FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMAS MAYNAS CARIJANO; ROXANA 

GARCIA DAHUA, a minor, by her

guardian Rosario Dahua Hualinga;

ROSARIO DAHUA HUALINGA,

personally and on behalf of her

minor child Roxana Garcia Dahua;

NILDA GARCIA SANDI, a minor, by

her guardian Rosalbina Hualinga

Sandi; ROSALBINA HUALINGA SANDI,

personally and on behalf of her

minor child Nilda Garcia Sandi;

ELENA MAYNAS MOZAMBITE, a

minor, by her guardian Gerardo

Maynas Hualinga; GERARDO No. 08-56187

MAYNAS HUALINGA, personally and

D.C. No. on behalf of his minor child Elena 

Maynas Mozambite; A 2:07-cv-05068-PSG- LAN

CARIAJANO SANDI, a minor, by his PJW

guardian Pedro Sandi; PEDRO

SANDI WASHINGTON, personally and

on behalf of his minor child Alan

Cariajano Sandi; ELISA HUALINGA

MAYNAS, a minor, by her

guardians Daniel Hualinga Sandi

and Andrea Maynas Cariajano;

DANIEL HUALINGA SANDI,

personally and on behalf of his

minor child Elisa Hualinga

Maynas; ANDREA MAYNAS

CARIAJANO, personally and on

behalf of her minor child Elisa 

19449
Hualinga Maynas; CERILO 

HUALINGA HUALINGA, a minor, by

his guardians Roman Hualinga

Sandi and Rosa Hualinga; ROMAN

HUALINGA SANDI, personally and

on behalf of his minor child Cerilo

Hualinga Hualinga; ROSA

HUALINGA, personally and on

behalf of her minor child Cerilo

Hualinga Hualinga; RODOLFO

MAYNAS SUAREZ, a minor, by his

guardians Horacio Maynas

Cariajano and Delmencia Suarez

Diaz; HORACIO MAYNAS CARIAJANO,

personally and on behalf of his

minor child Rodolfo Maynas

Suarez; DELMENCIA SUAREZ DIAZ, 

personally and on behalf of her

minor child Rodolfo Maynas

Suarez; KATIA HUALINGA SALAS, a

minor, by her guardians Alejandro

Hualinga Chuje and Linda Salas

Pisongo; ALEJANDRO HUALINGA

CHUJE, personally and on behalf of

his minor child Katia Hualinga

Salas; LINDA SALAS PISONGO,

personally and on behalf of her

minor child Katia Hualinga Salas;

FRANCISCO PANAIGO PAIMA, a

minor, by his guardians Milton

Panaigo Diaz and Anita Paima

Cariajano; MILTON PANAIGO DIAZ,

personally and on behalf of his 

19450 CARIJANO v. OCCIDENTAL PETROLEUM
minor child Francisco Panaigo 

Paima; ANITA PAIMA CARIAJANO,

personally and on behalf of her

minor child Francisco Paniago

Paima; ADOLFINA GARCIA SANDI,

personally and on behalf of her

deceased minor child Olivio Salas

Garcia; AMAZON WATCH, INC., a

Montana corporation, 

Plaintiffs-Appellants,

v.

OCCIDENTAL PETROLEUM

CORPORATION, a Delaware

Corporation; OCCIDENTAL PERUANA,

INC., a California Corporation,

Defendants-Appellees. 

CARIJANO v. OCCIDENTAL PETROLEUM 19451
TOMAS MAYNAS CARIJANO; ROXANA 

GARCIA DAHUA, a minor, by her

guardian Rosario Dahua Hualinga;

ROSARIO DAHUA HUALINGA,

personally and on behalf of her

minor child Roxana Garcia Dahua;

NILDA GARCIA SANDI, a minor, by

her guardian Rosalbina Hualinga

Sandi; ROSALBINA HUALINGA SANDI,

personally and on behalf of her

minor child Nilda Garcia Sandi;

ELENA MAYNAS MOZAMBITE, a

minor, by her guardian Gerardo

Maynas Hualinga; G No. 08-56270 ERARDO

MAYNAS HUALINGA, personally and D.C. No.

on behalf of his minor child Elena  2:07-cv-05068-PSGMaynas Mozambite; ALAN PJW

CARIAJANO SANDI, a minor, by his OPINION

guardian Pedro Sandi; PEDRO

SANDI WASHINGTON, personally and

on behalf of his minor child Alan

Cariajano Sandi; ELISA HUALINGA

MAYNAS, a minor, by her

guardians Daniel Hualinga Sandi

and Andrea Maynas Cariajano;

DANIEL HUALINGA SANDI,

personally and on behalf of his

minor child Elisa Hualinga

Maynas; ANDREA MAYNAS

CARIAJANO, personally and on

behalf of her minor child Elisa 

19452 CARIJANO v. OCCIDENTAL PETROLEUM
Hualinga Maynas; CERILO 

HUALINGA HUALINGA, a minor, by

his guardians Roman Hualinga

Sandi and Rosa Hualinga; ROMAN

HUALINGA SANDI, personally and

on behalf of his minor child Cerilo

Hualinga Hualinga; ROSA

HUALINGA, personally and on

behalf of her minor child Cerilo

Hualinga Hualinga; RODOLFO

MAYNAS SUAREZ, a minor, by his

guardians Horacio Maynas

Cariajano and Delmencia Suarez

Diaz; HORACIO MAYNAS CARIAJANO,

personally and on behalf of his

minor child Rodolfo Maynas

Suarez; DELMENCIA SUAREZ DIAZ, 

personally and on behalf of her

minor child Rodolfo Maynas

Suarez; KATIA HUALINGA SALAS, a

minor, by her guardians Alejandro

Hualinga Chuje and Linda Salas

Pisongo; ALEJANDRO HUALINGA

CHUJE, personally and on behalf of

his minor child Katia Hualinga

Salas; LINDA SALAS PISONGO,

personally and on behalf of her

minor child Katia Hualinga Salas;

FRANCISCO PANAIGO PAIMA, a

minor, by his guardians Milton

Panaigo Diaz and Anita Paima

Cariajano; MILTON PANAIGO DIAZ,

personally and on behalf of his 

CARIJANO v. OCCIDENTAL PETROLEUM 19453
minor child Francisco Panaigo 

Paima; ANITA PAIMA CARIAJANO,

personally and on behalf of her

minor child Francisco Paniago

Paima; ADOLFINA GARCIA SANDI,

personally and on behalf of her

deceased minor child Olivio Salas

Garcia; AMAZON WATCH, INC., a

Montana corporation, 

Plaintiffs-Appellees,

v.

OCCIDENTAL PETROLEUM

CORPORATION, a Delaware

Corporation; OCCIDENTAL PERUANA,

INC., a California Corporation,

Defendants-Appellants. 

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted

March 3, 2010—Pasadena, California

Filed December 6, 2010

Before: Mary M. Schroeder, Pamela Ann Rymer, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Rymer

19454 CARIJANO v. OCCIDENTAL PETROLEUM
COUNSEL

Marco Simons (argued), Richard Herz, Earthrights International, Washington, D.C.; Paul Hoffman, Benjamin Schonbrun, Michael D. Seplow, Schonbrun Desimone Seplow

Harris & Hoffman LLP, Venice, California; Natalie L.

Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, California, for the plaintiffs-appellants.

Daniel P. Collins (argued), Manuel F. Cachán, Gabriel P. Sanchez, Munger, Tolles & Olson L.L.P., Los Angeles, California; Ernest J. Getto, Michael G. Romey, Kirk A. Wilkinson,

Latham & Watkins, L.L.P., Los Angeles, California, for the

defendants-appellees.

OPINION

WARDLAW, Circuit Judge:

These cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana

(“OxyPeru”), an indirect subsidiary of defendant Occidental

Petroleum Corporation (collectively “Occidental”), along the

Rio Corrientes in the northern region of Peru. Plaintiffs, 25

members of the Achuar indigenous group dependent for their

existence upon the rainforest lands and waterways along the

river, and Amazon Watch, a California corporation, sued

CARIJANO v. OCCIDENTAL PETROLEUM 19459
Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste.

Although Occidental’s headquarters is located in Los Angeles

County, Occidental removed the suit to federal district court

where it successfully moved for dismissal on the ground that

Peru is a more convenient forum. Plaintiffs timely appeal the

dismissal of their suit. Occidental cross-appeals from the district court’s determination that its Rule 12 motion to dismiss

Amazon Watch for lack of standing is moot. 

Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district

court gave insufficient weight to the strong presumption in

favor of a domestic plaintiff’s choice of forum, the district

court abused its discretion by dismissing the lawsuit without

imposing mitigating conditions for the dismissal.

I. FACTUAL AND PROCEDURAL BACKGROUND

We accept as true the facts alleged in the Achuar Plaintiffs’

and Amazon Watch’s (“Plaintiffs”) First Amended Complaint

(“FAC”). See Vivendi SA v. T-Mobile USA, Inc., 586 F.3d

689, 691 n.3 (9th Cir. 2009); Aguas Lenders Recovery Group

v. Suez, S.A., 585 F.3d 696, 697 (2d Cir. 2009) (accepting the

facts alleged in the complaint as true where the case was dismissed on forum non conveniens grounds without a factual

hearing). 

Occidental is among the largest oil and gas companies in

the United States. Its Peruvian operations began in the early

1970s with the development of a pair of lots near the Ecuadorean border known as “Block 1-AB.” Its subsidiary,

OxyPeru, built Block 1-AB into a thriving extraction, processing, and distribution site, providing 26 percent of Peru’s total

historical oil production from 1972 to 2000, at which point

Occidental sold its stake in Block 1-AB to the Argentine oil

company Pluspetrol. The Peruvian government granted Occidental its first concession in the region in 1971; oil was found

19460 CARIJANO v. OCCIDENTAL PETROLEUM
the next year. The company built dozens of wells, a 530-

kilometer network of pipelines, refineries, and separation batteries for processing crude oil, as well as roads, heliports and

camps to support the operation at Block 1-AB.

The Achuar are indigenous people who have long resided

along the rivers of the northern Peruvian rainforest. Block 1-

AB encompasses significant portions of the Corrientes and

Macusari rivers, home to several Achuar communities. The

inhabitants use the rivers and their tributaries for drinking,

fishing, and bathing. The region is remote, with access typically limited to small planes, helicopters, small boats, and

canoes.

The complaint alleges that, during its thirty years in the

Achuar territories, Occidental knowingly utilized out-of-date

methods for separating crude oil that contravened United

States and Peruvian law, resulting in the discharge of millions

of gallons of toxic oil byproducts into the area’s waterways.

Achuar children and adults came into frequent contact with

the contaminants by using polluted rivers and tributaries for

drinking, washing and fishing. Tests have shown potentially

dangerous levels of lead and cadmium in the blood of a significant number of affected individuals. Achuar Plaintiffs

have reported gastrointestinal problems, kidney trouble, skin

rashes, and aches and pains that they attribute to the pollution.

Plaintiffs further allege that the pollution led to decreasing

yields of edible fish, and that the animals hunted by the Achuar have been turning up dead or diseased after drinking river

water. The pollution has also allegedly harmed agricultural

productivity and land values. Plaintiffs contend that Occidental was aware of the dangers posed by the contamination but

failed to warn residents. 

The complaint also details the Block 1-AB-related activities of Amazon Watch, a nonprofit Montana corporation

headquartered in San Francisco, California, which began

CARIJANO v. OCCIDENTAL PETROLEUM 19461
working with the Achuar communities in 2001. Representatives of Amazon Watch traveled to the region several times in

the ensuing years and helped produce a documentary film

about the contamination. Amazon Watch officials also communicated with Occidental representatives in Los Angeles

throughout 2005 and 2006, both at public shareholder events

and in private meetings. Amazon Watch organized public

relations campaigns in both Peru and Los Angeles designed

to respond to statements by Occidental about its Peruvian

operations.

Several dozen Achuar adults and children filed a complaint

in Los Angeles County Superior Court against Occidental on

May 10, 2007. Plaintiffs assert claims for common law negligence, strict liability, battery, medical monitoring, wrongful

death, fraud and misrepresentation, public and private nuisance, trespass, and intentional infliction of emotional distress, as well as a violation of California’s Unfair Competition

Law. They seek damages, injunctive and declaratory relief,

restitution, and disgorgement of profits on behalf of the individual plaintiffs and two proposed classes. On August 3,

2007, Occidental removed the action to United States District

Court pursuant to 28 U.S.C. § 1332(d)(2). On September 10,

2007, the complaint was amended to name Amazon Watch as

a plaintiff. 

On April 15, 2008, the district court granted Occidental’s

motion to dismiss based on the doctrine of forum non conveniens. It did so without the benefit of oral argument, and

while simultaneously denying Plaintiffs the opportunity to

conduct limited discovery on the adequacy of Peru as an alternative forum, the current location of witnesses and evidence,

and limited depositions to ascertain information about Occidental’s Peruvian operations, which had ceased in 2000. In

denying Plaintiffs’ discovery request the district court concluded “it has enough information to sufficiently weigh the

parties’ interests and determine the adequacy of the foreign

19462 CARIJANO v. OCCIDENTAL PETROLEUM
forum . . . [h]aving reviewed Defendants’ forum non conveniens motion and all related documents and exhibits.”

Based on Occidental’s evidence, principally the Declaration of Doctor Felipe Osterling Parodi (“Dr. Osterling”), the

district court found that Peru is an adequate alternative forum

and that the public and private interest factors pointed toward

trial in Peru sufficiently to overcome the strong presumption

of a domestic plaintiff’s choice of forum. It dismissed the

case, concluding that Occidental’s motion to dismiss Amazon

Watch’s unfair competition claim was thereby rendered moot.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C.

§§ 1332(d)(2) & 1367. We have jurisdiction pursuant to 28

U.S.C. § 1291. We review the district court’s order dismissing

the lawsuit on the basis of forum non conveniens for an abuse

of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257

(1981). A district court abuses its discretion by identifying an

incorrect legal standard, or by applying the correct standard

illogically, implausibly, or in a manner without support in

inferences that may be drawn from facts in the record. United

States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en

banc). In the forum non conveniens context, a “district court

may abuse its discretion by relying on an erroneous view of

the law, by relying on a clearly erroneous assessment of the

evidence, or by striking an unreasonable balance of relevant

factors.” Ravelo Monegro v. Rosa, 211 F.3d 509, 511 (9th Cir.

2000). 

III. DISCUSSION

[1] “The principle of forum non conveniens is simply that

a court may resist imposition upon its jurisdiction even when

jurisdiction is authorized by the letter of a general venue statute.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947).

Historically, the doctrine’s purpose is to root out cases in

CARIJANO v. OCCIDENTAL PETROLEUM 19463
which the “open door” of broad jurisdiction and venue laws

“may admit those who seek not simply justice but perhaps

justice blended with some harassment,” and particularly cases

in which a plaintiff resorts “to a strategy of forcing the trial

at a most inconvenient place for an adversary.” Id.; see also

Piper, 454 U.S. at 249 n.15 (“[D]ismissal may be warranted

where a plaintiff chooses a particular forum, not because it is

convenient, but solely in order to harass the defendant or take

advantage of favorable law.”). The doctrine “is based on the

inherent power of the courts to decline jurisdiction in exceptional circumstances.” Paper Operations Consultants Int’l,

Ltd. v. S.S. Hong Kong Amber, 513 F.2d 667, 670 (9th Cir.

1975).

[2] The doctrine of forum non conveniens is a drastic exercise of the court’s “inherent power” because, unlike a mere

transfer of venue, it results in the dismissal of a plaintiff’s

case. The harshness of such a dismissal is especially pronounced where, as here, the district court declines to place

any conditions upon its dismissal. Therefore, we have treated

forum non conveniens as “an exceptional tool to be employed

sparingly,” and not a “doctrine that compels plaintiffs to

choose the optimal forum for their claim.” Dole Food Co. v.

Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (quoting Ravelo

Monegro, 211 F.3d at 514) (internal quotations omitted). The

mere fact that a case involves conduct or plaintiffs from overseas is not enough for dismissal. See Tuazon v. R.J. Reynolds

Tobacco Co., 433 F.3d 1163, 1181-82 (9th Cir. 2006) (“Juries

routinely address subjects that are totally foreign to them,

ranging from the foreign language of patent disputes to cases

involving foreign companies, foreign cultures and foreign languages.”)

[3] To prevail on a motion to dismiss based upon forum

non conveniens, a defendant bears the burden of demonstrating an adequate alternative forum, and that the balance of private and public interest factors favors dismissal. See Dole

Food Co., 303 F.3d at 1118. In determining whether the dis19464 CARIJANO v. OCCIDENTAL PETROLEUM
trict court abused its discretion in concluding that Occidental

satisfied its burden, we examine: (1) the adequacy of the alternate forum; (2) the private and public factors and the deference owed a plaintiff’s chosen forum; and (3) the district

court’s decision to dismiss Plaintiffs’ case without imposing

any conditions on the dismissal. 

A. Adequacy of the Forum

[4] The district court abused its discretion in finding that

under the unique circumstances of this case Peru provides an

adequate alternative forum for Plaintiffs to pursue their claims

against Occidental arising from business operations in Peru

that ended 7 years previously. An alternative forum is deemed

adequate if: (1) the defendant is amenable to process there;

and (2) the other jurisdiction offers a satisfactory remedy. See

Piper, 454 U.S. at 254 n.22; Leetsch v. Freedman, 260 F.3d

1100, 1103 (9th Cir. 2001) (“The foreign court’s jurisdiction

over the case and competency to decide the legal questions

involved will also be considered. We make the determination

of adequacy on a case by case basis, with the party moving

for dismissal bearing the burden of proof.”) (citation omitted).

1. Whether Occidental is Amenable to Process in Peru

[5] The district court abused its discretion by accepting at

face value Occidental’s “stipulation and consent to jurisdiction in Peru” without considering the glaring absence of a

waiver of the statute of limitations, which Occidental’s own

expert suggests may have run. Dismissal on the basis of forum

non conveniens is improper when a lawsuit would be timebarred in the alternative jurisdiction. Moreover, where there

is reason to believe that a defendant will seek immediate dismissal based on the foreign forum’s statute of limitations, dismissal should be conditioned on waiving any statute of

limitations defenses that would not be available in the domestic forum. See Chang v. Baxter Healthcare Corp., 599 F.3d

728, 736 (7th Cir. 2010) (“[I]f the plaintiff’s suit would be

CARIJANO v. OCCIDENTAL PETROLEUM 19465
time-barred in the alternative forum, his remedy there is inadequate . . . and in such a case dismissal on grounds of forum

non conveniens should be denied unless the defendant agrees

to waive the statute of limitations in that forum . . . .”); Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster

NV, 569 F.3d 189, 202 (4th Cir. 2009) (“[I]f the statute of limitations has expired in the alternative forum, the forum is not

available, and the motion to dismiss based on forum non conveniens would not be appropriate.”); Bank of Credit and Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273

F.3d 241, 246 (2d Cir. 2001) (“[A]n adequate forum does not

exist if a statute of limitations bars the bringing of the case in

that forum.”).1

[6] Occidental itself emphasizes that the Peruvian statute

of limitations is tolled pending this appeal, but coyly adds “to

the extent it had not already run.” This caveat, together with

Occidental’s failure to waive the Peruvian statute of limitations, suggests that when Plaintiffs do file in Peru, Occidental

intends to argue that the Peruvian statute ran before this lawsuit was filed in 2007. Dr. Osterling’s declaration notes that

the Peruvian statute of limitations begins to run “as of the day

on which the action could have been brought.” “The danger

that the statute of limitations might serve to bar an action is

one of the primary reasons for the limitation on the court’s

discretion with respect to the application of the doctrine of

forum non conveniens.” Paper Operations, 513 F.2d at 672-

73. Therefore the district court erred by determining that

1The district court could have cured this problem by imposing appropriate conditions. We have affirmed forum non conveniens dismissals that

addressed statute of limitations concerns by requiring waiver in the foreign

forum. See, e.g., Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583

F.3d 656, 664 (9th Cir. 2009) (finding no abuse of discretion where the

district court conditioned dismissal on the defendant’s agreement to accept

service “and waive any statute of limitations defenses”); Paper Operations, 513 F.2d at 673 (holding that the district court’s “conditional dismissal obviously resolves this problem”). 

19466 CARIJANO v. OCCIDENTAL PETROLEUM
Occidental was amenable to process in Peru based on its qualified stipulation.

2. Whether Peru Offers a Satisfactory Remedy

[7] The district court also abused its discretion in concluding on this record that Occidental met its burden of proving

that Peru could offer Plaintiffs a satisfactory remedy. A “dismissal on grounds of forum non conveniens may be granted

even though the law applicable in the alternative forum is less

favorable to the plaintiff’s chance of recovery,” but an alternate forum offering a “clearly unsatisfactory” remedy is inadequate. Piper, 454 U.S. at 250, 254 n.22; see also Lueck v.

Sundstrand Corp., 236 F.3d 1137, 1144 (9th Cir. 2001) (“The

effect of Piper Aircraft is that a foreign forum will be deemed

adequate unless it offers no practical remedy for the plaintiff’s

complained of wrong.”). The parties offered conflicting

expert affidavits that focused on two remedial issues: (a)

Peruvian law itself, both substantive and procedural; and (b)

special barriers confronting indigenous plaintiffs and general

corruption in the Peruvian judicial system. In assessing

whether Peru afforded Plaintiffs a satisfactory remedy, the

district court erroneously failed to weigh Plaintiffs’ expert testimony, which unequivocally asserts that Peru provides no

practical remedy at all for Plaintiffs.

a. Peruvian Law

[8] The district court failed to address critical issues raised

by the parties about the Peruvian legal system. Dr. Osterling’s

affidavit provides an in-depth exploration of Peruvian statutory law and civil procedure, and concludes that “Peruvian

law has analogies for all the substantive legal theories on

which the lawsuit filed in the Los Angeles jurisdiction is

based,” while also offering analogous remedies. In contrast,

Plaintiffs submitted expert declarations, including that of

Peruvian lawyer and professor Dante Apolín Meza, who cautioned that damages fulfill a purely compensatory — not

CARIJANO v. OCCIDENTAL PETROLEUM 19467
punitive — function in Peru, and that it may be difficult for

an “indeterminate group of persons (or class) such as the

‘Achuar communities’ ” to recover.

[9] The district court disregarded Plaintiffs’ expert and

credited Dr. Osterling’s account, quoting the conclusion that

“Peruvian substantive norms on civil liability allow a lawsuit

for damages to be processed on the facts set forth in the complaint.” However, the district court did not find — and it

appears it could not on this record — precisely what sort of

damages would be available. Given the questions raised by

Plaintiffs’ expert affidavits, there is no evidence that Plaintiffs

could be entitled to anything more than nominal damages,

which would mean that Peru would offer “no practical remedy for the plaintiff’s complained of wrong.” Lueck, 236 F.3d

at 1144.

[10] Moreover, the district court did not consider whether

Peruvian law provides any remedy at all for Amazon Watch’s

California Unfair Competition claim. See Piper, 454 U.S. at

254 n.22 (“[D]ismissal would not be appropriate where the

alternative forum does not permit litigation of the subject matter of the dispute.”). By failing to address these critical questions, fairly raised in the record, the district court relied on an

erroneous assessment of the evidence to determine that Peru

could offer Plaintiffs a satisfactory remedy.

b. Discrimination and Corruption

[11] While the district court did not err by weighing both

sides’ declarations and concluding that discrimination does

not make Peru an inadequate forum, it overlooked important

evidence related to corruption. Plaintiffs’ experts described

unique barriers confronting the Achuar Plaintiffs in Peru due

to their ethnicity, poverty, and isolation. Peruvian lawyer and

professor Wilfredo Ardito Vega characterized his nation’s

judiciary as “one of the governmental institutions that has not

only abstained from intervening in cases of discrimination,

19468 CARIJANO v. OCCIDENTAL PETROLEUM
but it has contributed to reinforcing discrimination.” He stated

that, beyond such intentional bias, impoverished and geographically isolated litigants such as the Achuar Plaintiffs are

frequently deterred from vindicating their rights in Peruvian

courts because of logistical barriers such as filing fees and

documentation requirements. The district court properly considered these arguments, but credited Dr. Osterling’s more

specific affidavit, which noted the availability of fee waivers

for the indigent, as well as outreach programs to indigenous

groups and legal doctrines that could address the barriers

posed by discrimination and documentation requirements. 

To demonstrate that a foreign nation is an inadequate forum

due to corruption, a party must make a “powerful showing”

that includes specific evidence. Tuazon, 433 F.3d at 1179

(noting that the court was aware of only two federal cases

holding alternative forums inadequate because of corruption).

Plaintiffs’ expert Dr. Ardito asserted that the Peruvian judiciary suffers from “institutionalized” corruption, including

widespread lobbying of judges, third party informal “intermediaries” between magistrates and parties, and the exchange of

improper favors and information. He added that the problem

is exacerbated by structural features of the judicial system,

such as the proliferation of provisional and substitute judges

who lack independence and are especially susceptible to

improper influences. All of Plaintiffs’ experts suggested that

these institutional flaws lead to tangible harm for litigants,

including inconsistent judgments and favoritism for powerful

interests, which could place isolated, indigenous plaintiffs at

a special disadvantage.

[12] The district court concluded that the evidence contained in Plaintiffs’ expert affidavits was too generalized and

anecdotal “to pass value judgments on the adequacy of Peru’s

judicial system.” While Plaintiffs’ evidence may fall short of

a specific and “powerful” showing of corruption, the most

concrete and alarming suggestions of judicial turmoil ironically come from Occidental’s own evidence. Dr. Osterling

CARIJANO v. OCCIDENTAL PETROLEUM 19469
acknowledged that “[c]orruption is present in all aspects of

government,” including the courts where “low salaries of

Judiciary personnel create a certain degree of tolerance for the

phenomenon of corruption.” He described admirable efforts

within the Peruvian government to eliminate such corruption

and bolster the integrity and professionalism of the country’s

courts. However, his account of the reform efforts paints a

picture of a judiciary undergoing a transition that is, at best,

volatile: he noted that the Peruvian Office of Judgeship Control, which investigates misconduct, requested the dismissal

of 126 judges in 2007, up from 94 in 2006. The Office’s

investigations resulted in the temporary suspension of 86

judges in 2007, up from 36 in 2006. The Office issued 1,263

disciplinary sanctions in 2007, and admonished 473 judges

and 443 court officers, while fining 84 judges and 67 court

officers. Meanwhile, in the same period the Office brought

1,505 disciplinary processes that ended in exonerations and

another 940 that were declared inadmissible.

The district court correctly noted that “one of the central

ends of the forum non conveniens doctrine is to avert ‘unnecessary indictments by our judges condemning the sufficiency

of the courts and legal methods of other nations.’ ” (quoting

Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine, 158 F. Supp. 2d 377, 385 (S.D.N.Y. 2001)).

We agree, and do not hold that Peru is categorically an inadequate forum, nor do we make any judgment about corruption

in its judicial system. However, under the unique circumstances of this case and on the specific evidence presented,

the district court erred by overlooking troubling evidence of

potential inadequacy proffered by Occidental, the proponent

of the forum non conveniens dismissal. 

B. Balance of Private and Public Interest Factors

[13] In weighing the relevant factors, the district court consistently understated Occidental’s heavy burden of showing

that the Los Angeles forum results in “oppressiveness and

19470 CARIJANO v. OCCIDENTAL PETROLEUM
vexation . . . out of all proportion” to the plaintiff’s convenience. Piper, 454 U.S. at 241 (quoting Koster v. Lumbermens

Mut. Cas. Co., 330 U.S. 518, 524 (1947)). It properly considered Amazon Watch’s status as a domestic plaintiff, but

improperly afforded only reduced deference to the group’s

choice of forum. “[T]here is ordinarily a strong presumption

in favor of the plaintiff’s choice of forum, which may be overcome only when the private and public interest factors clearly

point towards trial in the alternative forum.” Id. at 255. 

1. Deference to Plaintiff’s Chosen Forum

[14] When a domestic plaintiff initiates litigation in its

home forum, it is presumptively convenient. Id. at 255-56. A

foreign plaintiff’s choice is entitled to less deference, but “less

deference is not the same thing as no deference.” Ravelo

Monegro, 211 F.3d at 514. Here the district court acknowledged that Amazon Watch “is a California plaintiff” for the

purposes of its forum non conveniens analysis. Occidental

contends that the district court erred because it should have

dismissed Amazon Watch for lack of standing under both

Article III of the Constitution and the statute under which it

sued, California Business & Professions Code § 17200, the

Unfair Competition Law. However, the district court was not

required to decide the standing question before ruling on the

forum non conveniens motion. See Sinochem Int’l Co. v.

Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007). 

In Sinochem, the Supreme Court held that federal district

courts may decide forum non conveniens motions even though

jurisdictional issues remain unresolved. Id. at 425. Article III

standing is a species of subject matter jurisdiction. See Chandler v. State Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1122

(9th Cir. 2010) (“Because standing and ripeness pertain to

federal courts’ subject matter jurisdiction, they are properly

raised in a Rule 12(b)(1) motion to dismiss.”); Cetacean

Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (“A suit

brought by a plaintiff without Article III standing is not a

CARIJANO v. OCCIDENTAL PETROLEUM 19471
‘case or controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction over the suit.”). Unlike

this case, Sinochem involved a “textbook case for immediate

forum non conveniens dismissal,” in which a Malaysian shipping company sued a Chinese importer in the Eastern District

of Pennsylvania. Sinochem, 549 U.S. at 435. The only connection to the U.S. forum was tenuous: cargo involved in the

dispute underlying the case had been loaded at the Port of

Philadelphia. Id. at 426. The Sinochem Court therefore promoted judicial economy by allowing the district court to dismiss the case without first having to address complicated

jurisdictional issues. Id. at 425. However, the Supreme Court

did not limit its holding to cases where the district court opts

for dismissal. Rather it held that “a district court has discretion to respond at once to a defendant’s forum non conveniens

plea, and need not take up first any other threshold objection,”

including matters of personal or subject matter jurisdiction.

Id. at 425. The Court did not dictate how district courts must

respond to such pleas.

[15] Under Sinochem, then, the district court properly

ruled on the forum non conveniens motion based on the

assumption that Amazon Watch was a proper plaintiff, but

without conducting a full standing analysis. Resolving that

question would require consideration of both Article III and

statutory standing to sue under California’s Unfair Competition Law. Statutory standing is a merits question, not a jurisdictional matter like constitutional standing, which may be

considered for the first time on appeal. See Noel v. Hall, 568

F.3d 743, 748 (9th Cir. 2009). We therefore do not reach the

issue, and like the district court, we assume that Amazon

Watch has standing for the purposes of the forum non conveniens analysis only.2

2We therefore deny Plaintiffs’ petition to certify the statutory standing

question to the California Supreme Court. See Cal. R. Ct. 8.548(a)(1) (limiting certification from the United States Court of Appeals to questions

which “could determine the outcome of a matter pending in the requesting

court”); see also Couch v. Telescope, Inc., 611 F.3d 629, 634 (9th Cir.

2010) (“[W]e invoke the certification process only after careful consideration and do not do so lightly.”). 

19472 CARIJANO v. OCCIDENTAL PETROLEUM
Despite operating under that assumption, the district court

explained that because Amazon Watch was but one domestic

plaintiff alongside 25 foreign plaintiffs, it was entitled to

“only some deference.” The district court cited no legal

authority for the application of this vague intermediate standard of deference. Indeed, the district court’s application of

that standard is directly contrary to the Piper Court’s clear

instruction that when a domestic plaintiff chooses its home

forum, “it is reasonable to assume that this choice is convenient,” but a foreign plaintiff’s choice deserves “less deference.” Piper, 454 U.S. at 255-56. Piper does not in any way

stand for the proposition that when both domestic and foreign

plaintiffs are present, the strong presumption in favor of the

domestic plaintiff’s choice of forum is somehow lessened.

Moreover, the district court treated Amazon Watch as merely

one of 26 plaintiffs, failing to consider its status as an organizational plaintiff representing numerous individual members.

In Vivendi, the court afforded reduced deference to an

American co-plaintiff based on an express finding that the

plaintiff had engaged in forum shopping. See Vivendi, 586

F.3d at 694. Occidental makes a similar argument here, noting

that Amazon Watch was named as a plaintiff after the lawsuit

was removed to federal court, and suggesting that its presence

in the case reflects a “tactical effort” to defeat a forum non

conveniens dismissal.

A party’s intent in joining a lawsuit is relevant to the balancing of the forum non conveniens factors only to the extent

that it adds to an overall picture of an effort to take unfair

advantage of an inappropriate forum. See id. at 695. Vivendi

involved litigation between European companies that had no

significant connection to the United States. Id. at 694. Vivendi

admitted that it sued in the Western District of Washington

“because the United States offers ‘proper discovery’ and

favorable law.” Id. at 694-95. After defendant T-Mobile filed

a motion to dismiss on the basis of forum non conveniens,

Vivendi added an American co-plaintiff, Vivendi Holding,

CARIJANO v. OCCIDENTAL PETROLEUM 19473
which claimed an interest in the litigation as the holder of certain bonds. However, the plaintiffs conceded that Vivendi

Holding acquired the bonds after the forum non conveniens

motion was filed with the partial motivation of strengthening

its connection to the case. Id. at 694. Moreover, the bonds

were “related only incidentally” to the fraud allegations at the

heart of the litigation. Id. 

By contrast, Amazon Watch’s involvement in the subject

matter of this litigation began in 2001, six years before the

case was filed. The complaint includes factual allegations giving rise to claims based on events that took place in Los

Angeles involving Amazon Watch, Occidental and the Achuar plaintiffs. Any tactical motivation for Amazon Watch’s

presence in this case is outweighed by the organization’s

actual long-standing involvement in the subject matter of the

litigation and its assertion of actual injury resulting from

defendants’ alleged conduct. Moreover, Plaintiffs did not strategically choose a random or only tangentially relevant forum;

they chose Occidental’s home forum. And while the case concerns past operations and injury in Peru, the complaint

includes claims based on decisions made in and policies

emerging from Occidental’s corporate headquarters in Los

Angeles. 

Concerns about forum shopping, while appropriately considered in the forum non conveniens analysis, are muted in a

case such as this where Plaintiffs’ chosen forum is both the

defendant’s home jurisdiction, and a forum with a strong connection to the subject matter of the case. See Ravelo Monegro,

211 F.3d at 513-14 (distinguishing Piper, where dismissal

was granted, by noting that “plaintiffs’ chosen forum is more

than merely the American defendants’ home forum. It is also

a forum with a substantial relation to the action”); Norex

Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 155-56

(2d. Cir. 2005) (finding that “substantial deference” is appropriate when a plaintiff has sued a defendant in its home forum

to obtain jurisdiction over the defendant); Reid-Walen v. Han19474 CARIJANO v. OCCIDENTAL PETROLEUM
sen, 933 F.2d 1390, 1395 (8th Cir. 1991) (“In this unusual situation, where the forum resident seeks dismissal, this fact

should weigh strongly against dismissal.”).

[16] Amazon Watch, therefore, was entitled to a strong

presumption that its choice of forum was convenient. See

Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d

1446, 1449 (9th Cir. 1990) (“[W]hile a U.S. citizen has no

absolute right to sue in a U.S. court, great deference is due

plaintiffs because a showing of convenience by a party who

has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.”). The district court

abused its discretion by recognizing Amazon Watch as a

domestic plaintiff but then erroneously affording reduced deference to its chosen forum.

2. Private Interest Factors

[17] The factors relating to the private interests of the litigants include: “(1) the residence of the parties and the witnesses; (2) the forum’s convenience to the litigants; (3) access

to physical evidence and other sources of proof; (4) whether

unwilling witnesses can be compelled to testify; (5) the cost

of bringing witnesses to trial; (6) the enforceability of the

judgment; and (7) all other practical problems that make trial

of a case easy, expeditious and inexpensive.” Boston Telecomms. Grp. v. Wood, 588 F.3d 1201, 1206-07 (9th Cir.

2009) (quoting Lueck, 236 F.3d at 1145). 

[18] Without analyzing each individual factor, the district

court looked generally at the “witnesses and evidence located

in Peru” versus the “witnesses and evidence in California”

and concluded that the “private interest factors weigh overwhelmingly in favor of dismissal.” In taking this approach,

the district court neglected significant relevant evidence and

failed to consider an entire factor — the enforceability of the

judgment — that together weigh against dismissing this lawsuit.

CARIJANO v. OCCIDENTAL PETROLEUM 19475
a. Residence of the Parties

The district court focused on the fact that the contamination

allegations at the heart of the complaint took place in the jungles of the Amazon rainforest, but it failed to consider the residence of all of the parties and the true nature of Plaintiffs’

claims. Occidental maintains its headquarters and principal

place of business in Los Angeles, California.3 The Achuar

Plaintiffs are residents of Peru, but by filing suit in California

they indicated a willingness to travel to the United States for

trial. Co-plaintiff Amazon Watch is a domestic corporation

with its principal place of business in San Francisco, California. Although the group was incorporated in Montana in

1996, it is a registered California non-profit corporation

whose main headquarters are in San Francisco. It also maintains an office in Malibu, California, within the Central District of California. Therefore, Amazon Watch is properly

considered a resident of the local forum. See Boston Telecomms., 588 F.3d at 1207 (concluding that the residence of

the parties factor weighed against dismissal where a nonCalifornia plaintiff sued in a California court, emphasizing

that the plaintiff would stand in an even “stronger position

were he a California resident”). The district court failed to

factor Amazon Watch’s residency into its analysis.

Most of Plaintiffs’ claims turn not on the physical location

of the injury but on the mental state of the Occidental managers who actually made the business decisions that allegedly

resulted in the injury. While the district court mentioned in

passing “decisionmakers at Defendants’ headquarters and witnesses with knowledge of OxyPeru’s operations,” it failed to

3

In the personal jurisdiction context, the Supreme Court has recently

clarified that “principal place of business” refers to “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities,” and “in practice it should normally be the place where the

corporation maintains its headquarters.” Hertz Corp. v. Friend, 130 S. Ct.

1181, 1192 (2010). 

19476 CARIJANO v. OCCIDENTAL PETROLEUM
consider how critical such locally-based evidence is to the litigation, especially given that it has now been a full decade

since Occidental has been involved in day-to-day operations

in Peru. Under these circumstances, with a local defendant, a

local plaintiff, and the foreign plaintiffs willing to travel to the

forum they chose, this factor weighs against dismissing the

action in favor of a Peruvian forum.

b. Convenience to the Parties

The district court found it “clear [that] the cost and convenience of travel between Peru and Los Angeles supports dismissal on forum no[n] conveniens grounds” because even if

all Peruvian witnesses consented to testify in California, airfare from Peru can cost more than $1,000. This reasoning,

however, fails to consider the other side of the ledger. California is the home forum of Occidental and Amazon Watch;

therefore, local litigation would save witnesses affiliated with

those entities the time and expense of traveling to South

America. Moreover, the most daunting logistical challenge to

this litigation would likely be the extreme isolation of the

Achuar territory and Block 1-AB. Travel between the region

and Iquitos, the nearest sizable Peruvian city, can take days,

presenting a serious obstacle regardless of whether trial takes

place in Peru or California. Rather than clearly supporting dismissal, when all of the evidence is considered this is a neutral

factor. See Boston Telecomms., 588 F.3d at 1208 (finding the

convenience factor to be neutral where similar logistical considerations would apply in either forum).

c. Evidentiary Considerations

The district court placed great emphasis on the fact that

“[m]any of the witnesses are located in Peru and thus are

beyond the reach of compulsory process” and that “Plaintiffs

do not dispute that these witnesses are beyond the reach of

compulsory process in the United States.” The district court,

however, was focused on the wrong inquiries. “[W]e have

CARIJANO v. OCCIDENTAL PETROLEUM 19477
cautioned that the focus for this private interest analysis

‘should not rest on the number of witnesses . . . in each locale’

but rather the court ‘should evaluate the materiality and

importance of the anticipated . . . witnesses’ testimony and

then determine their accessibility and convenience to the

forum.’ ” Boston Telecomms., 588 F.3d at 1209 (quoting

Lueck, 236 F.3d at 1146). Other circuits have concluded that

the initial question is not whether the witnesses are beyond

the reach of compulsory process, but whether it has been

alleged or shown that witnesses would be unwilling to testify.

See Duha v. Agrium, Inc., 448 F.3d 867, 877 (6th Cir. 2006)

(“When no witness’ unwillingness has been alleged or shown,

a district court should not attach much weight to the compulsory process factor.”); Peregrine Myanmar Ltd. v. Segal, 89

F.3d 41, 47 (2d Cir. 1996). This approach is consistent with

Gulf Oil, the Supreme Court case that first established the

forum non conveniens factors, which spoke of the “availability of compulsory process for attendance of unwilling, and the

cost of obtaining attendance of willing, witnesses.” Gulf Oil,

330 U.S. at 508.

The proponent of a forum non conveniens dismissal is not

required to identify potentially unavailable witnesses in exact

detail. See Piper, 454 U.S. at 258. However, here Occidental

has not shown, nor does it even represent, that any witness is

unwilling to testify. Instead it has produced a declaration

identifying categories of witnesses it intends to call who are

outside of its control. The district court failed to consider

countervailing evidence in the form of five declarations from

named former Occidental employees who were in Peru during

the relevant time period who indicated a willingness to testify

in the Central District.

As far as physical evidence and other sources of proof, the

district court failed to consider during the discussion of the

private interest factors Occidental’s transfer of Block 1-AB to

Pluspetrol. That Occidental withdrew from the site in 2000

undermines its argument that evidence found today at the

19478 CARIJANO v. OCCIDENTAL PETROLEUM
physical site is much more critical to the litigation than evidence associated with Occidental’s corporate headquarters,

which has been in Los Angeles throughout the relevant

period. Finally, the district court also failed to consider Amazon Watch in weighing these private factors. As discussed

earlier, Amazon Watch’s principal place of business is in California, its executives, key employees and relevant documentary evidence within its control are in California, and many of

the events involving the group which form the basis for its

claims occurred in the state. Therefore, when all of the evidence is properly considered, these evidentiary factors are

neutral.

d. Enforceability of the Judgment

Most critically, the district court failed to give any consideration to whether a judgment against Occidental could be

enforced in Peru. As Occidental correctly points out, California generally enforces foreign judgments, as long as they are

issued by impartial tribunals that have afforded the litigants

due process. See Cal. Civ. Proc. Code §§ 1716(a)-(d). However, the only other authority Occidental cites on the topic is

In re B-E Holdings, Inc., 228 B.R. 414 (Bankr. E.D. Wis.

1999), a case in which the United States Bankruptcy Court for

the Eastern District of Wisconsin recognized a Peruvian judgment. As Plaintiffs note, however, the case actually demonstrates the difficulty of enforcing such an award. The Peruvian

case began in 1986, ended in default judgment in 1992, and

the judgment remained unsatisfied through the U.S. Bankruptcy Court litigation in 1999. See id. at 416. Plaintiffs also

point to the U.S. State Department’s Investment Climate

Statement, which deems the enforcement of Peruvian court

rulings “difficult to predict.” U.S. Dep’t of State, 2010 Investment Climate Statement — Peru (March 2010), http://

www.state.gov/e/eeb/rls/othr/ics/2010/138128.htm. And Occidental’s subsequent withdrawal from the operation of Block

1-AB raises questions about what assets might be available in

Peru to satisfy a judgment there. See Empresa Lineas MaritiCARIJANO v. OCCIDENTAL PETROLEUM 19479
mas Argentinas, S.A. v. Schichau-Unterweser, A.G., 955 F.2d

368, 375 (5th Cir. 1992) (holding that the district court erred

by finding this factor favored dismissal when the defendant

did not meet its burden of establishing that it had assets in the

foreign jurisdiction that could satisfy a judgment). 

[19] As discussed earlier, Occidental’s own expert presented compelling evidence of disorder in the Peruvian judiciary. Because the district court did not require Occidental to

agree that any Peruvian judgment could be enforced against

it in the United States, or anywhere else it held assets, as a

condition for dismissal, Occidental remains free to attack any

Peruvian judgment on due process grounds under California’s

foreign judgments statute. The private factor of the enforceability of judgments thus weighs against dismissal.

3. Public Interest Factors

[20] The public factors related to the interests of the

forums include: “(1) the local interest in the lawsuit, (2) the

court’s familiarity with the governing law, (3) the burden on

local courts and juries, (4) congestion in the court, and (5) the

costs of resolving a dispute unrelated to a particular forum.”

Boston Telecomms., 588 F.3d at 1211 (quoting Tuazon, 433

F.3d at 1181). 

a. Local Interest

The district court weighed Peru’s stake in a case involving

its own “lands and citizens” against California’s “interest in

ensuring that businesses incorporated or operating within its

borders abide by the law,” and concluded that this factor

favored dismissal. It found that a Peruvian tribunal “would be

better equipped to handle” the issues raised by the case

including “environmental regulation of Peruvian territory, and

the allegedly tortious conduct carried out against Peruvian citizens.” This conflates a forum’s interest in resolving a controversy with its ability to do so. The factors regarding

19480 CARIJANO v. OCCIDENTAL PETROLEUM
familiarity with the applicable law, docket congestion, and

costs and other burdens on local courts and juries are all concerned with how well-equipped a jurisdiction is to handle a

case (as is the separate adequacy of the forum inquiry). The

local interest factor has the different aim of determining if the

forum in which the lawsuit was filed has its own identifiable

interest in the litigation which can justify proceeding in spite

of these burdens. See Piper, 454 U.S. at 261; Tuazon, 433

F.3d at 1182.

[21] In considering this factor, the district court undervalued California’s significant interest in providing a forum for

those harmed by the actions of its corporate citizens. California courts have repeatedly recognized the state’s “interest in

deciding actions against resident corporations whose conduct

in this state causes injury to persons in other jurisdictions.”

Stangvik v. Shiley Inc., 819 P.2d 14, 21 n.10 (Cal. 1991); see

also Morris v. AGFA Corp., 51 Cal. Rptr. 3d 301, 311 (Cal.

Ct. App. 2006) (noting that in California a “corporate defendant’s state of incorporation and principal place of business is

presumptively a convenient forum”); cf. Guimei v. Gen. Elec.

Co., 91 Cal. Rptr. 3d 178, 190 (Cal. Ct. App. 2009) (finding

that where defendants were not California-based corporations,

the state “has little interest in keeping the litigation in this

state to deter future wrongful conduct”). The district court

again also failed to consider Amazon Watch. The complaint

describes interactions between Amazon Watch and Occidental

that took place in California and which form the basis for the

Unfair Competition Law claim. There can be no question that

the local interest factor weighs in favor of a California forum

where a California plaintiff is suing a California defendant

over conduct that took place in the state. 

Therefore, although both forums have a significant interest

in the litigation, the local interest factor favors neither side

entirely.4

4There appears to be a difference of opinion about whether it is appropriate to compare the state interests, or whether this factor is solely conCARIJANO v. OCCIDENTAL PETROLEUM 19481
b. Judicial Considerations

The remaining factors all relate to the effects of hearing the

case on the respective judicial systems. The district court did

not abuse its discretion by concluding that the court congestion and burden factors are neutral because there is evidence

that both Peruvian courts and the Central District have similarly crowded dockets. See Creative Tech., Ltd. v. Aztech Sys.

Pte., Ltd., 61 F.3d 696, 704 (9th Cir. 1995) (finding no abuse

of discretion where the district court held these factors to be

neutral because both forums’ “judiciaries are overburdened”).

The district court also properly found the choice of law factor neutral because “both parties have asserted reasonable

explanations that either Peruvian or California law applies.”

California applies a three-part test to determine choice of law

in the absence of an effective choice-of-law agreement. See

Wash. Mut. Bank v. Superior Court, 15 P.3d 1071, 1080 (Cal.

2001). This “governmental interest approach” involves: (1)

determining if the foreign law “materially differs” from California law; (2) and if so, next determining each respective

state’s interest in application of its law; (3) and finally, if the

laws materially differ and both states have an interest in the

litigation, selecting the law of the state whose interest would

be “more impaired” if its law were not applied. Id. at 1080-81.

The proponent of using foreign law has the initial burden of

showing material differences. Id. at 1080. 

cerned with the forum where the lawsuit was filed. Compare Tuazon, 433

F.3d at 1182 (“[W]ith this interest factor, we ask only if there is an identifiable local interest in the controversy, not whether another forum also has

an interest.”), and Boston Telecomms., 588 F.3d at 1212 (noting that

whether a state “has more of an interest than any other jurisdiction” is not

relevant), with Lueck, 236 F.3d at 1147 (balancing the interests of the foreign and domestic jurisdictions and finding the factor tipped toward dismissal because the “local interest in this lawsuit is comparatively low”).

Here, under the former view, this factor would tip against dismissal, while

under the latter it is neutral. However, we find that under either approach

the district court erred by undervaluing California’s interest in this case.

19482 CARIJANO v. OCCIDENTAL PETROLEUM
Here the district court acknowledged that Occidental, as the

foreign law proponent, presented a choice-of-law analysis that

was “lacking,” suggesting that it failed to meet its initial burden for the governmental interest test. However, as part of

their effort to demonstrate that Peru is not an adequate alternate forum, Plaintiffs themselves argued that California law is

materially different from Peruvian law. Therefore, resolving

the conflict of law issue would involve a full blown analysis

of the state interests and relative impairment. As the district

court noted, forum non conveniens is designed so that courts

can avoid such inquiries at this early stage. See Piper, 454

U.S. at 251 (“The doctrine of forum non conveniens, however,

is designed in part to help courts avoid conducting complex

exercises in comparative law.”); Lueck, 236 F.3d at 1148 (noting that district courts need not make a choice of law determination to decide a forum non conveniens motion that does not

involve a statute requiring venue in the United States). 

4. Weighing the Factors

[22] The private factors based on convenience and evidentiary concerns favor neither side, while the residence of the

parties and enforceability of the judgment factors weigh

against dismissal. All of the public interest factors are neutral.

Taken together, the factors fail to “establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to

plaintiff’s convenience.” Piper, 454 U.S. at 241 (quoting

Koster, 330 U.S. at 524); Dole Food, 303 F.3d at 1118 (“The

plaintiff’s choice of forum will not be disturbed unless the

‘private interest’ and ‘public interest’ factors strongly favor

trial in the foreign country.”). They also fail to outweigh the

deference owed to Amazon Watch’s chosen forum. Therefore,

the district court abused its discretion by “striking an unreasonable balance of relevant factors.” Ravelo Monegro, 211

F.3d at 511; see also Boston Telecomms., 588 F.3d at 1212

(reversing a forum non conveniens dismissal because the “district court did not hold [the defendant] to his burden” of

showing the foreign forum was more convenient where “[a]ll

CARIJANO v. OCCIDENTAL PETROLEUM 19483
but one of the private and public interest factors were either

neutral or weighed against dismissal”). 

C. Absence of Conditions on the Forum Non Conveniens

Dismissal

[23] Although the district court dismissed the case without

prejudice to Plaintiffs’ right to re-file in the Central District

of California in the event that Occidental does not consent to

personal jurisdiction in Peru, or a Peruvian court declines to

assert personal jurisdiction over Occidental, it did not place

any mitigating conditions on its dismissal. Under the circumstances here, this was an abuse of discretion. 

Plaintiffs requested that the district court condition its dismissal by requiring that: (1) any Peruvian judgment be satisfied; (2) Occidental waive any statute of limitations defense

in Peru that would not be available in California; (3) Occidental agree to comply with United States discovery rules; and

(4) Occidental translate documents from English to Spanish.

District courts are not required to impose conditions on forum

non conveniens dismissals, but it is an abuse of discretion to

fail to do so when “there is a justifiable reason to doubt that

a party will cooperate with the foreign forum.” Leetsch, 260

F.3d at 1104.

[24] Here, there is justifiable reason to suspect that Occidental will move to dismiss this lawsuit based on the Peruvian

statute of limitations. And as Plaintiffs note, Occidental has

agreed to waive statute of limitations defenses in the past

when a forum non conveniens dismissal was conditioned on

such waiver. See Kinney v. Occidental Oil & Gas Corp., 109

F. App’x 135, 136 (9th Cir. 2004). Therefore, it was an abuse

of discretion to dismiss on the basis of forum non conveniens

without requiring Occidental to waive any statute of limitations defenses that would not be available in California. 

[25] Similarly, the district court failed to consider evidence

about the difficulty of enforcing Peruvian judgments and the

19484 CARIJANO v. OCCIDENTAL PETROLEUM
unique obstacles posed by Occidental’s withdrawal from the

country and the resulting uncertainty regarding its Peruvian

assets. Occidental’s own expert provided evidence of corruption and turmoil in the Peruvian judiciary that could become

the basis for a challenge to the enforceability of a judgment

based on the procedural deficiencies of a Peruvian proceeding. When there is reason to think that enforcing a judgment

in a foreign country would be problematic, courts have

required assurances that a defendant will satisfy any judgment

as a condition to a forum non conveniens dismissal. See Contact Lumber, 918 F.2d at 1450. 

[26] As for discovery, the district court overemphasized

Peruvian geography and lost sight of the importance of

California-based witnesses and evidence to resolving the

claims alleged in the complaint. Plaintiffs argue that without

a condition requiring Occidental to cooperate with discovery

requests pursuant to the Federal Rules of Civil Procedure,

they might be denied access to important domestic evidence

once the case is in a Peruvian court. Where a plaintiff would

“have greater access to sources of proof relevant to” its claims

if trial were held in the original forum, “district courts might

dismiss subject to the condition that defendant corporations

agree to provide the records relevant to the plaintiff’s claims.”

Piper, 454 U.S. at 257, 258 n.25; see also Satz v. McDonnell

Douglas Corp., 244 F.3d 1279, 1283 (11th Cir. 2001) (holding the district court did not abuse its discretion when it conditioned dismissal on the defendant “agreeing to conduct all

discovery in accordance with the Federal Rules of Civil Procedure, and voluntarily producing documents and witnesses

within the United States”); Stewart v. Dow Chemical Co., 865

F.2d 103, 107 (6th Cir. 1989) (finding no abuse of discretion

where the trial judge conditioned dismissal on the defendant

allowing “discovery of any evidence which would be discoverable under the Federal Rules of Civil Procedure, and to

make witnesses under its control available to the [foreign]

court”). 

CARIJANO v. OCCIDENTAL PETROLEUM 19485
Once again the parties offered dueling expert affidavits as

to the sufficiency of Peruvian discovery procedures to ensure

that California-based evidence can be obtained and witnesses

procured should this case proceed in Peru. While a thorough

analysis might reasonably conclude that Peru offers discovery

rules that would satisfy Plaintiffs’ concerns, the district court

erred by rejecting this condition without addressing those

legitimate concerns at all. However, the district court did not

err by declining to condition the dismissal on Occidental’s

agreeing to translate all documents into Spanish, as Plaintiffs

failed to produce sufficient evidence to show justifiable reason to doubt that such translations would otherwise be available. 

IV. CONCLUSION

Where a district court “has considered all relevant public

and private interest factors, and where its balancing of these

factors is reasonable, its decision deserves substantial deference.” Boston Telecomms., 588 F.3d at 1206 (citations and

internal quotation marks omitted). However, when it fails to

hold a party to its “burden of making a clear showing of facts

which establish such oppression and vexation of a defendant

as to be out of proportion to plaintiff’s convenience,” id. at

1212 (quoting Ravelo Monegro, 211 F.3d at 514), or when it

“fail[s] to consider relevant private and public interest factors

and misconstrue[s] others,” Gates Learjet Corp. v. Jensen,

743 F.2d 1325, 1337 (9th Cir. 1984), then it abuses its discretion.

Here the district court erroneously relieved Occidental of

its burden of showing that Peru is an adequate alternative

forum. It accepted a flawed stipulation to Peruvian jurisdiction and overlooked strong evidence, including evidence from

Occidental’s own expert, calling into question the ability of

the Peruvian courts to satisfactorily handle this case. The district court failed to consider all relevant private and public

interest factors, entirely overlooking the enforceability of

19486 CARIJANO v. OCCIDENTAL PETROLEUM
judgments factor, which weighs heavily against dismissal. It

correctly assumed that Amazon Watch was a proper domestic

plaintiff, but erroneously afforded reduced deference to its

chosen forum and ignored the group entirely in the analysis

of numerous factors. These errors led the district court to misconstrue factors that are neutral or weigh against dismissal,

and to strike an unreasonable balance between the factors and

the deference due a domestic plaintiff’s chosen forum.

Finally, the district court abused its discretion by failing to

impose conditions on its dismissal that were warranted by

facts in the record showing justifiable reasons to doubt Occidental’s full cooperation in the foreign forum. 

[27] Occidental had a substantial burden to persuade the

district court to invoke the “exceptional tool” of forum non

conveniens and deny Plaintiffs access to a U.S. court. See

Ravelo Monegro, 211 F.3d at 514. Occidental failed to meet

that burden, and a proper balance of all the relevant factors at

this stage of proceedings clearly demonstrates that this lawsuit

should proceed in the Central District of California. We therefore reverse the district court’s dismissal on the basis of forum

non conveniens. We need not reach Plaintiffs’ argument that

the district court abused its discretion in denying discovery

before ruling on Occidental’s motion. We remand this case to

the district court to consider the question of Amazon Watch’s

standing, and for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

RYMER, Circuit Judge, concurring in part, dissenting in part:

I agree that conditions on dismissal might be appropriate.

However, I would not re-analyze whether to dismiss on

grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when

CARIJANO v. OCCIDENTAL PETROLEUM 19487
there has been a clear abuse of discretion. Creative Tech., Ltd.

v. Aztech Sys. PTE, Ltd., 61 F.3d 696, 699 (9th Cir. 1995).

The district court considered the relevant public and private

interest factors, its findings are supported in the record, and

its balancing of these factors was not unreasonable. Thus, its

decision deserves substantial deference. See id.

I

In light of that standard, Carijano has not persuaded me that

the district court made a clear error of judgment when it determined that Peru is an adequate alternative forum. “[A] forum

will be inadequate only where the remedy provided is ‘so

clearly inadequate or unsatisfactory, that it is no remedy at

all.’ ” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163,

1178 (9th Cir. 2006) (quoting Lockman Found. v. Evangelical

Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991)). 

In short, Occidental is amenable to service of process in

Peru, and furnished evidence that Peru provides “some remedy” for the wrong at issue. Lueck v. Sundstrand Corp., 236

F.3d 1137, 1143 (9th Cir. 2001). Occidental submitted a comprehensive affidavit from Dr. Felipe Osterling Parodi (Osterling), who has been a Peruvian law professor for more than 50

years and who has served as a law school dean, Peruvian Justice Minister, a Senator for the Republic of Peru, and President of the Peruvian Academy of Law. Osterling detailed the

background of the Peruvian court system and explained the

substantive claims and remedies that would be available under

Peruvian law with respect to the wrongs Carijano alleges. 

Although Carijano notes that Peru has no cause of action

identical to his UCL claim, this is not necessary so long as

that country provides some remedy for the alleged wrong. See

Lueck, 236 F.3d at 1143 (upholding New Zealand as an adequate alternative forum even though plaintiffs were unable to

maintain the exact suit they would have in a U.S. court); Capital Currency Exch., N.V., v. Nat’l Westminster Bank PLC,

19488 CARIJANO v. OCCIDENTAL PETROLEUM
155 F.3d 603, 610 (2d Cir. 1998) (“The availability of an adequate alternate forum does not depend on the existence of an

identical cause of action in the other forum.”) (quotation omitted). Osterling avers that it does. He explained that Peruvian

law has analogies for all of the substantive legal theories on

which the lawsuit in Los Angeles is based. The district court

explicitly relied on Osterling’s affidavit, which it was entitled

to do. See Cheng v. Boeing Co., 708 F.2d 1406, 1410-11 (9th

Cir. 1983) (upholding district court’s determination that Taiwan was an adequate forum when it considered the affidavits

of competing experts and decided that the views of the defendant’s expert were more persuasive).

In a similar vein, Carijano faults the district court for having failed to find that Amazon Watch would lack standing in

Peru. But there was no evidence that Amazon Watch would

not have standing, or would otherwise be unable to pursue its

claims for injunctive and declaratory relief in that country.

Osterling’s affidavit indicates that actions whose objective is

the defense of the environment may be brought in Peru by any

person or association, even when an economic interest is not

at stake. 

As the Supreme Court stated in Piper Aircraft Co. v.

Reyno, only in “rare circumstances” would a “remedy offered

by the other forum [be] clearly unsatisfactory.” 454 U.S. 240,

255 n.22. Here, Peru permits litigation on the subject matter

of the dispute, and there is no indication Amazon Watch

would be unable to pursue its claim there. The defendant need

not demonstrate that the plaintiff would succeed in the alternative forum; Occidental merely had to show that Peru would

permit litigation on the subject matter of the dispute. Id.

Because a forum will only be deemed inadequate in “rare

circumstances,” once a defendant has demonstrated he is amenable to process and “some remedy” exists for the alleged

wrong, “[a] litigant asserting inadequacy or delay must make

a powerful showing.” Tuazon, 433 F.3d at 1179. Carijano’s

CARIJANO v. OCCIDENTAL PETROLEUM 19489
claims center on whether the law in Peru would be unpredictable, corruption in the judicial system, and discrimination

against indigenous people. 

Carijano maintains that the district court failed to support

the weight it gave to unpredictability of the law as a factor.

However, the court was persuaded by Osterling’s affidavit

that, although Peru is a civil law country, precedent is

respected in the overwhelming majority of cases. 

After analyzing Carijano’s purported evidence of corruption, the district court concluded that it falls short of the

“powerful showing” necessary to defeat a forum non conveniens motion. See Tuazon, 433 F.3d at 1179 (“[T]he argument

that the alternative forum is too corrupt does not enjoy a particularly impressive track record.”) (citations and quotation

and alteration marks omitted). The proof here is neither “specific” nor “sordid.” Id. (contrasting the proof under review

with Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078 (S.D.

Fla. 1997)). The district court did not overlook the evidence

presented; it just concluded that the evidence consisted of

unsupported allegations of corruption that did not counsel in

favor of Carijano. Carijano has not shown that the district

court relied on either an erroneous view of the law or on a

“clearly erroneous assessment of the evidence” in holding that

Carijano’s evidence of corruption was insufficient to render

Peru an inadequate alternative forum. See K.V. Mart Co. v.

United Food & Commercial Workers Int’l Union, Local 324,

173 F.3d 1221, 1223 (9th Cir. 1999) (quotation omitted).

Nor did the district court believe that claims of discrimination can never render a forum inadequate, as Carijano submits; rather, it simply held that Carijano’s conclusory

allegations and claims of discrimination were not sufficient to

render a Peruvian forum inadequate. Although Carijano

argues that some plaintiffs lacked identity papers necessary to

bring suit and would be unable to afford filing fees, the district court credited Osterling’s opinion that Peru had taken

19490 CARIJANO v. OCCIDENTAL PETROLEUM
substantial steps to protect indigenous rights, including waiving filing fees and allowing plaintiffs to bring suit if they

demonstrate their inability to obtain identity papers. Altmann

v. Austria, 317 F.3d 954, 972-73 (9th Cir. 2002), aff’d on

other grounds, 541 U.S. 677 (2004) (observing that the “mere

existence of filing fees, which are required in many civil law

countries, does not render the forum inadequate as a matter of

law.”). 

Carijano further contends that Occidental’s contract clauses

that explicitly avoid Peruvian courts (like arbitration and

forum selection clauses) demonstrate that Peru is an inadequate forum. However, available evidence demonstrates that

OxyPeru actually used forum selection clauses favoring Peru

in the past, see Sudduth v. Occidental Peruana, Inc., 70

F.Supp.2d 691, 694 (E.D. Tex. 1999), and OxyPeru has been

sued many times in Peruvian courts.

II

I cannot say that the district court abused its discretion in

weighing the public and private interest factors. It took into

account that 25 out of the 26 plaintiffs are Peruvian and that

Amazon Watch is only one plaintiff on one out of the 12

causes of action. Amazon Watch was not originally a plaintiff

in California state court, having been added only after the

Peruvian plaintiffs learned that Occidental was going to move

for dismissal based on forum non conveniens. The court could

find that these circumstances lessen the deference due to the

plaintiffs’ choice of forum.

The district court could also find, as it did, that the facts of

the case center primarily on Peruvian lands and Peruvian people. It found that many witnesses, including family members

and community leaders, physicians, and consultants, are

beyond the reach of compulsory process in the United States.

Carijano asserts the court abused its discretion by not specifically stating which witnesses would be unwilling to travel to

CARIJANO v. OCCIDENTAL PETROLEUM 19491
the United States, but it can be “difficult to identify” specific

individuals when many witnesses “are located beyond the

reach of compulsory process.” Piper Aircraft, 454 U.S. at

258. Here, as in Lueck, it appears that most of the evidence

in the United States would be under the control of Occidental

(or alternatively, Amazon Watch), and therefore could be produced no matter what the forum. Lueck, 236 F.3d at 1146-47

(noting that private factors favored dismissal where evidence

in the United States was under both parties’ control, and evidence in New Zealand could not be summoned to the United

States). Finally, the district court’s balancing is supported by

evidence that a trip from the Achuar territory to a Peruvian

city is shorter and less costly than that trip followed by a 16-

20 hour flight to Los Angeles. 

The district court considered the strong interest of both

Peru and California in this dispute, but weighted Peru’s more

heavily given that the suit involves Peruvian land and citizens.

This is not a clearly erroneous assessment as both the alleged

tort, and injury, occurred there. 

III

Carijano suggests that more discovery may have mattered,

but has not made a clear showing of actual and substantial

prejudice sufficient to demonstrate the district court abused its

discretion by denying additional discovery. Carijano simply

argues that the parties produced contradictory evidence and

speculates that additional discovery might have helped its

case. But Carijano’s extensive recitation of the evidence it

presented in district court demonstrates the court did have

enough information to balance the parties’ interests. Even

when it’s possible that discovery might have provided more

detail, a district court does not abuse is discretion in denying

discovery if the parties have provided “enough information to

enable the District Court to balance the parties’ interests.”

Cheng, 708 F.2d at 1412 (quoting Piper Aircraft, 454 U.S. at

258).

19492 CARIJANO v. OCCIDENTAL PETROLEUM
IV

While conditions on dismissal are generally not necessary

in a forum non conveniens dismissal, they may be necessary

to ensure that the defendant does not defeat the adequacy of

a foreign forum. Leetsch v. Freedman, 260 F.3d 1100, 1104

(9th Cir. 2001). Conditions such as accepting service, submitting to the jurisdiction, waiving the statute of limitations,

making discovery, and agreeing to enforceability of the judgment may be appropriate here. I would, therefore, remand for

the court specifically to consider whether its dismissal should

be conditioned. Otherwise, I would affirm.

CARIJANO v. OCCIDENTAL PETROLEUM 19493