memorandum of law in opposition combined motion …

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 01-3399-CIV-MORENO/TORRES

ANGEL ENRIQUE VILLEDA ALDANA, et al.,

Plaintiffs,

vs.

FRESH DEL MONTE PRODUCE INC., et al.,

Defendants.

_______________________________________/

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’

COMBINED MOTION FOR REINSTATEMENT FOLLOWING DISMISSAL FOR

FORUM NON CONVENIENS

Defendants, Fresh Del Monte Produce Inc. (“FDMPI”), Del Monte Fresh Produce

Company (“DMFPC”), and Compañia De Desarrollo Bananero De Guatemala, S.A.

(“Bandegua”),1 oppose Plaintiffs‟ Combined Motion for Reinstatement Following Dismissal for

Forum Non Conveniens (“Pl.‟s Mot.”) [D.E. 226] for the reasons set forth in the following

memorandum.

MEMORANDUM

I. Introduction

More than three years after the dismissal of this action for forum non conveniens, see

Order Dismissing Complaint for Forum Non Conveniens dated October 16, 2007 [D.E. 212] (the

“FNC Dismissal Order”), the Plaintiffs have returned to this Court seeking “reinstatement” of

1 Pursuant to its Notice of Objection to Personal Jurisdiction and Intent to Renew Defendant

Bandegua‟s Motion to Dismiss Fourth Amended Complaint for Lack of Personal Jurisdiction,

filed simultaneously herewith, Bandegua hereby gives notice that it renews its previous objection

to the Court‟s personal jurisdiction over it as set forth in Bandegua‟s Motion to Dismiss Fourth

Amended Complaint for Lack of Personal Jurisdiction [D.E. 162], which, due to the FNC

Dismissal Order, was denied as moot.

Case 1:01-cv-03399-FAM Document 234 Entered on FLSD Docket 02/25/2011 of 21

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their claims on the dubious ground that they have been “denied” access to the courts of

Guatemala. Plaintiffs‟ motion should be denied because they have failed to present legally

sufficient grounds or competent, credible evidence establishing their entitlement to the relief they

seek.

Although couched as a motion to “reinstate” their claims, what Plaintiffs really seek is an

order vacating the Court‟s FNC Dismissal Order and the resumption of a case that this Court and

the Eleventh Circuit have determined is “quintessentially Guatemalan” and should be litigated in

Guatemala. Plaintiffs‟ request is ostensibly based on new evidence, i.e., an unauthenticated and

unappealed ex parte order issued by a Guatemalan court which held that the Guatemalan Law of

Defense of Procedural Rights of Nationals and Residents, Decree No. 34-97 (hereinafter,

“Decree 34-97”) rendered it “incompetent” to hear Plaintiffs‟ claims.2 A copy of Decree 34-97

in original Spanish and a certified translation into English is attached hereto as Exhibit “A.”

Even if the ex parte order were worthy of consideration by the Court, it is obvious that Plaintiffs

engineered the dismissal of their own Guatemalan Complaint -- and then deliberately refused to

object or appeal from the dismissal -- as a subterfuge for re-entry into the U.S. courts.

Even if the Court were inclined to overlook the Plaintiffs‟ mischief in Guatemala, vacatur

of this Court‟s FNC Dismissal Order and reinstatement of the Plaintiffs‟ claims is still not

warranted. Despite what Plaintiffs say, they are not genuinely barred from litigating their claims

in Guatemala and may still re-file their claim there. Moreover, granting the Plaintiffs‟ motion in

deference to Decree 34-97 will amount to a surrender of the Court‟s judicial authority to the

2 Decree 34-97 is Guatemala‟s version of a so-called forum non coveniens blocking statute. See

Gordon, Forum Non Conveniens Misconstrued: A Response to Henry Saint Dahl, 38 U. Miami

Inter. Am. L.Rev. 141, 144 (Fall 2006).


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questionable legislative enactments of a foreign country and effectively eviscerate the doctrine of

forum non conveniens.

Accordingly, Plaintiffs‟ request to vacate the FNC Dismissal Order and reinstate their

claims should be denied.

A. Procedural History

Plaintiffs filed this action in August 2001 and, during the pendency of an appeal to the

Eleventh Circuit in 2004, Plaintiffs commenced a parallel action in Florida state court alleging

exclusively non-federal claims. Defendants moved to dismiss the state court action under forum

non conveniens, which motion was granted on March 30, 2005 (the “State Court FNC

Order”). The state court determined, inter alia, that Guatemala was an adequate and available

forum for the resolution of Plaintiffs‟ claims. The State Court FNC Order was affirmed by the

Florida Third District Court of Appeal on January 10, 2006. Further review by the Florida

Supreme Court was denied.3

After the Eleventh Circuit remanded the federal claims to this Court on July 8, 2005,

Defendants moved to dismiss the action under forum non conveniens. This Court granted the

motion to dismiss, holding, inter alia, that the state court‟s determination on the adequacy and

availability of the Guatemalan forum was entitled to collateral estoppel effect and was binding

on this Court pursuant to the Full Faith and Credit Act, 28 U.S.C. § 1783. See FNC Dismissal

Order, at 3-5. The Eleventh Circuit affirmed the FNC Dismissal Order on August 13, 2009,

specifically agreeing that this Court was “bound by the state court‟s factual and legal conclusions

3 Aldana v. Fresh Del Monte Produce, Inc., Case No. 04-00723 CA 20 (Fla. 11th Cir. Ct. May

30, 2005), aff’d, 922 So.2d 212 (Fla. 3d DCA 2006), rev. dism., 928 So. 2d 334 (Fla. 2006).


4

on the issue of adequacy of forum.” Aldana v. Del Monte Fresh Produce, N.A., 578 F.3d 1283,

1291 (11th Cir. 2009).4 Rehearing, rehearing en banc, and certiorari review were all denied.

On November 29, 2010, more than three years after entry of the FNC Dismissal Order,

and more than five years after entry of the State Court FNC Order, the Plaintiffs purported to

re-file their claims in a Guatemalan court in the city of Puerto Barrios, Department of Izabal,

Guatemala (the “Guatemalan Court”).5 See Declaration of Francisco Chavez (“Chavez Dec.”),

¶ 1, attached hereto as Exhibit “B”. Defendants were not served with or otherwise provided with

a copy of the Guatemalan Complaint and were not given an opportunity to be heard in the

Guatemalan proceeding. Defendants have been entirely foreclosed from being heard in

Guatemala as to the availability of that forum. Chavez Dec., ¶ 5. The Plaintiffs‟ Guatemalan

Complaint gratuitously referenced this Court‟s FNC Dismissal Order and cited selected portions

of Decree 34-97, which Plaintiffs construe to preclude a Guatemalan court from entertaining the

claims of Guatemalan citizens. The Guatemalan Court entered its ex parte order dated

December 7, 2010 determining Plaintiffs‟ lawsuit to be “inadmissible” pursuant to Decree 34-97.

On January 25, 2011, Plaintiffs filed their motion to vacate the FNC Dismissal Order in this

Court. The next day, Plaintiffs filed a virtually identical motion in Florida state court to reinstate

their non-federal claims.6

4 Even the dissenting judge in the Eleventh Circuit appeal agreed that this Court was correct in

applying collateral estoppel: “I agree that the district court did not err in finding that it was

bound by the state court‟s conclusion that Guatemala is an adequate alternative forum.” Aldana,

578 F.3d at 1301 (Kravitch, J., dissenting). 5 The Guatemalan Court is the “Juzgado de Primera Instancia Civil y Economico Coactivo del

Departamento de Izabal, Puerto Barrios.” 6 The Plaintiffs once again are trying to end-run the preclusive effect of the Florida state court‟s

forum non conveniens dismissal, including the state court‟s binding determination that

Guatemala is an available and adequate forum for the resolution of Plaintiffs‟ claims. As noted

in the Court‟s FNC Dismissal Order and in the Eleventh Circuit‟s Opinion, this Court is bound

by the Full Faith and Credit Act to accept the state court‟s forum non conveniens findings,


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B. Procedural Basis for Plaintiffs’ Motion for Reinstatement

Plaintiffs‟ motion fails to reference any specific rule of federal civil procedure that

authorizes the Court to “reinstate” Plaintiffs‟ case or to “resume jurisdiction” over their claims,

all of which have been dismissed pursuant to the FNC Dismissal Order. Other courts faced with

similar motions for reinstatement subsequent to a forum non conveniens dismissal have treated

them as motions for relief from judgment under Rule 60(b) of the Federal Rules of Civil

Procedure.7 E.g., Mendes Junior Int’l Co. v. Banco do Brasil, S.A., 2010 WL 3818094 (2d Cir.

Oct. 1, 2010); Picco v. Global Marine Drilling Co., 900 F.2d 846 (5th Cir. 1990).

A party‟s right to relief under Rule 60(b) is strictly limited. Any request for relief from a

judgment “must be made within a reasonable time” and when, as here, it is alleged that new

evidence exists that may warrant relief from a judgment, Rule 60(b)(2) applies to such a motion,

which must be made “no more than a year after the entry of the judgment or order.” Fed. R. Civ.

including the finding on adequacy of the alternate forum, even if the Court believes the state

court reached the wrong result. Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 373

(1996); Lops v. Lops, 140 F.3d 927, 938 (11th Cir. 1998); Parsons Steel, Inc. v. First Alabama

Bank, 474 U.S. 518 (1986). This Court‟s decision to apply collateral estoppel was affirmed and

approved by all members of the appellate panel. Aldana v. Del Monte Fresh Produce, N.A., 578

F.3d 1283, 1291-92 and 1301. If the Florida state court reached the wrong result on adequacy of

the forum, then Plaintiffs‟ recourse is in the state court appellate courts, not this Court. Parsons

Steel, 474 U.S. at 525 (challenges to the correctness of a state court‟s judgment must be pursued

by appeal through the state court system and certiorari to the United States Supreme Court).

Plaintiffs have now filed a nearly identical motion to reinstate their claims in the Florida state

court action, which motion is scheduled to be heard on March 29, 2011. Under these

circumstances, this Court should defer ruling on the instant motion until the identical motion is

ruled upon by the state court. See Bosdorf v. Beach, 79 F. Supp. 2d 1337, 1344 (S.D. Fla. 1999)

(stay granted to avoid piecemeal litigation, duplicating state court‟s efforts, and the risk of

reaching inconsistent results). The Defendants have therefore contemporaneously filed with this

Court a motion to stay these proceedings. 7 In the federal courts, motions for reconsideration may also be brought under Rule 59(e) of the

Federal Rules of Civil Procedure. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689,

694 (M.D. Fla. 1994). However, a Rule 59(e) motion must be filed within 28 days after the entry

of the judgment. Fed. R. Civ. P. 59(e). Because this Court‟s FNC Dismissal Order was entered

more than three years ago, Plaintiffs obviously cannot seek Rule 59(e) relief. For the reasons

discussed infra, Plaintiffs are also time-barred from seeking Rule 60(b) relief.


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P. 60(c). The time to file a Rule 60(b) motion is not tolled by the pendency of an appeal. Gulf

Coast Building Supply Co., Inc. v. Int’l Brotherhood of Electrical Workers, Local No. 480, AFL-

CIO, 460 F.2d 105, 108 (5th Cir. 1972); Transit Casualty Co. v. Security Trust Co., 441 F.2d

788, 791 (5th Cir. 1971). A Rule 60(b) determination is committed to the sound discretion of the

district court which can only be overturned for abuse of that discretion. Toole v. Baxter

Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000).

II. Plaintiffs’ Request for Relief from Judgment Should Be Denied

Plaintiff‟s motion for relief from the Court‟s FNC Dismissal Order -- couched as a

motion to “reinstate” and “resume” jurisdiction -- should be denied for the following reasons:

A. The Plaintiffs’ Motion Is Untimely

The sole basis alleged in Plaintiffs‟ motion for reinstatement is the Guatemalan Court‟s

December 7, 2010 ex parte order determining Plaintiffs‟ Guatemalan Complaint to be

“inadmissible” under Decree 34-97. Plaintiffs contend that the December 7, 2010 Order is

conclusive new evidence that contradicts the Court‟s previous determination that Guatemala is

an adequate alternative forum, see FNC Dismissal Order, at 6, and proves that “Guatemala is not

a viable alternative forum for Plaintiffs‟ claims.” Pl‟s. Mot., at 8.

Plaintiffs‟ motion seeking reinstatement is untimely. Any motion seeking relief from

judgment that is predicated on “newly discovered evidence” must be made “no more than a year

after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(b)(2),

60(c). “The one year limitation regarding the filing of Rule 60(b)(2) motions reflects a policy

embodied in the Rule that after one year concerns regarding the finality of judgment absolutely

outweigh other concerns arising from the existence of newly discovered evidence.” 1250

Twenty-Fourth Street Assocs. Ltd. P’ship v. Brown, 1987 WL 25647 (D.D.C. Nov. 18, 1987)


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(emphasis in original). In this case, Plaintiffs waited more than three years after the Court‟s

entry of the FNC Dismissal Order before filing their Guatemalan lawsuit.

Although Plaintiffs may contend that they waited to file their lawsuit in Guatemala until

the Eleventh Circuit appeal was completed or the U.S. Supreme Court had denied certiorari

review, Rule 60 makes no allowances for these circumstances, no matter how justified. As noted

above, the time for making a Rule 60(b)(2) motion is not extended by the pendency of an appeal

of the underlying judgment or the unsuccessful effort to invoke the discretionary jurisdiction of

the Supreme Court. E.g., Transit Cas., 441 F.2d at 791. Nor did Plaintiffs seek to stay the

effect of the FNC Dismissal Order pending any such appeal, which stay would have tolled the

time to file a Rule 60(b) motion. The existence of Decree 34-97 was well known to Plaintiffs

before they filed the federal court lawsuit and before the federal lawsuit was dismissed for forum

non conveniens. Indeed, Plaintiffs argued unsuccessfully that Decree 34-97 rendered Guatemala

an inadequate forum. See Plaintiffs‟ Opposition to Defendants‟ Motion to Dismiss Pursuant to

Doctrine of Forum non Conveniens, filed in state court on December 22, 2004, attached hereto as

Exhibit “C.” Thus, Plaintiffs were certainly aware and anticipated the possibility they might

seek reinstatement, and were on notice that they had one year under Rule 60(b) to file that

request. In short, the decision to pursue an improvident federal appeal, a time-consuming en

banc reconsideration, and then a futile certiorari review provides no excuse for Plaintiffs‟ failure

to comply with the time requirements of Rule 60(b).8

8 Plaintiffs are also foreclosed from proceeding under Rule 60(b)(6), which permits relief from

judgments for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). While Rule

60(b)(6) motions are not subject to the one-year limitation and may be made “within a

reasonable time,” the Eleventh Circuit court has made clear that “a party may not avoid the time

limitation applicable to subsections (1), (2), and (3) by re-characterizing a motion pursuant to

subsection (6).” Rease v. AT&T Corp., 356 Fed. Appx. 73, 75-76 (11th Cir. 1991); Lugo v.

Secretary for Department of Corrections, 2010 WL 3743915, *3 (S.D. Fla. 2010). Further, Rule


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B. Plaintiffs Guatemalan Lawsuit was a Subterfuge to Evade this

Court’s Forum Non Conveniens Dismissal

Even if the Court could somehow overlook the untimeliness of Plaintiffs‟ request for

relief from judgment, the Court should still deny Plaintiffs‟ motion because Plaintiffs are

responsible for eliciting the Guatemalan dismissal order of which they complain. In fact, after

exhaustively litigating the forum non conveniens issue in both state and federal court to a less

than satisfactory, but no less final, conclusion, Plaintiffs have now resorted to suspicious

machinations in the hope of undoing it all. Recognizing that the forum non conveniens doctrine

requires an “adequate alternative” forum, the Plaintiffs filed a weak, incomplete, and deliberately

misleading Complaint in Guatemalan calculated to induce the Guatemalan judge to refuse its

admission. Chavez Dec., ¶¶ 10-17. Such Machiavellian tactics preclude any relief.

1. Plaintiffs’ Guatemalan Complaint Gratuitously Referenced Guatemala’s

Decree 34-97, But Only Those Portions of the Law Concerning the

Extinguishment of Guatemalan Jurisdiction

Plaintiffs‟ Guatemalan Complaint was deliberately prepared to invite its dismissal on the

basis of Decree 34-97. Chavez Dec., ¶ 10. For example, the Complaint very cursorily presented

some of the relevant facts supporting Plaintiffs‟ claims, but failed to advise the Guatemalan

Court that an Izabal court had previously conducted a criminal trial concerning the same facts,

the same events, and the same perpetrators and entered a judgment against the perpetrators. Id.

But most telling of Plaintiffs‟ true motives was Plaintiffs‟ gratuitous reference to this Court‟s

FNC Dismissal Order and their selective and deceptive citation to only those portions of Decree

60(b)(6) “is an extraordinary remedy which may be invoked only upon a showing of exceptional

circumstances.” Dennis v. City of North Miami Beach, 2010 WL 5071871 (11th Cir. Dec. 14,

2010); Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001). A Rule 60(b)(6)

movant carries a heavy burden and must show that “an „extreme‟ and „unexpected‟ hardship will

result” without such extraordinary relief. Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th

Cir. 1983) (quoting United States v. Swift & Co., 286 U.S. 106 (1932)). Aside from being filed

too late, Plaintiffs‟ motion falls woefully short of satisfying these rigorous standards.


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34-97 that address Guatemala‟s policy to reject the doctrine of forum non conveniens. Chavez

Dec., ¶¶ 11-15.

First, Plaintiffs‟ citation to Decree 34-97 was wholly unnecessary and contrary to any

sincere effort to obtain admission of Plaintiffs‟ Complaint. Chavez Dec., ¶ 12. Second,

Plaintiffs‟ Complaint expediently quoted only those portions of Decree 34-97 providing that the

doctrine of forum non conveniens “is deemed unacceptable, inapplicable, and invalid” in

Guatemala and that a personal action “validly” filed in a foreign forum “with jurisdiction”

extinguishes Guatemalan jurisdiction. Chavez Dec., ¶¶ 13-15. Particularly revealing is

Plaintiffs‟ failure to cite to those provisions of Decree 34-97 which provide that a Guatemalan

court should “reassume” jurisdiction if a foreign judge refuses to hear a case for forum non

conveniens despite being “informed [of] the reach of this law.” Chavez Dec., ¶ 14. Plaintiffs‟

conspicuous failure to cite these controlling provisions of Decree 34-97 belie their avowed desire

to have their claims heard by a Guatemalan court.

Beyond their deceptive citation to selected portions of Decree 34-97, Plaintiffs further

sabotaged their claim by failing to advise the Guatemalan Court, as they should have, that their

Complaint was filed “spontaneously and freely” and that Plaintiffs actually wanted to litigate

their claims in Guatemala. Because Article 2 of Decree 34-97 provides, in part, that Guatemalan

jurisdiction is revived if Plaintiffs file their Guatemalan claim “freely” and “spontaneously,”

these simple pronouncements, without more, would have sufficed to avoid application of Decree

34-97 and would have required the Guatemalan Court to accept jurisdiction and admit Plaintiffs‟

Complaint. Chavez Dec., ¶ 15. Similarly, Plaintiffs also failed to advise the Guatemalan Court

that because the state court had dismissed Bandegua for lack of personal jurisdiction, their U.S.

action had not been “validly” filed with a court with jurisdiction over all the parties. This simple


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fact would have further revealed that Decree 34-97 did not apply and assured the Guatemalan

Court that it had jurisdiction over Plaintiffs‟ claim. Chavez Dec.,¶¶ 14-16.

Plaintiffs‟ lack of bona fides in Guatemala is manifest. As one court has observed,

“Obviously, an intentionally deficient complaint filed in the wrong court will likely generate an

order of dismissal.” In re Bridgestone/Firestone Tire Products Liability Litig., 470 F. Supp. 2d

917, 923 (S.D. Ind. 2006).9 Moreover, Plaintiffs‟ ploy is as tired as it is unsuccessful. Numerous

litigants have hoped to avoid a U.S. forum non conveniens dismissal by manipulating their

foreign proceedings to disingenuously claim, as Plaintiffs do here, that the foreign forum is not

“available.” Mendes Junior Int’l Co. v. Banco Do Brasil, 2010 WL 3818094, *1 (2d Cir. Oct. 1,

2010) (plaintiffs drafted their foreign complaint to minimize any contact or connection with

Brazil and alleged that the case had no contacts with Brazil); MBI Group, Inc. v. Credit Foncier

Du Cameroun, 616 F.3d 568, 572-74 (D.C. Cir. 2010) (rejecting plaintiffs‟ argument that

Cameroon was unavailable to them because they could not afford to post the $25 million deposit

the Cameroon court required because plaintiffs could have crafted their complaint in Cameroon

to avoid the deposit requirement); In re Bridgestone/Firestone, Inc. Tires Products Liability

Litigation, 470 F. Supp. 2d 917, 921-23 (S.D. Ind. 2006) (plaintiffs‟ attorneys manipulated

proceedings to insure dismissal of plaintiffs‟ complaint in Mexico); Scotts Co. v. Hacienda Loma

Linda, 2 So. 3d 1013, 1017-18 (Fla. 3d DCA 2008) (“Instead of limiting the Panamanian

complaint to the critical facts and legal support for the claims and relief sought, [plaintiffs]

included copies and translations of key pleadings and the [forum non conveniens order of

dismissal] and a copy of the Panama‟s blocking statute.”); In re Ecuadorean Shrimp Litigation, 6

9 It is worth repeating that the Guatemalan judge‟s December 7, 2010 decision refusing to admit

Plaintiffs‟ Complaint was entered ex parte. None of the Defendants were served with the

Guatemalan Complaint or were provided the opportunity to be heard before entry of the

December 7, 2010 order. Chavez Dec., ¶ 5.


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Fla. L. Weekly Supp. 767a, Case No. 94-10139 (Fla. 17th Cir. Ct. Sept. 24, 1999) (plaintiffs

attempted to have their cases dismissed in Ecuador); Paula v. Jackson, 1995 WL 702481

(S.D.N.Y. 1995) (motion to reinstate after an forum non conveniens dismissal was denied

because plaintiffs filed ex parte petition in Brazil requesting that Brazilian court decline

jurisdiction); Cruz v. Maritime Co. of Philippines, 655 F. Supp. 1214, 1215 (S.D.N.Y. 1987)

(motion to reinstate denied because plaintiff procured dismissal of his own suit in the

Philippines).10

Further, because Plaintiffs effectively controlled whether the Guatemalan court would

accept jurisdiction, they were required to pursue their claims vigorously and in good faith. MBI

Group, Inc. v. Credit Foncier Du Cameroun, 627 F. Supp. 2d 35, 38 (D.D.C. 2009) (“Implicit in

this Court‟s dismissal on forum non conveniens grounds was a command that plaintiffs prosecute

their action in Cameroon in good faith.”). For example, in Morales v. Ford Motor Co., 313 F.

Supp. 2d 672, 675-76 (S.D. Tex. 2004), after a forum non conveniens dismissal in favor of

Venezuela, the plaintiffs claimed that the Venezuelan courts refused jurisdiction unless both the

plaintiffs and defendants submitted to its jurisdiction, and plaintiffs refused to submit to the

Venezuelan courts‟ jurisdiction. The district court flatly rejected this argument saying,

“Plaintiffs . . . have confused their willingness to avail themselves of the Venezuelan forum for

its availability. Only the latter concern is relevant to the forum non conveniens inquiry.” Id. at

675. So long as the foreign court was “available,” plaintiff‟s unwillingness to litigate there was

entirely irrelevant. Id. See also In re Bridgestone, 470 F. Supp. 2d at 922, n.13 (“Plaintiffs’

desire to litigate in a foreign state is not the same as their ability to do so. Evidence of a

10

Because the Guatemalan Order was procured in bad faith, the order is not worthy of

recognition here. See In Re Bridgestone/Firestone, 470 F. Supp. 2d at 920 (Mexican court‟s

order that it lacked territorial competency was procured in bad faith and was therefore not

worthy of recognition).


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plaintiffs‟ inability to pursue their claim in a foreign forum is only as convincing as the case

which was rejected by the foreign court.”) (emphasis supplied). The Florida Third District Court

of Appeal put it this way: “[I]f our courts determine that a foreign forum is available and

adequate, it is the obligation of the plaintiff to assent to jurisdiction there and to support that

court‟s exercise of jurisdiction over the matter and the parties.” Scott, 2 So. 3d at 1018

(emphasis in original).

Plaintiffs induced the rejection of their Complaint in Guatemala, the acceptance of which

was wholly within their control. Plaintiffs are therefore not entitled to any relief from the FNC

Dismissal Order.

2. Plaintiffs Abandoned Their Guatemalan Action by Failing to Object or

Appeal From the Guatemalan Court’s Order Refusing to Admit Their

Complaint

Having succeeded in procuring the Guatemalan Court‟s rejection of their Complaint,

Plaintiffs assured their “defeat” in Guatemala by deliberately refusing to object to or appeal the

December 7, 2010 ex parte order. Under Articles 610-615 of the Guatemalan Civil and

Commercial Procedural Code, any plaintiff has the legal right to file a “nulidad” or annulment

objecting to a judge‟s decision to refuse to admit a complaint. Chavez Dec., ¶¶ 6-7. A nulidad

affords an aggrieved plaintiff the opportunity to explain why the judge‟s decision is in error. Id.

If the judge rejects the nulidad, the plaintiff may take a further appeal to the

appellate court, which in this case would have been the “Sala Regional Mixta de La Corte de

Apelaciones de Zacapa.” Chavez Dec., ¶ 7.

The Guatemalan judge‟s December 7, 2010 order refusing to admit Plaintiffs‟ Complaint

was patently erroneous for several reasons. First, the order incorrectly concluded that Decree

No. 34-97 extinguished Guatemalan jurisdiction when, in fact, Articles 2 and 3 of Decree No.


13

34-97 on their face establish that the Guatemalan courts continue to have jurisdiction over

Plaintiffs‟ claims. Second, Plaintiffs should have advised the Guatemalan judge that Decree

34-97 did not apply in any event because Plaintiffs had not “validly” filed a claim before a

foreign tribunal “with competence” over all the parties since the Florida state court had

dismissed Bandegua for lack of personal jurisdiction and the federal magistrate judge had

recommended the dismissal of Bandegua on identical grounds. See Order Dismissing Bandegua

for Lack of Personal Jurisdiction dated March 30, 2005 [D.E. 226, at Ex. B]; Report and

Recommendation that Defendant Bandegua‟s Motion to Dismiss Fourth Amended Complaint for

Lack of Personal Jurisdiction be Granted [D.E. 197].

At a bare minimum, colorable grounds existed to seek the annulment of the Guatemalan

judge‟s ruling or to have it reversed on appeal. Any plaintiff seeking to pursue claims in good

faith would have filed a nulidad to annul the ruling. Chavez Dec., ¶¶ 20-22. By electing not to

file a nulidad, the Plaintiffs also intentionally waived their right to a further appeal. Plaintiffs‟

intentional abandonment of their annulment and appellate rights in Guatemala is inconsistent

with their legal obligation, noted above, to prosecute their claims in good faith. See MBI Group,

627 F. Supp. 2d at 38; In re Bridgestone, 420 F.3d at 707.

It is no secret that Plaintiffs do not wish to litigate their claims against the Defendants in

Guatemala. They are, nevertheless, obligated by this Court‟s FNC Dismissal Order and by

federal precedent to prosecute their claims in Guatemala in good faith, including the exhaustion

of appellate rights. Indeed, many U.S. courts have required a decision from the highest court of

the foreign country before a reinstatement request after a forum non conveniens dismissal will be

considered. E.g., Warter v. Boston Secs., S.A., 380 F. Supp. 2d 1299, 12315-16 (S.D. Fla. 2004)

(no reinstatement until highest court of Argentina affirms dismissal); Aguinda v. Texaco, Inc.,


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142 F. Supp. 2d 534, 547 (reinstatement only if Ecuadorian court of last review affirms dismissal

for lack of jurisdiction based on Ecuador‟s blocking law); Borja v. Dole Food Co., Inc., 2002

WL 31757780 (N.D. Tex. Nov. 29, 2002) (reinstatement an option only if highest Costa Rican

court declines to exercise jurisdiction despite plaintiffs good faith efforts); Delgado v. Shell Oil

Co., 890 F. Supp. 1324, 1375 (S.D. Tex. 1995) (reinstatement available only if highest court of

any foreign country affirms dismissal for lack of jurisdiction).

Plaintiffs‟ decision to avoid the filing of a nulidad, thereby forfeiting further appellate

review, constitutes sufficient grounds to deny Plaintiffs‟ motion to reinstate their claims in this

Court. See Scotts, 2 So. 3d at 1016-17 (“If Hacienda‟s complaint in Panama led with its chin, its

„appeal‟ from the order of dismissal there truly and literally took a dive. . . . The record also

indicates that Hacienda‟s „appeal‟ in Panama was not in good faith, but was instead on its face an

intentional effort to obtain affirmance of the dismissal as further support for reinstatement of the

original case in Florida.”); In re Ecuadorean Shrimp, 6 Fla. L. Weekly Supp. 767a, at 3 (“When

this Court refused to excuse the Plaintiffs from appealing the decisions, Plaintiffs did ultimately

file appeals, but took no steps to prosecute those appeals.”); In Re Bridgestone, 470 F. Supp. 2d

at 927 (plaintiffs‟ counsel manipulated their foreign appeals to obtain affirmance of the lower

court‟s dismissal).

The plaintiffs in Scotts and In re Ecuadorean Shrimp filed appeals from orders

dismissing their claims in Panama and Ecuador, but took active steps to sabotage their appellate

rights. When the plaintiffs tried to reinstate their cases, the U.S. courts were unwilling to reward

such nefarious conduct. In the instant case, Plaintiffs did not even bother to object to the

Guatemalan judge‟s dismissal order or to file an appeal. By failing to have done so, Plaintiffs

abandoned their Guatemalan litigation. They have forfeited any right to seek reinstatement now.


15

Cf. Henderson v. Dunphy, 2009 WL 2858992 (S.D. Fla. 2009) (on habeas petition a criminal

defendant found to have abandoned his claim because he failed to appeal the state court‟s prior

denial of his claim); Segall v. Segall, 632 So. 2d 76, 78 (Fla. 3d DCA 1994) (by dismissing their

appeal plaintiffs in a legal malpractice action were found to have abandoned or waived their

claim because the failure to appeal prevented a determination of whether judicial error and not

malpractice caused their loss).

C. Decree 34-97 Does Not Extinguish Guatemalan Jurisdiction Over Plaintiffs’

Claims and Guatemala Remains an Available Forum for Plaintiffs

Moreover, despite what Plaintiffs would like to suggest, and notwithstanding the

Guatemalan Court‟s December 7, 2010 order and Plaintiffs‟ refusal to genuinely prosecute their

claims in that court, Decree 34-97 does not, in fact, extinguish Guatemalan jurisdiction over

Plaintiffs‟ case. As noted above, see supra Section II(B)(1), Decree 34-97 expressly provides in

Article 2 that a Guatemalan court‟s jurisdiction is “revived” if a “new lawsuit is filed in

[Guatemala], brought spontaneously and freely by the plaintiff.” Article 3 of Decree 34-97

further provides that a Guatemalan court should “reassume” jurisdiction if a foreign judge

refuses to hear a case for forum non conveniens despite being “informed [of] the reach of this

law.” Consequently, even granting Plaintiffs every indulgence in the suspicious manner in

which they litigated before the Guatemalan Court, Decree 34-97 is plainly no bar to the

Plaintiffs‟ right to have their claims heard in Guatemala. Chavez Dec. ¶¶ 14-16, 19-22.

Moreover, the Guatemalan Order refusing to admit Plaintiffs‟ complaint is without prejudice and

does not preclude Plaintiffs from correcting the deliberate defects in their Guatemalan Complaint

and re-filing it there. Chavez Dec. ¶ 22. Because Guatemala remains an available forum to

Plaintiffs, the very premise of Plaintiffs‟ motion to vacate is flawed. For this additional reason,

Plaintiffs‟ request to vacate the FNC Dismissal Order should be denied.


16

D. Vacatur and Reinstatement would Eviscerate the Doctrine of

Forum Non Conveniens

Aside from Plaintiffs‟ litigation tactics in Guatemala, and if the Court could ignore the

fact that the Guatemalan forum is still available to Plaintiffs, the Court should still nevertheless

reject Plaintiffs‟ attempt to exploit a foreign edict intended to debilitate this Court‟s authority and

nullify the forum non conveniens doctrine. It is undeniable that Plaintiffs‟ claims all arise from

events in Guatemala and involve witnesses and actors in Guatemala. As the Eleventh Circuit

noted in its opinion affirming the FNC Dismissal Order, this case is “quintessentially

Guatemalan.” Aldana, 578 F.3d at 1298. The notion that a U.S. federal court must assume

jurisdiction over Plaintiffs‟ claims because of a forum non conveniens blocking statute and the

legislative fiat of the Guatemalan government is unsettling, at best. If Decree 34-97 is construed

in the manner advanced by Plaintiffs, a federal court‟s ability to utilize the doctrine of forum non

conveniens would be fatally impaired, even where, as here, the foreign forum is the most

appropriate and convenient forum. Any foreign law that is designed to render that country‟s

courts “unavailable” to their own nationals so as to nullify a U.S. court‟s prerogative to apply the

forum non conveniens doctrine is repugnant to U.S. sovereignty. See Nanda and Pansius, 1 LOID

§6:15 (Oct. 2010) (recognizing that U.S. courts may consider that application of forum non

conveniens principles should not be precluded by foreign state‟s legislative strategy); Gordon,

Forum Non Conveniens Misconstrued: A Response to Henry Saint Dahl, 38 U. Miami Inter. Am.

L.Rev. 141, 144 (Fall 2006) (arguing that foreign state‟s forum non conveniens blocking statutes

are inappropriate and ill conceived tactics of foreign countries).

Not surprisingly, efforts to force U.S. courts to assume jurisdiction over distinctly foreign

claims and parties on the basis of foreign blocking laws have met with stiff resistance:


17

If Ecuador refuses to provide a forum to its own citizens to litigate claims arising

from acts occurring in Ecuador, this is its prerogative. This Court, however,

cannot and will not be forced, by virtue of [Ecuador‟s blocking law], to expend

scarce and valuable resources on cases that have no connection to the state‟s

interests. Simply put, [the blocking law] cannot be applied as a ruse to force this

Court to hear cases that should be litigated in Ecuador, the more appropriate and

convenient forum.

In re Ecuadorean Shrimp, 6 Fla. L. Weekly 767a, at 4; see also Scotts, 2 So. 3d at 1017-18 (“If

the foreign country chooses to turn away its own citizen‟s lawsuit for damages suffered in that

very country, and if the other [forum non conveniens] factors warrant dismissal here, it is

difficult to understand why Florida‟s courts should devote resources to the matter.”). To be sure,

U.S. courts consistently reject the suggestion that a foreign forum is unavailable because of the

foreign forum‟s blocking statute. See e.g., Delgado, 890 F.2d at 1356-57 (court dismissed

plaintiffs‟ claims under forum non conveniens despite plaintiffs‟ assertion that Ecuador‟s blocking

law rendered Ecuador unavailable); Aguinda, 142 F. Supp. 2d at 547 (same); Lisa v. Gutierrez,

2007 WL 1654482, *2-3 (Fla. 11th Cir. Ct. May 17, 2007) (court rejected plaintiffs‟ argument

that Guatemala was unavailable due to the Decree-34-97, the very same Guatemalan blocking

law at issue here). Cf. Osorio v. Dole Food Co., 665 F. Supp. 2d 1307, 1324-26 (S.D. Fla. 2009)

(district court refused recognition of Nicaraguan judgment pursuant to Nicaragua‟s blocking law

because it either violated due process or was rendered without jurisdiction); Paulownia

Plantations De Panama Corp. v. Rajamannan, 793 N.W.2d 128, 135-36 (Minn. 2009) (Panama

was found to be an available forum despite the existence of the Panamanian blocking statute);

Morales v. Ford Motor Co., 313 F. Supp. 2d at 675-76 (court rejected plaintiffs‟ argument that

Venezuela would not retain jurisdiction given that plaintiffs first sued in the U.S. and under its

blocking statute both plaintiffs and defendants were required to consent to jurisdiction, which


18

plaintiffs refused to do saying, “This court rejects the Plaintiffs‟ availability-related arguments

and finds that Venezuelan courts are an available and adequate alternative forum.”).

Lastly, reinstating Plaintiffs‟ case on the ground that Guatemala is unavailable or

inadequate will fly in the face of numerous other decisions that have specifically held to the

contrary. See Lisa, S.A., v. Mayorga, 2006 WL 2089817 (S.D. Fla. July 18, 2006) (dismissing

for forum non conveniens and holding that “every court that has addressed the adequacy of

Guatemala as a forum, has determined that it is an adequate forum.”); Reyes v. Cruise Ship

Catering & Servs. Int’l, N.V., 2006 WL 2389441 (S.D. Fla. May 25, 2006) (dismissing for forum

non conveniens in favor of, among other, the courts of Guatemala); Polanco v. H.B. Fuller Co.,

941 F. Supp. 1512, 1523 (D. Minn. 1996) (dismissing in favor of Guatemala under doctrine of

forum non conveniens); Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1361 (S.D. Texas 1995)

(finding that Guatemala provided an adequate alternate forum for tort claims and dismissing

claims brought by Guatemalan nationals on forum non conveniens), aff’d, 231 F.3d 165 (5th Cir.

2000); Banco Metropolitano, S.A. v. Desarrollo de Autopistas y Carreteras de Guatemala, S.A.,

616 F. Supp. 301 (S.D.N.Y. 1985) (dismissing on forum non conveniens grounds because,

among other reasons, there had already been litigation in Guatemala on the same subject events);

Bolanos v. Gulf Oil Corp., 502 F. Supp. 689, 692 (W. D. Pa. 1980) (dismissing in favor of

jurisdiction in Guatemala), aff’d, 681 F.2d 804 (3d Cir. 1982); Acapolon Corp. v. Ralston Purina

Co., 827 S.W. 2d 189, 195 (Mo. 1992) (dismissing products liability claims in favor of

Guatemalan courts on basis of forum non conveniens). The Court should flatly deny Plaintiffs‟

request to vacate the FNC Dismissal Order.

III. CONCLUSION


19

For the foregoing reasons, the Plaintiffs‟ Combined Motion for Reinstatement and

Memorandum of Law In Support Thereof Following Dismissal For Forum Non Conveniens

should be denied.

Date: February 25, 2011 s/ Brian J. Stack

Brian J. Stack

Florida Bar No. 0476234

Email: [email protected]

Lazaro Fernandez, Jr.

Florida Bar No. 716545

Email: [email protected]

STACK FERNANDEZ ANDERSON

& HARRIS, P.A. Attorneys for Defendants

1200 Brickell Avenue, Suite 950

Miami, Florida 33131

Telephone: (305) 371-0001

Facsimile: (305) 371-0002


mailto:[email protected]

mailto:[email protected]

20

CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of February 2011, I electronically filed the foregoing

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document

is being served this day on all counsel of record or pro se parties identified on the attached

Service List in the manner specified, either via transmission of Notices of Electronic Filing

generated by CM/ECF or in some other authorized manner for those counsel or parties who are

not authorized to receive electronically Notices of Electronic Filing.

s/ Brian J. Stack

Brian J. Stack, Esq.

Fla. Bar No. 0476234


21

SERVICE LIST

Angel Enrique Villeda Aldana, et al. v. Fresh Del Monte Produce, Inc. et al.

Case No. 01-CV-3399-Moreno/Torres

United States District Court, Southern District of Florida

Terrence P. Collingsworth, Esquire

CONRAD & SCHERER, LLP

1156 15th

Street, NW, Suite 502

Washington, D.C. 20005

Tel: 202-543-5811

Fax: 866-803-1125

e-mail: [email protected]

Attorneys for Plaintiffs

Service via CM/ECF

William R. Scherer, III, Esquire

CONRAD & SCHERER, LLP

633 South Federal Highway

Fort Lauderdale, FL 33301

Tel: 954-462-5500

Fax: 954-463-9244

e-mail: [email protected]

Attorneys for Plaintiffs

Service via CM/ECF


memorandum of law in opposition combined motion …

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