Carrizosa v. Chiquita Brands Int'l, Inc.

47 F.4th 1278

Antonio Gonzalez CARRIZOSA, et al., Plaintiffs,

Doe 378, Ludy Rivas Borja, as daughter and successor to Doe 840 (deceased), Ana Ofelia Torres Torres, Pastora Durango, Gloria Eugenia Munoz, Jose Lopez 339, Juana Doe 11 and Minor Doe 11A, Juana Perez 43A, Jane Doe 7, John Doe 7, individually and as representative of his deceased son John Doe 8, Juvenal Enrigue Fontalvo Camargo, Nancy Mora Lumus, Sara Matilde Manjarres, Plaintiffs-Appellants Cross-Appellees,

v.CHIQUITA BRANDS INTERNATIONAL, INC., Defendant-Appellee Cross-Appellant,Chiquita Fresh North America LLC., a Delaware Corporation, et al., Defendants,Keith E. Lindner, Charles Keiser, Carla A. Hills, as representative of the Estate of Roderick M. Hills, Sr., Cyrus Friedman, Robert F. Kistinger, Robert W. Olson, William A. Tsacalis, Defendants-Appellees Cross-Appellants.

Does 1 through 976, et al., Plaintiffs,

Doe 378, Ludy Rivas Borja as daughter and successor to Doe 840 (deceased), Plaintiffs-Appellants, Cross-Appellees.

No. 19-13926

United States Court of Appeals, Eleventh Circuit.

Filed: September 6, 2022

Paul L. Hoffman, Schonbrun Seplow Harris Hoffman & Zeldes, LLP, Hermosa Beach, CA, Theodore J. Leopold, Diana L. Martin, Cohen Milstein Sellers & Toll, PLLC, Palm Beach Gardens, FL, Agnieszka M. Fryszman, Cohen Milstein Sellers & Toll, PLLC, Washington, DC, Richard L. Herz, Marco Benjamin Simons, Marissa Vahlsing, EarthRights International, Washington, DC, for Plaintiff-Appellant-Cross-Appellee Jane Doe, 7.

Paul David Wolf, Law Offices of Paul David Wolf, Washington, DC, for Plaintiff-Appellant-Cross-Appellee Doe 378.

William Wichmann, Law Offices of William J. Wichmann, PA, Fort Lauderdale, FL, for Plaintiffs-Appellants-Cross-Appellees Juana Does, 11, Minor Doe 11A.

James Kellogg Green, James K. Green, PA, West Palm Beach, FL, John Scarola, Searcy Denney Scarola Barnhart & Shipley, PA, West Palm Beach, FL, for Plaintiffs-Appellants-Cross-Appellees Pastora Durango, Jose Lopez, 339, Gloria Eugenia Munoz, Ana Ofelia Torres Torres.

Stephen Golembe, Stephen J. Golembe, PA, MIAMI, FL, Jonathan C. Reiter, Jonathan C. Reiter Law Firm, PLLC, New York, NY, for Plaintiffs-Appellants-Cross-Appellees Juvenal Enrique Fontalv Camargo, Nancy Mora Lemus.

Terrence Patrick Collingsworth, International Rights Advocates, Washington, DC, for Plaintiff-Appellant-Cross-Appellee Juana Perezes.

Michael L. Cioffi, Trial Attorney, Thomas H. Stewart, Blank Rome, LLP, Cincinnati, OH, Kevin Michael Bandy, Ulmer & Berne, LLP, Cincinnati, OH, Frank Anthony Dante, Melissa Fundora Murphy, Blank Rome, LLP, Philadelphia, PA, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, Adam V. Orlacchio, Blank Rome, LLP, Wilmington, DE, Aseem Padukone, Covington & Burling, LLP, San Francisco, CA, for Defendant-Appellee-Cross-Appellant Chiquita Brands International, Inc.

Ardith Michelle Bronson, DLA Piper LLP (US), MIAMI, FL, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, for Defendant-Appellee-Cross-Appellant Cyrus F. Freidheim, Jr.

K. Lee Blalack, II, O'Melveny & Myers, LLP, Washington, DC, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, Dimitri Portnoi, O'Melveny & Myers, LLP, Los Angeles, CA, for Defendant-Appellee-Cross-Appellant Carla Hills.

Michael L. Cioffi, Trial Attorney, Thomas H. Stewart, Blank Rome, LLP, Cincinnati, OH, David S. Krakoff, Bradley Marcus, Buckley, LLP, Washington, DC, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, for Defendant-Appellee-Cross-Appellant Charles Keiser.

Lauren Z. Alexander, Edward Soto, Weil Gotshal & Manges, LLP, MIAMI, FL, Michael L. Cioffi, Trial Attorney, Thomas H. Stewart, Blank Rome, LLP, Cincinnati, OH, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, for Defendant-Appellee-Cross-Appellant Keith Lindner.

Michael L. Cioffi, Trial Attorney, Thomas H. Stewart, Blank Rome, LLP, Cincinnati, OH, Kaitlin Konkel, Elissa Joy Preheim, Arnold & Porter Kaye Scholer, LLP, Washington, DC, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, for Defendant-Appellee-Cross-Appellant Robert W. Olson.

Michael L. Cioffi, Trial Attorney, Thomas H. Stewart, Blank Rome, LLP, Cincinnati, OH, John Brian Thomas Murray, Jr., Gunster Yoakley & Stewart, PA, West Palm Beach, FL, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, for Defendant-Appellee-Cross-Appellant William Tsacalis.

Ardith Michelle Bronson, DLA Piper LLP (US), Miami, FL, Michael L. Cioffi, Trial Attorney, Thomas H. Stewart, Blank Rome, LLP, Cincinnati, OH, Jonathan W. Hughes, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, for Defendant-Appellee-Cross-Appellant Robert Kistinger.

Claret Vargas, Center for Justice and Accountability, San Francisco, CA, for Amici Curiae Center for Justice & Accountability, Partners in Justice Intnl, Stephen J. Rapp, David Scheffer.

Before Jordan, Newsom, and Ed Carnes, Circuit Judges.

JORDAN, Circuit Judge:

This appeal arises from a massive and complex multi-district litigation proceeding based on claims—brought in part under the Torture Victim Protection Act, 28 U.S.C. § 1350 note, and Colombian law—that Chiquita Brands International and some of its executives provided financial support to the Autodefensas Unidas de Colombia, which murdered thousands of persons in Colombia. In a dozen bellwether cases, the district court issued a comprehensive order granting summary judgment in favor of the defendants. After excluding some of the plaintiffs’ evidence, the court ultimately concluded that the plaintiffs "fail[ed] to identify any admissible evidence" in support of their allegations that the AUC had killed their respective decedents. See D.E. 2551 at 71.

On appeal, the plaintiffs argue that the district court abused its discretion in excluding much of their evidence and that genuine issues of material fact precluded summary judgment on their claims. The individual defendants cross-appeal (1) the order denying their motion to dismiss the plaintiffs’ TVPA claims, and (2) the ruling that one individual defendant, Carla Hills (as personal representative of the Estate of Roderick Hills), waived her personal jurisdiction argument. As to the TVPA claims, the individual defendants argue that the allegations in the complaint were insufficient under Rule 12(b)(6). Ms. Hills, for her part, contends that she timely raised her personal jurisdiction objection.

Following oral argument and a review of the extensive record, we affirm in part, vacate in part, reverse in part, and dismiss in part. With respect to the evidentiary rulings, we conclude that the district court got some right and some wrong. As to the merits, we hold that most of the bellwether plaintiffs presented sufficient evidence to withstand summary judgment with respect to whether the AUC was responsible for the deaths of their decedents. On the cross-appeals, we do not reach the arguments presented by the individual defendants and Ms. Hills.¹

I²

Between 1997 and 2004, Chiquita Brands International paid over $1.7 million to the AUC, a paramilitary group designated as a foreign terrorist organization by the United States Secretary of State. During this time, Colombia was in the midst of a civil war between paramilitary groups, like the AUC, and guerillas. "[T]he AUC was closely aligned—and even intertwined—with the Colombian [government] through its ideologies and practices that revolved around their shared goals of eliminating the ‘subversive’ threat posed by guerrilla groups." D.E. 2346-5 at 1. See also D.E. 2346-1 at 2. The AUC "controll[ed] territory by terror," App. 8531, and was well known for perpetrating violence not just against guerrilla fighters, but also against innocent civilians. See D.E. 2346-1 at 2; D.E. 2348-4 at 19–20.

Eventually, the United States learned of Chiquita's payments to the AUC and charged the company with engaging in transactions with a specially-designated global terrorist organization. Chiquita pled guilty to the charge in 2007. See Plea Agreement, D.E. 11, United States v. Chiquita Brands Int'l , Case No. 07-CR-00055-RCL (D.D.C. Mar. 19, 2007).

In response, many people who suspected the AUC of killing their family members and loved ones sued a number of defendants, including Chiquita and some of its executives. As relevant here, the bellwether plaintiffs asserted tort claims under Colombian law and federal claims under the Torture Victim Protection Act, 28 U.S.C. § 1350 note, alleging that the defendants’ financial support of the AUC led to the group's murder of their family members and loved ones. The plaintiffs conceded that to prevail on their claims they had to "show, as a factual predicate for all of their claims, that the AUC was responsible for the murder of each decedent." D.E. 2551 at 4.³

An MDL panel consolidated the plaintiffs’ cases for pretrial proceedings in the Southern District of Florida. A dozen of those cases were then selected as bellwether cases. As relevant here, the district court denied the individual defendants’ motion to dismiss the TVPA claims and ruled that Ms. Hill had waived her personal jurisdiction argument.

Chiquita and the individual defendants then moved for summary judgment on multiple grounds. The district court concluded that the plaintiffs had not presented sufficient admissible evidence demonstrating that the AUC was involved in the death of their family members and loved ones and therefore could not show the existence of a genuine issue of material fact for an essential element of their claims.

The district court therefore granted summary judgment in favor of all the defendants with respect to the claims of the bellwether plaintiffs. It ruled that (1) the plaintiffs’ documentary evidence was comprised mostly of inadmissible hearsay, "and even if accepted for its substantive content, [would not] support the inferences urged by [the p]laintiffs"; (2) the testimonial evidence constituted...