United States Court of Appeals, District of Columbia Circuit
Nanko Shipping, USA, Parent Company of Nanko Shipping Guinea, et al., Appellants
Alcoa, Inc. and Alcoa World Alumina, LLC, Appellees
September 23, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-01301)
M. Temple argued the cause and filed the briefs for
E. Birsic argued the cause for appellees. With him on the
brief were Matthew J. Louik and David T. Case.
Before: Rogers, Brown and Pillard, Circuit Judges.
Pillard, Circuit Judge:
Republic of Guinea is one of the world's principal
sources of bauxite, an aluminum ore. After Guinea declared
independence from France in the middle of the last century,
it sought to ensure that the exploitation of its natural
resources would not only provide business for multinational
corporations based overseas that invested in the ore's
extraction, but would also benefit the Guinean economy.
Plaintiff Nanko Shipping Guineé (Nanko) claims to be
the beneficiary of one of Guinea's legal undertakings to
that end, and contends in this case that defendants
(collectively, Alcoa) violated corresponding obligations.
Other named plaintiffs- Nanko's owners, Nanko Shipping
USA and Mori Diané, an American of Guinean descent-are
not before us, having not appealed the district court's
order dismissing them for lack of standing.
district court granted Alcoa's motion to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(7) for
failure to join Guinea, which Alcoa asserts is a Rule 19
required party. The district court concluded that Guinea
could not be joined because it is entitled to sovereign
immunity. But it is not apparent why Guinea is a required
party and, if it is, whether Nanko's allegations bring
Guinea within the commercial-activity exception to foreign
sovereign immunity such that its joinder would be feasible.
We accordingly reverse and remand for further proceedings.
review of the order granting the motion to dismiss, we
assume-as did the district court-the truth of the facts
alleged in Nanko's proposed Second Amended Complaint.
According to that complaint, in 1963 the Republic of Guinea
and the Harvey Aluminum Company of Delaware (now Halco)
signed an agreement establishing the Compagnie des Bauxites
de Guinée (CBG) for the purpose of developing
Guinea's rich bauxite mines. CBG is a corporation of which Guinea owns
a 49 per cent share and Halco 51 per cent. Nanko alleges that
defendant Alcoa, in turn, is somehow both the minority owner
and alter ego of Halco. Over the last half century, CBG has
extracted and exported more than 600 million tons of Guinean
Article 9 of the CBG Agreement, Guinea reserved the right to
require that up to 50 per cent of the Republic's bauxite
be shipped on vessels flying the Guinean flag or chartered by
the Guinean government, provided that the freight rates those
Guinean shippers offered are no higher than, and the services
equal to, those otherwise available on the international
shipping market. That clause presumably was designed to
ensure that some of the business generated by the bauxite
mines would go to qualified Guinean shipping firms and
thereby benefit the Guinean economy.
alleges that, in August 2011, Guinea entered into a Technical
Assistance Agreement (TAA) with Nanko. That document is
neither quoted in nor attached to the pleadings, nor is it
otherwise in the record. Pursuant to the TAA, Nanko alleges,
it "assumed Guinea's rights" under Article 9 of
the CBG Agreement "to manage, control and ship" up
to 50 per cent of Guinean-produced bauxite. Prop. Second Am.
Compl. at 2.
in 2011, CBG's Board of Directors allegedly invited its
constituent corporations, including Halco and Alcoa, to
contact Nanko to make shipping arrangements. Nevertheless,
Halco and Alcoa refused to deal with Nanko, offering
"only a few limited micro-tender shipping
opportunities" that were "substantially less in
value and volume than the shipping rights and contracts"
to which Nanko claims it is entitled under the TAA. Prop.
Second Am. Compl. ¶¶ 26, 46. Halco and Alcoa
allegedly added insult to injury, posing questions about
Nanko's "background and capacity" that were not
asked of other shipping companies and then refusing to credit
Nanko's responses. Id. at ¶¶ 42, 65.
Guinea, for its part, "repeatedly urged" Halco and
Alcoa to hire Nanko to ship their bauxite. Id. at
action, Nanko initially brought two claims: one for breach of
the CBG Agreement, asserting that it is a third-party
beneficiary thereof, and another for racial discrimination in
violation of 42 U.S.C. § 1981. Alcoa moved to dismiss on
a variety of grounds, including lack of standing, failure to
state a claim, and failure to join a required party. Nanko
responded with a proposed Second Amended Complaint adding
Halco as a defendant and asserting an additional claim
against Alcoa for tortious interference with contractual
district court dismissed the case under Rule 12(b)(7) for
failure to join a Rule 19 party. Guinea was a required party
under Rule 19(a), the court concluded, because resolving
Nanko's claims would depend on defining Guinea's
rights under its CBG Agreement with Halco, which might
"impair or impede Guinea's right to protect its
interests" under that Agreement. Nanko Shipping, USA
v. Alcoa, Inc., 107 F.Supp.3d 174, 181 (D.D.C. 2015)
("Nanko I"). Proceeding to the Rule 19(b)
inquiry, the court concluded Guinea could not be joined
because it is entitled to sovereign immunity, and that the
case could not "in equity and good conscience"
proceed in Guinea's absence. Id. at 181-82.
Although it considered the allegations of the proposed Second
Amended Complaint in its analysis, the district court denied