United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
court has before it the Motion to Dismiss the Second Amended
Complaint filed by Defendants Drummond Company, Inc.,
Drummond Ltd., and Drummond USA (Doc. #80) on October 23,
2018 and the Motion to Dismiss the Second Amended Complaint
filed by Defendants J. Michael Tracy and the Estate of Garry
N. Drummond (Doc. #81) on October 23, 2018. The Motions
(Docs. #80, 81) have been fully briefed (Docs. #82-85, 91)
and are properly before the court for review. For the reasons
explained below, the court finds that the Motions (Docs. #80,
81) are due to be granted in part and denied in part.
case was filed on February 26, 2013. (Doc. #1). After the
Supreme Court's decision in Kiobel v. Royal Dutch
Petroleum Co., et. al., 569 U.S. 108 (2013),
amended complaint (Doc. #20) was filed. On February 4, 2014,
the case was stayed (Doc. #45) due to cases then-pending in
the Eleventh Circuit which implicated the claims in the
Amended Complaint (Doc. #20). After the Eleventh Circuit
issued opinions in Doe et, al. v. Drummond Company, Inc.
et. al., 782 F.3d 576 (11th Cir. 2015)
(“Doe/Balcero”) and Baloco et
al. v. Drummond Company, Inc. et. al., 767 F.3d 1229
(11th Cir. 2014) (“Baloco II”), the
court directed the parties to show cause why dismissal was
not appropriate in this case. (Doc. #51). Based on the
responses to the show cause order and representations by
attorneys in conferences, the court dismissed this case in
its entirety with prejudice. (Docs. #52, 53, 60).
dismissal was appealed. On September 27, 2016, the Eleventh
Circuit entered an opinion affirming in part, reversing in
part, vacating in part, and remanding in part. Penaloza
et al. v. Drummond Company, Inc., et al., 662 Fed.Appx.
673 (11th Cir. 2016). After the Supreme Court denied
certiorari in the Doe/Balcero case and interlocutory
appeal was ruled on in the companion defamation case
2:11-cv-3695-RDP-TMP), the court directed the parties to meet
and confer to determine the status of the case. (Doc. #70).
After briefing and a hearing, the court determined that a
Second Amended Complaint should be filed in this case. (Doc.
#75). That Second Amended Complaint (Doc. #75) is the subject
of the pending motions to dismiss (Docs. #80, 81).
Standard of Review
Alien Tort Statute is a jurisdictional statute. See Sosa
v. Alvarez-Machain, 542 U.S. 692, 712-13 (2004). A
challenge to subject-matter jurisdiction under Rule 12(b)(1)
may be made either as a facial attack or a factual attack.
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2006). A facial attack -- the type made by
Defendants here -- argues that the complaint itself
insufficiently alleges jurisdiction and follows the standard
for a motion to dismiss under Rule 12(b)(6).
Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint for failure to state a claim upon which relief may
be granted. Fed.R.Civ.P. 12(b)(6). A court may dismiss a
complaint under Rule 12(b)(6) if a plaintiff fails to provide
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). That is, if a
plaintiff “ha[s] not nudged [her] claims across the
line from conceivable to plausible, [her] complaint must be
dismissed.” Id.; see Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (complaint must
“permit the court to infer more than the mere
possibility of misconduct” based upon “judicial
experience and common sense”).
deciding a Rule 12(b)(6) motion, the court must “accept
all well-pleaded factual allegations in the complaint as true
and construe the facts in a light most favorable to the
non-moving party.” Dacosta v. Nwachukwa, 304
F.3d 1045, 1047 (11th Cir. 2002) (citing GJR Invs., Inc.
v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th
Cir. 1998)). “[U]nsupported conclusions of law or of
mixed fact and law have long been recognized not to prevent a
Rule 12(b)(6) dismissal.” Dalrymple v. Reno,
334 F.3d 991, 996 (11th Cir. 2003) (citing Marsh v.
Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)
(en banc)). Further, “[a] complaint may not be
dismissed because the plaintiff's claims do not support
the legal theory [s]he relies upon since the court must
determine if the allegations provide for relief on
any [plausible] theory.” Brooks v. Blue
Cross & Blue Shield of Fla., Inc., 116 F.3d 1364,
1369 (11th Cir. 1997) (emphasis in original) (citing
Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967)).
Nevertheless, conclusory allegations, unwarranted deductions
of facts, or legal conclusions masquerading as facts will not
prevent dismissal. Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002); see
Kane Enters. v. MacGregor (USA) Inc., 322 F.3d 371, 374
(5th Cir. 2003) (“[A] plaintiff must plead specific
facts, not mere conclusional allegations, to avoid dismissal
for failure to state a claim. We will thus not accept as true
conclusory allegations or unwarranted deductions of
fact.”) (internal citations omitted); Kirwin v.
Price Commc'ns. Corp., 274 F.Supp.2d 1242, 1248
(M.D. Ala. 2003) (“[A]lthough the complaint must be
read liberally in favor of the plaintiff, the court may not
make liberal inferences beyond what has actually been
alleged.”), aff'd in part, 391 F.3d 1323
(11th Cir. 2004).
have asserted a number of claims. The court addresses them
Plaintiffs' Claims Brought Pursuant to the Alien Tort
Claims Act, 28 U.S.C. § 1350 (First and Second Causes of
bring two claims against all defendants pursuant to the Alien
Tort Claims Act, 28 U.S.C. § 1350 - one for war crimes
(First Cause of Action), and one for extrajudicial killings
(Second Cause of Action). All defendants seek dismissal of
these claims for lack of jurisdiction. (Doc. #80 at 5-10;
Doc. #81 at 3). For the reasons explained below, the ATS
claims are due to be dismissed without prejudice.
Alien Tort Statute states in its entirety: “The
district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States.”
28 U.S.C. § 1350. Therefore, by its terms, the ATS is a
“strictly jurisdictional” statute. Sosa,
542 U.S. at 713. It empowers federal courts to recognize
private claims under federal common law, when those claims
sufficiently state an international law violation “with
the requisite definite content and acceptance among civilized
nations.” Kiobel, 569 U.S. at 108.
state a claim for relief under the ATS, a plaintiff must be
“(1) an alien, (2) suing for a tort, which was (3)
committed in violation of international law.”
Doe/Balcero, 782 F.3d at 583-84 (quoting Aldana
v. Del Monte Fresh Produce, N.A., Inc., 416 F.2d 1242,
1246 (11th Cir. 2005) (per curiam)). In addressing a motion
to dismiss under the ATS, the court must undertake “a
more searching review of the merits” than under
“the more flexible ‘arising under'
formula.” Aldana v. Fresh Del Monte Produce,
Inc., 305 F.Supp.2d 1285, 1292 (S.D. Fla. 2003); see
also Aldana, 416 F.3d at 1248 (holding than in an ATS
case, “[p]leadings must be something more than an
ingenious academic exercise in the conceivable”);
In re Sinaltrainal Litig., 474 F.Supp.2d 1273, 1284,
1287 (S.D. Fla. 2006) (“heightened pleading
standard” is required in ATS case, and court must
engage in “a searching review, particularly with regard
to allegations concerning conspiracy or joint action”).
statutory requirements are not the only requirements for
jurisdiction. Id. at 584. Here, because aspects of
Plaintiffs' claims occurred outside of the United States,
the jurisdictional predicate of Kiobel must also be
met. Id. And, under Kiobel, a federal
court's jurisdiction under the ATS is subject to the
presumption against extraterritoriality. Kiobel, 569
U.S. at 124. A federal court lacks jurisdiction over an ATS
claim with a territorial component unless the claim
“touch[es] and concern[s] the territory of the United
States … with sufficient force to displace the
presumption.” Id. Baloco II and
Doe/Balcero each considered Kiobel
under the lens of ATS claims with domestic and
extraterritorial aspects. Doe/Balcero, 782
F.3d at 592; Baloco, 767 F.3d at 1235-36. In
Doe/Balcero, the Eleventh Circuit
determined that “actions under the ATS with an
extraterritorial component must touch and concern the
territory of the United States with sufficient force to
displace the presumption in order for jurisdiction to be
proper. Displacement of the presumption will be warranted if
the claims have a U.S. focus and adequate relevant conduct
occurs within the United States.” 782 F.3d at 592.
Baloco II and Doe/Balcero held
that Plaintiffs' allegations failed to overcome the
presumption against extraterritoriality and that Plaintiffs
had failed to invoke federal court subject matter
jurisdiction under the ATS. See
Doe/Balcero, 782 F.3d at 600; Baloco
II, 767 F.3d at 1239. Because Plaintiffs conceded that the
Amended Complaint in this case was nearly identical to the
complaints in Doe/Balcero and Baloco
II, the Eleventh Circuit held that this court properly
dismissed Plaintiffs' ATS claims in the Amended
Complaint. Penaloza, 662 Fed.Appx. at 677-78.
Therefore, the only question left for this court to consider
is whether the Second Amended Complaint includes new
allegations which overcome the presumption against
extraterritoriality. It does not.
Second Amended Complaint contains three new allegations that
Plaintiffs contend involve United States conduct.
• The Drummond Defendants used their political power,
their significant resources, and their expertise at operating
within the corrupt climate of Colombia to avoid
accountability for their crimes going back 20 years or more.
Indeed, the Drummond Defendants consistently operate this
way, even in their own backyard. On July 20, 2018, an Alabama
jury convicted Drummond Vice President, David Roberson, who
was acting on behalf of Drummond, as well as Drummond's
counsel, of bribing an Alabama state legislator to obtain his
assistance in stopping the Environmental Protection Agency
from expanding a Superfund toxic cleanup site in North
Alabama. The Drummond Defendants have no regard for the law
or the public interest if their profit is at stake. (Doc.
#78-1 at ¶ 2).
• Virtually every major decision concerning
Drummond's Colombian mine operations was made or approved
by Garry Drummond. He made these decisions from his
headquarters in Alabama. While he did visit Colombia on
occasion, he had his main corporate lieutenants, including
Defendant Tracy and James Adkins, come to him in Alabama.
(Doc. #78-1 at ¶ 3).
• El Tiempo, the major Colombian newspaper,
reported that Drummond's U.S. attorneys Baker Botts held
negotiations in Washington, DC with Commander Barbie (Hugues
Rodriguez) to facilitate Drummond's purchase of some of
the land taken from the displaced people. (Doc. #78-1, ¶
allegations add nothing to overcome the presumption against
extraterritoriality. Doe/Balcero, 782 F.3d at
599-600 (“[W]e must find that Plaintiffs'
allegations regarding Defendants' domestic conduct do not
meet the requisite factual predicate or act with the
forcefulness envisioned by Baloco II to warrant
displacement.”). They fail to focus the court on
actions in Alabama which relate to any plot with the AUC to
kill Plaintiffs' decedents in Colombia. Id. at
592-93 (“In weighing the pertinent facts, the site of
the conduct alleged is relevant and carries significant
weight. … When the claim is for secondary
responsibility, we must also consider the location of any
underlying conduct, such as where the actual injuries were
inflicted.”). The new allegations reference actions in
Washington, DC and conduct surrounding an investigation by
the Environmental Protection Agency, which have nothing to do
with the killings at issue in this case. Here, as in
Doe/Balcero and Baloco II, the tort at
issue occurred abroad, not in Alabama. Plaintiffs
advance no allegations sufficient to overcome the presumption
against extraterritoriality as required by
Kiobel. Id. at 598 (“In light of
our precedent, the domestic location of the decision-making
alleged in general terms here does not outweigh the
extraterritorial location of the rest of Plaintiffs'
alternatively argue that they should be allowed
jurisdictional discovery on the issues surrounding
Kiobel. (Doc. #83 at 19-22). They argue that
“there is ample and growing evidence that the Drummond
Defendants were major funders of and collaborators with the
AUC's war crimes” but that “until
Kiobel, Plaintiffs were properly indifferent to the
key issue of Kiobel - whether Defendants'
wrongful acts occurred within the territory of the United
States.” (Doc. #83 at 19-20).
allowing jurisdictional discovery would “needlessly
extend this litigation, ” which, to be sure, began some
fifteen years ago. Baloco II, 767 F.3d at 1239.
Since at least that time, Plaintiffs have pursued cases
against Drummond utilizing “similar allegations and
identical legal bases” with “the benefit of ten
years of evidence obtained from preceding related
cases.” Penaloza, 662 Fed.Appx. at 677-78. And
in fact, the original complaint in this action was filed
after Kiobel was decided; therefore, it is
“telling that the operative complaint continues to
plead sparse allegations of U.S.-based conduct and that the
Plaintiffs fail to offer any indication that they could in
good faith plead additional U.S.-based conduct.”
Id.; see also Doe/Balcero, 782 F.3d 576
(11th Cir. 2015) (“In order for jurisdictional
discovery to be appropriate, there must be a genuine issue of
fact to be resolved. Plaintiff's speculative
‘hunch' that Adkins might have stayed for longer
periods of time in Alabama is simply not enough to open this
issue up to discovery.”) (internal citation omitted).
Jurisdictional discovery is not appropriate in this case.
of the foregoing reasons, the ATS claims outlined in the
First and Second Causes of Action of the Second Amended
Complaint are due to be dismissed without prejudice.
Plaintiffs' Claim Brought Pursuant to the Torture Victims
Protection Act, 28 U.S.C. § 1350 (Third Cause of
Third Cause of Action alleges violations of the Torture
Victims Protection Act (“TVPA”) under 28 U.S.C.
§ 1350 by two individual defendants. The TVPA authorizes
a cause of action against “[a]n individual” for
acts of extrajudicial killing and torture committed under
authority of color or law of any foreign
nation. 28 U.S.C. § 1350 Note. By its terms,
the Act contemplates claims based on secondary, or indirect,
theories of liability. Doe/Balcero, 782 F.3d at 603;
Sinaltrainal, 578 F.3d at 1258 n.5. The Act defines
“extrajudicial killing” as “a deliberated
killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized
people.” Id. In this case, Plaintiffs allege
that each of the killings at issue was an
“extrajudicial killing” in “violation of
the law of nations” under the TVPA, and that the
individual defendants are legally responsible because they
conspired with, aided and abetted, or were engaged in joint
actions with AUC paramilitaries who carried out the murders.
(Doc. #78-1, ¶¶ 258-267).
Second Amended Complaint, Plaintiffs allege that Garry
Drummond and Michael Tracy aided and abetted, and conspired
with, the AUC to commit extrajudicial killings of innocent
civilians. (Doc. #78-1 at ¶¶ 258-67). To survive
the motion to dismiss, Plaintiffs must present “more
than a sheer possibility that [defendants have] acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plausible claim for relief requires
“enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence to support the claim.”
Twombly, 550 U.S. at 556. Naked assertions devoid of
further factual enhancement are insufficient to state a
plausible claim. Iqbal, 556 U.S. at 678. Determining
whether this standard has been met is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679.
Defendant the Estate of Garry Drummond
Garry Drummond, the Second Amended Complaint alleges:
• Virtually every major decision concerning
Drummond's Colombian operations was made by or approved
by Garry Drummond. He made these decisions from his
headquarters in Alabama. (Doc. #78-1, ¶ 3).
• Garry Drummond approved plans to support and fund the
AUC, and gave the approval to Drummond's Security
Advisor, Adkins. (Doc. #78-1, ¶ 7).
• Garry Drummond approved a scheme in which Drummond
provided funds to Jaime Blanco, who then channeled the funds
to the AUC. (Doc. #78-1, ¶ 8).
• Defendant DCI is a closely-held corporation owned by
the Drummond family, and, until his death, was controlled in
its day-to-day operations by Garry N. Drummond. (Doc. #78-1,
• Garry Drummond was the Chairman and Chief Executive
Officer of DCI until he died on July 13, 2016. … While
residing in Alabama, he personally approved the plan proposed
by Adkins and others to have Drummond provide material
support to the AUC so that the AUC would drive the FARC and
other guerilla groups out of the areas of Drummond's
operation in Colombia. Drummond received regular visits from
Adkins, often on a monthly basis, in which Adkins briefed him
on all security issues, including the progress of the
AUC's efforts on behalf of Drummond to drive the guerilla
groups out of the areas of Drummond's operations.
Defendant [Garry] Drummond also made frequent trips to
Colombia and was able to observe first hand the presence of
the AUC around the Drummond facilities, and he was briefed by
Adkins and others as to all aspects of security in the areas
around Drummond's Colombian operations. (Doc. #78-1,
• During his years of service for Drummond, between
1995-2002, Adkins traveled to Alabama every 4-6 weeks to
brief Garry Drummond and other Drummond officials on security
issues, including Drummond's support for the AUC.
… Adkins told the AUC leaders and their intermediaries
that he went to Alabama regularly to brief Garry Drummond and
obtain his consent to key strategic issues, including
providing support to the AUC. Adkins obtained consent in
Alabama from Garry Drummond to provide substantial support to
the AUC. (Doc. #78-1, ¶ 59).
• For its part, Drummond financed a significant
expansion of the AUC's Northern Block, including the Juan
Andres Alvarez Front, based in Cesar Province. Along with
providing this Front with significant funds to arm and supply
over 165 new soldiers, Drummond provided it with day-to-day
operating expenses. Garry Drummond expressly approved this
plan, and gave the approval to Drummond's head of
security, Adkins. (Doc. #78-1, ¶ 92).
• According to Blanco, who has now admitted his role in
arranging for Drummond to finance the AUC, he and Adkins
devised a scheme for Adkins to make payments to the AUC
through Blanco. When Adkins brought Garry Drummond the idea,
Drummond agreed to make payments to the AUC. (Doc. #78-1,
• Adkins, Defendant Tracy, Drummond Executive Mike
Zervos, and Garry Drummond all acknowledged in their
depositions that Drummond provided the military with millions
of dollars and that they had no idea what the military did
with the money. Given that the military specifically asked
Drummond for funds to support the AUC, there is no question
that these Drummond officials knew ...