     13-3122-cv
     Doe v. Zedillo Ponce de León

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of February, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JANE DOE, 1, an alien, JANE DOE, 2,
13       an alien, JANE DOE, 3, an alien, JANE
14       DOE, 4, an alien, JOHN DOE, 1, an
15       alien, JOHN DOE, 2, an alien, JOHN
16       DOE, 3, an alien, JOHN DOE, 4, an
17       alien, JOHN DOE, 5, an alien, JOHN
18       DOE, 6, an alien,
19
20                    Plaintiffs-Appellants,
21
22                    -v.-                                              No. 13-3122-cv
23
24       ERNESTO ZEDILLO PONCE DE LEÓN, An
25       Alien resident of Connecticut,
26
27                Defendant-Appellee.
28       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1   FOR PLAINTIFFS-APPELLANTS:   EDWARD GEORGE GUEDES (Roger S.
 2                                Kobert, Marc C. Pugliese, on the
 3                                brief), Weiss Serota Helfman
 4                                Pastoriza Cole & Boniske, P.L.,
 5                                Coral Gables, FL (Matthew Dallas
 6                                Gordon, Matthew Dallas Gordon
 7                                LLC, West Hartford, CT, on the
 8                                brief).
 9
10   FOR DEFENDANT-APPELLEE:      JONATHAN FREIMAN (Tadhg Dooley,
11                                on the brief), Wiggin and Dana
12                                LLP, New Haven, CT.
13
14   FOR AMICUS CURIAE            ADAM C. JED (Mark B. Stern, on
15   UNITED STATES IN             the brief), Appellate Staff
16   SUPPORT OF DEFENDANT-        Civil Division, U.S. Department
17   APPELLEE:                    of Justice (Mary E. McLeod,
18                                Acting Legal Adviser, Department
                                  of State; Stuart F. Delery,
                                  Assistant Attorney General;
                                  Deirdre M. Daly, United States
                                  Attorney), Washington, DC.

19        Appeal from an order of the United States District
20   Court for the District of Connecticut (Shea, J.).
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
23   AND DECREED that the order of the district court be
24   AFFIRMED.
25
26        Plaintiffs appeal an order dismissing their claims
27   against Ernesto Zedillo Ponce de León (“Zedillo”), former
28   President of Mexico, for violations of the “Law of Nations,
29   customary international law, and U.S. laws and treaties”
30   arising out of a 1997 massacre in the Mexican village of
31   Acteal. Plaintiffs expressly concede that the dismissal of
32   their complaint was correct, Appellant Br. 26 n.8; Appellant
33   Reply Br. 12, and argue only that it was improper to dismiss
34   their complaint without granting leave to amend. We assume
35   the parties’ familiarity with the underlying facts, the
36   procedural history, and the issues on appeal.
37
38        We review a district court’s decision to dismiss a
39   complaint without granting leave to replead for “abuse of
40   discretion.” Grain Traders, Inc. v. Citibank, N.A., 160
41   F.3d 97, 106 (2d Cir. 1998). “It is well-established that
42   one good reason to deny leave to amend is when such leave

                                   2
 1   would be futile, specifically when the additional
 2   information does not cure the complaint.” Mortimer Off
 3   Shore Servs., Ltd. v. Fed. Republic of Ger., 615 F.3d 97,
 4   114 (2d Cir. 2010) (internal quotation marks and brackets
 5   omitted).
 6
 7        Here, amendment would be futile. The United States
 8   filed a Suggestion of Immunity in September 2012. “[U]nder
 9   our traditional rule of deference to such Executive
10   determinations,” the United States’ submission is
11   dispositive. Matar v. Dichter, 563 F.3d 9, 13-15 (2d Cir.
12   2009) (noting that State Department’s statement of interest
13   provided former foreign official immunity from suit,
14   regardless of whether claims were premised on violations of
15   jus cogens); see Samantar v. Yousuf, 560 U.S. 305, 321-25
16   (2010) (“We have been given no reason to believe that
17   Congress saw as a problem, or wanted to eliminate, the State
18   Department’s role in determinations regarding individual
19   official immunity.”); cf. Republic of Mex. v. Hoffman, 324
20   U.S. 30, 35 (1945) (“It is therefore not for the courts to
21   deny an immunity which our government has seen fit to
22   allow[.]”); Ex Parte Republic of Peru, 318 U.S. 578, 587-89
23   (1943) (“[I]t is of public importance that the action of the
24   political arm of the Government taken within its appropriate
25   sphere be promptly recognized, and that the delay and
26   inconvenience of a prolonged litigation be avoided by prompt
27   termination of the proceedings in the district court.”);
28   Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d
29   1198, 1201 (2d Cir. 1971) (“[O]nce the State Department has
30   ruled in a matter of this nature, the judiciary will not
31   interfere.”).
32
33        The primary basis for the Suggestion of Immunity is
34   that the complaint relates exclusively to actions taken in
35   the Defendant’s official capacity as head of state. The
36   additional allegations Plaintiffs want to press--that
37   Zedillo was personally involved in the massacre and that the
38   Mexican Ambassador’s request for immunity was invalid--would
39   not overcome the immunity. Those allegations have
40   repeatedly been submitted to the United States, directly or
41   through this action, and yet the Suggestion of Immunity has
42   not been rescinded or amended.
43
44        Plaintiffs rely heavily on a (since vacated) Mexican
45   trial court order voiding a request for the United States to
46   issue the Suggestion of Immunity. However, the State
47   Department stood by its initial opinion in May 2013, after

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 1   that order was issued. See Notice by United States of
 2   America Regarding Oral Argument, D. Ct. Dkt. # 76 (“The
 3   United States rests on its Suggestion of Immunity . . .,
 4   which sets forth the United States’ determination regarding
 5   the immunity of former President Zedillo from this suit.”).
 6
 7        We have considered all of Plaintiffs’ remaining
 8   arguments and conclude that they are without merit. The
 9   order of the district court is hereby affirmed.
10
11                              FOR THE COURT:
12                              CATHERINE O’HAGAN WOLFE, CLERK




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