Case 0:08-md-01916-KAM Document 2665 Entered on FLSD Docket 07/12/2020 Page 1 of 9

UNITED STATES DISTRICT COURT

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

IN RE: CHIQUITA BRANDS

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

This Order relates to:

ATS ACTIONS
__________________________________________/

11-80405-CIV-MARRA (D.C. Action) (Does 1-254)

__________________________________________/

NOTICE OF CHARGING LIEN BY DOES 1-254

Does 1-254, who are the legal heirs of 254 individuals murdered by the

Fuerzas Armadas Revolucionarias de Colombia, (Revolutionary Armed Forces of

Colombia, or FARC), hereby provide notice of a charging lien placed on any assets

of the FARC used to satisfy a default judgment of the Middle District of Florida in

Stansell v. Revolutionary Armed Forces of Colombia (FARC), No. 09-2308

(RALMAP), ECF No. 233 (M.D. Fla. June 15, 2010).1 See Memorandum Opinion

1
The notice is without prejudice to 152 additional victims of the FARC who
attempted to join the case on November 8, 2016. See DE 1182 in In Re Chiquita
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of the Honorable Timothy J. Kelly, DE 70 in Stansell et al v. Revolutionary Armed

Forces Of Columbia, No. 10-mc-00471 (D.D.C. 2020) of July 10, 2020, attached

as Exhibit 1 hereto, which is an enforcement action in D.C. District Court.

The case involves not only the Stansell plaintiffs' claims against the FARC,

but also claims of 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. (hereinafter the "Pescatore

Plaintiffs") The Pescatore murders are the same transactions or occurrences that

were already litigated to a final judgment in Multi District Litigation proceedings

in the U.S. District Court for the Southern District of Florida on February 15, 2018,

and are part of the MDL. See Stipulation of Voluntary Dismissal with Prejudice,

Exhibit 2, attached hereto. Those cases were already settled.

When the Pescatore Plaintiffs sued Chiquita, they filed a Notice of Related

Case stating that the Pescatores' previously-filed claims against the FARC were

related to their new claims against Chiquita Brands. See Exhibit 3 attached hereto.

In fact, they are claims for the same murders, which were allegedly commited by

Brands International, Inc., Case No. 08-1916-MD (SDFL). The District Court held
that they had missed the statute of limitations for negligence. However, the cases
of the original 254 plaintiffs, filed in 2010, were not dismissed. In addition, it's
without prejudice to about a quarter or so of the original plaintiffs in the Does 1-
144 complaint, who are victims of the FARC rather than the AUC. The
representation in those cases was in dispute and is being resolved now in
undersigned counsel's favor, although new agreements must be signed.
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the FARC and financed by Chiquita Brands. The JPML transferred the Pescatores'

claims against Chiquita to the MDL. However, no comparable Notice of Related

Case was filed in the Pescatores' lawsuit against the FARC, although this is a

standard form that's supposed to be filed in any lawsuit. It doesn't appear that any

notice was filed with the JPML either, even though the same counsel are

representing the Pescatore Plaintiffs in all of these matters. The Pescatores' cases

against the FARC were never properly transferred to the court that has jurisdiction

over them. The MDL court issued a final judgment, but has been left out of the

process of assigning tens or hundreds of millions of dollars in a limited fund based

on an undefended default judgment in a different court, which doesn't even appear

to have personal jurisdiction over the defendants.2

Does 1-254 didn't sue the FARC, since they are an unincorporated terrorist

organization and personal jurisdiction is a problem. For example, personal

jurisdiction in lawsuits against the Palestine Liberation Organization (the PLO) and

the Palestinian Authority (the PA) had once been based on their "continuous and

systematic" contacts with the United States. It's doubtful the FARC could meet

this standard. Then, in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564

2
Having personal jurisdiction over a defendant's assets doesn't equate to personal
jurisdiction over the defendant. The ownership of property in a jurisdiction may be
a factor to consider, but the FARC aren't necessarily "at home" where their assets
can be found. That would vitiate the Supreme Court's holdings in Goodyear and
Daimler.
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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." Ever since, district

courts have dismissed terrorism cases against the PLO and the PA with prejudice

due to a lack of personal jurisdiction over the defendants. No credible argument

can be made that the FARC are "essentially at home" in the United States.

Lawyers could be subject to Rule 11 sanctions for filing claims that appear barred

by these clearly established Supreme Court precedents.

If the FARC (and Autodefensas Unidas de Colombia, or AUC, another

terrorist group involved in the MDL) can ethically be sued, then they were

necessary and indispensible parties that must have been joined in the litigation

resulting in the settlement by Chiquita. See FRCP 19. "If a person has not been

joined as required, the court must order that the person be made a party."

(emphasis added) Aside from the novelty of a default judgment against a foreign

terrorist organization, the Pescatore Plaintiffs are re-litigating the same murders

already brought to final judgment in a different court, and barred by res judicata,

without providing notice to that court, as they were required to do.

The enforcement should be stayed until the limited fund of the FARC's

resources can be properly apportioned among the plaintiffs. The reason the

Pescatore Plaintiffs appear to have judgment priority over the hundreds of other

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FARC victims in the MDL is that their cases were set for trial first, and settled.

The Southern District of Florida used its discretion to allow the Pescatore plaintiffs

to go to trial in February of 2018, while thousands of Colombian plaintiffs were

made to wait their turn. At least 254 of them are still waiting, while all of the

FARC's assets are being seized to pay the first plaintiffs, who aren’t entitled to

anything else because they have settled their cases. Twelve bellwether cases of

Colombian plaintiffs were set for trial in October of 2019, but were dismissed in

summary judgment when the District Court found that none of their evidence from

Colombia was admissible. See Memorandom Opinion of September 5, 2019 DE

2551 in In Re Chiquita Brands, Case No. 08-1916-MD. This case is in the 11th

Circuit Court of Appeals, which has jurisdiction over the MDL now. See Does 1-

976 v. Chiquita Brands International, Inc., Case No. 13926-C.

The Pescatore plaintiffs have apparently seized $18 million dollars of FARC

assets, along with the Stansell plaintiffs, without any consideration of the other

plaintiffs in the MDL, and are trying to seize a total of about $300,000,000. dollars.

The Colombian government has charged several Chiquita employees with crimes

in Colombia related to their payments to these illegal groups, and should be

disappointed to learn that the only plaintiffs to be awarded a share of the FARC's

assets are U.S. citizens. One of the purposes of MDL proceedings is to ensure the

fair treatment of multiple parties when only a limited fund is available for

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compensation. The discrimination is based on national origin, and there is no case

law supporting putting U.S. citizens in front of non-citizens in line in court.

The unjust enrichment is the result of the failure of the Pescatore plaintiffs to

notify the JPML of their enforcement actions, which should have been designated

as "tag-along actions" and transferred to the Southern District of Florida for fair

consideration of the rights of other interested parties. According to Rule 1.1(h) of

the Rules of Procedure of the Joint Panel on Multidistrict Litigation, "Tag-along

action" refers to a civil action pending in a district court which involves common

questions of fact with either (1) actions on a pending motion to transfer to create an

MDL or (2) actions previously transferred to an existing MDL, and which the

Panel would consider transferring under § 1407. According to JPML Rule 6.2(d),

any "party or counsel in a new group of actions under consideration for transfer

under Section 1407 shall promptly notify the Clerk of the Panel of any potential

tag-along actions in which that party is also named or in which that counsel

appears." Id. The Pescatore Plaintiffs didn't do this, even though they have

another case for the same murders in the MDL. The default judgment involves

common questions of fact with the Pescatore case because it involves the exact

same murders, which were litigated to a final judgment in the MDL.

Finally, the Court shouldn't award $300,000,000 dollars, which is all out of

proportion to the damages suffered by those plaintiffs, and would never be

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sustained on appeal. The Pescatore and Stansell plaintiffs have already taken about

$20 million dollars, and are no doubt dissipating it.

Conclusion

The Pescatore plaintiffs are being unjustly enriched by failing to follow the

JMPL rules and seizing $20 million dollars of FARC assets, at the expense of the

other plaintiffs in the MDL, who are still waiting for turn to go to trial. The DC

District Court has no personal jurisdiction over the FARC, and may not have

jurisdiction because the JPML Rules were disobeyed. The Pescatore Plaintiffs

aren't entitled to any kind of equitable treatment based on this conduct, and

shouldn't be receiving this enormous windfall while hundreds of Colombian

plaintiffs can't be heard. Does 1-254 are filing this Notice in the MDL Transferee

Court, and anticipate bringing the matter to the attention of the District Court as

well.

Respectfully submitted,

/s/ Paul Wolf

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

July 13, 2020

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Certificate of Service

I hereby certify that on this 13th day of July, 2020, I filed the foregoing
document with the Clerk of the Court using the Court's Electronic Case Filing
(ECF) system, which will send electronic notices to all persons receiving electronic
notices in the In Re Chiquita Brands MDL. In addition, copies of this Notice are
being sent by US first class mail today to

Newton Patrick Porter

Porter & Korvick, PA
Suite 208
9655 S Dixie Hwy
Miami, FL 33156
(counsel for Keith Stansell, Marc Gonsalves and Thomas Howes)

Steve Berman
Hagens Berman Sobol Shapiro LLP
1918 Eighth Ave Suite 3300
Seattle, WA 98101
(counsel for Pescatore Plaintiffs)

Dennis Michael Campbell

Campbell Law Firm, PLLC
201 Alhambra Cir Ste 602
Coral Gables, FL 33134
(counsel for Bank of America Corporation, UBS, Falcon & Merrill Lynch)

Alex C. Lakatos
Mayer Brown, LLP
1999 K St NW
Washington, DC 20006-1101
(counsel for Wachovia Bank)

Jary Conrad Nixon

Law office of jarynnixon
805 S. Packwood Ave.
Tampa, FL 33606
(counsel for Capital Bank)

Martha Rosa Mora

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Avila, Rodriguez, Hernandez, Mena & Ferri, LLP

Suite 1225
2525 Ponce de Leon Blvd
Coral Gables, FL 33134
(counsel for Ocean Bank)

David Stockton Hendrix

GrayRobinson, PA
401 E Jackson St Ste 2700
Tampa, FL 33601-3324
(counsel for HSBC)

Clinton R. Losego
Gunster, Yoakley & Stewart, PA
One Biscayne Twr - Ste 3400
2 S Biscayne Blvd
Miami, FL 33131-1897
(counsel for Banco Santander International)

David M. Glass
US Department of Justice - Civil Division
Federal Programs Branch
20 Massachusetts Ave NW
Washington, DC 20530
(counsel for movant United States of America)

/s/ Paul Wolf

_____________
Paul Wolf