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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 0:08-MD-01916-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION
___________________________________________/

This Order relates to

ATS ACTIONS

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

ATA ACTIONS

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

10-80954-CIV-MARRA (Stansell v. Chiquita)
__________________________________________/

PLAINTIFF DOES 1-254'S REPLY TO RESPONSES [DE 2695, 2698]

TO PLAINTIFFS MOTION FOR RECONSIDERATION [DE 2688],
AND TO DEFENDANT CHIQUITA'S OPPOSITION [DE 2696 ]
TO MOTION FOR LEAVE TO AMEND COMPLAINT [DE 2689].

The Stansell and Pescatore Plaintiffs argue that reconsideration, or granting leave to

amend, would be futile because Does 1-254 didn't sue the FARC within the applicable

limitations period, and couldn't have followed the procedures to execute on the default

judgments that were used by the Stansell and Pescatore Plaintiffs. DE 2685. They say that the

limitations argument is so strong that Does 1-254 could not be acting in good faith.

Does 1-254 haven't acted in bad faith, but in the expectation that the Court would find

that the proposed amendment "relates back" to the claims against Chiquita, and that the

"discovery rule" was correctly applied to this and other complaints, with the limitations period

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starting to at the unsealing of the criminal complaint, in March of 2007. The Stansell and

Pescatore Plaintiffs' arguments about collecting on the default judgments confuses claims with

remedies.

The Stansell Plaintiffs point out the contradictions in the alternative arguments advanced

by Does 1-254, which are mostly true. Amending the Complaint was proposed was a way to

address a deficiency pointed out by the Court, which was that there appeared to be no basis to

seize the assets of a non-party to the case. See Order, DE 2684 at 4. ("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. Plaintiffs do

not offer any authority for this novel proposition, and this Court is unable to independently

discern any legal authority or theory which permits this result.")

Chiquita takes no position on either the Motion for Constructive Trust [DE 2667], or the

Motion for Reconsideration [DE 2688], but opposes the Motion for Leave to Amend [DE 2689],

on the basis that it is untimely made. DE 2696.

A. The Stansell and Pescatore Plaintiffs concede that the Joint Panel on Multidistrict
Litigation never remanded their cases to the transferee courts.

The Stansell and Pescastore Plaintiffs argue that Does 1-254's arguments in the

alternative are contradictory or hypocritical, emphasizing the same jurisdictional problems

argued by Does 1-254 in the original motion. DE 2695. The Court should find no hypocrisy in

either party arguing the merits of alternative positions. The Movants aren't trying to find a valid

way to sue the FARC. They moved the Court for equitable relief, in rem against the 20 million

dollars that the Stansell and Pescatore Plaintiffs have collected, and more than $300 million

dollars in default judgments they are in the process of collecting in the MDL transferor courts.

The Plaintiffs argued, in the alternative, that the easiest way to address the Court's concern over

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the FARC not being a party to their cases against Chiquita would be to grant Leave to Amend

their Complaint. This wasn't the relief requested in the Motion for Constructive Trust.

Nevertheless, the Stansell and Pescatore Plaintiffs haven't denied that the Joint Panel on

Multidistrict Litigation never remanded their cases to the transferor courts after they were

dismissed on the merits. Nor that this Court never issued a Suggestion of Remand. Nor did

either of them notify either the MDL transferor or transferee courts of what was transpiring in the

other.1 For example, the Pescatore Plaintiffs filed a Status Report in the transferor court in D.C.

stating that "[o]nce these pretrial proceedings [in this Court] 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.'” See Status Report, Exhibit 16 to Motion for Constructive Trust, DE 2667-16 at 1.

Nevertheless, a review of the MDL docket, and the dockets of the Pescatore v. FARC and

Pescatore v. Chiquita cases shows that none of cases were ever remanded. This Court still has

jurisdiction over them, and jurisdiction to grant equitable relief.

The Stansell and Pescatore Plaintiffs make the same self-contradiction or hypocrisy

argument with the respect to the Rule 11 prohibition against filing frivolous claims. Does 1-254

didn't mean to suggest that Rule 11 sanctions are warranted, but only pointed out the unique

1
The Stansell and Pescatore Plaintiffs argue that the Motion for Constructive Trust and
arguments about personal jurisdiction are so meritless that they are an insult to MDFL Judge
Richard Lazzara. DE 2695 at 3. No insult was intended. Nor to Judges Collyer and Kelly in the
D.C. District Court, who preside over the Pescatore transferor court, and the court overseeing the
enforcement action of both Stansell and Pescatore cases, respectively. Undersigned counsel is
unaware of what representations were made to those judges about remand of the cases by the
JPML, or about the dismissal with prejudice of the Stansell and Pescatore cases. It should be no
more insulting than when a court of appeals is asked to review the decision of a trial court. The
Stansell and Pescatore Plaintiffs are entirely responsible for the parallel litigation in the courts
without jurisdiction, not the judges.
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nature of the Stansell and Pescatore Plaintiffs' claim to the first $300 million dollars that can be

traced to the FARC. There is no other case like it.

Rule 11 sanctions are proper "(1) when a party files a pleading that has no reasonable

factual basis; (2) when the party files a pleading that is based on legal theory that has no

reasonable chance of success and that cannot be advanced as a reasonable argument to change

existing law; or (3) when the party files a pleading in bad faith for an improper purpose."

Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996) (quoting Jones v.

International Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir. 1995)). The Stansell and

Pescatore Plaintiffs cases against the FARC were based on theories that had no reasonable

chance of success, and only succeeded because no one appeared in court to defend them. The

transferor courts lacked jurisdiction because of the lack of a JPML transfer, because the same

claims had already been been dismissed with prejudice, and because the FARC was not a proper

party to the lawsuit, even if they were properly served. Now, Does 1-254 can make the same

arguments, valid or not, with a reasonable chance of success. And the first two factors are

different. The cases of Does 1-254 are still in this court, which has jurisdiction to rule on them.

None were dismissed with prejudice.

The Stansell and Pescatore Plaintiffs also argue that Does 1-254 have acted in bad faith.

Opp. at 6-7. The bad faith is based on the indisputable nature of the arguments for dismissal

based on statutes of limitations, see § B (2) infra, because Does 1-254 "know that their claims are

time-barred." DE 2695 at 7 n. 7. The Stansell and Pescatore Plaintiffs overstate the strength of

their argument. They don't refer to the Court's application of the discovery rule to the recent

Earthrigthts' complaint and others. The non-movants have failed to address Does 1-254

argument that the claims "relate back" because they are the same claims, based on the same

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conduct or occurrance. Just as the Stansell and Pescatore's cases against Chiquita were based on

murders commited by the FARC, so were those of Does 1-254. The proposed amendment

relates back. The Court would have no basis to find that Does 1-254 's arguments were made in

bad faith.

B. The Colombian Plaintiffs' Motion for Constructive Trust and for Leave to Amend
Aren't Untimely.

1. The Movants filed their Motion for Constructive Trust immediately upon
learning of the enforcement action in D.C. District Court.

The Motion for a Constructive Trust wasn't untimely because the Stansell Plaintiffs never

provided notice to this Court or to the Movants, who were aware of the litigation ten years ago,

but then surprised to learn they had obtained default judgments and collected on them in the

transferor courts, learned on one or two days after July 10, 2020, when Judge Timothy Kelly in

the U.S. District Court for the District of Columbia held that assets of American Express and

Wells Fargo would be subject to execution of the default judgments against the FARC in the

transferor courts. See Exhibit 1 to Motion for Constructive Trust, DE 2667-1 at 1. Judge Kelly

wrote that "Plaintiffs’ judgment is in the amount of $318,030,000, id., of which $298,030,624.78

remained uncollected when Plaintiffs filed the instant motions." Id. at 1. The DC District Court

also stated that "[i]n February 2019, Plaintiffs entered into a Confidential Joint Prosecution &

Sharing Agreement with the plaintiffs in Pescatore et al. v. Pineda & FARC, No. 1:08-cv-02245,

which is currently stayed. The Pescatore plaintiffs are also seeking to enforce a judgment against

the FARC, and Plaintiffs provided the Court notice that 'the Agreement resolves all current or

future issues of competing judgment lien priority.'" Id. at 2. After learning of the enforcement

action through a routine internet search for "Chiquita Brands," the Movants filed their Motion for

Constructive Trust 10 days later, on July 20, 2020.

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2. The Movants haven't missed applicable statutes of limitations, which were

tolled by the filing of the complaint against Chiquita for the same claims, and
relate back.

The Stansell and Pescatore Plaintiffs further argue that Does 1-254 have missed

applicable statutes of limitations, since the murders at issue occurred in the late 1980s through

the early 1990s, more than 30 years ago. Id. at 6-7. However, the Plaintiffs did file their

"claims" on time because their claims against the FARC relate back to the same claims against

Chiquita. Chiquita and the FARC were in privity with respect to these claims, just as they were

in the Pescatore and Stansell cases. The Stansell and Pescatore Plaintiffs also disregard the

application of the discovery rule, which the Court recently applied in considering a recent

complaint filed by Earthrights International, DE 2691, using the March 17, 2007 unsealing of the

criminal complaint against Chiquita, which disclosed both FARC and AUC payments. DE 2691

at 19. In the alternative, the Plaintiffs didn’t have enough evidence to sue until the details of the

FARC payments were disclosed in the Report of the Special Litigation Committee on about

February 25, 2009. Equitable tolling should apply because generaly principles of equity apply.

That is, the Plaintiffs have patiently waited their turn in the MDL transferee court, while the

Stansell and Pescatore Plaintiffs obtained and collected on default judgments in the transferor

courts for claims that this Court had dismissed with prejudice.

Chiquita argues that "Having strategically chosen not to sue the FARC and unduly

delayed first seeking to do so for over nine years, Plaintiffs should not be granted leave to

amend. To do so would disrupt the orderly conclusion of this long pending litigation." DE 2696

at 4. Chiquita doesn't say how this prejudice would occur.2 The FARC-caused murders aren't

2
Contrary to Chiquita's assertion, the Court didn't reach the issue of whether it would be in the
interest of justice to impose a constructive trust on the FARC's assets. DE 2696 at 4. Nor did
the Court reject the Movants' “forced sharing theory” or use that term at all, even though
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part of the bellwether pool. The pending appeal shouldn't be an impediment, since the Court is

allowing other bellwether cases to move forward in summary judgment and discovery, and the

equitable distribution of assets traceable to the FARC isn't related. In contrast, Does 1-254 have

been harmed because American plaintiffs in two murder cases were awarded all of the assets

traceable to a Colombian terrorist organization, which are the proceeds of crimes against the

Colombian people. The harm is that the Stansell and Pescatore Plaintiffs will dissipate these

criminal proceeds, which they unlawfully obtained.

C. The procedural issues argued by the Stansell Plaintiffs aren't barriers to equitable
relief.

The Stansell and Pescatore Plaintiffs argue that Does 1-254 couldn't have followed the

same TRIA procedures for executing on judgments that they used. The provide no authority for

the argument that Does 1-254 must prove that they could have collected on default judgments the

same way. The Court has jurisdiction over the assets because they are in the possession of the

Stansell and Pescatore Plaintiffs, and because only this Court has jurisdiction over the

kidnappings and murders in the Stansell and Pescatore cases.

The Stansell and Pescatore Plaintiffs argue that "The Second and Eleventh Circuit Courts

of Appeal have confirmed that TRIA provides subject matter jurisdiction over post-judgment

execution and attachment proceedings against blocked assets of an agency or instrumentality of

the judgment-debtor, even if the agency or instrumentality itself is not named in the judgment."

DE 2695 at 4 n 4. (citations omitted) However, only this Court would have jurisdiction over

such proceedings, in the absence of a Remand Order from the JPML. No additional subject

matter jurisdiction is needed because Does 1-254 aren't bringing a TRIA enforcement action.

Chiquita puts it in quotation marks. Id. The Movants sought equitable relief, and the Court
denied the motion because the FARC wasn't a party to the litigation.
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1. Amending the Complaint wouldn't be futile because the Court already has
jurisdiction, and Does 1-254 need not follow the TRIA procedures for
executing on judgments in order to collect them from the Stansell and
Pescatore Plaintiffs.

The non-movants' central argument, lurking in the background until the last page of their

brief, is that what Does 1-254 are trying to do is futile, because they wouldn't have been able to

follow the same procedures as the Stansell and Pescatore Plaintiffs to execute on these assets.

DE 2695 at 8. The flaw in this arguments, again, is that it confuses remedies with claims.

The Stansell and Pescatore Plaintiffs argue that "the Does provide no legal support for

their novel theory that a non-party’s assets can be seized or subjected to a constructive trust," id.

at 2, and then that the assets are not the FARC's assets but of an "instrumentality," and that the

difference is critical. "The Does again keep misleading this Court by referring to 'the FARC’s

assets'. The Stansell and Pescatore plaintiffs have never executed upon any assets that were

owned by the judgment debtor FARC, or that were 'FARC assets', or that were owned by any

individual FARC defendant judgment debtor. Instead, as terrorism victims holding judgments

against a “terrorist party”, the Stansell and Pescatore plaintiffs have recently exercised their

authority under section 201 of the Terrorism Risk Insurance Act of 2002 ('TRIA') and the Anti-

Terrorism Clarification Act ('ATCA'), codified at 18 U.S.C. § 2333(e), to execute on blocked

assets of 'any agency or instrumentality' of the FARC." DE 2695 at 3-4.3 The flaw in this

3
The Stansell and Pescatore Plaintiffs also dispute Does 1-254's characterization of the assets in
their possession as being "frozen by OFAC" and distinguish frozen assets from assets of
instrumentalities. DE 2695 at 5. Does 1-254 may have used imprecise language, and didn’t try
to distinguish blocked, seized, and frozen assets. The point is moot because the $20 million
dollars are now in the possession of the Stansell and Pescatore Plaintiffs, who claim it is their
property. The Stansell and Pescatore Plaintiffs cite no case law requiring that the Court have
jurisdiction over its prior owners, or garnishees. In fact, only this Court has jurisdiction over the
garnishees, since it still has jurisdiction over the underlying kidnapping and murder cases.
Unfortunately, those claims were dismised with prejudice. They are the same claims, and the
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argument is that the Pescatore and Stansell Plaintiffs are parties, and the assets are in their

possession. Does 1-243 need not file cross-claims against the Stansell and Pescatore Plaintiffs in

order for the court to have jurisdiction over their claims underlying claims for the murders and

kidnappings in the Stansell and Pescatore cases.4

2. If the District Court has specific personal jurisdiction over the Pescatore and
Stansell murders, it would have specific personal jurisdiction over the
murders in the Does 1-254 cases also.

The Stansell and Pescatore Plaintiffs argue that their default "judgments were based on

specific jurisdiction because the FARC specifically targeted these American nationals and sent

ransom demands into the United States." Id. at 2. They do not say in which states the threats

were made. It is not the United States as a whole, but the forum state that must have sufficient

minimum contacts. The victims in the Does 1-254 cases were also specifically targeted by the

Stansell and Pescatore Plaintiffs have had their opportunity to argue what the word "claim"
means.
4
The Purpose of the TRIA was not to favor U.S. plaintiffs over foreign plaintiffs, or even to
protect U.S. citizens from terrorism, but to protect the insurance industry from the kinds of
damages that could result from terrorist attacks, such as the thousands of wrongful death claims
in this MDL. The purpose was "to establish a temporary Federal program that provides for a
transparent system of shared public and private compensation for insured losses resulting from
acts of terrorism, in order to -- (1) protect consumers by addressing market disruptions and
ensure the continued widespread availability and affordability of property and casualty insurance
for terrorism risk; and (2) allow for a transitional period for the private markets to stabilize,
resume pricing of such insurance, and build capacity to absorb any future losses, while
preserving State insurance regulation and consumer protections." Terrorism Risk Insurance Act
of 2002, § 101 (b). Although the TRIA defines terrorist attacks as those directed against the
United States, or intending to influence its policies, this appears to be a self-imposed limitation
on the extraterritorial reach of the legislation, rather than an intent to protect the insurance
industry from the Stansell and Pescatore Plaintiffs' cases, but not Does 1-254's cases. Congress
didn't contemplate the instant situation, where a conflict in a foreign country primarily impacted
that country's citizens, but also several U.S. citizens who were killed or kidnapped while in
Colombia. This reading of the TRIA would disregard the rights of the Colombian plaintiffs
because the money seized from the FARC's instrumentalities presumptively originated in the
FARC's illegal activities in Colombia, and most of the people harmed by them were Colombians.
If money held in accounts at Wells Fargo and American Express in the U.S. can be traced to the
FARC, it should be used to compensate all of the plaintiffs, not just the ones in the jurisdiction
where the accounts are held.
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FARC. See Proposed Second Amended Complaint at ¶ 1, Exhibit 3, DE 3689-3. "Plaintiffs are

family members of individuals targeted and killed by the Revolutionary Armed Forces of

Colombia (Fuerzas Armadas Revolucionarias de Colombia, or FARC), throughout the late 1980s

to the mid 1990s. In order to produce bananas in an environment free from labor opposition and

social disturbances, Chiquita funded, armed, and otherwise supported the FARC." (emphasis

added)

The ransom demands, if received in the forum states (which the non-Movants didn't

claim) wouldn't distinguish the Pescatore and Stansell murders from those of the Colombian

plaintiffs, unless specific personal jurisdiction was based on the "conspiracy jurisdiction" theory.

The conspiracy theory of specific jurisdiction provides that where a court has personal

jurisdiction over the co-conspirator of a non-resident defendant, due to overt acts committed by

the coconspirator in the forum in furtherance of the conspiracy, the co-conspirator is deemed the

nonresident defendant's "agent" for purposes of the long-arm statute. Junquist v. Sheikh Sultan

Bin Khalifa Al Nahyan, 115 F.3d 1021, 1031 (D.C. Cir. 1997). They cannot apply contacts with

one state, such as Ohio, to the long arm statute of another, such as a transferor court in Florida or

the District of Columbia.5

The Stansell and Pescatore Plaintiffs don't cite any authority that a threat received in one

state provides conspiracy jurisdiction to sue in another U.S. state. This legal issue has already

arisen in this case, where there are various Individual Defendants who all live in different states.6

5
Even if the alleged ransom demands could be aggregated, or were made in the forum states, the
murders and kidnappings would have had to have "arisen" from the threats, rather than just being
"related" to them. cf. Justice Brennan's dissent in Helicopteros Nacionales de Colombia, S. A. v.
Hall, 466 U.S. 408 (1984), arguing the "relatedness" standard.
6
Counsel stands corrected that the Stansell Plaintiffs made no attempts to serve the FARC, and
accepts their representations about the efforts made. DE 2695 at 2-3. However, the Pescatore
Plaintiffs merely published a notice in several newspapers and served an imprisoned FARC
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Conclusion

The Stansell and Pescatore Plaintiffs chose not to follow the procedures authorized by

law, and have taken more than $20 million dollars without having any legal basis to do so, for

claims dismissed with prejudice, in courts having no jurisdiction, and without providing notice to

any court of what was transpiring in the others. Nor was notice provided to other interested

parties, including Does 1-254. This Court still has jurisdiction over the Stansell and Pescatore

cases. The transferor courts do not. At this stage, with $20 million dollars of the FARC's

criminal proceeds already dissipated, the only remedies are in equity. For the foregoing reasons,

the Court should GRANT Plaintiffs' Motion for Reconsideration, or in the alternative, GRANT

Plaintiffs' Does 1-254's Motion for Leave to Amend.

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

October 7, 2020

member, Ricardo Palmera, who is held under Special Administrative Measures in the ADX
"supermax" prison in Florence, CO, and would not have the capacity or ability to act as the
FARC's registered agent. The Movants should have to do no more than what the Pescatore
Plaintiffs did. Undersigned counsel's statement that Ricardo Palmera wasn't a top FARC
commander was accurate. He wasn't a member of the 30+ member Secretariado (Secretariat, or
top level of command in the FARC), and was never involved in combat because he was too old
when he joined the FARC. He was convicted for his alleged personal participation in the
kidnappings.
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Certificate of Service

I hereby certify that on this 7th day of October, 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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