In re Chiquita Brands Int'l Inc. Alien Tort Statute And S'holder Derivative Litig..This Document Relates To: Ats Actions 07–60821–civ–marra

• Citation: 792 F.Supp.2d 1301
• Decision Date: 03 June 2011
• Docket Number: Case No. 08–01916–MD.
• Parties: In re CHIQUITA BRANDS INTERNATIONAL, INC. ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION.This Document Relates To: ATS Actions 07–60821–CIV–MARRA, 08–80421–CIV–MARRA, 08–80465–CIV–MARRA, 08–80480–CIV–MARRA, 08–80508–CIV–MARRA, 10–60573–CIV–MARRA, 10–80652–CIV–MARRA.
• Court: U.S. District Court — Southern District of Florida

792 F.Supp.2d 1301

In re CHIQUITA BRANDS INTERNATIONAL, INC. ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION.This Document Relates To: ATS Actions 07–60821–CIV–MARRA, 08–80421–CIV–MARRA, 08–80465–CIV–MARRA, 08–80480–CIV–MARRA, 08–80508–CIV–MARRA, 10–60573–CIV–MARRA, 10–80652–CIV–MARRA.

Case No. 08–01916–MD.

United States District Court, S.D. Florida.

June 3, 2011.

OPINION AND ORDER

KENNETH A. MARRA, District Judge.

THIS CAUSE is before the Court upon Defendants' Motions to Dismiss Amended Complaints. (DEs 92, 295). The motions are fully briefed and ripe for review. The Court has carefully considered the briefing, supplemental briefing, and oral arguments, and is otherwise fully advised in the premises. ¹

Plaintiffs, citizens and residents of Colombia, are the family members of trade unionists, banana-plantation workers, political organizers, social activists, and others tortured and killed by the Autodefensas Unidas de Colombia (“AUC”), a paramilitary organization operating in Colombia. The decedents were allegedly killed by the AUC during the 1990s through 2004 in the Colombian banana-growing regions, primarily in the Uraba and Magdalena areas. Plaintiffs bring this action against Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America LLC (collectively “Chiquita”), alleging claims under various federal statutes, state common laws, international customary law, and foreign law. Specifically, Plaintiffs allege claims under 28 U.S.C. § 1350—commonly known as the Alien Tort Statute (“ATS”) or Alien Tort Claims Act (“ATCA”)—for terrorism; material support to terrorist organizations; torture; extrajudicial killing; war crimes; crimes against humanity; cruel, inhuman, or degrading treatment; violation of the rights to life, liberty and security of person and peaceful assembly and association; and consistent pattern of gross violations of human rights. Plaintiffs also allege claims under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note, for torture and extrajudicial killing. Last, Plaintiffs allege claims under the laws of Florida, New Jersey, Ohio, the District of Columbia, and the foreign law of Colombia for assault and battery, wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent hiring, negligent per se, and loss of consortium.

FACTUAL BACKGROUND ²

The AUC

Since the 1940s, Colombia has been engaged in a longstanding civil conflict between the government and left-wing guerrilla insurgents, such as the Revolutionary Armed Forces of Colombia (“FARC”) and the National Liberation Army (“ELN”).³ FAC ¶¶ 407, 497–99.

In the early 1980s, Colombian drug barons, large-land owners, industrialists, and bankers, with the cooperation of the Colombian government, began to create private paramilitary units to combat the left-wing guerrilla forces. FAC ¶¶ 407–08. By the mid–1990s, the largest and most well-organized paramilitary group in Colombia was the Rural Self–Defense Group of Cordoba and Uraba (the “ACCU”). FAC ¶ 409.

The commander-in-chief of the ACCU was Carlos Castano. FAC ¶ 409. In 1994, Castano and the ACCU sponsored a summit of the paramilitary groups from across Colombia. FAC ¶ 409. This summit led to the formation of the AUC, a national federation uniting Colombia's regional paramilitaries under Castano's leadership. FAC ¶ 409.

The AUC grew rapidly in size during the late 1990s and into the twenty-first century. FAC ¶ 410. In 1997, it was comprised of roughly 4,000 combatants. FAC ¶ 410. By 2001, Castano claimed to have 11,000 members, and by 2002, AUC forces were present in nearly all regions of Colombia. FAC ¶ 410.

As part of its war strategy, the AUC sought to eliminate any guerrilla sympathizer who opposed the paramilitaries' control of the territories in which the AUC operated. FAC ¶ 411. The AUC's primary method was to terrorize individuals and communities suspected of guerrilla sympathies. FAC ¶ 411. To this end, the AUC routinely engaged in death threats, summary executions, torture, rape, kidnaping, forced disappearances, looting, and large-scale attacks on civilian populations. FAC ¶ 411.

While the AUC periodically engaged in direct combat with armed guerrilla forces, the majority of its victims were civilians whom the AUC viewed as supporters of the guerrillas or whom inhabited areas in which the guerrillas operated. FAC ¶ 412. The AUC also targeted people thought to share the guerrillas' leftist ideology, such as teachers, community leaders, trade unionists, human rights activists, religious workers, and leftist politicians. FAC ¶ 413. The AUC was also known to eliminate groups it considered socially undesirable, such as indigenous persons, people with psychological problems, drug addicts, prostitutes, and petty criminals. FAC ¶ 413.

The escalation of violence between the paramilitaries and the guerrillas caused the Colombian president to issue Decree 1194 of 1989, adopted as permanent legislation in 1991, which criminalized membership in a paramilitary group or providing any support to such groups. FAC ¶ 408. In 1994, however, the Colombian government created a new legal mechanism for funding and supporting paramilitaries, known as Chapter 5 of Decree 356. FAC ¶ 421. Paramilitaries could reorganize and continue operating under Chapter 5, which allowed private groups to provide for “Special Vigilance and Private Security Services.” FAC ¶ 421. These private security groups, known commonly by their Spanish-language acronym “convivir,” were comprised of civilians who received permission from the government for a license to provide their own security in high-risk areas. FAC ¶ 421. Convivir were permitted to use arms that were otherwise restricted to the military's use. FAC ¶ 421.

Plaintiffs allege that the convivir units were fronts for the paramilitaries from their inception. FAC ¶ 422. In the Uraba region—where Chiquita's wholly owned subsidiary, C.I. Bananos de Exportacion, S.A. (“Banadex”), operated its banana plantations—the convivir units were comprised of and led by known AUC paramilitaries. FAC ¶ 422.

The convivir units worked closely with the Colombian military, facilitating communication and collaboration between the military and the AUC. FAC ¶ 426. Plaintiffs allege that the cooperation between the AUC and convivirs on one hand, and the Colombian military and government officials on the other, was extensive. Both groups sought to defeat the left-wing guerrilla insurgency and both worked together towards that end. FAC ¶ 429. This alleged collaboration included joint membership between the AUC and the Colombian military and security forces, the government's acquiescence to the AUC's permanent military bases and security checkpoints, the government's refusal to intervene to stop AUC attacks, intelligence sharing, arms and equipment sharing, and planning and executing joint attacks on civilian populations. FAC ¶¶ 426, 429, 433–37. Plaintiffs allege that this model of collaboration between the paramilitaries and the government was “developed and perfected” in the Uraba region, the area of Chiquita's banana operations. FAC ¶ 438.

On September 10, 2001, the U.S. government designated the AUC as a Foreign Terrorist Organization (“FTO”). FAC ¶ 473.

The Torture and Killing of Plaintiffs' Relatives

There are several thousand named plaintiffs in the seven complaints, and some complaints are filed as class actions seeking to represent larger classes. Each named plaintiff alleges that he or she is a family member of a victim who was killed or tortured by the AUC. Each plaintiff alleges that the AUC attacked his or her relative in the banana-growing regions of Colombia, during the period when Chiquita supported the AUC. While the circumstances of each attack are unique, to summarize each plaintiff's allegations would be impractical given the number of plaintiffs. Accordingly, this opinion will provide only allegations of several representative plaintiffs.⁴

• Juana Perez 50B is the wife and is also a legal heir of Pablo Perez 50, with whom she had a family. Pablo Perez 50, an employee of Finca Marte, a banana plantation owned or controlled by Chiquita, or which supplied Chiquita, was an active member of the trade union SINTRAINAGRO, which represented banana workers in Magdalena, including Chiquita workers .... On the night of October 31, 1997 or in the early morning hours of November 1, 1997, a group of heavily armed paramilitaries dressed in camouflaged uniforms stormed Pablo Perez 50's home in the village of Guacamayal, in the banana zone of Magdalena, while he was sleeping. The paramilitaries broke down the door to the home, found Pablo Perez 50 and seized him, tied him up and forced him to accompany them at gunpoint, beating him as they kidnaped him. Pablo Perez 50's corpse was found the following morning with signs of torture and two gunshots, one to the head and one to the body. In a certificate issued on November 22, 1999, Elvis Emilio Redondo Lopez, the Cienaga Municipal Representative, confirmed that Pablo Perez 50 was murdered in a massacre carried out in the context of the internal armed conflict. FAC ¶¶ 296–97.

• Juan Perez 60 is the father and legal heir of Pablo Perez 60, an employee of Finca San Antonio, a banana plantation owned or controlled by Chiquita, or which supplied Chiquita, located in Turbo, in the Uraba region of Antioquia.... At approximately 1:00 AM on June 17, 1999, Pablo Perez 60 was resting at his home in Apartado, Antioquia when a group of paramilitaries who had arrived in several vehicles stormed his home, kicked in his door, seized Pablo Perez 60, and beat him. The paramilitaries demanded to know where Pablo Perez 60 had weapons hidden. Finding no weapons, the paramilitaries kidnaped Pablo Perez 60 and took him to the village of Nueva Colonia .... There, the paramilitaries tortured Pablo Perez 60 before executing him with several...