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Does 1-254 V Chiquita Brands - Response To Jurisdictional Question
Does 1-254 V Chiquita Brands - Response To Jurisdictional Question
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OF
Counsel certifies that the following is a complete list of the trial judge(s), all
(noted with its stock symbol if publicly listed) that have an interest in the outcome
and parent corporations, and other identifiable legal entities related to a party,
Berrio, Marcelina
Diaz, Eudilia
Guisao, Doraley
Higuita, Fidelina
Lopez, Salustiana
Mosquera, Yamileth
Santana, Petronila
Arenas, Tomas
Bohorquez, Raul
Cossio, Alvaro
Echavarria, Aurora
Londono, Henry
Orejuela, Juan
Sanchez, Dagoberto
Aguirre, Fernando
Alsama, Ltd.
Anacar LDC
Arvelo, José E.
B C Systems, Inc.
Baird, Bruce
Bandy, Kevin
Bronson, Ardith
Brundicorpi S.A.
Capital Bank
Carrillo, Arturo J.
CB Containers, Inc.
Childs, Robert
Chiquita Nordic Oy
Chiquita Norway As
Chiquita Sweden AB
Chiquita UK Limited
ChiquitaStore.com L.L.C.
CILPAC Establishment
Cioffi, Michael
Collingsworth, Terrence P.
Dante, Frank
Davies, Patrick
DeLeon, John
DLA Piper
Duraiswamy, Shankar
Dyer, Karen C.
FMR LLC
Friedheim, Cyrus
Garland, James
Girardi, Thomas V.
Glass, David M.
Gonsalves, Marc
Gould, Kimberly
GrayRobinson, PA
Green, James K.
Guralnick, Ronald S.
Hall, John
Howes, Thomas
HSBC
Janis, Judith G.
Janis, Christopher T.
Janis, Greer C.
Janis, Michael I.
Janis, Jonathan N.
Jones, Stanton
Keiser, Charles
King, William B.
Kistinger, Robert
Korvick, Tony
Lack, Walter J.
Lakatos, Alex C.
Losego, Clinton R.
Markman, Ligia
Martin, David
McCawley, Sigrid S.
Mosier, Mark
Mozabanana, Lda.
Ocean Bank
Olson, Robert
Ordman, John
Pescatore, Jada
Pescatore, Jarrod
Pescatore, John
Pescatore, Jordan
Pescatore, Josh
Pescatore, Olivia
Pescatore, Richard
Philips, Layn
Priedheim, Alissa
Rapp, Cristopher
Reiter, Jonathan C.
Scarola, Jack
Silbert, Earl
Simons, Marco
Skinner, William
Sperling, Jonathan
Spiers N.V.
Sprague, Ashley M.
Stansell, Keith
Stewart, Thomas
Stubbs, Sidney
TransFRESH Corporation
Tsacalis, William
Wachovia Bank
Wichmann, William J.
Wiesner, Eduardo A.
Wilkins, Robert
Wolf, Paul
Wolosky, Lee S.
Zack, Stephen N
Zuleta, Alberto
Certification
QUESTION PRESENTED
Whether the district court’s orders denying the Plaintiffs’ motion to establish
a constructive trust and denying their motion for reconsideration are final or
immediately appealable.
BRIEF ANSWER
Although the orders are not final, they are immediately appealable because
they deny injunctive relief. The case law in this Circuit uniformly holds that an
modify injunctions." Id. The collateral order doctrine provides further support for
jurisdiction, since the question whether the FARC's assets should be frozen
pending the outcome of the other cases in the MDL is separate from the merits of
In Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117 (11th Cir.
2005) the Court noted that an order may not qualify under § 1292(a)(1) as an
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“injunction” despite how the parties or the district court characterizes it, and
explained when orders on injunctive relief may be reviewable. First, the motion
must be based upon an already existing cause of action. Id. at 1127. The plaintiff
must be able to articulate a basis for relief that would withstand scrutiny under
Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004). An injunction is a
"remedy potentially available only after a plaintiff can make a showing that some
independent legal right is being infringed — if the plaintiff's rights have not been
F.3d at 1127. In addition, it is only when that legal right has been infringed by an
injury for which there is no adequate legal remedy, and which will result in
prevailed in establishing the violation of the right asserted in his complaint; (2)
there is no adequate remedy at law for the violation of this right; and (3)
irreparable harm will result if the court does not order injunctive relief. Id. at 1128.
The Court recognized, however, that if it doesn't act until trial, the party seeking
relief might be irreparably harmed, and the judicial process rendered futile by a
defendant's action or refusal to act during the pendency of the case. Id. at 1128.
Therefore, to protect a party "from irreparable harm and to preserve the court's
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injunction can issue, even though the right to permanent relief is still uncertain.
Alabama, 424 F.3d at 1128, quoting 11A Wright, Miller Kane, Federal Practice
preliminary injunctive relief when the moving party shows that: (1) it has a
substantial likelihood of success on the merits of the underlying case when the case
is ultimately tried; (2) irreparable injury during the pendency of the suit will be
suffered unless the injunction issues immediately; (3) the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause the
opposing party; and (4) if issued, the injunction would not be adverse to the public
that are not at issue here. The interlocutory order on appeal must have the first two
elements of an injunction, that is, it must be: (1) a clearly defined and
and (2) enforceable through contempt, if disobeyed. Id. It must also provide some
Finally, the Court noted that in the context of Rule 65 of the Federal Rules of
Civil Procedure, the Court has defined an injunction as "an equitable decree
compelling obedience under the threat of contempt." Alabama, 424 F.3d at 1127 n.
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14, quoting Int'l Longshoremen's Ass'n, Local 1291 v. Phila. Marine Trade Ass'n,
389 U.S. 64, 75, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967); Howard C. Joyce, A Treatise
on the Law Relating to Injunctions § 1, at 2-3 (1909) ("In a general sense, every
In the instant case, the Order on Appeal is one denying the imposition of a
constructive trust over the FARC's assets, which is a type of injunctive relief. See
"Without evidence that the res contains funds traceable to Chiquita, or somehow
demonstrable basis for the equitable relief requested in this matter." Id. at 5-6,
Appx. at 5-6. This is where the District Court erred, because the funds need not be
traceable to Chiquita. See Does 1-254's Reply Brief at § III (B) (5), "The District
Court allowed the Pescatore case to proceed to trial with the FARC as a Fabre
defendant."
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In Levi Strauss & Co. v. Sunrise Int'l Trading Co., 51 F.3d 982 (11th Cir.
1995), the district court issued a preliminary injunction enjoining Sunrise from
any inventory or material with Levi Strauss' trademarks, and imposing an asset
$2000 per month living allowance. 51 F.3d at 984. The Court stated that it
deference to the district court's legal determinations. Id. at 985, citing Church v.
City of Huntsville, 30 F.3d 1332, 1341-42 (11th Cir. 1994). It similarly found that
"[w]e review asset freezes for abuse of discretion but do not defer to the district
court's legal analysis." Id. at 985-986, citing Rosen v. Cascade Int'l, Inc., 21 F.3d
1520, 1526 (11th Cir. 1994). The Court held that "[a] request for equitable relief
invokes the district court's inherent equitable powers to order preliminary relief,
and "[a]s such, we conclude that the district court had the authority to freeze those
assets which could have been used to satisfy an equitable award of profits." Levi
Strauss, 51 F.3d at 987, citing Federal Trade Commission v. United States Oil and
Gas Corp., 748 F.2d 1431, 1433-34 (11th Cir. 1984) (district court may exercise its
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full range of equitable powers, including a preliminary asset freeze, to ensure that
In Rosen v. Cascade, Int'l, Inc., 21 F.3d 1520 (11th Cir. 1994), however, this
Court reversed and remanded a district court order issuing an injunction freezing
the assets of a defendant. Rosen was a securities fraud case involving alleged
issued a preliminary injunction freezing all of the defendant's assets, allowing the
defendant to withdraw only $500 per month as living expenses, and other expenses
for emergencies upon a showing of necessity. Id. at 1525. This Court reversed the
injunction, noting that "this is not a restitution case or a dispute over a discrete
fund or res whose ownership is in doubt," id. at 1526, and that "the appellees'
strategy in this case is simply to tie up Moses' assets while the parties litigate the
defendants' liability for their alleged fraudulent misrepresentations and illegal stock
transactions." Id. It then held that "[i]t is axiomatic that equitable relief is only
available where there is no adequate remedy at law; cases in which the remedy
sought is the recovery of money damages do not fall within the jurisdiction of
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The assets must normally be related to the underlying litigation, as they are here.
However, the Court observed that district courts have authority in extraordinary
cases to freeze assets to preserve non equitable money damages, citing In re Estate
of Ferdinand Marcos Human Rights Litigation, 25 F.3d 1467 (9th Cir. 1994)
(noting that the First, Second, Third, Fourth, Seventh, Eighth, Tenth, and District
of Columbia Circuits have reached similar conclusions), cert. denied, 115 S.Ct. 934
(1995). Levi Strauss, 51 F.3d at 987 n. 5.
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explained, "'the general federal rule of equity is that a court may not reach a
defendant's assets unrelated to the underlying litigation and freeze them so that
The Rosen Court analyzed a Supreme Court case, De Beers Consol. Mines,
Ltd. v. United States, 325 U.S. 212 (1945), which it found "indeed explicitly
permits the injunction sought by the plaintiffs," 21 F.3d at 1527, but that the proper
interpretation of De Beers is that it bars the injunctive relief of freezing [all of]
Moses' assets. Id. The Supreme Court explained that, although "[a] preliminary
as that which may be granted finally, ... [t]he injunction in question is not of this
character" because "[i]t is not an injunction in the cause, ... deals with a matter
lying wholly outside the issues in the suit," and "deals with property which in no
circumstances can be dealt with in any final injunction that may be entered." 325
U.S. at 220. The Court distinguished the case from "cases in which an
would have been the subject of the provisions of any final decree in the cause." Id.
The Rosen and De Beers cases are distinguishable from the instant case because
Does 1-254 do not seek an injunction over all of Stansell and Pescatore's assets,
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The Rosen Court later explained that "Rule 64 commands that the proper
pretrial remedy to ensure that a fund will be available with which to satisfy a
the forum state's law. But "[w]here the state attachment statute does not authorize
1531. In the instant case, there is no conflict with the Florida attachment statute,
which is found in Chapter 76 of the Florida Statutes. See Does 1-254's Reply Brief
at § III (B). Three of the grounds listed are that the purported debtor resides out of
state, or is moving, or has moved property out of the state. § 76.04 (2, 3 & 4), Fla.
Stat.
Most of the plaintiffs who have taken the proceeds of the FARC's criminal
activities reside outside of Florida. The Pescatore case was brought by ten legal
heirs, five of whom live in Alabama, and the other five in New Jersey. Appx. at
381, 392. The Stansell case was brought by eight legal heirs residing in Florida,
Connecticut, Alabama, New York, and Virginia. Appx. at 418-419. Since these
plaintiffs have already collected $20 million dollars, there is no doubt that the
2
An additional basis to establish a constructive trust may exist when the res of the
trust was obtained by fraud. See Mitsubishi Int'l. v. Cardinal Textile Sales, 14 F.3d
1507, 1518 (11th Cir. 1994) "Because a constructive trust is deemed to arise at the
time of a fraudulent misappropriation, Mitsubishi contends that it was entitled to an
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II. The Collateral Order Doctrine provides an alternative theory for the
Court's Jurisdiction over the appeal.
provides for jurisdiction over orders denying injunctive relief, Does 1-254 also
default judgments against the FARC, and would moot them because they would be
set-off against Chiquita's joint and several or co-conspirator liability; the issue of
establishing a constructive trust over the FARC's assets is collateral to the merits of
immediate appeal isn't allowed, because otherwise, the plaintiffs in the cases of two
Americans killed by the FARC will dissipate the first $300 million dollars of the
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FARC's assets, and have already taken $20 million. Lauro Lines s.r.l. v. Chasser,
In Plaintiff A v. Schair, 744 F.3d 1247, 1252–53 (11th Cir. 2014) the Court
doctrine if it: (1) conclusively determines the disputed question; (2) resolves an
important issue completely separate from and collateral to the merits of the action;
and (3) would be effectively unreviewable on appeal from the final judgment). In
Schair, the district court stayed a civil case pending the outcome of a criminal
investigation by the U.S. Department of Justice into the same conduct alleged in
the plaintiffs' complaint. After the investigation ended, the district court granted
the plaintiffs' motion to lift the stay in the civil action. The Court found that for the
collateral order doctrine to apply, "the collateral issues raised in the interlocutory
appeal must be 'too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case is
adjudicated.'” Id. at 1253, quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949). It then found that an order lifting the stay of discovery failed to
satisfy the second prong of the test, since it was not separate from the merits of the
3
In the instant case, the Appellees have conflated the issues of jurisdiction and
standing. Standing is based on Does 1-254's injuries by the FARC, and the
dissipation of assets traceable to the FARC, and is argued in the Appellants
Principal and Reply Briefs. Whether the Court has jurisdiction over the District
Court's Order is completely separate from the question whether the Appellants
have standing.
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action, and there was no public interest to be weighed that could override the
In the instant case, the disputed legal issue is whether the ex parte, default
separate from the merits of the actions because the Stansell and Pescatore cases
had already been dismissed with prejudice, which could not have occurred without
consideration of the merits. The issue that is separate from, and collateral to the
taken and dissipated more than $20 million dollars, which appear to be all of the
Conclusion
Orders freezing a party's assets, or denying this relief, are injunctive and
immediately appealable under 28 U.S.C. 1292(a)(1). The only limitation is that the
assets must be traceable to the litigation, as they are here. They are authorized by §
76.04 of the Florida Revised Statutes, since most of the Stansell and Pescatore
plaintiffs do not reside in Florida, and have probably transferred the property out of
state. The collateral order doctrine also appears to support this view, but need not
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Respectfully submitted,
Certificate of Service
I hereby certify, that on this 30th of March, 2021, I filed the foregoing
Response with the Clerk of the Court using the Court's Electronic Case Filing
(ECF) system, which will send notices to all counsel entering appearances in this
case.
Certificate of Compliance
Pursuant to FRAP 27 and 32(g)(1), I hereby certify that this motion complies
with the type-limitation of 5,200 words, and contains 2606 words, excluding the
cover and certifications. The Court didn't set any other word limit for responding to
its jurisdictional question.
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