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Melo et al. v. Drummond Company, Inc.

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Summary

Plaintiffs allege that Drummond joined with a terrorist paramilitary group to drive suspected guerillas out of the areas of Drummond’s Colombian mine operations. The paramilitaries killed hundreds of innocent civilians who lived in the area. The relatives of those murdered brought ATS and TVPA claims against Drummond and several of its officers.

Factual Background:

No later than 1997, plaintiffs' evidence indicates that Drummond officials made an alliance with the United Self-Defense Forces of Colombia (“AUC”), the umbrella paramilitary group in Colombia. In 2001, the U.S. Department of State designated the AUC a terrorist organization. Plaintiffs allege that in exchange for Drummond’s substantial financial support, logistical support, intelligence, and access to Drummond’s extensive land surrounding its coal mine and rail road line in Cesar Province, Colombia, the AUC would drive any guerilla forces out of the area. The guerillas, mainly from the FARC, were harassing Drummond’s coal shipments by attacking the rail line that transported Drummond’s coal from its mine in La Loma to its port near Cienega. The AUC then engaged in its trademark scorched earth tactics and terrorized towns along the rail line and killed innocent civilians to ensure that even those remotely sympathetic to the FARC would not offer safe haven or cooperation. The murdered Plaintiffs’ decedents in this case were all innocent civilians who were killed in the escalation of the civil war fueled by Drummond’s support to the AUC.

Legal Proceedings:

Plaintiffs filed their First Amended Complaint on April 26, 2013. On May 30, 2013, the Drummond corporate Defendants and the individual Defendants filed separate motions to dismiss. Plaintiffs filed briefs in opposition to both motions. The Drummond corporate Defendants and individual Defendants filed reply briefs in support of their motions to dismiss.

While the dismissal motions were pending, the U.S. Supreme Court decided Daimler AG v. Bauman, 134 S.Ct. 746 (2014). In response to this, on January 15, 2014, the District Court issued an order directing the parties to show cause why a stay is not appropriate in light of the Daimler AG opinion. Plaintiffs responded by first noting that, because they had wrongful death claims based on diversity jurisdiction, their case would go forward regardless of any rulings, positive or negative, on their ATS and TVPA claims by the Supreme Court or the Eleventh Circuit. Plaintiffs further stated that while the issues of the Daimler case were irrelevant to their claims there were three cases pending in the Eleventh Circuit  that could have a significant impact on their federal claims. All of these cases included an issue of the scope of the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1669 (2013), that the ATS only extends extraterritorially to cases that “touch and concern” the United States.

Accordingly, Plaintiffs concluded that in the interests of judicial economy the parties would benefit from this Court’s assessment of the impact of Kiobel on ATS claims, similar to theirs, and they would not oppose a stay. Defendants agreed that a stay was appropriate. Following the parties’ filings, on February 4, 2014, the District Court stayed the case and “administratively terminated without prejudice” Defendants’ Motions to Dismiss the First Amended Complaint. Over a year later, once the pending Eleventh Circuit cases had been decided, the District Court issued an April 20, 2015 show cause order on whether this case should be dismissed in light of those decisions. Plaintiffs filed a timely response.

Plaintiffs asserted, once again, that their wrongful death claims based on diversity jurisdiction were not impacted by this Court’s ATS and TVPA decisions in the two recently decided Drummond cases because neither of those were based on diversity jurisdiction. Further, with respect to the TVPA claims against individual Defendants Drummond and Tracy, Plaintiffs asserted this Court had clarified various secondary liability standards and this case should now be assessed with respect to those standards following discovery. Plaintiffs also noted that with respect to their ATS claims, they should be permitted to obtain discovery to satisfy the new jurisdictional standard set by the Supreme Court in Kiobel,133 S.Ct. 1659 (2013). Plaintiffs concluded by noting that there was no pending motion to dismiss as the Court had denied Defendants’ motion without prejudice, and if the Court was going to lift the stay, it should allow Defendants to refile any motion to dismiss and set a briefing schedule to resolve the never-addressed issues raised in the original, dismissed motion. 

With no motion pending under Fed. R. Civ. P. 12(b), the District Court dismissed all of Plaintiffs’ claims. Plaintiffs filed a timely Notice of Appeal. This case was stayed for most of the time it was on file. These 45 Plaintiffs are not associated with any of the prior Drummond litigation, and have yet to have discovery of their allegations.  Facts are still developing as the testimony from Colombia’s Justice and Peace process is ongoing.

The case was appealed before the 11th Circuit Court of Appeals, and after briefing, the Court of Appeals issued a September 27, 2016 opinion - remanding the case back to the District Court and ordering the District Court to proceed with the litigation or to reinstate the dismissal - this time - articulating the basis and reasoning for the dismissal.