United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
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. 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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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].
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].
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.
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].
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).
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
The Court Lacks Personal Jurisdiction Over The Individual
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
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 ...