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Does v. Chiquita Brands International, Inc.

United States District Court, District of Columbia

January 11, 2018

JANE / JOHN DOES 1-144, Plaintiffs,
v.
CHIQUITA BRANDS INTERNATIONAL, INC. and DAVID DOES 1-10, Defendants.

          OPINION

          PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on plaintiffs' motion to transfer pursuant to 28 U.S.C. § 1631 [Dkt. No. 38]. Upon consideration of the parties' briefs, the relevant legal authorities, and the entire record in this case, the Court will grant plaintiffs' motion.[1] The Court concludes that it lacks personal jurisdiction over defendants Fernando Aguirre, Cyrus Freidheim, Charles Keiser, Robert Kistinger, Robert Olson, William Tsacalis, and Steven Warshaw (collectively, the “individual defendants”). The Court further finds that the interest of justice will be served by transferring the claims against defendants Aguirre, Kistinger, Olson, and Tsacalis to the United States District Court for the Southern District of Ohio, and transferring the claims against defendants Freidheim and Keiser to the United States District Court for the Southern District of Florida. In addition, the Court will dismiss the claims against Mr. Warshaw.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises out of allegations that defendant Chiquita Brands International, Inc. (“Chiquita”) provided financial support to a violent paramilitary group in Colombia accused of murdering, torturing, and terrorizing plaintiffs and their families. See In re Chiquita Brands Int'l, Inc. Alien Tort Statute and S'holder Derivative Litig. (hereinafter “In re Chiquita”), 190 F.Supp.3d 1100, 1104 (S.D. Fla. 2016). Between 1995 and 2004, Chiquita allegedly paid over $1.7 million to the Autodefensas Unidas de Colombia (the “AUC”) and permitted the AUC to smuggle drugs and guns through its ports and on its vessels. See id.; Mot. at 3. The individual defendants, who are former executives of Chiquita, allegedly approved of this arrangement and actively concealed it. Id.

         The lengthy procedural history of this case is set forth in In re Chiquita and will be summarized here only as relevant. Plaintiffs filed this action against Chiquita and ten unnamed “David Doe” defendants in this Court in 2007. See June 7, 2007 Complaint [Dkt. No. 3]. Plaintiffs asserted claims under the Alien Tort Statute (the “ATS”), 28 U.S.C. § 1350; the Torture Victim Protection Act (the “TVPA”), 28 U.S.C. § 1350 note; the common law of the District of Columbia; and Colombian tort law. Id. In 2008, the case was transferred by the Judicial Panel on Multidistrict Litigation (the “JPML”) for consolidated pretrial proceedings to the Honorable Kenneth A. Marra in the United States District Court for the Southern District of Florida pursuant to the multidistrict litigation statute, 28 U.S.C. § 1407. See February 20, 2008 Transfer Order [Dkt. No. 20].

         In June 2011, Judge Marra denied in relevant part Chiquita's motion to dismiss on the ground that plaintiffs had failed to adequately plead ATS and TVPA claims against Chiquita. See In re Chiquita, 190 F.Supp.3d at 1105. The Eleventh Circuit granted Chiquita's petition for interlocutory review in September 2012, and Judge Marra stayed the proceedings pending interlocutory review. See November 9, 2012 Order, No. 08-md-1916 (S.D. Fla.) (hereinafter “MDL Dkt.”) [MDL Dkt. No. 587]. While the petition was pending, the Supreme Court decided Mohamad v. Palestinian Authority, 566 U.S. 449 (2012), holding that individuals but not corporations may be held liable under the TVPA. Concerned that their TVPA claims against Chiquita were no longer viable, plaintiffs amended their complaint in September 2012 to name the individual defendants and assert TVPA and Colombian law claims against them. See September 24, 2012 Third Amended Complaint [MDL Dkt. No. 575].[2]

         In July 2014, the Eleventh Circuit reversed in part and remanded for dismissal of plaintiffs' ATS and TVPA claims against Chiquita. Cardona v. Chiquita Brands Int'l, Inc., 760 F.3d 1185 (11th Cir. 2014). Following that decision, the only claims remaining against Chiquita were claims under Colombian law, while claims under both the TVPA and Colombian law remained against the individual defendants. See In re Chiquita, 190 F.Supp.3d at 1106.

         In June 2016, Judge Marra denied in relevant part the individual defendants' motion to dismiss for, inter alia, failure to state a claim and lack of personal jurisdiction. See In re Chiquita, 190 F.Supp.3d at 1124-25. As to the merits, Judge Marra found that plaintiffs had adequately pled TVPA claims and Colombian law claims against the individual defendants. Id. at 1113-21, 1123-24. As to personal jurisdiction, Judge Marra held that the District of Columbia lacked personal jurisdiction over defendants Aguirre, Freidheim, Keiser, Kistinger, Olson, Tsacalis, and Warshaw. Id. at 1121-23. Judge Marra determined, however, that he lacked the authority under 28 U.S.C. § 1407(a) to transfer the claims to cure the jurisdictional defects. Id. at 1123. Accordingly, Judge Marra recommended that the JPML remand the claims against the individual defendants “for a determination by the originating court on whether transfer to a jurisdiction having personal jurisdiction over the Individual Defendants is appropriate under 28 U.S.C. § 1404 or 28 U.S.C. § 1631.” Id. at 1125. As Judge Marra explained, “[t]he remand is respectfully suggested for the limited purpose of allowing Plaintiffs in these actions an opportunity to cure the identified jurisdictional defects through transfer to a court having jurisdiction over the Individual Defendants, with this Court's understanding and expectation that the cases may be transferred back to this Court . . . .” Id. Accepting Judge Marra's recommendation, the JPML remanded the claims against the individual defendants to this Court to permit it to address the jurisdictional defects. See October 4, 2016 Remand Order [Dkt. No. 22].[3]

         II. LEGAL STANDARD

         Courts have authority under 28 U.S.C. § 1631 to transfer a case filed in the wrong jurisdiction “if it is in the interest of justice” to do so. A case transferred pursuant to Section 1631 “shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.” 28 U.S.C. § 1631. There are three requirements for a transfer under 28 U.S.C. § 1631: (1) there must be a lack of jurisdiction in the district court; (2) the transfer must be in the interest of justice; and (3) the transfer may be made only to a court in which the action could have been brought at the time it was filed or noticed. Freedman v. SunTrust Banks, Inc., 139 F.Supp.3d 271, 277 (D.D.C. 2015) (citation omitted). The party requesting transfer bears the burden of establishing each of these elements. Id. If a court, upon determining that it lacks jurisdiction over an action, further determines that it would not be in the interest of justice to transfer the action, it may dismiss the action. See Bethea v. Holder, 82 F.Supp.3d 362, 365 (D.D.C. 2015) (citation omitted).

         III. DISCUSSION

         Plaintiffs ask this Court to transfer the claims against the individual defendants to districts where the individual defendants would have been subject to personal jurisdiction when this case was filed in 2007. Plaintiffs envision a temporary transfer wherein the claims eventually will return to Judge Marra for pretrial coordination. Defendants urge that dismissal, rather than transfer, is appropriate because plaintiffs did not reasonably believe that the individual defendants were subject to personal jurisdiction in the District of Columbia and brought the claims here in order to gain a strategic advantage.

         A. The Court Lacks Personal Jurisdiction Over The Individual Defendants

         The first element of a transfer under 28 U.S.C. § 1631 requires that the transferor court lack personal jurisdiction over the defendant. See Freedman v. SunTrust Banks, Inc., 139 F.Supp.3d at 277. Because plaintiffs do not assert that the individual defendants are subject to general personal jurisdiction in this District, only the question of specific jurisdiction is at issue here. Acts sufficient to subject a non-resident defendant to specific personal jurisdiction resulting from conduct within this District are determined by the due process clause and enumerated by the District of Columbia long-arm statute, D.C. Code § 13-423. See Forras v. Rauf, 812 F.3d 1102, 1105-06 (D.C. Cir. 2016); Nat'l Resident Matching Program v. Elec. Residency LLC, 720 F.Supp.2d 92, 98 (D.D.C. 2010) (citing Envtl. Research Int'l, Inc. v. Lockwood Greene Eng'rs, Inc., 355 A.2d 808, 810-11 (D.C. 1976) (en banc)). To establish personal jurisdiction under Section 13-423(a)(1) of the District of Columbia long-arm statute, a plaintiff must demonstrate that: (1) the defendant transacted business in the District of Columbia; (2) the claim arose from the business transacted in the District; (3) the defendant had minimum contacts with the District; and (4) the Court's exercise of personal jurisdiction would not offend “traditional notions of fair play and substantial justice.” Nat'l Resident Matching Program v. Elec. Residency LLC, 720 F.Supp.2d at 98 (citation omitted).

         Plaintiffs' opening brief does not address whether this Court lacks personal jurisdiction over the individual defendants. Seizing on this omission, the individual defendants repeatedly point out that Judge Marra and the JPML left open to plaintiffs the option to argue for personal jurisdiction in this District and plaintiffs declined to do so. See, e.g., Opp. at 12, 15-16. In their reply brief, plaintiffs respond that they “continue to believe this Court has personal jurisdiction” over the individual defendants and advance a theory of personal jurisdiction based on conspiracy jurisdiction. See Reply at 13-16. The ...


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