Motion For Constructive Trust Over FARC Assets

Case 0:08-md-01916-KAM Document 2667 Entered on FLSD Docket 07/20/2020 Page 1 of 32
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
ATA ACTIONS
__________________________________________/
Does 1-144 v. Chiquita Brands, 08-80465-CIV-MARRA

Does 1-254 v. Chiquita Brands, 11-80405-CIV-MARRA
Pescatore et al v. Chiquita Brands, 09-80683-CIV-MARRA
Julin v Chiquita v. Chiquita Brands, 08-20641-CIV-MARRA
Sparrow v. Chiquita Brands, 11-80402-CIV-MARRA
Stansell v. Chiquita Brands, 10-cv-80954-CIV-MARRA
__________________________________________/
Plaintiffs' Motion for Constructive Trust over FARC Assets
Paul Wolf, DC Bar #480285

Attorney for Does 1-144, Does 1-254
P.O. Box 21840
Washington, D.C. 20009
Telephone (202) 431-6986
paulwolf@yahoo.com
Fax: n/a
TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………….. i
TABLE OF AUTHORITIES ………………………………………………… iv
STATEMENT OF FACTS …………………………………………………… 1
1. The Pescatore Plaintiffs' cases against Chiquita and the FARC

were transferred to this Court to be part of Multidistrict Litigation
Proceedings, and were never remanded. ……………………………… 1
2. The Stansell Plaintiffs' cases against Chiquita and the FARC

were transferred to this Court to be part of Multidistrict Litigation
Proceedings, and were never remanded. ……………………………… 3
3. The Stansell and Pescatore Plaintiffs' claims against Chiquita were

dismissed with prejudice by this Court. ……………………………… 4
4. The Stansell and Pescatore Plaintiffs obtained default judgments

against the FARC in the Transferor Courts. ………………..………… 5
5. The Stansell and Pescatore Plaintiffs obtained an order enforcing

the default judgments against assets of the FARC blocked by OFAC. 6
6. Does 1-254, 38 of the cases in the Does 1-144 complaint, and

at least 152 others have filed claims against Chiquita for murders
committed by the FARC, which are part of the same MDL
proceedings. ………………………………………………..………..... 7
SUMMARY OF ARGUMENT ……………………………………………… 9
ARGUMENT ………………………………………………………………… 11
A. 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. …………………………………. 11
1. The FARC are not "essentially at home" in the United

States, as required by clearly established Supreme Court
i
precedent. ………………………………………………………. 12
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. ………. 14
3. The Stansell and Pescatore complaints make no attempt

to assert minimum contacts with the District of Columbia
or the United States. ………………………………………..…... 14
4. There is no specific personal jurisdiction because the murder

of Frank Pescatore and kidnapping of the Stansell Plaintiffs
didn't occur in Florida or the District of Columbia. …………..… 15
5. The record doesn't reflect that the FARC were ever served
with process, that any attempt was made to serve them, or
that the question of how the FARC could even possibly be
served was ever addressed. …………………………………….. 16
6. Rule 11 prohibits filing claims not warranted by law. .………… 16
B. Relitigation of the murder of Frank Pescatore and kidnapping of the

Stansell Plaintiffs are barred by claim preclusion. ……………………. 17
1. If the FARC can be sued in the United States, then they were
a necessary or indispensible party because they commited the
murders for which the Plaintiffs seek to hold Chiquita liable. …. 19
C. The Stansell and Pescatore Plaintiffs were unjustly enriched and

have unclean hands. 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. 20
D. The Court should establish a constructive trust to compensate all

FARC victims who have filed claims against Chiquita for murders
committed by the FARC. ……………………………………………. 22
1. The constructive trust should benefit all plaintiffs in the ATS

as well as ATA cases who alleged that the FARC, rather than
ii
the AUC, were responsible for the injuries. ………………….... 22
2. An equitable distribution of the FARC's seized assets would

be comparable to the payment of creditors in bankruptcy
proceedings. …………………………………………………… 23
CONCLUSION ……………………………………………………………… 25
iii
TABLE OF AUTHORITIES
CASES
Am. Nat'l Bank of Jacksonville v. FDIC, 710 F.2d 1528 (11th Cir. 1983) …. 22
Bender v. CenTrust Mortg. Corp., 51 F.3d 1027, 1029 (11th Cir. 1995) …… 22
Butler v. Mentor Corp., No. 93-P-11433-S (N.D. Ala. filed May 14, 1993) .. 24
Butler v. Trizec Props., Inc., 524 So. 2d 710 (Fla. 2d DCA 1988) …………. 20
CFTC v. Levy, 541 F.3d 1102 (11th Cir. 2008) ………………………….…. 22
Citibank, N. A. v. Data Lease Financial Corp.,

904 F.2d 1498 (11th Cir. 1990). …………………………………………….. 17
Community Bank of Homestead v. Torcise,

162 F.3d 1084 (11th Cir.1998) ………………………………………………. 17
Daimler AG v. Bauman, 571 U.S. 117 (2014) ………………………… 9, 12-15
Dennis v. First Nat. Bank of the South, 293 Ga. App. 890 (2008) …………... 18
Estate of Klieman v. Palestinian Authority,

424 F.Supp.2d 153 (D.D.C. 2006) ………………………………………..….. 12

82 F.Supp.3d 237 (D.D.C. 2015) …………………………………………..... 13

No. 15-7034 (D.C. Cir. May 14, 2019) ……………………………………… 14
Flowers v. U.S., 764 F.2d 759 (11th Cir.1985) ………….…………...……… 17
Goodyear Dunlop Tires Operations, S. A. v. Brown,

564 U.S. 915 (2011) …………………………………………………… 9, 12-15
Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied 344 U.S. 878 (1952) …… 18
iv
Greene v. Jefferson County Commission, 13 So. 3d 901 (Ala. 2008) ………. 18
Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408 (1984) ……….. 16
In re A.H. Robins Co., Bankr. No. 85-01307-R

(E.D. Va. filed Aug. 21, 1985) ……………………………………………….. 24
Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) …………………………. 15
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) ………………… 14
Livnat v. Palestinian Auth., 82 F.Supp.3d 19 (D.D.C. 2015) ………………... 13
Livnat v. Palestinian Authority, 851 F.3d 45 (D.C. Cir. 2017),

cert. denied, 139 S. Ct. 373 (2018) …………………………………………... 14
Madara v. Hall, 916 F.2d 1510 (11th Cir. 1990) …………………………….. 11
Montana v. U.S., 440 U.S. 147 (1979) ………………………………………. 17
Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499 (11th Cir. 1984) ….... 17
Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235 (11th Cir.1999) ……………... 17
Republic of Panama v. BBCI Holdings, 119 F.3d 935 (11th Cir. 1997) …….. 11
SEC v. ETS Payphones, Inc., 408 F.3d 727 (11th Cir. 2005) ……………….. 22
Sokolow v. Palestine Liberation Org.,

2014 WL 6811395 (S.D.N.Y. Dec. 1, 2014) ………………………………… 13
State Farm Fire & Cas. Co. v. Silver Star Health & Rehab.,
739 F.3d 579 (11th Cir. 2013) ……………………………………………….. 20
United States v. Beane, 841 F.3d 1273 (11th Cir. 2016) …………………….. 17
STATUTES
18 U.S.C. §§ 2331 et seq. ("ATA") ………………………………………….. 12
v
28 U.S.C. § 1407 ……………………………………………………………... 2
RULES OF PROCEDURE
FRCP 11(b)(2) …………………...…………………………………………... 16
FRCP 12 ……………………………………………………………………… 24
FRCP 17(b) ……………………………………….………………….………. 18
FRCP 19 ……………………………………………………………………… 19
FRCP 23(b)(1)(B) ……………………………………………………………. 24
FRCP 56 ……………………………………………………………………… 24
OTHER
U.S. Const. amend. V ………………………………………………..……….. 14
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). ……………... 12
S. Elizabeth Gibson, Case Studies of Mass Tort Limited Fund Class Action
Settlements & Bankruptcy Reorganizations, Federal Judicial Center (2000). .. 23
James Wm. Moore et al., Moore's Federal Practice (2d ed. 1995) …...…….. 17
Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure (1990). …………………….………………. 11
vi
STATEMENT OF FACTS
Although the Pescatore and Stansell Plaintiffs' cases against Chiquita Brands
and the FARC were all transferred to this Court for Multidistrict Litigation
Proceedings, and the Pescatore case was dismissed with prejudice, the Pescatore
and Stansell Plaintiffs1 obtained and enforced default judgments against the FARC
in the District of Columbia and the Middle District of Florida. The cases were
never remanded and remain in this court.
1. The Pescatore Plaintiffs' cases against Chiquita and the FARC were
transferred to this Court to be part of Multidistrict Litigation
Proceedings, and were never remanded.
On Dec. 30, 2008, the Pescatore Plaintiffs 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") The docket in this case, as of July
14, 2020, is given in Exhibit 6. On March 13, 2009, the Pescatore Plaintiffs filed
another complaint for the murder of Frank Pescatore, against Chiquita Brands,
International, Inc. and related entities (as pseudonymous "Moe Corporations"), in
Case No. 09-cv-490-RMC in D.C. District Court (hereinafter "Pescatore v.
Chiquita"). See Exhibit 10. On the same day, the Pescatore Plaintiff filed a Notice
1
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. 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.
1
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. See Exhibit 12.
On April 15, 2009, the JPML issued a Conditional Transfer Order in
Pescatore v. FARC. See Exhibit 19. On May 14, 2012, the Pescatore Plaintiffs
moved to stay further proceedings in Pescatore v. FARC, so it 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.
The court stayed the case by Minute Order six days later. See Exhibit6 at 10. The
Status Report also states that "[o]nce these pretrial proceedings [in SDFL] finish,
Plaintiffs’ case will likely be returned to this Court 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.'” 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.
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 these
Multi District Litigation proceedings. See Exhibit 18 at 3, accessed July 17, 2020.
However, the Stansell v. FARC case is not. Id. This is anomalous because the
2
Stansell Plaintiffs sued both Chiquita and the FARC for the same exact
kidnappings. When the Pescatore Plaintiffs sued both Chiquita and the FARC,
both of their cases were transferred. The JPML dockets for the these cases are not
accessible online. Id. at 1-2. They are the fourth, fifth and twelvth cases listed in
the MDL, which is sorted by court and then by case number, which reflects the
filing date. Exhibit 18 at 3.
2. The Stansell Plaintiffs' cases against Chiquita and the FARC were
transferred to this Court to be part of Multidistrict Litigation
Proceedings, and were never remanded.
On November 10, 2009, three U.S. military contractors who'd been
kidnapped by the FARC 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. On November 25,
2009, the Stansell Plaintiffs filed a Notice of Related Case. See Exhibit 14. The
Notice states that the Stansell v. FARC case is related to several criminal cases
against the FARC, but doesn't list the Pescatore v. FARC case, nor the litigation
against Chiquita Brands in the MDL.
On April 5 2010, the Stansell Plaintiffs filed suit against Chiquita. See
Exhibit 20, the docket in Stansell et al v. Chiquita Brands, Case No. 10-cv-00786
(MDFL). The JPML transferred this case to this Court on August 11, 2010. Id. at
5. The complaint essentially duplicates the allegations made against the FARC.
3
In parallel proceedings, on June 15, 2010, the Middle District of Florida
issued a default judgment in Stansell v. FARC. See Opinion, Exhibit 3. On
August 9, 2010 the Judicial Panel on Multidistrict Ligitation transferred the
Stansell v. FARC case to the MDL in Florida. See Transfer Order, Exhibit 15.
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. Nor does is it listed by Pacer as
part of the MDL. See Exhibit 18 at 3.
The enforcement action in D.C. District Court, see § E infra, was filed a
week before the JPML transfer, on August 3, 2010. See Exhibit 2. The docket in
the enforcement action in D.C. District Court doesn't reflect the JPML transfer
either. Id. Counsel hasn't reviewed the entire MDL docket, which includes more
than 2,500 entries, but has been unable to locate any document reflecting that the
Stansell v. FARC or Stansell v. Chiquita cases were ever remanded.
3. The Stansell and Pescatore Plaintiffs' claims against Chiquita were

dismissed with prejudice by this 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, DE 72 Order Dismissing Case with prejudice.
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
4
claims in Pescatore v. Chiquita, Case No. 09-80683-CIV-MARRA with prejudice.
DE 1803. See Exhibit 13. The terms of the settlement are confidential.
4. The Stansell and Pescatore Plaintiffs 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.
Although this may look like a lot of money, three hundred million dollars in
damages were awarded to the Stansell Plaintiffs, see Exhibit 1, with whom the
Pescatore Plaintiffs will share the FARC proceeds according to the undisclosed
terms of a private agreement. Id. On February 4, 2019, the Pescatore Plaintiffs
filed a Notice of Proposed Order in Pescatore v. FARC. See Exhibit 17. The
Proposed Order sought to enforce the default judgment against the FARC and
stated that "there are no objections to the motion." 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.

5
The Stansell Plaintiffs had already obtained a default judgment against the
FARC Stansell Plaintiffs' case against Chiquita was dismissed, on June 15, 2010.
See Exhibit 3, attached hereto. In contrast, the Pescatore Plaintiffs obtained their
default judgment against the FARC after they settled their claims with Chiquita.
5. The Stansell and Pescatore Plaintiffs then obtained an order enforcing

the default judgment 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 $2
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. See
Exhibit 1, Memorandum Opinion in Stansell et al v. Revolutionary Armed Forces
of Columbia, No. 10-mc-00471 (D.D.C.). Although the caption refers to only
Stansell, the Opinion also applies to the Pescatore Plaintiffs, and to Pescatore et al.
v. Pineda & FARC, No. 1:08-cv-02245 (TJK) Id. at 3. The only 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,
6
2019)." Id. at 3. The docket in this case, as of July 14, 2020, is attached as Exhibit
2. On July 12, 2020, Movants Does 1-254 filed a Notice of Charging Lien over the
seized assets of the FARC in this Court.2 See DE 2665.
6. Does 1-254, 38 of the cases in the Does 1-144 complaint, and at least 152
others have filed claims against Chiquita for murders committed by the
FARC, which are part of the same MDL proceedings.
On June 7, 2007, undersigned counsel filed the first complaint in the MDL,
in Does 1-144 v. Chiquita Brands International, Inc., DE 3 in Case No. 07-cv-
01048 (RJL) in D.C. District Court. See Exhibit 7.3 Of the 173 cases brought by
the first 144 plaintifffs, 38 are murders committed by the FARC. They were
brought by Does 32, 37, 38, 58, 62, 72, 73, 74, 75, 77, 79, 80, 81, 82, 84, 85, 87,
2
The lien was noticed two days after the enforcement order in D.C. District Court,
and needs a few clarifications. Counsel erroneously referred to the murder of Mr.
Pescatore as the "Pescatore murders." The Pescatore Plaintiffs' claims all arise
from the same murder. Also, charging liens are normally used to resolve disputes
over attorneys fees, not among plaintiffs. However, the dispute does encompass
attorneys fees, since undersigned counsel is entitled to a third of any award
recovered. In Weed v. Washington (In re Washington), 242 F.3d 1320 (11th Cir.
2001) ("Washington") the Eleventh Circuit affirmed the District Court's conclusion
that charging liens arise by operation of law, without judicial action, and are thus
not obtained through the judicial process. Id. at 1325. Therefore counsel may only
have had the power to assert his own rights in the lien.
3
Undersigned counsel has never amended this complaint, nor participated in any
of Attorney Collingworths' amendments. The District Court resolved a dispute
over representation between undersigned counsel and Attorney Collingsworth on
April 29, 2020, in favor of undersigned counsel. DE 2568. Undersigned counsel
was ordered to sign new retainer agreements with Does 1-144 to request their
informed consent of how the dispute over representation was resolved, but has
made little progress due to Covid 19 travel restrictions in Apartado, Colombia,
which currently allow people to leave their homes for groceries only, every other
day, depending on their cedula number.
7
88, 89, 94, 96, 98, 102, 103, 104, 106, 107, 108, 109, 112, 115, 121, 123, 125, 129,
132, 133 and 140, as listed in the complaint.4 Unlike the Pescatore murder, these
occurred in Urabá, Colombia, near Chiquita's properties. The plaintiffs in the
remaining cases, allegedly perpetrated by the AUC, aren't claiming any right to the
FARC's seized assets. Although this was the first complaint filed in the MDL, the
JPML determined that the MDL Court should be in Florida, apparently based on
agreements among Attorneys Collingsworth, Scherer, and counsel for Chiquita.
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. See Exhibit 8. On November 8 2016,
the plaintiffs moved the court for leave to amend the complaint to add 152
additional plaintiffs. See DE 1182. The motion was granted on November 14,
2016. DE 1186. On 12/6/2016 Chiquita moved to dismiss all the claims in the
Amended Complaint as time barred. DE 1206. On April 7, 2017, the Court
4
Although the Court's ruling on the use of pseudonyms was just affirmed on
appeal in Case 19-11494, Carrizosa v. Chiquita Brands, the mandate hasn't issued
nor has this Court instructed the parties on whether anything in the record needs to
be supplemented to comply with the mandate. The names of bellwether plaintiffs
Doe 378 (Maria Emilse Villegas) and 840 (Ludy Rivas Borja, the daughter of
Genoveva Borja, who is deceased) have already been disclosed. The remainder are
for murders committed by the AUC.
8
granted Chiquita's Motion to Dismiss the new claims as time-barred, but denied the
Motion to Dismiss the original 254 claims.5 DE 1351.
On June 18, 2020 undersigned counsel conferred by email with counsel for
the Pescatore and Stansell Plaintiffs, Chiquita Brands, and liaison counsel for the
other plaintiffs in the MDL. Counsel for the Stansell Plaintiffs state that the
OPPOSE the motion. Counsel for the Pescatore Plaintiffs have not responded after
two days. Counsel for the other MDL plaintiffs didn't want to take any position
until they could see the Motion in its final form.
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 default judgments against the
FARC, which are void and unenforceable, and have assigned the first
$300,000,000 dollars of the FARC's assets, frozen by OFAC, to pay damages to
about a dozen plaintiffs, who have already taken $20 million dollars, even though
the Stansell and Pescatore cases were dismissed by this Court with prejudice.
Those courts didn't have personal jurisdiction because FARC aren't
"essentially at home" in either jurisdiction, as required by the Supreme Court in the
5
As argued infra, the proceedings in the Middle District of Florida and the District
of Columbia are invalid. Lacking a remedy at law, the Court should find that
equitable tolling applies to the additional 152 cases, since these Plaintiffs couldn't
reasonably have foreseen that type of case could proceed.
9
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. The Stansell and Pescatore Plaintiffs never even
attempted to serve process on the FARC, or explained how it could be done.
Those courts also lack jurisdiction because the Stansell and Pescatores
Plaintiffs' cases against the FARC and Chiquita Brands are still in this Court and
were never remanded. The Stansell Plaintiffs' case against the FARC doesn't
appear to be part of the MDL, although their case against Chiquita for the same
kidnappings is. They are for the same transaction or occurrence.
Re-litigation of claims dismssed with prejudice is barred by claim
preclusion, or res judicata. The Stansell and Pescatore Plaintiffs not only
relitigated the claims, but obtained default judgments 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.
The Plaintiffs are requesting the equitable remedies of an accounting,
disgorgement, and imposition of a constructive trust for the unjust enrichment of
10
the Pescatore and Stansell Plaintiffs, for the benefit of all plaintiffs who've filed
claims against Chiquita for murders committed by the FARC. See Proposed
Order, attached hereto. The Plaintiffs have no adequate remedy at law.
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. BBCI
Holdings, 119 F.3d 935, 940 (11th Cir. 1997); Madara v. Hall, 916 F.2d 1510,
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. 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
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")
11
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.
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
The issue of subject matter jurisdiction is complex and won't be briefed here, but
under international law, courts also lack subject matter jurisdiction over cases
without contacts or effects within its jurisdiction.
12
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.
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 NY 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 Dunlop 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.
13
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
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, No. 15-7034 at *3 (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. The Stansell and Pescatore complaints make no attempt to assert

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. See Exhibit 9.
Paragraph 14 explains that the Fuerzas Armadas Revolucionarias de Colombia, or
7
Although this 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.
14
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 jurisdictional contacts
are alleged. The next two paragraphs, pertaining to a FARC member who was the
co-defendant, are clearly 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 superceded
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.
4. There is no specific personal jurisdiction because the murder of

Frank Pescatore, and kidnappings of the Stansell Plaintiffs 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. The relation of this case to Chiquita Brands is attenuated. The Court may take
15
judicial notice that Hatonuevo, Guajia is more than 250 miles from Uraba, where
Chiquita's business was located. In any event, the Pescatore case didn't arise in the
District of Columbia or Florida. Helicopteros Nacionales De Colombia v. Hall,
466 U.S. 408 (1984).
5. The record doesn't reflect that the FARC were ever served with
process, that any attempt was made to serve them, or that the
question of how the FARC could even possibly be served was ever
addressed.
The complete dockets in Stansell v. FARC, Pescatore v. FARC, and the
enforcement action in the District of Columbia are attached hereto as Exhibits 4 6
and 2 respectively. None reflect any attempt to ever serve the FARC with process.
Although an imprisoned FARC member was also sued and served (co-defendant
Pineda), see DE 4 of April 28, 2009, Mr. Pineda isn't the FARC's registered agent,
and wouldn't have the capacity to accept service of process for them.
6. Rule 11 prohibits filing claims not warranted by law.
By signing a pleading, motion or other paper, an attorney certifies that "the
claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law…" FRCP 11(b)(2). Whether counsel for the Pescatore
Plaintiffs have done something wrong isn't the point. The argument is that the
failure to join the FARC as a defendant, and do so before the expiration of any
statutes of limitations have run should be excused. No attorney could prosecute

16
these kinds of claims in good faith in the face of such clear Supreme Court and
D.C. Circuit precedent.
B. Relitigation of the murder of Frank Pescatore and kidnapping of the

Stansell Plaintiffs are 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).8 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
both suits; and (4) the same cause of action is involved in both cases.” United
8
cf. Flowers v. U.S., 764 F.2d 759, 761 (11th Cir.1985) ("stare decisis," which
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).
17
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, attached hereto.
Whether Chiquita and the FARC are in privity is a matter determined by
state law. The capacity of a party to sue or be sued is determined by state law, and
is the state of domicile for an individual, the state of incorporation for a
corporation, and the state where the forum is located, for other types of entities.
FRCP 17(b). Parties are in privity for purposes of res judicata “when there is an
identity of interest in the subject matter of the litigation.” Greene v. Jefferson
County Commission, 13 So.3d 901, 912 (Ala. 2008) (internal quotes omitted).
“Privity is established where a party’s interests are fully congruent with a party to
the judgment as to have such an identity of interest that the party to the judgment
represented the same legal right.” Dennis v. First Nat. Bank of the South, 293 Ga.
App. 890, 893 (2008); Gordon v. Gordon, 59 So.2d 40 (Fla.) cert. denied 344 US
878 (1952).
"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
18
the actions, not their form." Citibank, 904 F.2d at 1503 (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.
In summary, claims for the murder of Frank Pescatore, Jr. and kidnappings
of the Pescatore Plaintiffs were dismissed with prejudice in a final judgment by the
Southern District of Florida, which had jurisdiction over the cases. The FARC and
Chiquita have an identity of interests in defending the cases, which are based on
the same factual predicates. Relitigation of the same claims in the Middle Disrict
of Florida and the District of Columbia are barred by res judicata.
1. If the FARC can be sued in the United States, then they were a
necessary or indispensible party because they commited the
murders for which the plaintiffs seek to hold Chiquita liable.
If it is ethical to sue the FARC without jurisdiction, see § B (5) supra, 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) However, rather than joining or consolidating the Stansell and
Pescatore Plaintiffs' cases against the FARC and Chiquita Brands, lawsuits for the
same murder and kidnappings proceeded in parallel, in different courts, even
though Chiquita's liability was premised on the FARC's liability. The final
19
judgments of both courts couldn't be more conflicted. The cases were dismissed
with prejudice by a court having jurisdiction. The subsequent cases resulted in
default judgments for the plaintiffs, even though they had already lost.
C. The Stansell and Pescatore Plaintiffs were unjustly enriched and have
unclean hands. 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)). Such was the case with the Pescatore and Stansell
Plaintiffs, 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 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.
The Stansell and Pescatore Plaintiffs have unclean hands because they
obtained court orders in other courts enforcing default judgments for cases
20
dismissed with prejudice by this Court. See Exhibit 13, Stipulation of Voluntary
Dismissal with Prejudice, Feb. 12, 2018, DE 1803; (the parties "hereby stipulate
that these actions and the claims9 asserted herein are hereby dismissed with
prejudice.") (emphasis added); Exhibt 21 at DE 72. Aside from the novelty of
default judgments against a foreign terrorist organization, in cases lacking
jurisdiction for numerous reasons, the Stansell and Pescatore Plaintiffs 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.
D. The 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").
9
There could be no clearer stipulation of claim preclusion, or res judicata.
21
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 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.
1. The constructive trust should benefit all plaintiffs in the ATS as

well as ATA cases who alleged that the FARC, rather than the
AUC, were responsible for the injuries.
Potential claimants should include the FARC victims among Does 1-144,
Does 1-254, the additional 152 plaintiffs who tried to join the case too late, and
also any other plaintiffs in the ATS or ATA cases, specifically: Julin et al v.
Chiquita Brands, 08-20641-CIV-MARRA, and Sparrow v. Chiquita Brands, 11-
80402-CIV-MARRA. Undersigned counsel has no standing to speak for the Julin
or Sparrow plaintiffs, but no doubt they would appreciate being included. As for
the other Colombian plaintiffs who have filed claims for alleged FARC murders in
the MDL, the Court should allow them to provide notice showing which of their
existing cases blamed the FARC instead of the AUC, and include them.
22
2. An equitable distribution of the FARC's seized assets would be

comparable to the payment of creditors in bankruptcy
proceedings.
The FARC's seized assets are not unlike the assets paid to creditors in a
bankruptcy proceeding. In fact, many mass tort cases have ended in the
defendant's bankruptcy. See Case Studies of Mass Tort Limited Fund Class Action
Settlements & Bankruptcy Reorganizations, by S. Elizabeth Gibson, Federal
Judicial Center (2000). The article compares class action settlements of mass torts
pursuant to FRCP 23 (b)(1)(B), with how mass torts are resolved in bankruptcies.
The Court need not determine the best mechanism at this stage, but case law
suggests that a range of options exists. In In re UNR Industries, Inc., UNR filed a
Chapter 11 petition the face of overwhelming asbestos liability. In re UNR Indus.,
Inc., 42 B.R. 94, 95 (Bankr. N.D. Ill. 1984). At issue in the case was whether
future claims could be discharged in the bankruptcy. The court held that they
could. Then the debtor let the claimants negotiate among themselves the
appropriate basis for dividing assets among claimants. In another case, In re A.H.
Robins, Inc., the defendant in a mass tort case arosing from the manufacture and
sale of a birth control device, the Dalkon Shield, filed for bankruptcy in 1985. The
court conducted an estimation hearing and established the value of the debtor’s tort
liability at $2.475 billion. A trust was established for Dalkon Shield claimants, who
were eventually paid in full. In re A.H. Robins Co., Bankr. No. 85-01307-R (E.D.
23
Va. filed Aug. 21, 1985). In a third example, Butler v. Mentor Corporation,
Mentor achieved a limited fund settlement of its breast implant litigation by means
of a Rule 23(b)(1)(B) settlement class in 1993. The fund was eventually
distributed on a basis that required no proof of injury and drew no distinctions
based on severity of injury. Butler v. Mentor Corp., No. 93-P-11433-S (N.D. Ala.
filed May 14, 1993).
This illustrates a range of options, from allowing the claimants to negotiate
amongst themselves, to establishing a trust, to certifying a class. Once the
mechanism is determined, claimants could be required to either state a prime facie
case (FRCP 12),10 or make a prima facie showing (FRCP 56), the standards for
which are to be determined by the Court of Appeals in the pending appeal. It
doesn't appear that claimants in these cases had to make prima facie evidentiary
showings, but this is a question for another day.
10
Neither the Stansell nor Pescatore Plaintiffs had to show any evidence to obtain
default judgments against the FARC. Nor did they state prima facie cases of
personal jurisdiction. All claimants should have to meet the same standard,
whatever it is.
24
Conclusion
For the Foregoing reasons, the Court should GRANT Plaintiffs' Motion for a
Constructive Trust over the FARC's Assets.
Respectfully submitted,
/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Does 1-144, Does 1-254
PO Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
Fax: n/a
July 20, 2020
Certificate of Service
I hereby certify that on this 20th 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.
/s/ Paul Wolf

_____________
Paul Wolf
25

Motion For Constructive Trust Over FARC Assets

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Case 0:08-md-01916-KAM Document 2667 Entered on FLSD Docket 07/20/2020 Page 1 of 32

UNITED STATES DISTRICT COURT

IN RE: CHIQUITA BRANDS

This Order relates to:

Does 1-144 v. Chiquita Brands, 08-80465-CIV-MARRA

Plaintiffs' Motion for Constructive Trust over FARC Assets

Paul Wolf, DC Bar #480285

TABLE OF CONTENTS …………………………………………………….. i

TABLE OF AUTHORITIES ………………………………………………… iv

STATEMENT OF FACTS …………………………………………………… 1

1. The Pescatore Plaintiffs' cases against Chiquita and the FARC

2. The Stansell Plaintiffs' cases against Chiquita and the FARC

3. The Stansell and Pescatore Plaintiffs' claims against Chiquita were

4. The Stansell and Pescatore Plaintiffs obtained default judgments

5. The Stansell and Pescatore Plaintiffs obtained an order enforcing

6. Does 1-254, 38 of the cases in the Does 1-144 complaint, and

SUMMARY OF ARGUMENT ……………………………………………… 9

1. The FARC are not "essentially at home" in the United

3. The Stansell and Pescatore complaints make no attempt

4. There is no specific personal jurisdiction because the murder

6. Rule 11 prohibits filing claims not warranted by law. .………… 16

B. Relitigation of the murder of Frank Pescatore and kidnapping of the

C. The Stansell and Pescatore Plaintiffs were unjustly enriched and

D. The Court should establish a constructive trust to compensate all

1. The constructive trust should benefit all plaintiffs in the ATS

the AUC, were responsible for the injuries. ………………….... 22

2. An equitable distribution of the FARC's seized assets would

CFTC v. Levy, 541 F.3d 1102 (11th Cir. 2008) ………………………….…. 22

Citibank, N. A. v. Data Lease Financial Corp.,

Community Bank of Homestead v. Torcise,

Daimler AG v. Bauman, 571 U.S. 117 (2014) ………………………… 9, 12-15

Estate of Klieman v. Palestinian Authority,

Estate of Klieman v. Palestinian Authority,

Estate of Klieman v. Palestinian Authority,

Flowers v. U.S., 764 F.2d 759 (11th Cir.1985) ………….…………...……… 17

Goodyear Dunlop Tires Operations, S. A. v. Brown,

Greene v. Jefferson County Commission, 13 So. 3d 901 (Ala. 2008) ………. 18

Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408 (1984) ……….. 16

In re A.H. Robins Co., Bankr. No. 85-01307-R

Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) …………………………. 15

Livnat v. Palestinian Auth., 82 F.Supp.3d 19 (D.D.C. 2015) ………………... 13

Livnat v. Palestinian Authority, 851 F.3d 45 (D.C. Cir. 2017),

Madara v. Hall, 916 F.2d 1510 (11th Cir. 1990) …………………………….. 11

Montana v. U.S., 440 U.S. 147 (1979) ………………………………………. 17

Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235 (11th Cir.1999) ……………... 17

Sokolow v. Palestine Liberation Org.,

18 U.S.C. §§ 2331 et seq. ("ATA") ………………………………………….. 12

28 U.S.C. § 1407 ……………………………………………………………... 2

FRCP 11(b)(2) …………………...…………………………………………... 16

FRCP 17(b) ……………………………………….………………….………. 18

FRCP 23(b)(1)(B) ……………………………………………………………. 24

U.S. Const. amend. V ………………………………………………..……….. 14

Stephen J. DiGregoria, If We Don’t Bring Them to Court, the Terrorists

Charles A. Wright & Arthur R. Miller,

never remanded and remain in this court.

On Dec. 30, 2008, the Pescatore Plaintiffs filed a Complaint in DC District

Exhibit 9. (hereinafter "Pescatore v. FARC") The docket in this case, as of July

International, Inc. and related entities (as pseudonymous "Moe Corporations"), in

Case No. 09-cv-490-RMC in D.C. District Court (hereinafter "Pescatore v.

earlier. See Exhibit 12.

On April 15, 2009, the JPML issued a Conditional Transfer Order in

moved to stay further proceedings in Pescatore v. FARC, so it could be

consolidated with Pescatore v. Chiquita "in order to avoid submitting duplicate