Aquamar v. Del Monte Fresh Produce

• Decision Date: 30 June 1999
• Docket Number: No. 95-5198.,95-5198.
• Citation: 179 F.3d 1279
• Parties: AQUAMAR S.A.; Emelorsa-Empacadora El Oro; Industrial Y Agricola 44 S.A., Plaintiffs-Appellees, v. DEL MONTE FRESH PRODUCE N.A., INC.; Del Monte Fresh Produce Company; Ciba-Geigy Limited, Defendants-Appellants, Programa Nacional De Banano, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

179 F.3d 1279

AQUAMAR S.A.; Emelorsa-Empacadora El Oro; Industrial Y Agricola 44 S.A., Plaintiffs-Appellees, v. DEL MONTE FRESH PRODUCE N.A., INC.; Del Monte Fresh Produce Company; Ciba-Geigy Limited, Defendants-Appellants, Programa Nacional De Banano, Third-Party Defendants-Appellees.

No. 95-5198.

United States Court of Appeals, Eleventh Circuit.

June 30, 1999.

COPYRIGHT MATERIAL OMITTED

Robert D. McIntosh, Adorno & Zeder, Ft. Lauderdale, FL, for Ciba.

Brian J. Stack, Stack, Fernandez & Anderson, P.A., Miami, FL, for Del Monte.

John H. Pelzer, Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale, FL, for International Fertilizer.

Robert Donald Brown, Akerman, Senterfitt & Eidson, Miami, FL, for Plaintiffs-Appellees.

Carl F. Schoeppl, Scott A. Mager, Mager & Associates, PA, Ft. Lauderdale, FL, for Republic of Ecuador/Programa Nacional de Banano.

Kevin A. Malone, Kelley B. Gelb, Krupnick, Campbell, Malone, Roselli, Buser, Slama & Hancock, Ft. Lauderdale, FL, John R. Beranek, Ausley & McMullen, Tallahassee, FL, for Aquamar.

John P. Seiler, Ft. Lauderdale, FL, for Fish Peddler.

Tyrie A. Boyer, Jacksonville, FL, for Pink Star Corp.

Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

KRAVITCH, Senior Circuit Judge:

This appeal presents several novel issues regarding appellate jurisdiction and the waiver provisions of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. §§ 1330, 1602-11. Defendants/appellants Del Monte Fresh Produce Company, Del Monte Fresh Produce N.A., Inc., and Ciba-Geigy Limited (collectively "appellants") contend that Programa Nacional de Banano ("PNB"), an Ecuadorian government agency, has expressly waived its sovereign immunity from suit under the FSIA. They appeal an order dismissing their third-, fourth- and fifth-party complaints against PNB¹ upon a finding that PNB enjoys sovereign immunity and remanding the cases to state court for lack of subject matter jurisdiction. Plaintiffs/appellees (collectively "plaintiffs") and third-party defendants/appellees PNB and the Republic of Ecuador contend that PNB's dismissal is not reviewable on appeal and that the district court correctly determined that PNB had not waived its sovereign immunity. Plaintiffs also have moved for attorneys' fees.

I. BACKGROUND AND PROCEDURAL HISTORY

This action has made its way through the courts of three jurisdictions: the United States, the State of Florida, and the Republic of Ecuador. It originated in 1995 when plaintiffs, commercial shrimp farmers in Ecuador, claimed in a series of Florida state court actions that fungicides and herbicides produced or supplied by the defendants and used on Ecuadorian banana farms had killed their shrimp. The defendants filed third-, fourth- and fifth-party complaints against PNB, a department within the Ministry of Agriculture and Livestock of the Republic of Ecuador, which removed the cases to federal court pursuant to 28 U.S.C. § 1441(d). The only basis for federal subject matter jurisdiction was PNB's presence under 28 U.S.C. § 1330(a), which gives the federal courts jurisdiction over foreign states and their agencies and instrumentalities. PNB then joined in defendants' motion to dismiss the actions on the grounds of forum non conveniens.

Plaintiffs moved to strike the complaints against PNB, arguing, among other things, that the district court did not have jurisdiction over PNB because PNB had sovereign immunity from suit under the FSIA.² A flurry of communications ensued from Ecuadorian government officials and legal experts on whether PNB and the Ecuadorian government had, could, or were required to waive sovereign immunity. First, PNB's legal counsel filed documents on behalf of PNB that purported to waive PNB's sovereign immunity. PNB's May 4, 1995 Statement of Position stated that "PNB hereby, and for the purposes of this litigation and this litigation only ... explicitly waives its immunity from the jurisdiction of this Court pursuant to 28 U.S.C. § 1605(a)(1)," but went on to say that the waiver did not apply to the government of Ecuador as a whole.³ PNB later attempted to clarify its position, stating that

The Republic of Ecuador, acting through its Ambassador to the United States and the undersigned counsel, has made it clear that any immunity from jurisdiction has been waived with respect to the allegations over the use of fungicides in Ecuador which have been made against PNB, and by extension against the Ministry and the Republic. . . . PNB hereby affirms that it is the intention of the Republic to waive sovereign immunity from jurisdiction with respect to the subject matter of this litigation.⁴

The district court initially denied plaintiffs' Motion to Strike, but reserved the right to reexamine the issue of PNB's sovereign immunity.

On June 13, 1995, the District Court granted plaintiffs' Motions for Reconsideration, directing PNB to provide "convincing proof that the Republic of Ecuador has effected a valid waiver of its sovereign immunity for the purposes of the third, fourth and fifth-party complaints against PNB in these lawsuits."⁵

PNB then presented official documents purporting to waive immunity. The first, the June 16, 1995 affidavit of Edgar Terán, Ecuador's Ambassador to the United States, stated in part that

I respectfully waive PNB's Sovereign Immunity on behalf of PNB and the Government of Ecuador on the following limited basis. Without waiving any other defense of law or fact to the claims asserted against it in this litigation, PNB hereby and for the purposes of these litigations only and in connection with the pending forum non conveniens motions (1) explicitly waives its immunity from the jurisdiction of this Court pursuant to 28 U.S.C. 1605(a)(i) and (2) consents to the exercise of personal jurisdiction by this Court over PNB.⁶

Terán stated that the purpose of the waiver was to support a federal court forum non conveniens dismissal:

The decision by the Ecuadorian Government to submit to the Court's jurisdiction in connection with these cases was not made lightly but is a recognition of the fundamental seriousness with which the Ecuadorian Government defends its sovereignty over its environment and use of natural resources.... According to Ecuadorian law, conditions relating to the environment . . . belong to the sovereignty of each state.⁷

Plaintiffs questioned Ambassador Terán's authority to waive sovereign immunity. At a hearing on June 26, the district judge asked several questions about who, under international and Ecuadorian law, was authorized to waive a country's sovereign immunity. On June 27, 1995, the court entered another order directing the parties to supplement the record, stating that

given the importance of this issue, the court has only one option. It must become informed of the relevant provisions of Ecuadoran law, determine precisely what is required for an effective waiver of sovereign immunity under that law, and examine the record to determine if there has been an effective waiver.⁸

PNB submitted an Ecuadorian legal expert's opinion that Ambassador Terán was authorized to waive sovereign immunity⁹ and an affidavit of Sixto Durán Ballen, President of the Republic of Ecuador, stating that

3. Dr. Edgar Terán ... has acted in the name of the Republic of Ecuador (and therefore of the National Banana Program).

. . . .

5. I . . . know what Ambassador Terán has already stated, and I ratify his statement as regards the priority policy of the Republic of Ecuador is that these matters ... should be decided within the Ecuadoran forum. . . .¹⁰

In the meantime, plaintiffs submitted letters and affidavits of Ecuadorian legal experts and government officials claiming that (1) only the Attorney General of Ecuador was authorized to act in judicial matters, (2) the Ecuadorian Constitution did not allow anyone to waive Ecuador's sovereign immunity, and (3) Terán had improper motives for waiving sovereign immunity.

In an order dated August 28, 1995, the district court dismissed the complaints against PNB. The court found that PNB had not waived sovereign immunity because Ambassador Terán's affidavit was "expressly limited to litigation of the forum non conveniens motion now pending"¹¹ and President Durán Ballén's affidavit was "similarly qualified."¹² These qualifications meant that "no representative of the Republic of Ecuador had ever purported to waive the immunity of the Republic with respect to the third, fourth and fifth-party claims against PNB."¹³ In the same order, the district court remanded the cases to the state court on the ground that without PNB as a party, it no longer had subject matter jurisdiction over the action.

The defendants filed a Motion for Reconsideration and for Stay and a Motion to Amend. PNB made one more attempt to waive sovereign immunity, filing an affidavit of Ambassador Terán dated August 31, 1995, which stated that

3. In its decision, the Court stated that "no representative of the Republic of Ecuador has ever purported to waive the immunity of the Republic with respect to the third, fourth and fifth party claims against PNB."

4. I am surprised at the Court's conclusion because the waiver described by the Court ... is precisely what I intended to effect in my prior affidavits. I hereby reaffirm that intention and that waiver.¹⁴

Plaintiffs, in response, submitted more evidence that Terán was not authorized to waive immunity. In an order dated October 12, 1995, the district court denied the defendants' motions. Citing 28 U.S.C. § 1447(d), it held that, because it had already remanded the cases, it was without jurisdiction to review its August 28 order.

Once the cases returned to Florida state court (with PNB no longer a party), the defendants again moved for a forum non conveniens dismissal. After the Florida trial court denied the motion, a Florida appeals court, relying on the recently decided case of Kinney Sys., Inc. v....