Doc 34 Doe Run Dissmiss Case Con Bullard

8/2/2019 Doc 34 Doe Run Dissmiss Case Con Bullard

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1464637

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

A. A. Z. A., et al., )

)Plaintiffs, ))

v. ) Case No. 4:08-CV-00525 CDP

)

DOE RUN RESOURCES CORPORATION, )et al., )

)

Defendants. )

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS

MOTION TO DISMISS PLAINTIFFS THIRD AMENDED PETITION

I. INTRODUCTIONIn their response to Defendants Motion to Dismiss the Third Amended Petition,

Plaintiffs do not -- and cannot -- deny that this case centers on alleged injuries occurring solely in

Peru to 137 Peruvian citizens based on the operation of a metallurgical facility wholly located in

Peru (the Peru Complex). As such, this case parallels the recent case of Carijano v. Occidental

Petroleum Corp., CV 07-5068 PSG (PJWx) (C.D. Cal. Apr. 15, 2008) (submitted as Def. Ex. H),

in which the District Court for the Central District of California dismissed on grounds of forum

non conveniens an environmental personal injury case brought by 25 Peruvians allegedly injured

in Peru by two American companies with operations in Peru. The result should be the same

here.

Additionally, it is undisputed that the Peruvian government owned and operated the Peru

Complex for nearly a quarter-century and still today maintains substantial responsibilities and

obligations with respect to the facility and its environs, as well as promulgating extensive

regulation and oversight of the Peru Complex, now owned by a Peruvian company (Doe Run

Peru) not a party to this action. Indeed, as conceded by Plaintiffs own expert, the Republic of

Case: 4:08-cv-00525-CDP Doc. #: 34 Filed: 06/11/08 Page: 1 of 47 PageID #: 1777


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Peru is inextricably involved in the operations and regulation of this facility in Peru and its

impact on the surrounding community in Peru.

By their very terms, Plaintiffs claims necessarily implicate the sovereign interests and

actions of the Republic of Peru, seek to impose liability for activities authorized and engaged in

by the Republic of Peru, and attempt to supplant the significant regime of environmental

regulations and programs instituted by the Republic of Peru for the Peru Complex. In light of

these considerations as well as the fact that the nexus of the case focuses on activities, witnesses,

and evidence exclusively within the territory and control of Peru, this Court should dismiss the

instant case based on well-established principles of international comity, the act of state doctrine,

the doctrine of forum non conveniens, and the failure to join necessary and indispensable parties.

II. DEFENDANTS RESPONSE TO PLAINTIFFS FACTUAL BACKGROUNDPlaintiffs introduction and recitation of facts contains multiple mischaracterizations of

the record and applicable law in this case, the most pertinent of which Defendants address below.

A. The Nature of Plaintiffs ClaimsPlaintiffs argue that their theories of recovery have always been based on the particular

time period during which the named Defendants have owned and controlled the La Oroya

Complex. Pl. Opp. at 3. This also is not true.

To start, the Amended Petition expressly sought to impose liability for the conduct of

past owners. See Amended Petition (attached to Nov. 2, 2007 Notice of Removal, Case No.

4:07-cv-01874-CDP, Dkt. No. 1), 33 (As owner and operator of the La Oroya complex, Doe

Run is jointly and severally liable for the activities of and the toxic environmental releases from

the complex by previous owners.); id., 39 (Defendant Renco assumed, and is the successor

to, the liabilities and obligations of Doe Run and the previous owners of the La Oroya



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complex.). Even though these two paragraphs have been altered in the Third Amended Petition,

numerous other allegations still contain no temporal limitation on Plaintiffs injury claims. See,

e.g., Def. Ex. A, Third Amended Petition, 18 (The minor plaintiffs lived in or around La

Oroya, Peru and were exposed to and injured by the harmful and toxic substances released from

the Defendants metallurgical complex.); id., 40 (As owners, operators and/or partners in the

Doe Run Company, the corporate Defendants are jointly and severally liable for acts and releases

related to the La Oroya complex and related operations and facilities.); 62 (alleging that the

corporate Defendants are strictly liable to minor plaintiffs for all damages which have resulted

or will result from the release of the metals and other toxic substances as a result of the handling,

storage, and disposal of such substances at Defendants metallurgical complex and related

facilities and operations); see also id., 51, 64, 75, 87.

Plaintiffs further assert that they do not allege claims, either directly or indirectly,

against Centromin or the Republic of Peru as owners of the Complex before Defendants

purchase on October 23, 1997. Pl. Opp. at 4. Based just on the exemplary allegations noted

above, this statement is clearly also false. Plaintiffs Third Amended Petition does not have the

time limit they now seek to engraft through their papers.

Even if Plaintiffs artificial time limitation were accepted as present throughout the Third

Amended Petition (which it is not), Plaintiffs claims are nonetheless directed, at least in part,

towards Centromin and the Republic of Peru. For example, Plaintiffs seek to impose liability on

Defendants and unnamed co-conspirators for failing to control toxic substances stored at the

Peru Complex. See, e.g., Def. Ex. A, Third Amended Petition, 49, 56, 61-64, 85-88, 93. The

storage of many such substances is entirely within Centromin and the Republic of Perus

responsibilities. See Def. Ex. B, Gutierrez Ex. 2, Stock Transfer Contract, p. 11, 5.1(c); id.,



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pp. 16-17, 6.1; Def. Ex. B, Gutierrez Ex. 4, Guaranty, 2.1. Likewise, Plaintiffs allegations

are directed at Centromin and the Republic of Perus obligations to remediate the environs of the

Peru Complex, their responsibilities for damages for both pre-sale and post-sale operation of the

Peru Complex, and the Republic of Perus work with Doe Run Peru in educating the populace

regarding lead levels. See Def. Opening Mem. at 27-30.

B. The Republic of Perus Liability for Plaintiffs ClaimsAt page 11 of their Opposition, Plaintiffs attempt to recast the claims in the Third

Amended Petition as somehow limited to a particular clause of the Stock Transfer Contract.

Specifically, Plaintiffs state that their claims against Defendants are based on liabilities they

retained under the Stock Transfer Contract for these types of third-party claims, which is set

forth in Section 5.3, which section is then quoted in part. In fact, by the terms of the Third

Amended Petition, Plaintiffs claims are not so limited and instead seek to impose liability for

matters undertaken as the responsibility of the Republic of Peru.

DRPs potential liability for third party claims relating to the Peru Complex is

contractually limited to two narrow circumstances, neither of which is alleged in the Third

Amended Petition. First, DRP assumes liability for damages and claims by third parties

attributable to it from the date of signing of this Contract where the cases arise directly from

acts not related to the Peru Complex PAMA and exclusively attributable to [DRP], and then

only insofar as said acts were the result of [DRPs] use of standards and practices that were less

protective of the environment or of public health than those that were pursued by CENTROMIN

until the date of signing of this contract. Def. Ex. B, Gutierrez Ex. 2, 5.3(a), p. 13. The

second class of liability assumed by DRP was for such third party damages claims that result



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directly from a default on the Peru Complex PAMA obligations or other obligations outlined in

Sections 5.1 and 5.2 of the Stock Transfer Contract. Id., 5.3(b).

Plaintiffs contend in their opposition papers that Doe Run has only complied with a

portion of its obligations under the PAMA since purchasing the Complex, Pl. Opp. at 11, but

then concede that the Third Amended Petition omits reference to violations of the Peru Complex

PAMA as any predicate for its claims. See id. at 36. In effect, Plaintiffs acknowledge that the

claims of the Third Amended Petition seek liability irrespective of compliance with the PAMA.

Therefore, Plaintiffs claims are clearly not limited to the second category of liability set forth in

Section 5.3 of the Stock Transfer Contract.

As to the first category of assumed liability, Plaintiffs never mention in the Third

Amended Petition that Defendants actions were exclusively attributable to themselves or that

their actions were the result of using standards and practices that were less protective of the

environment or of public health than those that were pursued by CENTROMIN until

October 23, 1997. Rather, Plaintiffs continue to include claims that Defendants acted in concert

with unnamed co-conspirators, e.g., Def. Ex. A, Third Amended Petition, 48, 58, 80,

necessarily implying that the conduct is not exclusively attributable to Defendants. Moreover,

the standards employed by the prior owner (Centromin or, in turn, the Republic of Peru) are not

mentioned at all and thus cannot serve as a basis for comparison under Section 5.3 of the Stock

Transfer Contract.

Plaintiffs claims clearly encompass categories of liability for which Peru is responsible,

and thereby seek to impose liability on a foreign government not a party to this action.



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C. The Propriety of Peru as a Forum Compared to MissouriPlaintiffs also make multiple misleading statements about the adequacy of Peru as a

forum and the relative ease of access to witnesses and evidence in Peru compared to Missouri.

Although these issues are addressed in detail in Section III-C relating to dismissal on forum non

conveniens grounds, it is necessary to correct some of these misstatements at the outset.

First, Plaintiffs assert that Missouri is the proper forum because the tortious acts that are

at issue occurred in the State of Missouri. Pl. Opp. at 13. In fact, the principal locus for these

alleged torts is Peru, not Missouri. As alleged in the Third Amended Petition, Plaintiffs were

injured in Peru based on the releases of substances in Peru from the Peru Complex. See Def.

Ex. A, Third Amended Petition, 18. To imply that the alleged torts wholly occurred in

Missouri contradicts Plaintiffs own pleadings. Even Plaintiffs Opposition acknowledges the

critical activities occurred in Peru. See, e.g., Pl. Opp. at 5 (referring to Defendants purported

liability for their conduct in Peru).

Next, Plaintiffs contend that the majority of the relevant sources of proof are more

readily available in Missouri. Pl. Opp. at 13. This is simply not credible. The 137 Plaintiffs,

their parents, their doctors, their teachers, their school records, their medical records, their

employment records, as well as the persons (and documents) involved in the daily operation of

the Peru Complex (including some 3,000 employees of DRP), are presumably all located in Peru,

which Plaintiffs do not contest. At best, Plaintiffs can only point to a relatively small set of

documents purportedly in Missouri, including public statements, public filings, and research

studies apparently already in Plaintiffs possession. See id. Additionally, the number of

witnesses Plaintiffs identify as located in Missouri does not appear to be more than ten to fifteen,

a miniscule number compared to the hundreds of persons in Peru with relevant information.



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Plaintiffs also contend that the Peruvian legal system does not afford Plaintiffs adequate

relief for their claims. Id. at 14. Plaintiffs assert that there is no legislation in Peru that

explicitly provides Plaintiffs the ability to recover damages caused by environmental

contamination and that there has not been a single legal case brought in Peru for personal

injury damages caused by environmental contamination, which has resulted in compensatory

damages for plaintiffs. Id. These are misleading and inaccurate statements by Plaintiffs.

First, there is authority under Perus Civil Code, as explained by Professor Bullard and

acknowledged by Plaintiffs legal expert, that permits plaintiffs to seek damages for personal

injuries caused by extracontractual (or tort) activities. See Def. Ex. D, Bullard Aff., III.3.B.4,

p. 21; Pl. Ex. N, Chipoco Aff., 2.1, p. 9; Def. Ex. I attached hereto, Bullard Reply Aff., 4.2,

pp. 17-19. Such damages include compensatory damages. See id. The fact that there is no

specific personal injury statute for environmental contamination damages is a red herring --

Missouri has no such statute itself and yet Plaintiffs filed a case seeking compensatory damages

relief in Missouri.

As for cases brought for environmental-related claims in Peru, multiple cases have been

brought in the past. See, e.g., Torres v. Southern Peru Copper Corp., 965 F. Supp. 899, 903

(S.D. Tex. 1996) (discussing environmental cases brought against defendant smelter in Peru,

including successful damages and injunctive relief), affd, 113 F.3d 540, 544 (5th Cir. 1997);

Def. Ex. I, Bullard Reply Aff., 4.1, pp. 15-17. The availability of Peru as an adequate forum

for these types of environmental claims has already been confirmed by other courts. See, e.g.,

Torres, 965 F. Supp. at 902-04; Flores v. Southern Peru Copper Corp, 253 F. Supp. 2d 510, 531-

41 (S.D.N.Y. 2002). To suggest otherwise is disingenuous on Plaintiffs part.



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Plaintiffs next argue that the operation of the judiciary is further evidence that Peru is an

inadequate forum and is inefficient, subject to corruption, and easily controlled by the

executive branch. Pl. Opp. at 14. Plaintiffs offer no evidence to support these conclusory

statements, only a survey of Peruvian citizens purportedly showing their disapproval of the

Judicial Branch. Id. at 15. Evidence of the Peruvian citizenrys perceptions does not show that

the Peruvian judicial system is unable to provide substantial justice to the parties. See Def. Ex. I,

Bullard Reply Aff., 3.3, at pp. 10-11. Evidence of the actual operation of the Peruvian

judiciary is discussed at length in paragraphs 3.1 - 3.6 of Professor Bullards Reply Affidavit and

infra in Section III-C, and shows the adequacy of Perus judiciary to hear such claims.

1

Finally, Plaintiffs argue that, because the Republic of Peru has officially objected to

maintenance of this lawsuit in the United States, via a diplomatic letter from Perus President of

the Council of Ministers (the Peruvian equivalent to the U.S. Cabinet) directed to the U.S.

Ambassador to Peru, this is somehow further evidence of the inadequacy and unfairness of Peru

as the appropriate forum in this case. Pl. Opp. at 16. Plaintiffs proceed to discuss at length

various media reports in Peru and a hearing held by members of the Peruvian Congress regarding

this formal letter of objection. See id. at 16-23. Plaintiffs rhetoric notwithstanding, this formal

1Plaintiffs also suggest Peru is an inadequate forum for this case based on a claim filed

before the Interamerican Commission of Human Rights against Perus Ministry of Health

(MINSA) relating to La Oroya, Peru. See Pl. Opp. at 15-16. However, the petition against

MINSA was not directed to DRP or any of the Defendants and does not constitute a ruling thatPeruvian courts are an inadequate forum for relief against DRP (or the Defendants).Additionally, Plaintiffs offer no bona fide evidence to support their speculative assertion that the

acceptance of a petition against MINSA amounts to a threshold determination of forum

inadequacy very similar to the forum non conveniens analysis before this Court. Id. at 16(emphasis in original). Further, the Commission has not published any orders against MINSA,

see www.cidh.org/publi.eng.htm, and, as such, any letter sent by the Commission to MINSA is

merely a non-binding recommendation. See Def Ex. I, Bullard Reply Aff., VI(ii), pp. 24-25.



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letter of objection in no way suggests that Peru is an inadequate forum but rather highlights

Perus sovereign interests in adjudicating and handling these matters.

Contrary to Plaintiffs characterizations, this letter is not a personal opinion of the

President of the Council of Ministers, see Pl. Opp. at 23, but is an official diplomatic statement

made on behalf of the Republic of Peru. Def. Ex. C, Huyhua Ex. 1, at 1; Def. Ex. I, Bullard

Reply Aff., VII(ii), p. 26. Moreover, it does not state that the Republic of Peru is siding with

Doe Run, as Plaintiffs falsely claim. See Pl. Opp. at 21. Rather, this formal letter of objection

states that, [r]egardless of the facts in the proceedings or the position of the parties involved

therein, the Republic of Peru wishes to state its concerns about the matter continuing in a

United States court, in violation of universally accepted principles of sovereignty, including

the right of the Republic of Peru to regulate and control its natural resources and the mining

activities conducted within its territory, as well as the right of jurisdiction, which consists of

the exclusive right of the Republic to legislate and to apply its law over the people - whether

national or foreign - and over the assets that are located in its territory. Def. Ex. C, Huyhua

Ex. 1, at 1-2; Def. Ex. I, Bullard Reply Aff., VII(i), pp. 25-26.

The President of the Council of Ministers confirmed the Republics official objection at

the hearing referenced by Plaintiffs:

Peru is a sovereign country, it has a working democracy, it has a judicial branch,government branches that dont interfere with the judicial branch, and those are

competent authorities. The only thing that I have said, if you want to claim for

damages, you have the right, but do so in front of your local judge, dont go to a

foreign judge. Thats the issue. And now they question me for defending thesovereignty of Peru, for defending the competency of the Peruvian judges and for

preventing havoc against the Free Trade Agreement, because that, deep down, is

what they wanted.

Pl. Ex. P, at 5. Likewise, other members of Congress noted their support for the Republics

formal letter of objection, which support Plaintiffs ignore in their papers. See, e.g., id. at 3



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(statement of Congresswoman Perez del Solar) (I also want to congratulate [the Prime Minister]

for the comments that he made on this issue, for defending the countrys sovereignty, the

jurisdictional part, above all, . . . and what I find very interesting is that the people who call

themselves nationalists, are now trying to have a country or American judges defend and

intervene in Peruvian cases. I think we have the judicial power that we have, but its a case that

needs to be resolved by us here in this country[.]); id. at 8 (statement of Congresswoman Balta)

(The incident is in Peru and it should have been turned to all the Peruvian authorities in the first

place, at least, before going to an international court, afterwards. Again, I congratulate the

President of the Council of Ministries for this . . . So, once again, I think this [is] a correct

measure taken by the Prime Minister, by way of the Presidency.); id. at 9-10 (statement of

Congressman Perry) (When the Free Trade Treaty was going to be signed, its true, there were

many people who were in favor of and many people who were against. . . . But I talked to

senators, I have requested them to support the signing of the Free Trade Treaty. So, its been a

difficult situation, a crucial moment in which the Prime Minister writes and send a letter, to show

a posture taken, which at that moment, in my opinion, was appropriate. I am not in favor of the

government party but one must be fair, when we consider a matter. At that point, in my point of

view, it was important to give an explanation.).

Clearly, the vigorous objection by the Republic of Peru (and the internal debates between

members of the Peruvian Congress that followed) only serve to highlight the importance of

respecting Peruvian sovereignty and the serious issues of international relations and international

law implicated by maintenance of this suit in the United States. See Torres, 965 F. Supp. at 908-

09; Sequihua v. Texaco, 847 F. Supp. 61, 63 (S.D. Tex. 1994).



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III. ARGUMENTA. Principles of International Comity Justify Dismissal of This Lawsuit Because

Plaintiffs Improperly Seek to Supplant Perus Sovereign Interests and Laws

with Respect to the Management of Its Natural Resources, the Regulation of

Companies Operating in its Territory, and the Protection of the Health of Its

Citizenry.

Under well-established principles of international comity, a court should decline to

exercise jurisdiction under certain circumstances in deference to the laws and interests of another

foreign country. Torres, 965 F. Supp. at 908, affd, 113 F.3d at 544; see also Sequihua, 947 F.

Supp. at 63. In circumstances very similar to the instant case, the Torres and Sequihua courts

dismissed claims brought by foreign plaintiffs regarding environmental damages caused by

facilities previously owned and/or extensively regulated by the governments of Peru and

Ecuador, respectively. See id.

Plaintiffs response fails to distinguish these cases and instead boldly asserts that

principles of international comity have no relevance to this case because Plaintiffs claims have

nothing to do with the Republic of Peru and concern the conduct of Defendants irrespective of

any purported responsibilities or environmental regulations of the Republic of Peru. Pl. Opp. at

25. Plaintiffs further contend that Missouri law governs the operation of the Peru Complex. See

id. at 53. By their very words, Plaintiffs are seeking to toss aside Perus extensive environmental

regime governing the Peru Complex and to substitute it with the adjudications of a Missouri

court applying Missouri law. This Court should not endorse Plaintiffs disrespect for the

Republic of Perus own sovereign governance of its natural environment, its regulatory regime

with respect to companies acting in its territories, or its efforts to protect the health of its

citizenry. Instead, this Court should dismiss this case on international comity grounds.



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1. The Torres and Sequihua CasesPlaintiffs response starts by claiming that the Torres and Sequihua cases are easily

distinguishable, but then says nothing about what distinctions, if any, can be made. See Pl.

Opp. at 26. Rather than substantively address these highly pertinent rulings, Plaintiffs quickly

shift course and cursorily assert that other courts have not followed the lead of Torres and

Sequihua. Plaintiffs three limited citations in this regard are not persuasive.2

Alternatively, Plaintiffs argue that the Torres and Sequihua courts misapplied

international comity principles and should therefore be ignored. See Pl. Opp. at 26. In fact, the

Torres and Sequihua courts properly analyzed international comity issues taking into account the

multi-factor test set forth in the RESTATEMENT (THIRD) OF FOREIGN RELATIONS, 403(2). For

example, in Sequihua, the Court identified multiple reasons justifying dismissal on international

comity grounds, where the plaintiffs were Ecuadorian residents alleging air, ground and water

contamination arising from petroleum development in the country, which development was

extensively regulated by the government and considered a vital national interest. Identifying

multiple reasons not to exercise jurisdiction, the Sequihua Court stated:

The challenged activity and the alleged harm occurred entirely in Ecuador;Plaintiffs are all residents of Ecuador; . . . enforcement in Ecuador of any

judgment issued by this Court is questionable at best; the challenged conduct is

regulated by the Republic of Ecuador and exercise of jurisdiction by this Court

would interfere with Ecuadors sovereign right to control its own environment

2 For example, in Patrickson v. Dole Food Co., Inc., 251 F.3d 795 (9th Cir. 2001),

dismissal on international comity grounds was not analyzed (since federal question jurisdiction

was found lacking), though it was specifically noted that the underlying facts there weredistinguishable from Torres, which involved government participation, ownership, andsubsequent regulation of a vital economic industry (mining). In In re Tobacco Litigation, 100 F.

Supp. 2d 31 (D.D.C. 2000), the foreign government voluntarily initiated the lawsuit in the United

States and thus international comity considerations were inapplicable. Lastly, in PerforacionesMaritimas Mexicanas S.A. de C.V. v. Seacor Holdings, Inc., 443 F. Supp. 2d 825 (S.D. Tex.

2006), there were no potential conflicts with Mexican law, no prospect of applying Mexican law,

no governmental involvement in the underlying facts, and no judicial enforcement issues.



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and resources; and the Republic of Ecuador has expressed its strenuous objectionto the exercise of jurisdiction by this Court. Indeed, none of the factors favor the

exercise of jurisdiction.

847 F. Supp. at 63. Likewise, in Torres, Peruvian citizens sued defendants for toxic releases

from their copper mining and smelting facility, which had previously been owned by the

Republic of Peru (through a government-owned entity) for approximately twenty (20) years such

that Perus operation of the facility may have contributed to the injuries complained of by

plaintiffs. 113 F.3d at 543; Def. Ex. G, Hickey Ex. 2, at 5-6. The Torres district court applied

the Restatement factors to conclude dismissal on international comity grounds was warranted:

The challenged activity and the alleged harm occurred entirely in Peru; Plaintiffs

are all residents of Peru; enforcement in Peru of any judgment rendered by this

Court is questionable; the challenged conduct is regulated by the Republic of Peru

and exercise of jurisdiction by this Court would interfere with Perus sovereignright to control its own environment and resources; and the Republic of Peru has

expressed strenuous objection to the exercise of jurisdiction by this Court.

965 F. Supp. at 909, affd, 113 F.3d at 544.

Notably, the use of the Restatement to assess dismissal on international comity grounds is

not limited to Torres and Sequihua, as Plaintiffs mistakenly imply. The United States Supreme

Court itself has used 403(2) of the Restatement to determine whether it is reasonable to

prescribe rules for conduct that is significantly foreign insofar as that conduct causes

independent foreign harm and that foreign harm alone gives rise to the plaintiffs claims.

F. Hoffman-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155, 165-66 (2004). In the instant case,

Plaintiffs have provided absolutely no analysis or evidence to rebut Defendants detailed

assessment of the multiple Restatement factors at pages 17-24 of their Opening Memorandum.

2. Plaintiffs misleading statements regarding the application ofinternational comity principles

Plaintiffs erroneously suggest that the international comity doctrine does not apply

because there is no past or pending foreign action in Peru involving these parties. Pl. Opp. at 28.



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Plaintiffs are setting up a straw man just to knock it down. Defendants have never suggested that

this Court decline jurisdiction because of a pending court action in Peru between the parties;

indeed, Defendants position all along has been that Plaintiffs claims should have been brought

in Peru in the first place. Regardless, the principles of international comity are not limited to

instances where there is a pending or past court action in the foreign forum. See, e.g., Hoffman,

542 U.S. at 165-66; Torres 965 F. Supp. at 909; Sequihua, 847 F. Supp. at 63.

Plaintiffs alternatively assert that, before international comity principles can be applied,

there is a threshold test of proving a true conflict between United States laws and Peruvian laws

that must be resolved as part of Plaintiffs case. Pl. Opp. at 28 (emphasis in original). Plaintiffs

cite three cases for this proposition. The first, Hartford Fire Ins. Co. v. California, 509 U.S. 764

(1993), contains no such statement. The second, Societe Nationale Industrielle Aerospatiale v.

U.S. Dist. Court for So. Dist. of Iowa, 482 U.S. 522 (1987), contains such a statement, without

supporting citation and only in a concurring in part/dissenting in part opinion that is not

controlling law. Id. at 555 (Blackmun, J., concurring in part/dissenting in part). The third case

relied on by Plaintiffs for this proposition, Sarei v. Rio Tinto PLC, 487 F.3d 1193 (9th Cir.

2007), has been vacated. See Sarei v. Rio Tinto PLC, 499 F.3d 923 (9th Cir. 2007).

Defendants do not dispute that, under the Restatements multi-factor test, one may

consider whether there is a likelihood of conflict with regulation by another state.

RESTATEMENT (THIRD) OF FOREIGN RELATIONS, 403(2), factor (h). Here such a likelihood

exists, if only because Plaintiffs themselves assert that a Missouri court applying Missouri law

should determine whether operations at the Peru Complex were in violation of law.3 See

3 As set forth in Section III-C infra, Defendants vigorously maintain that Peruvian law,

and not Missouri law, should apply to Plaintiffs claims. Even so, a Missouri court applying



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Plaintiffs Memorandum in Opposition to Defendants Motion to Dismiss Plaintiffs Third

Amended Complaint, pp. 53, 55. Essentially, Plaintiffs are seeking to supplant the Peruvian

environmental regulatory regime and civil code applicable to the Peru Complex with a Missouri

common law standard that applies irrespective of whether the Peru Complex has fully complied

with Peruvian laws and regulations. This is the same type of conflict recognized in Torres and

Sequihua, where plaintiffs were attempting to use Texas law and courts to subvert the detailed

and lengthy environmental regulations promulgated by Peru and Ecuador, respectively. See

Torres, 965 F. Supp. at 909 (noting that the challenged conduct is regulated by the Republic of

Peru and exercise of jurisdiction by this Court would interfere with Perus sovereign right to

control its own environment and resources); Sequihua, 847 F. Supp. at 63 (noting that the

challenged conduct is regulated by the Republic of Ecuador and exercise of jurisdiction by this

Court would interfere with Ecuadors sovereign right to control its own environment and

resources). Such potential conflicts, along with other factors considered under the Restatement,

warrant application of international comity principles.

For the reasons stated above and those set forth in detail in Defendants Opening

Memorandum at pages 17 through 25, international comity considerations clearly dictate in favor

of dismissal of Plaintiffs Third Amended Petition.

B. The Act of State Doctrine Requires Dismissal of This Lawsuit BecausePlaintiffs Seek to Have a Missouri Court Sit in Judgment over the Republic

of Perus Sovereign Actions in Managing Its Natural Resources and

Protecting Its Citizenry.

Plaintiffs assert that their claims neither implicate government acts of the Republic of

Peru nor require any such acts to be declared unlawful by this Court. See Pl. Opp. at 31-32.

Peruvian law still raises serious concerns as to conflicts with Perus own sovereign interests in

managing its resources, protecting its citizens, and adjudicating disputes in its territory.



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Plaintiffs are wrong on both counts and thus this Court should dismiss Plaintiffs Third Amended

Petition in view of the act of state doctrine.

Pursuant to that doctrine, United States courts will not sit in judgment on . . . acts of a

governmental character done by a foreign state within its own territory and applicable there. Bi

v. Union Carbide Chem. & Plastics Co. Inc., 984 F.2d 582, 586 (2d Cir. 1993) (quoting

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW, 443). The act of state doctrine

applies even if the foreign government is not a party to the action at hand and considers not just

relief sought but also the defense[s] interposed. W.S. Kirkpatrick & Co. v. Environmental

Tectonics Corp., 493 U.S. 400, 405 (1990); see O.N.E. Shipping Ltd. v. Flota Mercante

Grancolombiana, S.A., 830 F.2d 449, 452-53 (2d Cir. 1987). Here, by the breadth of relief

sought under the Third Amended Petition and the nature of the relevant defenses thereto,

Plaintiffs are improperly asking a United States court to adjudicate the validity and lawfulness of

multiple governmental actions taken by the Republic of Peru in its own territory and relating to

its own natural resources and citizens.

1. The Republic of Perus sovereign actions in managing its naturalresources and addressing the public health

Plaintiffs contend that no official acts (i.e., acts that are public and governmental in

nature) of the Republic of Peru are implicated in this case. See Pl. Opp. at 32. In fact, as

detailed at pages 27 through 30 of Defendants Opening Memorandum, there are multiple such

governmental acts challenged by Plaintiffs Third Amended Petition, including Perus

management of arsenic and other toxic metal waste piles at the Peru Complex, Perus

remediation of contaminated soil surrounding the Peru Complex, Perus health advisories to the

surrounding community, Perus assumption of liabilities for third party claims both pre-sale and

post-sale, as well as Perus own operation of the Peru Complex for nearly twenty-five years.



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a. Official sovereign actions by the Republic of Peru throughCentromin

Plaintiff first assert that acts undertaken by Centromin are not attributable to the Republic

of Peru. See id. at 32-33. This is factually and legally incorrect. As set forth in Peruvian

Decree-Law No. 21117 (Def. Ex. B, Gutierrez Ex. 1) and as acknowledged by Plaintiffs,

Centromin was created by the Peruvian government as a company wholly owned by the State.

Def. Ex. B, Gutierrez Ex. 1, Title I, Art. 1; Pl. Opp. at 32. Centromin is obligated by law to act

in conformity with the policy, objectives, and goals approved by the Ministry of Energy and

Mines, consistent with the National Development Plan[.] Id., Art. 2. Centromins statutorily

defined purposes include perform[ing] the activities proper to the mining industry as determined

by the State, and encourag[ing] through its activities the socioeconomic development of the

region where it carries out its mining operations[.] Id., Art. 3. Moreover, in 1973-74, the

Republic of Peru nationalized its mining industry and transferred the Peru Complex to

Centromin, its mining arm in that region. See Def. Ex. B, Gutierrez Aff., 3.1.1 - 3.1.2.

Courts have recognized that such government-owned entities are instrumentalities of the

State under the act of state doctrine. See, e.g., World Wide Minerals, Ltd. v. Republic of

Kazakhstan, 296 F.3d 1154, 1167 (D.C. Cir. 2002) (dismissing claims against a corporation

wholly owned by Kazakhstan based on the act of state doctrine and noting that 28 U.S.C.

1603(b) provides that an instrumentality of a foreign state includes any corporation, a

majority of whose shares or other ownership interest is owned by a foreign state); Bank Tejarat

v. Varsho-Saz, 723 F. Supp. 516, 521 (C.D. Cal. 1989) (applying the act of state doctrine to a

government-owned bank organized under the laws of the Republic of Iran and dismissing



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affirmative defenses that implicated the act of state doctrine). In view of these facts, the acts of

Centromin are clearly attributable to the Republic of Peru under the act of state doctrine. 4

Plaintiffs next contend that the identified acts and responsibilities of Centromin and the

Republic of Peru for the Peru Complex (e.g., the storage and maintenance of arsenic and other

toxic metal waste piles on the Peru Complex, the remediation of contaminated areas around the

Peru Complex, and the assumption of third party liabilities both pre- and post-sale of the Peru

Complex) are not the types of public and governmental acts covered by the act of state doctrine.

See Pl. Opp. at 32. Specifically, Plaintiffs argue these acts comprise commercial transaction[s]

involving a private party[.] Id. at 33. This too misinterprets the relevant facts and law.

The nature of the governments actions with respect to the Peru Complex clearly relates

to management of vital natural resources and protection of the public health and welfare. These

are governmental and sovereign functions, not private or purely commercial acts. It is well-

recognized under international law that a nation like the Republic of Peru has permanent

sovereignty over its own natural resources. See International Assn of Machinists & Aerospace

Workers v. OPEC, 477 F. Supp. 553, 567 (C.D. Cal. 1979) (The United Nations, with the

concurrence of the United States, has repeatedly recognized the principle that a sovereign state

has the sole power to control its natural resources.), affd, 649 F.2d 1354, 1362 (9th Cir. 1981).

The right of the Republic of Peru to establish its own internal environmental management

policies is also well-established: States have, in accordance with the Charter of the United

Nations and the principles of international law, the sovereign right to exploit their own resources

4 Even if Centromin were considered separate from the Republic of Peru under the act of

state doctrine, the Republic of Peru has directly undertaken responsibility, as its own, for the actsin question (maintenance and storage of arsenic and other toxic metal waste piles, remediation of

the Peru Complex environs, the undertaking of third party liabilities) through its Guaranty. See

Def. Ex. B, Gutierrez Ex. 4, 2.1.



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pursuant to their own environmental and developmental policies. United Nations Conference

on Environment and Development, Rio Declaration on Environment and Development,

Principle 2 (Rio de Janeiro, June 14, 1992), reprinted in 31 I.L.M. 874 (1992).

Thus, such sovereign decisions over the management of important national resources are

not purely commercial activities but constitute governmental acts covered by the act of state

doctrine. See Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 407-09 (9th

Cir. 1983) (affirming dismissal of lawsuit under act of state doctrine where lawsuit implicated a

sovereign decision concerning the exploitation of important national resources and rejecting

argument that such decisions constituted purely commercial activity).

5

b. Official sovereign actions by the Republic of Peru through MINSAThrough its Ministry of Health (MINSA), the Republic of Peru has also instituted a

health program in La Oroya, Peru in cooperation with DRP that, among other things, includes

educational and prevention campaigns to reduce the blood lead levels of the surrounding

community. See Def. Ex. B, Gutierrez Aff., 8.1; id., Gutierrez Ex. 5. Plaintiffs do not dispute

that this program constitutes a sovereign act of the Peruvian government.

2. The Third Amended Petitions challenge to the lawfulness of thesovereign actions of the Republic of Peru

Plaintiffs alternatively argue that the Third Amended Petition does not require any of the

Republic of Perus actions to be declared unlawful. See Pl. Opp. at 32-37. In fact, Plaintiffs

claims necessarily involve an inquiry into the actions taken by and motivations of the Republic

and ultimately seek to have those sovereign actions adjudicated by a Missouri court as unlawful.

5The Republic of Perus actions in managing these natural resources prior to the sale of

the Peru Complex in 1997 also fall within this category. As discussed supra in Section II-A,

Plaintiffs allegations are not entirely limited in time and directly implicate the actions of the

Republic during its near quarter-century operation of the Peru Complex.



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a. Releases of toxic metalsFor example, Plaintiffs generally allege that toxic substances, including arsenic and other

toxic metals, have been improperly stored and released at the Peru Complex, thereby harming

Plaintiffs. See Def. Ex. A, Third Amended Petition, 21, 23, 26-30, 48-49, 56, 61-64, 85-88,

93.6 Under the Stock Transfer Contract and the Guaranty, Centromin and the Republic of Peru

retained the responsibility to manage various toxic metals stored at the Peru Complex. See Def.

Ex. B, Gutierrez Ex. 2, 5.1(c), 6.1; id., Gutierrez Ex. 4, 2.1. Thus, Plaintiffs general

allegations in the Third Amended Petition directly challenge the lawfulness of Centromin and the

Republic of Perus conduct as it related to the management of arsenic and other toxic metals

stored at the Peru Complex. In light of these express allegations, Plaintiffs citations on page 34

actually support application of the act of state doctrine in this case.

b. Soil and property remediationLikewise, Plaintiffs allege that they have been harmed because the areas surrounding the

Peru Complex have not been properly remediated. See, e.g., Def. Ex. A, Third Amended

Petition, 74-75. However, the responsibility for such remediation falls with Centromin and

the Republic of Peru. See Def. Ex. B, Gutierrez Ex. 2, 6.1; id., Gutierrez Ex. 4, 2.1.

Accordingly, Plaintiffs claims clearly seek to have this Court, sitting in Missouri, declare the

Republic of Perus sovereign actions to remediate the environment in La Oroya, Peru, as

unlawful.

Plaintiffs counter that (1) the Stock Transfer Contract provides that Defendants are

obliged to remediate properties to the extent Defendants violated the PAMA; and (2) the Second

6In their Opposition, Plaintiffs attempt to recast their claims as limited to toxic

emissions and not releases generally. See Pl. Opp. at 33. However, the Third Amended

Petition repeatedly refers to releases and not just airborne emissions. See, e.g., Def. Ex. A,

5, 21, 48-49, 56, 62-63, 82, 86-87.



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Amended Petition only seeks damages for Defendants conduct in excess of the PAMA. See Pl.

Opp. at 35. On the first point, the Stock Transfer Contract has no such language; it simply states

that Centromins responsibility to remediate does not extend to areas which are the

responsibility of [DRP] in accordance with the Fifth Clause, which areas are identified as the

smelting and refining facilities, the service facilities and housing, and certain deposits assigned

to DRP. See Def. Ex. B, Gutierrez Ex. 2, 5.1, 6.1(c). Thus, the responsibility for remediating

Plaintiffs properties (and any harm allegedly caused by not remediating those properties) is the

Republic of Perus. Further, as discussed supra in Section II-D, the Second Amended Petition no

longer even mentions the Peru Complex PAMA and therefore Plaintiffs should not

disingenuously suggest that the damages they seek are limited to violations of the PAMA.

c. Third party liabilityCentromin and the Republic of Perus overall responsibility for Plaintiffs claims is clear

on the face of the Stock Transfer Contract and Plaintiffs Third Amended Petition. Contrary to

Plaintiffs assertions in their Opposition, their claims are not limited to the two narrow

exceptions under paragraph 5.3 of the Stock Transfer Contract, where DRP is liable for third

party claims where DRPs activities were either (1) in default of the PAMA or (2) exclusively

attributable to DRP and less protective than the standards of Centromin. No such limiting

allegations appear in Plaintiffs Third Amended Petition, and thus Plaintiffs claims encompass

and directly implicate the responsibilities and liabilities of the Peruvian government.

Notably, even Plaintiffs own legal expert characterizes the Republic of Perus

involvement in the Peru Complex as inextricably linked to Plaintiffs claims of liability and a

tantamount endorsement of the Peru Complexs current operation. See Pl. Ex. N, Chipoco Aff.,

2.1, at 9 (In the case of Doe Run, as is described in this report, its extremely damaging

activity has been permanently legitimized and validated by the Peruvian State through



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continuous modifications and extension by the Environmental Adequacy and Management

Program (PAMA)). Such accusations against the Peruvian government demonstrate that

Plaintiffs are wrongly using their claims to intrude on the motives of the Republic of Peru in its

sovereign management of its natural resources and protection of its citizens. See O.N.E., 830

F.2d at 452-53 (act of state doctrine requires dismissal [w]hen the causal chain between a

defendants alleged conduct and plaintiffs injury cannot be determined without an inquiry into

the motives of the foreign government); Clayco, 712 F.2d at 408 (confirming that, in view of

act of state doctrine, courts should not resolve issues requiring inquiries . . . into the authenticity

and motivation of the acts of foreign sovereigns).

d. The joint educational campaigns by DRP and MINSAPlaintiffs also allege that they have not been adequately warned of the dangers of

inhaling or ingesting toxic metals, gases, and other toxic substances from the Peru Complex.

Def. Ex. A, Third Amended Petition, 93. Since 2003, DRP and MINSA have jointly operated a

health awareness, monitoring and treatment program in the La Oroya, Peru community,

including undertaking educational and prevention campaigns to reduce blood lead levels. See

Def. Ex. B, Gutierrez Ex. 5. At least twenty-five of the Plaintiffs have been born since that

program was started. See Next Friend Petitions (under seal). Accordingly, if this Court

adjudicates that these twenty-five Plaintiffs have not been adequately warned, this amounts to an

indictment of the MINSA-DRP program and a statement from a Missouri court that the Republic

of Perus official acts in warning and educating the populace are inadequate and violative of law.

It is not this Courts proper role to make such a determination.



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3. Plaintiffs mischaracterization of the Torres case and foreign policyprinciples

Plaintiffs Opposition also makes key misstatements about case law and foreign policy

principles relevant to the application of the act of state doctrine.

At page 31 of their Opposition, Plaintiffs falsely state that the Torres claims were limited

to injuries occurring during the time that the Peruvian government owned the refinery in question

and were explicitly based on the Republic of Perus operation of the refinery, unlike here. In

fact, the Torres plaintiffs sought damages for personal injuries occurring during the time of the

development and operation of this facility by the named defendants, in much the same fashion

as Plaintiffs have done in this case. See Def. Ex. J hereto, Plaintiffs First Amended Petition,

Torres v. Southern Peru Copper Corp., 5, p. 36. However, given the inextricable involvement

of the Peruvian government in the operation of the facility in question (both through prior

ownership and ongoing regulation), the Torres courts ultimately recognized that dismissal was

appropriate. See Torres, 965 F. Supp. at 909, affd, 113 F.3d at 544.

At page 37 of their Opposition, Plaintiffs make the bold and entirely unsupported

statement that this action somehow fosters foreign affairs, despite the Republic of Perus official

protest of the litigation and stated concerns that the suit will negatively impact trade and

commerce between the United States and Peru. See Def. Ex. C, Huyhua Ex. 1, at 1-2.

According to Plaintiffs, the United States is obligated to provide a forum in the United States to

any citizen of a foreign country potentially harmed by a U.S. corporation operating a facility on

foreign soil. See Pl. Opp. at 37. No such obligation exists under U.S. law and, if anything,

Plaintiffs proposal stands in stark contravention to well-established principles of international

comity and mutual respect for foreign governments policing their own territories and protecting

their own citizens. Cf. Hoffman, 542 U.S. at 165-66 (applying RESTATEMENT (THIRD) OF



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FOREIGN RELATIONS 403(2) to determine that it was unreasonable to adjudicate alleged

antitrust conduct that is significantly foreign insofar as that conduct causes independent foreign

harm and that foreign harm alone gives rise to the plaintiffs claim). 7

C. The Doctrine of Forum Non Conveniens Warrants Dismissal of This LawsuitBecause Peru Is An Available, Adequate and More Convenient Forum for

These Claims Brought by Peruvian Plaintiffs Regarding Injuries Allegedly

Occurring in Peru Based on the Operation of a Facility Located in Peru.

Plaintiffs assert that this case can only be dismissed from Missouri based on exceptional

circumstances, that Peru does not provide an adequate forum for relief, and that Missouri is a

much more convenient forum because there are few Peruvian witnesses and documents and

Missouri citizens have a great interest in the outcome of the case compared to Peruvian

citizens. Plaintiffs assertions ignore the facts and the law, including the recent guidance given

by the Central District of California in a factually similar case, Carijano v. Occidental Petroleum

(submitted as Def. Ex. H).

1. Plaintiffs are not American citizens and therefore their choice offorum is entitled to substantially less deference.

Plaintiffs initially contend that this Court should not disturb their choice of forum unless

exceptional circumstances exist and that there is a strong presumption in favor of the

Plaintiffs forum choice[.] Pl. Opp. at 38 (emphasis in original). Plaintiffs disregard the fact

that these standards are inapplicable to foreign plaintiffs.

As the Eighth Circuit has stated, it is important to note that in forum non conveniens

cases involving a potential reference to a foreign court, the relevant distinction is whether or not

7 Notably, per the Alien Tort Statute, 28 U.S.C. 1350, Congress has provided limited

access to the federal courts for foreigners alleging torts in violation of internationally recognized

rights. Plaintiffs environmental-based claims do not qualify for such relief. See generally Sosav. Alvarez-Machain, 542 U.S. 692 (2004); see Flores v. Southern Peru Copper Corp., 414 F.3d

233 (2d Cir. 2003) (affirming dismissal of Alien Tort Statute claim for failure to state a claim

where Peruvian plaintiffs alleged American companys mining operations harmed them).



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the plaintiff who has selected the federal forum is a United States citizen[.] Reid-Walen v.

Hansen, 933 F.2d 1390, 1394 (8th Cir. 1991). The Eighth Circuit further noted [n]umerous

cases . . . have held that foreign plaintiffs deserve less deference in their choice of forum than do

citizens or residents of the United States. Id. at 1395 n.6 (citing, e.g., Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 255-56 (1981)); see also Def. Ex. H, Carijano, p. 12. Indeed, the

plaintiffs choice is entitled to substantially less deference when the plaintiff is foreign. De

Melo v. Lederle Labs., 801 F.2d 1058, 1062 n.4 (8th Cir. 1986) (emphasis added).8

2. Peru is an available, adequate forum because Peru permits litigation ofthe subject matter of the dispute and permits Plaintiffs to bring claims

for damages against persons domiciled abroad.

Plaintiffs next argue that Peru cannot be an adequate alternative forum because not all

parties are within Perus jurisdiction and because Plaintiffs will not be able to obtain adequate

relief for their claims. Pl. Opp. at 40-41. Again, Plaintiffs contentions are unfounded.

a. Availability of Peru as a ForumAvailability is typically satisfied if the defendant is amenable to process and comes

within the forum of the alternative jurisdiction. See Piper Aircraft, 454 U.S. at 254 n.22; Reid-

Walen, 9333 F.2d at 1393 n.2. In Peru, actions for extracontractual liability (i.e., tort) can be

brought by victims of harm for damages and losses against persons domiciled abroad. Def.

Ex. D, Bullard Aff., III.3.B.4, p. 21; id., III.5, p. 25. Moreover, Perus exclusive competency

to hear such civil cases includes legal violations that have been perpetrated in, or whose results

have occurred in Peru. Id., III.5, p. 26.

In the instant case, Plaintiffs allege that the Defendants have communicated with their

agents in Peru, have taken actions causing environmental releases in Peru at the Peru Complex,

8 Plaintiffs cite no case law to suggest that the naming of two Missouri residents as

Plaintiffs next friends has any effect on this analysis.



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and have caused injuries in Peru to the Plaintiffs, all of whom are Peruvian citizens. See Def.

Ex. A, Third Amended Petition, 18, 21, 34. Thus, Peru clearly qualifies as an available,

alternative forum for Plaintiffs claims.

Plaintiffs Opposition does not identify any evidence to show lack of jurisdiction over

Defendants and only cursorily alleges, without citation or support, that Peruvian courts would

not be able to reach assets of U.S. Defendants, thus there is no way to enforce a judgment[.]

Pl. Opp. at 43. Such conclusory statements do not provide any evidentiary support for Plaintiffs

baseless assertion that not all parties are within Perus jurisdiction.9

b.

Adequacy of Peru as a Forum

An alternative forum is adequate when the parties will not be deprived of all remedies or

treated unfairly. Reid-Walen, 933 F.2d at 1393 n.2 (citing Piper Aircraft, 454 U.S. at 255).

Plaintiffs erroneously assert that there are no remedies available to them in Peru and that they

cannot be treated fairly in Peru. See Pl. Opp. at 40.

Plaintiffs initial position that there is no compensatory civil remedy in Peru for personal

injuries caused by environmental contamination, see id., is plainly false. As set forth in detail

above in Section II-E, the Peruvian Civil Code permits plaintiffs to seek compensatory damages

for personal injuries caused by extracontractual (or tort) activities. That the Peruvian Civil Code

lacks a specific personal injury statute for environmental-related damages (just as Missouri lacks

such a specific statutory provision) is of no consequence, since the Peruvian Civil Code permits

recovery for any personal injuries caused by extracontractual (or tortious) acts.

9Plaintiffs later state that certain Missouri religious persons could not be required to

testify in Peru. Pl. Opp. at 49. To the extent Plaintiffs are asserting that the Next Friends are not

within the jurisdiction of Peru, that may be true, but it has no effect on the adequacy analysis

since the Next Friends are not real parties of interest in this case.



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Plaintiffs next contend that Peru is inadequate because there is no track record of claims

for extra contractual recovery and any money damages are as a practical matter, limited. Pl.

Opp. at 40. In fact, the Civil Code clearly sets forth the available remedies for claims such as

Plaintiffs and, contrary to Plaintiffs assertions, there have been environmental claims previously

brought in Peru. See Section II-C supra. Indeed, the availability of Peru as an adequate forum

for these types of environmental claims has already been confirmed by other courts, in very

similar factual situations. See, e.g., Torres, 965 F. Supp. at 902-04; Flores, 253 F. Supp. 2d at

531-41. The prospect that compensatory damages may be lower in Peru compared to the U.S.

does not justify denying a motion to dismiss on forum non conveniens grounds. See, e.g., Piper

Aircraft, 454 U.S. at 254-55; Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764,

769 (9th Cir. 1991); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 829 (2d Cir. 1990).

Plaintiffs further argue that there are practical problems that they will face in Peru,

including not having a jury trial or the ability to retain an attorney on a contingency fee. See Pl.

Opp. at 41-42. These considerations do not truly fall under the adequacy analysis, since

Plaintiffs do not suggest that such potential problems deprive them of all remedies. See Reid-

Walen, 933 F.2d at 1398 n.11, 1399 (noting that the factor regarding plaintiffs ability to litigate

in a foreign forum is simply one consideration of many under the private interest factor

analysis). In any event, neither is dispositive of adequacy. For one, persons with minimal

resources have the right to access the judicial system free of charge (and can obtain appointed

counsel) and there is no legal restriction on seeking counsel on a contingency fee basis. See Def.

Ex. D, Bullard Aff., III.2.B, III.2.E, pp. 12-13, 15. Moreover, the right to a jury trial may be

given weight in the balancing process, but, if treated like differences in substantive law, the



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weight should ordinarily not be conclusive or even substantial. Macedo v. Boeing Co., 693

F.2d 683, 687-88 (7th Cir. 1982) (citing Piper Aircraft, 454 U.S. at 247).

Lastly, Plaintiffs assert that they will be treated unfairly in Peru, given the official

diplomatic letter of objection to the maintenance of this lawsuit in the United States by the

President of the Council of Prime Ministers for the Republic of Peru, and that any Peruvian

judge hearing this case would be influenced by the Republics purported position that the suit

would be harmful to the Republics economy. Pl. Opp. at 43-44. As discussed previously in

Section II-C, Plaintiffs misread Perus objection.

The Republic did not take sides on behalf of DRP or the Defendants, but rather stated its

formal objection to the lawsuit proceeding in the United States as violative of Perus sovereign

interests. See Def. Ex. C, Huyhua Ex. 1, at 1-2. The President of the Council of Ministers

confirmed the Republics position that the case should be tried before a Peruvian court. See Pl.

Ex. P, p. 16 (You ask what I would have done if my child was contaminated. I would have filed

a lawsuit before a Peruvian judge. Thats what I would have done. I wouldnt have gone to the

United States, maam. . . . The persons who think they must exercise their rights, must turn to the

Peruvian Judicial Branch. They dont have to go somewhere else. Thats the issue.).

Plaintiffs implicit suggestion that the Peruvian judiciary is corrupt or easily influenced is

without justification and is clearly rebutted by Professor Bullard in his Reply Affidavit. See Def.

Ex. I, Bullard Reply Aff., 3.1-3.6, pp. 4-14.

As other courts have repeatedly recognized, Peru is an adequate forum for relief for these

types of environmental claims as well as other civil claims for damages. See, e.g., Torres, 965 F.

Supp. at 902-04, affd, 113 F.3d 540; Flores, 253 F. Supp. 2d at 531-34, 539-40; Tom

McNamara, International Forum Selection and Forum Non Conveniens, 34 INTL LAWYER 558,



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witnesses seven Defendants located in Missouri and several researchers at St. Louis University

who voluntarily traveled to Peru to study blood lead levels in La Oroya. 10

As previously identified through affidavit evidence, the 137 Plaintiffs, their parents, their

doctors, their teachers, their school records, their medical records, their employment records, as

well as the persons (and documents) involved in the day-to-day operation of the Peru Complex

(including some 3,000 employees of DRP), are all located in Peru and the records are likely in

Spanish, requiring translation for use in the United States. Plaintiffs do not deny the location or

nature of these witnesses or records in Peru, but rather make the response that they have no

medical records or few, if any additional medical records. Pl. Opp. at 48-49. Although this

raises serious questions as to how Plaintiffs plan to prove causation (and alleged personal injury

in the first place), it merely enhances how important it will be to talk to or depose Plaintiffs

physicians, teachers, parents, associates, employers, etc. to obtain a clear understanding of

Plaintiffs actual health situation.

Plaintiffs attempt to distinguish the Carijano case on grounds that the plaintiffs in that

case purportedly did not allege that any additional evidence or witnesses were present in the

forum state and that the defendants residence in the forum state was the extent of the

connection to the forum state. Plaintiffs Memo. at 54. This is a clear misrepresentation of

Carijano. In Carijano, the Court specifically noted that, whereas the defendants identified

witnesses and evidence located in Peru (including plaintiffs family members, neighbors,

teachers, employers, and physicians, as well as Peruvian civil servants responsible for

10Plaintiffs also vaguely refer to several persons of religious orders who have traveled

to La Oroya to assist Plaintiffs and who have had communications with Doe Run

representatives, as well as individuals who have sued Doe Run in connection with exposures

sustained from the Herculaneum smelter. Pl. Opp. at 48. These conclusory statements are



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monitoring environmental conditions at the site in question), the Peruvian plaintiffs focused on

the witnesses and evidence in California, including decisionmakers at Defendants headquarters

and witnesses with knowledge of [Defendant] OxyPerus operations. Def. Ex. H, Carijano,

p. 10. Nonetheless, the Carijano Court concluded that [a]lthough witnesses and documents are

located in both fora, the facts of this case indicate that it centers primarily on Peruvian lands and

Peruvian people, thus weighing in favor of dismissal. Id.

Likewise here, the bulk of evidence and witnesses is clearly located in Peru, making Peru

a far more convenient forum for trial and resolution.

b.

Private interest: Availability of compulsory process for attendanceof unwilling, and the costs of obtaining willing witnesses

Plaintiffs claim that the several researchers located in the United States and unspecified

Missouri religious persons could not be required to testify in Peru and that the cost of

transporting the six individual Defendants and their documents would be more costly than

transporting the few fact witness [sic] and documents that may be present in Peru to Missouri.

Pl. Opp. at 49. Again, Plaintiffs statements are beyond belief.

There are 137 Plaintiffs and six individual Defendants. How on earth could it be more

expensive to fly six people to Peru than to fly 137 people to Missouri? More importantly, there

are many more witnesses in Peru with information relevant to this case (parents, teachers,

employers, associates, workers at the Peru Complex) who could not be compelled to testify in

the United States than the handful of unidentified witnesses mentioned above who are located in

the United States. Clearly, this factor weighs strongly in favor of dismissal. See, e.g., Lueck v.

unsupported by evidence or affidavits to show their pertinence to this factor and should thus be

disregarded. See Reid-Walen, 933 F.2d at 1396, 1397 n.10.



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Sunstrand Corp., 236 F.3d 1137, 1146-47 (9th Cir. 2001) (affirming dismissal on forum non

conveniens grounds where foreign witnesses could not be compelled to appear in the U.S.).

Notably, the Carijano Court came to the same conclusion regarding the location and

availability of witnesses:

[C]ourts continue to affirm that it is not fair to make U.S. manufacturers proceed

to trial without foreign witnesses who cannot be compelled to attend. Many of

the witnesses are located in Peru and thus are beyond the reach of the compulsoryprocess, including, among others, physicians who treated Plaintiffs, and Peruvian

civil servants and consultants responsible for monitoring the environmental

conditions in Block 1-AB.

Def. Ex. H, Carijano, p. 10 (internal citations omitted). Additionally:

While Plaintiffs downplay the relative ease and access to witnesses factor, it is

clear the cost and convenience of travel between Peru and Los Angeless supports

dismissal on forum no [sic] conveniens grounds. Even if all the witnessesidentified by defendants were willing to testify in Los Angeles, the expense of

bringing them here could be prohibitive.

Id., p. 11. Accordingly, the Carijano Court concluded, as should this Court, that the private

interest factors weigh overwhelmingly in favor of dismissal. Id.

c. Private interest: Possibility of view of the premisesDefendants agree that admissible photographs and videotape of the Peru Complex area

might be used at trial in this case, but, given the focus of Plaintiffs allegations on the environs of

the Peru Complex and the sheer breadth of the facility and its alleged impact on the surrounding

community, see Def. Ex. A, Third Amended Petition, 23, 25, 29, 74, the parties may not be

able to depict the premises accurately for trial, therefore requiring inspection by the factfinders.

See Torres, 965 F. Supp. at 906; Flores, 253 F. Supp. 2d at 541. This factor (although minor)

weighs in favor of dismissal.



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d. Private interest: Practical problems that make trial of a case easy,expeditious and inexpensive

Plaintiffs purport to dispute Defendants position that most relevant documents will be in

Spanish. See Pl. Opp. at 50. However, Plaintiffs offer no evidence or affidavits to contradict

Defendants sworn testimony. See, e.g., Def. Ex. C, Huyhua Aff., 7. Indeed, the only medical

record submitted by Plaintiffs (Pl. Ex. V) is in Spanish. Moreover, Plaintiffs do not dispute that

the vast majority of witnesses (including the 137 Plaintiffs) will be Spanish speakers, requiring

considerable costs and time in translation at trial, all of which weighs strongly in favor of Peru as

the more convenient forum. See Flores, 253 F. Supp. 2d at 541; Def. Ex. H, Carijano, p. 11

(Additionally, the Achuar Plaintiffs and most third-party witnesses likely do not speak English,

so the cost of translating oral and written evidence is likely to be costly and time-consuming.).

e. Private interest: Enforceability of judgmentPlaintiffs assert that they are not seeking to enforce a judgment against Doe Run Peru or

against Defendants in Peru, and yet they repeatedly claim throughout their Second Amended

Petition that Defendants and DRP are liable for conduct in Peru. Plaintiffs own papers suggest

that they are not just seeking compensation but also means to access healthcare and receive

treatment for their injuries in Peru. See Pl. Opp. at 41 n. 9. Because Peruvian judges have

exclusive competency to hear such claims concerning acts in Peru, the Republic will not

recognize any judgment from a United States court in this matter and it could not be enforced in

Peru. See Def. Ex. D, Bullard Aff., III.5, pp. 25-27. Accordingly, this factor favors dismissal.

f. Private interest: Residence of the parties and Plaintiffs forumchoice

Defendants readily acknowledge that seven Defendants are located in Missouri and two

Defendants are not. However, as the Eighth Circuit noted in Reid-Walen, the fact that a

defendant is sued in its district only takes on great significance where the plaintiff is a United



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States citizen as well. See 933 F.2d at 1395-96. One need look no further than Piper Aircraft or

Torres to see where a defendant was sued in its home district and dismissal was nonetheless

granted because the balance of private and public interest factors favored the foreign forum as

more convenient. See Piper Aircraft, 454 U.S. at 259-61; Torres, 965 F. Supp. at 907-08; Def.

Ex. H, Carijano, p. 12. Here, the same analysis is applicable, such that this factor is given little

weight.

g. Private interest: Defendants ability to impleadWith respect to the necessity of joining Centromin and the Republic of Peru in this

lawsuit, Plaintiffs again mistakenly assert that all of their claims are limited to October 23, 1997

through the present and are further limited to conduct exclusively attributable to Defendants

outside the scope of the Peru Complex PAMA. See Pl. Opp. at 51-52. As discussed in

Section II-A supra, Plaintiffs Third Amended Petition is not so limited. Moreover, it will not be

possible to adjudicate Defendants liability without inquiring into Centromin and the Republic of

Perus contributions to Plaintiffs alleged injuries, given that, among other things, 55 of the

Plaintiffs were born before DRP purchased the Peru Complex. See Next Friend Petitions (under

seal).

Plaintiffs counter that [a]ny potential issues related to indemnification could

appropriately be handled between Defendants and Centromin separately after this case comes to

final disposition. Pl. Opp. at 52. However, the U.S. Supreme Court has rejected the very

approach suggested by Plaintiffs. In Piper Aircraft, the Supreme Court specifically held that the

district court had correctly concluded that the problems posed by the inability to implead

potential third-party defendants clearly supported holding the trial in [a foreign forum]. 454

U.S. at 259. The Supreme Court acknowledged that, if the defendants were found liable after a

trial in the United States, they could institute an action for indemnity or contribution against



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these parties in the foreign forum. Id. The Piper Aircraft Court concluded that [i]t would be

far more convenient, however, to resolve all claims in one trial. Id. Likewise, here, the

inability to implead Centromin and the Republic of Peru (as well as DRP) strongly favor

dismissal.

h. Private interest: Plaintiffs ability to litigate in a foreign forumPlaintiffs assertion that Peru does not provide a cause of action over their claims is

unfounded, as explained previously.

i. Private interest: Expectations of the partiesPlaintiffs argument that Defendants should have expected to be brought into a Missouri

court for these claims is not credible. The case centers on Peruvian plaintiffs purportedly injured

in Peru based on the operation of a facility in Peru. Any reasonable party would expect tort

claims based on these facts to be brought in Peru. This factor therefore favors dismissal.

j. Public interest: Local interest in having localized controversiesdecided at home

Plaintiffs wrongly imply that Missouri has a greater interest in this controversy than Peru.

See Pl. Opp. at 53-54. Although seven Defendants are admittedly located in the forum, that is

principally the extent of the relevant connections to the forum. Plaintiffs assert that the citizens

of Herculaneum and persons who have sued Doe Run Resources have a localized interest in this

case, although Plaintiffs fail to identify what, if any, relevant information these individuals have.

The predominant local interest is in Peru, as detailed in the Republic of Perus official

objection to the lawsuit. Peru has extensively regulated the facility in question, has undertaken

specific obligations as to the Peru Complex and the surrounding community, and seeks to ensure

that Peruvian judges, not a Missouri court, will adjudicate the dispute at hand. Perus interest



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To determine choice of law, the Court would apply the most significant relationship

test. See, e.g., Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. 1969) (en banc). Under that test,

there is a presumption that the state with the most significant relationship is the state where the

injury occurred, absent an overriding interest of another state based on the factors articulated in

section 6 [of the Restatement (Second) of Conflict of Laws]. Here, Plaintiffs can show no such

overriding interest of Missouri compared to Peru, where the alleged injuries occurred. Thus,

Peruvian law will apply. See, e.g., Dorman v. Emerson Elec. Co., 23 F.3d 1354 (8th Cir. 1994)

(applying Canadian law where Canadian citizen brought suit for injury that occurred in Canada);

Spinozzi v. ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999) (applying Mexican law applied

where American citizen brought suit for injury that occurred in Mexico); Acapolon Corp. v.

Ralston Purina Co., 827 S.W.2d 189 (Mo. banc 1992) (applying Guatemalan law to plaintiffs

product liability claim where tort occurred in Guatemala).11 The need to apply foreign law

clearly favors dismissal. See Piper Aircraft, 454 U.S. at 260.

D. Federal Rule of Civil Procedure 19 Requires Dismissal of This LawsuitBecause DRP, Centromin and the Republic of Peru Are Necessary and

Indispensable Parties Who Cannot Be Joined in This Action.

1. DRP Is a Necessary PartyIn contending that DRP is not a necessary party, see Pl. Opp. at 57-63, Plaintiffs ignore

their own pleadings and admissions, as well as the fundamental principle that a subsidiary and its

parent corporation should be treated as separate legal entities.

11Plaintiffs reliance on the unpublished District of Columbia case discussed at page 56

of their Opposition is misplaced. Among other things, the court there applies not the most

significant relationship test, but the different governmental interests test, and cited plainly

inapposite case law that did not support the courts determination.



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a. According to Plaintiffs own pleadings, DRP is an activeparticipant in the alleged wrongdoing and therefore is a necessary

party to this action

Plaintiffs assert that Doe Run Perus actions are not the subject of Plaintiffs claims.

See Pl. Opp. at 57. This assertion is belied by the words of the Third Amended Petition, which

confirms that DRP must be considered an active participant in the alleged wrongdoing and

therefore a necessary party to this case not only for the period since March 2007, but for the

entire time period since DRPs purchase of the stock of Metaloroya in October 1997.

For example, Plaintiffs allege that the corporate Defendants through their agents . . .

managed/and or used the La Oroya Complex . . . or acted in conspiracy with each other

Defendant and unnamed co-conspirators . . . in a way that failed to control and contain the metals

and other toxic substances used and generated by the complex. . . . Def. Ex. A, 48. Notably,

in their Opposition, Plaintiffs do not and can not deny that DRP is one of the unnamed agents

and co-conspirators. See Pl. Opp. at 57-63; see also Def. Ex. A, 58, 63.

Similarly, Plaintiffs allege that the corporate Defendants through their agents. . . failed

and continue to fail to warn minor plaintiffs of the release of . . . toxic substances into the

environment and community surrounding the Complex. See Def. Ex. A, 49. Given that it is

the actual owner of a facility here DRP who would have any duty to issue warnings to nearby

residents and that Plaintiffs do not suggest that any of the corporate Defendants ever directed

DRP not to issue warnings, DRP is a necessary party to such claims.

b. Plaintiffs have improperly conflated DRP with its owners in afailed attempt to avoid the strictures of Rule 19

Plaintiffs Third Amended Petition and opposition papers also give insufficient regard to

the basic principle of corporate law that a parent corporation is not liable for the conduct of its

subsidiaries. See, e.g., Radaszewski v. Telecom Corp., 981 F.2d 305, 306 (8th Cir. 1992).



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Plaintiffs contend that the corporate Defendants are the appropriate parties because DRP has

no independent corporate will apart from the Defendants control . . . As such, DRP is not a

separate entity for tort law purposes. Pl. Opp. at 5. However, Plaintiffs have not proffered any

legal authority to support this theory and cannot circumvent FED.R.CIV.P. 19s requirements.

As an initial matter, Plaintiffs overlook that DRP is a Peruvian corporation. Thus, under

the internal affairs doctrine, the laws of DRPs state of incorporation, Peru, must be applied to

any veil-piercing claim. See In re Bridge Info. Sys., Inc., 325 B.R. 824, 830-31 (Bankr. E.D.

Mo. 2005), affd, 344 B.R. 587 (Bankr. E.D. Mo. 2006); Scottish Air Intl, Inc. v. British

Caledonian Group, PLC, 81 F.3d 1224, 1234 (2d Cir. 1996). Peru respects the separate legal

identities of a company and its parent, and Plaintiffs have failed to present any evidence that

Peru would permit the piercing of a corporations veil in order to impose liability on a parent in a

case alleging extra contractual liability. See Def. Ex. I, Bullard Reply Aff., VIII, pp. 26-27.

Even under the law of Missouri, to pierce the corporate veil, a plaintiff must show, inter

alia, [c]ontrol, not mere majority or complete stock control, but complete domination, not only

of finances, but of policy and business practice in respect to the transaction attacked so that the

corporate entity as to this transaction had at the time no separate mind, will or existence of its

own. Collet v. Am. Natl Stores, Inc., 708 S.W.2d 273, 284 (Mo. Ct. App. 1986) (emphasis

added); Iridex Corp. v. Synergistics USA, Inc., 474 F. Supp. 2d 1105, 1109 (E.D. Mo. 2007)

(Perry, J.). [A corporation] does not lose the benefits of limited liability by taking an active

interest in the affairs of its subsidiary, by using its voting power to elect directors, or by entering

into contracts with its subsidiary, so long as the corporate formalities are observed and the rules

followed. Acapolon, 827 S.W.2d at 193.



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Courts are unreceptive to attempts to circumvent the mandate of Rule 19 by alleging

that the absent subsidiary is merely the alter ego of the parent named as the defendant. See

Glenny v. American Metal Climax, Inc. 494 F.2d 651, 654-55 (10th Cir. 1974); accord Freeman

v. Northwest Acceptance Corp., 754 F.2d 553, 559 (5th Cir. 1985). Plaintiffs appear to be under

the misimpression that they can satisfy the no separate mind, will or existence requirement

merely by showing that DRP did not operate and make decisions about the Peru Complex in

complete isolation and independent from Doe Run Resources. See Pl. Opp. at 57. Even under

Missouri law, that far less stringent standard is not a basis for piercing a corporations veil.

Plaintiffs reliance on various public statements made by Doe Run Resources executives

or on Doe Run Resources website is also misplaced. See Pl. Opp. at 58-60. That officers of

Doe Run Resources discussed issues relating to DRP, or used the collective term we during

the period that Doe Run Resources was an indirect owner of DRP is not evidence that DRP

ceased functioning as a separate corporation during the time it was indirectly owned by Doe Run

Resources. In any event, these statements are irrelevant to the post-February 2007 time period.

Plaintiffs reliance on the Declaration of former DRP employee Agustin Mamani Mayta

is similarly misplaced. See Pl. Opp. at 60. Mr. Mamani Mayta maintains that there was a close

business relationship between DRP and Doe Run Resources, and that there were frequent

consultations between the two companies. However, Mr. Mamani Maytas statements also

confirm that DRP and Doe Run Resources functioned as separate corporations and that the

corporate formalities [were] observed and the rules followed. See Acapolon Corp., 827 S.W.2d


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