chiquita's reply to motion to dismiss for forum non conveniens

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

Case No. 08-MD-01916 (Marra)

IN RE: CHIQUITA BRANDS INTERNATIONAL,INC. ALIEN TORT STATUTE ANDSHAREHOLDER DERIVATIVE LITIGATION

/

This Document Relates to:

ATS ACTIONS/

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISSFOR FORUM NON CONVENIENS AND INCORPORATED MEMORANDUM OF LAW

Case 0:08-md-01916-KAM Document 899 Entered on FLSD Docket 08/21/2015 of 38

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION .......................................................................................................................... 1

I. Colombia Is an Available and Adequate Alternative Forum.............................................. 3

A. Plaintiffs’ Challenges to the Availability of Colombian Courts Fail...................... 3

B. Plaintiffs Have Not Shown That Colombian Courts Are Inadequate On Account of Safety Concerns. .................................................................................. 5

1. Plaintiffs Have the Burden of Producing Evidence That They Cannot Safely Litigate Their Claims in Colombia. .................................... 5

2. Plaintiffs Have No Evidence Demonstrating That They Cannot Safely Litigate Their Claims in Colombia. ................................................. 7

3. Chiquita’s Evidence Demonstrates That Plaintiffs Can SafelyPursue Their Claims in Colombia............................................................. 10

C. Plaintiffs’ Allegations of Corruption and Delay Are Inadequate Under Established Eleventh Circuit Precedent. ............................................................... 12

D. Chiquita’s Stipulation Ensures the Adequacy of Colombian Courts.................... 14

II. The Private Interest Factors Overwhelmingly Support Dismissal.................................... 16

A. The Vast Majority of Evidence Is More Accessible in Colombia. ....................... 17

B. The Prospect of Litigating in Two Countries Favors Dismissal........................... 22

C. Potential Third-Party Defendants May Be Impleaded Only In Colombia............ 22

D. Plaintiffs’ Concern Over Enforcing a Colombian Judgment Is Unwarranted and Does Not Provide a Reason for Denying Chiquita’s Motion................................................................................................................... 23

III. The Public Interest Factors Also Support Dismissal. ....................................................... 25

A. Colombia Unquestionably Has a Greater Interest in this Litigation..................... 25

B. Colombian Courts Are Better Suited to Interpret Colombian Law. ..................... 26

C. Litigating Plaintiffs’ Claims in the U.S. Would Be Unduly Burdensome on U.S. Courts and Juries........................................................................................... 27


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D. Litigating Plaintiffs’ Claims in the U.S. Would Raise Comity Concerns. ........... 30

CONCLUSION............................................................................................................................. 30


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TABLE OF AUTHORITIES

Page(s)CASES

Aldana v. Del Monte Fresh Produce, N.A.,578 F.3d 1283 (11th Cir. 2011) ....................................................................................... passim

Aldana v. Del Monte Fresh Produce N.A., Inc.,741 F.3d 1349 (11th Cir. 2014) ...............................................................................................16

Amchem Products, Inc. v. Windsor,521 U.S. 591 (1997).................................................................................................................28

American Pipe & Construction Co. v. Utah,414 U.S. 528 (1974).................................................................................................................15

Barboza v. Drummond Co.,No. 06-61527 (S.D. Fla. July 17, 2007).....................................................................................9

BFI Grp. Divino Corp. v. JSC Russian Aluminum,247 F.R.D. 427 (S.D.N.Y. 2007), aff’d, 298 F. App’x 87 (2d Cir. 2008) .............................6, 7

Cardona v. Chiquita Brands Int’l Inc.,760 F.3d 1185 (11th Cir. 2014) .......................................................................................5, 8, 19

Chang v. Baxter Healthcare Corp.,599 F.3d 728 (7th Cir. 2010) ...................................................................................................14

Chevron Corp. v. Donziger,974 F. Supp. 2d 362 (S.D.N.Y. 2014)................................................................................24, 25

Chiquita Brands Int’l Inc. v. SEC,No. 14-5030, 2015 WL 4385618 (D.C. Cir. Jul. 17, 2015) .....................................................21

Clemens v. DaimlerChrysler Corp.,534 F.3d 1017 (9th Cir. 2008) .................................................................................................15

Ford v. Brown,319 F.3d 1302 (11th Cir. 2003) ....................................................................................... passim

Gulf Oil Corp. v. Gilbert,330 U.S. 501 (1947)...........................................................................................................23, 26

In re Air Crash Near Rio Grande Puerto Rico on December 3, 2008,9:11-md-2246-KAM (S.D. Fla.) ..............................................................................................19


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In re Banco Santander Securities-Optimal Litig.,732 F. Supp. 2d 1305 (S.D. Fla. 2010), aff’d sub nom. Inversiones Mar Octava Limitada v. Banco Santander S.A., 439 F. App’x 840 (11th Cir. 2011)..............................4, 15

In re W. Caribbean Crew Members,632 F. Supp. 2d 1193 (S.D. Fla. 2009) ..............................................................................4, 6, 9

In re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India,809 F.2d 195 (2d Cir. 1987).....................................................................................................25

Johnson v. Ry. Exp. Agency, Inc.,421 U.S. 454 (1975).................................................................................................................15

King v. Cessna Aircraft Co.,562 F.3d 1374 (11th Cir. 2009) ...............................................................................................14

Kramer v. von Mitschke-Collande,5 So. 3d 689 (Fla. Dist. Ct. App. 2008) ..................................................................................23

La Seguridad v. Transytur Line,707 F.2d 1304 (11th Cir. 1983) ...............................................................................................18

Leon v. Million Air Inc.,251 F.3d 1305 (11th Cir. 2001) ....................................................................................... passim

Mujica v. AirScan Inc.,771 F.3d 580 (9th Cir. 2014) .....................................................................................................6

Paolicelli v. Ford Motor Co.,289 F. App’x 387 (11th Cir. 2008) ....................................................................................17, 26

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,549 U.S. 422 (2007).................................................................................................................17

Smith v. Bayer Corp.131 S. Ct. 2368 (2011).........................................................................................................4, 15

Son v. Kerzner Int’l Resorts, Inc.,2008 WL 4186979 (S.D. Fla. Sept. 5, 2008) .................................................................2, 22, 27

Tazoe v. Airbus S.A.S.,631 F.3d 1321 (11th Cir. 2011) ....................................................................................... passim

Turner Entm’t Co. v. Degeto Film GmbH,25 F.3d 1512 (11th Cir. 1994) .................................................................................................30

Walker v. CSX Transp. Inc.,650 F.3d 1392 (11th Cir. 2011) .................................................................................................4


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Zedner v. United States,547 U.S. 489 (2006).................................................................................................................24

STATUTES

Fla. Laws §§ 55.503, 55.604..........................................................................................................23

Fla. Laws § 55.605(1)-(2) ..............................................................................................................24

N.C. Gen. Stat. §§ 1C-1853(a), 1C-1856(a) ..................................................................................23

N.J. Stat. Ann. §§ 2A:49A-19 to -20 .............................................................................................23

OTHER AUTHORITIES

Wright & Miller, 14D Federal Practice & Procedure § 3828.3 (4th ed. 2015) .............................6


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INTRODUCTION

In light of the Court’s prior rulings, Plaintiffs do not, and cannot, seriously contend that

litigating their claims in the United States is more convenient than litigating them in Colombia.

Adjudication of Plaintiffs’ claims would require the Court to interpret and apply Colombian law,

which the Court has already described as a “novel and complex . . . endeavor” that justified

declining supplemental jurisdiction over the Colombian law claims. (Op. & Order 90 (D.E.

412).) Moreover, the Court has from the outset emphasized that the litigation involves “separate

plaintiffs with separate causes of action” and that each Plaintiff’s “specific factual claims . . . will

predominate, and individual issues of causation will pervade” as the cases progress. (Op. &

Order, No. 07-cv-60821-KAM, at 7 (D.E. 26).) That means proving each of 6,000 torts

committed by Colombians against Colombians in Colombia. And that is precisely what led this

Court to recognize that if the claims are litigated here, the cost of discovery will be “nothing less

than extraordinary.” (Order Granting Ds’ Mot. for Certification 5 (D.E. 518).)

The recent efforts to arrange just two depositions in Colombia confirm that litigating

Plaintiffs’ claims in a U.S. court would require extraordinarily complex, expensive, and time-

consuming foreign discovery. Those two depositions have involved at least ten separate briefs,

two orders by the Court, multiple communications by the parties with a Colombian court,

multiple translators, costly travel arrangements, and multiple rounds of letters of request. If

these cases proceed in the U.S., these extensive efforts will need to be repeated thousands of

times, as the parties must conduct discovery into the alleged violent acts underlying each

Plaintiff’s claims. For this reason, the Eleventh Circuit has held that a district court abuses its

discretion by denying a forum non conveniens (“FNC”) motion where the “vast majority” of

evidence is located in a foreign country, and the courts in that country are adequate and

available. Ford v. Brown, 319 F.3d 1302, 1308-09 (11th Cir. 2003).


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In the face of these facts, Plaintiffs resort to arguing that, regardless of how much more

convenient it might be to litigate in Colombia, FNC dismissal should be denied for two principal

reasons. First, Plaintiffs contend that litigating these cases in Colombia would present safety

concerns. But Plaintiffs do not contend, nor could they, that there is a greater “risk” to them

from suing Chiquita in Colombia than in the U.S. Instead, Plaintiffs assert that they would be

put at risk because, in Colombia, Chiquita could implead third parties outside the jurisdiction of

U.S. courts that would pit Plaintiffs’ interests against those of “powerful military, political, and

economic actors” in Colombia. (Pls.’ Opp’n to FNC Mot. 16 (D.E. 832) (hereinafter “Opp.”).)

This argument is both nonsensical and unsubstantiated. If Chiquita were to implead third

parties, Chiquita would be adverse to those parties, not Plaintiffs. But even if that were not so,

Plaintiffs do not come close to meeting their burden of producing evidence to show that pursuing

these claims in Colombia would be dangerous. No Plaintiff has submitted a declaration, even

under seal, attesting to a well-founded fear of suing Chiquita in Colombia. And neither of the

Plaintiff’s purported experts opines that any Plaintiff would face such a danger. At best, the

declarations state that there have been incidents of violence against “human rights defenders”

and “land restitution claimants,” neither of which describes these Plaintiffs. Plaintiffs seek to

spin the inability to implead third parties in the U.S. as a factor against FNC dismissal, when the

law is precisely the opposite. See Son v. Kerzner Int’l Resorts, Inc., 2008 WL 4186979, at *9

(S.D. Fla. Sept. 5, 2008) (Marra, J.) (“[T]he inability to implead other parties directly involved in

a controversy is a factor weighing heavily against the plaintiff’s choice of forum.”). In any

event, this argument cannot prevent dismissal. If the Court is concerned that impleading third

parties would create a security risk, the Court can condition dismissal on Chiquita’s agreement

not to implead third parties. There is no justification for denying the motion on this ground.


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Second, Plaintiffs argue that FNC dismissal is inappropriate because they would have to

return to the U.S. to enforce any Colombian judgment against Chiquita. Plaintiffs incorrectly

seek to elevate ease of enforcement into a dispositive, threshold inquiry for deciding an FNC

motion when the case law is clear that ease of enforceability is just one of many relevant factors

in the private-interest analysis—and that it is a less significant consideration than “access to

evidence.” Ford, 319 F.3d at 1308. Given that the vast majority of evidence and witnesses are

in Colombia, this factor overwhelmingly supports dismissal and would outweigh the judgment-

enforceability factor even if that factor favored Plaintiffs.

But the judgment-enforceability factor does not favor Plaintiffs, because enforcing a

foreign judgment is hardly the obstacle Plaintiffs suggest. If Plaintiffs obtain a judgment in

Colombia and Chiquita refuses to pay it, Plaintiffs can initiate enforcement proceedings, in

which the judgment will be presumed valid. Given the limited grounds for challenging a foreign

judgment, the only conceivable basis for Chiquita to challenge a Colombian judgment is that the

judgment was obtained by fraud. So long as Plaintiffs and their counsel do not commit fraud,

enforceability is not an issue.

In short, Colombian courts provide a more convenient forum to decide claims brought by

Colombians under Colombian law for injuries suffered at the hands of other Colombians in

Colombia. The Court should therefore dismiss the remaining claims for forum non conveniens.

ARGUMENT

I. Colombia Is an Available and Adequate Alternative Forum.

A. Plaintiffs’ Challenges to the Availability of Colombian Courts Fail.

Plaintiffs do not dispute that Colombian courts are an “available” forum for their claims

against Chiquita, but argue that the forum is “unavailable” as to claims involving other

prospective parties. (Opp. 24 n.13; Wolf Opp’n 7-10 (D.E. 819).) These arguments fail.


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First, Plaintiffs argue that Colombian courts are not “available” because Chiquita

consented to jurisdiction only for Plaintiffs’ claims, and not also for claims by absent, putative

class members in the New Jersey case. (Opp. 24 n.13.) The point is immaterial because “an

unnamed member of a proposed but uncertified class” is not a party to the litigation. Smith v.

Bayer Corp., 131 S. Ct. 2368, 2379 (2011). Plaintiffs cite no case in which a defendant

consented to jurisdiction as to non-parties. To the contrary, a court in this district has expressly

rejected the argument as to putative class members. See In re Banco Santander Securities-

Optimal Litig., 732 F. Supp. 2d 1305, 1332 n.13 (S.D. Fla. 2010), aff’d sub nom. Inversiones

Mar Octava Limitada v. Banco Santander S.A., 439 F. App’x 840 (11th Cir. 2011).

Second, the Wolf Plaintiffs contend that Colombian courts would not have jurisdiction

over the “Doe Defendants” named in their complaints, because these unknown, fictitious

defendants have not consented to being sued in Colombia. (Wolf Opp’n 7-9.) But “consent” is

unnecessary for jurisdiction; if the Doe Defendants engaged in wrongful conduct in Colombia, as

the Wolf Plaintiffs allege, then Colombian courts can exercise personal jurisdiction over them

without a stipulation. See In re W. Caribbean Crew Members, 632 F. Supp. 2d 1193, 1199-1200

(S.D. Fla. 2009); (Tamayo Decl. ¶¶ 25-27 (D.E. 741-1)). In any event, courts typically ignore

“Doe” parties for jurisdictional purposes. See, e.g., Walker v. CSX Transp. Inc., 650 F.3d 1392,

1395 n.11 (11th Cir. 2011). Were the law otherwise, any foreign plaintiff could defeat an FNC

motion simply by naming a Doe defendant.1

1 The Wolf Plaintiffs also contend that a Colombian court is unavailable because the Boies, Schiller law firm—which has been named as a defendant in a suit in which Chiquita is not a party—has not agreed to submit to the jurisdiction of the Colombian courts. (Wolf Opp’n 10.)Chiquita’s FNC motion does not apply to Wolf’s suit against Boies, Schiller.


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B. Plaintiffs Have Not Shown That Colombian Courts Are Inadequate On Account of Safety Concerns.

Plaintiffs’ arguments regarding the safety risks of litigating their claims in Colombia are

based almost entirely on their purported concern over Chiquita impleading “dangerous” third

parties. (Opp. 16-22.) In Plaintiffs’ telling, the Court can either (1) keep these cases in the U.S.

to protect Plaintiffs’ safety, even though that deprives Chiquita of the ability to implead third-

party defendants—an important right under a typical FNC analysis; or (2) send these cases to

Colombia so that Chiquita can exercise its right to implead third parties, but put Plaintiffs’ lives

in danger in the process. (See id.)

Plaintiffs’ framing of the issue presents a false choice, because Plaintiffs fail to show how

they would be put at risk if these cases were heard in Colombia instead of the United States. For

starters, Plaintiffs misunderstand Colombian impleader law: any parties impleaded by Chiquita

would be adverse to Chiquita, not Plaintiffs, and thus only Chiquita would be adverse to the

anonymous “powerful interests” to whom Plaintiffs refer. (See Second Tamayo Decl. ¶ 37

(attached hereto as Exhibit 1).) Moreover, as detailed below, Plaintiffs have not shown that they

would be at risk even if they were adverse to these parties. In any event, if the Court finds that

Plaintiffs’ fears are well-founded, it may condition FNC dismissal on Chiquita’s stipulation not

to implead any third parties in Colombia.

1. Plaintiffs Have the Burden of Producing Evidence That They Cannot Safely Litigate Their Claims in Colombia.

Plaintiffs contend that Chiquita did not satisfy its “burden to show that litigation in

Colombia would be safe for these plaintiffs.” (Opp. 18.) This argument conflates the burdens of

proof and production on an FNC motion.

Chiquita has the burden of proving that Colombia is an adequate forum. Leon v. Million

Air Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). But “the defendant faces a rather low bar for


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establishing that the alternative forum is adequate.” Wright & Miller, 14D Federal Practice &

Procedure § 3828.3 (4th ed. 2015). To satisfy this burden, Chiquita need only show that

Colombian courts provide “at least some relief” for the claims asserted here. Leon, 251 F.3d at

1311. Chiquita has established—and Plaintiffs have not disputed—that Colombian courts offer

relief for Plaintiffs’ claims. (FNC Mot. 20 (D.E. 741); Tamayo Decl. ¶¶ 29-32.)

Where, as here, a plaintiff challenges the adequacy of a forum on grounds other than the

availability of remedies, the plaintiff bears the burden of producing “significant evidence” to

substantiate its allegations. Leon, 251 F.3d at 1312; see also Mujica v. AirScan Inc., 771 F.3d

580, 612-13 (9th Cir. 2014) (stating that, after the defendant established that the foreign court

would provide a remedy, the burden shifted to the plaintiffs to make a “powerful showing” that

litigating in Colombia would place them in “physical danger”). To satisfy this burden of

production, Plaintiffs cannot rely on generalized allegations of violence. See, e.g., In re W.

Caribbean Crew Members, 632 F. Supp. 2d at 1200-01. Instead, they must establish a

“meaningful connection” between the alleged safety concerns and litigating their case in the

foreign court. BFI Grp. Divino Corp. v. JSC Russian Aluminum, 247 F.R.D. 427, 432 (S.D.N.Y.

2007), aff’d, 298 F. App’x 87 (2d Cir. 2008). If Plaintiffs satisfy their burden of production,

“then the defendant has the burden to persuade the District Court that the facts are otherwise.”

Leon, 251 F.3d at 1312. But where a plaintiff’s allegations are “insubstantially supported, . . . a

District Court may reject them without considering any evidence from the defendant.” Id.

Plaintiffs therefore have the initial burden of producing sufficient evidence to support

their allegations that suing Chiquita and some of its former officers and directors in Colombia

would be dangerous. As discussed below, they have failed to do so. Even if their evidence were

sufficient to require a rebuttal, Chiquita’s evidence is more than sufficient to do so.


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2. Plaintiffs Have No Evidence Demonstrating That They Cannot Safely Litigate Their Claims in Colombia.

According to Plaintiffs’ brief, none of the more than 6,000 Colombians can safely sue

Chiquita in their home courts. (Opp. 18-19.) And yet not a single one of them submitted a

declaration asserting that—let alone explaining why—he or she fears litigating in Colombia.

Instead, Plaintiffs submit two declarations that discuss violence against “human rights

defenders” and “land restitution claimants.” (Andreu Decl. ¶¶ 56-59 (D.E. 832-17); López Decl.

¶¶ 12-15 (D.E. 832-14).) These declarants also rely on dated statistics or events (sometimes

more than a decade old) to suggest that Colombia continues to be as dangerous as it was years

ago (e.g., Andreu Decl. ¶¶ 22-25, 33; López Decl. ¶¶ 10, 12, 20), while ignoring the dramatic

security gains that the country has achieved in recent years (Shifter Decl. ¶¶ 19-27 (D.E. 741-5)).

But despite all of their talk about how dangerous Colombia remains, neither declarant offers an

opinion on whether Plaintiffs would face safety risks in suing Chiquita in Colombia. The reason

is obvious: Plaintiffs are not “human rights defenders” or “land restitution claimants,” and even

if they were, none of the incidents of purported violence that their declarants describe involved

plaintiffs suing a foreign corporation like Chiquita. These declarations fall far short of

establishing the requisite “meaningful connection” between the violent acts discussed in the

declarations and Plaintiffs’ claims against Chiquita. BFI Grp., 247 F.R.D. at 432.

In fact, Plaintiffs offer no explanation for why they would be at greater risk if their claims

were litigated in Colombia, where Plaintiffs reside, rather than in the U.S. Instead, Plaintiffs

argue that even if they could safely sue Chiquita in Colombia, litigating there would still be too

dangerous because Chiquita’s alleged “impleader strategy” would cause Plaintiffs to be adverse

to “dangerous” third parties. (See Opp. 19-20.)


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This argument is based on a misunderstanding of Colombia’s impleader rules. Plaintiffs

contend that impleading third parties will pose a safety risk to them because they will become

“directly adverse” to any third party that Chiquita brings into the case. (Opp. 16.) But the

impleaded parties will be adverse only to Chiquita; Plaintiffs need not assert claims against

them. (Second Tamayo Decl. ¶ 37.)

Plaintiffs’ purported fear of Chiquita’s purported “impleader strategy” also cannot be

reconciled with their lawyers’ conduct. As the limited discovery on payments to paramilitary

witnesses has already demonstrated, Plaintiffs’ lawyers have had extensive communications

(including face-to-face meetings) with former paramilitaries, have conferred with their counsel

about Chiquita’s claims, and may have even offered to pay them for testimony against Chiquita.2

These are hardly the actions of people afraid of dealing with former paramilitaries.

In any event, if the Court concludes that impleading third parties would create a safety

risk, it can condition dismissal on Chiquita’s agreement not to implead third parties if the claims

are reinstituted in Colombia. Chiquita will agree to this condition.

Plaintiffs offer a handful of other arguments that Colombia is not an adequate forum

because of safety considerations, but they are equally unpersuasive. Plaintiffs’ declarants assert

that acts of violence against “human rights defenders” demonstrate that lawyers representing

Plaintiffs (but not Plaintiffs themselves) face security risks. (López Decl. ¶¶ 10, 22-23; Andreu

Decl. ¶¶ 17, 22.) But there is no precedent for denying an FNC motion based on alleged

potential threats to counsel. To the contrary, a court in this district has rejected the argument that

2 See, e.g., D.E. 839-12, at 6-12, 14 (Collingsworth’s answers to interrogatories); D.E. 783, at 3-4(Carrizosa plaintiffs’ answers to interrogatories); D.E. 769, at 4 (Valencia plaintiffs’ answers to interrogatories); see also Chiquita’s Mot. to Compel 10-13 (D.E. 837).


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Colombia was an inadequate forum because the plaintiffs’ lawyers would face safety threats. In

re W. Caribbean Crew Members, 632 F. Supp. 2d at 1200-01.

Even if the safety of lawyers were the relevant test, Plaintiffs’ evidence does not show

that their lawyers would face danger. None of the alleged violence described in the declarations

involved lawyers bringing claims against a foreign corporation. And Plaintiffs’ concern over the

safety of their lawyers is difficult to reconcile with the facts outlined in Chiquita’s motion—

which Plaintiffs do not dispute—regarding their lawyers’ open and public recruitment of new

clients in Colombia and their publicizing in Colombia of their suits against Chiquita. (FNC Mot.

42.) Plaintiffs suggest that they may have difficulty finding lawyers to take their cases (Opp.

19), but in fact they already have lawyers in Colombia.3 Not one of these Colombian lawyers

submitted a declaration stating that he or she was afraid to litigate these claims in Colombia.4

Plaintiffs also incorrectly contend that the decisions in Barboza v. Drummond Co., No.

06-61527 (S.D. Fla. July 17, 2007), and Aldana v. Del Monte Fresh Produce, N.A., 578 F.3d

1283 (11th Cir. 2011), support their arguments. In Barboza, the plaintiffs showed that litigating

in Colombia would have been dangerous nearly eight years ago by submitting declarations from

two key witnesses—one of whom was already in the witness protection program—who provided

evidence of safety risks that directly related to the allegations at issue in that case. No. 06-61527

(D.E. 34-3 & 4). Plaintiffs here present no similar evidence. In Aldana, the plaintiffs had fled

3 See, e.g., D.E. 839-12, at 13 (confirming that U.S. counsel for the Doe 1-144 plaintiffs has a “co-counsel relationship with Colombian attorney Ivan Otero Mendoza”); D.E. 801-3 to -10(agreements between counsel for the Valencia plaintiffs and Colombian attorneys); D.E. 170-2 in Case No. 10-60573, at 5 (noting relationship with Colombian firm); D.E. 886, at 2, ¶ 4.4 Plaintiffs also argue that the Court should consider the supposed difficulty in finding Colombian counsel when weighing the private-interest factors. (Opp. 32.) Contrary to the declaration submitted by Plaintiffs’ own counsel (Calderón Decl. ¶¶ 6-11), contingency fee arrangements and pro bono representation are common in Colombia (Second Tamayo Decl. ¶¶ 53-56). This issue is irrelevant, however, because Plaintiffs already have Colombian counsel.


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Guatemala based on safety concerns and had even been granted asylum in the United States. 578

F.3d at 1286-87. Despite the plaintiffs’ safety concerns, the district court nevertheless granted

the FNC motion, and the Eleventh Circuit affirmed that ruling. Id. at 1300.

Finally, Plaintiffs contend that suing Chiquita in Colombia is too dangerous because they

cannot use pseudonyms there. (Opp. 19.) But they offer no good reason why more than 1,700

Colombians could safely bring mediation demands against Chiquita in Colombia without using

pseudonyms, but Plaintiffs cannot do the same. Nor do they offer any explanation for why they

would need to use pseudonyms in Colombia, when more than 3,600 of them have been openly

pursuing their claims here for years in their own names,5 and their lawyers accept that public

filings in this Court are also public in Colombia. (See D.E. 860, at 2 (requesting that certain

information “not be publicly disclosed, through filings in this Court” in light of supposed risks).)

3. Chiquita’s Evidence Demonstrates That Plaintiffs Can Safely Pursue Their Claims in Colombia.

In contrast to Plaintiffs’ declarants, Chiquita’s expert on Colombian security, Michael

Shifter, did offer an opinion on whether Plaintiffs could safely file their claims in Colombia.

After discussing the “dramatic improvement in Colombian security” and the “dramatic decrease

in violent crime” (Shifter Decl. ¶¶ 22-28), Shifter unequivocally stated: “I do not believe that

Colombian citizens asserting in civil lawsuits in Colombia that foreign corporations should share

responsibility for acts of violence by former AUC members would expose themselves to a

heightened security risk.” (Id. ¶ 36.) Shifter explained: “In fact, this is an increasingly common

and vocal refrain among ordinary Colombian citizens, the Colombian media, and Colombian

politicians, with rare if any reports of proponents of this position suffering violent repercussions

5 E.g., Third Am. Compl. 1-27 (D.E. 558); Seventh Am. Compl. 1-20 (D.E. 557); Third Am. Compl. ¶¶ 1126-2031 (D.E. 575); Third Am. Compl. ¶¶ 5-23, Case No. 07-cv-60821 (D.E. 186).


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as a result.” (Id.) After reviewing Plaintiffs’ declarations and materials, Shifter stands by this

opinion. (Second Shifter Decl. ¶¶ 2, 7 (attached hereto as Exhibit 2).)

Plaintiffs attack Shifter on numerous grounds, but none has merit.

� Plaintiffs accuse Shifter of overlooking the violence by former members of paramilitary groups (Opp.18-19), but Shifter expressly discussed the issue. (Shifter Decl. ¶ 29.)

� Plaintiffs accuse Shifter of overlooking recent violence against human rights advocates (Opp. 18), but he discussed this issue as well. (Shifter Decl. ¶ 30.) As Shifter explained, “[t]o be sure, Colombia is not yet free from violence.” (Id. ¶ 29.) But the violence has dramatically decreased, and President Santos’ administration has “taken a hard line on threats to human rights and labor leaders and had signed a new law stiffening penalties for crimes against human rights defenders and journalists.” (Id. ¶ 31.)

� Plaintiffs accuse Shifter of overlooking violence in the banana-growing regions where many Plaintiffs allegedly live. (Opp. 18-19.) But Shifter did not limit his analysis to any particular part of Colombia. He analyzed the security of the entire country, including the banana-growing regions, and concluded that the situation has improved dramatically in the past few years. (Shifter Decl. ¶¶ 22-23; see Second Shifter Decl. ¶¶ 3-6.) In any event, if Urabá were too dangerous, Plaintiffs could move for change of venue on that ground. (Second Tamayo Decl. ¶ 40.)

Notwithstanding Plaintiffs’ attacks, Shifter’s opinion is strongly supported by the record

evidence. That roughly 1,700 Colombians have mediated claims against Chiquita in Colombia,

without using pseudonyms, confirms that suing Chiquita in Colombia would not create a

heightened security risk for Plaintiffs. (FNC Mot. 44.) Plaintiffs’ brief makes much of the fact

that these unsuccessful mediations have not led to litigation, asserting that Plaintiffs “have been

unable to learn anything” about the mediations and suggesting that the claimants may not have

proceeded to litigation based on safety concerns. (Opp. 21 n.11.) This is odd given that a dozen

of the Plaintiffs here appear to have been claimants in the mediations.6 Tellingly, not a single

6 The names of at least 12 Plaintiffs here exactly match those of Colombian mediation claimants. (Compare Does 1-144 Third Am. Compl. ¶¶ 1184, 1197, 1206, 1241, 1244, 1253, 1795, 1832 (D.E. 575); Moreno Seventh Am. Compl. ¶¶ 46, 255, 560, 673-75, 799 (D.E. 557), with D.E. 741-6, at 31, 35, 38, 40; D.E. 741-7, at 4; D.E. 741-8, at 5, 9, 15-16, 20.)


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one has submitted a declaration stating that he or she did not proceed to litigation in Colombia

because of safety concerns. In the absence of such proof, an equally plausible explanation is that

claimants in Colombia are waiting to see what happens with the U.S. litigation. In any event,

there is no evidence to support Plaintiffs’ speculation that Colombians who feel safe enough to

mediate claims against Chiquita in their own names in Colombia would feel threatened to litigate

the same claims there.

Shifter’s conclusion is also supported by the Justice-and-Peace proceedings, in which

tens of thousands of Colombians and their counsel have faced former paramilitary members in

formal judicial proceedings designed specifically to further the victims’ rights. (FNC Mot. 44-

45.) Plaintiffs dispute the relevance of this fact by contending that victims who participate in

Justice-and-Peace proceedings are not adverse to the paramilitaries. (Opp. 20.) This is

inaccurate: victims participate as parties in those proceedings and their representatives have

openly advocated for longer prison sentences for some paramilitaries. (See, e.g., Colombian

Supreme Court Decision on Pérez Guzmán 15 (Mar. 4, 2015) (attached hereto as Exhibit 3)

(noting that victims’ counsel favored paramilitary’s exclusion from Justice-and-Peace process).)

That thousands of Colombian victims are participating in Colombian proceedings involving their

Colombian paramilitary attackers—without using pseudonyms—underscores that there is no

reason to think that these Colombian Plaintiffs cannot safely sue Chiquita in their home country.

C. Plaintiffs’ Allegations of Corruption and Delay Are Inadequate Under Established Eleventh Circuit Precedent.

Plaintiffs contend that Colombia is an inadequate forum because of “pervasive . . .

corruption” and “excessive delay.” (Opp. 22-23.) But many U.S. courts have held that

Colombian courts are adequate for FNC purposes (see FNC Mot. 21 n.18 (collecting cases)), and


13

Plaintiffs cite no case—and Chiquita is aware of none—in which a U.S. court has held that

Colombian courts are too corrupt or too slow to provide an adequate forum.

To prevail on their corruption argument, Plaintiffs must present “significant evidence” of

bias or partiality that is “typically associated with the adjudication of similar claims,” and that

“these conditions are so severe as to the call the adequacy of the forum into doubt.” Leon, 251

F.3d at 1312. Plaintiffs cannot possibly meet this burden; they offer no evidence whatsoever to

suggest that Colombian citizens would be treated unfairly in their own courts if they were to

bring claims against a U.S. corporation and its U.S. officers.

Plaintiffs provide anecdotal accounts of corruption in Colombia, but none involved civil

claims brought by Colombian citizens against foreign defendants. Plaintiffs’ declarants instead

focus on irrelevant issues such as whether corruption and violence have influenced the exercise

of prosecutorial discretion in bringing criminal charges against former paramilitary members.

(Andreu Decl. ¶¶ 12-15; López Decl. ¶¶ 19-20.) Plaintiffs’ declarants also discuss incidents in

which criminal judges have apparently accepted bribes. (Andreu Decl. ¶ 10; López Decl. ¶ 30.)

These incidents did not involve judges who would be hearing Plaintiffs’ claims (Second Tamayo

Decl. ¶¶ 59-63), and Plaintiffs never explain how the incidents have any bearing on their claims.

As for their “excessive delay” argument, Plaintiffs concede that this argument “rarely

succeed[s]” (Opp. 23), and they cite no case law suggesting that it should succeed here.

Plaintiffs instead rely on a declaration stating that proceedings in Colombia could take 15 years.

(Arrubla Decl. ¶ 62.) Arrubla is mistaken. Civil proceedings in Colombia do not “exceed[] 7 or

8 years as a general rule,” and likely will move even more quickly now because the Colombian

rules of procedure were amended recently to expedite proceedings. (Second Tamayo Decl.

¶ 35.) Even if Arrubla were correct, however, 15 years is significantly less than the “extreme


14

amounts” of delay that the Eleventh Circuit has suggested would render a forum inadequate.

Leon, 251 F.3d at 1312 (“delays of up to 25 years” may make a forum inadequate).

D. Chiquita’s Stipulation Ensures the Adequacy of Colombian Courts.

Plaintiffs challenge Chiquita’s stipulation that it will toll the Colombian statute of

limitations as of the date that each Plaintiff filed suit in the United States. (Opp. 24-25.)

Plaintiffs contend that this stipulation is insufficient on three grounds, but none has merit.7

First, Plaintiffs contend that the stipulation is inadequate because Chiquita may later

assert a limitations defense against claims that were time-barred before Plaintiffs filed suit in the

U.S. (Id.) By tolling the limitations period, however, Chiquita has ensured that Plaintiffs are not

prejudiced by the time that has lapsed between the filing of their claims in the U.S. and their

dismissal of those claims here. That is all Chiquita must do. See Tazoe v. Airbus S.A.S., 631

F.3d 1321, 1335 (11th Cir. 2011) (affirming FNC dismissal where defendant agreed to “toll any

applicable statute of limitations in Brazil”). What Plaintiffs seek, by contrast, is for Chiquita to

waive limitations defenses even as to claims that were time-barred before a plaintiff sued in the

United States. Courts have repeatedly held that an FNC motion should be granted without

requiring the defendant to waive a valid limitations defense where a plaintiff waits until after the

limitations period has run in the most convenient forum before filing suit in the U.S. See, e.g.,

Chang v. Baxter Healthcare Corp., 599 F.3d 728, 736 (7th Cir. 2010) (collecting cases).8

7 Plaintiffs assert that Chiquita has conceded that most of Plaintiffs’ claims are timely in U.S. courts. This is incorrect. Plaintiffs’ claims are untimely in the United States unless Plaintiffs prove they are entitled to equitable tolling, which Chiquita disputes they will be able to do, and Chiquita has asserted statute-of-limitations defenses in its answers. (See, e.g., D.E. 741, at 8-16.)8 Plaintiffs cite King v. Cessna Aircraft Co., 562 F.3d 1374, 1384 (11th Cir. 2009) to support the assertion that defendants must ensure that a plaintiff’s claim will be timely in the foreign jurisdiction. (Opp. 24.) But in King, the defendant stipulated to waiving any limitations defense, and the court simply modified the judgment to reflect that stipulation. See Appellant Br., 2008WL 2442125, *47 n.22; King, 562 F.3d at 1384.


15

Second, Plaintiffs contend that the stipulation is inadequate because it does not waive

limitations defenses against putative class members. (Opp. 24.) According to Plaintiffs, because

the New Jersey complaint contains class allegations, Chiquita’s stipulation should also apply to

the purported class. (Id.) But putative class members are not parties to this litigation and have

no claims before the Court. See Smith, 131 S. Ct. at 2379. Plaintiffs do not identify any case in

which a defendant waived potential defenses against non-parties as a condition of FNC

dismissal, and they offer no compelling reason for why this case should be the first.

Plaintiffs attempt to justify extending the stipulation to non-parties by invoking American

Pipe & Construction Co. v. Utah, 414 U.S. 528 (1974), which permitted tolling of potential

federal claims by putative class members as of the date on which a class complaint was filed.

(Opp. 24.) But American Pipe created a tolling rule under federal law, and thus is applicable

only “within the federal court system in federal question class actions.” Clemens v.

DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008). If the Court grants Chiquita’s

motion to dismiss and these putative class members bring claims in Colombia, their claims will

be governed by the Colombian statute of limitations, and thus will be entitled to tolling only

insofar as Colombian law provides for it. See Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454,

463 (1975) (“Any period of limitation . . . is understood fully only in the context of the various

circumstances that suspend it from running against a particular cause of action.”). Chiquita

therefore need not stipulate that individuals who are not part of this litigation can file suit in

Colombia and take advantage of a tolling rule applicable under U.S. federal law. See In re

Banco Santander Securities-Optimal Litig., 732 F. Supp. 2d at 1332 n.13 (holding that defendant

need not consent to suit by putative class members as condition for FNC dismissal).


16

Third, Plaintiffs contend that Chiquita’s stipulation is “unenforceable” as a matter of

Colombian law. (Opp. 25.) That is simply wrong. Plaintiffs and their expert ignore Article

2514 of the Colombian Civil Code, which states that “[t]he statute of limitations may be waived

expressly or tacitly.” (Second Tamayo Decl. ¶ 44.) Plaintiffs’ argument that parties may not

alter “public order” laws through agreement misses the point: Chiquita cannot alter the law, but

it can refrain from invoking a statute-of-limitations defense available under Colombian law, and

that is what it has stipulated to do. (See id.) Chiquita’s stipulation will be effective, moreover,

even if Chiquita impleads a third party and that party asserts a limitations defense. The third-

party defendant’s limitations defense would apply only against the claims asserted by Chiquita

against it, and not against the Plaintiffs’ claims against Chiquita. (Id. ¶¶ 45-47.)9

II. The Private Interest Factors Overwhelmingly Support Dismissal.

Plaintiffs argue that the private-interest factors favor keeping their cases in the U.S. by

focusing primarily on the enforceability of a Colombian judgment (Opp. 12-16), and by claiming

that their choice of forum should be given “substantial deference” (id. at 11-12; Wolf Opp. 12).

Neither point is correct.

Plaintiffs’ concerns about judgment enforceability do not justify denying Chiquita’s

motion, because a Colombian judgment would be enforceable in the U.S. unless Plaintiffs

procure it by fraud. Plaintiffs are also wrong to assert that their choice of forum is entitled to

“substantial deference.” (Opp. 12.) Both the Supreme Court and the Eleventh Circuit have

9 The Court can address this concern by resuming jurisdiction if Chiquita’s stipulation is deemed unenforceable. But the Court should reject Plaintiffs’ request to resume jurisdiction if litigation in Colombia becomes “impossible . . . for any reason.” (Opp. 45.) This request would be a recipe for mischief, as it would give Plaintiffs a reason to defeat their own claims in Colombia in order to return to the U.S.—an approach taken by some of Mr. Collingsworth’s other clients. See Aldana v. Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349, 1357 (11th Cir. 2014) (refusing to reward plaintiffs’ “gamesmanship” by reinstating claims dismissed for FNC after plaintiffs filed a complaint in Guatemala alleging that the claims were barred under Guatemalan law).


17

repeatedly held that a foreign plaintiff’s choice of forum is given less deference because the

forum was likely chosen for reasons other than convenience. See, e.g., Paolicelli v. Ford Motor

Co., 289 F. App’x 387, 390 (11th Cir. 2008); Sinochem Int’l Co. v. Malaysia Int’l Shipping

Corp., 549 U.S. 422, 430 (2007). When the private-interest factors are properly balanced, they

clearly support dismissing Plaintiffs’ claims.

A. The Vast Majority of Evidence Is More Accessible in Colombia.

The Eleventh Circuit has held that “access to evidence” is “[p]erhaps the most important

‘private interest’” factor, and that dismissal on FNC grounds is warranted where “the vast

majority of the evidence” is found in a foreign forum. Ford, 319 F.3d at 1308, 1309 n.21;

Aldana, 578 F.3d at 1292; Tazoe, 631 F.3d at 1331. And this Court has already acknowledged

that the “cost of discovery associated with investigating these claims”—more than 6,000

“killings and acts of torture that occurred on foreign soil”—“will be nothing less than

extraordinary.” (D.E. 518, at 5.) Given this case law and the Court’s prior statements, Plaintiffs

cannot—and do not—suggest that this factor supports keeping their cases in the United States.

Instead, they merely attempt to show that the factor is “neutral.” (Opp. 27.) That attempt fails.

Plaintiffs attempt to avoid the Eleventh Circuit’s controlling precedent by

mischaracterizing Chiquita’s reliance on Ford. (Opp. 26-27.) Ford is important not because it

created a categorical rule for secondary liability claims, but because the district court there

abused its discretion by denying an FNC motion on facts similar to those presented here. In

Ford, the underlying tort occurred in Hong Kong, and thus the evidence relating to the tort was

located there. 319 F.3d at 1308-09. The district court nevertheless denied the defendant’s FNC

motion because the plaintiff alleged that U.S. defendants had conspired to bring about the tort in

Hong Kong, and the evidence of the conspiracy was in the U.S. Id. at 1309. The Eleventh

Circuit held that a district court cannot focus solely on secondary-liability evidence, but instead


18

must consider the location of the evidence for all elements of the claims, including the evidence

necessary to prove the underlying tort. Id. at 1308. When all evidence was considered in Ford,

FNC was warranted because the “vast majority” was in the foreign forum. Id. at 1309 n.21. The

same is true here.

Plaintiffs also attempt to avoid Ford’s clear holding by interpreting the decision to

require a court to consider only the location of “dispositive” evidence. (Opp. 27.) Ford contains

no such limitation, but even if it did, this limitation would not help Plaintiffs.10 Plaintiffs invoke

their purported “dispositive evidence” rule to argue that some of the evidence located in

Colombia is not dispositive. (Id.) That argument hardly helps Plaintiffs because it implicitly

concedes that the rest of the evidence—such as evidence relating to each of the more than 6,000

acts of violence at issue—is dispositive and is located in Colombia. In contrast, none of the

evidence located in the United States is dispositive: since the alleged meetings between Chiquita

and paramilitaries occurred in Colombia and Chiquita’s extortion payments were made in

Colombia, Plaintiffs can attempt to hold Chiquita liable for violence committed by the

paramilitaries without relying on the evidence located in the U.S. (Cf. Op. & Order 70-73 (D.E.

412) (relying on Colombia-based allegations to hold that plaintiffs had adequately pled

secondary liability claims under the Alien Tort Statute).)

Plaintiffs concede that much of the relevant evidence is located in Colombia but argue

that this fact is immaterial because they “are prepared to meet th[e] burden” of proving that

“Plaintiffs were actually killed by the AUC.” (Opp. 28.) But of course Chiquita is not obligated

10 Plaintiffs also cite La Seguridad v. Transytur Line, 707 F.2d 1304, 1308-09 (11th Cir. 1983) (Opp. 27), but in that case there was uncertainty as to which legal issues were dispositive of plaintiffs’ claims, and so the Eleventh Circuit instructed the district court to “delineate what issues will be dispositive and where the evidence relevant to those issues will be found.” 707F.2d at 1309 (emphasis added). There is no such uncertainty here.


19

to rely upon whatever evidence Plaintiffs choose to produce. Instead, a court must consider both

the evidence needed to prove a claim and the evidence needed to disprove it. Ford, 319 F.3d at

1308. The evidence necessary to prove and disprove each act of violence here will be

substantial. Even if the parties seek testimony from only five Colombian witnesses per

incident—an unreasonably small number for a wrongful death case—the parties will still need to

obtain evidence from more than 30,000 Colombian witnesses to try the more than 6,000 claims

pending before the Court.11

Plaintiffs suggest that little evidence will be necessary to prove each claim because,

“under the law of this case,” they “merely need to show that Defendants knew or intended for the

AUC to torture and kill civilians.” (Opp. 28.) But Plaintiffs rely on the Court’s analysis of their

ATS claims, which are no longer part of the case. See Cardona v. Chiquita Brands Int’l Inc.,

760 F.3d 1185, 1191-92 (11th Cir. 2014). The parties agree that, under Colombian law,

Plaintiffs must establish a causal connection between Chiquita’s alleged conduct and the killings

at issue. (See Tamayo Decl. ¶ 30; Arrubla Decl. ¶ 34.) Plaintiffs cannot establish causation

where the killing at issue took place for a reason unrelated to Chiquita’s alleged support of

paramilitaries. Many Plaintiffs specifically allege in the complaints that their relatives were

killed for reasons unrelated to Chiquita, such as over disputes about money, stolen property, or

other personal grievances.12 Other Colombian claimants have fraudulently misrepresented that

their relatives were killed by the AUC. (See, e.g., Primeras condenas a falsas víctimas de la

11 A wrongful death case recently tried by this Court demonstrates that a five-witness estimate is unreasonably low. See In re Air Crash Near Rio Grande Puerto Rico on December 3, 2008, No. 9:11-md-2246-KAM (S.D. Fla.). That case involved one accident resulting in three deaths, and the parties submitted a potential witness list consisting of 50 individuals. E.g., Pls.’ and Ds’ Witness Lists, No. 9:11-md-2246-KAM (D.E. 426, 429).12 See, e.g., D.E. 576, ¶¶ 161-67, 265-68, 322-35, 393-96, 401-05, 499-502, 559-62.


20

masacre de Mapiripán, El Tiempo, Mar. 13, 2015 (attached as Exhibit 4) (describing fraud

convictions against false victims of paramilitary massacre); D.E. 502-14, at 7-8.) Chiquita will

need to probe each of the violent incidents through numerous witnesses and documents that are

located only in Colombia. If the litigation proceeds in the United States, there would be no

compulsory process to secure this enormous volume of crucial evidence. See Tazoe, 631 F.3d at

1331-32.13

The process of obtaining evidence from Colombia for use in the United States will be

incredibly burdensome, time-consuming, and costly—as evidenced by the recent efforts to take

just two depositions in Colombia. And, in the end, Chiquita may not even be able to obtain all of

the evidence it wishes to present. As Chiquita explained in its motion, it is doubtful that

Plaintiffs can obtain visas to travel to the U.S. for deposition and trial, and the same is true for

third-party witnesses. (FNC Mot. 28-30.) Chiquita will be substantially disadvantaged if the

trials in the U.S. have no live testimony from Plaintiffs and key third-party witnesses, and instead

consist of U.S. juries listening to translators read portions of depositions taken in Spanish. (Id. at

31-32.) Plaintiffs do no dispute these points. They simply ignore them.

Plaintiffs also express concern over their access to U.S.-based evidence if this cases are

tried in Colombia. (Opp. 29.) But they ignore Chiquita’s offer to produce all relevant,

13 Nor would there be compulsory process to obtain evidence to rebut Plaintiffs’ allegations of “state action,” a core element of Plaintiffs’ TVPA claims against the Individual Defendants. Plaintiffs contend that this element “will require little additional factual development” because it is “well accepted” that there was a “symbiotic relationship” between the Colombian government and the AUC, a purported fact that “[d]efendants do not contest.” (Opp. 27-28.) To the contrary, Chiquita does contest the existence of any such symbiotic relationship, and it also contests that evidence of a general relationship is sufficient to prove “state action” with respect to any of the 6,000 alleged incidents of violence. Indeed, this Court certified and the Eleventh Circuit accepted for interlocutory review the issue of whether state action has been properly pled for these 6,000 individual torts, an issue the court of appeals did not need to reach. (Order Granting Ds’ Mot. for Certification 11 (D.E. 518); Eleventh Cir. Mandate 11 (D.E. 693).)


21

unprivileged documents in the United States. (Hall Decl. ¶ 2 (D.E. 741-14).) Plaintiffs have

identified no other U.S. documents they need to obtain, nor is there any reason to think that

relevant documents would be outside of Chiquita’s control. Even without Chiquita’s offer,

Plaintiffs will have access to thousands of documents about Chiquita’s payments that are already

publicly available or soon will be. See Chiquita Brands Int’l Inc. v. SEC, No. 14-5030, 2015 WL

4385618 (D.C. Cir. Jul. 17, 2015).14

Plaintiffs’ concern about the availability of knowledgeable U.S. witnesses is similarly

misplaced. (Opp. 29.) Plaintiffs have already added as defendants those individuals whom they

believe have the most significant personal involvement in the issues presented here, and those

defendants have consented to jurisdiction in Colombia. (D.E. 741-15 to -22.) Chiquita has

agreed to produce any additional witnesses under its control, and it has an interest in producing

those who are no longer under its control to support its defenses. These additional witnesses—

no more than a few dozen (see D.E. 202-3, at 18-23)—may be summoned in Colombia through

letters of request and similar methods recognized under Colombian law. (FNC Mot. 32; Tamayo

Decl. ¶ 44.) Any burden imposed by this process pales in comparison to the burden of trying to

summon thousands of Colombians for testimony in the United States.

Finally, Plaintiffs attempt to shift the focus from access to evidence to the complexity of

trying these cases. (Opp. 29-30.) Rehashing their “judicial burden” argument, Plaintiffs contend

that the real question is whether litigation would be more “complicated” in the U.S. or in

Colombia. (Id. at 35.) As discussed below, Plaintiffs overstate the challenges of litigating in

14 Plaintiffs demand that Chiquita stipulate to discovery under the Federal Rules of Civil Procedure (Opp. 44), but Chiquita has already agreed to produce evidence in its possession, and plaintiffs may obtain any additional U.S.-based evidence under Colombian rules of civil procedure. (See Second Tamayo Decl. ¶¶ 20-30.)


22

Colombia. See infra Part III.C. In any event, the question for this factor is not which forum has

less “complicated” procedures; it is which forum provides better “access to evidence.” Ford,

319 F.3d at 1308. The answer to that question is clear: Colombia. Just as in Aldana, Ford, and

Tazoe, this factor alone overwhelmingly favors dismissal on FNC grounds.

B. The Prospect of Litigating in Two Countries Favors Dismissal.

Plaintiffs contend that denying Chiquita’s motion would not create the prospect of

litigating in two countries because the mediation demands by nearly 1,700 alleged paramilitary

victims in Colombia have not ripened into litigation and because the claims may be time-barred.

(Opp. 38.) This argument ignores the fact that these individuals may sue at any moment and

may rely on tolling theories similar to the theories that Plaintiffs rely on here. (Second Tamayo

Decl. ¶¶ 48-49.) The prospect of duplicative litigation thus also favors dismissal.

C. Potential Third-Party Defendants May Be Impleaded Only In Colombia.

Plaintiffs do not deny that virtually all of the potential third-party defendants are located

in Colombia and cannot be impleaded in the United States. See Son, 2008 WL 4186979, at *9

(“[T]he inability to implead other parties directly involved in a controversy is a factor weighing

heavily against the plaintiff’s choice of forum.”). Plaintiffs nevertheless contend that this factor

should not be weighed in Chiquita’s favor (Opp. 31-32), but none of their reasons has merit.

Plaintiffs contend that this factor supports dismissal only if all potential third-party

defendants could be joined in Colombia, and that this test is not met here because one potential

third-party defendant may no longer be present in Colombia. (Id.) It is irrelevant whether some

potential third-party defendants have left Colombia because Colombian jurisdictional principles

would still allow them to be added to the case. (See Tamayo Decl. ¶¶ 25-26.)

Plaintiffs also fault Chiquita for not specifically naming the potential third-party

defendants. (Opp. 31.) But it was Plaintiffs, not Chiquita, who alleged their existence without


23

actually naming them. (See, e.g., Third Am. Compl. ¶ 2058 (D.E. 575).) Chiquita can implead

some or all of those third parties only in Colombia and only after it discovers their identities, and

thus this factor weighs heavily in favor of dismissal. See Tazoe, 631 F.3d at 1332.

D. Plaintiffs’ Concern Over Enforcing a Colombian Judgment Is Unwarranted and Does Not Provide a Reason for Denying Chiquita’s Motion.

Plaintiffs urge the Court to treat judgment-enforceability as essentially a threshold

dispositive factor. In truth, however, this factor is only one of many private interest factors, see,

e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)—of which the Eleventh Circuit has

identified “access to evidence” as the most important. Ford, 319 F.3d. at 1308. Indeed, in many

cases, including Ford, courts have held that FNC was warranted without even discussing

enforcement of a foreign judgment, even though there was no reason to think that the U.S.

defendants in those cases had assets in the foreign jurisdiction.

Here, Plaintiffs greatly overstate the difficulty in enforcing a foreign judgment in U.S.

courts. If Chiquita refused to satisfy a Colombian judgment and Plaintiffs returned to this Court,

enforcement would proceed under Florida law, and the Colombian judgment would be presumed

valid and treated as if it were a judgment from another U.S. jurisdiction. Fla. Laws §§ 55.503,

55.604.15 Given that the judgment is presumed valid, Chiquita would bear the burden of

proving that the judgment is unenforceable. Id. § 55.604(2); see also Kramer v. von Mitschke-

Collande, 5 So. 3d 689, 690 (Fla. Dist. Ct. App. 2008). Virtually all of the grounds for

challenging a foreign judgment would be unavailable to Chiquita, because they are either

inapplicable to Plaintiffs’ claims or because Chiquita has already conceded that they do not

15 The laws of New Jersey, where Chiquita is incorporated, and North Carolina, where it is currently headquartered, are similar. See N.J. Stat. Ann. §§ 2A:49A-19 to -20; N.C. Gen. Stat. §§ 1C-1853(a), 1C-1856(a).


24

apply. Fla. Laws § 55.605(1)-(2). The only conceivable ground that Chiquita could invoke is

that the judgment was procured by fraud. Id.16

None of the cases cited by Plaintiffs support their argument. In McLane v. Marriott Int’l,

Inc., the court held only that the judgment-enforceability factor “strongly weigh[e]d in favor of

dismissal” because the defendant had stipulated to satisfying a foreign judgment. 960 F. Supp.

2d 1351, 1360 (S.D. Fla. 2013). The court did not suggest that the defendant was required to

make this stipulation, or that the FNC motion would have been denied absent the stipulation. In

Carijano v. Occidental Petroleum Corp., the court held it may be difficult for the plaintiff to

enforce a Peruvian judgment because the defendants’ expert “presented compelling evidence of

disorder in the Peruvian judiciary.” 643 F.3d 1216, 1232 (9th Cir. 2011). Given that the

defendant could persuasively “attack any Peruvian judgment on due process grounds,” the court

concluded that this private-interest factor weighed against dismissal. Id. Unlike that case,

Chiquita has argued that Colombian judicial proceedings comport with due process. And, in

Lexington Ins. Co. v. Forrest, the court’s FNC analysis contains only one sentence addressing

judgment enforceability, and it treats the factor as irrelevant because the assets at issue were

located in three countries, and thus separate enforcement proceedings would be necessary

regardless of where the claims were tried. 263 F. Supp. 2d 986, 1001 (E.D. Pa. 2003).17

Plaintiffs repeatedly discuss the Chevron “fiasco” to show how difficult it is to enforce a

foreign judgment. (Opp. 14-16.) But that case only proves the point: the Ecuadorian judgment

16 While a Colombian judgment could be challenged if Chiquita does not receive timely notice of the lawsuit in Colombia, there is no reason to believe this will happen. And, contrary to Plaintiffs’ assertion, given its FNC arguments, Chiquita cannot argue in a future enforcement proceeding that the entire Colombian judiciary is corrupt or biased. See Zedner v. United States,547 U.S. 489, 504 (2006) (discussing the doctrine of judicial estoppel).17 Plaintiffs ignore Lexington’s FNC discussion and instead cite only the portion of the court’s opinion addressing personal jurisdiction. (See Opp. 13.)


25

there was secured through bribery and fraud by plaintiffs’ counsel. Chevron Corp. v. Donziger,

974 F. Supp. 2d 362, 383-86, 389-90, 511-34, 644 (S.D.N.Y. 2014). Plaintiffs need not fear a

“replay” of the Chevron “fiasco” here so long as they do not engage in similar misconduct.

For the same reason, Plaintiffs’ demand that Chiquita “waive all defenses to

enforcement” of a Colombian judgment and “stipulate to satisfy any” such judgment is improper.

(Opp. 43.) Such a waiver and stipulation would do no more than preclude Chiquita from

challenging a Colombian judgment obtained by fraud—and it would thus invite the very type of

misconduct that took place in Chevron. A stipulation on enforcement is thus neither appropriate

nor necessary here. See In re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 809

F.2d 195, 205 (2d Cir. 1987) (concluding that it was error to require the parties to stipulate to the

enforcement of an Indian judgment in part because N.Y. law on the recognition of foreign-

country judgments “fully served” that purpose).

Judgment enforceability concerns are inherently speculative because they depend on the

future outcome of the litigation and the parties’ responses to it. In contrast, the costs and burdens

of litigating these cases in the U.S. are substantial and certain. Because Plaintiffs’ concerns

about speculative enforcement problems do not outweigh the certain costs, burdens, and

inconvenience of litigating these cases in the U.S., the Court should grant Chiquita’s motion.18

III. The Public Interest Factors Also Support Dismissal.

A. Colombia Unquestionably Has a Greater Interest in this Litigation.

Plaintiffs concede that Colombia has a “substantial” interest in the litigation, but they

nevertheless contend that Chiquita has overstated Colombia’s interest. (Opp. 35.) In making

18 Plaintiffs also urge the Court to require Chiquita to pay “at least $100 million in an escrow account.” (Opp. 43.) Plaintiffs cite no authority to support this stipulation. Nor do they offer any good reason why Chiquita should essentially stipulate to liability before any claim is tried.


26

this argument, however, Plaintiffs ignore Colombia’s greater interest: providing justice for

injuries suffered by its own citizens on its own soil. See, e.g., Tazoe, 631 F.3d at 1334 (“a

sovereign has a very strong interest when its citizens are allegedly victims and the injury occurs

on home soil”); Gilbert, 330 U.S. at 509 (“There is a local interest in having localized

controversies decided at home.”). Plaintiffs also give little weight to the fact that Colombia has

made a national priority in recent years of addressing its internal conflict and the plight of its

victims. (Shifter Decl. ¶ 35; Tamayo Decl. ¶¶ 62-67.)

Plaintiffs also overstate the interest of the United States. Plaintiffs point to their

remaining TVPA claims as evidence of the U.S. interest at stake (Opp. 34), but the Eleventh

Circuit has rejected the notion that those claims make U.S. interests superior to those of a foreign

country when the dispute—as here—is “quintessentially” foreign. Aldana, 578 F.3d at 1298-99.

Indeed, the TVPA conditions a foreign plaintiff’s right to sue on exhausting remedies abroad.

TVPA, § 2(b); (see Ds’ Consolidated Mot. to Dismiss 14 (D.E. 735).) Whatever interests the

United States had on these matters were vindicated in its criminal proceeding against Chiquita,

and “the incremental deterrence that would be gained if this trial were held in an American court

is likely to be insignificant.” Piper Aircraft, 454 U.S. at 260.

B. Colombian Courts Are Better Suited to Interpret Colombian Law.

If these cases are litigated here, U.S. courts and juries will have to apply Colombian law,

which governs all remaining claims against Chiquita and claims against the Individual

Defendants.19 Colombian “courts are the best equipped to interpret and apply their laws,”

Paolicelli, 289 F. App’x at 391, a “very important factor” that weighs in favor of FNC

19 In a footnote, plaintiffs ask this Court to reconsider its dismissal of all U.S. state-law claims (Opp. 40 n.20), but the Court already denied reconsideration on that issue (D.E. 516).


27

dismissal, see Ford, 319 F.3d at 1310. The TVPA claims against Individual Defendants—which

Plaintiffs strategically added in an attempt to avoid dismissal after Chiquita’s first FNC

motion—does not dictate a different result. See, e.g., Aldana, 578 F.3d at 1286 (affirming FNC

dismissal of TVPA claims).

C. Litigating Plaintiffs’ Claims in the U.S. Would Be Unduly Burdensome on U.S. Courts and Juries.

Plaintiffs argue that claims premised on Colombian injuries suffered by Colombians in

Colombia at the hands of Colombians should remain in the U.S. because trying them in their

home country would be too burdensome for courts there. (Opp. 35-36.) Under governing law,

however, the focus is on the burden imposed on U.S. judges and juries if they must decide

foreign-centered disputes, pursuant to foreign law, where much of the evidence must be

translated. See, e.g., Piper Aircraft, 454 U.S. at 260 (“The American interest in this accident is

simply not sufficient to justify the enormous commitment of judicial time and resources that

would inevitably be required if the case were to be tried here.”); Tazoe, 631 F.3d at 1334 (noting

the “unnecessary burden on local jurors who will be compelled to serve for lengthy trials that

have little or no connection to this forum”); Son, 2008 WL 4186979, at *10 (“Jury duty is a

burden that ought not to be imposed upon the people of a community which has no relation to the

litigation.”). As these cases make clear, judges and juries in Florida, New York, New Jersey, and

Washington, D.C. should not have to decide thousands of claims brought by Colombians under

Colombian law for violent acts in Colombia.

Plaintiffs contend that their claims can be resolved more efficiently in the U.S. because

the New Jersey suit is a putative class action. (Opp. 36.) But there is virtually no chance that a

class could be certified here. (FNC Mot. 35.) Personal injury cases do not proceed as class

actions because individualized issues—including injury and causation—predominate over any


28

common issues. See, e.g., Amchem Products, Inc. v. Windsor, 521 U.S. 591, 622-25 (1997); (see

also Op. & Order, No. 07-cv-60821-KAM, at 7 (D.E. 26) (noting that “specific factual claims of

these Plaintiffs will predominate, and individual issues of causation will pervade the litigation”)).

And even if a class were certified, it would not simplify proceedings because the rest of the

6,000 Plaintiffs here have never suggested that they would dismiss their claims if a class were

certified, rather than opt out of the class and continue to litigate their individual claims.

Plaintiffs also contend that, even if a class is not certified, their claims can be resolved

more efficiently in the U.S. by conducting “bellwether” trials. (Opp. 36.) This argument is

illusory. Regardless of whether the cases are tried in the U.S. or Colombia, Chiquita may litigate

each claim to judgment, or it can settle the claims after (or before) a few claims are tried.

Plaintiffs also overstate the burden of proceeding in Colombia based on their mistaken

view that their claims cannot be consolidated there. (Id. at 37.) As Plaintiffs’ own witness

acknowledged, claims may be consolidated in Colombia if they “arise from the same cause,”

“have the same objective,” or “specifically make use of the same evidence.” (Arrubla Decl.

¶ 18.) Plaintiffs’ claims clearly satisfy this requirement, as they have repeatedly stated that they

will “make use of the same evidence” regarding Banadex’s extortion payments to paramilitaries.

(Second Tamayo Decl. ¶¶ 7-12.)20 As a result, if they litigate in Colombia, Plaintiffs may file

their claims separately or jointly, before one or more courts—both options are available to them

under Colombian law. (Id. ¶¶ 5-15.) Evidence taken or submitted in one case may be

transferred to another if Plaintiffs sue in multiple Colombian courts. (Id. ¶¶ 16, 32.) If they

20 Arrubla states that the cases are unlikely to be consolidated based on his view that each plaintiff is suing about individual attacks. (Arrubla Decl. ¶ 18.) But the claims can still be consolidated because they “make use of the same evidence” regarding Chiquita’s payments to paramilitaries. (Second Tamayo Decl. ¶¶ 4-15.)


29

chose to sue in one Colombian court, the assigned judge would evaluate all evidence and decide

all issues in one ruling. (Id. ¶¶ 5, 8.)

Plaintiffs accuse Chiquita of being “wrong” about whether “Colombian courts can handle

foreign evidence.” (Opp. 37.) But their own witness agreed with Chiquita on this point by

stating only that, although Colombian courts can handle foreign evidence, translation issues

would pose “a series of difficulties.” (Arrubla Decl. ¶ 21.) Contrary to Plaintiffs’ view,

Colombian law would allow the parties to provide translations of non-Spanish documents so

long as they are prepared by one of the many certified translators available in Colombia for this

purpose. (Second Tamayo Decl. ¶¶ 18-19.) Colombia is therefore not meaningfully different

from the United States with regard to translating documents. The only difference is that far more

translations would be required if the cases proceeded in the United States.

Plaintiffs also ask the Court to take a “dim view” of the timing of Chiquita’s FNC

motion. (Opp. 42.) But the fact that Chiquita litigated threshold jurisdictional issues before

moving to dismiss the claims on FNC grounds does not affect the “public-interest” calculation.

The Eleventh Circuit has found FNC dismissal warranted even in cases where—unlike here—

extensive discovery has taken place. See Tazoe, 631 F.3d at 1333-34 (rejecting plaintiffs’

argument that the defendants were “gaming . . . the system” by having engaged in “extensive

merits discovery” involving “over one million pages” of documents and “145 depositions”).

In short, Plaintiffs could litigate in one or a few Colombian courts at their discretion;

Colombian law provides specific procedures to access the relatively small pool of evidence and

witnesses found outside Colombia; translations of the relatively few English-language

documents could be easily prepared by one of numerous Colombian translators certified for this

purpose; testimony taken abroad would be given full weight; the testimony of Plaintiffs’ relatives


30

would not necessarily be considered “suspect”; and witnesses could be identified and called for

testimony at various times, even before the litigation commences. (Second Tamayo Decl. ¶¶ 5-

32.) Given the superior interests of Colombia in the subject matter of this litigation, its courts

should bear the administrative burdens of litigating these cases.

D. Litigating Plaintiffs’ Claims in the U.S. Would Raise Comity Concerns.

Plaintiffs contend that comity concerns favor denying Chiquita’s motion because—if

Chiquita loses in Colombia, refuses to satisfy the judgment, and then challenges enforcement of

the judgment in U.S. courts—the U.S. court could be put in the position of casting aspersions on

the conduct of the foreign proceeding. (Opp. 39-40.) Plaintiffs have it backwards. Only their

arguments in opposition to this motion, which ask this Court to rule that the Colombian judicial

system is so corrupt, so slow, and so dangerous that it cannot fairly adjudicate claims brought by

Colombian citizens under Colombian law, raise comity concerns. If the Court were to agree with

these arguments, its ruling would be an affront to the dignity and sovereignty of Colombia. See

Aldana, 578 F.3d at 1299; Leon, 251 F.3d at 1312. By contrast, if Chiquita were to challenge

enforceability of a Colombian judgment down the road on the basis of Plaintiffs’ fraud, that

would call into question the conduct of only a single party in a single proceeding by a single

judge—not the adequacy and competence of the Colombian judicial system as a whole. See

Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1519 (11th Cir. 1994) (comity is not

implicated by challenging a foreign decision “rendered by fraud”).

CONCLUSION

For the foregoing reasons, the Court should dismiss all claims for forum non conveniens

to the extent they are not otherwise time-barred or inadequate for failure to state a claim.


31

Dated: August 21, 2015 Respectfully submitted,

John E. HallMark W. MosierShankar DuraiswamyJosé E. ArveloCOVINGTON & BURLING LLPOne CityCenter850 Tenth Street NWWashington, D.C. 20001Telephone: (202) 662-6000Facsimile: (202) 662-6291

Jonathan M. SperlingCOVINGTON & BURLING LLPThe New York Times Building620 Eighth AvenueNew York, NY 10018Telephone: (212) 841-1000Facsimile: (212) 841-1010

/s/ James C. Gavigan, Jr._____________ Sidney A. Stubbs (Fla. Bar No. 095596)[email protected] W. Wilkins (Fla. Bar No. 578721)[email protected] C. Gavigan, Jr. (Fla. Bar No. 0085909)[email protected], FOSTER, JOHNSTON & STUBBS, P.A.505 South Flagler Drive, Suite 1100West Palm Beach, Florida 33401Telephone: (561) 659-3000Facsimile: (561) 650-5300

Counsel for Chiquita Brands International, Inc. and Chiquita Fresh North America, LLC


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed the foregoing document with the Clerk of

the Court using CM/ECF on this 21st day of August, 2015. I also certify that the foregoing

document is being served this day on all counsel of record registered to receive electronic

Notices of Electronic Filing generated by CM/ECF, and in accordance with the Court’s First

Case Management Order (“CMO”) and the June 10, 2008 Joint Counsel List filed in accordance

with the CMO.

By: /s/ James C. Gavigan, Jr.Fla. Bar No. [email protected]


chiquita's reply to motion to dismiss for forum non conveniens

Documents

litigating plaintiffs

plaintiffs challenges

plaintiffs concern

adequacy of colombian

colombian judgment

colombian law

chiquitas evidence

kam document