Case 0:08-md-01916-KAM Document 2210 Entered on FLSD Docket 12/10/2018 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)

__________________________________________/

Plaintiffs' Unopposed Motion to Include Three Test Cases

from this Complaint in the Summary Judgment Agenda

Come now the Plaintiffs, Does 1-976, to move the Court to include three test cases from

this complaint in the summary judgment agenda set forth in the Global Scheduling Order, DE

2122. Counsel proposes that the Court decide three of these cases, along with the 12 Florida

bellwethers, for a total of 15. I conferred with counsel for the other parties prior to filing this

motion. Jack Scarola, representing the other plaintiffs' cousel, states that they take no position on

the motion. See Exhibit 1, attached hereto. Counsel for Chiquita, and for the individaul

defendants, haven't replied after three days. Id.

The schedule for this case contemplates that twelve cases, from a pool of 56, will be

decided in summary judgment, and that the parties will jointly select them. Section IV of the

Amended Global Scheduling Order ("GSO") states that:

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IV. BELLWETHER TRIALS

Two consolidated Bellwether Trials (six cases per trial not including Paul Wolf’s cases)
shall be conducted at the U.S. Courthouse, 701 Clematis St., Courtroom 4, West Palm
Beach Florida on the following dates and shall adhere to the following pretrial schedules:

Note: The bellwether trial schedule outlined below is without prejudice for any party to
seek remand of a case for trial to its original forum at the conclusion of pretrial proceedings
on dispositive motions. All previous rulings on remand requests are reaffirmed here,
without prejudice for any Plaintiffs to submit motions for remand at the conclusion of
proceedings on dispositive motions (including Plaintiffs in Does 1-976, who have recently
reasserted their motion for remand).

DE 2122. In addition, in Section II (8) of the GSO, the Court said:

If the parties mutually agree on another formula, the Court will entertain a motion for
reconsideration of this aspect of the scheduling order. (Note: The Court will not consider a
summary judgment agenda comprised of 56 individual cases as initially proposed by
counsel).

Id. I'm still unable to come to any agreement with other plaintiffs counsel to include any of my

cases in this pool. See Exhibit 1. I had asked for a separate trial in this Court, which neither

Chiquita nor the Court opposed in the status conference held on March 15, 2018, but the other

plaintiffs' counsel subsequently stated that they were opposed. Two weeks later, on April 2, 2018,

Does 1-976 reasserted their right to remand to the District Court for the District of Columbia under

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). DE 1871. The

Court denied the motion without prejudice, and stated in the Amended GSO that counsel may

refile the motion to remand once dispositive motions have been decided.1 See DE 2122 at § IV

Note.

1
The arguments made herein apply equally to Motions in Limine and Jury Instructions. Should
Chiquita be allowed to argue the duress defense in one court but not another? Should the jury
instructions, based on Colombian law, be different in each court? The instant motion leaves these
questions for another day.
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I. District Courts in Florida and the District of Columbia should apply the same
summary judgment standards based on the same interpretations of Colombian laws.

If this case is remanded without any guidance, the District Court for the District of

Columbia may make independent determinations of novel issues of choice of laws and

interpretations of Colombian law. A recent filing by the Defendant provides a good illustration.

In his expert report, Dr. Santos Ballesteros makes arguments about concurrent causes by joint

tortfeasors, urging the Court to apply the rigid "but-for" test and only find liability for the

"dominant" cause. 2 DE 2203-1 at 10-11. To support his position, Dr. Santos provides the case

numbers of several Colombian Supreme Court cases, one of which is unpublished.3 See id. at 11

n 19. The broader question is how deeply the Court wants to wade into Colombian case law.

Under the choice of laws analysis in the District of Columbia, the court will apply forum law unless

there is a "real conflict" with foreign law. Florida uses a different test. To make matters worse,

other cases were transferred to the SDFL from OH, NY and NJ, which apply different choice of

laws methods. Therefore, the Court must not only decide which Colombian laws apply, but at

what point to start applying Colombian law.

It would be inequitable to thousands of plaintiffs if only one court found, for example, that

only the "dominant" tortfeasor, the AUC, could be held liable. Another issue is that each of Does

1-976 represents the interests of an estate, multiplying the total damages by approximately a factor

of four, depending on the number of heirs. Our motion to substitute a daughter for her recently-

deceased mother, Motion DE 2124, Order DE 2179, is a good example, because the deceased

2
One counterargument is that Chiquita's money, and the AUC, are not independent causes. Dr.
Santos also omits any mention of civil conspiracy, aiding and abetting, joint tortfeasors, or joint
and several liability in Colombian law.
3
In our motion to Substitute Party, we provided the complete text of the court decision we relied
on as an exhibit. DE 2124-3. The Court denied the motion without prejudice, with an instruction
to resubmit it with official translations of Colombian laws. DE 2179.
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plaintiff has eight living children. Id. The parties have only just begun briefing Colombian law,

and have no point of reference for how the Court will analyze these kinds of issues.

II. Does 1-976 have a different trial strategy and should be allowed to participate in
summary judgment proceedings if they are to be bound by the precedent set by this
Court.

As explained in my email to counsel, attached as Exhibit 1, if my cases remain in this Court

through summary judgment, but are not considered, I will not have the opportunity to argue the

summary judgment standards, yet my cases may still be bound by the precedent set by this Court.

Each of my six test cases is supported by the expert testimony of a retired FBI agent who worked

on the criminal case against Chiquita (07-cr-055 in DC), and the expert testimony of two

Colombian attorneys who will testify about damages. In contrast, the other plaintiffs' expert

reports only pertain to common issues of Chiquita's overall liability, and make no mention of any

individual cases. The reality is that the Colombian police were ineffective in investigating or

solving most of these crimes. Police reports and most of the proceedings of the Commission of

Justice and Peace are not legally available to the Plaintiffs, and the Court denied our motion for a

Hague Convention Request for this information. DE 1546.

Manuel Ortega, who was to be the first witness for the plaintiffs in the Julin case, has met

with the plaintiffs in our six test cases, and explains in his report the facts of each case suggesting

that the AUC was responsible. This includes factors such as the use of motorcycles and other

modus operandi, the geography and regional control of the AUC, and the AUC's attitude towards

members of the Union Patriotica and labor unions. Mr. Ortega will testify that, more likely than

not, the AUC committed each of these six murders. In contrast, the other plaintiffs' counsel have

no comparable expert, and I don't believe most of them have done a good job vetting their cases.

Some have cases from remote parts of the country, involving different blocks of the AUC which

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were not paid by Chiquita. The Court may determine the outer limits of forseeability in summary

judgment.

Without the support of expert testimony, the plaintiffs will be unable to put their best foot

forward, and the summary judgment standards will be determined without any reference to this

critical expert testimony. The Court might find that no one knows who committed these murders,

and that the plaintiffs can't meet their burden under Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986). To prove most of these cases, the Plaintiffs must rely on circumstantial evidence such as

homicide statistics, the geographic scope of the AUC's control, and their motives and modus

operandi. The plaintiffs need only prove their cases by a preponderance of evidence, that the AUC

"probably" committed the murders.

Alternatively, the Court may simply schedule a separate trial for these three, or all six of

my test cases.4 However, unlike the instant motion, this is opposed by the other plaintiffs' counsel.

Also, there is still the threat of class action attorneys taking over this case, despite their having few

real clients of their own who can appear in Florida. Until Does 1-976 can escape this threat, their

position will be to request remand to another court whenever possible.

Conclusion

For the foregoing reasons, the Court should decide three of the test cases from the Does 1-

976 complaint in summary judgment, to ensure that unform legal standards apply to cases tried in

other districts. In the alternative, this case shouldn't stay in this Court after the time this Court's

orders apply to it, and should be remanded now.

4
My other three bellwether cases were picked by Chiquita, and are from 1995-1996, and for
reasons of statutes of limitations, only involve claims against individual defendants. I only have
six instead of eight, because some were denied visas, or were unable to travel, and Chiquita
wouldn't agree to replace them.
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Case 0:08-md-01916-KAM Document 2210 Entered on FLSD Docket 12/10/2018 Page 6 of 7

Respectfully submittted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
PO Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com

December 10, 2018

Certificate of Service

I hereby certify that on this 10th day of December, 2018, I filed the foregoing document
with the clerk of the court using the Court's Electronic Case Filing (ECF) system, which will send
notices to all persons entitled to receive them.

/s/ Paul Wolf

__________________
Paul Wolf

Certificate of Conferral

I hereby certify that I tried to confer with counsel for the defendants and for the other
plaintiffs as shown in Exhibit 1. After three days, none have expressed any opinion about it.

/s/ Paul Wolf

__________________
Paul Wolf

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Case 0:08-md-01916-KAM Document 2210 Entered on FLSD Docket 12/10/2018 Page 7 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)

__________________________________________/

Proposed Order

In consideration of Plaintiffs' Does 1-976 Unopposed Motion to Include Three Test Cases

from this Complaint in the Summary Judgment Agenda, all exhibits thereto, and all responses,

oppositions and replies thereto, it is hereby

ORDERED that the Plaintiffs Motion is GRANTED. The Court will consider in summary

judgment the three test cases from the Does 1-976 complaint.

Done this _________ day of _____________, 2018.

____________________
U.S. District Judge