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Case 0:08-md-01916-KAM Document 2058 Entered on FLSD Docket 08/18/2018 Page 1 of 5


CASE NO. 08-MD-01916-KAM



This Document Relates to


08-80465-CIV-MARRA (Does 1-144)

10-80652-CIV-MARRA (Does 1-976)
11-80404-CIV-MARRA (Does 1-677)
11-80405-CIV-MARRA (Does 1-405)
17-cv-80475-CIV-MARRA(Does 1-2146)

Plaintiffs' Opposition to "New Jersey" Plaintiffs’ Motion to Amend

the Global Scheduling Order and Set a Time for Briefing Class Certification [DE 2054]

The Court should deny the Motion, DE 2054, because it is untimely, is against the wishes

of thousands of plaintiffs who did file claims, and would be futile, since the only possible

mechanism, the limited fund class, "was not contemplated ... to be used to aggregate unliquidated

tort claims on a limited fund rationale.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 843 (1999).

Neither good cause, nor the standards for reconsideration have been shown by the movants, who

seek to certify a class of individuals after their cases have been remanded to other courts.

I. The Movants' Motion is Untimely.

The Court already held that a class certification motion would be untimely, when it denied

a motion for class discovery. 1 DE 1856. The movants still haven't shown good cause, as is

See Order, DE 1856, at 2-3. "The Court denies the requested discovery as untimely, observing:
(1) there are currently over 7,500 individual claims pending in the member cases subsumed within
this MDL proceeding; (2) the New Jersey case has been pending since 2008 without a motion
directed toward class discovery or class certification; (3) the New Jersey Plaintiffs offer no valid
explanation for waiting until November 2017 -- more than a year after the discovery stay originally
imposed in this MDL-proceeding was completely dissolved [DE 1197] – to propound their initial
Case 0:08-md-01916-KAM Document 2058 Entered on FLSD Docket 08/18/2018 Page 2 of 5

required to amend a scheduling order, or attempted to meet the standards for reconsideration under

Rule 60(b). The Eleventh Circuit ruled after this case was already in District Court for seven and

a half years without any motion for class certification being filed. Therefore, the "law of the case"

doctrine may also apply.

The movants' conduct in deliberately not filing hundreds of claims was unreasonable, since

the purpose was to force all plaintiffs' counsel into a co-counsel arrangement for unfiled

"community property" cases. This was intended to limit their ability to act independently, and

requires their silence on the bribery of witnesses and foreign government officials, multiple claims

filed by the same plaintiffs, and other issues. It would also be inequitable to allow thousands of

"tolled" class action claims to go forward, when the court dismissed over a thousand claims filed

after the statute of limitations by Attorney Collingsworth and the Conrad & Scherer, LLP. DE

1194. The mistreatment of hundreds of innocent clients who trusted their lawyers to file their

claims was legal malpractice. The firms should be ordered to advise these poor people of what

they have done, and their purpose in not filing their claims.

The motion is also untimely because Does 1-976, at least, have already moved the Court

to remand their cases to the U.S. District Court for the District of Colombia. DE 1904 The request

class fund discovery, nor do they explain why they did not request a limited lift of the originally-
imposed discovery stay for the purpose of conducting special discovery on this discrete topic,
notwithstanding the routine use of such practice by counsel in this litigation since its onset; (4) the
New Jersey Plaintiffs did not express an intent to pursue class certification nor suggest a briefing
schedule governing the same when the parties jointly submitted a global pretrial scheduling order
on February 3, 2017 [DE 1264], a proposal largely adopted as the order of Court; and (6) the fact
discovery deadline, under the global scheduling order, is due to expire on April 2, 2018.
Further, Rule 23 (c) (1) (A) directs the district court to determine by order whether an action
shall be brought as a class action “at an early practicable time” after filing. In this case, the New
Jersey action was transferred to this district on April 21, 2008, with the originating complaint
denominated as a “class action,” under the cited authority of Rule 23(b) (3) or Rule 23(b) (1) (B),
and nearly ten years has since elapsed with no discovery or other motion activity directed to the
issue of class certification on either premise." [footnote omitted]
Case 0:08-md-01916-KAM Document 2058 Entered on FLSD Docket 08/18/2018 Page 3 of 5

was repeated in the Amended GSO.2 See DE 1877. According to the original GSO, DE 1361, the

parties were to state whether they intended to request a suggestion of remand of their cases by

April 2, 2018. The deadline was ignored by everyone but me, including Defendant's counsel.

Finally, in addition to Does 1-976, counsel for one of the Individual Defendants told me on the

phone that his client did not intend to waive his rights under Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26 (1998). The movants want to brief this issue after at least

two of the cases (Does 1-976 and Does 1-2146) are no longer in this Court.

II. The movants don't speak speak for the majority of the plaintiffs who filed claims.

The Court may note that only the "New Jersey" plaintiffs, and several hundred

represesented by Mr. Scarola's firm, signed the motion, and it's not clear for whom they speak.

Four of the seven cases in the caption of the Motion are my cases, in which neither the "New

Jersey" counsel, nor Mr. Scarola have any claim to power of representation. See Caption of DE

2054, listing my cases 08-80465 (Does 1-144), 08-80465 (Does 1-976) 11-80404 (Does 1-677),

and 11-80405 (victims of the FARC). This says a lot about the credibility of the movants, and has

been an ongoing problem. Mr. Simons even asked the Court to sanction me for telling Chiquita

that many of his cases are duplicate claims filed in my clients' names. Now, like Mr. Scarola, he

just puts my case captions on his motions without explanation.

Counsel for the movants have had little personal contact with any plaintiffs, and for the last

decade have been totally unknown in Urabá. The movants have criticized me for "marketing"

myself, but over the last twelve years, my appearances, and now my facebook page, have been the

"Paul Wolf agrees to all of the dates proposed by Chiquita. However, he believes the trial
schedule is illusory if Chiquita will not consent to jurisdiction in this Court. Therefore, he has
moved the Court to remand his Does 1-976 case to the District of Columbia. Mr. Wolf states that
he will consent to the jurisdiction in the SDFL if he is able to get a trial date, but that this Amended
Schedule doesn't provide that if Chiquita can still move for remand." DE 1877 at 5.
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only source of information about this case to the plaintiffs in that region. At every large meeting,

I encounter "New Jersey" and "Searcy Denney" plaintiffs and throw them out, sometimes in front

of hundreds of other people, per their lawyers' instructions.

Plaintiffs have the right to choose their own counsel. Although the Court has avoided this

issue, the movants have no legitimate basis to continue putting my case captions on their motions,

when they know that I am opposed. These attorneys represent less than 10% of the claims filed in

the MDL, if the total number is about 7,500.

III. A motion for class certification would be futile.

The common issues don't predominate in this mass tort case. The facts needed to secure a

guilty plea in the related criminal case are largely admitted and will hopefully be stipulated. Once

again, the Court will probably find that Chiquita's extortion/duress defense fails as a matter of law.

Chiquita's only remaining defense will be to challenge the facts of each particular plaintiffs' case.

The only possible mechanism for class certification is Rule 23(b)(1)(B), which permits a

class action to be maintained where there is a risk that adjudications with respect to individual

members of the class would, as a practical matter, be dispositive of the interests of other members

not parties to the adjudications. Id. This may occur when there is a "limited fund" of money

available to satisfy all of the claims. Limited fund class actions “include claimants to trust assets,

a bank account, insurance proceeds, company assets in a liquidation sale, [or] proceeds of a ship

sale in a maritime accident suit.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 838–841 (1999); citing

Fed. R. Civ. P. 23(b)(1)(B) advisory committee’s note. The limited nature of the funds available

to satisfy the individual claimants must be clear. Ortiz at 849. A mere allegation that the defendant

has limited resources is insufficient. In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1546

(11th Cir. 1987)

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Although the Supreme Court didn't prohibit the use of Rule 23(b)(1)(B) to aggregate

individual tort claims outright, id. at 844, it cautioned against “adventurous application” of the rule

and warned that such cases do not fit within the rule’s historical paradigm. “[T]he Advisory

Committee did not contemplate that the mandatory class action codified in subdivision (b)(1)(B)

would be used to aggregate unliquidated tort claims on a limited fund rationale.” Id. at 843. The

Supreme Court set a high threshold for certification of a limited-fund class under Rule 23(b)(1)(B),

and lower courts have ruled accordingly. See Klein v. O’Neal, Inc., 2006 WL 325766 (N.D. Tex.

Feb. 13, 2006); Cashman v. Dolce Int’l/Hartford Inc., 225 F.R.D. 73, 93 (D. Conn. 2004).


For the foregoing reasons, the Court should DENY the Motion to Amend the Global

Scheduling Order.

Respectfully submitted,

/s/ Paul Wolf

Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
PO Box 46213
Denver, CO 80201
(202) 431-6986
fax: n/a

August 18, 2018

Certificate of Service

I hereby certify that on this 18th day of August, 2018, I filed the foregoing document with
the cleark of the Court using the Court's Elexctronic Filing (ECF) system, which will send
elextyronic notices to all persons entitled to receive them.

/s/ Paul Wolf

Pauil Wolf