13-3122-cv
     Doe v. Zedillo Ponce de León

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of February, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                GERARD E. LYNCH,
 9                              Circuit Judges. 10 11       - - - - - - - - - - - - - - - - - - - -X 12       JANE DOE, 1, an alien, JANE DOE, 2, 13       an alien, JANE DOE, 3, an alien, JANE 14       DOE, 4, an alien, JOHN DOE, 1, an 15       alien, JOHN DOE, 2, an alien, JOHN 16       DOE, 3, an alien, JOHN DOE, 4, an 17       alien, JOHN DOE, 5, an alien, JOHN 18       DOE, 6, an alien, 19 20                    Plaintiffs-Appellants, 21 22                    -v.-                                              No. 13-3122-cv 23 24       ERNESTO ZEDILLO PONCE DE LEÓN, An 25       Alien resident of Connecticut, 26 27                Defendant-Appellee. 28       - - - - - - - - - - - - - - - - - - - -X

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 1   FOR PLAINTIFFS-APPELLANTS:   EDWARD GEORGE GUEDES (Roger S.
 2                                Kobert, Marc C. Pugliese, on the
 3                                brief), Weiss Serota Helfman
 4                                Pastoriza Cole & Boniske, P.L.,
 5                                Coral Gables, FL (Matthew Dallas
 6                                Gordon, Matthew Dallas Gordon
 7                                LLC, West Hartford, CT, on the
 8                                brief).
 9 10   FOR DEFENDANT-APPELLEE:      JONATHAN FREIMAN (Tadhg Dooley, 11                                on the brief), Wiggin and Dana 12                                LLP, New Haven, CT. 13 14   FOR AMICUS CURIAE            ADAM C. JED (Mark B. Stern, on 15   UNITED STATES IN             the brief), Appellate Staff 16   SUPPORT OF DEFENDANT-        Civil Division, U.S. Department 17   APPELLEE:                    of Justice (Mary E. McLeod, 18                                Acting Legal Adviser, Department
                                  of State; Stuart F. Delery,
                                  Assistant Attorney General;
                                  Deirdre M. Daly, United States
                                  Attorney), Washington, DC. 19        Appeal from an order of the United States District 20   Court for the District of Connecticut (Shea, J.). 21 22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 23   AND DECREED that the order of the district court be 24   AFFIRMED. 25 26        Plaintiffs appeal an order dismissing their claims 27   against Ernesto Zedillo Ponce de León (“Zedillo”), former 28   President of Mexico, for violations of the “Law of Nations, 29   customary international law, and U.S. laws and treaties” 30   arising out of a 1997 massacre in the Mexican village of 31   Acteal. Plaintiffs expressly concede that the dismissal of 32   their complaint was correct, Appellant Br. 26 n.8; Appellant 33   Reply Br. 12, and argue only that it was improper to dismiss 34   their complaint without granting leave to amend. We assume 35   the parties’ familiarity with the underlying facts, the 36   procedural history, and the issues on appeal. 37 38        We review a district court’s decision to dismiss a 39   complaint without granting leave to replead for “abuse of 40   discretion.” Grain Traders, Inc. v. Citibank, N.A., 160 41   F.3d 97, 106 (2d Cir. 1998). “It is well-established that 42   one good reason to deny leave to amend is when such leave

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 1   would be futile, specifically when the additional
 2   information does not cure the complaint.” Mortimer Off
 3   Shore Servs., Ltd. v. Fed. Republic of Ger., 615 F.3d 97" date_filed="2010-07-26" court="2d Cir." case_name="Mortimer Off Shore Services, Ltd. v. Federal Republic of Germany">615 F.3d 97,
 4   114 (2d Cir. 2010) (internal quotation marks and brackets
 5   omitted).
 6
 7        Here, amendment would be futile. The United States
 8   filed a Suggestion of Immunity in September 2012. “[U]nder
 9   our traditional rule of deference to such Executive 10   determinations,” the United States’ submission is 11   dispositive. Matar v. Dichter, 563 F.3d 9" date_filed="2009-04-16" court="2d Cir." case_name="Matar v. Dichter">563 F.3d 9, 13-15 (2d Cir. 12   2009) (noting that State Department’s statement of interest 13   provided former foreign official immunity from suit, 14   regardless of whether claims were premised on violations of 15   jus cogens); see Samantar v. Yousuf, 560 U.S. 305" date_filed="2010-06-01" court="SCOTUS" case_name="Samantar v. Yousuf">560 U.S. 305, 321-25 16   (2010) (“We have been given no reason to believe that 17   Congress saw as a problem, or wanted to eliminate, the State 18   Department’s role in determinations regarding individual 19   official immunity.”); cf. Republic of Mex. v. Hoffman, 324 20   U.S. 30, 35 (1945) (“It is therefore not for the courts to 21   deny an immunity which our government has seen fit to 22   allow[.]”); Ex Parte Republic of Peru, 318 U.S. 578" date_filed="1943-04-05" court="SCOTUS" case_name="Ex Parte Republic of Peru">318 U.S. 578, 587-89 23   (1943) (“[I]t is of public importance that the action of the 24   political arm of the Government taken within its appropriate 25   sphere be promptly recognized, and that the delay and 26   inconvenience of a prolonged litigation be avoided by prompt 27   termination of the proceedings in the district court.”); 28   Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 29   1198, 1201 (2d Cir. 1971) (“[O]nce the State Department has 30   ruled in a matter of this nature, the judiciary will not 31   interfere.”). 32 33        The primary basis for the Suggestion of Immunity is 34   that the complaint relates exclusively to actions taken in 35   the Defendant’s official capacity as head of state. The 36   additional allegations Plaintiffs want to press--that 37   Zedillo was personally involved in the massacre and that the 38   Mexican Ambassador’s request for immunity was invalid--would 39   not overcome the immunity. Those allegations have 40   repeatedly been submitted to the United States, directly or 41   through this action, and yet the Suggestion of Immunity has 42   not been rescinded or amended. 43 44        Plaintiffs rely heavily on a (since vacated) Mexican 45   trial court order voiding a request for the United States to 46   issue the Suggestion of Immunity. However, the State 47   Department stood by its initial opinion in May 2013, after

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 1   that order was issued. See Notice by United States of
 2   America Regarding Oral Argument, D. Ct. Dkt. # 76 (“The
 3   United States rests on its Suggestion of Immunity . . .,
 4   which sets forth the United States’ determination regarding
 5   the immunity of former President Zedillo from this suit.”).
 6
 7        We have considered all of Plaintiffs’ remaining
 8   arguments and conclude that they are without merit. The
 9   order of the district court is hereby affirmed. 10 11                              FOR THE COURT: 12                              CATHERINE O’HAGAN WOLFE, CLERK




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