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Argued: January 24, 2006 before KATZMANN and HALL, Circuit Judges, and KORMAN, District Judge. Decided: October 12, 2007. Appeal from a judgment of the United States District Court for the Southern District of New York (Sprizzo, J.), dismissing, inter alia, plaintiffs-appellants’ claims under the Alien Tort Claims Act (“ATCA”) and the Torture Victim Protection Act (“TVPA”).

We affirm the district court’s dismissal of the TVPA claims. We vacate that portion of the district court’s judgment dismissing the plaintiffs’ ATCA claims, as well as the district court’s denial of the Digwamaje, and Ntsebeza motions to amend, and remand for further proceedings consistent with this opinion. Judge KATZMANN files a separate concurring opinion. Judge HALL files a separate concurring opinion. Judge KORMAN files a separate opinion, concurring in part II and dissenting from parts III, IV, and V of the per curiam opinion. Affirmed in part, vacated in part, and remanded.

• MICHAEL D. HAUSFELD from Cohen, Milstein, Hausfeld & Toll, P.L.L.C. Washington, D.C. for Khulumani Plaintiffs-Appellants.
• PAUL L. HOFFMAN from Schonbrun DeSimone Seplow Harris Hoffman LLP Venice, California for Ntsebeza & Digwamaje Plaintiffs-Appellants.

BACKGROUND

Three groups of plaintiffs filed ten separate actions in multiple federal district courts asserting apartheid-related claims. One group, the Khulumani Plaintiffs, filed a complaint against twenty-three domestic and foreign corporations, charging them with various violations of international law. The other two groups, the Ntsebeza and Digwamaje Plaintiffs, brought class action claims on behalf of the “victims of the apartheid related atrocities, human rights’ violations, crimes against humanity and unfair [and] discriminatory forced labor practices.” The Digwamaje Plaintiffs also brought claims under the Torture Victim Protection Act of 1991 ("TVPA"), and the Racketeer Influenced and Corrupt Organizations Act, of 1961 ("Rico").

In August 2002, the Ntsebeza Plaintiffs filed a motion with the Judicial Panel on Multidistrict Litigation (“MDL Panel”) to transfer all of the actions to the Southern District of New York, and in December 2002, the MDL Panel ordered that transfer for coordinated pre-trial proceedings. In July 2003, thirty-one of the fifty-five defendants in the Ntsebeza and Digwamaje actions filed a joint motion to dismiss. Following the transfer of the Khulumani complaint to the Southern District of New York, eighteen of the twenty-three defendants in that action also filed a joint motion to dismiss.

Later that month, Penuell Mpapa Maduna, who was then the Minister of Justice and Constitutional Development for South Africa, submitted an ex parte declaration to the district court, stating that the South African government regarded these proceedings as interfering “with Ruling on the defendants’ motions to dismiss, the district court held that the plaintiffs failed to establish subject matter jurisdiction under the ATCA. The district court ruled further that the plaintiffs, having asserted diversity as an alternate basis for jurisdiction, could not establish subject matter jurisdiction on that ground.

The district court also held that the plaintiffs failed to state a claim under the TVPA and failed to establish subject matter jurisdiction under RICO. The district court therefore dismissed the plaintiffs’ complaints in their entirety. In March 2005, the Ntsebeza and Digwamaje Plaintiffs moved for permission to file an amended consolidated complaint, which the district court denied. Following the district court’s issuance of an amended judgment containing an amended Rule 54(b) certification, the plaintiffs filed timely notices of appeal.

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