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DynCorp and the “Plan Colombia” - The Class Action Lawsuit

 

Background

Media Reports

Legal Documents

Government Reports

Photo Credits

 

Background

 

“Ecuadorian Indians are taking legal action in federal court here, charging that a U.S. company contracted to carry out fumigation of illicit crops in neighbouring Colombia recklessly sprayed their homes and farms, causing illnesses and deaths, and destroying crops. U.S.-based attorneys representing 10,000 individuals living in the Amazon rainforest near the border with Colombia filed a class action complaint against Virginia-based DynCorp Corporation in federal court here Sep. 11. […] In addition to charging DynCorp with violating the Alien Tort Claims Act, the complaint alleges the company also breached the U.S. Torture Victim Protection Act, among others. It seeks millions of dollars in compensation and an immediate halt to spraying that allegedly affects Ecuador. […]”

 

Excerpt of an IPS article from September 24th, 2001.

Colombian Children standing in a destroyed crops field

 

Media Reports

 

November 21st, 2009 - Lloyd’s Appeals Ruling on Colombian Drug Eradication Liability

1 news article from Bloomberg News

 

July 19th, 2009 - US Role in Massive Aerial Herbicide Spraying Revealed

1 feature article from the Public Record

 

June 18th, 2009 - International Narcotics & Law Enforcement Affairs’ Office of Aviation

1 news article from Defense Update

 

February 27th, 2002 - Ecuadorian Farmers Fight DynCorp’s Chemwar on the Amazon

1 feature article from Counterpunch

 

September 24th, 2001 - Ecuadorians File U.S. Suit Over Plan Colombia

1 news article from Inter Press Service

 

July 5th, 2001 - Anti-Coca Fumigation Takes Toll in Border Area

1 news article from Inter Press Service

 

May 25th, 2001 - DynCorp in Colombia: Outsourcing the Drug War

1 news article from CorpWatch

 

March 1st, 2001 - Plan Colombia

1 feature article from the Nation

 

November 21st, 2000 - Plan Colombia: Fumigation Threatens Amazon, Warn Indigenous Leaders, Scientists

1 news article from Inter Press Service

 

 

Legal Documents

 

1) Venancio Aguasanta Arias, et al vs. DynCorp et al

2) Nestor Quinteros et al vs. DynCorp Aerospace Operations LLC et al

3) Nestor Quinteros & Venancio Arias et al vs. DynCorp et al

 

Case 3

Nestor Quinteros & Venancio Arias et al vs. DynCorp et al

U.S. District Court for the District of Columbia

Case No.: 1:07-cv-01042-RWR-DAR

Filed on August 29th, 2007/(This Case consolidates the other two cases)

 

July 7th, 2009 - Minute Order

 

“[…] For the reasons set for on the record at the 07/07/2009 hearing, Plaintiffs Motion to Stay and Extend the July 3, 2009 Deadlines […] is denied. For the reasons set forth on the record at the 07/07/2009 hearing, Part One of Defendants Motion for Enlargement of Discovery Deadlines […] is granted in part, and that (1) the deadline by which Defendants shall serve all documents responsive to Plaintiffs first of requests for production of documents is extended to 09/08/2009, and (2) the deadline by which Defendants shall serve all documents responsive to Plaintiffs second set of requests for production of documents is extended to 10/30/2009. Further consideration of Part Two of Defendants motion is stayed until a further status hearing before the undersigned, now scheduled for 3:00 p.m. on 07/24/2009. […]”

 

June 24th, 2009 - Defendants’ Motion to Dismiss the Three Provincial Plaintiffs

 

“[…] Defendants DynCorp, et al. (‘DynCorp’) hereby move pursuant to Fed. R. Civ. P. 12(c) to dismiss on the pleadings the claims of the three provincial government plaintiffs (‘Provinces’) in Quinteros, or, in the alternative, defendants move pursuant to Fed. R. Civ. P. 56 for summary judgment, because the Provinces have neither standing nor legal capacity to pursue their claims in this Court. The Provinces lack standing because (1) foreign governments do not have standing to bring parens patriae claims in U.S. courts and (2) the Provinces' derivative claims based on alleged personal injuries and property damages to provincial residents are too remote from the alleged conduct of which they complain. […]

 

“The Provinces also do not have the legal capacity to bring suit because Ecuadorian law does not authorize provincial governments to bring suit in U.S. court but instead vests such power solely with the central government through the office of the Attorney General. See Declaration of Andres Donoso-Calvo, attached hereto as Exhibit A. The Provinces’ lack of standing and legal capacity in this Court is further demonstrated by the fact that the Republic of Ecuador has elected to pursue identical claims against the Republic of Colombia in a proceeding pending before the International Court of Justice in the Hague. […]”

 

June 22nd, 2009 - Plaintiffs’ Response and Opposition to Defendants’ Motion

 

“[…] DynCorp seeks extensions of two discovery deadlines. Plaintiffs agree on the need for an extension of the overall fact discovery deadline, though they urge the Court to adopt a somewhat different period for that extension. No such agreement exists on DynCorp’s other desired extension - four full months to complete a long over-due document production. Although DynCorp refused Plaintiffs’ repeated requests to produce its responsive documents by a date certain, the Court rightfully gave DynCorp a deadline (July 3, 2009) in response to Plaintiffs’ Motion to Compel. DynCorp’s request for an extension of that deadline should be denied to prevent Plaintiffs from being further delayed in their ongoing efforts to take discovery from DynCorp. […]”

 

April 21st, 2009 - Joint Status Report

 

August 12th, 2008 - Plaintiffs’ Opposition to Defendants’ Motion to Compel Discovery

 

“[…] Defendants’ Motion to Compel must be denied in its entirety due to their blatant failure to comply in good faith with the meet and confer requirements of Fed. R. Civ. P 37 (a)(1) and L. Civ. R. 7 (m). As Plaintiffs have demonstrated that the parties in fact were in essential agreement on a revised schedule to allow Plaintiffs to address the technical problems that occurred in assembling their initial 800 responses to DynCorp’s questionnaire, and to fully respond to the total of 3,300 questionnaires, Plaintiffs respectfully request that their Proposed Order with this agreed schedule, filed concurrently herewith, be entered. As per Plaintiffs Proposed Order, Defendants should be directed to meet and confer in good faith with Plaintiffs on all remaining issues, and if they fail to reach agreement on any of those issues, a Joint Report shall be submitted to Magistrate Judge Robinson that indicates any issues in dispute, along with the parties’ competing positions. […]”

 

April 14th, 2008 - Defendants’ Answer to First Amended Consolidated Complaint

 

“[…] 1. The first sentence of Paragraph 1 of the Quinteros complaint requires no answer because it simply identifies the alleged basis for the plaintiffs’ claims. Nonetheless, DynCorp International admits that it has acted pursuant to its contracts with the United States government to assist with the aerial eradication of coca and poppy plants in the Republic of Colombia, and DynCorp International denies the remaining allegations in that sentence.

 

“The second, third and fourth sentences of Paragraph 1 are denied.

 

“[…] 3. In response to the first sentence of Paragraph 3, the defendants admit that this Court has diversity jurisdiction based on the alleged controversy between citizens and instrumentalities of a foreign state and the defendants, each of which is a citizen of a state in the United States of America (‘USA’).

 

“The defendants are without sufficient knowledge or information to admit or deny the allegations in the second sentence of Paragraph 3, but deny that the plaintiffs are entitled to any damages. […]”

 

April 3rd, 2008 - First Amended Consolidated Complaint

 

“[…] 5. There are approximately 3,200 individual Plaintiffs who have alleged personal injury and property damage claims against the DynCorp Defendants. Those Plaintiffs are herein collectively referred to as the ‘Individual Plaintiffs.’ Second, the Provinces of Provinces of Sucumbios, Carchi, and Esmeraldas have brought claims against the Defendants. These Plaintiffs are collectively herein referred to as the ‘Provincial Plaintiffs.’ […]

 

“[…] 11. Defendant DynCorp is fully liable for its own acts and the acts of any subsidiaries, units, divisions, or other entities directly or indirectly under its ownership and control, including, but not limited to, DynCorp AT, DynCorp TS and DynCorp International LLC, in relation to the unlawful acts herein. Further, any such subsidiaries, units, divisions, or other entities are alter egos of Defendant DynCorp, or alternatively, are in an agency relationship with it. Defendant DynCorp is also vicariously liable under the doctrine of respondeat superior for the acts or omissions of any subsidiaries, units, divisions, or other entities under its ownership and control, and for the acts of any employees or agents. […]”

 

August 29th, 2007 - Consolidated Complaint

 

“[…] 1. The claims in this action arise from Defendants’ conduct in connection with the implementation of their contracts with agencies of the United States and Colombian governments to exterminate, by the use of fumigants sprayed from airplanes and helicopters plantations of cocaine and/or heroin poppies in large tracts of the Colombian rainforest. During the course of implementing these contracts, Defendants also sprayed large sections of the Esmeraldas, Carchi, and Sucumbios provinces in Ecuador, across the border from Colombia, and caused severe physical and mental damages to Plaintiffs and their children. Furthermore, as a direct and proximate result of the cross-border spraying, the Provinces of Sucumbios, Carchi, and Esmeraldas have suffered damage to their natural resources and have expended, and will be required to expend in the future, funds to remediate the situation and to address their citizens’ health, security, and property. Plaintiffs have been subjected to serious and systematic damage to their persons and their property in violation of the Alien Tort Claims Act (‘ATCA’), 28 U.S.C. § 1350, international laws, treaties, conventions, resolutions, and the common laws of the United States, the District of Columbia, the Commonwealth of Virginia, the State of Texas, the State of Delaware, and/or the country of Ecuador. […]”

 

Case 2

Nestor Quinteros et al vs. DynCorp Aerospace Operations LLC et al

U.S. District Court for the Southern District of Florida (Ft. Lauderdale)

Case No.: 0:06-cv-61760-WPD

Filed on November 21st, 2006

 

May 22nd, 2007 - Order Granting Defendants’ Motion to Dimiss or Transfer

 

“[…] In sum, each of the factors except for the Plaintiffs’ choice of forum weighs in favor of the Defendants and in favor of transfer to the District of Columbia. However, with the exception of the public interest, each of the factors weighs only slightly in favor of transfer. While Washington D.C. is clearly a more convenient forum to try this case than is the Southern District of Florida, were the Plaintiffs not foreign and had the events giving rise to the suit not occurred so far from Florida, it would be a close question as to whether the Defendants had made the showing necessary to overcome the strong presumption in favor of the Plaintiffs’ choice of forum. However, because the foreign Plaintiffs’ choice is entitled to less deference under the facts and circumstances of this case, the Court finds that the Defendants have satisfied their burden and that transfer pursuant to § 1404 (a) is appropriate.

 

“Accordingly, it is ordered and adjudged that Defendants’ Motion to Dismiss or Transfer Pursuant to the First-Filed Rule or, in the Alternative, to Transfer Pursuant to 28 U.S.C. § 1404 (a) is hereby granted. The Clerk is directed to transfer this action to the United States District Court for the District of Columbia and to close this case. […]”

 

November 21st, 2006 - Complaint

 

“[…] 51. Furthermore, Plaintiffs have witnessed Defendants’ planes flying over their village in Ecuador, clearly beyond their intended Colombian targets, spraying them with the harmful chemicals. The toxic chemicals landed on Plaintiffs, their children, livestock, surrounding land, and drinking water.

 

“52. Defendants had knowledge and were aware of the adverse and harmful effects of their wrongful conduct. Defendants’ aerial spraying has been the subject of critical media attention. Despite knowledge of the dangerous and harmful effects of their conduct, Defendants continue to spray the toxic chemicals on Plaintiffs.

 

“53. Plaintiffs allege on good faith, information and belief that the fumigant sprayed by Defendants over Plaintiffs and Plaintiffs’ lands and livestock has a very high inhalation toxicity rating, and that Defendants knew or should have known this, but acted to release the poison spray on areas inhabited by Plaintiffs. Worse, in spite of product warning labels, defendants have systematically sprayed toxins into the Mataje River where Plaintiffs drink, bathe, wash their clothes and fish. […]”

 

Case 1

Venancio Aguasanta Arias et al vs. DynCorp et al

U.S. District Court for the District of Columbia

Case No.: 1:01-cv-01908-RWR-DAR

Filed on September 11th, 2001

 

May 21st, 2007 - Memorandum Opinion & Order

 

“[…] Plaintiffs, citizens and domiciliaries of Ecuador, brought an action under the Alien Torts Claims Act (‘ATCA’), 28 U.S.C. § 1350, the Torture Victim Protection Act (‘TVPA’), 28 U.S.C. § 1350, the common law of the United States, statutes and common law of the District of Columbia, and various international agreements and conventions, alleging physical harm and property damage stemming from defendants’ contract with the U.S. government to spray pesticides in order to eradicate cocaine and heroine farms in Colombia. Defendants have moved to dismiss the action, or in the alternative, for summary judgment. Defendants have also moved to stay discovery pending the resolution of their motion to dismiss. Plaintiffs have moved to compel production of documents and answers to interrogatories. Because plaintiffs have presented a justiciable question of law under the ATCA, but have not stated a claim for violation of the TVPA, the defendants' motion to dismiss will be denied in part and granted in part and their motion to stay discovery will be denied as moot. Because the parties have yet to confer as required by Federal Rule of Civil Procedure 26, plaintiffs’ motion to compel will be denied as premature. […]”

 

January 7th, 2002 - DynCorp International’s Motion to Dismiss

 

“[…] Defendants DynCorp, et al. (‘DynCorp International’) hereby move this Court to dismiss this action pursuant to FRCP 12 (b), or in the alternative, pursuant to FRCP 56. Plaintiffs’ complaint challenges foreign policy and national security determinations of the executive and legislative branches and seeks to impose liability on DynCorp International for conduct expressly authorized by Congress and specifically dictated by the Department of State under the terms of DynCorp International's government contract. The proper forums for plaintiffs' complaints are in the Congress and before the Executive branch, and their attempt to drag the judiciary into these matters should be rejected.

 

“As set forth more hlly in the accompanying statement of points and authorities in support of this motion and in the sworn declaration of Assistant Secretary of State for the Bureau of International Narcotics and Law Enforcement Affairs Rand Beers - who is responsible for all United States government policies and initiatives in support of international counter-narcotics efforts in the Andean region - plaintiffs' claims must be dismissed on a number of grounds.

 

“First, plaintiffs’ claims would entangle the Court in nonjusticiable issues regarding United States foreign and national security policy. Second, plaintiffs’ federal law claims based on alleged violations of international law fail because the actions of which they complain are expressly authorized by Congress and because plaintiffs do not identify any actions that would constitute a violation of international law. Third, plaintiffs' state common law claims are preempted by the federal government's (a) exclusive authority over foreign policy and national security and (b) specific approval of the safety of the herbicide used in the drug spraying operations. Plaintiffs’ complaint should be dismissed in its entirety. […]”

 

September 11th, 2001 - Complaint for Equitable Relief

 

“[…] 9. Plaintiffs Venancio Aguasanta Arias (Ecuadorian Identity Card No. 1600251084) and Rosa Tanguila Andi (Ecuadorian Identity Card No. 1500479611), are husband and wife, and reside in La Comunidad San Francisco 2, Province of Sucumbios, Ecuador. They allege on good faith information and belief, on behalf of themselves, their four minor children, and all others similarly situated, that between January and February of 2001, heavy spraying of toxic herbicides was carried out by employees or agents of the DynCorp Defendants in Colombian territory located no more than one mile from their home in Ecuador. The herbicides were sprayed repeatedly over the aforementioned period day after day, with occasional rest periods of two and three days. On the days the fumigation took place, the spraying occurred between six in the morning and four in the afternoon. Heavy clouds of liquid spray dropped from the planes, shifted with the wind, and repeatedly fell on the home and land of Plaintiffs.

 

“10. As a result of the heavy fumigation carried out by the DynCorp Defendants over the area, Plaintiffs Venancio Aguasanta Arias and Rosa Tanguila Andi, and their children, developed serious health problems including heavy fevers, diarrhea, and dermatological problems. One of the Plaintiffs’ children, Venancio Andres, was affected so severely by the spraying that he suffered from heavy bleeding through his intestinal system and had to be transported to the hospital at Lago Agrio, where he was treated. Plaintiffs and their children were in an excellent state of health prior to the fumigations by Defendants, and suffered the aforementioned medical problems for a period of weeks after the fumigations stopped. They continue to suffer to this day from serious irritations to their eyes which they have not been able to cure. In addition to the health problems developed as a result of the fumigations of their land, Plaintiffs suffered the losses of their coffee, yucca, plantain and rice plantations, which is their sole source of subsistence. The animals they own were severely affected by the fumigations, including that their chickens developed blisters in their skin and died. […]

 

“[…] 22. Defendant DynCorp is a Delaware corporation doing business in a number of locations in the United States. Its business consists of information technology and outsourcing professional and technical services primarily to the U.S. government, which accounts for 98% of its revenue. Through its U.S. government related contracts, DynCorp regularly conducts business within the District of Columbia. In addition, DynCorp engages in activities to further its business within the District of Columbia including regular interactions with Members of Congress, the Executive Branch, and various agencies of the U.S. Government including the Department of State. With more than 22,000 employees worldwide and average yearly sales over 1.8 billion, DynCorp is among the largest employee-owned technology companies in the United States. […]

 

“[…] 26. Plaintiffs allege on good faith, information and belief that Defendant DynCorp either itself or through its subsidiaries/units DynCorp AT, DynCorp TS, and/or DynCorp Int’l contracted, sometime in the years 1999 or 2000, with the U.S. Department of State or other U.S. agency to allegedly exterminate, by use of fumigants sprayed from airplanes, plantations of cocaine and/or heroin poppies in large tracks of the Colombian rainforest owned by private citizens of Colombia. Upon information and belief, the solicitation for this contract by the U.S. Government, as well as the bid proposal for the contract and the award of the contract occurred in the District of Colombia. […]

 

“[…] 32. Plaintiffs allege on good faith, information and belief that the spraying of Plaintiffs’ persons, lands and livestock with toxic fumigants is nothing less than an act of mercenary war carried out surreptitiously by the DynCorp Defendants in total defiance of international law, and outside the parameters of any legal contract to implement ‘Plan Colombia.’ […]”

 

 

Government Reports

 

January 11th, 2006 - Plan Colombia: A Progress Report

Report by the Congressional Research Service

 

“[…] Plan Colombia was developed by former President Pastrana (1998-2002) as a six-year plan to end Colombia’s long armed conflict, eliminate drug trafficking, and promote economic and social development. […]

 

“[…] The objectives of Colombia and the United States differ in some aspects, although there is a significant overlap of goals. The primary U.S. objective is to prevent the flow of illegal drugs into the United States, as well as to help Colombia promote peace and economic development because it contributes to regional security in the Andes. The primary objectives of Colombia are to promote peace and economic development, increase security, and end drug trafficking. Both U.S. and Colombian objectives have also evolved over time from a strict counternarcotics focus to encompass counterterrorism activities.

 

“[…] Both the State Department and United Nations report decreases in acreage devoted to growing drug crops since 2001, although the Office of National Drug Control Policy (ONDCP) recently reported no significant reduction of coca cultivation during 2004. A key component of Plan Colombia is the manual and aerial eradication of coca and poppy crops. (See the tables below for eradication and cultivation statistics.) The United Nations Office on Drugs and Crime (UNODC) estimates that at the end of 2003, Colombia had 212,506 acres of coca under cultivation, having reduced its production by 47% since 2000. Opium poppy under cultivation covered about 10,000 acres, from 16,000 acres in 2000. In 2004, ONDCP reports that 337,000 acres of coca and 27,000 acres of opium poppy were sprayed. However, its recently completed survey concluded that the area under cultivation for coca remained stable in 2004, due to replantings of previously eradicated crops. […]”

 

July 5th, 2001 - Colombia: Plan Colombia Legislation and Assistance

Report by the Congressional Research Service

 

“[…] On February 7, 2000, the Clinton Administration, as part of its annual budget request, asked Congress for FY2000 supplemental appropriations of $ 954 million for assistance to Colombia and other Andean counternarcotics efforts. FY2000 allocated funding for Colombia, from appropriations made in 1999, already totals some $ 164.0 million. At the same time, the Administration requested $ 318 million for FY2001 assistance to Colombia and other regional efforts, in addition to the $ 150 million that it previously indicated it had planned to allocate to Colombia in FY2001. […]”

 

 

Photo Credits

 

Background

 

1) Colombian Children stand in a field of crops, now dead from aerial fumigation. - undated - Retrieved from the “Witness for Peace” website on July 4th, 2009;

 

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