In Re Chiquita Brands Appellants Response and Reply Brief

Case: 19-13926 Date Filed: 09/01/2020 Page: 1 of 76
Case No. 19-13926-C
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
___________________________________________
Does 1 Through 976, et al. v.

Chiquita Brands International, et al.
___________________________________________
On Appeal from the United States District Court

For the Southern District of Florida
No. 08-md-01916
(Nos. 08-80465, 11-80404)
(The Honorable Kenneth A. Marra)
____________________________________________
RESPONSE AND REPLY BRIEF
OF
APPELLANTS DOE 378 AND DOE 840

____________________________________________
Paul Wolf, DC Bar #480285

P.O. Box 21840
Washington, D.C. 20009
Telephone (202) 431-6986
paulwolf@yahoo.com
Attorney for Plaintiff-
Appellants-Cross-Appellees
Doe 378 and Doe 840
CERTIFICATE OF INTERESTED PERSONS
Counsel certifies that the following is a complete list of the trial judge(s), all
attorneys, persons, associations of persons, firms, partnerships, or corporations
(noted with its stock symbol if publicly listed) that have an interest in the outcome
of the particular case on appeal, including subsidiaries, conglomerates, affiliates,
and parent corporations, and other identifiable legal entities related to a party,
known to Appellants, are as follows:
1. Doe 378, whose identity remains confidential under a Protective Order of
the District Court, and the daughter of deceased plaintiff Doe 840, whose identity
also remains confidential under the Order. In addition, the plaintiffs bring their
cases as personal representatives of the estates of the deceased. They represent
other legal heirs with interests, whose identities are known to the Appellees, but
remain confidential under the Protective Order.
2. The other plaintiffs in the complaints filed by undersigned counsel in the
Southern District of Florida, in Case Nos. 08-80465, 10-80652, 11-80404, 11-
80405 and 17-cv-80475. Undersigned counsel represents the legal heirs of
approximately 2,319 wrongful death cases. In addition, there are six other plaintiff
groups with a total of about 7500 "claims" in the MDL, all of whom have an
interest in this appeal.
3. Additional interested parties are:
i
Agrícola Longaví Limitada
Agrícola Santa Marta Limitada
Agroindustria Santa Rosa de Lima, S.A.
Aguirre, Fernando
Alamo Land Company
Alsama, Ltd.
American Produce Company
Americana de Exportación S.A.
Anacar LDC
Arnold & Porter
Arvelo, José E.
Associated Santa Maria Minerals
B C Systems, Inc.
Baird, Bruce
Bandy, Kevin
Barbush Development Corp.
Bienes Del Rio, S.A.
Blank Rome LLP
BlackRock, Inc. (NYSE: BLK)
Blue Fish Holdings Establishment
ii
Bocas Fruit Co. L.L.C.
In Re: Chiquita Brands Int’l., Inc.
Boies Schiller & Flexner, LLP, Fort Lauderdale
Boies Schiller & Flexner, LLP, Miami
Boies Schiller & Flexner, LLP, New York
Boies Schiller & Flexner, LLP, Orlando
Bronson, Ardith
Brundicorpi S.A.
Cadavid Londoño, Paula
Carrillo, Arturo J.
C.C.A. Fruit Service Company Limited
CB Containers, Inc.
Centro Global de Procesamiento Chiquita, S.R.L.
Charagres, Inc., S.A.
Childs, Robert
Chiquita (Canada) Inc.
Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.
Chiquita Banana Company B.V.
Chiquita Brands International Foundation
Chiquita Brands International Sàrl
iii
Chiquita Brands International, Inc. (NYSE: CQB)
Chiquita Brands L.L.C.
Chiquita Central Europe, s.r.o.
Chiquita Compagnie des Bananes
Chiquita Deutschland GmbH
Chiquita Food Innovation B.V.
Chiquita for Charities
Chiquita Fresh B.V.B.A.
Chiquita Fresh España, S.A.
Chiquita Fresh North America L.L.C.
Chiquita Fruit Bar (Belgium) BVBA
Chiquita Fruit Bar (Germany) GmbH
Chiquita Fruit Bar GmbH
Chiquita Frupac B.V.
Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton
Chiquita Hong Kong Limited
Chiquita International Services Group N.V.
Chiquita Italia, S.p.A.
Chiquita Logistic Services El Salvador Ltda.
Chiquita Logistic Services Guatemala, Limitada
iv
Chiquita Logistic Services Honduras, S.de RL
Chiquita Melon Packers, Inc.
Chiquita Mexico, S. de R.L. de C.V.
Chiquita Nature and Community Foundation
Chiquita Nordic Oy
Chiquita Norway As
Chiquita Poland Spolka Z ograniczona odpowiedzialnoscia
Chiquita Portugal Venda E Comercializaçao De Fruta,

Unipessoal Lda
Chiquita Relief Fund - We Care
Chiquita Shared Services
Chiquita Singapore Pte. Ltd.
Chiquita Slovakia, S.r.o.
Chiquita Sweden AB
Chiquita Tropical Fruit Company B.V.
Chiquita UK Limited
ChiquitaStore.com L.L.C.
Chiriqui Land Company
CILPAC Establishment
Cioffi, Michael
Coast Citrus Distributors Holding Company

v
Cohen, Millstein, Sellers & Toll, PLLC
Collingsworth, Terrence P.
Compañía Agrícola de Nipe, S.A.
Compañía Agrícola de Rio Tinto
Compañía Agrícola del Guayas
Compañía Agrícola e Industrial Ecuaplantation, S.A.
Compañía Agrícola Sancti-Spiritus, S.A.
Compañía Bananera Atlántica Limitada
Compañía Bananera Guatemateca Independinte, S.A.
Compañía Bananera La Estrella, S.A.
Compañía Bananera Los Laureles, S.A.
Compañía Bananera Monte Blanco, S.A.
Compañía Caronas, S.A.
Compañía Cubana de Navegación Costanera
Compañía Frutera América S.A.
Compañía La Cruz, S.A.
Compañía Mundimar, S.A.
Compañía Productos Agrícolas de Chiapas, S.A. de C.V.
Compañía Tropical de Seguros, S.A.
Conrad & Scherer LLP
vi
Costa Frut S.A.C.
Covington & Burling LLP
Danone Chiquita Fruits SAS
Dante, Frank
Davies, Patrick
De La Calle Restrepo, José Miguel
De La Calle Londoño y Posada Abogados
DeLeon, John
Dimensional Fund Advisors LP
DLA Piper
Duraiswamy, Shankar
Dyer, Karen C.
Earthrights, International, Inc.
Exportadora Chiquita - Chile Ltda.
Exportadora de Frutas Frescas Ltda.
Financiera Agro-Exportaciones Limitada
Financiera Bananera Limitada
FMR LLC
Fresh Express Incorporated
Fresh Holding C.V.
vii
Fresh International Corp.
Friedheim, Cyrus
Frutas Elegantes, S. de R.L. de C.V.
Fundación Para El Desarrollo de Comunidades Sostenibles en el

Valle de Sula
G & V Farms, LLC
G W F Management Services Ltd.
Garland, James
Girardi, Thomas V.
Gould, Kimberly
Gravante, Jr., Nicholas A.
Great White Fleet Liner Services Ltd.
Great White Fleet Ltd.
Green, James K.
Guralnick, Ronald S.
Hall, John
Heaton Holdings Ltd.
Heli Abel Torrado y Asociados
Hemisphere XII Investors Limited
Hills, Roderick, the Estate of
Hospital La Lima, S.A. de C.V.

viii
Ilara Holdings, Inc.
Inversiones Huemul Limitada
James K. Green, P.A.
Jimenez Train, Magda M.
Jones, Foster, Johnston & Stubbs, P.A.
Jones, Stanton
Keiser, Charles
King, William B.
Kistinger, Robert
Lack, Walter J.
Law Firm of Jonathan C. Reiter
Law Offices of Chavez-DeLeon
Leon, The Honorable Richard J.
Markman, Ligia
Marra, The Honorable Kenneth A.
Martin, David
Martinez Resly, Jaclyn
McCawley, Sigrid S.
Mosier, Mark
Mozabanana, Lda.
ix
Olson, Robert
O'Melveny & Meyers
Ordman, John
Parker Waichman LLP
Philips, Layn
Prías Cadavid Abogados
Prías, Juan Carlos
Priedheim, Alissa
Procesados IQF, S.A. de C.V.
Processed Fruit Ingredients, BVBA
Promotion et Developpement de la Culture Bananiere
Puerto Armuelles Fruit Co., Ltd.
Rapp, Cristopher
Reiter, Jonathan C.
Ronald Guralnick, P.A.
Scarola, Jack
Searcy Denney Scarola Barnhart & Shipley, P.A.
Seguridad Colosal, S.A.
Servicios Chiquita Chile Limitada
Servicios de Logística Chiquita, S.A.
x
Servicios Logísticos Chiquita, S.R.L
Servicios Proem Limitada
Silbert, Earl
Simons, Marco
Skinner, William
Sperling, Jonathan
Spiers N.V.
Sprague, Ashley M.
St. James Investments, Inc.
Stewart, Thomas
Stubbs, Sidney
Tela Railroad Company Ltd.
The Vanguard Group
TransFRESH Corporation
Tsacalis, William
UNIPO G.V., S.A.
V.F. Transportation, L.L.C.
Verdelli Farms, Inc.
Western Commercial International Ltd.
Wichmann, William J.
xi
Wiesner & Asociados Ltda. Abogados
Wiesner, Eduardo A.
Wilkins, Robert
Willkie Farr & Gallagher
Wolf, Paul
Wolosky, Lee S.
Zack, Stephen N
Zhejiang Chiquita-Haitong Food Company Limited
Zuleta, Alberto
Certification
I hereby certify that to the best of my knowledge, the above is a complete

list of persons having an interest in this case.
/s/ Paul Wolf

________________________
Paul Wolf, D.C. Bar #480285
Attorney for Appellants
Doe 378 and 840
August 22, 2020
xii
TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS …………………………….. i
TABLE OF CONTENTS ……………………………………………………. xiii
TABLE OF AUTHORITIES ………………………………………………… xvii
SUMMARY OF ARGUMENT ……………………………………………… 1
ARGUMENT - REPLY ……………………………………………………… 4
A. Ludy Rivas Borja is a proper party. …………………………………... 4
1. The District Court didn't abuse its discretion by not setting

any time limit to re-file the motion with certified translations…. 4
2. Equitable tolling applies, because Ludy Rivas diligently

prosecuted her claim. .……………………………………...…… 4
3. The filing of a defective motion isn't jurisdictional, and was

therefore within the District Court's discretion to determine
how long Ludy Rivas had to respond. …………………………. 5
4. Ludy Rivas need not rely on Federal Rule of Appellate

Procedure 43(a)(2) because she timely filed a Notice of
Appeal after the District Court ruled on her case on the merits. 6
B. The Appellees have failed to address the issues on appeal

identified by Appellants, thereby conceding them. …………….……. 6
1. The analysis in the Appellants' Opening Brief isn't

"extraneous," but law the Court should use to determine
whether the Plaintiffs have made prima facie showings that
create a reasonable or plausible inference that the AUC was
responsible. ................................................................................ 8
2. The Jones, Macuba, Ray and Smith cases relied on by

xiii
Chiquita all show that the Plaintiffs have met their burden
to show evidence which is capable of being reduced to
admissible form at trial. ….…………………………………….. 8
a. The Plaintiffs had no burden to obtain Apostilles ………. 13
3. The District Court abused its discretion by not considering

death certificates and administrative agency findings. .……....... 14
a. Due Process requires that Doe 378 and 840's

evidence, which is different from that of the Florida
Appellants, be considered. ………………………………. 15
4. The business records exception generally applies to

Colombian government records, which were made in
the course of their ordinary activities. At this stage, the
Appellants need only show that the documents are capable
of being introduced at trial by a qualified witness. …………...... 17
5. The public records exception applies to the factual findings

of Accion Social, which resulted from legally authorized
investigations. …………..……………………………………… 18
6. The public records exception applies to "Prosecutor Letters"

and public documents of the Colombian Commission of
Justice and Peace. ………………………………………………. 20
7. Although Doe 840 obtained several documents too late to

use as summary judgment exhibits, they may be considered
under Rule 60(b)(2), as newly discovered evidence. …………... 23
C. The District Court abused its discretion by excluding FBI Agent

Manuel Ortega's expert opinion. The standard of review isn't
"manifest error." ………………………………………………………. 24
1. Ortega's method was to apply the probable cause standard. …… 26
2. Ortega properly relied on circumstantial evidence, as would

any investigator. ………………………………………………... 28
xiv
3. Ortega properly relied on hearsay in forming his opinions. ….… 30
D. A reasonable jury could find that the AUC committed the murders. …. 31
1. The 11th and D.C. Circuits assign the same weight to direct
and circumstantial evidence. …………………………………… 31
ARGUMENT - RESPONSE TO CROSS-APPEAL ………………………… 35
A. The cross-appeal should be dismissed because it isn't part of the

Appellee's "consolidated principal and response brief and raising
any issues on cross-appeal related to the Wolf Appellants' appeal"
as ordered by this Court. ………………………………………………. 35
B. The Appellees have waived any issues related to forum non

conveniens by not arguing them in the cross-appeal. …………………. 35
C. The Plaintiffs have made a prima facie showing that the AUC
and the 17th Brigade of the Colombian Army in Uraba were in
a "symbiotic relationship," which doesn't require a particular
showing of state involvement in each murder that resulted from
the relationship. …………………………………………………….…. 36
1. The language in the TVPA requiring the underlying killing

to be "deliberated" doesn't mean deliberated by the Individual
Defendants, who may be held liable for aiding and abetting. .… 37
2. The Individual Defendants may also be held liable

under principles of agency law, and jurisprudence under
42 U.S.C. § 1983 ………………………………………………. 38
3. The District Court correctly held that the Plaintiffs need

not allege facts showing “specific government involvement
with each individual act of torture and killing of Plaintiffs’
relatives.” …………………………………………………….… 39
a. The Aldana, Romero, Sinaltrainal, and Mamani cases

relied on by the Cross-Appellants were ones in which
the relationship between the incident and the overall
conflict couldn't be shown. ..………………………….… 39
xv
4. State action may be imputed to the Bloque Bananero of the

AUC from the 17th Brigade of the Colombian army. ……….… 44
5. Doe 378 and Doe 840 have made plausible, prima facie
showings that the murders were war crimes occurring in the
course of hostilities. ………………………………………….... 47
D. The civil standard for the TVPA is that the individuals responsible
for the murders were "more likely than not" members of the AUC. … 49
CONCLUSION ………………………………………………………….….. 49
xvi
TABLE OF AUTHORITIES
Cases Page(s)
Adickes v. S.H. Kress Co.,

398 U.S. 144 (1970) …………………………………………………… 46
Aldana v. Del Monte Fresh Produce, N.A.,

416 F.3d 1242 (11th Cir. 2005) ……………………………….. 40-41, 42
Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) …………………………………………...….… 6, 33
Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) ………………………………………………… 5-6
Ashcroft v. Iqbal,
556 U.S. 662 (2009) …………………………………………………. 44
Avila-Santoyo v. U.S. Att'y Gen.,

713 F.3d 1357 (11th Cir. 2013) (en banc) …………………………… 5
Booker v. City of Atlanta,

776 F.2d 272 (11th Cir. 1986) ……………………………………….. 41
Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n.,

531 U.S. 288 (2001) ………………………………………………….. 45
Browning v. AT & T Paradyne,

120 F.3d 222 (11th Cir. 1997) ………………………………………… 4
Brungart v. BellSouth Telecommunications, Inc.,

231 F.3d 791 (11th Cir. 2000) ……………………..………………… 32
Burton v. Wilmington Parking Auth.,

365 U.S. 715 (1961) ……………………………………………….… 46
Cabello v. Fernandez-Larios,
402 F.3d 1148 (11th Cir. 2005) ………………………………….. 37-38
xvii
Catrett v. Johns-Manville Sales Corp.,

826 F.2d 33 (D.C. Cir. 1987) cert. denied 108 S.Ct. 1028 (1988) ….... 7
Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ………………………………..……. 6-7, 9-11, 32
Chapman v. American Cyanamid Co.,

861 F.2d 1515 (11th Cir. 1988) ……………………………………... 7
Chowdhury v. WorldTel Bangladesh Holding, Ltd.,

746 F.3d 42 (2d Cir. 2014) …………………………………………. 38
Cimino v. Raymark Indus.,

151 F.3d 297 (5th Cir. 1998) ……………………………………….. 15
Cox v. Administrator U.S. Steel & Carnegie,

17 F.3d 1386 (11th Cir. 1994),
modified on reh’g, 30 F.3d 1347 (11th Cir. 1994) …….…...…….….. 33
Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) ……………………………………...………. 25, 27
Dennis v. Sparks,
449 U.S. 24 (1980) …………………………………….….……….… 45
Doe v. Drummond,
782 F.3d 576 (11th Cir. 2005) ………………………….….... 37, 38, 44
Doe v. Drummond,
Memorandum Opinion of November 9, 2009,
Case No. 09-cv-1041-RDP (NDAL) ……………………..…..……... 48
Estate of Manook v. Research Triangle Institute,

693 F.Supp.2d 4 (D.D.C. 2010) …………………………..…........…. 40
Estate of Manook v. Research Triangle Institute,

759 F.Supp.2d 674 (E.D.N.C. 2010) …………………………......…. 40
First National Bank of Arizona v. Cities Service Co.,

391 U. S. 253 (1968) ……………………..……………….……….... 31
xviii
Halberstam v. Welch,
705 F.2d 472 (D.C. Cir.1983) …………………………………..….... 38
Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) …………………………………...….. 15
Henderson v. Shinseki,
131 S.Ct. 1197 (2011) ………………………………………..……… 5
Hendrix v. Evenflo Co.,

609 F.3d 1183 (11th Cir. 2010) ……………………………..…….... 8
Holland v. United States,

348 U.S. 121 (1954) ……………………………………….…..….… 29
In re Factor VIII or IX Concentrate Blood Prods. Litig.,

169 F.R.D. 632 (N.D. Ill. 1996)) …………………………..……...…. 16
Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) ……………………………………..…….…. 45-46
Jones v. UPS Ground Freight,

683 F.3d 1283 (11th Cir 2002) …………………………..……….. 8-10
Justice v. United States,

6 F.3d 1474 (11th Cir. 1993) ……………….………………….…..… 4
Kadic v. Karadzic,
70 F.3d 232 (2nd Cir. 1995) ……………………………………….. 45
Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999) ……………………………………..…….. 25, 28
Leon v. Millon Air, Inc.,

251 F.3d 1305 (11th Cir. 2001) …………………………………… 36
Lexecon v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26 (1998) …………………….………………………. 12, 18
xix
Lohse v. Coffey,
32 A.2d 258 (D.C. 1943) ……………………………………..……. 34
Lucas v. Duncan,
574 F.3d 772 (D.C. Cir. 2009) …………………………….…….…. 33
Macuba v. DeBoer,
193 F.3d 1316 (11th Cir. 1999) ………………………………… 11-12
Maiz v. Virani,
253 F.3d 641 (11th Cir. 2001) …………………………………….… 31
Mamani v. Berzain,
654 F.3d 1148 (11th Cir. 2017) ………………………….……… 43-44
Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) ……………………………………….……….. 15
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ……………………………………..…. 2, 6-7, 32
McCaskill v. Ray,
279 F.Appx 913 (11th Cir 2008) ……………………..………..…... 12
McMillian v. Johnson,
88 F.3d 1573 (11th Cir.1996) ……………………………………… 10
Meyer v. Holley,
537 U.S. 280 (2003) ……………………………………………….. 37
Moose Lodge No. 107 v. Irvis,

407 U.S. 163 (1972) ……………………………………………….. 46
Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981) …………………………………………….…. 36
Pritchard v. S. Co. Servs.,

92 F.3d 1130 (11th Cir.1996) ……….………...…………………... 10
Pussinen v. Target Corp.,

xx
731 F.App'x 936 (11th Cir. 2018) ………………………………..…. 32
Rayburn ex rel. Rayburn v. Hogue,

241 F.3d 1341 (11th Cir. 2001) …………………………………….. 40
Republic of Panama v. BCCI Holdings (Luxembourg) S.A.,

119 F.3d 935 (11th Cir. 1997) ………………………………….….. 33
Rogers v. Missouri Pac. R. Co.,

352 U.S. 500 (1957) ……………………………………………….. 29
Romero v. Drummond Co., Inc.,

552 F.3d 1303 (11th Cir. 2008) ……………………………… 37, 39-42
Roxbury-Smellie v. Florida Dept Corrections,

324 F. App'x 783 (11th Cir. 2009) ………………………………….. 19
Sinaltrainal v. Coca Cola Co.,

578 F.3d 1252 (11 Cir. 2009) ………………………………….. 39, 42
Smith v. LePage,
834 F.3d 1285 (11th Cir. 2016) …………………………………….. 11
Thomas v. Blue Cross & Blue Shield Ass’n,

594 F.3d 814 (11th Cir. 2010) ……………………………………… 24
United States v. Ala. Power Co.,

730 F.3d 1278 (11th Cir. 2013) ……………………………………. 24
United States v. Ard,

731 F.2d 718 (11th Cir.1984) ………………………………………. 32
United States v. Bell,

678 F.2d 547 (5th Cir. 1982) (en banc),
aff’d on other grounds, 462 U.S. 356 (1983) ………………………. 28
United States v. Brown,

9 F.3d 907 (11th Cir. 1993) ………………………………….…….. 21
United States v. Brown,

xxi
299 F.3d 1252 (11th Cir. 2002) ………………………………….. 30-31
United States v. Diebold, Inc.,

369 U.S. 654 (1962) …………………………………………….…… 31
United States v. Frazier,

387 F.3d 1244 (11th Cir. 2004) (en banc) …………………… 24-25, 28
United States v. Gomez-Castro,

605 F.3d 1245 (11th Cir. 2010) …………………………………. 28-29
United States v. Holmes,

595 F.3d 1255 (11th Cir. 2010) …………………………………… 29
United States v. LeQuire,

943 F.2d 1554 (11th Cir. 1991) ……………………………….…… 32
United States v. Masferrer,

367 F.Supp.2d 1365 (S.D Fla. 2005) ……………………………… 27
United States v. Rivamonte,

666 F.2d 515 (11th Cir. 1982) …………………………………….. 29
United States v. Russo,

302 F.3d 37 (2nd Cir. 2002) ……………………………………….. 38
United States v. Quezada,

754 F.2d 1190 (5th Cir. 1985) …………………………………….. 21
United States v. Santos,

553 U.S. 507 (2008) ………………………………………………. 29
United States v. Sawyer,

799 F.2d 1494 (11th Cir. 1986) …………………………………….. 28
United States v. Sellers,

871 F.2d 1019 (11th Cir. 1989) ………………………………….… 28
United States v. White,

492 F.3d 380 (6th Cir. 2007) ……………………………………..… 26
xxii
United States v. Williams,

447 F.2d 1285 (5th Cir. 1971) ……………………………………… 30
United Techs. Corp. v. Mazer,

556 F.3d 1260 (11th Cir. 2009) …………………………………….. 10
Willard v. Fairfield S. Co.,

472 F.3d 817 (11th Cir. 2006) …………..………………………..… 23
Statutes
28 U.S.C. § 1350 note, Pub. L. 102–256, 106 Stat. 73 (Mar. 12, 1992). 36, 49
42 U.S.C. § 1983 ……………………………………………………….. 38, 45
Rules of Procedure and Evidence
Federal Rule of Appellate Procedure 28(i) ……………………………. 20, 35
FRAP 43(a)(2) …………………………………………………………….. 6
Federal Rule of Civil Procedure 13 ……………………………………….. 16
Fed. R. Civ. P. 14 …………………………………………………………. 16
Fed. R. Civ. P. 15 …………………………………………………………. 16
Fed. R. Civ. P. 16(c)(4) …………………………………………………… 16
Fed. R. Civ. P. 56 ………………………………………………………… 8-9
Fed. R. Civ. P. 59(b) …………………………………………………… 22
Fed. R. Civ. P. 60(b)(2) ……………………………………………….. 21-23
Federal Rule of Evidence 404(b) …………………..…………………….. 27
FRE 701 ………………………………………………………………...... 25
xxiii
FRE 702 ………………………………………………………..………....... 25
FRE 703 …………………………………………………………..… 25, 26, 30
FRE 704 ………………………………………………………………....... 25
FRE 705 …………………………………………………………………... 25
FRE 803(6) ………………………………………………………….. 10-11, 21
FRE 803(8) ……………………………………….………………….…… 21
Other
11th Circuit Civil Pattern Jury Instruction 3.3 (2018) …………………...... 33
K. O’Malley, J. Grenig & W. Lee, Federal Jury Practice and

Instructions, Criminal (5th ed. 2000) ………………………………….. 29-30
U.S. Const. amend. V (Due Process Clause) ……………………… 2-3, 15-17
U.S. Const. amend. VI (Confrontation Clause) ………………………… 30-31
S. Rep. No. 249, 102d Cong., 1st Sess. (1991) ………………….……….... 45
Foreign Affairs Manual, U.S. State Dept. ………………………………… 13
Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters ("Hague Evidence Convention") ……………….. 10, 22
Constitution of Colombia, Article 29 ……………………………………... 18
Procedural Administrative Code of Colombia, Article 44 …….………….. 18
Colombian Decree 1290 of 2008 …………………………………………. 18
xxiv
SUMMARY OF ARGUMENT
Chiquita avoids the legal issues on appeal, which are: (1) whether the
District Court erred by finding the summary judgment record insufficient to
support a jury verdict where causation is shown through circumstantial evidence
alone; (2) whether the court erred by requiring the Appellants to prove the precise
identities of the killers, when all they had to show was that the persons who caused
the injuries were "more likely than not" supported by Chiquita, or that Chiquita's
support was a "substantial factor" in causing the injuries; and (3) whether the court
erred by finding the methodology of FBI special agent Manuel Ortega unreliable
where the testimony was based on personal knowledge and experience with the
same group that committed the murders. See Appellants' Opening Brief at 3.
Chiquita's arguments are mostly about the admissibility of the evidence used
to oppose their motion for summary judgment. This was the approach of the
District Court, but is incorrect. To survive a motion for summary judgment, a
plaintiff need only make a prima facie showing of evidence that is capable of being
reduced to admissible form at trial. See § B (2) infra. The Court has rejected
evidence on this basis only where the witness has no personal knowledge, or where
the witness has given contradictory testimony in the past. Colombian government
documents can be admitted by retired Colombian government employees in most
cases, or by another forensic doctor in the case of autopsy reports. Some
1
documents, including birth and death certificates, are eligible for Apostilles. The
Wolf Appellants, in particular, have made a sufficient showing, since their cases
were never set for trial in the Southern District of Florida, and have moved the
court for remand.
On the basis of what's been argued, the Court can simply adopt the
Appellants' constructions of the rules of law, and remand the case for
reconsideration of the Plaintiffs' evidence using these standards. The Plaintiffs
only needed to make a prima facie showing of evidence upon which a reasonable
jury1 could find that a member of the AUC more likely than not committed the
murder. The standard to be proven at trial is the same as what a police officer
would need to apply for a warrant: probable cause. At the summary judgment
stage, the evidence need only support an inference of probable cause that is
reasonable or plausible. This is no more "speculative" than an order to arrest
someone based on probable cause.
The District Court abused its discretion by not considering the most
probative evidence proffered by Does 378 and 840: death certificates showing
death by gunshot wounds at times and places under AUC control, and recognition
as victims of human rights violations by the Colombian agency Accion Social. The
1
The jury's reasoning need only be rational. "Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
'genuine issue for trial.'" Matsushita, 475 U.S. at 587.
2
District Court's analysis is mostly based on evidence submitted by the Florida
Appellants, and the Wolf Appellants have had no opportunity to be heard. It's a
Due Process violation to not allow them to present their evidence. Undersigned
counsel represents a numerical majority of the plaintiffs in the MDL, whose cases
are being judged based on a "lowest common denominator" standard, set by a
minority of cases relying primarily on paramilitary testimony.
The Cross-Appellants' argument that government involvement must be
shown in each specific murder to show state action is a mis-reading of the cases
they cite. The murder must have some relationship to the conflict. For example,
the murder of a union leader may have occurred because of his perceived
association with the guerrillas, or for any number of other reasons related to the
union or his personal life.
Finally, by not including undersigned counsel's cases in their Cross-Appeal,
the Individual Defendants have waived the legal issues of the use of fictitious
names, personal jurisdiction and service of process, to explain why they're not
being sued. The waiver becomes the law of the case, and binding on the District
Court. Chiquita and the Individual Defendants have also waived forum non
conveniens issues, which they'd raised in the Civil Appeal Statement in the Cross-
Appeal, but have neglected to argue.
3
ARGUMENT - REPLY
A. Ludy Rivas Borja is a proper party.
1. The District Court didn't abuse its discretion by not setting any
time limit to re-file the motion with certified translations.
The Appellees concede that Ms. Rivas notified Chiquita the next day after
her mother, Doe 840's death, and timely filed a Motion to Substitute Party pursuant
to FRCP 25. Appellees' Brief at 13. The District Court ordered her to refile the
Motion with a certified copy of the death certificate, but set no time limit for doing
so. DE 2179. The District Court then ruled on the case on the merits, denying the
Motion to Substitute as moot.
2. Equitable tolling applies, because Ludy Rivas diligently

prosecuted her claim.
Equitable tolling applies when the plaintiff files a technically defective
pleading but otherwise timely and diligently prosecutes his claim. Justice v.
United States, 6 F.3d 1474, 1479 (11th Cir. 1993); Browning v. AT & T Paradyne,
120 F.3d 222, 227 (11th Cir. 1997). It's arguable whether undersigned counsel
filed a "defective pleading," since this is the only time the District Court rejected
any translated document on this basis. Chiquita didn't use a certified translator, for
example, to translate the Expert Report of Dr. Ballesteros, DE 2283-1, which was
translated by Juan Casmilo Zuluaga, an attorney working for Chiquita who has no
credentials as a translator. Id. at 49. However, even if Motion was defective

4
because of the translation, the time to refile it would be governed by the Court's
Order, which had no time limit, as well as by principles of equitable tolling.
Chiquita wasn't prejudiced by it, and raised this issue at the last minute for reasons
known only to Chiquita.
3. The filing of a defective motion isn't jurisdictional, and was

therefore within the District Court's discretion to determine how
long Ludy Rivas had to respond.
In Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357, 1363 (11th Cir. 2013)
(en banc), statutory language required a motion to reopen be filed within 90 days
was held subject to equitable tolling. The Court noted that the Supreme Court has
“urged that a rule should not be referred to as jurisdictional unless it governs a
court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”
713 F.3d at 1362, citing Henderson v. Shinseki, 131 S.Ct. 1197, 1202–03 (2011).
Following a line of Supreme Court cases, Avila-Santoyo also held that statutes of
limitations can ordinarily be read to contain an implied equitable tolling exception.
Id. at 1364.
In contrast to jurisdictional rules, “claim-processing rules,” which “seek to
promote the orderly progress of litigation by requiring that the parties take certain
procedural steps at certain specified times,” generally should not be deemed
jurisdictional. Id., citing Henderson, 131 S.Ct. at 1203 (“[R]ules, even if important
and mandatory, we have said, should not be given the jurisdictional brand.”);
5
Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006) (“[W]e have clarified that time
prescriptions, however emphatic, are not properly typed jurisdictional.” (internal
quotation marks omitted)).
4. Ludy Rivas need not rely on Federal Rule of Appellate Procedure

43(a)(2)2 because she timely filed a Notice of Appeal after the
District Court ruled on her case on the merits.
The District Court did not agree with Chiquita that Ludy Rivas wasn't a
proper party, and ruled on her case on the merits. According to Chiquita, she was
required to file another Motion to Substitute, after her case had been dismissed.
Chiquita has, at most, identified a procedural issue that wasn't identified in
Chiquita's Statement of Issues on Appeal.
B. The Appellees have failed to address the issues on appeal identified by

Appellants, thereby conceding them.
In their Opening Brief, the Appellants outlined the Supreme Court cases
defining the standards for summary judgment, including Celotex Corp. v. Catrett,
477 U.S. 317 (1986), Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Each of
these cases involved proving an element of a civil claim by circumstantial evidence
alone. Celotex was about causation, Matsushita about proving the agreement in a
conspiracy, and Anderson was about proving a mental state, actual malice. The so-
2
Chiquita mistakenly referred to this as FRAP 45(a)(2), but is referring to FRAP
43. FRAP 45 is about the duties of the Clerk of the Court, rather than substitution
of parties.
6
called "Celotex trilogy," all decided in the same year,3 established the standard that
an inference supported by circumstantial evidence alone need only be plausible. If
direct evidence had been available in any of those cases, they wouldn't be the ones
that define the standards for summary judgment. Since the Appellees haven't
provided any alternative analysis,4 the Court should adopt the Appellants'
constructions of the law.
3
As these cases discuss, the standard was applied before it was clearly articulated.
See First National Bank of Arizona v. Cities Service Co., 391 U. S. 253 (1968)
(inference unreasonable where defendant had no objective motive to join in a
boycott).
4
In their Response Brief to the Florida Appellants, Chiquita cites Chapman v.
American Cyanamid Co., 861 F.2d 1515 (11th Cir. 1988), a case somewhat
analogous to Celotex, which they say "turned on circumstantial evidence" that no
other manufacturer's product could have caused the injury. Id. at 22. Celotex was
similar, but the test wasn't whether no other manufactuer's asbestos could have
caused the injury. The plaintiff's evidence consisted of the his deposition testimony
stating his belief in how he'd been exposed to asbestos, a letter from his employer
to an insurance company referring to a Celotex product, and a letter from the
insurance company to the plaintiff restating the contents of the employer's letter.
Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 35 (D.C. Cir. 1987) cert.
denied 108 S.Ct. 1028 (1988). On remand, Celotex filed a new motion for
summary judgment, attaching purchase orders showing the employer had
purchased asbestos from one of their competitors. Id. at 35-36. The D.C. Circuit
held that the insurance company letter should have been admitted a business
record. Id. at 37. It also held that to defeat summary judgment, a nonmovant “is
not required to produce evidence in a form that would be admissible at trial,” so
long as her evidence is “capable of being converted into admissible evidence.”
826 F.2d at 38. The Plaintiffs have shown that the AUC was in control of the
urban areas of Urabá, Colombia when the murders of Does 378 and 840 occurred,
controlling traffic in and out of the region, establishing curfews, and disappearing
or killing thousands of people. The FARC had controlled the Uraba region
between the mid 1980s through the mid-1990s, when the AUC drove them out. No
party has argued the "market share theory" discussed by the Ditrict Court. Order at
7
1. The analysis in the Appellants' Opening Brief isn't "extraneous,"

but law the Court should use to determine whether the Plaintiffs
have made prima facie showings that create a reasonable or
plausible inference that the AUC was responsible.
The issues identified by Chiquita are really different issues that should have
been cross-appealed. According to Chiquita, the issues on appeal are (1) whether
the disctrict court abused its discretion by excluding evidence as hearsay, (2)
whether the district court committed manifest error by excluding the plaintiffs'
expert, and (3) whether granting summary judgment based on the remaining
evidence was proper. Appellees' Brief at 16. Chiquita has also added a new issue,
challenging Ludy Rivas's standing to appeal. Chiquita's arguments will be
addressed using the same numbering scheme used by Chiquita in their Brief.
2. The Jones, Macuba, Ray and Smith cases relied on by Chiquita all
show that the Plaintiffs have met their burden to show evidence
which is capable of being reduced to admissible form at trial.
The Appellants' burden at this stage is only to show evidence that is capable
of being reduced to admissible form at trial. Jones v. UPS Ground Freight, 683
F.3d 1283, 1293 (11th Cir 2002). "We do not mean that the nonmoving party must
produce evidence in a form that would be admissible at trial in order to avoid
summary judgment. Obviously, Rule 56 does not require the nonmoving party to
65-66, Appx. at 56-57. The line cases following Hendrix v. Evenflo Co., 609 F.3d
1183 (11th Cir. 2010) all involve medical injuries alleged to have arisen from the
use of defective products, are based on tests used in the pharmaceutical industry,
and have never been applied in other contexts.
8
depose her own witnesses. Rule 56(e) permits a proper summary judgment motion
to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves, and it is from this list that one would
normally expect the nonmoving party to make the showing to which we have
referred." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).5
Chiquita also cites Jones. See Appellees' Brief at 18. In Jones, an
employee had signed an affidavit stating that other workers "made racial remarks
to him all the time." 683 F.3d at 1293. The Court considered whether the
statement "could be reduced to admissible evidence at trial or reduced to
admissible form," which could normally be accomplished by having the witness
testify at trial. Id. at 1294. "If, however, the declarant has given sworn testimony
during the course of discovery that contradicts the hearsay statement, we may not
consider the hearsay statement at the summary judgment phase." Id. "When asked
at his deposition whether 'anyone else,' other than Terrell, 'made racial comments
to [him],' Mr. Jones answered, 'No.' Accordingly, we cannot assume that Mr. Jones
will change his testimony at trial and testify in conformity with the hearsay
statement." Id. The possibility that unknown witnesses will emerge to provide
testimony on this point is insufficient to establish that the hearsay statement could
5
See FRCP 56(C)(2). "A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence."
(emphasis added)
9
be reduced to admissible evidence at trial." Id., quoting McMillian v. Johnson, 88
F.3d 1573, 1584 (11th Cir.1996); Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135
(11th Cir.1996)
In the instant case, the Appellants have identified Carlos Eusse,6 a retired
employee of the Colombian aid agency Accion Social, who is sufficiently
knowledgeable about the workings of that agency to introduce and explain the
correspondence received by Doe 378 and Doe 840, recognizing them as victims of
human rights violations and paying them thousands of dollars.7 As argued in
Appellants Opening Brief, these documents may be authenticated by "another
6
The Appellees incorrectly claim that Mr. Eusse was never disclosed anywhere in
the record. Appellees' Brief at 24. Eusse is mentioned on p. 23 n. 16 of the Order
on Appeal. See Appx. at 29. In addition, undersigned counsel moved the District
Court to take his deposition pursuant to a Hague Evidence Convention request.
See DE 2095 at 5. Nevertheless, "[o]bviously, Rule 56 does not require the
nonmoving party to depose her own witnesses." Celotex, 477 U.S. at 324.
7
Chiquita cites United Techs. Corp. v. Mazer, 556 F.3d 1260, 1278 (11th Cir.
2009) for the rule that a public record must contain factual findings based on the
observations of the preparer of the report, as opposed to a collection of witness
statements. Appellee's Brief at 34. The Resolutionary Response letter of Accion
Social did make factual findings - that Doe 378 is a victim of a violation of her
human rights - but did not collect any witness statements. Appx. at 143-145. It
considered the circumstances in the context of the "expansion of the paramilitary
project," citing journalistic and academic sources for the temporal and geographic
scope of the paramilitary project. Id. Doe 378 submitted another letter and form
from Accion Social which do not contain witness statements. Appx. at 147-148.
Doe 840 submitted a letter from Accion Social dated February 26, 2008 stating that
she and her family have been included in the Sole Registry of Displaced Persons
since May 10, 2000, Appx. at 152, and another letter from Accion Social reflecting
an award of 11,180,250 Colombian Pesos (COP), dated December 17, 2009, Appx.
at 153. Doe 840 doesn't have a Resolutionary Response letter with the details of
her case, but the payment of benefits shows that she was recognized as a victim.
10
qualified witness." F.R.E. 803(6). Doe 3788 and Doe 840 can each testify that
they were paid thousands of dollars by Accion Social. Another forensic pathologist
could introduce the autopsy report. "Prosecutor Letters" and correspondence from
the Colombian Commission of Justice and Peace are admissible as public records.
The Court may consider whether, for reasons of comity, it should recognize the
judgments of Colombian Commission of Justice and Peace, which is a competent
court of law, and the one that put hundreds of AUC members in prison.
Chiquita cites four other cases, all which support this view. In Macuba v.
DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999), the Court explained that the
language "reduced to admissible evidence at trial" or "reduced to admissible form"
originates in the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S.
317 (1986), and is an integral part of the summary judgment standard itself. 193
F.3d at 1323. The Court reads Celotex as "allowing otherwise admissible evidence
to be submitted in inadmissible form at the summary judgment stage, though at
trial it must be submitted in admissible form." Id. In Smith v. LePage, 834 F.3d
1285, 1296 (11th Cir. 2016), the Court considered and rejected a police officer's
argument that a statement should have been excluded because it contradicted a
8
The Appellees mis-identified Doe 378 on p. 3 their Brief. Her name appears on
the unredacted documents in the Appendix at 138-148. The Mandate of the Court
of Appeals in Case No. 19-11494 hasn't issued, and the Stay of the Order
Precluding the Plaintiffs from Proceeding Under Pseudonyms is still in effect.
11
witness' deposition testimony. See id. at 1294. The Court found that the witness
wasn't asked, and didn't give contradictory testimony. Id.
In United States v. Hangar One, Inc., 563 F.2d 1155, 1157 (5th Cir. 1978)
the Court excluded the evidence because the witness didn't have relevant personal
knowledge, noting that "[i]t is clear that the requirement of an affirmative showing
applies to the competency of the affiant and not to the admissibility of the
evidence…," 563 F.2d at 1157. Finally, Chiquita cites McCaskill v. Ray, 279 F.
App'x 913 (11th Cir. 2009) to argue that unsworn statements shouldn't be
considered at the summary judgment stage. Ray was also trying to introduce
documents as business records without having either the custodian or "another
qualified witness" who could introduce them. The Ray case also repeats the black
letter rule that otherwise admissible evidence may be "submitted in inadmissible
form at the summary judgment stage, though at trial it must be submitted in
admissible form." Id. at 914. The issue at this stage isn't whether the Appellants
have presented their evidence in admissible form, or even identified individuals
who can introduce the documents. It is the nature of the evidence itself.
Finally, the District Court didn't set a trial date for either Doe 378 or Doe
840, who then invoked their right to remand under Lexecon v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26 (1998). It wasn't reasonable to expect them
to have evidence in admissible form when they weren't scheduled for trial.
12
a. The Plaintiffs had no burden to obtain Apostilles.
Chiquita argues that the District Court correctly found that Plaintiffs hadn't
met their burden under FRE 902 to show that the documents were authenticated,
either with a final certification, or by satisfying the good cause standard in the
savings clause of FRE902(3)(A). Appellees' Brief at 30-33. "Plaintiffs do not
show that they tried to secure the requisite apostilles in advance of summary
judgment …[or] that they were unable to supply the proper certification timely
because of a collapse in cooperation by Colombian or United States consulate
authorities, or some other factor beyond their control." Id. at 32, citing Appx. at
47. Although the Plaintiffs' burden is only to make a prima facie showing of
evidence capable of being reduced to admissible form at trial, the Plaintiffs did
make such a showing. Counsel submitted a declaration stating that the only
method of which he was aware for obtaining Apostilles was through the online
submission portal of the Colombian Ministry of Exterior Relations. Appx. at 241-
243. Counsel submitted various documents for Apostilles, but only requests for
death certificates were granted, while all other types were denied. Id. The Florida
Appellants argue that a U.S. Consular Officer may do this, but this contradicts the
Foreign Affairs Manual. See Appellants Opening Brief at 47. For Doe 840,
counsel submitted a death certificate, an autopsy report showing nine gunshot
wounds, and a letter and computer form from the Assistant to Prosecutor III in
13
Medellin, stating that paramilitary Raul Hasbun confessed to the murder on June
15, 2017. Appx. at 242. Of these, only the death certificate was granted an
Apostille. Id.
There was no "mystifying" delay in obtaining Apostilles on time. The
Colombian government doesn't issue Apostilles for most of the types of documents
the Wolf Appellants want to introduce into evidence. If a document is rejected by
the Colombian Ministry of Foreign Relations, this should be good cause to trigger
the savings clause for "final certification." Either the documents are of a type that
can receive Apostilles, or they're not. The Court should find that these categories
of documents aren't eligible for Apostilles, rather than attributing it to a delay.
Chiquita has been unable to disprove this by obtaining an Apostille on any of the
documents produced to them in discovery. Counsel's declaration explaining the
results of his attempts to obtain Apostilles is the only evidence before the Court,
aside from the Florida Appellants' claim that U.S. Consular Officers can do this.9
3. The District Court abused its discretion by not considering death

certificates and administrative agency findings.
The District Court abused its discretion by not considering the evidence of
the Wolf Appellants, and only considering the evidence submitted by the Florida
9
It doesn't make sense that U.S. Consular Officers would be able to verify the
identities of the persons signing the documents, if the Colombian government
cannot. The claims made by the Florida Appellants may have led the District
Court find there was no good cause, since the Plaintiffs weren't following the
procedures they said would work. The Wolf Appellants never made this argument.
14
Appellants. The Wolf Appellants relied primarily on Colombian government
documents. The Florida Appellants relied primarily on paramilitary witness
testimony. When the evidence Does 378 and 840 submitted was different from,
and more probative than the evidence submitted by the Florida Appellants, it
wasn't considered.
a. Due Process requires that Doe 378 and 840's evidence, which is
different from that of the Florida Appellants, be considered.
Due Process requires that Does 378 and 840 be heard by the District Court,
rather than being judged according to different kinds of evidence submitted by
other plaintiffs. The Supreme Court has identified the “two central concerns of
procedural due process” to be “the prevention of unjustified or mistaken
deprivations and the promotion of participation and dialogue by affected
individuals in the decision-making process.” Marshall v. Jerrico, Inc., 446 U.S.
238, 242 (1980). See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024–25 (9th Cir.
1998) (Due process for individual class members requires that the decision whether
or not to opt out rests with the individual and not be made by a class representative
or class counsel.); Cimino v. Raymark Indus., 151 F.3d 297, 319–22 (5th Cir.
1998) (individual jury determinations of liability, injury, and damages are required
by the Seventh Amendment in asbestos mass tort context).
The transferee court's role is limited to common issues and evidence, and
doesn't extend to case-specific evidence. Transferee courts in MDL proceedings

15
have the authority to enter pretrial orders that “govern the conduct of the trial”
back in a transferor court. In re Factor VIII or IX Concentrate Blood Prods. Litig.,
169 F.R.D. 632, 636 (N.D. Ill. 1996)). They may limit the number of common-
issue trial witnesses, id. at 637, and enter orders that will be binding as to the
conduct of the trial pursuant to Rules (13), (14), (15), and 16(c)(4) of the Federal
Rules of Civil Procedure." Id. at 636. This includes expert witnesses and other
common-issue evidence, but doesn't include case-specific discovery or evidence.
"We were under the impression that both sides had the same view of what we are
doing: conducting the discovery that is common to all of the transferred cases and
which is necessary to prepare them for trial. This obviously includes taking
whatever depositions are necessary to acquaint the parties with the testimony of the
common-issue witnesses who are likely to appear at each trial." Id. at 634-635.
"The multidistrict proceeding is not the appropriate mechanism for the conduct of
case-specific discovery. By definition, that discovery is not of general interest to
the parties in all of the individual cases which comprise the MDL." Id. at 638.
"Adopting defendants' view … would prolong the MDL indefinitely, force the
parties to await the completion of discovery that would be of no relevance to their
particular cases and frustrate the possibility of settling individual cases between
completion of the common discovery and completion of case-specific discovery.
Id. at 638-639.
16
It's particularly unreasonable if the Appellants have to rely on paramilitary
testimony known to have been obtained through bribes, or promises of bribes,
apparently in the millions of dollars. This evidence is of dubious value because of
the potential to open the door to a disturbing distraction from what should
otherwise be a relatively straightfoward case: a complex witness bribery
conspiracy involving at least a dozen AUC members in numerous cases. The Wolf
Appellants have stayed out of that, and rely on Colombian government documents
and retired government officials as experts, including the FBI agent assigned to the
underlying criminal case, and an employee of Accion Social in Apartadó, Urabá.
4. The business records exception generally applies to Colombian

government records, which were made in the course of their
ordinary activities. At this stage, the Appellants need only show
that the documents are capable of being introduced at trial by a
qualified witness.
The types of documents available to the plaintiffs include death certificates,
autopsy reports, correspondence with prosecutors, correspondence with and
payments from Accion Social, and with a war crimes tribunal, the Comission of
Justice and Peace, a competent court organized under the national prosecutor's
office, or Fiscalia General de la Nacion. See Opening Brief at 38-45. At this
stage, the Plaintiffs' burden is only to show that the documents are capable of being
introduced at trial by a qualified witness, but need not be presented in admissible
form. Id. at 45, see supra at § B(2). This is particularly true where the the cases of
17
Does 378 and 840 were never set for trial, and asserted their right to remand under
Lexecon, 523 U.S. 26 (1998).
5. The public records exception applies to the factual findings of

Accion Social, which resulted from legally authorized
investigations.
Chiquita argues that Accion Social merely collected witness statements, but
does not set forth "factual findings from a legally authorized investigation."
Appellees' Opening Brief at 26. Chiquita then claims that Accion Social was
required to name the killer, id., although Accion Social is clearly applying the same
standard urged by the Appellants: more likely than not, based on the time, place,
and circumstances of the incident, which are consistent with "the expansion of the
paramilitary project." Id.
Doe 378's letter, entitled “Resolutionary Response,” states that it is a legal
notification pursuant to Article 29 of the National Constitution and Article 44 of
the Procedural Administrative Code. Appx. at 143.10 It says that Doe 378 was
summoned to appear before the Committee for Administrative Reparations, for a
"Technical Evaluation on the Accreditation of the Quality of Victimhood, Case
Settlement No. 57739." Under "General Considerations," the letter states that the
program was created by Decree 1290 of 2008, and describes various other
10
The letter was translated by Jaime Alberto Ortiz Mora ("Bert Ortiz"), who is
certified by the Colombian Ministry of Exterior Relations to translate from Spanish
into English. Id.
18
Colombian laws that apply to the program. Appx. at 144. The third page of the
letter explains the evidence evaluated in determining whether to award benefits to
Doe 378, including a book by academic Alejandro Reyes, the website
verdadabierta.com, "journalistic documents" and "other sources studied" regarding
"the expansion of the 'paramilitary project.'" Id. Finally, the letter "recogniz[ed]
and grant[ed] the status of victim of violation of human rights under the criteria of
Decree 1290 of 2008" to the decedent in Doe 378's case. Appx. at 145. (emphasis
added) According to Chiquita, the letter does "not even purport to explain what the
'finding' is." Appellees' Opening Brief at 27, and that "Plaintiffs do not even
attempt to [explain the finding]. Nor could they." Id. at 26. The finding was that
Doe 378 was killed by the paramilitaries.
Chiquita's argument that the Accion Social letter doesn't rise to the level of
factual findings from an authorized investigation is based on Roxbury-Smellie v.
Florida Dept Corrections, 324 F.App'x. 783, 785 (11th Cir. 2009). In Roxbury-
Smellie, the "statements made by Roxbury-Smellie's co-workers […] did not fall
into the public records exception because they were not a factual finding made by
the EEOC investigator, but rather a record of the interviews conducted by the
EEOC investigator." 324 F.App'x. at 785. Here, Doe 378 seeks to introduce a
"Resolutionary Response" letter that doesn't quote any witness statements, but only
19
makes the determination that the decedent in the case of Doe 378 was the victim of
a violation of human rights. Appx. at 145.
6. The public records exception applies to "Prosecutor Letters" and

public documents of the Colombian Commission of Justice and
Peace.
Doe 378 and 840 adopt by reference § III B of the Florida Appellants'
Opening Brief, pp. 42-57, which pertains to Justice and Peace Documents,
sentencias, and Prosecutor Letters. FRAP 28(i). The types of documents they rely
on are generally available to the Wolf Appellants as well. For Doe 378, these
included a letter from Medicina Legal, the national forensic agency, Appx. at 139,
a Prosecutor Letter dated Feb. 18, 2010, Appx. at 140, a Prosecutor Letter dated
March 26, 2010, Appx. at 142, and a letter from the Unidad para la Atencion y
Reparacion Integral a las Victimas, another Colombian government agency, Appx.
at 146. Doe 840, submitted a Letter from a Judge in the Commission of Justice
and Peace, dated June 21, 2007, Appx. at 155-156. Doe 840 also received several
documents from Colombian government agencies after the deadline to oppose
summary judgment, but before the court ruled, which were filed as Exhibits to a
Status Report on August 27, 2019. These included the an autopsy of the victim
showing nine bullet wounds, performed by Dr. Jairo Losada Vidarte of Medicina
Legal on May 2, 2001, Appx. at 204-210, and a Prosecutor Letter and attachment
from Estefania Restrepo Lara, Assistant to Fiscal III (Prosecutor III) dated July 22,
20
2029, reflecting that AUC commander Raul Hasbun confessed to this murder on
June 15, 2017. Appx. at 211-212.
These "Prosecutor Letters" are a mix of routine and adversarial types of
evidence. In United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993), the Court
drew a distinction between law enforcement records prepared in a routine, non-
adversarial setting, and those resulting from a more subjective investigation and
evaluation of a crime. The former are public records, and the latter are business
records. "Due to the lack of any motivation on the part of the recording official to
do other than mechanically register an unambiguous factual matter ..., such records
are, like other public documents, inherently reliable." Id., quoting United States v.
Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985). "We are persuaded by this
reasoning. The police custodian in the instant case had no incentive to do anything
other than mechanically record the relevant information on the property receipt.
We believe that this is the type of reliable public record envisioned by the drafters
of Rule 803(8)." Id. at 911-912. Other documents reflecting the confession of an
AUC member could be considered adversarial. Nevertheless, they are all capable
of being reduced to admissible form under either Rule 803(6) or 803(8).
7. Although Doe 840 obtained several documents too late to use as

summary judgment exhibits, they may be considered under Rule
60(b)(2), as newly discovered evidence.
21
Should the Court remand the case, the documents received a few weeks late
should also be considered. The tardiness was depite Doe 840's diligent efforts to
obtain them. The Plaintiffs have persisted for 13 years in this case and worked
very hard to get to this point. Doe 840 had to obtain a passport and visa to the
United States, and travel to Florida for a deposition. When she died, her daughter
Ludy Rivas diligently attempted to substitute herself as a plaintiff and survived
Chiquita's attempts to have her dismissed as an improper party. The good cause is
that the Plaintiffs have no control over what is released to them by Colombian
government agencies, which do not provide them with reasons why information is
or isn't available. The District Court denied our requests under the Hague
Evidence Convention to obtain the records through the Colombian courts, and no
other manner is available other than going to the agency and inquiring in person.
The standard is comparable to arguing for reconsideration under Rule
60(b)(2), based on "newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under Rule 59(b)."
Fed. R. Civ. P. 60(b)(2). However, the Plaintiffs discovered the evidence after the
briefing deadline, but before the judgment. The briefing schedule involved many
parties and their attorneys, and it would not have been reasonable to amend it. To
prevail under Rule 60(b)(2), the moving party must show (1) that the evidence was
newly discovered since the trial, (2) due diligence on the part of the movant to
22
discover the new evidence, (3) that the evidence is not merely cumulative or
impeaching, (4) that the evidence is material, and (5) that the evidence is such that
a new trial would probably produce a new result. Willard v. Fairfield S. Co., 472
F.3d 817, 824 (11th Cir. 2006).
If this standard were applied, the only real issue would be whether the
evidence were such that a new trial would probably produce a new result. Id. This
could occur if the Court were to find, for example, that an autopsy report showing
nine bullet wounds received at a time and place corresponding to the AUC's
control and activities, or the confession of the killer in court, would alone be
sufficient to create a reasonable inference. The Court should use this opportunity
to advance the litigation by ruling on these categories of evidence.
There would be no prejudice to Chiquita if there are other reasons to remand
the case. Autopsy reports and entries in the National Victims Registry reflecting
the confession of the commander responsible are useful categories to guide other
cases.
Finally, Chiquita complains that the documents weren't translated by a
certified translator. The standard is that the evidence must be capable of being
reduced to admissible form at trial. The Wolf Appellants have shown that they
have a translator certified by the Colombian Ministry of Exterior Relations, Bert
Ortiz, see Appx. at 149, and the documents need not be translated or in admissible
23
form at this stage. Chiquita hasn't used certified translators, and has no basis to
complaint.
C. The District Court abused its discretion by excluding FBI Agent Manuel
Ortega's expert opinion. The standard of review isn't "manifest error."
The Appellees argue that this Court should review the District Court's
finding that FBI Agent Manuel Ortega's methods were unreliable for "manifest
error." Appellees' Brief at 10, 41. However, the District Court's determination that
Ortega's methods were unreliable is reviewable for abuse of discretion, not
manifest error. “A district court abuses its discretion if it applies an incorrect legal
standard, applies the law in an unreasonable or incorrect manner, follows improper
procedures in making a determination, or makes findings of fact that are clearly
erroneous,” Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 814, 821 (11th
Cir. 2010) (internal quotation marks omitted). The Court not only reviews the
District Court's factual findings, but also the legal standards, and how they were
applied. Id. The Court may also determine de novo whether an expert's
methodology is sufficiently reliable. See United States v. Ala. Power Co., 730
F.3d 1278, 1280 (11th Cir. 2013) ("We reverse, however, the district court's
wholesale exclusion of the expert testimony …, vacate the judgment in favor of
Alabama Power, and remand for further proceedings. The Koppe–Sahu model, as
utilized here, is sufficiently reliable to establish a relationship between potential
24
generation of electricity and expected pollutant emissions at Alabama Power's
modified plants.").
The Appellees rely on United States v. Frazier, 387 F.3d 1244 (11th Cir.
2004) (en banc), where the Court applied the abuse of discretion standard, and
found no abuse in excluding the defendant’s expert opinion on “what he expected”
to find, admitting only his testimony on the standard procedures employed, the
results of his tests, and the most common types of evidence found at rape scenes.
Id. at 1254. The Appellants also cited this case, see Opening Brief at 29, which is
about the degree of certainty the expert is allowed to express to the jury. The
Appellants cited cases showing that law enforcement experts, including forensic
experts, and experts on gangs and drug trafficking organizations, can generally
opine on whether evidence is consistent with their training and experience, and
may even testify that they believe the defendant is guilty (the "ultimate" issue),11
but cannot estimate their probability of being right. See Opening Brief at 26-28.
The District Court abused its discretion by not distinguishing Ortega from
two university professors offered by the Florida Appellants, who are are
"scientific" experts under Daubert and Kumho. Ortega is not. He was the FBI
11
Rule 703 permits experts to base their opinions on data or facts not in evidence;
Rule 704 permits expert testimony on the ultimate issue of the case; and Rule 705
authorizes experts to give testimony "in terms of opinion or inference" even
"without prior disclosure of the underlying facts or data, unless the court requires
otherwise."
25
agent primarily responsible for the underlying criminal case, and is familiar with
the AUC's activities generally because of his investigations of them in other
cases.12 Ortega also relied on published statistics of the Colombian government to
show the geographic and temporal scope of the AUC's operations in the region,
and on his interviews of the bellwether plaintiffs and review of their documentary
evidence.
Chiquita objects that Ortega's report is merely signed, but not under oath.
Appellees' Brief at 38. Chiquita deposed Agent Ortega on January 9, 2019, which
was given under oath, yet obtained almost nothing to discredit him. Chiquita filed
12
Chiquita's argument that the Plaintiffs waived their argument that Ortega may
testify as a lay witness pursuant to FRE 701 has no merit. See Appellees' Brief at
50. The Wolf Appellants didn't cite either FRE 701 or FRE 702 in their
Opposition to Chiquita's Motion for Summary Judgment, which had limited space
to argue many legal issues. As argued in Appellants' Opening Brief at 24, law
enforcement officers routinely testify as both fact and expert witnesses. See
United States v. White, 492 F.3d 380, 403 (6th Cir. 2007) (commenting that the
Rules “distinguish between lay and expert testimony, not witnesses”). Ortega can
testify to some matters from personal knowledge. Before the Chiquita case, he
investigated Colombian drug trafficking organizations, including the AUC, which
is both a terrorist group and drug trafficking organization. He's familiar with the
AUC's methods, and motives for killing certain types of individuals, independent
of this case. As the FBI case agent assigned to the underlying criminal case, he's
familiar with the "common issue evidence" of Chiquita's overall liability. In
addition, Ortega traveled to Colombia and interviewed Doe 378, Doe 840, and
other bellwether plaintiffs on April 30, 2018, and reviewed the documentary
evidence they had collected. Appx. at 123. When reviewing particular cases,
Ortega was relying on facts he'd been made aware of, pursuant to FRE 703. "If
experts in the particular field would reasonably rely on those kinds of facts or data
in forming an opinion on the subject, they need not be admissible for the opinion to
be admitted." Id.
26
the most helpful part of his deposition, from their point of view, as an Exhibit to
their Motion in Limine to exclude his testimony. DE 2521-12. In addition,
Chiquita is raising this issue for the first time on appeal.
1. Ortega's method was to apply the probable cause standard.
Agent Ortega did explain how he concluded that the AUC probably
committed the murders. He applied the probable cause standard to the facts and
circumstances of each murder. See Appellants Opening Brief at 35-37. He
referred to circumstances common to many AUC murders as their modus
operandi.13 This is how the term is ordinarly understood by law enforcement
officers, and used to solve crimes. Ortega knew, from years of experience
investigating the AUC in Colombia, that the AUC assassinated thousands of
people in this region, controlled the urban centers, and imposed strict measures that
made it "highly unlikely" that their adversaries, the FARC, could have operated
there. The use of long guns, motorcycles and masks, theft of identity cards and
disposition of bodies were explained based on his personal knowledge. Ortega
13
This is distinct from the hearsay exception in Rule 404 (b) for evidence of other
crimes or wrongs, which allows an exception for prior acts bearing a strong
resemblance to the charged offense that is sufficiently idiosyncratic to permit the
inference of a pattern. Id. This is also called modus operandi, and is arguable
separately as a hearsay exception, see Opening Brief of Florida Appellants at 29-
36, arguments in which we join. However, Ortega isn't required to overcome this
hearsay objection in his testimony or in his report. See § C (3) infra.
27
personally interviewed Doe 378 and Doe 840 in Colombia. Hearsay accounts of
what they have heard may be relied on by an expert in forming his opinion.
Chiquita cites United States v. Masferrer, 367 F.Supp.2d 1365, 1373 (S.D.
Fla. 2005) for the proposition that “the Daubert factors are applicable in cases
where an expert eschews reliance on any rigorous methodology and instead
purports to base his opinion merely on ‘experience’ or ‘training’.” Opp. at 42-43.
This is not what Ortega did. He applied the probable cause standard to determine
who probably committed the murders. Chiquita hasn't identified any other
standard that could be applied. Under Kumho Tire or United States v. Frazier, 387
F.3d 1244, 1261 (11th Cir. 2004), the method need not be scientific, but only one
normally used by experts in the field.
2. Ortega properly relied on circumstantial evidence, as would any

investigator.
Circumstantial evidence alone may satisfy the criminal standard, which
treats direct and circumstantial evidence the same. In criminal appeals, the Court
determines whether a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Sellers, 871 F.2d 1019 (11th Cir.
1989) Even there, “‘[i]t is not necessary for the evidence to exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, provided a reasonable trier of fact could find that
the evidence establishes guilt beyond a reasonable doubt.’” Id. at 1021 (quoting
28
United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff’d on other
grounds, 462 U.S. 356 (1983)).
Criminal investigations require investigators to piece together evidence,
often circumstantial and from multiple sources, to prove a defendant's guilt.
United States v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1986). In United States v.
Gomez-Castro, 605 F.3d 1245 (11th Cir. 2010), the issue was whether the
government could rely solely on circumstantial evidence about the defendant's
misuse of the victim's identity to satisfy its burden of proving beyond a reasonable
doubt that the defendant knew the identity belonged to a real person. The Court
affirmed the conviction, holding that circumstantial evidence alone could satisfy
the burden. Id. at 1249.14
Although a defendant's mens rea is normally inferred circumstantially,
circumstantial evidence may be used to prove other elements as well. "Evidence of
venue need not be direct; when circumstantial evidence as a whole reasonably
supports the inference that the crime was committed in the trial district, the
government's burden is satisfied." United States v. Rivamonte, 666 F.2d 515, 517
(11th Cir. 1982) (citations omitted). Since it is legally sufficient to satisfy the
14
This decision cited United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010),
where the Court held that a reasonable jury could have found that the government
had proven, through circumstantial evidence alone, that Holmes knew a social
security card and birth certificate belonged to a real person when she used them to
apply for a driver's license. Id. at 1258.
29
higher criminal standard, a fortiori, it should be legally sufficient to prove
causation by a preponderance of the evidence in negligence.
In criminal cases, the Supreme Court has said that circumstantial evidence is
“intrinsically no different from testimonial evidence,” Holland v. United States,
348 U.S. 121, 140 (1954), and that “[c]ircumstantial evidence is not only
sufficient, but may also be more certain, satisfying and persuasive than direct
evidence.” Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 508 (1957) See United
States v. Santos, 553 U.S. 507, 521 (2008) (“knowledge must almost always be
proved by circumstantial evidence.”) (Scalia, J., plurality opinion); 1A K.
O’Malley, J. Grenig & W. Lee, Federal Jury Practice and Instructions, Criminal §
12.04 (5th ed. 2000) (“the law makes no distinction between the weight or value to
be given to either direct or circumstantial evidence”).
3. Ortega properly relied on hearsay in forming his opinions.
Even before the enactment of Federal Rule of Evidence 703, "[e]xpert
witness testimony [was] a widely-recognized exception to the rule against hearsay
testimony. It has long been the rule of evidence in the federal courts that an expert
witness can express an opinion as to value even though his opinion is based in part
or solely upon hearsay sources." United States v. Brown, 299 F.3d 1252, 1258
(11th Cir. 2002). "Such an exception to the general rule is based upon the
reasoning 'that the expert, because of his professional knowledge and ability, is
30
competent to judge for himself the reliability of the records and statements on
which he bases his expert opinion.' Given that the witness here has been a special
agent with the DEA since 1989, the district court would have been justified in
concluding that he possessed such professional knowledge and ability." Id.,
quoting United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971). In Brown,
the defendant's right under the Confrontation Clause of the U.S. Constitution came
into play, but as long as the hearsay evidence was of a type regularly relied upon
by experts in the field, it fell within a “firmly rooted” exception to the general rule
of exclusion of hearsay statements, and therefore was not violative of a criminal
defendant's confrontation rights. Id.
D. A reasonable jury could find that the AUC committed the murders.
The Supreme Court has held that a choice of inferences is for the jury, and
therefore "[on] summary judgment the inferences to be drawn from the underlying
facts ... must be viewed in the light most favorable to the party opposing the
motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). In First Nat'l
Bank v. Cities Service Co., 391 U.S. 253 (1968), the Supreme Court suggested that
a judge may not grant summary judgment unless he concludes that no reasonable
jury could find that the inference was more plausible. Id. at 280. This includes the
weight to be given to an expert's opinion concerning the plausibility of an
31
inference, which is also a jury question. Maiz v. Virani, 253 F.3d 641, 666 (11th
Cir. 2001).
Since the evidence need only be capable of being presented in admissible
form at trial, the real question is whether the Plaintiffs have made prima facie
showings through circumstantial evidence, which is all that most of them have, and
what the Celotex line of cases was about.
1. The 11th and D.C. Circuits assign the same weight to direct and
circumstantial evidence.
Chiquita argues that the circumstantial evidence proffered by the Plaintiffs
requires speculation and conjecture, such that an inference of AUC responsibility
would be nothing more than a guess or mere possibility. Appellees' Opening Brief
at 19. Chiquita relies on Pussinen v. Target Corp., 731 F.App'x 936, 938 (11th Cir.
2018) for this "more than a guess or mere possibility" standard, id., and that
dismissal is proper "where plaintiff proffered only circumstantial evidence in
opposition to summary judgment." Appellees' Brief at 19.
The Appellants have shown more than a mere possibility. Their burden at
trial will be to prove causation by a "mere probability;" that is, more likely than
not. At this stage, they're not required to show a probability in order to go to trial.
They need only show that a reasonable jury could find that the AUC probably
committed the murder.
32
The Pussinen case didn't establish a rule that circumstantial evidence alone
is insufficient to oppose a motion for summary judgment. The 11th Circuit has
cases on all fours with those in the Celotex trilogy, each of which depended on
circumstantial evidence alone. As in Celotex, causation may be proven through
circumstantial evidence alone, even if the claims require a showing of "but-for"
causation. Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799
(11th Cir. 2000) (employment discrimination). As in Matsushita, in civil cases,
"[t]he existence of the conspiracy agreement does not have to be proven by direct
evidence. Instead, it can be inferred from the conduct of the alleged participants or
from circumstantial evidence of the scheme.'" United States v. LeQuire, 943 F.2d
1554, 1562 (11th Cir. 1991) (quoting United States v. Ard, 731 F.2d 718, 724
(11th Cir.1984)); see Republic of Panama v. BCCI Holdings (Luxembourg) S.A.,
119 F.3d 935, 950 (11th Cir. 1997). As in Anderson,15 the mental state required
for aiding and abetting liability may be proven by circumstantial evidence alone.
“The defendant’s ‘[k]nowledge may be shown by circumstantial evidence, or by
reckless conduct.’” Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386,
1410 (11th Cir. 1994), modified on reh’g, 30 F.3d 1347 (11th Cir. 1994). In
15
Anderson was a libel case requiring a showing of actual malice by clear and
convincing evidence. Here, the standard is negligence by a preponderance of the
evidence.
33
addition, jurors should be instructed to place the same weight on direct and
circumstantial evidence:
"Circumstantial evidence" is proof of a chain of facts and circumstances that

tend to prove or disprove a fact. There’s no legal difference in the weight
you may give to either direct or circumstantial evidence.
11th Circuit Civil Pattern Jury Instruction 3.3 (2018).
The D.C. Circuit and D.C. Court of Appeals would come to the same
conclusion. The D.C. Circuit has explained that "'[i]nferences' which are
commonly described as 'circumstantial evidence' are as capable of providing
evidentiary support as 'facts' which are commonly described as 'direct evidence.'"
Lucas v. Duncan, 574 F.3d 772, 777 (D.C. Cir. 2009) The D.C. Court of Appeals
has held that "[g]enerally speaking, direct and positive testimony to specific acts of
negligence is not required to establish it. Circumstantial evidence is sufficient,
either alone or in combination with direct evidence. Circumstantial evidence may
contradict and overcome direct and positive testimony. The limitation on its use is
that the inferences drawn must be reasonable. But there is no requirement that the
circumstances, to justify the inferences sought, negative every other positive or
possible conclusion. The law is not so exacting that it requires proof of negligence
or causation by testimony so clear that it excludes every other speculative theory."
Lohse v. Coffey, 32 A.2d 258, 261 (D.C. 1943).
34
ARGUMENT - RESPONSE TO CROSS-APPEAL
A. The cross-appeal should be dismissed because it isn't part of the

Appellee's "consolidated principal and response brief and raising any
issues on cross-appeal related to the Wolf Appellants' appeal" as
ordered by this Court.
On August 21,2020, the Court denied the Wolf Appellants' Motion to Strike
the Appellees' Brief, which should have raised any issues on cross-appeal related to
the Wolf Appellants' cases. The Appellees' have waived their right to appeal, and
had already waived any issues by not filing a file a Motion to Dismiss in the
District Court. However, although the arguments have been waived, the Plaintiffs
still need to respond, to avoid collateral estoppel effects on other cases.16
B. The Appellees have waived any issues related to forum non conveniens
by not arguing them in the cross-appeal.
The two issues identified by the Cross-Appellants in their Civil Appeal
Statement of November 21, 2019 are: (1) whether the District Court erred by not
requiring Plaintiff-Appellants to plead the state-action requirement in the Torture
Victim Protection Act separately for each murder; and (2) whether the District
Court erred by not granting the Appellees' motion to dismiss for forum non
conveniens. The Appellees - including Chiquita and the Individual Defendants -
raised the forum non conveniens issue for review several other times in this case.
16
Doe 378 and 840 may respond to the issues on Cross-Appeal in the Florida
Appellants' cases. In a case involving more than one appellant or appellee, any
party may adopt by reference a part of another’s brief. FRAP 28(i).
35
They failed to meet their burden to show that the District Court abused its
discretion or applied the wrong legal standard. Leon v. Millon Air, Inc., 251 F.3d
1305, 1310 (11th Cir. 2001) (defendant bears burden of pursuasion on all
elements) "[W]here the court has considered all relevant public and private
interest factors, and where its balancing of these factors is reasonable, its decision
deserves substantial deference." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257
(1981). Therefore, this Court should affirm the District Court's Order on forum
non conveniens of November 29, 2016. DE 1194.
C. The Plaintiffs have made a prima facie showing that the AUC and the
17th Brigade of the Colombian Army in Uraba were in a "symbiotic
relationship," which doesn't require a particular showing of state
involvement in each murder that resulted from the relationship.
In their Opening Brief, the Appellants showed that their burden at this stage
is to make a prima facie showing of the elements of their claims. The Opening
Brief in the Appeal was about the negligence claims. The Cross-Appeal is about
claims brought under the Torture Victim Protection Act. 28 U.S.C. § 1350 note.
This statute provides that "[a]n individual who, under actual or apparent authority,
or color of law, of any foreign nation … subjects an individual to extrajudicial
killing shall, in a civil action, be liable for damages to the individual's legal
representative, or to any person who may be a claimant in an action for wrongful
death." Id.; see Torture Victim Protection Act ("TVPA"), Pub. L. 102–256, 106
Stat. 73 (Mar. 12, 1992).

36
1. The language in the TVPA requiring the underlying killing to be

"deliberated" doesn't mean deliberated by the Individual
Defendants, who may be held liable for aiding and abetting.
The TVPA and its legislative history in no way disavow reliance on
traditional theories of tort liability for secondary actors under the TVPA. Doe v.
Drummond 782 F.3d 576, 607 (11th Cir. 2015), citing Meyer v. Holley, 537 U.S.
280, 287 (2003) (“Where Congress ... has not expressed a contrary intent, the
Court has drawn the inference that it intended ordinary rules to apply.”).
“[R]esponsibility for torture, summary execution, or disappearances extends
beyond the person or persons who actually committed those acts - anyone with
higher authority who authorized, tolerated or knowingly ignored those acts is liable
for them.” S.Rep. No. 102–249, at 9.
This court's opinion in Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th
Cir. 2005), forms the basis for aiding and abetting liability in this circuit. See
Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315–16 (11th Cir. 2008)
(recognizing that the decision in Cabello binds all subsequent panels of this court
as to aiding and abetting liability). The court found that the legislative history
“indicates that the TVPA was intended to reach ... those ordering, abetting, or
assisting in the violation.” Id. Thus, “the law of this Circuit permits a plaintiff to
plead a theory of aiding and abetting liability under the [ATS] and the [TVPA].”
Romero, 552 F.3d at 1315. In Cabello, the defendant had served as the primary
37
perpetrator's bodyguard, and was merely present when the perpetrator selected the
files of the victims, but was liable because “the statements attributed to [the
defendant] reflect[ed] his knowledge that he was assisting in wrongful activity.”
Id. at 1159.
The underlying murder must be deliberated or premeditated, but this isn't the
mens rea required of the defendant. The test for aiding and abetting is “active
participation,” which is supported if the defendant gave knowing substantial
assistance to the individuals committing the act. Cabello, 402 F.3d at 1157–59.
The standard is derived from the federal common law, not international law.
Drummond, 782 F.3d at 608, citing Halberstam v. Welch, 705 F.2d 472, 478 (D.C.
Cir.1983).
2. The Individual Defendants may also be held liable under

principles of agency law and to jurisprudence under 42 U.S.C. §
1983.
In interpreting the state action requirement, the Eleventh Circuit looks to
“the principles of agency law and to jurisprudence under 42 U.S.C. § 1983.”
Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1247 (11th Cir. 2005),
(internal citation omitted). Under this theory, "when two persons engage jointly in
a partnership for some criminal objective, the law deems them agents for one
another. Each is deemed to have authorized the acts and declarations of the other
undertaken to carry out their joint objective." United States v. Russo, 302 F.3d 37,
38
45 (2nd Cir. 2002); Chowdhury v. WorldTel Bangladesh Holding, Ltd., 746 F.3d
42, 52, 53 n. 11 (2nd Cir. 2014) (affirming a jury verdict predicated on agency
theories of liability, including ratification).
3. The District Court correctly held that the Plaintiffs need not
allege facts showing “specific government involvement with each
individual act of torture and killing of Plaintiffs’ relatives.”
The District Court analyzed detailed allegations of state action in several
specific incidents, and held this to be a prima facie showing of a symbiotic
relationship between the Colombian government and the AUC. See Order, DE 412
of June 3, 2011 at 38. Applying the symbiotic relationship test, see Sinaltrainal v.
Coca Cola Co., 578 F.3d 1252, 1265-6 (11 Cir. 2009); Romero v. Drummond Co.,
552 F.3d 1303, 1317 (11th Cir. 2008), it held that to plead state action at the
motion to dismiss stage, Plaintiffs must allege a symbiotic relationship with respect
to the AUC’s campaign of torture and killing of civilians in the banana-growing
regions, but not specific government involvement with each individual act of
torture and killing of Plaintiffs’ relatives. DE 412 at 12-13. The court considered
it relevant that the Colombian military allegedly failed to carry out arrest warrants
for paramilitary leaders, shared intelligence and communicated with the AUC, and
provided training to the AUC. Id. at 40.
a. The Aldana, Romero, Sinaltrainal, and Mamani cases relied

on by the Cross-Appellants were ones in which the
relationship between the incident and the overall conflict
couldn't be shown.
39
“To charge a private party with state action under this standard, the
governmental body and private party must be intertwined in a symbiotic
relationship ... The Supreme Court has indicated that the symbiotic relationship
must involve the specific conduct of which the plaintiff complains.” Rayburn ex
rel. Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001) (internal citations and
quotations omitted). The Cross-Appellants argue that the "specific conduct" means
that a showing of government involvement in each incident must be shown. Cross-
Appeal at 111-117. However, each of the cases relied on by the Cross-Appellants
were dismissed because the particular incidents weren't related to the overall
conflict.17
17
Another case cited by the Cross Appellants, Estate of Manook v. Research
Triangle Institute, 759 F.Supp.2d 674 (E.D.N.C. 2010) doesn't support their
argument that state involvement must be shown in the specific killing in the
complaint. Cross-Appeal at 111. The Alien Tort claims in Manook were dismissed
for different reasons. The court found that private security contractors in Iraq
weren't sufficiently controlled by the U.S. military, and that "private activity will
generally not be deemed `state action' unless the state has so dominated such
activity as to convert it to state action. ..." Id. at 679. (quotations omitted) "Mere
approval of or acquiescence in the initiatives of a private party is insufficient." Id.
(quotations omitted). The plaintiffs had argued that rules of engagement
promulgated by the U.S. military established this control. Before the transfer of
venue, the D.C. District Court had found the murders couldn't be categorized as
war crimes. The security contractors were protecting a company involved in the
reconstruction of Iraq, rather than the war in Iraq, so murders perpetrated by them
weren't "in the course of hostilities." Estate of Manook v. Research Triangle
Institute, 693 F.Supp.2d 4 (D.D.C. 2010). Undersigned counsel represented Jalal
Askander Antranik, the co-plaintiff in that case.
40
In Aldana v. Del Monte Fresh Produce, N.A. Inc., 416 F.3d 1242 (11th Cir.
2005) (per curiam), a complaint that a mob of vigilantes took hostages at gunpoint
sufficiently alleged state action because it alleged that a U.S. corporation "hir[ed]
and direct[ed] its employees and/or agents," including a Guatemalan mayor, "to
torture the plaintiffs and threaten them with death." 416 F.3d at 1265. The issue
was whether the mayor was merely present, or was actively involved in the torture.
The complaint had referred to the mayor and "several other armed aggressors."
Interpreting this differently than the District Court, the Court of Appeals read the
complaint in the light most favorable to the plaintiffs, which is that the mayor was
also an armed aggressor. The court didn't have to analyze the line of cases in
which a government official was merely present at an incident. For example, in
Booker v. City of Atlanta, summary judgment on state action was improper where
a police officer didn't actively assist with the repossession of a car, but a jury could
find that his "arrival with the repossessor gave the repossession a cachet of legality
and had the effect of intimidating Booker into not exercising his right to resist, thus
facilitating the repossession." Booker v. City of Atlanta, 776 F.2d 272 (11th Cir.
1986).
In Romero v. Drummond Co., 552 F.3d 1303, 1317 (11th Cir. 2008), the
Court approved a district court's inquiry into whether “the symbiotic relationship
between the paramilitaries and the Colombian military had anything to do with the
41
conduct at issue here …,” referring to murders along Drummond’s rail lines. Id.
“The relationship must involve the subject of the complaint.” Id. In Romero, the
plaintiffs failed to establish state action because they offered no evidence “that the
paramilitary assassins enjoyed a symbiotic relationship with the military for the
purposes of those assassinations.” Id. at 1317-18. The Court considered a single
relationship, which might have depended on a single official, and whether it
involved multiple assassinations. Id. The Court used the plural forms of
"assassinations" and "assassins," with respect to this relationship.
In Sinaltrainal v. Coca Cola Co., 578 F.3d 1252 (11 Cir. 2009), the plaintiffs
alleged that a Colombian bottler which supplied the Coca Cola Co. hired or
directed paramilitary security forces that murdered a union leader and tortured a
witness to the murder. There was no showing of state action, because the plaintiffs
had made only conclusory allegations that the government of Colombia
“tolerate[d] the paramilitaries, allow[ed] them to operate, and often cooperate[d],
protect[ed] and/or work[ed] in concert with them.” 578 F.3d at 1266. Under the
symbiotic relationship standard, allegations of “Colombia’s mere ‘registration and
toleration of private security forces does not transform those forces’ acts into state
acts.’” Id., quoting Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242,
1248 (11th Cir. 2005)). Rather, Plaintiffs had to allege a relationship between the
government and the AUC that “‘involves the torture or killing alleged in the
42
complaint to satisfy the requirement of state action.’” Id. (quoting Romero, 552
F.3d at 1317). In other words, there were no facts connecting the murder to the
conflict, which could have been committed for personal reasons, or reasons related
to his union work not involving the Colombian state.
In Mamani v. Berzain, citizens of Bolivia sued a former Bolivian President
and Defense Minister under the ATS and TVPA, for the military's killing of six
people protesting against the government. Mamani v. Berzain, 654 F.3d 1148
(11th Cir. 2017) The defendants were alleged to have “order[ed] Bolivian security
forces, including military sharpshooters armed with high-powered rifles and
soldiers and police wielding machine guns, to attack and kill scores of unarmed
civilians,” id. at 1154, “exercised command responsibility over, conspired with,
ratified, and/or aided and abetted subordinates in the Armed Forces ... to commit
acts of extrajudicial killing, crimes against humanity, and the other wrongful acts
alleged herein” … “met with military leaders, other ministers in the Lozada
government to plan widespread attacks involving the use of high-caliber weapons
against protesters” … “knew or reasonably should have known of the pattern and
practice of widespread, systematic attacks against the civilian population by
subordinates under their command” and “failed or refused to take all necessary
measures to investigate and prevent these abuses, or to punish personnel under
their command for committing such abuses.” Id.
43
The claims in Mamani were dismissed on a Rule 12(b)(6) motion as being
conclusory and lacking in details sufficient to distinguish them from shootings
based on "individual motivations (personal reasons) not linked to defendants" and
those "compatible with accidental or negligent shooting," which are not
extrajudicial killings under the TVPA. "These allegations sound much like those
found insufficient by the Supreme Court in Iqbal: statements of legal conclusions
rather than true factual allegations. Formulaic recitations of the elements of a
claim, such as these, are conclusory and are entitled to no assumption of truth."
Mamani, 654 F.3d at 1153, citing Ashcroft v. Iqbal, 556 U.S. 662 (2009).
"Plaintiffs here base their claims on allegations that defendants knew or should
have known of wrongful violence taking place and failed in their duty to prevent it.
Easy to say about leaders of nations, but without adequate factual support of more
specific acts by these defendants, these “bare assertions” are “not entitled to be
assumed true. … We do not accept that, even if some soldiers or policemen
committed wrongful acts, present international law embraces strict liability akin to
respondeat superior for national leaders at the top of the long chain of command in
a case like this one." 654 F.3d at 1153-1154.
4. State action may be imputed to the Bloque Bananero of the AUC

from the 17th Brigade of the Colombian army.
State action can be imputed to the AUC through the same "under color of
law" analysis applicable to claims asserted under 42 U.S.C. § 1983. This Court has
44
said that Congress told it to apply “principles of liability under U.S. civil rights
laws, in particular [42 U.S.C. § 1983], in construing ‘under color of law’ as well as
interpretations of ‘actual or apparent authority’ derived from agency theory in
order to give the fullest coverage possible.” Doe v. Drummond Co., 782 F.3d 576,
606 (11th Cir. 2015), citing S. Rep. No. 249, 102d Cong., 1st Sess. (1991) at 8; see
Kadic v. Karadzic, 70 F.3d 232, 245 (2nd Cir. 1995). State action may be found
"if, though only if, there is such a close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated as that of the State
itself." Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n., 531 U.S.
288, 295 (2001) (internal citations omitted); Dennis v. Sparks, 449 U.S. 24 (1980).
In Brentwood Academy, a private association that was "overwhelmingly"
composed of public school officials was sufficiently entwined with the state for
state action to be found. In its analysis, the Supreme Court identified six theories
for finding "color of law" in a § 1983 action: whether the conduct resulted from the
state’s coercive power; whether the state provided significant encouragement;
whether the private actor operated as a willful participant in joint activity with the
state; whether the private actor is controlled by an agency of the state; whether the
private actor was delegated a public function; and the degree of public
entwinement between the state and the private actor. 531 U.S. at 296.
45
The Supreme Court has applied four different tests: "whether there is a
sufficiently close nexus between the State and the challenged action of the
regulated entity so that the action of the latter may be fairly treated as that of the
State itself," Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974);
whether the state has "so far insinuated itself into a position of interdependence"
with the private party, Burton v. Wilmington Parking Auth., 365 U.S. 715, 725
(1961), that there is a "symbiotic relationship" between them, Moose Lodge No.
107 v. Irvis, 407 U.S. 163, 175 (1972); whether a private party is "a willful
participant in joint activity with the State or its agents," Adickes v. S.H. Kress Co.,
398 U.S. 144, 152 (1970); and whether a person exercises "powers traditionally
exclusively reserved to the State." Jackson, 419 U.S. at 352.
The AUC's exclusive control over the Urabá region during this time period
resulted from the collaboration of the Bloque Bananero, the AUC unit in Urabá,
and the 17th Brigade of the Colombian army, in Urabá. Many of Chiquita's
payments were to the "Papagayo Association, a 'Convivir,'" which was established
as a private security company, but had no substance and acted as a front for the
AUC. See Factual Proffer, Appx. at 115. The commander of the 17th Brigade,
General Rito del Rio Alejo, was convicted of war crimes and collaborating with
the AUC in Urabá. See Order in Colombian criminal case, Appx. at 217-225. The
Plaintiffs had alleged that "General Rito Alejo Del Rio, the commander of the 17th
46
Brigade from 1995 to 1997 who was responsible for military operations in Urabá,
was notorious for his collaboration and collusion with paramilitaries in the region."
Order Denying Motion to Dismiss DE 412 at 41. General del Rio was finally
arrested in 2008. ... He is accused of conspiracy to murders committed by
paramilitaries in Uraba during his time as 17th Brigade Commander. Id. H.H.
[witness Ever Veloza Garcia] has testified that he twice witnessed del Rio meeting
with the founder and national commander of the AUC, Carlos Castaño. Id. In
addition, AUC paramilitaries could enter and leave the 17th Brigade’s headquarters
at will, with the knowledge and permission of General del Rio. Id. Although the
movants didn't translate the court judgment into English, or analyze General Del
Rio's legal proceedings, the AUC couldn't have controlled traffic into and out of
Urabá, or enforced curfews in urban areas if the Colombian army hadn't allowed
them. The base of the 17th Brigade is in Carepa, about 5 miles south of the main
town of Apartadó, in Urabá.
5. Doe 378 and Doe 840 have made plausible, prima facie showings
that the murders were war crimes occurring in the course of
hostilities.
Even if the Plaintiffs cannot show state action, they may still make prima
facie showings that the murders were summary executions, or war crimes,
perpetrated in the course of hostilities. The cases of Doe 378 and Doe 840 both
make prima facie showings of relationships to the hostilities. The key facts relied
47
on by Expert Manuel Ortega are those that distinguish these murders from murders
committed for personal reasons. In the case of Doe 378, the victim was shot by an
AUC patrol for disobeying a curfew imposed by the AUC, which had imposed a
lockdown on the region. Appx. at 127-128. In the case of Doe 840, the victim
was a soldier, the killers carried long guns, arrived on motorcycles, and one of the
abductors was identified and named by Doe 840 in her deposition. Appx. at 130.
The theft of the victims' identity cards show that the killers had to prove the
murders to someone else, and supports the inference that they were committed in
the course of hostilities. The findings of Accion Social, recognizing the plaintiffs
as victims of human rights violations, are suffucient by themselves to support such
an inference.
In Doe v. Drummond, an amended complaint was held sufficiently detailed
to state plausible claims for war crimes occurring "in the course of hostilities"
where AUC commanders had testified that (1) they had attacked the particular
towns mentioned in the complaint; (2) the decedents were executed in the manner,
time frame and locations that would have been in furtherance of the AUC's war on
the FARC; and (3) all of the decedents were among those killed in the area of
Drummond's operations as the AUC pursued its war strategy. Doe v. Drummond,
Memorandum Opinion of November 9, 2009, Case No. 09-cv-1041-RDP (NDAL).
48
As in Doe v Drummond, "the heart of the dispute lies in whether the acts of murder
are alleged to have been committed “in the course of hostilities” between the AUC
and the FARC, or a means to further [Chiquita]'s security objectives that was
distinct from the conflict. Id. at *12. What was lacking in Drummond was the
allegation that Drummond intentionally “took a side” in the political unrest in
Colombia in order to advance one side of those interests as opposed to the other, as
is required in this Circuit to state a claim under the war crimes exception to the
ATS. Id. at *13.
D. The civil standard for the TVPA is that the individuals responsible for
the murders were "more likely than not" members of the AUC.
The same arguments made in the context of negligence also apply to
intentional torts, such as the one codified by the Torture Protection Act. 28 USC §
1350 note. Although the mens rea and other details may differ, the civil standard is
the same: the burden is on the Plaintiff to prove each element by the "more likely
than not" standard. In this case, that the murder was committed by a member of
the AUC paid by Chiquita, at a time a place corresponding to Chiquita's payments,
and to the agreement with the AUC to provide "security" for their employees.
CONCLUSION
For the foregoing reasons, the Court should adopt the legal standards argued
by the Appellants, and vacate the District Court's Order with respect to Does 378
49
and 840, and order they be remanded to the U.S. District Court for the District of
Columbia.
Respectfully submitted,
/s/ Paul Wolf

________________________
Paul Wolf, DC Bar #480285
Attorney for Does 378 and 840
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986
paulwolf@yahoo.com
September 1, 2020
Certificate of Compliance
with Type-Volume Limitation
I hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) and the Court's Order of March 6, 2020, because it contains 12,662
words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii) and 11th Cir. R. 32-4, and
2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because it has
been prepared using Microsoft Word in Times New Roman, 14-point font.
/s/ Paul Wolf

_________________
Paul Wolf
50
Certificate of Service
I hereby certify that on this 1st day of September, 2020, I served copies of
this brief by U.S. Priority Mail counsel for all parties as detailed below. Counsel
for Defendant Ordman has not appeared in the appeal, and when the District Court
granted my motion to compel the identities and contact information for
"Individuals A-J," the preceding defense counsel, Covington & Burling, responded
by accepting service instead of disclosing his address, which I do not know.
Defendants Steven Kreps and Joel Raymer were dismissed from the case.
/s/ Paul Wolf

_________________
Paul Wolf
Two copies to:
Michael Cioffi, Esq.

Blank Rome, LLP
201 E 5th St #1700
Cincinnati, OH 45202
Counsel for Appellee Chiquita Brands, International, Inc.
and Appellee John Ordman
Two copies to
Ardith Bronson, Esq.

DLA Piper, LLP
200 South Biscayne Boulevard
Suite 2500
Miami, FL 33131-5341
Counsel for Appellees Cyrus Friedheim & Robert Kistinger
One copy to
Elissa Joy Preheim, Esq.

Arnold & Porter, LLP
601 Massachusetts Ave, NW
Washington, DC 20001-3743
Counsel for Appellee Robert Olson
51

In Re Chiquita Brands Appellants Response and Reply Brief

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In Re Chiquita Brands Appellants Response and Reply Brief

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Case: 19-13926 Date Filed: 09/01/2020 Page: 1 of 76

Case No. 19-13926-C

UNITED STATES COURT OF APPEALS

Does 1 Through 976, et al. v.

On Appeal from the United States District Court

RESPONSE AND REPLY BRIEF

APPELLANTS DOE 378 AND DOE 840

Paul Wolf, DC Bar #480285

CERTIFICATE OF INTERESTED PERSONS

attorneys, persons, associations of persons, firms, partnerships, or corporations

of the particular case on appeal, including subsidiaries, conglomerates, affiliates,

known to Appellants, are as follows:

1. Doe 378, whose identity remains confidential under a Protective Order of

cases as personal representatives of the estates of the deceased. They represent

remain confidential under the Protective Order.

2. The other plaintiffs in the complaints filed by undersigned counsel in the

Southern District of Florida, in Case Nos. 08-80465, 10-80652, 11-80404, 11-

80405 and 17-cv-80475. Undersigned counsel represents the legal heirs of

interest in this appeal.

3. Additional interested parties are:

Agrícola Longaví Limitada

Agrícola Santa Marta Limitada

Agroindustria Santa Rosa de Lima, S.A.

Alamo Land Company

American Produce Company

Americana de Exportación S.A.

Arnold & Porter

Associated Santa Maria Minerals

Barbush Development Corp.

Bienes Del Rio, S.A.

Blank Rome LLP

BlackRock, Inc. (NYSE: BLK)

Blue Fish Holdings Establishment

Bocas Fruit Co. L.L.C.

In Re: Chiquita Brands Int’l., Inc.

Boies Schiller & Flexner, LLP, Fort Lauderdale

Boies Schiller & Flexner, LLP, Miami

Boies Schiller & Flexner, LLP, New York

Boies Schiller & Flexner, LLP, Orlando

Cadavid Londoño, Paula

C.C.A. Fruit Service Company Limited

Centro Global de Procesamiento Chiquita, S.R.L.

Charagres, Inc., S.A.

Chiquita (Canada) Inc.

Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.

Chiquita Banana Company B.V.

Chiquita Brands International Foundation

Chiquita Brands International Sàrl

Chiquita Brands International, Inc. (NYSE: CQB)

Chiquita Brands L.L.C.

Chiquita Central Europe, s.r.o.

Chiquita Compagnie des Bananes

Chiquita Deutschland GmbH

Chiquita Food Innovation B.V.

Chiquita for Charities

Chiquita Fresh B.V.B.A.

Chiquita Fresh España, S.A.

Chiquita Fresh North America L.L.C.

Chiquita Fruit Bar (Belgium) BVBA

Chiquita Fruit Bar (Germany) GmbH

Chiquita Fruit Bar GmbH

Chiquita Frupac B.V.

Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton