Académique Documents
Professionnel Documents
Culture Documents
DOE, et al.
v.
No. 19-13926-C
Pursuant to Rule 26.1-1(a) of the Eleventh Circuit Rules, counsel for appellee,
held corporation owns 10% or more of Chiquita’s stock. Counsel also certifies that
the following is a complete list of the trial judge, all attorneys, persons, associations
known to Chiquita that have an interest in the outcome of the particular case on
Abrams, Louis D.
Alexander, Lauren
Alsama, Ltd.
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B C Systems, Inc.
Bandy, Kevin M.
Brackman, Lisa J.
Bronson, Ardith M.
Brown, Benjamin D.
Buckley LLP
Carrillo, Arturo
Carter, Melanie
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Chiquita Holding SA
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Chiquita US Corporation
Cioffi, Michael L.
CILPAC Establishment
Dante, Frank A.
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Davenport, Jonathan
De Leon, John
Doe 7, Jane*1
Doe 7, John*
Durango, Pastora
EarthRights International
Freidheim, Cyrus
1
Jane Doe 7, John Doe 7, Juana Doe 11, Minor Doe 11A, Jane Doe 46, the unnamed
children of Jose Lopez 339, and Juana Perez 43A were proceeding in the district
court under pseudonym until the district court order that required each to proceed
under his or her actual name. On July 10, 2019, this Court stayed enforcement of the
district court’s order precluding continued use of pseudonym by these Appellants
pending resolution of the interlocutory appeal in Case No. 19-11494, which has been
fully briefed. The real name of each anonymous Appellant will be furnished if
directed by this Court. The pseudonymous Appellants are denoted herein by an
asterisk.
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Fryszman, Agnieszka M.
Golembe, Stephen
Graziano, MacKennan
Herz, Richard
Hoffman, Paul L.
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Jones, R. Stanton
Jost-Creegan, Kelsey
Keiser, Charles
Kistinger, Robert
Krakoff, David S.
Krezalek, Martin S.
Kroeger, Leslie M.
Leopold, Theodore J.
Lindner, Keith
Marcus, Bradley A.
Marra, Kenneth A.
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McCawley, Sigrid
Melitsky, Anton
Mitchell, Douglass
Murphy, Melissa F.
Neiman, Jeffrey A.
Olson, Robert
Orlacchio, Adam V.
Portnoi, Dimitri D.
Powers, Sean
Preheim, Elissa J.
Reiter, Jonathan
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Scarola, John
Silbert, Earl
Soto, Edward
Stewart, Thomas H.
Tsacalis, William
TransFRESH Corporation
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Vahlsing, Marissa
Wayne, Charles B.
Wichmann, William J.
Wolf, Paul
Wolosky, Lee
Yanez, Anthony
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Frank A. Dante
Melissa F. Murphy
BLANK ROME LLP
One Logan Square
130 N. 18th Street
Philadelphia, PA 19103
Tel: (215) 569-5645/5334
Email: dante@blankrome.com
mfmurphy@blankrome.com
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INTRODUCTION
378 and Does 840’s Opposition to Appellee’s [sic] Motion to Consolidate Appeals,
and Cross-Motion to Vacate and Remand to the District of Columbia (the “Cross-
Motion”). See Fed. R. App. 27(a)(3)(B).2 The Cross-Motion requests relief beyond
the Court’s statutory authority to grant, raises issues beyond the scope of their
appeal, seeks relief for parties below not before the Court in this appeal, and
improperly argues the merits of this appeal. The Cross-Motion is utterly devoid of
The multidistrict litigation (“MDL”) below arose out of the drug war and
internal conflict in Colombia during the 1990s and early 2000s. Thousands of
various district courts in this country and alleged that their decedents had died at the
2
The Cross-Motion responds to the Joint Motion of Appellants and Appellees to
Adopt Consolidated Briefing Schedule and Increase Word Limit for Consolidated
Briefs (“Joint Motion”), which was “RETURNED UNFILED . . . because the
briefing schedule has not yet issued.” (See Clerk’s Letter dated November 13, 2019
entered on docket). Because the Joint Motion was returned unfiled, the portion of
the Cross-Motion that opposes the request for consolidated of briefs and increased
word limits of briefs is not yet ripe for consideration and, therefore, is not addressed
herein.
1
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group that demobilized in 2006. Rather than sue any member of the AUC alleged to
have killed their decedents, all plaintiffs instead sued Chiquita Brands International,
Inc. (“Chiquita”), alleging that payments extorted from Chiquita by the AUC
enabled AUC operatives to kill their decedents. Doe 378 and Doe 840 sued Chiquita
in the district court below. After years of motion practice on the pleadings including
a previous appeal to this Court (No. 12-14898), the plaintiffs’ claims were pared
selection process, the claims of Doe 378 and Doe 840 were among those selected by
the parties for full discovery procedures and later for summary judgment briefing.
(Docket Entry 2551, copy attached as Exhibit B). The district court concluded based
3
Doe 378 is no longer proceeding under pseudonym but under her actual name,
Maria Emilse Villegas Eschavarria (See Docket Entry 2435, copy attached as Exhibit
A). Because the Cross-Motion refers to her as Doe 378, for the Court’s ease of
reference only, she is referred to by that former pseudonym herein. Doe 840 died
more than a year ago and a proper party (whom the Cross-Motion contends is Ludy
Rivas Borja) has never been substituted. Her appeal, therefore, is not properly before
the Court and will be addressed in a separate filing. Again, for ease of reference and
clarity only, she is referred to herein as Doe 840. Finally, for ease of reference only,
Doe 378 and Doe 840 are referred to herein as “Appellants.”
2
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upon the evidentiary record that no reasonable jury could find that an AUC operative
killed any plaintiff’s decedent, including Doe 378’s decedent and Doe 840’s
decedent. (Id.). Because the ruling adjudicated fewer than all the claims of all the
parties, the district court considered and found no just reason for delay and entered
the Partial Final Judgment Pursuant to Rule 54(b) in Favor of All Defendants on
ARGUMENT
hand.4 Appellants seek affirmative relief that is beyond the Court’s statutory
authority to grant. The Appellants’ requested relief is essentially that this Court not
decide the merits of their Rule 54(b) appeal in this MDL litigation but instead create
a means for the transferor court, the District of Columbia District Court (or its
appellate court, the District of Columbia Circuit Court), to decide the merits of
4
The Cross-Motion is a mishmash of non sequiturs, untenable grounds, improper
arguments on the merits of the Rule 54(b) final partial summary judgment on appeal,
and citations to irrelevant legal authorities. The Court would be justified upon its
own motion to impose sanctions upon Appellants’ counsel for filing the Cross-
Motion which is “without legal merit and cannot be supported by a reasonable
argument for an extension, modification, or reversal of existing law, or the
establishment of new law.” 11TH CIR. R. 27-4. See also McCurry v. Kenco Logistics
Servs., LLC, No. 18-3206, 2019 U.S. App. LEXIS 33319, at *16 (7th Cir. Nov. 7,
2019) (“Bad writing does not normally warrant sanctions, but we draw the line at
gibberish.”).
3
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applies to them, and order the District Court to remand these two cases back to the
D.C. District Court, along with the other plaintiffs in their complaints.” (Cross-
Motion, p. 1).5 After conceding that the “District Court had jurisdiction to dismiss
these cases [o]n summary judgment, and that Order is appealable to this Court” (id.,
pp. 9-10), Appellants nevertheless continue that the summary judgment order
“should be vacated, though, not because of lack of jurisdiction, but because the
issues should be decided by the trial court [the MDL transferor court, i.e., the District
of Columbia District Court where they originally filed their claims].” (Id., p. 10).
For their remarkable proposition that this Court has authority simply to vacate
the summary judgment entered against them before consideration of the merits of
their appeal of that very judgment, Appellants analogize to the rule that “the appeal
of an issue related to a deposition is heard by the court of appeals for the district
where the deposition is taken.” (Id.) (citing United States ex rel. Pogue v. Diabetes
Treatment Centers of Am., Inc., 238 F. Supp.2d 270 (D.D.C. 2002)). But United
5
Although left unstated, the “District Court’s Order” is presumably the order
granting summary judgment (Docket Entry 2551, copy attached as Exhibit B) that
Appellants listed in their notice of appeal (Docket Entry 2568, copy attached as
Exhibit D).
4
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States ex rel. Pogue has no application here because that district court decision
the D.C. Circuit.” (Cross-Motion, p. 8 n.9). As Appellants concede, the district court
below had jurisdiction to enter summary judgment and they themselves invoked this
court of appeals with jurisdiction over an MDL district court has jurisdiction over
the MDL court’s orders and rulings. Hill v. Henderson, 195 F.3d 671, 677-78 (D.C.
Cir. 1999); Astarte Shipping v. Allied Steel & Export Service, 767 F.2d 86, 87 (5th
Cir. 1985) (per curiam); Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341, 1344 (7th
Cir. 1971) (per curiam). See 28 U.S.C. § 1294 (“appeals from reviewable decisions
of [a district court] shall be taken to the court of appeals . . . for the circuit embracing
the district.”). This case law likewise disposes of Appellants’ remarkable positions
that this Court’s resolution of their appeals will be an “advisory opinion[]” (Cross-
Motion, p. 8) and that “11th Circuit law . . . isn’t binding [on these appeals].” (Id.)6
This Court, not the District of Columbia, has jurisdiction over Appellants’ appeal.
6
See also Cross-Motion, p. 7 (arguing the non sequitur that “this appeal wouldn’t
be binding authority on cases brought to trial in the District of Columbia” but “bind[]
only Doe 378 and Doe 840, whose cases were dismissed in summary judgment, but
would go to trial in the District of Columbia if they prevailed in this appeal”).
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Alternatively, Appellants argue that the Court has the “inherent power . . . to
certify questions directly to another Circuit, avoiding the need to vacate the District
can tell, the “questions” that Appellants seek for this Court to certify to the District
of Columbia Circuit are “issues of federal law” to be decided “according to the law
[of that circuit].”7 But this Court has squarely held that “[s]ince the federal courts
are all interpreting the same federal law, uniformity does not require that transferee
courts defer to the law of the transferor circuit.” Murphy v. F.D.I.C., 208 F.3d 959,
7
Id., p. 1 n.2 (“the issues on appeal concern the standard for summary judgment,
and the use of circumstantial evidence supported by expert testimony to meet this
standard, which are questions of federal law”), p. 8 (the District of Colombia District
Court “would have the duty to reconsider issues of federal law according to the law
of its own circuit.”). See also id., p. 11 (“D.C. has the strongest interest in enforcing
federal laws making financing terrorist organizations a crime”).
8
Further, district courts both inside and outside this Circuit uniformly decide
dispositive motions using the federal legal standards of the circuit in which the
MDL-transferee court resides, without regard to where the cases were transferred
from. See, e.g., Costco Wholesale Corp. v. Johnson & Johnson, No. 3:15-cv-734-J-
20JRK, 2015 U.S. Dist. LEXIS 168581, at **4-5 (M.D. Fla. Nov. 4, 2015); In re
Imagitas, Inc., Drivers’ Privacy Prot. Act Litig., No. 3:07-md-J-32JRK, 2011 U.S.
Dist. LEXIS 150051, at *14 (M.D. Fla. Dec. 30, 2011) (citing Murphy, 208 F.3d at
965-66); Reynolds v. Gen. Elec. Co., No. 5:09-CV-80025-ER, 2012 U.S. Dist.
LEXIS 65149, at *4-5 n.1 (E.D. Pa. Apr. 2, 2012); In re Toys “R” Us Delaware,
Inc. Fair & Accurate Credit Transactions Act (FACTA) Litig., No. MDL 08-1980
MMM (FMox), 2010 U.S. Dist. LEXIS 133583 (C.D. Cal. Aug. 17, 2010) (noting
6
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For their remarkable proposition that the Court has the authority to—and
should—certify questions of federal law to another circuit court (here, the District
Corp., 486 U.S. 800 (1988). But Christian was decided under 28 U.S.C. §
1295(a)(1) that expressly “grants the Court of Appeals for the Federal Circuit
exclusive jurisdiction over ‘an appeal from a final decision of a district court of the
United States . . . if the jurisdiction of that court was based, in whole or in part on [a
federal patent statute] . . . .’” 486 U.S. at 807. See Allapattah Svcs., Inc. v. Exxon
Corp., 362 F.3d 739, 761 (11th Cir. 2004) (“the Constitution accords Congress the
decidedly does not support the proposition that this Court has “inherent power” to
certify questions of federal law to other federal circuit courts, and Chiquita is
unaware of any statutory or other legal authority that this Court does.
Appellants also request that the Court “order the District Court to remand
these two cases back to the D.C. Circuit Court, along with the other plaintiffs in their
inherent authority and further is beyond the scope of these Rule 54(b) appeals.
that courts of appeals and district courts “uniformly” apply the law of the transferee
circuit in MDL proceedings on questions of federal law).
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complaints” are not before this Court. Those claims have not been adjudicated, in
the final partial summary judgment that Appellants appealed or otherwise, and the
“other plaintiffs” are not before the Court. “Attempts by non-parties to appeal a
district court’s final judgment generally must fail.” Southern Utah Wilderness
Moreover, only the JPML may remand transferred MDL cases to the
transferor district court. 28 U.S.C. § 1407(a). While true that the Court “has
mandamus jurisdiction over the JPML” (Cross-Motion, p.1 n.2), Appellants have
not filed for mandamus in this Court. See FED. R. APP. P. 21 (“A party petitioning
for a writ of mandamus . . . must file a petition with the circuit clerk . . . .”). Instead,
Appellants have invoked the Court’s appellate jurisdiction. (See Docket Entry 2568,
As to the scope of these appeals, the order certified under Rule 54(b) that
Appellants specified for appeal was entered on September 5, 2019. (See Docket
Entry 2551, copy attached as Exhibit B). That order makes no ruling regarding—or
Court, the transferor court. Appellants discuss orders entered and filings made after
8
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Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1988).9 These orders
and filings are not before the Court on these appeals: “Appellate jurisdiction over an
appeal from an interlocutory decision certified under Rule 54(b) is limited to the
ruling or orders certified by the district court.” Edwards v. Prime, Inc., 602 F.3d
1276, 1288 (11th Cir. 2010); Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1296-
97 (11th Cir. 2001) (“Because no final judgment has been entered disposing of all
the claims in this case, our appellate jurisdiction is confined to the issues made
Finally, Appellants spend the majority of their pages improperly arguing the
merits of their appeal including their “theory of the case” (Cross-Motion, pp. 10-11),
the summary judgment standard (id., pp. 11-14), the district court’s purportedly inapt
analogy to “market share” theory (id., pp. 14-15), and the Daubert challenge to their
expert (id., pp. 15-18). Of course, the merits of an appeal are properly presented in
CONCLUSION
For all of these reasons discussed above, the Court should deny Appellants’
9
See Cross-Motion, pp. 3-4 & exhibits 5-9.
9
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Frank A. Dante
Melissa F. Murphy
BLANK ROME LLP
One Logan Square
130 N. 18th Street
Philadelphia, PA 19103
Tel: (215) 569-5645/5334
Email: dante@blankrome.com
mfmurphy@blankrome.com
10
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with the type-volume limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the
parts of the document exempted by Fed. R. App. P. 32(f), this document contains
2,372 words according to a word count using Microsoft Word, the word-processing
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed this document with the Clerk of the
Court using the ECF system on November 25, 2019 which will automatically
generate and serve by e-mail a Notice of Docket Activity on Attorney Filers under