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May 30, 2001


The opinion of the court was delivered by: Rakoff, District Judge.


Familiarity with the facts and prior proceedings in these cases is here assumed. See, e.g., Aquinda v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y. 1996), reconsid. denied, 175 F.R.D. 50 (S.D.N.Y. 1997), vacated sub nomine, Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998). To recapitulate briefly, plaintiffs in the Aquinda suit are 76 residents of the Oriente region of Ecuador and plaintiffs in the Ashanga suit are 23 residents of the adjoining area in Peru (and four related organizations), each group of plaintiffs purporting to sue on behalf of a corresponding class of thousands of such residents. See Complaint, Aguinda v. Texaco, Inc., 1994 WL 142006 (S.D.N Y April 11, 1994) ("Aguinda Compl."), at ¶¶ 3-4 & Exs. B, C, D; Complaint, Ashanga v. Texaco, Inc., 94 Civ. 9266 ("Ashanga Compl."), at ¶¶ 3, 13.

Neither lawsuit alleges any injury to persons, property, or commerce in the United States. Instead, plaintiffs allege they "have or will suffer property damage, personal injuries, and increased risk of disease," Aguinda Compl. ¶ 11, in Ecuador and Peru respectively, as a result of negligent or otherwise improper oil piping and waste disposal practices that were initiated several decades ago, on lands owned by the Republic of Ecuador, by a consortium (the "Consortium") in which Texaco held an indirect interest. See Ashanga Compl. ¶¶ 6-7; Aguinda Compl. ¶¶ 6-7; Defendant Texaco, Inc.'s Appendix of Affidavits, Documents and Other Authorities in Support of Its Renewed Motions to Dismiss ("Texaco App."), Ex. 2, Affidavit of Texaco Petroleum Co. ("TexPet Aff."), at ¶ 7.

No present or former member of the Consortium is a party to these lawsuits. That includes the Government of Ecuador, which, either directly or through the stateowned corporation PetroEcuador, regulated the Consortium from the outset, acquired a minority stake in 1974, acquired full operational control in 1990, and acquired exclusive ownership in 1992. See, e.g., Jota, 157 F.3d at 156; Texaco App., Ex. 2, TexPet Aff. at ¶¶ 6-10 & Ex. B; Texaco App., Ex. 3, Deposition of William C. Benton ("Benton Dep.") at 201. Not only is the Government of Ecuador not named as a party but also it cannot be sued as a third-party defendant, since it has now formally affirmed that it will not waive sovereign immunity with respect to these cases, see infra.

Even before the Government of Ecuador took complete control of the Consortium, Texaco's only interest consisted of its indirect investment in Texaco Petroleum Company ("TexPet"), a Delaware corporation and fourth-tier subsidiary of Texaco, which initially operated the petroleum concession for the Consortium and held varying interests in the Consortium until 1992. See Jota, 157 F.3d at 156; TexPet Aff. at ¶¶ 2, 3, 10. But TexPet, though sued in the courts of Ecuador, see infra, is not named as a party here.

Instead, the sole defendant is Texaco, based on broad but conclusory allegations that Texaco directly controlled the Consortium's activities from the United States, see Aguinda Compl. at ¶¶ 2, 28; Ashanga Compl. at ¶¶ 11, 25. Faced with similar allegations in a parallel action brought against Texaco by some of the same plaintiffs as here, the United States District Court for the Southern District of Texas dismissed the case in favor of its being pursued in the courts of Ecuador. See Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S.D.Tex. 1994). Here, however, the late Judge Broderick (to whom these cases were originally assigned) — while expressing doubts that these suits would survive a similar motion to dismiss, see Aguinda v. Texaco, Inc., 1994 WL 142006, at *2 (S.D.N.Y. Apr. 11, 1994) — allowed plaintiffs to conduct considerable discovery as to the alleged Texaco involvement.

Nonetheless, the plaintiffs, after taking numerous depositions and obtaining responses to no fewer than 81 document requests and 143 interrogatories, were unable to adduce material competent evidence of meaningful Texaco involvement in the misconduct complained of — to the point that plaintiffs essentially stipulated as much. See Texaco App., Ex. 21, Stipulation and Order, Aguinda v. Texaco Inc., 93 Civ. 7527, dated July 12, 1995. Accordingly, this judge (to whom the cases were ultimately reassigned following Judge Broderick's death) dismissed the cases on the ground, inter alia, of forum non conveniens. See Aquinda v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y. 1996), reconsid. denied, 175 F.R.D. 50 (S.D.N.Y. 1997); Ashanga v. Texaco, Inc., 94 Civ. 9266 (judgment, Aug. 13, 1997). The Court of Appeals reversed, however, finding, so far as forum non conveniens was concerned, that the district court had failed to obtain "a commitment by Texaco to submit to the jurisdiction of the Ecuadoran courts for purposes of this action" and, further, had relied too heavily on the determinations of the District Court for the Southern District of Texas in weighing the factors relevant to a forum non conveniens dismissal. Jota, 157 F.3d at 159.

Following remand, Texaco provided the missing commitment to submit to the jurisdiction of the courts of Ecuador (and Peru, as well) and then renewed its motion to dismiss on ground of forum non conveniens. After receiving further briefing from the parties and obtaining clarification from the Government of Ecuador as to its current posture respecting these lawsuits, cf. Jota, 157 F.3d at 160, this Court, by Order dated January 21, 2000, indicated that it was leaning toward granting the motion but would defer ruling in order to give the plaintiffs the chance to reopen an issue they had previously abandoned, i.e., whether the courts of Ecuador (and/or Peru) are sufficiently independent and impartial to provide the requisite modicum of due process. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 141-42 & n. 1 (2d Cir. 2000).

After briefing on this issue was completed, the matter was further delayed by plaintiffs' mandamus petition to the Court of Appeals seeking this Court's recusal. That petition having now been denied, see In re Aguinda, 241 F.3d 194, 2000 WL 33182244 (2d Cir. Feb. 23, 2001), and plaintiffs' further petition for rehearing en banc of that denial having also been denied by order of the Court of Appeals filed May 29, 2001, the Court is now free to rule on the pending motion.

To prevail on a motion to dismiss on the ground of forum non conveniens, a defendant must demonstrate (1) that there exists an adequate alternative forum, see DiRienzo v. Philip Servs. Corp., 232 F.3d 49, 56 (2d Cir. 2000); Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 510 (2d Cir. 1998); PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998), and (2) that the ordinarily strong presumption favoring the plaintiff's chosen forum is overcome by a balance of the relevant factors of private and public interest weighing heavily in favor of the alternative forum, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-57, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), reh'g denied, 455 U.S. 928, 102 S.Ct. 1296, 71 L.Ed.2d 474 (1982); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-10, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ("Gilbert"); DiRienzo, 232 F.3d at 56-57; PT United Can Co., 138 F.3d at 73-74.

The requirement of an adequate alternative forum "[o]rdinarily . . . will be satisfied when the defendant is `amenable to process' in the other jurisdiction." Piper Aircraft, 454 U.S. at 255 n. 22, 102 S.Ct. 252 (quoting Gilbert, 330 U.S. at 506-07, 67 S.Ct. 839); see also Blanco v. Banco Industrial de Venezuela, S.A., 997 F.2d 974, 980 (2d Cir. 1993). Furthermore, "[a]n agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy this requirement." DiRienzo, 232 F.3d at 57; see also Jota, 157 F.3d at 159. Here, Texaco has now unambiguously agreed in writing to being sued on these claims (or their Ecuadorian equivalents) in Ecuador, to accept service of process in Ecuador, and to waive for 60 days after the date of this dismissal any statute of limitations-based defenses that may have matured since the filing of the instant Complaints. See Texaco Inc.'s Memorandum of Law In Support of Its Renewed Motions to Dismiss Based on Forum Non Conveniens and International Comity ("Def.'s Mem.") at 12-13; Texaco App., Exs. 18 & 19, Texaco Inc.'s Notice of Agreements in Satisfying Forum Non Conveniens and International Comity Conditions; transcript of hearing on defendant's renewed motion to dismiss, Feb. 1, 1999 ("Tr.") at 5. Though not required to do so by the Court of Appeals, Texaco has also provided identical assurances with respect to a Peruvian forum, should any of the Peruvian residents in Ashanga prefer that forum. See Def.'s Mem. at 12-13; Texaco App., Ex. 19.

While plaintiffs argue that these commitments by Texaco do not extend beyond the named plaintiffs to other, unnamed members of the putative classes, this is not a reasonable reading of the commitments and the Court does not so construe them. Lest there be any doubt, however, the Court directs that if Texaco does not agree that these commitments extend, mutatis mutandis, to all members of the putative classes, it must so inform the Court in writing within three business days of receiving this Opinion and Order, in which case the Court will re-open the otherwise final dismissal of these cases.

Even though, as mentioned, such submission by a defendant to being sued in a foreign forum is normally sufficient in itself to satisfy the threshold requirement of an adequate alternative forum in a motion to dismiss on grounds of forum non conveniens, plaintiffs, in their opposition to defendant's instant motion, raise several additional objections to the adequacy of an Ecuadorian forum. The first is that "Ecuador Is Not An Adequate Forum Because Its Jurisprudence, For All Practical Purposes, Does Not Recognize Tort Claims." Memorandum in Support of Plaintiffs' Reply to Defendant's Motion to Dismiss the Complaint, dated Jan. 25, 1999 ("Pls.' Jan. 25, 1999 Mem.") at 5. Rather remarkably, this argument ignores the undisputed evidence that certain members of the putative Aguinda class, as well as three affected Ecuadorian municipalities, have already brought tort actions in the Ecuadorian courts, on some of the very claims here alleged, against TexPet, Petroecuador and other present or former members of the Consortium, and have, in some of these cases, obtained tort judgments in plaintiffs' favor. See Texaco App., Ex. 14, Affidavit of Dr. Vicente Bermeo Lañas at ¶ 13; Texaco App., Ex. 15, Affidavit of Dr. Rodrigo Perez Pallares ("Perez Aff.") at ¶ 4 & Ex. A; see also Texaco App., Ex. 13, Affidavit of Dr. Adolfo Callejas Ribadeneira, dated Dec. 28, 1998 ("Callejas Aff. I") at ¶¶ 2-5 & Exs. A — D; Texaco, Inc.'s Reply Memorandum of Law in Support of Its Renewed Motions to Dismiss Based on Forum Non Conveniens and International Comity ("Def.'s Reply Mem."), Ex. 1, Affidavit of Dr. Adolfo Callejas Ribadeneira, dated Jan. 22, 1999 ("Callejas Aff. II") at ¶¶ 3-4 & Ex. A. Likewise, although unrelated to the particular claims here made, numerous Ecuadorian oilfield workers have brought personal injury suits against TexPet in Ecuador based on claims of alleged negligence and have prevailed in several of these cases. See Perez Aff., Exs. A, B.

More generally, section 2241 of the Ecuadorian Civil Code expressly provides that persons injured in their person or property by another's negligence or intentional wrongdoing may sue in the Ecuadorian courts for monetary damages and equitable relief. See Texaco App., Ex. 10, Affidavit of Dr. Enrique Ponce y Carbo ("Ponce y Carbo Aff.") at ¶¶ 12-14; see also Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1359-60 (S.D.Tex. 1995), aff'd, 231 F.3d 165 (5th Cir. 2000). Plaintiffs concede as much, but nevertheless assert, through their "legal expert," that "very few such actions are filed in the [Ecuadorian] courts." See Plaintiffs' Appendix of Affidavits, Documents and Other Authorities in Opposition of [sic] Texaco's Motions to Dismiss, Ex. 79, Affidavit of Alberto Wray ("Wray Aff.") at ¶ 8. Professor Wray, however, supplies little explanation or description of his methodology in reaching this conclusion, and it appears to be based on nothing more than a tenuous inference from the fact that in Ecuador (as in the United States) few tort cases reach the nation's Supreme Court. Comparable inferences have been held insufficient to deem a foreign forum inadequate. See In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 634 F. Supp. 842, 848-52 (S.D.N.Y. 1986) (Indian forum found adequate for mass tort case despite assertions of "little reported case law in the tort field," "no tort law relating to disputes arising out of complex product or design liability," and other indications of lesser-developed tort law), aff'd as modified, 809 F.2d 195 (2d Cir. 1987); see also Alnwick v. European Micro Holdings, Inc., 2001 WL 391952, at *6 (E.D.N Y Mar. 22, 2001) (Dutch forum adequate "even assuming that Dutch law does not recognize the tort of fraud"); and cf. Capital Currency Exch., N.V. v. National Westminster Bank PLC, 155 F.3d 603, 609-11 (2d Cir. 1998) (England adequate forum despite fact that English courts had never awarded money damages in antitrust case).

Here, moreover, any speculation about the Ecuadorian courts' alleged unreceptiveness to tort cases is put to rest by the undisputed evidence, supra, that tort claims based on the very occurrences here at issue have been successfully prosecuted in the Ecuadorian courts. Furthermore, several United States courts have previously found Ecuador to be an adequate forum to address similar (and, in some cases, identical) tort claims to those of plaintiffs here. See, e.g., Delgado, 890 F. Supp. at 1359-61 (Ecuador adequate for personal injury cases based on pesticide exposure); Sequihua, 847 F. Supp. at 64 (Ecuador adequate to address personal injury and property damage from oil pollution); Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1117 (Fla.Dist.Ct. App. 1997) (Ecuador adequate to address property damage from fungicide exposure). In short, plaintiffs' first objection to the adequacy of an Ecuadorian forum is entirely without foundation.

It seems doubtful, moreover, that the instant cases would qualify for class action status even if they were to remain in the United States, see generally Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and hence the alleged deprivation of this device may be no deprivation at all. To begin with, there are immense due process problems inherent in providing adequate notice and representation to the thousands of Amazonian residents that plaintiffs seek to include in their proposed classes, see generally, Ortiz v. Fibreboard Corp., 527 U.S. 815, 843-48, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 412 (5th Cir. 1998). It is also obvious that the multiplicity of ways in which plaintiffs allege that the Consortium's activities have directly and indirectly impacted various plaintiffs' various interests, or will impact them in the future, renders it problematic whether questions of law or fact common to the members of the class predominate over questions affecting individual members. See, e.g., Amchem, 521 U.S. at 623-25, 117 S.Ct. 2231; see also Aguinda, 1994 WL at *2.

Even the bare question of liability could not readily be handled here as a class action, given the multiple causation issues raised by plaintiffs' claims of indirect injuries extending over hundreds of miles and dozens of years and affecting individual members of the classes (including future claimants) in a multitude of different ways, ranging from the pollution of wells to the development of "pre-cancerous growths." See Jota, 157 F.3d at 155-56. Indeed, many of the injuries claimed by even the named plaintiffs are in the nature of "increased risks" and other future contingent claims that have not yet ripened into actual injuries. See, e.g., Aguinda Compl. ¶¶ 11-26; Ashanga Compl. ¶¶ 13-23. While conceivably some of these problems might be mitigated through the creation and adequate representation of numerous subclasses (none of which plaintiffs provide for), it is difficult to see how the vastly complicated, if not entirely unmanageable lawsuit that would then emerge would offer greater efficiencies than could be achieved in Ecuador through more conventional lawsuits invoking traditional principles of stare decisis and joinder. Indeed, even where class actions are permitted, as in the United States, experience has shown that the premature and undifferentiated aggregation of hundreds or thousands of tort claims has often proved counterproductive. See Report on Mass. Tort Litigation To the Judicial Conference of the United States ("Judicial Conference Report") 5-6, 22, 36, 39-40 (1999).

While plaintiffs try to skirt some of these objections by claiming in conclusory fashion that they are "principally" seeking equitable, injunctive relief, see Pls.' Mem. at 10, they have in no respect relinquished their claims for billions of dollars in damages and other legal relief, see Jota, 157 F.3d at 161. Without such relinquishment, it is highly doubtful that the equitable aspects of these cases could be separately litigated in a way that would satisfy Rule 23, Fed.R.Civ.P. See Allison, 151 F.3d at 425-26. Indeed, much of the equitable relief here sought (such as "medical monitoring" for a variety of potential future medical injuries) is inextricably intertwined with the individualized claims for damages and the individualized issues of multiple causation.

Even assuming arguendo that plaintiffs' claims for equitable relief could be separated from the rest of the litigation, it is equally doubtful, as the Court of Appeals recognized, see Jota, 157 F.3d at 162, that a United States court could, in the absence of the Government of Ecuador, fully address many of plaintiffs' claims for equitable relief; and that Government has now made clear that it will neither waive sovereign immunity nor participate as a party in these actions here, see Texaco App., Ex. 17, Letter to the Court from Ambassador of Ecuador; see also Tr. at 59. Since, by contrast, the Government of Ecuador can be joined as a party in Ecuador, an Ecuadorian forum, even in the absence of the class action device, might well be a more adequate forum than the United States for purposes of providing complete equitable relief. In short, the absence of the class action device in Ecuador is not a sufficient impediment to render the Ecuadorian forum inadequate.

Plaintiffs' final objection to the adequacy of an Ecuadorian forum is that "Procedural Processes in Ecuador Make It Difficult if Not Impossible to Litigate These Tort Actions There." Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Complaint, Jan. 11, 1999 ("Pls.' Jan. 11, 1999 Mem.") at 9; see also id. at 13-14. Under this heading, plaintiffs first argue that claims of environmental contamination commenced in Ecuador must initially be filed with administrative agencies and that these agencies are slow to take action. See id. at 9. Plaintiffs' only support for these assertions is a typically conclusory opinion from Professor Wray, who cites no authority to justify his conclusions in this regard. See Wray Aff. ¶ 12. Defendant, by contrast, has adduced detailed affidavits from its Ecuadorian legal experts specifically denying that any such impediment exists to filing these claims directly with the Ecuadorian courts and asserting, instead, that the administrative agencies simply provide an alternative forum for certain of plaintiffs' claims. See Ponce y Carbo Aff. at ¶ 17; Callejas Aff. I at ¶ 5; Callejas Aff. II at ¶¶ 3-5. Moreover, even if Professor Wray were right and plaintiffs had to first pursue their administrative remedies, such an "exhaustion" requirement, commonplace to much United States litigation, is hardly a ground for deeming the Ecuadorian forum inadequate. See generally DiRienzo, 232 F.3d ...

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