Case 0:08-md-01916-KAM Document 2688 Entered on FLSD Docket 09/17/2020 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
ATA ACTIONS
__________________________________________/

Does 1-144 v. Chiquita Brands, 08-80465-CIV-MARRA

Does 1-254 v. Chiquita Brands, 11-80405-CIV-MARRA
Pescatore et al v. Chiquita Brands, 09-80683-CIV-MARRA
Julin v Chiquita v. Chiquita Brands, 08-20641-CIV-MARRA
Sparrow v. Chiquita Brands, 11-80402-CIV-MARRA
Stansell v. Chiquita Brands, 10-cv-80954-CIV-MARRA

__________________________________________/

Motion for Reconsideration under Rules 59(e) and 60(b) of Order [DE 2684]
of September 8, 2020, Denying Motion for Constructive Trust Over FARC Assets

Come now the Plaintiffs, heretofore referred to as "Does 1-254," to move the Court to

reconsider its Order of September 8, 2020, DE 2684, pursuant to Rules 59(e) and 60(b) of the

Federal Rules of Civil Procedure. In addition, the Plaintiffs are separately filing a Motion for

Leave to File a Second Amended Complaint, adding the FARC as a defendant. The motions for

reconsideration and for leave to amend cannot be combined because they seek different relief.

On July 20, 2020, Does 1-254 filed a Motion for a Constructive Trust over the FARC's

Assets, which are the proceeds of their criminal activities that were wrongfully taken by the

Stansell and Pescatore Plaintiffs. DE 2667 The Stansell and Pescatore Plaintiffs opposed, DE

2672, and Does 1-254 replied. DE 2676. Chiquita also responded, taking no position on the

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relief requested, but arguing that there would be no equitable basis to reinstate claims against

Chiquita. DE 2673. The Court denied the Motion, holding that

"Basically, the Doe Plaintiffs are asking this Court to impose a (prejudgment)
constructive trust over the assets of an alleged joint tortfeasor which has not been named
as a party defendant in this suit. Because Plaintiffs do not establish a legal or evidentiary
basis for the requested equitable relief, the Court denies the motion…"

Order at 4, DE 2684. The Plaintiffs move for reconsideration of whether this is necessary, and at

the same time, move for leave to amend the complaint to add the FARC as a defendant.

SUMMARY OF ARGUMENT

The Court should grant Plaintiffs' Motion for Leave to File a Second Amended

Complaint, which is likely to be no more than a formality, since the FARC never responded to

the Pescatore and Stansell cases, resulting in default judgments.1 This is the easiest way to

resolve the issue pointed out by the Court. It is filed as a separate motion because it seeks

different relief from the original one, which sought to establish a constructive trust over the

FARC's assets.

Nevertheless, the Court should reconsider whether a judgment against Chiquita would

necessarily include a finding that the FARC was at fault, such that no amendment is needed. In

cases involving multiple tortfeasors, the Court may find that a non-party is at fault. For example,

1
Granting leave to amend shouldn't add any extra work to the case. The Stansell Plaintiffs
made no attempt to serve process on the FARC, who were never represented by any attorney and
didn’t defend the case. The Pescatore Plaintiffs served process on an imprisoned FARC
member, who wasn't even a top commander of the FARC, but no one appeared for the FARC in
that case either. The addition of the FARC as a co-defendant shouldn't require any additional
briefing, because Chiquita takes no position on the issue, as long as it doesn't reinstate claims
against them. DE 2673. The Court granted in part and denied in part Chiquita's Motion to
Dismiss the Does 1-254 complaint. See Order of March 27, 2012. DE 513. "Defendants’
motion to dismiss is DENIED with respect to Plaintiffs’ TVPA claims for torture and
extrajudicial killing. Defendants’ motion to dismiss the Colombian-Law claims is DENIED.
Defendants’ motion to dismiss Plaintiffs’ FARC-based claim is DENIED." Id. at 8.
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in jurisdictions following the comparative negligence rule, such as Florida,2 the Court may

apportion damages according to fault, among both parties and non-parties. Although Colombian

law provides for joint and several liability instead, see Article 2344 of the Civil Code of

Colombia, the same principle should apply, since all of the legal theories proposed by the

plaintiffs involve a finding that the FARC (or AUC, for other cases in the MDL), committed the

murder. It is necessary to show causation for Chiquita's negligence, or conspiracy or aiding and

abetting. In other words, the Court already has jurisdiction to determine that the FARC was at

fault, even if the FARC isn't a defendant in the case.

Admittedly, the default judgments against the FARC, with no requirement of service of

process, are unfair enough as it is. Plaintiffs have no objection to naming the FARC as a co-

defendant in a Second Amended Complaint. This separate remedy is justified by the arguments

for reconsideration set forth below.

ARGUMENT

A. Florida juries may consider the fault of non-parties in negligence cases.

Two cases, decided at about the same time, govern the jury's consideration of the fault of

non-parties in negligence in Florida. In Allied Signal, Inc. v. Fox, 623 So.2d 1180 (Fla. 1993),

an airline technician lost fingers while servicing an aircraft fan. He sued the manufacturer in

federal court for negligently failing to instruct and warn with respect to the fan. His employer

wasn't named as a defendant, because it was immune from suit under the Workers’

2
Florida tort law doesn't apply to this case. It merely provides an example of a situation where
the court would need to determine the fault of a non-party. See Fla. Stat. §768.81(3) (1986) (“In
cases to which this section applies, the court shall enter judgment against each party liable on the
basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several
liability; …")
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Compensation Act. The Florida Supreme Court held that the airline’s immunity from tort

liability didn't bar the jury’s consideration of its fault in causing the plaintiff’s damages.

In the other case, Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), the plaintiff was injured in

an accident while riding as a passenger in an automobile driven by her husband. The jury found

that he was 50 percent at fault for the accident. While the husband owed general duties of care to

his wife, he was immune from suit because of interspousal immunity. The trial court declined to

reduce the defendant’s liability by this amount. Id. at 1186. The Florida Supreme Court quashed

the order and remanded the case. Id. at 1187. cf. Wal-Mart Stores, Inc. v. McDonald, 676 So.

2d 12, 20 (Fla. 1st DCA 1996) (defendant shouldn't be able to apportion fault to intentional

tortfeasor that it was supposed to protect the plaintiff against).

B. Florida juries may consider the fault of non-parties in contract cases as well.

The same rule applies in contract cases. In Millette v. Tarnove, 435 Fed. Appx. 848, 853-

55 (11th Cir. 2011), the Court held that a jury may apportion fault to a non-party, even if its

duties to the plaintiff arise by contract, and even if the plaintiff is unable to recover from it in tort

because of the economic loss rule. The court looked behind the contractual relationship between

the plaintiff and the non-party to determine whether the non-party owed a fundamental societal

duty to the plaintiff that would allow fault to be apportioned to it. Id. at 854-55. The Court of

Appeals disagreed with the District Court's determination that "[i]f the client and real estate

developer are in contractual privity, as will most often be the case, the economic loss rule may

very well bar the client from suing the developer in tort. That is not the same as finding no duty

exists. The duty, most certainly, exists. … Likewise, the [c]ourt finds it incontestible that a bank

owes a duty of care to its customer to exercise reasonable care when handling the customer’s

funds. Nonetheless, because the bank and customer are in contractual privity with one another,

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the economic loss rule may very well bar the client from suing the [the bank] in tort." Millette v.

DEK Technologies, Inc., 2010 WL 503119, *3, n.2 (S.D. Fla. Feb. 8, 2010)

Does 1-254 have shown that Chiquita and the FARC were in privity with respect to these

murders. See Reply at 6-8, DE 2676. As in Millette, the Court should determine whether the

non-party (FARC) owed a fundamental societal duty to the plaintiff that would allow fault to be

apportioned to it. Millette, 435 Fed. Appx. at 854-855. The FARC clearly breached their social

duties towards the decedents in the Does 1-254 cases.

C. The Court allowed the Pescatore, Julin and Sparrow cases to proceed to trial with
the FARC as a Fabre defendant.

Chiquita has at various stages of this case argued that they are not responsible for the

murders, because either the FARC or AUC were responsible. This is properly argued as an

affirmative defense. “[I]n order to include a nonparty on the verdict form pursuant to Fabre, the

defendant must plead as an affirmative defense the negligence of the nonparty and specifically

identify the nonparty.” Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262, 1264 (Fla.

1996); Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993); Ortiz v. Regalado, 113 So. 3d 57, 63 (Fla.

2d DCA 2013) (“A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is

wholly or partially responsible for the negligence alleged.”). The fact that Chiquita didn't try to

sue the FARC and AUC for contribution shows how unlikely the default judgments against these

terrorists groups were thought to be.3

Although the District Court denied Chiquita's Motion to Dismiss Does 1-254's Complaint

on March 29, 2012, see DE 513, Chiquita never filed an Answer. Nevertheless, Chiquita has

asserted affirmative defenses in answers to other complaints in the MDL, including in the Julin

3
Chiquita's defenses do not specifically identify the non-party, so their ability to use these vague
defenses is doubtful.
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case. See DE 281 at 29-30 ¶ 11 "Plaintiffs’ claims must be dismissed because of the nonjoinder

of indispensable parties alleged to have caused Plaintiffs’ and decedents’ injuries;" ¶ 12 "Insofar

as Defendant may be held liable for any of the Plaintiffs’ claims, any such liability shall be

reduced or eliminated under the principles of indemnity, contribution, or comparative fault;" ¶ 17

"To the extent that Plaintiffs and decedents are found to have suffered the harms alleged in the

Complaint, those harms were caused by persons or entities other than Defendant." The same

affirmative defenses were raised in a recent amendment to a complaint filed by Attorney

Collingsworth, see DE 1218 at 49, ¶¶ 18, 19, 22. (using the same boilerplate language) Chiquita

has generally tried to portray itself as the victim of extortion, although the defense wasn't

allowed in the Julin4 and Pescatore cases. DE 1733. Although these affirmative defenses, of

failing to join the FARC as an indispensible party, contribution, and of the FARC's liability

displacing Chiquita's, don't mention the Fabre case, which is the standard to be applied at trial.

The jury can only consider the liability of a non-party like the FARC if the issue was raised as an

affirmative defense.

D. The Court need only have jurisdiction over the res of the trust, not over the FARC.

The Motion for a Constructive Trust Over the FARC's Assets is in rem against the

FARC's assets, not in personam against the FARC. The assets in question were frozen by

OFAC, becoming the property of the U.S. government. To the best of undersigned counsel's

knowledge, the FARC have never tried to contest the seizure of any of these assets. They are

now in the possession of the Stansell and Pescatore Plaintifffs, two steps removed from the

FARC, who need not be sued for the purpose of determining whether these assets belonged to

them.

4
Although the Pescatore Plaintiffs sued the FARC for the same injury and obtained a default
judgment, the Julin Plaintiffs didn't. Nor did the Sparrow Plaintiffs.
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This action in rem is not unlike a civil asset forfeiture proceeding, where the issue is

normally tracing the asset to the defendant. In their Opening Brief in the pending appeal, the

Plaintiffs cited several 11th Circuit decisions in civil asset forteiture cases that are on point. Id.

at 37. To prevail in a civil forfeiture case, the government must establish "probable cause for

belief that a substantial connection exists between the property to be forfeited and the criminal

activity defined by the statute." United States v. $4,255,625.39, 762 F.2d 895, 903 (11th Cir.

1985); United States v. Four Parcels of Real Property, 941 F.2d 1428, 1440 (11th Cir.1991) (en

banc) (stating that the standard for probable cause in forfeiture cases is "the same standard used

to determine the legality of arrests, searches, and seizures in criminal law"). Id. at 37 n. 21.

What is interesting about these cases, for the purposes of the appeal, is the application of

the "probable cause" standard to causation in a civil case following a criminal prosecution based

on the same facts. The relation between the probable cause standard, used in the criminal law,

and the "more likely than not" or mere probability standard in civil cases, may appear novel but

has been applied before, if the instant case were viewed as one that only concerns the equitable

distribution of the FARC's assets, which are the proceeds of criminal activities, including the

types of crimes the Stansell and Pescatore Plaintiffs were complaining about, and who are now

the main beneficiaries of these activities.

E. Since the FARC demobilized and no longer exists, the distribution of the FARC's
assets is comparable to a bankruptcy proceeding.

Beginning in January of 2017, units of the FARC began demobilizing pursuant to an

agreement with the government of Colombia signed on November 24, 2016.5 A process within

the Justice and Peace unit of the Colombian fiscalia was set up to investigate war crimes, similar

5
See Colombia signs new peace deal with Farc, BBC, November 24, 2016 online at
https://www.bbc.com/news/world-latin-america-38096179
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to what was done with the AUC, with more than 13,000 members of the FARC participating,

including most of its leadership.6 Although some holdouts remain, the FARC no longer really

exists as an organization.

The situation is not unlike a bankruptcy proceeding, or the winding down of a business.

In bankruptcy cases, the district court "shall have exclusive jurisdiction of all of the property,

wherever located, of the debtor as of the commencement of [the] case, and of property of the

estate." 28 U.S.C. § 1334(e). "Property of the estate," see 11 U.S.C. § 541, is broad in scope,

United States v. Whiting Pools, Inc., 462 U.S. 198 (1983), and in any given case, comprises most

if not all "property of the debtor."7

In Kaplan v. Kaplan, — Fed.Appx. —-, 2013 WL 3884190 (11th Cir. July 29, 2013) a

plaintiff sued his uncle in federal court for allegedly breaching his fiduciary duties as personal

representative of an estate being probated in Florida state court. The federal court had

jurisdiction because lawsuit didn't constitute the administration of a will. Consistent with the

holding in Marshall v. Marshall, 126 S.Ct. 1735 (2006) that a federal court is obliged to exercise

its jurisdiction to consider matters that do not annul a will, invalidate the administration of an

estate, or interfere with property in the custody of the probate court, 126 S.Ct. at 1748, the

district court ruled that the action wasn't in the nature of a probate proceeding, and that it had

jurisdiction to entertain Kaplan’s in personam claims against his uncle.

6
See The Slow Death of Colombia’s Peace Movement, Juan Arredondo, The Atlantic, December
30, 2019, online at https://www.theatlantic.com/international/archive/2019/12/colombia-peace-
farc/604078/
7
The "relation back" doctrine under common law and certain statutes, e.g., 21 U.S.C. § 881(h),
whereby title to forfeited property vests in the United States upon the commission of acts giving
rise to a judgment of forfeiture, could keep such property out of a bankruptcy estate. See United
States v. Klein (In re Chapman), 264 B.R. 565 (B.A.P. 9th Cir. 2001) (on appeal to the 9th
Circuit); United States v. Pelullo, 178 F.3d 196 (3d Cir. 1999).
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Perhaps this matter belongs in bankruptcy court, but even a bankruptcy proceeding would

have been transferred as a tag along case to the MDL. Some MDL cases have even ended in the

bankruptcy of the defendant, but no transfer to a bankruptcy court was required.

Conclusion

For the foregoing reasons, the Court should GRANT Plaintiffs' Motion for

Reconsideration, finding that amending the complaint to add the FARC as a defendant would

serve no purpose, or in the alternative, GRANT Plaintiffs' separate Motion for Leave to File a

Second Amended Complaint.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Does 1-254
PO Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
Fax: n/a

September 17, 2020

Certificate of Service

I hereby certify that on this 17th day of September, 2020, I filed the foregoing document
with the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will
send electronic notices to all persons receiving electronic notices in the In Re Chiquita Brands
MDL.

/s/ Paul Wolf

_____________
Paul Wolf