Sociedad Colombiana v. Intl Colombia Resrc

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2002
• Docket: 01-20239
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20239

SOCIEDAD COLOMBIANA DE CONSTRUCIONES, SA-SOCOCO,

Plaintiff-Appellant,

versus

INTERNATIONAL COLOMBIA RESOURCES CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas (00-CV-3942)

June 20, 2002

Before GARWOOD, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM*:

Sociedad Colombiana de Construciones, S.A. appeals the

district court's dismissal of its breach of contract suit against

International Colombia Resources Corporation on the grounds of

forum non conveniens. The appellant alleges, inter alia, the

* Pursuant to 5TH CIR. R.47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. district court committed clear error by relying on the incorrect

belief that the appellee was owned by the Republic of Colombia, and

also claims that the district court lacked diversity jurisdiction

(the only apparent basis of federal jurisdiction) because the

appellee has dual incorporation in Delaware and Colombia. Because

the district court’s exercise of discretion to dismiss on forum non

grounds appears to have been influenced by the factually mistaken

view that appellee was owned by the Republic of Colombia, we vacate

and remand for reconsideration. We leave the jurisdictional

question open for further factfinding and determination in the

first instance by the district court on remand.

Background

International Colombia Resources Corporation (“Intercor”) was,

through 2001, a Delaware corporation1 and a wholly owned subsidiary

of ExxonMobil with at least some connection to Houston, Texas.2

Intercor and Cerrejon Zona Norte, S.A. (“CZN-S.A.”) co-own the El

Cerrejon-Zona Norte Coal Complex, the Colombian facility at issue

in this case. Pursuant to an “association contract,” Intercor

1 Appellant Sococo alleges Intercor is also incorporated in Colombia. As we explain infra, this court expresses no opinion on this assertion. 2 Intercor introduced the affidavit of Jorge Alvarez Posada, which alleges that Intercor has no “office or place of business outside Colombia,” while Sococo introduced the affidavit of Juan Montalvo alleging that major decisionmaking occurred in Houston. It may very well be that Montalvo was referring to the decisions made by corporate parent ExxonMobil, not the actual management of Intercor, but it is not clear from the record.

2 operates the facility for the benefit of both owners. The original

co-owner of the facility and signatory of the association contract

was a Colombian government entity named Carbones de Colombia, S.A.

(“Carbocol”), though Carbocol's rights and duties have since passed

to CZN-S.A.

In 1996, Intercor invited bids to provide mining excavation

services at the facility and ultimately awarded the contract to

Sociedad Colombiana de Construciones, S.A. (“Sococo”), a Colombian

corporation whose principal place of business is not clear.3

Though the contract was to last five years, Intercor terminated it

early due to allegedly unsatisfactory performance.

On September 29, 2000, Sococo filed suit against Intercor for

breach of contract in Texas state court. Intercor removed the suit

to the district court below under the alienage provision of the

diversity jurisdiction statute, 28 U.S.C. § 1332(a)(2), and Sococo

did not object or move to remand. Once in federal court, Intercor

moved to dismiss on forum non conveniens grounds, arguing that the

case would be best heard in Colombia. Sococo responded and the

parties debated whether Colombia was an “available and adequate”

forum.

The district court granted the motion to dismiss on January

26, 2001, generally reasoning that the contract had a strong

3 Sococo's petition alleged it had a principal place of business in Colombia, while the affidavit of its president Timothy Moore alleges Sococo's principal place of business is Miami, Florida.

3 connection to Colombia and that it would be easier to litigate

there. The district court also noted that the Colombian government

had a strong interest in the case due to the fact that Intercor was

“wholly owned by the Republic of Colombia.”4 The district court

reasoned that Colombia's interest dominated the public factors, and

concluded that allowing suit in America would be unfair to “a

foreign government that has not submitted itself to the

jurisdiction of this Court.” The court also noted other

considerations favoring forum non dismissal. Accordingly, the

district court exercised its discretion to dismiss the case without

prejudice. The present appeal followed.

Since the oral arguments in this case, ExxonMobil signed an

agreement to sell Intercor to a consortium of buyers. In

anticipation of this sale, Intercor incorporated in Anguilla and

thus holds dual incorporation in Anguilla and Delaware.

Discussion

A. The District Court Abused Its Discretion By Awarding Forum Non Conveniens Dismissal

We first ask whether the district court properly dismissed the

case on the basis of forum non conveniens. We review for abuse of

discretion, a standard which can be met when the district court

4 The district court’s Order of Dismissal noted that before it was “the defendant International Colombia Resources Corporation’s (“Intercor”) motion to dismiss,” that “Intercor is a Delaware corporation that is wholly owned by the Republic of Colombia,” and that “because the government of Colombia, for its own benefit and that of its citizens, has an interest in the outcome of the case, public policy dictates against a foreign forum such as Texas.”

4 takes an erroneous view of the law or makes a clearly erroneous

finding of fact. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626

(5th Cir. 1996).

Appellant Sococo urges that the district court clearly erred

by stating that Intercor was owned by the Colombian government. We

agree. Intercor is a wholly owned subsidiary of ExxonMobil, albeit

a subsidiary that does business in Colombia. We suspect that the

district court accidentally confused Intercor with Carbocol, the

Colombian-owned entity that co-owned the mining rights to the El

Cerrejon-Zona Norte Coal Complex until those rights were

transferred to CZN-S.A. Alternately, the district court may have

meant that Carbocol's former ownership interest in the mine meant

that Colombia had a strong (although indirect) interest in the

outcome of the case. Regardless of the source of this error, the

court clearly misattributed the ownership of one of the litigants.

The appellee urges us to overlook the error, but we cannot do

so. The district court makes clear that it was concerned about the

interests of the sovereign Republic of Colombia as a litigant in

the case, and this concern constitutes a significant and recurring

theme of the opinion. The appellee urges various reasons for

considering the error harmless, but the arguments (and by extension

the cases cited in support) are each inapposite. The district

court's mistake was not confined to its discussion of the public

interest factors, and thus Empresa Lineas Maritimas Argentinas,

5 S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 376 (5th Cir.

1992), does not persuade. The district court does not elsewhere

indicate that it understood the true ownership of Intercor, so the

“infelicitous turn of phrase” language of Iragorri v. Int'l

Elevator, Inc., 203 F.3d 8, 16 (1st Cir. 2000), cannot hold sway.

Finally, a generous reading of Alpine View Co., Ltd. v. Atlas Copco

AB, 205 F.3d 208, 222 n.10 (5th Cir. 2000), may suggest that a

minor error among a wealth of other evidence can be disregarded,

but that was not the case here. The district court relied to a

significant degree on the interests of a sovereign nation, and the

absence of those interests may profoundly affect the court's

reasoning.

The decision whether to dismiss a case on forum non conveniens

grounds is not a question of pure law; rather, the choice whether

to exercise the doctrine lies within the discretion of the district

court. See, e.g., Gulf Oil v. Gilbert, 67 S.Ct. 839, 843 (1947).

We thus vacate the order of dismissal and remand to the district

court for further reconsideration. In doing so, we do not express

any opinion on the disputed facts of the case or the merits of the

motion to dismiss for forum non conveniens.5

B. The District Court Should Also Consider Whether It Has Jurisdiction

5 Because we vacate and remand, we need not decide whether the district court erred by granting the motion to strike Sococo's surreply.

6 For the first time on appeal, Sococo argues that the federal

courts have no jurisdiction over this case. They are entitled to

raise this argument, even though they did not move to remand,

because jurisdictional error cannot be waived and parties cannot be

estopped from asserting it. See Coury v. Prot, 85 F.3d 244, 249

(5th Cir. 1996). Because this argument was raised for the first

time on appeal, we lack the benefit of a district court's findings

of fact.

The parties agree that Intercor is incorporated in Delaware,

but Sococo claims that certain statements in Intercor's motion to

dismiss for forum non conveniens constitute an admission they are

also incorporated in Colombia. Sococo claims that this dual

incorporation makes Intercor an alien and thus makes this suit one

between aliens and hence outside the scope of 28 U.S.C. § 1332(a).

The motion to dismiss does indeed contain some ambiguous

statements scattered among more definite declarations. The motion

begins with Intercor asserting that it is a “citizen of Delaware”

and a “Delaware corporation”; this section does not mention

possible Colombian incorporation although it concedes that Intercor

has no business outside Colombia. Two pages later, Intercor states

“Defendant [Intercor] is a Delaware corporation duly incorporated

in Colombia under the laws of Colombia. This legal status is

referred to by Colombians as a 'branch.'” Intercor’s motion

continues to explain that while it is a Delaware corporation, it

7 would still be subject to Colombian law–an assertion that would be

redundant if Intercor were truly incorporated in Colombia. At the

end of the motion, Intercor calls itself “a Colombian entity

domiciled in Colombia” but then reiterates that it is “a Delaware

corporation operating in Colombia.”

Intercor now explains this language by arguing that it merely

has a branch in Colombia and is not incorporated there.

Unfortunately, Intercor provides little documentation explaining

Colombian law or the meaning of “branch,” though an explanation is

necessary given their motion’s apparent equation of “branch” status

with “du[e] incorporat[ion].” Moreover, Intercor provides little

or no evidence that it took the necessary actions to be granted the

ambiguous status of a branch. The facts of this case remain

confused.

Despite Sococo's arguments, Intercor's statements do not

justify judicial estoppel. Where a party intentionally makes

statements that are accepted as true by a court, that court may use

the judicial estoppel doctrine to bar the party from relying on

later statements clearly inconsistent with the earlier position.

Ahrens v. Perot Systems Corp., 205 F.3d 831, 833 (5th Cir. 2000).

These requirements are not met, however. Even if we assume for the

sake of argument that Intercor's earlier statements, taken in

context, are clearly inconsistent with their current position, we

nevertheless find no evidence that the district court accepted

8 those statements as an admission they were incorporated in

Colombia. To the contrary, the district court clearly called

Intercor “a Delaware corporation,” albeit one owned by the

Colombian government. We therefore will not use judicial estoppel

to bar Intercor from arguing that diversity jurisdiction exists in

the federal courts.6 We cannot resolve the jurisdictional issue on

purely legal grounds.

This case requires factfinding and determinations of Colombian

law, an undertaking best initially performed by the district court.

We therefore suggest to the district court that in considering this

case again on remand, it should begin by considering the parties'

arguments regarding jurisdiction. See Torres v. Southern Peru

Copper Corp., 113 F.3d 540, 542 (5th Cir. 1997) (courts must

determine subject-matter jurisdiction before moving on to address

forum non conveniens). Because we do not know that Intercor had

dual incorporation, we also decline to decide whether Intercor's

alleged dual incorporation would indeed place it outside the

alienage provision of the diversity statute, whether directly or

through an “alter ego” theory. Compare Coury v. Prot, 85 F.3d 244,

247-48, 250 (5th Cir. 1996) (holding that a natural person of dual

6 It is not clear whether Sococo also argued that Intercor had made a judicial admission. If so, that argument fails as well. “Only 'deliberate, clear and unequivocal' statements can constitute conclusive judicial admissions.” Matter of Corland Corp., 967 F.2d 1069, 1074 (5th Cir. 1992). The statements in the motion to dismiss were not clear and unequivocal.

9 nationality should be considered an American for purposes of

diversity jurisdiction) with Kuehne & Nagel (A.G. & Co.) v.

Geosource, Inc., 874 F.2d 283 (5th Cir. 1989) and Panalpina

Welttransport GmBh v. Geosource, Inc., 764 F.2d 352, 354 (5th Cir.

1985) (narrowly construing diversity jurisdiction to exclude

multinational corporations). See also 28 U.S.C. § 1332(a).

Finally, we note that Intercor has recently incorporated in

Anguilla, resulting in undisputed dual incorporation in Anguilla

and Delaware. The parties need not have brought this to the

court's attention, because this development has no effect on the

jurisdiction of the district court. It is well-settled that the

existence of diversity jurisdiction is to be determined both at the

time the suit was filed and at the time of removal. Coury v. Prot,

85 F.3d 244, 249 (5th Cir. 1996); Texas Beef Group v. Winfrey, 201

F.3d 680, 686 (5th Cir. 2000); 14B WRIGHT, MILLER & COOPER, FEDERAL

PRACTICE & PROCEDURE: JURISDICTION 3D § 3723, at 571 (1998). The

incorporation in Anguilla occurred after both the filing and

removal, and cannot affect diversity jurisdiction. The district

court therefore need not consider this additional wrinkle.

Conclusion

The district court attributed the ownership of Intercor to the

Republic of Colombia, and this clear error was a significant part

of its decision to dismiss the case. We therefore vacate the order

of dismissal and remand to the district court for further

10 consideration. In light of the fact that the case is being

remanded to the district court, we decline to engage in the

jurisdictional findings urged on us by appellant and merely point

out the dispute to the district court. The order of dismissal is

therefore vacated and the case remanded for further proceedings.

VACATED and REMANDED.