Case 0:08-md-01916-KAM Document 1114 Entered on FLSD Docket 06/06/2016 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-MD-01916-KAM
IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.
ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION
This Document Relates to:
ATS ACTIONS
10-80652-CIV-MARRA
11-80404-CIV-MARRA
11-80405-CIV-MARRA
_____________________________________/
PLAINTIFFS' DOES 1-976, 1-677 AND 1-254 MOTION FOR
EXPEDITED DISCOVERY OF IDENTITIES OF INDIVIDUALS A-J
Pursuant to Federal Rule of Civil Procedure 26(d)(1), the Plaintiffs in the abovecaptioned matter hereby move the Court for an Order for Defendant Chiquita Brands
International, Inc., to produce the names and contact information for the persons
identified as "Individuals A-J" in the underlying criminal case, 07-CR-055. (D.D.C.)
Good Cause exists to grant the Motion, as detailed in the following Points and
Authorities. The Defendant, Chiquita Brands International, Inc., opposes the Motion. A
Proposed Order is attached.
Background
In the Court's Order Granting in Part and Denying in Part Defendants' Joint
Consolidated Motion to Dismiss of June 1, 2016, D.E. 267 (hereinafter "June 1 Order"),
the Court indicated that it would file a suggestion of remand with the JPML, that the

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Torture Victim Protection Act claims of the "D.C. Plaintiffs and N.J. Plaintiffs" (cases
08-CV-80465-MARRA and 08-CV-80421-MARRA) be remanded back to the District
Courts of the District of Columbia and New Jersey, respectively. D.E. 267 at 38. The
cases are to be remanded so the transferee courts may determine whether they have
personal jurisdiction over the "individual defendants" in those cases. Id. at 35-36. The
Court analyzed the allegations made by various groups of plaintiffs in the MDL against
nine named individuals, two of whom were dismissed.1 Id. at 8-15.
The concept outlined in the first complaint in the MDL was to sue both the
corporate entity, Chiquita Brands International, Inc., and Individuals A, B, C, D, E, F, G,
H, I and J (hereinafter "Individuals A-J") who were identified this way in the underlying
Criminal Case, No. 07-CV-055. See Exhibit 1, Factual Proffer at 3-4; Exhibit 2, Original
Does 1-144 Complaint at 37-38, attached hereto. The "Does 1-144" case (08-CV-80465MARRA), which the Court is suggesting be remanded to the District of Columbia, is
based on the original complaint that I wrote, and still contains the same Individuals A - J
as defendants, defined the same way they have always been. In his Third Amended
Complaint, Mr. Collingsworth attempts to identify Individuals A-D, but leaves the
identities of Individuals E-J as fictitious Doe Defendants.

See Third Amended

Complaint, D.E. 162 at 994-997, and attached hereto as Exhibit 3.2

Other groups

apparently had different opinions of who could be identified and sued.3 Assuming that
Notably, the dismissed defendants were not alleged to be among Individuals A-J.
See Exhibit 3 at 997: "2046. Plaintiffs have been unable to match some Chiquita employees, executives,
and directors to the pseudonyms in the factual proffer, but have nonetheless identified certain ones who
actively participated in Chiquitas criminal and tortious conduct. Some of these individuals may very well
be David Does 5-10, but Plaintiffs cannot confirm this until after discovery from the Defendants."
3 The other plaintiff groups chose varying sets of individual defendants. The complaints by Boies Schiller
& Flexner LLP and Searcy Denny Scarola Barnhardt & Shipley named Keith Lindner and Cyrus Friedheim
as defendants. Mr. Reiter's New York complaint named Cyrus Freidheim, Roderick Hills, and Robert
Olson. The New Jersey complaint named six individuals: Cyrus Freidheim, Roderick Hills, Robert Olson,
Robert Kistinger, Charles Keiser, and William Tsacalis. The Conrad & Scherer complaint named eight:
1
2

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Mr. Collingsworth is right about Individuals A-D,4 the Plaintiffs are still ignorant of the
names of the remaining six individuals, who although unknown, are ascertainable.
Chiquita knows who they are, and the individuals should know they are being sued.5
The Plaintiffs represented herein have not amended their complaints to name any
of the individuals designated as Individuals A-J.6 Their identities are still a matter of
speculation.7 To our knowledge, none have ever been identified in any public court
record, and none have ever admitted that they were one of the individuals in the criminal
case. I invited them to do so in my Opposition to their Consolidated Motion to Dismiss,
but none of the named defendants replied. See Exhibit 5, attached hereto, at 2 ("Mr.
Freidheim neither admits nor denies that he is Individual A."), 5 ("Mr. Olsen neither
admits nor denies that he is Individual C.") and 6 ("Mr. Kistinger neither admits nor
denies that he is Individual D.").
The Court's June 1 Order also held that statutes of limitations were tolled in this
case due to issues of security arising from the Colombian conflict. June 1 Order, D.E. 267
at 21-22. Undersigned counsel has about 1,500 additional cases that may be added at this
point. These cases were generated after the complaints of Does 1-976, Does 1-677 and

Cyrus Freidheim, Roderick Hills, Robert Olson, Robert Kistinger, Charles Keiser, William Tsacalis, Steven
Warshaw, and Fernando Aguirre.
4 At present, the Court and the Plaintiffs can only make assumptions and guess at the identities of
Individuals A-J. However, Chiquita Brands knows their identities to a certainty.
5 Of course, they are still entitled to service of process once their identities have been ascertained.
6 The complaints in the instant cases, of Does 1-976, Does 1-677 and Does 1-254, broadened the number of
Doe Defendants to ten corporate and fifteen individual Doe Defendants. See e.g. Complaint in Does 1-254,
Case No. 11-80405-CIV-MARRA, attached hereto as Exhibit 4.
7 In addition, we had a strong disincentive to amend our complaints at the time that the other counsel did.
The amendment of complaints was not only to name defendants and add more plaintiffs, but was also part
of a more complex agreement among the other plaintiffs' counsel, which among other things said that the
parties would file all of their existing claims and jointly represent any new cases going forward, would
agree to confidentiality, and so on. We did not believe that we were obliged to add our new cases or to
identify Individuals A-J at that time, and wanted the record to be clear that we were not agreeing with the
plans of the group. By that time, I had also made clear my objection to the witness payments, and the
confidentiality issue had extra significance.

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Does 1-254 were filed. Plaintiffs will be making a separate motion for leave to amend
these three complaints, which pertain to different categories of plaintiffs, to add all of our
unfiled claims. These amended complaints should also identify all ten individual
defendants by name, and be filed in a court with personal jurisdiction over them, in order
to avoid transfers among courts and piecemeal consideration of the issue of personal
jurisdiction.
ARGUMENT
A.

Good Cause exists to allow discovery of the identities of Individuals A-J.

There has been no Rule 26(f) conference in either the cases against Chiquita

Brands, International Inc., or against the "individual defendants." Plaintiffs request must
therefore be considered under Rule 26(d)(1), which generally prohibits parties from
seeking discovery after an action has been filed, but before a Rule 26(f) conference has
occurred. Fed. R. Civ. P. 26(d)(1). A party may take expedited discovery under these
circumstances upon a showing of good cause. TracFone Wireless, Inc. v. Holden
Property Services, LLC, 299 F.R.D. 692, 694 (S.D. Fla. 2004). To meet that burden,
plaintiffs must make an affirmative factual showing - vague and conclusory assertions
will not do. Barbieri v. Wells Fargo & Co., No. CIV.A. 09-3196, 2012 WL 3089373, at
*4 (E.D. Pa. July 27, 2012) (denying Plaintiffs request for expedited discovery when it
was vague, ambiguous and unlimited in scope and supported by nothing but broad
generalities . . . and bald legal conclusions).

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1.

The District Court for the District of Columbia cannot correctly

decide the personal jurisdiction issue until the defendants have been
identified.

Good Cause exists to order Chiquita Brands to disclose the identities of

Individuals A-J at this time. Chiquita knows who these defendants are, the Department
of Justice knows who they are, and the individuals themselves know who they are. It is
only the Plaintiffs and the Court who have to speculate and make assumptions. As the
Court's Order is written, the personal jurisdiction question remanded to the District Court
for the District of Columbia would be decided based on only four of the ten individuals
being sued, and on several other individuals, added by other counsel, whose relation to
the DOJ investigation is unknown. However, there was nothing ambiguous about my, or
Mr. Collingsworth's identification of Individuals A-J as defendants in the first-filed
complaint, or in case 08-CV-80465-MARRA which the Court intends to remand.
2.

Identifying Individuals A-J is in the interest of justice.

Identifying Individuals A-J will not only allow the D.C. District Court to make a
correct determination on the issue of personal jurisdiction. It will also allow the case to
progress properly against the individuals most likely to be liable.

The

reason

these

individuals were chosen as defendants is that the Proffer in the criminal case is based
entirely on their conduct. See Exhibit 1. As a group, they committed the acts upon which
the prosecution - and guilty plea - were based.

Anyone else participating in the

conspiracy wasn't significant enough to be named. See United States v. Nearing, 252 F.
223, 231 (S.D.N.Y. 1918) ("Now, there is no distinction in essence between the civil and
criminal liability of corporations, based on the element of intent or wrongful purpose.
Each is merely an imputation to the corporation of the mental conditions of its agents.")

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(Learned Hand). The plaintiffs should not have to guess at their identities, when Chiquita
knows, and the individuals themselves know they are being sued under fictitious Doe
designations.
3.

Identifying Individuals A-J is in the interest of judicial economy.

Putting off the question of the identities of Individuals A-J, who are clearly
defendants in this case, will only impede its progress, and may result in the piecemeal
litigation of the personal jurisdiction issue. While the Court appears skeptical that the
District of Columbia would have jurisdiction, this is still an open question. For example,
jurisdiction in a conspiracy case can be based on an act in furtherance of the conspiracy
occurring within the jurisdiction. Under District of Columbia law, to establish personal
jurisdiction on the basis of a theory of conspiracy jurisdiction, courts require a prima
facie showing of (1) a conspiracy, (2) in which the defendant participated, and (3) a coconspirator's overt act within the forum, subject to the long-arm statute and in furtherance
of the conspiracy. Richards v. Duke University, 480 F.Supp.2d 222, 229 (D.D.C. 2007).
For the purpose of personal jurisdiction, the defendant's co-conspirator is deemed to be
his agent. FC Inv. Group LC v. IFX Markets, Ltd., 479 F.Supp.2d 30, 41 (D.D.C. 2007).
Therefore, the act of any co-defendant in the forum counts against them all.
There were arguably two acts in furtherance of the conspiracy that occured in the
District of Columbia. Individual C and Individual I spoke with attorneys in the District
of Columbia office of a national law firm ("outside counsel") about defendant Chiquita's

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ongoing payments to the AUC.8 Exhibit 1 at 55. The second act in the District of
Columbia arguably in furtherance of the conspiracy was a meeting between Individual B,
Individual C, and outside counsel, with officials of the Department of Justice, who
advised Chiquita that the payments were illegal. Exhibit 1 at 62. This could also be
considered in furtherance of the conspiracy, because Chiquita continued paying the AUC
for almost a year after the DOJ meeting occurred.9 Therefore, there is more than a
remote possibility that the District of Columbia could have jurisdiction over one of the
six unknown defendants, such as Individual I, whose identity is unknown.
More generally, it's in the interest of judicial economy to resolve who these
individuals are so that they can be named and served with process. As it is now, these
individuals know they are being sued, but have avoided identifying themselves, hindering
the progress of the case.
Finally, in addition to the instant Motion for Discovery of the Identities of
Individuals A-J, we also intend to file a Motion for Leave to Amend our Complaints in
order to add approximately 1,500 additional cases. This is in light of the Court's ruling in
its June 1st Order on the equitable tolling of the statutes of limitations. These are cases
that were generated subsequent to the filing of the complaints of Does 1-976, Does 1-677
and Does 1-254, who first filed their complaints on March 9, 2010. Until the Court's
ruling on equitable tolling, we were not sure whether the subsequent cases would be
barred by statutes of limitations, and did not want to add any further complexity to the
case. The statute of limitations for the TVPA claims is 10 years, and the statutes of
Chiquita took the unusual step of waiving its attorney-client privilege, and produced to the Department of
Justice its communications with this firm. It is unusual that the Department of Justice would have even
asked for them.
9 According to the alllegations of Does 1-677, Chiquita continued paying the AUC indirectly for several
additional years after that, through its agents Olinsa, SA and Invesmar, SA.
8

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limitations for the Colombian law claims are even longer, so the claims of these plaintiffs
should not be barred either.
In sum, it would be most efficient for us to amend our complaints to add the new
cases, name the ten Individuals A-J, and file First Amended Complaints for each of the
Does 1-976, Does 1-677 and Does 1-254 groups in a court having personal jurisdiction,
and serve process on the individual defendants, than it would be to resolve the issues later
when the identities of Individuals A-J have been established through other discovery.
Conclusion
For the foregoing reasons, the Court should GRANT Plaintiff Does 1-976, Does
1-677, and Does 1-254's Motion for Discovery of the Identities of Individuals A-J, and
order Defendant Chiquita Brands to produce their names and contact information within
three (3) days.
Respectfully submitted,
/s/ Paul Wolf
________________________
Paul Wolf, DC Bar #480285
Attorney for Does 1-144,
1-976, 1-677, 1-254, 1-88
PO Box 46213
Denver CO 80201
(202) 431-6986
June 6, 2016
Certificate of Conferral
I hereby certify that on the 3rd and 4th day of June, 2016, I conferred with
Shankar Duraiswamy, counsel for Defendant Chiquita Brands International, Inc., by
email. Mr. Duraiswamy indicated that Chiquita Brands would not agree to identify
Individuals A-J voluntarily.

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/s/
____________________
Paul Wolf
Certificate of Service
I hereby certify that on the 6th day of June, 2016, I filed the foregoing document
with the clerk of the court through the Court's Electronic Case Filing (ECF) system,
which will send notification to the attorneys of record for all other parties in this
litigation.
/s/
____________________
Paul Wolf