Vous êtes sur la page 1sur 47

Case: 4:08-cv-00525-CDP Doc.

#: 34

Filed: 06/11/08 Page: 1 of 47 PageID #: 1777

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION A. A. Z. A., et al., Plaintiffs, v. DOE RUN RESOURCES CORPORATION, et al., Defendants. ) ) ) ) ) ) ) ) ) )

Case No. 4:08-CV-00525 CDP

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS PLAINTIFFS THIRD AMENDED PETITION I. INTRODUCTION In 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

1464637

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 2 of 47 PageID #: 1778

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 BACKGROUND Plaintiffs 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 Claims

Plaintiffs 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

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 3 of 47 PageID #: 1779

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.,

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 4 of 47 PageID #: 1780

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 Claims

At 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

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 5 of 47 PageID #: 1781

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.

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 6 of 47 PageID #: 1782

C.

The Propriety of Peru as a Forum Compared to Missouri

Plaintiffs 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.

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 7 of 47 PageID #: 1783

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, 53141 (S.D.N.Y. 2002). To suggest otherwise is disingenuous on Plaintiffs part.

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 8 of 47 PageID #: 1784

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

Plaintiffs 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 that Peruvian 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.

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 9 of 47 PageID #: 1785

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 the sovereignty 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

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 10 of 47 PageID #: 1786

(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 90809; Sequihua v. Texaco, 847 F. Supp. 61, 63 (S.D. Tex. 1994).

10

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 11 of 47 PageID #: 1787

III.

ARGUMENT A. 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.

11

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 12 of 47 PageID #: 1788

1.

The Torres and Sequihua Cases

Plaintiffs 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 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 were distinguishable from Torres, which involved government participation, ownership, and subsequent 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 Perforaciones Maritimas 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.
2

12

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 13 of 47 PageID #: 1789

and resources; and the Republic of Ecuador has expressed its strenuous objection to 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 sovereign right 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 international comity principles

regarding

the

application

of

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.

13

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 14 of 47 PageID #: 1790

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

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 14

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 15 of 47 PageID #: 1791

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 Because Plaintiffs 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.

15

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 16 of 47 PageID #: 1792

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 natural resources 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.

16

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 17 of 47 PageID #: 1793

a.

Official sovereign actions by the Republic of Peru through Centromin

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

17

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 18 of 47 PageID #: 1794

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 wellrecognized 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 acts in 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.

18

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 19 of 47 PageID #: 1795

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 MINSA

Through 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 the sovereign 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.

The 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.

19

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 20 of 47 PageID #: 1796

a.

Releases of toxic metals

For 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 remediation

Likewise, 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
6

In 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.

20

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 21 of 47 PageID #: 1797

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 liability

Centromin 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

21

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 22 of 47 PageID #: 1798

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 MINSA

Plaintiffs 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.

22

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 23 of 47 PageID #: 1799

3.

Plaintiffs mischaracterization of the Torres case and foreign policy principles

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

23

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 24 of 47 PageID #: 1800

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 Lawsuit Because 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 of forum 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 Sosa v. 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).

24

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 25 of 47 PageID #: 1801

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 of the 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 Forum

Availability 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; ReidWalen, 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.

25

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 26 of 47 PageID #: 1802

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.

Plaintiffs 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.

26

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 27 of 47 PageID #: 1803

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 ReidWalen, 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

27

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 28 of 47 PageID #: 1804

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,

28

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 29 of 47 PageID #: 1805

560-61 (2000) (Peru identified as one of only thirteen countries consistently recognized by U.S. courts as an adequate alternative forum). Indeed, in the most recent case to address this issue, Carijano v. Occidental Petroleum, the Central District of California accorded little weight to the Peruvian plaintiffs conclusory allegations of perceived corruption (not actual corruption) and a past instance of bribery not involving the defendants. The Carijano Court thereby determined that Peru was indeed an adequate alternative forum for the Peruvian plaintiffs personal injury claims based on environmental pollution in Peru by American corporations. See Def. Ex. H, p. 9. This Court should reach the same conclusion here.

3.

The balance of private and public interest factors clearly weighs in favor of Peru as the more convenient forum for trial and resolution of Plaintiffs claims.

Plaintiffs assert that Defendants have not shown that the balance of private and public interest factors weighs heavily in favor of Peru, and that Plaintiffs choice of forum should therefore not be disturbed. See Pl. Opp. at 44-45. Plaintiffs are wrong. Because Plaintiffs are foreigners, their choice of forum is due substantially less deference and therefore the balance of factors need only be reasonably in favor of Peru. See Piper Aircraft, 454 U.S. at 255-56 & n.23; De Melo, 801 F.2d at 1062 n.4. In any event, the balance of factors is strongly in favor of Peru, as set forth in detail in Defendants opening memorandum at pages 35-44. a. Private interest: Relative ease of access to sources of proof and location of key witnesses

Plaintiffs claim that [t]here is no question that the majority of relevant sources of proof are more readily available in Missouri. Pl. Opp. at 45. This is blatantly false. Plaintiffs 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. These documents can easily be brought to Peru for trial. Plaintiffs also identify as

29

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 30 of 47 PageID #: 1806

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
10

Plaintiffs 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

30

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 31 of 47 PageID #: 1807

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 attendance of 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.

31

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 32 of 47 PageID #: 1808

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 compulsory process, 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 witnesses identified 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 premises

Defendants 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.

32

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 33 of 47 PageID #: 1809

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 judgment

Plaintiffs 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 forum choice

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

33

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 34 of 47 PageID #: 1810

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 implead

With 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

34

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 35 of 47 PageID #: 1811

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 forum

Plaintiffs assertion that Peru does not provide a cause of action over their claims is unfounded, as explained previously. i. Private interest: Expectations of the parties

Plaintiffs 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 controversies decided 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

35

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 36 of 47 PageID #: 1812

clearly overwhelms the interests of Missouri, which superiority matters most for forum non conveniens purposes. See Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 551 (S.D.N.Y. 2001). The Carijano Court made the same assessment, stating: Here, Peru has a strong interest in this dispute, because Block 1-AB and the Achuar Plaintiffs are located there, and because the suit involves Peruvian lands and citizens. Although California, too, has an interest in ensuring that businesses incorporated or operating within its borders abide by the law, the Court cannot say this interest overrides Perus concerns. To the contrary, the instant action raises issues such as the environmental regulation of Peruvian territory, and the allegedly tortious conduct carried out against certain Peruvian citizens, both of which a Peruvian tribunal would be better equipped to handle. On balance, this factor weighs in favor of Defendants. Def. Ex. H, Carijano, p. 11. In this case, the same reasoning applies and warrants dismissal on forum non conveniens grounds. k. Public interest: Unfairness of burdening citizens in an unrelated forum with jury duty

Likewise, Missouri citizens should not be forced to forsake their chosen occupations for a lengthy trial over matters centered in Peru. Notwithstanding Plaintiffs assertions that Missouri citizens have a great interest in the outcome of the case, Pl. Opp. at 55, it is clear that the incremental deterrence that would be gained if this trial were held in an American court is likely to be insignificant. The American interest in this [matter] is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here. Piper Aircraft, 454 U.S. at 260-61. l. Public interest: Avoidance of unnecessary problems in conflicts of laws, or in the application of foreign law

Finally, Plaintiffs incorrectly claim that Missouri law governs this case, citing not a Missouri case, but rather an unpublished opinion from the District of Columbia. Choice of law analysis definitively shows that Peruvian law, not Missouri law, will apply to Plaintiffs claims.

36

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 37 of 47 PageID #: 1813

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 clearly favors dismissal. See Piper Aircraft, 454 U.S. at 260. D. Federal Rule of Civil Procedure 19 Requires Dismissal of This Lawsuit Because DRP, Centromin and the Republic of Peru Are Necessary and Indispensable Parties Who Cannot Be Joined in This Action. The need to apply foreign law

1.

DRP Is a Necessary Party

In 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.

Plaintiffs 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.

11

37

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 38 of 47 PageID #: 1814

a.

According to Plaintiffs own pleadings, DRP is an active participant 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 a failed 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).

38

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 39 of 47 PageID #: 1815

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.

39

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 40 of 47 PageID #: 1816

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

40

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 41 of 47 PageID #: 1817

at 193. In sum, Plaintiffs have improperly assumed away DRPs separate existence in their futile effort to show that DRP is not a necessary party.12 Here, Plaintiffs pleadings clearly allege that DRP was an active participant in the allegedly wrongful operation of DRPs own Complex. necessary party. Thus, DRP must be considered a

2.

DRP Is an Indispensable Party

It is undisputed that DRP cannot be feasibly joined in this action. See Def. Opening Mem. at 47-48. This Court therefore must apply Rule 19(b) to determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. At pages 47-52 of their Opening Memorandum, Defendants demonstrated the ample justification under Rule 19(b) for finding that DRP is an indispensable party. Plaintiffs response is again to assume away DRPs existence as a separate party. Plaintiffs baldly assert that Defendants had complete and total control of decisions regarding Doe Run Perus presence in La Oroya and that the allegations of the Third Amended Petition are directed against Defendants based on their own wrongdoing, not that of Doe Run Peru. Pl. Opp. at 65-66. The crux of Plaintiffs argument is that a judgment rendered in DRPs absence cannot prejudice DRP or Defendants because DRP does not exist. As discussed above, Plaintiffs own pleading belies

The case law cited by Plaintiffs is inapposite. In Ceballos v. Shaughnessy, 352 U.S. 599 (1957), while there is dicta regarding subsidiary corporations, the case concerned whether certain government officials needed to be party to a deportation suspension proceeding. In Pujol v. Shearson/American Express, Inc., 877 F.2d 132 (1st Cir. 1989), plaintiff claimed the defendant corporation committed various torts against her to cover up wrongdoing at its Puerto Rican subsidiary, of which her husband had been president. However, it was undisputed that the subsidiary itself had no role in the conduct that was the predicate for plaintiffs claims and therefore could not have been an active participant in that conduct. Id. at 133.

12

41

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 42 of 47 PageID #: 1818

these contentions and Plaintiffs cannot circumvent the requirements of Rule 19 by invoking the doctrine of veil-piercing.13 Plaintiffs fail to distinguish the facts and reasoning of the principal cases relied on by Defendants. For example, with respect to Polanco v. H.B. Fuller Co., 941 F. Supp. 1512 (D. Minn. 1996), Plaintiffs assert that the Guatemalan subsidiary was indispensable in that case because the subsidiary manufactured the offending glue product, whereas here Plaintiffs allegations are purportedly not directed at DRP. Plaintiffs blatantly ignore the fact that the allegations are directed at purportedly toxic releases from the Peru Complex, which has been owned and operated by DRP since October 1997. DRP manufactured the emissions that purportedly injured Plaintiffs in the same way the subsidiary in Polanco manufactured the glue that allegedly injured the plaintiff in that case.14 Plaintiffs also fail to address the Polanco courts reasoning for finding the subsidiary to be a necessary and indispensable party to the action. As stated in Polanco: The exact effect which would be given a judgment adverse to [the U.S. parent] on [the Guatemalan subsidiarys] ability to litigate in Guatemala is unknown. However, plaintiffs complaint necessarily implicates the [Guatemalan subsidiarys] distinct and strong interest in legal determinations regarding the safety of its products. Nor is there any way, even under plaintiffs design conception theory, that a judgment against [the U.S. parent] will not be speaking directly and adversely to the quality of [the Guatemalan subsidiarys] products.

Significantly, in the only case cited by Plaintiffs to support their position, Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114 (D.C. Cir. 1991), the court assume[d] the validity of piercing the corporate veil; the issue was raised before the district court but not decided by it or briefed by the parties here. Id. at 1116. In addition, Plaintiffs overlook that in Polanco, the plaintiff alleged that the U.S. parent designed the glue, just as Plaintiffs here contend that Defendants made decisions concerning the emission controls to be used at the Peru Complex. See Polanco, 941 F. Supp. at 1522.
14

13

42

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 43 of 47 PageID #: 1819

Id. at 1521. Plaintiffs claims here similarly implicate DRPs distinct and strong interest in legal determinations regarding the safety of DRPs operations at the Complex, and any judgment against the Defendants would speak directly and adversely to the quality of those operations and DRPs concern for the health of residents of La Oroya. See, e.g., Def. Ex. A, 23 (the Peru Complex does not use appropriate ventilation or capture systems that could avoid emissions). The Polanco court also pointed out that, despite the community of interest that the U.S. parent and the Guatemalan subsidiary had in a determination that the glue was safe, those interests may well diverge at trial. See id. at 1522. Here, Defendants presumably will attempt to show that DRP is responsible for the operations at its own Complex. Conversely, DRP, were it directly represented, may well wish to ascribe responsibility to its parent. See id. As to Dou Yee Enter. (S) PTE, Ltd. v. Advantek, Inc., 149 F.R.D. 185 (D. Minn. 1993), Plaintiffs spend time discussing the facts of the case (without comparing them to this case) but make no effort to explain why Dou Yees concern with the foreign subsidiarys impaired ability to defend itself in subsequent lawsuits is not equally applicable here. See id. at 189.

3.

Centromin and the Republic of Peru Are Indispensable Parties

Plaintiffs make three assertions all incorrect regarding why their claims purportedly do not implicate the interests of Centromin or the Republic of Peru. First, Plaintiffs contend that the Third Amended Petition does not encompass contamination generated prior to October 1997, when DRP purchased the stock of Metaloroya from Centromin. Pl. Opp. at 67. That is simply not true, as discussed above in Section II-A. See also Def. Ex. A, 23, 36, 48, 49. Furthermore, Plaintiffs own evidence confirms that any attempt by Plaintiffs to carve out pre-1997 emissions would have no basis. For example, Plaintiffs make reference in their papers to the May 2005 report prepared by the Centers for Disease Control (the CDC Report). See Def. Ex. K hereto. The CDC Report notes that the

43

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 44 of 47 PageID #: 1820

Peru Complex has operated for more than 80 years, references the need to reduce lead exposure from historical contamination (page 12), refers to efforts to resolve health problems in the La Oroya population resulting from exposure to environmental contaminants believed to be associated with current and historical lead smelter operations (page 15), and states, with respect to the need for remediation of historical contamination, that accumulated lead resulting from the long history of smeltering activities in La Oroya is evident by numerous, large slag piles. (page 19). Thus, Plaintiffs position that their claims do not encompass contamination generated prior to October 1997 is not credible. Second, based on a plainly incorrect reading of paragraph 5.3 of the Stock Transfer Contract, Plaintiffs contend that Centromin (and the Republic of Peru through its Guaranty) did not assume liability for claims such as those asserted by Plaintiffs. See Pl. Opp. at 67. As demonstrated above in Section II-C, no basis exists for Plaintiffs construction of the contract. Third, Plaintiffs contend that their claims do not implicate the Republic of Perus regulation of the Complex. See Pl. Opp. at 68. However, Plaintiffs own expert, Carlos

Chipoco, has pointed out that this is just not so: In the case of Doe Run, . . . its extremely damaging activity has been permanently legitimized and validated by the Peruvian State through continuous modifications and extension by the [PAMA]. Pl. Ex. N, Chipoco Aff., 2.1, at 9. Mr. Chipocos statement also confirms that the Republic of Perus regulation of the Complex is not collateral to Plaintiffs claims. See Pl. Opp. at 68-69. As to the Rule 19(b) factors, it is undisputed that Centromin and the Republic of Peru cannot be joined in this action. Plaintiffs nonetheless contend that Centromin and the Republic are not indispensable parties because the majority of the relief sought could completely be provided for by Defendants without any involvement of the Republic of Peru or Centromin. Pl.

44

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 45 of 47 PageID #: 1821

Opp. at 69 (emphasis added). Plaintiffs do not specifically identify which portion of the relief they seek requires the presence of the Republic and Centromin, but their omission is telling (as is Plaintiffs statement that they do not seek recovery directly from the Republic or Centromin).15 The facts are clear: the Republic of Peru and Centromin are indispensable parties. Since Centromin and the Republic of Peru are ultimately liable for any judgment entered in favor of Plaintiffs, the disposition of this action may impede or impair their ability to avoid incurring a liability arising out of Plaintiffs claims. Moreover, a determination that the Peru Complex did not implement adequate pollution controls or that remediation of contaminated properties was delayed would impair or impede the interests of the Republic and Centromin. The prejudice to the Republic and Centromin also cannot be lessened or avoided by protective provisions in the judgment. Finally, because Centromin and the Republic will be ultimately responsible for any judgment rendered against the Defendants, a judgment entered against any of the Defendants would be inadequate. See Def. Opening Mem. at 55-56. IV. CONCLUSION For the foregoing reasons and those set forth in Defendants Opening Memorandum, this Court should dismiss Plaintiffs Third Amended Petition on international comity principles, the act of state doctrine, the doctrine of forum non conveniens, and the failure to join necessary and indispensable parties under FED. R. CIV. P. 19.

Plaintiffs alternatively argue that they lack an adequate remedy in the Peruvian courts. See Pl. Opp. at 69-70. As shown in Section III-C(2)(b) supra, this position is baseless.

15

45

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 46 of 47 PageID #: 1822

Dated: June 11, 2008

Respectfully submitted,

LEWIS, RICE & FINGERSH, L.C.

WILLIAMS VENKER & SANDERS LLC

By:

/s/ Andrew Rothschild Andrew Rothschild, #4214 Richard A. Ahrens, #2506 Robert J. Will, #4910 Michael J. Hickey, #101931

By: /s/ Theodore J. Williams, Jr. Theodore J. Williams, Jr., #24498 100 N. Broadway, 21st Floor St. Louis, MO 63102-2740 Telephone: (314) 345-5000 Facsimile: (314) 345-5055 Email: twilliams@wvslaw.com

500 N. Broadway, Suite 2000 St. Louis, MO 63102-2147 Telephone: (314) 444-7600 Facsimile: (314) 241-6056 Email: arothschild@lewisrice.com rahrens@lewisrice.com rwill@lewisrice.com mhickey@lewisrice.com Attorneys for Defendants The Doe Run Resources Corporation, Marvin K. Kaiser, Albert Bruce Neil, Jeffery L. Zelms, Theodore P. Fox III, and Daniel L. Vornberg

MCKEE NELSON LLP By: /s/ Michael M. Gordon Michael M. Gordon, pro hac vice

One Battery Park Plaza, 34th Floor New York, NY 10004 Telephone: (917) 777-4567 Facsimile: (917) 777-4299 Email: mgordon@mckeenelson.com Attorneys for Defendants DR Acquisition Corp., Renco Holdings, Inc., Ira L. Rennert, and The Renco Group, Inc.

46

Case: 4:08-cv-00525-CDP Doc. #: 34

Filed: 06/11/08 Page: 47 of 47 PageID #: 1823

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was filed with the Clerk of Court to be served this 11th day of June, 2008, via the Courts ECF system upon counsel of record.

/s/ Andrew Rothschild

47