[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-10921

Non-Argument Calendar

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D.C. Docket No. 2:13-cv-00393-RDP

MARISOL MELO PENALOZA, 

ANA GREGORIA PALOMI ROMERO, 

LUZ MARINA CASTILLO MANJARRES, 

MILAGRO BOLANO MARQUEZ, 

MARIA OTILIA AGUIRRE BALLESTEROS,

AMINTA DOMITILA LAZCAN JUNCO, 

JUANA MARIA CONTRERAS DE LOPEZ, 

HILDEMARO MELGAREJO MOLINA,

YOLANDA DEL CARMEN SANT OSSA, 

CLAUDINA ROSA OROZCO,

FATINIZA ISABEL GUTIERRE BUELVAS, 

CARLOS ENRIQUE CARBONO AZUAGA,

MARTHA JOSEFA HERNANDE MARTINEZ,

LUZLENID SILVA MUNOZ, 

FRANCIA COLL DE TOVAR, 

DOMINGA GUTIERREZ CABALLERO, 

JUAN MARIA CONTERERA DE LOPEZ, 

MARIA FELICIA MEZA GARCIA, 

EVERELY PALOMINO VANEGAS, 

GINA PAOLA SANTANA GUTIERREZ, 

ADELAIDA ISABEL DE LA ROSA RODRIGUEZ, 

C.N.G.R., 

HERMELINDA SARMIENTO DE LA CRUZ, 

ANA VIRGINIA OCHOA NAVARRO, 

ANA CECILIA PASTOR BARRIOS, 

EDYS CORREA CERVANTES, 

MANUEL GREGORIO TAPIA VEGA, 

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ARMANDO RAFAEL CANDANOZ GUZMAN, 

LUZ MARINA ANAYA ROYERO,

N.S.M.A., 

MARIA SUREYA SUESCUN BOTELLO,

EDILMA ISABEL TORRES OZUNA, 

ALBA LUZ CABALLERO GOMEZ, 

AMPARO DE JESUS FLOREZ TORRES,

J.A.G.F., 

LUZ MARINA PACHECO CANTILLO, 

MERILSA FRANCISCA DAZA AMAYA, 

JHON ALFER PADILLA DAZA, 

MARCOS JOSE PADILLA DAZA, 

GICELA MARGARITA PADIL DAZA, 

ADRIANA CRISTINA PADILL DAZA,

YARLENYS ROSMIRA PADILLA DAZA, 

CARMEN INELMA, 

ALFREDO CAMPO MEDINA,

ANA CRISTINA CAMPO MEDINA, 

ISABEL MARIA LAZCANO DE CALDERON, 

 Plaintiffs - Appellants,

versus

DRUMMOND COMPANY, INC., 

DRUMMOND LTD., 

DRUMMOND USA, INC., 

GARRY DRUMMOND, 

JAMES MICHAEL TRACY, 

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(September 27, 2016)

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Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM: 

This appeal arises out of the fourth of four actions brought in the Northern 

District of Alabama by Colombian plaintiffs as legal representatives or wrongful 

death beneficiaries of decedents allegedly executed by members of the United Self 

Defense Forces of Colombia (AUC), a right-wing paramilitary group, during a 

period of heightened conflict between the AUC and the Revolutionary Armed 

Forces of Colombia (FARC), a left-wing guerilla group. In this action, the 

Plaintiffs sue Drummond Co., Inc. (Drummond), two Drummond subsidiaries, and 

two Drummond executives, Garry Drummond and James Michael Tracy, under the 

Alien Tort Statute (ATS), 28 U.S.C. § 1350 (Counts One and Two), the Torture 

Victims Protection Act (TVPA), 106 Stat. 73, codified at 28 U.S.C. § 1350 note

(Count Three), and Colombian wrongful death law (Count Four). The Plaintiffs

allege that the Defendants provided substantial financial assistance to the Northern 

Block of the AUC in return for protection of Drummond’s Colombian assets and 

operations. The Defendants’ financial assistance allegedly enabled the Northern 

Block to dramatically increase its presence in the Colombian provinces of Cesar 

and Magdalena. Each of the decedents was allegedly executed by the AUC in an 

extrajudicial killing. The Plaintiffs premise the Defendants’ liability on theories of 

agency, aiding and abetting, and conspiracy. 

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After this Court affirmed dismissals and summary judgment in two of the 

related cases, Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015) and Baloco v. 

Drummond Co., 767 F.3d 1229 (11th Cir. 2014) (“Baloco II”), the district court 

ordered the parties to show cause why this case should not be dismissed on the 

authority of this Court’s recent decisions. The parties briefed numerous issues 

arising out of Doe and Baloco II as well as issues unique to this case. On January 

26, 2016, the district court dismissed with prejudice all of the Plaintiffs’ claims. 

The district court did not elaborate upon the grounds for dismissal other than to 

state that the dismissal was “[b]ased on the decisions entered by this court and the 

Eleventh Circuit in [Doe and Baloco II].” After review, we affirm in part, reverse 

in part, vacate in part, and remand in part with instructions.

I. BACKGROUND

In 2003 and 2004, a Colombian union and the families of three deceased 

Colombian union leaders sued Drummond, Drummond Ltd., Garry Drummond, 

and Augusto Jimenez in several separate actions. The plaintiffs claimed that the 

defendants employed or contracted with paramilitary members to murder, torture, 

and otherwise silence union leaders, including the decedent union leaders, in 

violation of the ATS, the TVPA, and Colombian wrongful death law. The district 

court consolidated the actions in 2004. In 2006, the plaintiffs voluntarily 

dismissed with prejudice their claims against Garry Drummond. In 2007, after 

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pre-trial orders narrowed the issues, the case proceeded to trial on the plaintiffs’ 

claims under the ATS. The jury rendered a verdict for the defense, and this Court 

affirmed in Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008).

In March 2009, the children and heirs of the same three union leaders whose 

deaths were the subject of Romero sued Drummond, Drummond Ltd., Jimenez, 

Tracy, Alfredo Araujo, and James Adkins. The plaintiffs alleged that the 

defendants aided and abetted or conspired with the AUC by funding its operations 

and collaborated with the AUC to murder the plaintiffs’ decedents in violation of 

the ATS, the TVPA, and Colombian wrongful death law. The district court 

dismissed five of the eight plaintiffs on res judicata grounds, finding that the 

plaintiffs were parties to Romero under “Jane Doe” pseudonyms. The district court 

also dismissed the ATS and TVPA claims for lack of standing and declined to 

exercise its supplemental jurisdiction over the wrongful death claims. This Court 

reversed, holding that the plaintiffs had standing and that the res judicata

determination was premature at the motion-to-dismiss stage. Baloco ex rel. Tapia 

v. Drummond Co., 640 F.3d 1338, 1345, 1350–51 (11th Cir. 2011) (“Baloco I”). 

On remand, the district court conducted further proceedings and ultimately granted 

the defendants’ motion for summary judgment on res judicata grounds. This Court 

affirmed, finding that (1) under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 

1659 (2013), the district court lacked subject matter jurisdiction to consider the 

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plaintiffs’ ATS claims and (2) the district court correctly determined that res 

judicata barred the plaintiffs’ remaining claims. Baloco II, 767 F.3d at 1239, 

1247–48, 1251.

In May 2009, just two months after the Baloco litigation commenced, the 

legal heirs of 144 decedents sued Drummond, Drummond Ltd., Jimenez, Araujo, 

and Adkins. As with each preceding action, the plaintiffs sought relief under the 

ATS, the TVPA, and Colombian wrongful death law. As with the present action, 

the plaintiffs alleged that the defendants financed the Northern Block of the AUC, 

members of which killed each decedent in violation of the law of nations. Early in 

the litigation, the district court declined to exercise supplemental jurisdiction over

the wrongful death claims. Upon the defendants’ motions for summary judgment, 

the district court dismissed the ATS claims based on Kiobel, dismissed the TVPA 

claims against corporate defendants based on Mohammad v. Palestinian Authority, 

132 S. Ct. 1702 (2012), and granted summary judgment in favor of the individual 

defendants on the TVPA claims. This Court affirmed in Doe v. Drummond Co., 

782 F.3d 576 (11th Cir. 2015).

In February 2013, the Plaintiffs, legal representatives or wrongful death 

beneficiaries of 34 decedents, commenced the present action against Drummond, 

Drummond Ltd., Drummond USA, Inc., Garry Drummond, and Tracy. The 

Supreme Court decided Kiobel on April 17, 2013, and the Plaintiffs filed an 

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amended complaint nine days later. In February 2014, with the parties’ consent, 

the district court stayed this action pending this Court’s resolution of Baloco II and 

Doe. Due to the stay, the district court administratively denied without prejudice

the Defendants’ pending motion to dismiss, to which the Plaintiffs had responded. 

In April 2015, upon this Court’s deciding Doe, the district court ordered the 

parties to show cause why this action should not be dismissed in light of Baloco II 

and Doe. The Defendants argued that (1) this Court’s decisions in Baloco II and 

Doe foreclosed any argument that the Plaintiffs had invoked the district court’s 

subject matter jurisdiction as to the ATS claims, (2) the Plaintiffs failed to state a 

claim under Doe’s articulation of the standard for indirect liability under the 

TVPA, and (3) the Plaintiffs’ wrongful death claims are barred by the Alabama 

statute of limitations. The Plaintiffs responded to the show-cause order, arguing 

that (1) the district court should permit them to conduct discovery on the issue of 

U.S.-based conduct, (2) because Baloco II and Doe were decided at summary 

judgment, the decisions did not impact the Plaintiffs’ TVPA claims against Garry 

Drummond and Tracy, and (3) neither Baloco II nor Doe affected the Plaintiffs’

wrongful death claims, which, unlike those in Baloco and Doe, were premised on 

diversity jurisdiction. Because of the timing of the show-cause order, neither party 

had the opportunity to respond to the other’s argument.

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On January 26, 2016, the district court dismissed with prejudice all of the 

Plaintiffs’ claims. The district court did not explain the basis for its dismissal other 

than to reference Baloco II, Doe, and the district court’s previous decisions. On 

January 29, 2016, the district court issued an amended order, the pertinent 

language of which was identical to the January 26 order. The Plaintiffs appeal. 

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal with prejudice, applying the 

same standards used by the district court. Young Apartments, Inc. v. Town of 

Jupiter, Fla., 529 F.3d 1027, 1037 (11th Cir. 2008). We likewise review de novo a 

district court’s determination of its subject matter jurisdiction. Chhetri v. United 

States, 823 F.3d 577, 582 (11th Cir. 2016). We review for abuse of discretion, 

however, a district court’s case management decisions, such as the denial of a 

request for jurisdictional discovery and the denial of a request for leave to amend a 

complaint. See Culverhouse v. Paulson & Co., 813 F.3d 991, 993 (11th Cir. 2016).

III. DISCUSSION

A. Counts One and Two: ATS

Under Kiobel, a federal court’s jurisdiction under the ATS is subject to the 

presumption against extraterritoriality. 133 S. Ct. at 1664. A federal court lacks 

jurisdiction over an ATS claim with an extraterritorial component unless the claim 

“touch[es] and concern[s] the territory of the United States . . . with sufficient force 

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to displace the presumption.” Id. at 1669. Baloco II addressed and Doe elaborated 

upon the standard for extraterritorial application of the ATS. Baloco II emphasized 

that, to invoke subject matter jurisdiction under the ATS, the claims must “touch 

and concern” the territory of the United States and must allege conduct “focused in 

the United States.” 767 F.3d at 1239. Doe construed Kiobel and Baloco II, among 

other ATS cases, to hold that “claims will only displace the presumption against 

extraterritoriality if enough of the relevant conduct occurs domestically and if the 

allegations of domestic conduct are supported by a minimum factual predicate.” 

Doe, 782 F.3d at 598 (emphasis in original).

Both Baloco II and Doe held that the plaintiffs’ allegations failed to 

overcome the presumption against extraterritoriality and that the plaintiffs had 

therefore failed to invoke federal court subject matter jurisdiction under the ATS. 

See Doe, 782 F.3d at 600; Baloco II, 767 F.3d at 1239. As the Plaintiffs concede, 

the operative complaint in this action is nearly identical in pertinent part to the 

complaint deemed insufficient in Doe. Absent any meritorious distinction, we 

must conclude in accordance with Doe that the Plaintiffs fail to invoke the district 

court’s subject matter jurisdiction under the ATS. Therefore, the district court 

appropriately dismissed Counts One and Two on the authority of Baloco II and 

Doe.

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On appeal, the Plaintiffs focus their argument not on the merits of the 

dismissal but on the district court’s implicit denial of the Plaintiffs’ request for 

discovery on the Defendants’ U.S.-based conduct. But the Plaintiffs have 

identified no reason to conclude that the district court abused its discretion in 

declining to permit jurisdictional discovery. Counsel for the Plaintiffs first sued 

three of the five Defendants in 2003 on similar allegations and identical legal 

bases. The Plaintiffs filed the operative complaint after Kiobel was decided and 

with the benefit of ten years of evidence obtained from the preceding related cases. 

The Plaintiffs therefore had ample opportunity to plead allegations that “touch[ed]

and concern[ed] the territory of the United States.” Kiobel, 133 S. Ct. at 1669. 

Given the tremendous volume of information available to the Plaintiffs, it is telling 

that the operative complaint continues to plead sparse allegations of U.S.-based 

conduct and that the Plaintiffs fail to offer any indication that they could in good 

faith plead additional U.S.-based conduct. Under these circumstances, the district 

court did not abuse its discretion by implicitly declining to permit jurisdictional 

discovery. See Butler v. Sukhoi Co., 579 F.3d 1307, 1314 (11th Cir. 2009) 

(“Inasmuch as the complaint was insufficient as a matter of law to establish a 

prima facie case that the district court had jurisdiction, the district court abused its 

discretion in allowing the case to proceed and granting discovery on the 

jurisdictional issue.”).

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The district court did err, however, in dismissing with prejudice the 

Plaintiffs’ ATS claims. The ATS is a jurisdictional statute.

1

 Because the 

presumption against extraterritoriality limits the scope of the ATS’s jurisdictional 

reach, a dismissal for failure to rebut the presumption is a dismissal for failure to 

invoke the district court’s subject matter jurisdiction. Baloco II, 767 F.3d at 1239 

(dismissing the plaintiffs’ ATS claims for failure to overcome the presumption 

against extraterritoriality and describing dismissal as “without prejudice . . . for 

lack of subject matter jurisdiction”). Thus, while the district court may in its 

discretion deny the Plaintiffs another opportunity to plead federal court subject 

matter jurisdiction, the district court may not otherwise prejudice the Plaintiffs’ 

rights with respect to claims over which it lacks jurisdiction. See Stalley ex rel. 

United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1234–1235 

(11th Cir. 2008) (“[T]he district court lacked subject matter jurisdiction over the 

complaint, and it had no power to render a judgment on the merits. Consequently, 

the district court should have dismissed the complaint without prejudice, and we 

remand in part so that the district court can reenter its dismissal order without 

prejudice.” (citation omitted)). Therefore, the district court’s dismissal of the ATS 

claims, while proper, should not have been characterized as a dismissal with

 1 While we refer to Counts One and Two as “ATS claims,” they are more appropriately 

described as claims under the law of nations over which a federal court may have subject matter 

jurisdiction under the ATS.

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prejudice. We reverse the district court’s dismissal with prejudice of Counts One 

and Two and remand with instructions to dismiss without prejudice Counts One 

and Two.

B. Count Three: TVPA

We first note that the Plaintiffs challenge the district court’s dismissal of 

Count Three only as it relates to Defendants Garry Drummond and James Michael 

Tracy. Because the Plaintiffs have waived any challenge to the district court’s 

dismissal with prejudice of Count Three as to the three corporate defendants, we 

affirm that aspect of the district court’s order without further discussion. See 

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004); cf. 

also Doe, 782 F.3d at 602 n.36 (“The TVPA does not authorize liability against 

corporate entities.”). We now proceed to discuss the Plaintiffs’ TVPA claims 

against Garry Drummond and Tracy.

Baloco II held that claims preclusion and issue preclusion barred the 

plaintiffs’ TVPA claims. 767 F.3d at 1248, 1251. The Baloco plaintiffs had a 

substantive legal relationship with the Romero plaintiffs, and the issues and claims 

were identical in the two actions. See generally id. This action, while similar, 

involves distinct plaintiffs and distinct claims. Neither before the district court nor 

on appeal do the Defendants argue that this case is barred by res judicata. 

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Therefore, Baloco II does not appear to be the basis upon which the district court 

dismissed with prejudice Count Three.

Doe held that the plaintiffs failed to establish a genuine dispute of material 

fact supporting their theories that the individual defendants were indirectly liable 

for the AUC’s alleged extrajudicial killings. 782 F.3d at 604. Specifically, this 

Court found no genuine dispute of fact regarding (1) the individual defendants’ 

knowledge of Drummond’s payments to the AUC; (2) the individual defendants’ 

knowledge that the AUC was murdering noncombatants along rail lines; or (3) the 

individual defendants de facto or de jure authority or control over the actors who 

committed extrajudicial killings. Id. at 604–05, 610 n.48. The absence of 

evidence supporting (1) and (2) precluded an aiding and abetting theory of liability, 

and the absence of evidence supporting (3) precluded a command responsibility 

theory of liability. See id. at 608, 610.

When the district court dismissed this case, discovery had not commenced, 

and there was no pending motion for summary judgment. Before the stay, the 

district court had before it the Defendants’ motions to dismiss, which the district 

court administratively terminated without prejudice in light of the stay. In the

district court’s post-stay show-cause order, the district court did not notify the 

parties that it intended to consider matters outside the pleadings other than this 

Court’s published decisions in Baloco II and Doe. See Fed. R. Civ. P. 12(d) (If a 

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district court intends to treat a motion to dismiss as a motion for summary 

judgment, “[a]ll parties must be given a reasonable opportunity to present all the 

material that is pertinent to the motion.”); Fed. R. Civ. P. 56(f) (“After giving 

notice and a reasonable time to respond, the court may: (1) grant summary 

judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; 

or (3) consider summary judgment on its own after identifying for the parties 

material facts that may not be genuinely in dispute.”). Therefore, the district court 

could not have based its dismissal of Count Three on the absence of a genuine 

dispute of material fact. 

Because the district court could not have based its dismissal of Count Three 

on the holdings of Baloco II and Doe, we are left rudderless on appeal. The 

Defendants argued both before the district court and on appeal that, given Doe’s

extensive discussion of the standard for aiding and abetting liability and command 

responsibility doctrine liability under the TVPA, Doe supports dismissal of Count 

Three for failure to state a claim. While this may be so, the district court failed to 

discuss this issue at all. 

We have the discretion to affirm an order of the district court on any grounds 

supported by the record but may “decline to do so when appellate review would 

benefit from reasoned deliberation by the district court.” Palmyra Park Hosp. Inc. 

v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1306 n.15 (11th Cir. 2010)

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(citations omitted). Here, where the 112-page, 210-paragraph operative complaint 

alleges wrongful conduct by five defendants (and numerous non-parties) resulting 

in the extrajudicial killing of 34 people, we decline to consider in the first instance 

whether the complaint states a claim for two defendants’ indirect liability. The 

initial resolution of that issue is better left to the district court, which has grown 

intimately familiar with the allegations in this case.2

 

We therefore vacate the district court’s dismissal of Count Three (except as 

to the corporate defendants) and remand with instructions for the district court to 

either permit the Plaintiffs to proceed against the individual Defendants on Count 

Three or to reinstate the dismissal along with an articulation of the basis and 

reasoning for the dismissal.

C. Count Four: Wrongful Death

As in this case, both Baloco and Doe included wrongful death claims under 

Colombian law. In Baloco and Doe, however, the plaintiffs, all Colombian 

citizens, sued several American defendants and Jimenez, a Colombian citizen. The 

wrongful death claims were therefore premised upon supplemental jurisdiction. In 

Doe, the district court declined to exercise supplemental jurisdiction over the 

wrongful death claims and declined the plaintiffs’ post-judgment motion to amend 

 2 We acknowledge that the district court may consider itself to have already decided this 

issue on the Defendants’ proffered basis, and we do not intend to suggest that the district court 

erred on the merits or is generally obligated to state the reasons for its decision. In this case, 

however, “appellate review would benefit from reasoned deliberation by the district court.” 

Palmyra Park Hosp. Inc., 604 F.3d at 1306 n.15.

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the complaint to create complete diversity. See Doe, 782 F.3d at 581. This Court 

found no abuse of discretion in the district court’s decision. Id. at 613. Baloco II

likewise affirmed the res judicata holding as to the plaintiffs’ wrongful death 

claims. 767 F.3d at 1252.

In this action, because res judicata does not apply and the Plaintiffs’ 

wrongful death claims are premised on mandatory diversity jurisdiction neither 

Baloco II nor Doe support the district court’s dismissal with prejudice of Count 

Four. Before both the district court and this Court, the Defendants argued not that 

Baloco II or Doe mandate dismissal of Count Four but that the Alabama statute of 

limitations bars Count Four. The Plaintiff countered that the Colombian statute of 

limitations applies and that the Plaintiffs are in any event entitled to equitable 

tolling due to the Colombian political environment and Drummond’s alleged 

concealment. 

As with Count Three, the Defendants argue a plausible basis to affirm. As 

with Count Three, it is unclear whether the district court dismissed on the 

Defendants’ articulated basis. As with Count Three, we decline to address this 

complicated issue in the first instance on appeal. See Palmyra Park Hosp. Inc., 

604 F.3d at 1306 n.15.

We therefore vacate the district court’s dismissal of Count Four and remand 

with instructions for the district court to either permit the Plaintiffs to proceed on 

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this count or to reinstate the dismissal along with an articulation of the basis and 

reasoning for the dismissal.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal with 

prejudice of Count Three as to Defendants Drummond Co., Inc., Drummond Ltd., 

and Drummond USA, Inc. We reverse the district court’s dismissal with prejudice 

of Counts One and Two and remand with instructions for the district court to 

dismiss Counts One and Two without prejudice. We vacate the district court’s 

dismissal with prejudice of Count Four and of the remaining portions of Count 

Three and remand with instructions for the district court to either proceed with the 

litigation as to those claims or to reinstate the dismissal and articulate the basis and 

reasoning for the dismissal.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, 

AND REMANDED IN PART WITH INSTRUCTIONS.

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