Case 0:08-md-01916-KAM Document 2715 Entered on FLSD Docket 10/19/2020 Page 1 of 5

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 ACTION:

11-80405-CIV-MARRA (Does 1-254 v. Chiquita)

ATA ACTIONS:

09-80683-CIV-MARRA (Pescatore v. Chiquita)

08-20641-CIV-MARRA (Julin v. Chiquita)
11-80402-CIV-MARRA (Sparrow v. Chiquita)
10-80954-CIV-MARRA (Stansell v. Chiquita)
___________________________________________/

ORDER DENYING PLAINTIFFS’ (DOES 1-254) MOTION FOR RECONSIDERATION

OF SEPTEMBER 8, 2020 ORDER DENYING MOTION FOR IMPOSITION OF
CONSTRUCTIVE TRUST OVER FARC-RELATED ASSETS [DE 2688]
AND
DENYING PLAINTIFFS’ (DOES 1-254) MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT ADDING FARC AS NEW PARTY DEFENDANT [DE 2689]

Does 1-254, each of whom alleges the loss of a family member from war crimes perpetrated

by the Revolutionary Armed Forces of Colombia (the “FARC”), previously sought imposition of

a constructive trust against blocked United States-based FARC-related assets frozen by the Office

of Foreign Asset Control (“OFAC”). A portion of these assets were recently recovered by Anti-

terrorism Act (“ATA”) Plaintiffs Stansell and Pescatore in the execution of default judgments

obtained against the FARC in parallel lawsuits lodged in the United States District Court for the

Middle District of Florida and the United States District Court for the District of Colombia.
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Finding no basis for the requested equitable relief over the assets of an alleged non-party

joint tortfeasor, the Court denied the motion. [DE 2684]. The Doe Plaintiffs now move for

reconsideration of that ruling [DE 2688]. They also contemporaneously move for leave to file a

Second Amended Complaint adding the FARC as a party defendant to their lawsuit [DE 2689].

The Stansell and Pescatore Plaintiffs have filed a joint Opposition to the motions [DE 2695].

Defendant Chiquita takes no position on the motion for reconsideration [DE 2698], while

opposing the motion to amend as untimely [DE 2696]. Does 1-254 have filed their Reply [DE

2705] and the matters are now ripe for disposition.

Upon consideration of the motion for reconsideration, the Court finds no justification for

revisiting its prior ruling on the constructive trust issue and denies the motion.1 As to the motion

to add new parties to this lawsuit – filed nine years into this suit – the Court denies the motion as

plainly untimely and unsupported by adequate cause. Plaintiffs do not adequately address the

opposing parties’ contention that the proposed amendment would be futile, vis a vis statute of

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Plaintiffs suggest, among other things, that comparative fault precepts would allow a non-party Fabre tortfeasor
(such as FARC) to be included on the verdict form in a future trial for an allocation of fault between all tortfeasors,
and, from here, posit that the FARC need not be a named party to suit in order to support the imposition of a
constructive trust against U.S.- based assets traceable to it. The Court rejects Plaintiffs’ Fabre- based theory that the
Court need not have FARC joined as a party to the action in order to award relief against its assets.

As a threshold matter, only Colombian law claims remain for adjudication in this case, and there is no record support
for the proposition that Colombian law follows the equivalent of a Florida law, Fabre tortfeasor-comparative fault
allocation. And, even if it did, while the Fabre rule generally allows determinations on the comparable fault of a non-
party to be determined in a negligence case without that party being joined in the action, such comparative fault
determinations cannot be made where the “action comprehending one or more negligent torts actually has at its core
an intentional tort by someone.” Merrill Crossings Associates v. McDonald, 705 So.2d 560, 563 (Fla. 1997). Such is
the case here.

Finally, even if apportioning of fault could be applied in the context of intentional torts, a finding of comparable fault
on the part of a non-party would not permit the Court to award affirmative relief against that party or execution against
its assets in the absence of that party’s joinder.

In short, Plaintiffs’ Fabre-arguments have no bearing on the relevant legal requirements for imposition of a
constructive trust and do not support the prejudgment, constructive trust claim it advances here against the non-party
FARC.

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limitation impediments, nor do they overcome the suggestion of jurisdictional impediments which

they themselves raised by way of explaining their initial strategical decision not to sue the FARC

in this litigation.

On the latter point, Plaintiffs earlier complained, in their initial motion seeking imposition

of a constructive trust over FARC assets, that the United States District Courts for the Middle

District of Florida and District of Colombia (the fora in which default judgments against the FARC

were issued on behalf of the Pescatore and Stansell Plaintiffs) lacked jurisdiction over the FARC,

under established U.S. Supreme Court authority and other controlling precedent, and that the

judgments entered by the district courts in those cases were therefore null and void. Going further,

Does 1-254 contended that Rule 11 prohibited the filing of those claims against the FARC by the

Pescatore and Stansell Plaintiffs, representing that “[n]o attorney could prosecute these kinds of

claims in good faith in the face of such clear Supreme Court and D.C. Circuit precedent.” [DE

2667, pp. 16-17]. They further explained, “Does 1-144 and Does 1-254 didn’t sue the FARC

directly because they are (sic) an unincorporated foreign terrorist organization,” and instead

determined to pursue claims against Chiquita only as a public corporation secondarily liable for

supporting the FARC [DE 2667, p. 19].

Having previously asserted that no United States’ court could legitimately exercise

jurisdiction over the FARC; that it may have been unethical for the Stansell and Pescatore

Plaintiffs to pursue claims against the FARC in the United States district courts in light of that

jurisdictional impediment; and that Does 1-254 made a deliberate decision not to sue the FARC

at the outset of this case due to perceived jurisdictional or other legal impediments to such claims,

it is incumbent on the Doe Plaintiffs to explain the abandonment of their earlier, polar positions

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on the FARC’s amenability to suit in this MDL. Their failure to do so militates against the

suggestion that the interests of justice would be furthered by permitting the proposed amendment.

Given Plaintiffs’ failure to address the suggestion of futility posed by the proposed

amendment, in addition to the advanced stage of this litigation, the prejudice to other parties likely

to stem from further motion practice and delays attending the addition of new parties, and the

absence of any justification for Plaintiffs’ delay in bringing the motion, the Court denies the

motion. Hester v. Int’l Union of Operating Engineers, AFL-CIO, 941 F.2d 1574, 1579 (11th Cir.

1991) (no abuse of discretion in refusing to allow amendment of claims under Rule 15 standard

two years after notice of deficiencies, given long history of case and inexplicable delay in seeking

to amend); Smith v. Duff and Phelps, Inc., 5 F.3d 488, 494 (11th Cir. 1993) (upholding disallowance

of amendment after three years delay).

As a concluding note, the Court addresses the issue of extant deadlines for amendment to the

pleadings and joinder of new parties in the cases subsumed within this MDL. In advance of the

Court’s Original Global Scheduling Order, the Court solicited the parties’ proposals for pretrial

scheduling. In response, on February 1, 2017, the parties submitted a joint proposed scheduling

order [DE 1264] which included a March 10, 2017 cut-off date for joinder of additional parties

and amendment of pleadings [DE 1264, p. 1]. Mr. Wolf expressly joined in that agreed proposal

[DE 1264, p. 8]. When the Court entered its Original Global Scheduling Order on April 11, 2017,

largely tracking the parties suggestions and adjusting prospective dates as appropriate, it saw no

need to include the proposed cutoff date for amending the pleadings and joining parties because

the agreed-upon date had already passed by the time the Court entered its Order.

It was the Court’s intent to track and adopt the parties’ agreed cut-off date for those deadlines,

and to the extent there is any confusion or ambiguity on this point, the Court now applies that

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MARCH 10, 2017 deadline which was proposed and agreed to by the parties as the operative cut-

off date. Therefore, going forward the Rule 16 standard shall apply to any future requests for

amendment to the pleadings or joinder of new parties.

To be clear, in its disposition of the current motion to amend, the Court nevertheless applied

the more liberal Rule 15 standard to conclude that the interests of justice do not support the

requested relief and denied the motion due to Plaintiff’s unwarranted delay in bringing the motion,

in addition to the other factors outlined above. All future motions to amend will be governed under

the Rule 16 standard.

It is accordingly ORDERED AND ADJUDGED:

1. Plaintiffs’ (Does 1-254) Motion for Reconsideration of the September 8, 2020 Order

denying imposition of a constructive trust over United States-based FARC assets [DE

1268] is DENIED.

2. Plaintiffs’ (Does 1-254) Motion for Leave to File a Second Amended Complaint adding

the FARC as a party defendant [DE 1269] is DENIED.

3. The Global Scheduling Order(s) in this case are clarified to identify MARCH 17, 2017

as the operative cut-off date for amendment of pleadings and joinder of parties per

uniform agreement of all parties [DE 1264 p. 1, 8].

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 19th day of

October, 2020.

KENNETH A. MARRA
United States District Judge

cc. All counsel