Luis Mujica v. Airscan Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ALBERTO GALVIS MUJICA, on No. 10-55515

behalf of himself and as

representative of the Estates of D.C. No.

Tereza Mujica Hernan, Edilma Leal 2:03-cv-02860-

Pacheco and Johanny Hernandez GW-JWJ

Becerra; MARIO GALVIS GELVEZ, on

behalf of himself, individually, and

as heir of the decedents Tereza

Mujica Hernandez, Edilma Leal

Pacheco and Johanny Hernandez

Becerra; JOHN MARIO GALVIS

MUJICA, through his guardian ad

litem and on behalf of himself,

individually, and as heir of the

decedents Tereza Mujica Hernandez,

Edilma Leal Pacheco and Johanny

Hernandez Becerra,

Plaintiffs-Appellees,

v.

AIRSCAN INC.,

Defendant-Appellant,

____________________________

OCCIDENTAL PETROLEUM

CORPORATION,

Defendant,

2 MUJICA V. AIRSCAN

UNITED STATES OF AMERICA,

Movant.

LUIS ALBERTO GALVIS MUJICA, on No. 10-55516

behalf of himself and as

representative of the Estates of D.C. No.

Tereza Mujica Hernan, Edilma Leal 2:03-cv-02860-

Pacheco and Johanny Hernandez GW-JWJ

Becerra; MARIO GALVIS GELVEZ, on

behalf of himself, individually, and

as heir of the decedents Tereza

Mujica Hernandez, Edilma Leal

Pacheco and Johanny Hernandez

Becerra; JOHN MARIO GALVIS

MUJICA, through his guardian ad

litem and on behalf of himself,

individually, and as heir of the

decedents Tereza Mujica Hernandez,

Edilma Leal Pacheco and Johanny

Hernandez Becerra,

Plaintiffs-Appellees,

v.

OCCIDENTAL PETROLEUM

CORPORATION,

Defendant-Appellant,

____________________________

AIRSCAN INC.,

Defendant,

MUJICA V. AIRSCAN 3

UNITED STATES OF AMERICA,

Movant.

LUIS ALBERTO GALVIS MUJICA, on No. 10-55587

behalf of himself and as

representative of the Estates of D.C. No.

Tereza Mujica Hernan, Edilma Leal 2:03-cv-02860-

Pacheco and Johanny Hernandez GW-JWJ

Becerra; MARIO GALVIS GELVEZ, on

behalf of himself, individually, and

as heir of the decedents Tereza OPINION

Mujica Hernandez, Edilma Leal

Pacheco and Johanny Hernandez

Becerra; JOHN MARIO GALVIS

MUJICA, through his guardian ad

litem and on behalf of himself,

individually, and as heir of the

decedents Terza Mujica Hernandez,

Edilma Leal Pacheco and Johanny

Hernandez Becerra,

Plaintiffs-Appellants,

v.

OCCIDENTAL PETROLEUM

CORPORATION; AIRSCAN INC.,

Defendants-Appellees,

and

UNITED STATES OF AMERICA,

Movant.

4 MUJICA V. AIRSCAN

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted

March 5, 2014—Pasadena, California

Filed November 12, 2014

Before: Jay S. Bybee and Sandra S. Ikuta, Circuit Judges,

and Thomas S. Zilly, Senior District Judge.*

Opinion by Judge Bybee;

Partial Concurrence and Partial Dissent by Judge Zilly

*

The Honorable Thomas S. Zilly, Senior District Judge for the U.S.

District Court for the Western District of Washington, sitting by

designation.

MUJICA V. AIRSCAN 5

SUMMARY**

Torture Victims Protection Act / Alien Tort Statute /

Comity

The panel affirmed the dismissal, on remand, of an action

brought under the Torture Victims Protection Act, the Alien

Tort Statute, and California state law, alleging that two U.S.-

headquartered corporations, Occidental Petroleum and

AirScan, were complicit in the 1998 bombing of a Colombian

village by members of the Colombian Air Force.

The panel held that plaintiffs’ notice of appeal was not

untimely because after the district court issued its ruling on

limited remand, the case returned to the Court of Appeals,

which continued to have jurisdiction under plaintiffs’ original

notice of appeal.

The panel held that pursuant to Mohamad v. Palestinian

Auth., 132 S. Ct. 1702 (2012), plaintiffs lacked a viable claim

under the TVPA because defendants were corporations rather

than natural persons.

The panel held that pursuant to Kiobel v. Royal Dutch

Petroleum Co., 133 S. Ct. 1659 (2013), plaintiffs lacked a

viable claim under the ATS because they did not rebut the

presumption against extraterritorial application of the statute

by alleging that defendants were U.S. corporations and that

actions or decisions furthering the purported conspiracy

between defendants and the Colombian Air Force took place

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

6 MUJICA V. AIRSCAN

in the United States. The panel declined to remand the case

for amendment of the complaint in light of Kiobel.

Disagreeing with the district court, the panel held that

plaintiffs’ state-law claims must be dismissed on the ground

of international comity. Interpreting Hartford Fire Ins. Co.

v. Cal., 509 U.S. 764 (1993), the panel held that adjudicatory

comity, which involves discretionary deference in declining

to exercise jurisdiction over a case properly adjudicated in a

foreign state, does not require a “true conflict” between

domestic and foreign law. The panel concluded that in light

of a State Department Statement of Interest and an amicus

brief filed by the United States, the United States’ interest in

having the case adjudicated exclusively in Colombia was

strong. The panel held that because of the strength of the

U.S. government’s interest in respecting Colombia’s judicial

process, the weakness of California’s interest in the case, the

strength of Colombia’s interests in serving as an exclusive

forum, and the adequacy of the Colombian courts as an

alternative forum, plaintiffs’ state-law claims were

nonjusticiable under the doctrine of international comity.

District Judge Zilly concurred in part and dissented in

part. He concurred with the majority’s conclusion that

plaintiffs’ claim under the TVPA was properly dismissed.

Dissenting from the majority’s holding that plaintiffs’ lacked

a viable claim under the ATS, he wrote that Kiobel did not

require “conduct” that occurred within the United States, and

that plaintiffs should be allowed to amend their complaint.

Judge Zilly also dissented from the majority’s holding that

international comity barred adjudication of plaintiffs’ state

law claims.

MUJICA V. AIRSCAN 7

COUNSEL

Paul L. Hoffman (argued), Adrienne J. Quarry, and Victoria

Don, Schonbrun DeSimone Seplow, Harris Hoffman &

Harrison, LLP, Venice, California; Terry Collingsworth and

Christian Levesque, Conrad & Scherer, LLP, Washington,

D.C.; Daniel M. Kovalik, Pittsburgh, Pennsylvania; Bridget

Arimond, Center for International Human Rights,

Northwestern University Law School, Chicago, Illinois, for

Plaintiffs-Appellants-Cross-Appellees.

Daniel P. Collins (argued), Munger, Tolles & Olson LLP, Los

Angeles, California, for Defendant-Appellee-Cross-Appellant

Occidental Petroleum Corporation.

Thomas E. Fotopolous, and Sara M. Fotopolous, Fotopolous

& Fotopolous, P.A., Titusville, Florida; Kenneth J. Berke,

Berke & Kent LLP, Calabasas, California, for Defendant-

Appellee-Cross-Appellant AirScan, Inc.

Marco B. Simons, Richard L. Herz, and Jonathan Kaufman,

Washington, D.C., for Amicus Curiae Earthrights

International.

William J. Aceves, California Western School of Law, San

Diego, California, for Amicus Curiae Constitutional and

International Law Scholars.

8 MUJICA V. AIRSCAN

OPINION

BYBEE, Circuit Judge:

This suit arises out of the 1998 bombing of a Colombian

village by members of the Colombian Air Force (CAF).

Plaintiffs,1 citizens and former residents of Colombia, brought

suit in California against two U.S.-headquartered

corporations, Occidental Petroleum and AirScan, for their

alleged complicity in the bombing. In two opinions issued in

2005, the district court first refused to dismiss the case on

grounds of forum non conveniens and international comity,

Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134

(C.D. Cal. 2005) (“Mujica I”), but then granted Defendants’

motion to dismiss all of the claims under the political

question doctrine. Mujica v. Occidental Petroleum Corp.,

381 F. Supp. 2d 1164 (C.D. Cal. 2005) (“Mujica II”).

In a prior appeal, we declined to decide the issues

presented and remanded the case to the district court for two

purposes: first, “to consider whether a prudential exhaustion

requirement applies in this case, and if so, whether that

requirement bars any claims in this case,” and, second, to

“consider the effect, if any,” of two Colombian court opinions

related to the bombing. Mujica v. Occidental Petroleum

Corp., 564 F.3d 1190, 1192 (9th Cir. 2009) (“Mujica III”).

On limited remand, the district court found that prudential

exhaustion was not required. It also found that, if prudential

exhaustion were required, Occidental had met its burden of

1

We refer to Mr. Luis Mujica and the other Plaintiffs/Appellants/Cross-

Appellants as “Plaintiffs” and to Occidental Petroleum and AirScan either

as “Occidental” or “Defendants.” Defendant AirScan has adopted and

joined Occidental’s briefing.

MUJICA V. AIRSCAN 9

pleading and proving the availability of local remedies.

Mujica v. Occidental Petroleum Corp., Case No. CV-03-2860

(C.D. Cal., Mar. 8, 2010) (“Mujica IV”). Plaintiffs and

Defendants appealed and cross-appealed.

We hold that Plaintiffs lack a valid claim under either the

Torture Victim Protection Act (TVPA) or the Alien Tort

Statute (ATS). We affirm the district court’s judgment of

dismissal with respect to Plaintiffs’ state-law claims, but we

do so on the ground of international comity. Although the

district court rejected dismissal on that ground, we conclude

that the district court abused its discretion by applying the

incorrect legal standard in its comity analysis, specifically by

concluding erroneously that a “true conflict” between

domestic and foreign law is required for the application of

international comity in all circumstances. Mujica I, 381 F.

Supp. 2d at 1155. Guided by the correct standard for the

application of comity, and informed by the district court’s

findings of fact in Mujica IV regarding the adequacy of

Colombia as an alternative forum, we conclude that the state-

law claims before us are not justiciable under the doctrine of

international comity.

I. BACKGROUND

A. The 1998 Bombing

The district court described the facts of the underlying

events as follows:

The instant case arises from a bombing that

occurred in Santo Domingo, Colombia on

December 13, 1998. In 1998, Plaintiffs lived

in Santo Domingo. The Defendants,

10 MUJICA V. AIRSCAN

Occidental Petroleum Corp. (“Occidental”)

and AirScan, Inc., are both American

companies; the former is located in Los

Angeles, the latter in Florida. Defendant

Occidental operates, as a joint venture with

the Colombian government, an oil production

facility and pipeline in the area of Santo

Domingo.

Plaintiffs allege the following relevant facts.

Since 1997, Defendant AirScan has provided

security for Defendant Occidental’s oil

pipeline against attacks from left-wing

insurgents. Prior to 1998, Defendants worked

with the Colombian military, providing them

with financial and other assistance, for the

purpose of furthering Defendant Occidental’s

commercial interests. On several occasions

during 1998, Defendant Occidental provided

Defendant AirScan and the Colombian

military with a room in its facilities to plan the

Santo Domingo raid. Defendant AirScan and

the Colombian Air Force (“CAF”) carried out

this raid for the purpose of providing security

for Defendant Occidental (i.e., protecting its

oil pipeline) and was not acting on behalf of

the Colombian government. During the raid,

three of Defendant AirScan's employees,

along with a CAF liaison, piloted a plane with

CAF markings and that was paid for by

Defendant Occidental. From this airplane,

Defendant AirScan provided aerial

surveillance for the CAF, helping the CAF

MUJICA V. AIRSCAN 11

identify targets and choose places to deploy

troops.

On December 13, 1998, residents of Santo

Domingo saw low-flying CAF helicopters

overhead and attempted to communicate that

they were civilians by lying down on the road

and covering their heads with white shirts.

Soon thereafter, several witnesses saw an

object (or several objects) drop from one of

the CAF helicopters. One of the cluster bombs

dropped by the CAF exploded directly in the

town of Santo Domingo, destroying homes

and killing seventeen civilians and wounding

twenty-five others. Of the seventeen killed,

six were children. During the attack, the CAF

helicopters knowingly fired on civilians

attempting to escape and on those who were

trying to carry the injured to a medical

facility. Soon thereafter, other CAF troops

entered the town, blocked civilians from

leaving, and ransacked their homes.

While the purpose of the Santo Domingo raid

was to protect Defendant Occidental’s

pipeline from attack by left-wing insurgents,

no insurgents were killed in the attack. These

insurgents were located at least one to two

kilometers outside of Santo Domingo.

Defendants knew that the insurgents were not

12 MUJICA V. AIRSCAN

in Santo Domingo but carried out the attack

nonetheless.

Mujica II, 381 F. Supp. 2d at 1168–69 (internal citations

omitted)).

B. Proceedings in Colombian Courts

The 1998 Santo Domingo bombing led to two legal

actions in Colombia: a criminal action brought by the

Colombian government against three CAF officers who were

allegedly responsible for the bombing and a civil suit brought

by Plaintiffs (and several other persons) against the

government of Colombia.

1. Criminal Action

The Colombian Public Prosecutor’s Office opened a

preliminary investigation into the Santo Domingo bombing

the day after it occurred, on December 14, 1998. On

September 21, 2007, in In re Cesare Romero Pradilla, et al.,

the Twelfth Criminal Court of the Circuit of Bogota,

Colombia convicted three CAF officers of manslaughter. On

September 24, 2009, the same court affirmed the verdict on

remand from a higher court, finding that all three defendants

were guilty of manslaughter and related crimes. The court

then sentenced two of them to no more than 380 months’

imprisonment and one to no more than seventy-two months’

imprisonment. The court also imposed fines on all three

defendants.

MUJICA V. AIRSCAN 13

2. Civil Action

On September 25, 2000, Plaintiffs (and others) filed a

complaint against the Republic of Colombia, the Colombian

Ministry of Defense, the Colombian Army, and the CAF, in

regional court in Arauca, the region in Colombia where Santo

Domingo is located. Plaintiffs sought damages for wrongful

death and physical and psychological injuries to Plaintiffs and

their relatives. On May 20, 2004, the Arauca court entered

judgment in favor of Plaintiffs and awarded damages

amounting to about $700,000. On December 13, 2007, in

Mario Galvis Gelves, et al. v. The Nation, a Colombian

appellate court approved a settlement between Plaintiffs and

the Colombian government, holding that “[t]he liability of the

defendant can be found, because the incident that gave rise to

the settlement has been proven.” On April 27, 2009, the

Director of Legal Affairs of the National Defense Ministry

directed the payment of 1,393,649,934.73 Colombian pesos

(roughly $737,000) to the victims through their attorney.

Nothing in the record suggests that the victims did not receive

that settlement payment.

C. Proceedings Below

While the Colombian litigation was ongoing, Plaintiffs

filed a complaint in United States district court on April 23,

2003. The complaint, as amended, brought claims for extra-

judicial killing; torture; crimes against humanity; cruel,

inhuman, and degrading treatment; and war crimes under the

Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Torture

Victims Protection Act (TVPA), 28 U.S.C. § 1350 Note.

Plaintiffs also filed state law claims for wrongful death,

intentional infliction of emotional distress, negligent

infliction of emotional distress, and violations of California

14 MUJICA V. AIRSCAN

Business & Professional Code § 17200. See Mujica II, 381 F.

Supp. 2d at 1169, 1176.

In January 2004, the district court requested the views of

the U.S. Department of State. Id. at 1169. In April 2004, the

Department of State submitted a Statement of Interest (SOI)

indicating that it did not have a position on the foreign policy

implications of the action. Id. Eight months later, however,

the Department of State submitted a second SOI indicating

that it now opposed the litigation as adverse to U.S.-

Colombian relations. The Department of State attached to the

SOI two short démarches2 from the Government of Colombia

opposing the litigation. Id. In June 28, 2005, the court issued

two opinions responding to Occidental’s motion to dismiss

the suit.

1. Mujica I — Forum Non Conveniens and International

Comity

In Mujica I, 381 F. Supp. 2d at 1134, the district court

denied Occidental’s motion to dismiss based on forum non

conveniens and international comity. Id. at 1163–64. With

respect to forum non conveniens, the district court concluded

that, despite a May 2004 civil verdict against the Republic of

Colombia in favor of these plaintiffs in Colombian regional

court, Colombia was an inadequate forum for Plaintiffs’

claims. The court found that because the plaintiffs had

received relief in Colombia, in a suit that did not include

Defendants, “these Plaintiffs [would] not be able to recover

against these Defendants.” Id. at 1148. According to the

2

A démarche is “[a]n oral or written diplomatic statement, esp[ecially]

one containing a demand, offer, protest, threat, or the like.” Black’s Law

Dictionary 523 (10th ed. 2014).

MUJICA V. AIRSCAN 15

district court, “Colombia would be an inadequate forum

because Plaintiffs could not obtain a remedy against

Defendant as they could in this Court.” Id.

With regard to comity, which the court analyzed

alongside the related doctrine of international abstention, the

court held that it did not apply. It adopted Plaintiffs’

argument that “at least in the Ninth Circuit, the application of

international comity is generally limited to cases where there

is a ‘true conflict’ between domestic and foreign law.” Id. at

1155. Under that standard, the court explained that there was

no “true conflict” between United States law and Colombian

law: “Since the Court has not made any findings of liability

or provided any remedies, there is no present conflict

between the Court’s proceeding with the instant case and any

proceedings in Colombia.” Id. at 1156. The district court

acknowledged that there was “the possibility of an

inconsistency between a future, potential judgment of this

Court and a judgment of a Colombian court,” id., but the

court refused to dismiss the suit “without the knowledge that

Plaintiffs have an alternative forum in which they are able to

obtain a remedy.” Id. at 1163–64.

2. Mujica II — Political Question Doctrine

In a second opinion issued the same day, Mujica II, 381

F. Supp. 2d at 1164, the district court considered whether to

dismiss various claims under the TVPA, the ATS, the foreign

affairs doctrine, the act of state doctrine, and the political

question doctrine. Although the court worked its way

through all of these statutes and doctrines and would have

dismissed some but not all of Plaintiffs’ claims, it ultimately

concluded that the entire suit warranted dismissal under the

16 MUJICA V. AIRSCAN

political question doctrine. Id. at 1195; see also Baker v.

Carr, 369 U.S. 186 (1962).3

The district court held that two Baker factors supported

dismissal of the suit—factor four, “impossibility of a court’s

undertaking independent resolution [of the issue] without

expressing lack of the respect due coordinate branches of

government,” and factor five, the “unusual need for

unquestioning adherence to a political decision already

made.” Baker, 369 U.S. at 217. In reaching that conclusion,

the court “focus[ed] on the Supplemental Statement of

Interest,” Mujica II, 381 F. Supp. 2d at 1191, and found that

its assertion that U.S. foreign policy “would be negatively

impacted by proceeding with the instant case” supported a

finding that “proceeding with the litigation would indicate a

‘lack of respect’ for the Executive’s preferred approach of

3

Baker lists six alternative grounds under which a case may raise a

nonjusticiable political question:

Prominent on the surface of any case held to involve a

political question is found [1] a textually demonstrable

constitutional commitment of the issue to a coordinate

political department; or [2] a lack of judicially

discoverable and manageable standards for resolving it;

or [3] the impossibility of deciding without an initial

policy determination of a kind clearly for nonjudicial

discretion; or [4] the impossibility of a court’s

undertaking independent resolution without expressing

lack of the respect due coordinate branches of

government; or [5] an unusual need for unquestioning

adherence to a political decision already made; or [6]

the potentiality of embarrassment from multifarious

pronouncements by various departments on one

question.

Baker, 369 U.S. at 217.

MUJICA V. AIRSCAN 17

handling the Santo Domingo bombing and relations with

Colombia in general.” Id. at 1194. In a footnote, the court

wrote that “[f]or similar reasons, the fifth Baker factor,

adherence to a policy decision, would also render the instant

case non-justiciable.” Id. at 1194 n.25.

3. Mujica III — Limited Remand

Plaintiffs appealed the district court’s order granting

Defendants’ Rule 12(b)(6) motion and “further appeal[ed]

any and all adverse rulings on issues in the Court’s second

order entered on June 29, 2005, . . . [and] further appeal[ed]

any and all prior rulings adverse to Plaintiffs.” On July 27,

2005, Occidental filed a “notice of conditional cross-appeal,”

appealing the district court’s denial of Defendants’ motion to

dismiss the action on forum non conveniens and international

comity grounds, as well as any adverse judgment in the

court’s ruling granting Defendants’ Rule 12(b)(6) motion.

AirScan filed a nearly verbatim cross-appeal the next day.

In March 2006, during the pendency of the appeal, the

United States filed an amicus brief on behalf of Defendants

urging affirmance “[b]ecause adjudication of this case would

adversely affect the United States’ foreign policy interests.”

And while it agreed with the ultimate disposition of the case

on political question and preemption grounds, it also believed

“that dismissal of the plaintiffs’ claims is most appropriate as

a matter of international comity.”

In May 2009, we remanded the case to the district court

in an order that reads, in its entirety, as follows:

In light of the intervening authority of

Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir.

18 MUJICA V. AIRSCAN

2008) (en banc) [“Sarei II”], this case is

remanded to the district court to consider

whether a prudential exhaustion requirement

applies in this case, and if so, whether that

requirement bars any claims in this case. On

remand, the district court should also consider

the effect, if any, of the decision of the

Council of State of the Republic of Colombia

in Mario Galvis Gelves, et al. v. The Nation,

slip op. (Council of State, Rep. of Colombia,

Ad. Law Div., Sec. 3, Dec. 13, 2007) and the

decision of the Court No. 12 for Criminal

Matters of the Circuit of Bogot[a] of the

Republic of Colombia in In re Cesare Romero

Pradilla, et al., slip op. (Sept. 21, 2007).

Mujica III, 564 F.3d at 1190.

4. Mujica IV — Prudential Exhaustion and the

Colombian Cases

By the time we heard the appeal in Mujica III, the original

district court judge, Judge William J. Rea, had passed away.

Accordingly, on remand, the case was assigned to Judge

George H. Wu, who, in accordance with our order, issued a

“Ruling on Limited Remand as to the Prudential Exhaustion

Issue.”

In response to our first question, the district court held

that “there is a sufficiently strong nexus between the claims

asserted in this lawsuit and the United States that local

exhaustion should not be required.” The court found that,

“even if the nexus [to the United States] were held to be

weak, . . . Occidental ha[d] not shown that the claims in this

MUJICA V. AIRSCAN 19

case do not implicate matters of universal concern,” such as

“war crimes and indiscriminate violent assaults on people at

large.” Thus, “Occidental ha[d] not shown that those claims

against Defendants in this case [were] likely to be subject to

an exhaustion requirement.”

The court then addressed the second question we had

posed on remand: the effect of the successful civil and

criminal litigation brought in Colombia. Judge Wu came to a

different conclusion from Judge Rea. Judge Wu held that

remedies were available in Colombia, whether their

availability was “assessed as of now or as of 2003 when the

case was filed” and that, despite Judge Rea’s contrary

conclusion, Occidental “seem[ed] to have met its initial

burden of showing the availability of local remedies.” The

court noted that Dr. Fernando Hinestrosa, Occidental’s

Colombian law expert, “stated that Plaintiffs could bring a

suit against Occidental today in Colombia, and could have

brought one in September 2000, or any time in between.

Occidental ha[d] consented to jurisdiction in Colombia, and

the statute of limitations under Colombian law ha[d] not yet

run.” The district court also found Plaintiffs’ arguments that

it was unsafe for them to pursue the litigation in Colombia

unavailing, because Occidental showed that Plaintiffs had

pursued litigation in Colombia “for years” and had traveled

there, even though they now live elsewhere. Furthermore,

Plaintiffs had not shown that their physical presence in

Colombia was required to pursue the litigation. Accordingly,

“[i]f exhaustion were required, Occidental would probably

prevail on its demonstration of the availability of local

remedies and the lack of futility.” The court concluded that

prudential exhaustion was not required in the case, and if it

were to impose such a requirement, “it would find that

Defendant Occidental ha[d] met its burden of pleading and

20 MUJICA V. AIRSCAN

proving the availability of local remedies and Plaintiffs’

failure to exhaust them.”

On April 7, 2010, Defendants AirScan and Occidental

filed essentially identical “Notice[s] of Conditional Appeal,”

which noted that “[b]y declining to impose an exhaustion

requirement on limited remand, the district court’s Order on

Remand leaves unchanged the prior judgment of dismissal

with prejudice in this case, and thereby effectively re-enters

that judgment as of the date of entry of the Order on

Remand.” On April 19, 2010, Plaintiffs filed a “Notice of

Cross-Appeal” challenging the district court’s March 8, 2010

ruling.

II. STANDARD OF REVIEW

Dismissal for failure to state a claim under Rule 12(b)(6)

is reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434,

436–37 (9th Cir. 1995). In reviewing a motion to dismiss

pursuant to Rule 12(b)(6), the court must accept as true all

factual allegations in the Complaint and draw all reasonable

inferences in favor of the nonmoving party. Silvas v. E*Trade

Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir. 2008).

We review the district court’s decision regarding

international comity for abuse of discretion. See Allstate Life

Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 999 (2d Cir. 1993);

Remington Rand Corp.-Del. v. Bus. Sys. Inc., 830 F.2d 1260,

1266 (3d Cir. 1987). We follow a two-part test to determine

whether a district court abused its discretion. See United

States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en

banc). “[T]he first step of our abuse of discretion test is to

determine de novo whether the trial court identified the

correct legal rule to apply to the relief requested. If the trial

MUJICA V. AIRSCAN 21

court failed to do so, we must conclude it abused its

discretion.” Id. at 1261–62 (footnote omitted). If the district

court identified the correct legal rule, we move on to the

second step of the test and “determine whether the trial

court’s application of the correct legal standard was

(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in

inferences that may be drawn from the facts in the record.’”

Id. at 1262 (quoting Anderson v. City of Bessemer City, North

Carolina, 470 U.S. 564, 577 (1985)).

III. APPELLATE JURISDICTION

Defendants question whether Plaintiffs’ April 19, 2010,

notice of appeal following the district court’s decision on

remand was timely and, accordingly, whether we have

jurisdiction under 28 U.S.C. § 1291. Defendants argue that

the district court’s March 8, 2010, ruling “triggered the 30-

day clock for Plaintiffs to file their notice of appeal” under

Federal Rule of Appellate Procedure 4(a).4 And since “the

district court’s ruling left intact a dismissal with prejudice,

Defendants on April 7, 2010 timely filed conditional notices

of appeal.” They cite Abbs v. Sullivan, 963 F.2d 918 (7th Cir.

1992), which held that there is no appellate jurisdiction if a

party without standing is the only party to file an appeal

within thirty-days of the final judgment, even if the other

party files a cross-appeal within fourteen days of the appeal

by the party without standing. Id. at 925. Defendants also cite

4

Federal Rule of Appellate Procedure 4 directs that, in a civil case, a

notice of appeal “must be filed with the district clerk within 30 days after

entry of the judgment or order appealed from.” Fed. R. App. P. 4(a).

Exceptions, which are not relevant here, extend that period to sixty days

if one of the parties is the United States or a federal agency or officer; if

certain other motions are filed; or if the appellant is an inmate. See Fed.

R. App. P. 4(a)(1)(B), 4(a)(4), and 4(c).

22 MUJICA V. AIRSCAN

Stephanie-Cardona LLC v. Smith’s Food & Drug Centers,

Inc., 476 F.3d 701, 705 (9th Cir. 2007), in which we held that

a “late notice of cross-appeal is not fatal because the court’s

jurisdiction over the cross-appeal derives from the initial

notice of appeal.” But if a court lacks jurisdiction over an

appeal, “it necessarily lacks jurisdiction over the cross-

appeal,” and the cross-appeal must be dismissed. Id.

Defendants have misapprehended the limited nature of

our original 2009 remand. In that order, we neither addressed

any of the issues raised by Plaintiffs’ appeal nor vacated the

June 28, 2005, district court order dismissing the case. See

Mujica III, 564 F.3d at 1192. Instead, we remanded the case

for two specific purposes: for fact-finding on the applicability

of the prudential exhaustion doctrine, see Sarei II, 550 F.3d

at 822, and for consideration of the effect of the Colombian

criminal and civil cases related to this litigation. Id. The

district court understood our order as a limited remand. Its

order is entitled “Ruling on Limited Remand as to the

Prudential Exhaustion Issue.” And the parties understood it

to be limited as well. Defendants titled their brief “Opening

Brief on Limited Remand from the Ninth Circuit,” and

Plaintiffs titled theirs “Plaintiffs’ Response to Defendants’

Opening Brief on Limited Remand from Ninth Circuit.” The

district court’s 2010 ruling did not state it was reentering the

2005 judgment, and we did not disturb that judgment on

remand. Accordingly, after the district court issued its limited

ruling, the entire case returned to us. We continue to have

jurisdiction under Plaintiffs’ original notice of appeal, filed

July 11, 2005. See Richmond v. Chater, 94 F.3d 263, 268

(7th Cir. 1996) (observing that appellate courts usually retain

jurisdiction when previous panel was unwilling or unable to

decide the appeal and remanded the case to tie up loose ends);

see also 28 U.S.C. § 1291.

MUJICA V. AIRSCAN 23

IV. FEDERAL CLAIMS

We have no need to consider whether any prudential

doctrines counsel dismissing Plaintiffs’ federal claims under

the TVPA and the ATS, as Plaintiffs have no viable claim

under either statute.

A. TVPA Claims

The TVPA authorizes a federal cause of action against

any “individual” who commits an act of torture or

extrajudicial killing “under actual or apparent authority, or

color of law, of any foreign nation.” 28 U.S.C. § 1350 Note.

In a case decided while this appeal was pending, the Supreme

Court examined the TVPA and held that the term

“individual,” as used in the statute, “encompasses only

natural persons.” Mohamad v. Palestinian Auth., 132 S. Ct.

1702, 1705 (2012). Thus, the TVPA “does not impose

liability against organizations.” Id.

Defendants in this case are both corporations rather than

natural persons. In light of Mohamad, therefore, Plaintiffs’

TVPA claims must be dismissed. Accord, e.g., Cardona v.

Chiquita Brands Int’l, Inc., 760 F.3d 1185, 1188–89 (11th

Cir. 2014).

B. ATS Claims

The ATS provides that “district courts shall have original

jurisdiction of any civil action by an alien for a tort only,

committed in violation of the law of nations or a treaty of the

United States.” 28 U.S.C. § 1350. The ATS “is a

jurisdictional statute creating no new causes of action,”

although the First Congress adopted it on the assumption that

24 MUJICA V. AIRSCAN

“district courts would recognize private causes of action for

certain torts in violation of the law of nations. . . .” Sosa v.

Alvarez-Machain, 542 U.S. 692, 724 (2004).

“The question here is not whether petitioners have stated

a proper claim under the ATS, but whether a claim may reach

conduct occurring in the territory of a foreign sovereign.”5

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664

(2013). Just as the Supreme Court has clarified the meaning

of the TVPA since Plaintiffs filed their complaint, so too has

its recent decision in Kiobel refined our understanding of the

extent to which the ATS applies extraterritorially. Analyzing

Plaintiffs’ ATS claims in light of Kiobel, we conclude that

these claims must also be dismissed.

In Kiobel, Nigerian petitioners who later became U.S.

residents brought tort claims under the ATS, based on events

in Nigeria, against foreign corporations that had only

attenuated contacts with the United States—listings on the

New York Stock Exchange and an affiliation with a public

relations office in New York. See 133 S. Ct. at 1662–63

(majority opinion); id. at 1677–78 (Breyer, J., concurring).

The Court found that these ATS claims were barred, holding

that “the presumption against extraterritoriality applies to

5

The district court held that all of Plaintiffs’ ATS claims were properly

rooted in “binding customary international law” norms, as required to state

a claim after the Supreme Court’s decision in Sosa, though it dismissed

Plaintiffs’ claim for “cruel, inhuman, and degrading treatment” because

the consequences of permitting ATS claims based on such conduct would

be “impractical.” See Mujica II, 381 F. Supp. 2d at 1178–83. Because we

conclude that the presumption against extraterritoriality bars the federal

courts from hearing Plaintiffs’ ATS claims, we express no opinion as to

whether Plaintiffs’ allegations were otherwise proper under Sosa.

MUJICA V. AIRSCAN 25

claims under the ATS” and that “nothing in the statute rebuts

that presumption.” Id. at 1669.

Although the Court did not hold that plaintiffs may never

bring ATS claims based on extraterritorial conduct, it made

clear that, in order to be viable, any such claims must “touch

and concern the territory of the United States” and “must do

so with sufficient force to displace the presumption against

extraterritorial application.” Id. Plaintiffs contend that their

claims meet this requirement because Defendants are U.S.

corporations and because Plaintiffs have alleged that “actions

or decisions furthering the [purported] conspiracy” between

Defendants and the CAF “took place in the United States.”

We disagree.

The allegations that form the basis of Plaintiffs’ claims

exclusively concern conduct that occurred in Colombia. For

example, Plaintiffs allege that the bombing was planned from

an office in Colombia, that employees of Defendant AirScan

provided support during the bombing, that Defendant

Occidental provided a plane used for targeting in the

operation, and that both Defendants gave material and

logistical support to the CAF. The only statement before this

court that so much as alludes to any conduct within the

United States is found in Plaintiffs’ reply brief, filed after

Kiobel, in which Plaintiffs point to the allegations in their

complaint that Defendants aided and abetted and conspired

with the CAF and speculate that some of that conduct, such

as the making of the contract between the two Defendants,

could have occurred in the United States. Such speculation

is not an adequate basis on which to allow Plaintiffs’ claims

26 MUJICA V. AIRSCAN

to go forward.6 Plaintiffs have the burden of pleading

“sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face,’” and a mere conjecture

that conduct may have occurred in the United States does not

meet that burden. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

6

The dissent reads the statements in Plaintiffs’ reply brief regarding the

contract between Occidental and AirScan far more credulously than we

do, arguing that they constitute sufficient evidence of acts in the United

States to preclude our dismissing these ATS claims. This credulous

appraisal is simply mistaken. As the dissent itself acknowledges, Plaintiffs

have, at most, “suggested” to the court that the contract “might have been

executed within our borders.” It is not clear to us, moreover, that the bare

fact that the Defendants’ contract for “security services” was made in the

United States would establish ATS jurisdiction in any event. In the only

ATS case in which a court cited such a contract as evidence of U.S.

conduct, the contract was far more specifically addressed to the activities

that eventually gave rise to the plaintiffs’ ATS claims. See Al Shimari v.

CACI Premier Tech., Inc., 758 F.3d 516, 522 (4th Cir. 2014) (finding ATS

jurisdiction where, inter alia, defendant made a contract with the federal

government in the United States for “interrogation-related services” that

included a Statement of Work specifying activities to be peformed).

The dissent also insists that “Plaintiffs are entitled to the reasonable

inference” that the acts they allege occurred in Colombia “could not have

occurred” without support from Defendants’ “U.S. offices.” We disagree.

The only pleaded facts the dissent cites to support that inference are

Plaintiffs’ allegations that three participants in the bombing were

employed by AirScan and that the bombing was planned at an Occidental

site in Colombia. These highly circumstantial allegations do not support

a sweeping inference that Defendants, through actions in the United

States, took sufficient part in the bombing to be subject to ATS

jurisdiction under Kiobel. See Balintulo v. Daimler AG, 727 F.3d 174,

192 (2d Cir. 2013) (allegation that U.S. corporations’ South African

subsidiaries aided and abetted human rights violations in South Africa did

not “tie[] the . . . human rights violations to actions taken within the

United States”).

MUJICA V. AIRSCAN 27

In apparent recognition of this defect in their complaint,

Plaintiffs have requested leave to amend their complaint in

light of Kiobel. The dissent likewise urges us to grant this

relief. But although we acknowledge that Kiobel worked a

significant change in the legal prerequisites for an

extraterritorial ATS claim, and that such intervening changes

in the law often warrant granting parties leave to amend, we

do not believe that granting Plaintiffs leave to amend would

serve any purpose. See, e.g., Bonin v. Calderon, 59 F.3d 815,

845 (9th Cir. 1995) (“Futility of amendment can, by itself,

justify the denial of . . . leave to amend.”).

This is not a case in which the parties have had no

opportunity to respond to an intervening change in Supreme

Court law. Defendants filed a supplemental brief in the wake

of the Kiobel decision urging dismissal of Plaintiffs’ ATS

claims, and Plaintiffs devoted 15 pages of their reply brief to

Kiobel’s touch-and-concern test. Plaintiffs admitted in that

brief that they likely “cannot uncover the evidence they need”

to allege “plotting [by Defendants] in the United States

without jurisdictional discovery.” Similarly, Plaintiffs’

experienced and knowledgeable counsel candidly represented

to the court at oral argument—which was held eleven months

after Kiobel was decided—that he could not say that Plaintiffs

would be able to amend their complaint to allege acts by the

Defendants in the United States with the specificity required

by Iqbal, absent discovery. The Supreme Court has stated,

however, that plaintiffs must satisfy the pleading

requirements of Rule 8 before the discovery stage, not after

it. See Iqbal, 556 U.S. at 678–79 (explaining that Rule 8

“does not unlock the doors of discovery for a plaintiff armed

28 MUJICA V. AIRSCAN

with nothing more than conclusions”).7 We think it clear that

no amendment to the complaint at this stage of the

litigation—i.e., prior to discovery—could add “sufficient

factual matter” related to domestic conduct to enable the

complaint to survive a motion to dismiss, and we therefore

decline to remand this case for amendment of the complaint.8

7

The dissent cites cases that it claims demonstrate that other courts of

appeals have rejected this view of Iqbal. To the extent that any of those

decisions suggests that courts retain discretion to permit discovery

whenever a plaintiff has failed to satisfy Rule 8’s plausibility standard, it

is simply incompatible with Iqbal and Twombly. See Iqbal, 556 U.S. at

686 (“Because respondent’s complaint is deficient under Rule 8, he is not

entitled to discovery, cabined or otherwise.”); Twombly, 550 U.S. at 559

(“It is no answer to say that a claim just shy of a plausible entitlement to

relief can, if groundless, be weeded out early in the discovery process

through careful case management”); see also, e.g., Vega v. Davis, 572 F.

App’x 611, 616 (10th Cir. 2014) (rejecting plaintiff’s argument that

motion to dismiss should be denied due to his “lack of access to relevant

information”); Carter v. DeKalb Cnty., Ga., 521 F. App’x 725, 728 (11th

Cir. 2013) (holding that plaintiff who failed to allege plausible claim

against defendants was not entitled to discovery because “discovery

follows the filing of a well-pleaded complaint. It is not a device to enable

the plaintiff to make a case when his complaint has failed to state a claim.”

(internal quotation marks omitted)).

8

Not content simply to disagree with the foregoing futility analysis, the

dissent also suggests that we should not have undertaken it, leaving the

question of futility of amendment to be addressed—if at all—by the

district court on a supplemented record. But as the dissent acknowledges,

the parties have already been litigating this case for nearly a decade at the

motion-to-dismiss stage. Judicial economy and common sense both

counsel that we ought not prolong this case still further by remanding to

the district court for a futility analysis when it is obvious to us that leave

to amend is unwarranted. Accord Baloco v. Drummond Co., Inc.,

767 F.3d 1229, 1239 (11th Cir. 2014) (declining to remand ATS case to

district court for amendment of complaint where post-Kiobel briefing

provided “sufficient information” from which to conclude that amendment

would be futile, and a remand would “needlessly extend [the] litigation,

MUJICA V. AIRSCAN 29

In the absence of any adequate allegations of conduct in

the United States, the only remaining nexus between

Plaintiffs’ claims and this country is the fact that Defendants

are both U.S. corporations. That fact, without more, is not

enough to establish that the ATS claims here “touch and

concern” the United States with sufficient force.

Admittedly, Kiobel (quite purposely) did not enumerate

the specific kinds of connections to the United States that

could establish that ATS claims “touch and concern” this

country. See Kiobel, 133 S. Ct. at 1669 (Kennedy, J.,

concurring). It may well be, therefore, that a defendant’s

U.S. citizenship or corporate status is one factor that, in

conjunction with other factors, can establish a sufficient

connection between an ATS claim and the territory of the

United States to satisfy Kiobel.9 But the Supreme Court has

which began over eleven years ago”); see also, e.g., Sylvia Landfield Trust

v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013) (affirming denial of

leave to amend where, after proposed amendments, complaint would still

fail to “allege sufficient facts that amount to more than a sheer possibility

that Defendants have acted unlawfully” (alteration and internal quotation

marks omitted)); Dougherty v. City of Covina, 654 F.3d 892, 901 (9th Cir.

2011) (affirming denial of leave to amend on futility grounds, where

plaintiff “failed to allege any facts” in support of a particular legal theory

and “could have identified any such fact in his briefing or argument before

us, but he did not”).

9

The dissent suggests that we “essentially disregard[]” Defendants’ U.S.

citizenship, but we are hardly dismissing Defendants’ U.S. citizenship out

of hand. We do not contend that this factor is irrelevant to the Kiobel

inquiry; we merely hold that it is not dispositive of that inquiry. But see

Mastafa v. Chevron Corp., __ F.3d __, 2014 WL 5368853, at *13 (2d Cir.

Oct. 23, 2014) (“Whether a complaint passes jurisdictional muster

accordingly depends upon alleged conduct by anyone—U.S. citizen or

not—that took place in the United States and aided and abetted a violation

of the law of nations. A complaint cannot be ‘saved’ for jurisdictional

30 MUJICA V. AIRSCAN

never suggested that a plaintiff can bring an action based

solely on extraterritorial conduct merely because the

defendant is a U.S. national. To the contrary, the Court has

repeatedly applied the presumption against extraterritoriality

to bar suits meeting that description. See, e.g., Morrison v.

Nat’l Austl. Bank Ltd., 561 U.S. 247, 250–51, 269 (2010)

(holding that Section 10(b) did not reach claims of securities

fraud against “foreign and American defendants” based on

largely extraterritorial conduct (emphasis added)); Microsoft

Corp. v. AT&T Corp., 550 U.S. 437, 455 (2007) (holding that

presumption against extraterritoriality barred patent

infringement case brought against U.S. corporation but based

on conduct abroad); EEOC v. Arabian Am. Oil Co., 499 U.S.

244, 258–59 (1991) (holding that Title VII did not apply to

U.S. citizens employed by U.S. employers overseas).

Nothing in Kiobel suggests that the Court would not adhere

to this pattern in an ATS case. Cf. Balintulo, 727 F.3d at 190

(“[I]f all the relevant conduct occurred abroad, that is simply

the end of the matter under Kiobel.”).10

Our reading of Kiobel is in accord with that of other

federal courts. So far as we can ascertain, since Kiobel was

decided, only one court has so much as suggested that an

ATS claim is always viable when the defendant is a U.S.

purposes simply because a U.S. citizen happened to commit the alleged

violation”).

10

The dissent suggests otherwise, pointing to a concurring opinion in

Kiobel in which four Justices suggested that a defendant’s U.S. citizenship

would suffice for ATS jurisdiction. But that view did not command a

majority and, as we discuss infra, at 30–32 & n.11, every federal appellate

and district court except one has rejected the view advocated by the

dissent. We cannot accept that, by following that overwhelming body of

authority, we have “improvidently extend[ed] Kiobel.”

MUJICA V. AIRSCAN 31

citizen or corporation. Every remaining federal court has

dismissed ATS claims whose only connection to this country

was the defendant’s U.S. citizenship.11

11

See Cardona, 760 F.3d at 1189–90 (rejecting ATS claim even though

primary defendant was a U.S. corporation, because “[a]ny tort here . . .

occurred outside the territorial jurisdiction of the United States”); Ben-

Haim v. Neeman, 543 F. App’x 152, 155 (3d Cir. 2013) (dismissing ATS

claims against multiple defendants, including two U.S.–based nonprofits,

where underlying conduct occurred in Israel); Jovic v. L-3 Servs., Inc., __

F. Supp. 3d __, 2014 WL 4748614, at *5 (N.D. Ill. Sept. 24, 2014)

(dismissing ATS claims against U.S. corporations because presumption

against extraterritoriality was not rebutted); Doe I v. Cisco Sys., Inc., __

F. Supp. 2d __, 2014 WL 4446381, at *5 (N.D. Cal. Sept. 5, 2014)

(holding that defendant’s U.S. corporate citizenship “in and of itself is not

enough to touch and concern the United States with sufficient force for the

ATS to apply”); Warfaa v. Ali, __ F. Supp. 2d __, 2014 WL 3734121, at

*2–3 (E.D. Va. July 29, 2014) (dismissing ATS claims arising out of

events in Somalia, brought against defendant residing in United States);

Adhikari v. Daoud & Partners, 2013 WL 4511354, at *7 (S.D. Tex. Aug.

23, 2013) (dismissing ATS claim against U.S. corporation because “[t]he

conduct underlying Plaintiffs’ ATS claim is entirely foreign”); Ahmed-Al-

Khalifa v. Al-Assad, 2013 WL 4401831, at *2 (N.D. Fla. Aug. 13, 2013)

(dismissing ATS claims against U.S. President, Congress, and U.S.

corporation, because “the violations at issue all occurred outside the

United States”); Giraldo v. Drummond Co., Inc., 2013 WL 3873960, at *8

(N.D. Ala. July 25, 2013) (granting summary judgment to U.S. defendants

on ATS claims, where “nothing” supported “Plaintiffs’ contention that

[defendant] made decisions in the United States”); Mwangi v. Bush, 2013

WL 3155018, at *4 (E.D. Ky. June 18, 2013) (noting that ATS claim

against former U.S. president could not proceed because all alleged

conduct occurred in Kenya); see also Doe v. Exxon Mobil Corp., __ F.

Supp. 3d __, 2014 WL 4746256, at *12, 14 (D.D.C. Sept. 23, 2014)

(“[T]he presumption against extraterritoriality is not displaced by a

defendant's U.S. citizenship alone.”); cf. Balintulo, 727 F.3d at 192–93

(declining to issue writ of mandamus ordering district court to dismiss

ATS claims against U.S. companies arising out of acts by their South

African subsidiaries, but explaining that, “[i]n all cases, . . . the ATS does

not permit claims based on illegal conduct that occurred entirely in the

32 MUJICA V. AIRSCAN

By contrast, in all of the post-Kiobel cases in which courts

have permitted ATS claims against U.S. defendants to go

forward, the plaintiffs have alleged that at least some of the

conduct relevant to their claims occurred in the United States.

See Al Shimari, 758 F.3d at 530–31 (holding that ATS claims

against U.S. corporation touched and concerned the United

States, where conduct occurred pursuant to a contract made

in the United States between defendant and the U.S.

government, and managers in the United States approved the

misconduct and attempted to cover it up); Krishanti v.

Rajaratnam, 2014 WL 1669873, at *10 (D.N.J. Apr. 28,

2014) (holding that Kiobel did not bar plaintiffs’ ATS claims

because they were based on “actions that occurred within the

United States”); Sexual Minorities Uganda v. Lively, 960 F.

Supp. 2d 304, 321 (D. Mass. 2013) (holding ATS claims

against U.S. citizen were not barred where alleged torts

occurred “to a substantial degree within the United States,

over many years, with only infrequent actual visits to

Uganda”); Mwani v. Bin Laden, 947 F. Supp. 2d 1, 5 (D.D.C.

2013) (holding that ATS claims touched and concerned the

United States because plaintiffs had “presented evidence that

territory of another sovereign”); Mamani v. Berzaín, 2014 WL 2069491,

at *11 (S.D. Fla. May 20, 2014) (holding that ATS claims against

defendants residing in the United States were barred because all conduct

relevant to claims “occurred on foreign soil”); In re S. African Apartheid

Litig., 2013 WL 6813877, at *2 (S.D.N.Y. Dec. 26, 2013) (ordering, in

case against U.S. corporations where all conduct alleged in original

complaint occurred abroad, that plaintiffs amend complaint to “plausibly

plead that . . . defendants engaged in actions that touch and concern the

United States”). But see Ahmed v. Magan, 2013 WL 4479077, at *2 (S.D.

Ohio Aug. 20, 2013) (holding in the alternative that presumption against

extraterritoriality was overcome by the fact that the defendant was a

lawful permanent resident of the United States).

MUJICA V. AIRSCAN 33

. . . overt acts in furtherance of [the defendants’] conspiracy

took place in the United States”).

Plaintiffs point to a legal opinion written by Attorney

General William Bradford in 1795 as evidence that “the ATS

could reach U.S. nationals extraterritorially under the right

circumstances.” In that Opinion, Attorney General Bradford

addressed a 1794 incident in which several American citizens

had joined in a French attack on the British colony of Sierra

Leone, in violation of the United States’ official position of

neutrality with respect to France and Britain. Bradford

commented that “there can be no doubt that the company or

individuals who have been injured by these acts of hostility

have a remedy by a civil suit in the courts of the United

States,” pursuant to the ATS. Breach of Neutrality, 1 U.S.

Op. Att’y Gen. 57 (1795).

The Bradford Opinion is too slender a reed, however, to

support the broad assertion of ATS jurisdiction that Plaintiffs

ask of us. The Supreme Court considered the Bradford

Opinion in Kiobel and found that it “defies a definitive

reading” and “hardly suffices to counter the weighty concerns

underlying the presumption against extraterritoriality.”

Kiobel, 133 S. Ct. at 1668. The Court went on to conclude

that “[n]othing about th[e] historical context” of the ATS,

taken as a whole (including not only the events described in

the Bradford Opinion but also other episodes

contemporaneous with the passage of the ATS), “suggests

that Congress . . . intended federal common law under the

ATS to provide a cause of action for conduct occurring in the

territory of another sovereign.” Id. at 1668–69.

Consequently, the Bradford Opinion cannot support

Plaintiffs’ claim that a defendant’s corporate U.S. citizenship

34 MUJICA V. AIRSCAN

is a sufficient connection with the United States to establish

ATS jurisdiction.12

We acknowledge that judges—including our dissenting

colleague in this case—have eloquently argued that the

United States has an obligation to provide redress for aliens

injured whenever American citizens or corporations violate

the law of nations. See, e.g., Cardona, 760 F.3d at 1193

(Martin, J., dissenting) (“The United States would fail to meet

the expectations of the international community were we to

allow U.S. citizens to travel to foreign shores and commit

violations of the law of nations with impunity.”). But we

agree with several of our sister circuits that this policy

argument is unavailing, as “the determination of foreign

policy goals and the means to achieve them is not for us.”

Cardona, 760 F.3d at 1191 (majority opinion); see also

Balintulo, 727 F.3d at 191–92. The federal courts cannot

exercise jurisdiction under the ATS beyond the limits that

Congress has prescribed, no matter how well-intentioned our

motives for doing so.

To conclude, Plaintiffs’ ATS claims against Defendants

are based solely on conduct that occurred in Colombia, and

the only nexus with the United States that Plaintiffs allege is

the fact that both Defendants are U.S. corporations. We hold

that these ATS claims do not touch and concern the territory

of the United States “with sufficient force to displace the

12

The dissent argues that, the Bradford Opinion aside, “the principle that

a sovereign may exercise jurisdiction to prescribe the conduct of its

nationals outside its territory is widely recognized.” But even if that is so,

the question before us is not whether the United States may regulate the

conduct of U.S. nationals abroad, but whether it has done so via the ATS.

Modern-day practices and norms do not help us answer that question.

MUJICA V. AIRSCAN 35

presumption against extraterritorial application,” Kiobel, 133

S. Ct. at 1669, and that they must be dismissed.

V. INTERNATIONAL COMITY

Finally, we dismiss Plaintiffs’ state-law claims based on

the doctrine of international comity. We do not reach any

other putative bases—whether constitutional or prudential—

for dismissing these claims.13 Cf. Bi v. Union Carbide

Chems. & Plastics Co., 984 F.2d 582, 584 (2d Cir. 1993).

The federal common law doctrine of international comity

is applicable to these state law claims notwithstanding the

general rule that federal courts apply California’s substantive

law when sitting in diversity. Erie R.R. Co. v. Tompkins,

13

For example, we do not decide whether a California court would

decline to reach these tort claims due to their extraterritorial nature, or

whether the federal foreign affairs doctrine would preclude a California

court from hearing these claims. See, e.g., Zschernig v. Miller, 389 U.S.

429, 440–41 (1968).

The dissent believes, as we do, that Plaintiffs’ state-law claims must

be dismissed, but it argues that it is inappropriate for us to consider the

international comity doctrine here before addressing the foreign affairs

doctrine, which was one of the district court’s original bases for

dismissing these claims (along with the political-question doctrine). We

disagree. We have not raised the question of international comity sua

sponte; the district court fully considered the comity doctrine and the issue

has been briefed and argued by both sides. As the dissent acknowledges,

we are permitted to affirm the district court’s decision on any ground

supported by the record, see, e.g., ASARCO, LLC v. Union Pac. R. Co.,

765 F.3d 999, 1004 (9th Cir. 2014), and we consider it important to

correct the district court’s conclusion that the international comity doctrine

is inapplicable to this sort of case. The dissent offers no persuasive reason

why our choice to address that issue is improper, other than its

disagreement with the merits of our comity analysis.

36 MUJICA V. AIRSCAN

304 U.S. 64 (1938). The Supreme Court has made an

exception to the Erie doctrine “when there are uniquely

federal interests at stake,” such as “litigation that implicates

the nation’s foreign relations.” Ungaro-Benages v. Dresdner

Bank AG, 379 F.3d 1227, 1232 (11th Cir. 2004). For

instance, “an issue concerned with a basic choice regarding

the competence and function of the Judiciary and the National

Executive in ordering our relationships with other members

of the international community must be treated exclusively as

an aspect of federal law.” Banco National de Cuba v.

Sabbatino, 376 U.S. 398, 425 (1964) (holding that the federal

common law act of state doctrine precluded a federal court

from considering a state law challenge to the Cuban

government’s expropriation of certain property). In a similar

vein, the federal foreign affairs doctrine requires federal

courts to dismiss state law claims based on their potential to

interfere with U.S. foreign relations. See Am. Ins. Ass’n v.

Garamendi, 539 U.S. 396, 401 (2003); Zschernig, 389 U.S.

at 440–41. For the same reason, we must consider the

applicability of the international comity doctrine to these state

law claims.

International comity “‘is the recognition which one nation

allows within its territory to the legislative, executive or

judicial acts of another nation, having due regard both to

international duty and convenience, and to the rights of its

own citizens or of other persons who are under the protection

of its laws.’” In re Simon, 153 F.3d 991, 998 (9th Cir. 1998)

(quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)); see also

Societe Nationale Industrielle Aerospatiale v. U.S. Dist.

Court for the S. Dist. of Iowa, 482 U.S. 522, 543 n.27 (1987)

(“Comity refers to the spirit of cooperation in which a

domestic tribunal approaches the resolution of cases touching

the laws and interests of other sovereign states.”); Black’s

MUJICA V. AIRSCAN 37

Law Dictionary 324 (10th ed. 2014) (defining “comity” as

“[a] practice among political entities (as countries, states, or

courts of different jurisdictions), involving esp[ecially]

mutual recognition of legislative, executive, and judicial

acts”).

Comity is not a rule expressly derived from international

law, the Constitution, federal statutes, or equity, but it draws

upon various doctrines and principles that, in turn, draw upon

all of those sources. It thus shares certain considerations with

international principles of sovereignty and territoriality;

constitutional doctrines such as the political question

doctrine; principles enacted into positive law such as the

Foreign Sovereign Immunities Act of 1976, 28 U.S.C.

§§ 1330, 1602, 1611 (2006); and judicial doctrines such as

forum non conveniens and prudential exhaustion.14 Comity

is a “rule of ‘practice, convenience, and expediency’ rather

than of law” that courts have embraced “to promote

cooperation and reciprocity with foreign lands.” Pravin

Banker Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d

850, 854 (2d Cir. 1997) (quoting Somportex Ltd. v. Phila.

Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971)).

14

“Case law equivocates between calling international comity a value

and a rule. As a value, it reflects the sense that cases affecting foreign

interests should be decided in a manner that accounts for these interests in

some way.” Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign

Relations Law, 116 Yale L.J. 1170, 1180 (2007). As a rule, courts “cite

international comity as an explanation for outcomes that are not explicitly

driven by” other international relations doctrines, such as

extraterritoriality, foreign sovereign immunity, the act of state doctrine,

and the Charming Betsy canon, which holds that “an ambiguous statute

will be interpreted to avoid conflicts with international law.” Id. at

1179–80.

38 MUJICA V. AIRSCAN

International comity is a doctrine of prudential abstention,

one that “counsels voluntary forbearance when a sovereign

which has a legitimate claim to jurisdiction concludes that a

second sovereign also has a legitimate claim to jurisdiction

under principles of international law.” United States v.

Nippon Paper Indus. Co., 109 F.3d 1, 8 (1st Cir. 1997). “The

doctrine has never been well-defined,” but comity “is clearly

concerned with maintaining amicable working relationships

between nations, a ‘shorthand for good neighbourliness,

common courtesy and mutual respect between those who

labour in adjoining judicial vineyards.’” JP Morgan Chase

Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418,

423 (2d Cir. 2005) (quoting British Airways Bd. v. Laker

Airways Ltd., [1984] E.C.C. 36, 41 (Eng. C.A.)).15

There are essentially “two distinct doctrines [which] are

often conflated under the heading ‘international comity.’” In

re S. African Apartheid Litig., 617 F. Supp. 2d 228, 283

(S.D.N.Y. 2009). The first is legislative or “prescriptive

comity,” which guides domestic courts as they decide the

extraterritorial reach of federal statutes. See Kiobel, 133 S. Ct.

at 1664; F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

542 U.S. 155, 165 (2004); see also Hartford Fire Ins. Co. v.

California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting)

(describing prescriptive comity as “the respect sovereign

nations afford each other by limiting the reach of their laws”);

15

See also Laker Airways Ltd. v. Sabena, Belgian World Airlines,

731 F.2d 909, 937 (D.C. Cir. 1984) (“‘Comity’ summarizes in a brief

word a complex and elusive concept—the degree of deference that a

domestic forum must pay to the act of a foreign government not otherwise

binding on the forum.”); Donald Earl Childress III, Comity as Conflict:

Resituating International Comity as Conflict of Laws, 44 U.C. Davis L.

Rev. 11, 13 (2010) (comity “is one of the most important, and yet least

understood, international law canons”).

MUJICA V. AIRSCAN 39

In re Maxwell Commc’n Corp. PLC by Homan, 93 F.3d 1036,

1047 (2d Cir. 1996) (describing prescriptive comity as a

“canon of [statutory] construction [that] might shorten the

reach of a [domestic] statute”).

The second strain of the doctrine is referred to as “comity

among courts” or adjudicatory comity, which “may be

viewed as a discretionary act of deference by a national court

to decline to exercise jurisdiction in a case properly

adjudicated in a foreign state.” Maxwell, 93 F.3d at 1047; see

also Hartford Fire, 509 U.S. at 817 (Scalia, J., dissenting)

(describing “comity of the courts” as a set of principles

“whereby judges decline to exercise jurisdiction over matters

more appropriately adjudged elsewhere”).16 Thus,

adjudicatory comity “involves . . . the discretion of a national

court to decline to exercise jurisdiction over a case before it

when that case is pending in a foreign court with proper

jurisdiction.” JP Morgan Chase Bank, 412 F.3d at 424. In

such a case, “deference to the foreign court is appropriate so

long as the foreign proceedings are procedurally fair and . . .

do not contravene the laws or public policy of the United

States.” Id.

16

Some commentators have identified other strains of international

comity, including so-called “executive comity,” which “provides the basis

for courts to invoke principles of deference to foreign sovereignty, as in

cases involving the Foreign Sovereign Immunities Act [ ] and act of state

doctrine,” see Childress III, supra, at 47, but only the first two are relevant

here.

40 MUJICA V. AIRSCAN

A. Standards for Applying Comity

1. Whether Adjudicatory Comity Requires a “True

Conflict”

The Supreme Court’s most recent most discussion of

international comity was in Hartford Fire, 509 U.S. at 798.

Hartford Fire did not explain, however, what factors we

should or must consider when addressing comity; in

particular, it left unclear whether a “true conflict” is a

predicate to prudential abstention on the grounds of comity.

The district court in the instant litigation held that, “at least in

the Ninth Circuit, the application of international comity is

generally limited to cases where there is a ‘true conflict’

between domestic and foreign law.” Mujica I, 381 F. Supp.

2d at 1155–56 (citing Hartford Fire, 509 U.S. at 794–95, and

In re Simon, 153 F.3d at 999). And Plaintiffs argue here that

“[t]he existence of a ‘true conflict’ is a threshold requirement

for abstention on international comity grounds,” and that “[i]n

this Court, . . . [the] rule is absolutely clear that application of

the law of international comity is limited to cases in which

there is in fact a true conflict between domestic and foreign

law.”

We do not think that Hartford Fire stands for the

proposition adopted by the district court and urged by

Plaintiffs. Hartford Fire involved the reach of U.S. antitrust

laws, which applied extraterritorially; in that case, the

question was whether a U.S. district court could exercise

jurisdiction over antitrust claims filed against a group of

London reinsurers. 509 U.S. at 769, 798–99. The London

reinsurers argued that, based on international comity, the

antitrust laws should not be read to extend to their activities,

which were regulated by British law. See id. at 797–98.

MUJICA V. AIRSCAN 41

The Supreme Court stated that the “only substantial

question in th[e] litigation” was “whether there [wa]s in fact

a true conflict between domestic and foreign law.” Id. at 798

(internal quotation marks omitted). The defendants argued

that applying federal antitrust laws would conflict with

British law because Britain had established its own

comprehensive regulatory regime for antitrust issues and the

defendants’ conduct was consistent with British law. Id. at

798–99. But the Court held that this situation did not qualify

as a “true conflict,” explaining that “[n]o conflict exists, for

these purposes, where a person subject to regulation by two

states can comply with the laws of both.” Id. at 799. (internal

quotation marks and citation omitted). And “[s]ince the

London reinsurers d[id] not argue that British law require[d]

them to act in some fashion prohibited by the law of the

United States, or claim that their compliance with the laws of

both countries [wa]s otherwise impossible, [the Court saw] no

conflict with British law.” Id. (internal quotation marks

omitted).

In light of the lack of conflict, the Court held that there

was “no need . . . to address other considerations that might

inform a decision to refrain from the exercise of jurisdiction

on grounds of international comity.” Id. Justice Scalia

dissented from that part of the opinion and pointed out that

“prescriptive comity” or “the practice of using international

law to limit the extraterritorial reach of statutes” was “firmly

established.” Id. at 817–18 (Scalia, J., dissenting).

Since the majority did not address the “other

considerations” bearing on comity, the Court’s Hartford Fire

analysis “left unclear whether it was saying that the only

relevant comity factor in that case was conflict with foreign

law . . . or whether the Court was more broadly rejecting

42 MUJICA V. AIRSCAN

balancing of comity interests in any case where there is no

true conflict.” Harold Hongju Koh, Transnational Litigation

in United States Courts 80 (2008). We think that Hartford

Fire does not require proof of a “true conflict” as a

prerequisite for invoking the doctrine of comity, at least in a

case involving adjudicatory comity. See id. (concluding that

since such a reading of the case “would be a much more

dramatic result for the Court to have reached sub silentio, I

am inclined to doubt that it meant to rule so broadly”).

Since Hartford Fire, the circuits have refined the Court’s

“true conflict” analysis and have generally required proof of

such a conflict only in cases where prescriptive comity is at

issue—that is, where a party claims that it is subject to

conflicting regulatory schemes, such as antitrust laws or

bankruptcy rules that apply extraterritorially.17 As the

Southern District of New York has observed, “[i]n post-

Hartford Fire cases, conflict analysis has not been rigidly

invoked to preclude consideration of the full range of

principles relating to international comity. Rather, conflict

analysis is most often applied when comity principles

intersect with issues of statutory construction.” Freund v.

Republic of Fr., 592 F. Supp. 2d 540, 574 (S.D.N.Y. 2008)

(citation omitted), aff’d sub nom. Freund v. Societe Nationale

des Chemins de fer Francais, 391 F. App’x 939 (2d Cir.

2010) (unpublished); see also, e.g., Maxwell, 93 F.3d at 1049

(requiring a “true conflict” in a bankruptcy case).

17

See generally Christen Broecker, The Clash of Obligations:

Exercising Extraterritorial Jurisdiction in Conformance with Transitional

Justice, 31 Loy. L.A. Int’l & Comp. L. Rev. 405, 454–56 (2009)

(describing how some jurisdictions require a true conflict before triggering

comity).

MUJICA V. AIRSCAN 43

By contrast, the courts have not required proof of a true

conflict—although they have considered such a conflict

relevant—when considering adjudicatory comity. Instead,

the courts have considered a range of factors when deciding

whether to abstain from exercising jurisdiction due to a past

or potential judicial proceeding elsewhere. See, e.g.,

Ungaro-Benages, 379 F.3d at 1238 (determining that a true

conflict was not required and examining “the strength of our

government’s interests in using the Foundation [established

to hear claims from victims of the Nazis], the strength of the

German government’s interests, and the adequacy of the

Foundation as an alternative forum”); Bigio v. Coca-Cola

Co., 448 F.3d 176, 178 (2d Cir. 2006) (“[T]he only issue of

international comity properly raised here is whether

adjudication of this case by a United States court would

offend ‘amicable working relationships’ with Egypt.”

(citations omitted)); JP Morgan Chase Bank, 412 F.3d at 424

(deference to foreign adjudicatory proceedings “is appropriate

so long as the foreign proceedings are procedurally fair and

. . . do not contravene the laws or public policy of the United

States”); Int’l Nutrition Co. v. Horphag Research Ltd.,

257 F.3d 1324, 1329 (Fed. Cir. 2001) (“As a general rule,

comity may be granted where it is shown that the foreign

court is a court of competent jurisdiction, and that the laws

and public policy of the forum state and the rights of its

residents will not be violated.” (quotation marks and internal

citation omitted)); Freund, 592 F. Supp. 2d at 574 (“[T]he

existence of a true conflict does not bar the Court from

applying the doctrine and considering other legitimate

concerns implicated by United States courts exercising

jurisdiction over a foreign sovereign.”). But see S. African

Apartheid Litig., 617 F. Supp. 2d at 283 (holding true conflict

analysis required in ATS suit against corporations that

conducted business in apartheid South Africa).

44 MUJICA V. AIRSCAN

Our own decision in In re Simon—a prescriptive comity

case—is consistent with this pattern. There, we considered

whether a bankruptcy court could sanction a foreign creditor

for pursuing collection of a foreign debt that had been

discharged in bankruptcy. 153 F.3d at 994. Although the

creditor (HSBC) was based in Hong Kong, it had participated

in the bankruptcy proceeding in the United States. Id. We

began our analysis with a discussion of the extraterritorial

application of U.S. law. Id. at 995. We concluded that

“Congress intended extraterritorial application of the

Bankruptcy Code as it applies to property of the estate.” Id.

at 996.

We then turned to whether we were “require[d]” by

comity to vacate the bankruptcy court’s injunction. Id. at 997.

We noted that “[i]nternational comity in transnational

insolvency proceedings must be considered in the context of

bankruptcy theory.” Id. at 998. We then explained that the

Bankruptcy Code “provides for a flexible approach to

international insolvencies” in which there is general

“deference to the country where the primary insolvency

proceeding is located.” Id. The “sole, plenary insolvency

proceeding” involving the debtor had been in the United

States. Id. at 999. Because there were no “competing

bankruptcy proceedings,”18 and because HSBC (which was

18

The dissent seizes upon this language to argue that In re Simon was

“not merely a prescriptive comity case,” but also an adjudicative-comity

case. We are unconvinced. The Simon court emphasized the lack of

“conflicting bankruptcy proceedings” in that case not because the court

was conducting an adjudicative comity analysis but because that fact

proved that HSBC was in no danger of being exposed to two conflicting

bankruptcy schemes—a prescriptive-comity concern. The dissent’s

argument on this point also ignores our post-Simon cases—cases that are

inconsistent with the dissent’s reading of Simon. See infra at 45–46.

MUJICA V. AIRSCAN 45

seeking to apply comity to avoid sanctions from the US

bankruptcy court) had participated in the US bankruptcy

proceeding and had enjoyed its benefits, we held that, under

the circumstances, international comity did “not dictate a

result contrary to that reached by the district and bankruptcy

courts. Rather, it [wa]s consistent with the general principles

of international comity which is limited to cases in which

‘there is in fact a true conflict between domestic and foreign

law.’” Id. (quoting Hartford Fire, 509 U.S. at 798 (quotation

marks and citation omitted)).

Simply put, we do not interpret In re Simon—which

referenced the concept of a “true conflict” in passing and in

the specialized context of a bankruptcy statute that applied

extraterritorially—to require proof of “true conflict” as an

irreducible minimum for abstention in all comity cases.

Our other post-Hartford Fire cases also suggest that proof

of “true conflict” is not a prerequisite to comity. In those

cases we took account of whether there was a conflict

between American and foreign law. Even when we did not

find a conflict, we did not end our inquiry but moved on to

consider other factors. For example, in Metro Industries, Inc.

v. Sammi Corp., 82 F.3d 839, 846–47 (9th Cir. 1996), we

found no conflict between American and Korean law, but

considered other factors to determine the reach of the

Sherman Act. We looked to seven factors we had previously

set out in Timberlane Lumber Co. v. Bank of America,

549 F.2d 597, 614 (9th Cir. 1976) (“Timberlane I”), for what

we called “a jurisdictional rule of reason.” Id. at 613. One of

the Timberlane I factors was a conflict between foreign and

domestic law. We noted that Hartford Fire overruled our

holding in Timberlane Lumber Co. v. Bank of Am., 749 F.2d

1378 (9th Cir. 1984) (“Timberlane II”), as to what “would

46 MUJICA V. AIRSCAN

amount to conflict of law,” but determined that Hartford Fire

“did not question the propriety of the jurisdictional rule of

reason or the seven comity factors set forth in Timberlane I.”

Metro Indus., 82 F.3d at 846 n.5.

Similarly, in In re Grand Jury Proceedings, 40 F.3d 959,

964–65 (9th Cir. 1994), we presumed that there was a

difference between a grand jury witness’s rights under

American law and his rights under Austrian law regarding the

privacy of his Austrian bank accounts. That conflict,

however was not the “true conflict” described by the Court in

Hartford Fire. The laws of Austria and the United States did

not require the witness to commit inconsistent acts; rather, he

had greater privacy rights under Austrian law than American

law, but it would not violate Austrian law for him to waive

those rights in response to an order from a U.S. court. Id. at

966. Thus, the witness could “comply with the laws of both.”

Hartford Fire, 509 U.S. at 799 (quotation marks and citation

omitted). Had we believed that proof of a “true conflict” was

required, that fact would have ended our inquiry. It did not.

Instead, we decided that “[i]n considering international

comity, we balance the competing interests of Austria and the

United States . . . to determine whether the purported

illegality of the order under Austrian law precludes its

enforcement.” In re Grand Jury Proceedings, 40 F.3d at 965.

As our decisions in In re Simon, Metro Industries, and In

re Grand Jury Proceedings demonstrate, we have not read

Hartford Fire as imposing a rigid new set of requirements for

finding comity. At least in cases considering adjudicatory

comity, we will consider whether there is a conflict between

American and foreign law as one factor in, rather than a

prerequisite to, the application of comity.

MUJICA V. AIRSCAN 47

Accordingly, the district court erred when it required the

existence of a true conflict when it analyzed the application

of international comity. And, since the district court did not

identify the correct legal rule, “we must conclude it abused its

discretion.” Hinkson, 585 F.3d at 1262; see also, e.g., Perry

v. Brown, 667 F.3d 1078, 1084 (9th Cir. 2012).

Having determined that a true conflict is not always

required for the application of adjudicatory comity and that

the district court abused its discretion in concluding

otherwise, we proceed to consider the proper framework for

analyzing comity.

2. Factors Bearing on Adjudicatory Comity

Beyond the question of true conflict, courts have

struggled to apply a consistent set of factors in their comity

analyses. As one commentator has observed, because there

is “no clear analytical framework for its exercise, . . . courts

have been left to cobble together their own approach to

[international comity].” Childress III, supra, at 51. The

district court in this case followed a three-part framework

articulated by the Eleventh Circuit in Ungaro-Benages for the

prospective application of international comity. See Mujica I,

381 F. Supp. 2d at 1160 (citing Ungaro-Benages, 379 F.3d at

1238)).19 Under Ungaro-Benages’ approach, a court

19

The Ungaro-Benages court articulated different standards for

“retrospective” and “prospective” claims of adjudicatory comity. “When

applied retrospectively, federal courts evaluate three factors: (1) whether

the foreign court was competent and used ‘proceedings consistent with

civilized jurisprudence,’ (2) whether the judgment was rendered by fraud,

and (3) whether the foreign judgment was prejudicial because it violated

American public policy notions of what is decent and just.” 379 F.3d at

48 MUJICA V. AIRSCAN

“evaluate[s] several factors, including [1] the strength of the

United States’ interest in using a foreign forum, [2] the

strength of the foreign governments’ interests, and [3] the

adequacy of the alternative forum.” Ungaro-Benages,

379 F.3d at 1238 (citations omitted).

The Ungaro-Benages framework is a useful starting point

for analyzing comity claims, but the case offers no

substantive standards for assessing its three factors. Ungaro-

Benages tells us to consider the respective interests of the

United States and the foreign country, but it does not tell us

what interests count or what makes a foreign forum adequate

or inadequate. See id. at 1238–39. For those considerations,

we may draw on our oft-cited opinion in Timberlane I. We

note that the criteria we considered in that antitrust

case20—which also influenced § 403, “Limitations on

Jurisdiction to Prescribe” of the Restatement (Third) of

1238 (citation omitted). We find it unnecessary to draw a distinction

between retrospective and prospective comity in this case.

20

Timberlane I articulated seven elements courts should weigh:

[1] the degree of conflict with foreign law or policy, [2]

the nationality or allegiance of the parties and the

locations or principal places of businesses or

corporations, [3] the extent to which enforcement by

either state can be expected to achieve compliance, [4]

the relative significance of effects on the United States

as compared with those elsewhere, [5] the extent to

which there is explicit purpose to harm or affect

American commerce, [6] the foreseeability of such

effect, and [7] the relative importance to the violations

charged of conduct within the United States as

compared with conduct abroad.

549 F.2d at 614.

MUJICA V. AIRSCAN 49

Foreign Relations Law,21 see Koh, supra, at 66—are better

adapted to the commercial context. Nevertheless, these

factors help provide us with a general list of indicia to which

we may look when weighing U.S. and foreign interests and

the adequacy of the alternative forum.

a. U.S. interests

The (nonexclusive) factors we should consider when

assessing U.S. interests include (1) the location of the conduct

in question, (2) the nationality of the parties, (3) the character

21

The Restatement lists a number of considerations for determining

whether the exercise of jurisdiction is “unreasonable,” including:

(a) the link of the activity to the territory of the

regulating state, i.e., the extent to which the activity

takes place within the territory, or has substantial,

direct, and foreseeable effect upon or in the territory;

(b) the connections, such as nationality, residence, or

economic activity, between the regulating state and the

person principally responsible for the activity to be

regulated, or between that state and those whom the

regulation is designed to protect; (c) the character of the

activity to be regulated, the importance of regulation to

the regulating state, the extent to which other states

regulate such activities, and the degree to which the

desirability of such regulation is generally accepted[;]

(d) the existence of justified expectations that might be

protected or hurt by the regulation; (e) the importance

of the regulation to the international political, legal, or

economic system; (f) the extent to which the regulation

is consistent with the traditions of the international

system; (g) the extent to which another state may have

an interest in regulating the activity; and (h) the

likelihood of conflict with regulation by another state.

Restatement (Third) of Foreign Relations Law § 403(2) (1987).

50 MUJICA V. AIRSCAN

of the conduct in question, (4) the foreign policy interests of

the United States, and (5) any public policy interests. When

some or all of a plaintiff’s claims arise under state law, the

state’s interests, if any, should be considered as well. The

doctrine of comity is particularly concerned with “sovereign

interests,” Childress III, supra, at 61–62, and the sovereign

whose interests are relevant when a federal court is hearing

state-law claims is as much the individual state—whose law

the federal court must faithfully apply—as the United

States.22 Cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938). See generally Restatement (Third) of Foreign

Relations Law § 403(2)(c) (courts considering whether

jurisdiction is reasonable should assess “the importance of

regulation to the regulating state” (emphasis added)). We

caution, however, that in cases of this kind there is always a

22

It bears mentioning that a state’s interest will not necessarily be in the

application of its own law to a case. Here, for example, although

Plaintiffs pled California causes of action, if the case were to proceed to

litigation, the district court would follow California’s conflict-of-laws

methodology, which calls for a governmental-interest analysis. See

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). That

analysis could favor the application of Colombia’s law rather than

California’s. See, e.g., Arno v. Club Med, Inc., 22 F.3d 1464, 1468 (9th

Cir. 1994) (under California’s governmental-interest analysis, French law,

rather than California law, applied to plaintiff’s tort claims against former

employer and supervisor); McGhee v. Arabian Am. Oil Co., 871 F.2d

1412, 1422–26 (9th Cir. 1989) (Saudi law, rather than California law,

applied to plaintiffs’ state-law claims against employer); Tucci v. Club

Mediterranee, S.A., 89 Cal. App. 4th 180, 194 (Ct. App. 2001)

(Dominican Republic law, rather than California law, applied to tort and

worker’s compensation claims); Hernandez v. Burger, 102 Cal. App. 3d

795, 804 (Ct. App. 1980) (Mexican law, rather than California law,

applied to personal-injury claims arising out of auto accident in Mexico).

Thus, in stating that a court sitting in diversity should consider the state’s

interests, we mean to refer primarily to the state’s interest, if any, in

providing a forum or remedy for particular claims.

MUJICA V. AIRSCAN 51

risk that “our foreign relations could be impaired by the

application of state laws, which do not necessarily reflect

national interests.” Ungaro-Benages, 379 F.3d at 1232–33.

Out of regard for that risk, we should be careful not to give

undue weight to states’ prerogatives.

We will discuss each of the foregoing factors in turn.

First, comity is most closely tied to the question of

territoriality. We should consider where the conduct in

question took place. This is a critical question in determining

the extraterritorial reach of U.S. statutes, see Kiobel, 133 S.

Ct. at 1663–65; Arabian Am. Oil, 499 U.S. at 248, and it is a

relevant consideration in adjudicatory comity as well. The

general presumption against extraterritorial application of

U.S. law recognizes that “United States law governs

domestically but does not rule the world.” Microsoft,

550 U.S. at 454. Comity similarly rests on respect for the

legal systems of members of the international legal

community—a kind of international federalism—and thus

“serves to protect against unintended clashes between our

laws and those of other nations which could result in

international discord.” Arabian Am. Oil, 499 U.S. at 248.

Not surprisingly, U.S. courts have afforded far less

weight, for comity purposes, to U.S. or state interests when

the activity at issue occurred abroad. See Torres v. S. Peru

Copper Corp., 965 F. Supp. 899, 909 (S.D. Tex. 1996)

(dismissing action under comity where the “activity and the

alleged harm occurred entirely in Peru [and] Plaintiffs are all

residents of Peru”), aff’d, 113 F.3d 540 (5th Cir. 1997);

Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S.D. Tex.

1994) (declining jurisdiction under comity where challenged

activity occurred entirely in Ecuador); see also Chowdhury v.

52 MUJICA V. AIRSCAN

Worldtel Bangl. Holding, Ltd., 746 F.3d 42, 49 (2d Cir. 2014)

(reversing lower court and foreclosing jurisdiction over ATS

claims filed by Bangladeshi plaintiff allegedly detained and

tortured by Bangladeshi authorities in Bangladesh). See

generally Koh, supra, at 18–19, 51–57 (describing courts’

aversion to adjudicating extraterritorially as rooted in

principle of national sovereignty).

Second, we should take account of whether any of the

parties are United States citizens or nationals, and also

whether they are citizens of the relevant state. See Jota v.

Texaco, Inc., 157 F.3d 153, 155 (2d Cir. 1998) (vacating

dismissal, on forum non conveniens, comity, and failure to

join indispensable party grounds, of action by Ecuadorians

against American oil company for injuries that allegedly

resulted from action in Ecuador); Reebok Int’l, Ltd. v.

Marnatech Enters., Inc., 970 F.2d 552, 556–57 (9th Cir.

1992) (holding that U.S. courts have jurisdiction where some

parties were U.S. corporations and U.S. persons and other

non-nationals had substantial contacts with the United States).

As we previously discussed in the context of the ATS, even

if the presence of U.S. nationals as defendants does not

establish jurisdiction in this country on its own, it can, as we

have noted, contribute to a finding that there is a “nexus”

between the United States and the parties and claims in a

case. See supra; see also, e.g., Sarei v. Rio Tinto PLC (“Sarei

III”), 650 F. Supp. 2d 1004, 1016 (C.D. Cal. 2009), aff’d in

part, rev'd in part and remanded, 671 F.3d 736 (9th Cir.

2011), cert. granted, judgment vacated sub nom. Rio Tinto

PLC v. Sarei, 133 S. Ct. 1995 (2013) and aff’d, 722 F.3d

1109 (9th Cir. 2013).

Kiobel and the lower-court decisions that have followed

in its wake confirm the importance of these first two factors

MUJICA V. AIRSCAN 53

to courts’ jurisdictional analyses in cases involving

international events. While Kiobel and its progeny

specifically address the interpretation of a statute—the

ATS—and not the prudential international comity doctrine,

the guiding principle of those cases applies equally in the

context of adjudicatory comity: the weaker the nexus between

the challenged conduct and U.S. territory or U.S. parties, the

weaker the justification for adjudicating the matter in U.S.

courts and applying U.S. federal or state law.

The third factor we should consider bearing on U.S.

interests is the nature of the conduct in question. We should

ask whether the action is civil or criminal; whether it sounds

in tort, contract, or property; and whether the conduct is a

regulatory violation or is a violation of international norms

against torture, war crimes, or slavery. See Sosa v.

Alvarez-Machain, 542 U.S. 692, 731–33 (2004); Filartiga v.

Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980). These

inquiries may inform our judgment of the importance of the

issue to the United States or to an individual state. The closer

the connection between the conduct and core prerogatives of

the sovereign, the stronger that sovereign’s interest. For

example, in Timberlane I, which was an antitrust case, we

considered “the relative significance of effects on the United

States as compared with those elsewhere, the extent to which

there is explicit purpose to harm or affect American

commerce, . . . and the relative importance to the violations

charged of conduct within the United States as compared with

conduct abroad.” Timberlane I, 549 F.2d at 614.

Fourth, we must take cognizance of the foreign policy

interests of the United States. As we do when applying the

political question, act of state, and foreign affairs doctrines,

we must respect the Constitution’s commitment of the foreign

54 MUJICA V. AIRSCAN

affairs authority to the political branches. U.S. Const. art. I,

§ 8, cl. 3 (“The Congress shall have Power . . . To regulate

Commerce with foreign Nations”); art. II, § 2 (“[The

President] shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties . . . and he . . . shall

appoint Ambassadors, other public Ministers and Consuls);

art. II, § 3 (“[The President] shall receive Ambassadors and

other public Ministers”). See Garamendi, 539 U.S. at

413–15; Japan Line, Ltd. v. Cnty. of Los Angeles, 441 U.S.

434, 449 (1979); Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 427 (1964); Baker, 369 U.S. at 211.

Courts have found that U.S. interests weigh against

hearing cases where doing so would be harmful to U.S.

foreign policy. See Hwang Geum Joo v. Japan, 413 F.3d 45,

52 (D.C. Cir. 2005) (dismissing as nonjusticiable ATS claims

brought by Korean women in light of U.S government’s

argument that “adjudication by a domestic court not only

would undo a settled foreign policy of state-to-state

negotiation with Japan, but also could disrupt Japan’s delicate

relations with China and Korea, thereby creating serious

implications for stability in the region” (internal quotation

marks omitted)); Ungaro-Benages, 379 F.3d at 1239

(abstaining in light of strong foreign policy interest in

promoting settlement of Nazi-era claims through

government-backed forum); O.N.E. Shipping Ltd. v. Flota

Mercante Grancolombiana, S.A., 830 F.2d 449, 451 (2d Cir.

1987) (affirming dismissal where district court concluded that

U.S.-Colombian relations would likely suffer if U.S. litigation

proceeded in light of foreign state’s “strong interest” in

relevant protectionist legislation and ownership interest in

defendant). This deference is rooted, in part, in separation of

power concerns. See Christopher v. Harbury, 536 U.S. 403,

417 (2002) (dismissing claim by Guatemalan widow alleging

MUJICA V. AIRSCAN 55

federal officers concealed information about her husband’s

fate and holding that “if there is to be judicial enquiry, it will

raise concerns for the separation of powers in trenching on

matters committed to the other branches”).

Fifth, we may also weigh U.S. public policy interests, and

those of the relevant state to a lesser extent, for “courts will

not extend comity to foreign proceedings when doing so

would be contrary to the policies . . . of the United States.”

Pravin, 109 F.3d at 854. For example, we have held that

there is a strong U.S. interest justifying U.S. jurisdiction in

“preventing trademark violations,” Reebok Int’l, 970 F.2d at

556, and we have spoken of the strong U.S. policy favoring

enforcement of arbitration and forum selection clauses. See

Dependable Highway Exp. v. Navigators Ins. Co., 489 F.3d

1059, 1068–69 (9th Cir. 2007). The Second Circuit has also

refused to extend international comity to a foreign state’s debt

negotiations as contrary to American policy because the

United States “encourages participation in, and advocates

success of” such debt resolution procedures, and the United

States “has a strong interest in ensuring the enforceability of

valid debts . . . owed to United States lenders.” Pravin,

109 F.3d at 855.

We have treated differences in legal approach cautiously,

however. Even when foreign practices may differ from

American ones, we will respect those differences so long as

the variance does not violate strongly-held state or federal

public policy. See Belize Telecom, Ltd. v. Gov’t of Belize,

528 F.3d 1298, 1307 (11th Cir. 2008) (holding that decision

allowing Government of Belize to remove directors of

telecom company did not “violate[] American public policy”

where decision “merely g[ave] effect to the plain language”

56 MUJICA V. AIRSCAN

of corporate articles of incorporation, which were interpreted

under Belizean law).

b. Foreign interests

The proper analysis of foreign interests essentially mirrors

the consideration of U.S. interests. Foreign states, no less

than the United States, have legitimate interests in regulating

conduct that occurs within their borders, involves their

nationals, impacts their public and foreign policies, and

implicates universal norms. See Mich. Cmty. Servs., Inc. v.

NLRB, 309 F.3d 348, 356 (6th Cir. 2002).

Accordingly, courts have considered the territoriality of

the questioned activity, its effects, the nationality of the

parties, and the interests of the foreign state when deciding

whether to exercise jurisdiction. See Jota, 157 F.3d at 160

(holding that deference to foreign state’s position on matters

that took place within its territory is “inherent in the concept

of comity”); see also Sequihua, 847 F. Supp. at 62 (declining

jurisdiction in part because of Ecuador’s “official[]” protest

that the litigation “will do ‘violence’ to the international legal

system”).

To illustrate, in Bi, the Second Circuit held that individual

victims of the Bhopal gas leak disaster in India, which

harmed almost exclusively Indians, did not have standing to

challenge a settlement reached between India and the

company responsible for the tort in light of an Indian law

granting the Indian government exclusive standing to

represent victims of the disaster. 984 F.2d at 586 (declining

“to pass judgment on the validity of India’s response to a

disaster that occurred within its borders” because doing so

“would disrupt our relations with that country and frustrate

MUJICA V. AIRSCAN 57

the efforts of the international community to develop methods

to deal with problems of this magnitude in the future”); see

also, e.g., Freund, 592 F. Supp. at 578 (declining jurisdiction

where “Plaintiffs’ claims [we]re inextricably connected to

France”).

c. The adequacy of the forum

The interests of the United States and the foreign

government must be evaluated in light of the adequacy of the

foreign forum. When it comes to the adequacy of the forum,

courts consider decisions rendered by the alternative forum

and ask “‘(1) whether the judgment was rendered via fraud;

(2) whether the judgment was rendered by a competent court

utilizing proceedings consistent with civilized jurisprudence;

and (3) whether the foreign judgment is prejudicial [and] . . .

repugnant to fundamental principles of what is decent and

just.’” Belize Telecom, 528 F.3d at 1306 (quoting Turner

Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1519 (11th

Cir. 1994)). Typically, courts ask whether one side has

presented specific evidence that the judgment of the

alternative forum was significantly inadequate. See id. (“In

this case, neither party has argued that the Belizean

judgments were rendered via fraud or that the Belizean

proceedings lacked any element of civilized jurisprudence.”).

The Second Circuit, for example, has held that deference

to the judgment of a “foreign court is appropriate so long as

the foreign proceedings are procedurally fair and . . . do not

contravene the laws or public policy of the United States.” JP

Morgan Chase Bank, 412 F.3d at 424. In that case, the court

deferred to the jurisdiction of the Mexican courts even though

there was a six-year delay in resolving the litigation, since

such a delay did not result in “manifest injustice” or violate

58 MUJICA V. AIRSCAN

“fundamental standards of procedural fairness.” Id. at 428

(internal quotation marks omitted); see also Jota, 157 F.3d at

160 (“When a court dismisses on the ground of comity, it

should normally consider whether an adequate forum exists

in the objecting nation and whether the defendant sought to

be sued in the United States forum is subject to or has

consented to the assertion of jurisdiction . . . in the foreign

forum.”); U.S. ex rel. Saroop v. Garcia, 109 F.3d 165, 170

(3d Cir. 1997) (invoking comity to defer to foreign court on

validity of extradition treaty absent assertion that foreign state

failed to follow regular judicial proceedings, engaged in

prejudicial or fraudulent practices, or refused to extend

deference to United States’ judicial findings).23

We are justly proud of our legal system. But we

recognize that there are other legal systems that have

effected, in different ways, our constitutional values of

separation of powers, due process of law, and the equal

protection of the law. Comity, as the “golden rule among

nations,” compels us to “give the respect to the laws, policies

and interests of others that [we] would have others give to

[our] own in the same or similar circumstances.” Mich.

Cmty. Servs., Inc., 309 F.3d at 356 (internal quotation marks

omitted).

23

Our decision in the context of the Hague Convention on the Civil

Aspects of International Child Abduction is not contrary to these

principles. In Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009), we

held that a Greek court’s decision that a child’s mother had not wrongly

retained a child was not entitled to comity because the Greek court clearly

misapplied the provisions of the Hague Convention, completely failed to

determine the child’s habitual residence, as required by the Hague

analysis, and made no factual findings to support its determination that the

father had failed to exercise custody rights. Id. at 1016–17.

MUJICA V. AIRSCAN 59

Accordingly, we proceed under the Ungaro-Benages

framework as we have elaborated it from the case law,

mindful that comity is circumstance-dependent and not

susceptible to mechanical application. “Since comity varies

according to the factual circumstances surrounding each

claim for its recognition, the absolute boundaries of the duties

it imposes are inherently uncertain.” Laker Airways, 731 F.2d

at 937.

B. Analysis

1. U.S. Interests

At first blush, the United States’s interests in this case

appear to be mixed. On the one hand, as we have explained,

the conduct complained of—Occidental and AirScan’s

alleged cooperation with the CAF in the bombing at Santo

Domingo—took place entirely in Colombia. Plaintiffs have

not adequately pled any factual matter suggesting that any

planning or operations took place in the United States. All

the Plaintiffs, moreover, are or were Colombian citizens and

residents at the time of the bombings. Cf. Balintulo, 727 F.3d

at 189. On the other hand, the United States has an interest in

upholding international human rights norms, and Plaintiffs

allege that Defendants’ actions violated international norms

in several respects. See Sarei III, 650 F. Supp. 2d at

1020–21. Occidental and AirScan, moreover, are U.S.-

chartered corporations, with Occidental a citizen of

California, and the United States has manifested some level

of interest in the good behavior of its corporate citizens

abroad, see, e.g., Foreign Corrupt Practices Act, 15 U.S.C.

§ 78dd–1, although the United States does not monitor or

regulate all the behavior of its citizens, natural or corporate,

60 MUJICA V. AIRSCAN

overseas. See Microsoft Corp., 550 U.S. at 454; Morrison,

547 F.3d 167, 174 (2d Cir. 2008).

The United States, however, has spoken directly on the

question of its interests in this case. The district court

particularly credited the State Department’s Supplemental

SOI and concluded it was “strong evidence that the United

States, in the interest of preserving its diplomatic relationship

with Colombia, prefers that the instant case be handled

exclusively by the Colombian justice system.” Mujica I,

381 F. Supp. 2d at 1161. The SOI, dated December 23, 2004,

articulated several reasons why “the State Department

believes that the adjudication of this case will have an adverse

impact on the foreign policy interests of the United States.”

First, it referenced the related actions which were then

ongoing in Colombia against the Colombian government and

military personnel regarding the incident. It noted that the

American companies that are the subject of the instant suit

were not then subject to the suits in the Colombian courts, but

it added that Occidental had stipulated to service and

consented to jurisdiction in Colombia.

Second, the State Department wrote that it “believe[d]

that foreign courts generally should resolve disputes arising

in foreign countries, where such courts reasonably have

jurisdiction and are capable of resolving them fairly. An

important part of our foreign policy is to encourage other

countries to establish responsible legal mechanisms for

addressing and resolving alleged human rights abuses.” It

warned that the instant case could give the impression that the

U.S. government “does not recognize the legitimacy of

Colombian judicial institutions” and that those “perceptions

could potentially have negative consequences for our bilateral

relationship with the Colombian government.” The State

MUJICA V. AIRSCAN 61

Department praised Colombia as one of the United States’

“closest allies in this hemisphere,” and it warned that lawsuits

like this one “have the potential for deterring present and

future U.S. investment in Colombia.” Finally, the letter

explained that “reduced U.S. investment in Colombia’s oil

industry” might, in turn, “detract from the vital U.S. policy

goal of expanding and diversifying our sources of imported

oil.”

The United States reiterated these interests in its amicus

brief during the initial appeal. It wrote that “the particular

foreign policy interests identified by the United States’

Supplemental Statement of Interest warrant dismissal of the

litigation under the doctrine of international comity.” The

amicus brief went on to argue that the “district court properly

recognized the ‘substantial interest’ of the United States and

the ‘strong interest’ of our regional ally, Colombia, in having

the lawfulness of military action reportedly taken by

Colombian military officials in the course of fighting

insurgents in that country adjudicated exclusively in

Colombian courts.” It also noted the favorable judgment the

victims of the attack received from the Colombian

government that was then on appeal and has now been

affirmed. There is nothing to suggest that the State

Department has since changed its views.

The Supreme Court has said that “should the State

Department choose to express its opinion on the implications

of exercising jurisdiction over particular petitioners in

connection with their alleged conduct, that opinion might

well be entitled to deference as the considered judgment of

the Executive on a particular question of foreign policy.”

Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004); see

Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57, 74

62 MUJICA V. AIRSCAN

(2d Cir. 2005) (crediting U.S. government’s expression of

interests when dismissing as nonjusticiable under the political

question doctrine claims brought against Austria).

That guidance is particularly apt here. This is not a case

in which the State Department has issued no SOI or an

equivocal SOI and the United States’ position might be less

entitled to deference. See, e.g., Gross, 456 F.3d at 389–90

(declining to defer to U.S. government’s preference where

“the United States Executive has taken no position on the

merits of this dispute, and has not promised dismissal or

intervention.”). Here, the State Department asked for the case

to be dismissed, first by strong implication in the SOI, and

then explicitly in its amicus brief, which urged the affirmance

of the district court’s judgment of dismissal. Accordingly, we

“give serious weight to the Executive Branch’s view of [this]

case’s impact on foreign policy,” Sosa, 542 U.S. at 733 n.21,

and we conclude that the United States’ interest in having the

case adjudicated exclusively in Colombia is strong.

California’s interest in this case weighs somewhat more

in favor of our adjudicating Plaintiffs’ claims than does the

United States’ national interest. We have previously

acknowledged, for example, that California has a “significant

interest in providing a forum for those harmed by the actions

of its corporate citizens.” Carijano, 643 F.3d at 1232. But

this interest is a general interest in good corporate behavior24

24

Were California to manifest a specific interest in redressing claims

arising out of the Santo Domingo incident or in Colombia’s drug wars

more generally, its interests could well be preempted by the political

branches’ foreign affairs power. “‘[E]ven in [the] absence of a treaty” or

federal statute, a state may violate the constitution by ‘establish [ing] its

own foreign policy.’” Deutsch v. Turner Corp., 324 F.3d 692, 709 (9th

Cir. 2003) (quoting Zschernig v. Miller, 389 U.S. at 441); see also

MUJICA V. AIRSCAN 63

and should not be overstated, given that Plaintiffs are not

California citizens, that their claims concern events that

occurred abroad, and that one Defendant (AirScan) is not a

California resident corporation. See Saleh v. Titan Corp.,

580 F.3d 1, 12 (D.C. Cir. 2009) (commenting, in state-law

tort case brought against by foreign plaintiffs and arising out

of events in foreign country, that “the interests of any U.S.

state . . . are de minimis in this dispute”). In any event,

California’s interest in having this case adjudicated here

scarcely outweighs the United States’ unambiguous

preference to the contrary. As the Supreme Court has stated,

“[t]here is . . . no question that at some point an exercise of

state power that touches on foreign relations must yield to the

National Government’s policy.” Garamendi, 539 U.S. at

413–14. In light of the forcefully expressed views of the

State Department, we conclude that that point has clearly

been reached in this case.

2. Colombian Interests

We next consider the strength of Colombia’s interest in

litigating the matter. See Ungaro-Benages, 379 F.3d at 1238.

As in Bi, the activity here occurred exclusively within the

territory of a foreign state and involved solely foreign

victims. 984 F.2d at 586. Although Defendants are U.S.

corporations, the district court correctly concluded that

“Colombia has a strong interest in preventing this Court’s

jurisdiction over the instant case.” Mujica I, 381 F. Supp. 2d

at 1162. The court came to that conclusion after considering

one of the two démarches from the Colombian Ministry of

Foreign Affairs that were attached to the SOI. Id. Both

Garamendi, 539 U.S. at 396; Movsesian v. Victoria Versicherung AG,

670 F.3d 1067, 1071–72 (9th Cir. 2012).

64 MUJICA V. AIRSCAN

démarches referenced, by case number, the instant matter’s

district court litigation. The first démarche, dated February

25, 2004, informed the U.S. Embassy in Bogota that “the

Colombian judiciary in accordance with the principle of

territoriality” was investigating the Santo Domingo bombing

and assessing “the responsibility of agents of the Colombian

Government” who were involved in it. The second

démarche, dated March 12, 2004, stated simply: “The

Ministry of Foreign Affairs wishes to add that the

Government of Colombia is of the opinion that any decision

in this case may affect the relations between Colombia and

the US.” While the second démarche did not explain why

Colombia holds this position, the SOI surmised that

Colombia had a strong interest in avoiding duplicative

litigation that “may be seen as unwarranted and intrusive” or

would show disrespect for the “legitimacy of Colombian

judicial institutions.” In any event, as the district court

observed, the Colombian government does not have “to

explain itself to a federal court.” Mujica I, 381 F. Supp. 2d at

1162.

Although Colombia’s position is not detailed, “inherent

in the concept of comity is the desirability of having the

courts of one nation accord deference to the official position

of a foreign state, at least when the position is expressed on

matters concerning actions of the foreign state taken within

or with respect to its own territory.” Jota, 157 F.3d at 160.

Here, Colombia has done exactly that—it has taken a specific

position on an incident that occurred within its territory

involving its nationals. See also Freund, 592 F. Supp. 2d at

578 (crediting the official position of both the United States

and France that France should be the “exclusive” forum for

addressing plaintiffs claims where the underlying act

occurred in France).

MUJICA V. AIRSCAN 65

This situation thus stands in clear contrast to other cases

where a foreign state did not express an interest in having its

courts serve as a forum for relevant litigation. See Abad v.

Bayer Corp., 563 F.3d 663, 668 (7th Cir. 2009) (“[N]either

[Argentina nor the United States] appears to have any interest

in having the litigation tried in its courts rather than in the

courts of the other country; certainly no one in the

government of either country has expressed to us a desire to

have these lawsuits litigated in its courts.”); Pacheco de Perez

v. AT&T Co., 139 F.3d 1368, 1378 (11th Cir. 1998) (“[W]e

think it significant . . . that the Venezuelan government has

taken no position on whether this lawsuit proceeds in the

United States or Venezuela.”).

Under the comity doctrine, we seek “to foster

international cooperation and encourage reciprocal

recognition of U.S. judgments in foreign courts.” United

States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1,

8 (D.D.C. 2013) (citing Oetjen v. Cent. Leather Co., 246 U.S.

297, 304 (1918) (“To permit the validity of the acts of one

sovereign state to be reexamined and perhaps condemned by

the courts of another would very certainly imperil the

amicable relations between governments and vex the peace of

nations.”)).

Accordingly, we find that Colombia’s interest in serving

as the exclusive forum for this litigation is strong.

3. Adequacy of the Colombian Forum

Finally, we turn to the adequacy of the foreign forum.

Ungaro-Benages, 379 F.3d at 1238. The district court (Judge

Rea) originally reasoned that “federal courts will not review

foreign judgments unless the parties challenging that

66 MUJICA V. AIRSCAN

judgment demonstrate that it was unfair.” Mujica I, 381 F.

Supp. 2d at 1163 (citing Hilton, 159 U.S. at 202–03). It held

that the showing of an “adequate alternative forum” was a

“necessary condition to apply the doctrine of international

comity.” Id. It then concluded that Colombia was an

inadequate forum because Colombian law would not permit

a second recovery in addition to the judgment Plaintiffs won

against the Colombian government in Mario Galvis Gelves,

et al. v. The Nation. See id. at 1147–48.

On remand in 2010, we directed the district court (Judge

Wu) to consider the prudential exhaustion issue and the effect

of the Galvis Gelves and Romero Pradilla matters, a directive

which necessarily required it to reevaluate the adequacy of

the alternative forum. With the benefit of the subsequent

Colombian decisions, Judge Wu came to a different

conclusion than Judge Rea.

As an initial matter, Judge Wu applied a burden-shifting

standard: once a defendant shows that a foreign forum would

have jurisdiction and would provide a remedy for a

meritorious claim, the party “asserting inadequacy or delay

must make a powerful showing.” Tuazon v. R.J. Reynolds

Tobacco Co., 433 F.3d 1163, 1179 (9th Cir. 2006); see also

Carijano v. Occidental Petroleum, Corp., 643 F.3d 1216,

1225 (9th Cir. 2011) (holding Peru provided an adequate

alternative forum in action brought by members of Peruvian

indigenous group and California nonprofit against petroleum

company for environmental contamination).25

25

These cases determined the adequacy of the alternative forum for

forum non conveniens purposes, although this analysis is “equally

pertinent to dismissal on the grounds of comity.” Jota, 157 F.3d at 160;

see also Ford v. Brown, 319 F.3d 1302, 1304 n.3 (11th Cir. 2003) (noting

MUJICA V. AIRSCAN 67

Under this standard, the district court held that

“Occidental seems to have met its initial burden of showing

the availability of local remedies.” In particular, Occidental

had consented to jurisdiction in Colombia, and Plaintiffs

could have proceeded in a separate suit against Defendants in

Colombia at the time of their initial Colombian litigation.

The court reviewed Plaintiffs’ assertion that they could not

practically have brought suit in Colombia because they feared

physical danger and had fled. The court noted that

Occidental “at least refuted some of Plaintiffs’ contentions

regarding the threats to their physical safety.” It found that

Plaintiffs had “pursue[d] a suit in Colombia for years, [had]

filed court papers in Colombia with names, addresses, and

telephone numbers, and [that] two of the Plaintiffs [had]

posed for photos in connection with a 2003 newspaper

interview in Colombia.” The court cited evidence in the

record that showed that Plaintiffs could have filed their case

directly in Bogota if they felt unsafe in Santo Domingo. It

also noted that Plaintiffs did not have to be physically present

in Colombia to pursue litigation against Defendants. The

court concluded that Plaintiffs had not made a “powerful

showing” that the foreign forum would be inadequate.

Accordingly, “[i]f exhaustion were required, Occidental

would probably prevail on its demonstration of availability of

local remedies and the lack of futility.” The court concluded

that prudential exhaustion was not required in the case but

that, if it were to impose such a requirement, “it would find

that Defendant Occidental ha[d] met its burden of pleading

and proving the availability of local remedies and Plaintiffs’

failure to exhaust them.”

that comity and forum non conveniens calculuses are “ultimately

intertwined”).

68 MUJICA V. AIRSCAN

We credit Judge Wu’s finding of adequacy as superseding

the earlier, contrary finding.26 Defendants, in their previous

filings and again before us, have averred that they are

available for service of process and would waive any statute

of limitations claims if Plaintiffs were to bring action against

them in Colombian courts.27 And “Occidental’s ‘voluntary

submission to service of process’ suffices to meet the first

26

The dissent takes us to task for our reliance on Judge Wu’s findings,

dismissing Judge Wu’s determination of adequacy as “merely dictum” and

the findings of a “substitute district judge.” But while we acknowledge

that Judge Wu’s analysis was not addressed to the international comity

doctrine, as Judge Rea’s was, we cannot accept the dissent’s contention

that we should therefore privilege Judge Rea’s findings, which were based

on a less complete record. Judge Wu was able to take into account new

and important information that was unavailable to Judge Rea—namely,

the subsequent developments in the Colombian proceedings—and his

opinion is a valuable source of insight on this issue. The dissent does not

and cannot offer any persuasive reason for ignoring Judge Wu’s opinion.

27

The dissent dismisses these statements, arguing that there is “no basis”

for the idea that Defendants would actually have submitted to jurisdiction

in Colombia if they had been joined in the litigation there. But there is

ample reason why they might have done so. Civil defendants often make

such concessions in cases where they face a choice between litigating in

an inconvenient and unattractive forum in the United States or a

convenient forum abroad. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S.

235, 242 (1981) (in case involving airplane crash in Scotland, defendants

“agreed to submit to the jurisdiction of the Scottish courts and to waive

any statute of limitations defense that might be available”); Loya v.

Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 664 (9th Cir.

2009) (holding that Mexico was an adequate forum for forum non

conveniens purposes, where “all defendants agreed to accept service,

submit to [Mexican] jurisdiction, and waive any statute of limitations

defenses”). Had Defendants resisted jurisdiction in Colombia, they would

have substantially weakened their position with respect to issues such as

forum non conveniens and international comity if they were subsequently

sued in the United States.

MUJICA V. AIRSCAN 69

requirement for establishing an adequate alternative forum.”

Carijano, 643 F.3d at 1225 (quoting Tuazon, 433 F.3d at

1178); see also Bigio, 239 F.3d at 454 (suggesting that the

existence of an alternate forum, and defendant’s amenability

to suit in foreign jurisdiction, should be considered in comity

analysis).

Considering the significant success Plaintiffs have had in

litigation against the Colombian government and the

convictions Colombia secured against the individuals

responsible for the Santo Domingo bombing, Plaintiffs have

not made a “powerful showing” that the Colombian forum is

“clearly unsatisfactory.” Piper Aircraft Co. v. Reyno,

454 U.S. 235, 254 n. 22 (1981) (noting such a circumstance

is “rare”); see Lueck v. Sundstrand Corp., 236 F.3d 1137,

1144 (9th Cir. 2001) (“The effect of Piper Aircraft is that a

foreign forum will be deemed adequate unless it offers no

practical remedy for the plaintiff’s complained of wrong.”).

To the contrary, the Colombian legal system addressed the

Santo Domingo incident in two ways: through criminal

sanctions and civil reparations.

Relying on the expert testimony in the record, we

conclude that Plaintiffs could have originally sued

Defendants in Colombia when they sued the government, but

they chose not to do so. Plaintiffs pursued litigation against

the Colombian government despite fears of physical danger

and, even conceding Plaintiffs’ legitimate fears, they “have

not shown that their ‘physical presence in [Colombia] is

required to pursue the civil action.” Argueta v. Banco

Mexicano, S.A., 87 F.3d 320, 327 (9th Cir. 1996).

Nor is there anything in the record to suggest that the

Colombian courts’ decisions resulted in “manifest injustice”

70 MUJICA V. AIRSCAN

or violated “fundamental standards of procedural fairness.”

JP Morgan Chase Bank, 412 F.3d at 428; see also LG

Display Co. Ltd. v. Obayashi Seikou Co., Ltd., 919 F. Supp.

2d 17, 30–31 (D.D.C. 2013) (holding that a judgment is

repugnant to U.S. policy, such that it may be denied comity,

only if it tends to undermine the public interest, the public

confidence in the administration of the law, or security for

individual rights of personal liberty or of private property);

Collins v. Oilsands Quest, Inc., 484 B.R. 593, 597 (S.D.N.Y.

2012) (“[A] foreign judgment should generally be accorded

comity if its proceedings are ‘fair and impartial.’”).

In light of Plaintiffs’ substantial victory against the

Colombian government, they are barred by Colombian law

from a secondary recovery from Defendants. But Colombia’s

single-recovery rule does not render the forum inadequate.

See Piper Aircraft Co., 454 U.S. at 254–55 (noting that a

forum can be adequate even where there is the potential for

a smaller damage award); Ungaro-Benages, 379 F.3d at 1239

(“The [alternative forum] offers victims of the Nazi era

adequate remedy, even if [it] cannot provide as substantial an

award as American courts.”); Gonzalez v. Chrysler Corp.,

301 F.3d 377, 381–82 (5th Cir. 2002) (invoking comity to

hold that Mexican courts are not inadequate under doctrine of

forum non conveniens because cap on damages effectively

bars lawsuit for wrongful death of a child); see also Bi,

984 F.2d at 586 (deferring to Indian jurisdiction addressing

mass tort); cf. Freund, 592 F. Supp. 2d at 576 (holding

alternate forum adequate even though “[n]o amount of money

can possibly be fair under [these] circumstances” (alterations

in original) (internal citation omitted)).

Any lack of a remedy against Defendants thus stems from

Plaintiffs’ failure to sue Defendants in Colombia rather than

MUJICA V. AIRSCAN 71

from the inadequacy of the Colombian legal system. We

note, in this regard, that American jurisdictions regularly

apply single-recovery rules in other circumstances without

violating fundamental standards of procedural fairness. See,

e.g., Duran v. Town of Cicero, Ill., 653 F.3d 632, 642 (7th

Cir. 2011) (“A judgment that can be read to allow a plaintiff

to recover twice [from different defendants] for the same

injury contains a manifest error of law.”); Vesey v. United

States, 626 F.2d 627, 633 (9th Cir. 1980) (“The general

theory of compensatory damages bars double recovery for the

same wrong. The principal situation is where joint or

concurrent tortfeasors are jointly and severally liable for the

same wrong. Only one complete satisfaction is permissible,

and, if partial satisfaction is received from one, the liability

of others will be correspondingly reduced” (internal quotation

marks omitted)).

In sum, because of the strength of the U.S. government’s

interest in respecting Colombia’s judicial process, the

weakness of California’s interest in this case, the strength of

Colombia’s interests in serving as an exclusive forum, and the

adequacy of the Colombian courts as an alternative forum, we

conclude that all of the claims before us are nonjusticiable

under the doctrine of international comity. See Ungaro-

Benages, 379 F.3d at 1239.

The crimes Plaintiffs allege are abominable, but the facts

of this case nonetheless favor applying adjudicatory comity.

Both nations have explicitly requested that our courts abstain

from adjudicating a matter that was already litigated in

Plaintiffs’ favor in an adequate alternative forum. The United

States has articulated a strong interest in respecting the

judicial process of Colombia and furthering the development

of the rule of law there. The Colombian courts have shown

72 MUJICA V. AIRSCAN

themselves willing to vindicate Plaintiffs’ legitimate claims

against that country’s government for its military’s acts, and

the government has proven itself both willing and able to hold

the individuals responsible for the bombing to account, as the

Galvis Gelves and Romero Pradilla litigation show. Thus,

our forbearance in this circumstance is “consistent with those

notions of comity that lead each nation to respect the

sovereign rights of other nations by limiting the reach of its

laws and their enforcement.” Sosa, 542 U.S. at 761 (Breyer,

J., concurring).

VI. CONCLUSION

We affirm the district court’s judgment. We do not reach

any of the other issues raised on this appeal.

AFFIRMED.

ZILLY, Senior District Judge, concurring in part and

dissenting in part:

For over 11 years, plaintiffs1 have been seeking justice in

our courts for the role that two U.S. corporations allegedly

played in atrocities committed in the Republic of Colombia.

On December 13, 1998, one or more cluster bombs were

dropped from a Colombian Air Force helicopter onto the

1

Plaintiffs Luis Alberto Galvis Mujica (“Luis”) and John Mario Galvis

Mujica are brothers; plaintiff Mario Galvis Gelvez is their father. Certain

of their claims, namely the claim under Cal. Bus. & Prof. Code §§ 17200

& 17204, and Luis’s tort claims, were dismissed as time barred. Plaintiffs

have not challenged such rulings on appeal.

MUJICA V. AIRSCAN 73

village of Santo Domingo, killing 17 unarmed civilians,

including six children, and wounding 25 others. Plaintiff

Mario Galvis Gelvez (“Galvis”) was seriously injured in the

raid, and his wife, daughter, and niece were among the

massacred. Although the pilot and co-pilot of the helicopter

were convicted of murder and sentenced to 30 years in prison,

plaintiff Galvis received only $55,800, and each of his sons

received only $21,762, in “symbolic” compensation from the

Colombian government. To date, defendant Occidental

Petroleum Corporation (“Occidental”), a California

corporation, and defendant AirScan, Inc. (“AirScan”), a

Florida corporation, have not been required to answer for

their alleged participation in the planning and execution of

the attack on Santo Domingo.

Instead, plaintiffs’ claims against these U.S. corporations,

brought pursuant to the Alien Tort Statute (“ATS”),

28 U.S.C. § 1350, were dismissed on improper grounds, and

their appeal from this erroneous decision has been

unreasonably delayed for close to a decade.2 Unfortunately,

plaintiffs’ long ordeal might now end with the majority

affirming the dismissal of plaintiffs’ ATS claims by relying

on a distinguishable Supreme Court decision, Kiobel v. Royal

Dutch Petroleum Co., 133 S. Ct. 1659 (2013), announced

almost eight years after the district court granted defendants’

Rule 12(b)(6) motion. The majority also affirms the

2

A prior panel of this Court remanded the matter for the district court

to “consider whether a prudential exhaustion requirement applies in this

case.” On remand, the case was reassigned, and the substitute judge

devoted two pages of his order to the reasons why he was baffled by the

directions on limited remand. Now that the matter has returned to us,

defendants challenge whether we have jurisdiction. I agree with the

majority that the case is properly before us on plaintiffs’ original notice of

appeal.

74 MUJICA V. AIRSCAN

dismissal of plaintiffs’ related state law claims by applying an

unfamiliar rendition of the international comity doctrine,

without addressing whether the district court correctly

premised its decision on the foreign affairs doctrine. In its

unwieldy opinion, which inappropriately reaches issues not

before us, the majority does nothing but “keep the word of

promise to our ear, [a]nd break it to our hope.” See id. at

1677 (Breyer, J., concurring in the judgment). Because the

majority would, without good reason, deny plaintiffs the right

to seek basic justice, I must dissent.3

A. Alien Tort Statute Claims

The ATS provides that “[t]he district courts shall have

original jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations or a treaty

of the United States.” 28 U.S.C. § 1350. In Kiobel, the

Supreme Court held that this jurisdictional statute does not

apply unless the ATS claims “touch and concern” the United

States “with sufficient force to displace the presumption

against extraterritorial application.” 133 S. Ct. at 1669. The

majority misinterprets Kiobel as requiring, in addition to a

defendant’s U.S. citizenship, “conduct” that occurred within

the United States. For both procedural and substantive

reasons, the majority is wrong to impose this standard on

plaintiffs in this case.

In 2005, at the time the district court ruled on defendants’

Rule 12(b)(6) motion to dismiss, Kiobel had not yet begun its

path to the Supreme Court. See Mujica v. Occidental

3

I do, however, concur with the conclusion that plaintiffs’ claim under

the Torture Victims Protection Act was appropriately dismissed because

defendants are corporations.

MUJICA V. AIRSCAN 75

Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005); see

also Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d

457 (S.D.N.Y. 2006), aff’d in part, rev’d in part, 621 F.3d

111 (2d Cir. 2010), aff’d, 133 S. Ct. 1659 (2013). The district

court based its dismissal of plaintiffs’ ATS claims on the

political question doctrine,4 and plaintiffs’ initial appearance

before us, as well as their first brief submitted to us following

the limited remand, predated the Supreme Court’s decision in

Kiobel. Plaintiffs have never been given an opportunity at the

district court level to amend their complaint in light of Kiobel

or to move for jurisdictional discovery or similar relief. See

Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d

406, 430 n.24 (9th Cir. 1977) (“a court may allow discovery

to aid in determining whether it has in personam or subject

matter jurisdiction”).5 The majority ignores the liberality

4

I would reverse the district court’s ruling on the political question

doctrine. This case does not impact the relationship between the federal

judiciary and the coordinate branches of the federal government. See

Baker v. Carr, 369 U.S. 186, 210 (1962). Plaintiffs’ ATS claims do not

raise any issue that is constitutionally committed to another political

department, the standards for deciding plaintiffs’ ATS claims are

“judicially discoverable and manageable,” plaintiffs’ ATS claims do not

require an “initial policy determination” of a nonjudicial nature or an

“unquestioning adherence to a political decision already made,” and

resolution of plaintiffs’ ATS claims will not express any lack of respect

for the legislative or executive branches or subject the parties to

“multifarious pronouncements by various departments.” See id. at 217.

5

The majority suggests that the pleading requirements of Rule 8 must

be satisfied “before the discovery stage, not after it,” citing Ashcroft v.

Iqbal, 556 U.S. 662, 678–79 (2009), but Iqbal has not been understood by

our sister circuits to so hold. See Menard v. CSX Transp., Inc., 698 F.3d

40, 45 (1st Cir. 2012) (observing that “some latitude” is appropriate when

the information needed for a “plausible” claim is in a defendant’s control,

and cautioning that Iqbal and its predecessor, Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007), must be “tempered by sound discretion” to achieve

76 MUJICA V. AIRSCAN

with which leave to amend is to be granted, particularly when

an intervening decision has meaningfully altered the standard

for pleading, see Moss v. U.S. Secret Serv., 572 F.3d 962, 972

(9th Cir. 2009), and engages in a flawed futility analysis.6

Thus, even under the majority’s misreading of Kiobel’s

“touch and concern” test, simply affirming the dismissal of

plaintiffs’ ATS claims, without allowing plaintiffs a chance

to conform their complaint to the majority’s previously

unannounced standard, is not an appropriate or fair result.

“a sensible compromise between competing legitimate interests”); Loosier

v. Unknown Med. Doctor, 435 Fed. App’x 302, 307 (5th Cir. 2010) (“As

we have said in the past, we do not require plaintiffs to plead facts

peculiarly within the knowledge of defendants.”); see also Amidax

Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140, 149 (2d Cir. 2011)

(acknowledging that “a court should take care to give the plaintiff ample

opportunity to secure and present evidence relevant to the existence of

jurisdiction,” but affirming the district court’s denial of jurisdictional

discovery because the relevant evidence was in the control of the plaintiff,

not the defendants).

6

The majority’s reliance on Bonin v. Calderon, 59 F.3d 815 (9th Cir.

1995), for the proposition that futility “can, by itself, justify the denial of

. . . leave to amend,” id. at 845 (omissions by the majority), is misplaced

in the context of this case. In Bonin, the assessment of futility had been

performed in the first instance by the district court, and the issue on appeal

was whether the district court had properly exercised its discretion. Id. at

845–46. In affirming the denial of leave to amend the petition for writ of

habeas corpus, the Bonin Court simply agreed with the district court that

the “proposed amendments are either duplicative of existing claims or

patently frivolous, or both.” Id. at 846. Unlike in Bonin, which came to

federal court after trials in two different counties concerning the crimes

committed in each, followed by direct appeals and state habeas corpus

proceedings, we do not have the type of record that allows us to decide

whether an attempt by plaintiffs to cure the deficiencies, if any, of their

complaint would be futile.

MUJICA V. AIRSCAN 77

The majority reaches its decision by improvidently

extending Kiobel. Kiobel is limited to ATS claims by foreign

nationals against foreign corporations concerning activities

taking place on foreign soil. The Kiobel Court was “careful

to leave open” for “further elaboration and explanation” a

“number of significant questions,” 133 S. Ct. at 1669

(Kennedy, J., concurring), including the extent to which ATS

claims against entities incorporated and domiciled in the

United States, like defendants in this case, are justiciable. In

a separate opinion in Kiobel, four justices indicated that they

would conclude jurisdiction exists under the ATS based

solely on the fact that “the defendant is an American

national.” Id. at 1671 (Breyer, J., joined by Ginsburg,

Sotomayor, and Kagan, JJ., concurring in the judgment).7 As

observed in that concurrence, “[m]any countries permit

foreign plaintiffs to bring suits against their own nationals

based on unlawful conduct that took place abroad.” Id. at

1675. Indeed, the principle that a sovereign may exercise

jurisdiction to prescribe the conduct of its nationals outside its

territory is widely recognized. See Restatement (Third) of

Foreign Relations Law § 402(2) (1987).

In concluding that a defendant’s incorporation within the

United States is an insufficient basis for jurisdiction under the

ATS and that plaintiffs must allege some “conduct” within

our borders, the majority misconstrues Kiobel’s “touch and

concern” test, which is focused on the connection between the

7

The majority incorrectly suggests that the opinion of these four

Justices, concerning the sufficiency of U.S. citizenship to confer

jurisdiction under the ATS, did not carry the day. Kiobel was decided on

other grounds, and the Supreme Court explicitly left for another day the

question presented in the instant case. The day for decision has now

come, and we should accept the invitation of the concurring Justices and

hold that U.S. citizenship is enough.

78 MUJICA V. AIRSCAN

ATS “claims” and the United States. See 133 S. Ct. at 1669.

As recognized by the Fourth Circuit in a decision issued after

we heard oral argument in this case, the Kiobel Court’s use of

the term “claims,” rather than “alleged tortious conduct” or

similar phrases, in crafting the “touch and concern” standard

was purposeful, “suggesting that courts must consider all

facts that give rise to ATS claims, including the parties’

identities and their relationship to the causes of action.” Al

Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th

Cir. 2014). The majority, however, essentially disregards

defendants’ U.S. citizenship, which is a fundamental feature

of plaintiffs’ ATS “claims,” and which renders application of

the ATS, by definition, not extraterritorial. Cf. Ahmed v.

Magan, 2013 WL 4479077 (S.D. Ohio Aug. 20, 2013)

(concluding that the presumption against extraterritoriality

was rebutted by the defendant’s status as a permanent

resident of the United States). Unless an ATS claim is

premised purely on vicarious liability,8 a defendant who

8

In summarizing the holdings of various post-Kiobel decisions, the

majority fails to recognize the distinction between vicarious liability and

direct claims. In both Ben-Haim v. Neeman, 543 Fed. App’x 152 (3d Cir.

2013), and Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013), which

the majority cites for the proposition that other federal courts have found

U.S. citizenship alone inadequate, the ATS claims were premised solely

on vicarious liability. In Ben-Haim, the principals whose actions were

being challenged were all high-ranking Israeli officials, including a Justice

of Israel’s Supreme Court, two former cabinet-level Ministers, and a judge

of the Haifa Rabbinical District Court. 543 Fed. App’x at 153. No

allegation was made that the U.S. defendants, namely three charitable

organizations, were directly involved in, or controlled the activities of the

Israeli officials in connection with, the child custody disputes underlying

the ATS claims; rather, the plaintiffs sought to hold the nonprofits

vicariously liable for lobbying in favor of policies that allegedly promoted

discrimination against fathers in Israeli courts. Id. Similarly, in Balintulo,

the principals were not U.S. nationals, but rather South African

MUJICA V. AIRSCAN 79

violates the law of nations while domiciled in the United

States must necessarily engage in at least one predicate act

within our borders. The majority’s treatment of U.S.

citizenship as just “one factor” among other unspecified

factors simply begs the question of what act is sufficient or

how many acts are enough to establish jurisdiction. I would

instead hold that the ATS confers jurisdiction when an ATS

claim is brought against a domestic corporation or other U.S.

national, without any allegation of underlying conduct within

the United States.9

The ATS was enacted by our First Congress as a means

of vesting in the district courts jurisdiction to hear private

causes of action for certain torts in violation of the law of

nations, including piracy. See Sosa v. Alvarez-Machain, 542

companies, and the complaint alleged only vicarious liability of the named

defendants, three U.S. corporations, of which the South African

companies were subsidiaries. 727 F.3d at 192. Unlike Ben-Haim and

Balintulo, this case involves direct liability, with allegations that, during

the raid on Santo Domingo, which was planned in Occidental’s office at

Caño Limón, three U.S. employees of AirScan manned the aircraft from

which the targets of the cluster bombs were selected. Plaintiffs are

entitled to the reasonable inference that such conduct could not have

occurred absent financial and/or managerial support from defendants’ U.S.

offices. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (for

purposes of a Rule 12 motion, “all material allegations of the complaint

are accepted as true, as well as all reasonable inferences to be drawn from

them”). After all, we deal here not with whether plaintiffs have proven

their ATS claims by a preponderance of the evidence, but instead with

whether plaintiffs have pleaded “only enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570.

9

As indicated elsewhere in this partial dissent, if U.S. incorporation is

not sufficient to confer jurisdiction over plaintiffs’ ATS claims, I would

at least allow plaintiffs an opportunity to amend their complaint to satisfy

the “touch and concern” requirements imposed by the majority.

80 MUJICA V. AIRSCAN

U.S. 692, 724–25 (2004) (citing 4 W. Blackstone,

Commentaries on the Laws of England 68 (1769) [hereinafter

“Blackstone”]). Piracy and its modern-day equivalents,

including torture and genocide, are of particular concern to

the sovereign bearing primary responsibility for policing the

activities of the perpetrators because failure to “animadvert

upon them with a becoming severity” might render the

sovereign “an accomplice or abettor of [its] subject’s crime,

and draw[] upon [its] community the calamities of foreign

war.” 4 Blackstone at 68; see also Cardona v. Chiquita

Brands Int’l, Inc., 760 F.3d 1185, 1193 (11th Cir. 2014)

(Martin, C.J., dissenting) (“The United States would fail to

meet the expectations of the international community were

we to allow U.S. citizens to travel to foreign shores and

commit violations of the law of nations with impunity.”). In

focusing on the ATS “claims,” and not the underlying

“conduct,” the Kiobel Court carefully left open the door

through which foreign victims of heinous acts by U.S.

nationals could hold such individuals or corporate entities

accountable. The majority now unnecessarily slams the door

shut.

Had plaintiffs conceded that no act related to the 1998

bombing in Santo Domingo occurred in the United States, the

majority might have been justified in analyzing whether

Kiobel should be extended to preclude ATS claims as to

which the only “touch and concern” allegation is the fact of

incorporation in the United States. Plaintiffs, however,

suggested quite the opposite. They reminded us that the

contract pursuant to which AirScan provided security services

for Occidental in Colombia might have been executed within

our borders. Cf. Al Shimari, 758 F.3d at 530–31 (holding that

jurisdiction existed with regard to ATS claims arising from

interrogations conducted by civilian contractors at the Abu

MUJICA V. AIRSCAN 81

Ghraib prison because inter alia the contract to perform

interrogation services in Iraq was issued in the United States

to a U.S. corporation). In addition, far from capitulating

about the absence of any financial or managerial connection

between the corporate facilities in our country and the events

in Santo Domingo, plaintiffs have asked for leave to amend,

with the decision in Kiobel as their new guide. We should

follow the lead of Doe I v. Nestle USA, Inc., 766 F.3d 1013

(9th Cir. 2014), and refrain from any “imprudent . . . attempt

to apply and refine the touch and concern test,” id. at 1028,

when the pleadings before us were framed long before Kiobel

was even conceived. For the reasons articulated in Doe I, I

would reverse and remand this case to allow plaintiffs to

amend their complaint in light of Kiobel. See also Doe I &

Doe VIII v. Exxon Mobil Corp., — F. Supp. 3d —, 2014 WL

4746256 at *14 (D.D.C. Sep. 23, 2014) (“[T]he Court is of

the view that plaintiffs should have the opportunity to file for

leave to amend their complaint in light of the intervening

change in the law created by Kiobel.”).10

10

The majority cites this and several other district court decisions in an

attempt to demonstrate some weight of authority in support of its

misreading of Kiobel. Two of these cases, however, are decided on

alternate grounds, including the plaintiff’s lack of standing, Ahmed-Al-

Khalifa v. Al-Assad, 2013 WL 4401831 (N.D. Fla. Aug. 13, 2013), and the

plaintiff’s failure to qualify as “an ‘alien’ who may file suit under the

ATS,” Mwangi v. Bush, 2013 WL 3155018 (E.D. Ky. June 18, 2013).

Two other cases involve defendants who were neither U.S. citizens nor

U.S. residents at the time they allegedly committed heinous acts on

foreign soil. Warfaa v. Ali, — F. Supp. 2d —, 2014 WL 3734121 (E.D.

Va. July 29, 2014); Mamani v. Berzaín, — F. Supp. 2d —, 2014 WL

2069491 (S.D. Fla. May 20, 2014). Yet other opinions concern motions

for summary judgment, which require much more of the opposing party

than the Rule 12 motion currently at issue, see Adhikari v. Daoud &

Partners, 2013 WL 4511354 (S.D. Tex. Aug. 23, 2013), modified on other

grounds, 994 F. Supp. 2d 831 (S.D. Tex. 2014); Giraldo v. Dummond Co.,

82 MUJICA V. AIRSCAN

B. State Law Tort Claims

1. Foreign Affairs Doctrine

The district court concluded that the foreign affairs

doctrine precluded plaintiffs’ wrongful death, intentional

infliction of emotional distress, and negligent infliction of

emotional distress claims. See Mujica, 381 F. Supp. 2d at

1187–88. While recognizing that tort law is within the

traditional competence of the states, the district court

reasoned that the strong federal foreign policy interests in this

case, as evidenced by the Supplemental Statement of Interest

filed by the United States, outweighed the weak interests of

California concerning plaintiffs’ tort claims. Id.; see also Am.

Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). I would

affirm this portion of the district court’s decision. The

majority, however, expressly declines to examine whether

dismissal on the basis of the foreign affairs doctrine was

appropriate.

2013 WL 3873960 (N.D. Ala. July 25, 2013), address a problem of

potentially inconsistent judgments, which is not relevant here, see Jovic

v. L-3 Servs., Inc., — F. Supp. 3d —, 2014 WL 4748614 at *6 (N.D. Ill.

Sep. 24, 2014) (observing that the Croatian military leaders who

participated in Operation Storm, which the U.S. defendants allegedly

helped plan and execute, were convicted of war crimes, but their

convictions were later overturned), or are otherwise distinguishable, see

Doe I v. Cisco Sys., Inc., — F. Supp. 2d —, 2014 WL 4446381 at *5

(N.D. Cal. Sep. 5, 2014) (ruling that the plaintiffs had failed to establish

the defendants “directed, planned, or committed the violations that

occurred in China”); see also In re South African Apartheid Litig., 2013

WL 6813877 (S.D.N.Y. Dec. 26, 2013) (relating to Balintulo, a vicarious

liability case). For the foregoing reasons, the various district court

decisions on which the majority relies are of little persuasive value.

MUJICA V. AIRSCAN 83

2. International Comity Doctrine

Instead of addressing the ground on which the district

court actually relied in reaching its decision, the majority

focuses on the district court’s refusal to premise the dismissal

of plaintiffs’ state law claims on the doctrine of international

comity. Declining to decide a matter on the basis of

international comity is a form of abstention, and a district

court’s decision whether to abstain is subject to review only

for an abuse of discretion. JP Morgan Chase Bank v. Altos

Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 422 (2d Cir.

2005); Remington Rand Corp.-Del. v. Bus. Sys. Inc., 830 F.2d

1260, 1266 (3d Cir. 1987); see Stock W. Corp. v. Taylor,

964 F.2d 912, 918 (9th Cir. 1992). In concluding that the

district court abused its discretion, the majority relies on a

very suspect version of the international comity doctrine,

which it substitutes for the foreign affairs doctrine as the

reason to dismiss plaintiffs’ state law claims. Although a

district court’s ruling may be affirmed on alternate grounds,

prudence weighs against doing so when the original ground

for dismissal is sound and the substitute basis involves, as

here, announcing novel views regarding the underlying legal

doctrine and reliance on facts unsupported by the record.

The majority cites to a law review article that describes

international comity as “one of the most important, and yet

least understood, international law canons.” Donald Earl

Childress III, Comity as Conflict: Resituating International

Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11, 13

(2010). The majority’s opinion raises more questions than it

answers. The article explains that international comity may

take three forms: (i) legislative or prescriptive comity,

involving the extraterritorial reach of domestic legislation;

(ii) executive comity, which offers deference to foreign

84 MUJICA V. AIRSCAN

sovereignty; or (iii) adjudicative comity or the “comity of

courts.” Id. at 47. To invoke legislative comity as a basis for

abstaining from deciding the merits of a case, a court must

conclude that a “true conflict between domestic and foreign

law” exists. Hartford Fire Ins. Co. v. Cal., 509 U.S. 764,

798–99 (1993). When a person subject to regulation by two

countries can comply with the laws of both, no conflict exists.

Id. at 799.

Adjudicative comity arises in two contexts:

(i) determining the preclusive effect or enforceability of a

foreign ruling or judgment; or (ii) evaluating whether to stay

or dismiss an action in a domestic court in favor of either a

pending or future proceeding in a foreign forum. See 44 U.C.

Davis L. Rev. at 47–48. The Eleventh Circuit has grouped

these situations in a slightly different manner, describing

“retrospective” application of adjudicative comity as either

according respect to foreign judgments or deferring to

parallel foreign proceedings, and “prospective” application as

occurring when a domestic action is stayed or dismissed

based on the respective interests of the domestic and foreign

governments and the adequacy of the foreign forum in

potentially resolving the dispute. See Ungaro-Benages v.

Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. 2004).

The Third Circuit has observed that, absent the “true

conflict” required for legislative comity or a basis for

“retrospective” application of adjudicative comity, United

States courts “rarely” refrain from exercising their

jurisdiction on the ground of international comity.11 Gross v.

11

As recognized by the district court, neither legislative comity nor

retrospective adjudicative comity are relevant in this case. See Mujica v.

Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1154–64 (C.D. Cal.

MUJICA V. AIRSCAN 85

German Found. Indus. Initiative, 456 F.3d 363, 393 (3d Cir.

2006). Indeed, in Gross, the Third Circuit expressed

skepticism about the Eleventh Circuit’s use of “prospective”

adjudicative comity, which appears inconsistent with “our

‘virtually unflagging obligation’ to exercise the jurisdiction

granted to us, which is not diminished simply because foreign

relations might be involved.” Id. at 394 (citations omitted).

I would join the Third Circuit in declining to follow the

Eleventh Circuit down the “prospective” comity path. The

majority, however, insists on forging ahead, despite the

existence of a far less controversial basis for affirming the

district court’s decision, namely the foreign affairs doctrine,

and adopts the “prospective” application of the adjudicative

comity rubric.

Along the way, the majority characterizes as an abuse of

discretion the district court’s observation that, “at least in the

Ninth Circuit, the application of international comity is

generally limited to cases were there is a ‘true conflict’

between domestic and foreign law,” and its subsequent

conclusion that “it must treat the existence of a ‘true conflict’

as a threshold requirement.” Mujica v. Occidental Petroleum

Corp., 381 F. Supp. 2d 1134, 1155 (C.D. Cal. 2005) (citing In

re Simon, 153 F.3d 991, 999 (9th Cir. 1998)). Of course, In

re Simon stands for the exact proposition stated by the district

court, and contrary to the majority’s suggestion, In re Simon

was not merely a prescriptive comity case. Rather, consistent

with principles of adjudicative comity, In re Simon

considered the fact that “there is no conflicting proceeding in

2005). No “true conflict” exists between the laws of the United States and

the laws of Colombia concerning the bombing of civilians, no foreign

judgment has been procured by or against defendants, and no foreign

proceedings involving defendants were ever ongoing.

86 MUJICA V. AIRSCAN

a foreign nation.” 153 F.3d at 999. Although I agree with the

majority that the “true conflict” analysis discussed in

Hartford was aimed solely at legislative or prescriptive

comity, I am unwilling, in light of In re Simon and the Third

Circuit’s reasoning in Gross, to conclude that adjudicative

international comity, whether “retrospective” or

“prospective,” does not contain a similar threshold.

I am also troubled by the majority’s application of

prospective adjudicative comity. When ruling on defendants’

motion to dismiss on forum non conveniens and international

comity grounds, the district court concluded that Colombia

was not, at that time, an adequate forum because plaintiffs

would be barred from recovering against defendants because

they had already received reparation from the Colombian

government. 381 F. Supp. 2d at 1147–48. On limited

remand, the substitute district judge interpreted his task as

determining whether prudential exhaustion applied to

plaintiffs’ ATS claims; he did not engage in suc

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