FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AKEBO ABAGNININ; AMANGOUA 

ABLI; MIESSAN ETIENNE ABLI; ABA

ABOU; YAPO PIERRE ABOUA; KOFFI

ANTOINE ABRI; AMPOH ADAMA;

TOURE ABRY; HARUNA

ABUBAKARAY; KROYA ACA;

SIMPLICE ACHIEPO,

No. 07-56326 Plaintiffs-Appellants,

D.C. No.

v.  CV-06-06157-GW

AMVAC CHEMICAL CORPORATION;

OPINION DOW CHEMICAL COMPANY; SHELL

OIL COMPANY; DOLE FOOD

COMPANY, INC.; DOLE FRESH FRUIT

CO; STANDARD FRUIT CO.;

STANDARD FRUIT AND STEAMSHIP

COMPANY,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted

July 18, 2008—Pasadena, California

Filed September 24, 2008

Before: Cynthia Holcomb Hall and Pamela Ann Rymer,

Circuit Judges, and Stephen M. McNamee,* District Judge.

*The Honorable Stephen M. McNamee, Senior United States District

Judge for the District of Arizona, sitting by designation. 

13521
Opinion by Judge McNamee

13522 ABAGNININ v. AMVAC CHEMICAL CORP.
COUNSEL

Raphael Metzger, Metzger Law Group, Long Beach, California, for the plaintiffs-appellants. 

Edwin V. Woodsome, Jr., Orrick, Herrington & Sutcliffe, Los

Angeles, California, for defendant-appellee The Dow Chemical Company; Lawrence P. Riff, Steptoe & Johnson, Los

Angeles, California, for defendant-appellee Shell Oil Company; Robert G. Crow, Boornazian, Jensen & Garthe, Oakland, California, for defendant-appellee AMVAC Chemical

Corporation; Frederick L. McKnight, Jones Day, Los Angeles, California, for defendants-appellees Dole Food Company,

et al. 

OPINION

MCNAMEE, District Judge: 

Akebo Abagninin and others who live and work in the

Ivory Coast (“Abagninin”)1 appeal the district court’s dismissal with prejudice of their claims against manufacturers,

distributors, and users of the pesticide DBCP for genocide and

crimes against humanity under the Alien Tort Statute

(“ATS”), 28 U.S.C. § 1350.2 Abagninin alleges that DBCP

1Plaintiffs-Appellants are collectively referred to as “Abagninin.” The

parties against whom he proceeds are collectively referred to as

“AMVAC” unless context otherwise requires. 

2On the same day, Abagninin filed seven actions against the same parties in state court seeking relief under state law for negligence, breach of

warranty, and various other product liability theories. 

13526 ABAGNININ v. AMVAC CHEMICAL CORP.
caused male sterility and low sperm counts, which AMVAC

knew. The district court granted with prejudice AMVAC’s

motion for judgment on the pleadings as to the genocide claim

for failure to allege that AMVAC acted with specific intent.

Abagninin’s claim for crimes against humanity was subsequently dismissed for failure to allege that AMVAC’s conduct

occurred within the context of a State or organizational policy. We affirm.

I. FACTS AND PROCEEDINGS BELOW

Abagninin is a West African foreign national who has

resided and worked on banana and pineapple plantations in

the Ivory Coast villages of Kakoukro and Ono. AMVAC is a

private business entity that designed, manufactured, or

required the use of the agricultural pesticide 1,2 Dibromo-3-

Chloropropane (“DBCP”). Abagninin alleges that DBCP

exposure caused male sterility and abnormally low sperm

counts, and resulted in the prevention of births. 

Abagninin alleges that AMVAC knew of DBCP’s toxicity

as early as the 1950s, and that by the fall of 1977 the use of

DBCP was suspended in the United States. Abagninin further

alleges that despite knowing the negative health effects of

DBCP, AMVAC continued manufacturing, selling, and using

DBCP on the Ivory Coast plantations. Dole Food Company,

Inc., through its subsidiary Standard Fruit Company, allegedly

entered into partnership agreements with an Ivory Coast governmental entity known as “Société d’Etat pour le Développement de la Production des Fruitières et Légumes” (“Sodefel”).

Sodefel allegedly owned and operated the fruit plantations.

Under the alleged partnership agreements, Dole Food would

purchase all fruit produced by the plantations, and Sodefel

would grow the fruit according to Dole Food’s specifications.

These specifications allegedly included the use of DBCP produced by Dow Chemical Company, Shell Oil Company, or

AMVAC Chemical Corporation. 

ABAGNININ v. AMVAC CHEMICAL CORP. 13527
Abagninin contends that the partnership agreements and

resulting use of DBCP caused sterility and low sperm counts

in plantation workers, as a result of which they cannot procreate. Abagninin further contends that such conduct supports

claims under the ATS for genocide and crimes against

humanity because the conduct was undertaken with knowledge of DBCP’s effects and pursuant to a State or organizational policy. The original complaint alleged genocide, crimes

against humanity, racial discrimination, and unlawful distribution of pesticides in violation of the laws of nations. Dow

Chemical moved for judgment on the pleadings under Rule

12(c), and AMVAC joined this motion. 

On March 23, 2007, the district court dismissed with prejudice Abagninin’s claims for genocide and unlawful distribution of pesticides. The district court found that Abagninin

failed to allege a violation of applicable norms of international law regarding genocide and unlawful distribution of

pesticides. Specifically, the district court held that genocide

requires specific intent to destroy a particular group of victims, and that Abagninin only alleged that AMVAC acted

with knowledge of the consequences of DBCP. In so holding,

the district court rejected Abagninin’s argument that the

Rome Statute of the International Criminal Court (“Rome

Statute”) lowered the intent requirement for genocide to

include knowledge.3 The district court also dismissed the

remaining claims, including the claim predicated on crimes

against humanity. The district court held that these claims

required an element of State action, and granted leave to

amend to include allegations of State action. 

Abagninin filed the First Amended Complaint (“FAC”) on

April 6, 2007, alleging claims under the ATS for crimes

against humanity and racial discrimination. Dow Chemical

filed a motion to dismiss under Rule 12(b)(6) which AMVAC

3Abagninin appeals the decision as to the genocide claim; dismissal of

the claim for unlawful distribution of pesticides is not before us. 

13528 ABAGNININ v. AMVAC CHEMICAL CORP.
joined. The district court found that the FAC failed to sufficiently allege a State or organizational policy regarding sterilization. Supplemental briefing was requested as to whether

dismissal should be with prejudice or without prejudice, and

whether to allow discovery regarding the State action requirement. The district court also indicated that defendants not yet

served or appearing would be treated no differently than

AMVAC as to lack of State action. All counsel present,

including Abagninin’s counsel, waived notice as to the dismissal of non-served defendants. 

The district court then held a hearing as to the nature of dismissal and proffered discovery. Abagninin’s proffered discovery would only reveal whether or not the Ivory Coast

government was aware of the use and consequences of DBCP.

The district court determined that such information, indicating

knowledge by the Ivory Coast, would not constitute State

action. The district court therefore dismissed the remaining

claims with prejudice, finding that Abagninin’s proffered discovery would not establish conduct within the definition of

State action. Abagninin timely appealed. 

II. STANDARD OF REVIEW

A dismissal for failure to state a claim is reviewed de novo.

Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (Rule

12(b)(6)); Dunlap v. Credit Protection Ass’n, L.P., 419 F.3d

1011, 1012 n.1 (9th Cir. 2005) (Rule 12(c)). All factual allegations in the complaint are accepted as true, and the pleadings construed in the light most favorable to the nonmoving

party. Knievel, 393 F.3d at 1072. Denial of leave to amend is

reviewed for abuse of discretion. Allen v. City of Beverly

Hills, 911 F.2d 367, 373 (9th Cir. 1990). The district court’s

decision will not be disturbed absent a definite and firm conviction that it committed a clear error of judgment. Id.

III. DISCUSSION

The ATS allows aliens to bring tort claims for violations of

the law of nations or treaties of the United States. We will

ABAGNININ v. AMVAC CHEMICAL CORP. 13529
first discuss the scope of the ATS before addressing the dismissal of Abagninin’s claims for genocide and crimes against

humanity. 

The ATS reads in its entirety: “The district courts shall

have original jurisdiction of any civil action by an alien for a

tort only, committed in violation of the law of nations or a

treaty of the United States.” 28 U.S.C. § 1350. A “treaty of

the United States” is a formal agreement between the United

States and one or more other sovereigns, entered into by the

President and approved by two-thirds of the Senate. U.S.

Const. art. II, § 2, cl. 2; Vietnam Ass’n for Victims of Agent

Orange v. Dow Chem. Co., 517 F.3d 104, 118 (2d Cir. 2008)

(noting 1925 Geneva Protocol did not constitute “a treaty of

the United States” under the ATS until ratified). 

[1] The Supreme Court recently considered the ATS in

Sosa v. Alvarez-Machain, and made clear that any claim

based on the law of nations must “rest on a norm of international character accepted by the civilized world and defined

with a specificity comparable to the features of the 18thcentury paradigms” of piracy, infringement on the rights of

ambassadors, and violation of safe conducts. 542 U.S. 692,

725, 732 (2004).4 Although jurisdiction under the ATS is not

limited solely to these paradigms, it is “subject to vigilant

doorkeeping,” id. at 729, as courts have “no congressional

mandate to seek out and define new and debatable violations

of the law of nations.” Id. at 728. Sosa also instructs that “the

determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must)

involve an element of judgment about the practical conse4This limitation on judicial recognition of private claims under federal

common law for violations of an international law norm is consistent with

our previous reasoning that “[a]ctionable violations of international law

must be of a norm that is specific, universal, and obligatory.” Sosa, 542

U.S. at 732 (citing and quoting In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)). 

13530 ABAGNININ v. AMVAC CHEMICAL CORP.
quences of making that cause available to litigants in the federal courts.” Id. at 733. 

With these definitions and principles in mind, we turn to

the genocide and crimes against humanity claims dismissed

by the district court. As discussed below, Abagninin’s allegations fail to state a claim for either cause of action under prevailing norms of international law. We are not empowered, as

Abagninin would urge, to extend and redefine these norms. 

A. Genocide 

[2] The common law distinguished between crimes requiring “general intent” and those requiring “specific intent.”

United States v. Bailey, 444 U.S. 394, 403 (1980). The district

court dismissed the genocide claim because Abagninin failed

to allege that AMVAC acted with specific intent, and denied

leave to amend because the defect could not be cured. Relying

on the Rome Statute, Abagninin contends that the original

complaint sufficiently alleged genocidal intent—knowledge—

defined as awareness that a consequence will occur in the

ordinary course of events. However, the knowledge intent

standard is not part of a treaty of the United States or part of

the law of nations. No treaty of the United States, no controlling act of the President or Congress, and no judicial decision

indicates that genocide is a knowledge-based norm. Nor is

there a sufficient consensus that it is a violation of international law to be aware that genocide will occur in the ordinary

course of events. We therefore affirm. 

1. Treaty of the United States 

[3] A treaty not ratified by the United States at the time of

the alleged events cannot form a basis for an ATS claim. Vietnam Ass’n, 517 F.3d at 118; Flores v. S. Peru Copper Corp.,

414 F.3d 233, 256 (2d Cir. 2003) (“A state only becomes

bound by—that is, becomes a party to—a treaty when it ratifies the treaty.” (citing Haver v. Yaker, 76 U.S. (9 Wall.) 32,

ABAGNININ v. AMVAC CHEMICAL CORP. 13531
35 (1869)); cf. Hawkins v. Comparet-Cassani, 33 F. Supp. 2d

1244, 1257 (C.D. Cal. 1999) (noting that treaty to which the

United States is a signatory, but has not yet ratified, is not

binding on the United States), rev’d in part on other grounds

by 251 F.3d 1230 (9th Cir. 2001). It is undisputed that the

United States has neither signed nor ratified the Rome Statute.

Int’l Criminal Court, Assembly of States Parties, The States

Parties to the Rome Statute, available at http://www.icccpi.int/asp/statesparties.html (last visited Aug. 11, 2008); see

also Letter from John R. Bolton, U.S. Under Secretary of

State for Arms Control and International Security, to Kofi

Annan, U.N. Secretary General (May 6, 2002), available at

http://www.state.gov/r/pa/prs/ps/2002/9968.htm (stating that

the United States does not intend to become a party to the

Rome Statute). Despite the lack of formal constitutional ratification, Abagninin contends that the Rome Statute is nonetheless “self-executing.” This contention is without merit. See

Medellin v. Texas, ___ U.S. ___, 128 S. Ct. 1346, 1356 n.2

(2008) (“What we mean by ‘self-executing’ is that the treaty

has automatic domestic effect as federal law upon ratification”) (emphasis added). In order to state a claim based on the

ATS, Abagninin must therefore demonstrate that the law of

nations includes the Rome Statute’s intent standard. 28 U.S.C.

§ 1350. 

2. Law of Nations 

[4] The law of nations is synonymous with “customary

international law,” Flores, 414 F.3d at 237 n.2, 247, and violations of international law must contravene a norm that is

specific, universal, and obligatory. Sosa, 542 U.S. at 732.

Abagninin confuses the issue by asserting a broader

proposition—that the fact that 139 countries signed, and 105

countries ratified, the Rome Statute demonstrates that its standards reflect a universal obligatory norm. The issue here,

however, is narrower: whether the Rome Statute’s definition

reflects the kind of definiteness and acceptance among civi13532 ABAGNININ v. AMVAC CHEMICAL CORP.
lized nations that existed for Sosa’s historical paradigms. The

district court correctly held that it does not. 

[5] The Convention on the Prevention and Punishment of

the Crime of Genocide (“Genocide Convention”) defines

genocide as a specific intent crime. The Convention on the

Prevention and Punishment of the Crime of Genocide art. 2,

Dec. 9, 1948, 78 U.N.T.S. 277 (“In the present Convention,

genocide means any of the following acts committed with

intent to destroy, in whole or in part, a national, ethnical,

racial or religious group, as such.”). As recently as 2004, the

Genocide Convention was recognized as the main source of

customary international law regarding genocide. Prosecutor v.

Brdanin, Case No. IT-99-36-T, Judgment, ¶ 680 (Sept. 1,

2004). 

[6] Decisions from international tribunals also reflect the

specific intent requirement for genocide. The International

Criminal Tribunal for Rwanda’s (“ICTR”) definition of genocide was taken verbatim from the Genocide Convention.

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶

494 (Sept. 2, 1998). Thus the ICTR defined genocide as a

crime of specific intent. Id. at ¶ 498 (“[T]he [specific] intent

in the crime of genocide lies in ‘the intent to destroy, in whole

or in part, a national, ethnical, racial, or religious group, as

such.’ ”). The International Criminal Tribunal for Yugoslavia

(“ICTY”) also adopted the element of specific intent for the

crime of genocide. E.g., Prosecutor v. Krstic, Case No. IT-98-

33-A, Judgment, ¶ 37 (Apr. 19, 2004) (“These requirements

—the demanding proof of specific intent and the showing that

the group was targeted for destruction in its entirety or in substantial part—guard against a danger that convictions for this

crime will be imposed lightly.”); Prosecutor v. Brdanin, Case

No. IT-99-36-T, Judgment, ¶ 695 (Sept. 1, 2004) (“It is this

specific intent that characterises the crime of genocide.”). No

decision from either tribunal supports Abagninin’s contention

that genocide requires mere knowledge, or general intent. 

ABAGNININ v. AMVAC CHEMICAL CORP. 13533
[7] Abagninin asserts that his position is supported by the

Zyklon B cases, Trial of Bruno Tesch and Two Others, 1 Tr.

War Crim. 93 (1947). Defendants in the Zyklon B cases were

accused of being accessories before the fact to war crimes

committed mainly at Auschwitz. Id. at 103. The prosecution

was based on Article 46 of the Hague Convention of 1907,

concerning the Laws and Customs of War on Land. Id. The

defendants were charged with supplying poison gas “used for

the extermination of allied nationals interned in concentration

camps well knowing that the said gas was to be so used.” Id.

at 93. Abagninin’s reliance on these cases is misplaced, however, for the defendants there were prosecuted for war crimes

that were not specific intent offenses. 

[8] Domestic materials similarly reject a definition of genocide based on mere knowledge. The federal Genocide Convention Implementation Act of 1987 (“Implementation Act”)

largely adopted the Genocide Convention language, and

explicitly defined genocide as requiring “the specific intent to

destroy, in whole or in substantial part, a national, ethnic,

racial or religious group as such.” 18 U.S.C. § 1091(a). This

language follows the wording of the “specific intent understanding” that the Senate included in the resolution of ratification to the Genocide Convention in order to distinguish

between acts committed with the purpose of destroying a

group and all other acts. S. Rep. No. 100-133, at 8 (1988), as

reprinted in 1988 U.S.C.C.A.N. 4156, 4161-62. Standing

alone, this understanding would raise concerns regarding

Abagninin’s proposed intent standard, as “it is highly unlikely

that a purported principle of customary international law in

direct conflict with the recognized practices and customs of

the United States . . . could be deemed to qualify as a bona

fide customary international law principle.” United States v.

Yousef, 327 F.3d 56, 92 n.25 (2d Cir. 2003). However, the

Implementation Act is in line with, rather than opposed to, the

recognized principle of international law that requires specific

intent for the crime of genocide. 18 U.S.C. § 1901(a). 

13534 ABAGNININ v. AMVAC CHEMICAL CORP.
[9] The Second Circuit has recognized that dismissal of a

genocide claim is appropriate when the complaint fails to

allege facts sufficient to show specific intent. In re Agent

Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 115

(E.D.N.Y. 2005), aff’d, 517 F.3d 104 (2d Cir. 2008). In Agent

Orange, Vietnamese nationals brought genocide claims for

harms allegedly resulting from the United States’ use of

Agent Orange and other herbicides during the Vietnam War.

373 F. Supp. 2d at 15. The court dismissed the genocide

claims, finding that the herbicides were not used “with the

specific intent to destroy any group.” Id. at 115. Therefore the

use of herbicides “did not constitute genocide as defined by

either the [Implementation Act] or the Genocide Convention,

particularly with the United States’ understanding regarding

specific intent.” Abagninin’s attempts to distinguish Agent

Orange because the harmful effects of those chemicals were

not known at the time assume, but incorrectly, that knowledge

is the standard for intent. The key similarity between this case

and Agent Orange is Abagninin’s failure to allege that

AMVAC intended to harm him through the use of chemicals.

[10] Abagninin’s original complaint failed to state an ATS

claim for genocide because it failed to allege facts showing

violation of a universally-acknowledged norm. Abagninin

argues that intent can be inferred from what he has alleged

even if measured against a norm requiring specific intent. For

example, he points out, his original complaint avers that a

Shell employee who led that company’s research on DBCP

stated with respect to plantation workers: “From what I hear,

they could use a little birth control down there.” However, no

facts are set forth that this statement, assuming it was made

as alleged, referred to the Ivory Coast or that it reflected the

views of (or could be attributed to) Shell or other manufacturers. Abagninin also submits that his First Amended Complaint

alleges that AMVAC acted with intent to prevent births and

to destroy villages and their people, but these allegations do

not pertain to the genocide claim, which was previously dismissed with prejudice. Regardless, the allegations are concluABAGNININ v. AMVAC CHEMICAL CORP. 13535
sory, and thus would be insufficient to overcome a motion to

dismiss in any event. See Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001). In sum, being unsupported

by factual averments that show anything other than knowledge of a consequence, these allegations fail to make out a

claim. 

The Rome Statute is not a treaty of the United States, and

customary international law defines genocide as requiring

specific intent. Furthermore, the United States’ government

has clearly expressed its understanding regarding specific

intent, and we have “no congressional mandate to seek out

and define new and debatable violations of the law of

nations.” Sosa, 542 U.S. at 728. Abagninin presents no argument regarding dismissal without leave to amend, and the district court did not abuse its discretion in ordering such

dismissal. We therefore affirm the decision of the district

court. 

B. Crimes Against Humanity

Abagninin also appeals the dismissal of the ATS claim for

crimes against humanity. As AMVAC does not dispute the

point, we will assume, without deciding, that the norm for

crimes against humanity is specific, obligatory, and universal.

We also assume, because the parties do, that the Rome Statute

accurately states the elements of a crime against humanity:

commission of any of the enumerated acts when committed as

part of a widespread or systematic attack directed against any

civilian population, with knowledge of the attack.5 Rome Statute art. 7.1. An “attack directed against any civilian population” is a course of conduct “pursuant to or in furtherance of

a State or organizational policy to commit such attack.” Id.

5The enumerated acts include inter alia, murder, extermination,

enslavement, enforced sterilization, and other “inhumane acts of a similar

character intentionally causing great suffering, or serious injury to body or

to mental or physical health.” Rome Statute art. 7.1(a)-(k). 

13536 ABAGNININ v. AMVAC CHEMICAL CORP.
art. 7.2(a). Abagninin contends that AMVAC is a business

organization, and therefore used DBCP pursuant to an “organizational policy.” The district court properly concluded that

Abagninin failed to allege facts sufficient to constitute State

or organization action as required for crimes against humanity. 

1. Organizational policy of AMVAC

[11] The traditional conception regarding crimes against

humanity was that a policy must be present and must be that

of a State, as was the case in Nazi Germany. Prosecutor v.

Tadic, IT-94-1-T, Judgment, ¶ 654 (May 7, 1997). This conception was expanded to include non-State entities which,

although not a part of the legitimate government, have de

facto control over a defined territory. Id. The weakening of

the “State action” requirement occurred because unofficial

militias loosely affiliated with the State and unaffiliated civilians perpetrated the crimes in Bosnia and Rwanda, respectively. David Luban, A Theory of Crimes Against Humanity,

29 Yale J. Int’l L. 85, 95-97 (2004). A common thread

throughout these developments is that crimes against humanity are crimes committed through political organization. Id. at

97. 

[12] De facto control thus requires control similar to that of

a State or government, such as erecting checkpoints on main

roads, increasing examples of command and control, developing civilian structures, and holding a substantial percentage of

territory. Prosecutor v. Limaj, IT-03-66-T, Judgment, ¶¶ 213-

14 (Nov. 30, 2005). Decisions from the International Criminal

Tribunal for Rwanda require that actions by a non-State organization be “instigated or directed by a Government or by any

organisation or group,” as a way to exclude “the situation in

which an individual commits an inhumane act . . . in the

absence of any encouragement or direction from either a Government or a group or an organisation.” E.g., Prosecutor v.

ABAGNININ v. AMVAC CHEMICAL CORP. 13537
Kayishema & Ruzindana, ICTR-95-1-T, Judgment, ¶¶ 124-26

(May 21, 1999). 

[13] The district court correctly concluded that AMVAC is

not a State or State-like organization for purposes of international law and crimes against humanity. Abagninin does not

argue that he sufficiently alleges de facto control by AMVAC

over the territory. Rather, Abagninin argues that because the

State action requirement has been relaxed to include non-State

organizations, and AMVAC is a business organization (corporation), AMVAC’s acts satisfy the State or organization

requirement. This reasoning, however, is not supported in

customary international law. The modification of the State

action requirement, precipitated by the involvement of nonState militias and criminal syndicates, does not justify eliminating the requirement altogether. 

2. State action by Sodefel

[14] Abagninin next contends that the FAC alleged “affirmative action by the government of the Ivory Coast.” Just as

Abagninin contends that any “organization” is sufficient for

crimes against humanity, he contends that any involvement by

the State meets the “State action” requirement. However, allegations of “affirmative action by the government of the Ivory

Coast” fail to state a claim for crimes against humanity

because Abagninin does not allege that the use of DBCP was

part of a plan or policy to commit one of the enumerated acts,

i.e. to sterilize the plantation workers. Cf. Rome Statute art.

7.1. Merely purchasing and providing DBCP for use on the

plantations does not suffice, and the district court correctly

found that the facts as alleged do not support Abagninin’s

conclusory statement that the use of DBCP was carried out

pursuant to a State or organizational policy. Lee v. City of Los

Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (“Conclusory allegations of law, however, are insufficient to defeat a motion to

dismiss [for failure to state a claim].”).

13538 ABAGNININ v. AMVAC CHEMICAL CORP.
3. Denial of leave to amend

[15] With respect to the crimes against humanity claim, the

district court did not err in denying leave to amend the FAC.

Denial of leave to amend is reviewed for abuse of discretion.

Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.

1990). Leave to amend may be denied if a court determines

that “allegation of other facts consistent with the challenged

pleading could not possibly cure the deficiency.” Schreiber

Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401

(9th Cir. 1986). Leave to amend may also be denied for

repeated failure to cure deficiencies by previous amendment.

Foman v. Davis, 371 U.S. 178, 182 (1962); Allen, 911 F.2d

at 373. 

[16] The district court first dismissed the crimes against

humanity claim under Rule 12(c) and granted leave to amend

to include allegations of State action. After reaching a tentative ruling granting the motion to dismiss, the district court

permitted supplemental briefing as to whether dismissal

should be with prejudice, or without prejudice and allow limited discovery regarding the state action requirement. After

reviewing Abagninin’s proffered discovery, the district court

found that the proffered discovery would not establish conduct within the definition of State action. The district court

did not abuse its discretion, as allegations of other facts consistent with the challenged pleading could not cure the State

action defect, and the previous amendment failed to cure this

deficiency.

C. Dismissal of Non-Appearing Defendants 

Abagninin’s final contention on appeal is that the district

court erred in dismissing the case as to all defendants, including those that had not appeared in the case and challenged the

pleadings. Abagninin contends that this was in error because

the court did not give notice of its intention to dismiss and did

not permit Abagninin an opportunity to respond in opposition

ABAGNININ v. AMVAC CHEMICAL CORP. 13539
thereto. See Lee v. City of Los Angeles, 250 F.3d 668, 683 n.7

(9th Cir. 2001). This conclusion is not supported by the law

or the facts in this case.

[17] As a legal matter, we have upheld dismissal with prejudice in favor of a party which had not appeared, on the basis

of facts presented by other defendants which had appeared.

Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44

F.3d 800, 802 (9th Cir. 1995); Silverton v. Dep’t of Treasury,

644 F.2d 1341, 1345 (9th Cir. 1981) (“A [d]istrict [c]ourt may

properly on its own motion dismiss an action as to defendants

who have not moved to dismiss where such defendants are in

a position similar to that of moving defendants.”). The nonserved defendants in this case are in a position similar to

AMVAC in that all are private actors for which Abagninin

cannot allege specific intent required for genocide or State

action or de facto control required for crimes against humanity. 

[18] As a factual matter, Abagninin waived notice as to dismissal of the remaining defendants, and was provided an

opportunity to be heard as to dismissal of the non-appearing

defendants. At the May 21, 2007 hearing, the district court

stated “I presume the plaintiffs’ case vis-à-vis Shell will not

be any different than with the other defendants so that if I dismiss out the claim based on lack of state action that would

apply to Shell as well. . . . In other words, Shell, to my mind,

is not going to be any different it would seem to be on a theoretical basis than Dow or Dole.” The court concluded that it

would “leave that . . . hanging in the air. Notice is waived on

this?” Abagninin’s counsel responded “[y]es, Your Honor.”

The district court then permitted supplemental briefing and

argument as to whether dismissal should be with or without

prejudice. After considering the supplemental information, the

court determined that the discovery proffered by Abagninin

would not lead to information which could amend the complaint to satisfy the State action requirement, and dismissed

with prejudice. 

13540 ABAGNININ v. AMVAC CHEMICAL CORP.
[19] The district court did not abuse its discretion in dismissing the remaining defendants. Abagninin waived notice,

and was presented an opportunity to respond in opposition.

The district court reasonably concluded that further amendment would be futile and that the remaining defendants were

in a position similar to that of AMVAC.

CONCLUSION 

In light of the foregoing, the decision of the district court

is affirmed in all respects. 

AFFIRMED. 

ABAGNININ v. AMVAC CHEMICAL CORP. 13541