IN RE CHIQUITA BRANDS INTERN., INC. ALIEN TORT

• Decision Date: 04 February 2010
• Docket Number: No. 08-20641-CIV-KAM.,No. 08-01916-MD,08-01916-MD,08-20641-CIV-KAM.
• Citation: 690 F. Supp.2d 1296
• Parties: In re CHIQUITA BRANDS INTERNATIONAL, INC. ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION. This Document Relates To: ATA Action. Tania Julin, et al., Plaintiffs, v. Chiquita Brands International, Inc.
• Court: U.S. District Court — Southern District of Florida

690 F.Supp.2d 1296

In re CHIQUITA BRANDS INTERNATIONAL, INC. ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION This Document Relates To: ATA Action Tania Julin, et al., Plaintiffs, v. Chiquita Brands International, Inc.

Nos. 08-01916-MD, No. 08-20641-CIV-KAM.

United States District Court, S.D. Florida.

February 4, 2010.

Aaron Schlanger, Ari Ungar, Ellyn F. Essig, Joshua D. Glatter, Gary M. Osen, Peter Raven-Hansen, Osen LLC, Orandell, NJ, Carrie M. Logan, Gregory P. Hansel, Jeffrey T. Edwards, Preti Flaherty Beliveau & Pachios LLP, Portland, ME, Neil L. Glazer, Stephen H. Schwartz, Steven M. Steingard, Kohn Swift & Graf PC, Philadelphia, PA, Ramon Alvaro Rasco, Robert C. Josefsberg, Podhurst Orseck Josefsberg et al, Miami, FL, Beth J. Kushner, Von Briesen & Roper SC, Milwaukee, WI, for Plaintiffs.

Robert William Wilkins, Cristopher Stephen Rapp, Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, FL, for Chiquita Brands International, Inc.

ORDER AND OPINION

KENNETH A. MARRA, District Judge.

THIS CAUSE is before the Court on Defendant's Motion to Dismiss Amended Complaint (DE 31). The Court has reviewed the motion, response, reply, and supplemental briefing and is otherwise fully advised in the premises.

Plaintiffs are United States citizens and the estates, survivors, and heirs of deceased United States citizens who allegedly were kidnaped, held hostage, and murdered by the Colombian terrorist organization known as Fuerzas Armadas Revolucionarias de Colombia ("FARC"). Plaintiffs bring this action against defendant, Chiquita Brands International, Inc., ("Chiquita"), alleging that defendant is civilly liable to the plaintiffs for damages pursuant to 18 U.S.C. § 2332 ¹ because it (1) aided and abetted the homicide and serious bodily injury of American Nationals located outside the United States in violation of 18 U.S.C. § 2333² (Count I); (2) conspired to violate 18 U.S.C. § 2332 in violation of 18 U.S.C. § 2333 (Count II); provided material support or resources to terrorists in violation of 18 U.S.C. § 2339A³ and in violation of 18 U.S.C. § 2333(a) (Count III). Plaintiffs also allege causes of action against Chiquita for wrongful death, aiding and abetting wrongful death, false imprisonment, aiding and abetting false imprisonment, intentional infliction of emotional distress, aiding and abetting intentional infliction of emotional distress, negligent infliction of emotional distress, assault, and aiding and abetting assault under various state tort laws (Counts IV-XXIV).

Factual Background⁴

The FARC

The FARC, established in 1964 by the Colombia Communist Party as its "military wing," is Colombia's largest rebel group and has committed thousands of ransom kidnapings in Colombia, often targeting innocent civilians. Compl. ¶¶ 173, 174, 176, 180. FARC is a union of communist militants and peasant self-defense groups. FARC is comprised of 15,000 to 18,000 members, organized into approximately 64 "frentes" or fronts, and operating primarily in sparsely populated areas in Colombia. Compl. ¶ 174. FARC claims to represent the rural poor against Colombia's wealthy classes, and opposes the influence of the United States in Colombia, the privatization of natural resources, and multinational corporations. Compl. ¶ 175.

FARC supports its operations through kidnapings, extortion, drug trafficking and "war taxes" it collects from residents, businesses and landowners. Compl. ¶¶ 177-78. In addition to kidnaping twenty-three Americans between 1994 and 1997 alone, FARC has also committed many murders, including killing Americans. Compl. ¶¶ 180-82. During the period relevant to this action, FARC held significant influence over, controlled, or was fighting other terrorist organizations for control of labor unions in Colombia's banana growing regions. Compl. ¶¶ 179, 198.

On October 8, 1997, the U.S. Secretary of State designated FARC a Foreign Terrorist Organization ("FTO"), a designation that still remains today. This designation was based in part on the U.S. Department of State's conclusion that FARC committed "bombings, murder, kidnaping, extortion, hijacking, as well as terrorist and conventional military action against Colombian political, military and economic targets." Compl. ¶ 185. At the same time, the European Union and Colombian governments also designated FARC as a terrorist organization. Compl. ¶ 183-85.

The Kidnapings and Murders of the Five Missionaries

FARC kidnaped, held hostage, demanded ransom for, and ultimately murdered Mark Rich, Charles David Mankins, Jr., Richard Lee Tenenoff, Stephen Welsh and Timothy Van Dyke, American citizens who were members of plaintiff New Tribes Mission ("NTM"), an international Christian missionary organization. Compl. ¶¶ 1, 11-14.

On January 31, 1993, in the Panamanian village of Púcuro, FARC terrorists burst into Mark Rich's home, pointed guns at him, his family and some villagers who were visiting, and forcibly removed him from his home. Compl. ¶¶ 54-66. Shortly thereafter, FARC terrorists entered the Mankins' home, and attacked, subdued, and forcibly removed Dave Mankins. Compl. ¶¶ 67-80. At the same time, FARC terrorists entered the Tenenoff's home, pointed a gun at Rick Tenenoff's head and forcibly removed him. Compl. ¶¶ 81-89. During the course of these incidents, the FARC members terrorized everyone, threatening the wives, frightening the children, and intimidating the villagers. Compl. ¶¶ 54-93. Approximately one week after the kidnapings, FARC terrorists radioed NTM and demanded a $5,000,000.00 ransom for the men's return. Compl. ¶ 100. Negotiations ensued, with FARC threatening that the men would be harmed if the ransom were not paid. The ransom was not paid. Compl. ¶ 1102-105. After years of efforts from plaintiffs to learn the whereabouts of the men, in December 2000, NTM officials informed Tania Rich, Nancy Mankins and Patti Tenenoff that FARC had murdered their husbands in 1996, a fact not confirmed by the Colombian government until February of 2007. Compl. ¶¶ 110-11.

On January 16, 1994 in Villavicencio, Colombia, FARC terrorists forcibly removed Stephen Welsh and Timothy Van Dyke from their homes and families at gunpoint. Compl. ¶¶ 120-26. After rounding people up and frightening them, the terrorists placed the two missionaries in a Jeep and drove them off into the hills. Compl. ¶¶ 127-143. Within a month of the kidnapings, FARC terrorists contacted NTM and demanded a $3,000,000.00 ransom for the men's safe return. Compl. ¶ 144. The families did not pay the ransom, nor did they agree or negotiate to pay any ransom. Compl. ¶ 146. On June 19, 1995, the men were killed by the FARC's 53rd Front near Cundinamarca, Colombia, during a firefight with a Colombian army unit. Compl. ¶ 147. Evidence, including eyewitness testimonies collected by the Colombian National Prosecutor and the U.S. Attorney General's Office, confirmed that FARC had executed the men. Compl. ¶¶ 147-48. On February 7, 2007, the Colombian National Prosecutor's Office released a report concluding that all five missionaries were kidnaped, held hostage, and eventually murdered by FARC. Compl. ¶ 171.

Chiquita's Payments and Provisions to FARC: 1989-1997

Chiquita is a multinational corporation incorporated in New Jersey and headquartered in Cincinnati, Ohio. Compl. ¶ 44. Chiquita produces, markets, and distributes bananas and other fresh produce. Compl. ¶ 46. Chiquita is one of the largest banana producers in the world and is a major supplier of bananas throughout North America and Europe. Compl. ¶ 46. It has operations throughout the world, including in Colombia, where it operated through its wholly-owned subsidiary, C.I. Bannanos de Exportacion, S.A. ("Banadex") until approximately May 2004. Compl. ¶ 44. At all times relevant hereto, Banadex was Chiquita's controlled subsidiary, agent and/or alter ego. Compl. ¶ 45. At all relevant times, Chiquita had over 200 farms in Colombia dedicated to banana production. Compl. ¶ 48.

From 1989 through at least 1997, Chiquita knowingly and intentionally made numerous and substantial secret payments to FARC, and also provided FARC with weapons, ammunition and other supplies through its transportation contractors. Chiquita did so knowing, or consciously avoiding, the fact that FARC was a violent terrorist organization. Compl. ¶ 191. Chiquita's payments to FARC, which began as cash at FARC's request, escalated into regular monthly payments ranging from $20,000.00 to $100,000.00. Over time, the payments were fixed to a percentage of Banadex's gross revenues, with as much as ten percent being diverted to FARC. Compl. ¶ 192.

Chiquita went to great lengths to hide its relationship with FARC. Compl. ¶¶ 191-96. The payments were often delivered by a former American military pilot known as "Kaiser," who held a management position with Chiquita in Colombia. Compl. ¶ 193. In order to conceal the payments, Chiquita placed false names and non-existent employees on its payroll, providing the funds on local paydays to regional FARC commanders. Compl. ¶ 194. Chiquita also assisted and/or advised FARC terrorists on how to create front organizations, enabling Chiquita to continue to channel funds to FARC and to mislead law enforcement, regulators, auditors, and anyone else who might examine Chiquita and Banadex's books and records. Compl. ¶ 195. Chiquita also drew up fictitious contracts with legitimate operating organizations or, alternatively, overvalued existing contracts it maintained with such organizations. This was done for the express purpose of hiding its secret payments to FARC. Compl. ¶ 194-96.

Chiquita also worked with FARC-controlled labor unions, such as Sintrabanano, as another means of channeling payments to FARC. Compl. ¶ 197. Chiquita also collaborated with FARC and assisted FARC in subverting many local labor unions, and wresting control of local labor unions from other terrorist organizations. Compl. ¶¶ 198. In doing so,...