Case 0:08-md-01916-KAM Document 1904 Entered on FLSD Docket 04/20/2018 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 08-MD-01916-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION

_______________________________________/

This Document Relates to:

ATS ACTION PRETRIAL CONFERENCE

REQUESTED
10-80652-CIV-MARRA (Does 1-976 v. CBI)

_______________________________________/

PLAINTIFFS DOES 1-976' REPLY TO MOTION FOR REMAND

The Global Order Setting Trial Dates and Discovery Deadlines (hereinafter

"Global Scheduling Order," or "GSO"), DE 1361, required the parties by April 2, 2018 to

"file joint motion requesting scheduling of pretrial conference for purposes of discussing

the feasibility of trying all Bellwether Trials in the Southern District of Florida (MDL

Court) by consent, or alternatively whether any trials should be remanded to the courts of

original jurisdiction for trial." DE 1361 at 4, § II (4).

Undersigned counsel was unable to get any other party to agree to file a joint

motion to schedule a pretrial conference. Instead, on April 2, 2018 Plaintiffs' Counsel

Jack Scarola sent an email to the Court requesting an extension until April 20, 2018,

additionally stating that he was conveying a request made on behalf of Defendant

Chiquita. On the same day, undersigned counsel filed a Motion to Remand this case back
Case 0:08-md-01916-KAM Document 1904 Entered on FLSD Docket 04/20/2018 Page 2 of 7

to the U.S. District Court for the District of Columbia.1 DE 1871. The Court denied Mr.

Scarola's request, and ordered that any requests to extend the deadline must be publicly

filed on the record. DE 1872. No motions to extend this deadline were ever filed by any

party. Instead, a Proposed Amended Global Scheduling Order, filed by the parties on

April 6, 2018, reflects that Chiquita wants the deadline extended to August 20, 2018, and

Plaintiffs represented by Jack Scarola want the date extended to October 20, 2018. DE

1877 at 5.2

Although the Motion to Remand, DE 1871, did suggest that the Court could

remand this case at any time (which is true), the proposed amended scheduling order

clarified "that the Court should remand the Does 1-976 case to the District Court for the

District of Columbia after it decides the pretrial motions, stipulations and jury

instructions [...], which should be decided for all bellwether cases by this Court." DE

1877 at 6.3 This would assure uniformity in the legal standards being applied to a pool of

some 7500 claims filed by seven different groups of attorneys.

1
The Court should follow the procedure outlined by Defendant Chiquita in its
Opposition, DE 1903. Instead of ordering that the case be remanded, the court should file
a suggestion of remand pursuant to the Rule 10.1(b) of Procedure of the United States
Judicial Panel on Multidistrict Litigation.
2
Several complaints were first-filed in this Court, so at least they have trial dates in some
court. The Does 1-976 plaintiffs do not. Undersigned counsel opposes extending the
deadline beyond the origial date of April 2, 2018. If a party can defer its decision on
whether to go to trial in this Court, or to request a remand to another court, then the trial
schedule is illusory, at least as far as the out-of-state plaintiffs are concerned. The
schedule will probably be amended again, as the depositions of some 30 Colombian
prisoners eventually reach a point of diminishing returns.
3
Chiquita provides a detailed analysis of the standards for remanding a case before
discovery has concluded, which is not what the Plaintiffs want to do. The case law cited
by Chiquita proves that the Court should remand this case at the time I requested, after
pretrial motions, stipulations, and jury instructions are decided.

2
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If the scheduling order reflects that this case will be remanded on a certain date,

then I can file the scheduling order on the docket in the District of Columbia, with a short

note to explain to the court that a six week space for a trial is needed on about October

28, 2019.4 This is the plaintiffs' motivation for seeking resolution of the remand issue as

expeditiously as possible: it is the problem currently holding up the progress in the case.

A second problem impeding the progress of the case is the lack of agreement on

what to do about replacing bellwether plaintiffs who did not appear in Florida for

depositions for whatever reason. Since the Court is being asked to extend discovery

deadlines, it should consider whether to maintain the pool of 56 cases by replacing

bellwether plaintiffs who were unable to obtain visas or failed to appear for some other

reason, or to allow the pool to be reduced by attrition. Since the purpose of the

bellwether trials is to provide a representative sampling of plaintiffs' cases, the Court

should order that the cases be replaced, particularly in light of the defense strategy of

reducing the pool and "knocking out" cases.

ARGUMENT

I. Chiquita hasn't shown excusable neglect for not filing the motion to schedule
the pretrial conference.

Although a litigant who seeks an extension of time ordinarily must show good

cause for the desired extension, after the deadline has expired, the litigant must show that

failure to request an extension in a timely manner constitutes excusable neglect. Rivera-

4
Presumably, Chiquita would not want to be defending two trials starting on the same
date, in the Southern District of Florida and the District of Columbia. This is all the more
reason to involve the District Court for the District of Columbia early on, so that the trial
schedules don't collide. Chiquita has argued that the DCDC will not have jurisdiction to
put the trial on its calendar until after the remand, but that is an issue for the DC Court to
decide. By not deciding and not having a firm trial date, no progress can be made.

3
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Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23, 26-27 (1st Cir.

2013). Scheduling orders are binding. Amcast Indus. Corp. v. Detrex Corp., 132 FRD

213, 217 (ND Ind. 1990) Under either its inherent powers or Rule 16(f), a court may

sanction an attorney who fails to obey a scheduling order. Henderson v. Duncan, 779

F.2d 1421, 1424 (9th Cir. 1986) (case dismissed for plaintiff's counsel's failure to submit

pretrial order in accordance with local rule); Geiserman v. McDonald, 893 F.2d 787, 792

(5th Cir. 1990) (adherence to reasonable scheduling deadlines critical to restoring

integrity in court proceedings). Both Chiquita and Mr. Scarola's plaintiffs missed the

April 2, 2018 deadline and offer no excuse. Chiquita argues that it still doesn't have to

decide, which means that Chiquita doesn't have to agree to a firm schedule now, or to a

trial date. Chiquita provides no details as to what additional information it could have on

October 20, 2019, that it doesn't have now, that would bear on its decision whether to

stay in the transferee court. Due to the cloud of uncertainty this casts over the schedule,

the Court should give all parties no more than three days to state on the record whether or

not they waive their right to remand, and resolve the other contested issues in the

schedule after that.

Fixing the date for trial in the scheduling order is one of the most important

management tools in a judge's arsenal. See Flanders, Case Management and Court

Management in United States District Courts at 17 (Federal Judicial Center 1977). This

is the deadline that drives all the others. For example, the date for the final pretrial

conference cannot be set until the trial date is known. To do so would violate Rule 16(d),

which expressly requires the final pretrial conference to be held as close to the time of

4
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trial as reasonable under the circumstances. FRCP 16(e).5 Therefore, no extensions

should be granted for this deadline, and the parties should be ordered to state their

positions on remand before the schedule is amended.6

II. The Court should also clarify the bellwether case selection process.

A related issue blocking progress in the case is what to do about the plaintiffs who

were denied visas, or who for whatever reason didn't appear for their depositions in

Florida. At present, six of my clients were deposed in Florida on the dates specified by

the Defendant; three had medical-type issues and withdrew their claims; and two others

were denied visas and withdrew their claims.7 Due to the visa denial, I am still two

plaintiffs short, but the ones denied visas were both selected by Chiquita, who refuse to

select replacements.

Other plaintiff groups had varying degrees of success, with some conducting more

than eight depositions, and others none. The situation is a mess, and no one knows what

5
This was at least partly intended to avoid the inefficiency of having trial preparation
work repeated when there is a delay between the final pretrial conference and the trial.
See Advisory Committee Notes to FRCP 16. The Advisory Committee declared that the
fixing of time limits serves to stimulate litigants to narrow the areas of inquiry and
advocacy to those they believe are truly relevant and material. Id. Time limits not only
compress the amount of time for litigation, they should also reduce the amount of
resources invested in litigation. Id. In addition, litigants are forced to establish priorities
and do the most important work first. Id.
6
Rule 16 is the principal source of the Court's power to manage cases. Akishev v.
Kapustin, 23 F.Supp.3d 440, 449 (DNJ 2015) (Rule 16 generally aims to establish early
and continuing control by court to expedite litigation and discourage wasteful pretrial
activities) The Manual for Complex Litigation (4th Ed. 2004) suggests that effective case
management should be active, substantive, timely, ongoing, firm but fair, and carefully
prepared. Id. at § 10.13.
7
When the Court denied a motion for protective order for three of my clients with travel
issues, DE 1706, I withdrew their claims without prejudice, at the insistance of Chiquita.
DE 1722. However, when two of their replacements were denied visas, and I withdrew
their claims, DE 1802, Chiquita refused to replace them. It appears that other plaintiffs'
counsel have taken varying positions on whether to voluntarily dismiss these kinds of
clams. The Court should actively manage this to ensure consistency among the cases.

5
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to do next. Therefore, the Court should address the issue of bellwether case replacement

when amending the Global Order.

In about a week, the FBI expert witness who was to be the lead witness in the

Pescatore case will interview my six bellwether plaintiffs in Colombia. I would rather

have him interview eight, since his travel is dangerous8 and expensive, and I would like

to have two replacements for a trial with six plaintiffs. I am assuming that my expert will

benefit from an extended date to exchange expert reports, which are currently due on

May 15, but I feel I have deferred the trip for long enough already.

The Plaintiffs don't know what the court had in mind when it ordered that 56

cases would be proceed through full discovery, but the issue should be clarified before

the close of discovery, so the intended pool of bellwether cases is ready to go. The

process would still work if the 56 cases are reduced through attrition, through factors

unrelated to the merits (visa denials, medical issues, fear), and others dismissed in

summary judgment, since only 12 are supposed to go to trial. However, my intent is to

prepare eight cases for my own trial of six, with two cases held as replacements. I would

like to select the replacements as soon as possible, so that discovery can be completed on

them.

Conclusion

For the foregoing reasons, the Court should order the parties to state their

positions on the remand issue before amending the Global Scheduling Order. The GSO

8
Due to the request for extradition of FARC negotiator alias "Jesus Santrich" for drug
trafficking recently made by the United States, there appears to be a heightened risk of
kidnapping for Americans traveling in Colombia now. It seems prudent to limit
publication of any details of travel in Colombia now, although I am not personally
concerned, and plan to have meetings with groups of clients as ususal.

6
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should then state the date when the instant case, and any others, will be remanded, so that

the bellwether trial in the District Court for the District of Columbia can be coordinated

with the trials in this Court. The Court should also address the replacement of bellwether

plaintiffs in the amended GSO.

Respectfully submitted,

/s/ Paul Wolf

____________________
Paul Wolf, CO Bar 42107
PO Box 46213
Denver, CO 80201
paulwolf@yahoo.com
fax: n/a

April 20, 2018

Certificate of Service

I hereby certify that on this 20th Day of April, 2018, I filed the foregoing
document with the Clerk of the Court using the Court's Electronic Case Filing (ECF)
system, which will send notices to every person entitled to receive them.

/s/ Paul Wolf

_____________
Paul Wolf