morris pickering peterson steve moms, esq. (bar · pdf filethe province’s motion fails...

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MORRIS PICKERING & PETERSON Steve Moms, Esq. (Bar No. 1543) Rex Gamer, Esq. (Bar No. 9401) 300 S. 4th St., Ste. 900 Las Vegas, NV 89101 Telephone: (702) 474-9400 Facsimile: (702) 474-9422

HOWREY LLP Mark D. Wegener, Esq. (admittedpro hac vice) Edward Han, Esq. (admittedpro hac vice) Martin F. Cunniff, Esq. (admittedpro hac vice) 1299 Pennsylvania Ave NW Washington, DC 20004 Telephone: (202) 783-0800 Facsimile: (202) 383-6610

Attorneys for Defendants PLACER DOME, INC. and BARRICK GOLD CORPORATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

(LAS VEGAS DIVISION)

PROVINCIAL GOVERNMENT OF MARINDUQUE, a political subdivision of the Republic of the Philippines,

Plaintiff,

vs.

PLACER DOME, INC. and BARRICK GOLD CORPORATION,

Defendant.

Case No. 2:05-cv-1299-BES-RJJ

OPPOSITION OF DEFENDANTS PLACER DOME, INC. AND BARRICK GOLD CORPORATION TO PLAINTIFF’S MOTION FOR RECONSIDERATION AND TO ALTEWAMEND JUDGMENT

Case 2:05-cv-01299-BES-RJJ Document 229 Filed 07/13/2007 of 26

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... 111

PRELIMINARY STATEMENT ....... .... ... .. ...... ... ... ..... ... .... , ... ... ...... ............_. ... ...... ...... ... ... ....... ...... 1

ARGUMENT ... .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . ... ... .2

...

I.

11.

111.

Iv.

THE PROVINCE’S MOTION TO RECONSIDER IS FUNDAMENTALLY DEFECTIVE ..... ........ ........... ... ... ............. .. .......................... ... ......... 2

A. The Province’s Motion Fails To Identify The Rule And Legal Standard Providing The Basis For Relief ................................................................................ 2

The Province’s Motion Simply Reiterates Arguments That It Has Made Numerous Times Before .......................................................................................... 3

B.

THE COURT’S RULING UNDER THE DOCTRINE OF FORUM NON CONVENIENS SHOULD NOT BE RECONSIDERED .................................................... 4

A. The Court Properly Concluded That Ease Of Enforcement Of A Judgment Favors Canada .......................................................................................................... 4

The Court Properly Concluded That Nevada Has No Local Interest In This Lawsuit .......... ..... . ....................... ............................. ...... ................ ............... ............ 5

The Court Properly Concluded That This Action Would Be A Significant And Unfair Burden For A Forum With No Connection To The Parties Or Relevant Events ....................................................................................................... 6

The Court Properly Concluded That Expertise In Philippine Law Is A Neutral Factor .......................................................................................................... 7

B.

C.

D.

THE PROVINCE’S MOTION FOR RECONSIDERATION BASED ON LACK OF SUBJECT MATTER JLTRISDICTION SHOULD BE DENIED .................. ... .8

A. The Province’s Motion Takes Remarks Made At The Hearing Out of Context ..................................................................................................................... 9

The Province Has Identified No Basis Justifymg Reconsideration of The Court’s Ruling On Subject Matter Jurisdiction ..................................................... 11

Sincochem Requires Dismissal Rather Than Engage In Any Complex Junsdictional Inquiry ............................................................................................. 12

B.

C. . . .

THE PROVINCE’S ARGUMENT CONCERNING PERSONAL JURISDICTION DOES NOT AFFECT DISMISSAL FOR FORUM NON CONVENIENS .................................................................................................................. 12

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V. THERE IS NO REASON FOR THE COURT TO RETRACT ITS COMMENTS REGARDING THE AVAILABILITY OF A PHILIPPINE FORUM ............................................................................................................................. 15

THE COURT PROPERLY ENTERED JUDGMENT ON ITS ORDER DISMISSING THE ACTION ............................................................................................. 19

CONCLUSION ...... ... ....... ............ .. ..... .. ... ........................... .... ........... ...... ..... ..... ...... .................... ..20

VI.


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21 236 F.3d 1137 (9th Cir. 2001) .................................................................................. 11, 15

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TABLE OF AUTHORITIES

Alma Torreblanca de Aquilar v. Boeing Co., I1 F.3d 55 (5th Cir. 1993) .............................................................................................. 20

Banco Nacional de Cuba v. Sabbatino, 376 US. 398 (1964) ........................................................................................................ 10

Black & Decker Corp. v. Sanyei America Corp., 650 F. Supp. 406 (N.D. Ill. 1986) ..................................................................................... 7

Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446(9thCir. 1990) ........................................................................................ 11

Frasure v. United States, 256 F. Supp. 2d 1180 (D. Nev. 2003) ................................................................... 3, 11, 16

Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088 (9th Cir. 1998) ........................................................................................ 15

Gulfoil Corp. v. Gilbert, 330U.S.501 (1947) .................................................................................................. 10, 11

Ioannides v. Marika Maritime Corp., 928 F. Supp. 324 (S.D.N.Y. 1996) ................................................................................... 7

J.F. Edwards Construction Co. v. International Union of Operating Engineers, Local 150, No. 03 C 6058, 2005 U.S. Dist. LEXIS 381 (N.D. Ill. Jan. 11, 2005) ............................. 2

Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000) ............................................................................................ 3

Lueck v. Sundstrand Corp.,

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Offshore Sportswear, Inc. v. Vuarnet International, B. V., 114 F.3d 848 (9th Cir. 1997) .......................................................................................... 19

Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001) .......................................................................................... 10

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ........................................................................................................ 15


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Sinochem International Co. v. Malaysia International Shipping Corp., 127 S. Ct. 1184 (2007) ................................................................................................ 6, 12

SMT Shipmanagement & Transport Limited v. Maritima Ordaz C.A., No. 00 5789 (GEL), 2001 U.S. Dist. LEXIS 11928 (S.D.N.Y. Aug. 10,2001) ............... 7

Thomas v. Tenneco Packaging Co., 293 F.3d 1306 (11th Cir. 2002) ........................................................................................... 3

In re Walker, 332 B.R. 820 (Bankr. D. Nev. 2005) .............................................................................. 16

Warn v. M/Y Maridome, 961 F. Supp. 1357 (S.D. Cal. 1997) .................................................................................. 7

Warn v. M/Y Maridorne, 169 F.3d 625 (9th Cir. 1999) .......................................................................................... 11

K Shoshone National Council v. United States, 408 F. Supp. 2d 1040 @. Nev. 2005) ............................................................................... 3

RULES

Fed. R. Civ. P. 7@) ....................................................................................................................... 2

Fed. R. Civ. P. 54(a) ................................................................................................................... 20

Fed. R. Civ. P. 58(a)(l) ............................................................................................................... 19

Fed. R. Civ. P. 58(a)(2)(A) ......................................................................................................... 19

Fed. R. Civ. P. 59(e) ..................................................................................................................... 8

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Defendants Placer Dome, Inc. (“Placer”) and Barrick Gold Corporation (“Barrick”),

respectfully submit this Opposition to the Motion To Reconsider and Motion to AmendAlter

Judgment (“Motion”) submitted by Plaintiff Provincial Government of Marinduque

(“Province”). 1

PRELIMINARY STATEMENT

The Province’s rambling Motion merely recycles its previous arguments and attempts to

re-inject the issues of subject matter and personal jurisdiction, which is precisely contrary to the

teaching of the Supreme Court in Sinochem. The Province’s Motion fails even to identify the

applicable procedural rules and legal standards governing the relief requested and does not even

attempt to show that it meets the legal standard for reconsideration, i.e., the presence of newly

discovery evidence, clear error, or intervening change in controlling law. (Section I, infru.)

Each of the “Points for Reconsideration” identified by the Province should be rejected.

First, the Province’s arguments concerning the rulings on variousforum non conveniens factors

in the Court’s June 7,2007 Order, are mere disagreement with the Order rather than legitimate

bases for reconsideration. In any event, the Province’s arguments are wrong. (Section 11, infra.)

Second, the Province’s request for the Court to withdraw the June 7,2007 Order and remand the

matter to Nevada state court is improper because of the well-established difference in analysis of

substantive law governing the claims in a complaint and of the federal common law necessary to

evaluate actions of a foreign government. (Section 111, infu.) Third, the Province’s argument on

personal jurisdiction, an issue not decided by the Court, is baseless because it relies on a

distortion of remarks made by Defendants’ counsel at the May 22,2007 hearing. In any event,

pursuant to Sinochem, the Court correctly refrained from reaching the personal jurisdiction issue.

1 On July 11,2007 - more than two weeks after filing its Motion - the Province filed an “Amended” Motion To Reconsider And Motion to AmendAlter Judgment (Doc. No. 228.) In the interest of bringing this matter to a close, this Opposition shall serve as a response to both the Province’s Motion (Doc. No. 225) and its “Amended” Motion (Doc. No. 228). Unless otherwise noted, for the purposes of this Opposition, “Motion” shall refer to the Amended Motion. (Doc. No. 228.)

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(Section IV, infra.) Finally, the other issues argued by the Province, such as the Court’s

statements about the Philippines as a forum and the Province’s request to modify the order of

judgment, are equally without merit. (Sections V and VI, infra.)

The Province has already subjected the Court to thousands of pages of briefing on these

issues. In a series of carefully reasoned decisions, the Court has rejected the Province’s

arguments. The Province’s attempt to rehash its arguments yet again is an abuse in the extreme

of the reconsideration process. The Province’s Motion should be summarily denied.

ARGUMENT

1. THE PROVINCE’S MOTION TO RECONSIDER IS FUNDAMENTALLY DEFECTIVE

The Province’s Motion fails to identify, much less address, the applicable rules and legal

standards governing its request for relief. The Motion, therefore, should be rejected for these

procedural defects.

A. The Province’s Motion Fails To Identify The Rule And Legal Standard Providing The Basis For Relief

As a threshold matter, the Province fails to identify the applicable rule or rules under the

Federal Rules of Civil Procedure that provide the basis for its Motion to Reconsider. Moreover,

the Province also fails to cite to any legal standards governing the determination of its Motion.

This failure violates Rule 7(b) of the Federal Rules of Civil Procedure which requires a motion to

“state with particularity the grounds therefore. . . .” Fed. R. Civ. P. 7@). In light of the

sprawling scope of the Province’s Motion, which re-addresses again nearly every aspect of this

case that the Province disagrees with, this is more than a technical oversight and appears to be

procedural gamesmanship. The Motion should be denied for this defect alone. See, e.g., J.F.

Edwards Constr. Co. v. Int’I Union of Operating Eng’rs Local 150, No. 03 C 6058,2005 U.S.

Dist. LEXIS 381 (N.D. Ill. Jan. 11,2005) (failure to cite to either Rule 59(e) or Rule 60@) in a

motion for reconsideration alone is a sufficient reason to deny the motion).

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B. The Province’s Motion Simply Reiterates Arguments That It Has Made Numerous Times Before

In its Motion, the Province reiterates arguments that it has made numerous times before

in the voluminous briefing submitted to this Court and makes no attempt to meet the

requirements for a motion for reconsideration under Rule 59(e). “[R]econsideration is

appropriate if the district court (1) is presented with newly discovered evidence, (2) committed

clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in

controlling law.” Frusure v. United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003) (quoting

Sch. Dist. No. I v. ACandS, Znc., 5 F.3d 1255, 1263 (9th Cir. 1993)). As the Ninth Circuit has

observed, “[allthough Rule 59(e) permits a district court to reconsider and amend a previous

order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and

conservation ofjudicial resources.” Kona Enters., Inc. v. Estate ofBishop, 229 F.3d 877,890

(9th Cir. 2000) (citation and internal quotations omitted). A motion for reconsideration is not an

avenue to re-litigate the same issues and arguments upon which the court already has ruled. W

Shoshone Nut7 Council v. Unitedstates, 408 F. Supp. 2d 1040,1053 (D. Nev. 2005).

Including its latest Motion, the Province has now filed over 1,200 pages of briefing in

connection with Defendant’s motion to dismiss on the ground offorum non conveniens, in

addition to the over 2,500 pages of briefing in connection with jurisdictional issues. However,

instead of identifying new evidence, a change in law, or clear error in support of its Motion, the

Province merely reiterates arguments that it already made - and the Court rejected - in

connection with Defendants’ motion to dismiss. The fact that the Province disagrees with the

2 The Province’s Motion is replete with inflammatory rhetoric and personal attacks. See, e.g., Doc. No. 228 at 2 (“Defendants had to ‘sell’ three really major lies to this Court. . .”);Id. at 2-3 (accusing Defendants of the “serial lie,” the “endlessly-repeated lie,” and the “even more astonishing lie”); Id. at 8 n.23 (“The Defendants, who knew better, studiously misrepresented [the Natal] case to the court”). These types of attacks have appeared in virtually every pleading the Province has filed in this matter. As the Eleventh Circuit has pointed out, “submissions to the court serve as a vehicle for the articulation of specific facts that support a particular position relevant to a case. [They] . . . are not meant to be an avenue through which attorneys.. .can simply . . . sling mud at an adversary.” Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1324 (1 lth Cir. 2002).

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Court’s conclusions is unsurprising, but it does not establish grounds for reconsideration of the

Court’s Order. Indeed, the Province filed a notice of appeal on July 6,2007, and will have a

chance to convey its disagreement with the Court’s Order to the Ninth Circuit.

11. THE COURT’S RULING UNDER THE DOCTRINE OF FORUM NON CONVENIENS SHOULD NOT BE RECONSIDERED

The Province requests that the Court reconsider its ruling on various public interest and

private interest factors made in itsforum non conveniens analysis. However, the Province never

identifies newly discovered evidence, an intervening change in the law, or clear error, as it must

do to support a motion for reconsideration. Instead, the Province reargues its theory of the case

and expresses its disagreement with the analysis in the Court’s Order. For example, the Province

states that the Court’s analysis was “simply incorrect,” that it “dissent[s] from the Court’s view”

of certain factors, and that the Court “misanalyses” some factors. (Doc. No. 228 at 17, 19,22.)

As set forth below for each challenged factor, the Province has failed to identify any newly-

discovered evidence, an intervening change in law, or clear error in the Court’sforum non

conveniens analysis.

A. The Court Properly Concluded That Ease Of Enforcement Of A Judgment Favors Canada

In its Order, the Court concluded that the “ease of enforcement” factor weighed in --vor

of dismissal because a British Columbia court would be more familiar with the defendants -

Canadian corporations - and would be in closer proximity to the relevant actors. (Doc. No. 223

at 26.) The Province claims that this analysis was wrong because Barrick is incorporated and

headquartered in Ontario, not British Columbia. (Doc. No. 228 at 17-18.) The Province’s

argument is specious for several reasons.

First, if the Province believes that Ontario courts would be better situated to enforce a

judgment, it could file an action in Ontario. Barrick has consented to jurisdiction in both British

Columbia and Ontario courts. (Doc. No. 210 at 1.)

Second, whether the Province were to file an action in Ontario or British Columbia, this

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Court was certainly correct in concluding that Canadian courts would be more familiar with the

Canadian corporations that are the defendants in this action, and would be more conveniently

located near the Banick personnel who would be responsible for dealing with any proceedings to

enforce a judgment.

Third, the premise of the Province’s argument - that a judgment could most easily be

enforced against the assets of Barrick subsidiaries in Nevada - is also wrong. As the Court

correctly recognized, it is far from certain that enforcement of a judgment would require

attachment of assets owned by Barrick‘s Nevada subsidiaries. (Doc. No. 223 at 26.) In any

event, as discussed in the Defendants’ motion to dismiss, reaching the assets of Barrick’s

separately-incorporated subsidiaries would require proof sufficient to disregard the corporate

status of those subsidiaries under an alter-ego theory. Thus, if enforcement of a judgment were

necessary, the easier and more efficient course would be a proceeding in Canada against

Barrick’s ownership interest in its subsidiaries, not attempts to obtain the physical assets of those

subsidiaries.

B. The Court Properly Concluded That Nevada Has No Local Interest In This Lawsuit

In its Order, the Court correctly observed that none of the events at issue in this action

occurred in Nevada, none of the parties or the alleged victims of the alleged environmental

damage are Nevada citizens, and the litigation’s only connection to Nevada is the fact that

Banick has subsidiaries in the state. @oc. No. 223 at 27.) The Province does not dispute any of

these conclusions. Rather, the Province argues that (1) every United States citizen has an interest

in the adjudication of lawsuits of importance to U S . foreign relations, and (2) Nevada “and its

people would have a strong interest in discouraging improper practices by the multinational

miners operating within Nevada’s borders.” (Doc. No. 228 at 19-20.) These arguments are

baseless.

The claim that Nevada has an interest in litigation of issues that are important to US.

foreign relations, even if it were trne, is irrelevant here. The only reason that this lawsuit might

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impact the foreign relations of this country is if it were to proceed in this country. Dismissal in

favor of a foreign forum raises no foreign policy concerns for an action such as this involving a

foreign plaintiff, foreign defendants, and conduct occurring entirely in other countries. In any

event, the Province’s argument again confuses issues ofjurisdiction with the factors relevant to

forum non conveniens. That federal jurisdiction can be predicated on common law doctrines

relating to foreign affairs does not mean that every case implicating such doctrines must be

litigated in this country. As the Court in Sinochem made clear, a court that has jurisdiction to

adjudicate a case may “nevertheless dismiss the action under theforum non conveniens

doctrine.” Sinochem Int’l. Co. v. Malaysia Int’l Shipping Corp., 127 S. Ct. 1184, 1193 (2007).

The argument that Nevada has an interest in adjudicating a lawsuit involving no local

parties or issues simply because the defendant owns Nevada subsidiaries is contradicted by

numerous cases that Defendants cited in their briefing on the motion to dismiss. (See Doc. No.

210 at 17.) The Province does not address any of this authority, and presents none of its own.

The Province’s wide-ranging allegations concerning purported unfair practices by the

world’s mining companies are completely unsupported and baseless. But even if they were

given credence, the Province’s argument still does not make sense. Dismissal on grounds of

forum non conveniens does not preclude an action to redress alleged wrongs, but simply

recognizes that some other forum is more appropriate to adjudicate such an action.

C. The Court Properly Concluded That This Action Would Be A Significant And Unfair Burden For A Forum With No Connection To The Parties Or Relevant Events

The Province again argues that this Court may not consider the burden this litigation

would impose upon the local forum (Nevada), but must consider only the interests of the United

States as a whole. (Doc. No. 228 at 22-23.) The Province claims that this Court erred in “failing

to grasp” that it is a federal court rather than a Nevada state court. (Doc. No. 225 at 21.)

The argument ignores the fact that neither the United States nor Nevada has any relevant

connection to the parties or the challenged conduct. The action unfairly burdens a forum with no

connection to the litigation whether one considers the interests of courts and citizens in Nevada

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or the United States generally.

In any event, the authority the Province cites for the contention that the Court must

disregard the burden this case would impose on the judicial officers and the jurors who would

actually be involved in its adjudication does not stand for that proposition. For example, in Warn

v. M/YMaridome, 961 F. Supp. 1357 (S.D. Cal. 1997), the court explained that “[plublic interest

factors address the burden the litigation would place upon the Court and members of the public if

it were to proceed in the forum chosen by plaintiffs.” Id. at 1377. The court concluded that

“California [the chosen forum] and the United States have no interest in resolving this dispute.”

Id. (emphasis added). In SMTShipmanagement & Transport Ltd. v. Maritima Ordaz C.A.,

No. 00 5789 (GEL), 2001 U.S. Dist. LEXIS 11928 (S.D.N.Y. Aug. 10,2001), the court similarly

concluded that “[ilt is difficult to imagine a clearer case of a dispute which is of ‘local interest’ in

Venezuela, or one with which it would be more unfair to burden a jury of United States citizens

sitting in New York.” Id. at *34 (emphasis added). In Black &Decker Corp. v. Sanyei America

Corp., 650 F. Supp. 406 (N.D. Ill. 1986), andzoannides v. Mariku Maritime Corp., 928 F.

Supp. 374 (S.D.N.Y. 1996), the courts discussed the issue of burden in terms of the United

States’ interest (or lack of interest) in the litigation, but never suggested that the burden actually

imposed on the local forum is irrelevant.

D. The Court Properly Concluded That Expertise In Philippine Law Is A Neutral Factor

Reiterating the same arguments it made in its briefing on the motion to dismiss, the

Province again asks this Court to speculate that it will be better suited to consider issues of

Philippine law than ajudge in Canada. The Province cites no authority for its claim that the

Court must consider the “institutional competence” of courts in the United States and Canada in

Philippine law. (Doc. No. 228 at 24.) The Court of course knows its own experience in this

area, and no one knows the familiarity that any particular Canadian judge may have with

Philippine law. The Court acted well within its discretion in declining to engage in speculation

about the relative expertise of this Court and a Canadian court in resolving issues of law that are

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foreign to both.

* * *

Each of the Province’s arguments have been made ad nauseum in the over 1,200 pages of

briefing submitted in support of its Motion. The Province does not even attempt to meet - let

alone establish - the strict requirements of a motion for reconsideration. As set forth above, the

Province cites no legal authority or precedent in support of its Motion. The Province has had its

day in Court, and its Motion for Reconsideration of the Order onforum non conveniens is

entirely without merit.

111. THE PROVINCE’S MOTION FOR RECONSIDERATION BASED ON LACK OF SUBJECT MATTER JURISDICTION SHOULD BE DENIED

The Province’s Motion also appears to include a request that the Court reconsider its

November 6,2006 Order and remand this action to state court. (See Doc. No. 228 at 3-4.) The

Court’s seven-page Order carefully analyzes the jurisdictional issues, cites controlling Supreme

Court and Ninth Circuit precedent, and was correctly decided nine months ago.3 The Province,

here again, fails to cite any rules of legal procedure for reconsideration, and in no way attempts

to meet the standard for reconsideration set forth by the Ninth Circuit. This request, therefore,

should be dismissed outright.

Even if the request were proper, the Province mistakenly tries to find support for its

“reconsideration” based on remarks made by Defendants’ counsel at the motion to dismiss

hearing on May 22,2007 concerning the applicability of United States law to the Province’s

claims. However, the Province’s argument completely confuses the analysis required for subject

matter jurisdiction and forforum non conveniens. Moreover, under Sinochem, the Court does

not need to resolve complex jurisdictional issues before dismissing on grounds offorum non

conveniens.

3 As such, the Province’s request for reconsideration of the November 6,2006 Order is untimely since more than ten days have elapsed between that Order and the filing of the Plaintiffs Motion. Fed. R. Civ. P. 59(e).

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On October 27,2005, Defendants removed the action to this Court. (Doc. No. 1.) On

March 17,2006, the Province filed a Motion For Order Requiring Defendant To Show Cause

Why This Action Should Not Be Remanded To State Court. (Doc. No. 94.) Defendants filed its

Response on April 5,2006, setting forth that federal question jurisdiction was based on the

federal common law of foreign relations. (Doc. No. 107 at 11-13.) In its November 6,2006

Order denying the Province’s Motion (Doc. No. 161), this Court found that federal common law

requires a Court to “evaluate any act of state or apply any principal of international law” to

determine whether federal question jurisdiction exists. (Id. at 6.)

During oral argument at theforum non conveniens hearing, the Court inquired into

whether the claims in the Complaint are governed by foreign law, which is relevant to the

consideration of the factors analyzed forforum non conveniens purposes:

The Court: Mr. Wegener, when you say all claims are governed by substantive foreign luaw, are you asserting that those are covered by Philippine law or Canadian law?

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19 U.S. law.

- - 1 1 (Tr. at 7 (emphasis added).) Accordingly, Defendants’ counsel’s remarks had nothing to do with -1

Mr. Wegener: Both.

The Court: Both.

Mr. Wegener: Both. There are issues of Philippine law and Canadian law, but the one that that’s clear upon a careful, or even a not so careful reading of the entire complaint, there’s no claim, there’s no allegation that’s based on

the federal question jurisdiction based on federal common law, but rather were responding to the 22

claims on the face of the Complaint. 23

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The Province has taken the statements by Defendants’ counsel completely out of the

context of forum non conveniens, which was the basis of the Court’s inquiry, and now asserts

that because there are no claims based on US. law, this case does not arise under the “laws. . . of

the United States” as required by 28 U.S.C. 5 1331. (See Doc. No. 228 at 4 n.6.) The Province’s

argument, however, fails to distinguish between the underlying substantive law that forms the

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basis of the claims in the Complaint and the federal common law required to evaluate acts of

state.

Well-settled case law from the Supreme Court and Ninth Circuit establishes that the

applicability of U.S. law for federal jurisdiction andforum non conveniens are two separate and

distinct analyses. In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), a case in

which the Supreme Court considered whether the “act of state” doctrine required U.S. courts to

recognize the validity of the Cuban government’s expropriation of private property, the Court

held that determinations by US. courts implicating international relations and principles of

international comity fall squarely within the “enclaves of federal judge-made law.” Id. at 426.

Issues involving the United States’ “relationships with other members of the international

community must be treated exclusively as an aspect of federal law” and “should not be left to

divergent and perhaps parochial state interpretations.” Id. at 425. Following Subbutino, the

Ninth Circuit has observed that, “[Qederal common law is, of course, federal law; so if a

plaintiffs claim arises under the federal common law recognized by Sabbutino, the federal

courts will have jurisdiction under 28 U.S.C. 5 133 1 .” Putrickson v. Dole Food Co.,

251 F.3d 795, 800 (9th Cir. 2001).

In its Order denying the Province’s motion to remand for lack of subject matter

jurisdiction, this Court, citing Subbutino and Putrickson, found that federal common law is a

valid and recognized basis for conferring federal question jurisdiction. (Doc. No. 161 at 6.)

Thus, for purposes of federal question jurisdiction under the federal common law recognized in

Subbutino, whether the plaintiffs substantive claims are based on U.S. law is not im~ortant .~

A completely separate analysis occurs for the purposes offorum non conveniens. Under

Gilbert and its progeny, a court must evaluate various public factors, including the interest in

having the trial in a ‘yorum that is at home with the state law that mustgovern the case.” Gulf

4 Indeed, if any argument is inconsistent, it is the Province’s, who ask this Court to remand the case for finding no federal question jurisdiction, yet concede that “[tlhis Court is specifically charged with hearing cases that implicate the laws of the United States, including cases the [sic] impact the foreign relations of this country.” (Doc. No. 228 at 22-23.)

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Oil Corp. v. Gilbert, 330 U.S. 501,509 (1947) (emphasis added); see also Lueckv. Sundstrand

Corp., 236 F.3d 1137, 1145 (9th Cir. 2001) (public interest factors include local interest of the

lawsuit and burden on local courts and juries); Contact Lumber Co. v. P.T. Moges Shipping Co.,

918 F.2d 1446, 1452 (9th Cir. 1990) (“Public interest factors encompass . . . the preference for

having a forum apply a law with which it is familiar”); Warn v. M/YMuridome, 169 F.3d, 625,

629 (9th Cir. 1999) (affirming dismissal, noting that either Greece or the United Kingdom

“would be more adept at applying its own law”).

Because of the inherent differences between the two analyses, the foreign government

relations analysis that keeps the case in federal court does not turn on the question of whether

U.S. law governs a plaintiffs substantive claims under choice of law principles. In contrast,

whether a forum has a local interest will turn on the presence of claims based on U.S. law in the

complaint, and in this case, the lack of any such claims counsels towards dismissal.

B. The Province Has Identified No Basis Justifying Reconsideration of The Court’s Ruling On Subject Matter Jurisdiction

Reconsideration of this Court’s denial of the Province’s motion to remand would also be

improper because the Province has failed to identify any newly discovered evidence, intervening

change in the law, or clear error affecting the Court’s ruling. See Frasure, 256 F. Supp. 2d

at 1183 (quoting Sch. Dist. No. I J , 5 F.3d at 1263).

Although the Province appears to claim that Defendant’s statements during the motion to

dismiss hearing constitute “new evidence,” (see Doc. No. 228 at 4-5), Defendants’ position

concerning the applicability of U.S. law to the Province’s claims has been consistent throughout

the litigation. Indeed, Defendants have never argued that any of the Province’s claims arise

under U.S. law. Defendants raised the issue of lack of applicability of U.S. law in their Motion

to Dismiss (see Doc. No. 53 at 2-3) and in their brief in support of Removal. (See Doc. No. 107

at 6-7). Defendants established then, and have consistently maintained throughout this litigation,

that no claims were governed by United States, or Nevada law. Accordingly, there is no basis

for the Court to reconsider its denial of the Province’s motion to remand.

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C. Sincochem Requires Dismissal Rather Than Engage In Any Complex Jurisdictional Inquiry

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Even if the Province’s argument had a basis in law or logic, which it does not, because of

the principles set forth in Sinochem, this Court’s June 7,2007 Order is unaffected by the

Province’s argument to remand. As the Supreme Court made clear in Sinochem, where, as here,

theforum non conveniens analysis is straightforward, any jurisdictional inquiry is wholly

unnecessary. See 127 S. Ct. at 1188. (“‘[A] court need not resolve whether it has authority to

adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if

it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the

merits of the case”) (emphasis added). Following the Supreme Court’s instruction, this Court

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“[t]he complexity of these jurisdictional inquiries is contrasted by the relative ease with which the Court has concluded that this action - one filed by a foreign plaintiff, in a foreign forum, against defendants incorporated in a foreign jurisdiction, and alleging claims based on actions that occurred in a foreign nation - has been filed in an inconvenient and thus inappropriate forum. Consequently, the Court finds no need to engage the jurisdictional questions before dismissing on the basis of forum non conveniens.

(Doc. No. 223 at 6 (emphasis added).)

Under Sinochem, therefore, this Court need not conduct a burdensome jurisdictional

inquiry before dismissing on grounds offorum non conveniens. Thus, there is no basis upon

which to remand the action to state court, and the Province’s request must be denied.

THE PROVINCE’S ARGUMENT CONCERNING PERSONAL JURISDICTION DOES NOT AFFECT DISMISSAL FOR FORUM NON CONVENIENS

IV.

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23 Having improperly raised a request for the Court to reconsider subject matter jurisdiction

. in this Motion, the Province continues, now raising - under the guise of the Motion to reconsider 24

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theforum non conveniens decision - an argument concerning personal jurisdiction. This

argument, like the one directed towards subject matter jurisdiction, is completely improper and, . in any event, without merit.

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Defendants’ counsel at oral argument and contends that Defendants have “conceded” that they

are subject to personal jurisdiction in Nevada. (Doc. No. 228 at 5 ) . This contention is

disingenuous in the extreme.

Defendants have consistently argued that, because they have not engaged in operations in

Nevada except through indirect subsidiaries, resolution of the personal jurisdiction issues would

require the Court to undertake a complex veil piercing analysis - a burden that, under Sinochem,

should be avoided by dismissal:

“Dismissal is particularly appropriate because, even before reaching the merits of the Province’s wide-ranging and novel claims . . . this Court would need to decide whether it can exercise personal jurisdiction over Defendants. The burden associated with resolving the jurisdictional issue is evidenced by the Province’s service, in response to the Court’s Order . . . authorizing jurisdictional discovery, of 238 separate discovery requests. . . . In Sinochem, the Supreme Court made clear that the burdensomeness of the jurisdictional inquiry is a relevant consideration favoring dismissal forforum non conveniens. . . .” (Doc. No. 181 at 3 (emphasis in original).)

“[Tlhe Province suggests that, in order to resolve theforum non conveniens motion, the Court must delve deeply into merits and jurisdictional issues - e.g., . . . whether Defendants are the alter egos of their Nevada subsidiaries. . . . The Supreme Court has ruled, however, that such inquiries are wholly unnecessary and improper.” (Doc. No. 210 at 2.)

“[Ilf the Court declines to dismiss this case forforum non conveniens, the parties and the Court will face complex issues of personal jurisdiction - beginning with discovery disputes arising from the 238 ‘jurisdictional’ discovery requests served by the Province. . . . In Sinochem, the Supreme Court held that burden and delay associated with the personal jurisdiction inquiry favored dismissal. See 127 S. Ct. at 1194.” (Id.)

“To attach gold production in Nevada based on a judgment against Banick, the Province would have to pierce several layers of U.S. subsidiaries. . . . The Province’s glib suggestion that this Court will determine whether each of Defendants’ U.S. and Nevada ‘subsidiaries act as Barrick‘s agents and/or alter egos’ in the course of ruling on personal jurisdiction . . . merely illustrates the complexity and scope of the jurisdictional issues in this case. . . . Under these circumstances, Sinochem counsels dismissal onforum non conveniens grounds.” (Id. at 15-16 (emphasis in original).)

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At no time during oral argument did Defendants’ counsel contradict or retreat from this 1

position. To the contrary, Defendants’ counsel criticized the Province’s insistence that the Court

decide the personal jurisdiction issue:

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What we just heard was for all intents and purposes a pure jurisdictional argument, one that . . . circles around whether or not Bamck or Placer Dome can be found in this state to be doing business and, therefore . . . whether there is personal jurisdiction. That’s the sum total of what they’re arguing.

(Tr. at 56.) Far from conceding personal jurisdiction, therefore, Defendants’ counsel maintained

at the hearing that the Court should not decide the jurisdictional issue: “Sinochem . . . says when

the factors are present, and they point to the alternative forum, not only should @rum non

conveniens] be decided, but it should be decided swiftly, immediately, without consideration of

all of these jurisdictional issues that have been presented to the Court today.” (Tr. at 58

(emphasis added).)

Thus, viewed in the proper context, there is no inconsistency between the statements by

Defendants’ counsel that “Placer Dome and Barrick have business operations unrelated to the

claim in this state” (Tr. at 8)5 and Defendants’ position that - notwithstanding Barrick’s indirect

interests in subsidiaries that conduct mining operations in Nevada - a determination as to the

Court’s personal jurisdiction over Defendants will implicate complex issues of agency, alter ego,

and corporate veil piercing, which, under Sinochem, the Court should avoid.

Nor does Defendants’ argument that the case should be dismissed under the doctrine of

forum nun conveniens, even ifDefendants were subject to personal jurisdiction by virtue of

business operations in Nevada unrelated to the cause of action, constitute an admission that

Defendants are subject to such jurisdiction. The transcript of the hearing clearly reveals that, for

purposes of this argument, Defendants’ counsel was stating that the mere presence of

subsidiaries of Placer Dome or Barrick in Nevada has nothing to do with theforum non

conveniens analysis:

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Doc. No. 228 at 6.) Each of the statements on which the Province relies includes a variation of this phrase. (See

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So the factors all point to the alternative forum, and none of them point to Nevada. And the only thing that they [the Province’s counselJ keep bringing [up] is that, well, Placer Dome and Barrick had business operations here[.] [Blut they had nothing to do with the underlying events that occurred in the Philippines.

And there’s no case, Supreme Court or otherwise, that says the mere fact that you’re doing business - this is a jurisdictional issue anyway, but the mere fact that you’re doing business is enough to keep you in a forum where you filed it, if all these other factors point away from the forum in which you filed it.

(Tr. at 21 (emphasis added).)6

Because Defendants have never conceded that they are subject to personal jurisdiction in

Nevada, the Court should reject the Province’s improper request for reconsideration based on

grounds of lack of personal jurisdiction.

V. THERE IS NO REASON FOR THE COURT TO RETRACT ITS COMMENTS REGARDING THE AVAILABILITY OF A PHILIPPINE FORUM

There is no reason for this Court to retract its comments regarding the availability of a

Philippine forum because the Court’s dismissal of this case was based on the finding that an

adequate alternative forum is available in Canada - a finding that the Province does not

challenge in this motion. Indeed, the Province does not contend that reconsideration of the

Court’s finding that Defendants are not amenable to service and jurisdiction in the Philippines

will affect the disposition of this case. Rather, the Province insists that the Court reconsider this

issue because “[ilf this action proceeds in another (especiaZZy foreign) court, [this Court’s]

statements are likely to cause incredible and unnecessary mischief for not only the Province, but

for every Filipino adversary of the Defendants in this or any other case.” (Doc. No. 228 at 8

6

to be proper even though the plaintiff brought suit in the defendant’s home forum, where the defendant was unquestionably subject to personal jurisdiction. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (reinstating dismissal by district court in Pennsylvania, even though defendant that manufactured the plane involved in crash at issue was based in Pennsylvania); Lueck, 236 F.3d at 1137 (affirming dismissal although defendant manufacturer of allegedly malfunctioning radio altimeter was based in forum); Gemini Capital Group, Znc. v. Yap Fishing Corp., 150 F.3d 1088 (9th Cir. 1998) (affirming dismissal although two defendants were residents of the forum).

In several controlling cases, dismissal under the doctrine offorum non conveniens was held

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(emphasis added).) The Court should not - based on this incomprehensible and unsupported

statement - commit its valuable time and resources to resolve an issue that will have no impact

on the case before it.

In any event, reconsideration of this Court’s findings regarding Defendants’ amenability

to service and jurisdiction in the Philippines would be improper because the Province has

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identified no newly discovered evidence, intervening change in the law, or clear error or manifest

injustice affecting the Court’s ruling. See Frasure, 256 F. Supp. 2d at 1183.

First, the Province’s submissions and arguments concerning Philippine law are not based

~ on newly discovered evidence and the Court should therefore disregard them. The Affidavit of

H. Harry Roque, Jr., on which the Province’s argument is entirely dependent (see Doc. No. 228

at 9-10, 12-14 and notes 24-34,47-56,59), is not “newly discovered evidence” because the

Province, with the exercise of due diligence, could have obtained that evidence before the

Court’s judgment. See Zn re Walker, 332 B.R. 820,828-29 and n.9 (Bankr. D. Nev. 2005)

(“Evidence in the possession of the party before the judgment was rendered is not newly

discovered. . . [Tlhe evidence must have become available only after judgment (with the

exercise of due diligence)”) (quoting Feature Realty, Znc. v. City of Spokane, 331 F.3d 1082,

1093 (9th Cir. 2003) and 12 JAMES WM. MOOREETAL., MOORE’S FEDERALPRACTICE

$59.30[5][a][iii] (3d ed. 2005)) (internal quotations and citations omitted).

Nor can the Province complain that it was deprived of an opportunity to submit this

evidence, given that the Court, over Defendants’ objection, granted the Province leave to file a

31-page surreply, along with more than 100 pages of supporting affidavits and exhibits. (See

Doc. No. 217.) Indeed, the Court’s denial of Defendants’ request to file aresponse to the

surreply (Doc. No. 222) afforded the Province the last word on Defendants’ motion.

Second, the Province has identified no intervening change in controlling law. None of

the Philippine law on which the Province relies took effect after the briefing or argument of

Defendants’ motion to dismiss. To the contrary, all of the authority cited in the Province’s

supporting affidavit is dated 2004 or earlier. (See Doc. No. 226 at 4-6,n.4-12.)

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Third, the Province can show no error or injustice because the Court’s finding that “[a]

Philippine court has already concluded that PDI is not amenable to service in the Philippines and

thus is not subject to its jurisdiction” (Doc. No. 223 at 6) is fully supported by the record. As an

initial matter, the Province, through its own statements and conduct, has admitted that

Defendants are not amenable to service and jurisdiction in the Philippines. In its opposition to

Defendants’ motion, the Province asserted that it had no choice but to bring this action in Nevada

(Doc. No. 202 Ex. A at 3 (“Let us be clear about this: there was no ‘choice”’)) and that it was

“obliged to chase Defendants to North America.” (Id. (emphasis added).) The Province was so

obliged and had no choice because it recognized that a Philippine court would be unable to

obtain jurisdiction over Defendants. Moreover, the Province’s demand that dismissal on the

ground offorum non conveniens be conditioned on submission to Philippine jurisdiction

(Doc. No. 202, Ex. A at 55-59) - a demand that the Court properly rejected in light of the

availability of a Canadian forum - would have been superfluous if Defendants were already

amenable to service and jurisdiction in the Philippines.

In arguing that “The Court Completely Misreads the Natal Case” (Doc. No. 228 at 13),

the Province incorrectly contends that “[tlhe Philippine Judge in Natal. . . merely held that, on

the record before him, [PDI] was not properly served with summons by serving Placer Dome

Technical Services (“PDTS”) as its alleged agent.” (Id.) On its face, the Order in Natal goes

beyond the mere holding that PDTS was unauthorized to accept service for PDI. The Philippine

court expressly held that, according to the Director of the Company Registration and Monitoring

Department of the Philippine Security and Exchange Commission, PDI “is not even registered as

a corporation or a partnership, much less doing business in the Philippines.” (Doc. No. 226,

Ex. A at 15.) Thus, the finding of the Philippine judge in Natal was not limited to a technical

defect as to the party served; rather, that finding fundamentally precludes service of PDI in the

Philippines and the assumption of jurisdiction over PDI by any Philippine court.

The Province’s discussion of the Caluncan Bay case is also highly misleading.

Specifically, the assertion that PDI “remains subject to service” (Doc. No. 228 at 13-14) is

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I I 1 meaningless, except to the extent that it suggests - incorrectly - that PDI has been or can be

’ served in that case. Although the Calancan Buy case has been pending for three years? PDZ has

~ never been served. The Province’s reliance on Barrick’s 2006 Annual Report as evidence that

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Defendants are amendable to service is particularly misplaced, in the discussion of the Calancan

Bay case, Banick reported: “we are unaware of any attempts to serve the summons on PDI, nor

do we believe that PDZis amendable to service in the Philippines.” (Doc No. 226, Ex. B at 17

(emphasis added).) Nor is there any reason to believe that service on PDI will be any more

successhl in Calancan Bay than it was in the Natal case; as the Province is carehl to point out,

the same judge who ruled that service on PDI was unsuccessful in Natal presides over Calancan

Bay. (Doc. No. 228 at 13.) In sum, the Philippine court has not assumed jurisdiction over PDI in

Calancan Bay and the Province has made no showing that it ever will.

Tacitly acknowledging that the Natal court’s ruling is not as narrow as it wishes, the

Province includes a lengthy and self-serving discussion of Philippine law and procedure

(Doc. No. 228 at 9-10), apparently urging this Court to make its own determination as to PDI’s

amenability to service and jurisdiction in the Philippines. There is no reason for this Court to

attempt to substitute its application of Philippine law for that of a Philippine court.

In any event, the Province’s own description of Philippine law, applied to the allegations

before this Court, do not support a finding that PDI is amenable to service and jurisdiction in the

Philippines. Notwithstanding the Province’s inflammatory rhetoric, it is clear that PDI’s

involvement in this case arises from its minority interest in a Philippine company, Marcopper

Mining Corporation, the operations of which allegedly caused the environmental harms at issue

in this case. (See Doc. No. 135 11 11 1 (“Placer Development . . . retained roughly 40 percent of

Marcopper’s shares, which was the maximum interest that a foreign investor could then legally

own in a Philippine mining corporation”), 114, 116, 126, 137-38).) According to the Province’s

own expert, however,

See Doc. No. 226 at 3 n.2 (Calancan Bay case filed on July 23,2004).

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the phrase “doing business” shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the exercise of rights such as an investor; nor having a nominee director or officer to represent its interest in such corporation. . . .

(Doc. No. 226 at 4-5 n.6.) Thus, PDI’s involvement as a minority shareholder in Marcopper is

insufficient to subject PDI to service and jurisdiction in the Philippines.

Accordingly, there is no reason for this Court to reconsider the availability of a Philippine

forum.

VI. THE COURT PROPERLY ENTERED JUDGMENT ON ITS ORDER DISMISSING THE ACTION

Without citation of any authority, the Province argues that the judgment the Court entered

on its final order dismissing this case was improper and inaccurate. The law is to the contrary.

The Court’s Order finally resolved this action, and denied all relief. Under these circumstances,

Fed. R. Civ. P. 58(a)(2)(A) provides that the clerk shall prepare and enter a judgment. The rule

further provides that the judgment shall be “set forth on a separate document.” Fed. R. Civ.

P. 58(a)(l).

Contrary to the Province’s argument, it is immaterial that the dismissal order was not “on

the merits.” Although the judgment of course does not preclude litigation of the merits of the

Province’s claims in another forum, the Court’s dismissal does preclude relitigation of the issues

that the Court decided in ruling on the forum non conveniens issue. For example, in Offshore

Sportswear, Inc. v. Vuurnet Znt’l, B. %, 114 F.3d 848,851 (9th Cir. 1997), the Ninth Circuit held

that a prior dismissal on the ground of a forum selection clause did not preclude litigation of the

merits of the case in a proper forum, but did preclude relitigating the applicability and

enforceability of the forum selection clause. Similarly, in Alma Torreblanca de Aquilar v.

Boeing Co., 11 F.3d 55, 58-59 (5th Cir. 1993), the court held that prior dismissals on grounds of

forum non conveniens precluded relitigating the forum non conveniens issue in another federal

court. A judgment is appropriate to reflect the finality of the Court’s ruling with respect to this

issue of forum selection.

Finally, the Province is also wrong in suggesting that the Court’s judgment is

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“inaccurate” in failing to describe the basis for the dismissal. Fed. R. Civ. P. 54(a) provides that

a judgment “shall not contain a recital of pleadings . . . or the record of prior proceedings.”

CONCLUSION

For the reasons set forth above, the court should deny the Province’s Motion to

Reconsider and AmendAlter Judgment.

Respectfully submitted,

Dated: July 13,2007

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By: MOR€& Pk& RING & PETERSON Steve Moms,%sq. (Bar No. 1543) Rex Gamer, Esq. (Bar No. 9401) 300 S. 4th St., Ste. 900 Las Vegas, NV 89101 Telephone: (702) 474-9400 Facsimile: (702) 474-9422

HOWREY LLP Mark Wegener (admittedpro hac vice) Martin F. Cunniff (admittedpro hac vice) Edward Han (admittedpro hac vice) 1299 Pennsylvania Ave NW Washington, DC Telephone: (202) 783-0800 Facsimile: (202) 383-6610

Attorneys for Defendants PLACER DOME, INC. BARRICK GOLD CORPORATION


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CERTIFICATE OF SERVICE

Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada Electronic Filing

Procedures, I certify that I am an employee of MORRIS PICKERING & PETERSON, and that

the following documents were served via electronic service: OPPOSITION OF

DEFENDANTS PLACER DOME, INC. AND BARRICK GOLD CORPORATION TO

PLAINTIFF’S MOTION FOR RECONSIDERATION AND TO ALTEWAMEND

JUDGMENT

TO:

Patrick G. Byrne SNELL & WILMER, L.L.P. 3883 Howard Hughes Parkway Suite 1100 Las Vegas, NV 89109 Telephone: 702-784-5201 Facsimile: 702-784-5252 Email: [email protected]

Neil Peck John F. Kane h e l l & Wilmer 1200 Seventeenth Street, Suite 1900 Denver, Colorado 80202 Email: [email protected] Email: [email protected]

Allan B. Diamond Eric D. Madden James McCarthy Walter J. Scott DIAMOND MCCARTHY TAYLOR FINLEY & LEE, LLP 1201 Elm Street, 34th Floor Dallas, Texas 75270 Telephone: 2 14-3 89-5300 Facsimile: 214-389-5399 Email: [email protected] Email: [email protected] Email: [email protected]

,2007. cd-

DATED this /J day of

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mailto:[email protected]






morris pickering peterson steve moms, esq. (bar · pdf filethe province’s motion fails...

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