Luis Mujica v. Airscan Inc. , 771 F.3d 580 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ALBERTO GALVIS MUJICA, on No. 10-55515
behalf of himself and as
representative of the Estates of D.C. No.
Tereza Mujica Hernan, Edilma Leal 2:03-cv-02860-
Pacheco and Johanny Hernandez GW-JWJ
Becerra; MARIO GALVIS GELVEZ, on
behalf of himself, individually, and
as heir of the decedents Tereza
Mujica Hernandez, Edilma Leal
Pacheco and Johanny Hernandez
Becerra; JOHN MARIO GALVIS
MUJICA, through his guardian ad
litem and on behalf of himself,
individually, and as heir of the
decedents Tereza Mujica Hernandez,
Edilma Leal Pacheco and Johanny
Hernandez Becerra,
Plaintiffs-Appellees,
v.
AIRSCAN INC.,
Defendant-Appellant,
____________________________
OCCIDENTAL PETROLEUM
CORPORATION,
Defendant,
2 MUJICA V. AIRSCAN
UNITED STATES OF AMERICA,
Movant.
LUIS ALBERTO GALVIS MUJICA, on No. 10-55516
behalf of himself and as
representative of the Estates of D.C. No.
Tereza Mujica Hernan, Edilma Leal 2:03-cv-02860-
Pacheco and Johanny Hernandez GW-JWJ
Becerra; MARIO GALVIS GELVEZ, on
behalf of himself, individually, and
as heir of the decedents Tereza
Mujica Hernandez, Edilma Leal
Pacheco and Johanny Hernandez
Becerra; JOHN MARIO GALVIS
MUJICA, through his guardian ad
litem and on behalf of himself,
individually, and as heir of the
decedents Tereza Mujica Hernandez,
Edilma Leal Pacheco and Johanny
Hernandez Becerra,
Plaintiffs-Appellees,
v.
OCCIDENTAL PETROLEUM
CORPORATION,
Defendant-Appellant,
____________________________
AIRSCAN INC.,
Defendant,
MUJICA V. AIRSCAN 3
UNITED STATES OF AMERICA,
Movant.
LUIS ALBERTO GALVIS MUJICA, on No. 10-55587
behalf of himself and as
representative of the Estates of D.C. No.
Tereza Mujica Hernan, Edilma Leal 2:03-cv-02860-
Pacheco and Johanny Hernandez GW-JWJ
Becerra; MARIO GALVIS GELVEZ, on
behalf of himself, individually, and
as heir of the decedents Tereza OPINION
Mujica Hernandez, Edilma Leal
Pacheco and Johanny Hernandez
Becerra; JOHN MARIO GALVIS
MUJICA, through his guardian ad
litem and on behalf of himself,
individually, and as heir of the
decedents Terza Mujica Hernandez,
Edilma Leal Pacheco and Johanny
Hernandez Becerra,
Plaintiffs-Appellants,
v.
OCCIDENTAL PETROLEUM
CORPORATION; AIRSCAN INC.,
Defendants-Appellees,
and
UNITED STATES OF AMERICA,
Movant.
4 MUJICA V. AIRSCAN
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
March 5, 2014—Pasadena, California
Filed November 12, 2014
Before: Jay S. Bybee and Sandra S. Ikuta, Circuit Judges,
and Thomas S. Zilly, Senior District Judge.*
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Zilly
*
The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by
designation.
MUJICA V. AIRSCAN 5
SUMMARY**
Torture Victims Protection Act / Alien Tort Statute /
Comity
The panel affirmed the dismissal, on remand, of an action
brought under the Torture Victims Protection Act, the Alien
Tort Statute, and California state law, alleging that two U.S.-
headquartered corporations, Occidental Petroleum and
AirScan, were complicit in the 1998 bombing of a Colombian
village by members of the Colombian Air Force.
The panel held that plaintiffs’ notice of appeal was not
untimely because after the district court issued its ruling on
limited remand, the case returned to the Court of Appeals,
which continued to have jurisdiction under plaintiffs’ original
notice of appeal.
The panel held that pursuant to Mohamad v. Palestinian
Auth., 132 S. Ct. 1702 (2012), plaintiffs lacked a viable claim
under the TVPA because defendants were corporations rather
than natural persons.
The panel held that pursuant to Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659 (2013), plaintiffs lacked a
viable claim under the ATS because they did not rebut the
presumption against extraterritorial application of the statute
by alleging that defendants were U.S. corporations and that
actions or decisions furthering the purported conspiracy
between defendants and the Colombian Air Force took place
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6 MUJICA V. AIRSCAN
in the United States. The panel declined to remand the case
for amendment of the complaint in light of Kiobel.
Disagreeing with the district court, the panel held that
plaintiffs’ state-law claims must be dismissed on the ground
of international comity. Interpreting Hartford Fire Ins. Co.
v. Cal., 509 U.S. 764 (1993), the panel held that adjudicatory
comity, which involves discretionary deference in declining
to exercise jurisdiction over a case properly adjudicated in a
foreign state, does not require a “true conflict” between
domestic and foreign law. The panel concluded that in light
of a State Department Statement of Interest and an amicus
brief filed by the United States, the United States’ interest in
having the case adjudicated exclusively in Colombia was
strong. The panel held that because of the strength of the
U.S. government’s interest in respecting Colombia’s judicial
process, the weakness of California’s interest in the case, the
strength of Colombia’s interests in serving as an exclusive
forum, and the adequacy of the Colombian courts as an
alternative forum, plaintiffs’ state-law claims were
nonjusticiable under the doctrine of international comity.
District Judge Zilly concurred in part and dissented in
part. He concurred with the majority’s conclusion that
plaintiffs’ claim under the TVPA was properly dismissed.
Dissenting from the majority’s holding that plaintiffs’ lacked
a viable claim under the ATS, he wrote that Kiobel did not
require “conduct” that occurred within the United States, and
that plaintiffs should be allowed to amend their complaint.
Judge Zilly also dissented from the majority’s holding that
international comity barred adjudication of plaintiffs’ state
law claims.
MUJICA V. AIRSCAN 7
COUNSEL
Paul L. Hoffman (argued), Adrienne J. Quarry, and Victoria
Don, Schonbrun DeSimone Seplow, Harris Hoffman &
Harrison, LLP, Venice, California; Terry Collingsworth and
Christian Levesque, Conrad & Scherer, LLP, Washington,
D.C.; Daniel M. Kovalik, Pittsburgh, Pennsylvania; Bridget
Arimond, Center for International Human Rights,
Northwestern University Law School, Chicago, Illinois, for
Plaintiffs-Appellants-Cross-Appellees.
Daniel P. Collins (argued), Munger, Tolles & Olson LLP, Los
Angeles, California, for Defendant-Appellee-Cross-Appellant
Occidental Petroleum Corporation.
Thomas E. Fotopolous, and Sara M. Fotopolous, Fotopolous
& Fotopolous, P.A., Titusville, Florida; Kenneth J. Berke,
Berke & Kent LLP, Calabasas, California, for Defendant-
Appellee-Cross-Appellant AirScan, Inc.
Marco B. Simons, Richard L. Herz, and Jonathan Kaufman,
Washington, D.C., for Amicus Curiae Earthrights
International.
William J. Aceves, California Western School of Law, San
Diego, California, for Amicus Curiae Constitutional and
International Law Scholars.
8 MUJICA V. AIRSCAN
OPINION
BYBEE, Circuit Judge:
This suit arises out of the 1998 bombing of a Colombian
village by members of the Colombian Air Force (CAF).
Plaintiffs,1 citizens and former residents of Colombia, brought
suit in California against two U.S.-headquartered
corporations, Occidental Petroleum and AirScan, for their
alleged complicity in the bombing. In two opinions issued in
2005, the district court first refused to dismiss the case on
grounds of forum non conveniens and international comity,
Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134
(C.D. Cal. 2005) (“Mujica I”), but then granted Defendants’
motion to dismiss all of the claims under the political
question doctrine. Mujica v. Occidental Petroleum Corp.,
381 F. Supp. 2d 1164 (C.D. Cal. 2005) (“Mujica II”).
In a prior appeal, we declined to decide the issues
presented and remanded the case to the district court for two
purposes: first, “to consider whether a prudential exhaustion
requirement applies in this case, and if so, whether that
requirement bars any claims in this case,” and, second, to
“consider the effect, if any,” of two Colombian court opinions
related to the bombing. Mujica v. Occidental Petroleum
Corp., 564 F.3d 1190, 1192 (9th Cir. 2009) (“Mujica III”).
On limited remand, the district court found that prudential
exhaustion was not required. It also found that, if prudential
exhaustion were required, Occidental had met its burden of
1
We refer to Mr. Luis Mujica and the other Plaintiffs/Appellants/Cross-
Appellants as “Plaintiffs” and to Occidental Petroleum and AirScan either
as “Occidental” or “Defendants.” Defendant AirScan has adopted and
joined Occidental’s briefing.
MUJICA V. AIRSCAN 9
pleading and proving the availability of local remedies.
Mujica v. Occidental Petroleum Corp., Case No. CV-03-2860
(C.D. Cal., Mar. 8, 2010) (“Mujica IV”). Plaintiffs and
Defendants appealed and cross-appealed.
We hold that Plaintiffs lack a valid claim under either the
Torture Victim Protection Act (TVPA) or the Alien Tort
Statute (ATS). We affirm the district court’s judgment of
dismissal with respect to Plaintiffs’ state-law claims, but we
do so on the ground of international comity. Although the
district court rejected dismissal on that ground, we conclude
that the district court abused its discretion by applying the
incorrect legal standard in its comity analysis, specifically by
concluding erroneously that a “true conflict” between
domestic and foreign law is required for the application of
international comity in all circumstances. Mujica I, 381 F.
Supp. 2d at 1155. Guided by the correct standard for the
application of comity, and informed by the district court’s
findings of fact in Mujica IV regarding the adequacy of
Colombia as an alternative forum, we conclude that the state-
law claims before us are not justiciable under the doctrine of
international comity.
I. BACKGROUND
A. The 1998 Bombing
The district court described the facts of the underlying
events as follows:
The instant case arises from a bombing that
occurred in Santo Domingo, Colombia on
December 13, 1998. In 1998, Plaintiffs lived
in Santo Domingo. The Defendants,
10 MUJICA V. AIRSCAN
Occidental Petroleum Corp. (“Occidental”)
and AirScan, Inc., are both American
companies; the former is located in Los
Angeles, the latter in Florida. Defendant
Occidental operates, as a joint venture with
the Colombian government, an oil production
facility and pipeline in the area of Santo
Domingo.
Plaintiffs allege the following relevant facts.
Since 1997, Defendant AirScan has provided
security for Defendant Occidental’s oil
pipeline against attacks from left-wing
insurgents. Prior to 1998, Defendants worked
with the Colombian military, providing them
with financial and other assistance, for the
purpose of furthering Defendant Occidental’s
commercial interests. On several occasions
during 1998, Defendant Occidental provided
Defendant AirScan and the Colombian
military with a room in its facilities to plan the
Santo Domingo raid. Defendant AirScan and
the Colombian Air Force (“CAF”) carried out
this raid for the purpose of providing security
for Defendant Occidental (i.e., protecting its
oil pipeline) and was not acting on behalf of
the Colombian government. During the raid,
three of Defendant AirScan's employees,
along with a CAF liaison, piloted a plane with
CAF markings and that was paid for by
Defendant Occidental. From this airplane,
Defendant AirScan provided aerial
surveillance for the CAF, helping the CAF
MUJICA V. AIRSCAN 11
identify targets and choose places to deploy
troops.
On December 13, 1998, residents of Santo
Domingo saw low-flying CAF helicopters
overhead and attempted to communicate that
they were civilians by lying down on the road
and covering their heads with white shirts.
Soon thereafter, several witnesses saw an
object (or several objects) drop from one of
the CAF helicopters. One of the cluster bombs
dropped by the CAF exploded directly in the
town of Santo Domingo, destroying homes
and killing seventeen civilians and wounding
twenty-five others. Of the seventeen killed,
six were children. During the attack, the CAF
helicopters knowingly fired on civilians
attempting to escape and on those who were
trying to carry the injured to a medical
facility. Soon thereafter, other CAF troops
entered the town, blocked civilians from
leaving, and ransacked their homes.
While the purpose of the Santo Domingo raid
was to protect Defendant Occidental’s
pipeline from attack by left-wing insurgents,
no insurgents were killed in the attack. These
insurgents were located at least one to two
kilometers outside of Santo Domingo.
Defendants knew that the insurgents were not
12 MUJICA V. AIRSCAN
in Santo Domingo but carried out the attack
nonetheless.
Mujica II, 381 F. Supp. 2d at 1168–69 (internal citations
omitted)).
B. Proceedings in Colombian Courts
The 1998 Santo Domingo bombing led to two legal
actions in Colombia: a criminal action brought by the
Colombian government against three CAF officers who were
allegedly responsible for the bombing and a civil suit brought
by Plaintiffs (and several other persons) against the
government of Colombia.
1. Criminal Action
The Colombian Public Prosecutor’s Office opened a
preliminary investigation into the Santo Domingo bombing
the day after it occurred, on December 14, 1998. On
September 21, 2007, in In re Cesare Romero Pradilla, et al.,
the Twelfth Criminal Court of the Circuit of Bogota,
Colombia convicted three CAF officers of manslaughter. On
September 24, 2009, the same court affirmed the verdict on
remand from a higher court, finding that all three defendants
were guilty of manslaughter and related crimes. The court
then sentenced two of them to no more than 380 months’
imprisonment and one to no more than seventy-two months’
imprisonment. The court also imposed fines on all three
defendants.
MUJICA V. AIRSCAN 13
2. Civil Action
On September 25, 2000, Plaintiffs (and others) filed a
complaint against the Republic of Colombia, the Colombian
Ministry of Defense, the Colombian Army, and the CAF, in
regional court in Arauca, the region in Colombia where Santo
Domingo is located. Plaintiffs sought damages for wrongful
death and physical and psychological injuries to Plaintiffs and
their relatives. On May 20, 2004, the Arauca court entered
judgment in favor of Plaintiffs and awarded damages
amounting to about $700,000. On December 13, 2007, in
Mario Galvis Gelves, et al. v. The Nation, a Colombian
appellate court approved a settlement between Plaintiffs and
the Colombian government, holding that “[t]he liability of the
defendant can be found, because the incident that gave rise to
the settlement has been proven.” On April 27, 2009, the
Director of Legal Affairs of the National Defense Ministry
directed the payment of 1,393,649,934.73 Colombian pesos
(roughly $737,000) to the victims through their attorney.
Nothing in the record suggests that the victims did not receive
that settlement payment.
C. Proceedings Below
While the Colombian litigation was ongoing, Plaintiffs
filed a complaint in United States district court on April 23,
2003. The complaint, as amended, brought claims for extra-
judicial killing; torture; crimes against humanity; cruel,
inhuman, and degrading treatment; and war crimes under the
Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Torture
Victims Protection Act (TVPA), 28 U.S.C. § 1350 Note.
Plaintiffs also filed state law claims for wrongful death,
intentional infliction of emotional distress, negligent
infliction of emotional distress, and violations of California
14 MUJICA V. AIRSCAN
Business & Professional Code § 17200. See Mujica II, 381 F.
Supp. 2d at 1169, 1176.
In January 2004, the district court requested the views of
the U.S. Department of State. Id. at 1169. In April 2004, the
Department of State submitted a Statement of Interest (SOI)
indicating that it did not have a position on the foreign policy
implications of the action. Id. Eight months later, however,
the Department of State submitted a second SOI indicating
that it now opposed the litigation as adverse to U.S.-
Colombian relations. The Department of State attached to the
SOI two short démarches2 from the Government of Colombia
opposing the litigation. Id. In June 28, 2005, the court issued
two opinions responding to Occidental’s motion to dismiss
the suit.
1. Mujica I — Forum Non Conveniens and International
Comity
In Mujica I, 381 F. Supp. 2d at 1134, the district court
denied Occidental’s motion to dismiss based on forum non
conveniens and international comity. Id. at 1163–64. With
respect to forum non conveniens, the district court concluded
that, despite a May 2004 civil verdict against the Republic of
Colombia in favor of these plaintiffs in Colombian regional
court, Colombia was an inadequate forum for Plaintiffs’
claims. The court found that because the plaintiffs had
received relief in Colombia, in a suit that did not include
Defendants, “these Plaintiffs [would] not be able to recover
against these Defendants.” Id. at 1148. According to the
2
A démarche is “[a]n oral or written diplomatic statement, esp[ecially]
one containing a demand, offer, protest, threat, or the like.” Black’s Law
Dictionary 523 (10th ed. 2014).
MUJICA V. AIRSCAN 15
district court, “Colombia would be an inadequate forum
because Plaintiffs could not obtain a remedy against
Defendant as they could in this Court.” Id.
With regard to comity, which the court analyzed
alongside the related doctrine of international abstention, the
court held that it did not apply. It adopted Plaintiffs’
argument that “at least in the Ninth Circuit, the application of
international comity is generally limited to cases where there
is a ‘true conflict’ between domestic and foreign law.” Id. at
1155. Under that standard, the court explained that there was
no “true conflict” between United States law and Colombian
law: “Since the Court has not made any findings of liability
or provided any remedies, there is no present conflict
between the Court’s proceeding with the instant case and any
proceedings in Colombia.” Id. at 1156. The district court
acknowledged that there was “the possibility of an
inconsistency between a future, potential judgment of this
Court and a judgment of a Colombian court,” id., but the
court refused to dismiss the suit “without the knowledge that
Plaintiffs have an alternative forum in which they are able to
obtain a remedy.” Id. at 1163–64.
2. Mujica II — Political Question Doctrine
In a second opinion issued the same day, Mujica II, 381
F. Supp. 2d at 1164, the district court considered whether to
dismiss various claims under the TVPA, the ATS, the foreign
affairs doctrine, the act of state doctrine, and the political
question doctrine. Although the court worked its way
through all of these statutes and doctrines and would have
dismissed some but not all of Plaintiffs’ claims, it ultimately
concluded that the entire suit warranted dismissal under the
16 MUJICA V. AIRSCAN
political question doctrine. Id. at 1195; see also Baker v.
Carr, 369 U.S. 186 (1962).3
The district court held that two Baker factors supported
dismissal of the suit—factor four, “impossibility of a court’s
undertaking independent resolution [of the issue] without
expressing lack of the respect due coordinate branches of
government,” and factor five, the “unusual need for
unquestioning adherence to a political decision already
made.” Baker, 369 U.S. at 217. In reaching that conclusion,
the court “focus[ed] on the Supplemental Statement of
Interest,” Mujica II, 381 F. Supp. 2d at 1191, and found that
its assertion that U.S. foreign policy “would be negatively
impacted by proceeding with the instant case” supported a
finding that “proceeding with the litigation would indicate a
‘lack of respect’ for the Executive’s preferred approach of
3
Baker lists six alternative grounds under which a case may raise a
nonjusticiable political question:
Prominent on the surface of any case held to involve a
political question is found [1] a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially
discoverable and manageable standards for resolving it;
or [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6]
the potentiality of embarrassment from multifarious
pronouncements by various departments on one
question.
Baker, 369 U.S. at 217.
MUJICA V. AIRSCAN 17
handling the Santo Domingo bombing and relations with
Colombia in general.” Id. at 1194. In a footnote, the court
wrote that “[f]or similar reasons, the fifth Baker factor,
adherence to a policy decision, would also render the instant
case non-justiciable.” Id. at 1194 n.25.
3. Mujica III — Limited Remand
Plaintiffs appealed the district court’s order granting
Defendants’ Rule 12(b)(6) motion and “further appeal[ed]
any and all adverse rulings on issues in the Court’s second
order entered on June 29, 2005, . . . [and] further appeal[ed]
any and all prior rulings adverse to Plaintiffs.” On July 27,
2005, Occidental filed a “notice of conditional cross-appeal,”
appealing the district court’s denial of Defendants’ motion to
dismiss the action on forum non conveniens and international
comity grounds, as well as any adverse judgment in the
court’s ruling granting Defendants’ Rule 12(b)(6) motion.
AirScan filed a nearly verbatim cross-appeal the next day.
In March 2006, during the pendency of the appeal, the
United States filed an amicus brief on behalf of Defendants
urging affirmance “[b]ecause adjudication of this case would
adversely affect the United States’ foreign policy interests.”
And while it agreed with the ultimate disposition of the case
on political question and preemption grounds, it also believed
“that dismissal of the plaintiffs’ claims is most appropriate as
a matter of international comity.”
In May 2009, we remanded the case to the district court
in an order that reads, in its entirety, as follows:
In light of the intervening authority of
Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir.
18 MUJICA V. AIRSCAN
2008) (en banc) [“Sarei II”], this case is
remanded to the district court to consider
whether a prudential exhaustion requirement
applies in this case, and if so, whether that
requirement bars any claims in this case. On
remand, the district court should also consider
the effect, if any, of the decision of the
Council of State of the Republic of Colombia
in Mario Galvis Gelves, et al. v. The Nation,
slip op. (Council of State, Rep. of Colombia,
Ad. Law Div., Sec. 3, Dec. 13, 2007) and the
decision of the Court No. 12 for Criminal
Matters of the Circuit of Bogot[a] of the
Republic of Colombia in In re Cesare Romero
Pradilla, et al., slip op. (Sept. 21, 2007).
Mujica III, 564 F.3d at 1190.
4. Mujica IV — Prudential Exhaustion and the
Colombian Cases
By the time we heard the appeal in Mujica III, the original
district court judge, Judge William J. Rea, had passed away.
Accordingly, on remand, the case was assigned to Judge
George H. Wu, who, in accordance with our order, issued a
“Ruling on Limited Remand as to the Prudential Exhaustion
Issue.”
In response to our first question, the district court held
that “there is a sufficiently strong nexus between the claims
asserted in this lawsuit and the United States that local
exhaustion should not be required.” The court found that,
“even if the nexus [to the United States] were held to be
weak, . . . Occidental ha[d] not shown that the claims in this
MUJICA V. AIRSCAN 19
case do not implicate matters of universal concern,” such as
“war crimes and indiscriminate violent assaults on people at
large.” Thus, “Occidental ha[d] not shown that those claims
against Defendants in this case [were] likely to be subject to
an exhaustion requirement.”
The court then addressed the second question we had
posed on remand: the effect of the successful civil and
criminal litigation brought in Colombia. Judge Wu came to a
different conclusion from Judge Rea. Judge Wu held that
remedies were available in Colombia, whether their
availability was “assessed as of now or as of 2003 when the
case was filed” and that, despite Judge Rea’s contrary
conclusion, Occidental “seem[ed] to have met its initial
burden of showing the availability of local remedies.” The
court noted that Dr. Fernando Hinestrosa, Occidental’s
Colombian law expert, “stated that Plaintiffs could bring a
suit against Occidental today in Colombia, and could have
brought one in September 2000, or any time in between.
Occidental ha[d] consented to jurisdiction in Colombia, and
the statute of limitations under Colombian law ha[d] not yet
run.” The district court also found Plaintiffs’ arguments that
it was unsafe for them to pursue the litigation in Colombia
unavailing, because Occidental showed that Plaintiffs had
pursued litigation in Colombia “for years” and had traveled
there, even though they now live elsewhere. Furthermore,
Plaintiffs had not shown that their physical presence in
Colombia was required to pursue the litigation. Accordingly,
“[i]f exhaustion were required, Occidental would probably
prevail on its demonstration of the availability of local
remedies and the lack of futility.” The court concluded that
prudential exhaustion was not required in the case, and if it
were to impose such a requirement, “it would find that
Defendant Occidental ha[d] met its burden of pleading and
20 MUJICA V. AIRSCAN
proving the availability of local remedies and Plaintiffs’
failure to exhaust them.”
On April 7, 2010, Defendants AirScan and Occidental
filed essentially identical “Notice[s] of Conditional Appeal,”
which noted that “[b]y declining to impose an exhaustion
requirement on limited remand, the district court’s Order on
Remand leaves unchanged the prior judgment of dismissal
with prejudice in this case, and thereby effectively re-enters
that judgment as of the date of entry of the Order on
Remand.” On April 19, 2010, Plaintiffs filed a “Notice of
Cross-Appeal” challenging the district court’s March 8, 2010
ruling.
II. STANDARD OF REVIEW
Dismissal for failure to state a claim under Rule 12(b)(6)
is reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434,
436–37 (9th Cir. 1995). In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the court must accept as true all
factual allegations in the Complaint and draw all reasonable
inferences in favor of the nonmoving party. Silvas v. E*Trade
Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir. 2008).
We review the district court’s decision regarding
international comity for abuse of discretion. See Allstate Life
Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 999 (2d Cir. 1993);
Remington Rand Corp.-Del. v. Bus. Sys. Inc., 830 F.2d 1260,
1266 (3d Cir. 1987). We follow a two-part test to determine
whether a district court abused its discretion. See United
States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en
banc). “[T]he first step of our abuse of discretion test is to
determine de novo whether the trial court identified the
correct legal rule to apply to the relief requested. If the trial
MUJICA V. AIRSCAN 21
court failed to do so, we must conclude it abused its
discretion.” Id. at 1261–62 (footnote omitted). If the district
court identified the correct legal rule, we move on to the
second step of the test and “determine whether the trial
court’s application of the correct legal standard was
(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in
inferences that may be drawn from the facts in the record.’”
Id. at 1262 (quoting Anderson v. City of Bessemer City, North
Carolina, 470 U.S. 564, 577 (1985)).
III. APPELLATE JURISDICTION
Defendants question whether Plaintiffs’ April 19, 2010,
notice of appeal following the district court’s decision on
remand was timely and, accordingly, whether we have
jurisdiction under 28 U.S.C. § 1291. Defendants argue that
the district court’s March 8, 2010, ruling “triggered the 30-
day clock for Plaintiffs to file their notice of appeal” under
Federal Rule of Appellate Procedure 4(a).4 And since “the
district court’s ruling left intact a dismissal with prejudice,
Defendants on April 7, 2010 timely filed conditional notices
of appeal.” They cite Abbs v. Sullivan, 963 F.2d 918 (7th Cir.
1992), which held that there is no appellate jurisdiction if a
party without standing is the only party to file an appeal
within thirty-days of the final judgment, even if the other
party files a cross-appeal within fourteen days of the appeal
by the party without standing. Id. at 925. Defendants also cite
4
Federal Rule of Appellate Procedure 4 directs that, in a civil case, a
notice of appeal “must be filed with the district clerk within 30 days after
entry of the judgment or order appealed from.” Fed. R. App. P. 4(a).
Exceptions, which are not relevant here, extend that period to sixty days
if one of the parties is the United States or a federal agency or officer; if
certain other motions are filed; or if the appellant is an inmate. See Fed.
R. App. P. 4(a)(1)(B), 4(a)(4), and 4(c).
22 MUJICA V. AIRSCAN
Stephanie-Cardona LLC v. Smith’s Food & Drug Centers,
Inc., 476 F.3d 701, 705 (9th Cir. 2007), in which we held that
a “late notice of cross-appeal is not fatal because the court’s
jurisdiction over the cross-appeal derives from the initial
notice of appeal.” But if a court lacks jurisdiction over an
appeal, “it necessarily lacks jurisdiction over the cross-
appeal,” and the cross-appeal must be dismissed. Id.
Defendants have misapprehended the limited nature of
our original 2009 remand. In that order, we neither addressed
any of the issues raised by Plaintiffs’ appeal nor vacated the
June 28, 2005, district court order dismissing the case. See
Mujica III, 564 F.3d at 1192. Instead, we remanded the case
for two specific purposes: for fact-finding on the applicability
of the prudential exhaustion doctrine, see Sarei II, 550 F.3d
at 822, and for consideration of the effect of the Colombian
criminal and civil cases related to this litigation. Id. The
district court understood our order as a limited remand. Its
order is entitled “Ruling on Limited Remand as to the
Prudential Exhaustion Issue.” And the parties understood it
to be limited as well. Defendants titled their brief “Opening
Brief on Limited Remand from the Ninth Circuit,” and
Plaintiffs titled theirs “Plaintiffs’ Response to Defendants’
Opening Brief on Limited Remand from Ninth Circuit.” The
district court’s 2010 ruling did not state it was reentering the
2005 judgment, and we did not disturb that judgment on
remand. Accordingly, after the district court issued its limited
ruling, the entire case returned to us. We continue to have
jurisdiction under Plaintiffs’ original notice of appeal, filed
July 11, 2005. See Richmond v. Chater, 94 F.3d 263, 268
(7th Cir. 1996) (observing that appellate courts usually retain
jurisdiction when previous panel was unwilling or unable to
decide the appeal and remanded the case to tie up loose ends);
see also 28 U.S.C. § 1291.
MUJICA V. AIRSCAN 23
IV. FEDERAL CLAIMS
We have no need to consider whether any prudential
doctrines counsel dismissing Plaintiffs’ federal claims under
the TVPA and the ATS, as Plaintiffs have no viable claim
under either statute.
A. TVPA Claims
The TVPA authorizes a federal cause of action against
any “individual” who commits an act of torture or
extrajudicial killing “under actual or apparent authority, or
color of law, of any foreign nation.” 28 U.S.C. § 1350 Note.
In a case decided while this appeal was pending, the Supreme
Court examined the TVPA and held that the term
“individual,” as used in the statute, “encompasses only
natural persons.” Mohamad v. Palestinian Auth., 132 S. Ct.
1702, 1705 (2012). Thus, the TVPA “does not impose
liability against organizations.” Id.
Defendants in this case are both corporations rather than
natural persons. In light of Mohamad, therefore, Plaintiffs’
TVPA claims must be dismissed. Accord, e.g., Cardona v.
Chiquita Brands Int’l, Inc., 760 F.3d 1185, 1188–89 (11th
Cir. 2014).
B. ATS Claims
The ATS provides that “district courts shall have original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. § 1350. The ATS “is a
jurisdictional statute creating no new causes of action,”
although the First Congress adopted it on the assumption that
24 MUJICA V. AIRSCAN
“district courts would recognize private causes of action for
certain torts in violation of the law of nations. . . .” Sosa v.
Alvarez-Machain, 542 U.S. 692, 724 (2004).
“The question here is not whether petitioners have stated
a proper claim under the ATS, but whether a claim may reach
conduct occurring in the territory of a foreign sovereign.”5
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664
(2013). Just as the Supreme Court has clarified the meaning
of the TVPA since Plaintiffs filed their complaint, so too has
its recent decision in Kiobel refined our understanding of the
extent to which the ATS applies extraterritorially. Analyzing
Plaintiffs’ ATS claims in light of Kiobel, we conclude that
these claims must also be dismissed.
In Kiobel, Nigerian petitioners who later became U.S.
residents brought tort claims under the ATS, based on events
in Nigeria, against foreign corporations that had only
attenuated contacts with the United States—listings on the
New York Stock Exchange and an affiliation with a public
relations office in New York. See 133 S. Ct. at 1662–63
(majority opinion); id. at 1677–78 (Breyer, J., concurring).
The Court found that these ATS claims were barred, holding
that “the presumption against extraterritoriality applies to
5
The district court held that all of Plaintiffs’ ATS claims were properly
rooted in “binding customary international law” norms, as required to state
a claim after the Supreme Court’s decision in Sosa, though it dismissed
Plaintiffs’ claim for “cruel, inhuman, and degrading treatment” because
the consequences of permitting ATS claims based on such conduct would
be “impractical.” See Mujica II, 381 F. Supp. 2d at 1178–83. Because we
conclude that the presumption against extraterritoriality bars the federal
courts from hearing Plaintiffs’ ATS claims, we express no opinion as to
whether Plaintiffs’ allegations were otherwise proper under Sosa.
MUJICA V. AIRSCAN 25
claims under the ATS” and that “nothing in the statute rebuts
that presumption.” Id. at 1669.
Although the Court did not hold that plaintiffs may never
bring ATS claims based on extraterritorial conduct, it made
clear that, in order to be viable, any such claims must “touch
and concern the territory of the United States” and “must do
so with sufficient force to displace the presumption against
extraterritorial application.” Id. Plaintiffs contend that their
claims meet this requirement because Defendants are U.S.
corporations and because Plaintiffs have alleged that “actions
or decisions furthering the [purported] conspiracy” between
Defendants and the CAF “took place in the United States.”
We disagree.
The allegations that form the basis of Plaintiffs’ claims
exclusively concern conduct that occurred in Colombia. For
example, Plaintiffs allege that the bombing was planned from
an office in Colombia, that employees of Defendant AirScan
provided support during the bombing, that Defendant
Occidental provided a plane used for targeting in the
operation, and that both Defendants gave material and
logistical support to the CAF. The only statement before this
court that so much as alludes to any conduct within the
United States is found in Plaintiffs’ reply brief, filed after
Kiobel, in which Plaintiffs point to the allegations in their
complaint that Defendants aided and abetted and conspired
with the CAF and speculate that some of that conduct, such
as the making of the contract between the two Defendants,
could have occurred in the United States. Such speculation
is not an adequate basis on which to allow Plaintiffs’ claims
26 MUJICA V. AIRSCAN
to go forward.6 Plaintiffs have the burden of pleading
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face,’” and a mere conjecture
that conduct may have occurred in the United States does not
meet that burden. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
6
The dissent reads the statements in Plaintiffs’ reply brief regarding the
contract between Occidental and AirScan far more credulously than we
do, arguing that they constitute sufficient evidence of acts in the United
States to preclude our dismissing these ATS claims. This credulous
appraisal is simply mistaken. As the dissent itself acknowledges, Plaintiffs
have, at most, “suggested” to the court that the contract “might have been
executed within our borders.” It is not clear to us, moreover, that the bare
fact that the Defendants’ contract for “security services” was made in the
United States would establish ATS jurisdiction in any event. In the only
ATS case in which a court cited such a contract as evidence of U.S.
conduct, the contract was far more specifically addressed to the activities
that eventually gave rise to the plaintiffs’ ATS claims. See Al Shimari v.
CACI Premier Tech., Inc., 758 F.3d 516, 522 (4th Cir. 2014) (finding ATS
jurisdiction where, inter alia, defendant made a contract with the federal
government in the United States for “interrogation-related services” that
included a Statement of Work specifying activities to be peformed).
The dissent also insists that “Plaintiffs are entitled to the reasonable
inference” that the acts they allege occurred in Colombia “could not have
occurred” without support from Defendants’ “U.S. offices.” We disagree.
The only pleaded facts the dissent cites to support that inference are
Plaintiffs’ allegations that three participants in the bombing were
employed by AirScan and that the bombing was planned at an Occidental
site in Colombia. These highly circumstantial allegations do not support
a sweeping inference that Defendants, through actions in the United
States, took sufficient part in the bombing to be subject to ATS
jurisdiction under Kiobel. See Balintulo v. Daimler AG, 727 F.3d 174,
192 (2d Cir. 2013) (allegation that U.S. corporations’ South African
subsidiaries aided and abetted human rights violations in South Africa did
not “tie[] the . . . human rights violations to actions taken within the
United States”).
MUJICA V. AIRSCAN 27
In apparent recognition of this defect in their complaint,
Plaintiffs have requested leave to amend their complaint in
light of Kiobel. The dissent likewise urges us to grant this
relief. But although we acknowledge that Kiobel worked a
significant change in the legal prerequisites for an
extraterritorial ATS claim, and that such intervening changes
in the law often warrant granting parties leave to amend, we
do not believe that granting Plaintiffs leave to amend would
serve any purpose. See, e.g., Bonin v. Calderon, 59 F.3d 815,
845 (9th Cir. 1995) (“Futility of amendment can, by itself,
justify the denial of . . . leave to amend.”).
This is not a case in which the parties have had no
opportunity to respond to an intervening change in Supreme
Court law. Defendants filed a supplemental brief in the wake
of the Kiobel decision urging dismissal of Plaintiffs’ ATS
claims, and Plaintiffs devoted 15 pages of their reply brief to
Kiobel’s touch-and-concern test. Plaintiffs admitted in that
brief that they likely “cannot uncover the evidence they need”
to allege “plotting [by Defendants] in the United States
without jurisdictional discovery.” Similarly, Plaintiffs’
experienced and knowledgeable counsel candidly represented
to the court at oral argument—which was held eleven months
after Kiobel was decided—that he could not say that Plaintiffs
would be able to amend their complaint to allege acts by the
Defendants in the United States with the specificity required
by Iqbal, absent discovery. The Supreme Court has stated,
however, that plaintiffs must satisfy the pleading
requirements of Rule 8 before the discovery stage, not after
it. See Iqbal, 556 U.S. at 678–79 (explaining that Rule 8
“does not unlock the doors of discovery for a plaintiff armed
28 MUJICA V. AIRSCAN
with nothing more than conclusions”).7 We think it clear that
no amendment to the complaint at this stage of the
litigation—i.e., prior to discovery—could add “sufficient
factual matter” related to domestic conduct to enable the
complaint to survive a motion to dismiss, and we therefore
decline to remand this case for amendment of the complaint.8
7
The dissent cites cases that it claims demonstrate that other courts of
appeals have rejected this view of Iqbal. To the extent that any of those
decisions suggests that courts retain discretion to permit discovery
whenever a plaintiff has failed to satisfy Rule 8’s plausibility standard, it
is simply incompatible with Iqbal and Twombly. See Iqbal, 556 U.S. at
686 (“Because respondent’s complaint is deficient under Rule 8, he is not
entitled to discovery, cabined or otherwise.”); Twombly, 550 U.S. at 559
(“It is no answer to say that a claim just shy of a plausible entitlement to
relief can, if groundless, be weeded out early in the discovery process
through careful case management”); see also, e.g., Vega v. Davis, 572 F.
App’x 611, 616 (10th Cir. 2014) (rejecting plaintiff’s argument that
motion to dismiss should be denied due to his “lack of access to relevant
information”); Carter v. DeKalb Cnty., Ga., 521 F. App’x 725, 728 (11th
Cir. 2013) (holding that plaintiff who failed to allege plausible claim
against defendants was not entitled to discovery because “discovery
follows the filing of a well-pleaded complaint. It is not a device to enable
the plaintiff to make a case when his complaint has failed to state a claim.”
(internal quotation marks omitted)).
8
Not content simply to disagree with the foregoing futility analysis, the
dissent also suggests that we should not have undertaken it, leaving the
question of futility of amendment to be addressed—if at all—by the
district court on a supplemented record. But as the dissent acknowledges,
the parties have already been litigating this case for nearly a decade at the
motion-to-dismiss stage. Judicial economy and common sense both
counsel that we ought not prolong this case still further by remanding to
the district court for a futility analysis when it is obvious to us that leave
to amend is unwarranted. Accord Baloco v. Drummond Co., Inc.,
767 F.3d 1229, 1239 (11th Cir. 2014) (declining to remand ATS case to
district court for amendment of complaint where post-Kiobel briefing
provided “sufficient information” from which to conclude that amendment
would be futile, and a remand would “needlessly extend [the] litigation,
MUJICA V. AIRSCAN 29
In the absence of any adequate allegations of conduct in
the United States, the only remaining nexus between
Plaintiffs’ claims and this country is the fact that Defendants
are both U.S. corporations. That fact, without more, is not
enough to establish that the ATS claims here “touch and
concern” the United States with sufficient force.
Admittedly, Kiobel (quite purposely) did not enumerate
the specific kinds of connections to the United States that
could establish that ATS claims “touch and concern” this
country. See Kiobel, 133 S. Ct. at 1669 (Kennedy, J.,
concurring). It may well be, therefore, that a defendant’s
U.S. citizenship or corporate status is one factor that, in
conjunction with other factors, can establish a sufficient
connection between an ATS claim and the territory of the
United States to satisfy Kiobel.9 But the Supreme Court has
which began over eleven years ago”); see also, e.g., Sylvia Landfield Trust
v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013) (affirming denial of
leave to amend where, after proposed amendments, complaint would still
fail to “allege sufficient facts that amount to more than a sheer possibility
that Defendants have acted unlawfully” (alteration and internal quotation
marks omitted)); Dougherty v. City of Covina, 654 F.3d 892, 901 (9th Cir.
2011) (affirming denial of leave to amend on futility grounds, where
plaintiff “failed to allege any facts” in support of a particular legal theory
and “could have identified any such fact in his briefing or argument before
us, but he did not”).
9
The dissent suggests that we “essentially disregard[]” Defendants’ U.S.
citizenship, but we are hardly dismissing Defendants’ U.S. citizenship out
of hand. We do not contend that this factor is irrelevant to the Kiobel
inquiry; we merely hold that it is not dispositive of that inquiry. But see
Mastafa v. Chevron Corp., __ F.3d __, 2014 WL 5368853, at *13 (2d Cir.
Oct. 23, 2014) (“Whether a complaint passes jurisdictional muster
accordingly depends upon alleged conduct by anyone—U.S. citizen or
not—that took place in the United States and aided and abetted a violation
of the law of nations. A complaint cannot be ‘saved’ for jurisdictional
30 MUJICA V. AIRSCAN
never suggested that a plaintiff can bring an action based
solely on extraterritorial conduct merely because the
defendant is a U.S. national. To the contrary, the Court has
repeatedly applied the presumption against extraterritoriality
to bar suits meeting that description. See, e.g., Morrison v.
Nat’l Austl. Bank Ltd., 561 U.S. 247, 250–51, 269 (2010)
(holding that Section 10(b) did not reach claims of securities
fraud against “foreign and American defendants” based on
largely extraterritorial conduct (emphasis added)); Microsoft
Corp. v. AT&T Corp., 550 U.S. 437, 455 (2007) (holding that
presumption against extraterritoriality barred patent
infringement case brought against U.S. corporation but based
on conduct abroad); EEOC v. Arabian Am. Oil Co., 499 U.S.
244, 258–59 (1991) (holding that Title VII did not apply to
U.S. citizens employed by U.S. employers overseas).
Nothing in Kiobel suggests that the Court would not adhere
to this pattern in an ATS case. Cf. Balintulo, 727 F.3d at 190
(“[I]f all the relevant conduct occurred abroad, that is simply
the end of the matter under Kiobel.”).10
Our reading of Kiobel is in accord with that of other
federal courts. So far as we can ascertain, since Kiobel was
decided, only one court has so much as suggested that an
ATS claim is always viable when the defendant is a U.S.
purposes simply because a U.S. citizen happened to commit the alleged
violation”).
10
The dissent suggests otherwise, pointing to a concurring opinion in
Kiobel in which four Justices suggested that a defendant’s U.S. citizenship
would suffice for ATS jurisdiction. But that view did not command a
majority and, as we discuss infra, at 30–32 & n.11, every federal appellate
and district court except one has rejected the view advocated by the
dissent. We cannot accept that, by following that overwhelming body of
authority, we have “improvidently extend[ed] Kiobel.”
MUJICA V. AIRSCAN 31
citizen or corporation. Every remaining federal court has
dismissed ATS claims whose only connection to this country
was the defendant’s U.S. citizenship.11
11
See Cardona, 760 F.3d at 1189–90 (rejecting ATS claim even though
primary defendant was a U.S. corporation, because “[a]ny tort here . . .
occurred outside the territorial jurisdiction of the United States”); Ben-
Haim v. Neeman, 543 F. App’x 152, 155 (3d Cir. 2013) (dismissing ATS
claims against multiple defendants, including two U.S.–based nonprofits,
where underlying conduct occurred in Israel); Jovic v. L-3 Servs., Inc., __
F. Supp. 3d __, 2014 WL 4748614, at *5 (N.D. Ill. Sept. 24, 2014)
(dismissing ATS claims against U.S. corporations because presumption
against extraterritoriality was not rebutted); Doe I v. Cisco Sys., Inc., __
F. Supp. 2d __, 2014 WL 4446381, at *5 (N.D. Cal. Sept. 5, 2014)
(holding that defendant’s U.S. corporate citizenship “in and of itself is not
enough to touch and concern the United States with sufficient force for the
ATS to apply”); Warfaa v. Ali, __ F. Supp. 2d __, 2014 WL 3734121, at
*2–3 (E.D. Va. July 29, 2014) (dismissing ATS claims arising out of
events in Somalia, brought against defendant residing in United States);
Adhikari v. Daoud & Partners, 2013 WL 4511354, at *7 (S.D. Tex. Aug.
23, 2013) (dismissing ATS claim against U.S. corporation because “[t]he
conduct underlying Plaintiffs’ ATS claim is entirely foreign”); Ahmed-Al-
Khalifa v. Al-Assad, 2013 WL 4401831, at *2 (N.D. Fla. Aug. 13, 2013)
(dismissing ATS claims against U.S. President, Congress, and U.S.
corporation, because “the violations at issue all occurred outside the
United States”); Giraldo v. Drummond Co., Inc., 2013 WL 3873960, at *8
(N.D. Ala. July 25, 2013) (granting summary judgment to U.S. defendants
on ATS claims, where “nothing” supported “Plaintiffs’ contention that
[defendant] made decisions in the United States”); Mwangi v. Bush, 2013
WL 3155018, at *4 (E.D. Ky. June 18, 2013) (noting that ATS claim
against former U.S. president could not proceed because all alleged
conduct occurred in Kenya); see also Doe v. Exxon Mobil Corp., __ F.
Supp. 3d __, 2014 WL 4746256, at *12, 14 (D.D.C. Sept. 23, 2014)
(“[T]he presumption against extraterritoriality is not displaced by a
defendant's U.S. citizenship alone.”); cf. Balintulo, 727 F.3d at 192–93
(declining to issue writ of mandamus ordering district court to dismiss
ATS claims against U.S. companies arising out of acts by their South
African subsidiaries, but explaining that, “[i]n all cases, . . . the ATS does
not permit claims based on illegal conduct that occurred entirely in the
32 MUJICA V. AIRSCAN
By contrast, in all of the post-Kiobel cases in which courts
have permitted ATS claims against U.S. defendants to go
forward, the plaintiffs have alleged that at least some of the
conduct relevant to their claims occurred in the United States.
See Al Shimari, 758 F.3d at 530–31 (holding that ATS claims
against U.S. corporation touched and concerned the United
States, where conduct occurred pursuant to a contract made
in the United States between defendant and the U.S.
government, and managers in the United States approved the
misconduct and attempted to cover it up); Krishanti v.
Rajaratnam, 2014 WL 1669873, at *10 (D.N.J. Apr. 28,
2014) (holding that Kiobel did not bar plaintiffs’ ATS claims
because they were based on “actions that occurred within the
United States”); Sexual Minorities Uganda v. Lively, 960 F.
Supp. 2d 304, 321 (D. Mass. 2013) (holding ATS claims
against U.S. citizen were not barred where alleged torts
occurred “to a substantial degree within the United States,
over many years, with only infrequent actual visits to
Uganda”); Mwani v. Bin Laden, 947 F. Supp. 2d 1, 5 (D.D.C.
2013) (holding that ATS claims touched and concerned the
United States because plaintiffs had “presented evidence that
territory of another sovereign”); Mamani v. Berzaín, 2014 WL 2069491,
at *11 (S.D. Fla. May 20, 2014) (holding that ATS claims against
defendants residing in the United States were barred because all conduct
relevant to claims “occurred on foreign soil”); In re S. African Apartheid
Litig., 2013 WL 6813877, at *2 (S.D.N.Y. Dec. 26, 2013) (ordering, in
case against U.S. corporations where all conduct alleged in original
complaint occurred abroad, that plaintiffs amend complaint to “plausibly
plead that . . . defendants engaged in actions that touch and concern the
United States”). But see Ahmed v. Magan, 2013 WL 4479077, at *2 (S.D.
Ohio Aug. 20, 2013) (holding in the alternative that presumption against
extraterritoriality was overcome by the fact that the defendant was a
lawful permanent resident of the United States).
MUJICA V. AIRSCAN 33
. . . overt acts in furtherance of [the defendants’] conspiracy
took place in the United States”).
Plaintiffs point to a legal opinion written by Attorney
General William Bradford in 1795 as evidence that “the ATS
could reach U.S. nationals extraterritorially under the right
circumstances.” In that Opinion, Attorney General Bradford
addressed a 1794 incident in which several American citizens
had joined in a French attack on the British colony of Sierra
Leone, in violation of the United States’ official position of
neutrality with respect to France and Britain. Bradford
commented that “there can be no doubt that the company or
individuals who have been injured by these acts of hostility
have a remedy by a civil suit in the courts of the United
States,” pursuant to the ATS. Breach of Neutrality, 1 U.S.
Op. Att’y Gen. 57 (1795).
The Bradford Opinion is too slender a reed, however, to
support the broad assertion of ATS jurisdiction that Plaintiffs
ask of us. The Supreme Court considered the Bradford
Opinion in Kiobel and found that it “defies a definitive
reading” and “hardly suffices to counter the weighty concerns
underlying the presumption against extraterritoriality.”
Kiobel, 133 S. Ct. at 1668. The Court went on to conclude
that “[n]othing about th[e] historical context” of the ATS,
taken as a whole (including not only the events described in
the Bradford Opinion but also other episodes
contemporaneous with the passage of the ATS), “suggests
that Congress . . . intended federal common law under the
ATS to provide a cause of action for conduct occurring in the
territory of another sovereign.” Id. at 1668–69.
Consequently, the Bradford Opinion cannot support
Plaintiffs’ claim that a defendant’s corporate U.S. citizenship
34 MUJICA V. AIRSCAN
is a sufficient connection with the United States to establish
ATS jurisdiction.12
We acknowledge that judges—including our dissenting
colleague in this case—have eloquently argued that the
United States has an obligation to provide redress for aliens
injured whenever American citizens or corporations violate
the law of nations. See, e.g., Cardona, 760 F.3d at 1193
(Martin, J., dissenting) (“The United States would fail to meet
the expectations of the international community were we to
allow U.S. citizens to travel to foreign shores and commit
violations of the law of nations with impunity.”). But we
agree with several of our sister circuits that this policy
argument is unavailing, as “the determination of foreign
policy goals and the means to achieve them is not for us.”
Cardona, 760 F.3d at 1191 (majority opinion); see also
Balintulo, 727 F.3d at 191–92. The federal courts cannot
exercise jurisdiction under the ATS beyond the limits that
Congress has prescribed, no matter how well-intentioned our
motives for doing so.
To conclude, Plaintiffs’ ATS claims against Defendants
are based solely on conduct that occurred in Colombia, and
the only nexus with the United States that Plaintiffs allege is
the fact that both Defendants are U.S. corporations. We hold
that these ATS claims do not touch and concern the territory
of the United States “with sufficient force to displace the
12
The dissent argues that, the Bradford Opinion aside, “the principle that
a sovereign may exercise jurisdiction to prescribe the conduct of its
nationals outside its territory is widely recognized.” But even if that is so,
the question before us is not whether the United States may regulate the
conduct of U.S. nationals abroad, but whether it has done so via the ATS.
Modern-day practices and norms do not help us answer that question.
MUJICA V. AIRSCAN 35
presumption against extraterritorial application,” Kiobel, 133
S. Ct. at 1669, and that they must be dismissed.
V. INTERNATIONAL COMITY
Finally, we dismiss Plaintiffs’ state-law claims based on
the doctrine of international comity. We do not reach any
other putative bases—whether constitutional or prudential—
for dismissing these claims.13 Cf. Bi v. Union Carbide
Chems. & Plastics Co., 984 F.2d 582, 584 (2d Cir. 1993).
The federal common law doctrine of international comity
is applicable to these state law claims notwithstanding the
general rule that federal courts apply California’s substantive
law when sitting in diversity. Erie R.R. Co. v. Tompkins,
13
For example, we do not decide whether a California court would
decline to reach these tort claims due to their extraterritorial nature, or
whether the federal foreign affairs doctrine would preclude a California
court from hearing these claims. See, e.g., Zschernig v. Miller, 389 U.S.
429, 440–41 (1968).
The dissent believes, as we do, that Plaintiffs’ state-law claims must
be dismissed, but it argues that it is inappropriate for us to consider the
international comity doctrine here before addressing the foreign affairs
doctrine, which was one of the district court’s original bases for
dismissing these claims (along with the political-question doctrine). We
disagree. We have not raised the question of international comity sua
sponte; the district court fully considered the comity doctrine and the issue
has been briefed and argued by both sides. As the dissent acknowledges,
we are permitted to affirm the district court’s decision on any ground
supported by the record, see, e.g., ASARCO, LLC v. Union Pac. R. Co.,
765 F.3d 999, 1004 (9th Cir. 2014), and we consider it important to
correct the district court’s conclusion that the international comity doctrine
is inapplicable to this sort of case. The dissent offers no persuasive reason
why our choice to address that issue is improper, other than its
disagreement with the merits of our comity analysis.
36 MUJICA V. AIRSCAN
304 U.S. 64 (1938). The Supreme Court has made an
exception to the Erie doctrine “when there are uniquely
federal interests at stake,” such as “litigation that implicates
the nation’s foreign relations.” Ungaro-Benages v. Dresdner
Bank AG, 379 F.3d 1227, 1232 (11th Cir. 2004). For
instance, “an issue concerned with a basic choice regarding
the competence and function of the Judiciary and the National
Executive in ordering our relationships with other members
of the international community must be treated exclusively as
an aspect of federal law.” Banco National de Cuba v.
Sabbatino, 376 U.S. 398, 425 (1964) (holding that the federal
common law act of state doctrine precluded a federal court
from considering a state law challenge to the Cuban
government’s expropriation of certain property). In a similar
vein, the federal foreign affairs doctrine requires federal
courts to dismiss state law claims based on their potential to
interfere with U.S. foreign relations. See Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 401 (2003); Zschernig, 389 U.S.
at 440–41. For the same reason, we must consider the
applicability of the international comity doctrine to these state
law claims.
International comity “‘is the recognition which one nation
allows within its territory to the legislative, executive or
judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its
own citizens or of other persons who are under the protection
of its laws.’” In re Simon, 153 F.3d 991, 998 (9th Cir. 1998)
(quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)); see also
Societe Nationale Industrielle Aerospatiale v. U.S. Dist.
Court for the S. Dist. of Iowa, 482 U.S. 522, 543 n.27 (1987)
(“Comity refers to the spirit of cooperation in which a
domestic tribunal approaches the resolution of cases touching
the laws and interests of other sovereign states.”); Black’s
MUJICA V. AIRSCAN 37
Law Dictionary 324 (10th ed. 2014) (defining “comity” as
“[a] practice among political entities (as countries, states, or
courts of different jurisdictions), involving esp[ecially]
mutual recognition of legislative, executive, and judicial
acts”).
Comity is not a rule expressly derived from international
law, the Constitution, federal statutes, or equity, but it draws
upon various doctrines and principles that, in turn, draw upon
all of those sources. It thus shares certain considerations with
international principles of sovereignty and territoriality;
constitutional doctrines such as the political question
doctrine; principles enacted into positive law such as the
Foreign Sovereign Immunities Act of 1976, 28 U.S.C.
§§ 1330, 1602, 1611 (2006); and judicial doctrines such as
forum non conveniens and prudential exhaustion.14 Comity
is a “rule of ‘practice, convenience, and expediency’ rather
than of law” that courts have embraced “to promote
cooperation and reciprocity with foreign lands.” Pravin
Banker Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d
850, 854 (2d Cir. 1997) (quoting Somportex Ltd. v. Phila.
Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971)).
14
“Case law equivocates between calling international comity a value
and a rule. As a value, it reflects the sense that cases affecting foreign
interests should be decided in a manner that accounts for these interests in
some way.” Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign
Relations Law, 116 Yale L.J. 1170, 1180 (2007). As a rule, courts “cite
international comity as an explanation for outcomes that are not explicitly
driven by” other international relations doctrines, such as
extraterritoriality, foreign sovereign immunity, the act of state doctrine,
and the Charming Betsy canon, which holds that “an ambiguous statute
will be interpreted to avoid conflicts with international law.” Id. at
1179–80.
38 MUJICA V. AIRSCAN
International comity is a doctrine of prudential abstention,
one that “counsels voluntary forbearance when a sovereign
which has a legitimate claim to jurisdiction concludes that a
second sovereign also has a legitimate claim to jurisdiction
under principles of international law.” United States v.
Nippon Paper Indus. Co., 109 F.3d 1, 8 (1st Cir. 1997). “The
doctrine has never been well-defined,” but comity “is clearly
concerned with maintaining amicable working relationships
between nations, a ‘shorthand for good neighbourliness,
common courtesy and mutual respect between those who
labour in adjoining judicial vineyards.’” JP Morgan Chase
Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418,
423 (2d Cir. 2005) (quoting British Airways Bd. v. Laker
Airways Ltd., [1984] E.C.C. 36, 41 (Eng. C.A.)).15
There are essentially “two distinct doctrines [which] are
often conflated under the heading ‘international comity.’” In
re S. African Apartheid Litig., 617 F. Supp. 2d 228, 283
(S.D.N.Y. 2009). The first is legislative or “prescriptive
comity,” which guides domestic courts as they decide the
extraterritorial reach of federal statutes. See Kiobel, 133 S. Ct.
at 1664; F. Hoffmann-La Roche Ltd. v. Empagran S.A.,
542 U.S. 155, 165 (2004); see also Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting)
(describing prescriptive comity as “the respect sovereign
nations afford each other by limiting the reach of their laws”);
15
See also Laker Airways Ltd. v. Sabena, Belgian World Airlines,
731 F.2d 909, 937 (D.C. Cir. 1984) (“‘Comity’ summarizes in a brief
word a complex and elusive concept—the degree of deference that a
domestic forum must pay to the act of a foreign government not otherwise
binding on the forum.”); Donald Earl Childress III, Comity as Conflict:
Resituating International Comity as Conflict of Laws, 44 U.C. Davis L.
Rev. 11, 13 (2010) (comity “is one of the most important, and yet least
understood, international law canons”).
MUJICA V. AIRSCAN 39
In re Maxwell Commc’n Corp. PLC by Homan, 93 F.3d 1036,
1047 (2d Cir. 1996) (describing prescriptive comity as a
“canon of [statutory] construction [that] might shorten the
reach of a [domestic] statute”).
The second strain of the doctrine is referred to as “comity
among courts” or adjudicatory comity, which “may be
viewed as a discretionary act of deference by a national court
to decline to exercise jurisdiction in a case properly
adjudicated in a foreign state.” Maxwell, 93 F.3d at 1047; see
also Hartford Fire, 509 U.S. at 817 (Scalia, J., dissenting)
(describing “comity of the courts” as a set of principles
“whereby judges decline to exercise jurisdiction over matters
more appropriately adjudged elsewhere”).16 Thus,
adjudicatory comity “involves . . . the discretion of a national
court to decline to exercise jurisdiction over a case before it
when that case is pending in a foreign court with proper
jurisdiction.” JP Morgan Chase Bank, 412 F.3d at 424. In
such a case, “deference to the foreign court is appropriate so
long as the foreign proceedings are procedurally fair and . . .
do not contravene the laws or public policy of the United
States.” Id.
16
Some commentators have identified other strains of international
comity, including so-called “executive comity,” which “provides the basis
for courts to invoke principles of deference to foreign sovereignty, as in
cases involving the Foreign Sovereign Immunities Act [ ] and act of state
doctrine,” see Childress III, supra, at 47, but only the first two are relevant
here.
40 MUJICA V. AIRSCAN
A. Standards for Applying Comity
1. Whether Adjudicatory Comity Requires a “True
Conflict”
The Supreme Court’s most recent most discussion of
international comity was in Hartford Fire, 509 U.S. at 798.
Hartford Fire did not explain, however, what factors we
should or must consider when addressing comity; in
particular, it left unclear whether a “true conflict” is a
predicate to prudential abstention on the grounds of comity.
The district court in the instant litigation held that, “at least in
the Ninth Circuit, the application of international comity is
generally limited to cases where there is a ‘true conflict’
between domestic and foreign law.” Mujica I, 381 F. Supp.
2d at 1155–56 (citing Hartford Fire, 509 U.S. at 794–95, and
In re Simon, 153 F.3d at 999). And Plaintiffs argue here that
“[t]he existence of a ‘true conflict’ is a threshold requirement
for abstention on international comity grounds,” and that “[i]n
this Court, . . . [the] rule is absolutely clear that application of
the law of international comity is limited to cases in which
there is in fact a true conflict between domestic and foreign
law.”
We do not think that Hartford Fire stands for the
proposition adopted by the district court and urged by
Plaintiffs. Hartford Fire involved the reach of U.S. antitrust
laws, which applied extraterritorially; in that case, the
question was whether a U.S. district court could exercise
jurisdiction over antitrust claims filed against a group of
London reinsurers. 509 U.S. at 769, 798–99. The London
reinsurers argued that, based on international comity, the
antitrust laws should not be read to extend to their activities,
which were regulated by British law. See id. at 797–98.
 MUJICA V. AIRSCAN 41
The Supreme Court stated that the “only substantial
question in th[e] litigation” was “whether there [wa]s in fact
a true conflict between domestic and foreign law.” Id. at 798
(internal quotation marks omitted). The defendants argued
that applying federal antitrust laws would conflict with
British law because Britain had established its own
comprehensive regulatory regime for antitrust issues and the
defendants’ conduct was consistent with British law. Id. at
798–99. But the Court held that this situation did not qualify
as a “true conflict,” explaining that “[n]o conflict exists, for
these purposes, where a person subject to regulation by two
states can comply with the laws of both.” Id. at 799. (internal
quotation marks and citation omitted). And “[s]ince the
London reinsurers d[id] not argue that British law require[d]
them to act in some fashion prohibited by the law of the
United States, or claim that their compliance with the laws of
both countries [wa]s otherwise impossible, [the Court saw] no
conflict with British law.” Id. (internal quotation marks
omitted).
In light of the lack of conflict, the Court held that there
was “no need . . . to address other considerations that might
inform a decision to refrain from the exercise of jurisdiction
on grounds of international comity.” Id. Justice Scalia
dissented from that part of the opinion and pointed out that
“prescriptive comity” or “the practice of using international
law to limit the extraterritorial reach of statutes” was “firmly
established.” Id. at 817–18 (Scalia, J., dissenting).
Since the majority did not address the “other
considerations” bearing on comity, the Court’s Hartford Fire
analysis “left unclear whether it was saying that the only
relevant comity factor in that case was conflict with foreign
law . . . or whether the Court was more broadly rejecting
42 MUJICA V. AIRSCAN
balancing of comity interests in any case where there is no
true conflict.” Harold Hongju Koh, Transnational Litigation
in United States Courts 80 (2008). We think that Hartford
Fire does not require proof of a “true conflict” as a
prerequisite for invoking the doctrine of comity, at least in a
case involving adjudicatory comity. See id. (concluding that
since such a reading of the case “would be a much more
dramatic result for the Court to have reached sub silentio, I
am inclined to doubt that it meant to rule so broadly”).
Since Hartford Fire, the circuits have refined the Court’s
“true conflict” analysis and have generally required proof of
such a conflict only in cases where prescriptive comity is at
issue—that is, where a party claims that it is subject to
conflicting regulatory schemes, such as antitrust laws or
bankruptcy rules that apply extraterritorially.17 As the
Southern District of New York has observed, “[i]n post-
Hartford Fire cases, conflict analysis has not been rigidly
invoked to preclude consideration of the full range of
principles relating to international comity. Rather, conflict
analysis is most often applied when comity principles
intersect with issues of statutory construction.” Freund v.
Republic of Fr., 592 F. Supp. 2d 540, 574 (S.D.N.Y. 2008)
(citation omitted), aff’d sub nom. Freund v. Societe Nationale
des Chemins de fer Francais, 391 F. App’x 939 (2d Cir.
2010) (unpublished); see also, e.g., Maxwell, 93 F.3d at 1049
(requiring a “true conflict” in a bankruptcy case).
17
See generally Christen Broecker, The Clash of Obligations:
Exercising Extraterritorial Jurisdiction in Conformance with Transitional
Justice, 31 Loy. L.A. Int’l & Comp. L. Rev. 405, 454–56 (2009)
(describing how some jurisdictions require a true conflict before triggering
comity).
MUJICA V. AIRSCAN 43
By contrast, the courts have not required proof of a true
conflict—although they have considered such a conflict
relevant—when considering adjudicatory comity. Instead,
the courts have considered a range of factors when deciding
whether to abstain from exercising jurisdiction due to a past
or potential judicial proceeding elsewhere. See, e.g.,
Ungaro-Benages, 379 F.3d at 1238 (determining that a true
conflict was not required and examining “the strength of our
government’s interests in using the Foundation [established
to hear claims from victims of the Nazis], the strength of the
German government’s interests, and the adequacy of the
Foundation as an alternative forum”); Bigio v. Coca-Cola
Co., 448 F.3d 176, 178 (2d Cir. 2006) (“[T]he only issue of
international comity properly raised here is whether
adjudication of this case by a United States court would
offend ‘amicable working relationships’ with Egypt.”
(citations omitted)); JP Morgan Chase Bank, 412 F.3d at 424
(deference to foreign adjudicatory proceedings “is appropriate
so long as the foreign proceedings are procedurally fair and
. . . do not contravene the laws or public policy of the United
States”); Int’l Nutrition Co. v. Horphag Research Ltd.,
257 F.3d 1324, 1329 (Fed. Cir. 2001) (“As a general rule,
comity may be granted where it is shown that the foreign
court is a court of competent jurisdiction, and that the laws
and public policy of the forum state and the rights of its
residents will not be violated.” (quotation marks and internal
citation omitted)); Freund, 592 F. Supp. 2d at 574 (“[T]he
existence of a true conflict does not bar the Court from
applying the doctrine and considering other legitimate
concerns implicated by United States courts exercising
jurisdiction over a foreign sovereign.”). But see S. African
Apartheid Litig., 617 F. Supp. 2d at 283 (holding true conflict
analysis required in ATS suit against corporations that
conducted business in apartheid South Africa).
44 MUJICA V. AIRSCAN
Our own decision in In re Simon—a prescriptive comity
case—is consistent with this pattern. There, we considered
whether a bankruptcy court could sanction a foreign creditor
for pursuing collection of a foreign debt that had been
discharged in bankruptcy. 153 F.3d at 994. Although the
creditor (HSBC) was based in Hong Kong, it had participated
in the bankruptcy proceeding in the United States. Id. We
began our analysis with a discussion of the extraterritorial
application of U.S. law. Id. at 995. We concluded that
“Congress intended extraterritorial application of the
Bankruptcy Code as it applies to property of the estate.” Id.
at 996.
We then turned to whether we were “require[d]” by
comity to vacate the bankruptcy court’s injunction. Id. at 997.
We noted that “[i]nternational comity in transnational
insolvency proceedings must be considered in the context of
bankruptcy theory.” Id. at 998. We then explained that the
Bankruptcy Code “provides for a flexible approach to
international insolvencies” in which there is general
“deference to the country where the primary insolvency
proceeding is located.” Id. The “sole, plenary insolvency
proceeding” involving the debtor had been in the United
States. Id. at 999. Because there were no “competing
bankruptcy proceedings,”18 and because HSBC (which was
18
The dissent seizes upon this language to argue that In re Simon was
“not merely a prescriptive comity case,” but also an adjudicative-comity
case. We are unconvinced. The Simon court emphasized the lack of
“conflicting bankruptcy proceedings” in that case not because the court
was conducting an adjudicative comity analysis but because that fact
proved that HSBC was in no danger of being exposed to two conflicting
bankruptcy schemes—a prescriptive-comity concern. The dissent’s
argument on this point also ignores our post-Simon cases—cases that are
inconsistent with the dissent’s reading of Simon. See infra at 45–46.
MUJICA V. AIRSCAN 45
seeking to apply comity to avoid sanctions from the US
bankruptcy court) had participated in the US bankruptcy
proceeding and had enjoyed its benefits, we held that, under
the circumstances, international comity did “not dictate a
result contrary to that reached by the district and bankruptcy
courts. Rather, it [wa]s consistent with the general principles
of international comity which is limited to cases in which
‘there is in fact a true conflict between domestic and foreign
law.’” Id. (quoting Hartford Fire, 509 U.S. at 798 (quotation
marks and citation omitted)).
Simply put, we do not interpret In re Simon—which
referenced the concept of a “true conflict” in passing and in
the specialized context of a bankruptcy statute that applied
extraterritorially—to require proof of “true conflict” as an
irreducible minimum for abstention in all comity cases.
Our other post-Hartford Fire cases also suggest that proof
of “true conflict” is not a prerequisite to comity. In those
cases we took account of whether there was a conflict
between American and foreign law. Even when we did not
find a conflict, we did not end our inquiry but moved on to
consider other factors. For example, in Metro Industries, Inc.
v. Sammi Corp., 82 F.3d 839, 846–47 (9th Cir. 1996), we
found no conflict between American and Korean law, but
considered other factors to determine the reach of the
Sherman Act. We looked to seven factors we had previously
set out in Timberlane Lumber Co. v. Bank of America,
549 F.2d 597, 614 (9th Cir. 1976) (“Timberlane I”), for what
we called “a jurisdictional rule of reason.” Id. at 613. One of
the Timberlane I factors was a conflict between foreign and
domestic law. We noted that Hartford Fire overruled our
holding in Timberlane Lumber Co. v. Bank of Am., 749 F.2d
1378 (9th Cir. 1984) (“Timberlane II”), as to what “would
46 MUJICA V. AIRSCAN
amount to conflict of law,” but determined that Hartford Fire
“did not question the propriety of the jurisdictional rule of
reason or the seven comity factors set forth in Timberlane I.”
Metro Indus., 82 F.3d at 846 n.5.
Similarly, in In re Grand Jury Proceedings, 40 F.3d 959,
964–65 (9th Cir. 1994), we presumed that there was a
difference between a grand jury witness’s rights under
American law and his rights under Austrian law regarding the
privacy of his Austrian bank accounts. That conflict,
however was not the “true conflict” described by the Court in
Hartford Fire. The laws of Austria and the United States did
not require the witness to commit inconsistent acts; rather, he
had greater privacy rights under Austrian law than American
law, but it would not violate Austrian law for him to waive
those rights in response to an order from a U.S. court. Id. at
966. Thus, the witness could “comply with the laws of both.”
Hartford Fire, 509 U.S. at 799 (quotation marks and citation
omitted). Had we believed that proof of a “true conflict” was
required, that fact would have ended our inquiry. It did not.
Instead, we decided that “[i]n considering international
comity, we balance the competing interests of Austria and the
United States . . . to determine whether the purported
illegality of the order under Austrian law precludes its
enforcement.” In re Grand Jury Proceedings, 40 F.3d at 965.
As our decisions in In re Simon, Metro Industries, and In
re Grand Jury Proceedings demonstrate, we have not read
Hartford Fire as imposing a rigid new set of requirements for
finding comity. At least in cases considering adjudicatory
comity, we will consider whether there is a conflict between
American and foreign law as one factor in, rather than a
prerequisite to, the application of comity.
MUJICA V. AIRSCAN 47
Accordingly, the district court erred when it required the
existence of a true conflict when it analyzed the application
of international comity. And, since the district court did not
identify the correct legal rule, “we must conclude it abused its
discretion.” Hinkson, 585 F.3d at 1262; see also, e.g., Perry
v. Brown, 667 F.3d 1078, 1084 (9th Cir. 2012).
Having determined that a true conflict is not always
required for the application of adjudicatory comity and that
the district court abused its discretion in concluding
otherwise, we proceed to consider the proper framework for
analyzing comity.
2. Factors Bearing on Adjudicatory Comity
Beyond the question of true conflict, courts have
struggled to apply a consistent set of factors in their comity
analyses. As one commentator has observed, because there
is “no clear analytical framework for its exercise, . . . courts
have been left to cobble together their own approach to
[international comity].” Childress III, supra, at 51. The
district court in this case followed a three-part framework
articulated by the Eleventh Circuit in Ungaro-Benages for the
prospective application of international comity. See Mujica I,
381 F. Supp. 2d at 1160 (citing Ungaro-Benages, 379 F.3d at
1238)).19 Under Ungaro-Benages’ approach, a court
19
The Ungaro-Benages court articulated different standards for
“retrospective” and “prospective” claims of adjudicatory comity. “When
applied retrospectively, federal courts evaluate three factors: (1) whether
the foreign court was competent and used ‘proceedings consistent with
civilized jurisprudence,’ (2) whether the judgment was rendered by fraud,
and (3) whether the foreign judgment was prejudicial because it violated
American public policy notions of what is decent and just.” 379 F.3d at
48 MUJICA V. AIRSCAN
“evaluate[s] several factors, including [1] the strength of the
United States’ interest in using a foreign forum, [2] the
strength of the foreign governments’ interests, and [3] the
adequacy of the alternative forum.” Ungaro-Benages,
379 F.3d at 1238 (citations omitted).
The Ungaro-Benages framework is a useful starting point
for analyzing comity claims, but the case offers no
substantive standards for assessing its three factors. Ungaro-
Benages tells us to consider the respective interests of the
United States and the foreign country, but it does not tell us
what interests count or what makes a foreign forum adequate
or inadequate. See id. at 1238–39. For those considerations,
we may draw on our oft-cited opinion in Timberlane I. We
note that the criteria we considered in that antitrust
case20—which also influenced § 403, “Limitations on
Jurisdiction to Prescribe” of the Restatement (Third) of
1238 (citation omitted). We find it unnecessary to draw a distinction
between retrospective and prospective comity in this case.
20
Timberlane I articulated seven elements courts should weigh:
[1] the degree of conflict with foreign law or policy, [2]
the nationality or allegiance of the parties and the
locations or principal places of businesses or
corporations, [3] the extent to which enforcement by
either state can be expected to achieve compliance, [4]
the relative significance of effects on the United States
as compared with those elsewhere, [5] the extent to
which there is explicit purpose to harm or affect
American commerce, [6] the foreseeability of such
effect, and [7] the relative importance to the violations
charged of conduct within the United States as
compared with conduct abroad.
549 F.2d at 614.
MUJICA V. AIRSCAN 49
Foreign Relations Law,21 see Koh, supra, at 66—are better
adapted to the commercial context. Nevertheless, these
factors help provide us with a general list of indicia to which
we may look when weighing U.S. and foreign interests and
the adequacy of the alternative forum.
a. U.S. interests
The (nonexclusive) factors we should consider when
assessing U.S. interests include (1) the location of the conduct
in question, (2) the nationality of the parties, (3) the character
21
The Restatement lists a number of considerations for determining
whether the exercise of jurisdiction is “unreasonable,” including:
(a) the link of the activity to the territory of the
regulating state, i.e., the extent to which the activity
takes place within the territory, or has substantial,
direct, and foreseeable effect upon or in the territory;
(b) the connections, such as nationality, residence, or
economic activity, between the regulating state and the
person principally responsible for the activity to be
regulated, or between that state and those whom the
regulation is designed to protect; (c) the character of the
activity to be regulated, the importance of regulation to
the regulating state, the extent to which other states
regulate such activities, and the degree to which the
desirability of such regulation is generally accepted[;]
(d) the existence of justified expectations that might be
protected or hurt by the regulation; (e) the importance
of the regulation to the international political, legal, or
economic system; (f) the extent to which the regulation
is consistent with the traditions of the international
system; (g) the extent to which another state may have
an interest in regulating the activity; and (h) the
likelihood of conflict with regulation by another state.
Restatement (Third) of Foreign Relations Law § 403(2) (1987).
50 MUJICA V. AIRSCAN
of the conduct in question, (4) the foreign policy interests of
the United States, and (5) any public policy interests. When
some or all of a plaintiff’s claims arise under state law, the
state’s interests, if any, should be considered as well. The
doctrine of comity is particularly concerned with “sovereign
interests,” Childress III, supra, at 61–62, and the sovereign
whose interests are relevant when a federal court is hearing
state-law claims is as much the individual state—whose law
the federal court must faithfully apply—as the United
States.22 Cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). See generally Restatement (Third) of Foreign
Relations Law § 403(2)(c) (courts considering whether
jurisdiction is reasonable should assess “the importance of
regulation to the regulating state” (emphasis added)). We
caution, however, that in cases of this kind there is always a
22
It bears mentioning that a state’s interest will not necessarily be in the
application of its own law to a case. Here, for example, although
Plaintiffs pled California causes of action, if the case were to proceed to
litigation, the district court would follow California’s conflict-of-laws
methodology, which calls for a governmental-interest analysis. See
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). That
analysis could favor the application of Colombia’s law rather than
California’s. See, e.g., Arno v. Club Med, Inc., 22 F.3d 1464, 1468 (9th
Cir. 1994) (under California’s governmental-interest analysis, French law,
rather than California law, applied to plaintiff’s tort claims against former
employer and supervisor); McGhee v. Arabian Am. Oil Co., 871 F.2d
1412, 1422–26 (9th Cir. 1989) (Saudi law, rather than California law,
applied to plaintiffs’ state-law claims against employer); Tucci v. Club
Mediterranee, S.A., 89 Cal. App. 4th 180, 194 (Ct. App. 2001)
(Dominican Republic law, rather than California law, applied to tort and
worker’s compensation claims); Hernandez v. Burger, 102 Cal. App. 3d
795, 804 (Ct. App. 1980) (Mexican law, rather than California law,
applied to personal-injury claims arising out of auto accident in Mexico).
Thus, in stating that a court sitting in diversity should consider the state’s
interests, we mean to refer primarily to the state’s interest, if any, in
providing a forum or remedy for particular claims.
MUJICA V. AIRSCAN 51
risk that “our foreign relations could be impaired by the
application of state laws, which do not necessarily reflect
national interests.” Ungaro-Benages, 379 F.3d at 1232–33.
Out of regard for that risk, we should be careful not to give
undue weight to states’ prerogatives.
We will discuss each of the foregoing factors in turn.
First, comity is most closely tied to the question of
territoriality. We should consider where the conduct in
question took place. This is a critical question in determining
the extraterritorial reach of U.S. statutes, see Kiobel, 133 S.
Ct. at 1663–65; Arabian Am. Oil, 499 U.S. at 248, and it is a
relevant consideration in adjudicatory comity as well. The
general presumption against extraterritorial application of
U.S. law recognizes that “United States law governs
domestically but does not rule the world.” Microsoft,
550 U.S. at 454. Comity similarly rests on respect for the
legal systems of members of the international legal
community—a kind of international federalism—and thus
“serves to protect against unintended clashes between our
laws and those of other nations which could result in
international discord.” Arabian Am. Oil, 499 U.S. at 248.
Not surprisingly, U.S. courts have afforded far less
weight, for comity purposes, to U.S. or state interests when
the activity at issue occurred abroad. See Torres v. S. Peru
Copper Corp., 965 F. Supp. 899, 909 (S.D. Tex. 1996)
(dismissing action under comity where the “activity and the
alleged harm occurred entirely in Peru [and] Plaintiffs are all
residents of Peru”), aff’d, 113 F.3d 540 (5th Cir. 1997);
Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S.D. Tex.
1994) (declining jurisdiction under comity where challenged
activity occurred entirely in Ecuador); see also Chowdhury v.
52 MUJICA V. AIRSCAN
Worldtel Bangl. Holding, Ltd., 746 F.3d 42, 49 (2d Cir. 2014)
(reversing lower court and foreclosing jurisdiction over ATS
claims filed by Bangladeshi plaintiff allegedly detained and
tortured by Bangladeshi authorities in Bangladesh). See
generally Koh, supra, at 18–19, 51–57 (describing courts’
aversion to adjudicating extraterritorially as rooted in
principle of national sovereignty).
Second, we should take account of whether any of the
parties are United States citizens or nationals, and also
whether they are citizens of the relevant state. See Jota v.
Texaco, Inc., 157 F.3d 153, 155 (2d Cir. 1998) (vacating
dismissal, on forum non conveniens, comity, and failure to
join indispensable party grounds, of action by Ecuadorians
against American oil company for injuries that allegedly
resulted from action in Ecuador); Reebok Int’l, Ltd. v.
Marnatech Enters., Inc., 970 F.2d 552, 556–57 (9th Cir.
1992) (holding that U.S. courts have jurisdiction where some
parties were U.S. corporations and U.S. persons and other
non-nationals had substantial contacts with the United States).
As we previously discussed in the context of the ATS, even
if the presence of U.S. nationals as defendants does not
establish jurisdiction in this country on its own, it can, as we
have noted, contribute to a finding that there is a “nexus”
between the United States and the parties and claims in a
case. See supra; see also, e.g., Sarei v. Rio Tinto PLC (“Sarei
III”), 650 F. Supp. 2d 1004, 1016 (C.D. Cal. 2009), aff’d in
part, rev'd in part and remanded, 671 F.3d 736 (9th Cir.
2011), cert. granted, judgment vacated sub nom. Rio Tinto
PLC v. Sarei, 133 S. Ct. 1995 (2013) and aff’d, 722 F.3d
1109 (9th Cir. 2013).
Kiobel and the lower-court decisions that have followed
in its wake confirm the importance of these first two factors
MUJICA V. AIRSCAN 53
to courts’ jurisdictional analyses in cases involving
international events. While Kiobel and its progeny
specifically address the interpretation of a statute—the
ATS—and not the prudential international comity doctrine,
the guiding principle of those cases applies equally in the
context of adjudicatory comity: the weaker the nexus between
the challenged conduct and U.S. territory or U.S. parties, the
weaker the justification for adjudicating the matter in U.S.
courts and applying U.S. federal or state law.
The third factor we should consider bearing on U.S.
interests is the nature of the conduct in question. We should
ask whether the action is civil or criminal; whether it sounds
in tort, contract, or property; and whether the conduct is a
regulatory violation or is a violation of international norms
against torture, war crimes, or slavery. See Sosa v.
Alvarez-Machain, 542 U.S. 692, 731–33 (2004); Filartiga v.
Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980). These
inquiries may inform our judgment of the importance of the
issue to the United States or to an individual state. The closer
the connection between the conduct and core prerogatives of
the sovereign, the stronger that sovereign’s interest. For
example, in Timberlane I, which was an antitrust case, we
considered “the relative significance of effects on the United
States as compared with those elsewhere, the extent to which
there is explicit purpose to harm or affect American
commerce, . . . and the relative importance to the violations
charged of conduct within the United States as compared with
conduct abroad.” Timberlane I, 549 F.2d at 614.
Fourth, we must take cognizance of the foreign policy
interests of the United States. As we do when applying the
political question, act of state, and foreign affairs doctrines,
we must respect the Constitution’s commitment of the foreign
54 MUJICA V. AIRSCAN
affairs authority to the political branches. U.S. Const. art. I,
§ 8, cl. 3 (“The Congress shall have Power . . . To regulate
Commerce with foreign Nations”); art. II, § 2 (“[The
President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties . . . and he . . . shall
appoint Ambassadors, other public Ministers and Consuls);
art. II, § 3 (“[The President] shall receive Ambassadors and
other public Ministers”). See Garamendi, 539 U.S. at
413–15; Japan Line, Ltd. v. Cnty. of Los Angeles, 441 U.S.
434, 449 (1979); Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 427 (1964); Baker, 369 U.S. at 211.
Courts have found that U.S. interests weigh against
hearing cases where doing so would be harmful to U.S.
foreign policy. See Hwang Geum Joo v. Japan, 413 F.3d 45,
52 (D.C. Cir. 2005) (dismissing as nonjusticiable ATS claims
brought by Korean women in light of U.S government’s
argument that “adjudication by a domestic court not only
would undo a settled foreign policy of state-to-state
negotiation with Japan, but also could disrupt Japan’s delicate
relations with China and Korea, thereby creating serious
implications for stability in the region” (internal quotation
marks omitted)); Ungaro-Benages, 379 F.3d at 1239
(abstaining in light of strong foreign policy interest in
promoting settlement of Nazi-era claims through
government-backed forum); O.N.E. Shipping Ltd. v. Flota
Mercante Grancolombiana, S.A., 830 F.2d 449, 451 (2d Cir.
1987) (affirming dismissal where district court concluded that
U.S.-Colombian relations would likely suffer if U.S. litigation
proceeded in light of foreign state’s “strong interest” in
relevant protectionist legislation and ownership interest in
defendant). This deference is rooted, in part, in separation of
power concerns. See Christopher v. Harbury, 536 U.S. 403,
417 (2002) (dismissing claim by Guatemalan widow alleging
MUJICA V. AIRSCAN 55
federal officers concealed information about her husband’s
fate and holding that “if there is to be judicial enquiry, it will
raise concerns for the separation of powers in trenching on
matters committed to the other branches”).
Fifth, we may also weigh U.S. public policy interests, and
those of the relevant state to a lesser extent, for “courts will
not extend comity to foreign proceedings when doing so
would be contrary to the policies . . . of the United States.”
Pravin, 109 F.3d at 854. For example, we have held that
there is a strong U.S. interest justifying U.S. jurisdiction in
“preventing trademark violations,” Reebok Int’l, 970 F.2d at
556, and we have spoken of the strong U.S. policy favoring
enforcement of arbitration and forum selection clauses. See
Dependable Highway Exp. v. Navigators Ins. Co., 489 F.3d
1059, 1068–69 (9th Cir. 2007). The Second Circuit has also
refused to extend international comity to a foreign state’s debt
negotiations as contrary to American policy because the
United States “encourages participation in, and advocates
success of” such debt resolution procedures, and the United
States “has a strong interest in ensuring the enforceability of
valid debts . . . owed to United States lenders.” Pravin,
109 F.3d at 855.
We have treated differences in legal approach cautiously,
however. Even when foreign practices may differ from
American ones, we will respect those differences so long as
the variance does not violate strongly-held state or federal
public policy. See Belize Telecom, Ltd. v. Gov’t of Belize,
528 F.3d 1298, 1307 (11th Cir. 2008) (holding that decision
allowing Government of Belize to remove directors of
telecom company did not “violate[] American public policy”
where decision “merely g[ave] effect to the plain language”
56 MUJICA V. AIRSCAN
of corporate articles of incorporation, which were interpreted
under Belizean law).
b. Foreign interests
The proper analysis of foreign interests essentially mirrors
the consideration of U.S. interests. Foreign states, no less
than the United States, have legitimate interests in regulating
conduct that occurs within their borders, involves their
nationals, impacts their public and foreign policies, and
implicates universal norms. See Mich. Cmty. Servs., Inc. v.
NLRB, 309 F.3d 348, 356 (6th Cir. 2002).
Accordingly, courts have considered the territoriality of
the questioned activity, its effects, the nationality of the
parties, and the interests of the foreign state when deciding
whether to exercise jurisdiction. See Jota, 157 F.3d at 160
(holding that deference to foreign state’s position on matters
that took place within its territory is “inherent in the concept
of comity”); see also Sequihua, 847 F. Supp. at 62 (declining
jurisdiction in part because of Ecuador’s “official[]” protest
that the litigation “will do ‘violence’ to the international legal
system”).
To illustrate, in Bi, the Second Circuit held that individual
victims of the Bhopal gas leak disaster in India, which
harmed almost exclusively Indians, did not have standing to
challenge a settlement reached between India and the
company responsible for the tort in light of an Indian law
granting the Indian government exclusive standing to
represent victims of the disaster. 984 F.2d at 586 (declining
“to pass judgment on the validity of India’s response to a
disaster that occurred within its borders” because doing so
“would disrupt our relations with that country and frustrate
MUJICA V. AIRSCAN 57
the efforts of the international community to develop methods
to deal with problems of this magnitude in the future”); see
also, e.g., Freund, 592 F. Supp. at 578 (declining jurisdiction
where “Plaintiffs’ claims [we]re inextricably connected to
France”).
c. The adequacy of the forum
The interests of the United States and the foreign
government must be evaluated in light of the adequacy of the
foreign forum. When it comes to the adequacy of the forum,
courts consider decisions rendered by the alternative forum
and ask “‘(1) whether the judgment was rendered via fraud;
(2) whether the judgment was rendered by a competent court
utilizing proceedings consistent with civilized jurisprudence;
and (3) whether the foreign judgment is prejudicial [and] . . .
repugnant to fundamental principles of what is decent and
just.’” Belize Telecom, 528 F.3d at 1306 (quoting Turner
Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1519 (11th
Cir. 1994)). Typically, courts ask whether one side has
presented specific evidence that the judgment of the
alternative forum was significantly inadequate. See id. (“In
this case, neither party has argued that the Belizean
judgments were rendered via fraud or that the Belizean
proceedings lacked any element of civilized jurisprudence.”).
The Second Circuit, for example, has held that deference
to the judgment of a “foreign court is appropriate so long as
the foreign proceedings are procedurally fair and . . . do not
contravene the laws or public policy of the United States.” JP
Morgan Chase Bank, 412 F.3d at 424. In that case, the court
deferred to the jurisdiction of the Mexican courts even though
there was a six-year delay in resolving the litigation, since
such a delay did not result in “manifest injustice” or violate
58 MUJICA V. AIRSCAN
“fundamental standards of procedural fairness.” Id. at 428
(internal quotation marks omitted); see also Jota, 157 F.3d at
160 (“When a court dismisses on the ground of comity, it
should normally consider whether an adequate forum exists
in the objecting nation and whether the defendant sought to
be sued in the United States forum is subject to or has
consented to the assertion of jurisdiction . . . in the foreign
forum.”); U.S. ex rel. Saroop v. Garcia, 109 F.3d 165, 170
(3d Cir. 1997) (invoking comity to defer to foreign court on
validity of extradition treaty absent assertion that foreign state
failed to follow regular judicial proceedings, engaged in
prejudicial or fraudulent practices, or refused to extend
deference to United States’ judicial findings).23
We are justly proud of our legal system. But we
recognize that there are other legal systems that have
effected, in different ways, our constitutional values of
separation of powers, due process of law, and the equal
protection of the law. Comity, as the “golden rule among
nations,” compels us to “give the respect to the laws, policies
and interests of others that [we] would have others give to
[our] own in the same or similar circumstances.” Mich.
Cmty. Servs., Inc., 309 F.3d at 356 (internal quotation marks
omitted).
23
Our decision in the context of the Hague Convention on the Civil
Aspects of International Child Abduction is not contrary to these
principles. In Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009), we
held that a Greek court’s decision that a child’s mother had not wrongly
retained a child was not entitled to comity because the Greek court clearly
misapplied the provisions of the Hague Convention, completely failed to
determine the child’s habitual residence, as required by the Hague
analysis, and made no factual findings to support its determination that the
father had failed to exercise custody rights. Id. at 1016–17.
 MUJICA V. AIRSCAN 59
Accordingly, we proceed under the Ungaro-Benages
framework as we have elaborated it from the case law,
mindful that comity is circumstance-dependent and not
susceptible to mechanical application. “Since comity varies
according to the factual circumstances surrounding each
claim for its recognition, the absolute boundaries of the duties
it imposes are inherently uncertain.” Laker Airways, 731 F.2d
at 937.
B. Analysis
1. U.S. Interests
At first blush, the United States’s interests in this case
appear to be mixed. On the one hand, as we have explained,
the conduct complained of—Occidental and AirScan’s
alleged cooperation with the CAF in the bombing at Santo
Domingo—took place entirely in Colombia. Plaintiffs have
not adequately pled any factual matter suggesting that any
planning or operations took place in the United States. All
the Plaintiffs, moreover, are or were Colombian citizens and
residents at the time of the bombings. Cf. Balintulo, 727 F.3d
at 189. On the other hand, the United States has an interest in
upholding international human rights norms, and Plaintiffs
allege that Defendants’ actions violated international norms
in several respects. See Sarei III, 650 F. Supp. 2d at
1020–21. Occidental and AirScan, moreover, are U.S.-
chartered corporations, with Occidental a citizen of
California, and the United States has manifested some level
of interest in the good behavior of its corporate citizens
abroad, see, e.g., Foreign Corrupt Practices Act, 15 U.S.C.
§ 78dd–1, although the United States does not monitor or
regulate all the behavior of its citizens, natural or corporate,
60 MUJICA V. AIRSCAN
overseas. See Microsoft Corp., 550 U.S. at 454; Morrison,
547 F.3d 167, 174 (2d Cir. 2008).
The United States, however, has spoken directly on the
question of its interests in this case. The district court
particularly credited the State Department’s Supplemental
SOI and concluded it was “strong evidence that the United
States, in the interest of preserving its diplomatic relationship
with Colombia, prefers that the instant case be handled
exclusively by the Colombian justice system.” Mujica I,
381 F. Supp. 2d at 1161. The SOI, dated December 23, 2004,
articulated several reasons why “the State Department
believes that the adjudication of this case will have an adverse
impact on the foreign policy interests of the United States.”
First, it referenced the related actions which were then
ongoing in Colombia against the Colombian government and
military personnel regarding the incident. It noted that the
American companies that are the subject of the instant suit
were not then subject to the suits in the Colombian courts, but
it added that Occidental had stipulated to service and
consented to jurisdiction in Colombia.
Second, the State Department wrote that it “believe[d]
that foreign courts generally should resolve disputes arising
in foreign countries, where such courts reasonably have
jurisdiction and are capable of resolving them fairly. An
important part of our foreign policy is to encourage other
countries to establish responsible legal mechanisms for
addressing and resolving alleged human rights abuses.” It
warned that the instant case could give the impression that the
U.S. government “does not recognize the legitimacy of
Colombian judicial institutions” and that those “perceptions
could potentially have negative consequences for our bilateral
relationship with the Colombian government.” The State
MUJICA V. AIRSCAN 61
Department praised Colombia as one of the United States’
“closest allies in this hemisphere,” and it warned that lawsuits
like this one “have the potential for deterring present and
future U.S. investment in Colombia.” Finally, the letter
explained that “reduced U.S. investment in Colombia’s oil
industry” might, in turn, “detract from the vital U.S. policy
goal of expanding and diversifying our sources of imported
oil.”
The United States reiterated these interests in its amicus
brief during the initial appeal. It wrote that “the particular
foreign policy interests identified by the United States’
Supplemental Statement of Interest warrant dismissal of the
litigation under the doctrine of international comity.” The
amicus brief went on to argue that the “district court properly
recognized the ‘substantial interest’ of the United States and
the ‘strong interest’ of our regional ally, Colombia, in having
the lawfulness of military action reportedly taken by
Colombian military officials in the course of fighting
insurgents in that country adjudicated exclusively in
Colombian courts.” It also noted the favorable judgment the
victims of the attack received from the Colombian
government that was then on appeal and has now been
affirmed. There is nothing to suggest that the State
Department has since changed its views.
The Supreme Court has said that “should the State
Department choose to express its opinion on the implications
of exercising jurisdiction over particular petitioners in
connection with their alleged conduct, that opinion might
well be entitled to deference as the considered judgment of
the Executive on a particular question of foreign policy.”
Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004); see
Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57, 74
62 MUJICA V. AIRSCAN
(2d Cir. 2005) (crediting U.S. government’s expression of
interests when dismissing as nonjusticiable under the political
question doctrine claims brought against Austria).
That guidance is particularly apt here. This is not a case
in which the State Department has issued no SOI or an
equivocal SOI and the United States’ position might be less
entitled to deference. See, e.g., Gross, 456 F.3d at 389–90
(declining to defer to U.S. government’s preference where
“the United States Executive has taken no position on the
merits of this dispute, and has not promised dismissal or
intervention.”). Here, the State Department asked for the case
to be dismissed, first by strong implication in the SOI, and
then explicitly in its amicus brief, which urged the affirmance
of the district court’s judgment of dismissal. Accordingly, we
“give serious weight to the Executive Branch’s view of [this]
case’s impact on foreign policy,” Sosa, 542 U.S. at 733 n.21,
and we conclude that the United States’ interest in having the
case adjudicated exclusively in Colombia is strong.
California’s interest in this case weighs somewhat more
in favor of our adjudicating Plaintiffs’ claims than does the
United States’ national interest. We have previously
acknowledged, for example, that California has a “significant
interest in providing a forum for those harmed by the actions
of its corporate citizens.” Carijano, 643 F.3d at 1232. But
this interest is a general interest in good corporate behavior24
24
Were California to manifest a specific interest in redressing claims
arising out of the Santo Domingo incident or in Colombia’s drug wars
more generally, its interests could well be preempted by the political
branches’ foreign affairs power. “‘[E]ven in [the] absence of a treaty” or
federal statute, a state may violate the constitution by ‘establish [ing] its
own foreign policy.’” Deutsch v. Turner Corp., 324 F.3d 692, 709 (9th
Cir. 2003) (quoting Zschernig v. Miller, 389 U.S. at 441); see also
MUJICA V. AIRSCAN 63
and should not be overstated, given that Plaintiffs are not
California citizens, that their claims concern events that
occurred abroad, and that one Defendant (AirScan) is not a
California resident corporation. See Saleh v. Titan Corp.,
580 F.3d 1, 12 (D.C. Cir. 2009) (commenting, in state-law
tort case brought against by foreign plaintiffs and arising out
of events in foreign country, that “the interests of any U.S.
state . . . are de minimis in this dispute”). In any event,
California’s interest in having this case adjudicated here
scarcely outweighs the United States’ unambiguous
preference to the contrary. As the Supreme Court has stated,
“[t]here is . . . no question that at some point an exercise of
state power that touches on foreign relations must yield to the
National Government’s policy.” Garamendi, 539 U.S. at
413–14. In light of the forcefully expressed views of the
State Department, we conclude that that point has clearly
been reached in this case.
2. Colombian Interests
We next consider the strength of Colombia’s interest in
litigating the matter. See Ungaro-Benages, 379 F.3d at 1238.
As in Bi, the activity here occurred exclusively within the
territory of a foreign state and involved solely foreign
victims. 984 F.2d at 586. Although Defendants are U.S.
corporations, the district court correctly concluded that
“Colombia has a strong interest in preventing this Court’s
jurisdiction over the instant case.” Mujica I, 381 F. Supp. 2d
at 1162. The court came to that conclusion after considering
one of the two démarches from the Colombian Ministry of
Foreign Affairs that were attached to the SOI. Id. Both
Garamendi, 539 U.S. at 396; Movsesian v. Victoria Versicherung AG,
670 F.3d 1067, 1071–72 (9th Cir. 2012).
64 MUJICA V. AIRSCAN
démarches referenced, by case number, the instant matter’s
district court litigation. The first démarche, dated February
25, 2004, informed the U.S. Embassy in Bogota that “the
Colombian judiciary in accordance with the principle of
territoriality” was investigating the Santo Domingo bombing
and assessing “the responsibility of agents of the Colombian
Government” who were involved in it. The second
démarche, dated March 12, 2004, stated simply: “The
Ministry of Foreign Affairs wishes to add that the
Government of Colombia is of the opinion that any decision
in this case may affect the relations between Colombia and
the US.” While the second démarche did not explain why
Colombia holds this position, the SOI surmised that
Colombia had a strong interest in avoiding duplicative
litigation that “may be seen as unwarranted and intrusive” or
would show disrespect for the “legitimacy of Colombian
judicial institutions.” In any event, as the district court
observed, the Colombian government does not have “to
explain itself to a federal court.” Mujica I, 381 F. Supp. 2d at
1162.
Although Colombia’s position is not detailed, “inherent
in the concept of comity is the desirability of having the
courts of one nation accord deference to the official position
of a foreign state, at least when the position is expressed on
matters concerning actions of the foreign state taken within
or with respect to its own territory.” Jota, 157 F.3d at 160.
Here, Colombia has done exactly that—it has taken a specific
position on an incident that occurred within its territory
involving its nationals. See also Freund, 592 F. Supp. 2d at
578 (crediting the official position of both the United States
and France that France should be the “exclusive” forum for
addressing plaintiffs claims where the underlying act
occurred in France).
MUJICA V. AIRSCAN 65
This situation thus stands in clear contrast to other cases
where a foreign state did not express an interest in having its
courts serve as a forum for relevant litigation. See Abad v.
Bayer Corp., 563 F.3d 663, 668 (7th Cir. 2009) (“[N]either
[Argentina nor the United States] appears to have any interest
in having the litigation tried in its courts rather than in the
courts of the other country; certainly no one in the
government of either country has expressed to us a desire to
have these lawsuits litigated in its courts.”); Pacheco de Perez
v. AT&T Co., 139 F.3d 1368, 1378 (11th Cir. 1998) (“[W]e
think it significant . . . that the Venezuelan government has
taken no position on whether this lawsuit proceeds in the
United States or Venezuela.”).
Under the comity doctrine, we seek “to foster
international cooperation and encourage reciprocal
recognition of U.S. judgments in foreign courts.” United
States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1,
8 (D.D.C. 2013) (citing Oetjen v. Cent. Leather Co., 246 U.S.
297, 304 (1918) (“To permit the validity of the acts of one
sovereign state to be reexamined and perhaps condemned by
the courts of another would very certainly imperil the
amicable relations between governments and vex the peace of
nations.”)).
Accordingly, we find that Colombia’s interest in serving
as the exclusive forum for this litigation is strong.
3. Adequacy of the Colombian Forum
Finally, we turn to the adequacy of the foreign forum.
Ungaro-Benages, 379 F.3d at 1238. The district court (Judge
Rea) originally reasoned that “federal courts will not review
foreign judgments unless the parties challenging that
66 MUJICA V. AIRSCAN
judgment demonstrate that it was unfair.” Mujica I, 381 F.
Supp. 2d at 1163 (citing Hilton, 159 U.S. at 202–03). It held
that the showing of an “adequate alternative forum” was a
“necessary condition to apply the doctrine of international
comity.” Id. It then concluded that Colombia was an
inadequate forum because Colombian law would not permit
a second recovery in addition to the judgment Plaintiffs won
against the Colombian government in Mario Galvis Gelves,
et al. v. The Nation. See id. at 1147–48.
On remand in 2010, we directed the district court (Judge
Wu) to consider the prudential exhaustion issue and the effect
of the Galvis Gelves and Romero Pradilla matters, a directive
which necessarily required it to reevaluate the adequacy of
the alternative forum. With the benefit of the subsequent
Colombian decisions, Judge Wu came to a different
conclusion than Judge Rea.
As an initial matter, Judge Wu applied a burden-shifting
standard: once a defendant shows that a foreign forum would
have jurisdiction and would provide a remedy for a
meritorious claim, the party “asserting inadequacy or delay
must make a powerful showing.” Tuazon v. R.J. Reynolds
Tobacco Co., 433 F.3d 1163, 1179 (9th Cir. 2006); see also
Carijano v. Occidental Petroleum, Corp., 643 F.3d 1216,
1225 (9th Cir. 2011) (holding Peru provided an adequate
alternative forum in action brought by members of Peruvian
indigenous group and California nonprofit against petroleum
company for environmental contamination).25
25
These cases determined the adequacy of the alternative forum for
forum non conveniens purposes, although this analysis is “equally
pertinent to dismissal on the grounds of comity.” Jota, 157 F.3d at 160;
see also Ford v. Brown, 319 F.3d 1302, 1304 n.3 (11th Cir. 2003) (noting
MUJICA V. AIRSCAN 67
Under this standard, the district court held that
“Occidental seems to have met its initial burden of showing
the availability of local remedies.” In particular, Occidental
had consented to jurisdiction in Colombia, and Plaintiffs
could have proceeded in a separate suit against Defendants in
Colombia at the time of their initial Colombian litigation.
The court reviewed Plaintiffs’ assertion that they could not
practically have brought suit in Colombia because they feared
physical danger and had fled. The court noted that
Occidental “at least refuted some of Plaintiffs’ contentions
regarding the threats to their physical safety.” It found that
Plaintiffs had “pursue[d] a suit in Colombia for years, [had]
filed court papers in Colombia with names, addresses, and
telephone numbers, and [that] two of the Plaintiffs [had]
posed for photos in connection with a 2003 newspaper
interview in Colombia.” The court cited evidence in the
record that showed that Plaintiffs could have filed their case
directly in Bogota if they felt unsafe in Santo Domingo. It
also noted that Plaintiffs did not have to be physically present
in Colombia to pursue litigation against Defendants. The
court concluded that Plaintiffs had not made a “powerful
showing” that the foreign forum would be inadequate.
Accordingly, “[i]f exhaustion were required, Occidental
would probably prevail on its demonstration of availability of
local remedies and the lack of futility.” The court concluded
that prudential exhaustion was not required in the case but
that, if it were to impose such a requirement, “it would find
that Defendant Occidental ha[d] met its burden of pleading
and proving the availability of local remedies and Plaintiffs’
failure to exhaust them.”
that comity and forum non conveniens calculuses are “ultimately
intertwined”).
68 MUJICA V. AIRSCAN
We credit Judge Wu’s finding of adequacy as superseding
the earlier, contrary finding.26 Defendants, in their previous
filings and again before us, have averred that they are
available for service of process and would waive any statute
of limitations claims if Plaintiffs were to bring action against
them in Colombian courts.27 And “Occidental’s ‘voluntary
submission to service of process’ suffices to meet the first
26
The dissent takes us to task for our reliance on Judge Wu’s findings,
dismissing Judge Wu’s determination of adequacy as “merely dictum” and
the findings of a “substitute district judge.” But while we acknowledge
that Judge Wu’s analysis was not addressed to the international comity
doctrine, as Judge Rea’s was, we cannot accept the dissent’s contention
that we should therefore privilege Judge Rea’s findings, which were based
on a less complete record. Judge Wu was able to take into account new
and important information that was unavailable to Judge Rea—namely,
the subsequent developments in the Colombian proceedings—and his
opinion is a valuable source of insight on this issue. The dissent does not
and cannot offer any persuasive reason for ignoring Judge Wu’s opinion.
27
The dissent dismisses these statements, arguing that there is “no basis”
for the idea that Defendants would actually have submitted to jurisdiction
in Colombia if they had been joined in the litigation there. But there is
ample reason why they might have done so. Civil defendants often make
such concessions in cases where they face a choice between litigating in
an inconvenient and unattractive forum in the United States or a
convenient forum abroad. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S.
235, 242 (1981) (in case involving airplane crash in Scotland, defendants
“agreed to submit to the jurisdiction of the Scottish courts and to waive
any statute of limitations defense that might be available”); Loya v.
Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 664 (9th Cir.
2009) (holding that Mexico was an adequate forum for forum non
conveniens purposes, where “all defendants agreed to accept service,
submit to [Mexican] jurisdiction, and waive any statute of limitations
defenses”). Had Defendants resisted jurisdiction in Colombia, they would
have substantially weakened their position with respect to issues such as
forum non conveniens and international comity if they were subsequently
sued in the United States.
MUJICA V. AIRSCAN 69
requirement for establishing an adequate alternative forum.”
Carijano, 643 F.3d at 1225 (quoting Tuazon, 433 F.3d at
1178); see also Bigio, 239 F.3d at 454 (suggesting that the
existence of an alternate forum, and defendant’s amenability
to suit in foreign jurisdiction, should be considered in comity
analysis).
Considering the significant success Plaintiffs have had in
litigation against the Colombian government and the
convictions Colombia secured against the individuals
responsible for the Santo Domingo bombing, Plaintiffs have
not made a “powerful showing” that the Colombian forum is
“clearly unsatisfactory.” Piper Aircraft Co. v. Reyno,
454 U.S. 235, 254 n. 22 (1981) (noting such a circumstance
is “rare”); see Lueck v. Sundstrand Corp., 236 F.3d 1137,
1144 (9th Cir. 2001) (“The effect of Piper Aircraft is that a
foreign forum will be deemed adequate unless it offers no
practical remedy for the plaintiff’s complained of wrong.”).
To the contrary, the Colombian legal system addressed the
Santo Domingo incident in two ways: through criminal
sanctions and civil reparations.
Relying on the expert testimony in the record, we
conclude that Plaintiffs could have originally sued
Defendants in Colombia when they sued the government, but
they chose not to do so. Plaintiffs pursued litigation against
the Colombian government despite fears of physical danger
and, even conceding Plaintiffs’ legitimate fears, they “have
not shown that their ‘physical presence in [Colombia] is
required to pursue the civil action.” Argueta v. Banco
Mexicano, S.A., 87 F.3d 320, 327 (9th Cir. 1996).
Nor is there anything in the record to suggest that the
Colombian courts’ decisions resulted in “manifest injustice”
70 MUJICA V. AIRSCAN
or violated “fundamental standards of procedural fairness.”
JP Morgan Chase Bank, 412 F.3d at 428; see also LG
Display Co. Ltd. v. Obayashi Seikou Co., Ltd., 919 F. Supp.
2d 17, 30–31 (D.D.C. 2013) (holding that a judgment is
repugnant to U.S. policy, such that it may be denied comity,
only if it tends to undermine the public interest, the public
confidence in the administration of the law, or security for
individual rights of personal liberty or of private property);
Collins v. Oilsands Quest, Inc., 484 B.R. 593, 597 (S.D.N.Y.
2012) (“[A] foreign judgment should generally be accorded
comity if its proceedings are ‘fair and impartial.’”).
In light of Plaintiffs’ substantial victory against the
Colombian government, they are barred by Colombian law
from a secondary recovery from Defendants. But Colombia’s
single-recovery rule does not render the forum inadequate.
See Piper Aircraft Co., 454 U.S. at 254–55 (noting that a
forum can be adequate even where there is the potential for
a smaller damage award); Ungaro-Benages, 379 F.3d at 1239
(“The [alternative forum] offers victims of the Nazi era
adequate remedy, even if [it] cannot provide as substantial an
award as American courts.”); Gonzalez v. Chrysler Corp.,
301 F.3d 377, 381–82 (5th Cir. 2002) (invoking comity to
hold that Mexican courts are not inadequate under doctrine of
forum non conveniens because cap on damages effectively
bars lawsuit for wrongful death of a child); see also Bi,
984 F.2d at 586 (deferring to Indian jurisdiction addressing
mass tort); cf. Freund, 592 F. Supp. 2d at 576 (holding
alternate forum adequate even though “[n]o amount of money
can possibly be fair under [these] circumstances” (alterations
in original) (internal citation omitted)).
Any lack of a remedy against Defendants thus stems from
Plaintiffs’ failure to sue Defendants in Colombia rather than
MUJICA V. AIRSCAN 71
from the inadequacy of the Colombian legal system. We
note, in this regard, that American jurisdictions regularly
apply single-recovery rules in other circumstances without
violating fundamental standards of procedural fairness. See,
e.g., Duran v. Town of Cicero, Ill., 653 F.3d 632, 642 (7th
Cir. 2011) (“A judgment that can be read to allow a plaintiff
to recover twice [from different defendants] for the same
injury contains a manifest error of law.”); Vesey v. United
States, 626 F.2d 627, 633 (9th Cir. 1980) (“The general
theory of compensatory damages bars double recovery for the
same wrong. The principal situation is where joint or
concurrent tortfeasors are jointly and severally liable for the
same wrong. Only one complete satisfaction is permissible,
and, if partial satisfaction is received from one, the liability
of others will be correspondingly reduced” (internal quotation
marks omitted)).
In sum, because of the strength of the U.S. government’s
interest in respecting Colombia’s judicial process, the
weakness of California’s interest in this case, the strength of
Colombia’s interests in serving as an exclusive forum, and the
adequacy of the Colombian courts as an alternative forum, we
conclude that all of the claims before us are nonjusticiable
under the doctrine of international comity. See Ungaro-
Benages, 379 F.3d at 1239.
The crimes Plaintiffs allege are abominable, but the facts
of this case nonetheless favor applying adjudicatory comity.
Both nations have explicitly requested that our courts abstain
from adjudicating a matter that was already litigated in
Plaintiffs’ favor in an adequate alternative forum. The United
States has articulated a strong interest in respecting the
judicial process of Colombia and furthering the development
of the rule of law there. The Colombian courts have shown
72 MUJICA V. AIRSCAN
themselves willing to vindicate Plaintiffs’ legitimate claims
against that country’s government for its military’s acts, and
the government has proven itself both willing and able to hold
the individuals responsible for the bombing to account, as the
Galvis Gelves and Romero Pradilla litigation show. Thus,
our forbearance in this circumstance is “consistent with those
notions of comity that lead each nation to respect the
sovereign rights of other nations by limiting the reach of its
laws and their enforcement.” Sosa, 542 U.S. at 761 (Breyer,
J., concurring).
VI. CONCLUSION
We affirm the district court’s judgment. We do not reach
any of the other issues raised on this appeal.
AFFIRMED.
ZILLY, Senior District Judge, concurring in part and
dissenting in part:
For over 11 years, plaintiffs1 have been seeking justice in
our courts for the role that two U.S. corporations allegedly
played in atrocities committed in the Republic of Colombia.
On December 13, 1998, one or more cluster bombs were
dropped from a Colombian Air Force helicopter onto the
1
Plaintiffs Luis Alberto Galvis Mujica (“Luis”) and John Mario Galvis
Mujica are brothers; plaintiff Mario Galvis Gelvez is their father. Certain
of their claims, namely the claim under Cal. Bus. & Prof. Code §§ 17200
& 17204, and Luis’s tort claims, were dismissed as time barred. Plaintiffs
have not challenged such rulings on appeal.
MUJICA V. AIRSCAN 73
village of Santo Domingo, killing 17 unarmed civilians,
including six children, and wounding 25 others. Plaintiff
Mario Galvis Gelvez (“Galvis”) was seriously injured in the
raid, and his wife, daughter, and niece were among the
massacred. Although the pilot and co-pilot of the helicopter
were convicted of murder and sentenced to 30 years in prison,
plaintiff Galvis received only $55,800, and each of his sons
received only $21,762, in “symbolic” compensation from the
Colombian government. To date, defendant Occidental
Petroleum Corporation (“Occidental”), a California
corporation, and defendant AirScan, Inc. (“AirScan”), a
Florida corporation, have not been required to answer for
their alleged participation in the planning and execution of
the attack on Santo Domingo.
Instead, plaintiffs’ claims against these U.S. corporations,
brought pursuant to the Alien Tort Statute (“ATS”),
28 U.S.C. § 1350, were dismissed on improper grounds, and
their appeal from this erroneous decision has been
unreasonably delayed for close to a decade.2 Unfortunately,
plaintiffs’ long ordeal might now end with the majority
affirming the dismissal of plaintiffs’ ATS claims by relying
on a distinguishable Supreme Court decision, Kiobel v. Royal
Dutch Petroleum Co., 133 S. Ct. 1659 (2013), announced
almost eight years after the district court granted defendants’
Rule 12(b)(6) motion. The majority also affirms the
2
A prior panel of this Court remanded the matter for the district court
to “consider whether a prudential exhaustion requirement applies in this
case.” On remand, the case was reassigned, and the substitute judge
devoted two pages of his order to the reasons why he was baffled by the
directions on limited remand. Now that the matter has returned to us,
defendants challenge whether we have jurisdiction. I agree with the
majority that the case is properly before us on plaintiffs’ original notice of
appeal.
74 MUJICA V. AIRSCAN
dismissal of plaintiffs’ related state law claims by applying an
unfamiliar rendition of the international comity doctrine,
without addressing whether the district court correctly
premised its decision on the foreign affairs doctrine. In its
unwieldy opinion, which inappropriately reaches issues not
before us, the majority does nothing but “keep the word of
promise to our ear, [a]nd break it to our hope.” See id. at
1677 (Breyer, J., concurring in the judgment). Because the
majority would, without good reason, deny plaintiffs the right
to seek basic justice, I must dissent.3
A. Alien Tort Statute Claims
The ATS provides that “[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty
of the United States.” 28 U.S.C. § 1350. In Kiobel, the
Supreme Court held that this jurisdictional statute does not
apply unless the ATS claims “touch and concern” the United
States “with sufficient force to displace the presumption
against extraterritorial application.” 133 S. Ct. at 1669. The
majority misinterprets Kiobel as requiring, in addition to a
defendant’s U.S. citizenship, “conduct” that occurred within
the United States. For both procedural and substantive
reasons, the majority is wrong to impose this standard on
plaintiffs in this case.
In 2005, at the time the district court ruled on defendants’
Rule 12(b)(6) motion to dismiss, Kiobel had not yet begun its
path to the Supreme Court. See Mujica v. Occidental
3
I do, however, concur with the conclusion that plaintiffs’ claim under
the Torture Victims Protection Act was appropriately dismissed because
defendants are corporations.
MUJICA V. AIRSCAN 75
Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005); see
also Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d
457 (S.D.N.Y. 2006), aff’d in part, rev’d in part, 621 F.3d
111 (2d Cir. 2010), aff’d, 133 S. Ct. 1659 (2013). The district
court based its dismissal of plaintiffs’ ATS claims on the
political question doctrine,4 and plaintiffs’ initial appearance
before us, as well as their first brief submitted to us following
the limited remand, predated the Supreme Court’s decision in
Kiobel. Plaintiffs have never been given an opportunity at the
district court level to amend their complaint in light of Kiobel
or to move for jurisdictional discovery or similar relief. See
Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d
406, 430 n.24 (9th Cir. 1977) (“a court may allow discovery
to aid in determining whether it has in personam or subject
matter jurisdiction”).5 The majority ignores the liberality
4
I would reverse the district court’s ruling on the political question
doctrine. This case does not impact the relationship between the federal
judiciary and the coordinate branches of the federal government. See
Baker v. Carr, 369 U.S. 186, 210 (1962). Plaintiffs’ ATS claims do not
raise any issue that is constitutionally committed to another political
department, the standards for deciding plaintiffs’ ATS claims are
“judicially discoverable and manageable,” plaintiffs’ ATS claims do not
require an “initial policy determination” of a nonjudicial nature or an
“unquestioning adherence to a political decision already made,” and
resolution of plaintiffs’ ATS claims will not express any lack of respect
for the legislative or executive branches or subject the parties to
“multifarious pronouncements by various departments.” See id. at 217.
5
The majority suggests that the pleading requirements of Rule 8 must
be satisfied “before the discovery stage, not after it,” citing Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009), but Iqbal has not been understood by
our sister circuits to so hold. See Menard v. CSX Transp., Inc., 698 F.3d
40, 45 (1st Cir. 2012) (observing that “some latitude” is appropriate when
the information needed for a “plausible” claim is in a defendant’s control,
and cautioning that Iqbal and its predecessor, Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), must be “tempered by sound discretion” to achieve
76 MUJICA V. AIRSCAN
with which leave to amend is to be granted, particularly when
an intervening decision has meaningfully altered the standard
for pleading, see Moss v. U.S. Secret Serv., 572 F.3d 962, 972
(9th Cir. 2009), and engages in a flawed futility analysis.6
Thus, even under the majority’s misreading of Kiobel’s
“touch and concern” test, simply affirming the dismissal of
plaintiffs’ ATS claims, without allowing plaintiffs a chance
to conform their complaint to the majority’s previously
unannounced standard, is not an appropriate or fair result.
“a sensible compromise between competing legitimate interests”); Loosier
v. Unknown Med. Doctor, 435 Fed. App’x 302, 307 (5th Cir. 2010) (“As
we have said in the past, we do not require plaintiffs to plead facts
peculiarly within the knowledge of defendants.”); see also Amidax
Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140, 149 (2d Cir. 2011)
(acknowledging that “a court should take care to give the plaintiff ample
opportunity to secure and present evidence relevant to the existence of
jurisdiction,” but affirming the district court’s denial of jurisdictional
discovery because the relevant evidence was in the control of the plaintiff,
not the defendants).
6
The majority’s reliance on Bonin v. Calderon, 59 F.3d 815 (9th Cir.
1995), for the proposition that futility “can, by itself, justify the denial of
. . . leave to amend,” id. at 845 (omissions by the majority), is misplaced
in the context of this case. In Bonin, the assessment of futility had been
performed in the first instance by the district court, and the issue on appeal
was whether the district court had properly exercised its discretion. Id. at
845–46. In affirming the denial of leave to amend the petition for writ of
habeas corpus, the Bonin Court simply agreed with the district court that
the “proposed amendments are either duplicative of existing claims or
patently frivolous, or both.” Id. at 846. Unlike in Bonin, which came to
federal court after trials in two different counties concerning the crimes
committed in each, followed by direct appeals and state habeas corpus
proceedings, we do not have the type of record that allows us to decide
whether an attempt by plaintiffs to cure the deficiencies, if any, of their
complaint would be futile.
MUJICA V. AIRSCAN 77
The majority reaches its decision by improvidently
extending Kiobel. Kiobel is limited to ATS claims by foreign
nationals against foreign corporations concerning activities
taking place on foreign soil. The Kiobel Court was “careful
to leave open” for “further elaboration and explanation” a
“number of significant questions,” 133 S. Ct. at 1669
(Kennedy, J., concurring), including the extent to which ATS
claims against entities incorporated and domiciled in the
United States, like defendants in this case, are justiciable. In
a separate opinion in Kiobel, four justices indicated that they
would conclude jurisdiction exists under the ATS based
solely on the fact that “the defendant is an American
national.” Id. at 1671 (Breyer, J., joined by Ginsburg,
Sotomayor, and Kagan, JJ., concurring in the judgment).7 As
observed in that concurrence, “[m]any countries permit
foreign plaintiffs to bring suits against their own nationals
based on unlawful conduct that took place abroad.” Id. at
1675. Indeed, the principle that a sovereign may exercise
jurisdiction to prescribe the conduct of its nationals outside its
territory is widely recognized. See Restatement (Third) of
Foreign Relations Law § 402(2) (1987).
In concluding that a defendant’s incorporation within the
United States is an insufficient basis for jurisdiction under the
ATS and that plaintiffs must allege some “conduct” within
our borders, the majority misconstrues Kiobel’s “touch and
concern” test, which is focused on the connection between the
7
The majority incorrectly suggests that the opinion of these four
Justices, concerning the sufficiency of U.S. citizenship to confer
jurisdiction under the ATS, did not carry the day. Kiobel was decided on
other grounds, and the Supreme Court explicitly left for another day the
question presented in the instant case. The day for decision has now
come, and we should accept the invitation of the concurring Justices and
hold that U.S. citizenship is enough.
78 MUJICA V. AIRSCAN
ATS “claims” and the United States. See 133 S. Ct. at 1669.
As recognized by the Fourth Circuit in a decision issued after
we heard oral argument in this case, the Kiobel Court’s use of
the term “claims,” rather than “alleged tortious conduct” or
similar phrases, in crafting the “touch and concern” standard
was purposeful, “suggesting that courts must consider all
facts that give rise to ATS claims, including the parties’
identities and their relationship to the causes of action.” Al
Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th
Cir. 2014). The majority, however, essentially disregards
defendants’ U.S. citizenship, which is a fundamental feature
of plaintiffs’ ATS “claims,” and which renders application of
the ATS, by definition, not extraterritorial. Cf. Ahmed v.
Magan, 2013 WL 4479077 (S.D. Ohio Aug. 20, 2013)
(concluding that the presumption against extraterritoriality
was rebutted by the defendant’s status as a permanent
resident of the United States). Unless an ATS claim is
premised purely on vicarious liability,8 a defendant who
8
In summarizing the holdings of various post-Kiobel decisions, the
majority fails to recognize the distinction between vicarious liability and
direct claims. In both Ben-Haim v. Neeman, 543 Fed. App’x 152 (3d Cir.
2013), and Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013), which
the majority cites for the proposition that other federal courts have found
U.S. citizenship alone inadequate, the ATS claims were premised solely
on vicarious liability. In Ben-Haim, the principals whose actions were
being challenged were all high-ranking Israeli officials, including a Justice
of Israel’s Supreme Court, two former cabinet-level Ministers, and a judge
of the Haifa Rabbinical District Court. 543 Fed. App’x at 153. No
allegation was made that the U.S. defendants, namely three charitable
organizations, were directly involved in, or controlled the activities of the
Israeli officials in connection with, the child custody disputes underlying
the ATS claims; rather, the plaintiffs sought to hold the nonprofits
vicariously liable for lobbying in favor of policies that allegedly promoted
discrimination against fathers in Israeli courts. Id. Similarly, in Balintulo,
the principals were not U.S. nationals, but rather South African
MUJICA V. AIRSCAN 79
violates the law of nations while domiciled in the United
States must necessarily engage in at least one predicate act
within our borders. The majority’s treatment of U.S.
citizenship as just “one factor” among other unspecified
factors simply begs the question of what act is sufficient or
how many acts are enough to establish jurisdiction. I would
instead hold that the ATS confers jurisdiction when an ATS
claim is brought against a domestic corporation or other U.S.
national, without any allegation of underlying conduct within
the United States.9
The ATS was enacted by our First Congress as a means
of vesting in the district courts jurisdiction to hear private
causes of action for certain torts in violation of the law of
nations, including piracy. See Sosa v. Alvarez-Machain, 542
companies, and the complaint alleged only vicarious liability of the named
defendants, three U.S. corporations, of which the South African
companies were subsidiaries. 727 F.3d at 192. Unlike Ben-Haim and
Balintulo, this case involves direct liability, with allegations that, during
the raid on Santo Domingo, which was planned in Occidental’s office at
Caño Limón, three U.S. employees of AirScan manned the aircraft from
which the targets of the cluster bombs were selected. Plaintiffs are
entitled to the reasonable inference that such conduct could not have
occurred absent financial and/or managerial support from defendants’ U.S.
offices. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (for
purposes of a Rule 12 motion, “all material allegations of the complaint
are accepted as true, as well as all reasonable inferences to be drawn from
them”). After all, we deal here not with whether plaintiffs have proven
their ATS claims by a preponderance of the evidence, but instead with
whether plaintiffs have pleaded “only enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570.
9
As indicated elsewhere in this partial dissent, if U.S. incorporation is
not sufficient to confer jurisdiction over plaintiffs’ ATS claims, I would
at least allow plaintiffs an opportunity to amend their complaint to satisfy
the “touch and concern” requirements imposed by the majority.
80 MUJICA V. AIRSCAN
U.S. 692, 724–25 (2004) (citing 4 W. Blackstone,
Commentaries on the Laws of England 68 (1769) [hereinafter
“Blackstone”]). Piracy and its modern-day equivalents,
including torture and genocide, are of particular concern to
the sovereign bearing primary responsibility for policing the
activities of the perpetrators because failure to “animadvert
upon them with a becoming severity” might render the
sovereign “an accomplice or abettor of [its] subject’s crime,
and draw[] upon [its] community the calamities of foreign
war.” 4 Blackstone at 68; see also Cardona v. Chiquita
Brands Int’l, Inc., 760 F.3d 1185, 1193 (11th Cir. 2014)
(Martin, C.J., dissenting) (“The United States would fail to
meet the expectations of the international community were
we to allow U.S. citizens to travel to foreign shores and
commit violations of the law of nations with impunity.”). In
focusing on the ATS “claims,” and not the underlying
“conduct,” the Kiobel Court carefully left open the door
through which foreign victims of heinous acts by U.S.
nationals could hold such individuals or corporate entities
accountable. The majority now unnecessarily slams the door
shut.
Had plaintiffs conceded that no act related to the 1998
bombing in Santo Domingo occurred in the United States, the
majority might have been justified in analyzing whether
Kiobel should be extended to preclude ATS claims as to
which the only “touch and concern” allegation is the fact of
incorporation in the United States. Plaintiffs, however,
suggested quite the opposite. They reminded us that the
contract pursuant to which AirScan provided security services
for Occidental in Colombia might have been executed within
our borders. Cf. Al Shimari, 758 F.3d at 530–31 (holding that
jurisdiction existed with regard to ATS claims arising from
interrogations conducted by civilian contractors at the Abu
MUJICA V. AIRSCAN 81
Ghraib prison because inter alia the contract to perform
interrogation services in Iraq was issued in the United States
to a U.S. corporation). In addition, far from capitulating
about the absence of any financial or managerial connection
between the corporate facilities in our country and the events
in Santo Domingo, plaintiffs have asked for leave to amend,
with the decision in Kiobel as their new guide. We should
follow the lead of Doe I v. Nestle USA, Inc., 766 F.3d 1013
(9th Cir. 2014), and refrain from any “imprudent . . . attempt
to apply and refine the touch and concern test,” id. at 1028,
when the pleadings before us were framed long before Kiobel
was even conceived. For the reasons articulated in Doe I, I
would reverse and remand this case to allow plaintiffs to
amend their complaint in light of Kiobel. See also Doe I &
Doe VIII v. Exxon Mobil Corp., — F. Supp. 3d —, 2014 WL
4746256 at *14 (D.D.C. Sep. 23, 2014) (“[T]he Court is of
the view that plaintiffs should have the opportunity to file for
leave to amend their complaint in light of the intervening
change in the law created by Kiobel.”).10
10
The majority cites this and several other district court decisions in an
attempt to demonstrate some weight of authority in support of its
misreading of Kiobel. Two of these cases, however, are decided on
alternate grounds, including the plaintiff’s lack of standing, Ahmed-Al-
Khalifa v. Al-Assad, 2013 WL 4401831 (N.D. Fla. Aug. 13, 2013), and the
plaintiff’s failure to qualify as “an ‘alien’ who may file suit under the
ATS,” Mwangi v. Bush, 2013 WL 3155018 (E.D. Ky. June 18, 2013).
Two other cases involve defendants who were neither U.S. citizens nor
U.S. residents at the time they allegedly committed heinous acts on
foreign soil. Warfaa v. Ali, — F. Supp. 2d —, 2014 WL 3734121 (E.D.
Va. July 29, 2014); Mamani v. Berzaín, — F. Supp. 2d —, 2014 WL
2069491 (S.D. Fla. May 20, 2014). Yet other opinions concern motions
for summary judgment, which require much more of the opposing party
than the Rule 12 motion currently at issue, see Adhikari v. Daoud &
Partners, 2013 WL 4511354 (S.D. Tex. Aug. 23, 2013), modified on other
grounds, 994 F. Supp. 2d 831 (S.D. Tex. 2014); Giraldo v. Dummond Co.,
82 MUJICA V. AIRSCAN
B. State Law Tort Claims
1. Foreign Affairs Doctrine
The district court concluded that the foreign affairs
doctrine precluded plaintiffs’ wrongful death, intentional
infliction of emotional distress, and negligent infliction of
emotional distress claims. See Mujica, 381 F. Supp. 2d at
1187–88. While recognizing that tort law is within the
traditional competence of the states, the district court
reasoned that the strong federal foreign policy interests in this
case, as evidenced by the Supplemental Statement of Interest
filed by the United States, outweighed the weak interests of
California concerning plaintiffs’ tort claims. Id.; see also Am.
Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). I would
affirm this portion of the district court’s decision. The
majority, however, expressly declines to examine whether
dismissal on the basis of the foreign affairs doctrine was
appropriate.
2013 WL 3873960 (N.D. Ala. July 25, 2013), address a problem of
potentially inconsistent judgments, which is not relevant here, see Jovic
v. L-3 Servs., Inc., — F. Supp. 3d —, 2014 WL 4748614 at *6 (N.D. Ill.
Sep. 24, 2014) (observing that the Croatian military leaders who
participated in Operation Storm, which the U.S. defendants allegedly
helped plan and execute, were convicted of war crimes, but their
convictions were later overturned), or are otherwise distinguishable, see
Doe I v. Cisco Sys., Inc., — F. Supp. 2d —, 2014 WL 4446381 at *5
(N.D. Cal. Sep. 5, 2014) (ruling that the plaintiffs had failed to establish
the defendants “directed, planned, or committed the violations that
occurred in China”); see also In re South African Apartheid Litig., 2013
WL 6813877 (S.D.N.Y. Dec. 26, 2013) (relating to Balintulo, a vicarious
liability case). For the foregoing reasons, the various district court
decisions on which the majority relies are of little persuasive value.
MUJICA V. AIRSCAN 83
2. International Comity Doctrine
Instead of addressing the ground on which the district
court actually relied in reaching its decision, the majority
focuses on the district court’s refusal to premise the dismissal
of plaintiffs’ state law claims on the doctrine of international
comity. Declining to decide a matter on the basis of
international comity is a form of abstention, and a district
court’s decision whether to abstain is subject to review only
for an abuse of discretion. JP Morgan Chase Bank v. Altos
Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 422 (2d Cir.
2005); Remington Rand Corp.-Del. v. Bus. Sys. Inc., 830 F.2d
1260, 1266 (3d Cir. 1987); see Stock W. Corp. v. Taylor,
964 F.2d 912, 918 (9th Cir. 1992). In concluding that the
district court abused its discretion, the majority relies on a
very suspect version of the international comity doctrine,
which it substitutes for the foreign affairs doctrine as the
reason to dismiss plaintiffs’ state law claims. Although a
district court’s ruling may be affirmed on alternate grounds,
prudence weighs against doing so when the original ground
for dismissal is sound and the substitute basis involves, as
here, announcing novel views regarding the underlying legal
doctrine and reliance on facts unsupported by the record.
The majority cites to a law review article that describes
international comity as “one of the most important, and yet
least understood, international law canons.” Donald Earl
Childress III, Comity as Conflict: Resituating International
Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11, 13
(2010). The majority’s opinion raises more questions than it
answers. The article explains that international comity may
take three forms: (i) legislative or prescriptive comity,
involving the extraterritorial reach of domestic legislation;
(ii) executive comity, which offers deference to foreign
84 MUJICA V. AIRSCAN
sovereignty; or (iii) adjudicative comity or the “comity of
courts.” Id. at 47. To invoke legislative comity as a basis for
abstaining from deciding the merits of a case, a court must
conclude that a “true conflict between domestic and foreign
law” exists. Hartford Fire Ins. Co. v. Cal., 509 U.S. 764,
798–99 (1993). When a person subject to regulation by two
countries can comply with the laws of both, no conflict exists.
Id. at 799.
Adjudicative comity arises in two contexts:
(i) determining the preclusive effect or enforceability of a
foreign ruling or judgment; or (ii) evaluating whether to stay
or dismiss an action in a domestic court in favor of either a
pending or future proceeding in a foreign forum. See 44 U.C.
Davis L. Rev. at 47–48. The Eleventh Circuit has grouped
these situations in a slightly different manner, describing
“retrospective” application of adjudicative comity as either
according respect to foreign judgments or deferring to
parallel foreign proceedings, and “prospective” application as
occurring when a domestic action is stayed or dismissed
based on the respective interests of the domestic and foreign
governments and the adequacy of the foreign forum in
potentially resolving the dispute. See Ungaro-Benages v.
Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. 2004).
The Third Circuit has observed that, absent the “true
conflict” required for legislative comity or a basis for
“retrospective” application of adjudicative comity, United
States courts “rarely” refrain from exercising their
jurisdiction on the ground of international comity.11 Gross v.
11
As recognized by the district court, neither legislative comity nor
retrospective adjudicative comity are relevant in this case. See Mujica v.
Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1154–64 (C.D. Cal.
MUJICA V. AIRSCAN 85
German Found. Indus. Initiative, 456 F.3d 363, 393 (3d Cir.
2006). Indeed, in Gross, the Third Circuit expressed
skepticism about the Eleventh Circuit’s use of “prospective”
adjudicative comity, which appears inconsistent with “our
‘virtually unflagging obligation’ to exercise the jurisdiction
granted to us, which is not diminished simply because foreign
relations might be involved.” Id. at 394 (citations omitted).
I would join the Third Circuit in declining to follow the
Eleventh Circuit down the “prospective” comity path. The
majority, however, insists on forging ahead, despite the
existence of a far less controversial basis for affirming the
district court’s decision, namely the foreign affairs doctrine,
and adopts the “prospective” application of the adjudicative
comity rubric.
Along the way, the majority characterizes as an abuse of
discretion the district court’s observation that, “at least in the
Ninth Circuit, the application of international comity is
generally limited to cases were there is a ‘true conflict’
between domestic and foreign law,” and its subsequent
conclusion that “it must treat the existence of a ‘true conflict’
as a threshold requirement.” Mujica v. Occidental Petroleum
Corp., 381 F. Supp. 2d 1134, 1155 (C.D. Cal. 2005) (citing In
re Simon, 153 F.3d 991, 999 (9th Cir. 1998)). Of course, In
re Simon stands for the exact proposition stated by the district
court, and contrary to the majority’s suggestion, In re Simon
was not merely a prescriptive comity case. Rather, consistent
with principles of adjudicative comity, In re Simon
considered the fact that “there is no conflicting proceeding in
2005). No “true conflict” exists between the laws of the United States and
the laws of Colombia concerning the bombing of civilians, no foreign
judgment has been procured by or against defendants, and no foreign
proceedings involving defendants were ever ongoing.
86 MUJICA V. AIRSCAN
a foreign nation.” 153 F.3d at 999. Although I agree with the
majority that the “true conflict” analysis discussed in
Hartford was aimed solely at legislative or prescriptive
comity, I am unwilling, in light of In re Simon and the Third
Circuit’s reasoning in Gross, to conclude that adjudicative
international comity, whether “retrospective” or
“prospective,” does not contain a similar threshold.
I am also troubled by the majority’s application of
prospective adjudicative comity. When ruling on defendants’
motion to dismiss on forum non conveniens and international
comity grounds, the district court concluded that Colombia
was not, at that time, an adequate forum because plaintiffs
would be barred from recovering against defendants because
they had already received reparation from the Colombian
government. 381 F. Supp. 2d at 1147–48. On limited
remand, the substitute district judge interpreted his task as
determining whether prudential exhaustion applied to
plaintiffs’ ATS claims; he did not engage in such analysis
with respect to plaintiffs’ state law claims. The district judge
concluded that exhaustion of local remedies was not required
because the nexus between plaintiffs’ ATS claims and the
United States was sufficiently strong, primarily because
defendants are U.S. corporations, and the ATS claims
involved matters of “universal concern.” I agree with this
conclusion. See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 824
(9th Cir. 2008) (en banc).
The remainder of the substitute district judge’s order on
limited remand, in which he indicated his belief that
defendants can prove the availability of local remedies for
plaintiffs’ claims and plaintiffs’ failure to exhaust them, is
merely dictum. The majority, however, credits it over the
earlier contrary conclusion of the original district judge,
MUJICA V. AIRSCAN 87
which was necessary to his decision to deny defendants’
motion on forum non conveniens and international comity
grounds. To elevate, in this manner, dictum that was uttered
for an entirely different purpose, concerning a wholly
separate legal doctrine, contradicts virtually every principle
of stare decisis and is simply not the way in which our courts
should operate.
In addition, the majority’s conclusion that plaintiffs could
have sued defendants in Colombia in September 2000, when
they commenced their action against the Colombian
government, is erroneously premised on defendants’ waivers
of personal jurisdiction defenses, provided in connection with
their August 2004 motion to dismiss for forum non
conveniens. The record contains no basis for believing that
defendants, who have made, throughout the 11-year span of
this case, every possible argument that might justify
dismissal, would have foregone such defenses had they
actually been joined in the litigation in Colombia. In sum,
because the dismissal of plaintiffs’ state law claims can be
affirmed on the ground articulated by the district court, I see
no reason to expand the scope of the international comity
doctrine, particularly when the procedural posture and facts
of this case do not support the result reached under the
majority’s newly minted standard.
C. Conclusion
The majority needlessly announces novel standards that
will thwart the ability of not only these plaintiffs, but also of
every other alien who seeks to hold a U.S. corporation
accountable for atrocities committed abroad. Having enjoyed
the benefits of incorporation within the United States,
defendants in this case should also be required to answer in
88 MUJICA V. AIRSCAN
a court of the United States for any role they might have
played in the 1998 bombing of Santo Domingo.