Penaloza et al v. Drummond Company, Inc. et al

Filing 92

MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/22/2019. (KAM)

FILED
2019 May-22 AM 09:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARISOL MELO PENALOZA, et al.,
Plaintiffs,
v.
DRUMMOND COMPANY, INC., et al.,
Defendants.

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Case No.: 2:13-CV-00393-RDP

MEMORANDUM OPINION
The 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.
I.

Background
This 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), 1 an amended
complaint (Doc. #20) was filed. On February 4, 2014, the case was stayed (Doc. #45) due to

1

Kiobel held that the presumption against extraterritoriality applies to claims under the Alien Tort Statute. 569
U.S. at 108. The parties were directed to brief the impact of Kiobel on the complaint (see Doc. #19), and in
response Plaintiffs filed an Amended Complaint. (Doc. #20).

1

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”) 2 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).
The 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 (“Collingsworth,” 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).
II.

Standard of Review
The 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

2

Because the Eleventh Circuit refers to this case as the Doe case, while this court has consistently referred to it as

2

complaint itself insufficiently alleges jurisdiction and follows the standard for a motion to
dismiss under Rule 12(b)(6).
Federal 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”).
In 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)).

the Balcero case, for ease of reference it will be stated here as the Doe/Balcero case.

3

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).
III.

Analysis
Plaintiffs have asserted a number of claims. The court addresses them below.
A.

Plaintiffs’ Claims Brought Pursuant to the Alien Tort Claims Act, 28 U.S.C.
§ 1350 (First and Second Causes of Action)

Plaintiffs 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.
The Alien Tort Statute 3 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

3

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, the Supreme Court referred to § 1350 as the Alien Tort
Statute. 542 U.S. 692 (2004); 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 generally refer to the Alien Tort Claims Act as the ATS.

4

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.
To 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”).
These 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
5

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.
Both 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. 4 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.
The 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

4

Baloco II emphasized that “the Kiobel issue does not arise in a vacuum. While there has been no discovery in the
instant case, there has been a very large amount of discovery over a period of more than ten years in preceding
related cases. … These cases … [are] a near mirror image of the instant case … Even with all of this discovery,
Plaintiffs have not found evidence of conduct actionable under the ATS because it focused in the United States.”
767 F.3d at 1239.

6

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, ¶ 153).

These 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
7

presumption against extraterritoriality as required by Kiobel. 5 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’ claims.”).
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).
But 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

5

The ATS focuses on the torts of extrajudicial killings and war crimes. See 28 U.S.C. § 1350. Plaintiffs argue that
facts relevant to the secondary liability theory of aiding and abetting, which constitute a violation of the “law of
nations” under the ATS, are sufficient to satisfy Kiobel. (Doc. #83 at 24-27). Plaintiffs cite to Doe I v. Nestle
USA, Inc. for the contention that “the focus of the ATS is not limited to the principle offense.” 906 F.3d 1120, 1125
(9th Cir. 2018). While this may be the law in the Ninth Circuit, the Eleventh Circuit has already applied its law to

8

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.
For all 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.
B.

Plaintiffs’ Claim Brought Pursuant to the Torture Victims Protection Act, 28
U.S.C. § 1350 (Third Cause of Action)

Plaintiffs’ 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. 6 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).
1.

Plausibility

In the Second Amended Complaint, Plaintiffs allege that Garry Drummond and Michael

the facts of this case. Penaloza, 662 Fed. Appx. at 677; Doe/Balcero, 782 F.3d at 599-600.
6

Jurisdiction over TVPA claims under § 1331 is not constrained by the presumption against extraterritoriality.
Doe/Balcero, 782 F.3d at 602.

9

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.
a.

Defendant the Estate of Garry Drummond

As to 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, ¶ 55).

•

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
10

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, ¶ 58).
•

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, ¶ 104).

•

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 that some portion of their ‘millions’
funded the AUC. (Doc. #78-1, ¶ 107).

•

Garry Drummond, the chief executive officer of Drummond, Defendant
Mike Tracy, and Augusto Jimenez, among others, participated in security
11

briefings that included discussions of the activities of the AUC and the
FARC as they related to Drummond’s area of operation in Colombia.
(Doc. #78-1, ¶ 119).
•

Adkins went to Alabama and obtained Garry Drummond’s agreement in
1996 to start paying El Tigre. This was done at first by Adkins bringing
$10,000 cash payments from Alabama to evade the law and Drummond’s
accounting system. … Blanco and Charris, who worked daily with
Drummond management, identified Garry Drummond, Jimenez, Adkins,
Tracy, Araujo, and several other Drummond officials as being directly
involved in the plan to provide the AUC with substantial resources. (Doc.
#78-1, ¶ 139).

•

Blanco confirmed ‘Adkins told me that Garry Drummond had authorized
these payments himself in order to support the AUC … and to minimize
these attacks by the guerillas.’ (Doc. #78-1, ¶ 140).

•

Under the orders of Adkins and Garry Drummond, Drummond’s private
security contractors coordinated security of Drummond’s rail line with the
AUC, and alerted the AUC if there were intruders along the rail line so
that the AUC could respond and determine whether they were guerillas
that required AUC engagement. (Doc. #78-1, ¶ 146).

Many of these allegations are simply conclusory: e.g., “virtually every decision” was
made by Garry Drummond in Alabama; Garry Drummond “approved plans to support and fund
the AUC;” Adkins briefed Garry Drummond “on all security issues, including the progress of the
AUC’s efforts on behalf of Drummond to drive out the guerillas;” Drummond “made frequent
trips to Colombia and was able to observe first hand the presence of the AUC around the
Drummond facilities;” “Drummond financed a significant expansion of the AUC’s Northern
Block;” and “participated in security briefings that included discussions of the activities of the
AUC and the FARC as they related to Drummond’s area of operation in Colombia.” (Doc.
#78-1, ¶¶ 3, 7, 8, 55, 58, 92, 119).

Such “naked assertions” contain no “further factual

enhancement” to cross the line from possibility to plausibility. Twombly, 550 U.S. at 557; see

12

also Sinaltrainal, 578 F.3d at 1266 (“in testing the sufficiency of the plaintiff’s allegations, we
do not credit such conclusory allegations as true”).
Having said that, other allegations purport to provide more details: e.g., “between
1995-2002,” Garry Drummond was briefed “every 4-6 weeks … on security issues, including
Drummond’s support for the AUC” (Doc. #78-1, ¶ 59); “Drummond began paying the AUC
through Jaime Blanco no later than early 1997” with “payments … first made by Adkins bringing
cash payments in increments of $10,000” (Doc. #78-1, ¶ 104); Adkins “brought Garry
Drummond the idea” (Id.); and “Blanco confirmed ‘Adkins told me that Garry Drummond had
authorized these payments himself in order to support the AUC … and minimize these attacks by
the guerillas.’” (Doc. #78-1, ¶ 140). Later in the Second Amended Complaint, Plaintiffs allege
that meetings occurred among paramilitaries in “November 1999 … to discuss a plan to get
major Drummond funding for the AUC’s Northern Bloc.”

(Doc. #78-1, ¶ 192).

These

paramilitaries believed that a staged attack on Drummond’s rail lines would compel “Drummond
executives in the U.S. to approve significant funding for the AUC.”

(Id.).

Although

Drummond argues that these allegations are inconsistent (Doc. #81 at 6-7), it is plausible that
both conclusions are true – that Drummond began making “small” payments in 1997, and later
was tricked into making more “significant” payments to the AUC.
Given the existence of non-conclusory pled facts that are assumed to be true, the court
finds that these particular allegations against Garry Drummond are plausible for purposes of the
motion to dismiss.
b.

Defendant Michael Tracy

As to Michael Tracy, in the Second Amended Complaint, Plaintiffs allege:
13

•

Tracy was one of Garry Drummond’s main corporate lieutenants. (Doc.
#78-1, ¶ 3).

•

Defendant Mike Tracy was an executive of DCI or DLTD, and at various
times a board member of DUSA. He became the CEO of DCI following
Garry Drummond’s death on July 13, 2016. Defendant Tracy oversaw the
start of operations for Drummond’s mine in Colombia. Defendant Tracy
was in charge of all aspects of the Drummond mining operation in
Colombia and reported directly to Garry Drummond. Defendant Tracy
was briefed by Adkins about Drummond contractors who were paying the
AUC, the paramilitary presence throughout all of Drummond’s area of
interest, Adkins’ view that the paramilitary presence was not “negative,”
and requests made to Drummond to support the nascent paramilitary
groups, among other matters involving the paramilitaries. Tracy approved
and ratified Drummond contractors’ payments to the AUC. Tracy also
approved payments to the Colombian military after he was notified that the
military was controlling and supporting paramilitary groups in the area.
Additionally, as one of Adkins’ supervisors, Tracy knew or should have
known about Adkins’ central role in Drummond’s payment schemes to the
AUC on behalf of Drummond. Tracy socialized with known paramilitaries
when he was in Colombia. (Doc. #78-1, ¶ 60).

•

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 that some portion of their ‘millions’
funded the AUC. (Doc. #78-1, ¶ 107).

•

Defendant Mike Tracy approved and ratified Drummond’s decision to
engage the AUC. Adkins and others have testified that informing Tracy
meant informing Garry Drummond. As Adkins was reporting directly to
Garry Drummond and Mike Tracy, both must have approved the decision
to engage the AUC. (Doc. #78-1, ¶ 182).

•

AUC members were given free access to the Drummond port and were
waived through the security gates by Drummond Security forces.
Defendant Tracy was often there and regularly observed AUC forces at the
Drummond facilities. Defendant Tracy also attended a party with AUC
commanders. According to Adkins and others, Tracy fully advised Garry
Drummond on all aspects of Drummond’s Colombia operations. (Doc.
#78-1, ¶ 188).
14

Again, many of these allegations are conclusory: e.g., Tracy was responsible for “all
aspects of the Drummond mining operation in Colombia;” Tracy “must have approved the
decision;” and Tracy knew Drummond “provided the military with millions of dollars.” (Doc.
#78-1, ¶¶ 60, 107, 182, 188).

These “naked assertions” contain no “further factual

enhancement” to cross the line from possibility to plausibility. Iqbal, 550 U.S. at 557; see also
Sinaltrainal, 578 F.3d at 1266 (“in testing the sufficiency of the plaintiff’s allegations, we do not
credit such conclusory allegations as true”).
But, as is the case with the assertions made about Garry Drummond, other allegations
contain more detail. Plaintiffs allege that Tracy was told by Adkins that Drummond contractors
were paying the AUC, Tracy approved contractors’ payments to the AUC, and Tracy regularly
observed the paramilitaries throughout Drummond’s area of interest. (Doc. #78-1, ¶¶ 60, 188).
These alleged facts, while admittedly limited, eke these claims across the line (albeit barely) to
plausibility. See Chiquita, 190 F. Supp.3d at 1119. The court finds that the allegations against
Michael Tracy are sufficient to meet the plausibility standard.
2.

Secondary Liability

By its terms, the TVPA permits claims based on secondary liability. Doe/Balcero, 782
F.3d at 603. Accepting that the claims against the individual defendants are plausible, they
nevertheless cannot stand unless there is some basis for individual liability. 7 Secondary liability
may attach on any one of the following legal theories: superior liability, aiding and abetting,
conspiracy, or agency. Id. at 607 (explaining that the TVPA contemplates liability against those

7

There is no allegation that the individual defendants directly or personally engaged in the atrocities alleged in the
Second Amended Complaint.

15

who did not personally execute the torture or extrajudicial killing). Each ground for secondary
liability is contested in the motion to dismiss (Doc. #81), and each is considered below.
a.

Command/Superior Responsibility 8

Three indispensable elements are required to support a claim for liability under the
command responsibility doctrine: (1) the existence of a superior-subordinate relationship
between the commander and the perpetrator of the crime; (2) that the commander knew or should
have known, owing to the circumstances at the time, that his subordinates had committed, were
committing, or planned to commit acts violative of the law of war; and (3) that the commander
failed to prevent the commission of the crimes, or failed to punish the subordinates after the
commission of the crimes. Doe/Balcero, 782 F.3d at 609 (citing Ford ex. Rel. Estate of Ford,
289 F.3d 1283, 1288 (11th Cir. 2002)).
To establish the first element, Plaintiffs must allege facts plausibly suggesting that the
defendants had “effective control” over the AUC. Ford, 289 F.3d at 1290. That is, the doctrine
is available if the requisite degree of responsibility, authority, or control is present to support
liability. Id. at 1291 (majority opinion) (“proof is required that the superior has effective control
over the persons committing the violations of international humanitarian law in question, that is,
has the material ability to prevent the crimes and punish the perpetrators thereof.”) (internal
quotations omitted).
Here, Plaintiffs have not alleged that Tracy or Garry Drummond had any direct control
over any AUC members who might have killed Plaintiffs’ decedents as required by the command

8
The Eleventh Circuit uses the phrase “command responsibility doctrine” when discussing this theory.
Doe/Balcero, 782 F.3d at 609-11.

16

responsibility doctrine. Id. at 1288 (requiring a direct “relationship between the commander and
the perpetrator of the crime”). Rather, Plaintiffs attempt to apply this theory is “once removed,”
in that they assert that Adkins, Araujo, Jimenez, and Blanco had direct control over the AUC.
Because those individuals were subordinates of Tracy and Garry Drummond, the theory goes,
Tracy and Drummond can be held liable for the acts of Adkins, Araujo, 9 Jimenez, and Blanco. 10
(Doc. #78-1 at ¶ 65; Doc. #82 at 13). The court disagrees. This theory is not supported by case
law and therefore cannot be the theory of liability upon which Plaintiffs can advance their claims.
It is simply too attenuated to support liability.

Doe/Balcero, 782 F.3d at 610 n. 47 (“[T]here

are additional hurdles that could prove prohibitive for future plaintiffs proceeding on such a
theory … [I]f the secondary liability of a superior must rest on another secondary theory of
liability, the application of that doctrine may be too attenuated or the act too remote to support
liability.”).

For this reason, Plaintiffs claims for TVPA liability using the command

responsibility of secondary liability are not sustainable.
b.

Aiding and Abetting

In Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005), the Eleventh Circuit
articulated the basis for finding aiding and abetting liability. See Doe/Balcero, 782 F.3d at 608.
Indirect liability for aiding and abetting requires plaintiffs to prove “active participation” by a
preponderance of the evidence. Cabello, 402 F.3d at 1158. Liability for “knowing substantial

9

Plaintiffs argue that Adkins and Araujo were Tracy’s subordinates. (Doc. #82 at 16-18). Tracy had “material
ability to prevent or punish criminal conduct” by Adkins and Araujo, who purportedly “deal[t] with the AUC on
behalf of Drummond, and any willful blindness on Tracy’s part is no defense.” (Id. at 19).

10

Plaintiffs argue that Jimenez, Adkins, Araujo, and Blanco were Garry Drummond’s subordinates. (Doc. #82 at
21-22). Garry Drummond “knew or should have known” of those individuals’ alleged role in committing war
crimes, and failed to prevent or punish those individuals for their roles in committing war crimes. (Id. at 22-25).

17

assistance” is supported if the wrongful act at the center of the claim is, in fact, committed, and
the defendant gave knowing substantial assistance to the persons who committed the wrongful
act. Doe/Balcero, 782 F.3d at 608 (citing Halberstam v. Welch, 705 F.2d 472, 478 (D.C. Cir.
1983) (aiding and abetting liability “focuses on whether a defendant knowingly gave ‘substantial
assistance’ to someone who performed wrongful conduct.”)).

To overcome the motion to

dismiss, Plaintiffs must plead both mens rea (knowledge) and actus reus (substantial assistance).
See Cabello, 402 F.3d at 1159 (“[T]he statements attributed to [the defendant] reflect his
knowledge that he was assisting in wrongful activity.”); id. at 1158-59 (finding support for
knowledge and substantial assistance because the defendant served as the primary perpetrator’s
bodyguard and was present when the perpetrator selected the files of the victims). Mens rea
allegations “must contain non-conclusory factual allegations from which it may be reasonably
inferred that the individual defendants acted with knowledge that their participation in
[Drummond’s] support of the AUC would facilitate the commission of human rights abuses by
the AUC in the [coal and rail] regions of Colombia where Plaintiffs’ decedents resided. In re
Chiquita, 190 F.Supp.3d at 1117. The actus reus element requires sufficient acts of “substantial
assistance” to promote the alleged abuses.

Id. at 1119.

Plaintiffs contend that there are

sufficient factual allegations to proceed on their claims against Garry Drummond and Michael
Tracy. The court addresses the pertinent allegations against each Defendant, in turn.
i. Garry Drummond
Here, while many of the allegations against Garry Drummond are conclusory, others
support a reasonable inference that he approved, and continued to approve, Drummond’s support
of the AUC. This support allegedly allowed the AUC “to focus on defeating the FARC and
18

eliminating its supporters and sympathizers from the area of Drummond’s railroad line going
through Cesar and Magdalena Provinces.” (Doc. #78-1, ¶¶ 93, 140, 146). Garry Drummond
also allegedly “met with Adkins” about “making payments to the AUC through Blanco” and was
briefed “every 4-6 weeks” regarding “Drummond’s support for the AUC.” (Id. at ¶ 59, 104).
Garry Drummond allegedly agreed to start paying El Tigre “by Adkins bringing $10,000 cash
payments from Alabama to evade the law and Drummond’s accounting system.” (Id. at ¶ 139).
Allegations further support the inference that Garry Drummond knew that the AUC operated as a
terrorist group, capable of using extreme violence and brutal means to defeat the FARC. (Id. at
¶¶ 70, 81).

Garry Drummond was allegedly briefed “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.” (Id. at ¶ 58).
These allegations sufficiently state a claim against Garry Drummond for aiding and
abetting the extrajudicial killings alleged in this case. See In re Chiquita, 190 F.Supp.3d at 1118
(holding that it was a reasonable inference to infer that individual defendants obtained a direct
benefit from the commission of violations of international law by the AUC, bolstering the
allegation that defendants acted with purpose and knowledge); id. at 1119 (holding that decision
making caused substantial amounts of money and material support to be supplied to the AUC).
ii. Michael Tracy
As to Michael Tracy, while the court has determined that Plaintiffs’ allegations about his
alleged violations of the TVPA eked into plausibility, those same allegations cannot support a
theory of aiding and abetting liability.

The Second Amended Complaint contains only

conclusory allegations that Tracy “approved and ratified Drummond’s decision to engage the
19

AUC.” (Doc. #78-1, ¶ 182). There are no allegations that Tracy was involved in any meeting
approving payments to the AUC or to the AUC through Drummond’s contractors. Instead,
Plaintiffs state in conclusory fashion that Tracy “knew or should have known” about payment
schemes to the AUC on behalf of Drummond and that Tracy “must have approved the decision to
support the AUC.” (Id. at ¶ 60, 182). These bare allegations of knowledge and approval are
insufficient, under Iqbal, to plausibly establish the requisite mens rea element or actus reus
element of aiding and abetting liability.

In re Chiquita, 190 F. Supp.3d at 1119.

Thus,

Plaintiffs have not stated a cause of action against Michael Tracy for TVPA liability under an
aiding and abetting theory.
c.

Conspiracy

To prove an individual defendant directly liable by means of conspiracy, Plaintiffs must
allege and prove (1) two or more persons agreed to commit a wrongful act (2) the defendant
joined the conspiracy knowing of at least one of the goals of the conspiracy and with the intent to
help accomplish it, and (3) one or more of the violations was committed by someone who was a
member of the conspiracy and acted in furtherance of the conspiracy. In re Chiquita, 190
F.Supp.3d at 1119-20 (citing Cabello, 402 F.3d 1148). “[P]arallel conduct does not suggest
conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply
facts adequate to show illegality.” Twombly, 550 U.S. at 557.
For the same reasons analysed in the discussion of the in the aiding and abetting analysis
above, the allegations of agreement and intent to accomplish the goal of the conspiracy are
sufficiently alleged as to Garry Drummond, but not as to Michael Tracy. The court will not
recount that analysis.
20

d.

Agency/Ratification

To prove agency, Plaintiffs must show that the paramilitaries acted on Defendants’ behalf
and under Defendants’ control, and that the murders alleged in the operative complaint were
within the scope of the relationship. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 787
(11th Cir. 2005). The mere fact that Drummond is alleged to have paid the AUC, and allegedly
shared the same goals as the AUC, “falls short” of plausibly alleging that Drummond “controlled
the military campaign of the AUC.” In re Chiquita, 792 F.Supp.2d 1301, 1352-53 (S. D. Fla.
2011).
Agency arises when “one person (a ‘principal’) manifests assent to another person (an
‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control,
and the agent manifests assent or otherwise consents to so act.” Restatement (Third) of Agency
§ 1.01. A principal ratifies the acts of his agent when the principal: (1) had actual knowledge of
the wrongful conduct; (2) knew or should have known that the conduct constituted a tort; and (3)
armed with that knowledge, failed to take adequate steps to remedy the situation. Restatement
(Second) of Agency § 94.
For the reasons discussed in the aiding and abetting analysis above, the allegations of
assent and ratification are sufficiently alleged as to Garry Drummond, but not as to Michael
Tracy. Because there is no secondary theory of liability under which Michael Tracy can be held
liable for violations of the TVPA, the cause of action against Tracy is due to be dismissed.
However, the cause of action against Garry Drummond may proceed if there are sufficient
allegations of state action.
21

3.

State Action

The TVPA includes an express requirement that the tortfeasor acted “under actual or
apparent authority, or under color of law, of [a] foreign nation.” 28 U.S.C. § 1350 Note § 2(a).
Defendants argue that the operative complaint fails to sufficiently allege that the AUC acted
under color of law or as a state actor in killing Plaintiffs’ decedents. (Doc. #81 at 22-29).
In Doe/Balcero, this court recognized that for state action to exist, there must be
“allegations of a symbiotic relationship that involves the torture or killing alleged in the
complaint.” Sinaltrainal, 578 F.3d at 1266; see Rayburn ex rel. Rayburn, 241 F.3d at 1348 (“To
charge a private party with state action under this standard, the governmental body and private
party must be intertwined in a symbiotic relationship … The Supreme Court has indicated that
the symbiotic relationship must involve the specific conduct of which the plaintiff complains.”).
In that case, factual allegations of a symbiotic relationship survived a motion to dismiss.
(Doe/Balcero, Doc. #43 at 9-11). And, the symbiotic relationship involved “the torture or
killing alleged in the complaint.” Romero v. Drummond Co., 552 F.3d 1303, 1317 (11th Cir.
2008).
As in Doe/Balcero, Plaintiffs here must allege that the AUC members who committed the
alleged acts were in an “integral” and “indispensable” relationship with the Colombian
government.

(Doe/Balcero, 2:09-cv-1041-RDP, Doc. #43 at 9-11).

By comparison, the

allegations in the operative complaint are much the same as they were in Doe/Balcero –
Colombian political leaders, including former President Uribe, were involved in creating the
paramilitary groups (Doc. #78-1, ¶¶ 161, 244), the Colombian government created the Convivir

22

groups, 11 which eventually morphed into the AUC (id. at ¶ 74), payments to the Convivirs were
passed to the paramilitaries and used for arms and supplies, Colombian military officers met with
the leaders of the Convivirs, who were or became paramilitary commanders (id. at ¶¶ 74, 94,
246), Human Rights Watch reported close ties between the military and paramilitaries (id. at ¶
75), Colombian military provided paramilitaries with weapons, intelligence and supplies,
paramilitaries conducted missions at the request of the military (id. at ¶¶ 9, 94), and the U.S.
State Department designated the AUC as a terrorist group and acknowledged collaboration
between the AUC and the military (id. at ¶¶ 77, 81). As in Doe/Balcero, these allegations assert
the joint nature of the Colombian government with the paramilitaries.

The Colombian

government, according to the operative complaint, not only tolerates the paramilitaries, but also
encourages, supports, and relies on their existence. There is more than a “formulaic recitation”
that the paramilitary forces were in a symbiotic relationship with the Colombian government.
See Sinaltrainal, 578 F.3d at 1266.
Nevertheless, Plaintiffs’ claims cannot survive the motion to dismiss unless there are
sufficient allegations that the symbiotic relationship involves “the torture or killing alleged in the
complaint.” Romero, 552 F.3d at 1317. The Eleventh Circuit has approved a district court
exercising this standard by inquiring whether “the symbiotic relationship between the
paramilitaries and the Colombian military had anything to do with the conduct at issue here …,”
i.e. the murders along Drummond’s rail line. Id. (“The relationship must involve the subject of
the complaint” and “a plaintiff may prove that relationship … by presenting evidence of the

11
Convivirs were composed of civilians who received permission from the government for a license to provide their
own security in areas of high risk or in the public interest. Convivirs were permitted to use arms that were otherwise
restricted to military use. In re Chiquita, 190 F.Supp.3d at 1108, n. 12.

23

active participation of a single official.”). In an attempt to meet this standard, Plaintiffs advance
the following allegations:
•

Adkins reported to Tracy that the Cordoba Battalion Commander of the
Colombian military visited him to request funds from Drummond to
support the formation of a paramilitary group under the Colombian
government’s Convivir program to combat the guerillas. The Colombian
military helped launch the AUC, which it expected to be an effective
guerilla warfare arm of the military. (Doc. #78-1, ¶ 87).

•

Araujo made the plan with Jorge 40. He then used his position in the
company to get Jimenez and others to agree to the plan to make substantial
payments to the AUC. Araujo, on behalf of Drummond, shared with
AUC the goal of eradicating the FARC and other leftist guerillas and
prevailing in the ongoing civil conflict. (Doc. #78-1, ¶100).

•

Drummond’s payments to the AUC in cash and through front companies
are direct evidence of Drummond’s knowledge that it was paying for
illegal activity. Drummond also, according to the Popa Battalion’s
commander Colonel Mejia, began channeling money to Colonel Mejia to
distribute to the AUC as a way of hiding and legitimizing payments.
(Doc. #78-1, ¶ 121).

•

Drummond started making payments to the Colombian military shortly
after Adkins advised Defendant Tracy in a September 13, 1995 memo that
the Cordoba Battalion Commander visited him and directly requested
funds from Drummond to support the paramilitary groups that ultimately
became the AUC. (Doc. #78-1, ¶ 189).

•

Drummond intended that, with its funds, the AUC would expand its war
effort against the FARC and focus the AUC’s military campaign in Cesar
in specific areas in or around the Perija Mountains and near or along the
Drummond rail line where the FARC had a foothold. (Doc. #78-1, ¶
190).

•

The area of Drummond’s coal mine was protected by a detachment of
Colombian military that established a base on Drummond’s property.
Approximately 300 troops from La Popa Battalion, a military unit based in
Valledupar in the province of Cesar, were permanently assigned to
Drummond to guard its facilities from any attacks by the FARC. In
addition, Drummond used a private security firm, Viginorte, which was a
front group for the AUC but did provide security staff for Drummond’s
24

management personnel and to control access to its facilities. (Doc. #78-1,
¶ 191).
•

In November 1999, Alfredo Araujo, on behalf of Drummond, met with
Jorge 40 and other AUC members, including El Tigre, “Guerrero,”
“Kevin,” “Cortico,” “Pelo de Puya,” “El Enano,” “Pirulo,” and “Cachaco,”
to discuss a plan to get major Drummond funding for the AUC’s Northern
Block. Araujo explained to Jorge 40 that there had been a recent FARC
attack on the Drummond rail line, but that for the Drummond executives
in the U.S. to approve significant funding for the AUC, there had to be
another attack, and the AUC had to demonstrate that it could respond
effectively with a swift and violent counterattack on the FARC. Araujo
directed that the AUC should stage a new attack on the rail line, and make
it look like the FARC’s 41st Front had attacked the rail line again. This,
Araujo assured Jorge 40, would cause the Drummond executives in
Alabama to agree to make payments to enhance the AUC’s presence in the
areas in or around the Perija Mountains and near or along the Drummond
rail line. (Doc. #78-1, ¶ 192).

•

Adkins reported to Defendant Mike Tracy that he had been approached by
a military commander from the Cordoba Battalion to have Drummond join
other companies in supporting the formation of a paramilitary unit to
pursue guerilla units in the area of Drummond’s operations. (Doc. #78-1,
¶ 245).

•

The specific AUC units that ultimately formed within the Northern Block
and the Juan Andres Alvarez Front were thus initially formed, according to
Adkins, through the direct participation of a Colombian military officer,
who openly sought the assistance of Drummond to support this special
force of the Colombian military. According to several AUC commanders,
including El Tigre and Samario, the Colombia military had a direct role in
providing funds to the AUC to support AUC operations around the
Drummond facility. (Doc. #78-1, ¶ 246).

These allegations present some challenges for Plaintiffs that were not clear in
Doe/Balcero. Plaintiffs seem to conflate Convivir groups, paramilitaries, and the AUC. The
AUC did not exist until 1996, and the Cordova Battalion Commander alleged solicitation of
funds from Adkins in 1995 was only for a Convivir group which was alleged to be a “front” for
“the AUC and its predecessor organizations.” (Doc. #78-1, ¶¶ 67, 74). This muddies the
25

waters from a pleading standpoint because Plaintiffs seek relief for alleged extrajudicial killings
by the AUC (and not by Convivir or other paramilitary groups). See Rayburn, 241 F.3d at 1348.
Further, during his Letters Rogatory testimony, Colonel Mejia denied that Drummond supplied
funds to the AUC and denied that the military, under his command, collaborated with the AUC.
(Doc. #81 at 24-25, n. 7). But Plaintiffs counter with allegations that Drummond arranged to
pay off Colonel Mejia for disavowing Drummond’s involvement with the AUC. (Doc. #82 at
28, n. 11).
It is not for the court, on a motion to dismiss, to decide the organizational structure of the
Convivir/paramilitary/AUC groups, nor to decide whether Colonel Mejia may have been paid off
for his Letters Rogatory testimony. (Doc. #82 at 28, n. 11). Therefore, the court finds that
Plaintiffs have sufficiently pled state action for purposes of the motion to dismiss. The Third
Cause of Action as to the Estate of Garry Drummond survives the motion.
C.

Plaintiffs’ Wrongful Death Claim Brought Pursuant to Colombian Law
(Fourth Cause of Action)

The Second Amended Complaint alleges this court has diversity jurisdiction, pursuant to
28 U.S.C. § 1332(a)(2), over the Colombian wrongful death claims brought in the Fourth Cause
of Action. (Doc. #78-1 at ¶¶ 13-14). Plaintiffs allege that Defendants “committed acts that
constitute wrongful death under the laws of Colombia and the laws of the United States, and that
caused the deaths of Plaintiffs’ decedents.” (Id. at ¶ 269). The Drummond Defendants argue
that the Colombian wrongful death claims are time barred pursuant to the two-year statute of
limitations covering unspecified torts under Alabama law. (Doc. #80 at 10-17).
A federal court sitting in diversity applies the choice of laws of the state in which it sits.

26

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). In Alabama, the traditional choice
of law rule of lex loci delicti governs tort causes of action and requires that the substantive law of
the place where the tort occurred be employed, while procedural law of the forum state is
applied. Alabama Great So. R.R. v. Carroll, 11 So. 803 (1892). Accordingly, this court must
apply the procedural rules of Alabama, but the substantive law of Colombia. The question
becomes how Alabama regards Colombia’s statute of limitations, i.e. whether that limitation is
substantive or procedural. See Murphy v. McGriff Transp., Inc., 2012 WL 3542296 at *1 (N.D.
Ala. Aug. 15, 2012) (Proctor, J.).
It is generally recognized in Alabama that statutes of limitation are procedural. See
Murphy, 2012 WL 3542296 at *1; see also Battles v. Pierson Chevrolet, Inc., 274 So.2d 281, 285
(Ala. 1973); Nichols v. Healthsouth Corp., 2018 WL 1443919 at *4 n.4 (Ala. 2018) (“This court
has also held that, in most instances, statutes of limitation are procedural matters.”). However,
an Alabama court will apply the statute of limitations of a foreign state where the limitation is so
inextricably bound up in the statute creating the right that it is deemed a portion of the right itself.
Murphy, 2012 WL 3542296 at *1 (quoting Department of Revenue v. Lindsey, 343 So.2d 535,
537 (Ala. Civ. App. 1978)).
Applying this rule here, the two-year statute of limitations of Alabama applies unless
Colombia’s ten-year statute of limitations is “built in” to the statute creating the right or part of
Colombia’s “public policy.” Murphy, 2012 WL 3542296 at *2 (citing Bodnar, 392 So.2d 1161;
Sanders v. Liberty Nat’l Life Ins. Co., 443 So.2d 909 (Ala. 1983)). (Doc. #83 at 6).
Article 2341 of the Colombian Civil Code permits civil claims for wrongful death. That
Article does not contain any statute of limitations. (Doc. #33-1, Decl. of Alejandro Linares
27

Cantillo at ¶¶ 5-6). 12 Instead, the statute of limitations applicable to wrongful death claims is
contained in Article 2536 of the same Civil Code. (Doc. #83 at 6-7). This is the same statute
of limitations that governs any ordinary civil claim under Colombian law. (Doc. #33-1, Decl. of
Alejandro Linares Cantillo at ¶ 7).
The fact that Article 2536 does not specifically address wrongful death claims forecloses
a finding under Alabama law that the 10-year statute of limitations is substantive. See Murphy,
2012 WL 3542296 at *1-2 (one-year statute of limitations applicable to Tennessee state law
claims for wrongful death did not meet the “built in” exception because it was not part of the
wrongful death statute).

Foreign statutes of limitation are procedural rules that will not

supersede the applicable Alabama limitations period unless the foreign statute that creates the
right under which the claim is brought also establishes the time limits for bringing suit.
Bachand v. Barden Mississippi Gaming, LLC, No. CV 08-B-040-NE, 2009 WL 10688961 at *4
(N.D. Ala. Mar. 30, 2009).

That is, Alabama law distinguishes between true statutes of

limitations, which it regards as procedural, and statutes of creation. Randolph v. Tennessee
Valley Auth., 792 F.Supp. 1221, 1222 (N.D. Ala. 1992). Statutes of creation are those which
both establish a right and include a “built in” limitations period. Id. What matters for the “built
in” exception is whether the statute of limitations is contained in the statute which creates the
right to bring a wrongful death claim in Colombia. Here, upon review it is clear that the
limitations period simply is not “inextricably bound” to the substantive right itself. Bachand,
2009 WL 10688961 at *5; see also Etheredge v. Genie Indust., Inc., 632 So.2d 1324, 1326-27

12

In presenting their arguments about whether an exception to the procedural rule applies, Plaintiffs and Defendants
introduce competing declarations from Colombian lawyers. (See generally Docs. #80, 83, 85, 91). These
declarations are considered as an explanation of the law (in the line of briefs), and not as evidence.

28

(Ala. 1994) (North Carolina’s six year statute of limitations which was located in a separate part
of North Carolina’s civil code was procedural, not substantive, and therefore Alabama’s two year
statute of limitations applied); Gillies v. Areonaves De Mexico S.A., 468 F.2d 281, 286 (5th Cir.
1972) (“[T]he lapsing provision of the Mexican Federal Labor Law is substantive and should be
applied under the exception to the general rule. The employee’s right is created by the Law, the
period of limitations is contained in the law, and the lapsing period is specifically made
applicable to employees in Gillies’ situation.”).
Nor is Colombia’s ten-year statute of limitations a “matter of public policy” of Colombia.
(Doc. #83 at 9-12). The purpose of any statute of limitations is to promote “the necessity of
certainty, clarity, and security in legal relations that necessarily contribute to social order and
peace, since a right that is not exercised timely undermines the public order.” (Sánchez-León
Decl. ¶¶ 9-10). The Supreme Court of Colombia has found that “statutes of limitations are a
necessary institution for social order and for legal security, introduced to attend to the public
good.”

(Id.).

This general purpose does not satisfy the “public policy” exception to the

procedural rule. “If Alabama courts were to regard the general statutes of limitations of sister
states as matters of public policy such that the courts of Alabama should treat those general
limitations periods as substantive rather than procedural law, then the exception would quickly
swallow the general rule that most statutes of limitation are deemed procedural rather than
substantive.”

Reece v. Intuitive Surgical Inc., 63 F.Supp.3d 1337, 1345 (N.D. Ala. 2014)

(citations omitted); see also Randolph, 792 F.Supp. at 122313 (“The pertinent Tennessee statute

13
“[I]t now seems that the concept of a ‘built in’ limitation, which acts something like a rope which, when its end if
reached, jerks the life out of a cause of action, and a ‘public policy’ against allowing a plaintiff to sue on a particular
cause after a certain period of time has elapsed, have somehow melded and merged as a matter of the Alabama law

29

is no more and no less than a general limitations statute applicable to all actions arising out of
‘injury to the person.’”).
The Second Amended Complaint alleges that various wrongful deaths occurred between
six and sixteen years before this suit was filed. (Doc. #78-1, ¶¶ 7, 10, 22-54, 88-121). The
Alabama two-year statute of limitations applies to those claims unless some other exception
applies. Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1552 n. 13 (11th Cir. 1990).
1.

Whether Wrongful Death Claims Premised on “Crimes Against
Humanity” are Subject to Any Statute of Limitations

Plaintiffs attempt another route to have their wrongful death claims deemed timely. They
argue that no statute of limitation applies to “crimes against humanity.” (Doc. #83 at 11-12). In
support of this contention, Plaintiffs present the declaration of Dr. Jaime Alberto Arrubla-Paucar
attesting to the fact that “at least since 2014 and now as part of Colombia’s law, there is a
consistent public policy in Colombia to declare imprescriptible the victim’s rights that arise from
crimes committed against humanity, such as is alleged to have occurred in this case due to the
murders of civilians by armed paramilitary groups …”. (Arrubla Decl. ¶¶ 30-36, 46).
The problem for Plaintiffs is that this principle applies in Colombia to criminal claims for
crimes against humanity and not to civil claims against private parties for alleged crimes against
humanity. 14 (Zuleta-Londoño Decl. ¶¶ 13-14).

Here, Plaintiffs central allegations are that

Drummond provided substantial funding to the AUC, a terrorist paramilitary group which had

of conflicts. This court finds it impossible to understand the distinction, if there is any, between a ‘built in’
limitation and a ‘public policy’ limitation, much less to apply such a distinction to this particular fact situation.”
Randolph, 792 F. Supp. at 1223.
14

Plaintiffs argue that no statute of limitations applies to any wrongful deaths that constitute crimes against
humanity. (Doc. #91 at 7). In support of this argument, Plaintiffs cite the declaration of Dr. Arrubla. (Id.; see also
Arrubla Decl. ¶¶ 41-47). But no Colombian court has ever held that the statute of limitations is inapplicable in cases

30

ties to the Colombian state. (Doc. #83 at 11-12). In Colombia, “[t]he type of action, and the
jurisdiction in which it is brought, determines the applicable statute of limitations.”
(Zuleta-Londoño Decl. ¶ 6). A civil action brought against private defendants must be brought
before the civil courts. (Id. at ¶ 4). Civil statutes of limitations apply to private civil claims.
(Id. at ¶ 14).
For this additional reason, Plaintiffs’ wrongful death claims are subject to Alabama’s
two-year statute of limitations.
2.

Equitable Tolling Does Not Apply to the Wrongful Death Claims

Finally, Plaintiffs argue that, even if the Alabama statute of limitations applies, tolling is
appropriate because: (1) Plaintiffs experienced dangerous conditions and lack of access to
evidence; (2) Drummond fraudulently concealed payments to the AUC and its responsibility for
the murders at issue; and (3) minor tolling applies to Plaintiffs who were under the age of 19
when the complaint was filed on February 26, 2013. (Doc. #83 at 13-19). The court disagrees.
Equitable tolling “is an extraordinary remedy which should be extended only sparingly.”
Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993). It is warranted only “when a
movant untimely files because of extraordinary circumstances that are both beyond his control
and unavoidable even with diligence.” Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006)
(emphasis in original). Here, the purportedly “extraordinary circumstances” Plaintiffs point to
simply do not justify tolling until 2013.
Plaintiffs initially assert that they faced dangerous conditions. But, as noted previously,
these conditions extended until 2007.

(See Balcero, 2:09-cv-1041-RDP, Doc. # 275 at 6)

where the dispute involves private parties and civil claims. (Zuleta-Londoño Decl. ¶ 15).

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(finding that “[t]he situation in Colombia had been one of great unrest until at least 2007, when
the AUC was demobilized.”). According to Plaintiffs themselves “2007 is the earliest date
when the Peace Process could be said to have begun and become fully operational,” and
“Plaintiffs’ claims should be tolled until at least 2007.” (Doc. #36 at 38, 47 n.21). When the
Justice and Peace Process began, Plaintiffs were no longer “in the dark without any fault or want
of diligence or care on [their] part.” In re Chiquita Brands International, 690 F.Supp.2d 1296,
1306 (S.D. Fla. Feb. 4, 2010) (internal citation omitted).
Plaintiffs fail to allege facts which differentiate their claims from the claims of the
Plaintiffs in Doe/Balcero. Plaintiffs have pled no facts showing that they were “prevented” from
discovering their cause of action, or that Drummond “fraudulently concealed” the cause of
action, particularly since their lawyer filed these same allegations in 2009. See Burr v. Philip
Morris USA Inc., 559 Fed. Appx. 961, 964 (11th Cir. 2014) (“Burr never explained what Philip
Morris did to prevent him from knowing his wife had sustained an injury caused by smoking
cigarettes and being able to pursue a claim. Therefore, he has not preserved a tolling claim
under fraudulent concealment.”). In 2009, two years after the Justice and Peace Process began,
this court saw numerous claims brought by Colombians (who were represented by the same
counsel) for the same wrongs asserted in the instant complaint. When Plaintiffs sought to file an
amended complaint in the Doe/Balcero action to add Garry Drummond, they conceded that “[n]o
new significant allegations, and no new claims” were added in the proposed amendment.
(Balcero, 2:09-sc-1041-RDP, Doc. #350 at 3-4). When the court denied the motion to amend,
Plaintiffs filed the instant lawsuit naming Garry Drummond as a defendant. The original
complaint in this action (and the First and Second Amended Complaints) contain substantively
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identical allegations to the operative complaint in Doe/Balcero. Penaloza, 662. Fed. Appx. at
677-78.
With full knowledge of the Peace Process and with the benefit of the same attorneys, it
was nothing other than, at best, “garden variety” excusable neglect for which Plaintiffs are not
entitled to equitable tolling. Justice v. U.S., 6 F.3d 1474, 1479-80 (11th Cir. 1993); see also
Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989) (“It is a common maxim that
equity is not intended for those who sleep on their rights.”). At worst, the late-filing of the
Colombian wrongful death claims was the result of “tactical mistakes in litigation.” Menominee
Indian Tribe of Wisconsin v. U.S., 136 S. Ct. 750, 755 (2016); see also Scott v. Duffy, 372 Fed.
Appx. 61, 63 (11th Cir. 2010) (refusing to apply equitable tolling where a litigant’s delay in
filing was due to a tactical decision).
Nor can the statute of limitations be equitably tolled for Plaintiffs who were under the age
of 19 when the complaint was filed on February 26, 2013. (See Doc. #83 at 18-19). Although
Alabama Code § 6-2-8(a) provides for those below the age of 19 to “have three years … to
commence an action,” this statute does not apply to wrongful death actions in Colombia. Ala.
Code § 6-2-8(a) (indicating the statute’s provisions apply only to “actions enumerated in this
chapter”). Moreover, Alabama courts have held that wrongful death claims are not subject to
minority tolling.

McConico v. Patterson, 204 So.3d 409, 420-21 (Ala. Civ. App. 2016).

Allowing minority tolling in the case of Plaintiffs’ Colombian wrongful death claims is contrary
to Alabama law, and therefore directly implicates Alabama’s choice of law principles set forth in
the Alabama Constitution. Ala. Const., § 13.50(c) (Alabama courts “shall not apply or enforce a
foreign law if doing so would violate any state law or a right guaranteed by the Constitution of
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this state or of the United States.”).
For all these reasons, Plaintiffs have not pled facts sufficient to show that they are entitled
to equitable tolling in this case and their Colombian wrongful death claims cannot survive the
motion to dismiss.
D.

Res Judicata

Plaintiffs Alba Luz Caballero Gomez, Amparo de Jesus Florez Torres, and J.A.G.F.
previously asserted claims in the Doe/Balcero case against Michael Tracy for the deaths of Jairo
de Jesus Ponzon Rua and Engelver Garcia Pallares. They re-assert these claims here, this time
against Michael Tracy and the Estate of Garry Drummond. The individual defendants argue that
res judicata applies and Plaintiffs are precluded from bringing them in this lawsuit. (Doc. # 81
at 29). But, that argument fails.
Most obviously, Plaintiffs have never advanced claims against Garry Drummond (or the
Estate of Garry Drummond), so the theory of res judicata does not bar those claims. As to
Michael Tracy, the claims were dismissed in Doe/Balcero because they were based on
allegations that their decedents were killed by AUC paramilitaries on January 26, 1997 and
September 3, 1999, respectively. (Doe/Balcero, Doc. #324 at 5). However, the Doe/Balcero
complaint clearly set out the allegation that Defendants entered into an arrangement with the
AUC in November 1999 with a first payment made sometime in 2000. (Id.). Because there
was no factual allegation to support a claim against Tracy for actions which occurred prior to
November 1999, the claims against Alba Luz Caballero Gomez, Amparo de Jesus Florez Torres,
and J.A.G.F. were dismissed. (Id. at 5-6). In contrast, the operative Melo complaint alleges
Defendants’ support of the AUC “no later than early 1997.” (Doc. #78-1 at ¶ 104). Plaintiffs
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now assert that “additional information concerning Defendants’ support of the AUC before 1999
was unearthed only after several depositions were taken.” (Doc. #82 at 30).
For these reasons, Plaintiffs Alba Luz Caballero Gomez, Amparo de Jesus Florez Torres,
and J.A.G.F. are not precluded from bringing their otherwise viable claims in Melo.
IV.

Conclusion
The Motions to Dismiss (Docs. #80, 81) are due to be granted in part and denied in part.

A separate Order consistent with this Memorandum Opinion will be entered.
DONE and ORDERED this May 22, 2019.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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