Abagninin v. Amvac Chemical Co

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AKEBO ABAGNININ; AMANGOUA 
ABLI; MIESSAN ETIENNE ABLI; ABA
ABOU; YAPO PIERRE ABOUA; KOFFI
ANTOINE ABRI; AMPOH ADAMA;
TOURE ABRY; HARUNA
ABUBAKARAY; KROYA ACA;
SIMPLICE ACHIEPO,
No. 07-56326
Plaintiffs-Appellants,
v.  D.C. No.
CV-06-06157-GW
AMVAC CHEMICAL CORPORATION;
OPINION
DOW CHEMICAL COMPANY; SHELL
OIL COMPANY; DOLE FOOD
COMPANY, INC.; DOLE FRESH FRUIT
CO; STANDARD FRUIT CO.;
STANDARD FRUIT AND STEAMSHIP
COMPANY,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
July 18, 2008—Pasadena, California
Filed September 24, 2008
Before: Cynthia Holcomb Hall and Pamela Ann Rymer,
Circuit Judges, and Stephen M. McNamee,* District Judge.
*The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
13521
13522 ABAGNININ v. AMVAC CHEMICAL CORP.
Opinion by Judge McNamee
13526 ABAGNININ v. AMVAC CHEMICAL CORP.
COUNSEL
Raphael Metzger, Metzger Law Group, Long Beach, Califor-
nia, for the plaintiffs-appellants.
Edwin V. Woodsome, Jr., Orrick, Herrington & Sutcliffe, Los
Angeles, California, for defendant-appellee The Dow Chemi-
cal Company; Lawrence P. Riff, Steptoe & Johnson, Los
Angeles, California, for defendant-appellee Shell Oil Com-
pany; Robert G. Crow, Boornazian, Jensen & Garthe, Oak-
land, California, for defendant-appellee AMVAC Chemical
Corporation; Frederick L. McKnight, Jones Day, Los Ange-
les, California, for defendants-appellees Dole Food Company,
et al.
OPINION
MCNAMEE, District Judge:
Akebo Abagninin and others who live and work in the
Ivory Coast (“Abagninin”)1 appeal the district court’s dis-
missal with prejudice of their claims against manufacturers,
distributors, and users of the pesticide DBCP for genocide and
crimes against humanity under the Alien Tort Statute
(“ATS”), 28 U.S.C. § 1350.2 Abagninin alleges that DBCP
1
Plaintiffs-Appellants are collectively referred to as “Abagninin.” The
parties against whom he proceeds are collectively referred to as
“AMVAC” unless context otherwise requires.
2
On the same day, Abagninin filed seven actions against the same par-
ties in state court seeking relief under state law for negligence, breach of
warranty, and various other product liability theories.
ABAGNININ v. AMVAC CHEMICAL CORP. 13527
caused male sterility and low sperm counts, which AMVAC
knew. The district court granted with prejudice AMVAC’s
motion for judgment on the pleadings as to the genocide claim
for failure to allege that AMVAC acted with specific intent.
Abagninin’s claim for crimes against humanity was subse-
quently dismissed for failure to allege that AMVAC’s conduct
occurred within the context of a State or organizational pol-
icy. We affirm.
I. FACTS AND PROCEEDINGS BELOW
Abagninin is a West African foreign national who has
resided and worked on banana and pineapple plantations in
the Ivory Coast villages of Kakoukro and Ono. AMVAC is a
private business entity that designed, manufactured, or
required the use of the agricultural pesticide 1,2 Dibromo-3-
Chloropropane (“DBCP”). Abagninin alleges that DBCP
exposure caused male sterility and abnormally low sperm
counts, and resulted in the prevention of births.
Abagninin alleges that AMVAC knew of DBCP’s toxicity
as early as the 1950s, and that by the fall of 1977 the use of
DBCP was suspended in the United States. Abagninin further
alleges that despite knowing the negative health effects of
DBCP, AMVAC continued manufacturing, selling, and using
DBCP on the Ivory Coast plantations. Dole Food Company,
Inc., through its subsidiary Standard Fruit Company, allegedly
entered into partnership agreements with an Ivory Coast gov-
ernmental entity known as “Société d’Etat pour le Développe-
ment de la Production des Fruitières et Légumes” (“Sodefel”).
Sodefel allegedly owned and operated the fruit plantations.
Under the alleged partnership agreements, Dole Food would
purchase all fruit produced by the plantations, and Sodefel
would grow the fruit according to Dole Food’s specifications.
These specifications allegedly included the use of DBCP pro-
duced by Dow Chemical Company, Shell Oil Company, or
AMVAC Chemical Corporation.
13528 ABAGNININ v. AMVAC CHEMICAL CORP.
Abagninin contends that the partnership agreements and
resulting use of DBCP caused sterility and low sperm counts
in plantation workers, as a result of which they cannot procre-
ate. Abagninin further contends that such conduct supports
claims under the ATS for genocide and crimes against
humanity because the conduct was undertaken with knowl-
edge of DBCP’s effects and pursuant to a State or organiza-
tional policy. The original complaint alleged genocide, crimes
against humanity, racial discrimination, and unlawful distribu-
tion of pesticides in violation of the laws of nations. Dow
Chemical moved for judgment on the pleadings under Rule
12(c), and AMVAC joined this motion.
On March 23, 2007, the district court dismissed with preju-
dice Abagninin’s claims for genocide and unlawful distribu-
tion of pesticides. The district court found that Abagninin
failed to allege a violation of applicable norms of interna-
tional law regarding genocide and unlawful distribution of
pesticides. Specifically, the district court held that genocide
requires specific intent to destroy a particular group of vic-
tims, and that Abagninin only alleged that AMVAC acted
with knowledge of the consequences of DBCP. In so holding,
the district court rejected Abagninin’s argument that the
Rome Statute of the International Criminal Court (“Rome
Statute”) lowered the intent requirement for genocide to
include knowledge.3 The district court also dismissed the
remaining claims, including the claim predicated on crimes
against humanity. The district court held that these claims
required an element of State action, and granted leave to
amend to include allegations of State action.
Abagninin filed the First Amended Complaint (“FAC”) on
April 6, 2007, alleging claims under the ATS for crimes
against humanity and racial discrimination. Dow Chemical
filed a motion to dismiss under Rule 12(b)(6) which AMVAC
3
Abagninin appeals the decision as to the genocide claim; dismissal of
the claim for unlawful distribution of pesticides is not before us.
ABAGNININ v. AMVAC CHEMICAL CORP. 13529
joined. The district court found that the FAC failed to suffi-
ciently allege a State or organizational policy regarding steril-
ization. Supplemental briefing was requested as to whether
dismissal should be with prejudice or without prejudice, and
whether to allow discovery regarding the State action require-
ment. The district court also indicated that defendants not yet
served or appearing would be treated no differently than
AMVAC as to lack of State action. All counsel present,
including Abagninin’s counsel, waived notice as to the dis-
missal of non-served defendants.
The district court then held a hearing as to the nature of dis-
missal and proffered discovery. Abagninin’s proffered discov-
ery would only reveal whether or not the Ivory Coast
government was aware of the use and consequences of DBCP.
The district court determined that such information, indicating
knowledge by the Ivory Coast, would not constitute State
action. The district court therefore dismissed the remaining
claims with prejudice, finding that Abagninin’s proffered dis-
covery would not establish conduct within the definition of
State action. Abagninin timely appealed.
II. STANDARD OF REVIEW
A dismissal for failure to state a claim is reviewed de novo.
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (Rule
12(b)(6)); Dunlap v. Credit Protection Ass’n, L.P., 419 F.3d
1011, 1012 n.1 (9th Cir. 2005) (Rule 12(c)). All factual alle-
gations in the complaint are accepted as true, and the plead-
ings construed in the light most favorable to the nonmoving
party. Knievel, 393 F.3d at 1072. Denial of leave to amend is
reviewed for abuse of discretion. Allen v. City of Beverly
Hills, 911 F.2d 367, 373 (9th Cir. 1990). The district court’s
decision will not be disturbed absent a definite and firm con-
viction that it committed a clear error of judgment. Id.III. DISCUSSION
The ATS allows aliens to bring tort claims for violations of
the law of nations or treaties of the United States. We will
13530 ABAGNININ v. AMVAC CHEMICAL CORP.
first discuss the scope of the ATS before addressing the dis-
missal of Abagninin’s claims for genocide and crimes against
humanity.
The ATS reads in its entirety: “The 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. A “treaty of
the United States” is a formal agreement between the United
States and one or more other sovereigns, entered into by the
President and approved by two-thirds of the Senate. U.S.
Const. art. II, § 2, cl. 2; Vietnam Ass’n for Victims of Agent
Orange v. Dow Chem. Co., 517 F.3d 104, 118 (2d Cir. 2008)
(noting 1925 Geneva Protocol did not constitute “a treaty of
the United States” under the ATS until ratified).
[1] The Supreme Court recently considered the ATS in
Sosa v. Alvarez-Machain, and made clear that any claim
based on the law of nations must “rest on a norm of interna-
tional character accepted by the civilized world and defined
with a specificity comparable to the features of the 18th-
century paradigms” of piracy, infringement on the rights of
ambassadors, and violation of safe conducts. 542 U.S. 692,
725, 732 (2004).4 Although jurisdiction under the ATS is not
limited solely to these paradigms, it is “subject to vigilant
doorkeeping,” id. at 729, as courts have “no congressional
mandate to seek out and define new and debatable violations
of the law of nations.” Id. at 728. Sosa also instructs that “the
determination whether a norm is sufficiently definite to sup-
port a cause of action should (and, indeed, inevitably must)
involve an element of judgment about the practical conse-
4
This limitation on judicial recognition of private claims under federal
common law for violations of an international law norm is consistent with
our previous reasoning that “[a]ctionable violations of international law
must be of a norm that is specific, universal, and obligatory.” Sosa, 542
U.S. at 732 (citing and quoting In re Estate of Marcos Human Rights Liti-
gation, 25 F.3d 1467, 1475 (9th Cir. 1994)).
ABAGNININ v. AMVAC CHEMICAL CORP. 13531
quences of making that cause available to litigants in the fed-
eral courts.” Id. at 733.
With these definitions and principles in mind, we turn to
the genocide and crimes against humanity claims dismissed
by the district court. As discussed below, Abagninin’s allega-
tions fail to state a claim for either cause of action under pre-
vailing norms of international law. We are not empowered, as
Abagninin would urge, to extend and redefine these norms.
A. Genocide
[2] The common law distinguished between crimes requir-
ing “general intent” and those requiring “specific intent.”
United States v. Bailey, 444 U.S. 394, 403 (1980). The district
court dismissed the genocide claim because Abagninin failed
to allege that AMVAC acted with specific intent, and denied
leave to amend because the defect could not be cured. Relying
on the Rome Statute, Abagninin contends that the original
complaint sufficiently alleged genocidal intent—knowledge—
defined as awareness that a consequence will occur in the
ordinary course of events. However, the knowledge intent
standard is not part of a treaty of the United States or part of
the law of nations. No treaty of the United States, no control-
ling act of the President or Congress, and no judicial decision
indicates that genocide is a knowledge-based norm. Nor is
there a sufficient consensus that it is a violation of interna-
tional law to be aware that genocide will occur in the ordinary
course of events. We therefore affirm.
1. Treaty of the United States
[3] A treaty not ratified by the United States at the time of
the alleged events cannot form a basis for an ATS claim. Viet-
nam Ass’n, 517 F.3d at 118; Flores v. S. Peru Copper Corp.,
414 F.3d 233, 256 (2d Cir. 2003) (“A state only becomes
bound by—that is, becomes a party to—a treaty when it rati-
fies the treaty.” (citing Haver v. Yaker, 76 U.S. (9 Wall.) 32,
13532 ABAGNININ v. AMVAC CHEMICAL CORP.
35 (1869)); cf. Hawkins v. Comparet-Cassani, 33 F. Supp. 2d
1244, 1257 (C.D. Cal. 1999) (noting that treaty to which the
United States is a signatory, but has not yet ratified, is not
binding on the United States), rev’d in part on other grounds
by 251 F.3d 1230 (9th Cir. 2001). It is undisputed that the
United States has neither signed nor ratified the Rome Statute.
Int’l Criminal Court, Assembly of States Parties, The States
Parties to the Rome Statute, available at http://www.icc-
cpi.int/asp/statesparties.html (last visited Aug. 11, 2008); see
also Letter from John R. Bolton, U.S. Under Secretary of
State for Arms Control and International Security, to Kofi
Annan, U.N. Secretary General (May 6, 2002), available at
http://www.state.gov/r/pa/prs/ps/2002/9968.htm (stating that
the United States does not intend to become a party to the
Rome Statute). Despite the lack of formal constitutional ratifi-
cation, Abagninin contends that the Rome Statute is nonethe-
less “self-executing.” This contention is without merit. See
Medellin v. Texas, ___ U.S. ___, 128 S. Ct. 1346, 1356 n.2
(2008) (“What we mean by ‘self-executing’ is that the treaty
has automatic domestic effect as federal law upon ratifica-
tion”) (emphasis added). In order to state a claim based on the
ATS, Abagninin must therefore demonstrate that the law of
nations includes the Rome Statute’s intent standard. 28 U.S.C.
§ 1350.
2. Law of Nations
[4] The law of nations is synonymous with “customary
international law,” Flores, 414 F.3d at 237 n.2, 247, and vio-
lations of international law must contravene a norm that is
specific, universal, and obligatory. Sosa, 542 U.S. at 732.
Abagninin confuses the issue by asserting a broader
proposition—that the fact that 139 countries signed, and 105
countries ratified, the Rome Statute demonstrates that its stan-
dards reflect a universal obligatory norm. The issue here,
however, is narrower: whether the Rome Statute’s definition
reflects the kind of definiteness and acceptance among civi-
ABAGNININ v. AMVAC CHEMICAL CORP. 13533
lized nations that existed for Sosa’s historical paradigms. The
district court correctly held that it does not.
[5] The Convention on the Prevention and Punishment of
the Crime of Genocide (“Genocide Convention”) defines
genocide as a specific intent crime. The Convention on the
Prevention and Punishment of the Crime of Genocide art. 2,
Dec. 9, 1948, 78 U.N.T.S. 277 (“In the present Convention,
genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such.”). As recently as 2004, the
Genocide Convention was recognized as the main source of
customary international law regarding genocide. Prosecutor v.
Brdanin, Case No. IT-99-36-T, Judgment, ¶ 680 (Sept. 1,
2004).
[6] Decisions from international tribunals also reflect the
specific intent requirement for genocide. The International
Criminal Tribunal for Rwanda’s (“ICTR”) definition of geno-
cide was taken verbatim from the Genocide Convention.
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶
494 (Sept. 2, 1998). Thus the ICTR defined genocide as a
crime of specific intent. Id. at ¶ 498 (“[T]he [specific] intent
in the crime of genocide lies in ‘the intent to destroy, in whole
or in part, a national, ethnical, racial, or religious group, as
such.’ ”). The International Criminal Tribunal for Yugoslavia
(“ICTY”) also adopted the element of specific intent for the
crime of genocide. E.g., Prosecutor v. Krstic, Case No. IT-98-
33-A, Judgment, ¶ 37 (Apr. 19, 2004) (“These requirements
—the demanding proof of specific intent and the showing that
the group was targeted for destruction in its entirety or in sub-
stantial part—guard against a danger that convictions for this
crime will be imposed lightly.”); Prosecutor v. Brdanin, Case
No. IT-99-36-T, Judgment, ¶ 695 (Sept. 1, 2004) (“It is this
specific intent that characterises the crime of genocide.”). No
decision from either tribunal supports Abagninin’s contention
that genocide requires mere knowledge, or general intent.
13534 ABAGNININ v. AMVAC CHEMICAL CORP.
[7] Abagninin asserts that his position is supported by the
Zyklon B cases, Trial of Bruno Tesch and Two Others, 1 Tr.
War Crim. 93 (1947). Defendants in the Zyklon B cases were
accused of being accessories before the fact to war crimes
committed mainly at Auschwitz. Id. at 103. The prosecution
was based on Article 46 of the Hague Convention of 1907,
concerning the Laws and Customs of War on Land. Id. The
defendants were charged with supplying poison gas “used for
the extermination of allied nationals interned in concentration
camps well knowing that the said gas was to be so used.” Id.
at 93. Abagninin’s reliance on these cases is misplaced, how-
ever, for the defendants there were prosecuted for war crimes
that were not specific intent offenses.
[8] Domestic materials similarly reject a definition of geno-
cide based on mere knowledge. The federal Genocide Con-
vention Implementation Act of 1987 (“Implementation Act”)
largely adopted the Genocide Convention language, and
explicitly defined genocide as requiring “the specific intent to
destroy, in whole or in substantial part, a national, ethnic,
racial or religious group as such.” 18 U.S.C. § 1091(a). This
language follows the wording of the “specific intent under-
standing” that the Senate included in the resolution of ratifica-
tion to the Genocide Convention in order to distinguish
between acts committed with the purpose of destroying a
group and all other acts. S. Rep. No. 100-133, at 8 (1988), as
reprinted in 1988 U.S.C.C.A.N. 4156, 4161-62. Standing
alone, this understanding would raise concerns regarding
Abagninin’s proposed intent standard, as “it is highly unlikely
that a purported principle of customary international law in
direct conflict with the recognized practices and customs of
the United States . . . could be deemed to qualify as a bona
fide customary international law principle.” United States v.
Yousef, 327 F.3d 56, 92 n.25 (2d Cir. 2003). However, the
Implementation Act is in line with, rather than opposed to, the
recognized principle of international law that requires specific
intent for the crime of genocide. 18 U.S.C. § 1901(a).
ABAGNININ v. AMVAC CHEMICAL CORP. 13535
[9] The Second Circuit has recognized that dismissal of a
genocide claim is appropriate when the complaint fails to
allege facts sufficient to show specific intent. In re Agent
Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 115
(E.D.N.Y. 2005), aff’d, 517 F.3d 104 (2d Cir. 2008). In Agent
Orange, Vietnamese nationals brought genocide claims for
harms allegedly resulting from the United States’ use of
Agent Orange and other herbicides during the Vietnam War.
373 F. Supp. 2d at 15. The court dismissed the genocide
claims, finding that the herbicides were not used “with the
specific intent to destroy any group.” Id. at 115. Therefore the
use of herbicides “did not constitute genocide as defined by
either the [Implementation Act] or the Genocide Convention,
particularly with the United States’ understanding regarding
specific intent.” Abagninin’s attempts to distinguish Agent
Orange because the harmful effects of those chemicals were
not known at the time assume, but incorrectly, that knowledge
is the standard for intent. The key similarity between this case
and Agent Orange is Abagninin’s failure to allege that
AMVAC intended to harm him through the use of chemicals.
[10] Abagninin’s original complaint failed to state an ATS
claim for genocide because it failed to allege facts showing
violation of a universally-acknowledged norm. Abagninin
argues that intent can be inferred from what he has alleged
even if measured against a norm requiring specific intent. For
example, he points out, his original complaint avers that a
Shell employee who led that company’s research on DBCP
stated with respect to plantation workers: “From what I hear,
they could use a little birth control down there.” However, no
facts are set forth that this statement, assuming it was made
as alleged, referred to the Ivory Coast or that it reflected the
views of (or could be attributed to) Shell or other manufactur-
ers. Abagninin also submits that his First Amended Complaint
alleges that AMVAC acted with intent to prevent births and
to destroy villages and their people, but these allegations do
not pertain to the genocide claim, which was previously dis-
missed with prejudice. Regardless, the allegations are conclu-
13536 ABAGNININ v. AMVAC CHEMICAL CORP.
sory, and thus would be insufficient to overcome a motion to
dismiss in any event. See Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). In sum, being unsupported
by factual averments that show anything other than knowl-
edge of a consequence, these allegations fail to make out a
claim.
The Rome Statute is not a treaty of the United States, and
customary international law defines genocide as requiring
specific intent. Furthermore, the United States’ government
has clearly expressed its understanding regarding specific
intent, and we have “no congressional mandate to seek out
and define new and debatable violations of the law of
nations.” Sosa, 542 U.S. at 728. Abagninin presents no argu-
ment regarding dismissal without leave to amend, and the dis-
trict court did not abuse its discretion in ordering such
dismissal. We therefore affirm the decision of the district
court.
B. Crimes Against Humanity
Abagninin also appeals the dismissal of the ATS claim for
crimes against humanity. As AMVAC does not dispute the
point, we will assume, without deciding, that the norm for
crimes against humanity is specific, obligatory, and universal.
We also assume, because the parties do, that the Rome Statute
accurately states the elements of a crime against humanity:
commission of any of the enumerated acts when committed as
part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack.5 Rome Stat-
ute art. 7.1. An “attack directed against any civilian popula-
tion” is a course of conduct “pursuant to or in furtherance of
a State or organizational policy to commit such attack.” Id.5
The enumerated acts include inter alia, murder, extermination,
enslavement, enforced sterilization, and other “inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or
to mental or physical health.” Rome Statute art. 7.1(a)-(k).
ABAGNININ v. AMVAC CHEMICAL CORP. 13537
art. 7.2(a). Abagninin contends that AMVAC is a business
organization, and therefore used DBCP pursuant to an “orga-
nizational policy.” The district court properly concluded that
Abagninin failed to allege facts sufficient to constitute State
or organization action as required for crimes against human-
ity.
1. Organizational policy of AMVAC
[11] The traditional conception regarding crimes against
humanity was that a policy must be present and must be that
of a State, as was the case in Nazi Germany. Prosecutor v.
Tadic, IT-94-1-T, Judgment, ¶ 654 (May 7, 1997). This con-
ception was expanded to include non-State entities which,
although not a part of the legitimate government, have de
facto control over a defined territory. Id. The weakening of
the “State action” requirement occurred because unofficial
militias loosely affiliated with the State and unaffiliated civil-
ians perpetrated the crimes in Bosnia and Rwanda, respec-
tively. David Luban, A Theory of Crimes Against Humanity,
29 Yale J. Int’l L. 85, 95-97 (2004). A common thread
throughout these developments is that crimes against human-
ity are crimes committed through political organization. Id. at
97.
[12] De facto control thus requires control similar to that of
a State or government, such as erecting checkpoints on main
roads, increasing examples of command and control, develop-
ing civilian structures, and holding a substantial percentage of
territory. Prosecutor v. Limaj, IT-03-66-T, Judgment, ¶¶ 213-
14 (Nov. 30, 2005). Decisions from the International Criminal
Tribunal for Rwanda require that actions by a non-State orga-
nization be “instigated or directed by a Government or by any
organisation or group,” as a way to exclude “the situation in
which an individual commits an inhumane act . . . in the
absence of any encouragement or direction from either a Gov-
ernment or a group or an organisation.” E.g., Prosecutor v.
13538 ABAGNININ v. AMVAC CHEMICAL CORP.
Kayishema & Ruzindana, ICTR-95-1-T, Judgment, ¶¶ 124-26
(May 21, 1999).
[13] The district court correctly concluded that AMVAC is
not a State or State-like organization for purposes of interna-
tional law and crimes against humanity. Abagninin does not
argue that he sufficiently alleges de facto control by AMVAC
over the territory. Rather, Abagninin argues that because the
State action requirement has been relaxed to include non-State
organizations, and AMVAC is a business organization (corpo-
ration), AMVAC’s acts satisfy the State or organization
requirement. This reasoning, however, is not supported in
customary international law. The modification of the State
action requirement, precipitated by the involvement of non-
State militias and criminal syndicates, does not justify elimi-
nating the requirement altogether.
2. State action by Sodefel
[14] Abagninin next contends that the FAC alleged “affir-
mative action by the government of the Ivory Coast.” Just as
Abagninin contends that any “organization” is sufficient for
crimes against humanity, he contends that any involvement by
the State meets the “State action” requirement. However, alle-
gations of “affirmative action by the government of the Ivory
Coast” fail to state a claim for crimes against humanity
because Abagninin does not allege that the use of DBCP was
part of a plan or policy to commit one of the enumerated acts,
i.e. to sterilize the plantation workers. Cf. Rome Statute art.
7.1. Merely purchasing and providing DBCP for use on the
plantations does not suffice, and the district court correctly
found that the facts as alleged do not support Abagninin’s
conclusory statement that the use of DBCP was carried out
pursuant to a State or organizational policy. Lee v. City of Los
Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (“Conclusory alle-
gations of law, however, are insufficient to defeat a motion to
dismiss [for failure to state a claim].”).
ABAGNININ v. AMVAC CHEMICAL CORP. 13539
3. Denial of leave to amend
[15] With respect to the crimes against humanity claim, the
district court did not err in denying leave to amend the FAC.
Denial of leave to amend is reviewed for abuse of discretion.
Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.
1990). Leave to amend may be denied if a court determines
that “allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency.” Schreiber
Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401
(9th Cir. 1986). Leave to amend may also be denied for
repeated failure to cure deficiencies by previous amendment.
Foman v. Davis, 371 U.S. 178, 182 (1962); Allen, 911 F.2d
at 373.
[16] The district court first dismissed the crimes against
humanity claim under Rule 12(c) and granted leave to amend
to include allegations of State action. After reaching a tenta-
tive ruling granting the motion to dismiss, the district court
permitted supplemental briefing as to whether dismissal
should be with prejudice, or without prejudice and allow lim-
ited discovery regarding the state action requirement. After
reviewing Abagninin’s proffered discovery, the district court
found that the proffered discovery would not establish con-
duct within the definition of State action. The district court
did not abuse its discretion, as allegations of other facts con-
sistent with the challenged pleading could not cure the State
action defect, and the previous amendment failed to cure this
deficiency.
C. Dismissal of Non-Appearing Defendants
Abagninin’s final contention on appeal is that the district
court erred in dismissing the case as to all defendants, includ-
ing those that had not appeared in the case and challenged the
pleadings. Abagninin contends that this was in error because
the court did not give notice of its intention to dismiss and did
not permit Abagninin an opportunity to respond in opposition
13540 ABAGNININ v. AMVAC CHEMICAL CORP.
thereto. See Lee v. City of Los Angeles, 250 F.3d 668, 683 n.7
(9th Cir. 2001). This conclusion is not supported by the law
or the facts in this case.
[17] As a legal matter, we have upheld dismissal with prej-
udice in favor of a party which had not appeared, on the basis
of facts presented by other defendants which had appeared.
Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44
F.3d 800, 802 (9th Cir. 1995); Silverton v. Dep’t of Treasury,
644 F.2d 1341, 1345 (9th Cir. 1981) (“A [d]istrict [c]ourt may
properly on its own motion dismiss an action as to defendants
who have not moved to dismiss where such defendants are in
a position similar to that of moving defendants.”). The non-
served defendants in this case are in a position similar to
AMVAC in that all are private actors for which Abagninin
cannot allege specific intent required for genocide or State
action or de facto control required for crimes against human-
ity.
[18] As a factual matter, Abagninin waived notice as to dis-
missal of the remaining defendants, and was provided an
opportunity to be heard as to dismissal of the non-appearing
defendants. At the May 21, 2007 hearing, the district court
stated “I presume the plaintiffs’ case vis-à-vis Shell will not
be any different than with the other defendants so that if I dis-
miss out the claim based on lack of state action that would
apply to Shell as well. . . . In other words, Shell, to my mind,
is not going to be any different it would seem to be on a theo-
retical basis than Dow or Dole.” The court concluded that it
would “leave that . . . hanging in the air. Notice is waived on
this?” Abagninin’s counsel responded “[y]es, Your Honor.”
The district court then permitted supplemental briefing and
argument as to whether dismissal should be with or without
prejudice. After considering the supplemental information, the
court determined that the discovery proffered by Abagninin
would not lead to information which could amend the com-
plaint to satisfy the State action requirement, and dismissed
with prejudice.
ABAGNININ v. AMVAC CHEMICAL CORP. 13541
[19] The district court did not abuse its discretion in dis-
missing the remaining defendants. Abagninin waived notice,
and was presented an opportunity to respond in opposition.
The district court reasonably concluded that further amend-
ment would be futile and that the remaining defendants were
in a position similar to that of AMVAC.
CONCLUSION
In light of the foregoing, the decision of the district court
is affirmed in all respects.
AFFIRMED.