Chiquita MSJ R 2283

Case 0:08-md-01916-KAM Document 2302 Entered on FLSD Docket 02/25/2019 Page 1 of 40
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
______________________________________________/
07-60821-CIV-MARRA (Carrizosa)
08-80421-CIV-MARRA (N.J. Action) (Does 1-11)
08-80465-CIV-MARRA (D.C. Action) (Does 1-144)
08-80508-CIV-MARRA (Valencia)
08-80480-CIV-MARRA (N.Y. Action) (Manjarres)
10-60573-CIV-MARRA (Montes)
10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Doe 1-677)
17-81285-CIV-MARRA (D.C. Action) (Does v. Hills)
18-80248-CIV-MARRA (John Doe 1)
______________________________________________/
DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT

ON PLAINTIFFS’ COLOMBIAN LAW CLAIMS
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendants Chiquita Brands
International, Inc. (“Chiquita”), Cyrus Freidheim, Carla Hills as the personal representative of the
Estate of Roderick M. Hills, Sr., Charles Keiser, Robert Kistinger, Robert Olson, Keith Lindner,
and William Tsacalis move the Court to enter summary judgment in their favor on the bellwether
Plaintiffs’ Colombian law claims. As explained more fully in the following Memorandum of Law
in Support and as supported by the attached Expert Report on Colombian Law of former
Colombian Supreme Court Justice Jorge Santos Ballesteros, the accompanying Statement of
Material Facts and supporting evidentiary materials, there is no evidence of record to support two
of the three necessary elements for non-contractual civil liability under Colombian law as to each
and every Defendant—fault, damages, and a but-for causal link.
1
TABLE OF CONTENTS
Page
I. INTRODUCTION AND SUMMARY ................................................................................2

II. STANDARD OF REVIEW – American procedural law ....................................................7
III. ARGUMENT - Colombian substantive law .......................................................................8
1. The Court should grant summary judgment on each Plaintiff’s claim under
Colombia law ...........................................................................................................9
2. Plaintiffs’ multiple, individual specific torts are not cognizable under Colombian
law and should be dismissed as a matter of law ......................................................9
3. All remaining Colombian law claims should be dismissed on summary judgment
because Plaintiffs cannot prove that any Defendant’s fault was the but-for cause
of Plaintiffs’ decedents’ deaths ..............................................................................11
(a) There is no evidence of record of who killed any Plaintiff’s decedent .....12
(b) Colombia was in the midst of a civil war between its military and rival
narco-terrorist groups who were competing for control of drug trafficking
....................................................................................................................16
4. Plaintiffs failed to adduce any admissible record evidence that Chiquita
voluntarily paid the AUC .......................................................................................20
5. There is no evidence to support Plaintiffs’ allegation that Chiquita or any
individual Defendant allowed Banadex’s Colombian port facility to be used for
shipments of illegal drugs and weapons, let alone that such use was the but-for
cause of the death of any Plaintiff’s decedent .......................................................21
(a) There is no evidence that Chiquita or any individual Defendant was even
aware before the fact, let alone somehow assisted, the AUC’s smuggling
of weapons into Colombia through Banadex’s port facilities in Turbo .....22
(b) There is no evidence that Chiquita or the individual Defendants facilitated
the AUC’s use of Banadex’s port facilities in Turbo to smuggle illegal
drugs out of Colombia ...............................................................................24
(c) When Banadex personnel concluded, despite their best efforts, that it was
not possible to prevent all shipments of drugs and weapons through its
port in Turbo, Banadex made the voluntary decision to end third-party
shipments for non-banana companies ........................................................27
6. There is no evidence that any individual Defendant’s acts or omissions were the
but-for cause of Plaintiffs’ injuries ........................................................................27
7. Colombian law does not allow punitive damages, so that each Plaintiff’s claim for
punitive damages must be dismissed as a matter of law ........................................33
IV. CONCLUSION ..................................................................................................................34
i
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .............................................................................................................7, 19
Black v. Wigington,
811 F.3d 1259 (11th Cir. 2016) .................................................................................................7
Broadway v. State Farm Mut. Auto. Ins. Co.,

683 F. Appx. 801 (11th Cir. 2017).............................................................................................2
Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .............................................................................................................7, 16
Clark v. Coats & Clark, Inc.,

929 F.2d 604 (11th Cir. 1991) ...................................................................................................7
Cordoba v. Dillard’s, Inc.,

419 F.3d 1169 (11th Cir. 2005) .................................................................................................7
Corporacion Salvadorena de Calzado, S.A. (Corsal, S.A.) v. Injection Footwear

Corp.,
533 F. Supp. 290 (S.D. Fla. 1982) .............................................................................................9
Corwin v. Walt Disney World Co.,

475 F.3d 1239 (11th Cir. 2007) .................................................................................................8
Eclipse Med. v. Am. Hydro-Surgical Instruments,

262 F. Supp. 2d 1334 (S.D. Fla. 1999) ....................................................................................20
Hedberg v. Indiana Bell Tel. Co.,

47 F.3d 928 (7th Cir. 1995) .......................................................................................................7
Ibezim v. Geo Group, Inc.,

No. 17-80572-CIV-MARRA, 2018 U.S. Dist. LEXIS 113542 (S.D. Fla. July
6, 2018) ......................................................................................................................................7
Josendis v. Wall to Wall Residence Repairs, Inc.,

662 F.3d 1292 (11th Cir. 2011) .............................................................................................7, 8
LaChance v. Duffy’s Draft House, Inc.,

146 F.3d 832 (11th Cir. 1998) .................................................................................................20
ii
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ...................................................................................................................7
Melton v. Abston,
841 F.3d 1207 (11th Cir. 2016) ...........................................................................................7, 16
Seguros del Estado, S.A. v. Sci. Games, Inc.,

262 F.3d 1164 (11th Cir. 2001) .................................................................................................9
Warner v. Wood,
743 Fed. Appx. 338 (11th Cir. 2018) .........................................................................................6
Other Authorities
Fed. R. Civ. P. 25(a) ........................................................................................................................5
FED. R. CIV. P. 44.1 ..........................................................................................................................9
Fed. R. Civ. P. 56(a) ........................................................................................................................7
Fed. R. Civ. P. 56(c) ........................................................................................................................7
Fed. R. Civ. P. 56(e) ........................................................................................................................7
iii
MEMORANDUM IN SUPPORT
I. INTRODUCTION AND SUMMARY
These ATS Actions began with multiple Complaints alleging multiple causes of action
under multiple sources of substantive law. At the motion to dismiss stage, the Court winnowed
out those claims that were unsustainable as a matter of law—including all state law claims—even
assuming the truth of the Complaints’ factual allegations, leaving only claims under the Torture
Victim Protection Act (“TVPA”) and Colombian-law claims against some individual Defendants
and claims under Colombian law only against Chiquita and Keith Lindner. This Motion addresses
Plaintiffs’ Colombian-law claims and demonstrates why they fail as a matter of law. Indeed,
without record evidence demonstrating the first and third necessary elements for non-contractual
civil liability under Colombian law as to each and every Defendant––fault, damages, and a but-for
causal link––summary judgment in favor of Chiquita and the individual Defendants is appropriate.
The Court previously ruled that Plaintiffs’ Colombian law claims survived dismissal
because, assuming all the Complaints’ factual allegations to be true, “the claims under Colombian
law adequately inform[ed] Defendants of the factual bases of the claims, and [gave] adequate
notice of Plaintiffs’ intent to rely on foreign law as the bases of those claims.” (DE 1110, p. 35)
But as the Eleventh Circuit has explained: “[T]hat a complaint alleges sufficiently facts to
withstand a motion to dismiss says nothing about whether a plaintiff’s claim will survive ultimately
a motion for summary judgment.” Broadway v. State Farm Mut. Auto. Ins. Co., 683 F. Appx. 801,
806 n.2 (11th Cir. 2017). Indeed, the Court has never considered the merits of Plaintiffs’ claims
under applicable substantive Colombian law––until now.
Unlike the United States, a common law country, Colombia’s civil jurisprudence is largely
based upon the country’s civil code. See N. Bartels & M. S. Madden, “A Comparative Analysis of
United States and Colombian Tort law: Duty Breach and Damages,” 13 PACE INT’L L. REV. 59, 75
(2001) (internal citation omitted). As discussed more fully below, the Colombian legal regime
for non-contractual civil liability differs substantially and substantively from American tort law,
and no reasonable jury could return a verdict for Plaintiffs under that regime on the evidentiary
record before the Court. As a threshold matter, unlike federal and state common law in the United
States, Colombian law does not recognize individual, specific torts, but only the general concept
of fault-based liability. In the words of Jorge Santos Ballesteros, former Justice and Chief
Magistrate of the Civil Cassation Chamber of the Colombian Supreme Court: “[U]nlike what
2
happens in other jurisdictions such as the United States, Colombian law does not have a
classification of unlawful acts (torts) that cause the obligation to indemnify, but rather any
situation, in general culpable, that causes damages is susceptible of reparation.”1 Thus, as a matter
of Colombian law, Plaintiffs cannot recover on their multiple, separate causes of action such as
wrongful death, assault and battery, torture, intentional infliction of emotional distress, negligent
hiring, etc. because those individual actions are unavailable under Colombian law. To the extent
Plaintiffs have asserted the single fault based cause of action recognized under Colombian law, the
viability of that cause of action on summary judgment must be assessed on the three elements for
non-contractual civil liability in Colombia: fault, damage, and a causal link. (Justice Santos
Report, p. 4).
While these elements of non-contractual civil liability in Colombia sound similar to the
elements of negligence under U.S. common law, there are key differences that mandate judgment
as a matter of law against Plaintiffs. Critically, regarding the element of causation, Colombian
law requires Plaintiffs to prove the existence of “but for” causation. Unlike negligence as
construed in every U.S. jurisdiction, Colombian non-contractual liability does not recognize
comparative fault. That is, for non-contractual civil liability to be imposed under Colombian law
on one person for damage to another, the plaintiffs must prove that the damage would not have
occurred in the absence of the person’s alleged fault. As the Colombian Supreme Court of Justice
has held:
[T]o say that a person’s fault actually caused the damages claimed, there must be a
necessary relationship between said fault and the damage; this means a relationship
in which, if the fault had not occurred, the damage would not have occurred . . . If
a fault considered as related to the damage is fully proven but it is also found that
the damage would have been caused, even if such fault had not taken place, there
will be no causal link or subsequent entitlement to reparation of the affected
person.2
1
Expert Report of Jorge Santos Ballesteros, former Justice and Chief Magistrate of the Civil
Cassation Chamber of the Colombian Supreme Court (“Justice Santos Report”), p. 4. The Justice
Santos Report was previously filed as DE 2203-1 (original Spanish version as DE 2203-2). As a
courtesy to the Court, another copy in English is filed herewith as Exhibit A.
2
Colombian Supreme Court of Justice, J.G. No. 1907 dated September 17, 1935, p. 35, quoted in
Justice Santos Report, pp. 9-10.
3
Colombia’s Supreme Court of Justice has reaffirmed this principle:
In other words, if the loss or damage had occurred in any case, even in the absence
of a concurrent behavior, then that behavior cannot be the legal cause of the
damage. Only that behavior or activity that has had a dominant and transcendent
role in the occurrence of the damage can be considered the legal cause.3
In a case involving the Fuerzas Armadas de Revolucionares (“FARC”), the Supreme Court of
Justice ruled that, to determine whether the necessary causal link exists between the alleged fault
of the defendants and the plaintiff’s alleged harm, a court must “hypothetically suppress the alleged
harmful act so, if the damage disappears, then the harmful act is the cause of the damages; if it
subsists, then there is no causal relationship.”4
Here, there is a complete lack of evidence that any Plaintiff’s decedent would not have
been killed in the absence of Chiquita’s extortion payments to the Autodefensas Unidas de
Colombia (“AUC”), Plaintiffs’ asserted predicate for the liability of every Defendant. There is no
evidence of record identifying who actually killed any Plaintiff’s decedent, let alone that each
killer was a member of the AUC, or that the killing was caused by Chiquita’s extortion payments
to the AUC or any individual Defendants’ actions, both of which are required under Colombian
law to impose non-contractual civil liability. Not one Plaintiff testified to personal knowledge—
and there are no other facts in the record admissible as evidence—of who killed his or her decedent
or why, let alone that the decedent was killed by a member of the AUC.
For example, Plaintiff Ana Ofelia Torres Torres said that she did not see the men who shot
her common-law husband: “Why would I lie to you? I did not see them.” (SOMF ¶ 2). Plaintiff
Pastora Durango, likewise testified that she did not know if any specific individual killed her son.
(SOMF ¶ 62). Plaintiff Jane Doe 7 (New Jersey) did not witness the death of her common-law
husband and does not know who killed him. (SOMF ¶¶ 13, 15-16). Plaintiff Juvenal Enrique
Fontalvo Camargo did not witness the death of his son and cannot identify his son’s killer. (SOMF
¶ 39).
3
Colombian Supreme Court of Justice, Volume CLII, No. 2393 dated April 30, 1976, p. 108,
quoted in Justice Santos Report, p. 10.
4
Colombian Supreme Court of Justice opinion dated September 22, 1980, quoted in Justice Santos
Report, p. 10.
4
Plaintiff Jane Doe 46 did not witness the death of her common-law husband and cannot
identify his killer but believes that “the guerillas” killed him. (SOMF ¶¶ 18-20). Plaintiff Doe 840
saw five men remove her son from her house but did not see the murder of her son, she does not
know anything about four of the men, and does not know whether the fifth man was associated
with paramilitaries or any other group in Colombia. (SOMF ¶¶ 80-83).5 She believes, but has no
personal knowledge or other proof, that her son was killed by the AUC because he was a
professional soldier. (SOMF ¶ 83). She testified that she did not know that she had sued Chiquita
and that she does not have any problem with Chiquita, does not have any issue with Chiquita, and
does not “have anything against Chiquita.” (SOMF ¶¶ 84-85). Without admissible evidence of
who killed their decedents, how and why they were killed, Plaintiffs’ Colombian law claims fail
as a matter of law and the Court should grant summary judgment to Defendants on that basis alone.
Without such evidence, Chiquita’s extortion payments to the AUC that the record supports
of $1.7 million total from 1997 to 2004 cannot be the but-for cause of the death of any Plaintiff’s
decedent. Stated differently, Plaintiffs cannot prove that the AUC was not capable of killing—
and would not have killed—any Plaintiff’s decedent but for Chiquita’s payments.
Even assuming arguendo that Plaintiffs could provide any admissible evidence that an
AUC member killed any Plaintiff’s decedent, Plaintiffs cannot prove that any of those deaths
would not have occurred but for Chiquita’s extortion payments. Chiquita’s payments averaged
approximately $242,000 per year on average to the AUC which was a negligible portion (between
0.0003 or 3/100 of one percent and 0.0008 or 8/100 of one percent) of the AUC’s $286 million
income per year, primarily from narcotrafficking. (SOMF ¶ 121). Indeed, even Plaintiffs’
purported expert Oliver Kaplan—who will be subject to a Daubert challenge because of the
absence of any methodology to his opinions—testified that he cited one statistic in his report that
“[Carlos] Castaño revealed by 2000 drug money made up 70 percent of the [AUC]’s revenues”
(SOMF ¶ 122) and another that former AUC commander, Salvatore Mancuso, alone trafficked in
5
Plaintiff Doe 840 died on August 24, 2018. (DE 2124, p. 1). Plaintiffs moved on September 24,
2018 to substitute a new Plaintiff for Doe 840 with supporting documents in Spanish. (See id.).
The Court denied the motion to substitute without prejudice on November 2, 2018 because
Plaintiffs failed to file official translations of the supporting documents into English. (See DE
2179). Fed. R. Civ. P. 25(a) requires dismissal of the action brought by the since-deceased Doe
840 because more than 90 days have lapsed. The Court should grant summary judgment on this
basis alone. However, in an abundance of caution, because Doe 840’s claim has not been
dismissed, Defendants include the merits of the claim within this summary judgment motion.
5
100,000 kilos of cocaine with a street value of more than about $6.5 billion. (SOMF ¶ 101). Kaplan
agreed that, if extrapolated over a 7-year period, Mancuso’s drug trafficking profits amounted to
about $928 million annually, which compared to the approximately $242,000 average annual
extortion payment from Chiquita, was a fraction of one percent so small that the calculator Kaplan
was using did not have sufficient spaces for all of the zeroes to the right of the decimal point to
show the number. (SOMF ¶ 121). These figures are in line with what David Gaddis—former
special DEA agent, Deputy Chief for International Operations, and Regional Director in Bogotá,
Colombia—has testified regarding the AUC's control of the cocaine trafficking stream at 15-20
metric tons per month, on average. (SOMF ¶ 102).
Plaintiffs cannot set forth any evidence to demonstrate that the AUC would not have killed
their decedents without Chiquita’s approximate $20,000 per month extortion payment to a narco-
terrorist organization that generated between $928 million and $286 million per year. Rather, the
evidence of record completely disproves that the AUC or its members would not have killed any
Plaintiff’s decedent in the absence of, or but for, Chiquita’s payments. Chiquita’s extortion
payments amounted to only between 3/100 and 8/100 of one percent of the AUC’s income and, as
a matter of law, could not have been the but-for cause of the death of any Plaintiff’s decedent.
Moreover, there is no evidence that Chiquita or any of the individual Defendants voluntarily aided
or facilitated the AUC’s shipment of drugs out of, or guns into, Colombia. Finally, as previously
noted, it is undisputed that no payment was made to the AUC from any individual Defendant. As
such, the causation element must fail as to each individual Defendant. Because of this inability to
establish causation, the Court should grant Defendants’ motion for summary judgment on
Plaintiffs’ Colombian law claims.
In another difference from American tort law, “damage” means only reparations under
Colombian law and does not include punitive damages even if the “fault” was gross (or even willful
misconduct).6 Punitive damages are not awardable under Colombian law. (Justice Santos Report,
p. 4). Because every Plaintiff requests punitive damages, the Court should grant summary
judgment against such relief.
6
CÓDIGO CIVIL (Colombia Civil Code), Article 234 and Article 63; Justice Santos Report, p. 4.
6
II. STANDARD OF REVIEW – American procedural law.

“Summary judgment is appropriate when the record evidence, including depositions, sworn
declarations, and other materials, show ‘that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Warner v. Wood, 743 Fed. Appx. 338, 343
(11th Cir. 2018) (citing Fed. R. Civ. P. 56(a), (c)). Defendants, as the moving party, must point to
evidence in the record showing that there is no genuine issue of material fact. Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party demonstrates the absence
of a genuine issue of material fact, “the nonmoving party must come forward with ‘specific facts
showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). “Factual issues are considered genuine
when they have a real basis in the record.” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016).
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (an issue is “genuine” only if “a
reasonable jury could return a verdict for the nonmoving party;” an issue is not “genuine” if created
by evidence that is “merely colorable” or “not significantly probative”) Thus, only a disputed fact
“that might affect the outcome of the suit” can preclude summary judgment. Anderson, 477 U.S.
at 248.
“A complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial” such that summary judgment is proper. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Melton, 841 F.3d at 1219. “‘[U]nsupported speculation
. . . does not meet a party’s burden of producing some defense to a summary judgment motion.
Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition
of which is a primary goal of summary judgment.’” Cordoba v. Dillard’s, Inc., 419 F.3d 1169,
1181 (11th Cir. 2005) (quoting Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931-32 (7th Cir.
1995)). “Unreliable conjecture . . . presented as ‘belief’ without any basis ascertainable in fact,
[i]s not the type of evidence required to survive a motion for summary judgment.” Josendis v. Wall
to Wall Residence Repairs, Inc., 662 F.3d 1292, 1318 (11th Cir. 2011).
In deciding summary judgment, the Court views the evidence in the light most favorable
to the nonmoving party and draws all reasonable inferences in that party’s favor. See Black v.
Wigington, 811 F.3d 1259, 1265 (11th Cir. 2016). But, “an inference is not ‘reasonable’ and a
dispute is not ‘genuine’ if it is based on conclusory allegations and speculation.” Id. “At the
summary judgment stage, such ‘evidence,’ consisting of one speculative inference heaped upon
7
another, [i]s entirely insufficient.” Id. As this Court has ruled: “When deciding a motion for
summary judgment, a federal district court may consider only admissible evidence.” Ibezim v. Geo
Group, Inc., No. 17-80572-CIV-MARRA, 2018 U.S. Dist. LEXIS 113542 at *21 (S.D. Fla. July
6, 2018). “Evidence inadmissible at trial cannot be used to avoid summary judgment.” Corwin v.
Walt Disney World Co., 475 F.3d 1239, 1249 (11th Cir. 2007).
Under this standard of review, Plaintiffs’ Colombian law claims fail as a matter of U.S.
federal procedural law and the Court should enter summary judgment in Defendants’ favor.
III. ARGUMENT - Colombian substantive law.
Plaintiffs have not sued the person or person(s) who killed their relatives. In fact, none of
the Plaintiffs has personal knowledge regarding who the killers were or even if the killers were
members of the AUC. Neither does any other witness who has testified in this action. Simply put,
no admissible evidence of record can prove the identity of who killed any decedent.
Plaintiffs have not sued the AUC, the commander of any AUC front they argue killed their
relatives, or any member of such front who they may have heard or may believe killed their
decedents. Instead, Plaintiffs have sued Chiquita and several of its former executives––Mr.
Freidheim, Mr. Hills, Mr. Keiser, Mr. Kistinger, Mr. Lindner, Mr. Olson, and Mr. Tsacalis—
alleging that each of them is liable under Colombian law for the death of Plaintiffs’ decedents
because of Chiquita’s payments to the AUC. Indeed, the individual Defendants—who are not
named by the bellwether Plaintiffs in their depositions and are not connected by any of Plaintiffs’
experts to the AUC or any decedent’s killer—cannot be held responsible for every unfounded
allegation against Chiquita in some reverse form of respondeat superior. Each individual
Defendant is responsible only for his own conduct, during the limited period he was at Chiquita,
and based on the limited knowledge of and participation in the alleged conduct. And Plaintiffs
have the burden to prove—under Colombian law—that each individual Defendant’s conduct
entitles them to relief under Colombian law against that individual Defendant. Plaintiffs have
failed to develop any record evidence to meet their burden.
Plaintiffs’ claims are as untenable as they sound. Plaintiffs rely upon three degrees of
separation from the actual killings—stacking inference upon inference upon inference in the face
of evidence to the contrary—to attempt to impose liability under Colombian law on these
Defendants. “At the summary judgment stage, such ‘evidence,’ consisting of one speculative
inference heaped upon another, [i]s entirely insufficient.” Josendis, 662 F.3d at 1318.
8
1. The Court should grant summary judgment on each Plaintiff’s claim

under Colombia law.
“The court’s determination [of foreign law] shall be treated as a ruling of a question of law,
and shall be made by the court and not the jury.” FED. R. CIV. P. 44.1. See also Seguros del Estado,
S.A. v. Sci. Games, Inc., 262 F.3d 1164, 1171 (11th Cir. 2001) (district court’s determination of
foreign law is a question of law). Such determination is appropriately made on a motion for
summary judgment. Corporacion Salvadorena de Calzado, S.A. (Corsal, S.A.) v. Injection
Footwear Corp., 533 F. Supp. 290, 293 (S.D. Fla. 1982) (“the determination of foreign law is a
question of law that can be properly resolved on summary judgment”).
As Justice Santos states in his expert report: “The non-contractual civil liability regime in
Colombia is essentially based on two general principles. First, that the person who causes a damage
to another must indemnify. Second, that the reparation of the victim must be complete.” (Justice
Santos Report, p. 4) (internal footnotes omitted). This is derived from the Colombian statute as
codified in its Código Civil: “He who has committed a crime or fault, which has caused damage
to another, is liable to reparation, without prejudice to the principal penalty that the law imposes
due to fault or the crime committed.”7 And as provided in Article 16 of the Law 446 of 1998:
“Within any process filed with the Administration of Justice, the assessment of the damages
suffered by people and things shall comply with the principles of comprehensive reparation and
equity, and shall comply with the actuarial technical criteria.” (Justice Santos Report, p. 4 n.2).
Therefore, as Justice Santos states, “according to the Colombian legal system, for non-
contractual civil liability to exist, it is necessary to determine the existence of three essential
elements, to wit: fault, damage and a causal link. The burden of proof of each of these three
essential elements corresponds in all cases to the plaintiff.” (Justice Santos Report, p. 4). Plaintiffs
cannot meet that burden and the Court should grant summary judgment in Defendants’ favor on
Plaintiffs’ Colombian law claims.
2. Plaintiffs’ multiple, individual specific torts are not cognizable under
Colombian law and should be dismissed as a matter of law.
Justice Santos states: “Colombian law does not have a classification of unlawful acts (torts)
that cause the obligation to indemnify, but rather any situation, in general culpable, that causes
7
CÓDIGO CIVIL (Colombia Civil Code), Article 2341, quoted in Justice Santos Report, p. 4 n. 1.
9
damages is susceptible of reparation.” (Justice Santos Report, p. 4). Because Colombian law does
not recognize individual, specific torts but only the concept of fault-based liability, summary
judgment should be entered on all of Plaintiffs’ individual tort claims under Colombian law. In
Does 1-144, only the Sixth Cause of Action (“negligence”) is cognizable under Colombian law.8
In Valencia, only the Fourteenth Cause of Action (“negligence”) is cognizable under Colombian
law.9 The operative Montes complaint does not plead negligence and should be dismissed
outright.10 In John Doe 1-Jane Doe 7 (New Jersey complaint), only the Fourteenth Claim for Relief
(“negligence”) is cognizable under Colombian law.11 The operative Carrizosa complaint does not
plead negligence and should be dismissed outright.12 In Manjarres, only the Tenth Cause of Action
(“causing injury under the laws of Colombia”) is cognizable under Colombian law.13 In the
8
DE 575. The Fifth Cause of Action (“wrongful death”) is not a separate cause of action under
Colombian law from the Tenth Cause of Action. That a Plaintiff’s relative died relates to the
measure of damages, not a separate cause of action: “In a wrongful death scenario damnum
emergens is generally limited to the expenses incurred as a result of the death (e.g., medical
expenses, funeral expenses, travel expenses of family members), while the lucrum cessans will
refer to the money that a person will stop receiving from the deceased. This usually applies to the
children (if they are under the age of 25, and up to that age) or the spouse of the deceased.” (Justice
Santos Report, p. 7).
9
DE 576. The Fourteenth Cause of Action also pleads negligent hiring and negligence per se
which are not separate claims under Colombian law, which only recognizes non-contractual
liability. (Justice Santos Report, p. 4). The Tenth Cause of Action also pleads wrongful death,
which is simply a measure of damages under Colombian law. (Justice Santos Report, p. 7).
10
DE 558, although Ninth Claim for Relief does plead wrongful death, a measure of damages
under Colombian law. (Justice Santos Report, p. 7).
11
DE 589. Neither the Tenth Claim For Relief (“wrongful death”) nor Fifteenth Claim for Relief
(“loss of consortium”) is a separate cause of action under Colombian law but a measure of
damages. (Justice Santos Report, pp. 4, 7).
12
DE 186 in No. 07-60821-CIV-MARRA, although the Fourth Claim for Relief does plead
negligent retention and supervision and the Fifth Claim for Relief does plead negligent hiring. The
Sixth Claim for Relief pleads wrongful death and the Seventh Claim for Relief pleads loss of
consortium, which are each a measure of damages under Colombian law. (Justice Santos Report,
p. 7).
13
DE 557. The Ninth Cause of Action (“wrongful death and survival under Colombian law”) and
the Twelfth [sic, Eleventh] Cause of Action (“loss of services, society, and consortium under the
10
complaints of Plaintiffs represented by Paul Wolf (Does 1-976 and Does 1-677), only the Fourteen
Claim for Relief (“negligence”) is cognizable under Colombian law.14
Summary judgment should be granted dismissing all individual tort claims, which are not
cognizable under Colombian law.
3. All remaining Colombian law claims should be dismissed on summary
judgment because Plaintiffs cannot prove that any Defendant’s fault
was the but-for cause of Plaintiffs’ decedents’ deaths.
For non-contractual civil liability to be imposed under Colombian law against any
Defendant, a Plaintiff must prove that that Defendant’s acts or omissions were the but-for cause of
that Plaintiff’s injury. In the words of the Colombian Supreme Court of Justice: “[T]o say that a
person’s fault actually caused the damages claimed, there must be a necessary relationship between
said fault and the damage; this means a relationship in which, if the fault had not occurred, the
damage would not have occurred.”15
Here, the alleged fault of each Defendant for the death of each Plaintiff’s decedent is
premised upon Chiquita’s extortion payments to the AUC of $1.7 million from 1997 to 2004. But
there is no evidence of record indicating who killed any of Plaintiffs’ decedents, let alone evidence
indicating that a Chiquita payment enabled an AUC member to kill any Plaintiff’s decedent. There
is no evidence of record that Chiquita or Messrs. Freidheim, Hills, Keiser, Kistinger, Lindner,
Olson, or Tsacalis did anything, or failed to do anything, that resulted in the death of any of
Plaintiffs’ decedents, let alone anything that meets the much higher standard of being the but-for
cause of each decedent’s death. Plaintiffs’ Colombian law claims are unsupported by any record
evidence and therefore fail as a matter of law.
laws of Colombia”) are not separate causes of action under Colombian law but a measure of
damages. (Justice Santos Report, pp. 4, 7).
14
DE 3 in Nos. 10-80652-CIV-MARRA and 11-80404-CIV-MARRA. The Fourteenth Cause of
Action also pleads negligent hiring and negligence per se which are not separate claims under
Colombian law, which only recognizes non-contractual liability. (Justice Santos Report, p. 4). The
Tenth Cause of Action also pleads wrongful death, which is simply a measure of damages under
Colombian law. (Justice Santos Report, p. 7).
15
Justice Santos Report, p. 9.
11
(a) There is no evidence of record of who killed any Plaintiff’s

decedent. Each Plaintiff, therefore, cannot prove that Chiquita
or any individual Defendant was the “but for” cause of the death
of his/her decedent as required for liability under Colombian
law.
Each bellwether Plaintiff testified under oath at a deposition.16 Not one of them has
personal knowledge of who killed his or her family member. There is no other admissible evidence
of record that any member of the AUC was involved in any way in killing any Plaintiff’s decedent.
Instead, each Plaintiff’s understanding of the circumstances surrounding the death of his/her
respective relative is based upon hearsay statements of others, often double and triple hearsay with
no one having personal knowledge of what happened. Plaintiffs’ own deposition testimony bears
this out, so that Plaintiffs have not adduced any evidence that Chiquita or any individual Defendant
was the but-for cause of any decedent’s death.
16
Wolf Doe No. 265 in Case No. 11-80404-CIV-MARRA (D.C. Does 1-677), who is also Wolf
Doe No. 1512 in No. 17-80475-CIV-MARRA (Ohio Does 1-2146), has not asserted a Colombian
law claim against any individual Defendant. Chiquita is the only defendant she sued as Doe No.
265 in Case No. 11-80404-CIV-MARRA and, as Doe No. 1512 in No. 17-80475-CIV-MARRA,
she asserted only TVPA claims against certain Defendants.
As to Chiquita, Doe No. 265 is not properly a bellwether Plaintiff for purposes of summary
judgment briefing on her Colombian law claim. The Wolf Plaintiffs moved the Court to include
“three test cases” from Case No. 10-CIV-80652 (Does 1-976) in summary judgment briefing. (DE
2210.) The Court granted that request, allowing “three additional test cases from the complaint
lodged in Case No. 10-CIV-80652 (Does 1-976) in the summary judgment agenda set forth in the
Amended Global Scheduling Order.” (DE 2234) (emphasis added). After the Court granted leave,
the Wolf Plaintiffs filed a Notice of Selection of Test Cases for Summary Judgment (DE 2241,
“Notice”), properly identifying two cases from Case No. 10-80652-CIV-MARRA (Does 1-976)
but also improperly including Case No. 11-80404-CIV-MARRA with Wolf Doe No. 265. Mr.
Wolf admitted in his Notice that his third Doe Plaintiff, No. 265 is not properly before the Court:
“Counsel has substantially complied with the Court's Order by selecting two cases from Case No.
10-cv-80652 . . . The Court may consider amending its Order to allow [the] third case [No. 11-
80404-CIV-MARRA with Wolf Doe No. 265].” (DE 2241, pp. 3-4). The Court has not amended
its Order so that Wolf Doe No. 265 is not properly before the Court for summary judgment
briefing. Defendants, therefore, do not address the improperly selected “test case” from Case No.
10-CIV-80652 (Does 1-976) in this motion for summary judgment on the TVPA claims of proper
bellwether Plaintiffs. Even so, Chiquita chooses for itself alone to address the lack of merits of
Doe No. 265’s Colombian law claim in Does 1-677.
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Plaintiff Ana Ofelia Torres Torres brings a claim for the death of her civil union partner,
who was killed about July 13, 1997, by two unidentified men. (SOMF ¶ 1). She did not witness
the death of her common-law husband and has no personal knowledge of who was responsible for
his death. (SOMF ¶ 2). There is no admissible evidence of who was personally responsible for the
death of her son (SOMF ¶¶ 3, 6), let alone that the killer was a member of the AUC and that
Chiquita or any individual Defendant was a but-for cause of the killing. Indeed, Ms. Torres does
not know why she is suing Chiquita (SOMF ¶ 4), what, if anything, Chiquita had to do with her
partner’s death (SOMF ¶ 5), or what type of business Chiquita was engaged in in Colombia.
(SOMF ¶ 5).
Plaintiff Jane Doe 7 brings a claim for the death of her husband. (SOMF ¶ 11). He died on
June 1999 (SOMF ¶ 11), in , department of Antioquia, Colombia. (SOMF ¶ 12).
Plaintiff Jane Doe 7 did not witness the stabbing of her deceased husband. (SOMF ¶ 13). There is
no admissible evidence of who was personally responsible for the death of her husband, let alone
that the killer was a member of the AUC and that Chiquita or any individual Defendant was a but-
for cause of the killing. (SOMF ¶ 15, 16). Indeed, she does not know what Chiquita is. (SOMF ¶
14).
Plaintiff Jane Doe 46 brings claims for the death of her free union partner Peter Doe 46,
who was killed on February 5, 1993 near Apartadó, department of Antioquia, Colombia. (SOMF
¶ 17). Jane Doe 46 did not witness the death of her partner. (SOMF ¶ 18). Jane Doe 46 did not
find out what happened when he was attacked or who was personally responsible. (SOMF ¶ 19).
There is no admissible evidence of who was personally responsible for the death of her partner
(SOMF ¶¶ 24), let alone that the killer was a member of the AUC and that Chiquita or any
individual Defendant was a but-for cause of the killing. Not only is there no admissible evidence
that an AUC member was responsible in any way for the death, but further Jane Doe 46 believes
that a guerilla group, and not the AUC, is responsible for her partner’s death. (SOMF ¶ 20).
Plaintiff Gloria Eugenia Munoz brings claims for the alleged death of her son on January
15, 2001, in Currolao, department of Antioquia, Colombia. (SOMF ¶ 25). She did not witness the
death of her son. (SOMF ¶ 26). There is no admissible evidence of who was personally responsible
for the death of her son, let alone that the killer was a member of the AUC and that Chiquita or
any individual Defendant was a but-for cause of the killing. (SOMF ¶ 29).
13
Plaintiffs Juana Doe 11 and Minor Doe 11A bring claims for the death of, respectively, her
free union partner and her father, John Doe 11, who was killed on August 13, 2003, in Aracataca,
department of Magdalena, Colombia. (SOMF ¶¶ 30-31). There is no evidence of who was
personally responsible for his death (SOMF ¶¶ 33, 37) or whether the man who allegedly shot Mr.
Molina belonged to an illegal armed group in Colombia, let alone the AUC. (SOMF ¶ 33). There
is no evidence that Chiquita or any individual Defendant was a but-for cause of the killing.
Plaintiff Juvenal Enrique Fontalvo Camargo brings claims for the death of his son, who
was killed on July 3, 2003. (SOMF ¶ 38). Plaintiff did not witness the alleged taking or killing of
his son. (SOMF ¶ 39). There is no admissible evidence of who was personally responsible for the
death of her husband (SOMF ¶¶ 39, 41), let alone that the killer was a member of the AUC and
that Chiquita or any individual Defendant was a but-for cause of the killing. To the contrary, Mr.
Fontalvo Camargo does not believe Chiquita owes him money for the death of his son. (SOMF ¶
40).
Plaintiff Juana Perez 43A brings claims for the death of her son, who was killed on
September 14, 2004. (SOMF ¶ 42). Juana Perez 43A was sweeping the house when her son left
for work. (SOMF ¶ 43). Juana Perez 43 noticed a young man who was seated in front of her house
and who began following her son. (SOMF ¶ 44). When the man stopped, she began calling for
another son and heard shots fired. (SOMF ¶ 45). She did not recognize the young man. (SOMF ¶
45). She did not witness her son being shot. (SOMF ¶ 46). There is no evidence of who was
personally responsible for shooting her son. (SOMF ¶ 50). Juana Perez 43A does not know why
her son was killed. (SOMF ¶ 47). There is no admissible evidence of who was personally
responsible for the death of her son (SOMF ¶ 50), let alone that the killer was a member of the
AUC and that Chiquita or any individual Defendant was a but-for cause of the killing.
Seven surviving children bring claims for the death of their father Jose Lopez No. 339 on
November 4, 1998 in Necoclí, Colombia. (SOMF ¶ 51). None of the Plaintiffs witnessed the death
of their father. (SOMF ¶ 52). No individual was ever arrested for or charged with a crime related
to the death of their father. (SOMF ¶ 53). There is no admissible evidence of who was personally
responsible for the death of their father (SOMF ¶ 55), let alone that the killer was a member of the
Plaintiff Nancy Mora Lemus brings a claim for the death of her free union partner who was
killed on December 7, 2003. (SOMF ¶ 56). She does not know who the two men who took her
14
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partner and then allegedly killed him were, does not know their names, and does not know whether
they were affiliated with any armed groups in Colombia, let alone the AUC. (SOMF ¶ 57). She
testified that no one has ever admitted to killing him. (SOMF ¶ 58). There is no admissible
evidence of who was personally responsible for his death, let alone that the killer was a member
of the AUC and that Chiquita or any individual Defendant was a but-for cause of the killing.
(SOMF ¶ 60). To the contrary, Ms. Mora does not believe Chiquita owes her money or anything
else for the death of her free union partner. (SOMF ¶ 59).
Plaintiff Pastora Durango brings a claim for the death of her son. Her son died by gunshot
on April 27, 1997. (SOMF ¶ 61). Ms. Durango did not witness the death of her son, does not know
the identities of any person alleged to have killed him (SOMF ¶ 62), and does not know why he
was killed. (SOMF ¶ 63). No person was charged with, and no person has confessed to, killing Ms.
Durango’s son, Waynesty Machado Durango Machado. (SOMF ¶ 64). There is no admissible
evidence of who was personally responsible for the death of her son, let alone that the killer was a
member of the AUC and that Chiquita or any individual Defendant was a but-for cause of the
killing. (SOMF ¶ 67).
John Doe 7 brings a claim for the death of his son. (SOMF ¶ 68). His son was killed on
2000. (SOMF ¶ 70). He did not witness the death of his son. (SOMF ¶ 69). No
member of the AUC confessed during the Justice and Peace process to killing his son. (SOMF ¶
71). There is no admissible evidence of who was personally responsible for the death of his son
(SOMF ¶ 75), let alone that the killer was a member of the AUC and that Chiquita or any individual
Defendant was a but-for cause of the killing. Further, John Doe 7 is not aware that he is suing any
person or entity other than Chiquita. (SOMF ¶ 74).
Doe 265 brings her claim for the alleged death of her husband on September 26, 1996, in
Apartadó, department of Antioquia, Colombia. (SOMF ¶ 76). She did not witness the death of her
husband. (SOMF ¶ 77). There is no admissible evidence that any person has admitted to killing
or claimed responsibility for killing her husband. (SOMF ¶ 78). There is no admissible evidence
of who was personally responsible for the death of her husband (SOMF ¶ 78), let alone that the
killer was a member of the AUC and that Chiquita or any individual Defendant was a but-for cause
of the killing.
Doe 840 brings a claim for the alleged death of her son on May 2, 2001. (SOMF ¶ 79). In
the middle of the night, five men appeared at her house, removed her son from the home and, five
15
minutes later, she heard gunshots. (SOMF ¶ 80). She did not witness the death of her son. (SOMF
¶ 81). She recognized one of the five men to enter her house (SOMF ¶ 82) but does not know
whether he was a member of the AUC. (SOMF ¶ 82). She believes her son was killed by the AUC
because he was a professional soldier. (SOMF ¶ 83). There is no admissible evidence of who was
personally responsible for the death of her son (SOMF ¶ 86), let alone that the killer was a member
of the AUC and that Chiquita or any individual Defendant was a but-for cause of the killing.
Indeed, she was unaware that she was a plaintiff involved in a lawsuit against Chiquita (SOMF ¶
84) and testified that she did not know whether Chiquita owed her anything for her son’s death.
(SOMF ¶ 85).
Doe 378 brings a claim for the death of her brother on April 9, 1997. (SOMF ¶ 87). She
did not witness the death of her brother. (SOMF ¶ 88). No individual was ever charged with a
crime for his death. (SOMF ¶ 89). There is no admissible evidence of who was personally
responsible for the death of her brother (SOMF ¶ 90), let alone that the killer was a member of the
In the absence of any evidence of who killed each Plaintiff’s decedent, that the killer was
a member of the AUC and that—even if associated with AUC—the killer would not have killed
the decedent had Chiquita withheld payment to the AUC, no reasonable jury could find under
applicable Colombian substantive law that Chiquita or any individual Defendant was the but-for
cause of the death of any Plaintiff’s decedent. Under binding U.S. procedural law, “A complete
failure of proof concerning an essential element of the nonmoving party's case necessarily renders
all other facts immaterial” such that summary judgment is proper. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Melton, 841 F.3d at 1219.
(b) Colombia was in the midst of a civil war between its military
and rival narco-terrorist groups who were competing for
control of drug trafficking. There is no evidence that any
Plaintiff’s decedent would not have been killed as a casualty of
Colombia’s armed conflict if Chiquita had withheld payment to
the AUC.
Even if Plaintiffs could demonstrate that an AUC member killed their decedents, Plaintiffs
cannot prove that the AUC member would not have killed their decedents absent money from
Chiquita. Without such proof, there is no liability for any Defendant under Colombian law. And
the evidence of record is to the contrary: the AUC was fully capable of killing anyone it wanted at
16
any time. And did. As the Colombian Supreme Court of Justice has ruled: “If a fault considered
as related to the damage is fully proven but it is also found that the damage would have been
caused, even if such fault had not taken place, there will be no causal link or subsequent
entitlement to reparation of the affected person.”17
Between 1990-2004, it was “complete chaos” in Colombia. (SOMF ¶ 94). The country
was ravaged by internal political and criminal warfare. (SOMF ¶ 94). Narco-terrorist guerilla
groups and paramilitary groups waged war against each other, the Colombian government,
civilians, and businesses that operated in Colombia, causing violence and terror to reign over the
country. (SOMF ¶ 95). By the late 1990s, the FARC had an annual income of approximately $1.2
billion, of which $630 million was from the drug trade. (SOMF ¶ 96).
Throughout this same time period, what one former AUC member called by Plaintiffs
testified was a “fratricidal war” (SOMF ¶ 97) raged between the Colombian government, the
narco-terrorist guerilla groups known as the FARC, the Ejercíto Liberacion de Nacional (“ELN”),
and the Ejercito Popular de Liberacion (“EPL”), and outlawed narco-terrorist paramilitary
organizations. (SOMF ¶ 98). Although outlawed in 1989 (SOMF ¶ 99), a paramilitary organization
with connections to organized crime and drug trafficking (SOMF ¶¶ 99, 101, 103)—originally
known as the Autodefensas Campesinas de Córdoba y Urabá (“ACCU”)—formed in the mid-
1990s (SOMF ¶ 99) and was consolidated in 1997 into an umbrella organization named the AUC.
(SOMF ¶ 99). Although publicly representing itself as a hierarchical structure of a military nature,
the AUC was, in reality, a loose confederation of semi-autonomous groups which maintained
financial and operational autonomy because the AUC lacked a central command structure capable
of centralized resource control and dispersion. (SOMF ¶ 100). The AUC and its predecessor self-
defense groups were first and foremost narco-terrorist organizations (SOMF ¶ 101) beginning in
the early 1980s. (SOMF ¶ 101). As former special DEA agent, Deputy Chief for International
Operations, and Regional Director in Bogotá, Colombia David Gaddis has testified by declaration:
“The AUC played a key role in the Colombian drug trade since its formation in the mid-1990s.
The paramilitary groups, such as the AUC, had always been engaged in the narcotics business and
dependent on income from drugs. In 2001, AUC leader Carlos Castaño admitted that 70 percent
17
Justice Santos Report, p. 9
17
of the financing of paramilitary units was derived from narcotics.” (SOMF ¶ 102). Further, “[i]n
2003, official Colombian government data put the AUC’s annual income at approximately $286
million with $200 million derived from the drug trade.” (SOMF ¶ 101). Plaintiffs’ expert, Oliver
Kaplan, testified that the AUC’s annual income between 1997-2004 could have been as high as
$928 million. (SOMF ¶¶ 120, 121). The AUC was a narco-terrorist organization formed by leaders
linked to drug cartels looking to expand their drug trafficking business and ratify their power in
regions where the FARC and other groups were in control. (SOMF ¶¶ 103, 104).
Like many others in the Republic of Colombia, Chiquita was subjected to threats, extortion,
and violence from all violent groups there. (SOMF ¶ 106). The unrebutted evidence of record is
that at least 120 different companies were extorted and paid the para-militaries (SOMF ¶ 107).
Trapped in the crossfire of Colombia’s internal conflict, in approximately 1997, then-general
manager of Banadex Charles Keiser, then-consultant attorney Reinaldo Escobar, then-Banadex
director of security Juan Manuel Alvarado, Colombian businessman Irving Bernal, and several
others were summoned by members of the AUC to a meeting in Medellín, Colombia. (SOMF ¶
109). No person from Banadex or Chiquita asked for the meeting to occur; rather, a man known
as Maicol arranged for the meeting, and Mr. Keiser believed he had no choice but to attend. (SOMF
¶ 110). Then-leader of the AUC, Carlos Castaño, told the attendees, including Mr. Keiser, that the
AUC was about to enter the banana-growing region of Urabá with the mission of pushing out the
FARC. (SOMF ¶ 111). Castaño then sent a clear message: stop paying extortion money to the
guerillas and begin paying extortion money to the AUC, or face violent consequences to employees
and property. (SOMF ¶ 112). Raúl Hasbún, a former AUC commander in the banana-growing
region of Urabá and who attended the meeting while concealing his role in the AUC, testified:
Q: Allow me to repeat my question: At the very first meeting
that you and Castaño summoned banana growers to, Castaño told
[Mr. Keiser and Mr. Bernal] that if they did not pay the AUC they
would become military targets of the AUC; correct?
...
A: Yes, if they continued to contribute resources to the

guerillas.
Q: It’s true that Castaño told [Mr. Keiser and Mr. Bernal] to pay
to the AUC what they were paying to the guerillas; correct?
18
A: Yes.
Q: And if [Mr. Keiser and Mr. Bernal] did not make those
payments to the AUC, the banana growers would become military
targets of the AUC; correct?
A: Mindful of the way I’m supposed to answer, yes.
(SOMF ¶ 112).
Other top AUC commanders deposed in this case testified the same way. Salvatore
Mancuso testified that if landowners and businesses did not pay the AUC’s “tax,” they would
suffer severe consequences, including violence to personal property. (SOMF ¶¶ 115). Otoniél
Hoyos Perez testified that the AUC used violence and threats of violence to force businesses to
pay the AUC. (SOMF ¶ 115). As former AUC commanders and members have testified, the AUC
had the military capability to force individuals and companies—under the threat of violent
reprisals—to make payments to the AUC. (SOMF ¶ 115). AUC commanders and members have
testified that, given the AUC’s military power, explicit threats were not even needed – if a member
of the AUC demanded resources from an individual or a business, the person or business knew
there was no choice but to comply with the AUC’s demands or face severe consequences that
included violence and threats of violence to person and property. (SOMF ¶¶ 114, 115). In response
to the threats made by Castaño and a direct demand from an AUC member, in late 1997, Banadex
made its first extortion payments directly to the AUC. (SOMF ¶ 116). No other individual
Defendant ever met with any other AUC member. (SOMF ¶¶ 118, 119).
Plaintiffs cannot demonstrate beyond the allegations in their Complaint that Chiquita had
any relationship with the AUC beyond that of a victim of the AUC’s extortions. Mere allegations
in a pleading are insufficient as a matter of law to withstand summary judgment. Anderson, 477
U.S. at 248. Even assuming arguendo that any Plaintiff’s decedent was killed by the AUC,
Plaintiffs cannot meet their burden to show the payments made by Chiquita directly funded—or
was the but-for cause of—that decedent’s murder. Stated another way, Plaintiffs cannot set forth
any evidence to demonstrate that the decedent’s murder would not have occurred without
Chiquita’s approximate $20,000 per month extortion payment to a narco-terrorist organization that
generated annual income between $286 million and $928 million. (SOMF ¶ 120). Chiquita’s
payments of approximately $242,000 per year on average were a negligible percentage—between
.08% or 8/100 of one percent and .03% or 3/100 of one percent— of the AUC’s annual income of
19
between $286 million and $928 million income, primarily from narcotrafficking. (SOMF ¶ 121).
Chiquita’s extortion payments amounted to only between 3/100 and 8/100 of one percent of the
AUC’s income and, as a matter of law, could not have been the but-for cause of the death of any
Plaintiff’s decedent.
Plaintiffs must do more than simply allege the necessary element of causation for their
injuries under Colombian law. To survive summary judgment, they must have “‘significant
probative evidence’ that would be sufficient for a jury” to find for Plaintiffs on the necessary
element of but-for causation. Eclipse Med. v. Am. Hydro-Surgical Instruments, 262 F. Supp. 2d
1334, 1341 (S.D. Fla. 1999) (quoting LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835
(11th Cir. 1998)). They have not adduced any such evidence, let alone significant probative
evidence and the Court should grant summary judgment in favor of Defendants.
4. Plaintiffs failed to adduce any admissible record evidence that Chiquita
voluntarily paid the AUC. The unrebutted evidence is exactly the
opposite. For this reason, Plaintiffs cannot prove fault under
Colombian law and their claims should be dismissed on summary
judgment.
One of the three essential elements for non-contractual civil liability under Colombian law
is the element of fault. (Justice Santos Report, p. 4). Under Article 63 of the Civil Code, a person
is subject to culpability provided he is capable of deliberating or choosing a course of action freely
in a rational manner and without constraint. (Justice Santos Report, p. 5). If a person’s conduct
is not his own conduct but is behavior forced by another, there can be no non-contractual liability.
This concept under Colombian law is framed as the subjective responsibility theory of fault.
Subjective responsibility does not mean that the conduct in question is measured subjectively, but
rather that there can be no fault if a person is not responsible or able to freely choose between
courses of conduct. If he is not able to freely deliberate about his conduct, then he cannot be at
fault. (Justice Santos Report, p. 5 n.6).
As discussed above and in the companion TVPA motion for summary judgment, Chiquita’s
payments to the AUC were not voluntary or the result of free and unconstrained deliberation. The
payments were extorted from Chiquita by threats of violence to Chiquita’s employees and
property.
20
Although Plaintiffs tried, they could not adduce any admissible evidence that Chiquita’s
payments were voluntary. Plaintiffs tried to get Raul Hasbún to say that Chiquita’s payments were
voluntary. He refused:
Q. Were the payments made to you by Chiquita voluntary?
A. I think that is something you would have to ask them. In my idea, I

never forced them to contribute anything.
(SOMF ¶ 113).
Hasbún’s self-protective answer is telling given his confirmation that Carlos Castaño
clearly threatened and extorted Mr. Keiser and Chiquita as discussed above. (SOMF ¶¶ 112, 113).
The fact that Chiquita’s payments to the AUC were extorted is confirmed by Irving Bernal, who
attended the meeting between Keiser and Castaño. (SOMF ¶ 112). Top AUC commanders
deposed also confirmed that the AUC used violence and threats of violence to force businesses to
pay the AUC “tax.” (SOMF ¶ 115). Finally, the fact that Chiquita was extorted is confirmed in
the Factual Proffer: “Castaño sent an unspoken but clear message that failure to make the payments
could result in physical harm to Banadex personnel and property.” (SOMF ¶ 113).
Given the lack of any admissible evidence in the record that Chiquita’s payments were
voluntary and the unrebutted evidence of clear extortion, Chiquita and its former executives, the
individual Defendants, cannot be found at fault under Colombian law. The Plaintiffs’ inability to
prove fault as required under Colombian law is a separate and distinct basis for the Court to grant
summary judgment on their claims.
5. There is no evidence to support Plaintiffs’ allegation that Chiquita or
any individual Defendant allowed Banadex’s Colombian port facility to
be used for shipments of illegal drugs and weapons, let alone that such
use was the but-for cause of the death of any Plaintiff’s decedent.
Plaintiffs also allege that Chiquita and the individual Defendants voluntarily and
purposefully assisted the AUC “to obtain arms and smuggle drugs” via Banadex’s Colombian port
facilities.18 These facially implausible allegations are no longer required to be accepted as true and
are flatly contradicted by the evidentiary record as developed through discovery. Indeed, the only
evidence of record demonstrates that these allegations are completely false. The undisputed
18
See, e.g., DE 589 (New Jersey Plaintiffs’) operative Complaint, ¶ 30.
21
evidence demonstrates that Chiquita was a worldwide leader in drug interdiction and cooperated
with Colombian, United States, and European authorities to reduce the risk of illicit and illegal
shipments of drugs through Chiquita’s ports in Colombia. (SOMF ¶¶ 175, 176). After learning
that its Colombian ports had been used without its knowledge to ship drugs on Chiquita boats,
Chiquita implemented increasingly sophisticated security protocol to reduce the chances that its
boats would be used illegally and without Chiquita’s knowledge until it ultimately shut down all
non-banana company third-party shipments precisely to stop illegal use of its port facilities.
(SOMF ¶¶ 178, 179, 180).
Moreover, there is no evidence in the record that Chiquita or any individual Defendant was
aware of or otherwise voluntarily allowed the Banadex port in Turbo, Colombia to be used for the
shipment of weapons by the AUC. Likewise, it is undisputed that neither Chiquita nor any of the
individual Defendants voluntarily or knowingly allowed the port Chiquita’s ports to be used by
the AUC for the transfer of drugs and weapons in and out of Colombia. Indeed, Plaintiffs’ experts
conceded that Chiquita was not aware that the AUC would use Banadex’s port facilities to
illegally—and without permission from Chiquita, let alone from any individual Defendant—
smuggle weapons into Colombia. (SOMF ¶ 167).
(a) There is no evidence that Chiquita or any individual Defendant
was even aware before the fact, let alone somehow assisted, the
AUC’s smuggling of weapons into Colombia through Banadex’s
port facilities in Turbo.
Plaintiffs allege that Chiquita and the individual Defendants provided support to the AUC,
and are therefore liable under Colombian law for Plaintiffs’ decedents’ deaths, because they
facilitated the AUC’s clandestine smuggling of weapons into Colombia. These implausible
allegations have been proven false in discovery, and there is no admissible evidence from which a
jury could conclude that Chiquita or any individual Defendant provided support to the AUC by
facilitating arms shipments through Chiquita’s port facilities in Turbo.
Chiquita owned the only port facility in Turbo capable of loading and unloading containers
for shipments. (SOMF ¶ 156). The facility included barges, which were used to transfer containers
to shipping vessels, a container storage yard, and equipment for loading and unloading containers
to and from barges. (SOMF ¶ 157). In seeking an alternative stream of revenue, Banadex allowed
third parties to pay Banadex for use of its port facilities and port services provided by Banadex, as
well as space on Chiquita’s incoming and outgoing cargo ships. (SOMF ¶ 158). When such third
22
parties made use of Banadex’s port facilities and services, cargo brought through the port was
sealed by the shipping company, unloaded by Banadex, and placed in the inbound storage yard
where Colombian customs authorities would inspect the cargo and approve it for import into
Colombia. (SOMF ¶ 159). Banadex was not permitted to open sealed containers or to inspect cargo
shipped through its port. (SOMF ¶ 160). Rather, Banadex’s only roles in unloading third-party
shipments through its port were charging a fee for its services, placing the sealed shipments in an
in-bound warehouse, and holding the cargo in that warehouse for Colombian authorities to inspect.
(SOMF ¶ 161).
There is no admissible evidence to support Plaintiffs’ allegations that Chiquita or the
individual Defendants facilitated the illegal shipment of 3,000 AK-47s and 5 million rounds of
ammunition into Colombia in 2001 aboard a ship named the Otterloo. (SOMF ¶ 162). Former
general manager of Banadex, Alvaro Acevedo, who was responsible for the investigation of the
arms smuggling incident, testified that Banadex personnel did not know until after the fact that the
Otterloo shipment—designated as containers full of rubber balls—actually contained weapons and
ammunition. (SOMF ¶ 163). Former AUC commander Raúl Hasbún confirmed that Chiquita had
no connection whatsoever to the Otterloo incident. (SOMF ¶ 164). While one Banadex employee
was arrested during the Colombian government’s investigation of the Otterloo incident because of
the country’s law enforcement strategy of arresting persons under investigation, he was later found
innocent of wrongdoing and released. (SOMF ¶ 165). The two Colombian customs officials who
signed the declaration for release of the containers were also investigated (SOMF ¶ 166). The
Organization of American States, which following an extensive investigation in 2003 found no
fault on the part of Chiquita, concluded that several Colombian customs officials were likely
accomplices of, or were bribed by, the AUC to allow the hidden arms to clear through Colombian
customs. (SOMF ¶ 166). There is no evidence in the record that Chiquita or any individual
Defendant provided support to the AUC by facilitating the AUC’s illegal smuggling of arms into
Colombia aboard the Otterloo.
Nor is there evidence to support Plaintiffs’ allegations that Chiquita or the individual
Defendants facilitated arms shipments through Chiquita’s port facilities, including one involving
the entry of 4,200 assault rifles. With respect that that incident, Raúl Hasbún has once again
confirmed that Chiquita was unaware before the weapons arrived that its port facilities were being
used to smuggle in 4,200 assault rifles from Bulgaria. (SOMF ¶ 168). Hasbún testified that the
23
AUC hid the weapons in bags of fertilizer. Hasbún personally threatened a Banadex security
officer at the port, demanding that the AUC be permitted to unload the shipment of fertilizer.
(SOMF ¶ 169). Several days later, a Banadex security officer discovered a security tape from the
port showing non-Banadex employees unloading a boat on the night in question. (SOMF ¶ 169).
Chiquita was not aware that the shipment contained weapons until they had already been secured
by the AUC. (SOMF ¶ 169). Plaintiffs’ own expert conceded that there is no evidence Chiquita or
the individual Defendants were aware of the arms shipments before they occurred, or that Chiquita
or the individual Defendants voluntarily allowed the shipments to happen. (SOMF ¶ 170). In this
expert’s own words, Chiquita and Banadex personnel learned of this particular arms shipment only
after the fact and “were pretty upset about it.” (SOMF ¶ 170).
Thus, there is no evidence from which a jury could conclude that Chiquita or any individual
Defendant ever facilitated arms shipments through Banadex’s port facilities in Colombia. Indeed,
Plaintiffs’ allegations are directly contradicted by the evidence of record. The unrefuted evidence
in the record is that no Banadex employee—let alone any of the individual Defendants—was aware
of, participated in, or facilitated arms shipments into Colombia through Banadex’s port facilities.
As a matter of law, therefore, nothing Chiquita or any individual Defendant did or did not do was
a but-for cause of the death of any Plaintiff’s decedent as required for non-contractual liability
under Colombian law.
(b) There is no evidence that Chiquita or the individual Defendants
facilitated the AUC’s use of Banadex’s port facilities in Turbo
to smuggle illegal drugs out of Colombia.
Plaintiffs also allege that Chiquita and the individual Defendants actively facilitated the
AUC’s smuggling of illegal drugs out of Colombia through Banadex’s Turbo port.19 These
allegations too have proven not only unsupported but directly contradicted by the facts of record
developed through discovery. There is no evidence from which a jury could conclude that Chiquita
or the individual Defendants voluntarily provided support to the AUC through facilitating drug
shipments out of Colombia through Banadex’s port facilities. The unrebutted evidence is to the
contrary.
19
DE 557, ¶¶ 1171-1173; DE 3, Case No. 10-80652-CIV-MARRA, ¶¶ 1072-1075; DE 3, Case
No. 11-80404-CIV-MARRA, ¶¶ 783-786; DE 186, Case No. 07-60821-CIV-MARRA, ¶¶ 97-98;
DE 558, ¶¶ 1806-1812; DE 576, ¶¶ 2160-2163; DE 589, ¶¶ 148-151; DE 576, ¶¶ 91-94.
24
In addition to selling use of Banadex’s port facilities and port services for incoming cargo,
Chiquita also sold, for a time, space on outgoing cargo ships. (SOMF ¶ 172). When Chiquita sold
space on outgoing cargo ships, Chiquita’s only responsibility with respect to the third-party cargo
was loading the cargo, and Chiquita was prohibited by law from inspecting it. (SOMF ¶ 173).
Chiquita had no responsibility for inspecting cargo it received from third parties and further was
prohibited by law from even opening sealed containers it received from third parties. (SOMF ¶
174). Chiquita’s only knowledge of what was contained inside third-party cargo was what was
officially declared by the third-party exporter. (SOMF ¶ 174).
It is undisputed that Chiquita was, at the times relevant to Plaintiffs’ Complaints, a
worldwide leader in drug interdiction and in cooperating with authorities to prevent the smuggling
of illegal drugs on its vessels leaving Colombia. Customs officials in the United States recognized
Chiquita as such, stating that “Chiquita is a leader among commercial ocean carriers in cooperating
with the U.S. Customs Service regarding the prevention of drug smuggling on company operated
vessels” and acknowledging that Chiquita’s efforts “to prevent the transportation of drugs on its
vessels have been exemplary, meeting or exceeding the standards for a responsible corporation
operating abroad.” (SOMF ¶ 175). Belgian customs officials did the same, emphasizing that
“Chiquita is co-operating closely with Belgian customs to prevent the transportation of drugs on
its vessels” and acknowledging their appreciation for Chiquita’s efforts in preventing drug
smuggling aboard its vessels. (SOMF ¶ 176). As former special DEA agent, Deputy Chief for
International Operations, and Regional Director in Bogotá, Colombia, David Gaddis, wrote in his
expert rebuttal report, “virtually all transportation companies [in Colombia] were facing the same
threat from drug traffickers smuggling drugs on their vessels, planes, trains, trucks, etc.
Notwithstanding the best efforts of law enforcement and businesses, drugs continue to be
smuggled into the country [the United States] undetected.” (SOMF ¶ 177).
As Hérmes Hérnandez—former Banadex director of security in Santa Marta and Turbo—
testified, Chiquita and Banadex worked alongside Colombian authorities to prevent drug
smuggling on Chiquita ships and at Chiquita ports for its own cargo:
Q: Did you also work with the authorities, the police, and
Colombian military to prevent drug smuggling on Chiquita ships
and at Chiquita ports?
...
25
A: Correct. We also worked in Colombia. In Colombia, there is,

there is a specialized police for drug trafficking. They’re called the
antidrug trafficking police. We worked hand in hand with them to
avoid our loads being contaminated. But beyond that, we had our
internal protocols of the review, the fruit and followed, the follow-
through of the loads. We had controls for the containers. Everything
that was going to be exported, the lids, the tops were open, they
would be looked at. The entire internal process. There was holes
done with drills to see if there was anything. Then we would cover
them and shore them up and then we would put some seals on them
for security. They were like belts that would be, the belts would be
on the inside and on the outside and on the lateral lids. And this
process that we would conduct, we would record. And then the
containers that had already been checked by the anti-narcotics police
and then at the end, at the end, we would seal them and we would
put on them a seal, a high security seal, it was a bottle seal. And we
would follow that container until it was unloaded to the vessel. Any
alarm that the antidrug police would give, we would return the
container and we would recheck it again. We would do this task
together with the antidrug police.
(SOMF ¶ 178). Indeed, Plaintiffs’ own expert admitted that he was unaware of any evidence to
contradict Mr. Hérnandez’s testimony on Chiquita’s drug interdiction efforts. (SOMF ¶ 178).
Defendant Robert Kistinger also testified:
Q: And did you know of any efforts that Chiquita made to stop
the smuggling of drugs through the Chiquita port in Colombia?
A: We made concerted efforts all the time to work very, very

closely with local authorities, DOJ, authorities in Latin America,
authorities in the United States, authorities in ports in Europe. Our
shipping people, our security people very, very often worked very
closely with those people to do everything we could to prevent it
from happening.
(SOMF ¶ 178).
In one specific incident, Banadex’s then-general manager Alvaro Acevedo chose to close
Banadex’s port facility for the weekend upon receiving a tip that an outgoing cargo vessel had on
it a sealed container from a third-party exporter that contained illegal drugs. (SOMF ¶ 179). Mr.
Acevedo closed the port facilities with the intention that the container would not be exported from
Chiquita’s port. (SOMF ¶ 180). No Banadex employee was authorized to inspect the suspect
container, which was the province of Colombian authorities. (SOMF ¶ 181). Later in the weekend,
26
Mr. Acevedo received a call from the port’s supervisor who had received a direct threat from armed
AUC members to open the port and allow the suspect container to be shipped. (SOMF ¶ 182).
Chiquita’s response is further evidence of how closely Chiquita worked with authorities to prevent
drug smuggling. Chiquita alerted Belgium authorities about the shipment who set up a sting
operation. Chiquita opened the port, the ship was permitted to sail to Belgium and, upon arrival,
law enforcement immediately boarded the ship and seized the smuggled drugs. (SOMF ¶ 183).
There is no evidence that Chiquita or any individual Defendant was aware before the fact
of any specific incidents in which the AUC smuggled drugs on Chiquita’s outgoing vessels.
Indeed, the only evidence of record is that Chiquita aggressively and actively worked to prevent
such smuggling. There is certainly no evidence that Chiquita or any individual Defendant
voluntarily and actively assisted the AUC to smuggle drugs, let alone that such assistance was the
but-for cause of the death of any Plaintiff’s decedent.
(c) When Banadex personnel concluded, despite their best efforts,
that it was not possible to prevent all shipments of drugs and
weapons through its port in Turbo, Banadex made the voluntary
decision to end third-party shipments for non-banana
companies.
Following the Otterloo incident, in 2002, then-general manager of Banadex, Alvaro

Acevedo, voluntarily decided to end the importation and exportation services provided by Banadex
at its Turbo port for all businesses other than banana companies. (SOMF ¶ 184). Mr. Acevedo
personally informed the port manager that he was no longer authorized to unload containers from
third-party, non-banana company vessels. (SOMF ¶ 185). Mr. Acevedo concluded that, despite
Banadex’s best efforts, the only way to prevent any other drugs or arms smuggling through
Chiquita’s port facilities was to close the facilities to all non-banana companies. (SOMF ¶ 186).
That evidence in and of itself disproves Plaintiffs’ outlandish allegations that Chiquita and the
individual Defendants voluntarily and purposefully assisted the AUC to smuggle arms into—and
drugs out of—Colombia.
6. There is no evidence that any individual Defendant’s acts or omissions
were the but-for cause of Plaintiffs’ injuries.
Plaintiffs’ claims are even more of a non-starter for the individual Defendants. Nothing in
the record reveals any action by an individual Defendant that, had it not occurred, any Plaintiff’s
decedent would not have been killed. Aside from the complete lack of evidence that the AUC
27
killed the decedents, as explained above, there is no evidence in the record that discrete actions
taken by any individual Defendant were the but-for cause of any decedent’s death. Certainly, no
individual Defendant took any direct action regarding any decedent, and thus Plaintiffs must rely
on the highly attenuated theory that some individual Defendants’ actions taken regarding
Chiquita’s extortion payments somehow caused a decedent’s death. But Chiquita’s extortion
payments amounted to only between 2/100 and 8/100 of one percent of the AUC’s income and, as
a matter of law, could not have been the but-for cause of the death of any Plaintiff’s decedent.
Plaintiffs cannot set forth any evidence to demonstrate that the AUC would not have killed their
decedents without Chiquita’s actions. Necessarily, then, each individual Defendant’s actions
could not have had any effect upon the AUC’s actions.
Moreover, Plaintiffs fail to identify fault, damage, and a but-for causal link for any
Defendant as required under Colombian non-contractual liability. (Justice Santos Report, p. 4).
The individual Defendants—former Chiquita executives and officers—are not responsible under
a reverse form of respondeat superior. And not one iota of evidence has been proffered that
purports to demonstrate but-for causation between any individual Defendant’s specific actions
with respect to payments and any death of any decedent. No expert was even asked to opine as to
whether the particular actions of any individual Defendant caused any particular death. In sum,
there is no basis beyond speculation from which a jury could conclude that any one individual
Defendant was a but-for cause of any death.
There are two specific applications of this doctrine that warrant amplification.20 First, an
individual Defendant cannot be a but-for cause of a death that occurred before he came to work at
Chiquita or after he left Chiquita. With respect to TVPA claims, this Court ruled in the Perez I
action that an individual Defendant is “legally incapable of committing torts committed by his
alleged co-conspirators prior to the time he joined Chiquita … and therefore cannot be charged
with vicarious liability …for those substantive offenses.” (DE 2063 at 9.) Likewise, the Court
held that an individual Defendant “cannot be held vicariously liable … for substantive offenses
allegedly committed by coconspirators after he left….” (Id. at 11.) The Perez reasoning applies
20
A chart showing the date of death of each decedent as to whom individual Defendants raise these
applications, along with each decedent’s representative Plaintiff case, and individual Defendants
sued by each representative Plaintiff, is attached as Exhibit B.
28
equally to claims under Colombian law, which requires that the Court “hypothetically suppress”
each individual Defendant’s culpable act and only find liability “if the damage disappears.”21
Second, an individual Defendant cannot be a but-for cause of any death if he was not
involved in deciding whether or not to make payments. Plaintiffs must prove for each individual
Defendant that he engaged in an act or omission that falls below the standards of a prudent man.
In order “[t]o determine whether or not the person acted with fault, a court will analyze the conduct
of the person that caused the damage by comparing it with that of a diligent person under the same
circumstances.” If the Court concludes that such actions are “what a diligent and prudent person
would have done,” “then the conduct of the defendant would not be negligent.” (Justice Santos
Report, pp. 4-5).22 Last year, this Court dismissed TVPA claims against individual Defendants
because they had not “specifically directed or sanctioned the particular act to be done, or
knowingly participated or cooperated in accomplishing the wrongful act.” (DE 2052 at 8.)
Similarly, Plaintiffs fail to satisfy the elements of fault, damage, and causation under Colombian
law if evidence is “insufficient to demonstrate any relevant participation, knowing cooperation or
discretionary decision-making activity.” (Id. at 8-9.)
Consideration of the facts of a few of the individual Defendants demonstrates how
Plaintiffs have fallen far short with respect to all Defendants:23
Mr. Olson. Mr. Olson joined Chiquita as General Counsel in August 1995. (SOMF ¶ 213).
As explained, non-contractual civil liability under Colombian law requires “fault,” which courts
analyze by comparing “the conduct of the person that caused the damage . . . with that of a diligent
person under the same circumstances.” (Justice Santos Report, p. 4). The undisputed facts establish
21
Colombian Supreme Court of Justice, opinion dated September 22, 1980, quoted in Justice
Santos Report, p. 10.
22
Under Colombian law, “there is no non-contractual fault when the harm occurred in
circumstances in which the agent did not have the opportunity to foresee . . . namely when he did
not have the option to avoid the damage.” (Justice Santos Report, p. 5 n.6) (citing Supreme Court
of Justice opinion dated Sept. 30, 2016).
23
In compliance with the Court’s Order of February 12, 2019 (DE 2272), the individual Defendants
submit this joint brief, which generally speaks on all their behalves, and which also includes all
individualized arguments herein, as required. Accordingly, in this section, each individual
Defendant joins only the portion seeking summary judgment as to himself and the cited portions
of the joint Statement of Material Facts therein.
29
AUC would result in protection of Chiquita’s employees and farms, and that if payments were to
cease, employees would be targeted and killed. (SOMF ¶ 211). That fear was substantiated by
various reports of severe violence against Chiquita employees, including an incident where 23
Chiquita farmworkers were taken off a bus at the side of the road and murdered, as well as incidents
of kidnapping. (SOMF ¶ 212).
Mr. Freidheim is not liable under Colombian law for any decedent’s death. More
specifically, any death that took place prior to March 2002—when Mr. Freidheim joined Chiquita
or after his departure from Chiquita in May 2004—cannot form the basis of a claim against Mr.
Freidheim as the element of causation cannot be met. Just as Mr. Freidheim was not legally
capable of committing violations of the TVPA before or after his tenure with the company, he
likewise cannot be held liable for non-contractual civil liability under Colombian law based on
acts that occurred before he joined Chiquita or after his departure.
Estate of Mr. Hills. Mr. Hills is not liable under Colombian law for any decedent’s death.
First, three Plaintiffs seek to hold the Estate liable for deaths that took place before 2002, and must
be dismissed under Perez and the absence of but-for causation, as Mr. Hills did not join Chiquita’s
board until 2002 (SOMF ¶ 188). Second, Mr. Hills never had authority to halt or continue
payments; as an Audit Committee member he had authority to investigate, which he did, and his
investigation and cooperation with DOJ led to Chiquita’s exit from Colombia. Third, there is no
but-for causation between any of Mr. Hills’s actions in the ten months between April 2003, when
he learned of the payments, and the death of any of Plaintiffs’ decedents.
31
Mr. Lindner.24 Assuming arguendo that there are in fact Colombian law claims pending against
Mr. Lindner,25 he was far removed from any operational level decisions made at Chiquita.26 He
had no knowledge of any violence committed at the hands of any armed groups in Colombia, much
less of any alleged payments approved and made to them by Chiquita or anyone else during his
tenure at Chiquita. (See Lindner SOMF ¶¶ 18, 20, 27-33). In addition to not being able to establish
but-for causation as to Mr. Lindner, Plaintiffs are unable to meet their burden proving fault as
required for non-contractual civil liability under Colombian law. (Justice Santos Report, p. 4).
Plaintiffs have failed to discover any evidence to support their barebones allegations that Mr.
Lindner was aware of and approved alleged payments to the AUC or any other armed group in
Colombia,27 or that he was in a position to do so. Given that his duties focused on other aspects
of Chiquita that were unrelated to Chiquita’s Colombian operations, Mr. Lindner could not have
acted as anything other than a “diligent and prudent person,” because he was not in a position to
have any knowledge about, be informed of, or involved in anything related to Chiquita’s
Colombian operations, any violence committed by armed groups in Colombia, or Chiquita’s
24
Mr. Lindner incorporates by reference the arguments made in his motion for summary judgment
(DE 2186) and statement of material facts (the “Lindner SOF”) (DE 2187) filed on November 16,
2018, addressing separate grounds for summary judgment not discussed in this Motion, which
Plaintiffs were ordered to respond to by March 15, 2019 pursuant to the Court’s Order dated
December 21, 2018 (DE 2217).
25
Despite the Court’s ruling that only Colombian law claims remain against Mr. Lindner, the
Valencia and Montes Plaintiffs conceded in their interrogatory responses that they have no claims
against Mr. Lindner arising out of Colombian law, and the Carrizosa Plaintiffs failed to specify
any Colombian law under which they are pursuing claims against Mr. Lindner, instead merely
listing a number of irrelevant documents. (DE 2186 at 2, 5-7.)
26
See DE 2186 at 3-5 (outlining Mr. Lindner’s role as a Chiquita officer and director); Lindner
SOMF ¶¶ 3, 6-18. Furthermore, a significant amount of Plaintiffs’ allegations relate to actions
occurring after Lindner’s retirement as an executive of Chiquita in March 1997 and his subsequent
retirement as a director of Chiquita in March 2002. (See Lindner SOMF ¶¶ 2, 9). Having retired
from these positions, Lindner has not been involved in any decision-making and business activities
of Chiquita related to those positions since those relevant dates.
27
Indeed, this Court has previously dismissed these same claims in related actions for failure to
allege Mr. Lindner’s knowledge and approval of AUC payments or his participation in AUC
payment activities. (See DE 1908, at 15; DE 2051, at 13; DE 1110, at 28).
32
payments to the AUC.28 As the undisputed facts show, Mr. Lindner was in no way involved or
had personal knowledge whatsoever of any alleged scheme involving the AUC and was not in a
position to “avoid [any alleged] damage suffered by Plaintiffs.29 Given the absence of proof of
causation or fault against Mr. Lindner, he is entitled to dismissal.
William A. Tsacalis. As Chiquita’s Controller since 1987 (SOMF ¶ 195), Mr. Tsacalis was
responsible for overseeing a system of procedures and controls to assure fair reporting of the
company’s financial position. (SOMF ¶ 196). Mr. Tsacalis did not determine what types of
expenses or payments were appropriate or inappropriate (SOMF ¶ 202), nor did he exercise
discretion as to whether a payment was classified as sensitive, or have direct responsibility
concerning individual sensitive payments. (SOMF ¶ 205). With respect to payments to
paramilitaries, Mr. Tsacalis did not make the decision to make payments; rather, it was his role to
make sure that the payments were properly recorded once the decision to make payments was
made. (SOMF ¶ 204).
Mr. Tsacalis is not liable under Colombian law for any decedent’s death. First, because
Mr. Tsacalis only had authority to ensure that there were systems in place to ensure that expenses
were made in compliance with the law and with company policy (SOMF ¶¶ 205-206), there is no
but-for causation between Mr. Tsacalis’ conduct and the death of any of Plaintiffs’ decedents.
Second, because Mr. Tsacalis did not know of any connection between payments made by Chiquita
and the AUC until September 2000 (SOMF ¶ 204), he cannot be deemed to have “acted with fault”
or in a non-diligent manner as required under Colombian law. (Justice Santos Report, p. 4).
7. Colombian law does not allow punitive damages, so that each Plaintiff’s
claim for punitive damages must be dismissed as a matter of law.
As mentioned earlier, because Colombian law allows for complete reparation in damages
where fault is causally linked to those damages, “there are no punitive damages in Colombia.”30
28
See DE 2186 at 3-5; Lindner SOMF ¶¶ 3, 6-18, 20, 27-33.
29
See DE 2186 at 7-9 (outlining extensive evidence in the record establishing Mr. Lindner’s lack
of knowledge and involvement). Indeed, Mr. Lindner’s testimony regarding his role at Chiquita
and lack of knowledge or approval regarding any payments in Colombia was corroborated by
every other former Chiquita executive who was involved with Chiquita during Mr. Lindner’s
period of service. See Lindner MSJ at 9-10; Lindner SOMF ¶¶ 34-37 (citing the testimony of
Robert Olson, John Ordman, Robert Kistinger, and Barbara Howland).
30
CÓDIGO CIVIL (Colombia Civil Code), Article 63; Justice Santos Report, p. 4.
33
Assuming arguendo that Plaintiffs Colombian law claims were to survive summary judgment,
because every Plaintiff requests punitive damages, the Court should still grant summary judgment
against such relief.31
IV. CONCLUSION
While applying the Federal Rules of Civil Procedure, the Court must apply Colombian
substantive law. But-for causation is a necessary element of non-contractual civil liability on that
substantive law. Plaintiffs have failed to adduce any evidence that any AUC member killed any
of their decedents, that monetary support from Chiquita allowed the killer to commit the murder,
and that the killing would not have occurred in the absence of such support. Having failed to create
a genuine issue of material fact on required elements of their claims under Colombian law, the
Court should grant summary judgment on each Plaintiff’s Colombian law claim.
31
See DE 575, Doe 1-144’s Operative Complaint (D.C action), ¶¶ 2323(c); DE 576, Valencia
Plaintiffs’ Operative Complaint, p. 247; DE 558, Manjarres Plaintiffs’ Operative Complaint, p.
307; DE 558, Montes Plaintiffs’ Operative Complaint, pp. 28, 331;DE 589, New Jersey Plaintiffs’
Operative Complaint, p. 85; DE 186 in Case No. 07-cv-60821-MARRA, Carrizosa Plaintiffs’
Operative Complaint, p. 41; DE 3 in Case No. 9:10-cv-80652-MARRA, Does 1-976’ Operative
Complaint, p. 293; DE 115, in Case No. 11-cv-80405-MARRA, Wolf Plaintiffs Operative
Complaint, p. 126; DE 1 in No. 17-cv-00145-TSB (Ohio action), Does 1-2146’s Operative
Complaint, p. 548.
34
Dated: February 15, 2019 Respectfully submitted,
/s/ Ardith Bronson /s/ Michael L. Cioffi

Ardith Bronson (Fla. Bar No. 423025) Michael L. Cioffi (pro hac vice)
DLA PIPER LLP (US) Thomas H. Stewart (pro hac vice)
200 South Biscayne Blvd., Suite 2500 Kevin M. Bandy (pro hac vice)
Miami, FL 33131-5341 Blank Rome LLP
Tel: (305) 423-8500 1700 PNC Center
Fax: (305) 503-9583 201 East Fifth Street
Email: ardith.bronson@dlapiper.com Cincinnati, Ohio 45202
Tel: (513) 362-8701/04
Earl Silbert (pro hac vice) Fax: (513) 362-8702/93
Charles B. Wayne (pro hac vice) Email: cioffi@blankrome.com
DLA Piper LLP (US) stewart@blankrome.com
500 Eighth Street, N.W. kbandy@blankrome.com
Washington, D.C. 20004
Tel: (202) 799-4000 Frank A. Dante (pro hac vice)
Fax: (202) 799-5517 Blank Rome LLP
Email: earl.silbert@dlapiper.com One Logan Square
charles.wayne@dlapiper.com 130 N. 18th Street
Philadelphia, PA 19103
Counsel for Defendants Tel: (215) 569-5645
Cyrus Freidheim, Jr. and Robert Kistinger Fax: (215) 832-5645
Email: dante@blankrome.com
/s/ Jeffrey A. Neiman
Jeffrey A. Neiman (Fla. Bar No. 544469) Counsel for Defendant Chiquita
MARCUS NEIMAN & RASHBAUM Brands International, Inc.
100 Southeast Third Avenue, Suite 805
Fort Lauderdale, FL 33394 /s/ Edward Soto
Tel: (954) 462-1200 Edward Soto (Fla. Bar No. 0265144)
Fax: (954) 688-2492 Lauren Alexander (Fla. Bar No. 0058044)
Email: jneiman@mnrlawfirm.com WEIL, GOTSHAL & MANGES LLP
1395 Brickell Avenue, Suite 1200
Elissa J. Preheim (pro hac vice) Miami, FL 33131
R. Stanton Jones (pro hac vice) Tel: (305) 577-3100
ARNOLD & PORTER KAYE SCHOLER Fax: (305) 374-7159
LLP Email: Edward.Soto@weil.com
601 Massachusetts Avenue NW lauren.alexander@weil.com
Washington, DC 20001
Tel: (202) 942-5000
Fax: (202) 952-5999 Counsel for Defendant, Keith Lindner
Email: elissa.preheim@aporter.com
stanton.jones@aporter.com
35
Counsel for Defendant Robert Olson

/s/ Robert D.W. Landon, III
/s/ L. Louis Mrachek Robert D.W. Landon, III (Fla. Bar No.
L. Louis Mrachek (Fla. Bar No. 182880) 961272)
MRACHEK, FITZGERALD, ROSE, Kenny Nachwalter, PA
KONOPKA, THOMAS & WEISS, P.A. Four Seasons Tower
505 South Flagler Drive, Suite 600 1441 Brickell Avenue, Suite 1100
West Palm Beach, Florida 33401 Miami, FL 33131
Tel: (561) 655-2250 Tel: (305) 373-1000
Fax: (561) 655-5537 Fax: (305) 372-1861
Email: lmrachek@mrachek-law.com Email: rlandon@knpa.com
David S. Krakoff (pro hac vice) K. Lee Blalack, II (pro hac vice)
Bradley A. Marcus (pro hac vice) Anton Metlitsky (pro hac vice)
BUCKLEY LLP Dimitri D. Portnoi (pro hac vice)
1250 24th Street, N.W., Suite 700 O’Melveny & Myers LLP
Washington, D.C. 20037 1625 Eye Street NW
Tel: (202) 349-8000 Washington, DC 20006
Fax: (202) 349-8080 Tel: (202) 383-5300
Email: dkrakoff@buckleyfirm.com Fax: (202) 383-5414
bmarcus@buckleyfirm.com Email: lblalack@omm.com
ametlitsky@omm.com
Counsel for Defendant Charles Keiser dportnoi@omm.com
Counsel for Carla M. Hills, as the

Personal Representative of the
Estate of Roderick M. Hills, Sr.
/s/ John B.T. Murray, Jr.

John B.T. Murray, Jr. (Fla. Bar No. 962759)
SQUIRE PATTON BOGGS (US) LLP
1900 Phillips Point West
777 South Flagler Drive
West Palm Beach, FL 33401
Tel: 561.650.7213
Fax: 561.655.1509
Email: jb.murray@squirepb.com
Counsel for Defendant William Tsacalis

36
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed this document with the Clerk of the Court using
CM/ECF on February 15, 2019, which will automatically generate and serve Notices of Electronic
Filing on all counsel of record.
/s/ Michael L. Cioffi

Counsel for Defendant
Chiquita Brands International, Inc.
37

Chiquita MSJ R 2283

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Case 0:08-md-01916-KAM Document 2302 Entered on FLSD Docket 02/25/2019 Page 1 of 40

UNITED STATES DISTRICT COURT

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

This Document Relates to:

DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION AND SUMMARY ................................................................................2

Anderson v. Liberty Lobby, Inc.,

Broadway v. State Farm Mut. Auto. Ins. Co.,

Celotex Corp. v. Catrett,

Clark v. Coats & Clark, Inc.,

Cordoba v. Dillard’s, Inc.,

Corporacion Salvadorena de Calzado, S.A. (Corsal, S.A.) v. Injection Footwear

Corwin v. Walt Disney World Co.,

Eclipse Med. v. Am. Hydro-Surgical Instruments,

Hedberg v. Indiana Bell Tel. Co.,

Ibezim v. Geo Group, Inc.,

Josendis v. Wall to Wall Residence Repairs, Inc.,

LaChance v. Duffy’s Draft House, Inc.,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

Seguros del Estado, S.A. v. Sci. Games, Inc.,

Fed. R. Civ. P. 25(a) ........................................................................................................................5

FED. R. CIV. P. 44.1 ..........................................................................................................................9

Fed. R. Civ. P. 56(a) ........................................................................................................................7

Fed. R. Civ. P. 56(c) ........................................................................................................................7

Fed. R. Civ. P. 56(e) ........................................................................................................................7

Colombia’s Supreme Court of Justice has reaffirmed this principle:

II. STANDARD OF REVIEW – American procedural law.

1. The Court should grant summary judgment on each Plaintiff’s claim

(a) There is no evidence of record of who killed any Plaintiff’s

A: Yes, if they continued to contribute resources to the

A: Mindful of the way I’m supposed to answer, yes.

A. I think that is something you would have to ask them. In my idea, I

A: Correct. We also worked in Colombia. In Colombia, there is,

A: We made concerted efforts all the time to work very, very

Following the Otterloo incident, in 2002, then-general manager of Banadex, Alvaro

Dated: February 15, 2019 Respectfully submitted,

/s/ Ardith Bronson /s/ Michael L. Cioffi

Counsel for Defendant Robert Olson

Counsel for Carla M. Hills, as the

/s/ John B.T. Murray, Jr.

Counsel for Defendant William Tsacalis

Filing on all counsel of record.

/s/ Michael L. Cioffi

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