Case 0:08-md-01916-KAM Document 3013 Entered on FLSD Docket 11/09/2021 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-MD-01916-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION
______________________________________________/

This Document Relates to:

ATS ACTIONS
______________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254) 1

______________________________________________/

Plaintiffs' Third Motion for Suggestion of Remand

Pursuant to Rule 10.1(b) of the Rules of Procedure of the United States Judicial Panel on

Multidistrict Litigation ("JPML"), and Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26 (1998), Plaintiffs hereby Move the Court to Suggest to the JPML that the

above-captioned cases be remanded to the U.S. District Court for the District of Columbia.

Undersigned counsel tried to confer with counsel for the Defendant and for the non-Wolf

plaintiffs, see Exhibit 1 attached hereto, but hasn't received any replies, even though the parties

have been conferring on privacy issues and the publication of plaintiffs' names. The Defendant’s

1
The Does 1-2146 v. Friedheim et al case, 17-80475-CIV-MARRA, is not listed. This is without
prejudice to the plaintiffs in that case filing a motion to remand at some later date. It would not
be practical for undersigned counsel to try these cases separately in the Southern District of Ohio
while at the same time bringing over a thousand cases to trial in the District of Columbia.

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position has been that remand is appropriate when pretrial proceedings have run their course.

See DE 1903 at 3-5. Pretrial proceedings have now run their course. A proposed Suggestion of

Remand is attached.

FACTUAL SUMMARY

On April 11, 2017, the Court issued a Global Order Setting Trial Dates and Discovery

Deadlines. DE 1361. The Court ordered that by April 2, 2018, the parties "shall file joint motion

requesting scheduling of pretrial conference for purposes of discussing the feasibility of trying

all Bellwether Trials in the Southern District of Florida (MDL Court) by consent, or alternatively

whether any trials should be remanded to the courts of original jurisdiction for trial." Id. at 4.

On April 2, 2018, Plaintiffs Does 1-976 moved the Court for an order remanding their

cases back to the U.S. District Court for the District of Columbia. DE 1871. (hereinafter "First

Motion for Remand") The Defendant argued in Opposition, see DE 1903, that remand was

premature because pretrial proceedings had not “run their course” and there is further discovery

that is not “case specific.” Id. at 4. On April 20, 2018, Plaintiffs' Replied. DE 1904. On Sept

11, 2018, the Court denied Plaintiffs' First Motion for Remand, "WITHOUT PREJUDICE for

Plaintiffs to renew their motion after the resolution of any dispositive motions." Omnibus Order,

DE 2094 at 1.

On September 29, 2019, the Plaintiffs filed a Renewed Motion for Suggestion of

Remand, DE 2560. (hereinafter "Second Motion for Remand") Chiquita's Opposition can be

found at DE 2580. On November 5, 2019, the Court denied the Second Motion for Remand.

"Upon careful review of the parties’ respective positions on the propriety of discretionary

remand of the remaining D.C. Wolf Plaintiffs at this juncture, prior to the conclusion of all

pretrial proceedings, the Court concludes that remand is not appropriate because common issues

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central to the core claims of all Plaintiffs yet remain for determination." DE 2601 at 6. The

Court explained that the transferred cases would benefit from coordinated proceedings because

the Eleventh Circuit is expected to rule on the standards for summary judgment. "While it is also

true that substantial discovery on core, common core liability issues has been essentially

concluded at this juncture, conducted under the panoply of the Global Scheduling Order

governing pretrial procedures over all MDL cases, common legal and evidentiary challenges to

Plaintiffs’ claims yet remain for determination -- issues not reached by this Court’s threshold

partial summary judgment ruling." Id. at 6-7. In addition, "the Court finds all parties will

benefit from guidance from the Eleventh Circuit on the evidentiary issues implicated by this

Court’s threshold partial summary order – issues which are likely to duplicate in the thousands of

non-bellwether cases which remain pending in this MDL in nascent pretrial proceedings. While

the Wolf D.C. Plaintiffs are plainly entitled to a remand of their cases to the District Court in the

District of Columbia for trial, at the conclusion of all pretrial proceedings, and to appellate

oversight of the trial results from the D.C. Circuit Court of Appeals, they are not entitled, as a

matter of right, to avoid Eleventh Circuit governance over interlocutory appeals conducted

throughout [the] course of coordinated pretrial proceedings in this MDL case, and present no

compelling authority to suggest a contrary result." Id. at 7-8.

On October 22, 2021, Attorney Scarola filed a motion for another three month extension

to the discovery stay due to the pandemic, DE 2999, which was granted on November 4, 2021.

DE 3011. In our Opposition to the continued stay, we protested the fact that the Court has

allowed Mr. Scarola to determine the schedule,2 see DE 2560, disregarding the rights of the
2
See Response to Plaintiffs' and Chiquita's Joint Status Conference Statement at 1, DE 1828.
("Neither counsel for Chiquita Brands nor for the other Plaintiffs conferred with me before filing
this statement on the day before the status conference. I tried to confer with all other parties on
these issues and my positions are known to all of them, yet are not mentioned anywhere in the
Joint Status Conference Statement. I object to the refusal to confer, and also to Chiquita's having

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plaintiffs represented herein.3 The Court responded by inviting another motion for remand.

"This ruling is further without prejudice for the Wolf Plaintiffs or any other party to seek relief

from continued implementation of the bellwether case litigation device currently employed in

this MDL, per prior agreement of the parties,4 by separate motion addressing this distinct issue

for full briefing by all interested parties and consideration by the Court." Order of November 4,

2021. DE 3011.5

ARGUMENT

Under Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), the

MDL transferee court may not assign a transferred case to itself for trial. Under 28 U.S.C. §

1407(a), a case transferred for MDL proceedings shall be remanded to the transferor court by the

Judicial Panel on Multidistrict Litigation (“JPML”) at or before the conclusion of pretrial

proceedings. The party moving for remand may file a Motion with the JPML, or pursuant to Rule

10.1(b) of the Rules of Procedure of the JPML ("JPML Rules"), this Court may issue a

Suggestion of Remand:

separate discussions on discovery, scheduling, and really any matter. The MDL Transferee Court
is supposed to ensure that these communications, and discovery requests and responses, are
coordinated.")
3
None of the Movants were included in the schedule for the first round of bellwether trials. The
Court wouldn't allow them a separate trial with their own witnesses and evidence. Agreeing to
this would have excluded important witnesses, such as Manuel Ortega, Carlos Eusse, and others,
and control of the narrative presented to the jury. Unlike the Plaintiffs represented by other
counsel, the Movants include both victims of the AUC and FARC.
4
Although the Order refers to a prior agreement of the parties to participate in bellwether trials,
id., the Wolf Plaintiffs did not ever waive their right to remand under Lexicon. Their inclusion in
the bellwether pool was forthe summary judgment phase only.
5
In addition, other plaintiffs' counsel say they have not yet waived their right to remand. In
recent discussions with the New Jersey counsel over duplicate cases, Attorney Simons and
myself agreed that for any cases involving plaintiffs represented by different counsel, the
plaintiffs would invoke their right to remand under Lexecon. DE 2978 at 3. ("In the event that
the Court orders these cases consolidated for trial, the plaintiffs agree and stipulate that they will
invoke their rights to remand under Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26 (1998).")

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RULE 10.1: TERMINATION AND REMAND

(b) Initiation of Remand. Typically, the transferee judge recommends remand of

an action, or a part of it, to the transferor court at any time by filing a suggestion of
remand with the Panel. ...

RULE 10.2: CONDITIONAL REMAND ORDERS (CRO)

(a) Entering a CRO. Upon the suggestion of the transferee judge or the Panel’s
own initiative, the Clerk of the Panel shall enter a conditional order remanding the action
or actions to the transferor district court. The Clerk of the Panel shall serve this order on
each party to the litigation but shall not send the order to the clerk of the transferee
district court for 7 days from the entry thereof.

(b) Notice of Opposition. Any party opposing the CRO shall file a notice of
opposition with the Clerk of the Panel within the 7-day period. In such event, the Clerk of
the Panel shall not transmit the remand order to the clerk of the transferee district court
and shall notify the parties of the briefing schedule.

In this case, the Court first Ordered that counsel may refile the Motion for Remand after

the dispositive motions have been decided. "Plaintiffs' motion to remand the matter to the U.S.

District Court for the District of Columbia [DE 1871] is DENIED WITHOUT PREJUDICE for

Plaintiffs to renew their motion after the resolution of any dispositive motions." Omnibus Order,

DE 2094 at 1. The second Order stated that remand was still premature pending the outcome of

the appeal of the summary judgment standards. "[T]he Court finds all parties will benefit from

guidance from the Eleventh Circuit on the evidentiary issues implicated by this Court’s threshold

partial summary order – issues which are likely to duplicate in the thousands of non-bellwether

cases which remain pending in this MDL in nascent pretrial proceedings." Order, DE 2601 at 7.

That being the case, the Court should decide the instant motion and remand these cases to

the U.S. District Court for the District of Columbia once the Eleventh Circuit has ruled. This

was presumably contemplated, but not stated, in the Court's Order of November 4, 2021. DE

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3011. The Plaintiffs understand that deciding this motion before the 11th Circuit has ruled would

be premature.

A. No common issues central to the core claims of all Plaintiffs remain for
determination.

Remand is appropriate in multi district litigation after common discovery has concluded.

The supervision of discovery was one of the main purposes of the Multidistrict Litigation Act,

which created the Panel on Multidistrict Litigation to transfer cases with “common questions of

fact” to a single federal judge “for coordinated or consolidated pretrial proceedings.” See 28

U.S.C. § 1407 (2012) (hereinafter "MDL Act") According to one of its previous chairs, to

determine whether to transfer an action, the Panel will consider “whether the parties’ legitimate

discovery needs are substantially similar in all of the proposed transferee actions.” John G.

Heyburn II, A View from the Panel: Part of the Solution, 82 TUL. L. REV. 2225, 2237 (2008);

see Edward F. Sherman, When Remand is Appropriate in Multidistrict Litigation, 75 LA. L.

REV. 2 at 463-464 (2014); Stephen Scotch-Marmo & Michael James Ableson, At What Price

Efficiency? – Judicial Self-Assignment for Trial in Multidistrict Litigation, Prod. Safety & Liab.

Rep. (BNA) No. 42, at 934 (Aug. 25, 2014).

The stay of discovery currently in place pertains only to the next group of 56 bellwether

plaintiffs, and no common issue witnesses are involved.6 DE 3011. As explained in our

6
This is notwithstanding the fact that Plaintiffs have other common issue witnesses that Chiquita
never wanted to depose in the first round of discovery. These include Carlos Eusse, the former
employee of Accion Social, Plaintiffs' two Colombian law experts, a confidential witness to the
"bus massacre" incident, and others. In addition, virtually any of the plaintiffs could testify
about the AUC's control of the Urabá region during certain times, and the presence of AUC
checkpoints, curfews, and individuals wearing camouflage uniforms and carrying "long guns."
However, the larger issue is the relation between each particular murder and the Defendant's
payments, of which the control of the location is only one aspect. Both the Wolf and non-Wolf
Plaintiffs tried to prove the AUC's control using expert witnesses, who were deposed in the first
round, and this common discovery has concluded.

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Response to Motion for 90 day discovery stay, four of our eight plaintiffs selected for the second

round of bellwether trials have already obtained passports for travel to the U.S. for depositions;

one applied and is waiting to receive it; and the other three will not apply for passports, for

various reasons. See DE 3005 at 3-4.

B. Pretrial proceedings have run their course.

In deciding whether to issue a suggestion of remand to the JPML, an MDL transferee

court is “guided by the standards for remand employed by the Panel.” In re

Bridgestone/Firestone, Inc., 128 F. Supp. 2d 1996, 1197 (S.D. Ind. 2001); In re Motor Fuel

Temperature Sales Practices Litig., No. 07-MD-1840-KHV, 2012 U.S. Dist. LEXIS 76015, at 51

(D. Kan. May 30, 2012) (“In determining whether to suggest remand, the Court is guided by the

JPML’s standards for remand.”). A district court’s discretion in deciding whether to suggest

remand “generally turns on the question of whether the case will benefit from further coordinated

proceedings as part of the MDL.” In re Bridgestone/Firestone, Inc., 128 F. Supp. 2d at 1197; see

In re Air Crash Disaster, 461 F. Supp. 671, 672-73 (J.P.M.L. 1978); In re Merrill Lynch Auction

Rate Sec. Litig., No. 09 MD 2030 (LAP), 2010 U.S. Dist. LEXIS 60254, at *11 (S.D.N.Y. June

11, 2010).

The fact that the parties are working on the second group of bellwether plaintiffs, after

the first cases were either dismissed in summary judgment, or have motions for summary

In addition, as we argued in the hearing on Chiquita's Motion for Summary Judgment on

September 10, 2021, should the Court of Appeals affirm the order on appeal, then the Court
should grant a motion for discovery under the Hague Evidence Convention for recordings of
confessions to those particular murders in the Colombian Commission of Justice and Peace. The
Wolf Plaintiffs previously moved the Court for a Request under the Hague Evidence Convention
for evidence from three Colombian agencies pertaining to their first 8 bellwether cases, DE 1499,
which was denied because it was overbroad and for other reasons. DE 1546. The Non-Wolf
Plaintiffs made a similar motion, which was also denied. Motion DE 2830, Order DE 2879.
There would be no benefit or efficiency attained by coordinating any further requests under the
Hague Convention, since the plaintiffs' counsel were unable to coordinate in the past and filed
separate motions.

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judgment pending, also shows that the pre-trial proceedings have run their course. As the

Defendant has argued, see DE 1903, the Court must remand the cases when pretrial proceedings

have run their course. Id. at 3-5. The Defendant relies on In re Photochromic Lens Antitrust

Litig., MDL No. 2173, 2014 U.S. Dist. LEXIS 196273 (M.D. Fla. July 9, 2014) for factors the

Court may use to determine whether the time is ripe for remand. According to this standard, in

determining whether remand is appropriate, "[t]he decision is based on the totality of the

circumstances, including whether the case will benefit further coordinated proceedings as part of

the MDL, whether remand will serve the convenience of the parties and witnesses, and whether

remand will promote the just and efficient conduct of the litigation.” See Opposition to First

Motion for Remand, DE 1903 at 3-4.

In the instant case, the just and efficient conduct of the litigation weighs in favor of

remand. Undersigned counsel had to fight for time to speak in the Court of Appeals, and began

the oral argument by highlighting evidence that was swept under the rug by the District Court,

including a detailed benefits determination by Accion Social, the significance of a death

certificate, and the summary judgment standard itself. Luckily for the Plaintiffs, the Court of

Appeals allowed undersigned counsel to begin with a roadmap of the issues on appeal, and the

judges followed it. It was particularly noteworthy when Judge Karnes repeatedly asked defense

counsel what factors might distinguish the bellwether cases from each other, hinting that the

court may find that all of the bellwether cases should have survived summary judgment. We

used part of our rebuttal time to point out that the Celotex, Matushita, and Anderson v. Liberty

Lobby cases were all circumstantial evidence cases, and directly on point. Had we not made

these arguments, and forcefully demanded our ten minutes to speak, the Court of Appeals might

have gone off on the wrong track, analyzing the many hearsay exceptions involved.

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It will also be more efficient to remand the cases. The bellwether trial process is not

leading to a settlement or negotiation. The plaintiffs have no confidence in the mediator chosen

by Defendant Chiquita and Plaintiffs Attorney Scarola, due to the mediator's role in the

shareholder derivative phase of the case. The mediator negotiated a $4 million dollar award of

attorneys fees to a party that did not substantially prevail. The SLC Report resulting from the

litigation exonerated all of the officers and directors, and was written to protect the Defendant

from the claims by the Plaintiffs. In addition, the Wolf Plaintiffs have been arguing to lift the

discovery stay, which will advance the litigation and is therefore more efficient.

The convenience to the parties and witnesses also favors remand. This Court doesn't

have jurisdiction to assign cases to itself for trial, for cases transferred from other courts pursuant

to the MDL Statute, 28 USC § 1407. It is not more convenient for the plaintiffs to continue

waiting in the transferee court - the first plaintiffs filed their claims in 2007 - but the delays have

clearly benefited the Defendant. As explained in the Status Report on the Contract Status of

Does 1-144, DE 3006, a majority of the Plaintiffs from that time couldn't be found using the last

known contact information. Id. at 2. In addition, many of the plaintiffs have either died or

become too ill to participate in the case, over the last 14 years. The Court has denied every Rule

25 Motion to Substitute the children of these plaintiffs when they died, filed either by myself or

Attorney Simons, even though this is what would normally happen in the legal systems of both

Colombia and the United States. The inconvenience to the Plaintiffs caused by many years of

delay is extreme.

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C. The bellwether process won't lead to a global settlement because undersigned

counsel cannot effectively represent his clients using the mediator chosen by
Chiquita and counsel for the non-Wolf plaintiffs.

Besides coordinating common discovery, one of the duties of an MDL transferee court is

to try to encourage a global settlement. See MANUAL FOR COMPLEX LITIGATION § 20.132

(4th ed. 2004) (“One of the values of multidistrict proceedings is that they bring before a single

judge all of the federal cases, parties, and counsel comprising the litigation. They therefore afford

a unique opportunity for the negotiation of a global settlement. Few cases are remanded for trial;

most multidistrict litigation is settled in the transferee court. As a transferee judge, it is advisable

to make the most of this opportunity and facilitate the settlement of the federal and any related

state cases.”). There has been no progress whatsoever in negotiations between the parties.

Chiquita believes it has won the case. Moreover, undersigned counsel cannot effectively

represent his clients with this mediator, due to the irregular payment of $4 million dollars in

attorneys fees by Chiquita to shareholder derivative counsel, for writing a self-serving report that

exonerated all of the officers and directors. Such dealings were the last straw in a case that

involves significant witness bribery, and claims by Attorney Scarola to have special influence in

this Court, because of a personal relationship with the judge.

According to professor Elizabeth Chamblee Burch, common adverse consequences in

this situation may include coercive terms in a settlement designed to control the interests of the

non-Wolf plaintiffs at the expense of those of the Wolf plaintiffs, not having jury trials that bring

a community’s diverse perspectives and norms to bear on fact finding, giving defendants

strategic benefits of centralization and global settlement; and allowing transferee judges to

receive self-interested benefits. See Elizabeth Chamblee Burch, Remanding Multidistrict

Litigation, 75 LA. L. REV. 399, 413 (2014).

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Conclusion

These cases were transferred to this Court more than ten years ago, over our objection.

We have had no input into the litigation, just as Attorney Scarola told us ten years ago. Further

delay will only result in more Plaintiffs dying of old age or becoming impossible to find. It's not

a matter of inconveniencing the Defendant. It's about the Due Process rights of the Plaintiffs,

and their ability to make arguments in Court.

Respectfully submitted,

/s/ Paul Wolf

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

November 9, 2021

Certificate of Service

I hereby certify that on this 9th day of November, 2021, 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 entitled to receive them.

/s/ Paul Wolf

_________________
Paul Wolf

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