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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 08-MD-1916-MARRA

IN RE CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
____________________________________________/

This Document Relates To

ATS ACTIONS

Case No. 08-80480-CIV-MARRA (Manjarres) (New York Action)

___________________________________________/

ORDER DENYING PLAINTIFF JUVENAL ENRIQUE FONTALVO CAMARGO’S

MOTION FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) [DE 2573]

THIS CAUSE is before the Court on Plaintiff Juvenal Enrique Fontalvo Camargo

(“Camargo”)’s motion for reconsideration of the September 5, 2019 Order granting summary

judgment in favor of Defendants and relief from the corresponding Partial Final Judgment [DE

2573]. Defendant Chiquita Brand International Inc. (“Chiquita”) filed a response in opposition to

the motion [DE 2581] and Plaintiff filed a reply [DE 2597].

Plaintiff claims to have discovered new evidence that raises factual issues that should have

precluded summary judgment on the causation issue on which the summary judgment order

hinged, i.e. the issue of whether Plaintiff’s decedent was killed by a Colombian terrorist

organization financially supported by Chiquita. Because Plaintiff does not demonstrate that he

acted with reasonable diligence in obtaining the “new” evidence he now seeks to proffer, and

because he does not demonstrate that the newly proffered evidence is admissible or reducible to

admissible form at trial, the Court concludes he is not entitled to the requested relief.

I. Standard of Review

Rule 60(b) of the Federal Rules of Civil Procedure permits relief from a final judgment for
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the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial under Rule 59(b);

(3) Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct

by an opposing party;

(4) The judgment is void;

(5) The judgment has been satisfied, released or discharged; the judgment is based on an

earlier judgment that has been reversed or vacated; applying the judgment prospectively

is no longer equitable; or

(6) Any other reason that justifies relief.

Rule 59(e), in turn, permits a motion to alter or amend a judgment within 28 days of the

entry of judgment. In this Circuit, the only grounds for granting a motion to alter or amend a

judgment under Rule 59(e) are newly discovered evidence or manifest errors of law or fact. Arthur

v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). A motion to alter or amend a judgment may not

be used to “relitigate old matters, raise argument or present evidence that could have been raised

prior to the entry of judgment.” Id.

A motion for relief from judgment based on newly discovered evidence that is filed within

the time frame prescribed by Rule 59(e) is properly analyzed only under Rule 59(e), regardless of

its label, while a motion for reconsideration based on newly discovered evidence filed after the

statutory deadline is governed by Fed. R. Civ. P. 60 (b). Rance v. D.R. Horton, Inc., 316 F. Appx.

860, 863 (11th Cir. 2008); Mahone v. Ray, 326 F.3d 1176, 1177 n. 1 (11th Cir. 2003). The partial

final summary judgment disposing of Plaintiff’s claims in this case was entered on September 6,
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2019 [DE 2552], while Plaintiff filed his motion for reconsideration on October 3, 2019 [DE 2573],

within the 28-day statutory deadline for Rule 59(e) motions. Consequently, his motion is properly

considered under Rule 59(e).

Ultimately, the standard for obtaining relief from judgment due to newly discovered

evidence is the same under either authority. Radenhausen v. United States Coast Guard, 2014 WL

12628546 (M.D. Fla. 2014) (citing Region 8 Forest Serv. Timber Purchasers Council v. Alook,

993 F.2d 800, 805 n. 5 (11th Cir. 1993) and Wright & Miller, Federal Practice and Procedure §

2808 (3rd ed. 2012)). To obtain relief from judgment based on newly discovered evidence, the

movant must show: (1) the evidence was newly discovered after the Court’s ruling; (2) the movant

exercised due diligence in discovering the new evidence; (3) the new evidence is not merely

cumulative or impeaching; (4) the new evidence is material, and (5) the new evidence is of such

magnitude that production of it earlier would likely have changed the outcome of the case. Wadell

v. Hendry County Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003); Ybarra v. McDaniel, 656

F.3d 984, 998 (9th Cir. 2011), cert. denied, 133 S. Ct. 424 (2012). The same test applies when the

final judgment is a summary judgment order. Williams v. North Fla. Reg’l Med. Ctr., Inc., 164 F.

Appx. 896, 898-99 (11th Cir. 2006).

II. Discussion

Plaintiff submits, as “newly discovered evidence,” a letter dated September 19, 2019

reflecting the signature of Gener Rafael Terraza Serge, there identified as “Public Prosecutor No.

218,” within the “Support Unit for Prosecutor’s Office No. 31 Directorate of the National

Prosecutor’s Office, Specialized in Transitional Justice, Santa Marta” [DE 2573, pp. 10- 11]. This

document recites that it is issued in response to a “right of petition” submitted by Carlos Sanchez,

a criminal investigator based in Bogota, Colombia. The document is divided into five sub-parts
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corresponding to the “requested points” identified by Mr. Sanchez. The letter does not mention

the date of Mr. Sanchez’s petition, nor is that petition included in the materials submitted in

support of Plaintiff’s current motion.

In response to the fifth and last “requested point,” i.e. “[t]o inform which crimes committed

by Edwin Alberto Ferrer Gonzalez , alias El Ruso, could be documented by the Prosecutor’s

Office,” Dr. Terraza Serge states that Edwin Alberto Ferrer Gonzalez, alias “El Ruso,” is not an

applicant for benefits under the Justice and Peace Law, and that the investigation of his activity

was therefore assigned to another division of the Prosecutor’s Office. He concludes, “this Office

does not document the crimes committed by Edwin Alberto Ferrer Gonzalez, alias El Ruso, since

the Division Directors of the Prosecutor’s Office and the Head of National Units are the ones

responsible for carrying out follow up of the legal proceedings being carried out against him and

who assume the work load of this investigative line.” [DE 2573, p. 11]

Dr. Terraza Serge nevertheless relays the conclusions of other prosecutorial agencies,

“[i]n accordance with the information records held at the office, based on interviews, Judicial

Police Reports, declarations of [Justice and Peace] applicants,” stating that these other

prosecutorial agencies “determined that Edwin Alberto Ferrer Gonzalez, alias El Ruso, operated

in the municipalities of Cienga, Pueblo Vieo and Zona Bananera, Magdalena Department, without

ruling out that within the structure of the William Rivas front, the commission of crimes may have

been assigned to him through mobile groups, that is to say squads formed by three or more people

who used to patrol in motorcycles” in municipalities in and around the Banana Zone.

The Terraza Serge letter also recites that during the course of indictment hearings

involving AUC commanders Jose Gregorio Mangones Lugo and others, “the Prosecutor’s Office

carried out a chronological presentation of the structure of the William Rivas Front from the
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moment it was established until its demobilization in the different zones in which it interfered,

which allowed to foresee (sic) that the William Rivas Front of the Northern Bloc of the United

Self-Defenders of Colombia, AUC, was an illegally organized and armed group that had a

hierarchical structure with the capacity to carry out illegal actions in determined territories, in

which its members assumed specific roles under the command line and obeying to a common

leadership.” Presumably drawing from this same “chronological presentation” made by the

Prosecutor’s office, Terraza Serge further reports that “[w]ithin this illegal organization was

Edwin Alberto Ferrer Gonzalez, alias El Russo, who acted as a patrol member in the urban area

of the Cienaga, Pueblo Viejo, Zona Bananera municipalities.” [DE 2573 p. 9]. Notably, the

Terraza letter reports that El Ruso was captured on November 4, 2004, pursuant to an arrest

warrant issued by the Prosecutor’s Office No. 6, specializing in Aggravated Extortion, and

Criminal Association Combined with Homicide, and that he currently is incarcerated in a medium

security prison located in Barranquilla.

In a separate filing, submitted October 24, 2019, Plaintiff submitted an “apostille” issued

by the Transitional Justice Director of the General District Attorney’s Office of Colombia which

certifies that the signature appearing on the September 19, 2019 letter proffered as “new

evidence” in this proceeding is that of Gener Rafael Terraza Serge “who performs as Delegated

Attorney before the Penal Judges of the Circuit, assigned to the Attorney’s Office 31 Delegated

before the Court” [DE 2598, pp. 5-9 ].1

1
According to Plaintiff, before the issuance of this certification, there was no “established procedure to obtain such
certifications from the Fiscalia (Colombian Prosecutor) or apostilles from the Colombian Chancellery” for use in
foreign civil cases. [DE 2597 p. 2]. Plaintiff contends that his investigator in Colombia, William Acosta, along with
co-investigator Carlos Fajardo, “have just recently succeeded in arranging with the Fiscalia to establish a new
procedure to obtain the necessary certifications for submission to the chancellery to apostille Fiscalia documents, the
first of which has been submitted on Plaintiff’s Rule 60(b) motion.” Id. He submits the supporting affidavit of Acosta
to this same effect. Acosta claims to have made “numerous unsuccessful attempts to obtain documents from the
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Notably, Plaintiff does not specifically claim that the contents of the Terraza Serge letter

constituted new evidence, not earlier accessible to him. Rather, he claims that the process for

certifying or apostilling such correspondence was not earlier available to him.

In further support of his current motion, Plaintiff files supplementary affidavits from

witnesses who previously offered testimony in opposition to the summary judgment motion. One

eyewitness, Sergio Manuel Contreras Castro, previously averred that he directly witnessed a man

known to him as paramilitary leader “El Ruso” participate in the abduction of Plaintiff’s decedent,

and the other, Ever Joel Fontalvo (the decedent’s uncle) averred that he later received verbal

complaints from “El Tijeras,” who he knew as the paramilitary leader Gregorio Mangones Lugo,

concerning his movement of the body for return to his family. In their newly filed affidavits,

signed within four days of the adverse summary judgment order, these witnesses now aver that

the person whom they previously identified as “El Ruso” is the same person shown in a certain

criminal record, photograph and fingerprints assigned to El Ruso, a record which is attached to

their affidavits. Neither explains how or when these criminal records were obtained, or why they

were not earlier brought to their attention. Nor does Plaintiff comment on this topic or submit any

independent evidence to authenticate the alleged criminal record or lay a foundation for its

admission into evidence.

Finally, as part of his reply, Plaintiff supplements the record with “new” evidence

consisting of “the portion of the Sentencia of Jose Gregorio Mangones Lugo, pertaining to the

homicide of Plaintiff’s decedent, Franklin Fabio Salas Fontalvo, that was inadvertently left out of

Fiscalia in admissible form,” but found “there has been no established procedure for getting certified documents from
the Fiscalia that could be apostilled for use in a foreign civil matter in the United States.” [DE 2597, pp. 11-12].
Notably absent from this exposition is any explanation of when Acosta and Fajardo (or any other agent of Plaintiff)
first requested an apostille or certification of any official communication from the Fiscalia, or why this process could
not have been initiated and completed prior to entry of summary judgment.
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the [Plaintiff’s] original submissions in opposition to summary judgment.” [DE 2597 p. 4, n. 1]

[App. “D” to Reply, DE 2597, pp. 27-35].

A. Plaintiff’s Evidence Was Available Prior to the Summary Judgment Oder

1. The Prosecutor’s Letter (Office No. 31)

Evidence discovered or known prior to issuance of the Court’s September 3, 2019 Order is

not “new.” Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009); Feature Realty Inc. v. City of

Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003). Here, Plaintiff does not contend that the substantive

contents of the prosecutor’s letter --- relaying an alleged relationship between El Ruso and the

William Rivas Front of the AUC commanded by Mangones Lugo -- was unknown to him prior to

entry of the summary judgment order. He argues that this evidence was simply not available in

the “form” now presented, that is, with an accompanying apostille authenticating the document as

an official record of the Fiscalia. More specifically, Plaintiff contends that the process for

certifying or apostilling foreign prosecutorial correspondence from the Colombian “Fiscalia” or

National Prosecutors’ Office is one only recently established – allegedly at the behest of his

investigators – and not previously available to him.

Plaintiff does not indicate when his investigator first submitted this request for information

to the Fiscalia, what prior requests for information were made to the Fiscalia, if any. Nor does

Plaintiff state what prior efforts were made to authenticate any relevant prosecutorial records, or

to otherwise secure relevant deposition testimony from Colombian officials having jurisdiction

over El Ruso or Mangones Lugo, the persons he contends were responsible for the murder his

decedent. Furthermore, Plaintiff does not explain why he could not have alerted the Court to the

existence of the substantive information contained in the letter of Dr. Terraza Serge before entry

of judgment, while simultaneously seeking relief in connection with claimed difficulties he

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encountered in securing an apostille for this record.

Plaintiff could and should have petitioned the Colombian authorities for this information

at a far earlier stage in this litigation, in time to follow up in pursuit of admissible evidence on the

identity of the decedent’s killer. Had he done so, he presumably could have learned that El Ruso

was captured in 2004, and since has been imprisoned by Colombian authorities (and potentially

accessible for deposition under Hague Convention procedures).

Without an adequate explanation for his delay in interfacing with the Fiscalia, the newly

proffered letter of Dr. Terraza Serge dated September 21, 2019, fails to qualify as “new” evidence

under the rule 59(e) standard.

2. Supplemental Affidavits

The supplemental affidavits of Contreras and Fontalvo offered as “new evidence” of an AUC

affiliation belonging to one of the men witnessed as a participant in the decedent’s abduction do

even superficially attempt to show that the testimony is proffered as “new” evidence learned after

entry of summary judgment.

Plaintiff does not explain when or how he obtained the purported criminal record of El Ruso

on which the new testimony proffered in these affidavits hinges, nor does he suggest any reason

why the attached record was not earlier accessible. Without a showing as to why this criminal

record was unknown to Plaintiff prior to judgment, he does not show that it is “new” evidence

within the meaning of Rule 59(e).

Further, without authentication of the document or submission of a foundation for its

admission into evidence, the supplemental identification testimony relying upon this document

does not constitute admissible evidence -- new or otherwise -- of an AUC affiliation attaching to

the decedent’s abductor.

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B. Even if “New,” Plaintiff Was Not Diligent in Discovering the Evidence

Assuming, arguendo, that Plaintiff’s proffered evidence was not discovered until after

issuance of the Court’s summary judgment order, Plaintiff cannot show that he was reasonably

diligent in discovering either category of evidence now proffered. A plaintiff is not reasonably

diligent in discovering new evidence where he knows of the existence of the evidence but waits

until it is in a more accurate or compelling form to present it. Metoyer v. Chassman, 248 F. Appx.

832, 835 (9th Cir. 2007) (denying motion for reconsideration of summary judgment on newly

discovered evidence based on proffered audiotape of meeting received (post judgment) from

anonymous source, where the plaintiff and at least one of her co-worker witnesses were present at

the meeting and would have had personal knowledge of the discussion).

Plaintiff does not show when he first learned that Colombian prosecutors linked Edwin

Alberto Ferrer Gonzalez, alias “El Ruso,” to the William Rivas front of the Northern Bloc of the

United Self-Defenders of Colombia (“AUC”), and Plaintiff does not show when he or his agents

first acquired the document he describes as the official criminal record of “El Ruso.” Nor does he

adequately explain why the substantive content of either document could not have been discovered

and brought to the Court’s attention prior to the entry of summary judgment. 2

2
Plaintiff states that the evidence proffered in the September 19, 2019, Terraza letter, issued in response to his petition
of unspecified date, “was not accessible previously in this form.” He contends that he has been diligent in pursuing
information concerning “El Ruso” from the outset of this case, but was “hampered by the fact that the witnesses did
not know his true name, and this individual never surrendered or participated in the Justice and Peace Processes or
gave statements comparable to those of Mangones, Hasbun etc.” [DE 2573 p. 3].

At the same time, Plaintiff acknowledges that he was the recipient of prior correspondence from the Fiscalia, or
Colombian Prosecutor’s Office, dated September 8, 2008, advising that Mangones Lugo, a former paramilitary
commander leading the William Rivas Front, had accepted “participation” in the homicide of his decedent, Franklin
Fabio Fontalvo Salas, in preliminary testimony before the Justice and Peace Tribunal [Reply Brief, DE 2597, p. 4, .n.
1]. Plaintiff does not show what efforts were then undertaken to explore a link between Mangones and “El Ruso,” the
individual who he now claims eluded identification prior to entry of judgment due to employment of this alias.

The Court is not persuaded by this contention, where Plaintiff does not show what efforts were undertaken to follow
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The substantive contents of both documents could and should have been included in

Plaintiff’s response to the summary judgment motion with the exercise of due diligence. Even if

authentication of either document was not reasonably possible prior to entry of judgment (a matter

on which no opinion is here expressed), Plaintiff could have brought both items to the Court’s

attention prior to entry of judgment in conjunction with either a request for more time in securing

proper authentication, or identification of a path by which authentication at the time of trial might

reasonably be anticipated (i.e. a showing that the proffered evidence was at least reducible to

admissible form at time of trial).

As Plaintiff does not plausibly show why, in the exercise of due diligence, he could not

have earlier obtained information on El Ruso’s alleged AUC connection from relevant

prosecutorial authorities in Colombia having jurisdiction over El Ruso, or why he could not have

earlier obtained competent evidence pertaining to El Ruso’s official criminal record prior to entry

of summary judgment, he does not satisfy the second prong of the “newly discovered evidence”

standard. See e.g. Radenhausen v. United States Coast Guard, 2014 WL 12628546 (M.D. Fla.

2014); Ray v. Fedex Corporate Services, Inc., 668 F. Supp. 2d 1063,1070 (W.D. Tenn. 2009).

C. Plaintiff’s Evidence Would Not Have Changed the Outcome Because He Does not
Show The Evidence is Admissible or Reducible to Admissible Form at Trial.

Even if Plaintiff’s newly proffered evidence satisfied the first two prongs of the “newly

discovered evidence” test under Rule 59(e), he could not satisfy the last prong of the standard

because he does not show that either category qualifies for admission into evidence in the form

up on this ten-year-old piece of correspondence from the Fiscalia to explore the connection between Mangones, El
Ruso and AUC activity connected to the murder of his son. Notably, during an early discovery phase of this MDL
proceeding, a then-imprisoned Mangones was the subject of a request for assistance under the Hague Evidence
Convention Procedures initiated by other Plaintiff groups, suggesting a once-available discovery mechanism for
exploring this connection which apparently was left unmined.

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presented (or that it is reducible to admissible form at trial). As to the prosecutor’s letter, Plaintiff

suggests it records the results of an official governmental investigation, presumably intimating the

interplay of the Rule 803(8) public records hearsay exception. However, there is nothing in the

content of the letter to support this supposition. Dr. Terraza Serge, as author, recites information

presented by the Prosecutor’s Office during Justice and Peace Tribunal’s processes involving AUC

commander Mangones Lugo, but there is no indication that this information was the product of an

official government investigation. Rather, Dr. Terraza Serge refers obliquely to this content as

information presented in the Prosecutor’s Office “chronological presentation of the structure of

the William Rivas front from the moment it was established until its demobilization” during a

concentrate indictment hearing [DE 2573, p. 9]. There is nothing to support the inference that

the “chronological presentation” was the product of an official government investigation, and

therefore Plaintiff supplies no predicate for admission of this portion of the letter under the public

records hearsay exception.

Similarly, as to the proffered supplemental affidavits, Plaintiff does not identify a path for

admission of the underelying document (El Ruso criminal record) on which the witnesses’ new

visual identification of the decedent’s abductor is based.

Without a predicate for the admission of either category of “newly discovered” evidence,

Plaintiff cannot show that the proffered evidence would likely have changed the disposition of the

case. Douglas v. District of Columbia Housing Authority, 306 F.R.D.1 (D. D.C. 2014); American

Civil Liberties Union v. Dept. of Defense, 406 F. Supp. 2d 330 (S.D.N.Y. 2005) (to prevail on

motion for relief from judgment based on newly discovered evidence, movant must show evidence

is admissible and likely effective to change result of former ruling); Travelers Cas. & Sur. Co

v. Crow & Sutton Associates, 2005 WL 767442 (N.D. N.Y. 2005).

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III. Conclusion

As Plaintiff fails to show a basis for relief from judgment based on newly discovered

evidence under Rule 59(e) or Rule 60(b), it is ORDERED AND ADJUDGED:

Plaintiff’s Motion for Reconsideration of Summary Judgment Order and Motion for Relief

from Partial Final Summary Judgment [DE 2753], here construed as a Motion to Alter or Amend

Judgment under Fed. R. Civ. P. 59(e), is DENIED.

DONE and SIGNED in Chambers at West Palm Beach, Florida this 22nd day of November

2019.

KENNETH A. MARRA
United States District Judge

cc. All counsel

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