Thursday, June 2, 2011

Tomas Carijano v. Occidental Petroleum Corporation

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 08-56187 & 08-56270. Appealed  from the United States District Court for the Central District of California. In the partially split decision a petition for panel rehearing was granted. The majority opinion indicates that the cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (OxyPeru), an indirect subsidiary of defendant Occidental Petroleum Corporation (collectively Occidental), along the Rio Corrientes in the northern region of Peru.
    Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste. Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to Federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. Plaintiffs appealed the dismissal of their suit.
    The Appeals Court said, "Occidental cross-appealed from the district court's determination that its motion to dismiss Amazon Watch for lack of standing is moot. Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal."
    The majority ruled, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens and deny Plaintiffs access to a U.S. court. . . Occidental failed to meet that burden, and a proper balance of all the relevant factors at this stage of proceedings clearly demonstrates that this lawsuit should proceed in the Central District of California. We therefore reverse the district court's dismissal on the basis of forum non conveniens. We need not reach Plaintiffs' argument that the district court abused its discretion in denying discovery before ruling on Occidental's motion. We remand this case to the district court to consider the question of Amazon Watch's standing, and for further proceedings consistent with this opinion."
    The Justice concurring in part, dissenting in part said, "I agree that the district court did not abuse its discretion in determining that Peru is an adequate alternative forum. I also believe that conditions on dismissal might be appropriate, but would not require that any be imposed. Nor would I reanalyze whether to dismiss on grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when there has been a clear abuse of discretion. . . The district court considered the relevant public and private interest factors, its findings are supported in the record, and its balancing of these factors was not unreasonable. Thus, its decision deserves substantial deference. . . Conditions such as accepting service, submitting to the jurisdiction, waiving the statute of limitations, making discovery, and agreeing to enforceability of the judgment may be appropriate here. I would, therefore, remand for the court specifically to consider whether its dismissal should be conditioned. Otherwise, I would affirm."
    Access the complete opinion and dissent (click here). [*Haz, *Toxics]

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