In re Chiquita Brands Int'l, Inc.

Citation284 F.Supp.3d 1284
Decision Date03 January 2018
Docket NumberCASE NO. 08–MD–01916–KAM
Parties IN RE: CHIQUITA BRANDS INTERNATIONAL, INC. Alien Tort Statute and Shareholder Derivative Litigation This Document Relates to ATA ACTIONS: 08–20641–CIV–MARRA (JULIN) 09–80683–CIV–MARRA (PESCATORE) 11–80402–CIV–MARRA (SPARROW)
CourtU.S. District Court — Southern District of Florida

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DE 1329] AND GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE AFFIRMATIVE DEFENSE OF DURESS [DE 1323]

KENNETH A. MARRA, United States District Judge

This is a civil action to recover damages for the murder of six United States citizens in the Republic of Colombia. The Plaintiffs are a missionary organization, New Tribes Mission ("NTM"), and the relatives and representatives of six Americans who were kidnapped and killed in the 1990s by a Colombian terrorist organization known as the Fuerzas Armadas Revolucionarias de Colombia—"the Armed Revolutionary Forces of Colombia"—or the "FARC."

Plaintiffs bring claims under the civil liability provisions of the Anti–Terrorism Act (the "ATA"), 18 U.S.C. § 2333(a), against Defendant Chiquita Brands International, Inc. ("Chiquita").1 Plaintiffs allege that Chiquita violated the ATA by providing material support to the FARC by funneling money to it over a nine-year period of time through one of its wholly-owned Colombian subsidiaries.

The case is currently before the Court on (1) Chiquita's Motion for Summary Judgment [DE 1329], supporting Statement of Material Facts [DE 1330, 1335] and corresponding briefing of the parties [DE 1367, 1405, 1422] and (2) Plaintiffs' Motion for Partial Summary Judgment on Chiquita's Fourth & Fifth Affirmative Defenses [DE 1323], Supporting Statement of Material Facts [DE 1322, 1407] and corresponding briefing of the parties [DE 1365, 1366, 1414].

Chiquita advances three basic arguments in support of summary judgment:

(1) Plaintiffs' operative Amended Complaints2 allege secondary liability, which is not supported under the ATA;

(2) Plaintiffs lack sufficient evidence to prove the essential elements of their ATA claims, i.e. Plaintiffs' evidence would not permit a reasonable jury to find that (a) Chiquita possessed the degree of scienter necessary to be held liable for an "act of international terrorism" as that term is defined under the ATA; (b) Chiquita possessed the degree of scienter necessary to be held liable under the minimum recklessness mens rea standard imposed by the ATA, or the specific mens rea requirements of the predicate criminal violation (§ 2339A) alleged; (c) Chiquita's conduct was the cause of the Plaintiffs' injuries;

(3) Plaintiffs' claims are barred by the ATA's ten-year statute of limitations because the deaths of Plaintiffs' decedents occurred more than ten years prior to filing of suit, and Plaintiffs lack sufficient evidence to create a jury question on the issue of equitable tolling.

Plaintiffs, in turn, argue they are entitled to partial summary judgment on Defendant's Fourth Affirmative Defense of "necessity" or "duress," because the undisputed facts attending Chiquita's nine-year history of payments to the FARC are not reasonably susceptible to the inference that Chiquita made the payments under "imminent" threat of death or serious bodily harm, or for the lack of reasonable legal alternatives,3 and therefore present no jury question on two critical elements of this defense. Alternatively, they argue Chiquita does not show duress to be an available legal defense to this civil ATA claim as a matter of law.

Having carefully reviewed the parties' briefs and evidentiary submissions, and having heard argument of counsel, the Court grants the motions in part and denies the motions in part for the reasons which follow.

I. BACKGROUND
A. PROCEDURAL BACKGROUND

On March 11, 2008, the Julin Plaintiffs sued Chiquita under the ATA and state law alleging that five members of the New Tribes Mission organization were kidnapped and killed in Colombia by the FARC in the early-to-mid 1990s. The Pescatore Plaintiffs filed similar claims on March 13, 2009 and March 9, 2011, alleging that the FARC kidnapped and killed Frank Pescatore, an American geologist affiliated with "GeoMet," an Alabama-based energy company, in December 1996 (kidnapping) and February 1997 (killing). At this juncture, only ATA claims remain pending against Chiquita in both cases.

In earlier proceedings addressing the sufficiency of the pleadings, much of the dispute centered on the proper causation and scienter standards applicable to Plaintiffs' ATA claims. The scienter debate hinged on the viability of primary and secondary theories of liability alternatively alleged by Plaintiffs. The Court initially found both theories viable [DE 278], but on reconsideration, agreed that secondary liability is not supported under the ATA and amended its original ruling to dismiss the standalone aiding and abetting and conspiracy claims [DE 692]. The major cases relied upon in the Court's ruling included Boim v. Holy Land Foundation for Relief and Development (Boim III), 549 F.3d 685 (7th Cir. 2008) (en banc ), cert. denied sub nom. Boim v. Salah , 558 U.S. 981, 130 S.Ct. 458, 175 L.Ed.2d 324 (2009) and Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013).

The causation debate hinged on whether the ATA requirement for a plaintiff to show injury suffered "by reason of" an act of international terrorism requires a showing of "but-for" causation in addition to proximate causation. The Court rejected the imposition of a but-for causation requirement. The Court further found the allegations of Plaintiffs' then operative complaints sufficient to support the inference that Chiquita's material support would fund some of the FARC's terrorist activities, including kidnappings and murders of Americans,4 and held that the complaints adequately alleged proximate causation [DE 278]. The Court denied Chiquita's motion for reconsideration on this point [DE 692].

After these preliminary rulings, Plaintiffs filed amended complaints in order to tailor their factual allegations and legal claims to the prior rulings of the Court. In Pescatore, Plaintiffs filed their Second Amended Consolidated Complaint on March 9, 2017 [DE 1287]. It is a single count complaint which asserts "primary and secondary liability" under the ATA based on Chiquita's alleged predicate violation of one of the material support statutes, 18 U.S.C. § 2339A, as an actionable "act of international terrorism." In Julin, Plaintiffs filed their Third Amended Complaint on February 17, 2017 [DE 1273]. It is a two count pleading which alleges primary ATA liability based on (1) Chiquita's alleged predicate violation of 18 U.S.C. § 2332(b) [conspiring with FARC to kill U.S. nationals abroad] as an actionable "act of international terrorism" ("Count 2") and (2) Chiquita's alleged predicate violation of one of the material support statutes, 18 U.S.C. § 2339A, as an actionable "act of international terrorism" ("Count 3").

B. FACTUAL BACKGROUND5
1. Chiquita's History in Colombia

Chiquita is a multinational corporation incorporated in New Jersey and headquartered in Cincinnati, Ohio. For more than 100 years, Chiquita and its corporate predecessors produced, purchased and marketed bananas and other fresh produce from Colombia and other countries around the world. In Colombia, Chiquita subsidiaries, including C.I. Bananos de Exportacion, S.A. ("Banadex"), produced and purchased bananas in the banana-growing regions of Uraba, in the Colombian state of Antioquia (near the town of Turbo), and in the state of Magdalena (near Santa Marta), investing millions of dollars' worth of basic infrastructure in these areas.

At times, Chiquita subsidiaries owned and operated their own banana farms ("owned-fruit" farms) and at times they purchased fruit from local growers ("purchased-fruit" farms) in Colombia, Guatemala, Costa Rica, and Panama. Prior to 1980, Chiquita and its subsidiaries began selling off their owned-fruit farms in Colombia to local growers, who, in turn sold the fruit to Chiquita or its subsidiaries. As a result, by the mid-to-late 1980s, Chiquita owned no farms or wharf facilities in Colombia and had less than 100 Colombian employees.

From 1987 to 1989, Dennis Doyle was the Vice President and Chief Operating Officer of Chiquita's banana group, which operated Chiquita's banana-related business around the world. At the end of 1987, or early 1988, Dole and other Chiquita executives (Carl Linder, Keith Linder, Robert Kistinger and others) decided to transition Chiquita from purchased-fruit to owned-fruit operations in all Latin American banana-growing countries. This decision was made in anticipation of increased market demand in the European Union following the elimination or reduction of protective tariff systems. Chiquita became concerned that local growers in Colombia might try to take advantage of favorable market conditions in Europe by selling bananas directly to European buyers, or by selling them to Chiquita competitors. Hence, Chiquita made the transition toward owned-fruit farms in order to better control the fruit supply, remain competitive and be in a position to "satisfy expected future global market demands for bananas" from the European market.

In 1988, Chiquita purchased its first three farms in the Uraba region of Colombia from an individual who had previously sold bananas to the company. Having conducted business in Uraba in the past, Chiquita was aware at the time of this purchase that the FARC was very active in this area, and that it was capable of and routinely engaged in acts of extreme violence. In light of this antagonism, as it expanded its owned-fruit operations in Colombia, Chiquita often disguised its ownership of the farms by assigning title to a proxy, or nominee, to avoid drawing the attention of FARC to its presence in Colombia.

Chiquita continued to purchase farms from local growers in Colombia so that by...

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    ... ... Mgmt. Dynamics, Inc. , 515 F.2d 801 (2d Cir. 1975) ). The court has considerable latitude in ... -------- Notes: 1 See In re Chiquita Brands Int'l, Inc. , 284 F.Supp.3d 1284 (S.D. Fla. 2018). 2 These ... ...
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    • Washington University Law Review Vol. 96 No. 3, December 2018
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