Jane Doe et al v. Drummond Company, Inc et al

Filing 455

MEMORANDUM OPINION-re: Motions for Summary Judgment 396 & 400 . Signed by Judge R David Proctor on 7/25/2013. (AVC)

FILED
2013 Jul-25 PM 12:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CLAUDIA BALCERO GIRALDO, et
al.,
Plaintiffs,
v.
DRUMMOND COMPANY, INC., et
al.,
Defendants.

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Case No.: 2:09-CV-1041-RDP

MEMORANDUM OPINION
The central question presented to the court here is whether the Supreme Court’s decision in
Kiobel v. Royal Dutch Petroleum Co. et. al., 133 S. Ct. 1659, 2013 WL 1628935 (April 17, 2013)
is an earthquake that has shaken the very foundation of Plaintiffs’ claims against Defendants, or
merely a tremor that has caused the parties and the court to pause but not dispatch those claims. On
April 17, 2013, the Supreme Court issued its opinion in Kiobel which dealt with the extraterritorial
reach of the Alien Tort Statute. Because extraterritoriality is at the heart of the claims made against
the Defendants in this case, the parties were ordered to brief the effect Kiobel might have here. (See
Doc. #447). Those briefs have been submitted (see Docs. #447, 448, 449, 450, 452, 453, 454), and
the issue is now ripe for decision.
The court fully understands there is much at stake in this four year old case. Both time and
resources have been heavily invested by the litigants, their counsel, and the court. In the court’s
view, that is the major factor that continues to motivate the continued salvos in this legal battle, even
after Kiobel. That is, although Plaintiffs contend Kiobel is but a tremor, their arguments do not hold

up under careful review. Plaintiffs’ claims cannot withstand the seismic shift that Kiobel has caused
on the legal landscape pertinent here. For all the reasons stated below, the court concludes that
Defendants’ motions for summary judgment are due to be granted.
I.

Introduction
The first step in analyzing Kiobel is to review the background of that case. The Petitioners

in Kiobel are a group of Nigerian nationals residing in the United States. They filed suit in federal
court against certain Dutch, British, and Nigerian corporations under the Alien Tort Statute, 28
U.S.C. § 1350, alleging that those corporations aided and abetted the Nigerian Government in
committing violations of the law of nations in Nigeria. The question presented, as stated by the
Supreme Court, was “whether and under what circumstances courts may recognize a cause of action
under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a
sovereign other than the United States.” Kiobel, 133 S.Ct. at 1660, 2013 WL 1628935 at **1.
This is precisely the threshold question that must be addressed before the Balcero case
(09cv1041) can proceed on the merits of the issues presented by pending motions for summary
judgment. The Balcero Plaintiffs allege, inter alia, that the Defendants (citizens and entities from
the United States) committed acts in the United States in furtherance of human rights abuses in
Colombia. (See Doc. #449 at 4). They further allege that, despite the decision in Kiobel, the
extraterritorial reach of the Alien Tort Statute extends to their claims because those claims “touch
and concern the United States . . . with sufficient force” such to survive any presumption against
extraterritoriality. (See Doc. #449 at 4-25).
The opinion of the Kiobel court is clear that the principles underlying the presumption against
extraterritoriality constrain courts from exercising their power under the ATS. See Kiobel, 133 S.
2

Ct. at 1665. That presumption is not rebutted by the ATS itself, which contains no clear indication
of extraterritorial reach. See id.; see also Doc. #448 at 2 (“Congress, even in a jurisdictional
provision, can indicate that it intends federal law to apply to conduct occurring abroad.”). Indeed,
the Supreme Court went so far as to say that “there is no indication that the ATS was passed to make
the United States a uniquely hospitable forum for the enforcement of international norms. . . . ‘No
nation has ever yet pretended to be the custos morum of the whole world . . .’.” Id. at 1668, quoting
United States v. The La Jeune Eugeine, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822).
And even where the claims touch and concern the territory of the United States, they
must do so with sufficient force to displace the presumption against extraterritorial
application.” Id. at , citing Morrison, 561 U.S. – (slip op. at 17-24). Corporations
are often present in many countries, and it would reach too far to say that mere
corporate presence suffices. If Congress were to determine otherwise, a statute more
specific than the ATS would be required.
Id. It is now the duty of this court to determine whether or not ATS claims advanced here can
survive the presumption against extraterritoriality. (See Doc. #449 at 2).
II.

A Brief Review of the History of the Balcero Case (09cv1041)
Plaintiffs Jane Doe (1-166) and Peter Doe (1-81) commenced this action on May 27, 2009

by filing a complaint (Doc. #1) in this court for equitable relief and damages under the Alien Tort
Claims Act (“ATS”),1 Torture Victims Protection Act (“TVPA”), 28 U.S.C. § 1350, and Colombian
wrongful death law. (See Compl. ¶¶ 122-144). In their original complaint, Plaintiffs alleged that
they were wives and legal heirs, parents and legal heirs, and children and legal heirs of those

1

Over time, courts have referred variously to 28 U.S.C. § 1350 as the Alien Tort Statute (hereinafter “ATS”),
the Alien Tort Act, and the Alien Tort Claims Act. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court
referred to § 1350 as the Alien Tort Statute. See Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517
F.3d 104, 113, n. 2 (2d. Cir. 2008). This court will primarily use that designation.

3

“murdered by the AUC’s Juan Andres Alvarez Front in furtherance of its agreement with Drummond
to provide security, pacify the area, and otherwise ensure that the civilian population in and around
the Drummond mine and its railroad line would not in any way provide support or cooperation to
the FARC or other leftist rebels.” (Compl., ¶ 15). Plaintiffs sought “damages for the loss of their
relative who was an innocent civilian murdered in furtherance of Drummond’s security objectives
and also as a result of the civil conflict between the AUC and the FARC[.]” (Compl., ¶ 15). The
allegations of the original complaint centered on the contention that Defendants Drummond
Company, Inc. (“DCI”) and Drummond Ltd. (“DLTD”) paid and conspired with paramilitaries,
specifically the AUC, to harm union leaders and provide “security” for Drummond’s rail line and
facilities. (Compl., ¶ 106; see also Doc. #20 at 1).
The original complaint additionally asserted that each of the killings at issue was an
“extrajudicial killing” in “violation of the law of nations” under the ATS and in violation of the
TVPA. Plaintiffs contend that Defendants were liable for those killings because the paramilitaries
carried them out as Defendants’ “agents,” and because Defendants provided the paramilitaries with
“knowing and substantial assistance,” and conspired with, aided and abetted, and engaged in “joint
action” with the paramilitaries in carrying out the murders. (Compl., ¶¶ 106-120).
Defendants DCI and DLTD filed a motion to dismiss the original complaint on July 20, 2009.
(Doc. #13). Upon careful consideration of the briefing on the motion to dismiss, the court concluded
that the motion (Doc. #13) had clear merit. However, Plaintiffs were afforded an opportunity to
amend their complaint pursuant to Federal Rule of Civil Procedure 15(a). (See Doc. #30 at 1). The
First Amended Complaint was filed on December 4, 2009, asserting claims for war crimes,
extrajudicial killings, and crimes against humanity under the ATS, as well as claims for extrajudicial
4

killings under the TVPA. (See Docs. #32-35). Defendants filed a motion to dismiss (Doc. #37) the
Amended Complaint on January 8, 2010, and briefing of that motion was completed on March 5,
2010. (See Docs. #38-42). The motion (Doc. #37) was granted in part and denied in part on April
30, 2010 – Plaintiffs’ Third Cause of Action for Crimes Against Humanity stated under the Alien
Tort Claims Act, 28 U.S.C. § 1350 was dismissed, and the First, Second, and Fourth Causes of
Action remained. (See generally Docs. #43, 44).
A Second Amended Complaint (Doc. #55) was filed on June 14, 2010, and the identities of
the Plaintiffs were revealed on June 17, 2010 (Doc. #56). On June 28, 2010 Defendants DCI and
DLTD filed a motion for partial dismissal (Doc. #62). In that motion, Defendants sought dismissal
of all Plaintiffs who were not suing as legal representatives of the decedents. (See Doc. #62 at 1-2).
The court entered a Memorandum Opinion (Doc. #112) and Order (Doc. #113) on January 6, 2011
dismissing the 357 Plaintiffs named in the Second Amended Complaint who explicitly stated that
they were not acting as legal representatives of the decedents’ estates and directing Plaintiffs to file
a Third Amended Complaint. But on February 3, 2011, the Eleventh Circuit entered an opinion in
Baloco et al. v. Drummond Company, Inc. et al. which held that individuals have standing under the
ATS and TVPA to bring wrongful death claims both: (1) on behalf of their deceased relatives and
(2) for individual money damages. 631 F.3d 1350 (11th Cir. 2011). After hearing oral argument on
a Motion to Reconsider (Doc. #129), the court held in abeyance the question of whether to reconsider
the dismissal of the 357 Plaintiffs, and invited Plaintiffs to “renew this motion if mandate issues on
the Eleventh Circuit’s decision in Baloco . . .” (Doc. #140). On September 2, 2011, Plaintiffs filed
a Motion for Leave to File Third Amended Complaint (Doc. #213) to “make the [Third Amended
Complaint] consistent with Baloco v. Drummond Co., 640 F.3d 1338 (11th Cir. May 20, 2011).”
5

That motion was opposed by Defendants but nevertheless granted by the court. (See Doc. #232).
The Third Amended Complaint (Doc. #233), the operative complaint in this action, was filed on
September 29, 2011.2
In one of the motions currently before the court, Defendant DLTD seeks the entry of
summary judgment in its favor for each of the claims brought against it in the Third Amended
Complaint:
C

As to the First Cause of Action for war crimes under the ATS, DLTD
argues:3 (1) war crimes require the intentional killing of innocent civilians;
(2) there is no evidence that DLTD aided and abetted war crimes; (3) the
evidence does not satisfy the requirements of conspiracy to commit war
crimes; and (4) claims for war crimes based on a ratification theory of
liability must be dismissed. (Doc. #396 at 22-45).

C

As to the Second Cause of Action for extrajudicial killings under the ATS,
DLTD argues: (1) state action is required for extrajudicial killings under the
ATS; (2) the evidence presents no genuine dispute of material fact as to the
question of state action; (3) Plaintiffs have no evidence to support their
secondary theories of liability for extrajudicial killings; and (4) claims for
extrajudicial killings based on a ratification theory of liability must be
dismissed. (Doc. #396 at 13-22; 38-45).

C

As to the Third Cause of Action for extrajudicial killings under the Torture
Victims Protection Act (“TVPA”), DLTD argues that the claim must be
dismissed as a matter of law based on Mohamad v. Palestinian Authority, 132
S. Ct. 1702 (2012). (Doc. #396 at 10).

C

As to all causes of action, DLTD argues that punitive damages are not
available. (Doc. #396 at 46-50).

2

The court denied without prejudice a Partial Motion to Dismiss the Third Amended Complaint (Doc. #237).
(See Doc. #275). The court also denied Plaintiffs’ Motion to File a Fourth Amended Complaint (Doc. #340). (See Doc.
#378) (“Plaintiffs’ failure to add Garry Drummond before now can not be remedied at this late stage.”)
3

DLTD contends that the First and Second Causes of Action must also be dismissed because the ATS does not
permit claims against corporations and because the ATS can not be applied extraterritorially. (Doc. #396 at 10-12).

6

Defendant DCI also seeks the entry of summary judgment in its favor for each of the claims
brought against it in the Third Amended Complaint. (See generally Doc. #400). In addition to
adopting and incorporating the arguments made by DLTD in its motion for summary judgment, DCI
separately moves for summary judgment on the additional ground that there is no evidence that DCI
is the alter ego of DLTD. (See Doc. #400 at 8).
The motions for summary judgment of DLTD and DCI must now be considered in light of
Kiobel.
III.

Analysis
Plaintiffs and Defendants are in sharp disagreement about Kiobel’s application here.

Plaintiffs argue that Kiobel’s presumption against extraterritoriality has “no impact on this case”
because that decision dealt with a “foreign cubed” case; here, they allege that “Plaintiffs’ claims
against U.S. Defendants involve substantial conduct in the U.S.” (Doc. #449 at 1). Defendants
counter that Kiobel applies to the case at hand – “the presumption against extraterritoriality applies
to claims under the ATS, and . . . nothing in the statute rebuts that presumption. . . . Under Kiobel,
the ATS can no longer be the basis for a lawsuit in which the alleged violations of the law of nations
occurred in a foreign country.” (Doc. #448 at 2-3) (internal citations omitted).
A.

Whether the Presumption Against Extraterritoriality is Displaced for the
Balcero Plaintiffs

From this court’s perspective, Kiobel requires a district court to engage in an analysis
borrowing aspects from both Plaintiffs’ and Defendants’ reading of the case. The door to ATS
lawsuits, which the Sosa court left “ajar, subject to vigilant doorkeeping” has now been closed.
Nevertheless, that door may be re-opened “where the claims touch and concern the territory of the

7

United States ÿ with sufficient force to displace the presumption” against extraterritoriality. Is mere
corporate presence in Colombia and the United States enough? The Supreme Court has answered
that question—clearly not. What then is “enough” such that the conduct in Colombia touches and
concerns the United States with sufficient force? Kiobel has not given courts a road map for
answering this question.
1.

Plaintiffs’ Arguments in Favor of Overcoming the Presumption

Plaintiffs encourage this court to look at specific actions that occurred in the United States
and from those acts, to make a finding that the presumption of extraterritoriality is displaced. They
argue that this case differs from Kiobel, which they characterize as a “foreign cubed” case, because
it involves United States Defendants who committed acts in the United States in furtherance of
human rights abuses in Colombia. (See Doc. #449 at 4). Specifically, Plaintiffs cite to the following
factors as grounds that the Balcero ATS claims are not foreclosed by the decision in Kiobel: (1) the
corporation being sued in Balcero is a United States defendant, not a foreign defendant, and
therefore there is little chance of “diplomatic strife;” the United States has the power to apply
international law under the ATS to its own citizens (Doc. #449 at 9-11); (2) the presumption against
extraterritoriality is displaced when illegal schemes are directed or furthered in the United States as
set forth in Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869 (2010) (requiring courts to
analyze “how much, and what kinds of, domestic contacts are sufficient to trigger the application of
the exception”); and (3) Defendants’ conduct in the United States was “central to implementing the

8

illegal scheme to fund the AUC’s commission of war crimes and extrajudicial killings.” (Doc. #449
at 16). As to the conduct touching and concerning the United States, Plaintiffs argue the following:4
4

In their brief concerning Kiobel, Plaintiffs note that they “have presented their evidence of Drummond’s U.S.
conduct, decisions, and agreements made in the U.S. in their opposition to Defendants’ motions for summary judgment
. . . [and] highlight particularly relevant evidence here for the purpose of assisting the court in determining the effect of
Kiobel on the present case.” (Doc. #449 at 16, n. 9). The “meat” of the facts as set forth in the summary judgment
briefing was more specific, including:
C

Jose Gelvez Albarracin (“Gelvez” or “El Canoso”) testified that sometime in 1996, Manuel Gutierrez
(the supervisor at the Drummond Prodeco mine) met with two members of the AUC, “Lucho” and “El
Profe,” for the purpose of discussing an agreement to have the AUC “station more people closer to
the [Prodeco] mining operations so as to expel the guerillas from the sector.” (Doc. #396, Exh. W at
33).
Gelvez was present for this meeting. (Id. at 31-33). Gelvez then testified that shortly after this
meeting, individuals from Prodeco met with individuals from DLTD’s security department (General
Pena, Colonel Rodriguez, and Jim Adkins) to “discuss with their people and get these monies” for the
AUC. (Id. at 53). Gelvez was present for this meeting. (Id. at 54).

C

John Jaime Esquivel Cuadrado (“El Tigre”) testified that “Drummond Company was very concerned
because in many occasions the guerilla had put down the railway line.” (Doc. #396, Exh. J at 29).
“Drummond was very concerned because they were having losses around the railroad lines. And also
was agreed that in case that Drummond did not want to cooperate with the AUC, that if the guerilla
would blow up again the train and the railroad lines then Drummond would then cooperate with the
AUC.” (Id. at 32-33). “Clean up means, yes, it means killing all of the guerillas or guerilla men that
are armed in the area and the civilians as well.” (Id. at 34). “We put down people, whether they were
militants or whether there was civilians of the guerillas.” (Id. at 53). “I had strict orders not to allow
for the guerillas to have any presence whatsoever in the lower areas [of Cesar Department].” (Id. at
51).

C

Alcides Mattos Tabares (“Samario”) testified that he joined the AUC in 1996 and acted at some point
thereafter on the Juan Andres Alvarez Front until the AUC was demobilized in 2006. (Doc. #396,
Exh. I at 10-11). Samario was present at a May 2001 meeting in which “other matters were going to
be dealt with for other types of operations such as the follow-up payment for security at Drummond
and at the railroad line.” (Id. at 53). “The meeting with the U.S. citizen and with Alfredo Araujo and
Jaime Blanco did not last very long. This is what I remember. This is what, when dawn they met, and
exactly what they discussed I would not know because I wasn’t right there next to them. But then
Tolemaida came and told us, all of us who were there, you know, for security, that there were good
things in our future for the front.” (Id. at 55). After he was told this, Samario noticed changes in the
front. “The war front had 70 men including the Urbans. And when I left jail in December, on
December 10, 2002 I found a front with now 250 armed men.” (Id. at 57-58). As an operative for the
AUC, Samario understood that he was operating for Drummond as far as “security for the railroad line.
And, you know, let me just say it was like a sort of commitment, you know, an agreement that there
was between the AUC and Drummond for – so that the guerillas, the FARC guerillas would not make
any attempts against their facilities. And then, you know, our understanding was that any subversives
or, you know, any such people that were operating near the Drummond facilities we were to kill them.”
(Id. at 59-60). “You know, we would just kill anyone who was said to be a guerilla around those
parts.” (Id. at 61). DLTD “would call us and report to us any strange ongoings or any strange people
that would be around the area.” (Id. at 64).

9

C

Plaintiffs assert that Drummond’s decision to provide material support to the AUC and
commissioning others to engage in war crimes and extrajudicial killings was made by DCI’s
CEO, Garry Drummond, in Alabama. (See Doc. #449 at 16). According to Plaintiffs, Garry
Drummond’s authorization made the conspiracy operative and the relevant decision-making
to provide material support to the AUC was made in the United States. (See Doc. #449 at
17).

C

As part of the illegal scheme, Jim Adkins would travel frequently to Alabama to “meet
directly with Garry Drummond to agree on everything that Adkins had to do.” (Doc. #449
at 17). According to Plaintiffs, Adkins went to Alabama and obtained Garry Drummond’s
agreement in 1996 to start paying the AUC; the plan was implemented by Adkins bringing
$10,000 in cash payments from Alabama to Colombia to evade the law and Drummond’s
accounting system; Adkins later developed schemes to hide the payments in inflated invoices
to food contractor Jaime Blanco. (See Doc. #449 at 18).

C

Drummond’s Alabama-based officers, including Garry Drummond and Mike Tracy, made
the decision to fund, and approved, payments to the Colombian military, with no controls on

C

Jairo de Jesus Charris Castro (“Charris”) testified regarding his operation as a security coordinator
inside the Drummond mine. (Doc. #407, Exh. 2 at 15). “When [Americans] were being transported
to the Descanso mine of the Drummond Company, I coordinated with the AUC, and specifically with
one of their commanders called El Tigre.” (Id. at 18). Charris testified that Drummond funneled
money to the AUC through Jaime Blanco Maya. “Jaime Blanco Maya would send fictitious invoices
for the amount, in the amount of 30 million pesos, where 25 million pesos were for El Tigre and the
remaining 5 million were for Jaime Blanco Maya.” (Id. at 30). Charris knew that orders were being
communicated from Garry Drummond because “Jim Adkins of the special services office always
assured me, confirmed that to me that it was a direct order from Garry Drummond because they were
going through a crisis, a collapse, due to the guerilla attacks to the locomotive, the engines, the cars
of the railroad.” (Id. at 25).

10

the use of the funds thus allowing the military to use the funds for any purpose, including
making contributions to the AUC. (See Doc. #449 at 19).
C

Drummond controls operations in Colombia from its headquarters in Alabama and that Garry
Drummond met regularly regarding security in Drummond’s Colombian operations. (See
Doc. #449 at 20).

C

Jim Adkins acted as Drummond’s agent when he implemented the plan for Drummond to
support the AUC’s war effort in the area of Drummond’s operations. (See Doc. #449 at 22).
2.

The Court’s Analysis of the Evidence

The problem with Plaintiffs’ attempts to use these statements to oppose Defendant’s Rule
56 motion is simply this: when the statements are brought into the sunshine, they can not withstand
scrutiny.5 Problems with admissibility begin with the deposition of Jaime Blanco Maya (“Blanco”).

5

As previously explained, the facts to which Plaintiffs cite in their Brief Concerning the Impact of Kiobel v.
Royal Dutch Petroleum Co. on this Case (Doc. #449) and Response to Defendants’ Supplemental Briefing Regarding
Kiobel v. Royal Dutch Petroleum Co. (Doc. #452) are taken from evidence submitted to the court in the course of
summary judgment briefing. Because this case is at the summary judgment stage, the court will consider the admissibility
of evidence under the guidance of Federal Rule of Civil Procedure 56 as suggested by the Plaintiffs in their briefing
relevant to the Kiobel decision. (See Doc. #449 at 16, n. 9).
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). The party asking for
summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying
those portions of the pleadings or filings that the moving party believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met its burden, Rule 56(a) requires the
nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Chapman, 229 F.3d at 1023. All reasonable doubts about the facts and all justifiable
inferences are resolved in favor of the nonmovant. Chapman, 229 F.3d at 1023; Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248; Chapman, 229 F.3d at 1023. If the evidence is merely colorable,
or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. The method used
by the party moving for summary judgment to discharge its initial burden depends on whether that party bears the burden
of proof on the issue at trial. See Fitzpatrick, 2 F.3d at 1115-17 (citing United States v. Four Parcels of Real Property,
941 F.2d 1428 (11th Cir. 1991) (en banc)). If the moving party bears the burden of proof at trial, then it can only meet
its initial burden on summary judgment by coming forward with positive evidence demonstrating the absence of a

11

Blanco was deposed by the parties in Colombia and testified that he operated as the intermediary
(along with Charris) between El Tigre and Jim Adkins of DLTD. (Doc. #396, Exh. N at 32-33).
“[Adkins] had come at El Tigre’s request to Mr. Garry Drummond, that Mr. Drummond had liked
the idea, but that we had to see – find a way to fly in the resources for the AUC because the law did
not allow them to get money out for outlaw groups, because they had some very strict accounting
systems that did not allow them to take the money out.” (Id. at 72). Blanco further testified that
Adkins and Blanco developed a scheme to use inflated invoices from Blanco, and he provided the
overage to El Tigre. (Id. at 73-75, 80-92). But Blanco refused to answer important follow-up
questions on cross examination, stating instead: “What I said was already made clear in my
statement. What I don’t – see, what I said is already there. It’s clear it was made in that statement
and if I already made it in that statement I don’t see it needs to be repeated.” (Doc. #396, Exh. N at
207-08).

genuine issue of material fact (i.e., facts that would entitle it to a directed verdict if not controverted at trial). Fitzpatrick,
2 F.3d at 1115. Once the moving party makes such a showing, the burden shifts to the nonmoving party to produce
significant, probative evidence demonstrating a genuine issue for trial.
If the moving party does not bear the burden of proof at trial, it can satisfy its initial burden on summary
judgment in either of two ways. First, the moving party may produce affirmative evidence negating a material fact, thus
demonstrating that the nonmoving party will be unable to prove its case at trial. Once the moving party satisfies its
burden using this method, the nonmoving party must respond with positive evidence sufficient to resist a motion for
directed verdict at trial. The second method by which the moving party who does not bear the burden of proof at trial
can satisfy its initial burden on summary judgment is to affirmatively show the absence of evidence in the record to
support a judgment for the nonmoving party on the issue in question. This method requires more than a simple statement
that the nonmoving party cannot meet its burden at trial but does not require evidence negating the nonmovant’s claim;
it simply requires the movant to point out to the district court that there is an absence of evidence to support the
nonmoving party’s case. Fitzpatrick, 2 F.3d at 1115-16. If the movant meets its initial burden by using this second
method, the nonmoving party may either point out to the court record evidence, overlooked or ignored by the movant,
sufficient to withstand a directed verdict, or the nonmoving party may come forward with additional evidence sufficient
to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. However, when responding,
the nonmovant can no longer rest on mere allegations, but must set forth evidence of specific facts. Lewis v. Casey, 518
U.S. 343, 358 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

12

The right to cross examination is a basic due process protection that is guaranteed by the
Fourteenth Amendment. See In re Oliver, 333 U.S. 257, 273 (1949); see also Al Najjar v. Reno, 97
F. Supp.2d 1329, 1355 (S.D. Fla. 2000). Courts have excluded such testimony where, as here, the
inability to cross examine a witness “created substantial danger of prejudice by depriving [the
defendant] of the ability to test the truth of the witness’ direct testimony.” United States v. Monaco,
702 F.2d 860, 871 (11th Cir. 1983) (internal citations omitted). Deprivation of cross examination
is particularly relevant in this case as Blanco is incarcerated in Colombia and will not be available
at trial. See Murder Conviction in Drummond union leader slaying in Colombia; investigation
ordered of Drummond’s U.S. - based president, THE BIRMINGHAM NEWS (Feb. 6, 1013) at
http://blog.al.com/wire/2013/02/murder_ conviction_in_drummond.html (Last accessed March 5,
2013) (stating that Blanco has been convicted in Colombia of murder and sentenced to nearly 38
years in prison). Therefore, the testimony of Blanco can not be considered on this issue for purposes
of the motion for summary judgment and/or the effect of Kiobel on the Balcero case. (See generally
Doc. #407 at 29-30) (failing to argue that the testimony of Blanco should be admissible on summary
judgment)).
Admissibility problems continue for Plaintiffs with respect to the declaration of Jose Gelvez
Albarracin (“Gelvez” or “El Canoso”). In his declaration, Gelvez testified: “[W]e discussed and
we all agreed that we would support the AUC with money for arms and supplies. We also agreed
that we would give the AUC a monthly payment to cover the salaries, food, and costs of the AUC
troops. We also agreed to buy the AUC some vehicles and supply them with fuel. There was no
objection to any of these agreements from anyone present.” (Doc. #407, Exh. 42, ¶ 16). DLTD
argues that the declaration testimony of Gelvez is inadmissible and cites Macuba v. Deboer, 193
13

F.3d 1316, 1323-24 (11th Cir. 1999) in support of that position. (See Doc. #407 at 13). Macuba
stands for the proposition that the admissibility of an out-of-court statement is predicated on whether
it can be reduced to admissible evidence at trial. Id. Here, pursuant to the letters rogatory process,
Gelvez gave trial testimony. Because the contested statement was not made during the deposition,
and because it is presented for the truth of the matter asserted, it will not be considered for purposes
of summary judgment. In fact, the entirety of Gelvez’s declaration will not be considered herein for
the truth of the matter asserted. See Macuba, 193 F.3d at 1323-24.
Portions of the Gelvez and Charris testimony are similarly inadmissible, at least in part on
hearsay grounds. When asked about purported payments made by Drummond to support the AUC,
Gelvez testified: “I know because Manuel Gutierrez told me that the monies had been approved so
that both Drummond Company and Prodeco would provide financing and support as far as the
income of the AUC was concerned for their presence in the area outside the Calenturitas mine.”
(Doc. #396, Exh. W at 60). Charris testified that Adkins told him that money was being funneled
to the AUC. (Doc. #407, Exh. 2 at 25). These statements, presented for the truth of the matter
asserted, cannot be reduced to admissible form for trial purposes in this case. See Macuba, 193 F.3d
at 1323-24. Therefore, they will not be considered herein.
Additional admissibility questions have arisen with testimony from Jose Peinado and Oscar
David Perez Bertel (“Yucca”), who have not testified and who have presented only declarations.
(See Doc. #424 at 15). Because there is no indication (and, indeed Plaintiffs have not argued) that
Peinado and Yucca will be available to testify at trial, their declarations are not admissible on
summary judgment. (See Doc. #407 at 31).

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Plaintiffs also cite to testimony concerning the murder of Drummond’s union leaders. (See
Doc. #407 at 31-32). This court has heretofore held that evidence concerning the union leader
murders is not relevant to this case. (See Doc. #30 at 11, n. 8 (“The murders at issue here are not
alleged to involve union leaders or members.”)). Such evidence continues to be irrelevant for
purposes of this motion as well.
Finally, and ironically, although Plaintiffs rely upon inadmissible evidence (i.e., evidence that
cannot be reduced to admissible evidence at trial), the Rule 56 record evidence that remains
substantially undercuts their own arguments. In a memo dated September 13, 1995, Jim Adkins
reports to Mike Tracy on “recent insurgent activity” and says that “Cordoba Battalion Commander
visited my office last week and made a presentation of the plan for the purpose of obtaining
Drummond financial support . . . [S]uch a program will bring with it egregious human rights
violations that preclude Drummond from ever participating . . . We are better advised to keep our
heads down and keep producing coal. It is not our fight but we are almost certain to be affected in
some way by it.” (Doc. #407, Exh. 4 at DR 000334). Later, in 1997, Adkins wrote a memo noting
that “[a]s the new military commanders at all levels were being named, rumors began to make the
rounds that they were not satisfied with the amount of support they were receiving from Drummond
Limited.” (Doc. #407, Exh. 13 at DR 005010-5011). The memo references large amounts of cash
that DLTD had been giving to the Colombian military – “when the money went into the military
fund the . . . military could do with it what it wanted.” (Id.; see also Doc. #396, Exh. K at 211-212).
Plaintiffs have presented evidence that DLTD was aware of reports issued by the Human Rights
Watch and by the United States government concerning the AUC and guerillas in Colombia; the

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State Department noted the AUC’s record of brutality, including murders of civilians, from as early
as 1996. (Doc. #407, Exhs. 31, 34, 35, 36).
So the admissible Rule 56 evidence, boiled down to its essence, is this: in 1996, there were
discussions in Columbia about stationing AUC forces closer to the Prodeco mine; AUC operatives
were instructed by local Colombian Drummond employees not to allow guerillas in the Cesar
Province where Drummond operated; after a meeting among the AUC and Drummond officials in
Columbia, the AUC presence along Drummond’s rail line increased; AUC operatives understood
that “cleaning up” meant killing guerillas and civilians; and Drummond corporate officers were
aware that human rights violations would follow the AUC. There is nothing left in this final analysis
to support Plaintiffs’ contention that DLTD made decisions in the United States to conspire with and
aid and abet the commission of war crimes in Colombia, no matter how one interprets the “touch and
concern” test mentioned in Kiobel. For this reason, the motions for summary judgment of
Drummond Ltd. and Drummond Company, Inc. (Docs. #396, 400), as they relate to claims made
under the ATS, are due to be granted.
3.

The Court’s Take on the Meaning of “Touch and Concern”

Even if this court were to find that Plaintiffs had presented sufficient Rule 56 evidence
establishing that certain decisions had been made in the United States to support the AUC in
Colombia, their theory on extraterritorial reach still does not hold water based on the most logical
and unstrained reading of Kiobel. In its final analysis, the Kiobel Court cited to Morrison v. National
Australia Bank Ltd., 130 S.Ct. 2869 (2010), when addressing the operation of “touch and concern”
in displacing the presumption against extraterritoriality. As Morrison succinctly stated, “the
presumption against extraterritorial application would be a craven watchdog indeed if it retreated to
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its kennel whenever some domestic activity is involved . . ..” 130 S. Ct. at 2883-84. The Court held
that the analysis depended “not upon the place where the deception originated,” but upon the focus
of the statute at issue (which in Morrison was the purchase and sale of securities). That is, where
a complaint alleges activity in both foreign and domestic spheres, an extraterritorial application of
a statute arises only if the event on which the statute focuses did not occur abroad. (See Doc. #448
at 4). Of course, the ATS focuses on the torts of extrajudicial killings and war crimes (violations of
the law of nations), and in the Balcero case, the tort at issue occurred abroad, in Colombia, and not
in the United States.6 See 28 U.S.C. § 1350.
For this separate and additional reason, the motions for summary judgment of Drummond
Ltd. and Drummond Company, Inc. (Docs. #396, 400), as they relate to claims made under the ATS,
are due to be granted.7

6

Plaintiffs argue that because Defendants can be secondarily liable under the ATS, the crux of Drummond’s
secondary liability lies in the United States. In making this argument, Plaintiffs attempt to shift both the focus and the
nature of the tort from what has been plainly alleged since the original complaint was filed in 2009. (See Doc. #449 at
15-22). Not only do Plaintiffs lack any admissible evidence connecting dots to the United States, but the torts alleged
here are for violations of the ATS. Plaintiffs can no more contend that approval in the United States of conduct
committed abroad provides a basis for jurisdiction than could the plaintiffs in Morrison contend that fraudulent acts in
the United States establish jurisdiction when the focus of the claim – purchases and sales of securities – occurred entirely
abroad. In fact, Morrison went so far as to state that the analysis depended “not upon the place where the deception
originated” and rejected the Solicitor General’s proposal to displace the presumption where an alleged violation
“involves significant conduct in the United States that is material to the fraud’s success.” Morrison, 130 S. Ct. at 2884.
7

On March 7, 2013,Plaintiffs filed a Motion to Compel Deposition Responses from Garry N. Drummond and
Production of Documents Related to Drummond’s April 2011 Press Release (Doc. #439). Mr. Drummond reportedly
failed to answer questions involving: the sale of a portion of DLTD to a Japanese company, which relates to DLTD’s
alleged dependence on DCI and the financial worth of DCI and DLTD; Drummond’s policy related to the AUC; and
drafts of an April 2011 press release. (See generally Doc. #439). Because both DLTD and DCI are entitled to summary
judgment on the grounds explained herein (which are separate and independent from those matters involved in the
parties’ discovery dispute), the questions raised during Mr. Drummond’s deposition are no longer relevant to the case.
Therefore, the Motion to Compel (Doc. #439) is DENIED.

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B.

Extrajudicial Killings under the TVPA (Count III) Against DLTD and DCI

The Third Cause of Action set out in the Third Amended Complaint (Doc. #233) is stated
under the Torture Victims Protection Act, 28 U.S.C. § 1350 for extrajudicial killings. (See Doc.
#233 at 200, “Third Cause of Action”). In asserting this claim, Plaintiffs allege that the AUC’s
extrajudicial killings of Plaintiffs’ decedents were committed under color of the authority of the
Colombian government, and that DLTD and DCI aided, abetted, or conspired with the AUC or was
the agent of the AUC. (See Doc. #233 at 200, “Third Cause of Action”).
On April 18, 2012, the Supreme Court issued an opinion in Mohamad v. Palestinian
Authority, 132 S.Ct. 1702 (2012). There, the Supreme Court clearly held that the TVPA “authorizes
liability solely against natural persons,” thus foreclosing TVPA actions against any nonnatural
persons including, as relevant here, against corporations. Mohamad, 132 S. Ct. at 1708. Without
question, therefore, DLTD’s Motion (Doc. #396) for Summary Judgment and DCI’s Motion (Doc.
#400) for Summary Judgment, as they relate to the Third Cause of Action, are due to be granted.
C.

The Appropriateness of a Stay

On May 8, 2013, Plaintiffs filed a Statement (Doc. #450) Concerning a Stay Pending the
Eleventh Circuit’s Resolution of the Interlocutory Appeal in In re Chiquita Brands Int’l, Inc. Alien
Tort Statute and Shareholder Derivative Action. The Statement (Doc. #450) does not request a stay,
but rather states that “if the court feels judicial economy is best served by staying this case, Plaintiffs
do not object to a short stay.” (Doc. #450 at 4). Defendants’ Response (Doc. #454) to Plaintiffs’
Statement Regarding a Stay, filed on May 22, 2013, adds that “Defendants do not request a stay and
would oppose any such request by the Plaintiffs if and when it were made.” (Doc. #454 at 1).

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In re Chiquita, Appellate Case No. 12-14898, was certified on issues concerning: (1) state
action elements under the ATS and the TVPA; (2) secondary liability for war crimes; and (3) the
sufficiency of Plaintiffs’ crimes against humanity claims. (See Doc. #450 at 2). Although the
Eleventh Circuit may be inclined (or even compelled) to address these issues in that case under the
guise of Kiobel, this court is confident that its decision as it relates to the specific facts presented in
Balcero is the correct one. This, combined with the fact that neither party has formally asked for a
stay, counsels against holding this ruling in abeyance.
IV.

Conclusion
For the foregoing reasons, the motions for summary judgment (Docs. #396, 400) filed by

Drummond Ltd. and Drummond Company, Inc. are due to be granted. There are no material issues
of fact and Defendants are entitled to judgment as a matter of law. A separate order will be entered
dismissing all of Plaintiffs’ claims asserted against Drummond Ltd. and Drummond Company, Inc.
DONE and ORDERED this

25th

day of July, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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