Freddy Locarno Baloco v. Drummond Company, Inc.

Citations: 631 F.3d 1350; 78 Fed. R. Serv. 3d 984; 2011 U.S. App. LEXIS 2124; 2011 WL 321646Docket: 09-16216

Court: Court of Appeals for the Eleventh Circuit; February 3, 2011; Federal Appellate Court

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Children of three former union leaders murdered in Colombia in 2001 appeal the dismissal of their complaint against Drummond Company, Inc., Drummond Ltd., and individual defendants Augusto Jimenez and Alfredo Araujo. They allege violations of the Alien Tort Statute, the Torture Victim Protection Act, and Colombian wrongful death laws, claiming the defendants conspired with the United Self-Defense Forces of Colombia (AUC) to assassinate their fathers. The complaint highlights a history of violence against trade unions in Colombia, noting that after the formation of a union at Drummond, Araujo met with AUC leaders to arrange violent actions against it. Drummond is accused of financially supporting the AUC in this effort, which included the murders of union leaders Valmore Locarno and Victor Hugo Orcasita, who were in contract negotiations with Drummond. Despite their requests for security due to threats, Drummond denied protection, even after warnings from Colombia's secret service. The murders occurred shortly after these requests, with Soler, the subsequent union president, also being killed later that year.

The Children allege a close relationship between the military and paramilitaries in Colombia, claiming that paramilitaries act under government authority and with military support, as supported by reports from sources like the U.S. State Department and Amnesty International. Despite finding these allegations troubling, the district court dismissed the Children’s complaint on the grounds of res judicata and lack of standing. Specifically, it ruled that five of the eight plaintiffs were precluded by a previous case involving the same claims, In re Juan Aguas Romero v. Drummond Co. Inc. Additionally, the court concluded that all plaintiffs lacked standing to sue under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), as the TVPA requires claims to be made on behalf of deceased individuals, which the Children did not meet. The appeal focuses on two main issues: the standing of the Children to sue and the applicability of res judicata to their claims. The court will analyze the constitutional standing requirements, which necessitate that plaintiffs demonstrate an injury-in-fact, a connection between the injury and the defendants' conduct, and the likelihood that a favorable judgment will redress the injury.

The Children have established standing to pursue claims under the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS) based on the murder of their fathers, which constitutes an invasion of legally protected interests that is concrete and actual. The deaths resulted in both financial deprivation and loss of parental guidance. The Children assert that the defendants were responsible for these murders, linking their injury directly to the defendants' actions. The tort system acknowledges that while no compensation can replace a parent, monetary damages serve as a form of recompense for wrongful death. Regarding the ATS, it grants federal jurisdiction over civil actions by aliens for torts violating international law, but does not itself create a cause of action. To succeed under the ATS, a plaintiff must be an alien, alleging a tort committed in violation of international law. The Children, identified as aliens residing in Canada or Colombia, have adequately alleged a claim under the ATS, detailing a conspiratorial plot by the defendants leading to the assassinations of their fathers.

A violation of international law triggering Alien Tort Statute (ATS) liability can arise from conduct such as torture, crimes against humanity, and extrajudicial killings. The Eleventh Circuit case Cabello v. Fernandez-Larias established that these actions are actionable under the ATS, which allows for both direct and indirect liability theories. The Northern District of Alabama previously determined that similar misconduct constituted a violation of the law of nations under the ATS. Accepting the Children’s allegations as true, the court concluded that they sufficiently pled a cause of action under the ATS, reversing the district court's finding of lack of standing.

Regarding the Torture Victim Protection Act (TVPA), the court similarly reversed the district court’s conclusion that the Children lacked standing, recognizing them as claimants for wrongful death under the statute. The TVPA provides a distinct cause of action for torture and extrajudicial killing, imposing liability on individuals acting under foreign authority who torture individuals or carry out extrajudicial killings. The definitions provided in the TVPA clarify torture as acts inflicting severe pain or suffering for various purposes, and define extrajudicial killing as a deliberate killing not authorized by a court with proper judicial guarantees.

The TVPA (Torture Victim Protection Act) and ATS (Alien Tort Statute) define 'torture' and 'extrajudicial killing' differently, allowing for distinct legal remedies under each statute. The TVPA is not the sole remedy for claims of extrajudicial killing. Notably, the TVPA permits both U.S. citizens and aliens to seek recovery for torture and extrajudicial killings, expanding the scope of the ATS, which was previously limited to aliens. Additionally, the TVPA requires state action, meaning a private actor can only be liable if there is a connection with the government. To pursue a claim under the TVPA for extrajudicial killing, a plaintiff must meet specific criteria: they must be a legal representative or a potential wrongful death claimant of a victim killed by someone acting under the authority of a foreign nation. The court believes the Children involved are proper claimants under the TVPA. The statute allows for liability for damages to either the legal representative or any person who qualifies as a wrongful death claimant. The disjunctive 'or' in the statute indicates that these are separate avenues for recovery. The TVPA's intent is to protect human rights by allowing multiple affected plaintiffs to seek damages, which is supported by the legislative history indicating that the Act is designed to facilitate multiple claims for recovery.

In cases of extrajudicial killing, the victim's legal representative and any potential wrongful death claimants are permitted to file suit, indicating Congress's intent to allow multiple suits to hold torturers and extrajudicial killers accountable. The legislation allows the victim or their representatives to seek damages under the Torture Victim Protection Act (TVPA). However, the TVPA does not clearly define who qualifies as a "claimant in an action for wrongful death," leaving ambiguity regarding whether state or federal law should determine this definition. While federal law governs the scope of rights under the TVPA, state law may inform the meaning of "claimant." Legislative history, including House and Senate reports, suggests that courts may refer to state law to identify rightful claimants, and in instances where state law offers no remedy, courts may consider foreign law that recognizes claims from more distant relations. Thus, Congress intended for state law to guide the determination of wrongful death claimants, with allowances for foreign law if necessary.

Determining the plaintiffs' status as wrongful death claimants under Alabama law requires an application of the lex loci delicti doctrine, which mandates that the law of the state where the injury occurred governs the substantive rights of the injured party. Consequently, Colombian law applies for assessing the nature of claims and identifying proper parties in this wrongful death action. The Children claim to be 'legal beneficiaries' under Colombian law with standing to sue for damages, supported by an affidavit from Pedro R. LaFont Pianetta, a former Colombian Supreme Court Justice. The appellees have not disputed the Children’s standing or Mr. Pianetta’s qualifications or conclusions. Therefore, it is concluded that the Children are entitled to pursue their wrongful death claims.

Regarding res judicata, the district court's determination that claims from five of the eight plaintiffs are barred was premature. The pleadings do not confirm that the interests of those asserting claims for the minor children in a prior case (Drummond I) are identical to those of the Children in the current action. The previous plaintiffs were identified only as 'John Does' and 'Jane Does' for safety reasons, and their true identities were revealed in a sealed notice incorporated into the Third Amended Complaint. Given that the five children in question were minors during the Drummond I litigation, they lacked the capacity to sue in their own right, complicating the applicability of res judicata in this context.

Federal Rule of Civil Procedure 17(c)(2) stipulates that minors can only sue or be sued through a duly appointed representative, next friend, or guardian ad litem. Merely listing a child as a plaintiff in a complaint does not establish proper party status. In Burke v. Smith, a minor's representation by her mother as next friend was acknowledged, contrasting with the case at hand, where the Third Amended Complaint and Notice of Identities of Plaintiffs provided no evidence that the children-plaintiffs were properly represented. The mothers' roles as plaintiffs did not imply they represented their children's legal interests, as there was no indication of such representation in the Notice. Without confirmation of appropriate representation by a guardian ad litem or similar, the court cannot conclude the children were parties in the prior case, Drummond I. Consequently, the district court's dismissal of the Children’s claims under the TVPA, citing res judicata, was reversed, and the case was remanded for further factual development regarding the children’s involvement in the earlier litigation. The dismissal for lack of standing on their TVPA and ATS claims was also reversed, with a remand for additional proceedings.