweetser, Schonbrun
Seplow Harris Hoffman & Zeldes LLP, Los Angeles,
California; Agnieszka M. Fryszman, Cohen Milstein Sellers
& Toll PLLC, Washington, D.C.; Dan Stormer, Hadsell
Stormer & Renick LLP, Pasadena, California; Anthony
DiCaprio, Rye, New York; for Plaintiffs-Appellants.
Bryan D. Daly (argued), Charles Lawrence Kreindler, and
Barbara E. Taylor, Sheppard Mullin Richter & Hampton
LLP, Los Angeles, California, for Defendants-Appellees.
William J. Aceves, California Western School of Law, San
Diego, California, for Amicus Curiae Human Rights and
Development Foundation.
Scott A. Gilmore and Carmen K. Cheung, Center for Justice
and Accountability, San Francisco, California; Beth Van
Schaack, Stanford University, Stanford, California;
Ralph G. Steinhardt, George Washington University School
of Law, Washington, D.C.; for Amicus Curiae Center for
Justice and Accountability.
Eli Naduris-Weissman, Rothner Segall & Greenstone,
Pasadena, California, for Amici Curiae Solidarity Center,
International Labor Rights Forum, Worker Rights
Consortium, Centro de los Derechos del Migrante,
International Labor Recruitment Working Group, and
EarthRights International.
Anne M. Voigts, King & Spalding LLP, Palo Alto,
California; Amelia G. Yowell, King & Spalding LLP,
Washington, D.C.; for Amici Curiae Freedom Network
USA, Human Trafficking Legal Center, Public Counsel,
RATHA V. PHATTHANA SEAFOOD 5
Human Trafficking Clinic at the University of Arkansas
School of Law, Civil Litigation and Advocacy Clinic at the
University of Arkansas School of Law, Professor Janie
Chuang, and Professor David Abramowitz.
Robert A. DeHaan, McLean, Virginia, for Amicus Curiae
National Fisheries Institute.
OPINION
BADE, Circuit Judge:
Plaintiffs-Appellants are Cambodian villagers who
allege that they were trafficked into Thailand and subjected
to forced labor at seafood processing factories. Plaintiffs
allege that Thai companies perpetrated these offenses, and
that companies present in the United States knowingly
benefitted from their forced labor. Plaintiffs brought their
claims under 18 U.S.C. § 1595, 1 the civil remedy provision
of the Trafficking Victims Protection Act (“TVPA”), as
reauthorized and amended in the Trafficking Victims
Protection Reauthorization Act of 2003 and the William
Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008. 2
We are asked to determine the extraterritorial reach of
§ 1595 and to construe the terms of that provision. We
assume without deciding that § 1595 may apply
1
Plaintiffs also brought claims under the Alien Tort Statute. The
district court dismissed those claims at the pleading stage, and they are
not at issue in this appeal.
2
We refer to the Trafficking Victims Protection Act, as reauthorized
and amended, as the TVPRA.
6 RATHA V. PHATTHANA SEAFOOD
extraterritorially and conclude that Plaintiffs did not present
a triable issue on the requirements for such application or on
the merits of their claims. Therefore, the district court
properly entered summary judgment against Plaintiffs. We
also conclude that the district court did not abuse its
discretion in denying Plaintiffs’ motion for an extension of
time to respond to Defendants’ motions for summary
judgment. We affirm.
I
A
In 2000, Congress enacted the TVPA “to ‘combat
trafficking in persons, a contemporary manifestation of
slavery whose victims are predominantly women and
children, to ensure just and effective punishment of
traffickers, and to protect their victims.’” Ditullio v. Boehm,
662 F.3d 1091, 1094 (9th Cir. 2011) (quoting Pub. L. No.
106-386, § 102, 114 Stat. 1464 (2000) (codified as amended
at 18 U.S.C. §§ 1589–1592)). By enacting this statute,
“Congress created several new federal criminal offenses
intended to more comprehensively and effectively combat
human trafficking.” Roe v. Howard, 917 F.3d 229, 236 (4th
Cir. 2019).
In 2003, Congress reauthorized and amended the
TVPRA, adding a civil remedy provision codified at
18 U.S.C. § 1595. See Ditullio, 662 F.3d at 1094. Initially,
that provision provided civil remedies only for violations of
§ 1589 (forced labor), § 1590 (trafficking), and § 1591 (sex
trafficking of children). See Trafficking Victims Protection
Reauthorization Act of 2003, Pub. L. No. 108-193,
§ 4(a)(4)(A), 117 Stat. 2875 (2003). But in 2008, Congress
again reauthorized the TVPRA and amended it to expand the
civil remedies provision, which now provides:
RATHA V. PHATTHANA SEAFOOD 7
An individual who is a victim of a violation
of this chapter may bring a civil action
against the perpetrator (or whoever
knowingly benefits, financially or by
receiving anything of value from
participation in a venture which that person
knew or should have known has engaged in
an act in violation of this chapter) in an
appropriate district court of the United States
and may recover damages and reasonable
attorneys fees.
18 U.S.C. § 1595(a) (providing a civil remedy for the
offenses listed in Title 18, Chapter 77, “Peonage, Slavery,
and Trafficking in Persons”); see Ditullio, 662 F.3d at 1094
n.1.
The 2008 amendments also added § 1596, which
authorizes extraterritorial application for specific sections of
the TVPRA. See 18 U.S.C. § 1596(a); William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. No. 110-457, § 223(a), 122 Stat. 5044 (2008). This
provision, entitled “Additional jurisdiction in certain
trafficking offenses,” provides:
(a) In general.—In addition to any domestic
or extra-territorial jurisdiction otherwise
provided by law, the courts of the United
States have extra-territorial jurisdiction over
any offense (or any attempt or conspiracy to
commit an offense) under section 1581,
1583, 1584, 1589, 1590, or 1591 if—
(1) an alleged offender is a national of the
United States or an alien lawfully admitted
8 RATHA V. PHATTHANA SEAFOOD
for permanent residence (as those terms are
defined in section 101 of the Immigration and
Nationality Act (8 U.S.C. 1101)); or
(2) an alleged offender is present in the
United States, irrespective of the nationality
of the alleged offender.
18 U.S.C. § 1596(a). As a result of the 2008 amendments,
the TVPRA now extends extraterritorial application to
violations of § 1581 (peonage), § 1583 (enticement into
slavery), § 1584 (sale into involuntary servitude), § 1589
(forced labor), § 1590 (trafficking), and § 1591 (sex
trafficking of children), but only if the alleged offender is a
United States citizen, a lawful permanent resident, or is
present in the United States. See id.
B
In their complaint, Plaintiffs alleged that they were the
victims of peonage, forced labor, involuntary servitude, and
human trafficking, in violation of 18 U.S.C. §§ 1581, 1584,
1589, 1590, 1592, and 1593A, and they sought damages
under § 1595, the civil remedy provision of the TVPRA.
Plaintiffs further alleged that Defendants-Appellees
Phatthana Seafood Co., Ltd. (“Phatthana”) and S.S. Frozen
Food Co., Ltd. (“S.S. Frozen”) perpetrated these offenses,
and that Defendants-Appellees Rubicon Resources, LLC
(“Rubicon”) and Wales & Co. Universe Ltd. (“Wales”)
knowingly benefitted from Phatthana’s and S.S. Frozen’s
unlawful conduct.
Specifically, Plaintiffs say that they were recruited from
their villages to work in factories in Thailand producing
shrimp and seafood for export to the United States. Plaintiffs
were promised well-paying jobs with free accommodations,
RATHA V. PHATTHANA SEAFOOD 9
but once in Thailand, they became victims of peonage,
forced labor, and involuntary servitude. Plaintiffs were paid
less than promised, charged for accommodations, charged
for other unexpected expenses, unable to leave without their
passports, which they were told would not be returned until
“recruitment fee[s]” and other amounts were paid, and
subjected to harsh conditions. Plaintiffs asserted that these
abuses occurred from sometime in 2010 until October 2012.
Phatthana’s seafood processing factory in Songkhla
province, where six of the seven Plaintiffs worked, began
operations in August 2010. The seventh Plaintiff, Keo
Ratha, worked at an S.S. Frozen seafood processing factory
from October 2011 to January 2012.
Phatthana and S.S. Frozen are foreign companies.
Phatthana is a Thai company that owned two seafood
processing factories in Thailand, including the factory in
Songkhla province. 3 Phatthana does not have an address,
employees, factories, or other property in the United States.
Phatthana had business relationships with Rubicon and
Wales, which we describe in more detail below.
S.S. Frozen is also a Thai company and it owned a
seafood processing factory in Songkhla province, next to
Phatthana’s Songkhla factory. S.S. Frozen does not have an
address or employees in the United States, and it did not sell
any seafood in the United States during the period at issue—
August 2010 to October 2012. Unlike Phatthana,
S.S. Frozen did not have any business relationships with
Rubicon or Wales.
3
Phatthana’s seafood processing factory in Songkhla province
closed in 2013.
10 RATHA V. PHATTHANA SEAFOOD
Rubicon is a Delaware limited liability company with its
principal place of business in California. Rubicon sought to
import shrimp from Phatthana’s Songkhla seafood
processing factory into the United States. Rubicon
coordinated sales and marketing, visited and conducted pre-
audits of Phatthana’s factories, and arranged for import and
shipping of Phatthana’s product. But Rubicon did not own
any factories, and it did not recruit employees for Phatthana.
In October 2011, Rubicon ordered fourteen containers of
shrimp from Phatthana’s Songkhla factory for distribution to
Walmart. Walmart rejected the shipment because it had
concerns about working conditions in the factory. Rubicon
returned the shrimp to Thailand. It did not successfully sell
any shrimp from Phatthana’s Songkhla factory in the United
States during the period at issue in this case.
Wales is a Thai company registered to conduct business
in California. Wales performs quality control, sales, and
marketing for seafood processing factories. During the
period at issue, Wales inspected the packaging of the
fourteen containers of shrimp that Rubicon ordered from
(and ultimately returned to) Phatthana before the shipment
left Thailand, and it received a commission for these
services.
C
At the outset of this case, the district court denied
Defendants’ motion to dismiss Plaintiffs’ TVPRA claims,
under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure, because it concluded that § 1596 extends
the extraterritorial application of the TVPRA to civil actions
brought under § 1595, and that Plaintiffs’ complaint
sufficiently alleged a claim under that provision. But at the
close of discovery, the district court granted Phatthana’s and
RATHA V. PHATTHANA SEAFOOD 11
S.S. Frozen’s motions for summary judgment because it
found that Plaintiffs had not established that these foreign
companies were “present in” the United States, as required
by 18 U.S.C. § 1596(a)(2). The district court therefore
concluded that it lacked subject matter jurisdiction over the
claims against Phatthana and S.S. Frozen. 4
The district court also granted Rubicon’s and Wales’s
motions for summary judgment because it concluded that
Plaintiffs failed to present a triable issue that these
companies knowingly benefitted from participating in a
venture that they knew or should have known had engaged
in TVPRA violations. See 18 U.S.C. § 1595(a). Plaintiffs
appeal the district court’s grant of summary judgment in
Defendants’ favor and the district court’s denial of their
motion for an extension of time to respond to Defendants’
summary judgment motions.
II
We review de novo a district court’s grant of summary
judgment. Nigro v. Sears, Roebuck & Co., 784 F.3d 495,
497 (9th Cir. 2015). We may affirm on any ground
supported by the record. Oyama v. Univ. of Haw., 813 F.3d
850, 860 (9th Cir. 2015). We review a district court’s denial
of a motion for extension of time for abuse of discretion.
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th
Cir. 2010).
4
The district court also entered summary judgment against Plaintiffs
Yem Ban, Nol Nakry, and Sok Sang because it concluded that they failed
to present evidence to support their TVPRA claims against Phatthana.
Because we resolve the claims against Phatthana and S.S. Frozen on
other grounds, we do not address Plaintiffs’ arguments that the district
court erred in entering summary judgment on the merits of their claims.
12 RATHA V. PHATTHANA SEAFOOD
III
We consider separately Plaintiffs’ claims against the
foreign companies, Phatthana and S.S. Frozen, and their
claims against the companies present in the United States,
Rubicon and Wales.
Plaintiffs, who are Cambodian villagers, allege that
Phatthana and S.S. Frozen, both Thai companies, trafficked
them into Thailand and then subjected them to peonage,
forced labor, and involuntary servitude at their seafood
processing factories. Thus, this case involves allegations by
foreign Plaintiffs, against foreign Defendants, based on
conduct occurring and injuries suffered in a foreign country.
We must first consider the extraterritorial reach of § 1595.
See RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 329
(2016) (explaining that a statute applies extraterritorially,
when it applies “to events occurring and injuries suffered
outside the United States”).
A
“Congress has the authority to enforce its laws beyond
the territorial boundaries of the United States.” EEOC v.
Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), superseded
in part by statute, Civil Rights Act of 1991, Pub. L. 10-166,
105 Stat. 1074, as recognized in Landgraf v. USI Film
Prods., 511 U.S. 244, 251 (1994). But “[i]t is a longstanding
principle of American law ‘that legislation of Congress,
unless a contrary intent appears, is meant to apply only
within the territorial jurisdiction of the United States.’” Id.(quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285
(1949)). When asked to decide whether a statute applies
extraterritorially, we ordinarily apply a two-step framework.
RJR Nabisco, 579 U.S. at 329, 337. At step one, we
“presume that a statute applies only domestically” and “ask
RATHA V. PHATTHANA SEAFOOD 13
‘whether the statute gives a clear, affirmative indication’ that
rebuts this presumption.” Nestlé USA, Inc. v. Doe, 141 S.
Ct. 1931, 1936 (2021) (quoting RJR Nabisco, 579 U.S.
at 337). If the statute is not extraterritorial, then we go on to
the second step and ask whether the case involves a
permissible domestic application of the law. Id.
Viewed in isolation, § 1595 is silent as to its
extraterritorial application. See 18 U.S.C. § 1595. Plaintiffs
argue that § 1595 applies extraterritorially because it
incorporates the TVPRA’s substantive provisions made
extraterritorial by § 1596. Under that argument, § 1595’s
extraterritoriality depends on § 1596’s elements being
satisfied. In response, Defendants argue that § 1595 “does
not state that it applies extraterritorially,” and “it is
appropriate not to read extraterritoriality into it.”
Defendants further argue that § 1596 “does not state it
applies to civil actions” and by its terms only applies to
criminal prosecutions.
We need not resolve this dispute to decide this case.
Instead, we assume without deciding that Plaintiffs are
correct and that § 1595 permits a private cause of action for
extraterritorial violations of the substantive provisions listed
in § 1596 so long as § 1596’s other requirements are
satisfied. 5 We take this approach for two reasons.
5
Because we assume Plaintiffs are correct that § 1596 contains “a
clear, affirmative indication” that the TVPRA’s civil remedy provision
applies to foreign conduct, the first step of the two-step test to determine
whether a federal statute applies extraterritorially is satisfied. See Nestlé
USA, 141 S. Ct. at 1936. “[A] finding of extraterritoriality at step one
will obviate step two’s ‘focus’ inquiry.” RJR Nabisco, 579 U.S. at 338
n.5; see also id. at 337–38 (explaining that it is only necessary to consider
a statute’s “focus” if the statute does not apply extraterritorially).
14 RATHA V. PHATTHANA SEAFOOD
First, the extraterritorial reach of § 1595 does not affect
this court’s subject matter jurisdiction. Although the parties
argue that the viability of Plaintiffs’ claims raises a
jurisdictional question, and the district court framed the issue
in similar terms, the Supreme Court has explained that
whether a statute applies abroad concerns “what conduct”
the statute prohibits, “which is a merits question.” Morrison
v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 253–54 (2010).
Subject matter jurisdiction, which “refers to a tribunal’s
power to hear a case,” “presents an issue quite separate from
the question whether the allegations the plaintiff makes
entitle him to relief.” Id. at 254 (internal quotation marks
omitted). Thus, our assumption that § 1595 may reach
extraterritorial conduct does not overstep this court’s
“adjudicatory domain.” See Union Pac. R.R. Co. v. Bhd. of
Locomotive Eng’rs, 558 U.S. 67, 81 (2009).
Second, we adhere to the “cardinal principle of judicial
restraint,” which instructs that “if it is not necessary to
decide more, it is necessary not to decide more.” Midbrook
Flowerbulbs Holland B.V. v. Holland Am. Bulb Farms, Inc.,
874 F.3d 604, 617 n.13 (9th Cir. 2017) (quoting PDK Lab’ys
Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment)). In
addition to any extraterritorial application otherwise
provided by law, § 1596 supplies extraterritorial application
to §§ 1581, 1583, 1584, 1589, 1590, and 1591, but only if
the alleged offender is a United States citizen, a lawful
permanent resident, or is present in the United States.
18 U.S.C. § 1596(a). As explained below, we hold that those
Therefore, we do not reach the second step of the extraterritoriality
framework and consider whether the case involves a permissible
domestic application of § 1595.
RATHA V. PHATTHANA SEAFOOD 15
requirements are not met with respect to Phatthana and
S.S. Frozen. 6
We therefore decline to decide whether § 1595 applies to
foreign conduct because whether it does or not, we are left
with the same result: we must affirm the district court’s
judgment in favor of Phatthana and S.S. Frozen. We will
assume in this case that § 1595 applies extraterritorially and
leave for another day the question of whether that
assumption is correct. Cf. Whitehouse v. Ill. Cent. R.R. Co.,
349 U.S. 366, 372–73 (1955) (“These are perplexing
questions. Their difficultly admonishes us to observe the
wise limitations on our function and to confine ourselves to
deciding only what is necessary to the disposition of the
immediate case.”).
B
We turn now to Plaintiffs’ claims that Phatthana and
S.S. Frozen trafficked them into Thailand and subjected
them to peonage, forced labor, and involuntary servitude at
their seafood processing factories. The question here is
whether Plaintiffs’ claims satisfy § 1596’s requirements for
extraterritorial application. We hold that Plaintiffs’ claims
against Phatthana fail because Phatthana was not “present in
the United States” at any time relevant to this lawsuit as
§ 1596 requires. Because the success of Plaintiffs’ claims
against S.S. Frozen depends on the success of their claims
6
Defendants do not dispute that Rubicon and Wales were “present
in” the United States for purposes of the TVPRA but instead, as we
discuss later, argue that Plaintiffs failed to raise triable issues on the
merits of their § 1595 claims against these Defendants.
16 RATHA V. PHATTHANA SEAFOOD
against Phatthana, Plaintiffs’ claims against S.S. Frozen also
fail. 7
The TVPRA, in § 1596, provides for extraterritorial
jurisdiction over §§ 1581, 1583, 1584, 1589, 1590, and
1591, when “an alleged offender is present in the United
States, irrespective of the nationality of the alleged
offender.” 18 U.S.C. § 1596(a)(2) (emphasis added). What
it means for “an alleged offender” to be “present in the
United States” is a question of statutory construction.
Therefore, we “begin by analyzing the statutory language,
‘assum[ing] that the ordinary meaning of that language
accurately expresses the legislative purpose.’” Hardt v.
Reliance Standard Life Ins., 560 U.S. 242, 251 (2010)
(alteration in original) (quoting Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 175 (2009)).
The plain meaning of the adjective “present” is “in a
particular place.” New Oxford American Dictionary 1381
(3d ed. 2010). Phatthana and S.S. Frozen are both Thai
companies. Neither had any address, employees, or physical
presence in the United States during the period at issue in
this case. Nonetheless, Plaintiffs argue that Phatthana and
S.S. Frozen were “present in” the United States for purposes
of § 1596 on three separate grounds. We find none of these
arguments persuasive.
1
Plaintiffs first maintain that we should construe the
phrase “present in,” as used in § 1596, to not require physical
7
Plaintiffs argue that S.S. Frozen was “present in” the United States
because S.S. Frozen and Phatthana were “alter egos” engaged in an
“integrated enterprise.” Plaintiffs’ claims against S.S. Frozen are
therefore dependent on their claims against Phatthana.
RATHA V. PHATTHANA SEAFOOD 17
presence. Plaintiffs argue that this term is broad and “is
understood to mean universal jurisdiction.” 8 They assert
that, even though “universal jurisdiction does not require
physical presence,” the Due Process Clause “imposes some
limits on the ability of the United States to exercise universal
jurisdiction.” Thus, Plaintiffs say, a foreign corporate
defendant is “present in” the United States so long as it has
the “minimum contacts” necessary to allow personal
jurisdiction under the Due Process Clause. 9 See Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945).
To support their position, Plaintiffs rely primarily on
United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991), but
that case hurts more than helps their argument. As relevant
here, the defendant in Yunis challenged his conviction under
the Hostage Taking Act, 18 U.S.C. § 1203, and argued that
8
“Universal jurisdiction” applies to “certain offenses recognized by
the community of nations as of universal concern, such as piracy, slave
trade, attacks on or hijacking of aircraft, genocide, war crimes, and
perhaps certain acts of terrorism.” Restatement (Third) of the Foreign
Relations Law of the United States § 404 (1987).
9
We do not decide whether Plaintiffs’ argument rests on a sound
premise. “The Due Process Clause requires that a defendant prosecuted
in the United States ‘should reasonably anticipate being haled into court
in this country.’” United States v. Shi, 525 F.3d 709, 722 (9th Cir. 2008)
(quoting United States v. Moreno-Morillo, 334 F.3d 819, 827 (9th Cir.
2003)). In contrast, “[u]niversal jurisdiction is based on the premise that
offenses against all states may be punished by any state where the
offender is found.” Id. (emphasis added). Thus, “[d]ue process does not
require a nexus between such an offender and the United States because
the universal condemnation of the offender’s conduct puts him on notice
that his acts will be prosecuted by any state where he is found.” Id. at 723
(emphasis added). Plaintiffs present no authority to support their
argument that the International Shoe definition of presence—i.e.,
minimum contacts—should be grafted into “universal jurisdiction,” and
then applied here to define “present in” for purposes of § 1596.
18 RATHA V. PHATTHANA SEAFOOD
the statute did not authorize jurisdiction over him because he
was not “found in” the United States. Id. at 1090; see also
18 U.S.C. § 1203(b)(1) (limiting extraterritorial application
of the Hostage Taking Act to three scenarios, one of which
being when “the offender is found in the United States”).
The D.C. Circuit rejected the defendant’s argument because
the Hostage Taking Act provided an independent basis for
jurisdiction. Id.Yunis discussed the “universal principle” theory of
international law, which authorizes states to prosecute
certain offenses that “the community of nations” recognizes
are of “universal concern,” including the slave trade, “even
absent any special connection between the state and the
offense.” Id. at 1091 (citing Restatement (Third) of the
Foreign Relations Law of the United States §§ 404, 423
(1987)). But Yunis considered the “universal principle” in a
context that differs from the one presently before this court.
See id. at 1090 (explaining the Hostage Taking Act covered
an offender’s conduct when “the offender is found in the
United States” (emphasis added) (quoting 18 U.S.C.
§ 1203)). The defendant in Yunis did not contend that the
statute’s use of the term “found in” indicated that physical
presence in the United States was not required; he instead
argued that he was not “found in” the United States because
he was brought here “by force.” Id.Contrary to Plaintiffs’ suggestion that Yunis supports an
interpretation of the term “present in” that does not require
physical presence, the court later analyzed a different statute
requiring an offender to be “present in” a specific territory,
and it concluded that the term “present in” has a parallel
meaning to the term “found in.” Id. at 1091–92. Thus, the
court held, the defendant was “present in” the United States
“once in the United States” physically. Id. at 1092. If
RATHA V. PHATTHANA SEAFOOD 19
anything, then, Yunis supports the conclusion that § 1596’s
use of the term “present in” requires physical presence, not
merely the types of minimum contacts that satisfy due
process.
Even assuming § 1596(a)(2) requires foreign companies
to possess nothing more than minimum contacts with the
United States, Plaintiffs have not established that Phatthana
or S.S. Frozen have sufficient contacts with the United
States to satisfy that standard. 10 “For a court to exercise
personal jurisdiction over a nonresident defendant” in a
manner consistent with the Due Process Clause, “that
defendant must have at least ‘minimum contacts’ with the
relevant forum such that the exercise of jurisdiction ‘does
not offend traditional notions of fair play and substantial
justice.’” Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797, 801 (9th Cir. 2004) (quoting Int’l Shoe Co.,
326 U.S. at 316). In the Ninth Circuit, we measure the extent
of a defendant’s contacts with a forum “at the time of the
events underlying the dispute.” Steel v. United States,
813 F.2d 1545, 1549 (9th Cir. 1987); accord Farmers Ins.
Exch. v. Portage La Prairie Mut. Ins., 907 F.2d 911, 913 (9th
Cir. 1990). “The strength of [the] contacts required depends
on which of the two categories of personal jurisdiction a
litigant invokes: specific jurisdiction or general
jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th
Cir. 2015).
10
To be clear, we engage in this analysis not to determine whether
we have personal jurisdiction over Phatthana and S.S. Frozen, but
because Plaintiffs argue that “present in,” as used in § 1596, “is limited
to a corporation’s place of incorporation, principal place of business, or
where it is subject to specific jurisdiction.”
20 RATHA V. PHATTHANA SEAFOOD
“Specific jurisdiction exists when a case ‘aris[es] out of
or relate[s] to the defendant’s contacts with the forum.” Id.
(alterations in original) (quoting Helicopteros Nacionales de
Colom., S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)). It
therefore “depends on an affiliation between the forum and
the underlying controversy, principally, activity or an
occurrence that takes place in the forum [ ] and is therefore
subject to the [forum’s] regulation.” Id. (quoting Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011)).
General jurisdiction is not limited to claims arising out
of or relating to the forum but rather “permits a court to hear
‘any and all claims’ against a defendant, whether or not the
conduct at issue has any connection to the forum.” Id.(quoting Goodyear, 564 U.S. at 919). Because the scope of
general jurisdiction, once established, is broader than the
scope for specific jurisdiction, “a plaintiff invoking general
jurisdiction must meet an ‘exacting standard’ for the
minimum contacts required.” Id. at 1069 (quoting
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1074 (9th Cir. 2011)). Courts may exercise general
jurisdiction over a defendant only if the defendant’s
connections to the forum state “are so ‘continuous and
systematic’ as to render [it] essentially at home” in the
forum. Williams v. Yamaha Motor Co., 851 F.3d 1015, 1020
(9th Cir. 2017) (alteration in original) (quoting Goodyear,
564 U.S. at 919). The paradigmatic examples of such
connections are when the defendant is incorporated or has its
principal place of business in the forum. Id.The evidence in the record here does not support either
specific or general jurisdiction as a basis for finding
minimum contacts. To establish specific jurisdiction, three
requirements must be satisfied. Axiom Foods, Inc. v.
RATHA V. PHATTHANA SEAFOOD 21
Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017).
First, “the defendant must either ‘purposefully direct his
activities’ toward the forum or ‘purposefully avail[ ] himself
of the privileges of conducting activities in the forum.’” Id.(quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th
Cir. 2002)). Second, “the claim must be one which arises
out of or relates to the defendant’s forum-related activities.”
Id. (quoting Dole Food, 303 F.3d at 1111). And third, “the
exercise of jurisdiction must comport with fair play and
substantial justice, i.e. it must be reasonable.” Id. (quoting
Dole Food, 303 F.3d at 1111). We will consider only the
first element of specific jurisdiction because it presents the
dispositive issue.
Because the TVPRA’s “civil remedy provision creates a
cause of action that sounds in tort,” Ditullio, 662 F.3d
at 1096, “we employ the purposeful direction test” derived
from Calder v. Jones, 465 U.S. 783 (1984), see Axiom
Foods, 874 F.3d at 1069. To satisfy the purposeful direction
test, the defendant must have “(1) committed an intentional
act, (2) expressly aimed at the forum state, (3) causing harm
that the defendant knows is likely to be suffered in the forum
state.” Schwarzenegger, 374 F.3d at 805 (quoting Dole
Food, 303 F.3d at 1111). 11
Here, Plaintiffs have not satisfied the purposeful
direction prong of the minimum contacts analysis. They
primarily point to Rubicon’s order of fourteen containers of
shrimp from Phatthana’s Songkhla factory for distribution in
11
Although the third prong of the purposeful direction inquiry and
the “arise out of or relate to” inquiry are two different steps in the
minimum contacts analysis, they are closely related. Satisfying the
purposeful direction analysis will often satisfy the “arise out of or relate
to” requirement as well. See Dole Food, 303 F.3d at 1114.
22 RATHA V. PHATTHANA SEAFOOD
the United States to Walmart. Walmart ultimately rejected
that shipment because it had concerns about working
conditions in the Thai factory, and Rubicon returned the
shrimp to Thailand. Plaintiffs also point to deposition
testimony, emails, and a public database to suggest
Phatthana sold shrimp to buyers in the United States through
importers other than Rubicon, but those documents
generally do not specify any particular sales, the dates of
such sales, or the factories of origin. 12
Assuming Phatthana’s attempt to sell shrimp to
Walmart, and some other sales to entities in the United
States, constituted intentional acts expressly aimed at the
United States, Plaintiffs have produced no evidence
suggesting that those sales caused “harm that [Phatthana]
[knew was] likely to be suffered in the” United States.
Schwarzenegger, 374 F.3d at 805 (quoting Dole Food,
303 F.3d at 1111). Plaintiffs’ evidence thus does not show
that Phatthana or S.S. Frozen purposefully directed their
activities to the United States in the sense required to
establish specific personal jurisdiction over a personal injury
claim. 13
12
The only document that provides dates and origins of shrimp
shipments is an excerpt from a Human Rights Watch report containing a
screenshot of an online database. This screenshot does not include any
shipments from Phatthana’s Songkhla factory during the relevant period.
13
This conclusion still follows even if Phatthana’s sales to the
United States were more extensive than Plaintiffs’ evidence suggests
because a larger sales footprint in the United States would not change
the fact that the harm caused by Defendants’ alleged TVPRA violations
was not suffered in the United States. See Schwarzenegger, 374 F.3d
at 805.
RATHA V. PHATTHANA SEAFOOD 23
As for Plaintiffs’ general jurisdiction argument,
Phatthana and S.S. Frozen are not incorporated in the United
States, and Plaintiffs have not shown—much less argued—
that the United States is their principal place of business, or
that their contacts “are so ‘continuous and systematic’ as to
render them essentially at home in the” United States.
Goodyear, 564 U.S. at 919 (quoting Int’l Shoe Co., 326 U.S.
at 317). Thus, even assuming the phrase “present in,” as
used in § 1596, requires only minimum contacts with the
United States, Plaintiffs have not demonstrated that
Phatthana and S.S. Frozen have the contacts needed to
satisfy that standard.
2
We next consider Plaintiffs’ second argument—that
Phatthana and S.S. Frozen were present in the United States
through an agency relationship or joint venture with
Rubicon—and conclude it is unconvincing.
Plaintiffs assert that Phatthana is “present in” the United
States for purposes of § 1596 because Rubicon, which is
present in the United States acted as Phatthana’s agent. The
district court properly rejected this argument. An agent
under California law is “one who represents another, called
the principal, in dealings with third persons.” Cal. Civ. Code
§ 2295. “Agency requires that the principal maintain control
over the agent’s actions,” Murphy v. DirecTV, Inc., 724 F.3d
1218, 1232 (9th Cir. 2013), and generally, “[a] purchaser is
not ‘acting on behalf of’ a supplier in a distribution
relationship in which goods are purchased from the supplier
for resale,” id. (quoting Restatement (Third) of Agency
§ 1.01 cmt. g (2006)).
Plaintiffs contend that Rubicon’s marketing activities,
on-site visits to Phatthana’s factories, management of the
24 RATHA V. PHATTHANA SEAFOOD
importation and shipping of Phatthana products, and
management of customer relations establish an agency
relationship between Rubicon and Phatthana. But none of
the evidence in the record supports the inference that
Phatthana exercised control over Rubicon’s purchasing,
marketing, sales, and customer-relations activities, or that
Phatthana’s relationship with Rubicon was anything more
than a purchaser-supplier relationship. While it is true that
Rubicon was registered as Phatthana’s “agent” with the Food
and Drug Administration (“FDA”), such an agent acts
merely “as a communications link between FDA and the
foreign facility for both emergency and routine
communications.” 21 C.F.R. § 1.227. This narrowly
delineated relationship under federal regulations does not
show that Phatthana exercised the control over Rubicon
necessary to establish a general agency relationship.
Plaintiffs’ agency-based argument therefore fails.
Plaintiffs further maintain that Phatthana was present in
the United States because it and Rubicon were engaged in a
joint venture to market and sell shrimp in the United States.
This argument fails largely for the same reasons Plaintiffs’
agency argument fails.
To establish a joint venture under California law,
Plaintiffs must show “an agreement between the parties
under which they have a community of interest, that is, a
joint interest, in a common business undertaking, an
understanding as to the sharing of profits and losses, and a
right of joint control.” Connor v. Great W. Sav. & Loan
Ass’n, 447 P.2d 609, 615 (Cal. 1968) (quoting Holtz v.
United Plumbing & Heating Co., 319 P.2d 617, 620 (Cal.
1957)); accord Ramirez v. Long Branch Unified Sch. Dist.,
129 Cal. Rptr. 2d 128, 137 (Cal. Ct. App. 2002). To support
their joint venture argument, Plaintiffs rely on the same
RATHA V. PHATTHANA SEAFOOD 25
evidence they cited to support their agency-based claim. As
explained, that evidence establishes only that Rubicon and
Phatthana were engaged in a purchaser-supplier
relationship; it does not create a triable issue that Rubicon
and Phatthana would share profits and losses or would be
subject to joint control.
To the contrary, the limited liability company agreement
creating Rubicon states that Rubicon was formed as a joint
venture between Brian Wynn (the CEO and manager of
Rubicon), Wales, Thailand Fishery Cold Storage Public Co.
(whose share in Rubicon was later transferred to another
company), and P&M Holding Co.; that those four entities
would share in Rubicon’s net income and losses; and that
Wynn had “exclusive authority to manage the operations and
affairs of” Rubicon. Neither the original agreement nor its
subsequent amendments identifies Phatthana as a member of
the joint venture.
Plaintiffs rely on filings by “Rubicon Group” submitted
to the Commerce Department as part of an antidumping
proceeding. 14 The “Rubicon Group” is not synonymous
with Rubicon Resources, LLC, but rather is the term used in
a Commerce Department antidumping proceeding to
describe a collection of “affiliated firms, collapsed for
[antidumping] analysis pursuant to 19 C.F.R. § 351.401(f).”
See Pakfood Pub. Co. v. United States, 724 F. Supp. 2d 1327,
1333 n.3 (Ct. Int’l Trade 2010). Plaintiffs asserts that those
14
Antidumping laws “address harm to domestic manufacturing from
foreign goods sold at an unfair price” by imposing a duty on imports.
United States v. Eurodif S. A., 555 U.S. 305, 310–11 (2009).
Antidumping proceedings, like the one referred to here, involve the
government’s determination of the duty rates for certain kinds of
imports. See Certain Frozen Warmwater Shrimp from Thailand, 74 Fed.
Reg. 47,551-02, 47,551 (Sept. 16, 2009).
26 RATHA V. PHATTHANA SEAFOOD
Commerce Department filings show that Phatthana, as well
as other Thai shrimp companies, were “subgroup” members
of the Thailand Fishery Cold Storage group, which in turn
was a member of the Rubicon Group. The filings state that
“a company within each Rubicon subgroup,” including the
signatories to the Rubicon joint venture agreement, “is a
Member (or partner) of Rubicon Resources, and holds a [ ]%
interest in the company,” and that “each Rubicon subgroup
encompasses the individual Rubicon Group companies,”
including Phatthana, which is thereby “integrated into the
Rubicon Group business structure.”
At most, these filings confirm that there is a joint venture
relationship between the entities named as members of
Rubicon Resources in the Rubicon joint venture agreement
and that there is some relationship between at least one of
those entities and Phatthana. But neither these filings nor
Plaintiffs’ briefs explain what it means for Phatthana to be
“integrated” into the overall Rubicon Group business
structure, or what it means that a Rubicon subgroup
“encompasses” a sub-subgroup such as Phatthana. Plaintiffs
offers no evidence of any direct agreement between Rubicon
and Phatthana regarding the sharing of profits and losses or
a joint right of control. In light of the existence of a Rubicon
joint venture agreement that does not include Phatthana, as
well as the evidence that Rubicon and Phatthana’s
relationship was that of a purchaser and a supplier, these
Commerce Department filings alone cannot support the
inference that Phatthana and Rubicon were engaged in a
joint venture.
3
Plaintiffs’ third argument also falls short. Focusing on
the phrase “an alleged offender” as used in § 1596, Plaintiffs
contend that § 1596 is satisfied so long as one of the
RATHA V. PHATTHANA SEAFOOD 27
defendants involved in the case meets the statutory criteria.
But even if this novel interpretation is sound (and we doubt
that it is), we conclude below that the district court correctly
entered summary judgment on Plaintiffs’ claims against
Rubicon and Wales. Consequently, there are no other
defendants besides Phatthana and S.S. Frozen left to satisfy
§ 1596’s requirements, and as we have explained, neither of
those Defendants meet § 1596’s demands. 15
* * *
Plaintiffs have not raised a triable issue that Phatthana
and S.S. Frozen were “present in the United States,” as
required by 18 U.S.C. § 1596(a)(2), and thus they have not
established that their § 1595 claims against these Defendants
involve a permissible extraterritorial application of the
TVPRA. We therefore affirm the district court’s entry of
summary judgment in favor of Phatthana and S.S. Frozen.
15
Plaintiffs also contend that they assert a “wholly domestic basis
for subject matter jurisdiction” based on a “domestic benefit” arising
from Phatthana’s alleged sales to customers in the United States other
than through Rubicon. To support this theory, Plaintiffs rely on cases in
which defendants residing in the United States benefitted from illegal
conduct that took place abroad. See Steele v. Bulova Watch Co.,
344 U.S. 280, 281, 285–86 (1952) (trademark infringement and unfair
competition “consummated in a foreign country by a citizen and resident
of the United States”); Vaughan v. Aegis Commc’ns Grp., 49 F. Supp.
3d 613, 616, 623 (W.D. Mo. 2014) (corporate defendants based in the
United States “benefited in the U.S.” from forced labor “performed in
India”). But as explained, Phatthana and S.S. Frozen were in no way
present in the United States, and thus they did not “benefit in the United
States.” Further, Plaintiffs seek to apply § 1595 “to events occurring and
injuries suffered outside the United States.” RJR Nabisco, 579 U.S.
at 329. Therefore, absent any domestic presence or domestic benefit,
their claims fall squarely within the Supreme Court’s definition of
extraterritoriality. See id.
28 RATHA V. PHATTHANA SEAFOOD
C
We next consider Plaintiffs’ claims against Rubicon and
Wales. Plaintiffs allege that Rubicon and Wales knowingly
benefitted from Phatthana’s alleged human trafficking and
forced labor abuses, financially and by accessing a steady
stream of imported seafood. We conclude that summary
judgment for these Defendants was appropriate because
Plaintiffs failed to produce evidence establishing a triable
issue of Rubicon’s or Wales’s liability under § 1595.
In § 1595, Congress extended a private right of action to
victims of substantive violations of the TVPRA, allowing
them to sue the direct perpetrator and anyone who
“knowingly benefits, financially or by receiving anything of
value from participation in a venture which that person knew
or should have known has engaged in an act in violation of”
the TVPRA. 18 U.S.C. § 1595(a). Neither Rubicon nor
Wales are alleged to have perpetrated any TVPRA violations
against Plaintiffs. Thus, to withstand Defendants’ motions
for summary judgment, Plaintiffs needed to present evidence
creating a triable issue on whether Rubicon or Wales:
(1) knowingly benefitted, (2) from participation in a venture
(in this case with Phatthana), (3) which they knew or should
have known was engaged in conduct that violated the
TVPRA. Id. If Plaintiffs failed to raise a triable issue on any
of these elements, we need not consider the rest.
We separately address the claims against Rubicon and
the claims against Wales. We first explain why no
reasonable jury could infer from the evidence that Rubicon
benefitted, financially or otherwise, from Phatthana’s
alleged TVPRA violations. We then explain why Plaintiffs
have not raised a triable issue on whether Wales knew or
should have known that Phatthana was engaged in alleged
RATHA V. PHATTHANA SEAFOOD 29
violations of the TVPRA when it received a benefit from the
alleged venture.
1
Plaintiffs assert that there is “sufficient evidence” that
Rubicon benefitted from Phatthana’s alleged TVPRA
violations. They point to three distinct benefits that Rubicon
allegedly obtained from its relationship with Phatthana. But
none of those allegations presents a triable issue of material
fact.
Plaintiffs first argue that Rubicon “benefitted from
marketing the shrimp produced by Phatthana.” They point
to materials stating that “Rubicon has 13 factories,”
including Phatthana’s Songkhla factory, “that are 100%
owned and captive to Rubicon Resources.” But the page
touting Rubicon’s production capabilities and a “Factory
Index” that includes the Songkhla factory are undated. And
Plaintiffs have offered no evidence or explanation of the
purpose of these materials, when they were produced, or
when (or even whether) they were distributed to potential
customers. Moreover, Plaintiffs’ argument rests on
Rubicon’s marketing role, not on any ownership or
production role. We thus find these materials insufficient for
a reasonable jury to infer that Rubicon benefitted from its
alleged marketing of Phatthana’s products.
We reject Plaintiffs’ second argument—that Rubicon
obtained a “competitive advantage” through its association
with Phatthana—for a similar reason. Plaintiffs point to
“[d]eclarations from Louisiana shrimpers attest[ing] to the
competitive advantage and the impact on American
industry” of the Thai shrimp industry. But these general
statements from American shrimpers about international
market conditions do not suggest that Rubicon benefitted
30 RATHA V. PHATTHANA SEAFOOD
from its alleged venture with Phatthana. Therefore, we find
the declarations insufficient to present a genuine dispute of
material fact.
Perhaps realizing these deficiencies, Plaintiffs advance a
third argument: that an attempt to benefit satisfies
§ 1595(a)’s “knowingly benefits” requirement. We
disagree. The text of § 1595 does not extend liability to
those who attempt to benefit from a venture. See 18 U.S.C.
§ 1595(a). And we cannot read the word “attempt” into
§ 1595 without violating “a fundamental principle of
statutory interpretation that ‘absent provision[s] cannot be
supplied by the courts.’” Rotkiske v. Klemm, 140 S. Ct. 355,
360–61 (2019) (alteration in original) (quoting Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 94 (2012)).
Moreover, Congress’s decision to impose civil liability
on those who “benefit” but not those who “attempt to
benefit” is significant because attempt liability is plainly
authorized elsewhere in the TVPRA. See, e.g., 18 U.S.C.
§ 1594(a) (“Whoever attempts to violate section 1581, 1583,
1584, 1589, 1590, or 1591 shall be punishable in the same
manner as a completed violation of that section.”). 16 When
“Congress uses certain language in one part of a statute and
different language in another, it is generally presumed that
Congress acts intentionally.” Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 544 (2012). Had Congress intended
to create civil liability under § 1595 for attempts to benefit,
16
We find Plaintiffs’ citation to § 1594, without explanation,
unconvincing. Section 1594 speaks to who might be a “perpetrator” of
a TVPRA violation under § 1595(a). But it does not suggest that an
attempt to benefit from a perpetrator’s TVPRA violation would establish
liability under § 1595(a).
RATHA V. PHATTHANA SEAFOOD 31
we can reasonably conclude that it would have done so in
express terms. We therefore hold that the phrase “knowingly
benefits” as used in § 1595(a) does not encompass attempts
to benefit. Consequently, Plaintiffs’ assertion that “[i]t is
undisputed that Rubicon attempted to sell” fourteen
containers of Phatthana shrimp fails to raise a triable issue of
material fact. We therefore affirm the district court’s grant
of summary judgment in Rubicon’s favor.
2
Turning to Plaintiffs’ claims against Wales, we conclude
that Plaintiffs failed to present evidence to support a
reasonable inference that Wales knew or should have known
that Phatthana was engaged in conduct violating the TVPRA
when it received a benefit from the alleged venture. Wales
admits that on February 23, 2012, it became aware of a news
article published in the Phnom Penh Post detailing
allegations from Plaintiff Ratha’s whistleblower report. 17 In
light of this admission, we bifurcate our analysis into the
periods before and after February 23, 2012. We first
conclude that Plaintiffs have not presented a triable issue on
whether Wales knew or should have known of Phatthana’s
alleged TVPRA violations before February 23, 2012. We
then conclude that Plaintiffs have not presented a triable
issue on whether Wales benefitted from the alleged venture
on or after February 23, 2012.
a
We first consider whether a reasonable factfinder could
infer from the evidence that Wales knew or should have
17
We assume without deciding that Wales possessed actual
knowledge of the alleged violations on and after February 23, 2012.
32 RATHA V. PHATTHANA SEAFOOD
known of the alleged labor abuses at Phatthana’s Songkhla
factory between August 2010 (when the factory started
operating) and February 22, 2012 (the day before Rubicon
was undisputedly aware of Ratha’s whistleblower report).
Plaintiffs argue that Wales “received industry-specific,
country-specific, and Defendant-specific information
sufficient to put any reasonable party on notice” that labor
abuses were occurring at the Songkhla factory “well before”
the allegations in Ratha’s whistleblower report were
published in February 2012. They point to reports and
articles about labor abuses generally in Thailand, as well as
their retained experts’ reports, to substantiate their claims.
As we explain in the following sections, this evidence
falls short of creating a genuine dispute of material fact on
whether Wales knew or should have known of Phatthana’s
alleged TVPRA violations before February 2012. “[T]he
phrase ‘knew or should have known’ usually connotes
negligence.” Mayview Corp. v. Rodstein, 620 F.2d 1347,
1358 (9th Cir. 1980). And “[n]egligence is a less culpable
mental state than actual knowledge . . . or recklessness.”
Erickson Prods., Inc. v. Kast, 921 F.3d 822, 833 (9th Cir.
2019). Assuming § 1595 imposes a negligence standard,
Plaintiffs’ evidence suggests, at most, that Wales should
have known of labor abuses in the Thai shrimp industry
generally. Sweeping generalities about the Thai shrimp
industry are too attenuated to support an inference that
Wales knew or should have known of the specifically
alleged TVPRA violations at the Songkhla factory between
2010 and 2012.
i
Plaintiffs first point to evidence generally establishing
that abusive labor practices were common in Thailand,
particularly in the shrimp industry. They rely upon the 2009
RATHA V. PHATTHANA SEAFOOD 33
edition of The Department of Labor’s List of Goods
Produced by Child Labor or Forced Labor, which identified
the Thai shrimp industry on a list of 58 countries and
122 goods having a “significant incidence of child labor and
forced labor in the production of certain goods.” But as this
report itself cautions, “a listing of any particular good and
country does not indicate that all production of the good in
that country involves forced labor or child labor, but rather
that there is a significant incidence” of such conduct in that
country’s industry. And the report makes clear that
identifying “specific firms or individuals using child labor or
forced labor” is beyond its mandate. The identification of
child labor and forced labor as a general problem in the Thai
shrimp industry, before the relevant time period, sheds little
light on whether labor abuses were occurring at Phatthana’s
Songkhla factory, let alone whether Wales knew or should
have known of such abuses.
Plaintiffs’ reliance on a January 2008 report from the
AFL-CIO’s Solidarity Center, The Degradation of Work:
The True Cost of Shrimp, is likewise insufficient to
overcome their burden at summary judgment. The only
reference to Phatthana in this forty-page report appears in a
section addressing whether Thai seafood workers earned
minimum wage (191 baht per day, as an industry source
estimated). The report includes the following statement
based on information from a 2005 interview with a worker
at a different Phatthana factory: “[A] pay stub from a worker
at the Pattana [sic] Seafood Company in Samut Sakhon
showed a reported pay of 191 baht per day, but daily take-
home pay was closer to 160 baht after deductions for
equipment and permits.” But Plaintiffs offer no argument or
evidence that would allow a reasonable jury to conclude that
this reference to one worker’s statement, concerning wages
at an entirely different processing facility, long before the
34 RATHA V. PHATTHANA SEAFOOD
time period at issue, should have put Wales on notice that it
was working with entities engaged in TVPRA violations. 18
Plaintiffs assert that news reports referencing the
Solidarity Center Report, published between April and June
2008, “identif[ied] Rubicon’s customers as the consumers”
of shrimp produced in Thailand. Plaintiffs are correct that
one of these articles identified “nine big U.S. supermarket
chains” that “sell[ ] Thai shrimp in the U.S.,” including
Walmart, one of Rubicon’s customers. Another article
identified Walmart as a retailer that imports shrimp from
Thailand. This article, however, also stated that the
Solidarity Center report “makes clear not all shrimp imports
into the United States from Thailand and Bangladesh come
from problem plants.” These articles do not identify any
Thai companies, much less Phatthana, as a bad actor
engaged in labor abuses, and they do not state that Walmart
or any of the other U.S. supermarket chains were selling
shrimp produced by forced labor. Therefore, these articles
establish nothing more than reported labor abuses in
Thailand in 2008 and that some U.S. supermarkets were
selling shrimp produced in Thailand. This evidence cannot
support a reasonable inference of Wales’s knowledge of
18
Plaintiffs point to an April 2008 article in the Bangkok Post as
evidence that Wales knew of the Solidarity Center report because its
CEO, who was quoted in the article in his role as President of the Thai
Frozen Foods Association, said “the accusations in the report were based
on old information and lack of evidence.” But this article establishes
only that in 2008, two years before the Phatthana factory in Songkhla
opened, Wales and other members of the Thai Frozen Foods Association
knew that there were labor abuses in the Thai seafood industry. It does
not support a reasonable inference that Wales knew of alleged labor
abuses years later at the Phatthana factory in Songkhla.
RATHA V. PHATTHANA SEAFOOD 35
alleged labor abuses at the Songkhla factory between 2010
and 2012.
Finally, Plaintiffs cite pages excerpted from the 2010,
2011, and 2012 editions of the U.S. Department of State’s
Trafficking in Persons Report. These reports also fail to
include any company-specific information and do not
mention Phatthana. Instead, they include Thailand on the
Tier Two Watch List and contain general statements about
labor abuses in Thailand and the Thai government’s
response to those problems. The reports thus do not support
a reasonable inference of Wales’s knowledge of labor abuses
at the Songkhla factory from 2010 to 2012.
We conclude that the reports and articles Plaintiffs have
identified are insufficient to create a triable issue of fact on
Wales’s knowledge of Phatthana’s alleged labor abuses
before February 2012.
ii
Plaintiffs further argue that a reasonable factfinder could
infer that Wales negligently failed to investigate whether
Phatthana was engaging in labor abuses at the Songkhla
factory given the prevalence of labor abuses in the Thai
seafood industry. To support this argument, Plaintiffs rely
on reports from their retained experts, Luis DeBaca, Marc
Bendick, and Samir Goswami. 19 We consider these reports
in turn.
19
Although the expert reports focus primarily on what Rubicon
knew or should have known about the alleged labor abuses, Plaintiffs
assert, and at least one report acknowledges, that Rubicon and Wales had
intertwined ownership. Because we must construe the evidence in the
light most favorable to Plaintiffs and draw all justifiable inferences in
36 RATHA V. PHATTHANA SEAFOOD
We find the DeBaca report to be irrelevant to the period
before February 23, 2012, because it addresses the adequacy
of investigations after February 23, 2012, and it only opines
in generalities about the 2010 to 2012 timeframe. For
example, the report concludes that Wales was “on notice in
2010 . . . that . . . the seafood industry in Thailand was
considered a ‘hot spot’ for human trafficking in all its
forms.” But these are the “type[s] of conclusory
allegation[s]” we have “found insufficient to withstand [a]
motion for summary judgment.” Broussard v. Univ. of Cal.,
at Berkeley, 192 F.3d 1252, 1259 (9th Cir. 1999).
The Bendick and Goswami reports do opine on the issue
at hand, but they are not helpful because they rely on the
same generalized evidence of country conditions that we
have already determined is insufficient to create a triable
issue of material fact. Although the Bendick report
explicitly focuses on the 2010–2012 period, its conclusions
are generalities based on unsupported assumptions. It states,
for example, that Rubicon’s senior management “can be
assumed to have been fully aware of how prevalent were
labor practices such as are alleged at Songkhla,” and that
Phatthana would have “routinely shared information with
Rubicon on production issues [and] labor matters including
those involving migrant workers would inevitably be part of
that information.” The report also lists several ways in
which audits of the Songkhla factory in 2011 and 2012 did
not meet certain standards, but never opines that such audits
were even necessary under the circumstances or that a
business’s failure to conduct such audits would be negligent.
their favor, we consider these reports to assess whether there is a triable
issue that Wales knew or should have known about Phatthana’s alleged
TVPRA violations.
RATHA V. PHATTHANA SEAFOOD 37
Similarly, the Goswami report states, without identifying
any time period, that the lack of “provisions on forced labor”
in purchase orders from Rubicon and Wales “fell short of
industry standards at the time” and that Rubicon “did not
meet industry standards” in its audits and investigations. But
the report does not offer any factual basis for its conclusory
statements about “industry standards.” It therefore fails to
raise a genuine issue of material fact. See Walton v. U.S.
Marshals Serv., 492 F.3d 998, 1008 (9th Cir. 2007) (holding
that an expert affidavit failed to create a factual dispute
because the expert did “not state a factual basis for his
opinion”); see also Broussard, 192 F.3d at 1259.
In sum, Plaintiffs’ expert reports fail to bridge the gap
between their generalized evidence of labor conditions in the
Thai shrimp industry and the specific allegations that Wales
knew or should have known of the alleged labor abuses at
Phatthana’s Songkhla factory before February 23, 2012. 20
We therefore affirm the district court’s entry of summary
judgment in favor of Wales on Plaintiffs’ claims predating
February 23, 2012.
b
We now turn to Plaintiffs’ claims against Wales to the
extent they arise from conduct occurring after February 23,
2012. As previously noted, we assume here that the
evidence supports a finding that Wales knew of the
20
Although “[i]t is undisputed that Rubicon engaged Wales to
inspect Phatthana’s facilities,” the record nowhere indicates whether or
when Wales inspected any of Phatthana’s factories, let alone the
Songkhla factory. Rather, Wales maintains, and the evidence in the
record suggests, that Wales’s actual role was limited to inspecting
products Phatthana shipped to the United States, not the factory
conditions where Phatthana’s products were processed.
38 RATHA V. PHATTHANA SEAFOOD
complained-of TVPRA violations at the Phatthana factory
after February 23, 2012, when Wales admits it received a
copy of the article describing Ratha’s allegations. Therefore,
we must ask whether, construing the evidence in the light
most favorable to Plaintiffs, there is a triable issue that Wales
“knowingly benefit[ted] . . . from participation in” its alleged
venture with Phatthana after February 23, 2012. See
18 U.S.C. § 1595(a). We conclude there is not.
The only benefit Wales obtained from its alleged venture
with Phatthana is a commission “for product inspection
services rendered in connection with shrimp ordered by
Rubicon and processed at Phatthana’s Songkhla factory.”
The purchase orders for those containers of shrimp are dated
October 13, 14, and 31, 2011, and include shipping dates
ranging from October 2011 to December 2011. Thus,
Wales’s inspection of shrimp “destined for the U.S.”
apparently occurred before the product left Thailand, and
therefore before February 23, 2012.
Plaintiffs point to no facts that would support a
reasonable inference that Wales inspected those shipments
on or after February 23, 2012, or that Wales otherwise
benefitted from the alleged venture after it became aware of
Ratha’s allegations. To be sure, Wales’s president declared
that the inspection services took place “in late 2011–early
2012.” Although that statement may be consistent with the
possibility that Wales knowingly benefitted from the alleged
venture after it learned of Ratha’s allegations, we find the
statement, without more, to be “insufficient to allow a
reasonable juror to conclude that [Plaintiffs’] position more
likely than not is true.” Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 596 (1993); see also Brit. Airways Bd. v.
Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) (“A mere
scintilla of evidence will not do, for a jury is permitted to
RATHA V. PHATTHANA SEAFOOD 39
draw only those inferences of which the evidence is
reasonably susceptible; it may not resort to speculation.”).
Because the payment for inspection services is the only
benefit Plaintiffs allege Wales received during the relevant
time period, and the evidence is insufficient to create a
triable issue that this occurred after February 23, 2012, we
affirm the district court’s summary judgment in favor of
Wales.
IV
Finally, we consider whether the district court abused its
discretion by denying Plaintiffs’ motion for an extension of
time to respond to Defendants’ motions for summary
judgment. Relying on Ahanchian, 624 F.3d at 1257–60,
Plaintiffs argue that the district court abused its discretion by
denying their motion because the Thanksgiving holiday
effectively reduced their limited response time to three
business days and Defendants’ motions were accompanied
by hundreds of pages of documents. But the circumstances
here are significantly different from those presented in
Ahanchian and do not support Plaintiffs’ claims of prejudice.
In Ahanchian, the plaintiff filed his opposition to a
motion for summary judgment three days after the filing
deadline with a motion for the court to accept the late filing.
Id. at 1257. The district court denied the plaintiff’s motion
to file his opposition. Id. It then granted the defendant’s
motion for summary judgment after “review[ing] only the
defense evidence, even though it knew the opposition papers
were already filed,” id. at 1258, and awarded significant
attorney’s fees to defense counsel, id. at 1255, 1257–58. We
concluded that the district court abused its discretion and
“effectively flouted” Ninth Circuit precedent, which “bars
40 RATHA V. PHATTHANA SEAFOOD
. . . granting summary judgment simply because a party fails
to file an opposition or violates a local rule.” Id. at 1258.
Here, in contrast to the circumstances in Ahanchian,
Plaintiffs have not shown that the district court flouted
precedent or that they were prejudiced by the district court’s
order denying their motion for an extension. Plaintiffs argue
that they were prejudiced because they were rushed in
preparing their responses and omitted exhibits from their
separate statement of facts. But Plaintiffs stipulated to the
motion deadline. And Plaintiffs filed a notice of errata and
supplemented their separate statement of facts with
additional exhibits they had inadvertently omitted.
Critically, unlike in Ahanchian, Plaintiffs do not assert that
the district court refused to consider any evidence or
arguments they submitted in their opposition to summary
judgment. Thus, notwithstanding any stringent case
management deadlines the Central District of California may
impose in accordance with its local rules, the district court’s
order denying Plaintiffs’ motion for an extension was not an
abuse of discretion.
V
The district court did not err by entering summary
judgment for Defendants. And the district court did not
abuse its discretion by denying Plaintiffs’ motion for an
extension of time. 21
AFFIRMED.
21
Defendants’ Motion to Take Judicial Notice is DENIED.