BANTICK - diamondmccarthy.com ofDefense of the Islamic Republic ... 3,4,7,10, 18, 19 ... 111 Case...

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[ORRIS P I C K E m G & PETERSON :eve Moms, Esq. (Bar No. 1543) ex Gamer, Esq. (Bar No. 9401) 10 S. 4” Street, Ste. 900 as Vega, NV 89101 elephone: (702) 474-9400 acsimile: (702) 474-9422

OWREY LLP [ark Wegener, Esq. (admittedpro hac vice) dward Han, Esa. (admitted pro hac vice) [artin Cunn’iff, ksq. (admitkdpro hac vice) 299 Pennsylvania Avenue, N.W. Tashington, D.C. 20004-2402 elephone: (202) 783-0800 acsimile: (202) 383-6610

ttomeys for Defendants PLACER DOME INC. and ARRICK GOLD CORPORATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

(LAS VEGAS DIVISION)

ROVINCIAL GOVERNMENT OF IARINDUQUE, a political subdivision of the .epublic of the Philippines,

Plaintiff,

vs.

LACER DOME INC., and BARRICK GOLD :ORPORATION,

Defendants.

Case No. 2:05-cv-O1299-BES-RJ.l

REPLY MEMORANDUM OF DEFENDANTS PLACER DOME INC. AND BARRICK GOLD CORPORATION IN SUPPORT OF DISMISSAL ON GROUNDS OF FORUM NON CONVENIENS

REPL.Y MEMO~UUUVM OF DEFENDANTS PLACER DOME I % AND BANTICK GOLD COK~;OR\TION IN SUPPORT OF DISMISSAI. ON C R O W D S O F FORUM KON CONVENIFNS

Case 2:05-cv-01299-BES-RJJ Document 210 Filed 04/23/2007 Page 1 of 26

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I.

11.

V.

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TABLE OF CONTENTS

Page(s) DEFENDANTS’ MOTION IS NOT BARRED BY “UNCLEAN HANDS ....................................................................................................................................... 3

CANADIAN COURTS PROVIDE AN ADEQUATE ALTERNATIVE FORUM ........................................................................................................................................ 4

A.

>,

Differences In Available Remedies Do Not Render Canadian Courts Inadequate ............................................................................................................. 5

Differences In Discovery Procedures Do Not Render Canadian Courts Inadequate ...................................... ................................................................... 7

The “Loser Pays” Rule Does Not Render Canadian Courts Inadequate ......................................................................................................................... 9

B.

C.

THE PROVINCE’S CHOICE OF FORUM IS ENTITLED TO LITTLE OR NO DEFERENCE ................................................................................................................ 11

THE RELEVANT PRIVATE INTEREST FACTORS FAVOR DISMISSAL ................................................................................................................................ 12

A. It Is Undisputed That The Testimony Of Witnesses Located In Canada Is Material And Important ................................................................................. 12

The Testimony Of Witnesses Located In The United States Is Less Material And Less Important .......................................................................................... 13

A Canadian Judgment Would Be Easier To Enforce ..................................................... 15

B.

C.

THE RELEVANT PUBLIC INTEREST FACTORS FAVOR DISMISSAL ..................................................................................................................................... 16

A. The Applicable Law Favors A Canadian Forum ....... .... ...... .... ................... .......... . ...... ... 16

B. Nevada Has No Interest In This Controversy ................................................................. 17

THE NINTH CIRCUIT AUTHORITY CITED BY THE PROVINCE DOES NOT SUPPORT RETENTION OF JURISDICTION ......................................... .18

-1-

REPLY MEMORANDUM OF DEFENDANTS PLACER DOME INC. AND BARRICK GOLD CORPORATION IN SUPPORT OF DISMISSAL ON GROUNDS OF FORUM NON CONVENIENS


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TABLE OF AUTHORITIES

Page (d In re Agent Orange Prod. Liability Litigation,

373 F. Supp. 2d 7 (E.D.N.Y. 2005) ........................................................................................... 7

In re Air Crash over the Taiwan Strait on May 25, 2002, 331 F. Supp. 2d 1176 (C.D. Cal. 2004) ............................................................................... 8, 10

4lcoa Steamship Co. v. M/VNordic Regent, 654 F.2d 147 (2d Cir. 1980) ........... ................................................................... 5

4lgeran, Inc. v. Advance Ross Corp., 759 F.2d 1421 (9th Cir. 1985) ................................................................................................... 4

4rsape S.A. v. JDS Uniphase Corp., No. C 03-4535 JW, 2004 US. Dist. LEXIS 24270 (N.D. Cal. July 29, 2004) ....................................................... 17

Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) ...................................................................................................... 7

Canada Malting Co. v. Paterson S.S. Ltd., 285 U.S. 413 (1932) .......................................................................................................... 11, 12

Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983) ................................................................................................. 11

Creative Technologies, Ltd. v. Aztech System PTE, Ltd., 61F.3d696(9thCir. 1995) ..................................................................................... 5,11,17,18

Derensis v. Coopers & Lybrand Chartered Accountants, 930 F. Supp. 1003 (D. N.J. 1996) ............................................................................................ 11

Fustok v. Banque Populaire Suisse, 546 F. Supp. 506 (S.D.N.Y. 1982) ............................................................................................. 8

Garcia v. FordMotor Co., No. 4:02CV001319 RWS, 2003 U.S. Dist. LEXIS 27370 (E.D. Mo. July 7, 2003) ......................................................... 14

Gates Learjet Corp. v. Jensen, 743 F.2d 1325 (9th Cir. 1984) .... .................................................................... 13, 19

Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088 (9th Cir. 1998) ....................................................................................................... 13

Gilstrap v. Radianz Ltd., 443 F. Supp. 2d 474 (S.D.N.Y. 2006) ..................................................................................... 13

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Howe v. Goldcorp Investments, Ltd., 946 F.2d 944 (1st Cir. 1991) ................................................................................................... 13

Katzir's Floor and Home Design, Inc. v. M-MLS.com, 394 F.3d 1143 (9th Cir. 2004) .................................................................................................. 15

Kilvert v. Tambrands. Inc., 906 F. Supp. 790 (S.D.N.Y. 1995) .......................................................................................... 10

Leetsch v. Freedman, 260F.3d llOO(9thCir.2001) ............................................................................................. 5, 11

Lockman Foundation v. Evangelical Alliance Mission, 930 F.2d 764 (9th Cir. 1991) ................................................................................................. 4, 7

Lony v. E.I. Dupont de Nemours & Co., 935 F.2d 604 (3d Cir. 1991) ........................................................................

Lueck v. Sundstard Corp., 236 F.3d 1137 (9th Cir. 2001) ....................................................................................... 5 , 11, 18

Magnetic Engineering & Manufacturing Co. v. Dings Magnetic Separator Co., 86 F. Supp. 13 (S.D.N.Y. 1949) .............................................................................................. 14

Marra v. Papandreou, 59 F. Supp. 2d 65 (D.D.C. 1999) ............................................................................................... 8

Mercier v. Sheraton International, Inc., 981 F.2d 1345 (1st Cir. 1992) ............................................................................................. 7, 11

Ministry ofDefense of the Islamic Republic of Iran v. Gould, Inc., 969 F.2d 764 (9thCir. 1992) ................................................................................................... 15

Monegro v. Rosa, 211 F.3d 509 (9th Cir. 2000) ................................................................................................... 19

Mutual Export Corp. v. Westpac Banking Corp., 742 F. Supp. 161 (S.D.N.Y. 1990) .......................................................................................... 11

Vational Hockey League Players 'Association v. Plymouth Whalers, 166 F. Supp. 2d 1155 (E.D. Mich. 2001) ............................................................................ 6, 11

Paper Operations Consultants International, Ltd. v. SS Hong Kong Amber, 513 F.2d 667 (9th Cir. 1975) ................................................................................................... 11

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ................................................................................ 3,4,7,10, 18, 19

... 111


http://M-MLS.com

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Potomac Capital Investment Corp. v. KLM, No. 97 Civ. 8141, 1998 US. Dist. LEXIS 2343 (S.D.N.Y. Mar. 3, 1998) ....................... 14, 17

Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003) ..................................................................................... 11

Sinochem International Co. v. Malaysia International Shipping Corp., 127 S. Ct. 1184 (2007) .............................................................................................. 1, 2, 11, 19

Strategic Value Master Fund v. Cargill Financial Services, Corp., 421 F. Supp. 2d 741 (S.D.N.Y. 2006) ..................................................................................... 13

Trajlon v. Deacon Barclays De Zoete Wedd, Ltd., No. C-93-2758-FMS, 1994 WL. 746199 (N.D. Cal. Oct. 21, 1994). .................................. 11

Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163 (9th Cir. 2006) ........................................................................................... 18, 19

Van Der Velde v. Philip Morris, Inc., No. 02 Civ. 783 (BSJ), 2004 US. Dist. LEXIS 246 (S.D.N.Y. Jan. 9, 2004) ................................................................ 9

Vanity FairMills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir. 1956) ...................................................................................................... 7

Zipfel v. Halliburton Co., 832 F.2d 1477 (9th Cir. 1987) ............................................................................................. 7, 11

iv


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Defendants Placer Dome Inc. (“PDI”) and Barrick Gold Corporation (“Barrick”) respectfully

submit this reply memorandum in further support of their motion to dismiss the Third Amended

Complaint (Doc. 135, Ex. A) (the “Complaint” or “TAC”) of Plaintiff, the Provincial Government of

Marinduque (the “Province”), on the ground offorum non conveniens.

PRELIMINARY STATEMENT

In its lengthy opposition brief (Doc. 202, Ex. A) (“Opp.”) -which exceeds the Court’s

xescribed limits by at least 30 pages - the Province never addresses Defendants’ detailed showing that

:he Supreme Court’s recent unanimous decision in Sinochem Int ‘I Co. v. Malaysia Int ’I Shipping

Corp., 127 S. Ct. 1184 (2007), compels dismissal of this case under the doctrine offorum non

:onveniens. (See Doc. 181 (“Mem.”) at 7-8.) Specifically, the Province either fails to rebut or

:xpressly concedes each of the following dispositive facts establishing that this case, like Sinochem, “is

a textbook case for immediateforum non conveniens dismissal.” 127 S . Ct. at 1194.

The Province acknowledges that it is a foreign plaintiff (Opp. at 10 (“The Province is

unquestionably a non-U.S. citizen, a non-resident of Nevada, and therefore a ‘foreign

plaintiff ”)); its choice of forum is therefore entitled to little or no deference.

It is undisputed that the Defendants are Canadian corporations headquartered in Canada. (See

Mem. at 4-5.)

The Province does not deny that Defendants are amenable - indeed, have consented - to

service in the courts of British Columbia and Ontario. (See Mem. at 10.)

The Province expressly admits that a substantial remedy is available to it in Canadian courts:

“If this case is transferred to British Columbia, the Province may be able to recover its out of

pocket costs for remediation and damages for environmental injuries to its private land.”

(Opp. at 3 1 (emphasis added).) Combined with Defendants’ amenability to service, this

conclusively establishes that Canadian courts provide an adequate alternative forum.

The Province asserts no claims under U.S. or Nevada law. (Mem. at 5.)

The Province does not allege or contend that any of the activities that caused the alleged

environmental harm on Marinduque occurred in Nevada or anywhere else in the United States.

1 REPLY MEMORANDUM OF DEFENDANTS PLACER DOME INC. AND BARRICK GOLD CORPORATION

IN SUPPORT OF DISMISSAL ON GROUNDS OF FORUM NON CONVENIENS

>M_US:Z0400687-1


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(See Mem. at 4.)

The Province does not deny that several former Marcopper mine managers and PDI officers -

the very individuals who were allegedly responsible for the actions and decisions that caused

the alleged environmental harm - are located in Canada, while none is located in Nevada or the

United States. (See Mem. at 5-6.)

The Province does not deny that many of the documents reflecting the actions and decisions

that caused the alleged environmental harm are located in Canada, while none is located

Nevada or the United States. (See Mem. at 6. )

The Province does not deny that, if the Court declines to dismiss this case forforum non

conveniens, the parties and the Court will face complex issues of personal jurisdiction -

beginning with discovery disputes arising from the 238 “jurisdictional” discovery requests

served by the Province. (See Mem. at 3 . ) In Sinochem, the Supreme Court held that burden

and delay associated with the personal jurisdiction inquiry favored dismissal. See 127 S. Ct. at

1194.

On March 6,2007, following the Supreme Court’s suggestion in Sinochem, this Court ordered

riefing specifically addressed to the issue offomm non conveniens, while suspending other

)roceedings in the case. (Doc. 179.) Defendants complied, filing a 16-page brief focused on the

mcontested facts and overwhelming Supreme Court and Ninth Circuit authority compelling dismissal.

See Mem.) Rather than addressing these dispositive facts and cases, the Province has submitted a

nountain ofpaper - a 60-page responding brief, eight ancillarymotions (see Docs. 189, 190, 191, 192,

97,202,203,209), twelve supporting affidavits, over 1,000 pages in total - attempting to cloud the

ssues and undermine the Court’s March 6 Order. Throughout these papers, the Province suggests that,

n order to resolve theforum non conveniens motion, the Court must delve deeply into merits and

urisdictional issues - e.g., whether Defendants have “unclean hands,” whether Defendants are the alter

:gos of their Nevada subsidiaries, whether Philippine law recognizes a claim for natural resource

lamages, and whether the Province has standing to pursue such a claim. The Supreme Court has ruled,

lowever, that such inquiries are wholly unnecessary and improper. In Sinochem, the Court observed

2 REPLY \IEhlORANDU\I OF DEIENDANI’S rI>?ER DOhlE INC. AND BARRJCK GOLD COlU’ORAl’lOti

IK SUPI’OIU’OI I)ISI\lISSAL ON GROLYDS OF FORUhl NON CONVlNILtiS

.


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that, typically, theforum non conveniens analysis “will involve no arduous inquiry.” 127 S. Ct.

at 1194. In Piper Aircraft Co. v. Reyno, 454 U.S. 235,258 (1981), the Supreme Court rejected the

argument that “defendants seekingforum non conveniens dismissal must submit affidavits identifylng

the witnesses they would call and the testimony these witnesses would provide. . . .” The Court held

that “[sluch detail is not necessary” because “[rlequiring extensive investigation would defeat the

purpose of the[] motion.” Id.

At bottom, this is an action by a foreign plaintiff against foreign defendants, concerning allegec

conduct and injury occumng wholly outside the United States and governed by foreign law, that

should not proceed in this forum.

ARGUMENT

I. DEFENDANTS’ MOTION IS NOT BARRED BY “UNCLEAN HANDS”

In a desperate attempt to avoid dismissal, the Province purports to invoke the doctrine of

“unclean hands.” (See Opp. at 13-17.) The Province does not cite a single case, however, in which

any court has ever denied aforum non conveniens motion on the basis of unclean hands -because

there is no such case. Even if the doctrine of unclean hands were applicable to such motions, the

record is entirely inadequate to support its application here. The Province asks the Court to adopt, as

findings of fact, the Province’s inflammatory assertions of wrongdoing by Defendants based on

nothing but lawyers’ argument, rank hearsay, unsupported allegations in the Complaint, and self-

serving characterizations of a few documents. (See Opp. at 13-17 & nn.43-54.) The Court should

reject the suggestion that, in order to determine the proper forum, the Court must prejudge, in the

Province’s favor, key disputed factual issues.

In any event, the Province’s incendiary rhetoric about PDI’s “escape from the jurisdiction”

(Opp. at 17) boils down to a simple fact that the Province withholds from the Court: PDZis not

amenable to service in the Philippines because it has never been present in the Philippines. As the

Province’s Complaint alleges, PDI merely owned a minority interest in the Philippine operator of the

mine, Marcopper Mining Corp. (“Marcopper”). (TAC 17 112-14.) Indeed, a Philippine court has so

held. The Regional Trial Court of Marinduque ruled in a prior action that the plaintiffs’ “bid for the



DM-US:20400687-1


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inclusion of Placer Dome, Inc. in the complaint cannot hold water.” (Exhibit A at 4.) Although it

dillowed the case to proceed against Marcopper, that court noted that “Placer Dome Inc. is not even

registered as a corporation or partnership, much less doing business in the Philippines. . . .” (Id. at 6.)

PDI’s successful assertion ofjurisdictional defenses in a Philippine court cannot, as a matter of law,

Eonstitute unclean hands. The Ninth Circuit has confirmed the intuitive proposition that conduct

specifically approved by a court will not give rise to a claim of unclean hands:

[Wle do not accept [plaintiffl’s argument that the foreclosure sale itself constituted “unclean

hands”. . . . [Defendant] took steps to clarify the procedural status of the sale by petitioning for

an order. . . validating the sale. The district judge, the person closest to the situation, granted

the petition . . . and specifically validated the sale. . . . In the circumstances of this case . . ., we

find no unclean hands.

Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1424 (9th Cir. 1985).

The Province’s attempt to invoke the doctrine of unclean hands is therefore improper, as is its

demands that the Court condition any dismissal on Defendants’ submission to jurisdiction in the

Philippines. (Opp. at 59-60.) There is simply nothing unusual or inequitable about requiring the

Province to bring its action where the defendants reside - in Canada.

[I. CANADIAN COURTS PROVIDE AN ADEQUATE ALTERNATIVE FORUM

The controlling Supreme Court and Ninth Circuit precedents impose only two requirements for

an alternative forum to be adequate. First, the defendants must be amenable to service in the forum.

See, e.g., Piper, 454 U.S. at 255 11.22 (“Ordinarily, this requirement [of an adequate alternative forum]

will be satisfied when the defendant is ‘amenable to process’ in the other jurisdiction”). Because

Defendants reside in Canada, there is no doubt that they can be served there; in any event, they have

consented to the jurisdiction of either British Columbia or Ontario courts. See, e.g., Lockman Found.

v. Evangelical Alliance Mission, 930 F.2d 764,768 (9th Cir. 1991) (“Because the record shows that

[the defendant] has agreed to submit to Japanese jurisdiction, and because [the defendants] reside in

Japan, the threshold test is satisfied”).




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Second, as discussed below, the forum must provide some remedy. Because the Province

cannot show that differences between US. and Canadian substantive and procedural law would leave

the Province with no remedy at all, Canadian courts provide an adequate forum.

A.

Canadian courts are an adequate alternative forum because, as the Province admits, they afford

Differences In Available Remedies Do Not Render Canadian Courts Inadequate

the Province a substantial remedy for its claim: “If this case is transferred to British Columbia, the

Province may be able to recover its out ofpocket costs for remediation and damages for

environmental injuries to its private land.” (Opp. at 31 (emphasis added).) An alternative forum is

adequate unless it affords the plaintiff “no remedy at all.” See, e.g., Leetsch v. Freedman, 260 F.3d

1100, 1103 (9th Cir. 2001) (“The existence of an adequate alternative forum depends on whether or not

an alternative forum is ‘so clearly inadequate or unsatisfactory that it is no remedy at all.”’) (quoting

Creative Tech., Ltd. v. Aztech Sys. PTE, Ltd., 61 F.3d 696, 701 (9th Cir. 1995)) (emphasis added).

To the extent that the Province argues that it would receive a smaller damages recovery in

Canada (Opp. at 30-31), that argument fails for at least two reasons. First, the Ninth Circuit has

repeatedly rejected the expectation of lower damages in the alternative forum as a basis for retaining

jurisdiction. In Lueck v. Sundstrand Corp.,

Plaintiffs’ attorney has candidly admitted that the impetus for the lawsuit is money: United

States law offers Plaintiffs a greater potential remedy for their losses than New Zealand law. A

jury trial in the United States on these facts could yield significantly higher awards to Plaintiffs

than the compensation they will receive from the [New Zealand forum]. Under Piper Aircraft,

however, it is clear that this argument fails.

236 F.3d 1137, 1144 (9th Cir. 2001). The Ninth Circuit concluded that, “[a]lthough New Zealand law

does not permit Plaintiffs to maintain this exact suit,” the administrative remedy available in New

Zealand was not “so inadequate that it is tantamount to no remedy at all.” Id. at 1144-45.1 Second, the

1 See Creative Tech., 61 F.3d at 702 (“While the scope of relief available in the High Court of Singapore may not be what [the plaintiff] envisioned when it filed its claim in the United States district court. the forum non conveniens doctrine does not reauire it to be so”): accord Alcoa S.S. Co. v. M/V Norkc Regent, 654 F.2d 147, 159 (2d Cir. 1980) (“thk prospect of a iesser recovery does not justify

(Continued.. .)

5 R I P L Y hlE\ lORANDLM OF DEFEYUDAN’iS-fLZER DOME KC. AUD BARRICK GOLD COI1POI1AI’IOI\’

IY SLPPORT OF DISMISSAL OX GKOLYDS O F FORUM YON C O K V E U I E W


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Province’s argument proceeds from a faulty premise: that a U S . court would allow the Province to

-ollect damages on behalf of the citizens of Marinduque, while a Canadian court would not. (See Opp.

at 3 1 .) In fact, Canadian courts would apply the substantive law of the Philippines to this issue, just as

a U.S. court would. (Fraser Decl. 77 9, 11; Wood Aff. (Doc. 56) 17 16-20.) To the extent that

Philippine law permits the Province to recover on behalf of its citizens, a Canadian court could award

such relief.*

The Province’s argument that a Canadian court is unlikely to award affirmative injunctive relief

(Opp. at 30) also fails for at least two reasons. First, because the Province may recover damages in

Canada, the lack of an injunctive remedy would not render that forum inadequate. In Nut? Hockey

League Players ’Ass ’n v. Plymouth Whalers, a case on which the Province relies, the court made clear

that the lack of an injunctive remedy would not render a Canadian forum inadequate ifthe plaintiff had

a claim for damages:

[I]t is beyond dispute that injunctive relief is not available to Plaintiff under the [Canadian]

Competition Act. Defendant is correct that, pursuant to Piper, the absence of that specific type

of relief is not controlling so long as Plaintiff has another remedy.

166 F. Supp. 2d 1155, 1164 (E.D. Mich. 2001) (cited in Opp. at 20) (emphasis added). Because the

plaintiff in that case had not claimed damages, the court concluded that the plaintiff had no remedy

under Canadian law. Id. In the present case, where the Province has claimed damages and it is

:...Continued)

refusing to dismiss on the ground offorum non conveniens”; upholding dismissal that reduced plaintiffs potential damages to $570,000 from $8 million).

Even if Canadian law governed (which it does not), British Columbia v. Canadian Forest Products, Ltd. (Zivot Aff, (Doc. 183) Ex. L), which the Province cites for the proposition that ,‘Canadian common law does not currently permit Provincial governments to recover damages for ‘public’ injuries” (Opp. at 30-31), did not decide whether a province could seek damages for injury to public lands. The court did conclude, however, that “there is no legal barrier to the Crown suing for :ompensation . . . on account of public nuisance, or negligence causing environmental damage to public lands.” (Zivot Aff. Ex. L at 23-26.)

. . . .- -. . 6

IN SI:PPOKI‘OF DIS.MISSAL OX GROUk’DS OF FORU.\I NON CONVENIENS REPLY MEMORANDIN 01; DEFENDANTS PLACER DO~IERC. A~?D BARRICK GOLD CORPORATION -


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undisputed that Canadian law provides a damages remedy, the lack of an injunctive remedy does not

render Canadian courts inadequate.

Second, the lack of an injunctive remedy in Canada does not favor this Court’s retention of

jurisdiction because, due to concerns of sovereignty and impracticability, U.S. courts are as unlikely to

grant such relief as Canadian courts. US. courts exercise the power to enjoin a party “from

committing acts elsewhere . . . with great reluctance when it will be difficult to secure compliance with

any resulting decree or when the exercise of such power is fraught with possibilities of discord and

conflict with the authorities of another country.” Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633,

647 (2d Cir. 1956); see Bano v. Union Carbide Corp., 361 F.3d 696, 708,717 (2d Cir. 2004)

(injunction requiring environmental remediation in Bhopal, India would be infeasible because the court

did “not wish to direct a foreign government as to how that state should address its own environmental

issues”); In re Agent Orange Prod. Liab. Litig. 373 F. Supp. 2d 7,45 (E.D.N.Y. 2005) (“Requests for

extratemtorial injunctions often raise serious concerns for sovereignty and enforceability which

compel denial”). Moreover, a US. court would be unlikely to award the requested injunctive relief

because Defendants do not own, control, or have access to the sites to be remediated. As the Province

acknowledges, PDI long ago divested itself of any interest in Marcopper. (Opp. at 16.) In Bum, the

court upheld dismissal of a claim for injunctive relief based on the district court’s concern that the

defendant “would have no control over any remediation process ordered.” 361 F.3d at 708.

B.

The Province’s contention that restrictions on discovery in British Columbia “absolutely”

Differences In Discovery Procedures Do Not Render Canadian Courts Inadequate

render it an inadequate forum (Opp. at 27) is incorrect. In Piper, the Supreme Court noted that the

circumstances in which an alternative forum would offer an unsatisfactory remedy are “rare,” even

though “discovery is more extensive in American than in foreign courts.” 454 U.S. at 255 n.22,252

n.18. In Lockman, the Ninth Circuit upheld the district court’s finding that “Japanese discovery

procedures, though not identical to those in the United States, would be adequate.” 930 F.2d at 768;

see Zipfel v. Halliburton Co., 832 F.2d 1477,1484 (9th Cir. 1987) (Singapore was an adequate forum

even though “depositions are allowed only in certain circumstances”). Even Mercier v. Sheruton Int ’I,




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Inc., 981 F.2d 1345, 1352-53 (1st Cir. 1992), a case upon which the Province relies, held: “The case

law is clear that an alternative forum ordinarily is not considered ‘inadequate’ merely because its

courts afford different or less generous discovery procedures than are available under American

ru1es.3’3

British Columbia provides more than adequate discovery procedures. The Province complains

that, absent leave of court, British Columbia rules provide for the deposition of only one corporate

representative (Opp. at 23), but fails to inform this Court of the full extent of such depositions. The

Province’s expert, Lou Zivot, admits that British Columbia rules provide for a discovery deposition of

a corporate party. (Zivot Aff. fi 11 .) As Defendants’ expert, Paul Fraser, elaborates, the examining

party may choose the corporate representative to be deposed and may require the representative to

obtain the separate recollections of corporate employees - and former employees - who were

witnesses to relevant events. The examining party may repeatedly suspend the deposition to allow the

representative to obtain such recollections and other information within the knowledge of the corporate

party to be reported under oath at a subsequent session. (See Fraser Decl. 7 5.) In practice, these rules

enable the examining party to obtain all the relevant information in the possession of a corporate

defendant.

British Columbia practice also provides for informal and formal discovery of non-parties. Any

material non-party witness in British Columbia who declines to provide a “responsive statement” in

response to an informal request can, under Rule 28 of the Rules of Court, be compelled by court order

to submit to cross-examination for purposes of discovery. (Zivot Aff. 77 18,22; Fraser Decl. 76.)

Although Mr. Zivot states that a formal discovery procedure under Rule 28 is not a “common

3 See In re Air Crash over the Taiwan Strait on May 25, 2002,331 F. Supp. 2d. 1176,1187 (C.D. Cal. 2004) (Taiwan was an adequate forum even though it does not permit any pre-trial discovery); Fustok v. Banque Populaire Suisse, 546 F. Supp. 506, 515 n.32 (S.D.N.Y. 1982) (discovery limits do not render alternative forum inadequate unless “its procedures are so deficient as to be wholly devoid af due process”) (quoting Alcoa, 654 F.2d at 159 n.16); Marra v. Papandreou, 59 F. Supp. 2d 65,73- 74 (D.D.C. 1999) (Greece “is not inadequate because of asserted deficiencies in its discovery rules generally or its documentary discovery rules in particular” and “[Flederal courts around the country wenvhelmingly agree that a foreign court’s restrictive discovery or procedural rules do not render that forum inadequate”).

8 _ _ _ .- KEPLY MEMORAI\DI’\l O F DEFENDANTS PLACER DOhlE INC. AND BAKIUCK GOLD CORPORA’I’ION

IN SIJPI’OICI‘OF DISMISSAL O N GKOLNDS 01: FORUM YON COn’VENIENS


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occurrence,” he fails to explain that such a procedure is ordinarily not necessary because non-parties

typically agree to provide the discovery informally. An order for a formal examination will generally

issue as a matter of course if such informal discovery is not forthcoming. (Fraser Decl. 7 6.) Thus, if

this action were to proceed in British Columbia, the Province would have a mechanism for obtaining

relevant information from non-party witnesses such as Klohn Crippen, the Vancouver-based

engineering firm that, according to the Province, has “essential” information. (Opp. at 24.)

The Province’s concern about obtaining testimony from witnesses in the United States (Opp.

25-26) is fully addressed by British Columbia Rule 38, which, as the Province’s own expert

acknowledges, provides parties with the ability to obtain depositions of witnesses outside the country.

(Zivot Aff. 11 29-31, 35.) For witnesses in another country, the rule provides a procedure, which is not

particularly complicated or difficult, for obtaining letters of request seeking assistance of the foreign

courts in securing the desired testimony. (See Fraser Decl. 7 7.) Philippine courts are as likely to

honor such a letter of request from Canada as a request from the United States. (Agabin Reply Decl.

n 3.)

The Province attempts to minimize the pre-trial procedures in British Columbia by repeatedly

raising a purported distinction between “discovery depositions” and trial depositions. (See Opp. at 25-

26.) That distinction has no significance here. Because no material witnesses reside in Nevada - ie. ,

within the subpoena power of this Court - if the action were to proceed in this forum, the Province

could not compel any witnesses - even those who reside in other parts of the United States - to testify

other than by deposition. Nor could the Province expect to take more than one deposition of each such

witness. Thus, whether a deposition is labeled a “discovery” or “trial” deposition is immaterial and

provides no basis for concluding that British Columbia discovery procedures are inadequate.

C. The “Loser Pays” Rule Does Not Render Canadian Courts Inadequate

While the Province’s professed concern regarding Canada’s “loser pays” rule (Opp. at 29)

reveals much about its own assessment of the merits of its case, the rule does not render a Canadian

forum inadequate. In Van Der Velde v. Philip Morris Inc., the court, citing Piper, rejected the

plaintiffs argument that the English legal system is inadequate because it requires an unsuccessful

a REPLY \lEhlORANDI.’M OF DEFENDANTS PLACER DO\IE INC AND BARRICK GOLD CORPORATION

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itigant to pay the opponent’s legal fees:

Plaintiffs complaints regarding . . . the requirement that a losing party pay her opponent’s fees

do not concern the adequacy of available remedies. Moreover, the Piper Court specifically

noted that “unlike most foreign jurisdictions, American courts . . . do not tax losing parties with

their opponents’ attorney’s fees” as [a] reason[] why American courts are “already extremely

attractive to foreign plaintiffs.” Piper, 454 US. at 252 n.18. It is illogical to conclude that the

Piper Court meant to exclude as alternative forums all jurisdictions that do not include those

features which make American courts attractive to foreign plaintiffs.

go. 02 Civ. 783 (BSJ), 2004 US. Dist. LEXIS 246 at *8-9 (S.D.N.Y. Jan. 9,2004); see In re Air

Trash, 331 F. Supp. 2d at 1187 (possibility that plaintiffs may be held liable for defendant’s litigation

:osts does not render Taiwan an inadequate forum); Kilvert v. Tambrands, Inc., 906 F. Supp. 790,796

S.D.N.Y. 1995) (“American courts . . . dealing with this so-called ‘English Rule’ [requiring the losing

)arty to pay the victor’s attorney fees and costs] . . . in the context offorum non conveniens have not

tfforded it much weight”).

In any event, the costs that may be shifted to the Province if Defendants prevail in a Canadian

orum would not render that forum inadequate. As the Province’s expert concedes, except in cases of

‘reprehensible” conduct, costs awarded under British Columbia practice are not intended to reimburse

t party for actual attorneys’ fees. (Zivot Aff. 77 58-59.) Usually, costs are awarded pursuant to a

letailed “tamfr’ of permissible costs, which are far less than the parties’ fees. (See id., Ex. I.) Indeed,

vlr. Zivot estimates that the costs “for a lengthy, complex case, with large disbursement costs” would

)e “several hundred thousand dollars or more.” (Id. 7 61 .) The Province could easily spend such a

,urn litigating this Court’s personal jurisdiction over Defendants - an expenditure that would be

[voided entirely if the case proceeded in Canada. Even before the commencement of discovery or the

esolution of motions to dismiss, the Province has reportedly incurred legal fees and expenses in this

:ase exceeding $3.4 million. (Exhibit B.) Any suggestion that the risk of incurring additional costs of


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,‘several hundred thousand dollars” would deprive the Province of a remedy is simply not credible.

Accordingly, Canadian courts provide an adequate alternative

THE PROVINCE’S CHOICE OF FORUM IS ENTITLED TO LITTLE OR NO

DEFERENCE

The Province admits that it “is unquestionably a non-U.S. citizen, a non-resident of Nevada,

111.

and therefore a ‘foreignpZaintijJ”’ (Opp. at 10 (emphasis added).) The case law is equally

unambiguous: “a foreign plaintijf s choice deserves less deference.” Piper, 454 U.S. at 256; see

Leetsch, 260 F.3d at 1103 (“we give less deference to a foreign plaintiff‘s choice of a United States

f0mm”).5 This lack of deference is highly significant in the balancing of private and public interest

factors relevant to forum non conveniens; courts have not hesitated to dismiss cases brought by foreign

plaintiffs?

4 The cases cited by the Province in which Canadian courts were found inadequate are inapposite because they turned on specific differences of law that are not implicated here. For example, several of the cases were securities class actions in which the court noted that Canada lacked well-developed class action procedures. See Derensis v. Coopers & Lybrand Chartered Accountants, 930 F. Supp. 1003 (D. N.J. 1996); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003); Traflon v. Deacon Barclays De Zoete Wedd, Ltd., No. C-93-2758-FMS, 1994 WL 746199 (N.D. Cal. Oct. 21,1994). In other cases, specific statutory differences left the plaintiff without a remedy in Canada. See, e.g., National Hockey League, 166 F. Supp. 2d at 1155 (difference between Sherman Act and Canadian Competition Act left plaintiff without a remedy in Canadian forum).

5 The cases cited by the Province for the proposition that a foreign plaintiffs choice of forum is entitled to greater deference when the defendant has a “substantial presence” in the forum (Opp. at 12) are inapposite. In Mercier, the court affirmed dismissal for forum non conveniens even though a US. plaintiffhad selected a U.S. forum. 981 F.2d at 1355. Similarly, in Mutual Export Corp. v. Westpac Banking Corp., 742 F. Supp. 161, 162 (S.D.N.Y. 1990), the plaintiff was not “foreign”; it was “a Delaware corporation with its principal place of business in Roseland, New Jersey.” In Lony v. E.I. Dupont de Nemours & Co., 935 F.2d 604,606 (3d Cir. 1991), the forum selected by the plaintiff was the defendant’s state of incorporation and the location of its principal place of business. Here, Defendants are incorporated in and maintain their principal places of business in Canada. 6 See Sinochem, 127 S . Ct. at 1188-89 (Malaysian plaintiff dismissed by Pennsylvania court); Piper, 454 U.S. at 235 (representative of Scottish decedents dismissed by Pennsylvania); Canada Malting Co. v. Paterson S.S. Ltd., 285 U.S. 413 (1932) (Canadian plaintiff dismissed by New York); Leetsch, 260 F.3d at 1100 (German plaintiff dismissed by California); Creative Tech., 61 F.3d at 696 (Singapore plaintiff dismissed by California); Lueck, 236 F.3d at 1137 (New Zealand plaintiffs dismissed by Arizona); Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983) (predominantly Taiwanese and Japanese plaintiffs dismissed by California); Paper Operations Consultants Int ’1, Ltd. v. S.S. Hong Kong Amber, 513 F.2d 667 (9th Cir. 1975) (Bahamian plaintiff dismissed by California); Zipfel, 832 F. Supp. at 1477 (“foreign seamen” dismissed by California).

.- . . - .- _- I I REP1.Y MEMORANDUhI O F DEFENDANTS PLACER DOME INC. AND RARRICK GO1.D CORPORATION

M SUPPORT O F DISMISSAL ON GKOUKIIS 01; FORUM NON CONVENIENS


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IV. THE RELEVANT PRIVATE INTEREST FACTORS FAVOR DISMISSAL

A. It Is Undisputed That The Testimony Of Witnesses Located In Canada Is Material

And Important

The Province cannot deny that several former officers of Marcopper and managers of the

Marcopper mine are located near Vancouver, where PDI was based until its recent acquisition by

Barrick. (Mem. at 5-6.)7 According to the Province’s own Complaint, these are the very individuals

who made the day-to-day operational decisions that allegedly resulted in the environmental harms of

which the Province complains. Nor can the Province deny that John Willson, PDI’s former President

and CEO, is located in Vancouver. (Id.) Mr. Willson’s role is so significant that, even in its

opposition to this motion, the Province cannot avoid citing his letters and decisions. (See Opp. at 15.)

The Province also identifies Klohn Crippen, a Canadian engineering firm that issued reports

concerning the Marcopper mine, as a non-party witness whose “current and former directors, officers

and employees” allegedly posses information “essential” to the Province’s claims. (Id. at 24.)

In a Canadian court, these crucial witnesses, and any other material witness located anywhere

in Canada, could be compelled to testify live at trial. (Fraser Decl. 7 3.) Because these witnesses are

not in Nevada, this Court could not compel them to appear live at trial. Indeed, the Province has not

identified any material non-party witnesses in Nevada, so this Court could not compel any such

witnesses to appear live at trial. In analyzingforum non conveniens motions, courts have placed great

weight on the availability of live testimony from key witnesses. In Canada Malting, the Supreme

Court, in affirming the dismissal of a case between two foreign parties in favor of a Canadian forum,

observed:

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REPLY MEMOR,\NDUhl OF DEFESDAN’IS PLACER DO.ME IKC. AUD BARRI(:K GO1.D CORPORATION IK SUPPORT OF I)IS.MISS,\I. ON GROUNDS 01: i-OIIUM YON CONVESIENS

- . - . HOWREY LLP

7 While the Province does not actually dispute the locations of the witnesses identified in the affidavit submitted in support of PDI’s original motion to dismiss (Henderson Decl. (Doc. 54)), the Province correctly pointed out that one of the witnesses identified therein, Garth Jones, has died. This prompted Defendants to provide an updated affidavit from Barrick’s Senior Compensation and Mobility Consultant, based on Defendants’ most current business records, confirming that the vast majority of the witnesses previously identified as living in British Columbia or Canada still live there. (See Baker Decl. 7 3.)


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All the parties were not only foreigners, but were citizens of Canada. . . . The officers and crew

of each vessel -the material witnesses -were citizens and residents of that country; and so

would not be available for compulsory attendance in the District Court.

285 U.S. at 423 (emphasis added); see Howe v. Goldcorp Inv., Ltd., 946 F.2d 944,952 (1st Cir. 1991)

(dismissing in favor of Canadian forum where, unlike U.S. courts, Canadian courts could compel

attendance of potential witnesses in Canada; “Compulsory process would seem especially important”

because “live testimony of witnesses for purposes of presenting demeanor evidence [was] essential to a

fair trial”).8

B. The Testimony Of Witnesses Located In The United States Is Less Material And

Less Important

The Province’s argument regarding the location of witnesses - which is based largely on a

purported quantification of the number of former Marinduquefios currently residing in the United

States (Opp. at 39) -reflects a fundamental misunderstanding of this factor. The Ninth Circuit has

instructed that, “rather than focusing on the number ofwitnesses in each location, the district court

‘should . . . examine[] the materiality and importance of the anticipated witnesses’ testimony and then

determine[] their accessibility and convenience to the forum.”’ Gemini Capital Group, Inc. v. Yap

Fishing Corp., 150 F.3d 1088, 1093 (9th Cir. 1998) (quoting Gates Learjet Corp. v. Jensen, 743 F.2d

1325, 1335 (9th Cir. 1984)) (emphasis added). The fact that these witnesses, by definition, do not even

live in Marinduque limits the materiality and importance of their testimony; the Court would likely

receive the testimony of few, if any, such witnesses. Although a handful of these witnesses are

purportedly former Marcopper employees (Opp. at 37), the Province provides no information as to the

nature of that employment or their role in any environmental incidents. This contrasts sharply with the

former Marcopper mine managers and PDI officers who live in Canada and whose alleged role is

* preference for live testimony”; granting motion to dismiss forforum non conveniens); Strategic Value Master Fund v. Cargill Fin. Sews., Corp., 421 F. Supp. 2d 741,769 (S.D.N.Y. 2006) (“Given. . . the general preference for live testimony, the Court finds that this factor [availability of compulsory process] weighs heavily in favor of dismissal”).

See also Gilstrap v. Radianz Ltd., 443 F. Supp. 2d 474,488 (S.D.N.Y. 2006) (“there is, of course, a

-. . .. . 13 REPLY hlEMOR,\NDUM OF fi%~l?kf)~k?~ PLACER DOhlF INC. /\XU F A k l C K GOLD (:ORPORATION

IN SIJPPORT OF DISMISSAL ON GROI.YDS OF FOKI.’\I NON CONV1:NIENS


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specifically detailed in the Province’s Complaint. The presence of certain bank and insurance

company personnel in the United States (Opp. at 40) is similarly of little moment; the testimony of

such witnesses is irrelevant to principal issues in the case - the cause and extent of any environmental

harm.

The Province’s reliance on the presence of three current Barrick directors located in the United

States (Opp. at 37) is misplaced. The Province does not and cannot make any showing that these

individuals have any relevant knowledge of the alleged environmental incidents in Marinduque. Even

if the testimony of Barrick’s board members were relevant, 11 of Barrick’s 16 board members,

including the Chairman, are located in Canada, compared to only three in the United States. (Baker

Decl., Ex. A) All of Barrick‘s senior executives are based in the company’s corporate headquarters in

Toronto. (Baker Decl., 7 6.)

The Province’s contention that “hundreds” of employees of Defendants’ Nevada subsidiaries

could “testify as to the ways in which the parent company wholly controls the operations of its

subsidiaries” (Opp. at 37) is utterly irrelevant. In effect, the Province attempts to conflate the alter ego

analysis - which would be relevant to a determination of personal jurisdiction over Defendants -with

theforum non conveniens analysis. The whole point of Sinochem, however, was to counsel avoidance

of such jurisdictional issues in resolvingforum non conveniens motions. See 127 S. Ct. at 1194.

The Province also places excessive weight on the location of certain physicians and U.S.

Geological Survey personnel (see Opp. at 39-40) -witnesses whose testimony is in the nature of

expert evidence. Indeed, the Province acknowledges “the large number of potential expert issues in

the case.” (Id. at 28.) The location of experts, however, is accorded minimal weight in theforum non

conveniens analysis. See, e.g., Garcia v. FordMotor Co., No. 4:02CV001319 RWS, 2003 U.S. Dist.

LEXIS 27370, at * 14 (E.D. Mo. July 7,2003) (“Expert witnesses will appear wherever they are

requested to appear by their client. Inevitably these experts will travel regardless of the forum.”);

Potomac Capital Inv. Corp. v. KLM, N.V., No. 97 Civ. 8141 (AJP), 1998 U.S. Dist. LEXIS 2343, at

*22 (S.D.N.Y. Mar. 3, 1998) (location of experts “entitled to little weight”); Magnetic Eng’g & Mfg.

Co. v. Dings Magnetic Separator Co., 86 F. Supp. 13, 17 (S.D.N.Y. 1949) (“[tlhe residence of expert

14

IN SIJPPORT OF DISSIISSAI. ON GROUNDS OF FORL’SI NON CONVENIENS

_ _ REPLY h1EMORANDUSI OF DFFI:UD,\NTS PI.ACER DOSIE N C . A N ) HARKICK GOLD CO*%Ti6<-


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witnesses cannot be considered as controlling, or even of great importance, in determining questions of

forum non conveniens”), modified on other grounds, 178 F.2d 866 (2d Cir. 1950).9

C.

It is obvious that a Canadian judgment would he easier to enforce against Defendants, which

A Canadian Judgment Would Be Easier To Enforce

are both Canadian corporations, than a U.S. judgment. The Province’s argument that there are a

“plethora” of Barrick assets in Nevada against which a judgment could be enforced (Opp. at 42) fails

to recognize that the tangible and liquid assets upon which the Province relies - “millions of dollars

each year from sales of Nevada gold” - are owned, not by Barrick, but by separately incorporated U.S.

subsidiaries. (See Veenman Decl., 77 2-10.) A judgment against Defendants could be enforced against

these separate corporate entities only if the Province makes the formidable showing necessary to

disregard the corporate form of these entities - a showing it cannot make. See, e.g., Kutzir’s Floor &

Home Design, Inc. v. M-MLS.com, 394 F.3d 1143, 1149-50 (9th Cir. 2004) (party was improperly

added to a judgment against a corporation where the court failed to correctly apply the “limited

doctrine[s]” of alter ego and veil piercing); Ministry of Defense of the Islamic Republic of Iran v.

Gould, Inc., 969 F.2d 764, 768 (9th Cir. 1992)(rejecting alter ego theory as basis to add corporation to

action to enforce arbitration award).

In fact, as the Province notes in its Complaint, Barrick has numerous separate US . and Nevada

subsidiaries. (See TAC 7 95 (citing “at least 16 . . . subsidiaries registered to do business in Nevada”).)

To attach gold production in Nevada based on ajudgment against Barrick, the Province would have to

pierce several layers of US. subsidiaries. For example, the Goldstrike mines cited by the Province

(TAC 77 80-83,95), are owned by Barrick Goldstrike Mines, Inc., a Colorado corporation, which is a

3 The Province does not deny that documents relevant to PDI’s actions and decisions relating to the Marcopper mine are located in Canada and does not suggest that any such documents are located in Nevada. While the Province does identify certain categories of documents that might be found elsewhere in the United States (if they exist) (Opp. at 41-42), such documents either relate to ancillary issues (e.g., insurance and banking records) or likely consist of small, isolated collections (e.g., “records in the possession of former Marcopper employees living in the U.S.”). In any event, Canadian discovery procedures are sufficient to obtain such documents in the United States for use in Canadian litigation. (Fraser Decl. 7 7.)

1 z 1,

KEPLY MEhlORAYDL‘M-OF D t F t N D A Y l S PI.ACTR DOME NC. AND BAlU?lCK GOLD (:ORPORATIOI\’ ’’.

lh’ SI.’PPOKI‘OF DIS\IISSAL ON ( i R O W D S OF FORllM NON CONVEYIENS


http://M-MLS.com

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subsidiary of Barrick Gold Exploration, Inc., a Delaware corporation, which is, in turn, a subsidiary of

ABX Financeco, Inc., a Delaware corporation, which is a direct subsidiary of Barrick. (Veenman

Decl., 7 5.) The Province’s glib suggestion that this Court will determine whether each of Defendants’

U.S. and Nevada “subsidiaries act as Banick’s agents andor alter egos” in the course of ruling on

personal jurisdiction (Opp. at 43) merely illustrates the complexity and scope of the jurisdictional

issues in this case. A Canadian court executing a judgment against Defendants would not confront any

of these issues. Under these circumstances, Sinochem counsels dismissal onforum non conveniens

grounds.

* * *

The relevant private interest factors, including the convenience of witnesses, availability of

compulsory process, and enforceability of any judgment, strongly favor a Canadian forum.

V. THE RELEVANT PUBLIC INTEREST FACTORS FAVOR DISMISSAL

A.

The Province does not contend that U.S. law governs this case. Rather, it goes to great

The Applicable Law Favors A Canadian Forum

lengths - including an extensive discussion and multiple affidavits concerning the historical

relationship between the Philippines and the United States - in a misguided effort to show that U.S.

courts are better suited than Canadian courts to apply Philippine law. The number ofjudges in the

United States or in Canada who have applied Philippine law in the past will make no difference to the

one judge who will preside over this case. In either forum, Philippine law must be presented and

applied with the aid of expert testimony. There is no basis for concluding that a British Columbia

judge will be unable to understand or properly interpret such testimony or the legal materials that

support it. Moreover, even if, as the Province argues, Philippine law sometimes looks to US.

precedent for guidance, Canadian courts are certainly up to the task of understanding and applying the

relevant law. Canadian courts often apply U.S. law, and British Columbia judges are comfortable

doing so. (Fraser Decl. 7 8.)

On the other hand, as the Province concedes, Canadian courts are certainly better suited than

U.S. courts to apply Canadian law (see Opp. at 46), which, as the Province’s own choice of law

16 IlEPLY \IE\fORANDL.M OF DEFESDANTS PL,\CER DOXIE IKC. AND BARRICK GOLD CORPORATION

IN SIIPPORT OF DISMISSAI. ON GROLYDS OF FORUhl YON CONVENIENS

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argument demonstrates, will govern some of the issues in this case. Specifically, the Province asserts

that whether a corporation’s “veil” may be pierced will depend on the “local law of the state of

incorporation.” (Opp. at 50 (citing Restatement (Second) of Conflict of Laws).) During a portion of

the relevant time period, PDI held its minority shareholding interest in Marcopper indirectly through a

Canadian subsidiary. (TAC 71 15 (“in approximately 1994, and following the Mogpog River Disaster

. . . Placer Dome transferred its Marcopper shares to a wholly-owned subsidiary, Placer Copper

Holdings, Inc., a Canadian corporation”).) Thus, Canadian law will govern the Province’s crucial

allegation that PDI was Marcopper’s alter ego.

B.

It is undisputed that Nevada lacks any connection to any of the relevant events in this case, all

Nevada Has No Interest In This Controversy

of which allegedly occurred in the Philippines or Canada. The Province’s assertion that Barrick,

through subsidiaries, has “substantial mining operations” in Nevada - operations unrelated to the cause

of action -provides no justification for this Court to accept the gargantuan task of adjudicating the

claims presented by this foreign plaintiff against foreign defendants involving events allegedly

occurring in another country. See, e.g., Creative Tech., 61 F.3d at 704 (presence of defendant’s

wholly-owned subsidiary in the forum “influences [theforum non conveniens] analysis very little”);

Arsape S.A. v. JDS Uniphase Corp., No. C 03-4535 JW, 2004 U.S. Dist. LEXIS 24270, at *18-19

0’J.D. Cal. July 29,2004) (California had no interest in suit involving an Ontario facility and a foreign

company, even though California was defendant’s principal place of business); Potomac Capital, 1998

U.S. Dist. LEXIS 2343, at *34-35 (“The fact that KLM is registered as a foreign corporation in New

York and has its American headquarters here is of no consequence in this case, since the tort and the

resulting damage both occurred elsewhere”). Nor should the Court give credence to the Province’s

baseless speculation “on information and belief‘ (Opp. at 52) that PDI’s Philippine operations

somehow funded Defendants’ Nevada subsidiaries. Even if there were some support for this claim

(which there is not) it would be irrelevant because those subsidiaries have nothing to do with the cause

3f action.

1 ’ R E P L Y MFGORAKDUM OF DEFENDAKI‘S I’LACEK DOME IKC AND BARRICK GOLD CORI’OKA’I IOU

IN SUPPOKI‘OF DISMISSAL OK GROlNDS OF FOKL‘JI NON CONVENIENS


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While the ownership interest of a party in entities located in the forum - but unrelated to the

cause of action - does not confer on the forum an interest in the controversy, the presence of aparty or

conduct related to the cause of action definitelyprovides the forum with a local interest in the case.

See Piper, 454 US. at 260-61 (“Scotland has a very strong interest in this litigation. . . . All of the

decedents were Scottish. . . . The American interest in this accident is simply not sufficient to justify

the enormous commitment ofjudicial time and resources that would inevitably be required if the case

were to be tried here”).’O Because both Defendants are Canadian and some of the wronghl conduct is

alleged to have occurred in Canada, the local interest in this controversy overwhelmingly favors

litigation in Canada.

* * *

In sum, the relevant public interest factors, including the applicable law and local interest in the

controversy, strongly favor a Canadian forum.

VI. THE NINTH CIRCUIT AUTHORITY CITED BY THE PROVINCE DOES NOT

SUPPORT RETENTION OF JURISDICTION

In response to the overwhelming Supreme Court and Ninth Circuit authority cited by

Defendants, the Province cites only three cases in which the Ninth Circuit affirmed the denial of a

motion to dismiss forforum non conveniens, or reversed the granting of such a motion. Each of those

sases is easily distinguishable. In Tuazon, theplaintiff brought suit in the forum in which he resided.

433 F.3d at 1178 n.6 (“a resident alien such as Tuazon is entitled to the same deference as a citizen.

[Citation omitted.] Tuazon is not a ‘foreign’ plaintiff”). This favored the plaintiffs forum,

Washington state, which “has a strong interest in ensuring the welfare of its residents.” Id. at 11 82.

Here, because the Province is undisputedly a foreign plaintiff, Nevada has no such interest.

lo See also Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163,1182 (9th Cir. 2006) (“Tuazon wides in Washington [State], which has a strong interest in ensuring the welfare of its residents”); Creative Tech., 61 F.3d at 704 (public interest weighed “in favor of dismissal because both principal ?arties are residents of Singapore and the alleged wrongful acts . . . occurred there”); Lueck, 236 F.3d it 1 147 (“the interest in New Zealand regarding this suit is extremely high. The crash involved a New Zealand airline carrying New Zealand passengers. . . . Because the local interest in this lawsuit is :omparatively low, the citizens of Arizona should not be forced to bear the burden of this dispute.”).

IS...- REPLY MEMORANDIJ\I OF DEFENDANIS PLACER DOhlE INC. .2KD BARRICK GOLD COF$’OIUTIOK

IN SUPPORT OF DISMISSAL ON GROIJh’DS OF FORUM NUN CONVENIENS


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28 HOWREY LLP

Furthermore, the defendant corporation in Tuazon resided in the United States, making the plaintiffs

forum more convenient for the defendant as well. Id. at 11 80. Here, Canadian courts are a more

convenient forum for the Defendants, which are Canadian corporations. In Tuazon, the Ninth Circuit

ruled that “[plroof of [defendant’s] participation in a global conspiracy likely will be in North Carolina

and other United States locations.” Id. at 1 18 1. Here, no evidence of Defendants’ alleged decisions or

actions with respect to Marcopper is located in the United States; such evidence is, however, located in

Canada. In Tuazon, the court concluded: “In this global and mobile age, we should expect to face

controversies arising from activities originating in the United States but played out in distant lands.”

Id. at 11 82 (emphasis added). Tuazon is inapposite here because the present controversy did not arise

from any activities originating in the United States.

Similarly, in Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir. 1984), the court

focused on “two important and relevant private interest factors,” neither of which is present here.

First, the plaintiff was “a United States citizen and a resident of Arizona,” the plaintiffs chosen forum.

Id. Here, neither of the Defendants is a United States citizen or a resident of Nevada. Second, in

Gates, the discovery deadline had passed and “the parties were ready for trial” in Arizona when the

district court dismissed the case forforum non conveniens. Id. Here, merits discovery has not even

commenced and the parties are far from being ready for trial.

Monegro v. Rosa, 21 1 F.3d 509,510-14 (9th Cir. 2000), is distinguishable from this case

because the defendants, the San Francisco Giants and two of its agents, were located in the plaintiffs’

chosen forum (Northern California), the dispute related to contracts to play baseball, possibly in San

Francisco, and it was “not clear that [one of the defendants] would appear, or could be compelled to

appear, in [the alternative forum].” Id. at 514. Here, by contrast, neither of the Defendants is located

in Nevada, the dispute does not relate to any activity in Nevada, and the Defendants have agreed, and

can be compelled, to appear in Canada.

Sinochem, Piper, and the numerous Ninth Circuit cases cited by Defendants - each of which

bears far greater factual similarities to the present case than any of the authorities cited by the

Province - compel dismissal of this action in favor of a British Columbia or Ontario forum.




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CONCLUSION

For the reasons set forth above and in Defendants’ opening brief (Mem.), the Court should

lismiss this action without prejudice under the doctrine offorum non conveniens.

Respectfully submitted,

IOWREY LLP dark Wegener, Esq. (admittedpro hac vice) !dward Han, Esq. (admittedpro hac vice) dartin Cunniff, Esq. (admittedpro hac vice) 299 Pennsylvania Avenue, N.W. Nashington, DC 20004-2402 relephone: (202) 783-0800 ’acsimile: (202) 383-6610

PCIOR~~I~~ICKERING & PETERSON Steve Moms, Esq. (Bar No. 1543) Rex Gamer, Esq. (Bar No. 9401) 300 S. 4” Street, Ste. 900 Las Vegas, NV 89101 Telephone: (702) 474-9400 Facsimile: (702) 474-9422

20 RII’LY hlE\lOlt\NL)UM OF L)EI:ENL)%?TS PLACER DOME N C AND BARRICK G O I . ~ ~ ~ O ~ I l d N

IU SUI’I’OKI’OI: 1)ISMISSAI. ON GROIJNDS OF FORL‘M YOY CONVEYIENS

. . .- - .. . -. . . . . .. .. . . . . . . . .


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CERTIFICATE OF SERVICE

Pursuant to Fed. R. Civ. P. 5(b) and Section IV of District of Nevada Electornic Filing

'rocedures, I certify that I am an employee of MORRIS PICKERING & PETERSON, and that the

ollowing documents were served via electronic service: REPLY MEMORANDUM OF

)EFENDANTS PLACER DOME INC. AND BARRICK GOLD CORPORATION IN

SUPPORT OF DISMISSAL ON GROUNDS OF FORUM NON CONVENIENS

r0:

'atrick G. Byme NELL 5z WILMER, LLP 1800 Howard Hughes Parkway hite 1000 ,as Vegas, NV 89109 relephone: (702) 784- 5201 :acsimile: (702) 784-5252 %mail: [email protected]

illan B. Diamond kic D. Madden ' m e s McCarthy Nalter J. Scott >IAMOND MCCARTHY TAYLOR FINLEY & >EE, LLP ,201 Elm Street, 34Ih Floor )allas, Texas 75270 relephone: (214) 389-5300 'acsimile: (214) 389-5399 !mail: emaddenO,diamondmccarthy.com 3mail: [email protected] :mail: [email protected]

Neil Peck John F. Kane SNELL & WILMER, LLP 1200 Seventeenth Street, Suite 1900 Denver, Colorado 80202 Email: jkane&wlaw.com Email: [email protected]

Dated this 23rd day of April 200;h , /i

By:

21

IN SUPPORT 01; DISMISSAL ON GROl NDS 01; FORUM YON CCJNVENII3iS

- IlEPLY ME\lORAhl lUM 01; DEFENDANTS I'I.ACTI?-ll?%~E INC. AND BARRICKCOLD CORPORATIC?<-


mailto:[email protected]

http://emaddenO,diamondmccarthy.com


http://jkane&wlaw.com


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