         Case: 16-10921   Date Filed: 09/27/2016   Page: 1 of 17


                                                        [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 16-10921
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:13-cv-00393-RDP

MARISOL MELO PENALOZA,
ANA GREGORIA PALOMI ROMERO,
LUZ MARINA CASTILLO MANJARRES,
MILAGRO BOLANO MARQUEZ,
MARIA OTILIA AGUIRRE BALLESTEROS,
AMINTA DOMITILA LAZCAN JUNCO,
JUANA MARIA CONTRERAS DE LOPEZ,
HILDEMARO MELGAREJO MOLINA,
YOLANDA DEL CARMEN SANT OSSA,
CLAUDINA ROSA OROZCO,
FATINIZA ISABEL GUTIERRE BUELVAS,
CARLOS ENRIQUE CARBONO AZUAGA,
MARTHA JOSEFA HERNANDE MARTINEZ,
LUZLENID SILVA MUNOZ,
FRANCIA COLL DE TOVAR,
DOMINGA GUTIERREZ CABALLERO,
JUAN MARIA CONTERERA DE LOPEZ,
MARIA FELICIA MEZA GARCIA,
EVERELY PALOMINO VANEGAS,
GINA PAOLA SANTANA GUTIERREZ,
ADELAIDA ISABEL DE LA ROSA RODRIGUEZ,
C.N.G.R.,
HERMELINDA SARMIENTO DE LA CRUZ,
ANA VIRGINIA OCHOA NAVARRO,
ANA CECILIA PASTOR BARRIOS,
EDYS CORREA CERVANTES,
MANUEL GREGORIO TAPIA VEGA,
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ARMANDO RAFAEL CANDANOZ GUZMAN,
LUZ MARINA ANAYA ROYERO,
N.S.M.A.,
MARIA SUREYA SUESCUN BOTELLO,
EDILMA ISABEL TORRES OZUNA,
ALBA LUZ CABALLERO GOMEZ,
AMPARO DE JESUS FLOREZ TORRES,
J.A.G.F.,
LUZ MARINA PACHECO CANTILLO,
MERILSA FRANCISCA DAZA AMAYA,
JHON ALFER PADILLA DAZA,
MARCOS JOSE PADILLA DAZA,
GICELA MARGARITA PADIL DAZA,
ADRIANA CRISTINA PADILL DAZA,
YARLENYS ROSMIRA PADILLA DAZA,
CARMEN INELMA,
ALFREDO CAMPO MEDINA,
ANA CRISTINA CAMPO MEDINA,
ISABEL MARIA LAZCANO DE CALDERON,

                                            Plaintiffs - Appellants,

versus

DRUMMOND COMPANY, INC.,
DRUMMOND LTD.,
DRUMMOND USA, INC.,
GARRY DRUMMOND,
JAMES MICHAEL TRACY,

                                            Defendants - Appellees.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                          (September 27, 2016)
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Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      This appeal arises out of the fourth of four actions brought in the Northern

District of Alabama by Colombian plaintiffs as legal representatives or wrongful

death beneficiaries of decedents allegedly executed by members of the United Self

Defense Forces of Colombia (AUC), a right-wing paramilitary group, during a

period of heightened conflict between the AUC and the Revolutionary Armed

Forces of Colombia (FARC), a left-wing guerilla group. In this action, the

Plaintiffs sue Drummond Co., Inc. (Drummond), two Drummond subsidiaries, and

two Drummond executives, Garry Drummond and James Michael Tracy, under the

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

Victims Protection Act (TVPA), 106 Stat. 73, codified at 28 U.S.C. § 1350 note

(Count Three), and Colombian wrongful death law (Count Four). The Plaintiffs

allege that the Defendants provided substantial financial assistance to the Northern

Block of the AUC in return for protection of Drummond’s Colombian assets and

operations. The Defendants’ financial assistance allegedly enabled the Northern

Block to dramatically increase its presence in the Colombian provinces of Cesar

and Magdalena. Each of the decedents was allegedly executed by the AUC in an

extrajudicial killing. The Plaintiffs premise the Defendants’ liability on theories of

agency, aiding and abetting, and conspiracy.


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      After this Court affirmed dismissals and summary judgment in two of the

related cases, Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015) and Baloco v.

Drummond Co., 767 F.3d 1229 (11th Cir. 2014) (“Baloco II”), the district court

ordered the parties to show cause why this case should not be dismissed on the

authority of this Court’s recent decisions. The parties briefed numerous issues

arising out of Doe and Baloco II as well as issues unique to this case. On January

26, 2016, the district court dismissed with prejudice all of the Plaintiffs’ claims.

The district court did not elaborate upon the grounds for dismissal other than to

state that the dismissal was “[b]ased on the decisions entered by this court and the

Eleventh Circuit in [Doe and Baloco II].” After review, we affirm in part, reverse

in part, vacate in part, and remand in part with instructions.

                                 I. BACKGROUND

      In 2003 and 2004, a Colombian union and the families of three deceased

Colombian union leaders sued Drummond, Drummond Ltd., Garry Drummond,

and Augusto Jimenez in several separate actions. The plaintiffs claimed that the

defendants employed or contracted with paramilitary members to murder, torture,

and otherwise silence union leaders, including the decedent union leaders, in

violation of the ATS, the TVPA, and Colombian wrongful death law. The district

court consolidated the actions in 2004. In 2006, the plaintiffs voluntarily

dismissed with prejudice their claims against Garry Drummond. In 2007, after



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pre-trial orders narrowed the issues, the case proceeded to trial on the plaintiffs’

claims under the ATS. The jury rendered a verdict for the defense, and this Court

affirmed in Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008).

      In March 2009, the children and heirs of the same three union leaders whose

deaths were the subject of Romero sued Drummond, Drummond Ltd., Jimenez,

Tracy, Alfredo Araujo, and James Adkins. The plaintiffs alleged that the

defendants aided and abetted or conspired with the AUC by funding its operations

and collaborated with the AUC to murder the plaintiffs’ decedents in violation of

the ATS, the TVPA, and Colombian wrongful death law. The district court

dismissed five of the eight plaintiffs on res judicata grounds, finding that the

plaintiffs were parties to Romero under “Jane Doe” pseudonyms. The district court

also dismissed the ATS and TVPA claims for lack of standing and declined to

exercise its supplemental jurisdiction over the wrongful death claims. This Court

reversed, holding that the plaintiffs had standing and that the res judicata

determination was premature at the motion-to-dismiss stage. Baloco ex rel. Tapia

v. Drummond Co., 640 F.3d 1338, 1345, 1350–51 (11th Cir. 2011) (“Baloco I”).

On remand, the district court conducted further proceedings and ultimately granted

the defendants’ motion for summary judgment on res judicata grounds. This Court

affirmed, finding that (1) under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.

1659 (2013), the district court lacked subject matter jurisdiction to consider the



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plaintiffs’ ATS claims and (2) the district court correctly determined that res

judicata barred the plaintiffs’ remaining claims. Baloco II, 767 F.3d at 1239,

1247–48, 1251.

      In May 2009, just two months after the Baloco litigation commenced, the

legal heirs of 144 decedents sued Drummond, Drummond Ltd., Jimenez, Araujo,

and Adkins. As with each preceding action, the plaintiffs sought relief under the

ATS, the TVPA, and Colombian wrongful death law. As with the present action,

the plaintiffs alleged that the defendants financed the Northern Block of the AUC,

members of which killed each decedent in violation of the law of nations. Early in

the litigation, the district court declined to exercise supplemental jurisdiction over

the wrongful death claims. Upon the defendants’ motions for summary judgment,

the district court dismissed the ATS claims based on Kiobel, dismissed the TVPA

claims against corporate defendants based on Mohammad v. Palestinian Authority,

132 S. Ct. 1702 (2012), and granted summary judgment in favor of the individual

defendants on the TVPA claims. This Court affirmed in Doe v. Drummond Co.,

782 F.3d 576 (11th Cir. 2015).

      In February 2013, the Plaintiffs, legal representatives or wrongful death

beneficiaries of 34 decedents, commenced the present action against Drummond,

Drummond Ltd., Drummond USA, Inc., Garry Drummond, and Tracy. The

Supreme Court decided Kiobel on April 17, 2013, and the Plaintiffs filed an



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amended complaint nine days later. In February 2014, with the parties’ consent,

the district court stayed this action pending this Court’s resolution of Baloco II and

Doe. Due to the stay, the district court administratively denied without prejudice

the Defendants’ pending motion to dismiss, to which the Plaintiffs had responded.

      In April 2015, upon this Court’s deciding Doe, the district court ordered the

parties to show cause why this action should not be dismissed in light of Baloco II

and Doe. The Defendants argued that (1) this Court’s decisions in Baloco II and

Doe foreclosed any argument that the Plaintiffs had invoked the district court’s

subject matter jurisdiction as to the ATS claims, (2) the Plaintiffs failed to state a

claim under Doe’s articulation of the standard for indirect liability under the

TVPA, and (3) the Plaintiffs’ wrongful death claims are barred by the Alabama

statute of limitations. The Plaintiffs responded to the show-cause order, arguing

that (1) the district court should permit them to conduct discovery on the issue of

U.S.-based conduct, (2) because Baloco II and Doe were decided at summary

judgment, the decisions did not impact the Plaintiffs’ TVPA claims against Garry

Drummond and Tracy, and (3) neither Baloco II nor Doe affected the Plaintiffs’

wrongful death claims, which, unlike those in Baloco and Doe, were premised on

diversity jurisdiction. Because of the timing of the show-cause order, neither party

had the opportunity to respond to the other’s argument.




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      On January 26, 2016, the district court dismissed with prejudice all of the

Plaintiffs’ claims. The district court did not explain the basis for its dismissal other

than to reference Baloco II, Doe, and the district court’s previous decisions. On

January 29, 2016, the district court issued an amended order, the pertinent

language of which was identical to the January 26 order. The Plaintiffs appeal.

                           II. STANDARD OF REVIEW

      We review de novo a district court’s dismissal with prejudice, applying the

same standards used by the district court. Young Apartments, Inc. v. Town of

Jupiter, Fla., 529 F.3d 1027, 1037 (11th Cir. 2008). We likewise review de novo a

district court’s determination of its subject matter jurisdiction. Chhetri v. United

States, 823 F.3d 577, 582 (11th Cir. 2016). We review for abuse of discretion,

however, a district court’s case management decisions, such as the denial of a

request for jurisdictional discovery and the denial of a request for leave to amend a

complaint. See Culverhouse v. Paulson & Co., 813 F.3d 991, 993 (11th Cir. 2016).

                                  III. DISCUSSION

A. Counts One and Two: ATS

      Under Kiobel, a federal court’s jurisdiction under the ATS is subject to the

presumption against extraterritoriality. 133 S. Ct. at 1664. A federal court lacks

jurisdiction over an ATS claim with an extraterritorial component unless the claim

“touch[es] and concern[s] the territory of the United States . . . with sufficient force



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to displace the presumption.” Id. at 1669. Baloco II addressed and Doe elaborated

upon the standard for extraterritorial application of the ATS. Baloco II emphasized

that, to invoke subject matter jurisdiction under the ATS, the claims must “touch

and concern” the territory of the United States and must allege conduct “focused in

the United States.” 767 F.3d at 1239. Doe construed Kiobel and Baloco II, among

other ATS cases, to hold that “claims will only displace the presumption against

extraterritoriality if enough of the relevant conduct occurs domestically and if the

allegations of domestic conduct are supported by a minimum factual predicate.”

Doe, 782 F.3d at 598 (emphasis in original).

       Both Baloco II and Doe held that the plaintiffs’ allegations failed to

overcome the presumption against extraterritoriality and that the plaintiffs had

therefore failed to invoke federal court subject matter jurisdiction under the ATS.

See Doe, 782 F.3d at 600; Baloco II, 767 F.3d at 1239. As the Plaintiffs concede,

the operative complaint in this action is nearly identical in pertinent part to the

complaint deemed insufficient in Doe. Absent any meritorious distinction, we

must conclude in accordance with Doe that the Plaintiffs fail to invoke the district

court’s subject matter jurisdiction under the ATS. Therefore, the district court

appropriately dismissed Counts One and Two on the authority of Baloco II and

Doe.




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       On appeal, the Plaintiffs focus their argument not on the merits of the

dismissal but on the district court’s implicit denial of the Plaintiffs’ request for

discovery on the Defendants’ U.S.-based conduct. But the Plaintiffs have

identified no reason to conclude that the district court abused its discretion in

declining to permit jurisdictional discovery. Counsel for the Plaintiffs first sued

three of the five Defendants in 2003 on similar allegations and identical legal

bases. The Plaintiffs filed the operative complaint after Kiobel was decided and

with the benefit of ten years of evidence obtained from the preceding related cases.

The Plaintiffs therefore had ample opportunity to plead allegations that “touch[ed]

and concern[ed] the territory of the United States.” Kiobel, 133 S. Ct. at 1669.

Given the tremendous volume of information available to the Plaintiffs, it is telling

that the operative complaint continues to plead sparse allegations of U.S.-based

conduct and that the Plaintiffs fail to offer any indication that they could in good

faith plead additional U.S.-based conduct. Under these circumstances, the district

court did not abuse its discretion by implicitly declining to permit jurisdictional

discovery. See Butler v. Sukhoi Co., 579 F.3d 1307, 1314 (11th Cir. 2009)

(“Inasmuch as the complaint was insufficient as a matter of law to establish a

prima facie case that the district court had jurisdiction, the district court abused its

discretion in allowing the case to proceed and granting discovery on the

jurisdictional issue.”).



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       The district court did err, however, in dismissing with prejudice the

Plaintiffs’ ATS claims. The ATS is a jurisdictional statute.1 Because the

presumption against extraterritoriality limits the scope of the ATS’s jurisdictional

reach, a dismissal for failure to rebut the presumption is a dismissal for failure to

invoke the district court’s subject matter jurisdiction. Baloco II, 767 F.3d at 1239

(dismissing the plaintiffs’ ATS claims for failure to overcome the presumption

against extraterritoriality and describing dismissal as “without prejudice . . . for

lack of subject matter jurisdiction”). Thus, while the district court may in its

discretion deny the Plaintiffs another opportunity to plead federal court subject

matter jurisdiction, the district court may not otherwise prejudice the Plaintiffs’

rights with respect to claims over which it lacks jurisdiction. See Stalley ex rel.

United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1234–1235

(11th Cir. 2008) (“[T]he district court lacked subject matter jurisdiction over the

complaint, and it had no power to render a judgment on the merits. Consequently,

the district court should have dismissed the complaint without prejudice, and we

remand in part so that the district court can reenter its dismissal order without

prejudice.” (citation omitted)). Therefore, the district court’s dismissal of the ATS

claims, while proper, should not have been characterized as a dismissal with


       1
          While we refer to Counts One and Two as “ATS claims,” they are more appropriately
described as claims under the law of nations over which a federal court may have subject matter
jurisdiction under the ATS.


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prejudice. We reverse the district court’s dismissal with prejudice of Counts One

and Two and remand with instructions to dismiss without prejudice Counts One

and Two.

B. Count Three: TVPA

      We first note that the Plaintiffs challenge the district court’s dismissal of

Count Three only as it relates to Defendants Garry Drummond and James Michael

Tracy. Because the Plaintiffs have waived any challenge to the district court’s

dismissal with prejudice of Count Three as to the three corporate defendants, we

affirm that aspect of the district court’s order without further discussion. See

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004); cf.

also Doe, 782 F.3d at 602 n.36 (“The TVPA does not authorize liability against

corporate entities.”). We now proceed to discuss the Plaintiffs’ TVPA claims

against Garry Drummond and Tracy.

      Baloco II held that claims preclusion and issue preclusion barred the

plaintiffs’ TVPA claims. 767 F.3d at 1248, 1251. The Baloco plaintiffs had a

substantive legal relationship with the Romero plaintiffs, and the issues and claims

were identical in the two actions. See generally id. This action, while similar,

involves distinct plaintiffs and distinct claims. Neither before the district court nor

on appeal do the Defendants argue that this case is barred by res judicata.




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Therefore, Baloco II does not appear to be the basis upon which the district court

dismissed with prejudice Count Three.

      Doe held that the plaintiffs failed to establish a genuine dispute of material

fact supporting their theories that the individual defendants were indirectly liable

for the AUC’s alleged extrajudicial killings. 782 F.3d at 604. Specifically, this

Court found no genuine dispute of fact regarding (1) the individual defendants’

knowledge of Drummond’s payments to the AUC; (2) the individual defendants’

knowledge that the AUC was murdering noncombatants along rail lines; or (3) the

individual defendants de facto or de jure authority or control over the actors who

committed extrajudicial killings. Id. at 604–05, 610 n.48. The absence of

evidence supporting (1) and (2) precluded an aiding and abetting theory of liability,

and the absence of evidence supporting (3) precluded a command responsibility

theory of liability. See id. at 608, 610.

      When the district court dismissed this case, discovery had not commenced,

and there was no pending motion for summary judgment. Before the stay, the

district court had before it the Defendants’ motions to dismiss, which the district

court administratively terminated without prejudice in light of the stay. In the

district court’s post-stay show-cause order, the district court did not notify the

parties that it intended to consider matters outside the pleadings other than this

Court’s published decisions in Baloco II and Doe. See Fed. R. Civ. P. 12(d) (If a



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district court intends to treat a motion to dismiss as a motion for summary

judgment, “[a]ll parties must be given a reasonable opportunity to present all the

material that is pertinent to the motion.”); Fed. R. Civ. P. 56(f) (“After giving

notice and a reasonable time to respond, the court may: (1) grant summary

judgment for a nonmovant; (2) grant the motion on grounds not raised by a party;

or (3) consider summary judgment on its own after identifying for the parties

material facts that may not be genuinely in dispute.”). Therefore, the district court

could not have based its dismissal of Count Three on the absence of a genuine

dispute of material fact.

       Because the district court could not have based its dismissal of Count Three

on the holdings of Baloco II and Doe, we are left rudderless on appeal. The

Defendants argued both before the district court and on appeal that, given Doe’s

extensive discussion of the standard for aiding and abetting liability and command

responsibility doctrine liability under the TVPA, Doe supports dismissal of Count

Three for failure to state a claim. While this may be so, the district court failed to

discuss this issue at all.

       We have the discretion to affirm an order of the district court on any grounds

supported by the record but may “decline to do so when appellate review would

benefit from reasoned deliberation by the district court.” Palmyra Park Hosp. Inc.

v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1306 n.15 (11th Cir. 2010)



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(citations omitted). Here, where the 112-page, 210-paragraph operative complaint

alleges wrongful conduct by five defendants (and numerous non-parties) resulting

in the extrajudicial killing of 34 people, we decline to consider in the first instance

whether the complaint states a claim for two defendants’ indirect liability. The

initial resolution of that issue is better left to the district court, which has grown

intimately familiar with the allegations in this case. 2

       We therefore vacate the district court’s dismissal of Count Three (except as

to the corporate defendants) and remand with instructions for the district court to

either permit the Plaintiffs to proceed against the individual Defendants on Count

Three or to reinstate the dismissal along with an articulation of the basis and

reasoning for the dismissal.

C. Count Four: Wrongful Death

       As in this case, both Baloco and Doe included wrongful death claims under

Colombian law. In Baloco and Doe, however, the plaintiffs, all Colombian

citizens, sued several American defendants and Jimenez, a Colombian citizen. The

wrongful death claims were therefore premised upon supplemental jurisdiction. In

Doe, the district court declined to exercise supplemental jurisdiction over the

wrongful death claims and declined the plaintiffs’ post-judgment motion to amend
       2
         We acknowledge that the district court may consider itself to have already decided this
issue on the Defendants’ proffered basis, and we do not intend to suggest that the district court
erred on the merits or is generally obligated to state the reasons for its decision. In this case,
however, “appellate review would benefit from reasoned deliberation by the district court.”
Palmyra Park Hosp. Inc., 604 F.3d at 1306 n.15.


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the complaint to create complete diversity. See Doe, 782 F.3d at 581. This Court

found no abuse of discretion in the district court’s decision. Id. at 613. Baloco II

likewise affirmed the res judicata holding as to the plaintiffs’ wrongful death

claims. 767 F.3d at 1252.

      In this action, because res judicata does not apply and the Plaintiffs’

wrongful death claims are premised on mandatory diversity jurisdiction neither

Baloco II nor Doe support the district court’s dismissal with prejudice of Count

Four. Before both the district court and this Court, the Defendants argued not that

Baloco II or Doe mandate dismissal of Count Four but that the Alabama statute of

limitations bars Count Four. The Plaintiff countered that the Colombian statute of

limitations applies and that the Plaintiffs are in any event entitled to equitable

tolling due to the Colombian political environment and Drummond’s alleged

concealment.

      As with Count Three, the Defendants argue a plausible basis to affirm. As

with Count Three, it is unclear whether the district court dismissed on the

Defendants’ articulated basis. As with Count Three, we decline to address this

complicated issue in the first instance on appeal. See Palmyra Park Hosp. Inc.,

604 F.3d at 1306 n.15.

      We therefore vacate the district court’s dismissal of Count Four and remand

with instructions for the district court to either permit the Plaintiffs to proceed on



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this count or to reinstate the dismissal along with an articulation of the basis and

reasoning for the dismissal.

                                 IV. CONCLUSION

      For the foregoing reasons, we affirm the district court’s dismissal with

prejudice of Count Three as to Defendants Drummond Co., Inc., Drummond Ltd.,

and Drummond USA, Inc. We reverse the district court’s dismissal with prejudice

of Counts One and Two and remand with instructions for the district court to

dismiss Counts One and Two without prejudice. We vacate the district court’s

dismissal with prejudice of Count Four and of the remaining portions of Count

Three and remand with instructions for the district court to either proceed with the

litigation as to those claims or to reinstate the dismissal and articulate the basis and

reasoning for the dismissal.

      AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART,

AND REMANDED IN PART WITH INSTRUCTIONS.




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