Does 1-254 V Chiquita Brands - Appellants Principal Brief

USCA11 Case: 20-14238 Date Filed: 12/14/2020 Page: 1 of 105
Case No. 20-14238-RR
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
___________________________________________
Does 1 Through 254, et al. v.

Chiquita Brands International, et al.
___________________________________________
On Appeal from the United States District Court

For the Southern District of Florida
No. 08-md-01916
(No. 11-80405-CIV-MARRA)
(The Honorable Kenneth A. Marra)
____________________________________________
PRINCIPAL BRIEF
OF APPELLANTS "DOES 1-254"

____________________________________________
Paul Wolf, DC Bar #480285

P.O. Box 21840
Washington, D.C. 20009
Telephone (202) 431-6986
[email protected]
Attorney for Plaintiff-
Appellants Does 1-254
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR
CERTIFICATE OF INTERESTED PERSONS
Counsel certifies that the following is a complete list of the trial judge(s), all
attorneys, persons, associations of persons, firms, partnerships, or corporations
(noted with its stock symbol if publicly listed) that have an interest in the outcome
of the particular case on appeal, including subsidiaries, conglomerates, affiliates,
and parent corporations, and other identifiable legal entities related to a party,
known to Appellants, are as follows:
1. Plaintiff-Appellants "Does 1-254," whose real names are:
Agudelo Castano, Margrieth Cecilia
Aguirre Braun, Irma Nury
Alzate de Escobar, Maria Leonilda
Anay Mosquera, Rosa
Anaya Dias, Lesvia Petrona
Angarita Gomez, Maria Estela
Arbelaez Marin, Alba Nidia
Arenas Gil, Ancizar Alexander
Arias Arias, Adriana Patricia
Arias de Moscoso, Luz Mariela
Arismendes, Blanca Libia
Arrieta Zumaque, Carmen
Page C-1 of C-39

Asprilla de Barrios, Maria Isabel
Asprilla Rivas, Ana Joaquina
Avendano Suarez, Maria Orfelina
Avila Payares, William Antonio
Balenzuela Escobar, Rosa Margarita
Barrientos Gomez, Maria Rocio
Bedoya Mosquera, Marlenis
Bedoya de Torres, Margarita
Bedoya Gomez, Alirio de Jesus
Bedoya Correa, Uverly
Benitez Varilla, Maria Judith
Benitez Sepulveda, Consuelo
Berrio de Usuga, Berta Oliva
Berrio, Marcelina
Blanquicet Gonzalez, Sara del Carmen
Bohorquez Borja, Omar de Jesus
Borja Arias, Aracely
Bram Cartagena, Mariela de Jesus
Burgos Genes, Gabriel
Burgos Villalobo, Esbil
Page C-2 of C-39

Cabadia de Aguilar, Sixta Tulia
Caceres Zumaque, Magdalena
Caicedo Mena, Gregoria
Camano Mora, Marve Luz
Campo Rodriguez, Maria Ines
Cano David, Ana Maria
Cano Sepulveda, Migdonia
Cantero Cordoba, Elizabeth
Cardona Goez, Rosalbina
Cardona Echavarria, Oliva
Castellanos Cogollo, Ramona del Carmen
Castellanos Yanos, Elizabeth
Castro Gomez, Alina Yaneth
Causil Almario, Arnoli
Chaverra de Cano, Teresita de Jesus
Chica Chica, Libia
Cordoba Chala, Alexandra
Correa Borja, Elida
Correa de Parra, Alba Rosa
Correa de Alvarez, Oliva
Page C-3 of C-39

Cortes Berrio, Eliza
Cossio Perea, Jesus Edwin
Cuesta Rivera, Elias Desiderio
Cuesta Salas, Jose Mercedes
David de Guzman, Maria de los Angeles
David Tuberquia, Alicia
David Vargas, Rosa Angela
Diaz, Luz Mery
Diaz Charrasquiel, Edith
Diaz, Eudilia
Doria de Palacio, Gloria
Duenas Alvarez, Sindy Patricia
Duran Causil, Berta Alicia
Durango Durango, Luzmila
Durango Torres, Deyamira
Durango, Maria de las Mercedes
Durango Villa, Abel Antonio
Echeverri Vahos, Rosa Maria
Escobar de Elorza, Nohemy
Escobar Borja, Rosa Elvira
Page C-4 of C-39

Florez Mestra, Everlides
Florez Ruiz, Luz Estella
Fuentes Lucas, Flor Maria
Galvan de Rodriguez, Edita del Carmen
Galvis, Guillermina Marina
Garcia Gonzales, Ana Delcy
Garcia, Gloria Ines
Gaviria, Maria Doris
Giraldo de Campo, Gloria Ines
Giraldo Sierra, Gildardo de Jesus
Giraldo de Giron, Ernestina
Goez, Julia de Jesus
Gonzalez Leon, Luz Neyer
Gonzalez Urango, Wilson
Graciano Graciano, Margarita
Guerra Garcia, Ana Isabel
Guerrero, Bertha Elisa
Guisao, Doraley
Guzman Vallesta, Diana Esperanza
Guzman de Guevara, Estebana del Pilar
Page C-5 of C-39

Guzman Higuita, Maria Evangelina
Henao de Gomez, Blanca Delia
Hernandez Hortua, Miladis del Socorro
Hernandez Arrieta, Berta
Hernandez Mena, Rosalia
Hernandez, Lira Margoth
Hernandez Reyes, Julia Dominga
Hernandez Jimenez, Henry Manuel
Herrera Sierra, Juana del Carmen
Higuita, Fidelina
Higuita Manco, Jesus Antonio
Higuita Duarte, Maria Rosangela
Higuita Osorio, Libia
Higuita Velez, Margarita Maria
Hinestroza Mosquera, Luz Nancy
Holguin Pineda, Alfonso Elias
Hoyos Martinez, Maria del Rosario
Hurtado Mosquera, Maria Lastenia
Jimenez de Rodriguez, Isabel Emilia
Jimenez de Goez, Mariela
Page C-6 of C-39

Jimenez Monterrosa, Macira del Rosario
Julio de Jimenez, Catalina
Julio Melendez, Carmen Alicia
Julio Moya, Maria Elodia
Lagares Lopez, Elida Rosa
Landetta Zapata Alba Iris
Lara Zuniga, Amparo
Lemoz Ruiz, Gilney
Lemus Castro, Idelicia
Licona Madera, Aminta Maria
Loaiza Aguirre, Lider Maria
Londono Torres, Ana Julia
Lopera Gonzalez, Adriana Maria
Lopez, Salustiana
Lopez de Agudelo, Maria Fidelina
Lopez Munoz, Olga Patricia
Luna Olivares, Luis Alfonso
Machado Quintana, Maria de la Concepcion
Machado Romero, Belarmina
Manco Manco, Bertoldina
Page C-7 of C-39

Marin Osorio, Lilia Amparo
Marin Restrepo Celsa Julia
Marmol Perez, Merlene Maria
Martinez Perez, Lina Maria
Mavisoy Cualindioy, Teresa
Mejia Gomez, Doris Maria
Mena Denis, Maria Nohemi
Mercado, Yadira Leon
Mestra Zurique, Eugenia
Miranda Ibanez, Libia Susana
Morales Macea, Marlene Isabel
Morales, Martha Isabel
Moreno Chaverra, Marlen
Moreno Palacio, Maria Beyanira
Mosquera Mosquera, Clara Elena
Mosquera Mosquera, Melba
Mosquera Ubaldo, Ciria
Mosquera Arroyo, Luz Marina
Mosquera, Yamileth
Mosquera Palomeque, Ernestina
Page C-8 of C-39

Mosquera Santos, Tomasa
Mosquera Palacios, Aura
Obrigon Mendoza, Franklin
Orozco de Montoya, Olivia
Osorio Rodriguez, Maria Sonia
Osorio Hernandez, Luz Nely
Osorio de Porras, Luty del Carmen
Osorio de Santiago, Maria Rosalina
Osorio Cardona, Beatriz Cecilia
Ospina Angarita, Maria Magdalena
Ospina Castellar, Edita
Oviedo David, Petrona
Palacio Moreno, Luz Belen
Palacios Perea, Maria Albanis
Palencia Paut, Margarita
Palencia Morales, Jose
Pastrana Duenas, Maria Leonor
Paternina Paez, Domingo de los Santos
Pena Usuga, Maria Edilma
Penagos Caro, Maria Josefa
Page C-9 of C-39

Penata Galarcio, Magaly Ines
Pereira Miranda, Manuela del Carmen
Perez Zapata, Patricia
Perez Hoyos, Blanca Cecilia
Persides Martinez, Maria
Piedrahita, Rosa Boliva
Pineda, Irma de Jesus
Polo Tuiran, Ana Delfina
Puerta Manco, Eunilse
Quintero Atehortua, Gloria Patricia
Ramires, Ana Felisa
Ramirez, Luz del Carmen
Ramirez Asprilla, Maritza
Ramirez Molina, Liliana del Socorro
Restrepo de Arias, Maria Oliva
Reyes Agudelo, Gloria Elena
Reyes Campo, Pedro
Rivas Asprilla, Onia Zenaida
Rivas Lozano, Sergia Marcia
Rodas Orozco, Mariela
Page C-10 of C-39

Rodriguez Posso, Luz Marina
Rodriguez Ramos, Eleodora
Romana Escobar, Ana Carmela
Romana Martinez, Saturnina
Romero Hernandez, Edonia Isabel
Rovira Quejada, Tarcila
Ruiz Mendoza, Cenith
Ruiz Vidal, Ana Lucia
Ruiz Salgado, Ana Rosa
Sanchez Menzel, Elsa Esther
Sanchez, Jorge Ivan
Sanchez Florez, Doralba
Sanchez Manco, Franca Eliana
Sanchez de Sanchez, Aura Carlina
Santana, Petronila
Sepulveda Borja, Jorgelina
Sepulveda de Holguin, Leovigilda
Serna Moreno, Debora
Serna de Rueda, Maria Eleva
Sierra de la Barrera, Rosmary
Page C-11 of C-39

Suarez Tavera, Gabriela
Suarez Solano, Baudilia del Carmen
Suarez Montiel, Adela Sofia
Tamayo de Guisao, Maria Ester
Torres Berrio, Wilson
Torres Cuesta, Mary Luz
Trejo Herrera, Maria Ester
Tuberquia Zapata, Jesus Emilio
Upegui de Perez, Luz Estella
Uribe Mesa, Piedad Cristina
Urrego Torres, Maria Lenuy
Urrego Guisao, Maria Epifania
Urrego Rodriguez, Emilsa
Vacca Usuga, Yeira Vanessa
Valderrama, Maria Teresa
Valderrama Marin, Pedro Emilio
Valencia Lopez, Ana Elvia
Valoyes Ramirez, Mercedes
Vanegas Montoya, Carlos Andres
Varelas Morelo, Maria Oliva
Page C-12 of C-39

Vasquez Marin, Mariela
Vasquez Julio, Nasary
Vega Murillo, Pedro
Vera Tuberquia, Martha C.
Vidales Palacio, Rosangelica
Viera Mendoza, Jonny
Zambrano Palencia, Senia
Zapata Borja, Romelia de Jesus
2. In addition, the plaintiffs bring their cases as personal representatives of the
estates of the deceased, whose names are
Agudelo Carvajal, Luis Arturo
Aguirre Vidales, Yolanda
Altamirando Cabadia, Jhon Fernando
Alvarez Quintero, Juan Gregorio
Alvarez Correa, Robier de Jesus
Alvarez Herrera, Doris del Carmen
Apricio Noblez, Alberto
Arbelaez Marin, Juan Carlos
Arenas, Tomas
Arguello Gonzalez, Adan
Page C-13 of C-39

Arias Restrepo, Francisco Javier
Arias Valle, Jesus Antonio
Arrieta Hernandez, Dinio Jose
Arrieta Yepes, Joaquin
Arroyo Bernal, Arnaldo Jose
Aula Velasquez, Mariano Manuel
Avendano Lopez, John Alberto
Barrios Asprilla, Alfonso
Bedoya Caycedo, Jerson
Bedoya Navarro, Joaquin Humberto
Bedoya Serna, Guillermo Sabad
Beltran Matote, Jaime
Blanco Lopez, Justiniano
Bohorquez, Raul
Bolivar Betancourt, Luis Alberto
Borja Arias, Jhon Fredy
Burgos Gene,s Edinson Antonio
Cabrera Correa, Anibal
Calle Penagos, Hector Alonso
Callejal Hoyos, Gabriel de Jesus
Page C-14 of C-39

Cano Herrera, Edwin Dario
Cano Chaverra, Joaquin Mario
Cantero Melendez, Edulfo
Cardenas Miranda, Israel
Cardona Echavarria, Edgar
Cardona Echavarria, Hector Jose
Cardona Ramirez, Jesus Maria
Cardona Alvarez, Geovanny
Caro Ramiro, Antonio
Castro Vargas, Demetrio
Centero Melendez, Edulfo
Chala Cuesta, Ana Sofia
Charrasquiel, Gregorio Alejandro
Cifuentes Durango, Horacio Antonio
Contreras Urrego, Nelson
Cortes Berrio, Jesus
Cossio Murillo, Francisco Herminio
Cossio, Alvaro
Cuadrado Gaspar, Abigail Antonio
Cuesta Cortez, Nelson
Page C-15 of C-39

Cuesta Garcia, Edgar
Cuesta Cuesta, Euclides
Cuesta Rios, Nestor
Cuesta Bejarano, Fidelio Antonio
Cuesta Arroyo, Rafael
Cuesto Murillo, Primitivo
David Campo, Mario de Jesus
David Velazquez, Rosa Elvira
De la Cruz Campo, Oscar Manuel
Denis, Pedro Mena
Diaz Hernandez, Giovanis
Diaz Domingo de los Santos, Paternina
Diaz Mosquera, Anselmo
Diaz Teheran, Jose
Dimas Chiquillo, Jose Irene
Durango, Jorge Ivan
Durango Cano, Gustavo Antonio
Durango Escobar, Fabio de Jesus
Echavarria Graciano, Pedro Julio
Echavarria, Aurora
Page C-16 of C-39

Echevarria Vahos, Luis Fernando
Elorza Romero, Luis Enrique
Escobar Alzate, Jesus Emilio
Galarcio Viloria, Candida Rosa
Galindo Cuadrado, Eudencio
Galindo Galeano, Gerardo Gabriel
Garces Flores, Wilton Antonio
Garcia Julio, Jose Luis
Garcia Angulo, Jose Angel
Gil de Arenas, Elizabeth
Giraldo Sierra, Omar de Jesus
Giraldo, Luis Alfredo
Giraldo Fernandez, Jesus Emilio
Goez Sepulveda, Ivan Antonio
Goez Jimenez, Hernan Dario
Goez Sepulveda, Juan Antonio
Gomez Alvarez, Jaime
Gomez Valencia, Beatriz
Gomez Henao, Rodrigo de Jesus
Gomez Velez, Leonardo
Page C-17 of C-39

Gomez Jimenez, Victor Javier
Gomez, Francisco Javier
Gonzalez Cuesta, Diego
Gonzalez Urango, Luisa Cristina
Gonzalez Sosa, Maria Georgina
Gonzalez Moralez, Livardo
Gonzalez Moralez, Merli
Graciano, Francisco Antonio
Guisao Lopez, Jose Wilson
Guisao Correa, Cruz Antonio
Guisao Tamayo, Jorge Elias
Guisao Tamayo, Wilmar de Jesus
Gutierrez Fernandez, Guillermo Leon
Gutierrez Vargas, Argelia Maria
Gutierrez Hernandez, Carlos Antonio
Guzman David, Yoni Jair
Guzman Betancur, Ricardo Antonio
Hernandez Bejarano, Orlando
Hernandez Mestra, Luis German
Higuita Giraldo, Leon Dario
Page C-18 of C-39

Higuita, Miguel Antonio
Hinestroza Hurtado, Angel Daniel
Hinestroza Mosquera, Robinson Humberto
Hinestroza Hurtado, Cesar Orlando
Holguin Sepulveda Leonardo
Holguin Sepulveda, Alfonso Elias
Holguin Sepulveda, Ramiro Arley
Hoyos Gaviria, Gonzalo
Hoyos Martinez, Polfino de Jesus
Hurtado Cordoba, Fausto
Ibanez Anaya, Toni Enrique
Lemos Rambay, Araldo
Lemus Cordoba, Manuel Eugenio
Licona Suarez, Fernando
Llanez Lopez, Evelio
Loaiza Arboleda, Joaquin Eduardo
Loaiza Aguirre, Luis Eduardo
Londono Valencia, Oscar de Jesus
Londono, Henry
Lopera Gaviria, Oscar de Jesus
Page C-19 of C-39

Lopez Muno,z Luis Felipe
Lopez Henao, Gilberto Antonio
Luna Barba, Luz Estella
Luna Rivas, Prudencio
Madariaga Madariag,a Hugo Feny
Maturona Guevara, Adolfo
Mejia Gomez, Jose Argiro
Mena, Miguel Angel
Mendoza Galvan, Idelfonso
Meza Martinez, Ismael
Mirando Arrieta, Hilario
Mona Marin, Jorge Humberto
Montenegro Ramos, Hernan Humberto
Montes Duran, Brian Manuel
Montoya Echavarria, Carlos Enrique
Montoya Garcia, Carlos
Moreno Duran, Aura Nely
Moscoso, Jesus Emilio
Mosquera Robledo, Oscar
Mosquera Velasquez, Fulbio Antonio
Page C-20 of C-39

Munera Pulgarin, Ignacio
Munoz Munera, Jose Ivan
Munoz Beltran, Javier Antonio
Murillo Lopez, Hector
Murillo Moreno, Manuel Emeterio
Narvaez Julio, Oscar Antonio
Nelly Zapata, Maria del Socorro
Obregon Moreno, Francisco Javier
Ochoa Gomez, Victoria Elena
Orejuela, Juan
Orjuela Arismendi, Pedro Alonso
Orlas Pena, Wiliton
Orozco Marin, Jesus Maria
Ospina Marimon, Marcelino
Palacio Pastrana, Reemberto
Palacio Pino, Felipe
Palacio Palacio, Romulo
Palacios Mosquera, Afronio
Palencia Diaz, Eliecer
Pareja Ruiz, Jhon Fredis
Page C-21 of C-39

Parra Correa, Albertina
Parra Garcia, Samuel
Parra Osorio, Cristobal
Paruja Trejos, Rubiela
Pautt, Marcelo Oviedo
Paz, Romana Parmelio
Perez Nisperuza, German
Perez Upagui, Victor Dairon
Piedrahita, Gilberto de Jesus
Pietro Lagares, Miguel Antonio
Pineda, Hernan Dario
Porhillo Santo, Sergio Eliecer
Porras Pedroza, Ramon
Quejada Duran, Clemente
Ramirez Loaisa, Ruben Dario
Rendon Loaza, Luis
Rendon, Abel Antonio
Rendon Rojas, Ismael
Reyes Agudelo, Luis Fernando
Reyes Fuentes, Freddy Jesus
Page C-22 of C-39

Rios Rios, Miguel Angel
Rivas, Arturo Murillo
Rivas Lara, Jose Alejandro
Rodriguez Cardalez, Gilberto
Rodriguez Jimenez, Eliud
Rodriguez Ramos, Jaime
Romana Escobar, Carlos Eliecer
Rueda Serna, Oscar Dario
Rueda Serna, Carlos Alberto
Ruiz Rueda, Jose Luis
Ruiz Valencia, Victor Manuel
Ruiz Palacios, Marino
Salas Rovira, Ausberto
Salinas Sanchez, Gerardo
Sanchez Polo, Savas
Sanchez, Dagoberto
Sanchez Manco, Francisco Javier
Sanchez Sanchez, Reynaldo Antonio
Sanchez Giraldo, Ramon Antonio
Santiago Almeciga, Paulino
Page C-23 of C-39

Sepulveda Manco, Ovilson
Sepulveda Manco, Nelson
Sierra, Rafael Alvaro
Solano Guevara, Luis Antonio
Soto Amaranto, Margarita
Suarez Marmol, Luis Manuel
Suarez Solano, Abel Andres
Tapia Marmolejo, Jaime
Tapias, Fabian Ignacio
Tapias Lopez, Jose Felix
Tordecilla Gonzalez, Carlos Augusto
Torres Bedoya, Edison
Torres Bedoya, Ivan Dario
Torres Guisao, Claver de Jesus
Torres Melendez, Eusino
Toscano de la Barrera, Tomas Antonio
Tuberquia Zapata, Reinaldo Antonio
Tuberquia Higuita, Maria Eugenia
Uribe Arboleda, Marco Antonio
Urrego Torres, Aldebaran
Page C-24 of C-39

Urrego Rodriguez, Bernardo
Usuga Berrio, Maria Eunice
Usuga Cano, Heinsen Hawer
Usuga Cano, Franco Anyey
Usuga, Jesus Maria
Vaca Echavarria, Jorge Enrique
Vaca Caraballo, Afranio
Valderrama Oquendo, Luis Fernando
Valencia Rodriguez, Miguel Angel
Valencia Lopez, Jhon Jairo
Vanegas Villa, Humberto
Vargas David, Luis Alexander
Vargas Bram, Libardo Antonio
Vasquez Benitez Cielo Maria
Vega Torres, Luis Alfonso
Velasquez Gomez, Eliodoro Antonio
Velasquez Restrepo, Wilson de Jesus
Velasquez, Prisiliano Jose
Viera Mendoza, Alvaro
Villa Hernandez, Yubany de Jesus
Page C-25 of C-39

Zapata Borja, Jorge Eliecer
Zuluaga Machado, Sigifredo
Zuluaga Garcia, Sigifredo
3. Additional interested parties are:
Agrícola Longaví Limitada
Agrícola Santa Marta Limitada
Agroindustria Santa Rosa de Lima, S.A.
Aguirre, Fernando
Alamo Land Company
Alsama, Ltd.
American Produce Company
Americana de Exportación S.A.
Anacar LDC
Arnold & Porter
Arnold Sansone, The Honorable Amanda
Arvelo, José E.
Associated Santa Maria Minerals
Avila, Rodriguez, Hernandez, Mena & Ferri, LLP
B C Systems, Inc.
Baird, Bruce
Page C-26 of C-39

Banco Santander International
Bandy, Kevin
Barbush Development Corp.
Bienes Del Rio, S.A.
Blank Rome LLP
BlackRock, Inc. (NYSE: BLK)
Blue Fish Holdings Establishment
Bocas Fruit Co. L.L.C.
In Re: Chiquita Brands Int’l., Inc.
Boies Schiller & Flexner, LLP, Fort Lauderdale
Boies Schiller & Flexner, LLP, Miami
Boies Schiller & Flexner, LLP, New York
Boies Schiller & Flexner, LLP, Orlando
Bronson, Ardith
Brundicorpi S.A.
Cadavid Londoño, Paula
Capital Bank
Carrillo, Arturo J.
C.C.A. Fruit Service Company Limited
CB Containers, Inc.
Page C-27 of C-39

Centro Global de Procesamiento Chiquita, S.R.L.
Charagres, Inc., S.A.
Childs, Robert
Chiquita (Canada) Inc.
Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.
Chiquita Banana Company B.V.
Chiquita Brands International Foundation
Chiquita Brands International Sàrl
Chiquita Brands International, Inc. (NYSE: CQB)
Chiquita Brands L.L.C.
Chiquita Central Europe, s.r.o.
Chiquita Compagnie des Bananes
Chiquita Deutschland GmbH
Chiquita Food Innovation B.V.
Chiquita for Charities
Chiquita Fresh B.V.B.A.
Chiquita Fresh España, S.A.
Chiquita Fresh North America L.L.C.
Chiquita Fruit Bar (Belgium) BVBA
Chiquita Fruit Bar (Germany) GmbH
Page C-28 of C-39

Chiquita Fruit Bar GmbH
Chiquita Frupac B.V.
Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton
Chiquita Hong Kong Limited
Chiquita International Services Group N.V.
Chiquita Italia, S.p.A.
Chiquita Logistic Services El Salvador Ltda.
Chiquita Logistic Services Guatemala, Limitada
Chiquita Logistic Services Honduras, S.de RL
Chiquita Melon Packers, Inc.
Chiquita Mexico, S. de R.L. de C.V.
Chiquita Nature and Community Foundation
Chiquita Nordic Oy
Chiquita Norway As
Chiquita Poland Spolka Z ograniczona odpowiedzialnoscia
Chiquita Portugal Venda E Comercializaçao De Fruta,

Unipessoal Lda
Chiquita Relief Fund - We Care
Chiquita Shared Services
Chiquita Singapore Pte. Ltd.
Chiquita Slovakia, S.r.o.
Page C-29 of C-39

Chiquita Sweden AB
Chiquita Tropical Fruit Company B.V.
Chiquita UK Limited
ChiquitaStore.com L.L.C.
Chiriqui Land Company
CILPAC Establishment
Cioffi, Michael
Coast Citrus Distributors Holding Company
Cohen, Millstein, Sellers & Toll, PLLC
Collingsworth, Terrence P.
Collyer, The Honorable Rosemary M.
Compañía Agrícola de Nipe, S.A.
Compañía Agrícola de Rio Tinto
Compañía Agrícola del Guayas
Compañía Agrícola e Industrial Ecuaplantation, S.A.
Compañía Agrícola Sancti-Spiritus, S.A.
Compañía Bananera Atlántica Limitada
Compañía Bananera Guatemateca Independinte, S.A.
Compañía Bananera La Estrella, S.A.
Compañía Bananera Los Laureles, S.A.
Page C-30 of C-39

Compañía Bananera Monte Blanco, S.A.
Compañía Caronas, S.A.
Compañía Cubana de Navegación Costanera
Compañía Frutera América S.A.
Compañía La Cruz, S.A.
Compañía Mundimar, S.A.
Compañía Productos Agrícolas de Chiapas, S.A. de C.V.
Compañía Tropical de Seguros, S.A.
Conrad & Scherer LLP
Costa Frut S.A.C.
Covington & Burling LLP
Danone Chiquita Fruits SAS
Dante, Frank
Davies, Patrick
De La Calle Restrepo, José Miguel
De La Calle Londoño y Posada Abogados
DeLeon, John
Dimensional Fund Advisors LP
DLA Piper
Duraiswamy, Shankar
Page C-31 of C-39

Dyer, Karen C.
Earthrights, International, Inc.
Edwards Honeywell, The Honorable Charlene
Exportadora Chiquita - Chile Ltda.
Exportadora de Frutas Frescas Ltda.
Financiera Agro-Exportaciones Limitada
Financiera Bananera Limitada
FMR LLC
Fresh Express Incorporated
Fresh Holding C.V.
Fresh International Corp.
Friedheim, Cyrus
Frutas Elegantes, S. de R.L. de C.V.
Fuerzas Armadas Revolucionarias de Colombia (FARC)
Fundación Para El Desarrollo de Comunidades Sostenibles en el

Valle de Sula
G & V Farms, LLC
G W F Management Services Ltd.
Garland, James
Girardi, Thomas V.
Glass, David M.
Page C-32 of C-39

Gonsalves, Marc
Gould, Kimberly
Gravante, Jr., Nicholas A.
GrayRobinson, PA
Great White Fleet Liner Services Ltd.
Great White Fleet Ltd.
Green, James K.
Gunster, Yoakley & Stewart, PA
Guralnick, Ronald S.
Hall, John
Heaton Holdings Ltd.
Heli Abel Torrado y Asociados
Hemisphere XII Investors Limited
Hills, Roderick, the Estate of
Hospital La Lima, S.A. de C.V.
Howes, Thomas
HSBC
Ilara Holdings, Inc.
Inversiones Huemul Limitada
James K. Green, P.A.
Page C-33 of C-39

Janis, Judith G.
Janis, Christopher T.
Janis, Greer C.
Janis, Michael I.
Janis, Jonathan N.
Jimenez Train, Magda M.
Jones, Foster, Johnston & Stubbs, P.A.
Jones, Stanton
Keiser, Charles
Kelly, The Honorable Timothy J.
King, William B.
Kistinger, Robert
Korvick, Tony
Lack, Walter J.
Lakatos, Alex C.
Law Firm of Jonathan C. Reiter
Law Offices of Chavez-DeLeon
Leon, The Honorable Richard J.
Losego, Clinton R.
Markman, Ligia
Page C-34 of C-39

Marra, The Honorable Kenneth A.
Martin, David
Martinez Resly, Jaclyn
Mayer Brown, LLP
McCawley, Sigrid S.
Mora, Martha Rosa
Mosier, Mark
Mozabanana, Lda.
Nixon, Jary Conrad
Ocean Bank
Olson, Robert
O'Melveny & Meyers
Ordman, John
Palmera Pineda, Juvenal Ovidio Ricardo
Parker Waichman LLP
Pescatore, Jr., the Estate of Frank Thomas
Pescatore, Jada
Pescatore, Jarrod
Pescatore, John
Pescatore, Jordan
Page C-35 of C-39

Pescatore, Josh
Pescatore, Olivia
Pescatore, Richard
Pescatore Harpster, Carol
Philips, Layn
Porter, Newton Patrick
Prías Cadavid Abogados
Prías, Juan Carlos
Priedheim, Alissa
Procesados IQF, S.A. de C.V.
Processed Fruit Ingredients, BVBA
Promotion et Developpement de la Culture Bananiere
Puerto Armuelles Fruit Co., Ltd.
Rapp, Cristopher
Reiter, Jonathan C.
Ronald Guralnick, P.A.
St. James Investments, Inc.
Scarola, Jack
Searcy Denney Scarola Barnhart & Shipley, P.A.
Seguridad Colosal, S.A.
Page C-36 of C-39

Servicios Chiquita Chile Limitada
Servicios de Logística Chiquita, S.A.
Servicios Logísticos Chiquita, S.R.L
Servicios Proem Limitada
Silbert, Earl
Simons, Marco
Skinner, William
Sperling, Jonathan
Spiers N.V.
Sprague, Ashley M.
Stansell, Keith
Stockton Hendrix, David
Stewart, Thomas
Stubbs, Sidney
Tela Railroad Company Ltd.
The Vanguard Group
TransFRESH Corporation
Tsacalis, William
UNIPO G.V., S.A.
United States of America
Page C-37 of C-39

V.F. Transportation, L.L.C.
Verdelli Farms, Inc.
Wachovia Bank
Western Commercial International Ltd.
Wichmann, William J.
Wiesner & Asociados Ltda. Abogados
Wiesner, Eduardo A.
Wilkins, Robert
Willkie Farr & Gallagher
Wolf, Paul
Wolosky, Lee S.
Zack, Stephen N
Zhejiang Chiquita-Haitong Food Company Limited
Zuleta, Alberto
Certification
I hereby certify that to the best of my knowledge, the above is a complete
list of persons having an interest in this case.
/s/ Paul Wolf

________________________
Paul Wolf, D.C. Bar #480285
Attorney for Appellants Does 1-254
Page C-38 of C-39

November 25, 2020
Page C-39 of C-39

I-1
I-2
I-3
I-4
I-5
I-6
I-7
I-8
I-9
I-10
I-11
I-12
JURISDICTIONAL STATEMENT
The District Court1 has subject matter jurisdiction over common law and
wrongful death claims pursuant to 28 U.S.C. § 1332, and the MDL Statute, 28
U.S.C. § 1407. The Appellants are citizens and residents of Colombia. Chiquita
Brands, International, Inc. was based in Ohio at the time Does 1-254 filed their
Complaint, which was first-filed in the U.S. District Court for the District of
Columbia. The amount in controversy in each case exceeds $75,000. The District
Court also has subject matter jurisdiction over claims brought by Pescatore and
Stansell,2 who are residents of U.S. states, pursuant to 18 U.S.C. § 2333, the Anti
Terrorism Act ("ATA") and the MDL Statute, 28 U.S.C. § 1407.
On September 8, 2020, the District Court denied Plaintiffs’ Motion for a
Constructive Trust over the FARC’s Assets. Appellants’ Appendix (“hereinafter

1 As used herein, the term "District Court" refers to the U.S. District Court for the
Southern District of Florida, which issued the Orders on Appeal. Three other U.S.
District Courts, and the Joint Panel on Multi District Litigation ("JPML") are
involved in this appeal as well. This Court has jurisdiction because it is the Court
of Appeals over the court that issued the Orders on Appeal.
2
The “Pescatore murder” refers to the killing of Frank Pescatore, Jr. by the FARC
on. The “Stansell murder” refers to the killing of Thomas Janis by the FARC, and
associated kidnappings of Stansell and two other private military contractors.
According to the Complaints, the Pescatore Plaintiffs include Olivia Pescatore, the
Estate of Frank Thomas Pescatore, Jr., Josh Pescatore, Jada Pescatore, Jarrod
Pescatore, Jordan Pescatore, Carol Pescatore Harpster, Richard Pescatore, and John
Pescatore. See Exhibit 9 to Motion, Appx. at 380. The Stansell Plaintiffs include
Keith Stansell, Marc Gonsalves, Thomas Howes, Judith G. Janis, Christopher T.
Janis, Greer C. Janis, Michael I. Janis, and Jonathan N. Janis. See Exhibit 11,
Appx. at 414. As used in this Brief, the terms Pescatore and Stansell refer to these
two groups of Plaintiff-Appellees.
1
“Appx.”) at 1. On October 19, 2020, the District Court denied Plaintiffs’ Motion
for Reconsideration. Appx. at 7. Appellants timely filed a Notice of Appeal on
November 9, 2020. DE 2738.
This Court has jurisdiction because the Orders on appeal denied injunctive
relief. 28 U.S.C. § 1292 (a)(1). In addition, (1) the outcome of Plaintiffs' cases
would be conclusively determined by default judgments against the FARC, which
would moot them; (2) the issue of establishing a constructive trust over the FARC's
assets is collateral to the merits of the underlying murders; and (3) the matter will
be effectively unreviewable if immediate appeal isn't allowed, because otherwise,
Stansell and Pescatore will dissipate the first $300 million dollars of the FARC's
assets. They have already taken $20 million dollars. Lauro Lines s.r.l. v. Chasser,
490 U.S. 495 (1989).
Equitable review has long been available, without any specific statutory
authorization, “on the ground of a private and an irreparable injury.” Pennsylvania
v. Wheeling & Belmont Bridge Co., 54 U.S. 518, 564 (1851); see Payne v. Hook,
74 U.S. 425, 430 (1868) (where a court “ha[s] jurisdiction to hear and determine
th[e] controversy, ... [t]he absence of a complete and adequate remedy at law, is the
only test of equity jurisdiction.”) "Nothing is more clearly a part of the subject
matter of a suit for an injunction than the recovery of that which has been illegally
2
acquired and which has given rise to the necessity for injunctive relief." Porter v.
Warner Holding Co., 328 U.S. 395, 400 (1946).3
In addition, equitable review is available, without a statutory cause of action,
to prevent injuries by officials whose actions violate the Constitution. Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010); Bolling v.
Sharpe, 347 U.S. 497 (1954); Ex parte Young, 209 U.S. 123 (1908). “[I]njunctive
relief has long been recognized as the proper means for preventing entities from
acting unconstitutionally.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001).
If a party seeks prospective relief from an injury caused by a constitutional
violation, “an implied private right of action directly under the Constitution” exists
“as a general matter.” 561 U.S. at 491 n.2. Unlike a judicially created damages
3
The
Constitution confers on the federal courts the “judicial Power” to decide “all
Cases, in Law and Equity,” U.S. Const. art. III, § 2, cl. 1. This includes diversity
jurisdiction over suits “in equity.” See Judiciary Act of 1789, ch. 20, § 11, 1 Stat.
73, 78; Act of May 8, 1792, ch. 36, § 2, 1 Stat. 275, 276 (directing that “the forms
and modes” of equitable proceedings in federal court were to follow “the
principles, rules and usages which belong to courts of equity”). The federal courts
were designed to have the powers of both the courts of law and equity that existed
in England at the time. See Case of Hayburn, 2 U.S. 408, 410 (1792) (formally
adopting “the practice of the courts of King’s Bench and Chancery in England, as
affording outlines for the practice of this court”). English common law courts
issued a “variety of standardized writs,” each encompassing a “complete set of
substantive, procedural, and evidentiary law, determining who ha[d] to do what to
obtain the unique remedy the writ specifie[d] for particular circumstances.” John F.
Preis, In Defense of Implied Injunctive Relief in Constitutional Cases, 22 Wm. &
Mary Bill of Rts. J. 1, 9 (2013) (quotation marks omitted). For other situations, the
Court of Chancery began ordering “new and distinct remedies for the violation of
preexisting legal rights,” in effect “creat[ing] a cause of action where none had
existed before.” Id. at 12, 20.
3
remedy, “redress designed to halt or prevent [a] constitutional violation” is a
“traditional form[] of relief” that “d[oes] not ask the Court to imply a new kind of
cause of action.” United States v. Stanley, 483 U.S. 669, 683 (1987) (quotation
marks omitted).
STATEMENT REGARDING ORAL ARGUMENT
Oral argument should help resolve this appeal, which involves proceedings
in four different courts over a period of more than 13 years. The issues on appeal
are simple, but the procedural history is not. Stansell and Pescatore were only
successful in their scheme because the JPML was bypassed, no notice was
provided in the court with jurisdiction, and no one appeared on behalf of the
FARC, resulting in ex parte, default judgments. The District Court denied the
motion without a hearing, and the Appellees have never had to answer for what
they did.
STATEMENT OF THE ISSUES UNDER REVIEW
1. Whether the District Court erred by allowing the transferor Courts in the
District of Columbia and Middle District of Florida to proceed with default
judgments against the Fuerzas Armadas Revolucionarias de Colombia (FARC)
without a remand order from the JPML, after the same claims against Chiquita had
been dismissed with prejudice in the transferee court.
4
2. Whether the District Court erred by allowing several U.S. plaintiffs to go to
trial in 2017, and not setting trial dates for any Colombian plaintiffs, resulting in
default judgments of over $300 million dollars to two U.S. plaintiffs, and nothing
for 254 Colombian plaintiffs.
STATEMENT OF THE CASE
Stansell and Pescatore have collected over $20 million dollars from assets
traceable to the FARC, a Colombian terrorist group, out of over $300 million
dollars they were awarded in ex parte, default judgments. The money was
collected from bank accounts frozen by the Office of Foreign Assets Control
(OFAC). The FARC didn't appear in either court, or defend either case. These
proceedings were invalid for more basic reasons, though. The courts issuing the ex
parte default judgments had no jurisdiction because the cases were never remanded
from the MDL transferee court below. In addition, the default judgments were
awarded for claims that were already dismissed with prejudice.
The MDL includes at least 254 other people suing Chiquita for murders
committed by the FARC, who are all Colombians. The District Court dismissed
the Stansell case, the Pescatore case settled on the eve of trial on February 15,
2018, Appx. at 485, but Does 1-254 haven't been allowed to proceed into
discovery. The decision to allow two American cases to go forward, while
indefinitely suspending 254 Colombian cases, helped produce this unfair result.
5
Stansell and Pescatore's "claims" against Chiquita and against the FARC, for
the murders of Frank Pescatore Jr. and Thomas Janis (the decedent in Stansell) are
the same, for purposes of res judicata, and the relation back of statutes of
limitations. The claims are the same because they are for the same incidents and
injuries. They were dismissed with prejudice and extinguished in the District
court. There was nothing left to be remanded by the JPML, and even so,
re-litigation in any court would be barred by res judicata. This is one reason the
transferor courts had no jurisdiction to enter the default judgments.
Stansell and Pescatore's main counterargument is a red herring. Does 1-254
don't need to use special mechanisms like the Terrorism Risk Insurance Act
("TRIA") to enforce a court judgment, because the ordinary rules for attaching a
party's assets to a judgment also apply to assets traceable to terrorist groups. The
TRIA was meant to create a pool of funds for terrorism victims, to protect the
insurance industry from anticipated terrorism claims. Moreover, the $20 million
dollars isn't frozen by OFAC: it's in the hands of Stansell and Pescatore, who are
dissipating it. The District Court is the only court with jurisdiction over the $20
million dollars, and there are no procedural barriers to establishing a trust over it.
The money is all presumably the proceeds of the FARC's criminal activities,
which were overwhelmingly directed against Colombians. Principles of restitution
favor sharing it among the plaintiffs, rather than assigning all of it to two of them.
6
The plaintiffs in the Stansell case are private military contractors who already
made millions of dollars from the Colombian war. The overall impression created
by the District Court is that Colombians do not have access to our courts, or the
same access. Their cases also survived a Motion to Dismiss. Appx. at 989. The
facts of these cases may be slightly different, but the main difference is in the
nationality of the plaintiff.
Pescatore and Stansell's collection of $20 million dollars cannot be justified
by any legal argument. There are no complex issues on appeal. The Court need
only decide that none of what transpired is valid, that the default judgments are
vacated. and that the District Court should impose the trust on the money taken by
Stansell and Pescatore until an equitable distribution of the FARC's assets can be
determined.
STATEMENT OF FACTS
Pescatore and Stansell's cases against Chiquita Brands and the FARC were
all transferred for Multidistrict Litigation Proceedings to the U.S. District Court for
the Southern District of Florida (hereinafter “District Court” or “Transferee
Court”). Both were dismissed with prejudice in the court below. Nevertheless,
Pescatore and Stansell obtained and enforced default judgments against the FARC
in the District of Columbia and the Middle District of Florida. The cases were
never remanded.
7
1. Pescatore's cases against Chiquita and the FARC were transferred to

the District Court to be part of Multi District Litigation proceedings,
and were never remanded.
On Dec. 30, 2008, Pescatore filed a Complaint in DC District Court, in
Pescatore et al. v. Pineda & FARC, No. 1:08-cv-02245 (TJK). See Exhibit 9.
(hereinafter "Pescatore v. FARC") Appx. at 380. The docket in this case, as of
July 14, 2020, is in Exhibit 6. Appx. at 196. On March 13, 2009, Pescatore filed
another complaint for the murder of Frank Pescatore, Jr., against Chiquita Brands,
International, Inc. and related entities, in Case No. 09-cv-490-RMC in D.C.
District Court (hereinafter "Pescatore v. Chiquita"). Appx. at 391. On the same
day, the Pescatore Plaintiffs filed a Notice of Related Case filed in Pescatore v.
Chiquita Brands, which notes that Pescatore v FARC is related, but makes no
reference to the MDL, created more than a year earlier. Appx. at 483.
On April 15, 2009, the JPML issued a Conditional Transfer Order in
Pescatore v. FARC. Appx. at 519. On May 14, 2012, Pescatore moved to stay
further proceedings in Pescatore v. FARC, so the case could be consolidated with
Pescatore v. Chiquita "in order to avoid submitting duplicate evidence on the exact
same damages issues." See Status Report, Exhibit 16 at 1, Appx. at 496. The D.C.
District Court continued to stay the case by Minute Order six days later. Exhibit 6
at 10, Appx. at 206. The Status Report also states that "[o]nce these pretrial
proceedings [in SDFL] finish, Plaintiffs’ case will likely be returned to this Court
8
pursuant to 28 U.S.C. § 1407, which requires that the U.S. Judicial Panel on
Multidistrict Litigation remand this case 'at or before the conclusion of such
pretrial proceedings.'” Id. Nevertheless, a review of the dockets of Pescatore v.
FARC and Pescatore v. Chiquita dockets shows that neither of the Pescatore
Plaintiffs' cases were ever remanded.4 Appx. at 178, 196 et seq. Pescatore has
never contested this.
2. Stansell's cases against Chiquita and the FARC were transferred to the
District Court to be part of Multi District Litigation proceedings, and
were never remanded.
On November 10, 2009, three private military contractors who'd been
kidnapped by the FARC, and the estate of another who was killed, filed a suit
against them in Stansell v. Revolutionary Armed Forces of Colombia (FARC), No.
09-2308 (RALMAP) (M.D. Fla.). (hereinafter "Stansell v. FARC") See
Complaint, Exhibit 11, Appx. at 414. On November 25, 2009, Stansell filed a
Notice of Related Case. Exhibit 14, Appx. at 490. The Notice stated that the
4
In
addition, information obtained online via Pacer from the website of the Judicial
Panel on Multidistrict Litigation ("JPML"), shows that the Pescatore v. FARC and
Pescatore v. Chiquita cases, and the Stansell v. Chiquita case are part of the Multi
District Litigation proceedings. Exhibit 18 at 3, accessed July 17, 2020, Appx. at
509. However, the Stansell v. FARC case is not. Id. This is anomalous because
Stansell sued both Chiquita and the FARC for the same exact incident and injuries.
When Pescatore sued both Chiquita and the FARC, both of their cases were
transferred. The JPML dockets for these cases are not accessible online. Id.,
Appx. at 506, 508. They are the fourth, fifth and twelfth cases listed in the MDL,
which is sorted by court and then by case number, which reflects the filing date.
Exhibit 18, Appx. at 509.
9
Stansell v. FARC case was related to several criminal cases against the FARC, but
didn't list Pescatore v. FARC, or the MDL.
On April 5 2010, Stansell filed suit against Chiquita. See Exhibit 20, the
docket in Stansell et al v. Chiquita Brands, Case No. 10-cv-00786 (MDFL), Appx.
at 514. The JPML transferred this case to the District Court on August 11, 2010.
Id. at 5. The complaint essentially duplicates the allegations made against the
FARC.
In parallel proceedings, on June 15, 2010, the Middle District of Florida
issued a default judgment in Stansell v. FARC. Appx. at 39. On August 9, 2010
the JPML transferred the Stansell v. FARC case to the District Court. See Transfer
Order, Exhibit 15, Appx. at 492. The transfer isn't reflected in the docket in the
Middle District of Florida. See Exhibit 4 at 47, the docket as of July 14, 2020,
Appx. at 92. Nor is it listed by Pacer as part of the MDL. See Exhibit 18, Pacer
MDL Case List, Appx. at 509.
The enforcement action in D.C. District Court was filed a week before the
JPML transfer, on August 3, 2010. See Exhibit 2, Appx. at 28. The docket in the
enforcement action in D.C. District Court doesn't reflect the JPML transfer either.
Id. Stansell has never argued below that either case was remanded.
10
3. Stansell and Pescatore's claims against Chiquita were dismissed with

prejudice by the District Court.
The Stansell v. Chiquita case was dismissed with prejudice by this Court on
November 21, 2012. See Exhibit 21, docket in Stansell v. Chiquita Brands,
10-cv-80954-KAM, Appx. at 549, DE 72 Order Dismissing Case with prejudice, of
November 21, 2012.
The Pescatore case survived motions to dismiss and for summary judgment.
However, on February 15, 2018, the Pescatore Plaintiffs filed a Stipulation of
Voluntary Dismissal with Prejudice in the MDL docket, dismissing all of the
claims in Pescatore v. Chiquita, Case No. 09-80683-CIV-MARRA with prejudice.
See Exhibit 13, DE 1803, Appx. at 485. The terms of the settlement are
confidential.
4. Stansell and Pescatore obtained default judgments against the FARC in

the Transferor Courts.
On November 1, 2018, the D.C. District Court issued a default judgment in
the Pescatore v. FARC case awarding a total of $23 million dollars. See Exhibit 5,
Appx. at 178. Although this may look like a lot of money, three hundred million
dollars in damages were awarded to Stansell, see Exhibit 1, Appx. at 20, with
whom Pescatore will share the FARC proceeds according to the undisclosed terms
of a private agreement. Id. On February 4, 2019, Pescatore filed a Notice of
Proposed Order in Pescatore v. FARC. Exhibit 17, Appx. at 498. The Proposed
11
Order sought to enforce the default judgment against the FARC, and stated that
"there are no objections to the motion." Id. The document also provides notice
"that the Pescatore Plaintiffs have entered into a Joint Prosecution & Sharing
Agreement (“Agreement”) with the plaintiffs in the related case Stansell/Janis v.
FARC, Case No.: 1:10-mc-00471, pending before Judge Kelly." Id. The
document further states that "Plaintiffs have attached a new Proposed Order to this
Notice, which is similar to the previous proposed Order attached to Plaintiffs’
Motion [DE 68-13] except that it now recites that there are no objections to the
motion …," id., suggesting that an earlier motion to enforce the default judgment
was denied for failure to notify the garnishees.
Stansell had already obtained a default judgment against the FARC when
their case against Chiquita was dismissed on June 15, 2010. Exhibit 3, Appx. at
39. In contrast, Pescatore obtained their default judgment against the FARC after
they settled their claims with Chiquita.
5. Stansell and Pescatore obtained an order enforcing the default

judgments against assets of the FARC blocked by OFAC.
On July 10, 2020, the District Court for the District of Columbia ordered that
the default judgments could be enforced, and revealed that $18 million out of over
$20 million dollars of FARC assets frozen by of the Office of Foreign Asset
Control (OFAC) had already been taken by the Stansell and Pescatore Plaintiffs.
12
See Exhibit 1, Memorandum Opinion in Stansell et al v. Revolutionary Armed
Forces of Columbia, No. 10-mc-00471 (D.D.C.), Appx. at 20. Although the
caption refers to only Stansell, the Opinion also applies to Pescatore, and to
Pescatore et al. v. Pineda & FARC, No. 1:08-cv-02245 (TJK) Id. at 3. The part of
the Opinion referring to the Pescatore case says: "In February 2019, Plaintiffs
entered into a Confidential Joint Prosecution & Sharing Agreement with the
plaintiffs in Pescatore et al. v. Pineda & FARC, No. 1:08-cv-02245, which is
currently stayed. The Pescatore plaintiffs are also seeking to enforce a judgment
against the FARC, and Plaintiffs provided the Court notice that ‘the Agreement
resolves all current or future issues of competing judgment lien priority.’ ECF No.
22 at 1; Pescatore et al. v. Pineda & FARC, No. 1:08-cv-02245 (TJK), ECF No. 73
at 1 (D.D.C. Feb. 4, 2019)." Id. at 3, Appx. at 22. The docket in this case, as of
July 14, 2020, is in Exhibit 2, Appx. at 27.
6. Does 1-254 filed claims against Chiquita for murders committed by the
FARC, which are part of the same MDL proceedings.
On March 21, 2011, the legal heirs of the estates of 254 additional persons
murdered by the FARC filed suit against Chiquita in Does 1-254 v. Chiquita
Brands, Case No. 11-80405-CIV-MARRA. Appx. at 274. On March 27, 2012, the
District Court denied Chiquita's Motion to Dismiss. Appx. at 989. The Motion
wasn't based on statutes of limitations. Chiquita hasn't filed a motion to dismiss
13
these cases on statutes of limitations grounds. They are not progressing, according
to the most recent Global Scheduling Order. Appx. at 1058.
STANDARD OF REVIEW
The Court should review the questions presented de novo because they do
not involve factual determinations or matters within the discretion of the District
Court. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). There are
few, if any facts in dispute, and no hearing was held.
The Appellants seek to use the equitable powers of the court, which are
remedies, to enforce their legal rights. The remedy, a constructive trust, doesn't
have its own standard of review.
The exercise of jurisdiction isn't discretionary. Where “a specific duty is
assigned by law, and individual rights depend upon the performance of that duty, it
seems equally clear that the individual who considers himself injured, has a right to
resort to the laws of his country for a remedy.” Marbury v. Madison, 5 U.S.
137,166 (1803); American School of Magnetic Healing v. McAnnulty, 187 U.S.
94, 108 (1902) (“The acts of all officers must be justified by some law, and in case
an official violates the law to the injury of an individual the courts generally have
jurisdiction to grant relief.”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 583 (1952) (Court blocked Presidential order to seize steel mills because order
“was not authorized by an act of Congress or by any constitutional provisions.”)
14
Such is the case here, where the transferor courts lack jurisdiction, because the
JPML never remanded the cases. At least one District Court judge was told that a
remand order from the JPML was required, Appx at 206.5 “[E]quitable relief ... is
traditionally available to enforce federal law, ...” Armstrong v. Exceptional Child
Center, Inc., 135 S. Ct. 1378, 1385-86 (2015).
The refusal of a court to decide a case is warranted only in extraordinary
circumstances. Extraordinary circumstances supporting the refusal to decide cases
have involved a desire to uphold "the rightful independence of state governments,"
or to further a recognized public policy. See Meredith v. City of Winter Haven,
320 U.S. 228, 235 (1943); Burford v. Sun Oil Co., 319 U.S. 315 (1943); Louisiana
Power and Light Co. v. City of Thibodaux, 360 US 25 (1959). That is not the case
here. The public policies of both the United States and Colombia support the
imposition of civil liability in this situation, where the defendant pled guilty to
paying millions of dollars to terrorist groups that murdered the family members of
Does 1-254.
Since the equitable remedy sought wasn't discretionary, but a mechanism to
enforce legal rights, the standard of review isn't abuse of discretion. This Court
should review de novo whether the District Court erred by allowing ex parte,
5
was more than a formality. The Pescatore and Stansell cases were dismissed
This
with prejudice in the Southern District of Florida. Nothing remained that could be
remanded. It would look strange to the transferor judge to receive a case that had
already been dismissed on the merits.
15
default judgments to proceed in the transferor courts, without remand from the
JPML, while not allowing the cases of Does 1-254 to proceed to discovery. The
Southern District of Florida is the only court that had jurisdiction over these cases.
The transferor courts in the Middle District of Florida and the District of Columbia
lack jurisdiction because of the lack of a remand order.
SUMMARY OF ARGUMENT
The U.S. District Courts for the Middle District of Florida and for the
District of Columbia had no jurisdiction to issue ex parte, default judgments
against the FARC, which are void and unenforceable. Stansell and Pescatore
couldn't have obtained remand orders from the JPML, because their cases were
dismissed with prejudice in the MDL transferee court below.
Even if the cases had been remanded, the transferor courts didn't have
personal jurisdiction over the FARC, because FARC aren't "essentially at home" in
either jurisdiction, as required by the Supreme Court in the Goodyear and Daimler
cases. The Klieman and Livnat cases, against the Palestine Liberation Organization
for murders occurring in Israel, are on all fours with this case, and explain that the
lack of personal jurisdiction violates the Due Process Clause of the US
Constitution. The default judgments in the instant case are Due Process violations
in themselves, as is the District Court's decision to allow Pescatore to go to trial,
but not Does 1-254.
16
Re-litigation of claims dismissed with prejudice is barred by claim
preclusion, or res judicata. They are the same claims because they are for the same
murders and kidnappings. Chiquita is being sued for crimes committed by the
FARC. Chiquita's payments to the FARC are not genuinely in dispute, and were
admitted in the Factual Proffer and SLC Report. It is the causation of each murder
that is in dispute, which is the nucleus of operative facts that is the same in each
case against Chiquita and the FARC. Chiquita and the FARC are in privity
because each has the same interest in disproving that the FARC committed the
crime. Finally, and in the alternative, if the FARC were a proper party to these
lawsuits, then they were an indispensable one, and should have been sued as
defendants in the same cases.
Stansell and Pescatore not only re-litigated their claims, but obtained default
judgments in their favor for claims that were dismissed with prejudice. and an
enforcement order in the D.C. District Court. They have an order entitling them to
share up to $300,000,000 dollars in seized FARC assets, even though all of their
claims were dismissed with prejudice. They have apparently taken about $20
million dollars already, without providing notice to the MDL Court or other parties
in the MDL, including Does 1-144.
The Plaintiffs have no adequate remedy at law. The purpose of the
constructive trust would be to stop the dissipation of the assets, $20 million dollars
17
of which have already been taken. The requested remedy wouldn't be futile
because the District Court recently applied Colombia's ten year statute of
limitations to a complaint filed by other counsel against Chiquita, finding that it
had to have been filed, at the latest, by March 17, 2017. Does 1-254 filed their
complaint against Chiquita six years earlier. Claims against the FARC would
"relate back" to the claims filed against Chiquita.
Had Does 1-254 sued the FARC in the first place, their default judgments
would be just as enforceable as those of Stansell and Pescatore. The TRIA was
passed to protect the insurance industry from terrorism claims, and is not the only
way to enforce a judgment against the FARC. These arguments are hypothetical,
because there are no actual statute of limitations or enforceability issues with the
requested relief. The District Court has jurisdiction over the $20 million dollars
taken by Stansell and Pescatore, and the power to put it into a constructive trust.
Also, unlike Stansell and Pescatore, Does 1-254's cases haven't actually been
dismissed. Finally, allowing the Pestatore case to go to trial, while not allowing
Does 1-254 to proceed to discovery, violates the Due Process rights of Does 1-254.
ARGUMENT
As a general rule, a court should address whether it has personal jurisdiction
before reaching the merits of a plaintiff's claims. Republic of Panama v. BCCI
Holdings, 119 F.3d 935, 940 (11th Cir. 1997); Madara v. Hall, 916 F.2d 1510,
18
1513-14 & n. 1 (11th Cir. 1990); Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure, Civil 2d § 1351, at 243-44 (1990). A defendant that is not
subject to the jurisdiction of the court cannot be bound by its rulings. Republic of
Panama, 119 F.3d at 940. As a preliminary matter, courts should determine if they
have the power to bind a defendant with a ruling on the merits of the case. Id.
A. The default judgments and enforcement orders are void because neither
the U.S. District Court for the Middle District of Florida nor the U.S.
District Court for the District of Columbia have personal jurisdiction
over the FARC.
The default judgments against the FARC are unique. The Supreme Court has
made it virtually impossible to sue foreign terrorist organizations in the United
States. No court in the United States has general personal jurisdiction over the
FARC.6 See Stephen J. DiGregoria, If We Don’t Bring Them to Court, the
Terrorists Will Have Won: Reinvigorating the Anti-Terrorist Act and General
Jurisdiction in a Post-Daimler Era, 82 Brook. L. Rev. (2016). Does 1-144 and
1-254 didn't sue the FARC directly because they are an unincorporated foreign
terrorist organization. The Chiquita case is one of many seeking to hold a public
corporation secondarily liable for supporting a terrorist group.
6
Even
when the defendant is a U.S. corporation and personal jurisdiction isn't an
issue, the plaintiffs generally have to show that the case has contacts with, or at
least substantial effects within the United States. (the so-called "effects doctrine")
Under international law, courts also lack subject matter jurisdiction over cases
without contacts or effects within its jurisdiction.
19
1. The FARC are not "essentially at home" in the United States, as

required by clearly established Supreme Court precedent.
In Estate of Klieman v. Palestinian Authority, suit was brought in the United
States under § 2333 of the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. §§ 2331
et seq., for a murder occurring in Israel when gunmen opened fire on a bus with a
machine gun. Estate of Klieman v. Palestinian Authority, 424 F.Supp.2d 153
(D.D.C. 2006) The district court had found that the Palestinian Authority ("PA")
and the Palestine Liberation Organization ("PLO") were subject to general personal
jurisdiction due to their "continuous and systematic" contacts with the United
States. Then, in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915,
919 (2011) and Daimler AG v. Bauman, 571 U.S. 117, 137 (2014), the Supreme
Court raised the standard to exercise general personal jurisdiction from
"continuous and systematic" contacts to "essentially at home." After this
intervening change in the law, the Klieman court found that it could no longer
exercise general jurisdiction over the PA and the PLO, dismissed the case with
prejudice, and found the estate wasn't entitled to relief in any United States court.
Estate of Klieman v. Palestinian Authority, 82 F.Supp.3d 237 (D.D.C. 2015). No
credible argument can be made that the FARC are "essentially at home" in the
United States, or even that the FARC have continuous and systematic contacts with
the United States.
20
Enforcing a $655.5 million dollar judgment, a district court in New York
came to the opposite conclusion. In Sokolow v. Palestine Liberation Org., 2014
WL 6811395 (S.D.N.Y. Dec. 1, 2014) the Southern District of N.Y. found that the
PLO maintains offices in Washington D.C. headed by individuals affiliated with
both the PLO and the PA, that the PLO and PA spend a significant amount of
money on advocacy activities and conduct significant fundraising and lobbying
activities, sufficient to subject them to general personal jurisdiction in U.S. courts,
notwithstanding the Goodyear and Daimler decisions.
The Sokolow case was specifically rejected in Livnat v. Palestinian Auth.,
82 F. Supp. 3d 19, 31 (D.D.C. 2015), another case involving U.S. citizens killed in
Israel by the PLO. While the SDNY had found the PA and PLO were “essentially
at home” in Sokolow, the D.C. District Court interpreted Daimler differently, and
concluded that general personal jurisdiction may not be exercised over these
defendants. Id.
2. The Due Process Clause of the 5th Amendment also bars U.S.
courts from exercising jurisdiction over non-sovereign foreign
entities without an adequate nexus to the United States.
On appeal, personal jurisdiction in Livnat was ultimately found lacking for
another reason. In Livnat v. Palestinian Authority, 851 F.3d 45, 48–54 (D.C. Cir.
2017), cert. denied, 139 S. Ct. 373 (2018), the D.C. Circuit held that the Due
Process Clause of the 5th Amendment barred U.S. courts from exercising
21
jurisdiction over non-sovereign foreign entities without an adequate nexus to the
United States,7 and that the plaintiffs had failed to establish such a nexus. Id. The
decision in the Klieman case was then re-affirmed on this basis. "Daimler (and this
court’s opinion in Livnat) effectively foreclose a ruling that the district court had
general jurisdiction over the PA/PLO." Klieman v. PA, 82 F.Supp.3d 237 (D.C.
Cir. May 14, 2019). The instant case involves default judgments without any
attempt of service of process, and makes even stronger Due Process claims.
3. Stansell and Pescatore did not allege minimum contacts with the
District of Columbia or the United States.
The Pescatore Plaintiffs filed their Complaint on 12/30/2008, in DC District
Court, which was assigned Case Number 08-cv-02245-RMC. Exhibit 9, Appx. at
380. Paragraph 14 explains that the Fuerzas Armadas Revolucionarias de
Colombia, or FARC, is the Defendant. Id. at 3. The same paragraph then states
that the "Since its inception in the 1960, the FARC has been strongly
anti-American and has purposefully targeted American citizens and interests while
engaged in terrorist activity that included murder, hostage-taking, and the violent
destruction of property." Id. This is the only part of the complaint where
7
Althoughthis may sound like the "touch and concern" test in Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108 (2013), the Kiobel case concerned a statute, 28
USC § 1350 note, and the presumption against the extraterritorial application of
statutes in the absence of affirmative language.
22
jurisdictional contacts are alleged. The next two paragraphs, pertaining to a FARC
member who was the co-defendant, are a recitation of his contacts with the forum.
The purposeful targeting of Americans and American interests in Colombia
aren't contacts with the forum, either in D.C. or anywhere in the United States, that
could be applied to the minimum contacts analysis in Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). In any event, the test has been superseded
by the "essentially at home" test in Goodyear and Daimler. See § A (1) infra. The
Stansell complaint makes no attempt to allege contacts at all, and asserts personal
jurisdiction over the FARC on the basis that it is listed as a foreign terrorist
organization. See Exhibit 11 at 6 ¶ 16, Appx. at 420.
4. There is no specific personal jurisdiction because the murders of

Thomas Janis and Frank Pescatore, Jr. didn't occur in Florida or
the District of Columbia.
According to the complaint, Frank Pescatore was killed by the FARC while
working as a geologist in Hato Nuevo, Guajira Department, Colombia. Exhibit 9
at 2, Appx. at 382. This is more than 250 miles from Urabá, Colombia, where
Chiquita's business was located. In any event, the Pescatore case didn't arise in
Florida, where it was filed. The complaint only makes cursory allegations of
ransom demands, not stating whether they were made in the state of Florida, or
how they were made. Appx. at 386.
23
In Pescatore v. Palmera Pineda, 345 F.Supp.3d 68, 76 (D.D.C. 2018) the
D.C. District Court noted that “Defendants targeted American citizens, sought
ransom on them, and killed them, including Mr. Pescatore. ... Due to the purposeful
targeting of Americans by [FARC’s] terrorism, Defendants have minimum
contacts here to establish personal jurisdiction.” The D.C. District Court
erroneously applied the aggregation concept in Mwani v. Bin Laden, 417 F.3d 1
(D.C. Cir. 2005) to a case transferred from the Middle District of Florida, which
should have found no personal jurisdiction because it is in the 11th Circuit. In
addition, by the time this analysis was written, the Pescatore case had already been
dismissed with prejudice by the MDL transferee court.
Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 2005) which is not the law in
this Circuit, allows a plaintiff to aggregate contacts with more than one state, to
show that a defendant had sufficient minimum contacts with the United States as a
whole.8 It is not limited to terrorism cases, but is a personal jurisdiction rule that
could apply to any kind of case involving a defendant with a minimal presence in
8
wani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 2005), Osama bin Laden
InM
purposefully directed his activities towards the United States as a whole, so
contacts with different states could be aggregated for the purpose of establishing
minimum contacts. The plaintiffs could pick a forum state, which shifted the
burden to the defendant to name another state where they could be sued, or accept
the plaintiffs' choice of forum. Nearly all of the claims in the MDL, as well as the
Pescatore and Stansell cases, are for incidents occurring before Mwani was decided
in 2005. The FARC is one of the few terrorist groups that has ever been sued in the
United States, using this or any other theory, and could never have reasonably
anticipated it.
24
the United States. The issue was not actually litigated in the ex parte proceedings
because no one appeared in court to argue the FARC's side.
Stansell makes a better case for purposeful availment, even though it is not
true. The evidence at trial in U.S. v. Palmera Pineda, 07-cr-494 (D.C.D.C.),
showed that the FARC shot at every airplane that flew over them, had no idea who
was onboard the aircraft, and were surprised when the plane went down. When the
FARC's leadership learned of it, they ordered that the survivors be taken prisoner,
and later, tried to use them as part of a prisoner exchange. Palmera Pineda, who
had previously served as one of the FARC's negotiators with the Colombian
government, was selected to be the prisoner exchange negotiator, and was
ultimately convicted for his role in taking the men as prisoners or hostages.
The government didn't have to disprove this to have jurisdiction in the
criminal case. Since Mr. Palmera's four trials were all jury trials, there were no
specific factual findings, but there was no evidence presented that the FARC shot
down the plane because there were Americans on it. Instead, intercepts of FARC
communications showed that the FARC were surprised by the incident, and their
response to it.
a. The FARC lacked a "substantial and continuing

relationship" with Florida or the District of Columbia.
In Burger King v. Rudzewicz, 471 U.S. 462 (1985), the Supreme Court
reasoned that the defendants had a "substantial and continuing" relationship with
25
Burger King in Florida, and that due process wouldn't be violated because the
defendants should have reasonably anticipated being summoned into court in
Florida for breach of contract. Id. at 479-487. The FARC have no such
relationship with the United States, or offices as did the PLO or PA in the Klieman
and Livnat cases. The FARC had no way to know that Americans were on the
plane that was shot down. It's like the Americans riding on the bus in Israel in
Estate of Klieman v. Palestinian Authority, 424 F.Supp.2d 153 (D.D.C. 2006), who
were killed only because they were on the bus. A Colombian Army Sgt. named
Luis Alcides Cruz was also on the plane, and was murdered at the crash site, as
was the American pilot, Thomas Janis.9 The FARC then tried to negotiate a
prisoner exchange with the Colombian, rather than U.S. government, as part of an
ongoing negotiation over prisoners held by both sides. At that time, the FARC
leadership knew they had shot down and were holding Americans, but hadn't
purposefully directed their activities, in advance, towards Americans or the United
States.
Purposeful availment turns on the defendant's intent. Knowledge alone is an
insufficient basis. "The 'substantial connection' between a defendant and the forum
9
The evidence in the criminal trials of Mr. Pineda also showed that the aircraft was
reporting signals intelligence directly to the Colombian military, calling into
question whether the passengers were really civilians. Are private military
contractors on a surveillance mission in a combat zone victims of a terrorist attack
when they're shot down? The courts issuing ex parte default judgments weren't
made aware of all of the facts.
26
State necessary for a finding of minimum contacts must derive from an action
purposely directed toward the forum State, and the mere placement of a product
into the stream of commerce is not such an act, even if done with an awareness that
the stream will sweep the product into the forum State absent additional conduct
indicating an intent to serve the forum state market." Asahi v. Superior Court, 480
U.S. 102, 103 (1987). Here, the possibility that Americans may have been aboard
the plane, and what to do with them afterwards (the Colombian passenger was
executed instead of being taken prisoner), doesn't show premeditation or
purposeful direction.
The purposeful availment argument also depends on a determination that the
FARC should have reasonably anticipated being sued in a U.S. court for harming
Americans in Colombia.10 Justice Brennan's general "reasonableness" or "fairness"
test in Burger King evolved into Justice O'Connor's five factor reasonableness test
two years later in Asahi v. Superior Court, 480 U.S. 102 (1987). A court must
consider "the burden on the defendant, the interests of the forum State, and the
plaintiff's interest in obtaining relief. It must also weigh in its determination 'the
interstate judicial system's interest in obtaining the most efficient resolution of
controversies; and the shared interest of the several States in furthering
10 Should there be any doubt that the FARC have Due Process rights, this argument
is reserved for Appellants' Reply Brief.
27
fundamental substantive social policies.'" Id. at 113, quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980).
b. The ex parte proceedings hindered the shared interest of

Colombia and the United States in furthering fundamental
substantive social policies.
In Asahi, the "procedural and substantive policies of other nations whose
interests are affected by the forum State's assertion of jurisdiction over an alien
defendant must be taken into account, and great care must be exercised when
considering personal jurisdiction in the international context. Although other
nations' interests will differ from case to case, those interests, as well as the Federal
Government's interest in its foreign relations policies, will always be best served by
a careful inquiry into the reasonableness of the particular assertion of jurisdiction
…" 480 U.S. at 115.
Allowing a few American plaintiffs to collect massive default judgments
against assets traceable to the FARC, before hundreds of Colombian plaintiffs have
been heard in court, is harmful to the interest of the Colombian government in
protecting its citizens and ensuring their fair treatment in our courts. The FARC's
activities occurred almost entirely in Colombia, and were directed against
Colombian citizens. It appears that the Colombian government wasn't even
notified that the FARC's assets were awarded to these American plaintiffs. One of
28
the goals of the Colombian Commission of Justice and Peace11 is to seize the assets
of the AUC and FARC, to use to compensate their victims. They haven't been very
successful, in part because those groups are good at money laundering, and have
hidden their assets in other countries. Any policy argument that could be made
would have to acknowledge the Colombian government's responsibility to defend
its own citizens' right of access to foreign courts. In particular, the purpose of the
TRIA was to protect the insurance industry against terrorism claims, not to
discriminate against foreign plaintiffs, or the claims of other countries' citizens on
those assets. If there were such an intent, it would have to be unconstitutional to
discriminate against litigants based on their national origin.12
5. Pescatore didn't serve process on the FARC.
There has already been litigation over Stansell's efforts to identify and serve
individual FARC members, and the validity of suing an entity such as the FARC in
the first place. The default judgments are unique, precedent-setting mistakes,
based on a misrepresentation of the evidence at trial. Pescatore, however, made
only minimal efforts to serve process on the FARC, serving only Mr. Palmera
Pineda - who was never charged with any crime related to the murder of Frank
11 This is a war crimes tribunal, and a competent court of law organized under the
office of the Colombian Fiscalia, or attorney general. The Colombian legal system
is based on European systems that combine the roles of prosecutor and judge.
12 This argument is also reserved for Appellants' Reply Brief, if the Appellees
believe they have a viable argument that such discrimination would be permissible.
29
Pescatore, Jr. - and publishing notices in newspapers. This is not a particularly
important argument, but the fact that there was no one who could be served with
process is further evidence of the invalidity of the ex parte proceedings.
B. Re-litigation of the Pescatore and Stansell cases, which were dismissed

on the merits, was barred by claim preclusion.
Res judicata bars the filing of claims which were raised or could have been
raised in an earlier proceeding. Citibank, N. A. v. Data Lease Financial Corp., 904
F.2d 1498, 1501 (11th Cir. 1990).13 The "full and fair opportunity to litigate
protects [a party's] adversaries from the expense and vexation attending multiple
lawsuits, conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions." Ragsdale v. Rubbermaid,
Inc., 193 F.3d 1235, 1238 (11th Cir.1999), citing Montana v. U.S., 440 U.S. 147
(1979). "By declaring an end to litigation, the doctrine adds certainty and stability
to social institutions. This certainty in turn generates public respect for the courts."
Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir. 1984).
“For res judicata to bar a subsequent case, four elements must be present: (1)
there is a final judgment on the merits; (2) the decision was rendered by a court of
competent jurisdiction; (3) the parties, or those in privity with them, are identical in
13
lowers v. U.S., 764 F.2d 759, 761 (11th Cir.1985) ("stare decisis," which
cf.
F
means that like facts will receive like treatment in a court of law); Community
Bank of Homestead v. Torcise, 162 F.3d 1084, 1086 (11th Cir.1998) (the elements
of collateral estoppel under Florida state law are: (1) the identical issue has been
fully litigated, (2) by the same parties, and (3) a final judgment).
30
both suits; and (4) the same cause of action is involved in both cases.” United
States v. Beane, 841 F.3d 1273, 1283 (11th Cir. 2016); see Moore’s Federal
Practice § 131.01 at 131-11. The first two elements are easily met. The Pescatore
and Stansell Plaintiffs' claims against Chiquita were dismissed with prejudice by
the U.S. District Court for the Southern District of Florida. See Exhibits 13, 21 at
DE 72, Appx. at 485, 549.
1. The FARC's interests were adequately represented by Chiquita,

who are in privity with them, and whose interests were closely
aligned in disproving that the FARC committed the murders.
“Privity is defined as a relationship between one who is a party of record and
a nonparty that is sufficiently close so a judgment for or against the party should
bind or protect the nonparty.” Hart v. Yamaha-Parts Distrib., Inc., 787 F.2d 1468,
1472 (11th Cir. 1986). Privity exists where the nonparty's interests were
represented adequately by the party in the original suit. N.A.A.C.P. v. Hunt, 891
F.2d 1555, 1560 (11th Cir. 1990). Privity also exists where a party to the original
suit is "so closely aligned to a nonparty's interest as to be his virtual
representative." Id. at 1561.
The Appellees argued below that under EEOC v. Pemco Aeroplex, Inc., 383
F.3d 1280, 1286 (11th Cir. 2004), "privity is a flexible legal term that generally
requires that a non-party have 'his interests adequately represented by someone
with the same interests who is a party.'” The Court need not distinguish between
31
having the same interests, and having closely-aligned interests, because the Pemco
case itself uses both expressions. In Pemco, the term of art employed was "virtual
representation," which applies "when the respective interests are closely aligned
and the party to the prior litigation adequately represented those interests." Id. at
1287, quoting Delta Air Lines, Inc. v. McCoy Rests., Inc., 708 F.2d 582, 587 (11th
Cir. 1983) ("Under res judicata doctrines such as 'virtual representation,' a litigant
may be precluded from litigating an issue based on a prior lawsuit in which,
although he was not a party, his interests were represented by a party. This
principle applies, however, only when the respective interests are closely aligned
and the party to the prior litigation adequately represented those interests." (citation
omitted)). Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 717 (5th Cir. 1975)
(doctrine of virtual representation provides in essence that "a person may be bound
by a judgment even though not a party if one of the parties to the suit is so closely
aligned with his interests as to be his virtual representative.").14
The Court has employed four factors in determining whether there is virtual
representation: whether there was "participation in the first litigation, apparent
consent to be bound, apparent tactical maneuvering, [and] close relationships
between the parties and nonparties." Id. at 1287, citing Jaffree v. Wallace, 837
14
The
Eleventh Circuit has adopted as precedent the decisions of the former Fifth
Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc).
32
F.2d 1461, 1467 (11th Cir. 1988); 18 Wright & Miller, Federal Practice &
Procedure § 4457, at 494-99. All of these factors need not be found to meet the
virtual representation standard. Id.
The factors are easily met here. The fourth, the close relationship between
Chiquita and FARC, is based on the fact that Chiquita is being held secondarily
liable for the FARC's acts. The non-Movants cannot argue that the FARC and
Chiquita had different legal interests just because of the difference in legal theories
applied. The different legal theories only relate to the difference between primary
and secondary liability of the tortfeasors. They both had an interest in proving that
the FARC didn't commit the crimes. That is what the "nucleus" of facts in dispute
in each case is always about.
The FARC were adequately represented in the cases defended by Covington
and Burling LLP and Blank Rome LLP, counsel for Chiquita Brands, who got the
Stansell and Pescatore cases dismissed with prejudice. The FARC were not
adequately represented in the ex parte default judgments.
2. The cases brought by Pescatore and Stansell against the FARC

and against Chiquita are based on the same nuclei of operative
facts.
“If a case arises out of the same nucleus of operative facts, or is based upon
the same factual predicate, as a former action, ... the two cases are really the same
‘claim’ or ‘cause of action’ for purposes of res judicata.” Baloco v. Drummond
33
Co., 767 F.3d 1229, 1247 (11th Cir. 2014), quoting Griswold v. Cnty. of
Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010) (internal quotation marks
omitted) “Res judicata applies not only to the precise legal theory presented in the
prior case, but to all legal theories and claims arising out of the same nucleus of
operative fact." N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1561 (11th Cir.1990);
Olmstead v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984). Generally,
claims arise out of a common nucleus of operative fact when they “involve the
same witnesses, presentation of the same evidence, and determination of the same,
or very similar, facts.” Palmer v. Hosp. Auth. of Randolph Cty., 22 F.3d 1559,
1563–64 (11th Cir. 1994).
"The principal test for determining whether the causes of action are the same
is whether the primary right and duty are the same in each case. In determining
whether the causes of action are the same, a court must compare the substance of
the actions, not their form." Citibank, N. A. v. Data Lease Financial Corp., 904
F.2d 1498, 1503 (11th Cir. 1990) (citations omitted). "It is now said, in general,
that if a case arises out of the same nucleus of operative fact, or is based upon the
same factual predicate, as a former action, that the two cases are really the same
`claim' or `cause of action' for purposes of res judicata." Id.
Pescatore and Stansell sued Chiquita and the FARC for the same incidents:
the kidnapping and murder of Frank Pescatore, Jr., and the murder of Thomas Janis
34
and associated kidnappings of other private military contractors. Chiquita admitted
making payments to the FARC (as well as the AUC) in the Factual Proffer in the
underlying criminal case. Id. at ¶ 20. Then, Chiquita's internal investigation,
resulting in the Special Litigation Committee Report, found that Chiquita paid
about the same amount to the FARC as to the AUC, or roughly $1.6 million
dollars. Appx. at 602-617. Chiquita couldn't argue duress as an affirmative
defense in the ATA cases. See Order Granting Plaintiffs’ Motion For Partial
Summary Judgment on the Affirmative Defense of Duress. Appx. at 997.
A finding that the FARC was responsible for the murders would be
necessary to prove their cases against Chiquita. A finding that the FARC wasn't
responsible would end their cases against Chiquita. They are not “concurrent
causes,” in that each tortfeasor would have caused the injury alone. Chiquita's
liability is premised on the FARC's liability. This nucleus of facts in dispute
pertains to causation, and is different for each incident.
3. The FARC were a necessary and indispensable party because they

committed the murders for which the plaintiffs seek to hold
Chiquita liable.
If the FARC are a proper party to be sued, then they were also a necessary
and indispensable party in the cases against Chiquita. Does 1-254 seek to hold
Chiquita secondarily liable, using theories of negligence, conspiracy, aiding and
abetting, and joint and several liability, for what the FARC did. Stansell and
35
Pescatore sued Chiquita under the Anti Terrorism Act for murders committed by
the FARC.
"If a person has not been joined as required, the court must order that the
person be made a party." Fed. R. Civ. P. 19. In this case, the FARC wasn't named
as a party in Pescatore and Stansell's cases against Chiquita. Lawsuits for the same
murders proceeded in parallel, in different courts, even though Chiquita's liability
was premised on the FARC's liability. The final judgments of both courts couldn't
be more in conflict.
C. The lack of personal jurisdiction, the lack of a remand order from the
JPML, the lack of notice to other interested parties, and the award of
default judgments for claims dismissed by another court with prejudice,
show that no remedy at law is available.
"Florida courts have long recognized a cause of action for unjust enrichment
'to prevent the wrongful retention of a benefit, or the retention of money or
property of another, in violation of good conscience and fundamental principles of
justice or equity.'" State Farm Fire & Cas. Co. v. Silver Star Health & Rehab, 739
F.3d 579, 584 (11th Cir. 2013) (quoting Butler v. Trizec Props., Inc., 524 So. 2d
710, 711 (Fla. 2d DCA 1988)); see Fred Ezra Co. v. Pedas, 682 A.2d 173 (D.C.
1996). Such was the case with Pescatore and Stansell, who obtained and enforced
default judgments in other courts which patently lack jurisdiction, without ever
notifying this Court, and or disclosing to the other courts that their cases against
36
Chiquita for the same injuries had been dismissed. The enforcement of default
judgments for claims that were dismissed with prejudice was not done in good
conscience, and despite fundamental principles of justice and equity. 739 F.3d at
584.
Stansell and Pescatore obtained court orders in other courts enforcing default
judgments for cases dismissed with prejudice by the District Court. Aside from the
novelty of default judgments against a foreign terrorist organization in courts
lacking jurisdiction, Stansell and Pescatore are re-litigating the same cases already
brought to final judgment in another court, barred by res judicata, without
providing notice to that court or to other interested parties. None of this was legal.
There is no adequate remedy at law for Does 1-254. It would not be reasonable,
for example, for Does 1-254 to file motions in the D.C. District Court, where their
cases were first filed, because they know that the MDL court in Florida has not
remanded them. A constructive trust is needed to maintain the status quo and
prevent the dissipation of the assets
1. Allowing Does 1-254 to follow the same procedures used by

Pescatore and Stansell to obtain default judgments wouldn't be
futile.
After the District Court denied Does 1-254's Motion for a Constructive Trust
on the basis that the FARC weren't named as a defendant in the Complaint, Appx.
at 1, Does 1-254 moved for reconsideration, and in the alternative, moved for
37
Leave to Amend their Complaint to include the FARC as a defendant. The District
Court denied reconsideration because the "Plaintiffs do not adequately address the
opposing parties’ contention that the proposed amendment would be futile, vis a
vis statute of limitation impediments, nor do they overcome the suggestion of
jurisdictional impediments which they themselves raised by way of explaining
their initial strategical decision not to sue the FARC in this litigation." Appx. at
2-3. The District Court then repeated the jurisdictional and ethical issues argued
by Does 1-254, and used them as reasons to deny the same relief it afforded to
Stansell and Pescatore. Appx. at 3.
The District Court further explained that since "Does 1-254 made a
deliberate decision not to sue the FARC at the outset of this case due to perceived
jurisdictional or other legal impediments to such claims, it is incumbent on the Doe
Plaintiffs to explain the abandonment of their earlier, polar positions on the
FARC’s amenability to suit in this MDL. Their failure to do so militates against
the suggestion that the interests of justice would be furthered by permitting the
proposed amendment."15 Does 1-254 did explain this in the Motion for
Reconsideration. They merely suggested amending the complaint as an alternative
15
The
so-called strategic decision not to sue the FARC overlooks the fact that there
appears to be no legitimate way to do it. The default judgments against the FARC
are unique. Pescatore and Stansell's strategy also required bypassing the JPML to
obtain default, ex parte judgments for cases that were already dismissed with
prejudice. The Court shouldn't reward Stansell and Pescatore for doing that.
38
remedy in a separate motion for leave to amend. The argument was that, if the
Court allows Pescatore and Stansell to do something, it should also allow Does
1-254.
The District Court already has the power to order the constructive trust,
because it is the only court that actually has jurisdiction over claims for the
Pescatore and Stansell murders. At least $20 million dollars of the FARC's money
is in the possession of Pescatore and Stansell themselves. It is really irrelevant that
the FARC are a terrorist organization, because as the perpetrators of the crimes,
they have civil liability regardless of their status.
a. Does 1-254's claims against the FARC would relate back to

their claims against Chiquita, for purposes of statutes of
limitations.
Claims against the FARC "relate back" to the claims made by Does 1-254
against Chiquita because they are for the exact same incidents, and involve only
different defendants. Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure
allows such amendments, as long as "the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out - or attempted to be
set out - in the original pleading," id., regardless of any other rights plaintiffs may
have to amend their complaint. The relation back doctrine doesn't require leave of
the court. Does 1-254 filed a separate, alternative motion for leave to amend to
add the FARC as a defendant, see Proposed Amended Complaint, Appx. at 867,
39
which the District Court didn't have the discretion to deny. None of this is needed,
though, because the District Court already has jurisdiction over the Stansell and
Pestatore cases, and over the res of the proposed trust. If any court had jurisdiction
over the FARC in the proceedings that have already transpired, it is the District
Court below.
b. The District Court recently applied the Colombian ten year

statute of limitations to a New Jersey complaint, finding
that claims had to have been filed, at the latest, by March
17, 2017. Does 1-254 filed their complaint six years earlier,
on March 17, 2011.
Chiquita never tried to dismiss the cases in the Does 1-254 complaint on the
grounds of statutes of limitations. The only motion made by Chiquita to dismiss
these cases, on other grounds, was denied. Appx. at 989.
The District Court has ruled inconsistently on this issue, finding on
November 29, 2016 that the District of Columbia had a sufficient interest in the
case to apply the three year general limitations period in the D.C. Code to claims
filed by Attorney Collingsworth, DE 1194,16 and more recently, that New Jersey
16 In that ruling, the District Court held that "Because Plaintiffs chose to file their
claims in a United States court in the District of Colombia, the Court agrees it is
obligated to enforce the D.C. three-year statute of limitations in the wrongful death
claims arising from deaths which occurred in Colombia. See Higgins, supra. The
Court further agrees that Plaintiffs do not allege sufficient facts sufficient to
support an equitable tolling of the applicable statute of limitations beyond the
March, 2007 accrual date corresponding to the entry date of Chiquita’s D.C. guilty
plea, or the relation back of any newly added claims to the time of filing of the
original complaint." DE 1194 at 30. This reasoning cannot be reconciled with the
application of the Colombian limitations period to the New Jersey action.
40
had no such interest, so the ten year limitations period in the Colombian Civil Code
applied. "Based on these conclusions, the Court holds that Colombia’s 10-year
ordinary statute of limitations began to run, at the latest, on March 17, 2007, the
date Chiquita’s D.C. plea to crimes relating to its financial support of foreign
terrorist organizations became public (Complaint, ¶1026), and it expired ten years
later, on March 17, 2017." Appx. at 1082. Does 1-254 filed their complaint six
years earlier, on March 17, 2011. Appx at 379.
The inconsistent rulings cannot be reconciled for two different reasons. The
interests of the District of Columbia and New Jersey are not so different that they
should produce opposite results. The contacts are similar. The criminal
prosecution of Chiquita Brands, International Inc. occurred in the District of
Columbia, a forum chosen by the U.S. Department of Justice. Chiquita was
incorporated in New Jersey when those plaintiffs first filed their complaint, so New
Jersey would arguably be responsible for regulating Chiquita's conduct. New
Jersey has its own general limitations period, which is intended to shield New
Jersey defendants. Yet the District Court came to opposition conclusions with
respect to claims filed in D.C. and New Jersey. A distinction between substantive
and procedural law was made in one ruling and not the other. Second, it doesn't
follow that because D.C. has an interest, foreign plaintiffs cannot sue. The District
of Columbia has other interests aside from the statute of limitations, such as in
41
providing a forum for Colombian litigants, discouraging the financing of terrorism,
and having courts that follow the rules of law.
If the District Court is going to apply Colombian law, it should use the ten
year statute of limitations in the Colombian Civil Code. In wrongful death cases,
D.C. courts apply the statute of limitations from the jurisdiction where the fatal
injuries occurred, as long as the “limitations period is prescribed by the statute that
creates the cause of action, and is therefore considered part of the substantive law.”
Klayman v. Judicial Watch, Inc., 2007 WL 1034936, at *4 (D.D.C. Apr. 3, 2007).
The Colombian Civil Code, if that is the applicable law, includes sections creating
civil liability for wrongful death, and statutes of limitations, which differ
depending on whether the murder is an ordinary one, or a war crime. The
underlying murders committed by the FARC were war crimes, for which Chiquita
is liable, either through negligence, conspiracy, or aiding and abetting.
The claims are not futile because the outcome of this legal issue cannot be
determined with any degree of certainty. Chiquita has had ten years to file a
motion to dismiss these claims, but apparently prefers not to litigate this yet. It
shouldn't be raised for the first time on appeal, and should be decided by a court in
the District of Columbia. At this point, the statute of limitations argument is really
a red herring, because there are no procedural bars to equitable relief. To prove
futility, the Appellees would have to prove that it would be impossible for Does
42
1-254 to prevail on their statute of limitations argument, were the cases to proceed
to the summary judgment phase. It is not impossible, because the District Court
found that New Jersey didn't have a sufficient interest in this case. Appx. at 1064.
c. The TRIA was intended to create a fund to protect the

insurance industry, and is not the only method for enforcing
a judgment against a terrorist organization.
The Appellee's use of the Terrorism Risk Insurance Program ("TRIA") and
so-called "TRIA conversions" are novel even notwithstanding the fact that they
are based on ex parte, default judgments. After the attacks of September 11, 2001,
insurance companies stopped providing terrorism insurance. Congress responded
by passing the TRIA, which protected the insurance industry by making the
government re-insure and share losses on commercial property and casualty
insurance. See Baird Webel, Terrorism Risk Insurance: Overview and Issue
Analysis for the 116th Congress, Congressional Research Service, R45707, Dec.
27, 2019.17 According to the most recent information available at the time of this
writing, the TRIA is set to expire at the end of this year. Id. at 2. This appears to
be the only time the law has ever been used. "Although the United States has
suffered attacks deemed 'terrorism' since the passage of TRIA, no acts of terrorism
have been certified and no payments have occurred under TRIA." Id. at 2. This
was apparently written before the enforcement action in D.C. came to light.
17
Online at https://crsreports.congress.gov/product/pdf/R/R45707
43
Since this is Stansell and Pescatore's main argument, it will be reserved for
the Reply. The TRIA was a strange mechanism for them to use to collect their
default judgments. Although default judgments against terrorist organizations
may be rare, or unique, civil cases against persons whose assets were subject to
forfeiture are not. It's true that the assets become the property of the U.S.
government at the time they are seized, but we'll reserve argument about this for
the Reply, since the use of the TRIA for this purpose is what is strange and
unique. Does 1-254 presumably could have obtained default judgments against
the FARC, and then tried to attach assets to the judgment by showing they were
the proceeds of the conspiracy's criminal activities. In other words, the TRIA
doesn't provide any special rights or preference to Stansell and Pescatore,
compared to Does 1-254, with regard to the FARC's assets.
d. Does 1-254 have a right to the FARC's assets pursuant to

the Crime Victim Rights Act.
The Crime Victim Rights Act ("CVRA"), 18 U.S.C. § 3771, was passed as
part of the United States Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat.
2260 (effective Oct. 30, 2004). The CVRA enumerates the rights of victims in
federal criminal cases, and should apply to the victims of Chiquita's felony
conviction pursuant to 31 C.F.R. 594.204, for “Engaging in Transactions with a
Specially-Designated Global Terrorist.” That Regulation states:
44
Except as otherwise authorized, no U.S. person may engage in any

transaction or dealing in property or interests in property of persons whose
property or interests in property are blocked pursuant to § 594.201(a),
including but not limited to the making or receiving of any contribution of
funds, goods, or services to or for the benefit of persons whose property or
interests in property are blocked pursuant to § 594.201(a).
In turn, Federal Regulation § 594.201(a)(2) provides that such persons
whose interests are blocked, include “[f]oreign persons determined by the
Secretary of State, in consultation with the Secretary of the Treasury, the Secretary
of Homeland Security and the Attorney General, to have committed, or to pose a
significant risk of committing, acts of terrorism that threaten the security of U.S.
nationals or the national security, foreign policy, or economy of the United States.”
Id. In the instant case, this refers to the FARC. Chiquita's guilty plea may be
found in the Appendix on pages 550-566.
There's nothing in the text of the CVRA limiting it to crime victims who are
U.S. citizens. "For the purposes of this chapter, the term ‘crime victim’ means a
person directly and proximately harmed as a result of the commission of a Federal
offense ..." 18 U.S.C. § 3771(e). Determining whether or not a potential victim
was “directly and proximately harmed” under the CVRA is based on traditional
“but for” and proximate cause analyses. In re Rendon Galvis, 564 F.3d 170 (2d
Cir. 2009).18
18
.S. v. Catoggio, 326 F.3d 323 (2nd Cir. 2003) the 2nd Circuit remanded an
In
U
$80 million restitution award in a RICO prosecution for fraud because the victims
45
Although other statutes, including the Victim and Witness Protection Act
and Mandatory Victim Restitution Act (18 USCA § 3663A), provide certain
enumerated offenses for which restitution may be ordered, the CVRA gives courts
the authority to order restitution for victims of crimes, even though the charged
offense isn't listed in the federal restitution statutes. U.S. v. Guidant, LLC., 708 F.
Supp.2d 903 (Minn. 2010). Following In re McNulty, 597 F.3d 344 (6th Cir.
2010), the Guidant Court found that because the CVRA doesn't contain the
qualifier "for which restitution may be ordered," it applies to all federal criminal
prosecutions, regardless of whether the offense qualifies for restitution under the
other statutes. Id. at 911.
The CVRA also requires that crime victims receive notice of any potential
plea agreement, and the right to be heard. See Charles Doyle, Crime Victims’
Rights Act: A Summary and Legal Analysis of 18 U.S.C. §3771, Congressional
Research Service (Dec. 9, 2015) at 12-15. This is exactly what this appeal is
about. Does 1-254 could bring separate claims under the CVRA, but this isn't
required, because the District Court already has jurisdiction over the Stansell and
Pescatore cases, and the power to fashion equitable remedies. The argument is
simply that establishing a constructive trust wouldn't be futile.
were not sufficiently identified. This case does not, however, preclude an award to
a large number of crime victims, as long as they can be identified.
46
The mandatory restitution provisions of §3663A apply to convictions for "a
crime of violence, as defined in §16;" id., which describes a crime of violence as
either “(a) an offense that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another, or (b) any other
offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course
of committing the offense.”19 Here, Chiquita's monthly payments to the FARC,
made over a period of nearly a decade at a rate of about $100,000-$200,000 dollars
per year, see SLC Report, Appx. at 602, involved a substantial risk that physical
force would be used in the course of the illegal payment scheme.20
Section 3771, like the restitution statutes, states that in the case of a deceased
or incapacitated victim, “the legal guardians of the crime victim or the
19
In
the alternative, § 3663 authorizes discretionary restitution when the defendant
has been convicted of a crime under Title 18 of the United States Code. 18 U.S.C.
3663(a)(1)(A). It comes into play when the mandatory restitution provisions don't
control. The fact that the District Court has the discretion to order restitution for
any Title 18 offense shows that Doe 1-254's arguments aren't futile.
20
Chiquita's payments to the FARC, which were continuous over a period of X
years, are properly viewed as a criminal conspiracy. Chiquita tried to argue that
they were the victims of extortion or duress. The District Court's Order Granting
Plaintiffs’ Motion For Partial Summary Judgment on the Affirmative Defense of
Duress may be found in the Appendix at pages 997-1057. Moreover, Chiquita's
guilty plea operates as a waiver, or estopps Chiquita from arguing duress as a
defense in the related civil case. Therefore the question isn't whether any one
payment proximately caused a particular murder. It is whether the conspiracy
between Chiquita and the FARC involved a substantial risk that physical force
would be used against the victims in Does 1-254.
47
representatives of the crime victim’s estate, family members, or any other persons
appointed as suitable by the court, may assume the crime victim’s rights.” Id.;
United States v. Hairson, 888 F.2d 1349, 1355 (11th Cir. 1989) (noting that the
legislative history “states that ... the definition of ‘victims’ is purposely broad to
include indirect victims, such as family members of victims,” citing Senate Report,
S.Rept. 97-532 at 13 (1982)).
Section 3664 describes how the court must frame the restitution order. The
order must envision full compensation for the losses of each victim without regard
to the financial circumstances of the defendant. 18 U.S.C. 3664(f)(1)(A); United
States v. Joseph, 743 F.3d 1350, 1353-354 (11th Cir. 2014). In its calculation of
the manner and schedule of payment for each victim, the court is to consider the
defendant’s assets, anticipated future income, and other financial obligations. 18
U.S.C. 3664(f)(2); United States v. Sanchez-Maldonado, 737 F.3d 826, 828-29 (1st
Cir. 2013); United States v. Grant, 715 F.3d 552, 558 (4th Cir. 2013); United States
v. Dann, 652 F.3d 1160, 1179 (9th Cir. 2011).
There are several means to enforce a restitution order. Section 3664(m)
declares that restitution orders may be enforced in the manner used to collect fines
or “by all other available and reasonable means.” 18 U.S.C. 3664(m)(A)(i), (ii).
A restitution order operates as a lien in the name of the United States on the
defendant’s property that remains in effect for 20 years. 18 U.S.C. 3613(c). A
48
victim may use a restitution order to secure a lien in her own name against the
defendant’s property to ensure the payment of restitution. 18 U.S.C.
3664(m)(1)(B).21 In addition, the victims’ rights provisions of 18 U.S.C. 3771
entitle a victim to “full and timely restitution as provided in law,” a right that is
enforceable through a liberalized form of mandamus. In re Steward, 552 F.3d
1285, 1288-289 (11th Cir. 2008).
2. Allowing the Pestatore case to go to trial, while not allowing Does

1-254 to proceed to discovery, violates the Fifth and Seventh
Amendment rights of Does 1-254, and deprives them of any
remedy.
By allowing Pescatore and Stansell to go to trial ahead of Does 1-254, and
effectively staying Does 1-254's cases indefinitely while the transferee court
conducts bellwether trials that exclude persons killed by the FARC, the District
Court has allowed these two plaintiffs to take all of the assets of the FARC terrorist
group. The Due Process Clause of the 5th Amendment of the Constitution requires
that Does 1-254 be “given a meaningful opportunity to present their case[s].”
Mathews v. Eldridge, 424 U.S. 319, 349 (1976); see Cimino v. Raymark Indus.,
21
“At
the request of a victim named in a restitution order, the clerk of the court
shall issue an abstract of judgment certifying that a judgment has been entered in
favor of such victim in the amount specified in the restitution order. Upon
registering, recording, docketing, or indexing such abstract in accordance with the
rules and requirements relating to judgments of the court of the State where the
district court is located, the abstract of judgment shall be a lien on the property of
the defendant located in such State in the same manner and to the same extent and
under the same conditions as a judgment of a court of general jurisdiction in that
State.”
49
151 F.3d 297, 319–22 (5th Cir. 1998) (holding that individual jury determinations
of liability, injury, and damages are required by the Seventh Amendment in an
asbestos mass tort personal injury context). The District Court was supposed to
coordinate pretrial proceedings, rather than allowing only certain cases to proceed.
28 USC § 1407. See Redish, M. H., & Karaba, J. M. (2015), One size doesn't fit
all: Multidistrict litigation, due process, and the dangers of procedural
collectivism, Boston University Law Review, 95(1).
3. The District Court should establish a constructive trust to

compensate all FARC victims who have filed claims against
Chiquita for murders committed by the FARC.
"The purpose of a constructive trust is to prevent the unjust enrichment of
culpable parties." Bender v. CenTrust Mortg. Corp., 51 F.3d 1027, 1029 (11th Cir.
1995), citing Am. Nat'l Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1541 (11th
Cir. 1983). Disgorgement is also an equitable remedy, and "a district court may
freeze a defendant's assets to ensure the adequacy of a disgorgement remedy."
CFTC v. Levy, 541 F.3d 1102, 1114 (11th Cir. 2008); SEC v. ETS Payphones,
Inc., 408 F.3d 727, 734 (11th Cir. 2005) (upholding asset freeze as a justified
"means of preserving funds for the equitable remedy of disgorgement").
A constructive trust may be imposed upon funds in the possession of third
parties under certain circumstances. Bender v. CenTrust, 51 F.3d at 1262 n.10. The
Court should consider those funds capable of reasonable tracing to be the res of a
50
constructive trust, which if not frozen, will be dissipated. The plaintiffs have no
adequate remedy at law for the funds they seek, due to the lack of jurisdiction over
the FARC and other reasons outlined in this brief.
CONCLUSION
For the foregoing reasons, the Court should reverse and remand the case,
and order the District Court to establish a constructive trust over the FARC's
assets, and equitably distribute the assets among all of the FARC's victims in the
MDL.
Respectfully submitted,
/s/ Paul Wolf

________________________
Paul Wolf, DC Bar #480285
Attorney for Does 1-254
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986
[email protected]
December 14, 2020
Certificate of Compliance
with Type-Volume Limitation
I hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 11,614 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 11th Cir. R. 32-4, and
51
2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because it has
been prepared using Google Docs in Times New Roman, 14-point font.
/s/ Paul Wolf

_________________
Paul Wolf
Certificate of Service
I hereby certify that on this 14th of December, 2020, I served copies of this
brief by U.S. Priority Mail counsel for all parties, as detailed below.
/s/ Paul Wolf

_________________
Paul Wolf
Two copies to:
Newton Patrick Porter

Porter & Korvick, PA
9655 S Dixie Hwy Suite #208
Miami, FL 33156
Counsel for Plaintiff-Appellees
Stansell and Pescatore
One copy to
Michael Cioffi, Esq.

Blank Rome, LLP
201 E 5th St #1700
Cincinnati, OH 45202
Counsel for Chiquita Brands, International, Inc.
One copy to
David M. Glass
U.S. Department of Justice - Civil Division
Federal Programs Branch
20 Massachusetts Ave. NW
52
Washington, DC 20530
Counsel for U.S.A.
53

Does 1-254 V Chiquita Brands - Appellants Principal Brief

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USCA11 Case: 20-14238 Date Filed: 12/14/2020 Page: 1 of 105

Case No. 20-14238-RR

UNITED STATES COURT OF APPEALS

Does 1 Through 254, et al. v.

On Appeal from the United States District Court

OF APPELLANTS "DOES 1-254"

Paul Wolf, DC Bar #480285

CERTIFICATE OF INTERESTED PERSONS

attorneys, persons, associations of persons, firms, partnerships, or corporations

of the particular case on appeal, including subsidiaries, conglomerates, affiliates,

known to Appellants, are as follows:

1. Plaintiff-Appellants "Does 1-254," whose real names are:

Agudelo Castano, Margrieth Cecilia

Aguirre Braun, Irma Nury

Alzate de Escobar, Maria Leonilda

Anay Mosquera, Rosa

Anaya Dias, Lesvia Petrona

Angarita Gomez, Maria Estela

Arbelaez Marin, Alba Nidia

Arenas Gil, Ancizar Alexander

Arias Arias, Adriana Patricia

Arias de Moscoso, Luz Mariela

Arismendes, Blanca Libia

Arrieta Zumaque, Carmen

Page C-1 of C-39

Asprilla de Barrios, Maria Isabel

Asprilla Rivas, Ana Joaquina

Avendano Suarez, Maria Orfelina

Avila Payares, William Antonio

Balenzuela Escobar, Rosa Margarita

Barrientos Gomez, Maria Rocio

Bedoya Mosquera, Marlenis

Bedoya de Torres, Margarita

Bedoya Gomez, Alirio de Jesus

Bedoya Correa, Uverly

Benitez Varilla, Maria Judith

Benitez Sepulveda, Consuelo

Berrio de Usuga, Berta Oliva

Blanquicet Gonzalez, Sara del Carmen

Bohorquez Borja, Omar de Jesus

Borja Arias, Aracely

Bram Cartagena, Mariela de Jesus

Burgos Genes, Gabriel

Burgos Villalobo, Esbil

Page C-2 of C-39

Cabadia de Aguilar, Sixta Tulia

Caceres Zumaque, Magdalena

Caicedo Mena, Gregoria

Camano Mora, Marve Luz

Campo Rodriguez, Maria Ines

Cano David, Ana Maria

Cano Sepulveda, Migdonia

Cantero Cordoba, Elizabeth

Cardona Goez, Rosalbina

Cardona Echavarria, Oliva

Castellanos Cogollo, Ramona del Carmen

Castellanos Yanos, Elizabeth

Castro Gomez, Alina Yaneth

Causil Almario, Arnoli