Case 0:08-md-01916-KAM Document 2676 Entered on FLSD Docket 08/05/2020 Page 1 of 13

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

__________________________________________/

PLAINTIFFS' REPLY TO PESCATORE AND STANSELL PLAINTIFFS'

RESPONSE TO MOTION FOR CONSTRUCTIVE TRUST OVER FARC ASSETS

The Pescatore and Stansell Plaintiffs each sued Chiquita and the FARC for the same

incidents in two different courts. The claims against Chiquita were dismissed with prejudice by

this Court. In parallel proceedings in the transferor courts, they obtained ex parte, default

judgments against the FARC, without notifying the MDL court or attempting to serve process on

the FARC. As a result, neither the defendants in those cases (about 85 members of the FARC),

nor other interested parties (about 450 other plaintiffs in the MDL) had any opportunity to make

the arguments that would probably have ended the litigation.

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The inconsistent judgments - dismissals with prejudice in this Court, and default

judgments in other courts - can't both be valid. The Court shouldn't defer to the results of the ex

parte proceedings, which weren't actually litigated because only one side could say what the facts

were. Any legal analysis based on only one party's version of the facts would be flawed from the

start. Although it might be fair to penalize a party that doesn't appear with a default judgment,

the same can't be said for other plaintiffs in the MDL, who were never given notice.

1. The Movants have proven that the Pescatore v. FARC case was transferred to this
Court and never remanded.

The Pescatore and Stansell Plaintiffs claim that only their cases against Chiquita were

transferred by the JPML, but not their cases against the FARC. Opposition at 4. The Movants

have proven this to be false with the Exhibits attached to the Motion. The non-Movants, despite

having access to the JPML docket, which isn't available online, provide nothing in the way of

evidence, and cannot explain why everything in the record shows that the Pescatore v. FARC

case is still in this Court.

Exhibit 19 is the Conditional Transfer Order for Pescatore v. FARC. On page 3 of

Exhibit 18 is a screenshot of the list of cases included in the MDL, according to the Pacer

system. Pescatore v. FARC, Case No. DC/1:08-cv-2245 is listed as the fourth case in the MDL.1

There's no Order from this Court remanding it since it was dismissed with prejudice two years

ago. Exhibit 16 is a Status Report in which the Pescatore Plaintiffs state that "[o]nce these

pretrial proceedings [in SDFL] finish, Plaintiffs’ case will likely be returned to this Court

pursuant to 28 U.S.C. § 1407, which requires that the U.S. Judicial Panel on Multidistrict

Litigation remand this case 'at or before the conclusion of such pretrial proceedings.'” Id. at 1.

1
The Pescatore v. Chiquita case is No. DC/1:09-cv-00490, and is listed next, as the fifth case in
the MDL. Id.
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This never occurred. The transferror court in D.C. was never told that the case was dismissed

with prejudice. The transferee (MDL) court was never told that there were parallel proceedings

underway in the transferor court.

2. By not disclosing the alleged involvement of Chiquita, the Stansell Plaintiffs

obtained an ex parte default judgment against the FARC before the JPML could
transfer the case.

The Stansell Plaintiffs argue that, by the time the JPML entered its Conditional Transfer

Order in Stansell v. Chiquita, they had already obtained an ex parte default judgment against the

FARC; that "all pretrial proceedings had long been concluded;" and that the JPML wasn't able to

transfer the case because the MDL statute, 28 U.S.C. § 1407(a), relates only to transfers for

“pretrial proceedings.” Opposition at 5. This may all be true, but only illustrates why the ex

parte proceedings were invalid.

The Stansell case arose when the FARC shot down a military surveillance plane in

another part of Colombia,2 and then tried to use the survivors in a prisoner exchange with the

Colombian government. The case proceeded to a default judgment with no mention of

Chiquita's involvement or suggestion that it resulted from Chiquita's negligence. There would

have been no reason to transfer it to Multi District Litigation proceedings against Chiquita. The

Stansell Plaintiffs filed a Notice that it was not related to any other case. See Exhibit 14.

The Stansell Plaintiffs then sued Chiquita for the same incident. They moved to transfer

the case to the judge presiding over their case against the FARC, but the D.C. District Court

2
Although the Middle District of Florida referred to it as a civilian aircraft, see Opp. at 14, the
Stansell Plaintiffs were collecting and sending signals intelligence to the Colombian military.
According to the late Bob Novak, the Stansell Plaintiffs worked for California Microwave, Inc.
of Sunnyvale, CA, under contract with the CIA's Office of Regional Administration in the U.S.
Embassy in Bogotá, Colombia. The Stansell Plaintiffs argue that shooting down the airplane was
a terrorist attack, or that their subsequent detention was an act of international terrorism. See
America's Neglected War, Cable News Network, Feb. 20, 2003, at
https://www.cnn.com/2003/ALLPOLITICS/02/20/column.novak.opinion.war/.
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found that the Stansell Plaintiffs' two cases didn't involve common questions of fact, because one

involved the commission of terrorist acts, and the other involved providing material support to a

terrorist organization.3 Opposition at 5. So the Stansells' case against Chiquita was transferred,

but the default judgment against the FARC was not. See Exhibit 18 to Motion at 6, showing

Case No. FLM/8:10-cv-00786 (Stansell v. CBI) listed twelvth on the list of cases in the MDL.

The Movants are making arguments in equity, because the non-Movants have

manipulated the system by obtaining default judgments in their favor in cases that were

dismissed with prejudice.4 In the Stansell case, had Chiquita been identified as a defendant, it

would have been transferred by the JPML like all the others. The ex parte default judgment

preceded dismissal with prejudice. In the Pescatore case, the order was reversed. In either case,

both defendants should have been sued in the same action, since both were necessary or

indispensible parties, since Chiquita's liability was premised on the FARC's.

3. Cases against the FARC and against Chiquita for the Pescatore murder and the
Stansell kidnappings are based on the same nuclei of operative facts.

“If a case arises out of the same nucleus of operative facts, or is based upon the same

factual predicate, as a former action, ... the two cases are really the same ‘claim’ or ‘cause of

action’ for purposes of res judicata.” Baloco v. Drummond Co., 767 F.3d 1229, 1247 (11th Cir.

2014), quoting Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010)

3
The D.C. District Court didn't appreciate that the nucleus of facts in each of these cases is
centered on the causation of each murder or kidnapping. The issues for trial all involve proving
who committed each particular crime. The payments were admitted in the Factual Proffer and
are not genuinely in dispute. Chiquita wasn't even allowed to argue the duress defense in the
ATA cases. The D.C. District Court made this error because the case was presented out of
context, and never considered that hundreds of other plaintiffs in the MDL were also suing
Chiquita for murders committed by the FARC.
4
In making these equity arguments, the Movants referred to equitable tolling. Although Chiquita
responded to this, the argument wasn't meant to refer to them. It was that any delay in suing the
FARC should be excused, because there would be no valid basis for such a lawsuit.
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(internal quotation marks omitted) “Res judicata applies not only to the precise legal theory

presented in the prior case, but to all legal theories and claims arising out of the same nucleus of

operative fact." N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1561 (11th Cir.1990); Olmstead v. Amoco

Oil Co., 725 F.2d 627, 632 (11th Cir. 1984). Generally, claims arise out of a common nucleus of

operative fact when they “involve the same witnesses, presentation of the same evidence, and

determination of the same, or very similar, facts.” Palmer v. Hosp. Auth. of Randolph Cty., 22

F.3d 1559, 1563–64 (11th Cir. 1994).

The Pescatore and Stansell Plaintiffs sued Chiquita and the FARC for the same incidents:

the kidnapping and murder of Frank Pescatore, and the kidnappings and murder of the military

contractors who were shot down. Some additional facts must be proven to hold Chiquita liable

for acts committed by the FARC, but Chiquita admitted making payments to the FARC in the

Factual Proffer.5 Id. at ¶ 20. Chiquita wasn't allowed to argue duress as an affirmative defense

in the ATA cases. See Order Granting Plaintiffs’ Motion For Partial Summary Judgment on the

Affirmative Defense of Duress. DE 1733.

The differences in legal theories pointed out in the Opposition brief, see id. at 7, aren't

facts, witnesses, or evidence. They are different legal theories applied to the same nucleus of

operative fact (the details of the incidents causing the injuries) with some additional facts to

prove that Chiquita is secondarily liable for what the FARC did. As in the ATS cases, the real

controversies involve the causation in each individual case, not whether Chiquita really made the

payments. Chiquita has no defense for this element, not even duress.

5
Chiquita's internal investigation, resulting in the Special Litigation Committee Report, found
that Chiquita paid about the same amount to the FARC as to the AUC, or roughly $1.6 million
dollars.
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The non-Movants' analysis is also flawed because Chiquita and the FARC weren't

"concurrent causes," in that either tortfeasor would have caused the injury alone. Chiquita's

liability is premised on the FARC's liability. They argue that "[a] judgment concerning

Chiquita’s money transfers to the FARC would have no impact on whether the FARC was

responsible for the kidnapping and murder of an American national." Opp. at 8. The converse,

however, is not true. A finding that the FARC was responsible for the murders would be

necessary to prove their cases against Chiquita. A finding that the FARC wasn't responsible

would end their cases against Chiquita. This nucleus of facts in dispute pertains to causation,

and is different for each incident.

4. Chiquita and the FARC are in privity with respect to the kidnappings and murders
in Stansell and Pescatore because the FARC's interests were adequately represented
by Chiquita, who had closely aligned interests in disproving that the FARC
committed the crimes.

“Privity is defined as a relationship between one who is a party of record and a nonparty

that is sufficiently close so a judgment for or against the party should bind or protect the

nonparty.” Hart v. Yamaha-Parts Distrib., Inc., 787 F.2d 1468, 1472 (11th Cir. 1986). Privity

exists where the nonparty's interests were represented adequately by the party in the original

suit. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990). Privity also exists where a

party to the original suit is "so closely aligned to a nonparty's interest as to be his virtual

representative." Id. at 1561.

The non-Movants argue that under EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1286

(11th Cir. 2004), "privity is a flexible legal term that generally requires that a non-party have 'his

interests adequately represented by someone with the same interests who is a party.'” Opposition

at 7. The Court need not distinguish between having the same interests, and having closely-

aligned interests, because the Pemco case itself uses both expressions. In Pemco, the term of art

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employed was "virtual representation," which applies "when the respective interests are closely

aligned and the party to the prior litigation adequately represented those interests." Id. at 1287,

quoting Delta Air Lines, Inc. v. McCoy Rests., Inc., 708 F.2d 582, 587 (11th Cir. 1983) ("Under

res judicata doctrines such as 'virtual representation,' a litigant may be precluded from litigating

an issue based on a prior lawsuit in which, although he was not a party, his interests were

represented by a party. This principle applies, however, only when the respective interests are

closely aligned and the party to the prior litigation adequately represented those interests."

(citation omitted)). Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 717 (5th Cir. 1975) (doctrine of

virtual representation provides in essence that "a person may be bound by a judgment even

though not a party if one of the parties to the suit is so closely aligned with his interests as to be

his virtual representative.").6

The Court has employed four factors in determining whether there is virtual

representation: whether there was "participation in the first litigation, apparent consent to be

bound, apparent tactical maneuvering, [and] close relationships between the parties and

nonparties." Id. at 1287, citing Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988); 18

Wright & Miller, Federal Practice & Procedure § 4457, at 494-99. All of these factors need not

be found to meet the virtual representation standard. Id.

The factors are easily met here. The fourth, the close relationship between Chiquita and

FARC, is based on the fact that Chiquita is being held secondarily liable for the FARC's acts.

The non-Movants cannot argue that the FARC and Chiquita had different legal interests just

because of the difference in legal theories applied. The different legal theories only relate to the

6
The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit
rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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difference between primary and secondary liability of the tortfeasors. They both had an interest

in proving that the FARC didn't commit the crimes. That is what the "nucleus" of facts in

dispute in each case is always about.

The FARC were adequately represented in the cases defended by Covington and Burling

LLP and Blank Rome LLP, counsel for Chiquita Brands, who got the Stansell and Pescatore

cases dismissed with prejudice. The FARC were not adequately represented in the ex parte

default judgments.

5. Courts in the District of Columbia and the Middle District of Florida lack
jurisdiction over the Pescatore murder and the Stansell kidnappings because the
FARC lacked a "substantial and continuing relationship" with Florida or the
District of Columbia, and because the ex parte proceedings hindered the shared
interest of Colombia and the United States in furthering fundamental substantive
social policies.

The Stansell and Pescatore Plaintiffs concede that federal courts cannot exercise general

personal jursdiction over the FARC. It's one of the main reasons cases against Foreign Terrorist

Organizations never survive motions to dismiss. They argue that there is specific jurisdiction

because the FARC "purposefully availed" themselves of the jurisdiction of U.S. courts by

harming U.S. citizens in Colombia, relying on Burger King v. Rudzewicz, 471 U.S. 462 (1985).

The "purposeful availment" argument would have failed if the case had actually been

litigated. In Burger King, the Court reasoned that the defendants had a "substantial and

continuing" relationship with Burger King in Florida, and that due process wouldn't be violated

because the defendants should have reasonably anticipated being summoned into court in Florida

for breach of contract. Id. at 479-487. The FARC have no such relationship with the United

States, or offices as did the PLO or PA in the Klieman and Livnat cases. The FARC had no way

to know that Americans were on the plane that was shot down. It's like the Americans riding on

the bus in Israel in Estate of Klieman v. Palestinian Authority, 424 F.Supp.2d 153 (D.D.C.

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2006), who were killed only because they were on the bus. A Colombian Army Sgt. named Luis

Alcides Cruz was also on the plane, and was murdered at the crash site, as was the American

pilot.7 The FARC then tried to negotiate a prisoner exchange with the Colombian, rather than

U.S. government, as part of an ongoing negotiation over prisoners held by both sides. At that

time, the FARC leadership knew they had shot down and were holding Americans, but hadn't

purposefully directed their activities, in advance, towards Americans or the United States.

Purposeful availment turns on the defendant's intent. Knowledge alone is an insufficient

basis. "The 'substantial connection' between a defendant and the forum State necessary for a

finding of minimum contacts must derive from an action purposely directed toward the forum

State, and the mere placement of a product into the stream of commerce is not such an act, even

if done with an awareness that the stream will sweep the product into the forum State absent

additional conduct indicating an intent to serve the forum state market." Asahi v. Superior

Court, 480 U.S. 102, 103 (1987). Here, the possibility that Americans may have been aboard the

plane, and what to do with them afterwards (the Colombian passenger was killed), doesn't show

premeditation or purposeful direction.

The purposeful availment argument also depends on a determination that the FARC

should have reasonably anticipated being sued in a U.S. court for harming Americans in

Colombia. Justice Brennan's general "reasonableness" or "fairness" test in Burger King evolved

into Justice O'Connor's five factor reasonableness test two years later in Asahi v. Superior Court,

7
The evidence in the criminal trials of Mr. Piñeda, which were attended by undersigned counsel,
showed that the FARC shot at every aircraft flying over them, but were rarely effective at
downing them. The evidence at trial also showed that the aircraft was reporting signals
intelligence directly to the Colombian military, calling into question whether the passengers were
really civilians. Are private military contractors on a surveillance mission in a combat zone
victims of a terrorist attack when they're shot down? The courts issuing ex parte default
judgments weren't made aware of all of the facts.
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480 U.S. 102 (1987). A court must consider "the burden on the defendant, the interests of the

forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination

'the interstate judicial system's interest in obtaining the most efficient resolution of controversies;

and the shared interest of the several States in furthering fundamental substantive social

policies.'" Id. at 113, quoting World-Wide Volkwagen Corp. v. Woodson, 444 U.S. 286, 292

(1980). In Asahi, the "procedural and substantive policies of other nations whose interests are

affected by the forum State's assertion of jurisdiction over an alien defendant must be taken into

account, and great care must be exercised when considering personal jurisdiction in the

international context. Although other nations' interests will differ from case to case, those

interests, as well as the Federal Government's interest in its foreign relations policies, will always

be best served by a careful inquiry into the reasonableness of the particular assertion of

jurisdiction …" 480 U.S. at 115.

Allowing a few American plaintiffs to collect default judgments against the FARC's

seized assets, before hundreds of Colombian plaintiffs have been heard in court, is harmful to the

interest of the Colombian government in protecting its citizens and ensuring their fair treatment.

The seized assets can most likely be traced to the FARC's activities in Colombia, which were

directed against Colombian citizens. There's no evidence that the Colombian government was

ever notified that the seized assets of a Colombian terrorist group are being given to American

private military contractors. One of the goals of the Colombian Commission of Justice and

Peace is to seize the assets of the AUC and FARC, to use to compensate their victims. They

haven't been very successful, in part because those groups are good at money laundering, and

have hidden their assets in other countries.

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Instead of arguing these fundamental rules, the non-Movants urge the court to adopt the

unsupported conclusions of courts that issued ex parte, default judgments based on one side's

version of the facts. They weren't reviwed by a court of appeals, and have no binding authority

on this Court, particularly since they were duplicate proceedings that were never disclosed. For

example, in Pescatore v. Palmera Pineda, 345 F. Supp. 3d 68, 76 (D.D.C. 2018) the D.C. District

Court noted that “Defendants targeted American citizens, sought ransom on them, and killed

them, including Mr. Pescatore. ... Due to the purposeful targeting of Americans by [FARC’s]

terrorism, Defendants have minimum contacts here to establish personal jurisdiction.” By the

time this analysis was written, the Pescatore case had already been dismissed with prejudice by

this Court. There was no finding that Mr. Pescatore was targeted because he was an American,

only allegations in a case that was dismissed on the merits.

Pescatore's jurisdictional theory relies on Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir.

2005), which is controversial and not adopted in this Circuit. In Mwani, Osama bin Laden

purposefully directed his activities towards the United States as a whole, so contacts with

different states could be aggregated for the purpose of establishing minimum contacts. The

plaintiffs could pick a forum state, which shifted the burden to the defendant to name another

state where they could be sued, or submit to the plaintiffs' choice of forum. The Mwani case is

controversial because there are no special personal jurisdiction rules for terrorist organizations.

It opens the door to lawsuits against foreign corporations which lack sufficient minimum

contacts with any particular state, by aggregating contacts with multiple states.

The ex parte, default judgments in this case are more egregious due process violations

than any personal jurisdiction case ever decided by the Supreme Court. Nearly all of the claims

in the MDL, as well as the Pescatore and Stansell cases, are for incidents occuring before Mwani

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was decided in 2005. The FARC is one of the few terrorist groups that has ever been sued in the

United States, using this or any other theory, and could never have reasonably anticipated it.

Further, as already argued, no attempt was made to serve process on the FARC or explain how it

could even be accomplished. The non-Movants could have tried to serve some of the 85 named

defendants in the Stansell complaint, but did not.

6. The non-Movants' arguments about T.R.I.A. judgments apply to collection and

enforcement, not the cause of action.

The non-Movants argument that only U.S. nationals, but not Colombians, can execute

judgments on blocked assets of terrorists relates to collecting the judgment, not the case itself.

See Opp. at 17. U.S. and non-U.S. plaintiffs would be equally entitled to the FARC's assets, if

they had both obtained judgments against the FARC. That the judgments were executed in a

way unavailable to the non-U.S. plaintiffs doesn’t mean that U.S. plaintiffs are entitled to collect

the FARC's assets, and non-U.S. plaintiffs are not. In addition, none of the approximately 450

Colombians suing Chiquita have gone to trial. In contrast, both the Stansell and Pescatore

Plaintiffs' claims were dismissed with prejudice.

Conclusion

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

Trust over the FARC's Assets, and do so before the Stansell and Pescatore Plaintiffs can

dissipate any more of the proceeds of the FARC's money laundering activities. They have

already taken $20 million dollars.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Does 1-144, Does 1-254
PO Box 21840

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Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
Fax: n/a

August 5, 2020

Certificate of Service

I hereby certify that on this 5th day of August, 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

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