Carijano v. Occidental Petroleum Corp.

686 F.3d 1027, 2012 WL 1970375

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 31, 2012
• Docket: Nos. 08-56187, 08-56270
• Status: Published

Opinions

WARDLAW, Circuit Judge,

with whom SCHROEDER and GOULD, Circuit Judges join, concurring in denial of rehearing en banc:

Whoa!!! The Chief has put the proverbial cart before the horse. The district court did not touch upon the merits of the claims alleged in the complaint in any manner whatsoever, and neither did our panel’s disposition. Nor did we or the district court invoke the doctrine of “hypothetical jurisdiction” in an effort to reach the merits, quite contrary to the dissent’s assertion. Rather, based on the record before the district court, the panel concluded only that the district court abused its discretion when it dismissed this action under the forum non conveniens doctrine. This was, by definition, “a non-merits ground for dismissal.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (internal quotation marks omitted). Occidental is free, on remand, to renew its motion to dismiss on the ground that Amazon Watch may not have standing to assert its claim under California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq., and, should the district court dismiss Amazon Watch, Occidental may once again seek to dismiss the case on forum non conveniens grounds.

The question of standing cannot be resolved on the bare pleadings, which is all we have before us given the procedural posture of this appeal. And whether the district court has jurisdiction will necessarily require some factual development as to whether and how alleged misrepresentations and other conduct by Occidental during its Peruvian operations harmed and continue to harm Amazon Watch. See Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1256 n. 9 (9th Cir.2008). “In ruling on a challenge to subject matter jurisdiction, the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). Here, Occidental disputes the existence, the cause and the redressability of the harm alleged by Amazon Watch. Resolving these issues will require factual development on a number of fronts. For example, to show harm, Amazon Watch may produce evidence of the manner in which Occidental’s conduct forced it to divert resources from its central mission of protecting the rainforest and advancing the rights of the indigenous people of the Amazon. See Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322-24, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) (requiring economic harm to prove UCL standing). To show causation, Amazon Watch may also produce evidence linking Occidental’s alleged deceptive practices to Amazon Watch’s diminished ability to carry out its mission. See id. at 326, 120 Cal.Rptr.3d 741, 246 P.3d 877(a£firming that fraud or reliance is a causal mechanism recognized under the UCL). Further, Amazon Watch may prove a continuing injury, which may be redressed through, for example, injunctive relief compelling Occidental to research and remediate environmental harms or to conduct outreach and education about health risks with the indigenous people. See id. at 336-37, 120 Cal.Rptr.3d 741, 246 P.3d 877(standing under the UCL is not dependent on the availability of restitution as a remedy).

The district court did not address standing, and we need not — indeed, could not— do so in the first instance here. The district court did not do so because the Supreme Court has explained that a “district court has discretion to respond at once to a defendant’s forum non conveniens pleas, and need not take up first any other threshold objection,” including jurisdiction. Sinochem, 549 U.S. at 425, 127 S.Ct. 1184. That is precisely what happened here. The district court granted defendants’ motion to dismiss on forum non conveniens grounds without ruling on the merits of the concurrent motion to dismiss for lack of standing. Applying the forum non conveniens test of Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), we reversed and remanded the case to the district court to consider the issue of standing in the first instance. Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1236-37 (9th Cir.2011).

The dissent from denial of rehearing en banc cries foul, citing the general rule that federal courts must sua sponte evaluate their own jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Chief Judge Kozinski asserts that we have “[t]oss[ed] this instruction aside” in our forum non conveniens analysis. But it was the Supreme Court that created this exception to our ordinary practice of addressing jurisdictional issues before we reach the merits of a claim, and it did so specifically in the context of ruling on a party’s assertion of forum non conveniens. Sinochem, 549 U.S. at 432, 127 S.Ct. 1184. The reason for the exception identified in Sinochem is clear — neither district courts nor we reach the merits of a case when we decide issues of forum non conveniens, and thus we need not conduct the jurisdictional analysis as a preliminary matter.

The dissent from denial of rehearing en banc also claims that we “cherry pick” language from Sinochem and ignore the Court’s explanation that: “In particular, a court need not resolve [jurisdictional issues] if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case.” 549 U.S. at 425, 127 S.Ct. 1184. This statement in Sinochem explains why the district court need not address jurisdiction before it rules on a forum non conveniens motion, but it does not address, much less dictate, how appellate review must proceed after a district court makes this election. See, e.g., Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087-88 (9th Cir.2009) (noting some of the unanswered questions about appellate review and potential remands to state court raised by Sinochem’s forum non conveniens holding). Sinochem is silent on how an appellate court is to proceed when a district court declines to address jurisdictional issues, but errs in its forum non conveniens analysis.

Finally, contrary to the dissent’s assertions, the panel opinion does not trap Occidental in federal court. Our opinion does not preclude Occidental from renewing its forum non conveniens motion should the district court rule that Amazon Watch lacks standing to assert its claims under California’s UCL. See, e.g., Van Schijndel v. Boeing Co., 434 F.Supp.2d 766 (C.D.Cal.2006). In Van Schijndel, the district court dismissed the case on forum non conveniens grounds. Id. at 768. We reversed the dismissal in an unpublished disposition, and on remand the district court again dismissed the ease based on the forum non conveniens doctrine in light of “substantially changed circumstances.” Id. at 769(“The Court concludes that the Ninth Circuit held only that the Court erred in the manner in which it conducted its analysis, but did not intend to preclude the Court from further consideration of the issue in light of its ruling.”). We affirmed the second dismissal.

The panel opinion faithfully applies the Supreme Court’s Sinochem opinion to reverse the district court’s forum non conveniens decision based on the record before that court. There was no “boot-strap” or “overreach” here, and our court properly decided not to rehear this appeal en banc.