Luis Mujica v. Airscan Inc.

v. MUJICA, behalf on Alberto Galvis

Luis Corporation, Petroleum Occidental representative of as of himself and Defendant-Appellant, Hernan, Mujica Ed of Tereza Estates Defendant, Inc., AirScan Johanny Her and ilma Leal Pacheco Gelvez, Becerra; Mario Galvis nandez America, Movant. of individually, himself, and of on behalf Mujica Tereza decedents heir of the as Mujica, behalf of on Galvis Alberto Luis and Hernandez, Leal Pacheco Edilma representative of as himself and Becerra; John Johanny Hernandez Hernan, Mujica Ed Tereza Estates of through his Mujica, Galvis Mario Johanny Her Pacheco and ilma Leal of behalf litem and guardian ad on Gelvez, Becerra; Mario Galvis nandez individually, heir of himself, as and individually, himself, and on behalf Mujica Hernan Tereza the decedents Mujica decedents Tereza heir of the as and Johan Leal Pacheco dez, Edilma and Hernandez, Leal Pacheco Edilma Plaintiffs-Ap Becerra, ny Hernandez Becerra; Johanny John Hernandez pellees, through Mujica, his Mario Galvis behalf of and on guardian litem ad individually, heir of himself, and as Mujica Hernan Terza Defendant-Appellant, INC., the decedents AIRSCAN dez, Pacheco and Johan Edilma Leal Becerra, Plaintiffs-Ap ny Hernandez Corporation, Petroleum Occidental pellants, Defendant. America, Movant.

United States Corporation; Petroleum Occidental Inc., Defendants- AirScan Mujica, on behalf Luis Alberto Galvis Appellees, representative of the and as himself and Hernan, Mujica Ed Estates Tereza Johanny Her and ilma Leal Pacheco America, Movant. United States Gelvez, Becerra; nandez Mario Galvis 10-55516, 10-55515, 10-55587. Nos. individually, himself, and on behalf Mujica Appeals, Tereza decedents Court of heir of the as United States Hernandez, Pacheco Edilma Leal Ninth Circuit. Becerra;

Johanny John Hernandez 5, 2014. March Argued and Submitted through Mujica, his Mario Galvis 12, 2014. Nov. Filed behalf guardian litem ad individually, heir of himself, Mujica Hernan Tereza

the decedents and Johan dez, Leal Pacheco Edilma Plaintiffs-Ap Becerra, ny Hernandez pellees, as a motion Association permissive nia Peace Officers’ for Gun motion Prevent Violence's grant the mo- peti- permissive intervention I would also construe intervention. by the Califor- rehearing banc en filed tion for tion. the Califor- Association and nia Police Chiefs' Paul L. (argued), Hoffman Adrienne J. Quarry, Don, and Victoria Schonbrun De- Seplow, Simone Harris Hoffman & Harri- son, LLP, Venice, CA; Terry Collings- worth and Christian Levesque, Conrad & Scherer, LLP, Washington, DC; Daniel Kovalik, M. PA; Pittsburgh, Bridget Ari- mond, for Center International Human Rights, Northwestern University Law School, IL, Chicago, for Plaintiffs-Appel- lants-Cross-Appellees.

Daniel P. (argued), Collins Munger, LLP, Tolies & Olson CA, Los Angeles, for Defendant-Appellee-Cross-Appellant Oc- cidental Corporation. Petroleum Thomas E. Fotopolous, and Sara M. Fo- topolous, Fotopolous P.A., & Fotopolous, Titusville, FL; Berke, Kenneth J. Berke & LLP, Calabasas, Kent CA, for Defendant Appellee-Cross-Appellant AirScan, Inc. Simons, Marco B. Herz, Richard L. Kaufman, Jonathan DC, Washington, Amicus Earthrights Curiae International. Aceves, William J. California Western Law, CA, School of Diego, San for Amicus Curiae Constitutional and International Law Scholars.

Before: JAY S. BYBEE and SANDRA IKUTA, S. Judges, Circuit and THOMAS ZILLY, S. Judge.* Senior District * The Honorable Zilly, Thomas S. Senior Dis- Western Washington, sitting by District of Judge trict for the U.S. designation. District Court for claim a valid lack that Plaintiffs holdWe

OPINION Protection Torture Victim under either BYBEE, Judge: Circuit Tort Statute (TVPA) Alien or the Act bombing the 1998 arises out This suit judg- court’s (ATS). affirm district We of the village by members of a Colombian to Plaintiffs’ respect of dismissal ment Plaintiffs,1 (CAF). Force Air Colombian on the claims, do so but state-law Colombia, residents of former citizens Although comity. of international ground two U.S. in California brought suit on rejected dismissal court the district Occidental corporations, headquartered court the district conclude ground, we AirSean, alleged for their Petroleum incor- by applying the its discretion abused opin bombing. In two complicity comity analysis, in its standard legal first rect the district issued ions erroneously that concluding grounds specifically case dismiss the refused and for- and international domestic between non conveniens “true conflict” forum Petroleum v. Occidental Mujica application comity, required for eign law is (C.D.Cal.2005) F.Supp.2d Corp., 381 all circumstances. I”), Defen granted then but (“Mujica Guided I, at 1155. Mujica all to dismiss motion dants’ application for the by the correct standard Mu doctrine. political question under the district by the and informed comity, Corp., 381 Petroleum jica v. Occidental Mujica IV re- fact in findings of court’s (C.D.Cal.2005) (“Mujica F.Supp.2d an as of Colombia adequacy garding II”). forum, we conclude alternative to decide we declined appeal, prior In a justicia- not us are claims before state-law and remanded presented the issues of international the doctrine under ble purposes: for two the district court case to comity. prudential a first, whether consider “to in this applies requirement exhaustion I. BACKGROUND so, requirement case, if whether and second, case,” and, any claims bars Bombing A. The 1998 effect, of two if any,” to “consider related opinions court Colombian facts of The district described Petroleum Mujica v. Occidental bombing. follows: events underlying as (9th Cir.2009) 1190, 1192 Corp., bombing a from case arises The instant remand, III”). limited (“Mujica On Domingo, Colom- in Santo that occurred exhaus- prudential court found district 13, 1998. December bia on that, It also found required. tion was The Domingo. lived Santo Plaintiffs Oc- required, were exhaustion if prudential Corp. Defendants, Petroleum Occidental pleading burden had met its cidental Inc., AirSean, are (“Occidental”) and availability of reme- local proving the and the former companies; American both Petroleum Mujica v. Occidental dies. the latter in Los Angeles, located (C.D.Cal., Corp., Case No. CV-03-2860 oper- Defendant Occidental Florida. IV”). 2010) (‘Mujica 8,Mar. the Colom- ates, joint venture as cross-ap- and appealed and Defendants facil- production an oil government, bian pealed. "Defen- as "Occidental” AirScan either Mujica the other Mr. and 1. We Luis refer and adopted has AirSean dants.” Defendant Plaintiffs/Appellants/Cross-Appellants briefing. joined Occidental’s and and to Petroleum Occidental "Plaintiffs” ity pipeline in the area of Santo attempting to escape those who Domingo. trying were carry injured to a Plaintiffs allege facility. medical following relevant thereafter, Soon other facts. Since Defendant CAF troops AirSean town, entered the blocked provided has security for Defendant Oc- civilians from leaving, and ransacked pipeline against cidental’s oil attacks their homes. from left-wing insurgents. Prior to While the purpose of the Domingo Santo 1998, Defendants worked with the Co- raid protect was to Defendant Occiden- military, lombian providing them with tal’s pipeline from by left-wing attack financial assistance, and other for the insurgents, no insurgents were killed in purpose furthering Defendant Occi- the attack. insurgents These were lo- dental’s commercial interests. On sev- cated at least one to two kilometers eral during occasions Defendant outside of Santo Domingo. Defendants Occidental provided Defendant AirSean knew that the insurgents were not in and the military Colombian awith room Santo Domingo but carried out the at-

in its plan facilities to the Santo Domin- tack nonetheless. go raid. Defendant AirSean and the II, Mujica (in- at 1168-69 (“CAF”) Colombian Air Force carried omitted). ternal citations out this raid purpose for the of providing security for (i.e., Defendant Occidental B. Proceedings in Colombian Courts protecting pipeline) oil its and was not Domingo 1998 Santo bombing led to acting on behalf of the gov- Colombian legal two actions in Colombia: criminal raid, ernment. During the three of De- action brought by the govern- Colombian fendant AirScan’s employees, along with ment three CAF officers who were liaison, a CAF piloted plane with CAF allegedly responsible for bombing markings paid De- a (and civil brought by suit Plaintiffs sev- fendant Occidental. From airplane, persons) eral other govern- the Defendant provided AirSean aerial sur- ment of Colombia. CAF, veillance for the helping CAF the identify and targets choose places to 1. Criminal Action deploy troops. The Colombian Public 13, 1998,

On Prosecutor’s Of December of residents San- opened fice a preliminary investigation Domingo into low-flying saw CAF helicop- the Domingo Santo bombing day the attempted ters and after overhead to commu- occurred, it 14, on nicate December they 1998. were On lying civilians 21, September 2007, down road In Cesare the and re Rome covering then- Pradilla, al., ro heads with et the white shirts. Soon thereaf- Twelfth Criminal ter, (or several Court of the Bogota, witnesses an Circuit of object saw Colombia objects) several three drop from convicted CAF of officers man one helicopters. slaughter. 24, CAF September 2009, One On of the cluster bombs dropped by the same exploded CAF court affirmed the verdict on remand directly court, from a higher of Santo Domingo, town that all finding three destroying killing homes and guilty defendants were manslaughter seventeen of civilians and wounding twenty-five and oth- related crimes. The court then sen killed, ers. Of the seventeen tenced six were two of them to no more than 380 attack, children. During the imprisonment CAF months’ and one to no more helicopters knowingly fired on seventy-two civilians than imprisonment. months’ of infliction death, intentional wrongful all three fines on imposed also The court distress, infliction negligent emotional defendants. distress, of Cali violations and emotional Action 2. Civil Code Professional & Business fornia II, (and Mujica § 17200. See Plaintiffs September On 1169, 1176. Re- others) against the complaint filed Colombia, Minis- the Colombian public re- court the district January In Army, and Defense, the Colombian try of Department of the U.S. the views quested Arauca, the CAF, court regional 2004, the April In at 1169. Id. of State. Domingo Santo where region in Colombia a State- submitted of State Department damages for sought Plaintiffs located. (SOI) it indicating that Interest ment of psycho- physical

wrongful death on the position have a did not rela- Plaintiffs and injuries to logical Eight Id. of the action. implications policy 20, 2004, the Arauca May On tives. however, later, Department months of Plaintiffs in favor judgment entered indicating a second SOI submitted State to about amounting damages awarded as ad- litigation opposed now that it 13, 2007, in Mar- $700,000. December On relations. to U.S.-Colombian verse Nation, Gelves, al. v. The et io Galvis attached the SOI Department State set- approved a appellate court Colombian Govern- from the démarches2 two short and the Colom- between tlement litigation. opposing the of Colombia ment holding that liabil- “[t]he government, bian 28, 2005, issued two the court Id. In June found, be because can ity of the defendant motion to Occidental’s responding opinions the settle- gave rise to the incident the suit. to dismiss April proven.” On ment has been Affairs Legal the Director Forum, Non Conveniens Mujica I— Ministry directed Defense National Comity International 1,393,649,934.73 pe- Colombian payment I, F.Supp.2d at Mujica $737,000) to the victims (roughly sos motion to denied Occidental’s district court attorney. Nothing in through their non conveniens based on dismiss victims did record suggests forum Id. 1163-64. comity. and international payment. settlement receive that conveniens, the non respect to With forum Proceedings Below C. that, despite court concluded district Republic against the civil May 2004 verdict on- litigation was the Colombian While plaintiffs of these in favor of Colombia complaint in United filed a going, Plaintiffs court, regional Colombia 23, 2003. Colombian April on district court claims. for Plaintiffs’ amended, inadequate an forum brought The complaint, plaintiffs torture; found that because the killing; court extrajudicial claims for Colombia, in a suit inhuman, relief cruel, had received against humanity; crimes Defendants, “these not treatment; that did include and war crimes degrading recover able to not be (ATS), [would] 28 Plaintiffs Tort Statute under the Alien at 1148. Id. these Defendants.” § Torture Victims U.S.C. court, “Colombia to the According § district (TVPA), 28 U.S.C. Protection Act because inadequate forum an be law would also state Note. Plaintiffs filed threat, offer, demand, the like.” protest, or diplo- or written "[a]n 2. A is oral démarche ed.2014). Dictionary statement, Law containing a Black's esp[ecially] one matic ATS, could not obtain a remedy doctrine, affairs the act of doctrine, they state against Defendant as could the political question doctrine. Although Court.” Id. the court worked its way through all of these statutes and doc- regard comity, With which the court trines and would have dismissed some but analyzed alongside the related doctrine of claims, not all of Plaintiffs’ it ultimately abstention, international the court held concluded that the entire suit warranted it did not It apply. adopted that Plaintiffs’ dismissal political under question doc- argument “at least the Ninth Cir- 1195; trine. at Id. Carr, see also Baker v. cuit, application 82 S.Ct. 7 L.Ed.2d 663 generally limited to cases where there is (1962).3 a ‘true conflict’ between domestic and for- The district court held that two Baker law.” eign Id. at 1155. Under that stan- supported factors dismissal of the suit— dard, the explained court that there was four, factor “impossibility of a court’s un no “true conflict” between United States dertaking independent resolution [of the law Colombian law: “Since the Court without expressing issue] lack of the re any findings has made of liability or spect due coordinate govern branches of provided remedies, any present there is no ment,” five, and factor the “unusual need conflict between the proceeding Court’s for unquestioning adherence to a political instant case and proceedings already Baker, decision made.” 369 U.S. in Colombia.” Id. at 1156. The district at In reaching 691. acknowledged there was “the conclusion, the court “focus[ed] possibility of inconsistency an between a Supplemental Interest,” Statement Mu future, potential judgment of this Court II, jica F.Supp.2d and found judgment id., and a court,” of a Colombian that its assertion that U.S. foreign policy but the court refused to dismiss the suit negatively “would be impacted by proceed knowledge “without that Plaintiffs ing with the supported instant case” have an alternative forum in they which finding “proceeding litigation with the remedy.” able to obtain a are Id. at 1163— would indicate a ‘lack of respect’ for the 64. preferred Executive’s approach of han dling the Santo Domingo bombing and re Mujica Question II —Political Doc- lations with general.” Colombia Id. at trine footnote, 1194. In a the court wrote that

In a second opinion day, issued same reasons, similar “[f]or the fifth Baker fac II, Mujica tor, policy decision, adherence to a would district court considered whether to dis- also render the justicia- instant case non TVPA, miss various claims under the ble.” Id. at 1194 n. 25.

3. Baker lists six cal textually mitment of the issue resolving Prominent on the to ciding discoverable and cal question: involve a department; a case without an initial demonstrable it; may political raise a alternative [3] the or manageable surface of ^[2] question nonjusticiable constitutional com- impossibility a a lack policy coordinate grounds any is found standards for of determina- case held judicially politi- of de- politi- under a[1] Baker, to nate branches unusual need expressing undertaking independent resolution without multifarious the tion; tion of a kind departments a 369 U.S. at political potentiality ^[4] lack on one decision pronouncements by clearly of 217, of impossibility of embarrassment unquestioning government; the question. 82 S.Ct. 691. already respect nonjudicial made; of a court’s due adherence or various coordi- discre- ^[5] or from ^[6] an 2007) of the 13, and the decision Dec. Remand III —Limited Mujica 3. of Matters 12 for No. Criminal Court court’s district the appealed Republic the Bogot[a] of of the Circuit 12(b)(6) Rule Defendants’ granting order re Romero in In Cesare of Colombia all any and appealed] “further motion and 2007). al., Pradilla, (Sept. slip op. et in Court’s issues the rulings on adverse III, 29, 2005, 1190. ... 564 F.3d at Mujica on June entered order second prior all any and appealed] further [and] Exhaustion Mujica TV—Prudential July On to Plaintiffs.” rulings adverse Cases Colombian the condi- ‘‘notice of a filed Occidental in appeal the time we By the heard the district appealing cross-appeal,” tional III, court district the Mujica original to dis- motion of Defendants’ court’s denial Rea, passed J. had Judge William judge, non conveniens on the action miss forum remand, case the away. Accordingly, as well comity grounds, Wu, H. George assigned Judge was in the court’s judgment adverse any order, a who, our issued in accordance with 12(b)(6) Rule Defendants’ ruling granting Pru- Remand as to the “Ruling on Limited nearly verbatim AirSean filed motion. Exhaustion Issue.” dential day. next the cross-appeal the question, to our first response In of pendency during In March “there is a suffi- held district court filed an ami- the United appeal, claims strong nexus between the ciently urging Defendants of brief on behalf cus and the United this lawsuit asserted in “[bjecause adjudication of this affirmance not be local exhaustion should States that adversely affect the United case would that, if found “even The court required.” And foreign policy interests.” States’ were held States] nexus disposi- [to ultimate agreed it while not shown weak, ... ha[d] be Occidental question political case on tion of the impli- case do not “that that the claims this it also believed grounds, preemption concern,” such as of most cate matters universal claims is plaintiffs’ dismissal as- violent and indiscriminate of international “war crimes as matter appropriate Thus, “Occi- large.” on people saults comity.” claims shown that those ha[d] dental case to remanded the May In we case like- [were] against Defendants this reads, in order that an the district require- subject to an exhaustion ly to be follows: entirety, as its ment.” authority intervening light the second Tinto, then addressed The court v. Rio Sarei banc) II”], posed had on remand: Cir.2008) (en question this [“Sarei successful civil criminal effect of the court to the district case remanded to Judge Wu brought in litigation Colombia. exhaus- prudential consider whether Judge from case, to a different conclusion came applies this requirement tion were remedies Judge Wu held that so, bars Rea. requirement and if whether Colombia, avail- whether their remand, the available in case. On as of as of now or ability “assessed also consider court should district that, filed” and the case was 2003 when effect, any, if of the decision conclusion, contrary Judge Rea’s despite Republic of Co- of State Council ini- have met its Gelves, “seem[ed] to et al. v. Occidental in Mario lombia Galvis availability of (Council State, showing Nation, tial burden slip op. Dr. noted The court Div., Colombia, local remedies.” Ad. Law Sec. Rep. 589 Hinestrosa, Fernando Occidental’s Colom- novo. Stone v. Corp., Travelers 58 F.3d expert, (9th bian law “stated that 434, Cir.1995). Plaintiffs 436-37 In reviewing a bring could a suit today Occidental motion to pursuant dismiss to Rule Colombia, and could have one brought 12(b)(6), the court must accept as true all 2000, September or time in be- factual allegations in Complaint ju- tween. ha[d] Occidental to consented draw all reasonable inferences in favor of Colombia, risdiction in and the statute the nonmoving party. Silvas E*Trade limitations under Colombian law ha[d] Mortg. Corp., 514 F.3d yet run.” The district court also found Cir.2008).

Plaintiffs’ arguments that it was unsafe We for review the district pursue litigation them to court’s de Colom- cision unavailing, regarding bia international comity Occidental because showed abuse pursued Plaintiffs of discretion. litigation had See Allstate Ins. Life years” Ltd., Colombia “for Grp. and had Co. Linter traveled 994 F.2d there, (2d though they Cir.1993); even now live else- Remington Corp- Rand Furthermore, where. Inc., Plaintiffs had not Del. Sys. v. Bus. physical presence (3d Cir.1987).

shown that their in Co- two-part We follow a test to required pursue lombia was litiga- determine whether a district court abused tion. Accordingly, “[i]f exhaustion were its discretion. See States v. Hink required, probably Occidental would pre- son, (9th Cir.2009) (en vail on its of the availability demonstration banc). first step “[T]he of our abuse of of local futility.” remedies and the lack of discretion test is to determine de novo The court prudential concluded that ex- whether the trial court identified the cor required case, haustion was not in the rect rule to legal apply to the relief re if it impose were to such a requirement, quested. If so, the trial court failed to do “it would find that Defendant Occidental we it must conclude its abused discretion.” ha[d] met its pleading burden of and prov- (footnote omitted). Id. at 1261-62 If the ing the availability of local remedies and district court identified legal the correct Plaintiffs’ failure exhaust them.” rule, we move on to the step second 7, 2010, On April Defendants test and AirScan “determine whether the trial essentially Occidental filed application identical court’s legal the correct Appeal,” (1) (2) “Notice[s] Conditional ‘illogical,’ ‘implausible,’ standard “[b]y noted that declining (3) an impose ‘support without in inferences that requirement remand, exhaustion on limited may be drawn from the facts the rec ” the district court’s Order on Remand ord.’ Id. at 1262 (quoting Anderson v. unchanged prior leaves judgment of Carolina, City City, Bessemer North prejudice case, dismissal with in this 564, 577, S.Ct. thereby effectively re-enters judg- (1985)). L.Ed.2d 518 ment as of the entry date of of the Order 19, 2010, April Remand.” On III. APPELLATE JURISDICTION

filed “Notice of Cross-Appeal” challeng- ing district question court’s March rul- Defendants whether Plaintiffs’ ing. 19, 2010, April notice of appeal following court’s district on remand was decision

II. STANDARD OF REVIEW and, timely accordingly, we have whether Dismissal § for failure to under 28 state U.S.C. 1291. De- 12(b)(6) claim under Rule argue reviewed de fendants district court’s 590 on Limited “Ruling is entitled Its Order the 30- 2010, ruling “triggered

March Exhaustion notice as to the Prudential to file their Remand for Plaintiffs day clock it to understood Appellate parties Rule of the Federal And Issue.” appeal” of under 4(a).4 “the district And since titled as well. Defendants Procedure be limited intact a dismissal ruling left Remand court’s on Limited Brief “Opening brief 7, 2010 April on Circuit,” Defendants ti- prejudice, Ninth from the appeal.” notices of conditional timely filed to Defen- Response “Plaintiffs’ theirs tled Sullivan, cite Abbs v. They Remand Brief on Limited Opening dants’ no (7th Cir.1992), is held there which district court’s Circuit.” from Ninth without jurisdiction party if appellate reentering it was not state ruling did appeal only party to file an standing is the not disturb and we did judgment, the judgment, final of the thirty-days within Accordingly, on remand. judgment cross-appeal party other files if the even limited issued its the district court after by the days appeal of the fourteen within to us. We case returned ruling, the entire De- at 925. standing. Id. without party under Plain- jurisdiction to have continue LLC Stephanie-Cardona cite fendants also July filed appeal, tiffs’ notice original Inc., Centers, Drug Food & v. Smith’s Chater, 94 F.3d Richmond See (9th Cir.2007), in 701, 705 Cir.1996) ap- (observing is cross-appeal that a notice held “late usually jurisdiction courts retain pellate jurisdiction court’s the not fatal- because un- unwilling or panel was previous when ini- cross-appeal derives from over the and remanded appeal able to decide if a lacks But court appeal.” tial notice of ends); see also 28 up to tie loose the case necessarily “it appeal, an jurisdiction over § 1291. U.S.C. cross-appeal,” over the lacks must be dismissed. cross-appeal FEDERAL CLAIMS IV. Id. whether need to consider have no We misapprehended Defendants counsel dismiss- doctrines any prudential original our limited nature claims under federal ing Plaintiffs’ order, we neither ad remand. In that ATS, have no as Plaintiffs TVPA and Plain raised any of the issues dressed either claim under statute. viable 28, 2005, appeal nor vacated the June tiffs’ dismissing case. order district court A. Claims TVPA III, In 564 F.3d at 1192. Mujica

See a federal authorizes The TVPA stead, spe the ease for two we remanded any “individual” action cause of fact-finding ap purposes: cific extraju or an act torture who commits prudential exhaustion plicability of the apparent actual or killing “under dicial II, 822, and doctrine, 550 F.3d at see Sarei law, any foreign or color authority, effect of the Co for consideration of the In a case § Note. nation.” 28 U.S.C. civil cases lombian criminal and related pending, appeal this decided while un The district litigation. Id. the TVPA examined Supreme Court a limited remand. derstood our order parties sixty days if one of period to Appellate 4 di- Procedure 4. Federal Rule officer; case, if that, agency or appeal a notice of States or a federal rects civil filed; ap- within if the with the district clerk "must be filed are other motions certain days entry judgment or order R.App. after P. Fed. pellant is an inmate. 4(a). Excep- R.App. P. appealed Fed. 4(c). from." 4(a)(4), 4(a)(1)(B), here, tions, not relevant extend which are “individual,” held that the term as used in meaning of the TVPA since Plaintiffs statute, “encompasses only natural filed complaint, their so too has its recent Auth., persons.” v. Mohamad Palestinian decision in Kiobel refined our understand- — -, 1702, 1705, U.S. 132 S.Ct. ing 182 of the extent to which the applies ATS (2012). Thus, L.Ed.2d 720 TVPA extraterritorially. Analyzing Plaintiffs’ impose liability against “does not organiza- Kiobel, ATS in light claims we conclude tions.” Id. that these claims must also be dismissed. Defendants in this case are corpo both Kiobel, In Nigerian petitioners who later rations rather than natural persons. became U.S. residents brought tort claims Mohamad, light therefore, Plaintiffs’ ATS, under the based on events in Nige- Accord, claims TVPA must be dismissed. ria, against foreign corporations that had e.g., Int’l, Chiquita Cardona v. Brands only attenuated contacts with the United Inc., 1188-89 Cir. listings on the New York Stock States — 2014). Exchange and an public affiliation with a in relations office New York. See 133 S.Ct. B. ATS Claims at 1662-63 (majority opinion); id. at 1677- J., 78 provides (Breyer, The ATS concurring). “district courts The Court original jurisdiction shall have found that these barred, civil ATS claims were action an for a only, holding alien tort that “the presumption commit- against ex- ted violation of traterritoriality the law of applies nations or a to claims under the treaty of the United States.” U.S.C. ATS” and that “nothing 28 in the statute § 1350. The jurisdictional ATS “is a stat- rebuts that presumption.” Id. at 1669. creating ute action,” new causes no al- Although the Court not hold that did though the Congress adopted First it on plaintiffs may never bring ATS claims assumption that “district courts would based conduct, on extraterritorial it made recognize private causes of action for cer- that, clear viable, in order to be any such tain torts violation of the of na- law claims “touch must and concern the terri- tions. ...” Alvarez-Machain, v. Sosa tory of the United States” and “must do so 692, 724, U.S. 124 S.Ct. 159 L.Ed.2d with sufficient displace force to pre- (2004). sumption applica- extraterritorial question

“The here is not whether tion.” Id. Plaintiffs contend that petitioners stated a proper claim un requirement claims meet this because De- ATS, der the but whether may a claim are corporations fendants U.S. and be- reach conduct occurring in the territory of alleged cause Plaintiffs have that “actions sovereign.”5 Royal Kiobel furthering [purported] decisions —Co., Dutch -, Petroleum U.S. conspiracy” between Defendants and the 1659, 1664, (2013). S.Ct. 185 L.Ed.2d place CAF “took in the United States.” Supreme Just as the Court has clarified We disagree. II, The district court held that all of "impractical.” Mujica Plaintiffs’ duct be would properly ATS claims "binding were rooted in at 1178-83. Because we con- norms, customary international láw” as re- presumption against clude that the extraterri- quired to Supreme a claim state after the toriality hearing bars the federal courts from Sosa, Court's though decision it dismissed claims, express opinion Plaintiffs’ ATS no “cruel, inhuman, Plaintiffs’ claim for and de- allegations as to whether Plaintiffs' were oth- grading consequences treatment” because the erwise under proper Sosa. permitting ATS claims based on such con- ” face,’ on its plausible that is relief basis that form allegations may have conduct conjecture that con- exclusively concern mere

Plaintiffs’ does in the For ex- occurred Colombia. duct that occurred Iqbal, bombing burden. See allege meet that ample, Plaintiffs Ashcroft Colombia, 1937, 173 662, 678, an office from planned added) (2009) pro- AirScan (emphasis of Defendant employees L.Ed.2d bombing, during Twombly, Corp. v. Bell Atl. support (quoting vided a plane provided L.Ed.2d Occidental Defendant U.S. and operation, in the targeting (2007)). for used and material gave Defendants both that de of this recognition apparent only The CAF. to the support logistical have re Plaintiffs complaint, in fect their that so much court this before statement in complaint their leave to amend quested the conduct within Unit- any alludes to urges likewise dissent of Kiobel. The light brief, reply in Plaintiffs’ is found ed States although we But this relief. grant tous point Kiobel, Plaintiffs in which

filed after signifi a acknowledge that Kiobel worked that complaint in their allegations to the legal prerequisites change in the cant and con- and aided abetted Defendants claim, that ATS an extraterritorial that speculate the CAF and spired often in the law intervening changes such conduct, making as the that such of some amend, to parties leave granting warrant Defen- the two between the contract granting not believe do in the United dants, have occurred could any purpose. amend would serve leave to an ade- is not speculation Such States. Calderon, F.3d See, e.g., Bonin v. allow Plaintiffs’ which basis on to quate Cir.1995) (9th (“Futility of amendment forward.6 Plaintiffs go claims to itself, ... leave can, the denial of by justify mat- “sufficient pleading burden factual amend.”). true, a claim to to ter, to ‘state accepted as included a Statement services” that ed in Plain- reads the statements The dissent performed). be specifying to regarding contract be- activities reply Work tiffs' brief more AirScan far tween Occidental are that "Plaintiffs also insists dissent The do, they arguing that credulously than we inference” to the reasonable entitled acts in constitute evidence sufficient "could allege they Colombia acts occurred dismissing preclude our to United States support from De- without have occurred” not appraisal credulous ATS claims. This these disagree. The We "U.S. fendants' offices.” ac- the dissent itself simply As mistaken. support to only pleaded the dissent cites facts most, have, "sug- knowledges, Plaintiffs allegations that are Plaintiffs’ that inference “might the contract gested" to court that bombing em- were participants in the three It our borders.” have been executed within bombing was that the ployed AirScan us, moreover, that the bare to is not clear Colombia. site in planned at an Occidental for "secu- Defendants' contract fact that the allegations do not highly circumstantial These the United rity was made in services" Defen- sweeping inference support a jurisdiction in would ATS establish States, dants, the United through actions in only case event. In the ATS bombing be sub- to part in the sufficient took as evidence such contract cited Kiobel. See jurisdiction under ject to ATS conduct, spe- was far the contract more AG, v. Daimler F.3d Balintulo even- cifically to the activities that addressed Cir.2013) corpora- (2d (allegation that U.S. tually gave plaintiffs' ATS claims. rise to aided and Tech., Inc., subsidiaries South African tions' v. CACI See Al Premier Shimari South Afri- rights violations in Cir.2014) human (finding abetted rights viola- alia, ... human where, "tie[ ] ca not did defendant ATS inter the United within actions taken government tions with the federal made a contract States”). “interrogation-relat- States for is not parties This a case which the fendants in the United States with the have had no opportunity respond to an specificity required by Iqbal, absent dis intervening change Supreme Court law. covery. Supreme stated, Court has Defendants filed a supplemental brief in however, plaintiffs satisfy must the wake of the decision urging Kiobel pleading requirements of Rule 8 before claims, dismissal of Plaintiffs’ ATS discovery stage, not after it. Iqbal, pages Plaintiffs devoted 15 reply 678-79, 129 556 U.S. at (explain S.Ct. 1937 brief to Kiobel’s touch-and-concern test. ing that Rule 8 “does unlock the doors Plaintiffs admitted in they that brief that of discovery for plaintiff armed with likely “cannot uncover the evidence they conclusions”).7 nothing more than We to allege [by need” “plotting Defendants] think it clear that no amendment to the in the jurisdictional United States without complaint at stage litigation-i.e., discovery.” Similarly, experi- Plaintiffs’ prior discovery-could add “sufficient fac enced and knowledgeable counsel candidly tual matter” to related domestic to conduct represented to the argu- oral enable complaint to survive a motion to ment —which was held eleven months after dismiss, and we therefore decline to re Kiobel was he say decided —that could not comp that Plaintiffs mand this would be able case for to amend amendment of the complaint allege to by acts the De- laint.8 7. The dissent cites cases it that claims demon- ment to be by addressed —if at the dis all-— appeals that reject- strate other courts of have trict court on a supplemented record. But as Iqbal. ed this view of any the extent that To acknowledges, parties dissent have suggests of those decisions that courts retain already litigating been nearly this case for permit discovery discretion to whenever a decade at the stage. motion-to-dismiss Judi plaintiff satisfy plausibil- has failed to Rule 8’s economy cial and common sense both counsel standard, ity it simply incompatible is with ought that we prolong not this case still fur Iqbal Twombly. Iqbal, See 556 U.S. at by remanding ther to the district court 686, ("Because 129 S.Ct. 1937 respondent’s futility analysis when it is obvious to us that 8, complaint is deficient Rule under he is not leave to amend is unwarranted. Accord Balo otherwise.”); discovery, to entitled cabined or Co., Inc., 1229, co v. Drummond 767 F.3d 559, Twombly, ("It 550 U.S. at 127 S.Ct. 1955 (11th Cir.2014) 1239 (declining to remand say just is answer to shy no that claima of a ATS case to district court for amendment of can, plausible ground- entitlement to relief if complaint post-Kiobel briefing provid where less, early be weeded out discovery in the ed "sufficient information” from which to process through management”); careful case futile, conclude that amendment would be also, Davis, e.g., Vega see Fed.Appx. v. 572 "needlessly and a remand would extend [the] (10th Cir.2014) (rejecting plaintiffs litigation, began years over eleven argument that motion dismiss to should be also, ago”); e.g., Sylvia see Trust Landfield due denied to his "lack of access to relevant L.A., City 729 F.3d Cir. information”); Ga., Cnty., Carter v. DeKalb 2013) (affirming of leave denial to amend (11th Cir.2013) (hold- Fed.Appx. where, amendments, proposed after com- plaintiff ing that allege plausible who to failed plaint "allege would still fail to sufficient facts against claim defendants was not entitled to that possibility amount to than a more sheer discovery "discovery because the fil- follows (alter- that unlawfully” Defendants have acted well-pleaded ing complaint. of a It is not a omitted)); quotation ation and internal marks plaintiff device to enable the to make a case Covina, Dougherty City complaint when his has failed to state a (9th Cir.2011) (affirming denial of to leave (internal quotation omitted)). claim.” marks futility grounds, plaintiff amend on where allege any support "failed simply disagree content to facts” in Not with the foregoing futility analysis, particular legal theory and "could have dissent also iden- suggests that we briefing argu- should tified such not undertaken fact in his it, us, leaving question futility not”). of amend- ment before but he did 10(b) of securities claims did not reach tion allega- any adequate the absence de American States, “foreign and against fraud in the United conduct tions of extraterritorial largely Plaintiffs’ on based remaining nexus between fendants” only added)); that the fact country (emphasis is this conduct claims and Microsoft 437, 455, corporations. U.S. Corp., are both 550 U.S. Defendants AT & T Corp. v. more, enough (2007) not fact, is without That L.Ed.2d 737 127 S.Ct. “touch here that the ATS establish extra presumption (holding suffi- the United States concern” infringement territoriality patent barred force. cient but corporation against U.S. brought case abroad); v. Ara EEOC conduct did based (quite purposely) Admittedly, Kiobel 244, 258-59, Co., 499 U.S. connec- Am. Oil kinds of bian the specific enumerate not (1991) could estab- 113 L.Ed.2d the United S.Ct. tions to apply and concern” did not claims “touch that Title VII (holding that ATS lish Kiobel, at 1669 employers country. U.S. employed U.S. citizens be, may It well J., concurring). (Kennedy, overseas). suggests in Kiobel Nothing citizen- therefore, that a defendant’s adhere to this the Court would that, factor is one corporate status ship or Balintulo, 727 in an ATS pattern case. Cf. factors, can es- other conjunction with (“[I]f relevant conduct all the F.3d at 190 an between a sufficient connection tablish abroad, simply the end occurred territory of the United and the ATS claim Kiobel.”).10 under the matter Kiobel,9 But Su- satisfy States to in accord with reading of is Our Kiobel that a suggested never has preme Court far as we federal courts. So that of other solely bring action based can an plaintiff decided, ascertain, was can since Kiobel merely because on extraterritorial conduct suggested much as court has so only one To the a U.S. national. the defendant is always viable when claim that an ATS applied contrary, repeatedly has the Court corpora- citizen or is a the defendant U.S. extraterritoriality presumption against has remaining federal court See, Every tion. description. meeting that to bar suits only whose connec- Ltd., ATS dismissed claims Nat’l Austl. Bank e.g., Morrison v. country was the defendant’s 2869, to this 269, tion 247, 250-51, S.Ct. 130 561 U.S. (2010) citizenship.11 U.S. (holding that Sec- 177 L.Ed.2d 535 U.S. citi- suggested that a defendant’s "essentially Justices suggests we 9. The dissent citizenship, jurisdiction. zenship but for ATS disregard[]” U.S. would suffice Defendants' dismissing majority U.S. hardly Defendants’ we are view did command But that not 11, contend citizenship and, We do not infra, out of hand. & n. at 594-95 as we discuss irrelevant to the Kiobel that this factor is ex- appellate district court every federal disposi- inquiry; merely that it is not hold by advocated rejected the view cept one has inquiry. v. Chev- tive of that But see that, accept by fol- Mastafa We cannot the dissent. Cir.2014) 170, (2d Corp., 189 ron authority, body overwhelming lowing that ("Whether jurisdictional complaint passes "improvidently Kiobel." extend[ed] we have alleged accordingly depends upon muster anyone not—that by citizen or conduct —U.S. Cardona, (reject at 1189-90 760 11. See place States and aided and took in the United though primary defendant ing ATS claim even nations. A a violation the law of abetted "[a]ny tort corporation, because was a U.S. jurisdictional complaint cannot be ‘saved’ for juris territorial here ... occurred outside hap- simply purposes a U.S. citizen because States”); BenHaim v. of the United diction violation”). alleged pened to commit 152, (3d Neeman, Cir. Fed.Appx. multiple 2013) against otherwise, (dismissing claims ATS pointing to suggests The dissent defendants, non- including U.S.—based two concurring opinion in which four in Kiobel contrast, post-Kiobel By in all “actions that occurred within the United cases in which courts have permitted States”); ATS Sexual Minorities Uganda v. against claims U.S. go defendants to for- Lively, (D.Mass. F.Supp.2d 304, ward, the plaintiffs alleged that at 2013) (holding ATS claims against U.S. least some of the conduct relevant to their citizen were not barred where alleged torts claims in the United States. occurred occurred “to a substantial degree within Shimari, Al 758 F.3d at (holding 530-31 States, the United many years, over with against ATS claims corporation U.S. only infrequent actual visits Uganda”); States, touched and concerned the United Laden, Mwani v. Bin 947 F.Supp.2d where pursuant conduct occurred to a con- (D.D.C.2013) (holding that ATS claims tract made in the United States between touched and concerned the United States defendant government, and the U.S. plaintiffs because “presented had evidence managers in the United approved States ... overt acts in furtherance [the attempted misconduct and to cover it conspiracy defendants’] took place Rajaratnam, Krishanti v. up); 2014 WL States”). United (D.N.J. 28, 2014) at *10 Apr. Kiobel did not (holding that plaintiffs’ point bar legal to a opinion written ATS claims they because were based on by Attorney General William Bradford in profits, underlying where conduct occurred against claim president former U.S. could not - Israel); Servs., Inc., Jovic v. L-3 proceed alleged all because conduct occurred -, -, F.Supp.3d 2014 WL Kenya); at in — see Corp., also Doe v. Exxon Mobil (N.D.Ill. 24, 2014) Sept. -, *5 (dismissing -, -, F.Supp.3d ATS 2014 WL against corporations pre *12, U.S. (D.D.C. because 2014) Sept. sumption against extraterritoriality (“[T]he presumption against extraterritoriality — rebutted); Inc., Sys., I v. Doe Cisco displaced by is not a defendant's U.S. citizen -, -, alone.”); Balintulo, WL ship 727 F.3d at 192- cf. (N.D.Cal. 5, 2014) Sept. *5 (holding that (declining de to issue writ of mandamus or corporate fendant’s citizenship dering U.S. "in and district court to dismiss ATS claims enough of itself is not touch and concern companies arising out acts subsidiaries, force sufficient for the their South explain African but that, cases, ATS apply’’); Ali, to ing v. "[i]n ... the all ATS does not Warfaa - F.Supp.3d -, -, 3734121, permit 2014 WL at *2-3 illegal claims based on conduct that (E.D.Va. 29, 2014) July (dismissing entirely ATS occurred territory the of another arising Somalia, claims Berzaín, out of sovereign”); events Mamani brought against 1353, residing 1369, defendant 2069491, in United 2014 WL at States); Partners, (S.D.Fla. 20, 2014) Adhikari v. Daoud & May *11 (holding that ATS 4511354, (S.D.Tex. 23, 2013) WL Aug. *7 against claims residing defendants in the (dismissing against corpora- ATS claim U.S. United States were barred because all con- tion underlying “[t]he because conduct Plain- duct relevant to claims "occurred on soil”); entirely foreign”); tiffs’ ATS claim Apartheid Ahmed- Litig., In re S. African Al-Assad, 4401831, (S.D.N.Y. 2013 WL 2013) at WL *2 Dec. Al-Khalifa (N.D.Fla. 13, 2013) Aug. *2 (dismissing (ordering, against ATS corporations case U.S. against President, claims Congress, U.S. alleged where all original conduct com- corporation, abroad, because plaint "the violations at plaintiffs occurred that amend States”); issue all occurred outside the United complaint "plausibly plead to ... that defen- Co., Inc., Giraldo v. engaged Drummond 2013 WL dants in actions that and con- touch (N.D.Ala. 25, 2013) July States”). at *8 cern the United But Ahmed v. see (granting summary judgment (S.D.Ohio Magan, to U.S. defen- 2013 WL at *2 ” claims, "nothing 2013) dants on sup- Aug. ATS where (holding in the alternative that

ported presumption “Plaintiffs' contention against [defendant] that extraterritoriality was States”); made in the decisions United overcome fact that the a defendant was Bush, Mwangi v. 2013 WL permanent at *4 lawful resident of the United 18, 2013) (E.D.Ky. States). (noting June that ATS jurisdic- ATS to establish States could United that “the ATS as evidence tion.12 extraterritorially un- nationals reach U.S. In that circumstances.” right judges including

der acknowledge that We — ad- Bradford Attorney General Opinion, in this case—have colleague dissenting our several in which incident States a 1794 that the United argued dressed eloquently in a French for joined provide redress obligation had to citizens has an American citizens American colony injured of Sierra whenever aliens on the British attack of nations. the law violate corporations States’ Leone, of the United in violation (Mar- Cardona, F.3d at 1193 See, e.g., neutrality respect with position official (“The J., United tin, dissenting) com-' Bradford Britain. to France of the expectations to meet would fail no doubt can be that “there mented to allow community were we been who have or individuals company foreign shores to travel U.S. citizens hostility have by these acts injured of the law of nations violations and commit in the courts by a suit remedy civil agree with sev- But impunity.”). ATS. States,” to the pursuant policy that this our sister circuits eral of Att’y Gen. Neutrality, Op. 1 U.S. Breach of “the determina- unavailing, as argument is (1795). goals and the means foreign policy tion of Cardona, slender is too Opinion Bradford The us.” them is for to achieve however, asser- reed, support (majority opinion); the broad see at 1191 Balintulo, at 191-92. ask The jurisdiction that Plaintiffs of ATS also tion exercise courts cannot federal Court considered Supreme of us. limits that Con- beyond the under ATS and found in Kiobel Opinion

Bradford matter how well- no prescribed, gress has “hardly reading” and it “defies a definitive doing motives so. our intentioned weighty counter the concerns suffices against extra- presumption underlying conclude, Plaintiffs’ ATS To Kiobel, at 1668. territoriality.” solely on are based Defendants against on to conclude The Court went Colombia, and the that occurred conduct historical context” “[njothing th[e] about States that with the United only nexus (including not ATS, taken whole De- that both allege is fact in the Bradford only the events described corporations. We hold are U.S. fendants contempo- episodes other but also do not touch and Opinion ATS claims that these ATS), passage of the the United States territory raneous with the concern pre- fed- displace ... force to Congress intended “suggests “with sufficient applica- provide the ATS to extraterritorial sumption' law under eral common 1669, Kiobel, tion,” that occurring in 133 S.Ct. conduct of action for a cause dismissed. they must be sovereign.” Id. territory of another the the Bradford Consequently, 1668-69. COMITY INTERNATIONAL V. claim support cannot Plaintiffs’ Opinion state-law we dismiss Plaintiffs’ Finally, citizen- corporate U.S. that a defendant’s interná- on the doctrine claims based the connection is a sufficient ship that, may regulate the conduct of argues the Bradford 12. The dissent abroad, aside, sovereign whether it has principle that a nationals but Opinion "the U.S. prescribe Modern-day practices the con- jurisdiction to may exercise via the ATS. done so territory is ques- outside its duct of its nationals help answer do not us and norms so, recognized.” even if widely But tion. question us is not whether before comity. tional do reach other vein, We a similar foreign federal af putative bases—whether constitutional or fairs requires doctrine federal courts to prudential dismissing these claims.13 dismiss state law claims based —for Bi v. Union Carbide Chems. potential & Plastics to interfere with foreign U.S. re Cf. Co., (2d 582, Cir.1993). 984 F.2d lations. See Garamendi, Am. Ins. Ass’n v. 396, 401, 539 U.S. 2374, 123 S.Ct. The federal common doc law (2003); L.Ed.2d 376 Zschernig, 389 U.S. at trine of comity international is applicable 440-41, 88 S.Ct. 664. For the same rea to these state notwithstanding law claims son, we must consider the applicability of general rule that federal courts apply the international comity doctrine to these California’s substantive law when sitting state claims. law diversity. Erie R.R. Co. v. Tompkins, 304 “ 64, 817, (1938). U.S. 58 S.Ct. 82 L.Ed. 1188 comity International ‘is the rec The Supreme Court has made an excep ognition which one nation allows within its tion to the Erie doctrine “when there are territory to the legislative, executive or uniquely stake,” federal interests at judicial such nation, acts another having due “litigation as implicates the nation’s regard both to duty international and con foreign relations.” Ungaro-Benages venience, v. and to rights of its own AG, 1227, Dresdner Bank 379 F.3d 1232 citizens of other persons who are under ” (11th Cir.2004). instance, For protection “an issue Simon, its laws.’ In re concerned with a (9th basic choice regarding 991, 153 F.3d (quoting Cir.1998) the competence and function of the Judi Hilton Guyot, 164, 113, 159 U.S. ciary and the 139, National Executive in order S.Ct. (1895)); 40 L.Ed. 95 see also ing our relationships with other members Societe Nationale Aerospat Industrielle of the international community must be iale v. Dist. U.S. Court the S. Dist. exclusively Iowa, treated an aspect federal 543 n. 107 S.Ct. law.” Banco (1987) Nacional de Cuba v. Sabba 96 L.Ed.2d 461 (“Comity re tino, 398, 425, 376 U.S. 84 S.Ct. 11 fers to spirit of cooperation in (1964) L.Ed.2d (holding feder domestic approaches tribunal the resolu al common law act of state pre doctrine tion of touching cases the laws and inter cluded a federal court from considering a ests of states.”); other sovereign Black’s state law challenge (10th to the ed.2014) Cuban govern (defin Law Dictionary 324 ment’s expropriation of certain property). ing “comity” as practice among politi- “[a] example, 13. For we do not decide disagree. a We ques whether We have not raised the California court would decline to reach these comity tion of sponte; sua nature, tort claims due to their extraterritorial fully district considered the doc or whether the federal affairs doctrine trine the issue has briefed and been ar preclude would a California court from hear gued by both sides. As the dissent acknowl See, ing Miller, e.g.,Zschernig these claims. edges, permitted arewe affirm district 429, 440-41, 389 U.S. any ground supported court’s decision on (1968). L.Ed.2d 683 record, see, ASARCO, e.g., LLC v. Union Co., Pac. R. believes, do, Cir. The dissent as we that Plain- 2014), dismissed, consider it important to correct tiffs' state-law claims must be but argues district court’s inappropriate it that that the inter is conclusion it us to for comity inapplicable comity consider the doctrine is international doctrine national addressing here before this sort of foreign per case. The offers no doc- dissent affairs trine, which why was one of the suasive district court's reason our choice address original dismissing improper, bases for disagreement issue is other these than its (along doctrine). political-question with analysis. with comity the merits of our 598 law.” of international states, principles under countries, courts (as or entities

cal Co., Indus. Nippon Paper involving United States jurisdictions), different Cir.1997). (1st 1, “The doctrine legisla- recognition F.3d 8 109 mutual especially] acts”). well-defined,” comity executive, but tive, judicial and has been never maintaining am with clearly concerned “is derived expressly a rule Comity is not na relationships between working icable Constitution, law, the from international neighbourli tions, good ‘shorthand a it draws statutes, equity, but federal respect mutual ness, courtesy common and that, principles and doctrines various upon ju adjoining those who labour between It those turn, all of sources. upon draw ” Bank Morgan Chase JP vineyards.’ dicial in with considerations certain thus shares V., Mexico, de C. S.A. Hornos de and v. Altos sovereignty principles ternational (2d Cir.2005) 418, (quoting such 423 doctrines 412 F.3d territoriality; constitutional doctrine; Airways v. Laker princi Airways Bd. question British political as ples enacted into positive law such as the Ltd., ^[1984] E.C.C. 36, 41 (Eng.C.A.)).15 1976, Immunities Sovereign Act Foreign (2006); 1830, 1602, and essentially 1611 distinct §§ are There .“two

28 U.S.C. con- such as non under judicial doctrines conflated are often [which] doctrines forum prudential exhaustion.14 comity.’” veniens In re heading ‘international convenience, ‘practice, Comity is a “rule 617 Litig., Apartheid S. African of law” rather than expediency’ (S.D.N.Y.2009). legis 228, first 283 cooper promote “to have embraced courts comity,” which “prescriptive lative or foreign lands.” reciprocity ation and they decide courts domestic guides Assocs., Pop Ltd. v. Banco Banker Pravin statutes. reach .of federal extraterritorial (2d Peru, 850, 854 Cir. ular Del 1664; Kiobel, F. 133 S.Ct. Hoff 1997) Phila. Somportex Ltd. v. (quoting S.A., Empagran Roche Ltd. v. mann-La (3d Corp., F.2d 440 Chewing Gum 155, 165, 124 S.Ct. 542 U.S. Cir.1971)). (2004); Fire see also L.Ed.2d Hartford 764, 817, California, 509 U.S. Ins. Co. v. a comity is doctrine International (1993) L.Ed.2d 612 abstention, “coun one that prudential (Scalia, J., (describing prescrip dissenting) when a sover voluntary forbearance sels sovereign na respect comity as “the tive juris claim to legitimate a eign which has by limiting the each other tions sovereign afford that a second diction concludes laws”); Maxwell re of their reach legitimate a claim to also has Id. at law.” with international calling equivocates in- conflicts "Case law between 1179-80. comity a rule. As a a value and ternational value, affecting it reflects the sense cases Sabena, Bel- Airways in a man- should be Laker Ltd. interests 15. See also .decided Airlines, in some gian for these interests World ner that accounts Sunstein, (D.C.Cir.1984) (" ‘Comity’ summarizes way.” Posner & Cass R. Eric A. Law, concept— complex elusive Yale Chevronizing Foreign Relations brief word rule, (2007). forum a domestic degree courts of deference that As a L.J. foreign government explanation to the act of pay as an must “cite international forum.”); binding Don- explicitly driven that are not not otherwise for' outcomes III, doctrines, Comity as ald Earl Childress by” other international relations Conflict: Comityas sovereign Resituating extraterritoriality, foreign International such as Conflict of (2010) Laws, doctrine, 44 U.C. Davis L.Rev. immunity, and the the act of state important, yet canon, (comity the most "an "is one of Charming Betsy holds canons”). understood, law least interpreted to avoid ambiguous will be statute Homan, Corp. plc by Commc’n grounds of comity. The district court (2d Cir.1996) (describing pres in the instant litigation that, held “at least criptive comity as a “canon [statutory] Circuit, the Ninth application construction might shorten [that] the reach comity international generally limited to statute”). of a [domestic] cases where there is a ‘true conflict’ be- tween domestic and foreign law.” Mujica The second strain of the doctrine I, 381 F.Supp.2d at (citing 1155-56 Hart- “comity is referred to among courts” or Fire, 794-95, 509 U.S. at 113 S.Ct. ford adjudicatory comity, “may which be Simon, 999). and In re 153 F.3d at viewed as a discretionary act of deference And argue here that “[t]he exis- by a national court to decline to exercise tence of a ‘true conflict’ ais jurisdiction threshold adjudicated a case properly requirement for abstention foreign Maxwell, internation- state.” 93 F.3d at comity al 1047; grounds,” and that Fire, see also “[i]n this 509 U.S. at Hartford Court, ... (Scalia, J., [the] 113 S.Ct. rule is absolutely clear dissenting) that application (describing “comity of of the law courts” as a set international principles “whereby is limited to judges decline cases in which there is jurisdiction exercise in fact over a true ap matters more conflict between domestic elsewhere”).16 propriately adjudged Thus, foreign law.” adjudicatory comity “involves ... the dis We do not think that Fire Hartford cretion of a national court to to ex decline stands for the proposition adopted by the jurisdiction ercise over a case before it district court and urged by Plaintiffs. when that is pending case in a foreign Fire involved the reach of U.S. Hartford jurisdiction.” court with proper Mor JP laws, antitrust which applied extraterrito- Bank, gan Chase 412 F.3d at 424. In such rially; case, in that question case, “deference to the foreign court is whether a U.S. district court could exer appropriate long so foreign as the proceed cise over antitrust claims filed ings are procedurally fair and ... do not against group of London reinsurers. 509 contravene public the laws or policy of the 769, 798-99, U.S. at 2891. S.Ct. The United States.” Id. that, London argued reinsurers based on comity, A. international Applying Standards antitrust Comity laws should not be read to extend to their activ 1. Adjudicatory Whether Comity Re- ities, regulated which were by British law. quires a “True Conflict” 797-98, 113 See id. at S.Ct. 2891. Supreme The Court’s most recent most Supreme Court discussion of stated that international comity was in Fire, “only question substantial litiga- th[e] U.S. at Hartford tion” was “whether Fire did not there explain, how- fact a [wa]s Hartford ever, what true factors we should or conflict between must con- and foreign domestic sider addressing (internal when comity; in law.” particu- Id. S.Ct. lar, it left omitted). unclear whether a quotation “true conflict” marks The defendants predicate is a prudential argued abstention on applying antitrust federal laws 16. Some commentators have involving Foreign identified other Sovereign Immunities comity, strains of including so- doctrine," Act [] act of state see Childress called comity,” “provides “executive III, only supra, at but the first two are the basis for principles courts to invoke here. relevant deference sovereignty, as in cases Koh, Litigation Transnational Hongju law because British with conflict would (2008). thinkWe States Courts compre own its established Britain had require proof does not Fire that is antitrust regime for regulatory hensive Hartford prerequisite aas a “true conflict” of was con conduct and the defendants’ sues comity, at least of the doctrine 798-99, 113 invoking Id. at law. British sistent with comity. See involving adjudicatory a case held that the Court But 2891. S.Ct. reading of a that since such (concluding id. “true con as a qualify did not situation much more dramatic be a exists, case “would conflict that flict,” “[n]o explaining reached sub to have the Court result for subject person a where purposes, for these it that silentio, to doubt I inclined am comply can by two states regulation to broadly”). to rule 113 meant so Id. of both.” with laws (internal marks quotation 2891. S.Ct. Fire, circuits have Since Hartford “[sjince omitted). the London And citation analysis “true conflict” the Court’s refined British law argue that d[id] reinsurers proof of such required generally and have fashion some to act in them requirefd] prescriptive in cases where only a conflict States, by the law of the United prohibited is, party a where at issue—that comity is with the compliance or claim that conflicting regu subject it to that im otherwise [wa]s countries laws of both or schemes, laws as antitrust latory such with no conflict saw] Court [the possible, apply extraterritoria bankruptcy rules (internal quotation Id. British law.” of New District As Southern lly.17 omitted). marks observed, post-Hartford “[i]n York has cases, analysis has not been conflict, conflict Fire the lack of light of consideration preclude to rigidly ... invoked need that there was “no held Court relating to principles range full of the might considerations other address Rather, conflict comity. from the ex- inform to refrain a decision comity applied often analysis is when inter- most grounds jurisdiction ercise of statutory with issues intersect principles dis- Scalia comity.” Id. Justice national Fr., Republic Freund v. construction.” opinion part from sented (ci (S.D.N.Y.2008) 540, 574 comity” or 592 “prescriptive pointed out nom., Freund v. omitted), sub tation law using international practice “the aff'd de des Nationale Chemins Societe of statutes” reach limit the extraterritorial fer Cir.2010) (2d Francais, Fed.Appx. 939 Id. 817-18 established.” “firmly was Maxwell, also, e.g., see (unpublished); (Scalia, J., dissenting). a conflict” (requiring “true F.3d at 1049 address majority did not Since the case). bankruptcy a comity, bearing on “other considerations” not re- contrast,, the courts have By analysis “left Fire the Court’s Hartford although a true quired proof saying that it was unclear whether conflict— rele- such conflict they have considered that case comity factor in only relevant com- considering adjudicatory vant —when ... or wheth- was with law conflict Instead, courts have considered ity. broadly rejecting more er the Court whether deciding when range of factors case balancing interests due to exercising abstain from Harold true conflict.” there is no where ju- (describing some Broecker, (2009) how 454-56 The Clash generally Christen trig- before Ju- a true conflict Exercising require Obligations: Extraterritorial risdictions of risdiction in Transitional comity). gering Conformance Justice, Comp. L.Rev. Loy. L.A. Int'l & past potential judicial proceeding else ATS suit corporations that con- See, where. e.g., Ungaro-Benages, 379 ducted apartheid Africa). business in South F.3d at (determining a true con Our own decision in In re Simon —a flict was not required and examining “the prescriptive comity case—is consistent strength of government’s our interests in There, with pattern. this we considered using the Foundation [established to hear whether a bankruptcy court could sanction from Nazis], victims of the a foreign creditor for pursuing collection of strength of the German government’s in a foreign debt that had been discharged in terests, adequacy and the of the Founda bankruptcy. 153 F.3d at Although 994. forum”); tion as an alternative Bigio v. (HSBC) the creditor was based Hong Co., (2d Coca-Cola 448 F.3d Cir. Kong, it had participated in the bankrupt- 2006) (“[T]he only issue of international cy proceeding in the States. Id. comity properly raised here is whether We began analysis our with a discussion of adjudication of this case a United the application extraterritorial of U.S. law. States court offend would ‘amicable work Id. at 995. We concluded “Congress (citations ing relationships’ with Egypt.” intended extraterritorial application of the omitted)); Bank, Morgan JP Chase 412 Bankruptcy applies Code as it to property (deference F.3d at 424 foreign adjudica the estate.” Id. at 996.

tory proceedings “is appropriate long so as We then turned to whether we were foreign proceedings are procedurally “require[d]” by comity to vacate the bank- fair and ... do not contravene the laws ruptcy injunction. court’s Id. 997. We public policy States”); of the United Int’l noted that “[international in trans- Nutrition Horphag Ltd., Co. v. Research national insolvency proceedings must be (Fed.Cir.2001) (“As considered in the context of bankruptcy rule, general comity may granted be where theory.” Id. at 998. We explained then it is shown that court is a court Bankruptcy Code “provides for a competent jurisdiction, and that approach flexible to international insolven- public policy laws and of the forum state cies” in which there general “deference rights and the of its residents will not be country to the primary where the insolven- (quotation violated.” marks and internal cy proceeding “sole, is located.” Id. The omitted)); Freund, citation plenary insolvency proceeding” involving (“[T]he at 574 existence conflict of a true the debtor been in had the United States. does not bar the Court from applying the Id. at 999. Because there no “com- were doctrine and considering legitimate other peting bankruptcy proceedings,”18 and be- implicated concerns by United States (which cause HSBC seeking apply exercising jurisdiction courts over a for- comity to avoid sanctions from the U.S. eign sovereign.”). court) But see S. bankruptcy had participated in the African Apartheid Litig., 617 F.Supp.2d at 283 U.S. bankruptcy proceeding and had en- (holding true analysis conflict required joyed benefits, that, its we held under the upon language dissent seizes proved this fact danger that HSBC was no argue that merely In re Simon was “not being exposed conflicting bankruptcy to two case,” prescriptive comity adjudi- but also an prescriptive-comity schemes—a concern. cative-comity case. We are unconvinced. argument point ig- The dissent’s also emphasized The Simon court the lack of post-Simon nores our cases—cases that are "conflicting bankruptcy proceedings” in that reading inconsistent with the dissent's of Si- case conducting because court was an mon. See at 601-02. infra adjudicative comity analysis but because that Indus., 82 Metro I.” forth Timberlane comity did

circumstances, n. 5. F.3d at 846 to that contrary a result “not dictate bankruptcy district and by the reached Proceed- Jury In re Grand Similarly, in Rather, it consistent Cir.1994), [wa]s courts. 959, 964-65 ings, 40 F.3d com- of international principles general a difference that there was presumed ‘there in which to cases is limited ity which un- rights jury witness’s grand between domestic conflict between fact a true rights is in under law and his American der ” (quoting Id. his foreign law.’ regarding privacy law Austrian Hartford conflict, (quo- Fire, 509 U.S. accounts. That Austrian bank omitted)). de- “true conflict” and citation not the was tation marks however Fire. The Court by the scribed Hartford In re interpret not we do put, Simply did the United States Austria and laws of of a concept referenced Simon—which inconsis- to commit witness require not spe- in the passing “true conflict” acts; rather, greater privacy he had tent bankruptcy statute aof cialized context American law than under Austrian rights extraterritorially require applied —to law law, violate Austrian it not but would an irreducible conflict” as proof of “true rights response those him to waive for in all for abstention minimum at 966. court. Id. order a U.S. to an from cases. Thus, “comply with could the witness also Fire cases post-Hartford other Our Fire, at 509 U.S. of both.” laws Hartford is not “true conflict” proof of suggest that marks and (quotation those cases comity. to prerequisite a omitted). we believed Had citation a there was of whether we took account required, conflict” of a “true was proof foreign law. American and conflict between inquiry. It ended have our that fact would conflict, we a did not find Even when we Instead, that “[i]n we decided not. did on to moved inquiry our but did not end bal- comity, we considering international example, factors. For consider other of Austria interests competing ance the Industries, Corp., 82 Inc. v. Sammi Metro ... to determine and the United (9th Cir.1996), we found F.3d 846-47 or- of the illegality the purported whether and Korean American no conflict between its en- precludes law der under Austrian to deter law, other but considered factors Jury Proceed- In re Grand forcement.” Act. We of the Sherman mine the reach F.3d at 965. ings, previously factors we had to looked seven Simon, in In re As decisions our v. Bank Co. out in Lumber set Timberlane Industries, Jury In re Grand Metro (9th America, Cir. F.2d demonstrate, not have Proceedings we 1976) (“Timberlane ”), I for what we called rigid imposing Fire read Hartford Id. rule reason.” jurisdictional “a finding comi requirements set of new I factors the Timberlane 613. One of adjudica considering cases ty. At least in foreign and domestic a conflict between whether comity, we will consider tory Fire over law. We noted Hartford conflict American between there is Lumber holding ruled our Timberlane in, than a rather one factor foreign law as (9th Am., v. Co. Bank of comity. to, application prerequisite Cir.1984) (“Timberlane II”), as to what law,” Accordingly, district but de conflict “would amount of a the existence required ques erred when it “did Fire termined that Hartford applica analyzed it conflict jurisdictional rule true when propriety tion the And, since comity. tion of international comity factors set seven of reason or the identify district court did not the cor F.Supp.2d at (citing Ungaro-Benag rule, legal es, rect 1238).19 “we must conclude it 379 F.3d at Ungaro- Under Hinkson, abused its discretion.” Benages’ F.3d approach, a court “evaluated] 1262; see also, e.g., Perry Brown, 667 several factors, including ^[1] the strength 1078, 1084 Cir.2012). of the United States’ interest in using a foreign forum, [2] the strength of the for Having determined that a true conflict eign governments’ interests, and [3] the not always required application for the adequacy the alternative forum.” Un adjudicatory comity and that the district (citations garo-Benages, 379 F.3d at 1238 court abused its discretion in concluding omitted). otherwise, proceed consider proper framework for analyzing comity. The Ungaro-Benages framework is a useful starting point for analyzing comity Bearing Factors on Adjudicatory claims, but the case offers no substantive Comity for assessing standards its three factors.

Beyond question of true con Ungaro-Benages tells us to consider the flict, courts struggled apply respective con interests of the United States sistent set of factors in their comity analy and foreign the country, but it does not tell ses. As one observed, commentator has us what interests count or what makes a because there analytical “no clear is foreign frame forum adequate inadequate. or exercise, work for its ... courts have been See id. at 1238-39. For those consider- left to together cobble ations, their own approach may we draw on our opin- oft-cited to [international comity].” III, Childress ion in Timberlane I. We note that the supra, at 51. The district court in this criteria we considered in that antitrust case followed a three-part ar framework § case20—which also influenced “Lim- by ticulated the Eleventh Circuit Unga itations on Jurisdiction to Prescribe” of the ro-Benages for the prospective (Third) application Foreign Restatement of Relations I, of comity. Mujica Law,21 Koh, See supra, see at 66—are better seven elements 20. Timberlane I articulated 19. The just." public policy notions of what is fraud, We between in this case. courts should ings (2) spective” eign evaluate three factors: ferent “When places extent to [1] the or whether find it prejudicial policy, court was consistent with parties standards for and 379 F.3d at 1238 Ungaro-Benages applied of businesses or retrospective degree unnecessary claims of which enforcement (3) [2] the the weigh: whether competent retrospectively, because it violated American judgment of conflict with nationality "retrospective” civilized and locations or principal adjudicatory to draw a distinction the court (1) corporations, and used 'proceed- prospective comity (citation was foreign whether or allegiance jurisprudence,' articulated dif- federal courts rendered foreign decent either state judgment and omitted). the for- comity. [3] the "pro- and law by of 21.The Restatement lists a number of consid- of erations for nections, state economic effect violations or has plicit United States as where, the relative commerce, effect, abroad. (a) can be jurisdiction regulating the link of the activity purpose to harm or affect American upon and expected substantial, direct, the extent to which there is ex- ^[5] such as determining activity, charged ^[7] takes or in the ^[6] significance is person the relative state,'i.e., as "unreasonable,” the to achieve compared place nationality, activity compared between the of conduct within the principally foreseeability territory; whether within the extent to which the importance of and foreseeable with those else- compliance, the effects with conduct residence, the (b) responsible territory regulating including: territory, the con- exercise of such on the to the ^[4] or of state— individual much the is as Nev- context. the commercial adapted faithfully court must the federal us law help provide whose ertheless, factors these Erie we States.22 to which the United apply indicia list of general awith Cf. —as foreign U.S. Tompkins, weighing U.S. R.R. Co. v. may look when (1938). gen alterna- of the L.Ed. 1188 adequacy and the interests S.Ct. (Third) Re Foreign of erally forum. Restatement tive 403(2)(c) (courts considering § lations Law interests a. U.S. should is reasonable whether (nonexclusive) regulation to we importance factors “the assess The ” added)). We inter assessing (emphasis when state regulating consider should kind (1) however, of this caution, of the conduct that in cases the location include ests (2) nationality par that “our always a risk is question, there (3) applica of the conduct ties, impaired by character be relations could (4) necessarily interests foreign policy laws, which do not question, of state tion (5) States, policy public Ungaro-Be the United interests.” national reflect a plaintiffs regard some all interests. When at 1232-33. Out nages, 379 F.3d law, the state’s under state risk, claims arise should be careful interests, considered any, if should be prerogatives. to states’ weight give undue particular is well. doctrine foregoing each will discuss We interests,” “sovereign ly concerned in turn. factors 61-62, III, and the supra, Childress closely tied most First, comity is are relevant interests sovereign whose territoriality. We question to the hearing state-law when a federal methodology, calls for conflict-of-laws regulated, or between activity the to be for analysis. See Klaxon governmental-interest a regulation is the and those whom that state 487, Co., Mfg. 313 U.S. (c) v. Stentor Elec. Co. designed protect; character to (1941). 1020, 496, 1477 85 61 L.Ed. S.Ct. importance regulated, activity to be application of analysis favor the state, could That the extent regulating regulation to the See, California's. rather than law regulate activi- Colombia’s such other states to which 1464, Med, Inc., 22 F.3d e.g., Arno v. Club ties, degree the desirabili- to which and the (under Cir.1994) gov (9th California’s 1468 accepted!;] generally ty regulation is of such law, rath analysis, French ernmental-interest (d) expectations justified the existence law, applied plaintiff's to er than California by regu- might protected or hurt be and su against employer former lation; tort claims (e) regulation importance of the Co., Oil pervisor); v. Arabian Am. McGhee legal, political, or eco- to Cir.1989) (Saudi 1412, F.2d 1422-26 (£) 871 to which system; the extent nomic law, law, applied to California rather than the traditions regulation is consistent with employer); against claims plaintiffs' state-law (g) system; the extent of the international S.A., Mediterranee, Cal. 89 Tucci v. Club may an interest have which another state to (2001) 180, 194, Cal.Rptr.2d 401 107 (h) App.4th activity; the likeli- regulating the in law, (Dominican Califor Republic than rather by regulation another hood conflict law, compen applied to tort and worker’s nia state. claims); Burger, 102 Cal. sation Hernandez (Third) Relations Law Foreign Restatement (1980) 804, 795, Cal.Rptr. 564 App.3d 162 403(2) (1987). § law, law, ap (Mexican rather than California arising out of mentioning plied personal-injury a state’s interest claims 22. It bears Thus, Mexico). stating in application of its in necessarily be in the auto accident will not Here-, diversity consid sitting should example, in al- that a court for own law case. interests, pri to refer we mean of ac- er the state’s pled causes though California interest, any, provid if tion, marily the state’s litigation, proceed"to case were to if the particular claims. remedy for ing California’s would follow district forum

605 Second, should consider where the ques- conduct in we should take account place. tion took whether question This is critical of the parties are United nationals, States citizens or in determining extraterritorial reach of also they whether are statutes, citizens of the Kiobel, relevant U.S. see 133 S.Ct. at Texaco, state. Inc., Jota v. See 1663-65; Oil, Arabian Am. 499 U.S. at (2d 153, Cir.1998) (vacating dismissal, 248, and it is a relevant conveniens, forum non comity, and fail- consideration in adjudicatory comity as join ure to indispensable party grounds, of general well. The presumption against ex- action Ecuadorians against American application traterritorial of U.S. law recog- oil company injuries for allegedly re- nizes that governs “United law do- sulted from Ecuador); action in Reebok mestically but does rule the world.” Int’l, Enters., Inc., Ltd. Mamatech Microsoft, U.S. S.Ct. (9th Cir.1992) 556-57 (holding Comity similarly respect rests on for the jurisdiction U.S. courts have where legal systems of members of the interna- parties some were corporations U.S. legal tional community kind of interna- —a persons and other non-nationals had tional federalism —and thus pro- “serves to substantial contacts with the United tect unintended clashes between States). As we previously discussed our laws and of other those nations which ATS, context even presence if the could result international discord.” U.S. nationals as defendants does not es- Oil, Arabian Am. 499 U.S. at tablish country on its S.Ct. 1227. own, can, noted, it as we have contribute to a finding that there is a “nexus” between Not surprisingly, U.S. courts af the United States and parties forded far weight, less pur comity also, ain case. supra; see e.g., poses, to U.S. or state interests when the (“Sarei III”), Sarei v. Rio Tinto PLC activity at issue occurred abroad. See (C.D.Cal.2009), aff'd Torres v. S. Copper Peru Corp., 965 part, remanded, rev’d in part and (S.D.Tex.1996) (dismiss F.Supp. (9th Cir.2011), F.3d 736 granted, cert. ing action under “activity where the judgment vacated sub nom. Rio Tinto and alleged the harm entirely occurred in — -, PLC v. U.S. 133 S.Ct. Sarei Peru [and] Plaintiffs are all residents of 1995, (2013) aff'd, 185 L.Ed.2d 863 and 722 Peru”), aff'd, Cir.1997); 113 F.3d 540 (9th Cir.2013). F.3d 1109 Sequihua Texaco, Inc., 61, v. 847 F.Supp. Kiobel and the lower-court decisions (S.D.Tex.1994) (declining jurisdiction that have followed in its wake confirm the comity under challenged where activity oc importance of these first two factors to entirely Ecuador); curred in also see jurisdictional courts’ in analyses cases in- Chowdhury v. Bangl. Holding, Worldtel volving international events. While Kiobel Ltd., (2d 42, Cir.2014) (revers 746 F.3d and its progeny specifically address the ing lower court foreclosing jurisdiction and interpretation of a statute —the ATS—and over ATS by Bangladeshi claims filed prudential the international allegedly plaintiff detained and tortured doctrine, guiding principle the of those Bangladeshi Bangladesh). authorities in equally cases in applies the context of ad- Koh, generally 18-19, See supra, at 51-57 judicatory comity: the the nexus weaker (describing courts’ aversion to adjudicating between challenged the and conduct U.S. extraterritorially in principle as rooted of territory parties, or U.S. weaker the national sovereignty). justification adjudicating in matter Ambassa- (“[The receive shall President] or federal applying U.S. U.S. courts Ministers”). See public and other dors law. state 413-15, 123 S.Ct. at 539 U.S. Garamendi consider we should factor The third Line, Cnty. Los v. 2374; Ltd. Japan of nature of interests is bearing on U.S. 99 S.Ct. 441 U.S. Angeles, ask should question. in We conduct (1979); Nacional Banco 60 L.Ed.2d criminal; or action is civil

whether 398, 427, Sabbatino, 376 U.S. de Cuba contract, tort, or in sounds it whether (1964); Bak- 923, 11 L.Ed.2d 804 84 S.Ct. is a conduct and whether property; er, 82 S.Ct. 691. 369 U.S. a violation or is violation regulatory interests found U.S. Courts torture, war norms doing cases where hearing weigh against v. Alvarez- crimes, slavery. See Sosa foreign policy. harmful to U.S. would be so 692, 731-33, Machain, F.3d Japan, 413 Joo v. Hwang Geum (2004); Filartiga v. 159 L.Ed.2d (D.C.Cir.2005) as non- (dismissing 45, 52 (2d Penar-Irala, 876, 890 Cir. 630 F.2d by Korean brought claims justiciable ATS 1980). our may inform inquiries These argu- government’s light in of U.S. women issue to importance judgment of a domestic “adjudication by ment state. or to an individual the United foreign undo a only would settled court not the con connection between closer the with Ja- negotiation policy of state-to-state of the sover prerogatives and core duct delicate disrupt Japan’s also pan, but could sovereign’s inter stronger that eign, the Korea, thereby with China relations I, which example, in Timberlane For est. stability implications for creating serious case, “the we considered anwas antitrust (internal marks quotation the-region” in the Unit of effects on significance relative omitted)); Ungaro-Benages, those else compared with ed States strong foreign light in (abstaining where, explicit there is the extent which promoting interest settlement policy com or affect American to harm purpose through government- Nazi-era merce, importance to ... and the relative forum); Ltd. Shipping backed O.N.E. charged of conduct within the violations Grancolombiana, S.A., 830 Flota Mercante con compared States as Cir.1987) (2d (affirming dis- I, F.2d at duct abroad.” Timberlane court concluded missal where district likely suf- relations would U.S.-Colombian Fourth, cognizance take must light litigation proceeded if fer U.S. interests of the United foreign policy in relevant “strong interest” foreign state’s po- applying we do when States. As in- ownership legislation protectionist state, question, defendant). litical act deference This terest doctrines, respect we must power affairs rooted, separation part, foreign Harbury, of the commitment Christopher Constitution’s concerns. See 2179, political branches. 153 authority to the affairs 536 U.S. Const, (“The (2002) I, (dismissing Con- claim § art. cl. 3 U.S. L.Ed.2d officers regulate alleging ... To Power federal gress shall have Guatemalan widow Nations”); II, husband’s about her art. foreign with concealed information Commerce Power, “if is to be (“[The holding that there fate and § President] shall for raise concerns enquiry, of it will judicial Consent by and the Advice and with trenching on powers Senate, separation ... and he make to Treaties branch- to the other Ambassadors, committed pub- other matters ... shall appoint es”). II, Consuls); § art. and lic Ministers

Fifth, may weigh we also public U.S. interests in regulating conduct that occurs interests, policy borders, those of the relevant within their their involves nation- extent, als, state ato lesser impacts “courts will not public foreign poli- comity foreign cies, extend to proceedings when and implicates universal norms. See doing contrary so be policies Servs., would to the Mich. Cmty. NLRB, Inc. v. ... Pravin, (6th of the Cir.2002). United States.” 109 F.3d F.3d at example, 854. For have held Accordingly, courts have considered the strong there is a justify- U.S. interest territoriality the questioned activity, its ing jurisdiction in “preventing trade- effects, nationality of the parties, and violations,” Int’l, mark Reebok 970 F.2d at the interests of foreign state when 556, and we have spoken of the strong U.S. deciding jurisdiction. whether to exercise policy favoring enforcement of arbitration Jota, See 157 F.3d at 160 (holding that and forum selection clauses. Depend- deference foreign position state’s able Highway Exp. Co., v. Navigators Ins. matters that took place within territory its (9th Cir.2007). 498 F.3d 1068-69 is “inherent in concept comity”); see The Second Circuit has also refused to Sequihua, (declin- also 847 F.Supp. at 62 extend foreign to a ing jurisdiction in part because of Ecua- state’s debt negotiations contrary to dor’s protest ]” litigation “official American policy because the United States “will do ‘violence’to the international legal “encourages in, participation and advo- system”). cates success such of’ debt pro- resolution illustrate, Bi, To the Second Circuit cedures, and the United States “has a held that individual victims of the Bhopal strong interest in ensuring the enforceabil- gas India, leak disaster which harmed ity of valid ... debts owed to United Indians, almost exclusively did not have Pravin, States lenders.” 109 F.3d at 855. standing to challenge a settlement reached We have treated legal ap- differences between India the company responsi- proach cautiously, however. Even when ble for the in light tort of an Indian law foreign practices may differ from Ameri- granting government the Indian exclusive ones, can respect we will those differences standing represent victims disas- long so as the variance does violate ter. 984 (declining pass “to strongly-held state or policy. federal public judgment on the validity of India’s re- Telecom, Belize, See Belize Ltd. v. Gov’t of sponse to a disaster within occurred Cir.2008) (hold- its borders” doing because “would so dis- ing that allowing decision Government rupt our with country relations Belize to directors of remove telecom com- frustrate the efforts of the international pany did not public “violate[] American community develop methods to deal policy” where decision “merely g[ave] ef- problems magnitude of this in the plain fect to the language” corporate future”); also, Freund, see e.g., articles of incorporation, which were inter- F.Supp.2d at 578 (declining law). preted under Belizean where “Plaintiffs’ claims inextrica- [we]re France”). bly connected to Foreign

b. interests c. adequacy The forum proper analysis interests essentially mirrors the consideration of of interests the United States states, Foreign U.S. interests. no less and the foreign government must be evalu States, than the legitimate United light have ated in adequacy of the of foreign the object- in the forum exists adequate of er an adequacy to the it comes When forum. the defendant nation and whether ing ren- consider decisions forum, courts the in the United sued sought to be and ask alternative forum by the dered “ the to consented subject to or has rendered is was forum ‘(1) judgment the whether foreign ... the was (2) judgment assertion fraud; whether via Garcia, Saroop v. utilizing forum.”); ex rel. court competent by a rendered Cir.1997) (3d (invoking juris- civilized F.3d consistent proceedings validity (3) court on foreign to comity to defer and whether prudence; that repug- ... treaty absent assertion [and] prejudicial is of extradition judgment judi- regular of what principles failed to follow foreign state nant to fundamental ” Telecom, just.’ engaged prejudicial Belize proceedings, and cial decent Entm’t Co. to extend Turner or refused (quoting practices, F.3d at 1306 fraudulent GmbH, judicial 25 F.3d find- Degeto Film to United States’ deference Cir.1994)). courts ask (11th Typically, ings).23 specific presented has one side

whether legal system. proud of our justly areWe alterna- of the judgment that the evidence legal other that there are recognize But we inadequate. significantly was forum tive effected, in different systems that (“In case, has party neither id. separa ways, our constitutional values were judgments Belizean argued that law, process due powers, tion of the Belizean fraud or that via rendered Comity, as of the law. protection equal civilized lacked element proceedings nations,” compels among “golden rule jurisprudence.”). laws, policies to the respect “give us to Circuit, example, has The Second that would [we] of others and interests a judgment of to the that deference held in the same own give [our] to have others long as the appropriate so “foreign court is Cmty. circumstances.” Mich. or similar fair procedurally are foreign proceedings (internal Servs., Inc., quo at 356 the laws or contravene ... not do omitted). marks tation JP States.” public policy the Un- proceed under Accordingly, we Bank, at 424. In 412 F.3d Morgan Chase have elab- framework as we garo-Benages juris case, to the court deferred law, mindful the case orated it from though courts even of the Mexican diction not circumstance-dependent comity is delay resolving the six-year there application. mechanical susceptible did not result delay such a litigation, since fac- according to the comity varies “funda “Since injustice” or violate in “manifest claim surrounding each tual circumstances fairness.” procedural mental standards boundaries recognition, the absolute for its (internal marks omit quotation at 428 Id. inherently imposes it are Jota, 160 of the duties ted); 157 F.3d see also Airways, uncertain.” Laker (“When ground of on the dismisses court 937. normally wheth- it consider comity, should Convention, Hague provisions plied the Hague in the context

23. Our decision ha- the child’s completely of Interna- to determine Aspects Civil failed on the Convention residence, contrary Hague these required by is not tional Child Abduction bitual Petroutsas, 580 F.3d sup- principles. findings In Asvesta analysis, made no factual Cir.2009), that a Greek held had father port its determination had not mother child's court’s decision custody rights. Id. at 1016— failed to exercise entitled to wrongly a child was retained clearly misap- the Greek because B. Analysis why sons “the Department State believes adjudication the of this case will have . 1. U.S. Interests an adverse impact on foreign the policy blush, At first United the States’s interests of First, the United States.” it interests in this case to be appear mixed. referenced the related actions which were hand, On the one as we explained, have then ongoing in Colombia the Co- complained conduct of—Occidental and government lombian and military person- alleged AirScan’s with cooperation nel regarding the incident. It noted that in bombing CAF Domingo— Santo companies American that are the sub- took place entirely in Colombia. ject of the instant suit were not then sub- not adequately pled any have factual mat ject suits in courts, the Colombian suggesting ter planning or opera but it added that Occidental stipulated had tions took in place the United States. All to service and jurisdiction consented to in Plaintiffs, moreover, are or were Co Colombia. lombian citizens and residents the time Second, Department State wrote Balintulo, bombings. Cf. that it “believe[d] that courts gen- hand, at 189. On the other the United erally should disputes resolve arising in has an interest upholding in inter foreign countries, where such courts rea- norms, human rights national and Plain sonably have capable and are allege tiffs that Defendants’ actions violat of resolving them fairly. An important ed international norms several respects. part of our foreign policy is to encourage III, See Sarei 650 F.Supp.2d at 1020-21. other countries to responsible establish le- AirSean, moreover, Occidental and are gal mechanisms for addressing and resolv- corporations, U.S. chartered with Occiden ing alleged human rights abuses.” It California, tal a citizen of and the United warned that the give instant case could States has manifested some level of inter impression that government the U.S. “does good est in the of its corporate behavior recognize the legitimacy of Colombian abroad, see, e.g., citizens Foreign Corrupt judicial institutions” and that “per- those Act, 78dd-l, § Practices al U.S.C. ceptions potentially could negative though the United States does not monitor consequences for our bilateral relationship or regulate all the citizens, behavior of its with the government.” Colombian or corporate, natural overseas. See Mi Department State praised Colombia as one Corp., 550 U.S. at crosoft 1746; United States’ “closest allies Morrison v. National Australia Ltd., hemisphere,” and it (2d Cir.2008). warned that Bank lawsuits 167, 174 F.Sd like this one potential “have the for deter- States, however, The United spoken has ring present and future U.S. investment in' directly question on the of its interests in Finally, Colombia.” the letter explained this case. The district particularly that “reduced U.S. investment Colom- credited the State Department’s Supple- turn, bia’s industry” might, oil “detract mental SOI and “strong it was concluded from the vital goal policy expand- States, evidence in the ing and diversifying import- our sources of preserving diplomatic interest its rela- ed oil.” tionship Colombia, prefers instant case be handled exclusively by the United States reiterated these .The in- justice I, system.” Colombian Mujica terests its amicus brief during the initial SOI, at 1161. The dated appeal. De- It particular wrote that “the for- 23, 2004, cember eign policy articulated several rea- interests identified the Unit- 610 to deference. be less entitled might tion of In- Statement Supplemental ed States’ (declin- Gross, See, F.3d at 389-90 456 e.g., litigation of the dismissal warrant

terest prefer- government’s to U.S. ing comi- to defer the doctrine under Executive States argue “the United on ence went to where amicus brief ty.” The the merits position no on recognized has taken properly “district that the promised dismissal has not dispute, United interest’ ‘substantial intervention.”). Here, Depart- our re- the State interest’ of ‘strong dismissed, lawful- to be Colombia, having the for the case in ment asked ally, gional SOI, and by in the strong implication military reportedly by action taken first ness of brief, which course in in its amicus military explicitly officials then Colombian court’s country adju- the district in that affirmance of insurgents urged fighting Accordingly, courts.” in of dismissal. exclusively judgment Colombian dicated the Executive judgment weight to favorable serious “give noted the It also on impact case’s received from of [this] the attack Branch’s view victims 21, Sosa, n. at 733 then 542 U.S. policy,” that was government foreign Colombian 2739, that the There conclude been affirmed. and we and has 124 appeal now S.Ct. having De- in the case that the State interest nothing suggest States’ is in is changed its views. Colombia exclusively has since partment adjudicated strong. has said Court Supreme Department weighs choose the State in this case “should interest California’s implications of opinion adjudicat on the its in of our more express favor somewhat peti- particular over exercising jurisdiction does the United claims than ing Plaintiffs’ alleged in connection with previ tioners We have national interest. States’ be enti- conduct, might well opinion that Cal acknowledged, example, ously for judg- considered tled to deference in pro interest “significant has ifornia particular on a the Executive ment of by the harmed viding a forum those Republic foreign policy.” question Carija citizens.” corporate of its actions 677, 702, Altmann, 124 v. 541 U.S. Austria no, this interest is 1232. But F.3d at 643 (2004); 1 see L.Ed.2d 159 S.Ct. corporate in be good interest general 24 KG, GmbH & Co. v. Dorotheum Whiteman overstated, giv and should not be havior Cir.2005) (2d (crediting F.3d citi are not California en that expression of interests government’s U.S. zens, concern events that their claims nonjusticiable under dismissing as when abroad, one Defendant and that occurred claims doctrine political question (AirScan) resident cor is not a California Austria). against brought Corp., 580 Titan See Saleh v. poration. (D.C.Cir.2009) in (commenting, 1, 12 F.3d here. apt particularly That guidance by for brought case state-law tort State which the This is not ease out of events arising eign plaintiffs or an no SOI has issued Department interests of country, that foreign “the posi- the United States’ SOI and equivocal " foreign policy.’ Deutsch Turner specific in- its own manifest a Were California Cir.2003) (9th (quoting arising redressing Corp., out terest Miller, Domingo chernig incident or Colombia’s Santo Zs generally, Garamendi, could drug more its interests 664); wars U.S. at also see S.Ct. by political preempted branches' 2374; well be v. Victoria Movsesian S.Ct. " ab- power. [the] '[E]ven affairs AG, Versicherung 1071-72 " statute, treaty' a state or federal sence of a Cir.2012). 'establishing] may violate constitution ... U.S. state are de in this minimis the US.” While the second did démarche dispute”). event, In any California’s inter- explain why Colombia holds this posi- in having adjudicated est this case here tion, the SOI surmised that Colombia had scarcely outweighs the United un- States’ a strong interest in avoiding duplicative ambiguous preference contrary. to the As litigation “may that be seen as unwarrant- stated, the Supreme Court has is “[t]here ed and intrusive” would show disrespect ... question no point that at some an for “legitimacy the judicial of Colombian of power exercise state that touches on any event, institutions.” In as the district foreign yield relations must to the Nation- observed, court the Colombian government al policy.” Garamendi, Government’s 539 does not have explain “to itself to a federal 413-14, U.S. at 123 S.Ct. 2374. In light of' I, court.” Mujica F.Supp.2d 381 at 1162. the forcefully expressed views of the State Although position Colombia’s is de- Department, we conclude that that point tailed, “inherent in concept the of comity is clearly has been reached in this case. the desirability having the courts of one nation accord deference to the official posi- 2. Colombian Interests state, tion of a foreign at least when the We next strength consider the of Colom- position expressed on matters concern- bia’s interest in litigating the matter. See ing actions of the foreign state taken with- Ungaro-Benages, 379 F.3d at 1238. As in in or with respect to its territory.” own Bi, activity the here exclusively occurred Jota, Here, at 160. F.3d Colombia has within the territory of a foreign state and done that —it exactly specific has taken a solely involved foreign victims. 984 F.2d position on an incident that occurred with- Although Defendants are U.S. cor- in territory its involving its nationals. See porations, the district court correctly con- Freund, (credit- also F.Supp.2d at 578 cluded “Colombia has a strong inter- ing position the official of both the United est in preventing this Court’s States and France that France should be I, over the instant Mujica case.” the forum for addressing plain- “exclusive” F.Supp.2d 1162. The court came to tiffs claims where the underlying oc- act after conclusion considering one France). in curred (cid:127) two démarches from the Minis- Colombian This situation thus stands in clear con- try Foreign Affairs that were attached trast to other cases where a foreign state SOI. Id. Both démarches refer- express did not an interest in enced, its number, having case the instant mat- courts serve as a forum for litiga- relevant ter’s litigation. district court The first Bayer tion. See Abad v. démarche, Corp., 563 25, 2004, February dated in- Cir.2009) (“[N]either [Argen- Embassy formed the U.S. in Bogota that tina nor appears “the the United judiciary States] Colombian in accordance any interest in principle having litigation with the territoriality” tried in its rather than in investigating the Santo courts Domingo bombing courts country; of the other assessing certainly “the no responsibility agents one the government Colombian of either country Government” who ex- were has démarche, pressed it. The involved second dat- us desire to have these law- 12, 2004, litigated courts.”); ed simply: March stated suits its “The Pacheco de Co., Ministry Foreign AT Affairs wishes to Perez v. & T add (11th Cir.1998) (“[W]e that the Government of Colombia is of the think it significant opinion may decision ... government this case Venezuelan has affect the relations between Colombia and taken position no on whether this lawsuit 2010, we directed remand in On or Venezue- States in the United

proceeds Wu) to consider (Judge district la”). effect issue and the exhaustion prudential doctrine, “to we seek Under Pradilla Romero Gelves of the Galvis en- cooperation foster necessarily re- matters, a directive of U.S. recognition reciprocal courage adequacy of it to reevaluate quired courts.” judgments the benefit forum. With alternative Air- G-V Jet v. One Gulfstream decisions, Judge Colombian subsequent (cit- (D.D.C.2013) craft, 941 than a different conclusion came to Wu Co., v. Cent. Leather ing Oetjen Rea. Judge (1918) L.Ed. 726 297, 304, matter, applied Judge Wu an initial As (“To acts of one validity of the permit a defen- once burden-shifting standard: per- to be reexamined sovereign state would foreign forum that a dant shows by courts of another haps condemned a rem- provide would jurisdiction and have certainly imperil amicable very would claim, “as- the party meritorious edy for a vex governments and between relations delay make a must serting inadequacy nations.”)). peace of Reyn- v. R.J. showing.” Tuazon powerful in- that Colombia’s Accordingly, we find (9th Co., 1163, 1179 433 F.3d olds Tobacco for exclusive forum serving as the terest in Cir.2006); Carijano v. Occidental also see strong. litigation is this (9th Petroleum, Corp., F.3d Cir.2011) an ade- (holding provided Peru Forum Adequacy of the Colombian 3. brought in action quate alternative forum indigenous group Peruvian members adequacy of turn to the Finally, we against petroleum nonprofit and California F.3d Ungaro-Benages, 379 foreign forum. for environmental contamina- company Rea) (Judge court at The district tion).25 courts that “federal originally reasoned standard, the district this unless Under foreign judgments not review will to have met seems that “Occidental judgment held that parties challenging showing the availabili- burden of Mujica its initial that it unfair.” was demonstrate Occi- Hilton, particular, ty local remedies.” I, (citing at 1163 in 139). had consented 202-03, It held dental 159 Colombia, pro- could have Plaintiffs “adequate showing alterna- an Defen- against separate in a suit to ceeded “necessary condition tive forum” of their in at the time comity.” Colombia dants of international apply the doctrine court re- litigation. The was an initial Colombian that Colombia Id. It concluded then they Plaintiffs’ assertion law Colombian viewed inadequate forum because in brought suit not recovery practically in could permit second would they physical feared because Colombia Plaintiffs won judgment to the addition noted The court and had fled. danger in government against the Colombian some of least refuted Gelves, “at that Occidental et al. v. Nation. Mario Galvis regarding contentions Plaintiffs’ See id. at 1147-48. Brown, n. 3 adequacy Ford cases 25. These determined Cir.2003) (noting comity and non conve- forum for forum non the alternative forum analysis although "ultimately'inter- purposes, niens are calculuses conveniens grounds on the "equally pertinent to twined”). dismissal 160; Jota, comity.” also see physical threats to their safety.” It and proving the availability of local reme- “pursue[d] found that Plaintiffs had suit dies and Plaintiffs’ failure to exhaust in years, Colombia for [had] filed court them.” in names, Colombia with papers address- Judge We credit finding of adequa- Wu’s es, numbers, and telephone two [that] cy superseding earlier, contrary posed photos for in [had] finding.26 Defendants, in previous connection with a 2003 newspaper inter- filings us, again before have averred view Colombia.” The court cited evi- they are for pro- available service of dence the record that showed that cess and would waive statute of limita- Plaintiffs could have filed their case di- tions if bring Plaintiffs were to ac- rectly Bogota if they felt unsafe tion them in Colombian courts.27 Domingo. Santo It also noted that Plain- And ‘voluntary “Occidental’s submission to tiffs did not have to physically present be process’ service of suffices to meet pursue Colombia to litigation against requirement first establishing an ade- Defendants. The court concluded that quate alternative Carijano, forum.” Plaintiffs had not made a “powerful show- Tuazon, F.3d at 1225 (quoting 433 F.3d at ing” that the would in- forum be 1178); Bigio, see also 239 F.3d at 454 adequate. Accordingly, “[i]f exhaustion (suggesting that the existence of an alter- required,

were probably Occidental would forum, nate and defendant’s amenability to prevail on its availability demonstration of suit in foreign jurisdiction, should be con- of local remedies futility.” and the lack of comity sidered in analysis). The court prudential concluded that ex- required Considering haustion was not significant the case but success that, if it impose were to require- litigation such a Plaintiffs have had against ment, “it would find government that Defendant Occi- Colombian and the convictions dental met its pleading ha[d] burden of Colombia secured individuals 26. The dissent ample takes us to task for our why they might reli- reason have done so. Judge findings, ance on dismissing Wu’s Civil defendants often make such concessions Judge adequacy Wu’s determination as they in cases where face a choice between "merely findings dictum” and the of a “sub- litigating in an inconvenient and unattractive judge.” stitute district But while we ac- forum in the United a States or convenient knowledge Judge analysis that Wu’s was not See, e.g., Piper forum abroad. Co. Aircraft comity addressed to the international doc- 235, 242, Reyno, 454 U.S. 70 trine, was, Judge Rea's accept cannot (in (1981) L.Ed.2d involving airplane 419 case dissent's contention that we should there- Scotland, “agreed crash in defendants to sub- privilege Judge findings, fore Rea’s jurisdiction mit to the of the Scottish courts complete were based on a Judge less record. any and to waive statute of limitations defense Wu was able to take into account new and available”); might Loya be v. Starwood important information that was unavailable to Worldwide, Inc., Hotels & Resorts 583 F.3d Judge namely, subsequent develop- Rea— (9th Cir.2009) (holding that Mexico in the proceedings ments Colombian his —and adequate was an for forum non conve- forum opinion a insight is valuable source on this purposes, agreed niens “all where defendants The dissent issue. does not and cannot offer service, accept to juris- to submit [Mexican] any persuasive ignoring Judge reason for diction, and waive statute of limitations opinion. Wu’s defenses”). Had jurisdic- resisted Defendants Colombia, statements, they tion in 27. The would have dissent dismisses these substan- ar- tially guing position respect that there weakened their is "no for the idea basis” actually Defendants would issues such as non have submitted conveniens and in- forum jurisdiction they they if ternational subsequently Colombia had been if were joined litigation in the there. But there is sued in the United States. impar- ‘fair and are proceedings if its Domingo bomb Santo for the

responsible ”). tial.’ “powerful not made have ing, Plaintiffs is forum the Colombian

showing” that victory Plaintiffs’ substantial light Piper unsatisfactory.” “clearly Aircraft they government, against the Colombian 254 n. Reyno, Co. v. from a sec- law by Colombian are barred (1981) (noting 70 L.Ed.2d S.Ct. But Defendants. recovery from ondary “rare”); see Lueck is a circumstance such rule does not single-recovery Colombia’s 1137, 1144 Corp., 236 F.3d v. Sundstrand Piper inadequate. See forum render the (“The Cir.2001) (9th Piper Air effect 254-55, Co., S.Ct. 454 U.S. Aircraft will be forum craft adequate can be (noting that forum prac it offers no unless adequate deemed for a potential there is the where even complained remedy plaintiffs for tical award); Ungaro-Benages, damage smaller the Colom contrary, wrong.”). To (“The forum] [alternative at 1239 the Santo addressed legal system bian adequate the Nazi era victims of offers ways: through in two Domingo incident as sub- provide if cannot remedy, [it] even reparations. civil sanctions and criminal courts.”); American an award as stantial F.3d Corp., 301 Chrysler Gonzalez testimony expert on the Relying Cir.2002) (invoking comity to Plaintiffs could 381-82 record, we conclude inade- are not that Mexican courts hold in Colom originally sued Defendants conve- non under doctrine quate government, but they bia when sued forum effectively cap damages because niens pursued so. Plaintiffs they chose not to do child); of a wrongful death lawsuit govern bars Colombian litigation against Bi, (deferring and, see also danger physical fears despite ment tort); addressing mass fears, Indian legitimate conceding Plaintiffs’ even Freund, at F.Supp.2d (holding 576 ‘physical that they “have not shown cf. though adequate even forum pur to alternate required is in presence [Colombia] ” money possibly can be fair amount of Banco Argueta “[n]o v. the civil action.’ sue (alterations (9th circumstances” under Mexicano, S.A., [these] F.3d Cir. omitted)). (internal citation 1996). original) in Defen remedy against Any lack of a to anything in the record Nor is there failure Plaintiffs’ thus stems from deci- dants courts’ suggest that the Colombian rather than in Defendants Colombia injustice” or sue in “manifest sions resulted le the inadequacy of Colombian from proce- standards of “fundamental violated note, Bank, regard, in this that system. We gal Morgan Chase fairness.” JP dural apply jurisdictions regularly sin American 428; Display Co. at see also LG 412 F.3d Ltd., Ltd., circumstances Co., rules other gle-recovery Obayashi v. Seikou of standards (D.D.C.2013) violating fundamental without (holding 30-31 See, e.g., Duran procedural fairness. poli- to U.S. judgment repugnant (7th Cicero, Ill., 653 F.3d comity, only Town denied cy, may such that it be of (“A Cir.2011) that can be read to judgment interest, public if it tends to undermine [from recover twice plaintiff allow in the administration public confidence injury the same for defendants] different law, security rights individual of the or contains, law.”); Vesey error manifest property); liberty private personal or States, 627, 633 Inc., Quest, B.R. v. Oilsands Collins Cir.1980) (“The theory compen (“[A] general (S.D.N.Y.2012) foreign judg- 593, 597 recovery for double satory damages bars be accorded generally ment should the same wrong. principal situation is reach of its laws and their enforcement.” joint where Sosa, concurrent tortfeasors are U.S. 124 S.Ct. 2739 jointly severally and liable for the same J., (Breyer, concurring).

wrong. Only complete one satisfaction is and, if partial permissible, satisfaction is VI. CONCLUSION one, liability

received from of others We affirm the district judgment. court’s (internal will be correspondingly reduced” We do not reach the other issues omitted)). quotation marks raised appeal. on this sum, strength because of the AFFIRMED. government’s U.S. in respecting interest judicial process, Colombia’s the weakness ZILLY, Senior Judge, District case, of California’s interest concurring in part and dissenting in part: strength of Colombia’s in serving interests For years, over 11 forum, plaintiffs1 as an have been exclusive and the adequacy of justice seeking in our courts the Colombian for the role courts as an alternative fo two rum, corporations allegedly we conclude all of the claims played in atrocities committed in the nonjusticiable before us are Re- under the doc public of Colombia. On trine of international December comity. Unga 1998, one or more cluster ro-Benages, bombs were dropped from a Air Colombian Force heli- The crimes allege are abomin- copter onto village of Santo Domingo, able, but the facts of this case nonetheless killing civilians, 17 unarmed including six applying adjudicatory favor comity. Both children, wounding 25 others. Plain- explicitly nations have requested that our (“Galvis”) tiff Mario Galvis Gelvez was ser- courts abstain from adjudicating a matter iously injured raid, wife, and his already litigated in Plaintiffs’ fa- daughter, and niece among were the mas- vor in an adequate alternative forum. The sacred. Although pilot co-pilot United States has strong articulated a in- helicopter were convicted of murder terest in respecting judicial process of years sentenced to 30 prison, plain- Colombia furthering the development tiff $55,800, Galvis only received and each of the rule of law there. The Colombian only $21,762, his sons received “sym- courts have shown willing themselves compensation bolic” from Colombian vindicate Plaintiffs’ legitimate claims government. date, To defendant Occiden- against country’s government for its tal Petroleum Corporation (“Occidental”), acts, military’s and government the has a California corporation, and defendant itself both proven willing and able to hold AirScan, (“AirScan”), Inc. corpo- a Florida the responsible individuals bombing the ration, have required not been to answer account, to as the Galvis Gelves and alleged for their participation in plan- the Thus, Romero Pradilla show. litigation ning and execution of the attack on Santo our forbearance in this circumstance is Domingo. “consistent with notions of comity those that lead each nation respect Instead, to the sover- plaintiffs’ claims these eign rights by of other nations limiting the corporations, brought U.S. pursuant to the Mujica Plaintiffs 1. Luis Galvis Alberto the claim under Bus. & Cal. Prof.Code ("Luis") Mujica claims, and §§ John Galvis Mario are 17200 & Luis's tort brothers; plaintiff Galvis Mario Gelvez is were dismissed as barred. time claims, their namely father. Certain challenged of rulings appeal. not such on 616 only, for a tort by action an alien (“ATS”), 28 U.S.C. civil Tort Statute

Alien of nations improper the law on in violation of committed § were dismissed erro from this appeal 28 and their States.” treaty of the United grounds, or a unreasonably de been has decision Kiobel, neous Supreme the § In 1350. U.S.C. Unfortunate a decade.2 close to layed for jurisdictional statute that this held Court might now end ordeal long ly, plaintiffs’ unless the ATS claims apply does not affirming the dismissal majority the the United States and concern” “touch by relying on claims ATS plaintiffs’ pre- displace to the force “with sufficient decision, Court Supreme distinguishable applica- against extraterritorial sumption —Co., Royal Dutch Petroleum Kiobel majority The tion.” 133 S.Ct. L.Ed.2d 671 U.S. -, 185 133 S.Ct. requiring, Kiobel as addi- misinterprets years eight after (2013), almost announced “con- citizenship, a defendant’s U.S. tion to Rule defendants’ granted district court the the United occurred within duct” that 12(b)(6) affirms majority also motion. procedural both substan- For States. state law related plaintiffs’ dismissal the reasons, majority wrong to im- the tive rendition an by applying unfamiliar in this plaintiffs standard on pose this doctrine, with the international case. court addressing whether the district out the for decision on correctly premised its the district court at the time unwieldy opin In its affairs doctrine. eign 12(b)(6) motion Rule ruled on defendants’ issues ion, reaches inappropriately begun its dismiss, yet had not Kiobel to nothing us, majority does the before Mujica v. See Supreme Court. path to ear, our promise “keep the word but Corp., 381 Petroleum Occidental id. at hope.” our See break it to [a]nd (C.D.Cal.2005); also see F.Supp.2d J., judg concurring (Breyer, Co., Petroleum Royal Dutch Kiobel would, ment). with majority Because the (S.D.N.Y.2006), aff'd reason, right deny plaintiffs good out Cir.2010), (2d part, part, rev’d justice, I must dissent.3 basic seek — U.S. -, 133 S.Ct. 'd, aff Claims Alien Tort Statute (2013). A. The district court L.Ed.2d 671 ATS claims plaintiffs’ based its dismissal district “[t]he provides The ATS doctrine,4 question political on the jurisdiction of original shall have courts ruling court’s reverse the district 4.I would panel this Court remanded prior A2. This doctrine. case political question to "consider for the matter district impact relationship between the does not prudential requirement exhaustion whether judiciary and coordinate branches federal remand, the case applies On case.” Carr, government. Baker v. federal judge de- reassigned, the substitute 186, 210, L.Ed.2d reasons pages of his order voted two (1962). claims do not Plaintiffs’ ATS directions on limit- why he was baffled constitutionally com any issue that is raise re- has ed Now that matter remand. department, the political to. another mitted us, challenge whether turned to defendants deciding plaintiffs’ ATS claims standards majori- agree with jurisdiction. I the we have manageable,” "judicially discoverable are properly us on ty the case is before that require an "ini plaintiffs’ ATS claims do original appeal. plaintiffs’ notice of nonjudicial aof tial determination” policy "unquestioning adherence to an or nature do, however, made,” the with conclusion I concur already 3. and resolu political decision express Vic- plaintiffs' under the Torture will not plaintiffs' claim ATS tion of legislative or exec appropriately respect dis- for the Act was tims Protection lack parties subject the to "mul- or utive branches corporations. are missed because defendants

617 us, plaintiffs’ appearance claims, initial before allowing without plaintiffs a chance well as their first brief submitted to us to conform complaint their majori- to the remand, following predated the limited ty’s previously standard, unannounced is Supreme Court’s decision in Kiobel. not an appropriate or fair result. given have never been an oppor- The majority reaches by its decision im- tunity at the district.court level to amend providently extending Kiobel. Kiobel is complaint in light of Kiobel or to limited to by ATS claims foreign nationals jurisdictional move for discovery or similar against foreign corporations concerning ac- relief. Fargo See Wells & Co. v. Wells tivities taking place on foreign soil. The Co.,

Fargo Express 406, 556 F.2d 430 n. 24 Kiobel Court was “careful to open” leave (9th Cir.1977) (“a court may allow discov- for “further elaboration and explanation” a ery to aid in determining whether it has in “number significant questions,” 133 personam subject jurisdiction”).5 matter J., 5.Ct. at (Kennedy, 1669 concurring), majority ignores The liberality including the extent to which ATS claims which leave to granted, amend is to be (cid:127) against entities incorporated and domiciled particularly when an intervening decision States, in the United like defendants has meaningfully altered standard for case, justiciable.. are In a separate pleading, Serv., see Moss v. U.S. Secret 572 Kiobel, (9th 962, opinion in Cir.2009), justices four F.3d indicated engages that they in a would futility analysis.6 Thus, flawed conclude even exists under majority’s under misreading solely ATS based Kio- the fact test, bel’s “touch and concern” simply af- that “the defendant is an American nation- firming the plaintiffs’ dismissal of J., ATS al.” (Breyer, joined Id. by tion,” pronouncements by depart- tifarious various affirming but the district court's denial 217, ments.” See id. at 82 S.Ct. jurisdictional 691. discovery because the rele- vant plain- evidence was in the control of the majority suggests pleading that the re tiff, defendants). not the quirements of Rule 8 must be satisfied "before it,” discovery stage, citing not after majority’s Ash 6. The reliance on Bonin v. Calder- 662, 678-79, on, Iqbal, (9th Cir.1995), 556 U.S. propo- 59 F.3d 815 for the croft (2009), "can, Iqbal itself, 173 L.Ed.2d 868 futility but by justify has sition that amend,” by not been understood our sister circuits to denial of ... leave to id. at 845 Inc., (omissions Transp., so hold. See Menard v. CSX by majority), misplaced (1st Cir.2012) Bonin, (observing the context of this case. In the assess- appropriate "some latitude” is when futility the in performed ment of had been in the "plausible” court, formation needed for a by claim is in first instance the district and the control, cautioning Iq defendant’s appeal issue on was whether the district court predecessor, bal and its Corp. Bell Atl. properly had exercised its discretion. Id. at Twombly, 550 U.S. affirming S.Ct. 845-46. the denial of leave to (2007), "tempered L.Ed.2d 929 by petition must be corpus, amend the for writ of habeas sound discretion” to achieve “a sensible simply agreed com the Bonin Court with the dis- promise competing legitimate between inter trict "proposed court that the amendments ests”); Doctor, Loosier v. Unknown duplicative Med. existing are either claims or Fed.Appx. Cir.2010) (“As frivolous, patently or both.” Id. at 846. Un- Bonin, past, have said in require we do not federal, like in which came to plaintiffs plead peculiarly facts within the after trials in two different counties concern- defendants.”); knowledge each, ing see also Amidax the crimes committed followed SCRL, Trading Group v. appeals S.W.I.F.T. corpus pro- direct and state habeas (2d Cir.2011) (acknowledging ceedings, type we do not of record give "a court should plaintiff take care to attempt that allows us to decide an whether ample deficiencies, opportunity present by plaintiffs to secure and evi any, to cure the if dence jurisdic- relevant to the existence complaint their would be futile. case, use the JJ., the Court’s Kiobel Kagan, con- Sotomayor, and

Ginsburg, tor- “claims,” “alleged observed in than judgment).7 As rather in the term curring permit concurrence, “[m]any countries phrases, craft- tious conduct” similar against suits bring foreign plaintiffs concern” standard was the “touch and ing con- on unlawful nationals based their own courts must “suggesting purposeful, at 1675. abroad.” Id. place took duct that ATS give rise to all facts that consider may sovereign that a Indeed, principle the claims, parties’ identities and including the the con- jurisdiction prescribe exercise action.” the causes of relationship to territory its is its nationals duct of outside Inc., Tech., Premier v. CACI Al Shimari Restatement See widely recognized. Cir.2014). (4th The 758 F.3d 402(2) § (Third) Law Relations Foreign however, disregards essentially majority, (1987). citizenship, which is defendants’ U.S. incorpo- that a defendant’s concluding In ATS plaintiffs’ fundamental feature an insuf- States is within the United ration “claims,” application of renders and which the for under ATS ficient basis definition, ATS, extraterritorial. not the allege some “con- plaintiffs must Magan, 2013 WL 4479077 Ahmed v. Cf. borders, majority mis- the within our duct” 2013) (S.D.Ohio (concluding that Aug. and concern” Kiobel’s “touch construes extraterritoriality presumption the test, on the connection which is focused as by the defendant’s status was rebutted and the United the ATS “claims” between the resident permanent recog- As 133 S.Ct. at 1669. States. States). premised ATS claim is Unless an in a decision by the Fourth Circuit nized liability,8 a defendant vicarious purely on argument oral after we heard issued in, the directly or controlled suggests were involved majority incorrectly that the The 7. Justices, concerning the officials in connection opinion four activities of the Israeli of these citizenship juris- with, sufficiency custody disputes underlying to confer of U.S. the child ATS, carry day. claims; rather, the under the did not plaintiffs sought diction the ATS the grounds, and decided other Kiobel was on vicariously for nonprofits liable to hold the day explicitly another Supreme left for Court allegedly policies lobbying favor of question presented in the instant case. against fathers in Is- promoted discrimination come, day for decision has now Balintulo, Similarly, Id. raeli courts. accept concurring the invitation of should nationals, but rather principals were not citizenship hold that U.S. Justices and complaint companies, South African enough. liability alleged only of the named vicarious defendants, corporations, of which three U.S. summarizing holdings of various 8. companies were subsidiar- the South African decisions, majority post fails to rec- -Kiobel Unlike Ben-Haim and 727 F.3d at 192. ies. lia- ognize between vicarious the distinction Balintulo, liability, involves direct this case Ben-Haim bility and direct In both claims. that, during allegations the raid on San- Neeman, (3d Cir.2013), Fed.Appx. Domingo, planned in Occiden- AG, 727 F.3d 174 and Balintulo v. Daimler Limón, employ- three U.S. tal's office Caiio (2d Cir.2013), majority cites which the the aircraft from ees of AirScan manned proposition that federal courts have other bombs targets of the cluster were which the citizenship inadequate, alone found U.S. entitled to the are reason- selected. Plaintiffs solely premised ATS claims were vicarious could such conduct able inference that Ben-Haim, principals liability. In whose financial mana- have occurred absent and/or challenged high- being were all actions were support defendants’ U.S. offices. gerial from officials, including a Justice ranking Israeli Block, See Navarro Court, Supreme cabinet- Israel’s two former motion, Cir.2001) (for of a Rule 12 purposes Ministers, judge of the Haifa Rab- level complaint allegations are “all material Fed.Appx. at binical District Court. true, accepted well as all reasonable- as allegation that the U.S. defen- No was made them”). dants, to be from After organizations, inferences drawn namely three charitable who the law violates of nations while domi- U.S. citizens to foreign travel to shores necessarily ciled United States must .in and commit violations the law of nations engage predicate at least one act within with impunity.”). focusing In on the ATS our majority’s “claims,” borders. The treatment of and not the underlying “con- citizenship just U.S. as duct,” “one factor” among the Kiobel carefully Court left open unspecified other simply begs factors through the door victims question of what act is sufficient or how by heinous acts U.S. nationals could hold many enough jurisdic- acts are to establish such individuals or corporate entities ac- tion. I would instead hold the ATS countable. The majority now unnecessari- jurisdiction confers when an claim ly ATS slams the door shut.

brought against a corporation domestic or plaintiffs Had conceded that no act re national, other any U.S. without allegation lated to the 1998 bombing in Santo Dom of underlying conduct within the United ingo States, occurred in the United States.9 majority might justified been have in ana

The ATS by was enacted our First Con- lyzing whether should Kiobel be extended gress aas means of vesting the district preclude to ATS claims to which the jurisdiction courts to private hear only causes “touch and concern” allegation is the of action for certain torts violation of the fact of incorporation in the United States. nations, law of including piracy. Plaintiffs, however, Sosa suggested quite the Alvarez-Machain, 724-25, 542 U.S. opposite. They reminded us that the con (2004) 124 S.Ct. 159 L.Ed.2d 718 pursuant tract to provided which AirSean Blackstone, (citing W. security Commentaries on services for Occidental in Colom (1769) England the Laws of might [hereinafter bia have been executed within our “Blackstone”]). Piracy Shimari, and its modern- borders. Al at 530- Cf. day equivalents, including ge- torture and (holding jurisdiction existed with nocide, are of particular concern to the regard to arising ATS claims from interro sovereign bearing primary- responsibility gations by conducted civilian contractors for policing the perpetra- activities at the Abu prison Ghraib because- inter tors because failure to “animadvert upon alia the perform contract interrogation to them with a becoming severity” might ren- services in Iraq issued in the United der the sovereign accomplice “an or abet- addition, States to a corporation). U.S. crime, tor of subject’s [its] and draw[] far from capitulating about the absence upon community [its] calamities of for- financial managerial connection be eign 68; war.” 4 Blackstone see also corporate tween the facilities our coun Chiquita Int’l, Inc., Cardona try Brands and the events in Domingo, Santo (11th Cir.2014) (Mar- plaintiffs amend, have asked for leave to tin, C.J., (“The dissenting) United States with the decision in Kiobel as their new would fail to meet the expectations of guide. We should follow the lead IDoe international community USA, were Inc., we to allow v. Nestle 766 F.3d 1013 all, we deal here plaintiffs whether 9. As indicated partial elsewhere in this dis- proven sent,

have preponder- ATS incorporation if U.S. is not sufficient evidence, claims, ance but instead with wheth- plaintiffs’ confer over ATS plaintiffs pleaded er “only enough I plaintiffs opportuni- facts would at least allow an a claim plausible state to relief ty that is on its complaint satisfy to amend their Twombly, face.” requirements "touch imposed and concern” by majority. tra- tort law is within recognizing any “impru- from Cir.2014), and refrain states, the dis- of the competence ditional refine the apply and attempt to ... dent federal strong reasoned 1028, trict court test,” when id. concern touch and case, interests in policy foreign long us were framed before pleadings Supplemental Statement by the evidenced For conceived. was even Kiobel before States, out- by the United I, filed of Interest I would in Doe the reasons articulated of California the weak interests weighed allow this case to' and remand reverse Id.; see tort claims. concerning plaintiffs’ light in complaint their to amend plaintiffs Garamendi, 539 v. Ins. Ass’n also Am. I Doe VIII v. Doe & of Kiobel. See also — 2374, L.Ed.2d 376 396, 156 -, 123 S.Ct. U.S. F.Supp.3d Corp., Exxon Mobil (2003). of the (D.D.C. portion affirm this I would 4746256, at *14 -, WL 2014 majority, The decision. court’s 2014) (“[T]he district is of the view 23, Court Sep. however, to examine expressly declines opportunity have the should plaintiffs of the for- on the basis dismissal whether complaint amend their to to file for leave appropriate. doctrine eign in the affairs intervening change light in Kiobel.”).10 by law created Comity Doctrine 2. International Law Tort Claims

B. State ground on addressing the Instead of Doctrine Foreign Affairs actually court relied district which the decision, majority focuses its reaching concluded that The district court premise to court’s refusal on the district precluded plain affairs foreign doctrine state law plaintiffs’ death, infliction the dismissal intentional wrongful tiffs’ comity. the doctrine of international distress, inflic on negligent of emotional the basis Declining to decide matter Mu distress claims. tion of emotional of absten- comity is form of international F.Supp.2d at 1187-88. While jica, 381 Co., (S.D.Tex.2014); Drummond Giraldo v. majority other cites this and several 10. 25, 2013), (N.D.Ala. July attempt an to dem- 2013 WL 3873960 district decisions authority support weight of potentially some inconsistent problem onstrate address these misreading here, Two of its of Kiobel. of cases, see judgments, which is not relevant however, alternate are decided on Inc., Servs., - F.Supp.3d -, Jovic L-3 v. including plaintiff's lack of grounds, (N.D.Ill. -, Sep. *6 WL 2014 Al-Assad, 2013 standing, v. Ahmed-Al-Khalifa 24, 2014) (observing mili that the Croatian 13, 2013), (N.D.Fla. Aug. WL 4401831 Operation tary participated who leaders qualify as 'alien' plaintiff’s to "an failure Storm, allegedly which the U.S. defendants ATS,” Mwangi v. may file under who suit execute, were convicted helped plan and Bush, (E.D.Ky. June WL 3155018 2013 crimes, were later war but convictions 2013). involve Two cases defendants other overturned), distinguishable, or are otherwise nor resi U.S. citizens who were neither —Inc., F.Supp.3d Sys., I v. Cisco see Doe they allegedly committed dents at time (N.D.Cal. -, Sep. WL at *5 2014 Ali, v. foreign soil. heinous acts on - Warfaa 5, 2014) (ruling had failed plaintiffs that the -, WL 3734121 F.Supp.3d "directed, defendants to establish Berzain, 29, 2014); (E.D.Va. July v. Mamani that oc the violations planned, or committed F.Supp.3d 2014 WL 2069491 China”); re South see also curred Afri (S.D.Fla.2014). opinions Yet other concern Litig., WL 6813877 Apartheid can judgment, summary re motions for 26, 2013) (relating (S.D.N.Y. to Balintu- Dec. party opposing than quire much more of the case). lo, forego liability For a vicarious issue, currently at see the Rule 12 motion reasons, deci district court ing the various Partners, 2013 WL & Adhikari Daoud of little majority relies are 23, 2013), which the (S.D.Tex. sions on Aug. modified persuasive value. grounds, on other tion, and a district court’s decision whether conclude that a “true conflict between do- subject only an abstain review mestic law” exists. Hartford Morgan abuse discretion. JP Chase Cal., Fire Ins. 764, 798-99, Co. 509 U.S. Mexico, Bank v. Altos Hornos de S.A. de (1993). 125 L.Ed.2d 612 (2d V., Cir.2005); C. person subject When a regulation Remington Corp.-Del. Rand v. Bus. Sys. two countries can comply with the laws of Inc., (3d 1260, 1266 Cir.1987); 830 F.2d see both, no conflict exists. Id. at Corp. Taylor, Stock W. 964 F.2d S.Ct. 2891. (9th Cir.1992). In concluding that the Adjudicative comity arises in two con- discretion, district court abused its the ma (i) texts: determining preclusive effect jority very relies on a suspect version of enforceability or of a foreign ruling or comity doctrine, the international which it (ii) judgment; or evaluating whether to for foreign substitutes affairs doctrine stay or an dismiss action in a domestic as plaintiffs’ the reason to dismiss state court in favor of either a pending or future Although law claims. a district court’s proceeding in a foreign forum. See 44 may ruling be affirmed on alternate U.C. Davis L.Rev. at 47-48. The Eleventh grounds, prudence weighs against doing so Circuit has grouped these situations in a original ground when the for dismissal is slightly manner, different describing “ret- involves, sound and the substitute basis as rospective” application adjudicative here, announcing regarding novel views comity as either according respect to for- the underlying legal doctrine and reliance eign judgments or deferring parallel unsupported on facts by the record. foreign proceedings, “prospective” ap- majority The cites to a law review arti- plication occurring as when a domestic ac- cle that describes comity international tion stayed or dismissed based on the important, “one of the most yet least respective interests of the domestic and understood, international law canons.” foreign governments and the adequacy of III, Donald Earl Childress Comity as foreign in potentially forum resolving Resituating International Comi- Conflict: dispute. Ungaro-Benages Laws, ty as 44 U.C. Davis Conflict of G, Dresdner Bank A (2010). L.Rev. The majority’s opin- (11th Cir.2004). questions ion raises more than it answers. that, The Third Circuit has observed explains article international (i) absent required the “true conflict” comity may take legisla- three forms: legislative comity prescriptive tive or or a basis for “retro- comity, involving the spective” application adjudicative extraterritorial reach of comi- legisla- domestic (ii) tion; ty, comity, “rarely” executive United States which offers courts refrain (iii) exercising deference to from foreign sovereignty; or on the adjudicative comity “comity ground or the of international comity.11 Gross v. Initiative, courts.” Id. at 47. To legislative invoke German Found. Indus. comity (3d Cir.2006). Indeed, as a basis for abstaining from de- F.3d ciding case, Gross, merits of a a court must the Third expressed skepti- Circuit court, recognized by 11. As the district neither the laws of Colombia con- legislative comity retrospective adjudica- nor civilians, cerning bombing no tive are relevant in this case. See judgment procured by has been Mujica v. Corp., Occidental Petroleum defendants, foreign proceedings and no in- (C.D.Cal.2005). F.Supp.2d 1154-64 No volving ongoing. defendants were ever “true conflict” exists between the laws of the majority’s troubled I am also use of Eleventh Circuit’s about cism adjudicative comity, prospective application' adjudicative “prospective” ‘virtually with “our mo- on defendants’ comity. ruling inconsistent appears When ju- to exercise obligation’ unflagging non conveniens on forum tion to dismiss us, not di- which is granted risdiction the dis- comity grounds, foreign relations because simply minished Colombia trict concluded that (citations at 394 Id. might be involved.” time, forum be- not, an adequate at that omitted). join the Third Circuit I would from re- would be barred plaintiffs cause Circuit the Eleventh declining follow they because covering against defendants comity path. The “prospective” down reparation from the already received had however, forging insists majority, government. 381 Colombian far less ahead, the existence despite remand, the substi- On limited 1147-48. affirming the dis- basis for controversial his task as judge interpreted tute district decision, namely foreign trict court’s exhaus- prudential whether determining doctrine, “prospec- adopts affairs claims; he plaintiffs’ ATS applied tion adjudicative comi- of the application tive” re- analysis in with engage such did not ty rubric. claims. The plaintiffs’ state spect to law majority characteriz- way, the Along the that exhaustion judge concluded district district of discretion the es as an abuse required not because was local remedies that, in the “at court’s least observation plaintiffs’ ATS the nexus between Circuit, interna- application Ninth sufficiently and the United was comity generally limited to cases tional is defendants are primarily because strong, do- is a ‘true conflict’ between were there in- the ATS claims corporations, and law,” and its subse- foreign mestic I concern.” volved matters of “universal that “it must treat quent conclusion v. Sarei this conclusion. See agree with conflict’ as a threshold existence of a ‘true (9th Tinto, PLC, Rio Pe- Mujica v. Occidental requirement.” Cir.2008) (en banc). 1134, 1155 Corp., troleum Simon, (C.D.Cal.2005) (citing In re district of the substitute remainder Cir.1998)). course, Of remand, in limited which judge’s order on proposi- for the In re exact Simon stands can defendants he his belief that indicated court, and con- by the district tion stated availability local remedies for prove the In re trary majority’s suggestion, to the plaintiffs’ failure to claims and plaintiffs’ comi- merely prescriptive Simon was not them, The ma- merely is dictum. exhaust Rather,'consistent with ty principles case. however, it over the earlier jority, credits comity, In re consid- adjudicative Simon district contrary original conclusion conflicting that “there is no ered the fact his decision necessary was judge, which nation.” 153 F.3d in a proceeding on forum non deny defendants’ motion majori- I Although agree at 999. international conveniens analysis conflict” dis- ty that the “true manner, elevate, dic- in this grounds. To solely at in was aimed cussed Hartford entirely differ- uttered for an tum un- comity, I am legislative or prescriptive wholly separate concerning a purpose, ent and the light of In re Simon willing, doctrine, virtually every legal contradicts Gross, to con- reasoning in Third Circuit’s simply not- and is of stare decisis principle comi- adjudicative clude that oper- our courts should way “prospec- ty, “retrospective” whether tive,” ate. a similar does contain threshold. addition, majority’s

In Op Group, conclusion Rev Appellant, plaintiffs could have sued defendants in September they Colombia when Manager LLC, ML Appellee. commenced their action the Colom- bian government, erroneously premised Op Group, Appellant, Rev personal juris- defendants’ waivers of defenses, provided diction in connection August

with their 2004 motion to dismiss Manager LLC, ML an Arizona limited for forum non conveniens. The record liability company, Appellee, contains no basis believing that defen- dants, made, who have throughout Mortgages the 11- Ltd., Debtor-In Re. year case, span of this every possible argu- Mortgages In the Matter of might justify dismissal, ment that would Ltd., Debtor, have foregone they such defenses had ac- tually joined litigation been Co- Bear Holdings, Tooth L.L.P.; Mountain sum, lombia. because the dismissal of Pueblo Park, Sereno Mobile Home plaintiffs’ state law claims can be affirmed Queen L.L.C.; XVIII, L.L.C.; Creek ground on the articulated the district Morley Rosenfeld, M.D. P.C. Restated court, I see no to expand scope reason Plan, Sharing Profit their suc- and/or comity doctrine, the international partic- assigns cessors and (collectively the ularly when procedural posture Op Investors), Rev Appellants, facts of support this case do not the result reached majority’s newly under the minted

standard. Manager LLC, Appellee. ML C. Conclusion Mortgages Ltd., Debtor, re majority needlessly announces novel Queen XVIII, L.L.C., Appellant, Creek standards will' thwart ability only these plaintiffs, every but also other alien who to hold a corpo- seeks Manager LLC, ML Appellee. ration accountable for atrocities committed 12-15229, 12-15438, Nos. Having enjoyed abroad. the benefits of 12-16293, 12-16725. incorporation States', within the United de- fendants in this should also case be re- United States of Appeals, Court quired to answer in a court of the United Ninth Circuit. States for they might played role Argued and Submitted Jan. 2014. bombing the 1998 Domingo. of Santo

Filed Nov. In the Matter of MORTGAGES

LTD., Debtor,

Case Details

Case Name: Luis Mujica v. Airscan Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 12, 2014

Citation: 771 F.3d 580

Docket Number: 10-55515, 10-55516, 10-55587

Court Abbreviation: 9th Cir.