13-3122-cv
Doe v. Zedillo Ponce de León
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of February, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
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12 JANE DOE, 1, an alien, JANE DOE, 2,
13 an alien, JANE DOE, 3, an alien, JANE
14 DOE, 4, an alien, JOHN DOE, 1, an
15 alien, JOHN DOE, 2, an alien, JOHN
16 DOE, 3, an alien, JOHN DOE, 4, an
17 alien, JOHN DOE, 5, an alien, JOHN
18 DOE, 6, an alien,
19
20 Plaintiffs-Appellants,
21
22 -v.- No. 13-3122-cv
23
24 ERNESTO ZEDILLO PONCE DE LEÓN, An
25 Alien resident of Connecticut,
26
27 Defendant-Appellee.
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1
1 FOR PLAINTIFFS-APPELLANTS: EDWARD GEORGE GUEDES (Roger S.
2 Kobert, Marc C. Pugliese, on the
3 brief), Weiss Serota Helfman
4 Pastoriza Cole & Boniske, P.L.,
5 Coral Gables, FL (Matthew Dallas
6 Gordon, Matthew Dallas Gordon
7 LLC, West Hartford, CT, on the
8 brief).
9
10 FOR DEFENDANT-APPELLEE: JONATHAN FREIMAN (Tadhg Dooley,
11 on the brief), Wiggin and Dana
12 LLP, New Haven, CT.
13
14 FOR AMICUS CURIAE ADAM C. JED (Mark B. Stern, on
15 UNITED STATES IN the brief), Appellate Staff
16 SUPPORT OF DEFENDANT- Civil Division, U.S. Department
17 APPELLEE: of Justice (Mary E. McLeod,
18 Acting Legal Adviser, Department
of State; Stuart F. Delery,
Assistant Attorney General;
Deirdre M. Daly, United States
Attorney), Washington, DC.
19 Appeal from an order of the United States District
20 Court for the District of Connecticut (Shea, J.).
21
22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
23 AND DECREED that the order of the district court be
24 AFFIRMED.
25
26 Plaintiffs appeal an order dismissing their claims
27 against Ernesto Zedillo Ponce de León (“Zedillo”), former
28 President of Mexico, for violations of the “Law of Nations,
29 customary international law, and U.S. laws and treaties”
30 arising out of a 1997 massacre in the Mexican village of
31 Acteal. Plaintiffs expressly concede that the dismissal of
32 their complaint was correct, Appellant Br. 26 n.8; Appellant
33 Reply Br. 12, and argue only that it was improper to dismiss
34 their complaint without granting leave to amend. We assume
35 the parties’ familiarity with the underlying facts, the
36 procedural history, and the issues on appeal.
37
38 We review a district court’s decision to dismiss a
39 complaint without granting leave to replead for “abuse of
40 discretion.” Grain Traders, Inc. v. Citibank, N.A., 160
41 F.3d 97, 106 (2d Cir. 1998). “It is well-established that
42 one good reason to deny leave to amend is when such leave
2
1 would be futile, specifically when the additional
2 information does not cure the complaint.” Mortimer Off
3 Shore Servs., Ltd. v. Fed. Republic of Ger., 615 F.3d 97,
4 114 (2d Cir. 2010) (internal quotation marks and brackets
5 omitted).
6
7 Here, amendment would be futile. The United States
8 filed a Suggestion of Immunity in September 2012. “[U]nder
9 our traditional rule of deference to such Executive
10 determinations,” the United States’ submission is
11 dispositive. Matar v. Dichter, 563 F.3d 9, 13-15 (2d Cir.
12 2009) (noting that State Department’s statement of interest
13 provided former foreign official immunity from suit,
14 regardless of whether claims were premised on violations of
15 jus cogens); see Samantar v. Yousuf, 560 U.S. 305, 321-25
16 (2010) (“We have been given no reason to believe that
17 Congress saw as a problem, or wanted to eliminate, the State
18 Department’s role in determinations regarding individual
19 official immunity.”); cf. Republic of Mex. v. Hoffman, 324
20 U.S. 30, 35 (1945) (“It is therefore not for the courts to
21 deny an immunity which our government has seen fit to
22 allow[.]”); Ex Parte Republic of Peru, 318 U.S. 578, 587-89
23 (1943) (“[I]t is of public importance that the action of the
24 political arm of the Government taken within its appropriate
25 sphere be promptly recognized, and that the delay and
26 inconvenience of a prolonged litigation be avoided by prompt
27 termination of the proceedings in the district court.”);
28 Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d
29 1198, 1201 (2d Cir. 1971) (“[O]nce the State Department has
30 ruled in a matter of this nature, the judiciary will not
31 interfere.”).
32
33 The primary basis for the Suggestion of Immunity is
34 that the complaint relates exclusively to actions taken in
35 the Defendant’s official capacity as head of state. The
36 additional allegations Plaintiffs want to press--that
37 Zedillo was personally involved in the massacre and that the
38 Mexican Ambassador’s request for immunity was invalid--would
39 not overcome the immunity. Those allegations have
40 repeatedly been submitted to the United States, directly or
41 through this action, and yet the Suggestion of Immunity has
42 not been rescinded or amended.
43
44 Plaintiffs rely heavily on a (since vacated) Mexican
45 trial court order voiding a request for the United States to
46 issue the Suggestion of Immunity. However, the State
47 Department stood by its initial opinion in May 2013, after
3
1 that order was issued. See Notice by United States of
2 America Regarding Oral Argument, D. Ct. Dkt. # 76 (“The
3 United States rests on its Suggestion of Immunity . . .,
4 which sets forth the United States’ determination regarding
5 the immunity of former President Zedillo from this suit.”).
6
7 We have considered all of Plaintiffs’ remaining
8 arguments and conclude that they are without merit. The
9 order of the district court is hereby affirmed.
10
11 FOR THE COURT:
12 CATHERINE O’HAGAN WOLFE, CLERK
4