Case: 11-30776 Document: 00512082596 Page: 1 Date Filed: 12/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 13, 2012
No. 11-30776 Lyle W. Cayce
Clerk
SERVICIOS AZUCAREROS DE VENEZUELA, C.A. and ZVONIMIR TOLJ,
SR.,
Plaintiffs – Appellants,
v.
JOHN DEERE THIBODEAUX, INC.,
Defendant – Appellee.
Appeals from the United States District Court
for the Eastern District of Louisiana
Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
This case calls upon us to reaffirm the standing of citizens of foreign states
to bring suits against citizens of the United States in federal courts; and to apply
our circuit precedents holding that a district court’s dismissal of a complaint for
failure to follow briefing instructions is reserved for extreme circumstances,
where there is a clear record of delay or contumacious conduct, and where lesser
sanctions would not serve the best interests of justice.
Plaintiffs-Appellants Servicios Azucareros de Venezuela, C.A., a Venezuela
corporation, and its president, Zvonimir Tolj, Sr., a citizen of Venezuela,
(collectively, “Servicios”), filed suit in the United States District Court for the
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Eastern District of Louisiana against Defendant-Appellee, John Deere
Thibodaux, Inc. (“John Deere”),1 a Louisiana corporation, for breach of a contract
providing for Servicios’s exclusive distributorship of John Deere products in
Venezuela. Servicios appeals the district court’s judgment, which dismissed the
complaint on two grounds: Servicios’s alleged lack of prudential standing as the
citizen of a foreign state to bring this suit in a U.S. district court and Servicios’s
failure to follow the court’s instructions in filing a supplemental brief. We
conclude that neither ground supports the dismissal of Servicios’s suit.
Accordingly, the district court’s order dismissing the complaint is vacated and
the case is remanded to it for further proceedings.
I.
Servicios alleges that prior to the events leading up to this lawsuit, it had
a contract with Cameco Industries, Inc., making Servicios the exclusive
distributor of John Deere products in Venezuela; that in 1996, Cameco changed
its name to John Deere Thibodaux; that under the contract, Servicios is entitled
to receive, and did for many years receive, a 20% commission on all John Deere
harvesters and tractors, and a 25% commission on spare parts, sold in
Venezuela. Servicios alleges that the contract was oral but was substantiated
with various written instruments over the years. Servicios asserts that through
its efforts over the years, it successfully developed the Venezuela market for
John Deere products. Servicios alleges that after John Deere changed its name,
it wrongfully reduced Servicios’s commission from 20% to 10% and, using
1
John Deere is incorrectly identified in case filings and caption as “John
Deere Thibodeaux, Inc.”
2
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“economic duress,” eventually attempted to terminate the contract altogether.
Servicios alleges that John Deere’s breach of contract caused it to suffer over
$1.5 million in damages.
Servicios filed the present lawsuit in the United States District Court for
the Eastern District of Louisiana pleading alienage jurisdiction and seeking,
inter alia, damages for breach of contract. Servicios pleaded claims under
Louisiana and, alternatively Venezuela, law. Under Louisiana law, Servicios
seeks recovery of damages for breach of contract under the contract law
principles of Louisiana Civil Code, articles 1983, 1966-67, 2013-14, and 2024
and, alternatively, unjust enrichment under article 2298 and commissions
wrongfully withheld under Louisiana Revised Statutes, sections 51:481-90.
Under Venezuelan law, Servicios asserts contract remedies pursuant to
Venezuela Civil Code articles 1159, 1212, and 1264, unjust enrichment under
article 1184, and moral damages under article 1196.
John Deere filed a 12(b)(6) motion to dismiss, arguing, inter alia, that
Servicios did not have standing to sue “under the well-established rule of
prudential standing that prohibits non-resident aliens from maintaining suit in
American federal courts.” The parties submitted briefing on John Deere’s
motion. Servicios contended that there is no valid legal basis for the prudential
standing requirement John Deere seeks to invoke. Servicios also argued that it
should be afforded access to U.S. courts for a variety of reasons, including
international comity and the United States’s obligations under the United
States–Venezuela treaty guaranteeing access to U.S. courts for Venezuelan
citizens on the same terms as U.S. citizens if they are “transient or dwelling” in
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the United States.2 Servicios also defended the sufficiency of its complaint on
the merits and in the alternative requested an opportunity to amend its
complaint.
The district court requested supplemental briefing on two issues “in light
of the D.C. Circuit’s recent ruling” in Doe v. Exxon Mobil Corp., 654 F.3d 11
(D.C. Cir. 2011). The order listed the issues as: “(1) Standing. Ignoring any rule
on non-resident alien standing, do the plaintiffs meet the zone-of-interests test
for prudential standing? (2) Choice of law. Does Louisiana or Venezuela law
govern plaintiffs’ claims? See LA. CIV. CODE. ANN. arts. 3542-3548.” The district
court also ordered that the supplemental briefs could not exceed five pages.
John Deere filed a supplemental brief in response to the court’s order
essentially restating its prior arguments and arguing that Venezuelan law
applies. Servicios filed a motion for leave to file an amended “petition” and a
motion for leave to file a supplemental opposition to John Deere’s motion.
Servicios also filed a motion to amend its complaint to plead prudential standing.
Servicios’ “supplemental opposition” contained its response to the court’s request
for supplemental briefing; among other things, Servicios argued that the
prudential standing requirement on which John Deere relies has no basis in law
and that the D.C. Circuit opinion in Exxon Mobil, the case on which the court
requested supplemental briefing, confirms the invalidity of that standing
requirement. Servicios also argued that under Louisiana’s choice of law rules,
2
See Treaty of Peace, Friendship, Navigation and Commerce Between the
United States and Venezuela, U.S.-Venez., art. XIII, Jan. 20, 1836, 8 Stat. 466,
1836 WL 3643.
4
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Louisiana substantive law governed, and that it met the zone of interests test
for prudential standing. However, the brief was twenty-five pages long.
The district court denied Servicios’ motion for leave to file the
supplemental opposition, referencing the court’s previous order requesting
supplemental briefing. The district court also granted John Deere’s 12(b)(6)
motion to dismiss in an order that stated in its entirety:
Before the Court is the defendant John Deere Thibodaux, Inc.’s Rule 12(b)(6)
motion to dismiss, which was set for hearing on the papers on July 20, 2011.
On July 15, 2011, the Court ordered supplemental briefing on (1) prudential
standing and (2) choice of law. Because the plaintiffs failed to respond to the
Court’s July 15 Order, and further, it appearing to the Court that the motion
has merit, IT IS ORDERED: The motion is GRANTED as unopposed.
The court’s single footnote stated: “The plaintiffs have not addressed the
question of prudential standing as the Court requested, and the issue is
therefore deemed waived. The plaintiffs are therefore DISMISSED for lack of
standing.”
Servicios then filed a motion to “reopen,” which the district court construed
as a Rule 59(e) motion to alter or amend. The district court denied the motion,
explaining:
In evaluating the defendant’s motion to dismiss, the Court considered extensive
briefing, and requested supplemental briefing on two discrete issues. The
plaintiffs ignored the order and instead elected to file an excessively long brief
which did not address the issues on which the Court ordered supplemental
briefing. Because the plaintiffs failed to address issues this Court deemed
necessary to the resolution of defendant’s motion, the Court treated those issues
as waived and granted the defendant’s motion on standing grounds.
Meanwhile, on August 24, 2011, Servicios filed a notice of appeal from the
district court’s July 29, 2010 order dismissing its complaint. On September 1,
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2011, the district court denied Servicios’s motion for reconsideration. On
September 9, 2011, Servicios filed an amended notice of appeal to include the
denial of its motion to reconsider.
II.
“Every federal appellate court has a special obligation to satisfy itself not
only of its own jurisdiction, but also that of the lower courts in a cause under
review, even [if] the parties are prepared to concede it.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 95 (1998) (alteration and quotation marks omitted).
“And if the record discloses that the lower court was without jurisdiction this
court will notice the defect, [even if] the parties make no contention concerning
it. When the lower federal court lacks jurisdiction, we have jurisdiction on
appeal, not of the merits but merely for the purpose of correcting the error of the
lower court in entertaining the suit.” Id. (alterations and quotation marks
omitted). Thus, the threshold jurisdictional question is whether Servicios had
standing to sue.
Article III, § 2 of the Constitution extends the “judicial Power” of the
United States only to “Cases” and “Controversies.” U.S. CONST. art. III, § 2. The
Supreme Court has “always taken this to mean cases and controversies of the
sort traditionally amenable to, and resolved by, the judicial process.” Steel Co.,
523 U.S. at 102. According to Supreme Court doctrine, “[t]he ‘irreducible
constitutional minimum of standing’ contains three requirements. First and
foremost, there must be alleged (and ultimately proved) an ‘injury in fact’—a
harm suffered by the plaintiff that is ‘concrete’ and ‘actual or imminent, not
‘conjectural’ or ‘hypothetical.’ Second, there must be causation—a fairly
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traceable connection between the plaintiff’s injury and the complained-of conduct
of the defendant. And third, there must be redressability—a likelihood that the
requested relief will redress the alleged injury. This triad of injury in fact,
causation, and redressability constitutes the core of Article III’s
case-or-controversy requirement, and the party invoking federal jurisdiction
bears the burden of establishing its existence.” Id. at 102-04 (internal citations
and footnote omitted); accord, e.g., Camreta v. Greene, 131 S. Ct. 2020, 2028
(2011); Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011);
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “In essence the
question of standing is whether the litigant is entitled to have the court decide
the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490,
498 (1975).
Applying the foregoing principles, we conclude that Servicios carried its
burden of establishing its Article III standing to bring this suit. Servicios
alleged that it suffered loss of commissions and profits because of John Deere’s
breach of Servicios’s exclusive distributorship contract for John Deere products
in Venezuela. This is a direct personal injury and a kind of harm required for
standing under Article III. Injuries to rights recognized at common law—
property, contracts, and torts—have always been sufficient for standing
purposes. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.3, at 67-68 (6th
ed. 2012) (citing Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269 (2008);
Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118 (1939)); see also Comer
v. Murphy Oil USA, 585 F.3d 855, 864 n.3 (5th Cir. 2009).3 A contract claim
3
Vacated on other grounds on grant of rehearing en banc, 598 F.3d 208, en
banc appeal dismissed for lack of quorum, 607 F.3d 1049 (5th Cir. 2010).
7
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under the Louisiana Civil Code is not derived from common law sources but is
nevertheless essentially the same as a common law contract claim for the
purpose of establishing standing in federal courts. Servicios has alleged that it
suffered an injury-in-fact, $1.5 million in damages that was caused by John
Deere’s alleged breach of contract, and, should it prove its case on the merits, its
injury would be redressable by the district court. See Steel Co., 523 U.S. at 102-
04. The requirements of Article III standing are satisfied.
Finally, we have subject-matter and appellate jurisdiction over this suit.
Subject-matter jurisdiction in this case is provided by alienage and diversity of
citizenship. See U.S. CONST. art. III, § 2, cl. 1; 28 U.S.C. § 1332(a)(2). The
requirements of diversity jurisdiction, and specifically alienage jurisdiction, are
satisfied as plaintiffs are citizens of Venezuela, a foreign state, and defendant,
John Deere Thibodaux, Inc., is a Louisiana corporation, and the complaint seeks
approximately $1.5 million in damages, an amount in controversy in excess of
the required sum or value of $75,000, exclusive of interest and costs. See 28
U.S.C. § 1332. We have jurisdiction to review appeals from all final decisions of
the district courts, except where a direct review may be had in the Supreme
Court. 28 U.S.C. § 1291. As the district court’s orders were intended to
terminate the action and the appeal was taken fewer than 30 days after the
court entered its last order, we have appellate jurisdiction. See FED. R. APP.
PROC. 4(a)(1)(A); United Steelworkers of Am. v. Am. Int’l Aluminum Corp., 334
F.2d 147, 153 n.4 (5th Cir. 1964).
After performing our independent obligation to ascertain that Servicios’s
complaint satisfies the requirements of constitutional standing and alienage
jurisdiction, we now address the only disputed issues in this appeal—whether
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Servicios failed to satisfy any applicable requirement of prudential standing,
and whether the district court abused its discretion by dismissing Servicios’
complaint because it failed to comply with the court’s instructions as to
supplemental briefing.
III.
John Deere argues that Servicios lacks prudential standing to maintain
suit in federal court. “[S]tanding jurisprudence contains two strands: Article III
standing, which enforces the Constitution’s case-or-controversy requirement,
and prudential standing, which embodies ‘judicially self-imposed limits on the
exercise of federal jurisdiction[.]’” Elk Grove Unified Sch. Dist. v. Newdow, 542
U.S. 1, 11 (2004). Thus, unlike the requirements of Article III standing,
prudential standing requirements are not strictly required by Article III of the
Constitution. See, e.g., Bennett v. Spear, 520 U.S. 154, 162 (1997); Warth, 422
U.S. at 500-01. Although the Supreme Court has “not exhaustively defined the
prudential dimensions of the standing doctrine, [the Court] ha[s] explained that
prudential standing encompasses ‘the general prohibition on a litigant’s raising
another person’s legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches, and the
requirement that a plaintiff’s complaint fall within the zone of interests
protected by the law invoked.’” Elk Grove, 542 U.S. at 12 (internal citations
omitted). “Without such limitations[,] . . . the courts would be called upon to
decide abstract questions of wide public significance even though other
governmental institutions may be more competent to address the questions and
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even though judicial intervention may be unnecessary to protect individual
rights.” Id. (quotation marks omitted).
Servicios’s breach of contract claim is clearly not barred by any aspect of
the prudential standing doctrine. Servicios does not seek to raise anyone else’s
legal rights; it has asserted its own personal and particularized injuries, not
generalized grievances; and its injuries involve the type of interests that have
traditionally been protected by the common law of contracts or, in Louisiana, by
a similar body of law, the Louisiana Civil Code articles on conventional
obligations or contracts. See Comer, 585 F3d at 868 n.7; see also, e.g., Sprint
Commc’ns Co., 554 U.S. at 290 (holding that assignees for collection of contract
claims were not bringing third-party grievances but their own first-party legal
rights); Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765,
777-78 (2000) (holding that lawsuits by assignees are “cases and controversies
of the sort traditionally amenable to, and resolved by, the judicial process”).
John Deere does not disagree with the foregoing analysis but instead
argues that Servicios’ suit lacks prudential standing for two entirely different
reasons: (1) it does not fall within the “zone of interests” of a federal statute sued
upon and (2) it does not fall within an exception to the general rule prohibiting
a citizen of a foreign state from bringing suit against a citizen of a state of the
United States in a U.S. federal court. These arguments are based on faulty
premises and therefore have no merit.
A.
John Deere first argues that Servicios cannot maintain suit because it has
not satisfied the “zone of interests” requirement of prudential standing. The
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Administrative Procedures Act (APA) authorizes suit to challenge a federal
agency by any “person . . . adversely affected or aggrieved . . . within the
meaning of a relevant statute[.]” 5 U.S.C. § 702. The Supreme Court has held
that this language establishes a regime under which a plaintiff may not sue
unless he “falls within the ‘zone of interests’ sought to be protected by the
statutory provision whose violation forms the legal basis for his complaint.”
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); accord Ass’n of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970) (reciting the test
as “whether the interest sought to be protected by the complainant is arguably
within the zone of interests to be protected or regulated by the statute or
constitutional guarantee in question”). The Court has described the “zone of
interests” test as denying a right of review “if the plaintiff’s interests are so
marginally related to or inconsistent with the purposes implicit in the statute
that it cannot reasonably be assumed that Congress intended to permit the suit.”
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987).
We agree with the view that the zone-of-interests test is an additional
standing requirement only in cases seeking review of agency decisions under the
APA. See, e.g., Clarke, 479 U.S. at 400 n.16; Procter & Gamble Co. v. Amway
Corp., 242 F.3d 539, 562 n.49; CHEMERINSKY, supra, at 107; cf. Thompson v. N.
Am. Stainless, LP, 131 S. Ct. 863, 870 (2011) (adhering to the view that the zone
of interests test is derived from administrative law but holding that Congress
intended to import this test to the Title VII context when it employed the phrase
“person aggrieved”). In Clarke, the Court explained that “[t]he principal cases
in which the ‘zone of interest’ test has been applied are those involving claims
under the APA, and the test is most usefully understood as a gloss on the
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meaning of § 702[,]” which authorizes judicial review of administrative action.
479 U.S. at 400 n.16. Because Servicios has not brought its claim under a
federal statute, constitutional provision, or the APA, the zone-of-interests test
is not applicable to this case. Servicios’s claim is based on private contract law
principles, and as we concluded above, claims based on contracts under the
common law or the substantially similar civil code contract principles are
sufficient for standing purposes.4 Thus, we conclude that the zone of interests
requirement of prudential standing is not a bar to Servicios’ contract claims.
B.
Next, John Deere argues that Servicios’s suit should be dismissed because
of a purported rule of prudential standing that a nonresident alien does not have
standing to sue a United States citizen or corporation in a federal court except
in certain circumstances not present here. We reject the argument as totally
without merit. The Framers intended, and specifically provided, that foreign
citizens have access to federal courts. John Deere’s argument is based on a false
doctrine initiated by a district court in the D.C. Circuit that has been
discredited by the Court of Appeals of that circuit. Moreover, it is foreclosed by
the Supreme Court’s decisions discussing the history and purpose of the alienage
jurisdiction provisions of Article III and federal jurisdictional statute.
Article III of the Constitution provides for jurisdiction in the federal
courts over all “Controversies . . . ‘between a State, or the Citizens thereof, and
4
Servicios also asserts a theory of recovery pursuant to the Louisiana
Dealer Agreement Act, LA. REV. STAT. §§ 51:481-90. The district court did not
reach this issue and we express no opinion as to whether Servicios may recover
under the Act.
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foreign States, Citizens, or Subjects,’” U.S. CONST. art. III, § 2, cl. 1, as does the
diversity jurisdiction statute, 28 U.S.C. § 1332(a)(2) (conferring diversity
jurisdiction in civil actions between “citizens of a State and citizens or subjects
of a foreign state,” excepting lawful permanent residents domiciled in the same
state). “Thus, from the beginning of the nation it was envisioned that the federal
courts would hear cases involving foreign citizens [under their] so-called
alienage jurisdiction.”5 The alienage jurisdiction provided for in Article III and
28 U.S.C. § 1332(a)(2) was intended from the beginning to create a federal forum
for contract disputes between foreign creditors and American citizens and
corporations. JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd.,
536 U.S. 88, 94-96 (2002).
“Both during and after the Revolution, state courts were notoriously frosty
to British creditors trying to collect debts from American citizens, and state
legislatures went so far as to hobble British debt collection by statute, despite
the specific provision of the 1783 Treaty of Paris that creditors in the courts of
either country would ‘meet with no lawful impediment’ to debt collection.” Id.
at 94. “This penchant of the state courts to disrupt international relations and
discourage foreign investment led directly to the alienage jurisdiction provided
by Article III of the Constitution. ‘[T]he proponents of the Constitution . . . made
it quite clear that the elimination or amelioration of difficulties with credit was
the principal reason for having the alienage and diversity jurisdictions, and that
5
13E CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3604, at 146 & n.2 (3d ed. 2009 & Supp.
2012) (citing, inter alia, Romero v. Int’l Terminal Operating Co., 358 U.S. 354,
380-81 (1959)).
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it was one of the most important reasons for a federal judiciary.’”6 Accordingly,
federal courts have repeatedly entertained contract suits by foreign plaintiffs
without determining whether any prudential standing requirement had been
satisfied.7
Nevertheless, John Deere argues that Servicios’s suit is barred by what it
claims is a “general rule of prudential standing” that nonresident aliens cannot
maintain suit in federal court. John Deere relies principally on a district court’s
pronouncement that there is a “general rule that non-resident aliens have no
standing to sue in United States courts.” Berlin Democratic Club v. Rumsfeld,
410 F. Supp. 144, 152 (D.D.C. 1976). To the extent that Berlin Democratic Club
6
Id. at 94-95 (quoting Wythe Holt, “To Establish Justice”: Politics, the
Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 DUKE L.J.
1421, 1473); see also id. at 95-96 (surveying the federal constitutional debates)
(citing 2 DEBATES ON THE FEDERAL CONSTITUTION 492-93, 534, 583 (Jonathan
Elliot ed. 1876)); Kevin R. Johnson, Why Alienage Jurisdiction? Historical
Foundations and Modern Justifications for Federal Jurisdiction over Disputes
Involving Noncitizens, 21 YALE J. INT’L L. 1, 10-16 (1996) (detailing Founders’
debate over alienage provisions of Article III).
7
See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964);
Corfield v. Dallas Glen Hills LP, 355 F.3d 853 (5th Cir. 2003); Jaff v. Cal-Maine
Foods, Inc., 774 F.2d 1314 (5th Cir. 1985); Ed & Fred, Inc. v. Puritan Marine Ins.
Underwriters Corp., 506 F.2d 757 (5th Cir. 1975); see also 14A WRIGHT, MILLER,
& COOPER § 3661, at 133-34 & n.5 (collecting cases in which a noncitizen was
permitted to file suit against a state citizen in federal district court). Cf. Estrada
v. Ahrens, 296 F.2d 690, 695 (5th Cir. 1961) (rejecting the government’s
argument that the nonresident alien plaintiffs lacked standing to seek
mandamus relief in their immigration cases, reasoning that the APA afforded
them a right to judicial review and that “[n]onresidence and absence . . . have no
importance and no relevance here. When an alien, even one perhaps forever
destined to be pursued and plagued by his past, has knocked at the door of this
country[,] . . . he has a right . . . [to a] hearing”).
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and its followers endorsed such a prudential standing rule,8 the rule appears to
have been discredited by the D.C. Circuit’s opinion in Doe v. Exxon Mobil Corp.,
654 F.3d 11, 65-68 (D.C. Cir. 2011) (observing that Berlin Democratic Club was
based on a misinterpretation of Supreme Court precedent and holding “that
there is no per se rule against standing for non-resident aliens in federal
courts”).9
The purported authority for the rule announced in Berlin Democratic Club
is the Supreme Court’s opinion in Johnson v. Eisentrager, 339 U.S. 763 (1950).10
8
See, e.g., Kukatush Mining Corp. v. SEC, 309 F.2d 647, 650 (D.C. Cir.
1962) (holding that a nonresident alien corporation, which transacted no
business and had no assets in the United States, lacked standing because the
court did not “ha[ve] jurisdiction of the subject res or with the preferred rights
under immigration laws”), overruling recognized in Exxon Mobil, 654 F.3d at 66-
67; Constructores Civiles de Centroamerica, S.A. (CONCICA) v. Hannah, 459
F.2d 1183, 1191 (D.C. Cir. 1972) (“CONCICA, despite its status as a non-resident
alien corporation, has standing to maintain suit.”), limitation recognized by
Exxon Mobil, 654 F.3d at 67; DKT Mem’l Fund Ltd. v. Agency for Int’l Dev., 691
F. Supp. 394, 399 (D.D.C. 1988) (noting the rule in Berlin Democratic Club but
observing the rule “is not as clear-cut as the defendants would have this Court
believe”), rev’d in part, 887 F.2d 275 (D.C. Cir. 1989); Brady v. Xe Servs. LLC,
No. 09-449, 2011 WL 285241, at *3 (E.D.N.C. Jan. 26, 2011) (unpublished)
(citing Berlin Democratic Club without analysis); Doe v. Exxon, 658 F. Supp. 2d
131, 134 (D.D.C. 2009), rev’d, 654 F.3d 11, 66 (D.C. Cir. 2011).
9
We note that the D.C. Circuit’s decision in Exxon Mobil has not yet been
made final and may be subject to reconsideration on other grounds pending the
Supreme Court’s decision in Kiobel v. Royal Dutch Petrol. Co., 132 S. Ct. 472
(2011). Nevertheless, we find the Exxon Mobil court’s analysis abrogating Berlin
Democratic Club persuasive and independently conclude that Berlin Democratic
Club’s analysis was incorrect.
10
Superseded on other grounds by Braden v. 30th Judicial Circuit Court of
Ky., 410 U.S. 484, 494-95 (1973), as stated in Rasul v. Bush, 542 U.S. 466, 478-79
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See Berlin Democratic Club, 410 F. Supp. at 152. However, Eisentrager provides
little or no foundation for the prudential standing rule described in Berlin
Democratic Club. We agree with the D.C. Circuit’s assessment that “[t]he
[district] court in Berlin Democratic Club misread [Eisentrager], which
concerned the constitutional rights of alien enemies, and took pains to
distinguish alien friends. . . . [T]he Supreme Court intended only to address
claims by enemy aliens.” Exxon Mobil, 654 F.3d at 66 (citations omitted); see
Eisentrager, 339 U.S. at 776 (“The standing of the enemy alien to maintain any
action in the courts of the United States has been often challenged and
sometimes denied.”).11 The Eisentrager Court did not establish any general rule
of prudential standing that nonresident aliens were barred from obtaining civil
relief in American courts. To the contrary, Article III and § 1332(a)(2)’s alienage
jurisdiction provisions were from the very beginning intended to provide a
federal forum for civil disputes between foreign plaintiffs and American citizens.
See JPMorgan Chase, 536 U.S. at 94-96.
For these reasons, we conclude that there is no per se rule against
standing for non-resident aliens in federal courts, as John Deere contends, and
that the principles of prudential standing do not call for the dismissal of
Servicios’s suit.12
(2004).
11
Cf. Rasul, 542 U.S. at 475-80 (holding that habeas corpus was available
to detainees of Guantánamo Bay, distinguishing Eisentrager on its facts, and
holding that Eisentrager does not affect the statutory basis of habeas jurisdiction
over foreign nationals’ petitions).
12
Accordingly, we need not reach Servicios’ alternative argument that
despite any prudential standing bar, it should be afforded access to our courts
16
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No. 11-30776
IV.
Having concluded that Servicios has satisfied the constitutional and
prudential standing requirements, we next review the district court’s dismissal
of plaintiffs’ suit for failure to carefully follow its instructions as to supplemental
briefing. We review a district court’s grant of a dispositive motion based on a
litigant’s failure to abide by procedural rules or orders for abuse of discretion.
See, e.g., Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190-91 (5th Cir. 1992);
Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 888 (5th Cir. 1968).
Although district courts have discretion to impose rules to effect the orderly and
efficient handling of cases, “we have not approved the automatic grant, upon
failure to comply with such rules, of motions that are dispositive of the
litigation.” John v. Louisiana, 757 F.2d 698, 709 (5th Cir. 1985). Where a
district court’s order dismissing a complaint effectively “bars further litigation,
the standard of review of the District Court’s dismissal should be the same as is
used when reviewing a dismissal with prejudice.” Boazman v. Econ. Lab., Inc.,
537 F.2d 210, 213 (5th Cir. 1976).
The first ground on which the district court based its dismissal order was
the plaintiffs’ asserted failure “to address issues th[e] [c]ourt deemed necessary
to the resolution of defendant’s motion.” Although Servicios’ brief exceeded the
prescribed length, Servicios complied with the district court’s request for
supplemental briefing on the zone of interests test and choice of law. In its brief,
Servicios argued that Exxon Mobil foreclosed John Deere’s prudential standing
because of principles of comity and, more specifically, because the United States
and Venezuela have entered into a Treaty regarding access to courts. See
Treaty of Peace, Friendship, Navigation and Commerce Between the United
States and Venezuela, U.S.-Venez., Jan. 20, 1836, 8 Stat. 466, 1836 WL 3643.
17
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No. 11-30776
argument, that Louisiana law governs, and that Servicios satisfied the zone-of-
interests test for prudential standing. The briefing was verbose and addressed
issues the district court may have felt were extraneous, but the only material
deficiencies in Servicios’s brief were its lack of concision and excessive length.
Although the district court had discretion to impose procedural rules, such
as its page limitation on supplemental briefs, “we have not approved the
automatic grant, upon failure to comply with such rules, of motions that are
dispositive of the litigation.” John, 757 F.2d at 709; accord, e.g., Ramsey v.
Signal Delivery Serv., Inc., 631 F.2d 1210, 1214 (5th Cir. 1980) (court-ordered
filing deadline); Boazman, 537 F.2d at 211-12 (same); see also, e.g., Berry, 975
F.2d at 1191 (dismissal for failure to file a motion for default judgment); Flaksa,
389 F.2d at 887 (dismissal for attorney’s repeated unpreparedness and dilatory
conduct). Dismissal of a plaintiff’s complaint due to a procedural deficiency is
reserved for “extreme circumstances, where ‘there is a clear record of delay or
contumacious conduct,’ and ‘where lesser sanctions would not serve the best
interests of justice[.]’” Boazman, 537 F.2d at 212 (citations omitted). The record
does not reflect that Servicios violated multiple court orders or otherwise
engaged in egregious obstructionist conduct, and the district court did not
consider whether lesser sanctions than full dismissal would be appropriate and
effective. Therefore, Servicios’s complaint should not have been dismissed on
this ground.
In its order dismissing the case, the district court also stated in a footnote
that Servicios had “waived” its standing argument because of its failure to file
an adequate brief on the issue. Even if Servicios had not briefed the issue at all,
Rule 12 does not by its terms require an opposition; failure to oppose a 12(b)(6)
18
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No. 11-30776
motion is not in itself grounds for granting the motion.13 Rather, a court
assesses the legal sufficiency of the complaint. See FED. R. CIV. P. 12(b)(6). We
conclude that the district court abused its discretion in dismissing Servicios’
complaint to the extent that it did so as a penalty for its perceived failure to
properly brief its opposition to John Deere’s motion.
V.
For these reasons, we VACATE the district court’s judgment dismissing
Servicios’s complaint and REMAND the case to it for further proceedings.
13
See, e.g., John, 757 F.2d at 707-10 (“[A]lthough we have endorsed the
adoption of local rules that require parties to file responses to opposed motions,
we have not approved the automatic grant, upon failure to comply with such
rules, of motions that are dispositive of the litigation.”); Ramsey, 631 F.2d at 121;
accord, e.g., McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000) (“[F]ailure to
oppose a 12(b)(6) motion cannot itself justify dismissal of a complaint.”).
19