Case 0:08-md-01916-KAM Document 899 Entered on FLSD Docket 08/21/2015 Page 1 of 38

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 08-MD-01916 (Marra)

IN RE: CHIQUITA BRANDS INTERNATIONAL,

INC. ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
/
This Document Relates to:
ATS ACTIONS
/

DEFENDANTS REPLY IN SUPPORT OF MOTION TO DISMISS

FOR FORUM NON CONVENIENS AND INCORPORATED MEMORANDUM OF LAW

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TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 1
I.

II.

III.

Colombia Is an Available and Adequate Alternative Forum.............................................. 3

A.

Plaintiffs Challenges to the Availability of Colombian Courts Fail...................... 3

B.

Plaintiffs Have Not Shown That Colombian Courts Are Inadequate On

Account of Safety Concerns. .................................................................................. 5
1.

Plaintiffs Have the Burden of Producing Evidence That They

Cannot Safely Litigate Their Claims in Colombia. .................................... 5

2.

Plaintiffs Have No Evidence Demonstrating That They Cannot

Safely Litigate Their Claims in Colombia. ................................................. 7

3.

Chiquitas Evidence Demonstrates That Plaintiffs Can Safely

Pursue Their Claims in Colombia............................................................. 10

C.

Plaintiffs Allegations of Corruption and Delay Are Inadequate Under

Established Eleventh Circuit Precedent. ............................................................... 12

D.

Chiquitas Stipulation Ensures the Adequacy of Colombian Courts.................... 14

The Private Interest Factors Overwhelmingly Support Dismissal.................................... 16

A.

The Vast Majority of Evidence Is More Accessible in Colombia. ....................... 17

B.

The Prospect of Litigating in Two Countries Favors Dismissal........................... 22

C.

Potential Third-Party Defendants May Be Impleaded Only In Colombia............ 22

D.

Plaintiffs Concern Over Enforcing a Colombian Judgment Is

Unwarranted and Does Not Provide a Reason for Denying Chiquitas
Motion................................................................................................................... 23

The Public Interest Factors Also Support Dismissal. ....................................................... 25

A.

Colombia Unquestionably Has a Greater Interest in this Litigation..................... 25

B.

Colombian Courts Are Better Suited to Interpret Colombian Law. ..................... 26

C.

Litigating Plaintiffs Claims in the U.S. Would Be Unduly Burdensome on

U.S. Courts and Juries........................................................................................... 27

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D.

Litigating Plaintiffs Claims in the U.S. Would Raise Comity Concerns. ........... 30

CONCLUSION............................................................................................................................. 30

ii

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TABLE OF AUTHORITIES
Page(s)
CASES
Aldana v. Del Monte Fresh Produce, N.A.,
578 F.3d 1283 (11th Cir. 2011) ....................................................................................... passim
Aldana v. Del Monte Fresh Produce N.A., Inc.,
741 F.3d 1349 (11th Cir. 2014) ...............................................................................................16
Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997).................................................................................................................28
American Pipe & Construction Co. v. Utah,
414 U.S. 528 (1974).................................................................................................................15
Barboza v. Drummond Co.,
No. 06-61527 (S.D. Fla. July 17, 2007).....................................................................................9
BFI Grp. Divino Corp. v. JSC Russian Aluminum,
247 F.R.D. 427 (S.D.N.Y. 2007), affd, 298 F. Appx 87 (2d Cir. 2008) .............................6, 7
Cardona v. Chiquita Brands Intl Inc.,
760 F.3d 1185 (11th Cir. 2014) .......................................................................................5, 8, 19
Chang v. Baxter Healthcare Corp.,
599 F.3d 728 (7th Cir. 2010) ...................................................................................................14
Chevron Corp. v. Donziger,
974 F. Supp. 2d 362 (S.D.N.Y. 2014)................................................................................24, 25
Chiquita Brands Intl Inc. v. SEC,
No. 14-5030, 2015 WL 4385618 (D.C. Cir. Jul. 17, 2015) .....................................................21
Clemens v. DaimlerChrysler Corp.,
534 F.3d 1017 (9th Cir. 2008) .................................................................................................15
Ford v. Brown,
319 F.3d 1302 (11th Cir. 2003) ....................................................................................... passim
Gulf Oil Corp. v. Gilbert,
330 U.S. 501 (1947)...........................................................................................................23, 26
In re Air Crash Near Rio Grande Puerto Rico on December 3, 2008,
9:11-md-2246-KAM (S.D. Fla.) ..............................................................................................19

iii

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In re Banco Santander Securities-Optimal Litig.,

732 F. Supp. 2d 1305 (S.D. Fla. 2010), affd sub nom. Inversiones Mar Octava
Limitada v. Banco Santander S.A., 439 F. Appx 840 (11th Cir. 2011)..............................4, 15
In re W. Caribbean Crew Members,
632 F. Supp. 2d 1193 (S.D. Fla. 2009) ..............................................................................4, 6, 9
In re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India,
809 F.2d 195 (2d Cir. 1987).....................................................................................................25
Johnson v. Ry. Exp. Agency, Inc.,
421 U.S. 454 (1975).................................................................................................................15
King v. Cessna Aircraft Co.,
562 F.3d 1374 (11th Cir. 2009) ...............................................................................................14
Kramer v. von Mitschke-Collande,
5 So. 3d 689 (Fla. Dist. Ct. App. 2008) ..................................................................................23
La Seguridad v. Transytur Line,
707 F.2d 1304 (11th Cir. 1983) ...............................................................................................18
Leon v. Million Air Inc.,
251 F.3d 1305 (11th Cir. 2001) ....................................................................................... passim
Mujica v. AirScan Inc.,
771 F.3d 580 (9th Cir. 2014) .....................................................................................................6
Paolicelli v. Ford Motor Co.,
289 F. Appx 387 (11th Cir. 2008) ....................................................................................17, 26
Sinochem Intl Co. v. Malaysia Intl Shipping Corp.,
549 U.S. 422 (2007).................................................................................................................17
Smith v. Bayer Corp.
131 S. Ct. 2368 (2011).........................................................................................................4, 15
Son v. Kerzner Intl Resorts, Inc.,
2008 WL 4186979 (S.D. Fla. Sept. 5, 2008) .................................................................2, 22, 27
Tazoe v. Airbus S.A.S.,
631 F.3d 1321 (11th Cir. 2011) ....................................................................................... passim
Turner Entmt Co. v. Degeto Film GmbH,
25 F.3d 1512 (11th Cir. 1994) .................................................................................................30
Walker v. CSX Transp. Inc.,
650 F.3d 1392 (11th Cir. 2011) .................................................................................................4

iv

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Zedner v. United States,

547 U.S. 489 (2006).................................................................................................................24
STATUTES
Fla. Laws 55.503, 55.604..........................................................................................................23
Fla. Laws 55.605(1)-(2) ..............................................................................................................24
N.C. Gen. Stat. 1C-1853(a), 1C-1856(a) ..................................................................................23
N.J. Stat. Ann. 2A:49A-19 to -20 .............................................................................................23
OTHER AUTHORITIES
Wright & Miller, 14D Federal Practice & Procedure 3828.3 (4th ed. 2015) .............................6

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INTRODUCTION
In light of the Courts prior rulings, Plaintiffs do not, and cannot, seriously contend that
litigating their claims in the United States is more convenient than litigating them in Colombia.
Adjudication of Plaintiffs claims would require the Court to interpret and apply Colombian law,
which the Court has already described as a novel and complex . . . endeavor that justified
declining supplemental jurisdiction over the Colombian law claims. (Op. & Order 90 (D.E.
412).) Moreover, the Court has from the outset emphasized that the litigation involves separate
plaintiffs with separate causes of action and that each Plaintiffs specific factual claims . . . will
predominate, and individual issues of causation will pervade as the cases progress. (Op. &
Order, No. 07-cv-60821-KAM, at 7 (D.E. 26).) That means proving each of 6,000 torts
committed by Colombians against Colombians in Colombia. And that is precisely what led this
Court to recognize that if the claims are litigated here, the cost of discovery will be nothing less
than extraordinary. (Order Granting Ds Mot. for Certification 5 (D.E. 518).)
The recent efforts to arrange just two depositions in Colombia confirm that litigating
Plaintiffs claims in a U.S. court would require extraordinarily complex, expensive, and timeconsuming foreign discovery. Those two depositions have involved at least ten separate briefs,
two orders by the Court, multiple communications by the parties with a Colombian court,
multiple translators, costly travel arrangements, and multiple rounds of letters of request. If
these cases proceed in the U.S., these extensive efforts will need to be repeated thousands of
times, as the parties must conduct discovery into the alleged violent acts underlying each
Plaintiffs claims. For this reason, the Eleventh Circuit has held that a district court abuses its
discretion by denying a forum non conveniens (FNC) motion where the vast majority of
evidence is located in a foreign country, and the courts in that country are adequate and
available. Ford v. Brown, 319 F.3d 1302, 1308-09 (11th Cir. 2003).
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In the face of these facts, Plaintiffs resort to arguing that, regardless of how much more
convenient it might be to litigate in Colombia, FNC dismissal should be denied for two principal
reasons. First, Plaintiffs contend that litigating these cases in Colombia would present safety
concerns. But Plaintiffs do not contend, nor could they, that there is a greater risk to them
from suing Chiquita in Colombia than in the U.S. Instead, Plaintiffs assert that they would be
put at risk because, in Colombia, Chiquita could implead third parties outside the jurisdiction of
U.S. courts that would pit Plaintiffs interests against those of powerful military, political, and
economic actors in Colombia. (Pls. Oppn to FNC Mot. 16 (D.E. 832) (hereinafter Opp.).)
This argument is both nonsensical and unsubstantiated. If Chiquita were to implead third
parties, Chiquita would be adverse to those parties, not Plaintiffs. But even if that were not so,
Plaintiffs do not come close to meeting their burden of producing evidence to show that pursuing
these claims in Colombia would be dangerous. No Plaintiff has submitted a declaration, even
under seal, attesting to a well-founded fear of suing Chiquita in Colombia. And neither of the
Plaintiffs purported experts opines that any Plaintiff would face such a danger. At best, the
declarations state that there have been incidents of violence against human rights defenders
and land restitution claimants, neither of which describes these Plaintiffs. Plaintiffs seek to
spin the inability to implead third parties in the U.S. as a factor against FNC dismissal, when the
law is precisely the opposite. See Son v. Kerzner Intl Resorts, Inc., 2008 WL 4186979, at *9
(S.D. Fla. Sept. 5, 2008) (Marra, J.) ([T]he inability to implead other parties directly involved in
a controversy is a factor weighing heavily against the plaintiffs choice of forum.). In any
event, this argument cannot prevent dismissal. If the Court is concerned that impleading third
parties would create a security risk, the Court can condition dismissal on Chiquitas agreement
not to implead third parties. There is no justification for denying the motion on this ground.

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Second, Plaintiffs argue that FNC dismissal is inappropriate because they would have to
return to the U.S. to enforce any Colombian judgment against Chiquita. Plaintiffs incorrectly
seek to elevate ease of enforcement into a dispositive, threshold inquiry for deciding an FNC
motion when the case law is clear that ease of enforceability is just one of many relevant factors
in the private-interest analysisand that it is a less significant consideration than access to
evidence. Ford, 319 F.3d at 1308. Given that the vast majority of evidence and witnesses are
in Colombia, this factor overwhelmingly supports dismissal and would outweigh the judgmentenforceability factor even if that factor favored Plaintiffs.
But the judgment-enforceability factor does not favor Plaintiffs, because enforcing a
foreign judgment is hardly the obstacle Plaintiffs suggest. If Plaintiffs obtain a judgment in
Colombia and Chiquita refuses to pay it, Plaintiffs can initiate enforcement proceedings, in
which the judgment will be presumed valid. Given the limited grounds for challenging a foreign
judgment, the only conceivable basis for Chiquita to challenge a Colombian judgment is that the
judgment was obtained by fraud. So long as Plaintiffs and their counsel do not commit fraud,
enforceability is not an issue.
In short, Colombian courts provide a more convenient forum to decide claims brought by
Colombians under Colombian law for injuries suffered at the hands of other Colombians in
Colombia. The Court should therefore dismiss the remaining claims for forum non conveniens.
ARGUMENT
I.

Colombia Is an Available and Adequate Alternative Forum.

A.

Plaintiffs Challenges to the Availability of Colombian Courts Fail.

Plaintiffs do not dispute that Colombian courts are an available forum for their claims
against Chiquita, but argue that the forum is unavailable as to claims involving other
prospective parties. (Opp. 24 n.13; Wolf Oppn 7-10 (D.E. 819).) These arguments fail.
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First, Plaintiffs argue that Colombian courts are not available because Chiquita
consented to jurisdiction only for Plaintiffs claims, and not also for claims by absent, putative
class members in the New Jersey case. (Opp. 24 n.13.) The point is immaterial because an
unnamed member of a proposed but uncertified class is not a party to the litigation. Smith v.
Bayer Corp., 131 S. Ct. 2368, 2379 (2011). Plaintiffs cite no case in which a defendant
consented to jurisdiction as to non-parties. To the contrary, a court in this district has expressly
rejected the argument as to putative class members. See In re Banco Santander SecuritiesOptimal Litig., 732 F. Supp. 2d 1305, 1332 n.13 (S.D. Fla. 2010), affd sub nom. Inversiones
Mar Octava Limitada v. Banco Santander S.A., 439 F. Appx 840 (11th Cir. 2011).
Second, the Wolf Plaintiffs contend that Colombian courts would not have jurisdiction
over the Doe Defendants named in their complaints, because these unknown, fictitious
defendants have not consented to being sued in Colombia. (Wolf Oppn 7-9.) But consent is
unnecessary for jurisdiction; if the Doe Defendants engaged in wrongful conduct in Colombia, as
the Wolf Plaintiffs allege, then Colombian courts can exercise personal jurisdiction over them
without a stipulation. See In re W. Caribbean Crew Members, 632 F. Supp. 2d 1193, 1199-1200
(S.D. Fla. 2009); (Tamayo Decl. 25-27 (D.E. 741-1)). In any event, courts typically ignore
Doe parties for jurisdictional purposes. See, e.g., Walker v. CSX Transp. Inc., 650 F.3d 1392,
1395 n.11 (11th Cir. 2011). Were the law otherwise, any foreign plaintiff could defeat an FNC
motion simply by naming a Doe defendant. 1

The Wolf Plaintiffs also contend that a Colombian court is unavailable because the Boies,
Schiller law firmwhich has been named as a defendant in a suit in which Chiquita is not a
partyhas not agreed to submit to the jurisdiction of the Colombian courts. (Wolf Oppn 10.)
Chiquitas FNC motion does not apply to Wolfs suit against Boies, Schiller.

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B.

Plaintiffs Have Not Shown That Colombian Courts Are Inadequate On

Account of Safety Concerns.

Plaintiffs arguments regarding the safety risks of litigating their claims in Colombia are
based almost entirely on their purported concern over Chiquita impleading dangerous third
parties. (Opp. 16-22.) In Plaintiffs telling, the Court can either (1) keep these cases in the U.S.
to protect Plaintiffs safety, even though that deprives Chiquita of the ability to implead thirdparty defendantsan important right under a typical FNC analysis; or (2) send these cases to
Colombia so that Chiquita can exercise its right to implead third parties, but put Plaintiffs lives
in danger in the process. (See id.)
Plaintiffs framing of the issue presents a false choice, because Plaintiffs fail to show how
they would be put at risk if these cases were heard in Colombia instead of the United States. For
starters, Plaintiffs misunderstand Colombian impleader law: any parties impleaded by Chiquita
would be adverse to Chiquita, not Plaintiffs, and thus only Chiquita would be adverse to the
anonymous powerful interests to whom Plaintiffs refer. (See Second Tamayo Decl. 37
(attached hereto as Exhibit 1).) Moreover, as detailed below, Plaintiffs have not shown that they
would be at risk even if they were adverse to these parties. In any event, if the Court finds that
Plaintiffs fears are well-founded, it may condition FNC dismissal on Chiquitas stipulation not
to implead any third parties in Colombia.
1.

Plaintiffs Have the Burden of Producing Evidence That They Cannot

Safely Litigate Their Claims in Colombia.

Plaintiffs contend that Chiquita did not satisfy its burden to show that litigation in
Colombia would be safe for these plaintiffs. (Opp. 18.) This argument conflates the burdens of
proof and production on an FNC motion.
Chiquita has the burden of proving that Colombia is an adequate forum. Leon v. Million
Air Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). But the defendant faces a rather low bar for
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establishing that the alternative forum is adequate. Wright & Miller, 14D Federal Practice &
Procedure 3828.3 (4th ed. 2015). To satisfy this burden, Chiquita need only show that
Colombian courts provide at least some relief for the claims asserted here. Leon, 251 F.3d at
1311. Chiquita has establishedand Plaintiffs have not disputedthat Colombian courts offer
relief for Plaintiffs claims. (FNC Mot. 20 (D.E. 741); Tamayo Decl. 29-32.)
Where, as here, a plaintiff challenges the adequacy of a forum on grounds other than the
availability of remedies, the plaintiff bears the burden of producing significant evidence to
substantiate its allegations. Leon, 251 F.3d at 1312; see also Mujica v. AirScan Inc., 771 F.3d
580, 612-13 (9th Cir. 2014) (stating that, after the defendant established that the foreign court
would provide a remedy, the burden shifted to the plaintiffs to make a powerful showing that
litigating in Colombia would place them in physical danger). To satisfy this burden of
production, Plaintiffs cannot rely on generalized allegations of violence. See, e.g., In re W.
Caribbean Crew Members, 632 F. Supp. 2d at 1200-01. Instead, they must establish a
meaningful connection between the alleged safety concerns and litigating their case in the
foreign court. BFI Grp. Divino Corp. v. JSC Russian Aluminum, 247 F.R.D. 427, 432 (S.D.N.Y.
2007), affd, 298 F. Appx 87 (2d Cir. 2008). If Plaintiffs satisfy their burden of production,
then the defendant has the burden to persuade the District Court that the facts are otherwise.
Leon, 251 F.3d at 1312. But where a plaintiffs allegations are insubstantially supported, . . . a
District Court may reject them without considering any evidence from the defendant. Id.
Plaintiffs therefore have the initial burden of producing sufficient evidence to support
their allegations that suing Chiquita and some of its former officers and directors in Colombia
would be dangerous. As discussed below, they have failed to do so. Even if their evidence were
sufficient to require a rebuttal, Chiquitas evidence is more than sufficient to do so.

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2.

Plaintiffs Have No Evidence Demonstrating That They Cannot Safely

Litigate Their Claims in Colombia.

According to Plaintiffs brief, none of the more than 6,000 Colombians can safely sue
Chiquita in their home courts. (Opp. 18-19.) And yet not a single one of them submitted a
declaration asserting thatlet alone explaining whyhe or she fears litigating in Colombia.
Instead, Plaintiffs submit two declarations that discuss violence against human rights
defenders and land restitution claimants. (Andreu Decl. 56-59 (D.E. 832-17); Lpez Decl.
12-15 (D.E. 832-14).) These declarants also rely on dated statistics or events (sometimes
more than a decade old) to suggest that Colombia continues to be as dangerous as it was years
ago (e.g., Andreu Decl. 22-25, 33; Lpez Decl. 10, 12, 20), while ignoring the dramatic
security gains that the country has achieved in recent years (Shifter Decl. 19-27 (D.E. 741-5)).
But despite all of their talk about how dangerous Colombia remains, neither declarant offers an
opinion on whether Plaintiffs would face safety risks in suing Chiquita in Colombia. The reason
is obvious: Plaintiffs are not human rights defenders or land restitution claimants, and even
if they were, none of the incidents of purported violence that their declarants describe involved
plaintiffs suing a foreign corporation like Chiquita. These declarations fall far short of
establishing the requisite meaningful connection between the violent acts discussed in the
declarations and Plaintiffs claims against Chiquita. BFI Grp., 247 F.R.D. at 432.
In fact, Plaintiffs offer no explanation for why they would be at greater risk if their claims
were litigated in Colombia, where Plaintiffs reside, rather than in the U.S. Instead, Plaintiffs
argue that even if they could safely sue Chiquita in Colombia, litigating there would still be too
dangerous because Chiquitas alleged impleader strategy would cause Plaintiffs to be adverse
to dangerous third parties. (See Opp. 19-20.)

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This argument is based on a misunderstanding of Colombias impleader rules. Plaintiffs

contend that impleading third parties will pose a safety risk to them because they will become
directly adverse to any third party that Chiquita brings into the case. (Opp. 16.) But the
impleaded parties will be adverse only to Chiquita; Plaintiffs need not assert claims against
them. (Second Tamayo Decl. 37.)
Plaintiffs purported fear of Chiquitas purported impleader strategy also cannot be
reconciled with their lawyers conduct. As the limited discovery on payments to paramilitary
witnesses has already demonstrated, Plaintiffs lawyers have had extensive communications
(including face-to-face meetings) with former paramilitaries, have conferred with their counsel
about Chiquitas claims, and may have even offered to pay them for testimony against Chiquita. 2
These are hardly the actions of people afraid of dealing with former paramilitaries.
In any event, if the Court concludes that impleading third parties would create a safety
risk, it can condition dismissal on Chiquitas agreement not to implead third parties if the claims
are reinstituted in Colombia. Chiquita will agree to this condition.
Plaintiffs offer a handful of other arguments that Colombia is not an adequate forum
because of safety considerations, but they are equally unpersuasive. Plaintiffs declarants assert
that acts of violence against human rights defenders demonstrate that lawyers representing
Plaintiffs (but not Plaintiffs themselves) face security risks. (Lpez Decl. 10, 22-23; Andreu
Decl. 17, 22.) But there is no precedent for denying an FNC motion based on alleged
potential threats to counsel. To the contrary, a court in this district has rejected the argument that

See, e.g., D.E. 839-12, at 6-12, 14 (Collingsworths answers to interrogatories); D.E. 783, at 3-4
(Carrizosa plaintiffs answers to interrogatories); D.E. 769, at 4 (Valencia plaintiffs answers to
interrogatories); see also Chiquitas Mot. to Compel 10-13 (D.E. 837).

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Colombia was an inadequate forum because the plaintiffs lawyers would face safety threats. In
re W. Caribbean Crew Members, 632 F. Supp. 2d at 1200-01.
Even if the safety of lawyers were the relevant test, Plaintiffs evidence does not show
that their lawyers would face danger. None of the alleged violence described in the declarations
involved lawyers bringing claims against a foreign corporation. And Plaintiffs concern over the
safety of their lawyers is difficult to reconcile with the facts outlined in Chiquitas motion
which Plaintiffs do not disputeregarding their lawyers open and public recruitment of new
clients in Colombia and their publicizing in Colombia of their suits against Chiquita. (FNC Mot.
42.) Plaintiffs suggest that they may have difficulty finding lawyers to take their cases (Opp.
19), but in fact they already have lawyers in Colombia. 3 Not one of these Colombian lawyers
submitted a declaration stating that he or she was afraid to litigate these claims in Colombia. 4
Plaintiffs also incorrectly contend that the decisions in Barboza v. Drummond Co., No.
06-61527 (S.D. Fla. July 17, 2007), and Aldana v. Del Monte Fresh Produce, N.A., 578 F.3d
1283 (11th Cir. 2011), support their arguments. In Barboza, the plaintiffs showed that litigating
in Colombia would have been dangerous nearly eight years ago by submitting declarations from
two key witnessesone of whom was already in the witness protection programwho provided
evidence of safety risks that directly related to the allegations at issue in that case. No. 06-61527
(D.E. 34-3 & 4). Plaintiffs here present no similar evidence. In Aldana, the plaintiffs had fled
3

See, e.g., D.E. 839-12, at 13 (confirming that U.S. counsel for the Doe 1-144 plaintiffs has a
co-counsel relationship with Colombian attorney Ivan Otero Mendoza); D.E. 801-3 to -10
(agreements between counsel for the Valencia plaintiffs and Colombian attorneys); D.E. 170-2 in
Case No. 10-60573, at 5 (noting relationship with Colombian firm); D.E. 886, at 2, 4.
4

Plaintiffs also argue that the Court should consider the supposed difficulty in finding
Colombian counsel when weighing the private-interest factors. (Opp. 32.) Contrary to the
declaration submitted by Plaintiffs own counsel (Caldern Decl. 6-11), contingency fee
arrangements and pro bono representation are common in Colombia (Second Tamayo Decl.
53-56). This issue is irrelevant, however, because Plaintiffs already have Colombian counsel.

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Guatemala based on safety concerns and had even been granted asylum in the United States. 578
F.3d at 1286-87. Despite the plaintiffs safety concerns, the district court nevertheless granted
the FNC motion, and the Eleventh Circuit affirmed that ruling. Id. at 1300.
Finally, Plaintiffs contend that suing Chiquita in Colombia is too dangerous because they
cannot use pseudonyms there. (Opp. 19.) But they offer no good reason why more than 1,700
Colombians could safely bring mediation demands against Chiquita in Colombia without using
pseudonyms, but Plaintiffs cannot do the same. Nor do they offer any explanation for why they
would need to use pseudonyms in Colombia, when more than 3,600 of them have been openly
pursuing their claims here for years in their own names, 5 and their lawyers accept that public
filings in this Court are also public in Colombia. (See D.E. 860, at 2 (requesting that certain
information not be publicly disclosed, through filings in this Court in light of supposed risks).)
3.

Chiquitas Evidence Demonstrates That Plaintiffs Can Safely Pursue

Their Claims in Colombia.

In contrast to Plaintiffs declarants, Chiquitas expert on Colombian security, Michael

Shifter, did offer an opinion on whether Plaintiffs could safely file their claims in Colombia.
After discussing the dramatic improvement in Colombian security and the dramatic decrease
in violent crime (Shifter Decl. 22-28), Shifter unequivocally stated: I do not believe that
Colombian citizens asserting in civil lawsuits in Colombia that foreign corporations should share
responsibility for acts of violence by former AUC members would expose themselves to a
heightened security risk. (Id. 36.) Shifter explained: In fact, this is an increasingly common
and vocal refrain among ordinary Colombian citizens, the Colombian media, and Colombian
politicians, with rare if any reports of proponents of this position suffering violent repercussions
5

E.g., Third Am. Compl. 1-27 (D.E. 558); Seventh Am. Compl. 1-20 (D.E. 557); Third Am.
Compl. 1126-2031 (D.E. 575); Third Am. Compl. 5-23, Case No. 07-cv-60821 (D.E. 186).

10

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as a result. (Id.) After reviewing Plaintiffs declarations and materials, Shifter stands by this
opinion. (Second Shifter Decl. 2, 7 (attached hereto as Exhibit 2).)
Plaintiffs attack Shifter on numerous grounds, but none has merit.
x

Plaintiffs accuse Shifter of overlooking the violence by former members of paramilitary

groups (Opp.18-19), but Shifter expressly discussed the issue. (Shifter Decl. 29.)

Plaintiffs accuse Shifter of overlooking recent violence against human rights advocates
(Opp. 18), but he discussed this issue as well. (Shifter Decl. 30.) As Shifter explained,
[t]o be sure, Colombia is not yet free from violence. (Id. 29.) But the violence has
dramatically decreased, and President Santos administration has taken a hard line on
threats to human rights and labor leaders and had signed a new law stiffening penalties
for crimes against human rights defenders and journalists. (Id. 31.)

Plaintiffs accuse Shifter of overlooking violence in the banana-growing regions where

many Plaintiffs allegedly live. (Opp. 18-19.) But Shifter did not limit his analysis to any
particular part of Colombia. He analyzed the security of the entire country, including the
banana-growing regions, and concluded that the situation has improved dramatically in
the past few years. (Shifter Decl. 22-23; see Second Shifter Decl. 3-6.) In any
event, if Urab were too dangerous, Plaintiffs could move for change of venue on that
ground. (Second Tamayo Decl. 40.)
Notwithstanding Plaintiffs attacks, Shifters opinion is strongly supported by the record

evidence. That roughly 1,700 Colombians have mediated claims against Chiquita in Colombia,
without using pseudonyms, confirms that suing Chiquita in Colombia would not create a
heightened security risk for Plaintiffs. (FNC Mot. 44.) Plaintiffs brief makes much of the fact
that these unsuccessful mediations have not led to litigation, asserting that Plaintiffs have been
unable to learn anything about the mediations and suggesting that the claimants may not have
proceeded to litigation based on safety concerns. (Opp. 21 n.11.) This is odd given that a dozen
of the Plaintiffs here appear to have been claimants in the mediations. 6 Tellingly, not a single

The names of at least 12 Plaintiffs here exactly match those of Colombian mediation claimants.
(Compare Does 1-144 Third Am. Compl. 1184, 1197, 1206, 1241, 1244, 1253, 1795, 1832
(D.E. 575); Moreno Seventh Am. Compl. 46, 255, 560, 673-75, 799 (D.E. 557), with D.E.
741-6, at 31, 35, 38, 40; D.E. 741-7, at 4; D.E. 741-8, at 5, 9, 15-16, 20.)

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Case 0:08-md-01916-KAM Document 899 Entered on FLSD Docket 08/21/2015 Page 18 of 38

one has submitted a declaration stating that he or she did not proceed to litigation in Colombia
because of safety concerns. In the absence of such proof, an equally plausible explanation is that
claimants in Colombia are waiting to see what happens with the U.S. litigation. In any event,
there is no evidence to support Plaintiffs speculation that Colombians who feel safe enough to
mediate claims against Chiquita in their own names in Colombia would feel threatened to litigate
the same claims there.
Shifters conclusion is also supported by the Justice-and-Peace proceedings, in which
tens of thousands of Colombians and their counsel have faced former paramilitary members in
formal judicial proceedings designed specifically to further the victims rights. (FNC Mot. 4445.) Plaintiffs dispute the relevance of this fact by contending that victims who participate in
Justice-and-Peace proceedings are not adverse to the paramilitaries. (Opp. 20.) This is
inaccurate: victims participate as parties in those proceedings and their representatives have
openly advocated for longer prison sentences for some paramilitaries. (See, e.g., Colombian
Supreme Court Decision on Prez Guzmn 15 (Mar. 4, 2015) (attached hereto as Exhibit 3)
(noting that victims counsel favored paramilitarys exclusion from Justice-and-Peace process).)
That thousands of Colombian victims are participating in Colombian proceedings involving their
Colombian paramilitary attackerswithout using pseudonymsunderscores that there is no
reason to think that these Colombian Plaintiffs cannot safely sue Chiquita in their home country.
C.

Plaintiffs Allegations of Corruption and Delay Are Inadequate Under

Established Eleventh Circuit Precedent.

Plaintiffs contend that Colombia is an inadequate forum because of pervasive . . .

corruption and excessive delay. (Opp. 22-23.) But many U.S. courts have held that
Colombian courts are adequate for FNC purposes (see FNC Mot. 21 n.18 (collecting cases)), and

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Plaintiffs cite no caseand Chiquita is aware of nonein which a U.S. court has held that
Colombian courts are too corrupt or too slow to provide an adequate forum.
To prevail on their corruption argument, Plaintiffs must present significant evidence of
bias or partiality that is typically associated with the adjudication of similar claims, and that
these conditions are so severe as to the call the adequacy of the forum into doubt. Leon, 251
F.3d at 1312. Plaintiffs cannot possibly meet this burden; they offer no evidence whatsoever to
suggest that Colombian citizens would be treated unfairly in their own courts if they were to
bring claims against a U.S. corporation and its U.S. officers.
Plaintiffs provide anecdotal accounts of corruption in Colombia, but none involved civil
claims brought by Colombian citizens against foreign defendants. Plaintiffs declarants instead
focus on irrelevant issues such as whether corruption and violence have influenced the exercise
of prosecutorial discretion in bringing criminal charges against former paramilitary members.
(Andreu Decl. 12-15; Lpez Decl. 19-20.) Plaintiffs declarants also discuss incidents in
which criminal judges have apparently accepted bribes. (Andreu Decl. 10; Lpez Decl. 30.)
These incidents did not involve judges who would be hearing Plaintiffs claims (Second Tamayo
Decl. 59-63), and Plaintiffs never explain how the incidents have any bearing on their claims.
As for their excessive delay argument, Plaintiffs concede that this argument rarely
succeed[s] (Opp. 23), and they cite no case law suggesting that it should succeed here.
Plaintiffs instead rely on a declaration stating that proceedings in Colombia could take 15 years.
(Arrubla Decl. 62.) Arrubla is mistaken. Civil proceedings in Colombia do not exceed[] 7 or
8 years as a general rule, and likely will move even more quickly now because the Colombian
rules of procedure were amended recently to expedite proceedings. (Second Tamayo Decl.
35.) Even if Arrubla were correct, however, 15 years is significantly less than the extreme

13

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amounts of delay that the Eleventh Circuit has suggested would render a forum inadequate.
Leon, 251 F.3d at 1312 (delays of up to 25 years may make a forum inadequate).
D.

Chiquitas Stipulation Ensures the Adequacy of Colombian Courts.

Plaintiffs challenge Chiquitas stipulation that it will toll the Colombian statute of
limitations as of the date that each Plaintiff filed suit in the United States. (Opp. 24-25.)
Plaintiffs contend that this stipulation is insufficient on three grounds, but none has merit. 7
First, Plaintiffs contend that the stipulation is inadequate because Chiquita may later
assert a limitations defense against claims that were time-barred before Plaintiffs filed suit in the
U.S. (Id.) By tolling the limitations period, however, Chiquita has ensured that Plaintiffs are not
prejudiced by the time that has lapsed between the filing of their claims in the U.S. and their
dismissal of those claims here. That is all Chiquita must do. See Tazoe v. Airbus S.A.S., 631
F.3d 1321, 1335 (11th Cir. 2011) (affirming FNC dismissal where defendant agreed to toll any
applicable statute of limitations in Brazil). What Plaintiffs seek, by contrast, is for Chiquita to
waive limitations defenses even as to claims that were time-barred before a plaintiff sued in the
United States. Courts have repeatedly held that an FNC motion should be granted without
requiring the defendant to waive a valid limitations defense where a plaintiff waits until after the
limitations period has run in the most convenient forum before filing suit in the U.S. See, e.g.,
Chang v. Baxter Healthcare Corp., 599 F.3d 728, 736 (7th Cir. 2010) (collecting cases). 8
7

Plaintiffs assert that Chiquita has conceded that most of Plaintiffs claims are timely in U.S.
courts. This is incorrect. Plaintiffs claims are untimely in the United States unless Plaintiffs
prove they are entitled to equitable tolling, which Chiquita disputes they will be able to do, and
Chiquita has asserted statute-of-limitations defenses in its answers. (See, e.g., D.E. 741, at 8-16.)
8

Plaintiffs cite King v. Cessna Aircraft Co., 562 F.3d 1374, 1384 (11th Cir. 2009) to support the
assertion that defendants must ensure that a plaintiffs claim will be timely in the foreign
jurisdiction. (Opp. 24.) But in King, the defendant stipulated to waiving any limitations defense,
and the court simply modified the judgment to reflect that stipulation. See Appellant Br., 2008
WL 2442125, *47 n.22; King, 562 F.3d at 1384.

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Case 0:08-md-01916-KAM Document 899 Entered on FLSD Docket 08/21/2015 Page 21 of 38

Second, Plaintiffs contend that the stipulation is inadequate because it does not waive
limitations defenses against putative class members. (Opp. 24.) According to Plaintiffs, because
the New Jersey complaint contains class allegations, Chiquitas stipulation should also apply to
the purported class. (Id.) But putative class members are not parties to this litigation and have
no claims before the Court. See Smith, 131 S. Ct. at 2379. Plaintiffs do not identify any case in
which a defendant waived potential defenses against non-parties as a condition of FNC
dismissal, and they offer no compelling reason for why this case should be the first.
Plaintiffs attempt to justify extending the stipulation to non-parties by invoking American
Pipe & Construction Co. v. Utah, 414 U.S. 528 (1974), which permitted tolling of potential
federal claims by putative class members as of the date on which a class complaint was filed.
(Opp. 24.) But American Pipe created a tolling rule under federal law, and thus is applicable
only within the federal court system in federal question class actions. Clemens v.
DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008). If the Court grants Chiquitas
motion to dismiss and these putative class members bring claims in Colombia, their claims will
be governed by the Colombian statute of limitations, and thus will be entitled to tolling only
insofar as Colombian law provides for it. See Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454,
463 (1975) (Any period of limitation . . . is understood fully only in the context of the various
circumstances that suspend it from running against a particular cause of action.). Chiquita
therefore need not stipulate that individuals who are not part of this litigation can file suit in
Colombia and take advantage of a tolling rule applicable under U.S. federal law. See In re
Banco Santander Securities-Optimal Litig., 732 F. Supp. 2d at 1332 n.13 (holding that defendant
need not consent to suit by putative class members as condition for FNC dismissal).

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Third, Plaintiffs contend that Chiquitas stipulation is unenforceable as a matter of

Colombian law. (Opp. 25.) That is simply wrong. Plaintiffs and their expert ignore Article
2514 of the Colombian Civil Code, which states that [t]he statute of limitations may be waived
expressly or tacitly. (Second Tamayo Decl. 44.) Plaintiffs argument that parties may not
alter public order laws through agreement misses the point: Chiquita cannot alter the law, but
it can refrain from invoking a statute-of-limitations defense available under Colombian law, and
that is what it has stipulated to do. (See id.) Chiquitas stipulation will be effective, moreover,
even if Chiquita impleads a third party and that party asserts a limitations defense. The thirdparty defendants limitations defense would apply only against the claims asserted by Chiquita
against it, and not against the Plaintiffs claims against Chiquita. (Id. 45-47.) 9
II.

The Private Interest Factors Overwhelmingly Support Dismissal.

Plaintiffs argue that the private-interest factors favor keeping their cases in the U.S. by

focusing primarily on the enforceability of a Colombian judgment (Opp. 12-16), and by claiming
that their choice of forum should be given substantial deference (id. at 11-12; Wolf Opp. 12).
Neither point is correct.
Plaintiffs concerns about judgment enforceability do not justify denying Chiquitas
motion, because a Colombian judgment would be enforceable in the U.S. unless Plaintiffs
procure it by fraud. Plaintiffs are also wrong to assert that their choice of forum is entitled to
substantial deference. (Opp. 12.) Both the Supreme Court and the Eleventh Circuit have
9

The Court can address this concern by resuming jurisdiction if Chiquitas stipulation is deemed
unenforceable. But the Court should reject Plaintiffs request to resume jurisdiction if litigation
in Colombia becomes impossible . . . for any reason. (Opp. 45.) This request would be a
recipe for mischief, as it would give Plaintiffs a reason to defeat their own claims in Colombia in
order to return to the U.S.an approach taken by some of Mr. Collingsworths other clients. See
Aldana v. Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349, 1357 (11th Cir. 2014) (refusing
to reward plaintiffs gamesmanship by reinstating claims dismissed for FNC after plaintiffs
filed a complaint in Guatemala alleging that the claims were barred under Guatemalan law).

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repeatedly held that a foreign plaintiffs choice of forum is given less deference because the
forum was likely chosen for reasons other than convenience. See, e.g., Paolicelli v. Ford Motor
Co., 289 F. Appx 387, 390 (11th Cir. 2008); Sinochem Intl Co. v. Malaysia Intl Shipping
Corp., 549 U.S. 422, 430 (2007). When the private-interest factors are properly balanced, they
clearly support dismissing Plaintiffs claims.
A.

The Vast Majority of Evidence Is More Accessible in Colombia.

The Eleventh Circuit has held that access to evidence is [p]erhaps the most important
private interest factor, and that dismissal on FNC grounds is warranted where the vast
majority of the evidence is found in a foreign forum. Ford, 319 F.3d at 1308, 1309 n.21;
Aldana, 578 F.3d at 1292; Tazoe, 631 F.3d at 1331. And this Court has already acknowledged
that the cost of discovery associated with investigating these claimsmore than 6,000
killings and acts of torture that occurred on foreign soilwill be nothing less than
extraordinary. (D.E. 518, at 5.) Given this case law and the Courts prior statements, Plaintiffs
cannotand do notsuggest that this factor supports keeping their cases in the United States.
Instead, they merely attempt to show that the factor is neutral. (Opp. 27.) That attempt fails.
Plaintiffs attempt to avoid the Eleventh Circuits controlling precedent by
mischaracterizing Chiquitas reliance on Ford. (Opp. 26-27.) Ford is important not because it
created a categorical rule for secondary liability claims, but because the district court there
abused its discretion by denying an FNC motion on facts similar to those presented here. In
Ford, the underlying tort occurred in Hong Kong, and thus the evidence relating to the tort was
located there. 319 F.3d at 1308-09. The district court nevertheless denied the defendants FNC
motion because the plaintiff alleged that U.S. defendants had conspired to bring about the tort in
Hong Kong, and the evidence of the conspiracy was in the U.S. Id. at 1309. The Eleventh
Circuit held that a district court cannot focus solely on secondary-liability evidence, but instead
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must consider the location of the evidence for all elements of the claims, including the evidence
necessary to prove the underlying tort. Id. at 1308. When all evidence was considered in Ford,
FNC was warranted because the vast majority was in the foreign forum. Id. at 1309 n.21. The
same is true here.
Plaintiffs also attempt to avoid Fords clear holding by interpreting the decision to
require a court to consider only the location of dispositive evidence. (Opp. 27.) Ford contains
no such limitation, but even if it did, this limitation would not help Plaintiffs. 10 Plaintiffs invoke
their purported dispositive evidence rule to argue that some of the evidence located in
Colombia is not dispositive. (Id.) That argument hardly helps Plaintiffs because it implicitly
concedes that the rest of the evidencesuch as evidence relating to each of the more than 6,000
acts of violence at issueis dispositive and is located in Colombia. In contrast, none of the
evidence located in the United States is dispositive: since the alleged meetings between Chiquita
and paramilitaries occurred in Colombia and Chiquitas extortion payments were made in
Colombia, Plaintiffs can attempt to hold Chiquita liable for violence committed by the
paramilitaries without relying on the evidence located in the U.S. (Cf. Op. & Order 70-73 (D.E.
412) (relying on Colombia-based allegations to hold that plaintiffs had adequately pled
secondary liability claims under the Alien Tort Statute).)
Plaintiffs concede that much of the relevant evidence is located in Colombia but argue
that this fact is immaterial because they are prepared to meet th[e] burden of proving that
Plaintiffs were actually killed by the AUC. (Opp. 28.) But of course Chiquita is not obligated
10

Plaintiffs also cite La Seguridad v. Transytur Line, 707 F.2d 1304, 1308-09 (11th Cir. 1983)
(Opp. 27), but in that case there was uncertainty as to which legal issues were dispositive of
plaintiffs claims, and so the Eleventh Circuit instructed the district court to delineate what
issues will be dispositive and where the evidence relevant to those issues will be found. 707
F.2d at 1309 (emphasis added). There is no such uncertainty here.

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to rely upon whatever evidence Plaintiffs choose to produce. Instead, a court must consider both
the evidence needed to prove a claim and the evidence needed to disprove it. Ford, 319 F.3d at
1308. The evidence necessary to prove and disprove each act of violence here will be
substantial. Even if the parties seek testimony from only five Colombian witnesses per
incidentan unreasonably small number for a wrongful death casethe parties will still need to
obtain evidence from more than 30,000 Colombian witnesses to try the more than 6,000 claims
pending before the Court. 11
Plaintiffs suggest that little evidence will be necessary to prove each claim because,
under the law of this case, they merely need to show that Defendants knew or intended for the
AUC to torture and kill civilians. (Opp. 28.) But Plaintiffs rely on the Courts analysis of their
ATS claims, which are no longer part of the case. See Cardona v. Chiquita Brands Intl Inc.,
760 F.3d 1185, 1191-92 (11th Cir. 2014). The parties agree that, under Colombian law,
Plaintiffs must establish a causal connection between Chiquitas alleged conduct and the killings
at issue. (See Tamayo Decl. 30; Arrubla Decl. 34.) Plaintiffs cannot establish causation
where the killing at issue took place for a reason unrelated to Chiquitas alleged support of
paramilitaries. Many Plaintiffs specifically allege in the complaints that their relatives were
killed for reasons unrelated to Chiquita, such as over disputes about money, stolen property, or
other personal grievances. 12 Other Colombian claimants have fraudulently misrepresented that
their relatives were killed by the AUC. (See, e.g., Primeras condenas a falsas vctimas de la

11

A wrongful death case recently tried by this Court demonstrates that a five-witness estimate is
unreasonably low. See In re Air Crash Near Rio Grande Puerto Rico on December 3, 2008, No.
9:11-md-2246-KAM (S.D. Fla.). That case involved one accident resulting in three deaths, and
the parties submitted a potential witness list consisting of 50 individuals. E.g., Pls. and Ds
Witness Lists, No. 9:11-md-2246-KAM (D.E. 426, 429).

12

See, e.g., D.E. 576, 161-67, 265-68, 322-35, 393-96, 401-05, 499-502, 559-62.

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Case 0:08-md-01916-KAM Document 899 Entered on FLSD Docket 08/21/2015 Page 26 of 38

masacre de Mapiripn, El Tiempo, Mar. 13, 2015 (attached as Exhibit 4) (describing fraud
convictions against false victims of paramilitary massacre); D.E. 502-14, at 7-8.) Chiquita will
need to probe each of the violent incidents through numerous witnesses and documents that are
located only in Colombia. If the litigation proceeds in the United States, there would be no
compulsory process to secure this enormous volume of crucial evidence. See Tazoe, 631 F.3d at
1331-32. 13
The process of obtaining evidence from Colombia for use in the United States will be
incredibly burdensome, time-consuming, and costlyas evidenced by the recent efforts to take
just two depositions in Colombia. And, in the end, Chiquita may not even be able to obtain all of
the evidence it wishes to present. As Chiquita explained in its motion, it is doubtful that
Plaintiffs can obtain visas to travel to the U.S. for deposition and trial, and the same is true for
third-party witnesses. (FNC Mot. 28-30.) Chiquita will be substantially disadvantaged if the
trials in the U.S. have no live testimony from Plaintiffs and key third-party witnesses, and instead
consist of U.S. juries listening to translators read portions of depositions taken in Spanish. (Id. at
31-32.) Plaintiffs do no dispute these points. They simply ignore them.
Plaintiffs also express concern over their access to U.S.-based evidence if this cases are
tried in Colombia. (Opp. 29.) But they ignore Chiquitas offer to produce all relevant,
13

Nor would there be compulsory process to obtain evidence to rebut Plaintiffs allegations of
state action, a core element of Plaintiffs TVPA claims against the Individual Defendants.
Plaintiffs contend that this element will require little additional factual development because it
is well accepted that there was a symbiotic relationship between the Colombian government
and the AUC, a purported fact that [d]efendants do not contest. (Opp. 27-28.) To the contrary,
Chiquita does contest the existence of any such symbiotic relationship, and it also contests that
evidence of a general relationship is sufficient to prove state action with respect to any of the
6,000 alleged incidents of violence. Indeed, this Court certified and the Eleventh Circuit
accepted for interlocutory review the issue of whether state action has been properly pled for
these 6,000 individual torts, an issue the court of appeals did not need to reach. (Order Granting
Ds Mot. for Certification 11 (D.E. 518); Eleventh Cir. Mandate 11 (D.E. 693).)

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unprivileged documents in the United States. (Hall Decl. 2 (D.E. 741-14).) Plaintiffs have
identified no other U.S. documents they need to obtain, nor is there any reason to think that
relevant documents would be outside of Chiquitas control. Even without Chiquitas offer,
Plaintiffs will have access to thousands of documents about Chiquitas payments that are already
publicly available or soon will be. See Chiquita Brands Intl Inc. v. SEC, No. 14-5030, 2015 WL
4385618 (D.C. Cir. Jul. 17, 2015). 14
Plaintiffs concern about the availability of knowledgeable U.S. witnesses is similarly
misplaced. (Opp. 29.) Plaintiffs have already added as defendants those individuals whom they
believe have the most significant personal involvement in the issues presented here, and those
defendants have consented to jurisdiction in Colombia. (D.E. 741-15 to -22.) Chiquita has
agreed to produce any additional witnesses under its control, and it has an interest in producing
those who are no longer under its control to support its defenses. These additional witnesses
no more than a few dozen (see D.E. 202-3, at 18-23)may be summoned in Colombia through
letters of request and similar methods recognized under Colombian law. (FNC Mot. 32; Tamayo
Decl. 44.) Any burden imposed by this process pales in comparison to the burden of trying to
summon thousands of Colombians for testimony in the United States.
Finally, Plaintiffs attempt to shift the focus from access to evidence to the complexity of
trying these cases. (Opp. 29-30.) Rehashing their judicial burden argument, Plaintiffs contend
that the real question is whether litigation would be more complicated in the U.S. or in
Colombia. (Id. at 35.) As discussed below, Plaintiffs overstate the challenges of litigating in

14

Plaintiffs demand that Chiquita stipulate to discovery under the Federal Rules of Civil
Procedure (Opp. 44), but Chiquita has already agreed to produce evidence in its possession, and
plaintiffs may obtain any additional U.S.-based evidence under Colombian rules of civil
procedure. (See Second Tamayo Decl. 20-30.)

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Colombia. See infra Part III.C. In any event, the question for this factor is not which forum has
less complicated procedures; it is which forum provides better access to evidence. Ford,
319 F.3d at 1308. The answer to that question is clear: Colombia. Just as in Aldana, Ford, and
Tazoe, this factor alone overwhelmingly favors dismissal on FNC grounds.
B.

The Prospect of Litigating in Two Countries Favors Dismissal.

Plaintiffs contend that denying Chiquitas motion would not create the prospect of
litigating in two countries because the mediation demands by nearly 1,700 alleged paramilitary
victims in Colombia have not ripened into litigation and because the claims may be time-barred.
(Opp. 38.) This argument ignores the fact that these individuals may sue at any moment and
may rely on tolling theories similar to the theories that Plaintiffs rely on here. (Second Tamayo
Decl. 48-49.) The prospect of duplicative litigation thus also favors dismissal.
C.

Potential Third-Party Defendants May Be Impleaded Only In Colombia.

Plaintiffs do not deny that virtually all of the potential third-party defendants are located
in Colombia and cannot be impleaded in the United States. See Son, 2008 WL 4186979, at *9
([T]he inability to implead other parties directly involved in a controversy is a factor weighing
heavily against the plaintiffs choice of forum.). Plaintiffs nevertheless contend that this factor
should not be weighed in Chiquitas favor (Opp. 31-32), but none of their reasons has merit.
Plaintiffs contend that this factor supports dismissal only if all potential third-party
defendants could be joined in Colombia, and that this test is not met here because one potential
third-party defendant may no longer be present in Colombia. (Id.) It is irrelevant whether some
potential third-party defendants have left Colombia because Colombian jurisdictional principles
would still allow them to be added to the case. (See Tamayo Decl. 25-26.)
Plaintiffs also fault Chiquita for not specifically naming the potential third-party
defendants. (Opp. 31.) But it was Plaintiffs, not Chiquita, who alleged their existence without
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actually naming them. (See, e.g., Third Am. Compl. 2058 (D.E. 575).) Chiquita can implead
some or all of those third parties only in Colombia and only after it discovers their identities, and
thus this factor weighs heavily in favor of dismissal. See Tazoe, 631 F.3d at 1332.
D.

Plaintiffs Concern Over Enforcing a Colombian Judgment Is Unwarranted

and Does Not Provide a Reason for Denying Chiquitas Motion.

Plaintiffs urge the Court to treat judgment-enforceability as essentially a threshold

dispositive factor. In truth, however, this factor is only one of many private interest factors, see,
e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)of which the Eleventh Circuit has
identified access to evidence as the most important. Ford, 319 F.3d. at 1308. Indeed, in many
cases, including Ford, courts have held that FNC was warranted without even discussing
enforcement of a foreign judgment, even though there was no reason to think that the U.S.
defendants in those cases had assets in the foreign jurisdiction.
Here, Plaintiffs greatly overstate the difficulty in enforcing a foreign judgment in U.S.
courts. If Chiquita refused to satisfy a Colombian judgment and Plaintiffs returned to this Court,
enforcement would proceed under Florida law, and the Colombian judgment would be presumed
valid and treated as if it were a judgment from another U.S. jurisdiction. Fla. Laws 55.503,
55.604. 15 Given that the judgment is presumed valid, Chiquita would bear the burden of
proving that the judgment is unenforceable. Id. 55.604(2); see also Kramer v. von MitschkeCollande, 5 So. 3d 689, 690 (Fla. Dist. Ct. App. 2008). Virtually all of the grounds for
challenging a foreign judgment would be unavailable to Chiquita, because they are either
inapplicable to Plaintiffs claims or because Chiquita has already conceded that they do not

15

The laws of New Jersey, where Chiquita is incorporated, and North Carolina, where it is
currently headquartered, are similar. See N.J. Stat. Ann. 2A:49A-19 to -20; N.C. Gen. Stat.
1C-1853(a), 1C-1856(a).

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apply. Fla. Laws 55.605(1)-(2). The only conceivable ground that Chiquita could invoke is
that the judgment was procured by fraud. Id. 16
None of the cases cited by Plaintiffs support their argument. In McLane v. Marriott Intl,
Inc., the court held only that the judgment-enforceability factor strongly weigh[e]d in favor of
dismissal because the defendant had stipulated to satisfying a foreign judgment. 960 F. Supp.
2d 1351, 1360 (S.D. Fla. 2013). The court did not suggest that the defendant was required to
make this stipulation, or that the FNC motion would have been denied absent the stipulation. In
Carijano v. Occidental Petroleum Corp., the court held it may be difficult for the plaintiff to
enforce a Peruvian judgment because the defendants expert presented compelling evidence of
disorder in the Peruvian judiciary. 643 F.3d 1216, 1232 (9th Cir. 2011). Given that the
defendant could persuasively attack any Peruvian judgment on due process grounds, the court
concluded that this private-interest factor weighed against dismissal. Id. Unlike that case,
Chiquita has argued that Colombian judicial proceedings comport with due process. And, in
Lexington Ins. Co. v. Forrest, the courts FNC analysis contains only one sentence addressing
judgment enforceability, and it treats the factor as irrelevant because the assets at issue were
located in three countries, and thus separate enforcement proceedings would be necessary
regardless of where the claims were tried. 263 F. Supp. 2d 986, 1001 (E.D. Pa. 2003). 17
Plaintiffs repeatedly discuss the Chevron fiasco to show how difficult it is to enforce a
foreign judgment. (Opp. 14-16.) But that case only proves the point: the Ecuadorian judgment
16

While a Colombian judgment could be challenged if Chiquita does not receive timely notice of
the lawsuit in Colombia, there is no reason to believe this will happen. And, contrary to
Plaintiffs assertion, given its FNC arguments, Chiquita cannot argue in a future enforcement
proceeding that the entire Colombian judiciary is corrupt or biased. See Zedner v. United States,
547 U.S. 489, 504 (2006) (discussing the doctrine of judicial estoppel).

17

Plaintiffs ignore Lexingtons FNC discussion and instead cite only the portion of the courts
opinion addressing personal jurisdiction. (See Opp. 13.)

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there was secured through bribery and fraud by plaintiffs counsel. Chevron Corp. v. Donziger,
974 F. Supp. 2d 362, 383-86, 389-90, 511-34, 644 (S.D.N.Y. 2014). Plaintiffs need not fear a
replay of the Chevron fiasco here so long as they do not engage in similar misconduct.
For the same reason, Plaintiffs demand that Chiquita waive all defenses to
enforcement of a Colombian judgment and stipulate to satisfy any such judgment is improper.
(Opp. 43.) Such a waiver and stipulation would do no more than preclude Chiquita from
challenging a Colombian judgment obtained by fraudand it would thus invite the very type of
misconduct that took place in Chevron. A stipulation on enforcement is thus neither appropriate
nor necessary here. See In re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 809
F.2d 195, 205 (2d Cir. 1987) (concluding that it was error to require the parties to stipulate to the
enforcement of an Indian judgment in part because N.Y. law on the recognition of foreigncountry judgments fully served that purpose).
Judgment enforceability concerns are inherently speculative because they depend on the
future outcome of the litigation and the parties responses to it. In contrast, the costs and burdens
of litigating these cases in the U.S. are substantial and certain. Because Plaintiffs concerns
about speculative enforcement problems do not outweigh the certain costs, burdens, and
inconvenience of litigating these cases in the U.S., the Court should grant Chiquitas motion. 18
III.

The Public Interest Factors Also Support Dismissal.

A.

Colombia Unquestionably Has a Greater Interest in this Litigation.

Plaintiffs concede that Colombia has a substantial interest in the litigation, but they
nevertheless contend that Chiquita has overstated Colombias interest. (Opp. 35.) In making
18

Plaintiffs also urge the Court to require Chiquita to pay at least $100 million in an escrow
account. (Opp. 43.) Plaintiffs cite no authority to support this stipulation. Nor do they offer
any good reason why Chiquita should essentially stipulate to liability before any claim is tried.

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this argument, however, Plaintiffs ignore Colombias greater interest: providing justice for
injuries suffered by its own citizens on its own soil. See, e.g., Tazoe, 631 F.3d at 1334 (a
sovereign has a very strong interest when its citizens are allegedly victims and the injury occurs
on home soil); Gilbert, 330 U.S. at 509 (There is a local interest in having localized
controversies decided at home.). Plaintiffs also give little weight to the fact that Colombia has
made a national priority in recent years of addressing its internal conflict and the plight of its
victims. (Shifter Decl. 35; Tamayo Decl. 62-67.)
Plaintiffs also overstate the interest of the United States. Plaintiffs point to their
remaining TVPA claims as evidence of the U.S. interest at stake (Opp. 34), but the Eleventh
Circuit has rejected the notion that those claims make U.S. interests superior to those of a foreign
country when the disputeas hereis quintessentially foreign. Aldana, 578 F.3d at 1298-99.
Indeed, the TVPA conditions a foreign plaintiffs right to sue on exhausting remedies abroad.
TVPA, 2(b); (see Ds Consolidated Mot. to Dismiss 14 (D.E. 735).) Whatever interests the
United States had on these matters were vindicated in its criminal proceeding against Chiquita,
and the incremental deterrence that would be gained if this trial were held in an American court
is likely to be insignificant. Piper Aircraft, 454 U.S. at 260.
B.

Colombian Courts Are Better Suited to Interpret Colombian Law.

If these cases are litigated here, U.S. courts and juries will have to apply Colombian law,
which governs all remaining claims against Chiquita and claims against the Individual
Defendants. 19 Colombian courts are the best equipped to interpret and apply their laws,
Paolicelli, 289 F. Appx at 391, a very important factor that weighs in favor of FNC

19

In a footnote, plaintiffs ask this Court to reconsider its dismissal of all U.S. state-law claims
(Opp. 40 n.20), but the Court already denied reconsideration on that issue (D.E. 516).

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dismissal, see Ford, 319 F.3d at 1310. The TVPA claims against Individual Defendantswhich
Plaintiffs strategically added in an attempt to avoid dismissal after Chiquitas first FNC
motiondoes not dictate a different result. See, e.g., Aldana, 578 F.3d at 1286 (affirming FNC
dismissal of TVPA claims).
C.

Litigating Plaintiffs Claims in the U.S. Would Be Unduly Burdensome on

U.S. Courts and Juries.

Plaintiffs argue that claims premised on Colombian injuries suffered by Colombians in

Colombia at the hands of Colombians should remain in the U.S. because trying them in their
home country would be too burdensome for courts there. (Opp. 35-36.) Under governing law,
however, the focus is on the burden imposed on U.S. judges and juries if they must decide
foreign-centered disputes, pursuant to foreign law, where much of the evidence must be
translated. See, e.g., Piper Aircraft, 454 U.S. at 260 (The American interest in this accident is
simply not sufficient to justify the enormous commitment of judicial time and resources that
would inevitably be required if the case were to be tried here.); Tazoe, 631 F.3d at 1334 (noting
the unnecessary burden on local jurors who will be compelled to serve for lengthy trials that
have little or no connection to this forum); Son, 2008 WL 4186979, at *10 (Jury duty is a
burden that ought not to be imposed upon the people of a community which has no relation to the
litigation.). As these cases make clear, judges and juries in Florida, New York, New Jersey, and
Washington, D.C. should not have to decide thousands of claims brought by Colombians under
Colombian law for violent acts in Colombia.
Plaintiffs contend that their claims can be resolved more efficiently in the U.S. because
the New Jersey suit is a putative class action. (Opp. 36.) But there is virtually no chance that a
class could be certified here. (FNC Mot. 35.) Personal injury cases do not proceed as class
actions because individualized issuesincluding injury and causationpredominate over any

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common issues. See, e.g., Amchem Products, Inc. v. Windsor, 521 U.S. 591, 622-25 (1997); (see
also Op. & Order, No. 07-cv-60821-KAM, at 7 (D.E. 26) (noting that specific factual claims of
these Plaintiffs will predominate, and individual issues of causation will pervade the litigation)).
And even if a class were certified, it would not simplify proceedings because the rest of the
6,000 Plaintiffs here have never suggested that they would dismiss their claims if a class were
certified, rather than opt out of the class and continue to litigate their individual claims.
Plaintiffs also contend that, even if a class is not certified, their claims can be resolved
more efficiently in the U.S. by conducting bellwether trials. (Opp. 36.) This argument is
illusory. Regardless of whether the cases are tried in the U.S. or Colombia, Chiquita may litigate
each claim to judgment, or it can settle the claims after (or before) a few claims are tried.
Plaintiffs also overstate the burden of proceeding in Colombia based on their mistaken
view that their claims cannot be consolidated there. (Id. at 37.) As Plaintiffs own witness
acknowledged, claims may be consolidated in Colombia if they arise from the same cause,
have the same objective, or specifically make use of the same evidence. (Arrubla Decl.
18.) Plaintiffs claims clearly satisfy this requirement, as they have repeatedly stated that they
will make use of the same evidence regarding Banadexs extortion payments to paramilitaries.
(Second Tamayo Decl. 7-12.) 20 As a result, if they litigate in Colombia, Plaintiffs may file
their claims separately or jointly, before one or more courtsboth options are available to them
under Colombian law. (Id. 5-15.) Evidence taken or submitted in one case may be
transferred to another if Plaintiffs sue in multiple Colombian courts. (Id. 16, 32.) If they

20

Arrubla states that the cases are unlikely to be consolidated based on his view that each
plaintiff is suing about individual attacks. (Arrubla Decl. 18.) But the claims can still be
consolidated because they make use of the same evidence regarding Chiquitas payments to
paramilitaries. (Second Tamayo Decl. 4-15.)

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chose to sue in one Colombian court, the assigned judge would evaluate all evidence and decide
all issues in one ruling. (Id. 5, 8.)
Plaintiffs accuse Chiquita of being wrong about whether Colombian courts can handle
foreign evidence. (Opp. 37.) But their own witness agreed with Chiquita on this point by
stating only that, although Colombian courts can handle foreign evidence, translation issues
would pose a series of difficulties. (Arrubla Decl. 21.) Contrary to Plaintiffs view,
Colombian law would allow the parties to provide translations of non-Spanish documents so
long as they are prepared by one of the many certified translators available in Colombia for this
purpose. (Second Tamayo Decl. 18-19.) Colombia is therefore not meaningfully different
from the United States with regard to translating documents. The only difference is that far more
translations would be required if the cases proceeded in the United States.
Plaintiffs also ask the Court to take a dim view of the timing of Chiquitas FNC
motion. (Opp. 42.) But the fact that Chiquita litigated threshold jurisdictional issues before
moving to dismiss the claims on FNC grounds does not affect the public-interest calculation.
The Eleventh Circuit has found FNC dismissal warranted even in cases whereunlike here
extensive discovery has taken place. See Tazoe, 631 F.3d at 1333-34 (rejecting plaintiffs
argument that the defendants were gaming . . . the system by having engaged in extensive
merits discovery involving over one million pages of documents and 145 depositions).
In short, Plaintiffs could litigate in one or a few Colombian courts at their discretion;
Colombian law provides specific procedures to access the relatively small pool of evidence and
witnesses found outside Colombia; translations of the relatively few English-language
documents could be easily prepared by one of numerous Colombian translators certified for this
purpose; testimony taken abroad would be given full weight; the testimony of Plaintiffs relatives

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would not necessarily be considered suspect; and witnesses could be identified and called for
testimony at various times, even before the litigation commences. (Second Tamayo Decl. 532.) Given the superior interests of Colombia in the subject matter of this litigation, its courts
should bear the administrative burdens of litigating these cases.
D.

Litigating Plaintiffs Claims in the U.S. Would Raise Comity Concerns.

Plaintiffs contend that comity concerns favor denying Chiquitas motion becauseif
Chiquita loses in Colombia, refuses to satisfy the judgment, and then challenges enforcement of
the judgment in U.S. courtsthe U.S. court could be put in the position of casting aspersions on
the conduct of the foreign proceeding. (Opp. 39-40.) Plaintiffs have it backwards. Only their
arguments in opposition to this motion, which ask this Court to rule that the Colombian judicial
system is so corrupt, so slow, and so dangerous that it cannot fairly adjudicate claims brought by
Colombian citizens under Colombian law, raise comity concerns. If the Court were to agree with
these arguments, its ruling would be an affront to the dignity and sovereignty of Colombia. See
Aldana, 578 F.3d at 1299; Leon, 251 F.3d at 1312. By contrast, if Chiquita were to challenge
enforceability of a Colombian judgment down the road on the basis of Plaintiffs fraud, that
would call into question the conduct of only a single party in a single proceeding by a single
judgenot the adequacy and competence of the Colombian judicial system as a whole. See
Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1519 (11th Cir. 1994) (comity is not
implicated by challenging a foreign decision rendered by fraud).
CONCLUSION
For the foregoing reasons, the Court should dismiss all claims for forum non conveniens
to the extent they are not otherwise time-barred or inadequate for failure to state a claim.

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Dated: August 21, 2015

John E. Hall
Mark W. Mosier
Shankar Duraiswamy
Jos E. Arvelo
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street NW
Washington, D.C. 20001
Telephone: (202) 662-6000
Facsimile: (202) 662-6291

Jonathan M. Sperling
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Telephone: (212) 841-1000
Facsimile: (212) 841-1010

Respectfully submitted,
/s/ James C. Gavigan, Jr._____________
Sidney A. Stubbs (Fla. Bar No. 095596)
sstubbs@jonesfoster.com
Robert W. Wilkins (Fla. Bar No. 578721)
rwilkins@jonesfoster.com
James C. Gavigan, Jr. (Fla. Bar No. 0085909)
jgavigan@jonesfoster.com
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, Florida 33401
Telephone: (561) 659-3000
Facsimile: (561) 650-5300

Counsel for Chiquita Brands International, Inc.

and Chiquita Fresh North America, LLC

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Case 0:08-md-01916-KAM Document 899 Entered on FLSD Docket 08/21/2015 Page 38 of 38

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document with the Clerk of
the Court using CM/ECF on this 21st day of August, 2015. I also certify that the foregoing
document is being served this day on all counsel of record registered to receive electronic
Notices of Electronic Filing generated by CM/ECF, and in accordance with the Courts First
Case Management Order (CMO) and the June 10, 2008 Joint Counsel List filed in accordance
with the CMO.

By:

/s/ James C. Gavigan, Jr.

Fla. Bar No. 0085909
jgavigan@jonesfoster.com