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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CLAUDIA BALCERO GIRALDO, et al., )
)
) Case No. 2:09-cv-1041-RDP
Plaintiffs, )
) REDACTED
v. ) PUBLIC VERSION
)
DRUMMOND COMPANY, INC., et al., )
)
Defendants. )
PLAINTIFFS’ OPPOSITION TO DEFENDANT DRUMMOND COMPANY
INC. (DCI)’S MOTION FOR SUMMARY JUDGMENT
ii
TABLE OF CONTENTS
I. Introduction and Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Statement of Facts in Opposition to DCI’s Motion for Summary
Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Plaintiffs’ Response to DCI’s Statement of Undisputed
Facts (PRDS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Plaintiffs’ Statement of Undisputed Material Facts (PSUMF) . . . . . . 6
C. Plaintiffs’ Statement of Disputed Material Facts (PSDMF) . . . . . . 19
III. DLTD Operated As the Alter Ego of DCI . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. DCI Exercises Complete Control and Domination Over
DLTD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1. DCI Owns Most of the Capital Stock of DLTD . . . . . . . . . . . 22
2. DCI and DLTD Have Common Directors and Officers . . . . . 23
3. DCI Finances DLTD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4. DCI Incorporated DLTD . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5. DLTD Is Inadequately Capitalized . . . . . . . . . . . . . . . . . . . . . 24
6. DCI Pays the Salaries and Expenses of DLTD . . . . . . . . . . . 25
7. DLTD Has Substantially No Business Except
with DCI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8. DCI Holds DLTD Out As a “Branch” of DCI, and DCI
Refers to DLTD’s Business and Financial
Responsibilities As Its Own . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iii
9. DLTD Acts in the Interest of DCI . . . . . . . . . . . . . . . . . . . . . 26
10. DCI Sold DLTD Property As Its Own . . . . . . . . . . . . . . . . . . 27
11. DLTD’s Daily Operations Are Not Separate and DCI
and DLTD Have Common Business Departments . . . . . . . . . 27
B. DCI Misused Its Control Over DLTD and As a Result
Proximately Caused the Deaths of Plaintiffs’ Relatives . . . . . . . . . . 28
IV. DLTD Was at All Times Acting as DCI’s Agent in Carrying
Out the Operations in Colombia . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
A. DCI Made Clear DLTD Acted As Its Agent in Coordinating
with the AUC and Such Actions Were Within the Scope of
DLTD’s Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
B. DLTD Accepted DCI’s Instructions and Acted on Them . . . . . . . . 33
C. DCI Retained and Exercised A Right of Control Over DLTD . . . . . 33
1. DCI Controlled Security at Drummond’s Colombian
Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2. DCI Established the Sham Verbal Policy for DLTD
to Follow, But It Was Never Enforced . . . . . . . . . . . . . . . . . . 34
3. DCI Exercised Control Over Labor Negotiations
at the Colombian Operations . . . . . . . . . . . . . . . . . . . . . . . . . 35
4. DCI Controlled DLTD’s Public Statements and
Represented DLTD at Government Meetings . . . . . . . . . . . . 36
V. DCI Also Ratified DLTD’s Wrongful Conduct . . . . . . . . . . . . . . . . . . . . . 36
VI. DCI Aided and Abetted the AUC’s War Crimes and Extrajudicial
Killings and Conspired with the AUC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
iv
A. The Evidence Shows DCI Had a Shared Purpose with the
AUC in Support of Plaintiffs’ War Crimes and Extrajudicial
Killing Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
B. DCI Also Conspired with the AUC to Commit War Crimes
and Extrajudicial Killlings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
C. Plaintiffs Have Put Forth Admissible Evidence Showing
DCI’s Direct Involvement in Aiding and Abetting and Conspiring
with the AUC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
1. Adkins’ statements are admissible under Fed.R.Evid.
801(d)(2)(D) because he was DCI’s agent and
employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2. Adkins’ statements are also admissible under Fed.R.Evid.
801(d)(2)(E) because he was engaged in a conspiracy
with DCI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
v
TABLE OF AUTHORITIES
CASES
Bellairs v. Mohrmann,
716 So. 2d 320 (Fla. 2d DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc.,
479 F.2d 135 (5th Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Berger v. Columbia Broad. Sys., Inc.,
453 F.2d 991 (5th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Boswell v. Gumbaytay,
2009 WL 1515872 (M.D. Ala. Jun. 1, 2009) . . . . . . . . . . . . . . . . . . . . . . . 41
Botowo v. Chevron Texaco Corp.,
312 F. Supp. 2d 1229 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 32, 37
Cabrera v. Jakabovitz,
24 F.3d 372 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Carlisle v. Deere & Co.,
576 F.3d 649 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
CFTC v. Gibraltar Monetary Corp., Inc.,
575 F.3d 1180 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
City of Tuscaloosa v. Harcros Chems., Inc.,
158 F.3d 548 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Co-Ex Plastics, Inc. v. AlaPak, Inc.,
536 So. 2d 37 (Ala.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
vi
Duff v. S. Ry. Co.,
496 So. 2d 760 (Ala. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
First Health, Inc. v. Blanton,
585 So. 2d 1331 (Ala. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Footwear, Inc. v. Chemical Bank,
119 B.R. 416 (S.D.N.Y. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Glenn Const. Co., LLC v. Bell Aerospace Servs., Inc.,
785 F. Supp. 2d 1258 (M.D. Ala. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Habaugh v. Geslin,
436 F. Supp. 2d 1315 (S.D. Fla. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Hollingshead v. Burford Equip. Co.,
828 F. Supp. 916 (M.D. Ala. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 24, 28, 30
In re BankAtlantic Bancorp, Inc.,
2011 WL 1585605 (S.D. Fla. Apr. 25, 2011) . . . . . . . . . . . . . . . . . . . . . . 42
In re Silicone Gel Breast Implants Prods. Liab. Litig.,
837 F. Supp. 1128 (N.D. Ala. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Johnson v. Austal, U.S.A., L.L.C.,
805 F. Supp. 2d. 1299 (S.D. Ala. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Johnson v. Flowers Indus., Inc.,
814 F.2d 978 (4th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Lusk v. Foxmeyer Health Corp.
129 F.3d 773 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
MCI Telecomm. Corp. v. O’Brien Mktg., Inc.,
913 F. Supp. 1536 (S.D. Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
New Plan Realty Trust v. Morgan,
792 So.2d 351 (Ala. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
vii
Nimbus Tech., Inc. v. SunnData Prods., Inc.,
484 F.3d 1305 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Perry v. Household Retail Serv.,
953 F. Supp. 1378 (M.D. Ala. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
Petty v. United Plating, Inc.,
2012 WL 2047532 (N.D. Ala. May 31, 2012) . . . . . . . . . . . . . . . . . . . . . . 21
Posner v. Essex Ins. Co.,
178 F.3d 1209 (11th Cir.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Renteria-Marin v. Ag-Mart Produce, Inc.,
537 F.3d 1321 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Rubin Bros. Footwear, Inc. v. Chemical Bank,
119 B.R. 416 (S.D.N.Y. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Strickland v. Champion Enter.,
2007 WL 1837136 (M.D. Ala. June 26, 2007) . . . . . . . . . . . . . . . . . . . 22, 23
Town of Brookline v. Gorsuch,
667 F.2d 215 (1st Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
U.S. PIRG v. Atl. Salmon of Maine, LLC.,
261 F. Supp. 2d 17 (D. Me. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
U.S. v. Bestfoods,
524 U.S. 51 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
U.S. v. Fidelity Capital Corp.,
920 F.2d 827 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
U.S. v. Jon-T Chemicals, Inc.,
768 F.2d 686 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 28
U.S. v. Santiago,
837 F.2d 1545 (11th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
viii
U.S. v. Siegelman,
640 F.3d 1159 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
United Steelworkers of Am. v. Connors Steel Co.,
855 F.2d 1499 (11th Cir. 1988)
887 F. Supp. 1455 (N.D. Ala. 1995) . . . . . . . . . . . . . . . . . . 20, 21, 22, 29-31
Wilkinson v. Carnival Cruise Lines, Inc.,
920 F.2d 1560 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Wood v. Holiday Inns, Inc.,
508 F.2d 167 (5th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
RULES
Fed.R.Evid. 801(d)(2)(D) and (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 43-45
I. Introduction and Summary of Argument.
Plaintiffs seek to hold Drummond Company, Inc. (DCI) liable for the
murders of Plaintiffs’ relatives under theories of aiding and abetting or conspiring
with the AUC and for the wrongful conduct of its agent and alter ego, Drummond,
Ltd. (DLTD). The evidence shows DCI and its key executives devised plans for the
illegal coordination with the AUC in Colombia. DCI CEO Garry Neil Drummond
(GND) directed DLTD to pay the AUC to protect Drummond’s interests in the
Colombian civil conflict. James Adkins, one of the masterminds of the illegal plan,
acted as DCI’s agent and his wrongful conduct is imputed to DCI.
Plaintiffs will show that there is sufficient evidence for a jury to decide
liability on the theories DCI raised in its brief: whether DLTD is the alter ego of
DCI and whether DCI is directly liable for aiding and abetting and conspiracy with
the AUC. Having neglected to move for summary judgment on Plaintiffs’ agency
and ratification theories, DCI has waived these arguments and any attempt to
belatedly raise them in reply briefing should be rejected. Nevertheless, in addition
to responding to DCI’s arguments, Plaintiffs will also show that DCI is liable
under the distinct theory that DLTD and Adkins were acting as DCI’s agents in
collaborating with the AUC. The evidence Plaintiffs have now gathered after full
discovery far exceeds the evidence presented in the Drummond I litigation
concerning alter ego and agency, and thus DCI’s motion should be denied.
Plaintiffs cross reference to Defendants’ exhibits. DLTD exhibits are lettered exhibits (Defs’1
Ex. A, etc.). DCI exhibits are numbered exhibits (Defs’ Ex. 1, etc.). Plaintiffs also crossreference their statements of fact in Plaintiffs’ DLTD Opposition (Pls’ DLTD Opp PSUMF __).Unless otherwise preceded by “DLTD Opp.,” the statements of fact refer to Plaintiffs’ statementsof fact in this brief. Plaintiffs contest the admissibility of certain portions of Mr. Webster’s declaration, as they are2
referenced in DCI’s Statement of Facts, 13, 15, 38, 40-42, 44. See infra Section III, n.4.
2
II. Statement of Facts in Opposition to DCI’s Motion for Summary
Judgment.
A. Plaintiffs’ Response to DCI’s Statement of Undisputed Facts (PRDS).
5. Disputed that DLTD is “responsible” for the mining operations. DCI controlled
DLTD’s operations and policies and
. See, e.g., PSUMF 9; 15; 25-27; 29; 33-40; 49; 51. 1
6. Disputed that DLTD “operated” the Colombian mine. See PRDS 5.
7. Disputed that DLTD “owned” the port. See PRDS 5; see also PSUMF 56.
8. Disputed. The citation does not show that DLTD held “all contracts,” or that
DLTD was “entirely responsible for mining, selling and shipping the coal.” See
PRDS 5; PSUMF 9; 51.
9. Disputed. The citation does not support the full statement.
. See PSUMF 50-51; 55-56; PRDS 5.
10. Disputed. See PRDS 9.
13. Disputed. The statement is not supported by Mr. Webster’s declaration, which
makes unsupported conclusory statements, and Plaintiffs dispute that DLTD was2
3
responsible for the “day-to-day operations of DLTD.” See PRDS 5.
14. Disputed. Jimenez reports to GND. Defs’ Ex. Q, Zervos Dep. 154:8-155:1.
15. Disputed. DLTD did not maintain separate departments and DCI participates in
the day-to-day operation of these departments. Mr. Webster’s declaration,
paragraph 7, directly contradicts his deposition testimony. See Defs’ Ex. 2,
Webster Dep. 115:10-16 (
); id. at 185:12-186:21 (discussing the DCI vendor qualification policy that
applied to Colombian operations). DCI monitored the purchasing department for
the Colombian operations. See Defs’ Ex. 4, Dortch Dep. 20:23-21:16; see also
PSUMF 34-35 (DCI’s participation in day-to-day operations); PRDS 5.
16. Disputed. DCI wrote and approved DLTD policies. See PSUMF 34-40.
17. Disputed. DCI executives selected contractors and vendors that are used for
coordinating security. See PSUMF 9; 14; 27.
18. Disputed. GND and DCI controlled security plans for DLTD in Colombia by
approving and rejecting plans. See PSDMF 3; PSUMF 12; 16; 26; 57.
20. Disputed. DCI did recommend and select security contractors. See PSUMF 14;
Pls’ DLTD Opp. PSUMF 13.
21. Disputed. DCI employees/agents Zervos, Tracy, GND and Adkins were
involved in creating security plans for the Colombian operations. See PSUMF 12;
4
26; PSDMF 3.
22. Disputed. DCI employees who were also DCI Board Members, received
regular security reports and updates and took various actions. See PSUMF 6; 17.
23. Disputed. DCI approved the hiring of James Adkins. See PSDMF 1.
24. Disputed. Adkins was also DCI’s employee and/or agent. See PSDMF 1-2;
PSUMF 2-6.
25. Disputed. Adkins was hired by DCI. See PSDMF 1; PSUMF 1; 34.
26. Disputed. Zervos was a DCI employee. Tracy held positions with DCI and
DLTD. Adkins also reported to GND. See PSUMF 3-6; 9; 16; 29; 36; PSDMF 2.
27. Disputed. DCI and GND approved cash payments and hidden surcharges to
Jaime Maya Blanco (JBM) to be passed onto the AUC. See PSDMF 4-5; Pls’
DLTD Opp. PRDS 12-13.
29. Disputed. JBM was paid by cash disbursements from DCI through James
Adkins. See PRDS 27.
31. Disputed to the extent it implies DLTD
. See PSUMF 34. DCI monitors purchasing
for DLTD and DLTD does not have its own purchasing/procurement department; it
is a DCI department. Defs’ Ex. 4, Dortch 20:11-21-16; PRDS 15.
32. Disputed to the extent it implies DLTD paid for vendors. See PRDS 5.
5
33. Disputed. DCI employees assisted in selecting DLTD’s vendors and the
Commitment of Funds policy governs this selection. See PSUMF 9; 14; 27; 38-40.
34. Disputed. This citation does not support this statement. Additionally, the DCI
Commitment of Funds policy provides approval for purchase orders in certain
circumstances. See PSUMF 38-40.
38. Disputed. Plaintiffs dispute DLTD has been
. See PSUMF 34; 38-40.
39. Disputed. DCI was not extracting enough coal in Alabama to sustain its
operations. See PSUMF 48. See also Defs’ Ex. 2, Webster Dep. 42:18-45:8.
40. Disputed. DLTD was not adequately capitalized. See PSUMF 34-40.
41. Disputed. See PSUMF 34-40.
42. Disputed. See PSUMF 58.
43. Disputed. The citation does not support the statement. See PRDS 42.
44. Disputed. See PRDS 42.
45. Disputed. DCI negotiated and sold 20% of the Colombian operations and has
provided DLTD with millions of dollars of equipment. See PSUMF 25; 56.
46. Disputed. DCI has financed security and mining equipment utilized in its
Colombian operations. See PSUMF 18; 23; 25-27.
47. Disputed. See PRDS 45.
6
50. Disputed. This policy was not “unequivocal” as it was not written, was not
enforced and DCI and DLTD executives repeatedly violated it. See PSUMF 45-6.
B. Plaintiffs’ Statement of Undisputed Material Facts (PSUMF).
As if set forth fully herein, Plaintiffs adopt all statements of disputed and
undisputed facts and responses in Plaintiffs’ Opposition to DLTD’s Motion for
Summary Judgment (Pls’ DLTD Opp.), filed Nov. 1, 2012, Doc. 407.
1. Adkins was a former CIA agent whom DCI hired as a security advisor. Adkins
believed his contract was with DCI executives GND and Baxter. See Defs’ Ex. C,
Tracy Dep. 104:7-13; 114:23-116:1; Defs’ Ex. K, Adkins Dep. 23:1-7; 54:17-55.
2. Bill Phillips, the head of security for DCI, told Adkins that GND was going to
fire him over a disagreement on security issues, so Adkins resigned. Defs’ Ex. K,
Adkins Dep. 75:13-76:6; 77:18-78:16.
3. Adkins said GND was his “real boss.” See Defs’ Ex. K, Adkins Dep. 161:12-15.
4. Adkins submitted his resignation letter to Tracy at DCI because Tracy was the
executive assistant to GND. Defs’ Ex. K, Adkins Dep. 96:14-97:17; Pls’ Ex. 1.
5.When Adkins was a consultant, he provided his invoice for payment to Tracy at
“Drummond Corporation,” because Tracy was the assistant to GND. Defs’ Ex. K,
Adkins Dep. 101:17-102:12; Pls’ Exs. 2; 3.
6. Adkins sent reports concerning security for the Colombian operations to DCI
7
executives, including Phillips, the head of security for DCI, Bud Long, and Curt
Jones. Pls’ Ex. 4; Defs’ Ex. K, Adkins Dep. 147:8-148:2; id. at 161:2-11; see also
Pls’ Exs. 5; 6; 7; 8; 9; 10; Defs’ Ex. K, Adkins Dep. 178:4-11.
7. Adkins referenced the need for the “Drummond Corporation” to address a
number of important issues, which meant “the operational end of it. The people
who were making decisions about what Drummond was going to do in . . .
Colombia. And that . . . would include the Bogota office, the leadership back in ...
the United States, and . . . Mr. Tracy and Mr. D.L. Lobb . . . and Mr. Drummond.”
Defs’ Ex. K, Adkins Dep. 213:6-16; Pls’ Ex. 11.
8.
9. Tracy was involved in awarding contract bids in Colombia from 2004-2007
while President of Mining at DCI. He oversaw the background checks performed
by the Purchasing Department, which included checking the OFAC list. See Defs’
Ex. C, Tracy 232:5-235:4 (1992 to 1998); id. at 237:3-238:1 (2004 to 2007).
10. GND and other DCI executives attended meetings with the Colombian and
U.S. governments, security meetings, and meetings involving the “whole scope of .
. . company operations.” Defs’ Ex. K, Adkins Dep. 85:10-86:3; id. at 83:9-84:3;
Defs’ Ex. D, Drummond Dep. 64:9-21; 67:17-68:14; 96:10-21; 97:18-98:11; Pls’
8
Ex. 13; 14; 15; Defs’ Ex. S, Linares Dep. 187:22-188:15.
11. Tracy, on DCI letterhead, told GND he drafted a document on terrorism in
Colombia for DLTD to submit to the U.S. embassy in which DCI acknowledges
the illegality of coordinating with the AUC. Pls’ Ex. 16.
12. GND often discussed security ideas with Adkins, including supplementing
Drummond’s rail line security with tanks. Defs’ Ex. K, Adkins Dep. 242:8-16; Pls’
Ex. 17; see also Defs’ Ex. K, Adkins Dep. 60:6-61:7; 70:13-74:12; 75:2-12.
13. Zervos provided updates to GND concerning attacks on Drummond’s rail line.
See Defs’ Ex. Q, Zervos Dep. 114:11-118:8, 154:15-24; Pls’ Ex. 18.
14. DCI was directly involved in security contracts in Colombia. See Pls’ Exs. 19
( ); 53 ( ).
15. Between 1992-1998, DLTD President Tracy reported to DCI President of
Mining, and he met with GND regularly about security issues in Colombia,
including for ex-pats, which was a “big concern,” and the “operational side of
business.” See Defs’ Ex. C, Tracy Dep. 35:18-37:1 (reporting to Baxter).
16. DCI President of Mining, Zervos, instructed Adkins to assemble a security task
force and create a security plan, and Adkins did so. See Defs’ Ex. Q, Zervos Dep.
159:23-163:3; 181:17-187:18; Pls’ Ex. 51.
9
17. DCI executives, including Zervos, Tracy, GND, Phillips, Baxter, and others
requested and received specific security information from the Colombia operations.
Pls’ Exs. 8 (indicating contractor was paying the AUC); 9; 11; 17; 20-24; Defs’
Ex. Q, Zervos Dep. 48:17-50:14; 111:17-112:16; 114:11-115:10; 116:21-118:8;
139:15-142:5; Defs’ Ex. S, Linares Dep. 204:15-207:16, 211:6-212:15; Defs’ Ex.
C, Tracy Dep. 135:2-138:20; 144:4-148:23; 149:5-154:4; 154:9-157:9; 157:15-
162:15; 167:3-170:7. See also PSUMF 6.
18. Per GND’s authorization, Drummond provided the Colombian military with
money for food, fuel, security equipment and supplies, and Drummond built
barracks at the mine and at the port. See Defs’ Ex. C, Tracy Dep. 50:1-53:1; Ex. Q,
Zervos Dep. 127:17-129:13; id. at 200:6-201:25 (discussing authorization for $1.1
million, which is an amount that required GND’s “ok to proceed”; see also Pls’ Ex.
25, at DR 049370-372); Defs’ Ex. K, Adkins Dep. 142:13-18.
19. Drummond did not track how the military was spending the money that it
provided, and there was no way to tell what the money was used for. See Defs’ Ex.
C, Tracy Dep. 177:17-178:13; Defs’ Ex. D, Drummond Dep. 142:1-143:3.
20. After the union leaders’ murders in 2001, GND was involved in union
discussions in Colombia on issues of security. Defs’ Ex. D, Drummond Dep.
123:2-125:6. The union requested GND’s presence “as the top authority of that
10
company.” Pls’ Exs. 26; 27 (Zervos asked Tracy to speak with GND about
payment to widow because of the “potential precedent it may send”).
21. Zervos and Jimenez kept GND informed about union issue on a regular basis.
See Defs’ Ex. D, Drummond Dep. 123:14-131:10.
22. GND “delegated” to Zervos, of “Drummond,” in the U.S. the task of meeting
with the union in Colombia to discuss the union leaders’ deaths. Defs’ Ex. Q,
Zervos Dep. 220:2-221:7. It was within Zervos’ normal duties as a DCI employee
to meet with the union. Id.; see also Pls’ Ex. 28.
23. Adkins requested security equipment from DCI head of security, Phillips, and
DCI’s finance department got involved. Defs’ Ex. K, Adkins Dep. 230:13-231:17.
24. From 2001-04, while Tracy was the executive assistant to DCI CEO, GND, he
oversaw and reviewed Colombian operations and traveled to Colombia 3-5 times a
year. See Tracy Dep. 62:9-20.
25. Tracy, the VP of Special Projects at DCI between 1998 and 2001, was involved
with projects for the provision of mining equipment, such as the 13-million pound
drag line. See Defs’ Ex. C, Tracy Dep. 42:4-43:22; see also Pls’ Ex. 29, at
.
11
26. As the DCI VP of Special Projects, Tracy was brought in to help with security
problems along the railroad in Colombia, and he was involved in the provision of
security equipment for the railroad in Colombia, including two air planes. See
Defs’ Ex. C, Tracy Dep. 45:7-48:10.
27. As DCI’s VP of Special Projects, Tracy evaluated vendors who provided
security equipment, negotiated the price, and picked the vendor to hire. He was
also involved with hiring two consultants to review security along the railroad. See
Defs’ Ex. C, Tracy Dep. 45:7-48:10.
28. GND is not sure if he held a position with DLTD or DUSA, but when he takes
actions, he does so as the CEO of DCI. See Ex. D, Drummond Dep. 17:14-18:12.
29. Ken Dortch, Senior Accounting Officer for the Drummond Group, oversees
accounting for all of the Drummond entities. Defs’ Ex. 4, Dortch Dep. 17:3-19.
John Fallis, Chief Information Officer, oversees technology for DCI and all of its
subsidiaries, including DLTD. Pls’ Ex. 30, Fallis Dep. 9:7-10:17. Adam Creel
administers the email system for both DLTD and DCI. Id. at 39:14-22. Tracy has
held positions for both DCI and DLTD. Defs’ Ex. C, Tracy Dep. 25:6-41:22.
30. DCI executives who were board members of DUSA only had DCI email
addresses. Defs’ Ex. Q, Zervos Dep. 146:11-17; Defs’ Ex. C, Tracy Dep. 205:23-
206:6. All DUSA officers were also DCI officers. Defs’ Ex. 2, Webster Dep.
12
157:15-158:7.
31. DCI and DUSA have the same registered addresses. See Pls’ Ex. 31.
32. Zervos simultaneously was the VP of Mining of DCI and an officer and board
member of Drummond USA “as far as [his] role in Colombia goes.” Defs’ Ex. Q,
Zervos Dep. 64:18-65:20; 80:1-8.
33.
.
34.
13
36. GND approved large purchases made by DLTD. See Defs’ Ex. D, Drummond
Dep. 111:3-11; id. at 112:4-9. Tracy, as “President of Mining, DCI,”
. GND and Zervos were concerned
about the costs and “use of contractors in Colombia.” Pls’ Ex. 33; Pls’ Ex. 34.
Pls’ Ex 57; Defs’ Ex. Q, Zervos Dep. 55:17-56:22
(Zervos had authority to approve “everything that had to do with the operations in
terms of mining, transporting and shipping coal”).
37. The head of Purchasing for DCI approved DLTD’s Policies and Procedures
Manual. See Defs’ Ex. 4, Dortch Dep. 105:7-20; Pls’ Ex. 32 (
); Defs’
Ex. O, Peel Dep. 25:17-27:5 (stating that DCI wrote the DLTD Procurement
Procedures to formalize purchasing procedures and documentation for DLTD); see
14
also Pls’ Ex. 35, at
).
38. DCI created the Commitment of Funds Policy and GND approved it. DCI
trained DLTD on this policy. Pls’ Ex. 36, at DR217571; Defs’ Ex. 4, Dortch Dep.
60:20-62:21; Defs’ Ex. O, Peel Dep. 87:14-90:5.
39. The Commitment of Funds Policy states, “[t]he Chief Financial Officer is
responsible for establishing a process for keeping the Colombian counterparts
informed of relevant accounting issues and transactions and for establishing and
maintaining necessary review and approval processes for the Colombia Accounts
Payable Department.” Pls’ Ex. 36, at DR217574.
40. The Commitment of Funds Policy mandates that “Authorizations for
Expenditures (AFEs) in amounts over $100,000.00 cannot be made until the
funding from Drummond, Co. Inc. has been approved through the DCI AFE
approval process.” Pls’ Ex. 36, at DR217579.
41. DCI’s Management Information Services Department “synchroniz[es] and
standardize[s] equipment [and] software purchases so that [DCI] can maintain
consistency and standardization.” Pls’ Ex. 30, Fallis Dep. 15:12-23.
42. DCI transports, on aircraft it owns, DCI and DLTD employees and contractors
15
to and from Colombia and the U.S. Defs’ Ex. 2, Webster Dep. 233:17-237:9.
43. Tracy, while working at DLTD, sent memos using DCI letterhead. See Defs’
Ex. D, Drummond Dep. 91:11-92-8; Pls’ Ex. 37.
44. DCI officials admit that if the Colombian military used Drummond funds to
collaborate with the AUC, this would be illegal. See Defs’ Ex. C, Tracy Dep. 78:7-
83:7; Defs’ Ex. D, Drummond Dep. 156:6-18.
45. GND created the unwritten verbal policy prohibiting cooperation with
paramilitaries or any illegal groups. See Defs’ Ex. D, Drummond Dep. 33:12-21;
54:21-56:1; 62:3-63:6; Defs’ Ex. K, Adkins Dep. 143:18-144:17; Defs’ Ex. S,
Linares Dep. 194:1-195:8; see also Pls’ DLTD Opp. PRDS 17.
46. GND never conducted an investigation after ex-paramilitary Duarte implicated
DCI executive Tracy simply because he believed Tracy would not lie to him. See
Defs’ Ex. D, Drummond Dep. 75:16-77:14.
47. DCI drafted , edited, revised, and approved DLTD’s press releases with
instructions from DCI to “not make any changes to the wording without discussing
with [DCI].” See Pls’ Ex. 38, at DR006783-84; Defs’ Ex. D, Drummond Dep.
74:23-75:7; 81:2-6 (directing statement be published); Pls’ Ex. 39 (DCI drafted).
48. “In 1987 [DCI] formed [DLTD] to carry out its projects in Colombia. Through
this subsidiary, the corporation acquired the rights to explore, exploit, and export
16
coal from [Colombia].” Pls’ Ex. 40, at 28-29; Pls’ Ex. 41 (“[W]e shut down mines
in Alabama . . . because all the coal was dug out . . . Colombia is where the coal is
now.”); see also Defs’ Ex. C, Tracy Dep. 118:10-22 (DLTD established for tax
“pass-through” purposes).
49. GND received coal production and operation reports from DLTD on a frequent
and regular basis. See Defs’ Ex. Q, Zervos Dep. 153:14-155:13.
50.
17
51. DCI had oversight of contracts in Colombia, Pls’ Ex. 19, PSUMF 9, and
referred to contracts as if DCI entered into those contracts.
.
52. Disruptions in the Colombian rail operations affect DCI’s operations directly
and many were carried out by guerillas. See Defs’ Ex. Q, Zervos Dep. 71:9-72:15,
151:20-152:18; see also Pls’ Ex. 29, at DR216401; 18; 24; PSDMF 4.
53. The press reported the Colombian mine is the “centerpiece of the Drummond
empire” and “[Garry] Drummond travels [to Colombia] at least every three months,
hosting . . . [i]nvestment bankers, mining rivals, trade journal editors . . .
Drummond is like a proud father of a $1 billion baby.” Pls’ Ex. 41.
54. Zervos and Jimenez agreed that “Drummond” had to function as one company
in security and operations where there were “day-to-day relations.” Defs’ Ex. E,
Jimenez Dep. 98:11-99:23.
55. DCI held itself out to the public on its website as one integrated corporate
entity, “Drummond.” Pls’ Exs. 42; 43; 44 (“Drummond family now extends into
South America.”); 45 (“The Company has also successfully exported many of
these environmental techniques to Colombia.”); 59 (global operations). As of 2006,
18
DCI maintained an “Employment” page, which had a link for “South American
Recruiting.” Pls’ Ex 46. This link automatically opened an email to a DCI address
([email protected].). Id. DCI began to advertise DLTD positions
on a separate site, accessible through DCI’s website. See Pls’ Ex. 56. DLTD is
referred to as a “branch in Colombia of a United States company.” Id. The top of
the page says, “employment openings at Drummond Company Inc.” Id. The only
link is to DCI’s website. “All rights are reserved to [DCI].” Id.
56. DCI “and Drummond affiliated companies” entered into a partnership
agreement with Japanese company Itochu in which it sold a portion of the
Colombian operations; Itochu now owns 20% and “Drummond” owns “80% of the
Colombian mining operations and related infrastructure . . . currently owned 100%
by Drummond.” See Pls’ Ex. 47. Only DCI executives negotiated the sale. Defs’
Ex. D, Drummond Dep. 19:2-22:14.
57.
Pls’ Ex. 61. DCI also audited
“[t]he overall effectiveness of [DLTD’s] security program . . .” Pls’ Ex. 48.
58.
.
19
59.
.
C. Plaintiffs’ Statement of Disputed Material Facts (PSDMF).
1.GND had to approve hiring and terminating Adkins. Defs’ Ex. K, Adkins Dep.
25:17-21; id. at 61:6-66:9. Cf. DCI Statement of Undisputed Material Facts (DCI
SUMF) 23; 25.
2. Adkins also reported to Tracy, Zervos, and Phillips. Zervos and Phillips were at
all times DCI employees. Tracy held positions with both DCI and DLTD. GND,
Tracy, and Zervos gave Adkins performance reviews and feedback. See Defs’ Ex.
K, Adkins Dep. 57:4-13; id. at 80:19-81:6; id. at 161:10-15. Cf. DCI SUMF 26.
3. DCI executives GND, Zervos, Tracy, and Don Baxter reviewed, approved, and
dismissed security plans for DLTD, and were directly involved in establishing
DLTD security policies and plans. See Defs’ Ex. E, Jimenez Dep. 128:15-129:15;
see also Pls’ Exs. 49, 50, 51, 52, . Cf.
DCI SUMF 18.
4. GND approved funding to the AUC and the AUC understood they were dealing
with GND and DCI. Pls’ Ex. 54, Charris Dep. 18:2-20:21 (GND directed Adkins’
coordination with the AUC “to neutralize the activity and presence of the
20
guerilla”); id. 25:5-10; 22:14-19 (Adkins, under direct orders from GND, had to
solve any problems with the railway because “they were going through a crisis, a
collapse, due to the guerilla attacks to the . . . railroad”); id. 27:1-11; Defs’ Ex. N,
Blanco Dep. 105:19-106:10 (confirming that “Adkins told [him] that [GND] had
authorized these payments himself in order to support the AUC . . .”); Pls’ Ex. 55,
Duarte Dep. 95:8-16; Defs’ Ex. I, Samario Dep. 28:2-7, 29:3-15; 30:3-18 (AUC
believed it was dealing with the “multinational” Drummond). Cf. DCI SUMF 50.
5. Adkins obtained GND’s agreement in 1996 to start paying El Tigre, and this was
done at first by Adkins bringing $10,000 cash payments from Alabama to evade
the law and Drummond’s accounting system. See Defs’ Ex. N, Blanco Dep. 70:5-
75:9; see also id. 50:16-21.
III. DLTD Operated As the Alter Ego of DCI.
The Eleventh Circuit has held it is appropriate for courts to pierce the
corporate veil where 1) the parent corporation controls and dominates the
subsidiary; 2) this control was “used by the defendant to commit fraud or wrong, to
perpetrate the violation of a statute or other positive legal duty or a dishonest and
unjust act in contravention of plaintiff’s legal rights”; and 3) the misuse of control
proximately causes the harm. United Steelworkers of Am. v. Connors Steel Co., 855
F.2d 1499, 1506-7 (11th Cir. 1988) (applying federal common law to alter ego
Although federal common law applies to Plaintiffs’ alter ego claims because the ATS is a3
federal statute, Alabama courts have set forth a nearly identical veil-piercing analysis. See Duffv. S. Ry. Co., 496 So. 2d 760, 762 (Ala. 1986). Bruce Webster’s declaration, on which DCI relies heavily, is replete with vague, conclusory4
and unsupported statements, such as assertions that DLTD management is “responsible” for“day-to-day” activities and DLTD is “self-sustaining” and “adequately capitalized.” See Defs’Ex. 3, Webster Decl. ¶¶ 6-7, 10-12, 14-18. Plaintiffs refute these statements with factualevidence, but this Court should strike these paragraphs as impermissible legal conclusions andconclusory statements of fact that have no probative value in summary judgment proceedings.Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135, 139 (5th Cir. 1973); Posnerv. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.1999) (finding affidavit containing legalconclusions about corporate structure of “little significance”); Petty v. United Plating, Inc., 2012WL 2047532, at *1 (N.D. Ala. May 31, 2012).
21
analysis because the claim arose under a federal statute). Resolution of the alter3
ego issue is heavily fact-specific and “typically one to be resolved at trial, where
the trier of fact can make choices as to the credibility and weight of the evidence.”
See In re Silicone Gel Breast Implants Prods. Liab. Litig., 837 F. Supp. 1128, 1133
(N.D. Ala. 1993) (citation omitted), partially vacated on other grounds, 887 F.
Supp. 1455 (N.D. Ala. 1995); Perry v. Household Retail Serv., 953 F. Supp. 1378,
1382 (M.D. Ala. 1996).
A. DCI Exercises Complete Control and Domination Over DLTD. 4
In analyzing the first part of the alter ego test, the Eleventh Circuit and
Alabama courts have considered an overlapping, non-exhaustive “laundry list” of
fourteen factors. See, e.g., Connors Steel Co., 855 F.2d at 1505; Duff, 496 So. 2d at
763. There is no litmus test or number of factors necessary for determining whether
a subsidiary is the alter ego of its parent. Connors Steel, 855 F.2d at 1506. Contrary
The cases that DCI cites for support of its argument that there is insufficient evidence of5
domination to pierce the corporate veil are inapposite. See DCI’s Mot. at 21-23 (citing U.S. v.Fidelity Capital Corp., 920 F.2d 827 (11th Cir. 1991); Berger v. Columbia Broad. Sys., Inc., 453F.2d 991 (5th Cir. 1972)). First, neither Fidelity nor Berger analyzed the list of factorsenumerated in Connors Steel. Second, in Fidelity, the Eleventh Circuit applied the distinct law ofGeorgia, under which a court may pierce the corporate veil only if the corporate form wasabused by commingling funds or if one corporation depleted the assets of another for its ownbenefit. See Fidelity, 920 F.2d at 837-39 (noting the absence of commingling). Here DLTD’sfunds were “commingled” with DCI funds and it was “virtually impossible” to determine whatfunds, if any, DLTD had generated from its own operations. See PSUMF 33. Berger pre-datedConnors Steel and Duff, and thus did not apply those factors; moreover, the Fifth Circuitreversed the veil-piercing because it was based on only three findings of fact. Berger, 453 F.2dat 995. This would loosely correlate to satisfaction of only two of the fourteen factors courtscurrently analyze for veil-piercing.
22
to DCI’s contention, courts do not assign weight to any of the factors, and instead
review the “totality of the circumstances.” Id.
Federal and Alabama courts routinely deny summary judgment when as few
as three or four factors have been established or there is contradictory information.
See, e.g., id. at 1506 (finding four factors were fully present and five factors
partially present); Perry, 953 F. Supp. at 1382; Duff, 496 So. 2d at 763; Strickland
v. Champion Enter., 2007 WL 1837136, at *6 (M.D. Ala. June 26, 2007). 5
Far exceeding the evidence in the above cases, Plaintiffs have satisfied at
least eleven of the factors demonstrating DCI’s control and domination over
DLTD, and additional indicia of control are discussed concerning Plaintiffs’
agency theory. DCI concedes there is evidence satisfying three of these factors.
1. DCI Owns Most of the Capital Stock of DLTD.
DCI admits that it is the majority owner of DLTD and thus has the “largest
DCI’s citation to U.S. v. Bestfoods, 524 U.S. 51 (1998) is inapposite. Bestfoods’ discussion6
concerning officers and directors “changing hats” concerned the parent’s direct liability and inwhich capacity they acted. Bestfoods, 524 U.S. at 69 (noting that dual positions was not aloneenough to establish direct liability without more enquiry). This analysis is inapplicable towhether there are common officers and directors as one of eleven factors present to demonstratealter ego. See U.S. v. Jon-T Chemicals, Inc., 768 F.2d 686, 691-96 (5th Cir. 1985) (recognizing“the fiction that an officer or director of both corporations can change hats and represent the twocorporations separately,” but finding that this control factor was met regardless of capacity, andultimately holding it was “irrelevant” if common officers and directors were acting in theircapacity for the subsidiary, not the parent, because the evidence as a whole established that thesubsidiary was the alter ego of the parent).
23
ownership interest” in DLTD. See DCI Mot. at 14; PSUMF 59. This factor is not of
any lesser value than other factors. See Strickland, 2007 WL 1837136, at *5-6.
2. DCI and DLTD Have Common Directors and Officers.
DCI does not dispute the overlap in the officers and directors of DCI and
DUSA, DLTD’s general partner. DCI Mot. at 14. This factor is entirely met, not
partially, because between 1996 and 2006, all DUSA officers were also DCI
officers. See PSUMF 30. Also, Tracy shifted positions between DCI and DLTD.6
PSUMF 29. GND was not certain whether he was on the DUSA board, but it is
undisputed that he was at all times acting as the CEO of DCI. See PSUMF 28.
3. DCI Finances DLTD.
See PSUMF 34; see also PSUMF 35-36; 38.
24
See PSUMF 34.
PSUMF 33.
4. DCI Incorporated DLTD.
DCI admits that it caused the formation of DLTD. This factor is not
accorded lesser weight, nor is it “true in most all parent-subsidiary relationships,”
as DCI asserts, DCI Mot. At 17. See, e.g., Hollingshead v. Burford Equip. Co., 828
F. Supp. 916, 919 (M.D. Ala. 1993) (parent did not cause incorporation of
subsidiary); Perry, 953 F. Supp. at 1382.
5. DLTD Is Inadequately Capitalized.
. PSUMF 34. DCI created DLTD to be a mere
“pass-through entity for tax purposes.” PSUMF 48.
PSUMF
34. DLTD cannot be considered adequately capitalized.
25
6. DCI Pays the Salaries and Expenses of DLTD.
DLTD is not a “self-sustaining corporate entity . . . able to pay its own
expenses, operating costs, debts and salaries.” DCI’s Mot. at 18. Although DLTD
may process its own payroll,
PSUMF 34.
According to Dortch,
Id. Indeed, DCI continued to pay Adkins’
consulting salary after he had devised the arrangement with the AUC. PSUMF 5.
7. DLTD Has Substantially No Business Except with DCI.
DLTD was created solely to carry out DCI’s mining projects in Colombia
and for supplying coal to DCI. PSUMF 48.
. PSUMF 50. GND publicly stated
that DCI initiated its projects in Colombia when the coal “was all dug up” in
Alabama. PSUMF 48.
. PSUMF 58.
8. DCI Holds DLTD Out As a “Branch” of DCI, and DCI Refers to
DLTD’s Business and Financial Responsibilities As Its Own.
On a separate site, accessible through DCI’s website, DLTD is referred to as
the “branch in Colombia of a United States company.” PSUMF 55. There is a link
to the DCI website and a caption identifying “employment openings at Drummond
26
Company Inc.” Id. Neither DLTD’s Alabama office nor DUSA is mentioned on
this web page and all rights are reserved to “Drummond Company, Inc.” Id. DCI’s
website in 2006, before it was recently altered, described Drummond as one
integrated company with operations in Colombia. Id. DCI’s press releases and
similarly represent that DCI controls the Colombian operations.
PSUMF 47; 50-51; 58; 25. Based on an interview with GND, a Birmingham
newspaper described the Colombian mine as the “centerpiece of the Drummond
empire.” PSUMF 53.
9. DLTD Acts in the Interest of DCI.
The directors and executives of DLTD do not act independently in the
interest of DLTD. Instead, DLTD exists solely to carry out DCI’s coal mining
operations in Colombia. PSUMF 48. DCI exercises significant oversight and
control over DLTD’s operations, including monitoring of mining, shipping, sales,
corporate governance, commitment of funds, and security. PSUMF 12; 14-18; 23;
26-27; 32; 36-42; 49; 51; 56; PSDMF 3. Many of DLTD’s financial and
procurement policies were created and approved by DCI. See, e.g., PSUMF 37-41.
Additionally, key DLTD executives and advisors report to DCI executives.
When Tracy was the COO of DLTD, he reported directly to the then-President of
Mining at DCI, Don Baxter. PSUMF 15. Augusto Jimenez, President of DLTD,
Plaintiffs requested this sale agreement in discovery and asked GND in his deposition how the7
funds from this sale were distributed. He refused to answer. Defs’ Ex. D, Drummond Dep. 19:2-22:14. Plaintiffs will move to compel this information.
27
reported directly to GND, CEO of DCI. See PRDS 14. Adkins, security advisor for
Colombian operations, reported directly to DCI executives, including GND,
Zervos, and Tracy. See PSUMF 3; PSDMF 1-2.
10. DCI Sold DLTD Property As Its Own.
In an ultimate act of “using” DLTD’s property as its own, DCI negotiated
and recently sold 20% of “Drummond’s Colombian” mining operations to Itochu, a
Japanese company, and signed an agreement with “[DCI] (headquarters:
Birmingham, Alabama, USA; Chairman & CEO: Garry N. Drummond; hereinafter
‘Drummond’) and Drummond affiliated companies.” PSUMF 56. The public press
release concerning the sale refers exclusively to DCI, and DLTD is not even
mentioned. See id. (noting “Drummond” will own 80% of the Colombian mining
operations and related infrastructure . . . currently owned 100% by Drummond.”). 7
11. DLTD’s Daily Operations Are Not Separate and DCI and DLTD
Have Common Business Departments.
The daily operations of DLTD and DCI are intricately entwined.
. See supra Section III.A.3; A.5-6.
. See PSUMF 37-40. DCI directly oversees the
mining operations and security for DLTD. See PSUMF 9-10; 13; 20; 24-25; 27;
Plaintiffs contend that DCI and DLTD also disregarded certain corporate formalities, as8
evidenced by DLTD executives using DCI letterhead, PSUMF 43, . PSUMF 8. However, even if other corporate
formalities were observed, this is only one non-dispositive factor, as “courts are concerned withreality and not form.” Jon-T-Chemicals, Inc., 768 F.2d at 693-94.
28
32; 36; 38-40; 42; 49; 51; 56; PSDMF 3; see also infra Section IV.C. (discussing
DCI’s security oversight). GND received coal production and operational reports
from DLTD regularly. PSUMF 49. The President of DCI’s mining division,
Zervos, was responsible
PSUMF 36, Pls’ Ex. 57, and he had the authority to
approve “everything that had to do with the operations in terms of mining,
transporting and shipping coal.” PSUMF 36. Key personnel simultaneously held
positions at DCI and DLTD and managed common business departments. PSUMF
29-30. Cf. Hollingshead, 828 F. Supp. at 921-22 (factor satisfied where parent paid
only some of the subsidiary’s operational expenses).
Plaintiffs have satisfied at least eleven of the control and domination factors
relevant to the alter ego analysis, and summary judgment should be denied. 8
B. DCI Misused Its Control Over DLTD and As a Result Proximately Caused
the Deaths of Plaintiffs’ Relatives.
DCI misstates the standard for misuse by contending it is only satisfied in
limited instances of fraud or “where the corporation is created for some illegal
purpose or to commit an illegal act.” DCI Mot. at 24. Federal common law only
Bellairs applied Florida state law, which identifies the same alter ego standard as federal9
common law. See Habaugh v. Geslin, 436 F. Supp. 2d 1315, 1320-21 (S.D. Fla. 2006) (applyingsame three-prong test as federal common law test announced in Connors Steel).
29
requires that the subsidiary was used in furtherance of an “improper purpose,”
Connors Steel, 855 F.2d at 1507, and it “matters not that improper conduct
occurred after the formation of the [subsidiary],” Bellairs v. Mohrmann, 716 So. 2d
320, 323 (Fla. 2d DCA 1998). Even in the absence of fraud or illegality, the9
corporate form may be disregarded where failure to do so will work an injustice or
render an inequitable result. See, e.g., Nimbus Tech., Inc. v. SunnData Prods., Inc.,
484 F.3d 1305, 1308-1309 (11th Cir. 2007) (quoting Co-Ex Plastics, Inc. v.
AlaPak, Inc., 536 So. 2d 37, 38 (Ala.1988)).
For example, misuse of the corporate entity for an improper purpose can be
shown where a federal statute has been violated. See, e.g., U.S. PIRG v. Atl.
Salmon of Maine, LLC., 261 F. Supp. 2d 17, 30-33 (D. Me. 2003) (piercing the
corporate veil upon violation of a court order enforcing the Clean Water Act and
noting not to do so would be a manifest injustice). Other courts have pierced the
corporate veil in furtherance of a statute’s goal or when the importance of the
corporate form was not a focus Congress intended in passing the act at issue. See,
e.g., MCI Telecomm. Corp. v. O’Brien Mktg., Inc., 913 F. Supp. 1536, 1544 (S.D.
Fla. 1995); Town of Brookline v. Gorsuch, 667 F.2d 215, 221-22 (1st Cir. 1981).
This court has an interest in upholding the principles of the ATS, which does not
30
place emphasis on the corporate form. See generally Pls’ DLTD Opp.
Further, DCI’s own case law recognizes that, “the violation of a statutory or
other positive legal duty is misuse of control, [and] when it is necessary, to prevent
injustice or inequitable circumstances, misuse of control will be presumed.” First
Health, Inc. v. Blanton, 585 So. 2d 1331, 1334-35 (Ala. 1991). Indeed, the
Eleventh Circuit in Connors Steel presumed such wrongful purpose in holding that
once the court found the parent dominated the subsidiary, it “was compelled to
conclude that the parent had perpetrated ‘the violation of a . . . positive legal duty’
precisely because the ERISA payments were not made.” Hollingshead, 828 F.
Supp. at 922-23 (explaining Connors Steel, 855 F.2d at 1506-7).
In this case, first, DCI misused the control it had over DLTD by using its
agents and DLTD employees in Colombia to make payments, which DCI funded,
to the AUC. GND directed and approved these payments, Tracy approved them,
and DCI’s agent, Adkins, orchestrated the plan on the ground in Colombia to
support the AUC and make payments. See PSDMF 4-5; infra Section VI. Adkins,
one of the masterminds of the plan, also acted as a money-mule, transporting cash
on DCI planes to Colombia and making payments to the AUC in Colombia. See
PSDMF 4-5; PSUMF 42.
Second, GND, DCI CEO, established the sham verbal policy that payments
31
to illegal groups would be prohibited by DCI and DLTD. See PSUMF 45-46.
Neither DCI nor DLTD enforced this verbal policy. Id. Instead, on numerous
occasions, Tracy, Zervos, and other DCI executives failed to investigate credible
reports that DLTD security contractors were coordinating with the AUC and
instead expanded the contract. Pls’ DLTD Opp. PSUMF 13.
Third, and as discussed below concerning DCI’s direct aiding and abetting
and conspiracy with the AUC, DCI’s directions to DLTD and Adkins, an agent of
DCI, demonstrates DCI’s misuse of its control over DLTD, which caused the
murders of the Plaintiffs’ relatives.
Plaintiffs have satisfied all three elements of the Connors Steel alter ego test,
and DLTD’s wrongful conduct should be imputed to DCI.
IV. DLTD Was at All Times Acting as DCI’s Agent in Carrying Out the
Operations in Colombia.
Alter ego and agency are distinct theories of liability. See, e.g.,Connors
Steel, 855 F.2d at 1506 (three-part alter ego test is not relevant to liability under an
agency theory). By failing to move for summary judgment on agency, DCI
apparently concedes that Plaintiffs have produced sufficient evidence for a jury to
find DCI liable for the acts of DLTD as its agent. See, e.g., Johnson v. Austal,
U.S.A., L.L.C., 805 F. Supp. 2d. 1299, 1310 (S.D. Ala. 2011) (new arguments are
impermissible on reply and are not considered). In this Circuit, the existence of an
32
agency relationship is a question of fact, generally reserved for the jury. See e.g.,
Wood v. Holiday Inns, Inc., 508 F.2d 167, 173 (5th Cir. 1975), cited with approval
in CFTC v. Gibraltar Monetary Corp., Inc., 575 F.3d 1180, 1186 (11th Cir. 2009).
A subsidiary is the agent of the parent corporation if (1) the parent manifests
that the agent shall act for it; (2) the agent accepts the undertaking; and (3) the
parent corporation retains a right of control over the subsidiary. Rubin Bros.
Footwear, Inc. v. Chemical Bank, 119 B.R. 416, 421-22 (S.D.N.Y. 1990);
Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321, 1325 (11th Cir. 2008).
“[A]gency liability does not require the court to disregard the corporate form.”
Botowo v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1239 (N.D. Cal. 2004).
A. DCI Made Clear DLTD Acted As Its Agent in Coordinating with the
AUC and Such Actions Were Within the Scope of DLTD’s Authority.
As described further below, DCI was directly involved in the provision of
security at the Colombian operations and railroad. See infra, Section IV.C.1. DCI
and GND directed DLTD to make payments to the AUC for security and provided
the cash and transportation to complete these deals. See id. DCI and DLTD
continued coal extraction and production in Colombia between 1996 and 2006
precisely because DCI and DLTD entered an agreement with the AUC to eradicate
the FARC and kill noncombatants to eliminate any resistance to DCI and DLTD’s
continued Colombian operations. See Pls’ DLTD Opp. at 27-37.
33
B. DLTD Accepted DCI’s Instructions and Acted on Them.
As demonstrated further below, DCI controlled the security plans for the
Colombian operations, including the provision of specific equipment to combat the
guerillas. See infra, Section IV.C. DLTD implemented these instructions and
provided requested information. Id. DLTD, and Adkins as DCI’s agent,
implemented the plan GND approved to pay the AUC for security and to eradicate
the FARC. See generally Pls’ DLTD Opp. (addressing DLTD’s liability and
implementation of the illegal plan to support the AUC).
C. DCI Retained and Exercised A Right of Control Over DLTD.
In addition to the factors of control already discussed in relation to DCI’s
alter ego liability, see supra Section III.A.1-11, the following evidence constitutes
additional control factors relevant to both Plaintiffs’ alter ego and agency theories.
1. DCI Controlled Security at Drummond’s Colombian Operations.
Between 1996 and 2006, there were nearly daily communications between
the security department at DLTD and DCI executives concerning security at the
Drummond Colombian operations, including attacks to the railroad and security
plans and coverage in Colombia. PSUMF 6; 10; 12; 14-15; 18; 23; 26-27; 34; 54.
DCI executives actively planned the security measures that would be
implemented in Colombia. PSUMF 12; 14; 26; PSDMF 3. GND directed that tanks
34
and airplanes equipped with FLIR systems be used in Colombia and DLTD
implemented these changes, and Zervos, VP and Assistant CEO of DCI, was also
actively involved in acquiring security equipment for the Colombian operations.
Id. Adkins, the security advisor for the Colombian operations and DCI agent,
referring to GND, stated, “it looks like the boss will get his tanks.” PSUMF 12.
Zervos instructed Adkins to assemble a “task force” and prepare a security plan for
the Colombian operations. Adkins complied. PSUMF 16.
Augusto Jimenez, President of DLTD, testified that security plans were
approved by DCI and GND, and in one instance it was clear to him that DCI was
going to refuse to approve a security plan. PSDMF 3. As result, DLTD would not
implement the plan. See id.
Additionally, DCI provided millions of dollars to fund the Colombian
military to provide security for their Colombian operations. See PSUMF 18. DCI
also provided the Colombian military with equipment, and it built the military
barracks that were erected within the perimeter of Drummond’s mine, and at
Drummond’s port, among other support. Id.
2. DCI Established the Sham Verbal Policy for DLTD to Follow, But It
Was Never Enforced.
As discussed in Section III.B. (DCI’s misuse of control), GND established
the sham verbal policy prohibiting payments or support to the AUC. DCI’s
35
executives knew that Adkins was making payments to the AUC on behalf of DCI
and DLTD because GND had approved these payments personally. See id.
Moreover, DCI was informed that certain DLTD security contractors were
providing support to the AUC, but neither DCI nor DLTD ever investigated these
claims. See id. Instead, the contract with the AUC collaborator was expanded and
the contractor supporting the FARC was terminated. See id.
3. DCI Exercised Control Over Labor Negotiations at the Colombian
Operations.
DCI executives actively participated in negotiation meetings with the union
at Drummond’s Colombian operations. When the AUC killed three union leaders,
the union wrote a letter to GND, “as the top authority of that company.” PSUMF
20. GND sent Zervos to Colombia to address these concerns. See PSUMF 22.
When the widow of one killed union leader asked for compensation, DLTD
immediately communicated with DCI to seek approval from GND, as it may have
been “precedent” setting. See PSUMF 20.
4. DCI Controlled DLTD’s Public Statements and Represented DLTD
at Government Meetings.
DLTD was required to seek DCI approval before issuing public statements,
including press releases. See PSUMF 47. When Drummond issued a full-page
press release in Colombian newspapers, GND ordered that it be published and
36
DCI’s assistant general counsel, Blake Andrews, was the primary drafter. Id. DCI
executives drafted correspondence to the US embassy for DLTD to submit, and
GND and other executives represented the company’s interests in Colombia before
the U.S. and Colombian governments. See PSUMF 10.
For all these reasons, DLTD acted as the agent of DCI in coordinating with
the AUC. DCI’s motion for summary judgment should be denied.
V. DCI Also Ratified DLTD’s Wrongful Conduct.
Plaintiffs incorporate by reference Plaintiffs’ statement of law in their DLTD
Opposition, at 38-41. Under a ratification theory, Plaintiffs need not establish that
DLTD was DCI’s agent. Pls’ DLTD Opp. at 40.
First, the evidence demonstrates DCI had actual knowledge that DLTD was
assisting, coordinating with, and paying the AUC. DCI employees were routinely
provided with security information from DLTD, including those from security
advisor Adkins. See PSUMF 9-10; 13; 20; 24-25; 27; 32; 36; 38-40; 42; 49; 51; 56;
PSDMF 3. Updates provided DCI with actual knowledge that one of DLTD’s
security contractors, Secolda, was “suspect[ed] of paying the paramilitaries.” Pls’
DLTD Opp. PSUMF 13. DCI did nothing to investigate. Id.
The evidence shows that DCI knew employing the AUC would result in
civilian casualties due to the AUC’s brutal methods. See Pls’ DLTD Opp. PSUMF
37
8; 9 & PSDMF 9. Additionally, GND directed DLTD to pay the AUC. See infra
Section VI. The fact that DCI attempted to cover up DLTD’s wrongful conduct by
issuing a press release in which it denies that DCI and DLTD were involved with
the AUC is further evidence of ratification. See PSUMF 47; see also, Bowoto, 312
F. Supp. 2d at 1247-48 (ratification demonstrated by defendant’s cover-up of
subsidiary’s wrongdoing in media campaign where it denied conduct).
Second, DCI knew DLTD’s support for the AUC was a war crime and
constituted extrajudicial killings and these violations constituted torts. Pls’ DLTD
Opp. PSUMF 8-9 & PSDMF 9; see also PSUMF 45. DCI informed the U.S.
embassy that it knew cooperating with the AUC, a known terrorist organization,
was illegal. See PSUMF 11.
Regarding the third factor, DCI took no steps to remedy the situation as DCI
and DLTD chose to continue funding the AUC even after it was designated a
terrorist organization. See Pls’ DLTD Opp. PSUMF 13. DCI never investigated
credible reports that senior staff and contractors were collaborating with the AUC.
Pls’ DLTD Opp. PSUMF 13; see also PSUMF 46.
VI. DCI Aided and Abetted the AUC’s War Crimes and Extrajudicial Killings
and Conspired with the AUC.
Separate from DCI’s vicarious liability for DLTD’s wrongful conduct as
DCI’s alter ego and agent, DCI directly aided and abetted and conspired with the
DCI does not argue in its brief that Plaintiffs have failed to put forth sufficient evidence10
demonstrating extrajudicial killings. Plaintiffs address the legal issues concerning state action intheir DLTD Opposition, at 40-45.
This evidence also supports Plaintiffs’ claims of extrajudicial killings and state action. See11
38
AUC in Colombia. Plaintiffs incorporate by reference the statements of law
concerning aiding and abetting war crimes and extrajudicial killings, as laid out10
in Plaintiffs’ DLTD Opposition, at 27-33; 45-46. DCI’s only attack is to challenge
the admissibility of evidence. Plaintiffs refute these arguments below and briefly
describe the evidence that shows DCI is liable for the killings of Plaintiffs’
relatives because it directly participated in collaborating with the AUC.
A. The Evidence Shows DCI Had a Shared Purpose with the AUC in
Support of Plaintiffs’ War Crimes and Extrajudicial Killing Claims.
Plaintiffs’ evidence shows DCI provided substantial support to the AUC by
directing that payments and material support be made to the AUC. DCI CEO,
GND, made the decision to fund the AUC. Pls’ DLTD Opp. at 27-37. The initial
cash payments for the AUC were brought from Alabama by Adkins on planes
owned by and registered to DCI. See id.; see also PSUMF 42. Adkins then made
the cash payments to Jaime Blanco, as GND approved and directed. PSDMF 4-5.
DCI funded the Colombian military in unrestricted and untraceable funds, despite
the fact that Adkins reported to DCI executives that the Colombian military
specifically asked Drummond for funds to support paramilitary groups. Pls’DLTD
Opp. PSUMF 7 & PSDMF 9.11
Pls’DLTD Opp. at 40-45.
39
Furthermore, DCI provided substantial assistance to the AUC for the
purpose of siding with the AUC in Colombia’s civil conflict and driving the FARC
and ELN out of Drummond’s areas of operation, particularly its rail line. Pls’
DLTD Opp. PSDMF 3; 7-8 (GND approved the union leader murders).
Finally, having received GND’s direction to support the AUC, DCI used one
of its security contractors, Secolda, to make payments to the AUC. Pls’ DLTD
Opp. PSUMF 13. DCI took no action despite the fact that DCI and DLTD’s
supposed policy prohibited such payments. Id.; see also PSUMF 45-46.
Plaintiffs’ evidence satisfies the standard this Court previously laid out at the
dismissal stage, and summary judgment must therefore be denied as to DCI’s
shared purpose with the AUC. See Doc. 43, at 26.
B. DCI Also Conspired with the AUC to Commit War Crimes and
Extrajudicial Killlings.
Plaintiffs incorporate by reference the standard for conspiracy previously
addressed. See Pls’ DLTD Opp. at 36-37, Doc. 407. The evidence of DCI’s intent
to aid and abet is sufficient also to demonstrate DCI’s intent to participate in a
conspiracy with the AUC to commit war crimes and extrajudicial killings. See id.
C. Plaintiffs Have Put Forth Admissible Evidence Showing DCI’s Direct
Involvement in Aiding and Abetting and Conspiring with the AUC.
DCI attempts to exclude evidence that it directly funded the AUC and
Other admissibility issues are discussed at length in Plaintiffs’ Opposition to Defendant12
Augusto Jimenez’s Motions for Summary Judgment, and Plaintiffs’ DLTD Opposition. Plaintiffs incorporate by reference all admissibility arguments here.
Fed.R.Evid. 801(d)(2)(D) excludes from the definition of hearsay out of court statements13
“offered against an opposing party and . . . made by the party’s agent or employee on a matterwithin the scope of that relationship and while it existed.”
40
approved of the murders by attacking the admissibility of testimony provided by
AUC members or collaborators Jaime Blanco and Jairo Jesus Charris Castro. DCI
Mot. 26-30. The testimony recounts statements made by Adkins, the Security12
Advisor in Colombia, and is admissible as party admissions because Adkins was
DCI’s agent and coconspirator. See Fed.R.Evid. 801(d)(2)(D) and (E).
1. Adkins’ statements are admissible under Fed.R.Evid.
801(d)(2)(D) because he was DCI’s agent and employee.13
At all relevant times, Adkins was an agent or employee of DCI. First, DCI
reserved sufficient control over Adkins and his work to make him an agent of DCI.
Second, DCI so dominates DLTD that employees of DLTD are also employees of
DCI and statements made by DLTD employees are attributable to DCI.
Admissibility of evidence under Fed.R.Evid. 801(d)(2)(D) is based on
general common law principles of agency. See City of Tuscaloosa v. Harcros
Chems., Inc., 158 F.3d 548, 558 n.9 (11th Cir. 1998). “[U]nder Alabama law, the
test of agency is the right of control, whether exercised or not.” Glenn Const. Co.,
LLC v. Bell Aerospace Servs., Inc., 785 F. Supp. 2d 1258, 1289 (M.D. Ala. 2011).
“[C]ontrol . . . need not include control at every moment; its exercise may be very
The evidence shows Zervos was acting for DCI and not as a member of the DUSA board, and14
Tracy held positions with DLTD and DCI at various times. See PSUMF 4-5; 7; 9-11; 13-14; 16-17; 22; 24-25; 27; 29; 32; 36; PSDMF 2. See also Lusk v. Foxmeyer Health Corp. 129 F.3d 773,779 (5th Cir. 1997) (treating as issue of fact the question of whether common officers were alsoacting in their capacity as officers of the parent, as opposed to merely officers of the subsidiary).There is, however, no dispute that GND was always acting as the CEO of DCI. PSUMF 28.
41
attenuated and, as where the principal is physically absent, may be ineffective.”
Boswell v. Gumbaytay, 2009 WL 1515872, at *3 (M.D. Ala. Jun. 1, 2009).
DCI possessed sufficient control to make Adkins its agent. As the evidence
shows in detail, DCI approached Adkins about the position, Adkins believed GND
approved his hiring, Adkins’ “real boss was always Garry Drummond,” and when
he believed GND was going to fire him, Adkins resigned to DCI executive Tracy.
See PSUMF 2-3; PSDMF 1; see also Carlisle v. Deere & Co., 576 F.3d 649, 656-
57 (7th Cir. 2009) (an agency relationship depends, in part, on “the manner of
hiring” and “the right to terminate the relationship”). Adkins reported to DCI
executives, and communicated regularly with GND and others about security14
matters in Colombia. PSUMF 1-2; 4-6; 12; PSDMF 2. Adkins created a security
plan and assembled a task force at DCI executive Zervos’ direction. PSUMF 16.
Adkins understood that he was employed by DCI and, referring to his
employment agreement, he believed he was supposed to report to GND and Don
Baxter, DCI’s Chief Operating Officer. See PSUMF 1. The fact that his contract
was signed by DLTD does not diminish the control DCI retained and exercised
See Sections III.A. and IV.C., supra, (establishing sufficient domination by DCI as to make15
DLTD a mere instrumentality or alter ego of DCI).
42
over Adkins. See Cabrera v. Jakabovitz, 24 F.3d 372, 387 (2d Cir. 1994) (stating
that an individual’s subjective belief “that he was acting on another’s behalf and
under another’s control” can help establish that he was an agent).
Additionally, DCI paid Adkins, which is evidence of their direct employer-
employee relationship.
. PSUMF 8. And later, when Adkins
converted to consultant status, he provided invoices for payment to Tracy to pass
on to GND. PSUMF 5. Further, Adkins’ status as a DCI employee is established by
DCI’s complete domination of DLTD and its employees. See Johnson v. Flowers15
Indus., Inc., 814 F.2d 978, 981 (4th Cir. 1987) (“the parent company can be the
employer of a subsidiary’s workers if it exercises excessive control”). As a result,
Adkins’ statements are directly attributable to DCI. See In re BankAtlantic
Bancorp, Inc., 2011 WL 1585605, at *28 (S.D. Fla. Apr. 25, 2011) (“Statements
made by employees of a subsidiary may be attributed to its corporate parent when
the parent dominates the activities of the subsidiary.”); Big Apple BMW, Inc. v.
BMW of N. Am., Inc., 974 F.2d 1358, 1372 (3d Cir. 1992) (same).
Finally, Adkins’ statements as an agent or employee of DCI were “within
the scope of that relationship . . . while it existed,” Fed.R.Evid. 801(d)(2)(D), and
Having provided evidence of agency and employment apart from the hearsay testimony,16
Adkins’ numerous statements that he received direct orders from GND and that he needed toobtain GND’s approval to fund the AUC are admissible and should be considered to establish hisstatus as a DCI agent, as well as the scope of his authority within that agency. See PSDMF 4-5.See New Plan Realty Trust v. Morgan, 792 So.2d 351, 361 (Ala. 2000) (“[D]eclarations of onewhose agency is the subject of inquiry . . . become competent for consideration in determiningboth the fact of agency and the scope of authority originally given, when shown in connectionwith other evidence of agency.”).
43
“concern[ed] the matter about which he allegedly spoke.” Wilkinson v. Carnival
Cruise Lines, Inc., 920 F.2d 1560, 1566 (11th Cir. 1991). Adkins’ original
employment contract indicated he was “to take all actions necessary for the day-to-
day management of security activities.” See PSUMF 1. As addressed, Adkins
played a key role in security, including creating security plans and providing
detailed reports. See PSUMF 6; 12; 16; 23; PSDMF 3-5. GND directly approved
the deal Adkins struck with the AUC to provide security, PSDMF 4-5, and thus
Adkins’ coordination with the AUC falls within the scope of his employment and
thus is admissible under Fed.R.Evid. 801(d)(2)(D).16
2. Adkins’ statements are also admissible under Fed.R.Evid.
801(d)(2)(E) because he was engaged in a conspiracy with DCI.
Adkins’ statements were made “during and in furtherance of the conspiracy”
between DCI and the AUC to commit war crimes and extrajudicial
killings. See Fed.R.Evid. 801(d)(2)(E). The Eleventh Circuit “applies a liberal
standard in determining whether a statement is made in furtherance of a
conspiracy.” U.S. v. Santiago, 837 F.2d 1545, 1549 (11th Cir. 1988); see also
44
Fed.R.Evid. 801 Advisory Comm. Notes to the 1997 Amendment (codifying
Bourjaily v. U.S. and stating courts “shall consider the contents of a
coconspirator’s statement in determining ‘the existence of the conspiracy and the
participation therein . . .’”).
Adkins’ statements, as well as Charris’ and Blanco’s testimony, clearly
establish the conspiracy between DCI and the AUC and the participation of Adkins
and DCI in the conspiracy. Charris coordinated with the AUC to provide security
for Drummond, a function assigned to him “directly by Adkins and through direct
order of GND.” PSDMF 4. Blanco testified similarly. Id.; see also Pls’ DLTD Opp.
PSDMF 1; 3. Adkins’ assurances to the AUC concerning GND’s authorization to
fund the AUC were in furtherance of the conspiracy. See U.S. v. Siegelman, 640
F.3d 1159, 1181 (11th Cir. 2011) (“Statements between conspirators which provide
reassurance . . . or inform each other of the current status of the conspiracy further
the ends of the conspiracy . . .”).
Similarly, any statements by Adkins regarding GND and DCI’s approval of
killings by the AUC were also in furtherance of the conspiracy. The purpose of the
conspiracy between Drummond and the AUC was “to neutralize the activity and
presence of the guerilla,” because Drummond was “going through a crisis, a
collapse, due to the guerilla attacks.” See PSDMF 4. These “actions were not only
45
geared towards the activities of the FARC” but also included “the selective deaths
and killings of the innocent people that were carried out by the AUC.” See PSDMF
4. Specifically, “[t]here was a criminal plan against . . . the people close to the
villages in the Cesar area.” Id. at 22:1-3. Thus, Adkins’ statements regarding DCI’s
funding of the AUC and approval of murders were in furtherance of the conspiracy
to commit war crimes and extrajudicial killings and are admissible under
Fed.R.Evid. 801(d)(2)(E).
V. Conclusion.
For all the above reasons, DCI’s Motion for Summary Judgment should be
denied.
Dated: November 5, 2012 Respectfully submitted,
/s/ Christian Levesque
Christian Levesque (DC Bar No. 501778)
Terrence Collingsworth (DC Bar No. 471830)
Eric Hager (DC Bar No. 975861)
Conrad & Scherer, LLP
1156 15th Street NW, Suite 502
Washington D.C. 20005
202-543-4001
Counsel for Plaintiffs
46
CERTIFICATE OF SERVICE
I hereby certify that on November 5, 2012, I caused the foregoing to be
electronically filed with the Clerk of the Court using the CM/ECF system which
will send notification of the filing to the following:
William Anthony Davis, III
H. Thomas Wells, III
Philip G. Piggott
STARNES DAVIS FLORIE LLP
PO Box 598512
Birmingham , AL 35259-8512
205-868-6000
William H. Jeffress, Jr.
David A. Super
Rachel B Cochran
Sara E Kropf
Bryan H. Parr
BAKER BOTTS LLP
1299 Pennsylvania Avenue, NW
Washington , DC 20004-2400
202-639-7700
/s/ Christian Levesque
________________________
Christian Levesque
