fresh del monte produce inc., et aliradvocates.org/sites/default/files/05.01.13 answer brief...

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

U.S.C.A. CASE NO. 12-16143-E

District Court Case No. 01-3399-CIV-MORENO

ANGEL ENRIQUE VILLEDA ALDANA, et al.

Appellants/Plaintiffs,

vs.

FRESH DEL MONTE PRODUCE INC., et al.

Appellees/Defendants.

On Appeal from the United States District Court for the Southern District of Florida

ANSWER BRIEF OF APPELLEES

STACK FERNANDEZ ANDERSON & HARRIS, P.A. Brian J. Stack, Esq.

1200 Brickell Avenue, Suite 950 Miami, Florida 33131-3225 Telephone: 305-371-0001 Facsimile: 305-371-0002

Attorneys for Appellees/Defendants

Case: 12-16143 Date Filed: 05/01/2013 Page: 1 of 68

C-1 of 2

RULE 26.1 CORPORATE DISCLOSURE STATEMENT AND CERTIFICATE OF INTERESTED PERSONS

Corporate Disclosure Statement

Appellee, Fresh Del Monte Produce Inc., has no parent corporation and no

publicly held corporation owns more than 10% of its stock.

The parent corporations of Appellee, Compañía de Desarrollo De

Guatemala, S.A., are Del Monte Fresh Produce Company, Del Monte B.V.I.

Limited, and Del Monte International GmbH, and no publicly held corporation

owns more than 10% of its stock.

The parent corporation of Appellee, Del Monte Fresh Produce Company, is

Del Monte B.V., and no publicly held corporation owns more than 10% of its

stock.

Certificate of Interested Persons

The following persons and entities have an interest in the outcome of this

appeal:

Aldana, Angel Enrique Villeda, Appellant/Plaintiff Collingsworth, Terrence, Esq., of Conrad & Scherer, Attorneys for Appellants/Plaintiffs Compañía de Desarrollo de Guatemala, S.A. (a/k/a/ “Bandegua”), Appellee/Defendant Conrad & Scherer, Attorneys for Appellants/Plaintiffs


C-2 of 2

Del Monte Fresh Produce Company, Defendant/Appellee and shareholder of Compañía de Desarrollo de Guatemala, S.A. (a/k/a/ “Bandegua”), Appellee/Defendant Evans, Oscar Leonel Guerra, Appellant/Plaintiff Fernandez, Jr., Lazaro, Esq., of Stack Fernandez Anderson & Harris, P.A., Attorneys for Appellees/Defendants Fresh Del Monte Produce Inc., Defendant/Appellee and indirect shareholder of Del Monte Fresh Produce Company and Compañía de Desarrollo de Guatemala, S.A. (a/k/a/ “Bandegua”), Appellee/Defendant Harris, Robert, Esq., of Stack Fernandez Anderson & Harris, P.A., Attorneys for Appellees/Defendants Hernandez, Rigoberto Avayero, Appellant/Plaintiff Martinez, Gumerzindo Loyo, Appellant/Plaintiff Martinez, Marel, Appellant/Plaintiff Moreno, Federico, United States District Judge, Southern District of Florida Pallot, Mindy L., Esq., of Stack Fernandez Anderson & Harris, P.A., Attorneys for Appellees/Defendants Rodriguez, Lyionhel McIntosch, Appellant/Plaintiff Romero, Jorge Agustin Palma, Appellant/Plaintiff Simonton, Andrea M., United States Magistrate Judge, Southern District of Florida Stack Fernandez Anderson & Harris, P.A., Attorneys for Appellees/Defendants Stack, Brian J., Esq., of Stack Fernandez Anderson & Harris, P.A., Attorneys for Appellees/Defendants


STATEMENT REGARDING ORAL ARGUMENT Appellees do not believe that oral argument is necessary. The facts and

legal arguments are adequately presented in the briefs and record on appeal, and

the decisional process would not be significantly aided by oral argument.


TABLE OF CONTENTS

Page(s)

I. TABLE OF CITATIONS

iii

II. STATEMENT OF JURISDICTION

1

III. STATEMENT OF THE ISSUES

1

IV. STATEMENT OF THE CASE 1

A. Nature of the Case

1

B. Statement of the Facts

2

C. Course of Proceedings

3

D. Standard of Review

10

V. SUMMARY OF THE ARGUMENT

12

VI. ARGUMENT

14

A. Plaintiffs Cannot Satisfy the Exacting Standards for Relief under Rule 60(b)(6)

14

1. Plaintiffs Failed to Show that the Guatemalan Forum Was Genuinely Unavailable Because the Guatemalan Ex Parte Order Plaintiffs Procured Was Unreliable and Unworthy of Recognition

15

a. The Guatemalan Ex Parte Order Is Not Entitled to Recognition by this Court

16

b. Plaintiffs Induced the Dismissal of Their Lawsuit in Guatemala by Deliberately Drafting a Flawed Complaint Designed to Invite Its Dismissal

18


ii

TABLE OF CONTENTS (continued)

Page(s)

c. Plaintiffs Assured Their “Defeat” in Guatemala by

Failing to Seek Annulment or Appellate Review of the Guatemalan Ex Parte Order

27

B. Rule 60(b) Relief Is Unavailable to Relieve Plaintiffs From the Consequences of Their Deliberate Litigation Decisions

34

C. Plaintiffs’ Motion to Vacate the FNC Dismissal Order Was Time-Barred

39

1. Plaintiffs Had, at Most, One Year From the Time of the FNC Dismissal Order to Seek Reinstatement on the Basis of the Guatemalan Ex Parte Order

39

2. Plaintiffs’ Three-Year Delay Does Not Satisfy the “Reasonable Time” Standard Applicable to Rule 60(b)(6)

43

D. Reinstatement Would Undermine the Court’s Sovereign Authority and Eviscerate the Doctrine of Forum Non Conveniens

46

E. Reinstatement of Plaintiffs’ Claims Would Be Futile

50

F. The District Correctly Refused to Grant 60(d)(1) Relief

51

VII. CONCLUSION

53

CERTIFICATE OF COMPLIANCE

54

CERTIFICATE OF SERVICE 55


iii

I. TABLE OF CITATIONS

Case Citations Page(s)

1250 Twenty-Fourth Street Assocs. Ltd. P’ship v. Brown, 1987 WL 25647 (D.D.C. Nov. 18, 1987)

39

Acapolon Corp. v. Ralston Purina Co., 827 S.W. 2d 189 (Mo. 1992)

49

Ackermann v. United States, 340 U.S. 193 (1950)

11

Agostini v. Felton, 521 U.S. 203 (1997)

38

Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, aff’d, 303 F.3d 470 (2d Cir. 2002)

33, 41, 48

Air Crash Over the Mid-Atlantic on June 1, 2009, 792 F. Supp. 2d 1090 (N.D. Cal. 2011)

22

Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242 (11th Cir. 2005), cert. denied, 549 U.S. 1032 (2006)

5

Aldana v. Del Monte Fresh Produce, N.A., 578 F.3d 1283 (11th Cir. 2009), reh’g, reh’g en banc, denied, 401 F. App’x 518 (11th Cir. 2010)

4, 15

Aldana v. Fresh Del Monte Produce, Inc., 2007 WL 3054986 (S.D. Fla. Oct. 16, 2007)

5, 15

Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285 (S.D. Fla. 2003)

4

Aldana v. Fresh Del Monte Produce, Inc., 922 So. 2d 212 (Fla. 3d DCA 2006), rev. dism., 928 So. 2d 334 (Fla. 2006)

4

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)

5, 10


iv


American Bankers Ins. Co. of Florida v. Northwestern National Ins. Co., 198 F.3d 1332 (11th Cir. 1999)

1

Ansari v. NCS Pearson, Inc., 407 F. App’x 984 (8th Cir. 2011), cert. denied, 132 S.Ct. 116 (2011)

12

Arnold v. Wood, 238 F.3d 992 (8th Cir. 2001), cert. denied, 534 U.S. 975 (2001)

12

Arrieta v. Battaglia, 461 F.3d 861 (7th Cir. 2006)

39

Banco Metropolitano, S.A. v. Desarrollo de Autopistas y Carreteras de Guatemala, S.A., 616 F. Supp. 301 (S.D.N.Y. 1985)

49

Bolanos v. Gulf Oil Corp., 502 F. Supp. 689 (W.D. Pa. 1980), aff’d, 681 F.2d 804 (3d Cir. 1982)

49

Bridgestone/Firestone Tire Products Liability Litig., 470 F. Supp. 2d 917 (S.D. Ind. 2006)

23, 24, 25

Bridgestone/Firestone, Inc., 420 F.3d 702 (7th Cir. 2005)

23, 24, 26, 27

Bush v. Raytheon, Co., 2011 WL 1336386 (M.D. Fla. Apr. 7, 2011)

40

Cano v. Baker, 435 F.3d 1337 (11th Cir. 2006), cert. denied, 549 U.S. 972 (2006)

11

Castillo v. Shipping Corp. of India, 606 F. Supp. 2d 497 (S.D.N.Y. 1985)

24

Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th Cir. 1993)

14

Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d 189 (4th Cir. 2009)

22, 24

Copeland v. McNeil, 2009 WL 1229042 (N.D. Fla. May 4, 2009)

40


v


Cruz v. Maritime Co. of Philippines, 655 F. Supp. 1214 (S.D.N.Y. 1987), aff’d, 702 F.2d 47 (2d Cir. 1983)

23

Cuddeback v. Florida Bd. Of Educ., 381 F.3d 1230(11th Cir. 2004)

12

Dawson v. Compagnie Des Bauxites De Guinee, 112 F.R.D. 82 (D. Del. 1986)

34

Delgado v. Shell Oil Co., 890 F. Supp. 1324 (S.D. Tex. 1995)

34, 41

Delgado v. Shell Oil Co., 890 F. Supp. 1324 (S.D. Tex. 1995), aff’d, 231 F.3d 165 (5th Cir. 2000)

49

Ecuadorean Shrimp Litigation, 6 Fla. L. Weekly Supp. 767a, Case No. 94-10139 (Fla. 17th Cir. Ct. Sept. 24, 1999)

24, 48

Fidelity Bank PLC v. M/T Tabora, 333 F. App’x 735 (4th Cir. 2009)

26

Gilley v. Monsanto Co., 428 F. App’x 883 (11th Cir. 2011), cert. denied, 132 S.Ct. 1026 (2012)

14

Griffin v. Swim-Tech Corp., 722 F.2d 677 (11th Cir. 1983)

14

Gulf Coast Building Supply Co., Inc. v. Int’l Brotherhood of Electrical Workers, Local No. 480, AFL-CIO, 460 F.2d 105 (5th Cir. 1972)

40, 44

Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025 (9th Cir. 2011)

22, 26, 27, 32

Henderson v. Dunphy, 2009 WL 2858992 (S.D. Fla. Sept. 3, 2009)

32

Hilton v. Guyot, 159 U.S. 113 (1895)

17

Huang v. Advanced Battery Tech., Inc., 2011 WL 813600 (S.D.N.Y. Mar. 8, 2011)

24


vi


In re: Diet Drugs, 383 F. App’x 242 (3d Cir. 2010)

44

In re: Western Caribbean Airways, 2012 WL 1884684 (S.D. Fla. May 16, 2012)

10, 31, 38

Int’l Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589 (5th Cir. 2003)

17

Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir. 1998), cert. denied, 525 U.S. 1018 (1998)

36

Jaffke v. Dunham, 325 U.S. 280 (1957)

12

Kiobel v. Royal Dutch Shell, __ U.S. __, 2013 WL 1628935 (Apr. 17, 2013)

50

Liljeberg v. Health Services Acquisition, Corp., 486 U.S. 847 (1988)

42

Lisa v. Gutierrez, 2007 WL 1654482 (Fla. 11th Cir. Ct. May 17, 2007), aff’d, 992 So. 2d 413 (Fla. 3d DCA 2008)

49

Lisa, S.A. v. Gutierrez Mayorga, 240 F. App’x. 822 (11th Cir. 2007)

37

Lisa, S.A. v. Gutierrez Mayorga, 441 F. Supp. 2d 1233 (S.D. Fla. July 18, 2006), aff’d, 240 F. App’x. 822 (11th Cir. 2007)

49

Lugo v. Secretary for Department of Corrections, 2010 WL 3743915 (S.D. Fla. Sept. 22, 2010)

43

MBI Group, Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568 (D.C. Cir. 2010)

23

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

22, 32


vii


Mendes Junior Int’l Co. v. Banco Do Brasil S.A., 394 F. App’x 787 (2d Cir. 2010)

11, 23

Mercier v. Sheraton Int’l, Inc., 935 F.2d 419 (1st Cir. 1991)

26

Mitchell v. Rees, 261 F. App’x 825 (6th Cir. 2008), cert. denied, 555 U.S. 1212 (2008)

39

Mohamad v. Palestinian Authority, __ U.S. __, 132 S. Ct. 1702 (2012)

50

Monjar v. Higgins, 132 F.2d 990 (2d Cir. 1943)

50

Morales v. Ford Motor Co., 313 F. Supp. 2d 672 (S.D. Tex. 2004)

25, 48

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)

17

Ohio Valley Environmental Coalition v. Apogee Coal Co., LLC, 744 F. Supp. 2d 561 (S.D. W.Va. 2010)

38

Oliver v. Beard, 2012 WL 7963128 (M.D. Pa. Dec. 27, 2012), report and recommendation adopted, 2013 WL 1632636 ( M.D. Pa. Apr. 16, 2013)

39

Palacios v. The Coca-Cola Co., 499 F. App’x 54 (2d Cir. 2012) passim

Palacios v. The Coca-Cola Co., No. Civ. 3120 (RJS) (S.D.N.Y. Aug. 18, 2011)

30

Paula v. Jackson, 1995 WL 702481 (S.D.N.Y. 1995) 23

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

49

Polanco v. H.B. Fuller Co., 941 F. Supp. 1512 (D. Minn. 1996) 49


viii


Ramsey v. Walker, 304 F. App’x 827 (11th Cir. 2008) 44

Rease v. AT&T Corp., 356 F. App’x 73 (11th Cir. 1991) 42

Reyes v. Cruise Ship Catering & Servs. Int’l, N.V., 2006 WL 2389441 (S.D. Fla. May 25, 2006)

49

Rice v. Ford Motor Co., 88 F.3d 914 (11th Cir. 1996) 14

Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013 (Fla. 3d DCA 2008), rev. denied, 17 So. 3d 292 (Fla. 2009)

passim

Snaza v. Howard Johnson Franchise Systems, 2008 WL 5383155 (N.D. Tex. Dec. 24, 2008)

23

Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115 (11th Cir. 1994)

37

Toole v. Baxter Healthcare Corp., 235 F.3d 1307 (11th Cir. 2000) 10

Transit Casualty Co. v. Security Trust Co., 441 F.2d 788 (5th Cir. 1971)

40, 44

Travelers Indem. Co. v. Gore, 761 F.2d 1549 (11th Cir. 1985)

52

U.S. Equal Employment Opportunity Comm’n v. W & O, Inc., 213 F.3d 600 (11th Cir. 2000)

36

United States v. Bank of N.Y., 14 F.3d 756 (2d Cir. 1994) 11

United States v. Beggerly, 524 U.S. 38 (1998) 51, 52

United States v. Swift & Co., 286 U.S. 106 (1932) 14

United States v. Tarver, 2013 WL 1405934 (M.D. Fla. April 8, 2013)

51

Walker v. Briggs, 2011 WL 5866232 (N.D.N.Y. Nov. 22, 2011) 40


ix


Warter v. Boston Secs., S.A., 380 F. Supp. 2d 1299 (S.D. Fla. 2004)

33, 41

Other Legal Authorities Page(s)

28 U.S.C. § 1291 1

Alien Tort Statute, 28 U.S.C. §1350 4, 50

Torture Victim Protection Act, 28 U.S.C. §1350, Note

4, 50

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961

4

Full Faith and Credit Act, 28 U.S.C. §1783

5

Nanda and Pansius, 1 LOID § 6:15 (Oct. 2010) 47

Gordon, Forum Non Conveniens Misconstrued: A Response to Henry Saint Dahl, 38 U. Miami Inter. Am. L. Rev. 141 (Fall 2006)

47

Fed. R. Civ. P. 60 passim

Guatemalan Law of Defense of Procedural Rights of Nationals and Residents, Decree 34-97

passim

11 Wright & Miller, Federal Practice & Procedure § 2864 (1973) 34


II. STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal. 28 U.S.C. § 1291 (“[T]he

courts of appeal . . . shall have jurisdiction of appeals from all final decisions of the

district courts of the United States.”). American Bankers Ins. Co. of Florida, v

Northwestern National Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999) (“An order

granting or denying relief under Rule 60(b) is final and appealable.”).

III. STATEMENT OF THE ISSUES

The primary issue presented by this appeal is whether the district court

abused its broad discretion under Rule 60(b), Fed. R. Civ. P., when it denied

Plaintiffs’ Motion for Reinstatement Following Dismissal for Forum Non

Conveniens (the “Motion to Reinstate”). R.265.1

IV. STATEMENT OF THE CASE

A. Nature of the Case

This is an appeal from an order dated October 30, 2012 of the district court,

R.265, denying Plaintiffs’ Motion to Reinstate. R.226.

Appellants are Angel Enrique Villeda Aldana, Jorge Agustin Palma Romero,

Oscar Leonel Guerra Evans, Lyionhel McIntosch Rodriguez, Marel Martinez,

1 Items in the record will be cited as “R.__” (if the record item is referred to generally), “R.__.__” (if a particular page number, paragraph and/or exhibit of the record item is cited), or “R.__.__.__” (if a particular page number and/or paragraph of an exhibit to a record item is cited). The record citations refer to the district court docket entries.


2

Gumerzindo Loyo Martinez, and Rigoberto Alvayero Hernandez, all of whom

were Plaintiffs in the underlying dismissed Fourth Amended Complaint

(collectively “Plaintiffs”). R.156.

Appellees are Fresh Del Monte Produce Inc. (“FDMPI”), Compañía de

Desarollo Bananero de Guatemala, S.A. (“Bandegua”),2 and Del Monte Fresh

Produce Company (“DMFPC”), the Defendants below (collectively “Defendants”).

B. Statement of the Facts

Plaintiffs were officers of a Guatemalan labor union, Sindicato de

Trabajadores del Banano de Izabal (“SITRABI”), which represented the workers at

a banana plantation once operated by Bandegua in Morales, Izabal, Guatemala.

R.156.24.3 Plaintiffs allege that from 5:45 p.m. on October 13, 1999 to 2:00 a.m.

on October 14, 1999, they were gathered up by a group of local Guatemalan

townspeople and workers and forced, allegedly at gunpoint, to resign their posts

with SITRABI. R156.8-13.34-49. Plaintiffs do not allege that anyone was killed

or suffered any actual physical injury, but rather that they experienced “pain and 2 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, R.233, Bandegua gave notice in the district court that it renewed its previous objection to the district court’s personal jurisdiction over it as set forth in Bandegua’s Motion to Dismiss Fourth Amended Complaint for Lack of Personal Jurisdiction, R.162, which, due to the FNC Dismissal Order, the district court denied as moot, R.211. By joining this Answer Brief, Bandegua does not waive its objection to the district court’ and this Court’s exercise of personal jurisdiction over it. 3 The material allegations of the Fourth Amended Complaint are all unproven, and Defendants deny them.


3

suffering” amounting to “torture.” R.156.63,67. All of the alleged misconduct

took place in the town of Morales, Guatemala where the Plaintiffs lived and

worked. R.156.30.

Various perpetrators of the assault were arrested, tried, and convicted by the

Guatemalan courts in Izabal, and for those who appealed, their convictions were

affirmed by a Guatemalan appellate court. R.172.A.¶13. Those convicted were

sentenced pursuant to Guatemala’s criminal sentencing guidelines and received

maximum sentences of three and one-half years of incarceration. Id. Pursuant to

Guatemala’s Criminal Procedure Code, some of those convicted paid fines,

substantial by Guatemala’s economic standards, in lieu of incarceration. Id.

Five of the Plaintiffs personally testified at the criminal trial in Guatemala

against the perpetrators. Id. at ¶ 9. Plaintiffs requested and were afforded

protection by Guatemalan government authorities during the criminal trial. Id.

Bandegua and all of its employees are located in Guatemala, and Bandegua has no

contacts with the United States. R.162.C.¶¶ 2-3,5-6. The executive offices of Del

Monte Fresh Produce Company and Fresh Del Monte Produce, Inc. are located in

Coral Gables, Florida. R.162.D.¶ 1.

C. Course of Proceedings

This is the third time Plaintiffs have appealed this case to this Court. On the

last occasion the Court affirmed the district court’s October 16, 2007 order

dismissing this action pursuant to the doctrine of forum non conveniens (the “FNC


4

Dismissal Order”), agreeing that this case is “quintessentially Guatemalan.”

Aldana v. Del Monte Fresh Produce, N.A., 578 F.3d 1283 (11th Cir. 2009), reh’g

and reh’g en banc denied, 401 F. App’x 518 (11th Cir. 2010) (“Aldana II”).

Plaintiffs initiated this action in August 2001 and purported to assert claims

under the Alien Tort Statute, 28 U.S.C. §1350 (the “ATS”), the Torture Victim

Protection Act, 28 U.S.C. §1350, Note (the “TVPA”), and the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et. seq., together

with several pendent non-federal law claims, purportedly arising out of the events

of October 13-14, 1999. R.1. After two amendments to the Complaint were

permitted, the district court dismissed the Third Amended Complaint for lack of

subject matter jurisdiction on December 12, 2003. Aldana v. Fresh Del Monte

Produce, Inc., 305 F. Supp. 2d 1285 (S.D. Fla. 2003); R.140.

In January 2004, while Plaintiffs’ appeal of the subject matter dismissal

order was pending in this Court, Plaintiffs commenced a parallel action in Florida

State Court. R.162.A. On March 30, 2005, the Florida State Court determined,

inter alia, that Guatemala was an adequate and available forum for the resolution

of Plaintiffs’ claims and dismissed the State Court action for forum non conveniens

(the “State Court FNC Order”).4 The State Court FNC Order was affirmed by the

4 The State Court also granted Bandegua’s motion to dismiss for lack of personal jurisdiction, R.162.B, which was affirmed on appeal by the Florida Third District Court of Appeal. Aldana v. Fresh Del Monte Produce Inc., 922 So. 2d 212


5

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

Florida Supreme Court was denied.5

On July 8, 2005, this Court reversed in part the district court’s subject matter

jurisdiction dismissal order, Aldana v. Del Monte Fresh Produce, N.A., Inc., 416

F.3d 1242 (11th Cir. 2005), cert. denied, 549 U.S. 1032 (2006) (“Aldana I”),

holding that the district court had jurisdiction to hear only Plaintiffs’ claim for

intentionally inflicted mental pain and suffering under the ATS and TVPA.

Aldana I, at 1253.

After remand to the district court, Defendants moved on October 18, 2006 to

dismiss the federal action under forum non conveniens. R.163. The district court

granted the forum non conveniens motion on October 16, 2007 (the FNC Dismissal

Order), holding, inter alia, that the State Court’s determination on the adequacy

and availability of the Guatemalan forum was entitled to preclusive effect under

the collateral estoppel doctrine and was binding on the district court pursuant to the

Full Faith and Credit Act, 28 U.S.C. § 1783. Aldana v. Fresh Del Monte Produce,

Inc., 2007 WL 3054986 (S.D. Fla. Oct. 16, 2007); R.212. This Court affirmed the

FNC Dismissal Order on August 13, 2009. Aldana II, 578 F.3d 1283.

It was not until December 6, 2010, more than three years after entry of the (Fla. 3d DCA), rev. dism., 928 So. 2d 334 (Fla. 2006). 5 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).


6

FNC Dismissal Order, and more than five years after entry of the State Court FNC

Order, that Plaintiffs re-filed their claims in a Guatemalan court in the city of

Puerto Barrios, Department of Izabal, Guatemala (the “Guatemalan Court”).6

R.234.B.1 Plaintiffs’ Guatemalan complaint referenced both the FNC Dismissal

Order and the Guatemalan Law of Defense of Procedural Rights of Nationals and

Residents, Decree No. 34-97 (“Decree 34-97”), a so-called “blocking law” that

discourages, but does not prohibit, Guatemalan courts, from assuming jurisdiction

of civil disputes following their dismissal by a United States court under forum non

conveniens.

The Plaintiffs’ Guatemalan complaint alleged in pertinent part:

26. Initially, Plaintiffs filed a complaint for damages against the Defendants before an American Court, namely, the United States District Court, Southern District of Florida, where Defendants are headquartered. The U.S. case is captioned as Angel Enrique Villeda Aldana et al., v. Fresh Del Monte Produce Inc., et al., Case No. 01-3399-CIV-Moreno/Dube. Eventually, at the request of Defendants, the U.S. Court applied the Forum Non Conveniens doctrine, in the understanding that the Guatemalan forum was more convenient for handling this action.

Applicable Law

Also as provided by Decree 34-97 of the Congress of the Republic, Law of Defense of Procedural Rights for Nationals and Residents, Article I. The theory known as “Forum Non Conveniens” is deemed to be unacceptable, inapplicable, and invalid because it violates the rights guaranteed by the Political Constitution of the Republic and the

6 The Guatemalan Court is the “Juzgado de Primera Instancia Civil y Economico Coactivo del Departamento de Izabal, Puerto Barrios.” R.234.B.1.


7

Guatemalan judicial order. Incompetence due to forum non conveniens- when this defense is brought to prevent the continuation of the proceedings in the Court of the Defendants’ domicile. Article 2 of this same legal body provides: “A personal action duly filed by a national before a competent Court precludes the national competence, which does not reinstate unless the Plaintiff files a new action in a spontaneous and absolutely free manner.”

R.226.A.

Decree 34-97, referenced in the Guatemalan complaint, provides in pertinent

part:

Defense of the Procedural Rights of Nationals and Residents Act

Article 1. Because it violates the rights guaranteed by the Political Constitution of the Republic and the judicial order of the Guatemala, the theory of Forum Non Conveniens -- lack of jurisdiction due to inconvenient forum -- is declared unacceptable, inapplicable, and invalid when invoked to prevent the trial from continuing in the defendant’s domicile Courts. Article 2. The action in personam validly filed abroad by a national plaintiff before a competent judge shall extinguish national jurisdiction which shall not be renewed unless a new claim is filed in the country in a spontaneous and totally free manner by the plaintiff. Article 3. In the event a foreign judge is informed of the scope of this law and he declines to hear the case submitted to his jurisdiction, Guatemalan courts may reassume jurisdiction as an exceptional measure and to avoid depriving Guatemalan nationals and residents of due process, but in such specific cases the following course of action must be observed:

a) Declared unconstitutional per the September 29, 1999 judgment by the Constitutionality Court.

b) In the event of a favorable judgment for the plaintiff, the Guatemalan Court hearing the case shall use as reference the amounts and compensation levels from cases


8

substantially similar to those awarded in the country where the case was originally tried, per legal documents proving such compensation levels.

c) The State of Guatemala shall be entitled to benefit from this law when acting as a plaintiff.

Article 4. This decree will enter into effect the day following its publication in the official gazette.

R.265.10.

Plaintiffs’ Guatemalan complaint selectively recited only those portions of

Decree 34-97 that purport to conditionally limit a Guatemalan’s court’s jurisdiction

after a forum non conveniens dismissal, but failed to disclose to the Guatemalan

court that pursuant to Article 2 of Decree 34-97, Plaintiffs’ claims were “filed in

[Guatemala] in a spontaneous and totally free manner” or that a Guatemalan court

may “reassume jurisdiction” to “avoid depriving Guatemalan nationals and

residents of due process” under the savings clause of Article 3. R.226.A.

On December 7, 2010, one day after Plaintiffs filed their Guatemalan

complaint, the Guatemalan Court entered an ex parte order holding that Plaintiffs’

complaint was “inadmissible” pursuant to Decree 34-97 (“Guatemalan Ex Parte

Order”). R.226.B. The Guatemalan Ex Parte Order provides, in pertinent part:

It is hereby received the lawsuit filed by [Plaintiffs] who are represented . . . the said lawsuit is DENIED, due to the fact that after reading the lawsuit it is clear that the represented party has already filed a lawsuit for damages in the United States District Court, Southern District of Florida (Whereby this court is incompetent to hear this lawsuit. Regarding this subject, article 2 of [Decree 34-97] establishes that an action duly filed abroad by a national before a


9

competent court precludes national competence; being this the grounds to declare inadmissible the lawsuit.

Id.

Plaintiffs declined to take any steps to seek annulment of the Guatemalan Ex

Parte Order via a “nulidad” or review in a Guatemalan appellate court, as they had

a right to do under Guatemalan judicial procedure.7 Significantly, Defendants

were not afforded any opportunity to be heard in the Guatemalan proceeding,

which otherwise would have occurred if Plaintiffs had challenged the Guatemalan

Ex Parte Order via a nulidad or filed an appeal from it. R.234.B.3. Defendants

were therefore entirely foreclosed from being heard in Guatemala as to the

availability of the Guatemalan forum or whether the Guatemalan court had

jurisdiction over Plaintiffs’ claims. Id.

On January 25, 2011, Plaintiffs filed their Motion to Reinstate in the district

court, which essentially sought to vacate the FNC Dismissal Order and reinstate

their case on the ground that Guatemala was not an “available” forum in which to

litigate their claims.8 R.226. Plaintiffs relied exclusively on the Guatemalan Ex

7 A nulidad affords an aggrieved plaintiff the opportunity to explain why the judge’s decision is in error. If the judge rejects the nulidad, the plaintiff may take a further appeal to the Guatemalan appellate court, which in this case would have been the “Sala Regional Mixta de La Corte de Apelaciones de Zacapa.” R.234-2 (Chavez Decl., ¶ 7). 8 Plaintiffs also filed a virtually identical motion in Florida State Court seeking to reinstate their non-federal claims there. The Florida trial court denied Plaintiffs’ motion to reinstate and its decision was affirmed on appeal. Aldana v.


10

Parte Order as a basis to seek reinstatement. Id. After further briefing and

argument, the district court entered an order dated October 30, 2012 denying

Plaintiffs’ Motion to Reinstate (the “Order Denying Reinstatement”). The district

court held:

In this case, Plaintiffs’ failure to file a nullidad [sic] in Guatemala and to exhaust their avenues for relief in their home country precludes this Court from finding the “exceptional circumstances” standard [of Rule 60(b)] is met. Their abandonment of their appellate rights in Guatemala precludes the Court from finding that there is no avenue for relief, but for reinstating this case. Even where plaintiffs have exhausted their appellate rights in the foreign jurisdiction, the Rule 60(b)(6) standard is not easily met. In Re: West Caribbean Airways, 2012 WL 1884684 (S.D. Fla. May 16, 2012) (denying motion to vacate forum non conveniens dismissal even where plaintiffs filed two appeals in the foreign jurisdiction). At a minimum, Plaintiffs should have filed a nullidad in Guatemala prior to seeking reinstatement here. Absent that persistence by the Plaintiffs in the foreign jurisdiction, the Court cannot invoke the extraordinary remedy of Rule 60(b)(6) to grant relief.

R.265.12-13.

Plaintiffs now seek review of the Rule 60 Order.

D. Standard of Review

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). A motion to

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).


11

reinstate a complaint under Rule 60 is reviewed for abuse of discretion. Mendes

Junior Int’l Co. v. Banco Do Brasil S.A., 394 F. App’x 787, 788 (2d Cir. 2010).

“A plaintiff is not entitled to reinstatement unless he or she can demonstrate

extreme hardship, or grave miscarriage of justice, necessary for relief from the

effect of a final judgment under Rule 60(b) or (d).” Palacios v. Coca-Cola Co.,

499 F. App’x 54, 56(2d Cir. 2012) (quotations and citations omitted).

An appellant’s burden to overturn a Rule 60 order is heavy. “[I]t is not

enough that a grant of the [Rule 60(b) motion] might have been permissible or

warranted; rather, the decision to deny the motion . . . must have been sufficiently

unwarranted as to amount to an abuse of discretion.” Cano v. Baker, 435 F.3d

1337, 1342 (11th Cir. 2006), cert. denied, 549 U.S. 972 (2006). An appellant

“must demonstrate a justification so compelling that the [district] court was

required to vacate its order.” Id.

“[A] party is not entitled to relief under subsections (b) or (d) [of] Rule 60 if

it is seeking to be relieved from the consequences of its own ‘free, calculated,

deliberate choices.’” Palacios, 499 F. App’x at 56 (quoting Ackermann v. United

States, 340 U.S. 193, 198 (1950)). Furthermore, a party who “made a conscious

and informed choice of litigation strategy . . . cannot in hindsight seek

extraordinary relief” under Rule 60(b). United States v. Bank of N.Y., 14 F.3d 756,

759 (2d Cir. 1994).


12

Further, “[t]his court may affirm a judgment on any legal ground, regardless

of the grounds addressed and relied upon by the district court.” Cuddeback v.

Florida Bd. of Educ., 381 F.3d 1230, 1235-36 (11th Cir. 2004); Jaffke v. Dunham,

325 U.S. 280, 281 (1957) (“a successful party in the district court may sustain its

judgment on any ground that finds support in the record”).

Plaintiffs suggest that de novo review of the district court’s Order Denying

Reinstatement is appropriate because the district court failed to “apply the

established rule of law that a conditional [forum non conveniens] dismissal must be

reinstated once it is clear that the proposed alternative forum is not available.”

Initial Br., at 16.9 But there is no authority to support de novo review of a Rule 60

order, and Plaintiffs cite none.

V. SUMMARY OF THE ARGUMENT

Plaintiffs seek to vacate the FNC Dismissal Order and reinstate their claims

in the district pursuant to Rule 60(b) on the strength of the Guatemalan Ex Parte

Order they procured through questionable means and which is not subject to

9 While Plaintiffs wish to reargue whether the Guatemalan forum is “available,” that issue was fully ventilated in both the district court and this Court when the FNC Dismissal Order was issued and affirmed. A Rule 60(b) motion does not present the underlying judgment for review and Plaintiffs may not use it as a vehicle or opportunity to reargue the merits. Arnold v. Wood, 238 F.3d 992 (8th Cir. 2001), cert. denied, 534 U.S. 975 (2001) (Rule 60(b) does not present the underlying judgment for review and movant must prove exceptional circumstances to justify relief); Ansari v. NCS Pearson, Inc., 407 F. App’x 984 (8th Cir. 2011), cert. denied, 132 S.Ct. 116 (2011) (same).


13

recognition under principles of comity. But Plaintiffs have failed to satisfy their

heavy burden to show “exceptional circumstances” warranting relief under Rule

60(b).

First, Plaintiffs filed a deliberately flawed complaint in Guatemala designed

to induce the dismissal of their own claims. Second, Plaintiffs elected voluntarily

not to appeal the Guatemalan dismissal order even though legitimate grounds for

appeal existed. Third, the Ex Parte Order itself is not worthy of recognition by a

U.S. court since it was issued without notice to, or opportunity to be heard by, the

Defendants. Fourth, Plaintiffs’ effort to vacate the FNC Dismissal Order is

founded on the self-serving notion that Decree 34-97 extinguishes Guatemalan

jurisdiction over their claims. But Articles 2 and 3 of Decree 34-97 on their face

permit Guatemalan courts to accept jurisdiction over Plaintiffs’ case. In short,

Plaintiffs have not proven that the Guatemalan forum is actually “unavailable” to

them.

Plaintiffs are also not entitled to Rule 60(b) relief because their current

circumstances are the product of their own mischief, litigation choices, and

strategic decisions. Rule 60 is not intended to extricate a litigant from the adverse

consequences of its failed strategic decisions. Furthermore, Plaintiffs’ request for

reinstatement of their claims in the district court is untimely, irrespective of

whether Rule 60(b)(2) or Rule 60(b)(6) is deemed to be applicable.


14

Finally, Plaintiffs’ effort to use a foreign country’s “blocking law”

specifically designed to nullify the forum non conveniens doctrine in the United

States cannot be sanctioned. Allowing foreign blocking laws such as Decree 34-97

to dictate the contours of federal jurisdiction is an affront to American sovereignty

and the constitutional authority of the federal courts.

VI. ARGUMENT

A. Plaintiffs Cannot Satisfy the Exacting Standards for Relief under Rule 60(b)(6)

A movant under Rule 60(b)(6) is saddled with the heavy burden to show that

“an ‘extreme’ and ‘unexpected’ hardship will result” absent 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)). Further, a movant “must demonstrate

a justification so compelling” that the district court was required to grant the

motion. Rice v. Ford Motor Co., 88 F.3d 914, 919 (11th Cir. 1996). As this Court

has explained, Rule 60(b)(6) “is an extraordinary remedy which may be invoked

only upon a showing of exceptional circumstances.” Gilley v. Monsanto Co., 428

F. App’x 883, 885 (11th Cir. 2011), cert. denied, 132 S.Ct. 1026 (2012) (quoting

Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). Plaintiffs’

Motion to Reinstate fell woefully short of satisfying these rigorous standards.


15

1. Plaintiffs Failed to Show that the Guatemalan Forum Was Genuinely Unavailable Because the Guatemalan Ex Parte Order Plaintiffs Procured Was Unreliable and Unworthy of Recognition

Plaintiffs’ Motion to Reinstate is predicated exclusively on the Guatemalan

Ex Parte Order which determined Plaintiffs’ Complaint to be “inadmissible” under

Decree 34-97. In essence, Plaintiffs’ request for extraordinary relief under Rule 60

rests entirely on an ex parte order of a Guatemalan trial court as new evidence that

contradicts the prior findings of both the district court and this Court that

Guatemala is an adequate and available alternative forum. Villeda Aldana, 2007

WL 3054986, at *3; Aldana II, 578 F.3d at 1290. Plaintiffs admit as much in their

Initial Brief: “After the District Court dismissed the case on [forum non

conveniens] grounds, a key assumption of its dismissal was proven

incorrect -- Guatemala, indisputably, was not an available forum to Plaintiffs.”

Initial Br., at 14.10

10 During oral argument below Plaintiffs’ counsel candidly admitted that the Guatemalan Ex Parte Order amounted to “new evidence:”

THE COURT: * * * So you want me to grant a Rule 60(b)(2) or (b)(6)? Which one should I do? Mr. COLLINGSWORTH: It’s (b)(6), Your Honor. THE COURT: It’s (b)(6) because you concede that with (b)(2), you wouldn’t be able to do it. MR. COLLINGSWORTH: Well, I think the Eleventh Circuit in several cases has said that in cases like this, the catchall provision allows you to do justice, Your Honor, and I think that –


16

Plaintiffs’ entire premise is flawed because the Guatemalan Ex Parte Order

on which their Motion to Reinstate was based is not actual proof of the

Guatemalan forum’s unavailability or, indeed, of anything else. Furthermore, the

suspicious circumstances surrounding Plaintiffs’ procurement of the Guatemalan

Ex Parte Order and their refusal to appeal the Ex Parte Order preclude

reinstatement of their claims in the district court.

a. The Guatemalan Ex Parte Order Is Not Entitled to Recognition by this Court

As a preliminary matter, it must be emphasized that the Guatemalan Ex

Parte Order was issued on an ex parte basis. Defendants were not afforded any

opportunity to be heard in the Guatemalan proceeding or to seek annulment or

appellate review of the Ex Parte Order. R.234.B.3. Nevertheless, the Plaintiffs

attached the Ex Parte Order to its Motion to Reinstate and urged the district court

to determine -- on the basis of that Ex Parte Order alone -- that Guatemala’s courts

are unavailable to the Plaintiffs.

The Ex Parte Order is not worthy of any recognition. It is well-settled that a

foreign decree procured without notice or an opportunity to be heard violates

THE COURT: Okay. But (b)(2) gives you a time limitation, newly discovered evidence, assuming this is really newly discovered evidence. MR. COLLINGSWORTH: Well, it is, Your Honor.

R.264, at p. 3/line 15 to p. 4/line 11 (emphasis supplied).


17

fundamental principles of due process and is not subject to recognition in the

United States under principles of comity. Hilton v. Guyot, 159 U.S. 113, 202-03

(1895). In Hilton, the Supreme Court held that before a foreign decree may be

recognized by a federal court, it must derive from a proceeding “where there has

been opportunity for a full and fair trial abroad before a court of competent

jurisdiction, conducting the trial upon regular proceedings, after due citation or

voluntary appearance of the defendant. . . .” Id. at 202; see also Int’l Transactions,

Ltd. v. Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589, 593-94 (5th

Cir. 2003) (rejecting recognition of ex parte Mexican court decree entered without

notice even though Mexican civil procedure permitted entry of ex parte order).

The “opportunity to be heard” is the sine qua non of due process, Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), and of judicial

recognition under principles of comity. “Notice is an element of our notion of due

process and the United States will not enforce a judgment obtained without the

bare minimum requirements of notice.” Int’l Transactions, Ltd., 347 F.3d at 594.

Because Defendants were given no notice of the Guatemalan proceeding

filed by Plaintiffs, and had no opportunity at all to be heard by the Guatemalan

court before or after the Guatemalan Ex Parte Order was issued, the Ex Parte

Order is not worthy of recognition and cannot be relied upon by Plaintiffs of the

Court as “proof” that the Guatemalan forum is, as Plaintiffs suggest, unavailable.


18

The Ex Parte Order would not be admissible in a legal proceeding and it cannot be

used against the Defendants as proof of anything (other than the fact that

Defendants were barred from participating in the Guatemalan proceeding). For

this reason, the Ex Parte Order should be given no dignity whatsoever.

Without a compelling evidentiary or factual basis to assert that Guatemala’s

courts are unavailable to Plaintiffs, there is no legal justification to find that

Guatemala’s courts are “closed” to the Plaintiffs or to grant reinstatement of

Plaintiffs’ claims in the district court. Moreover, even if the Ex Parte Order were

susceptible to recognition, the suspicious circumstances under which the Ex Parte

Order was procured, see infra at pages 18 et seq., militate strongly against giving it

any credence or recognition.

b. Plaintiffs Induced the Dismissal of Their lawsuit in Guatemala by Deliberately Drafting a Flawed Complaint Designed to Invite Its Dismissal

Plaintiffs engineered the dismissal of their own complaint in Guatemala

which they now happily embrace as a basis for reinstatement of their claims in the

United States. 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 resorted to suspicious machinations in the Guatemalan courts in the hope

of undoing it all. Recognizing that their only hope of having their claims reinstated

in the district court required Plaintiffs to be barred from litigating in Guatemala,


19

Plaintiffs filed a weak, incomplete, and deliberately misleading Complaint

calculated to induce the Guatemalan judge to refuse its admission on the basis of

Decree 34-97. R.234-2 (Chavez Decl., ¶¶ 10-17). Such Machiavellian tactics

preclude any relief.

For example, the Guatemalan complaint presented a handful of the facts

supporting Plaintiffs’ claims, but wholly omitted any request that the Guatemalan

Court should or could accept their case. Plaintiffs made no mention of the

previous criminal trial conducted in Guatemala concerning the same facts, the

same events, and the same perpetrators over which the Guatemalan courts had

jurisdiction. R.234.B.7. But most telling of Plaintiffs’ true motivation was the

Guatemalan Complaint’s gratuitous reference to the district court’s FNC Dismissal

Order and Plaintiffs’ selective and deceptive citation to those portions of Decree

34-97 that reject the forum non conveniens doctrine, but no citations to Article 2

and 3 that guarantee a Guatemalan national’s access to its courts. R.234.B.4-7.

First, as attested by Francisco Chavez, a Guatemalan legal expert, Plaintiffs’

reference to the FNC Dismissal Order coupled with the citation to Decree 34-97

was wholly unnecessary to state viable claims under Guatemalan law. R.234-2,

at 5. The reference to Decree 34-97 was contrary to any sincere effort to have the

Guatemalan Court accept Plaintiffs’ complaint; to the contrary, it was a

thinly-veiled invitation to the Guatemalan Court to dismiss their claims. Id.


20

Second, to ensure that the Guatemalan Court would refuse to hear the case,

Plaintiffs’ complaint quoted only those portions of Decree 34-97 that deemed the

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

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

extinguishes Guatemalan jurisdiction. R.234.B.5-6. Third, the Plaintiffs

deliberately chose not to cite the provisions of Decree 34-97 that guarantee

jurisdiction for Guatemalan nationals.

Article 2 of Decree 34-97 provides, in part, that Guatemalan jurisdiction is

revived if Plaintiffs file their Guatemalan claim “freely” and “spontaneously.”

Plaintiffs sabotaged their claims by failing to plead that their complaint was filed

“spontaneously and freely” and that Plaintiffs actually wanted to litigate their

claims in Guatemala. Most egregious of all, however, was Plaintiffs’ failure to cite

Article 3 of Decree 34-97, under which a Guatemalan court must “reassume”

jurisdiction to “avoid depriving Guatemalan nationals and residents of due

process.” Citation to these provisions, without more, would have sufficed to avoid

the rejection of Plaintiffs’ claims and required the Guatemalan Court to accept

Plaintiffs’ complaint. R.234.B.5-6. Plaintiffs’ blatant and conspicuous failure to

cite these controlling provisions of Decree 34-97 belie the argument, made in this

appeal, that they genuinely tried to have their claims heard by a Guatemalan


21

court.11 Courts in the U.S. have universally condemned the tactics Plaintiffs

employed in Guatemala.

For example, in Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013 (Fla. 3d

DCA 2008), rev. denied, 17 So. 3d 292 (Fla. 2009), the Florida District Court of

Appeal castigated the Plaintiffs for filing a complaint in Panama that “led with its

chin” because “[i]instead of limiting the . . . 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 Panama’s blocking statute.” Id. at 1015-16. The Scotts court

rejected such gamesmanship:

A plaintiff in a lawsuit dismissed here for forum non conveniens may not render an alternative forum ‘unavailable’ and thereby obtain reinstatement here by (a) itself inducing the foreign court to dismiss the foreign action. . . . [I]f our courts determine that a 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.”

11 Beyond their deceptive citation to selected portions of Decree 34-97, Plaintiffs also failed to advise the Guatemalan Court that their U.S. action had not been “validly” filed with a court with jurisdiction over all the parties given that the state court had dismissed Bandegua for lack of personal jurisdiction and the federal magistrate judge had also recommended dismissal for lack of personal jurisdiction. R.234.B.6; see Order Dismissing Bandegua for Lack of Personal Jurisdiction dated March 30, 2005, R.226.B; Report and Recommendation that Defendant Bandegua’s Motion to Dismiss Fourth Amended Complaint for Lack of Personal Jurisdiction be Granted, R.197. This simple fact would have further revealed that Decree 34-97 did not apply and assured the Guatemalan Court that it had jurisdiction over Plaintiffs’ claims. R.234.B.6-7.


22

Id. at 1017-18 (emphasis supplied).

The Scotts decision is consistent with “a long line of jurisprudence hold[ing]

that a plaintiff whose case is dismissed for forum non conveniens must litigate in

the foreign forum in good faith.” In re Air Crash Over the Mid-Atlantic on June 1,

2009, 792 F. Supp. 2d 1090, 1095 (N.D. Cal. 2011); see also 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.”); Gutierrez v.

Advanced Med. Optics, Inc., 640 F.3d 1025, 1031 (9th Cir. 2011) (“If the district

court determines that the primary reason the Mexican courts declined to take

jurisdiction of Plaintiffs’ case was Plaintiffs’ actions or inactions in the case, it

retains discretion to again order dismissal, with appropriate conditions, if any.”).

Several Courts of Appeals in other Circuits have held that a plaintiff may not

overcome a forum non conveniens dismissal based on “the unavailability of an

alternative forum when the unavailability is a product of its own purposeful

conduct.” Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV,

569 F.3d 189, 203 (4th Cir. 2009).

Another court has observed that, “[o]bviously, 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


23

(S.D. Ind. 2006). Under such circumstances, courts have refused reinstatement

when a foreign forum is deemed unavailable because a plaintiff has engineered his

own defeat. MBI Group, Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568,

573-74 (D.C. Cir. 2010) (a conditional forum non conveniens dismissal “does not

give the plaintiff license to deliberately prevent his suit in the foreign court from

going forward in order to render an alternative forum defective.”); In re

Bridgestone/Firestone, Inc., 420 F.3d 702, 707 (7th Cir. 2005) (same); Mendes

Junior Int’l Co., 394 F. App’x at 788 (plaintiffs drafted their foreign complaint to

minimize any contact or connection with Brazil and alleged that the case had no

contacts with Brazil); 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);

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), aff’d, 702 F.2d 47 (2d Cir. 1983); Snaza v. Howard Johnson

Franchise Systems, 2008 WL 5383155, at *6 n.4 (N.D. Tex. Dec. 24, 2008) (“Any

attempt by a plaintiff to file in the wrong court or file surreptitiously expressly to


24

defeat jurisdiction, of course, would be viewed as bad faith.”); In re Ecuadorean

Shrimp Litigation, 6 Fla. L. Weekly Supp. 767a, Case No. 94-10139 (Fla. 17th Cir.

Ct. Sept. 24, 1999) (reinstatement disallowed because plaintiffs attempted to have

their cases dismissed in Ecuador); Huang v. Advanced Battery Tech., Inc., 2011

WL 813600 at *2 (S.D.N.Y. Mar. 8, 2011) (denying request to reinstate lawsuit

dismissed on forum non conveniens grounds because “it appears that [plaintiff] has

not pursued his claims in China with any real diligence”); In re Compania Naviera

Joanna S.A. v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 203 (4th Cir.

2009) (“A party should not be allowed to assert the unavailability of an alternative

forum when the unavailability is the product of its own purposeful conduct.”);

Castillo v. Shipping Corp. of India, 606 F. Supp. 2d 497, 504 (S.D.N.Y. 1985) (“It

would be a strange world if a litigant could ‘bootstrap’ himself into a New York

court by missing the statute of limitations in the proper forum”).12

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

sought reinstatement in the U.S. after the Venezuelan courts refused jurisdiction

over the claims. Venezuelan law required that both the plaintiffs and defendants

submit to its jurisdiction and plaintiffs refused to do so. The district court refused 12 Because the Guatemalan Ex Parte Order was procured in bad faith, it 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 not procured in good faith and was not worthy of recognition).


25

to reinstate plaintiffs’ claims, holding “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

is entirely irrelevant. Id.; see also Bridgestone/Firestone Tire Products Liability

Litig.,, 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.”).

Plaintiffs’ failure to pursue their claims in Guatemala in good faith

disqualified Plaintiffs from obtaining relief under Rule 60(b) to vacate the FNC

Dismissal Order. Plaintiffs sabotaged the legal proceeding in Guatemala and, as a

result, the Guatemalan Ex Parte Order was indelibly tainted. As noted by the court

in Bridgestone/Firestone Tire Products Liability Litig., “[e]vidence of a plaintiffs’

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

which was rejected by the foreign court.” Bridgestone/Firestone Tire Products

Liability Litig., 470 F. Supp. 2d at 922, n.13. Those words hold true here.

In the face of this overwhelming body of law, Plaintiffs make the radical

contention that their case “must be reinstated” “if a foreign jurisdiction turns out to

be unavailable.” Initial Br., at 3, 22-23. There are no cases that actually support

this argument, and Plaintiffs cite none. The cases Plaintiffs do cite stand only for

the unremarkable proposition that “when intervening developments in a foreign


26

jurisdiction, subsequent to a district court’s initial forum non conveniens ruling,

could leave plaintiffs without an available forum in which to bring their claims, it

is appropriate to remand the matter back to the district court so it can reconsider its

decision based upon updated information.” Gutierrez, 640 F.3d at 1027; see also

Fidelity Bank PLC v. M/T Tabora, 333 F. App’x 735, 736 (4th Cir. 2009) (forum

non conveniens dismissal denied because Nigerian courts lacked subject matter

jurisdiction over plaintiff’s claims); In re Bridgestone/Firestone, Inc., 420 F.3d

702, 703 (7th Cir. 2005) (remanding to district court to determine whether

plaintiffs’ litigation actions in Mexico were taken in good faith); (remanding to

district court to determine whether Mexican orders declining jurisdiction of

plaintiff’s claims are deserving of recognition); Mercier v. Sheraton Int’l, Inc., 935

F.2d 419 (1st Cir. 1991) (dismissal ordered reversed, in part, so that district court

could consider whether Turkey was an adequate available forum).

Even Plaintiffs’ cases warn against reinstatement when a plaintiff has

manipulated his own defeat in the alternative forum. “If the district court

determines that the primary reason the Mexican courts declined to take jurisdiction

of Plaintiffs’ case was Plaintiffs’ actions or inactions in the case, it retains

discretion to again order dismissal, with appropriate conditions, if any.” Gutierrez,

640 F.3d at 1027; see also In re Bridgestone, 420 F.3d at 703 (“If, however, the

court concludes that the Morelos decisions are not entitled to recognition or that


27

the plaintiffs did not act in good faith and manipulated the dismissal of their case in

Mexico, the district court should regard itself as free once again to dismiss this

complaint.”). The record before the district court amply shows Plaintiffs’ bad faith

manipulations in Guatemala and, at a minimum, their eagerness to abandon their

claims when their ploy to obtain the Ex Parte Order proved so efficiently

successful.

c. Plaintiffs Assured Their “Defeat” in Guatemala by Failing to Seek Annulment or Appellate Review of the Guatemalan Ex Parte Order

Having succeeded in procuring the Guatemalan Ex Parte Order, Plaintiffs

guaranteed their “defeat” by deliberately refusing to file a nulidad or an appeal

despite having valid grounds and the ability to do so. It is undisputed that pursuant

to Articles 613-614 of the Guatemalan Civil and Commercial Procedural Code

Plaintiffs had the legal right to file a nulidad or annulment objecting to the

Guatemalan Ex Parte Order. R.234.B.3-4.

The district court found that Plaintiffs’ failure to file a nulidad or an appeal

of the Ex Parte Order disqualified them from obtaining the extraordinary remedy

of reinstatement under Rule 60(b):

Defendants’ expert, Mr. Chavez, explains in his declaration that under Guatemalan law a plaintiff “may object to an order refusing to admit a complaint by filing a written objection with the judge called a “nullidad” [sic] or “annulment.” He adds that “a plaintiff has the right to file a nullidad to request the annulment of an order refusing admission of a complaint within three days of receipt of official notice


28

of such order.” Decl. of Chavez at ¶ 6-7 (D.E. 234-2 at 4). In this case, Plaintiffs’ failure to file a nullidad in Guatemala and to exhaust their avenues for relief in their home country precludes this Court from finding the “exceptional circumstances” standard is met. . . . Absent that persistence by the Plaintiffs in the foreign jurisdiction, the Court cannot invoke the extraordinary remedy of Rule 60(b)(6) to grant relief.

R.265.12-13.

The district court rejected Plaintiffs’ assertion, repeated on appeal, see Initial

Br., at 31-34, that the Guatemalan Ex Parte Order was correct and that any appeal

in Guatemala would be frivolous and “unethical.” Initial Br., at 15. As noted

above, the record evidence supported the district court’s belief that, at a minimum,

colorable grounds existed to file a nulidad or appeal. The plain text of Decree

34-97 also belies Plaintiffs’ contention.13 Although the Ex Parte Order states that

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

No. 34-97 on their face establish that the Guatemalan courts continue to have

jurisdiction over Plaintiffs’ claims. R.234.B.7-8. Further, Plaintiffs should have

expressed to the Guatemalan judge in their complaint -- and certainly in a

13 Plaintiffs’ self-serving argument that there was no good faith basis to appeal the Ex Parte Order is belied by the fact that Plaintiffs perceived no ethical impediment to the filing their Guatemalan complaint in the first place. If the Guatemalan Ex Parte Order was so sound that an appeal or nulidad would be frivolous, then Plaintiffs’ Guatemalan complaint would have suffered from the same flaws. Apparently, Plaintiffs’ ethical qualms surfaced only after they were challenged by the Defendants and the district court to explain why they failed to file a nulidad or appeal.


29

nulidad -- that they wanted their claims adjudicated in Guatemala and were

bringing their claims “in a spontaneous and totally free manner,” as Article 2 of

Decree 34-97 expressly allows. R.234.B.5. Those statements would have

removed any doubt as to the Guatemalan Court’s jurisdiction to proceed with

Plaintiffs’ case. Id.

Further, because the Florida State Court had dismissed Bandegua for lack of

personal jurisdiction, and the magistrate judge had likewise recommended the

dismissal of Bandegua on identical grounds in the federal case, Plaintiffs should

have advised the Guatemalan Court that Decree 34-97 did not apply because

Plaintiffs had not “validly” filed a claim before a foreign tribunal “with

competence” over all the parties. R.234.B.6; see Order Dismissing Bandegua for

Lack of Personal Jurisdiction dated March 30, 2005, R.226.B; Report and

Recommendation that Defendant Bandegua’s Motion to Dismiss Fourth Amended

Complaint for Lack of Personal Jurisdiction be Granted, R.197.

While it is not the province of a U.S. court to sit in judgment of a foreign

court, the district court was empowered to determine that colorable grounds existed

for Plaintiffs to file a nulidad or appeal of the Guatemalan Ex Parte Order and that

Plaintiffs’ failure to do so disqualified them from Rule 60 relief. At a minimum, as

the district court found, a rational plaintiff sincerely pursuing claims in good faith

would have filed a nulidad objecting to the ruling. R.234.B.7-8. Plaintiffs’


30

decision to abandon their action in Guatemala is entirely inconsistent with their

legal obligation to prosecute their claims in good faith in the alternate forum.

The Second Circuit’s decision in Palacios is on all fours, both legally and

factually, with the instant case, and is instructive as to why reinstatement of the

Plaintiffs’ claims was properly denied by the district court.14 Palacios, 499 F.

App’x 54. In Palacios, as here, the plaintiffs were members of a Guatemalan labor

union who alleged that Coca-Cola was responsible for a wide range of violence

and intimidation perpetrated against them as a result of their union activities. After

a dismissal of their claims for forum non conveniens, the plaintiffs re-filed their

action in Guatemala in a manner designed to facilitate its dismissal under Decree

34-97 and, furthermore, neglected to advise the Guatemalan court of the savings

clauses of Articles 2 and 3 of Decree 34-97. Their ploy succeeded. The plaintiffs

then sought reinstatement of their case in the Southern District of New York,

14 Because they are represented by the same counsel, it is not surprising the litigation tactics employed by the plaintiffs in Palacios mirror precisely the litigation tactics employed by the Plaintiffs in the case at bar. In Palacios, after a dismissal of their claims for forum non conveniens, the plaintiffs re-filed their action in Guatemala in a manner designed to facilitate its dismissal under Decree 34-97, failed to cite Article 3 of Decree 34-97, elected to forgo the filing of a nulidad or appeal of the dismissal order, and sought reinstatement of their claims in the district court. When asked by the district court to explain why they did not appeal the Guatemalan order, the plaintiffs argued that an appeal would be frivolous. The district court was unpersuaded and refused to reinstate the plaintiffs’ claims. Palacios v. The Coca-Cola Co., No. Civ. 3120 (RJS), (S.D.N.Y. Aug. 18, 2011, D.E. 46). As noted above, the Second Circuit affirmed. Palacios, 499 F. App’x 54.


31

which was denied. On appeal, the plaintiffs argued that filing an appeal of the

Guatemalan dismissal order would have been frivolous, but the Second Circuit

disagreed:

Here, plaintiffs’ failure to meet the condition for reinstatement of their claims, set forth in the district court’s dismissal order, is entirely of their own making. In particular, plaintiffs declined to appeal the dismissal of their petition by the Guatemalan trial court, despite having a strong, good-faith basis for such an appeal.

* * * Here, plaintiffs identify no reason why Article 3 of the Defense Law does not grant Guatemalan courts with jurisdiction over their petition. For these reasons, we find plaintiffs’ contention that they did not have a good-faith basis for appealing the dismissal of their petition wholly unconvincing.

Palacios, 499 F. App’x at 56-57.15 See also In re Western Caribbean Airways,

2012 WL 1884684, at *3 (S.D. Fla. 2012) (despite having appealed to highest court

in France, plaintiffs were denied reinstatement because Plaintiffs urged French

court to reject jurisdiction); Scotts, 2 So. 3d at 1016-17 (despite there being no

express condition that Plaintiff must appeal in the foreign forum before seeking

reinstatement, court rejected reinstatement because Plaintiffs’ “‘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

15 Despite its obvious relevance to the issues presented in this appeal, Plaintiffs failed to cite the Second Circuit’s opinion in Palacios in their Initial Brief.


32

in Florida.”).16 Given the reasoning and holding of Palacios, it is difficult to see

how the district court’s refusal to reinstate Plaintiff’s claims under Rule 60 could

be viewed as an abuse of discretion.

The district court was also within its discretion to reject Plaintiffs’

contention that it failed to seek annulment or appellate review of the Guatemalan

Ex Parte Order because the FNC Dismissal Order did not expressly impose such a

condition. Initial Brief, at 19; R.265.12. However, as the district court recognized

and as the case law confirms, all forum non conveniens dismissal orders carry with

them an obligation to pursue claims in the alternative forum in good faith and to

support that forum’s exercise of jurisdiction over the case and the parties. See,

e.g., MBI Group, Inc., 627 F. Supp. 2d at 38 (“Implicit in this Court’s dismissal on

forum non conveniens grounds was a command that plaintiffs prosecute their

action in Cameroon in good faith.”); Gutierrez, 640 F.3d at 1031 (“If the district

court determines that the primary reason the Mexican courts declined to take

jurisdiction of Plaintiffs’ case was Plaintiffs’ actions or inactions in the case, it

retains discretion to again order dismissal, with appropriate conditions, if any.”);

Scotts, 2 So. 3d at 1017-18 (“[I]f our courts determine that a forum is available and

adequate, it is the obligation of the plaintiff to assent to jurisdiction there and to 16 Cf. Henderson v. Dunphy, 2009 WL 2858992 (S.D. Fla. Sept. 3, 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).


33

support that court’s exercise of jurisdiction over the matter and the parties.”).

If the obligation to litigate in good faith has any meaning, it must include the

parallel duty to pursue appellate relief when such relief is available and warranted.

The district court was, therefore, correct in refusing to reward Plaintiffs with

reinstatement when they failed to make any effort to seek annulment or appellate

review after the Guatemalan court rejected their complaint, particularly since valid

grounds for appeal obviously existed. R.265.12-13. The inescapable truth is that

Plaintiffs deliberately abandoned their lawsuit in Guatemala when any rational

plaintiff genuinely pursuing their claims in good faith would have filed a nulidad

or appeal in a sincere effort to obtain reversal of the Guatemalan Ex Parte Order.

Palacios, 499 F. App’x at 56-57; R.234.B.7-8.

Plaintiffs encouraged the Guatemalan court to reject their claims so they

could then throw themselves on the mercy of the district court and ask for

reinstatement. That ploy, attempted by litigants in other cases, was appropriately

rejected by the district court, and it should be rejected by this Court as well.

Plaintiffs’ decision to abandon their claims in Guatemala and not pursue any

appellate recourse fully justified the district court’s decision denying Rule 60(b)(6)

relief.17

17 The district court’s decision is also perfectly consistent with the approach typically taken by courts considering a forum non conveniens dismissal. E.g., Warter v. Boston Secs., S.A., 380 F. Supp. 2d 1299, 12315-16 (S.D. Fla. 2004) (no


34

B. Rule 60(b) Relief Is Unavailable to Relieve Plaintiffs From the Consequences of Their Deliberate Litigation Decisions

Plaintiffs contend that Rule 60(b)(6) relief must be granted here “to prevent

[Plaintiffs] from being denied any forum for litigating” their claims. Initial Br. at

35-36. Plaintiffs repeatedly proclaim -- with straight face -- that they are without a

forum through “no fault of their own.” See Initial Brief, at 3, 15, 36, 38, 42.

Plaintiffs, of course, must make these outlandish assertions because, even if they

were able to “prove” that the Guatemalan forum is, in fact, unavailable to them,

Plaintiffs would still not be entitled to Rule 60(b)(6) relief because they have only

themselves to blame for the result. It is clear that ‘“[t]he broad power granted by

clause (6) [of Rule 60(b)] is not for the purpose of relieving a party from free,

calculated, and deliberate choices he has made. A party remains under a duty to

take legal steps to protect his own interests.’” Dawson v. Compagnie Des Bauxites

De Guinee, 112 F.R.D. 82, 86 (D. Del. 1986) (quoting 11 Wright & Miller, Federal

Practice & Procedure, § 2864, at 214 (1973)).

From the inception of this case in August 2001 when Plaintiffs first elected

to file their claims in the Southern District of Florida rather than in their home reinstatement until highest court of Argentina affirms dismissal); Aguinda v. Texaco, Inc., 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); 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).


35

country, where all the events occurred and where virtually all the witnesses and

evidence was to be found, Plaintiffs have made a litany of deliberate strategic

choices from which they now want “relief” under Rule 60. First, Plaintiffs were,

of course, free to file their action in Guatemala rather than in the district court.

When they chose a U.S. forum, Guatemala had already adopted Decree 34-97 and

Plaintiffs were aware of the risk that the district court might dismiss their

“quintessentially Guatemalan” case pursuant to forum non conveniens. Second,

when Defendants moved to dismiss for forum non conveniens, Plaintiffs made the

considered calculation not to disclose the existence of Decree 34-97 to the district

court or to press its possible impact on the availability of Guatemalan as an

alternative forum. Plaintiffs undoubtedly made this strategic decision in the hope

of avoiding the operation of Article 3 of Decree 34-97, which expressly allows the

Guatemalan courts to reassume jurisdiction over the claims of Guatemalan

nationals when “a foreign judge is informed of the scope of [Decree 34-97] and he

declines to hear the case submitted to his jurisdiction.” R.265.10. Particularly

troubling is that Plaintiffs elected not to assert Decree 34-97 even though they had

specifically raised the same blocking law in the Florida State Court proceeding

three years before the FNC Dismissal Order was entered. See R.234.B.18-19.

Plaintiffs’ decision not to disclose Decree 34-97 to the district court was in

furtherance of Plaintiffs’ perverse plan to thwart their own claims if they were ever


36

required to re-file them in Guatemala.

The district court concluded that because it “was unaware of Decree 34-97

when it issued its order dismissing for forum non conveniens, Article 2 [sic] of

Decree 34-97 does not apply.” R.265.11. However, not only does the district

court’s decision wrongly reward Plaintiffs’ deliberate concealment, it is wrong on

this record. Plaintiffs contend in their brief that “neither the Defendants nor their

expert mentioned that jurisdiction would likely be refused under [Decree 34-97],”

Initial Br., at 19, but the record belies that assertion. The fact is that Defendants

did raise Decree 34-97 before the district court in their legal expert’s declaration,

who noted that Decree 34-97 was no bar to dismissal. See R.163-9.8.18 Plaintiffs,

on the other hand, intentionally waived their right to raise Decree 34-97 in

opposition to the Defendants’ forum non conveniens motion or in support of their

argument that Guatemala was not an available alternative forum. They also failed

to raise Decree 34-97 in the appeal before this Court of the FNC Dismissal Order.

They should not be permitted to raise Decree 34-97 for the first time in a collateral

attack of the FNC Dismissal Order or of this Court’s affirmance of that Order.

U.S. Equal Employment Opportunity Comm’n v. W & O, Inc., 213 F.3d 600, 620 18 While Articles 2 and 3 were not hotly litigated before the district court, that was only because Plaintiffs’ elected not to raise them at all. It should be noted, however, that Plaintiffs argued Decree 34-97 vigorously in the State Court Action. 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).


37

(11th Cir. 2000) (“Failure to raise an issue, objection or theory of relief in the first

instance to the trial court generally is fatal.”); Irving v. Mazda Motor Corp., 136

F.3d 764, 769 (11th Cir. 1998) (“Because Plaintiff failed to make this argument in

the district court, we decline to consider it here.”), cert. denied, 525 U.S. 1018

(1998); Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 (11th Cir.

1994) (“Judicial economy is served and prejudice avoided by binding the parties to

the facts presented and the theories argued below.”); Lisa, S.A. v. Gutierrez

Mayorga, 240 F. App’x. 822 (11th Cir. 2007) (Plaintiff’s “contention is not

properly before us because [Plaintiff] failed to raise it in the district court).

Plaintiffs’ questionable strategic choices did not end there. Plaintiffs

deliberately chose to wait three years after the FNC Dismissal Order was entered

before re-filing their claims in Guatemala. In doing so, Plaintiffs’ violated the

strict time limits of Rule 60(c) and exacerbated the extreme prejudice the district

court had already found Defendants would suffer. Then, after Plaintiffs finally

decided to re-file their claims in Guatemala, Plaintiffs chose to fashion a flawed

pleading in Guatemala designed to induce its rejection by a Guatemalan court.

Plaintiffs’ final and fatal strategic choice was their cynical decision to abandon

their lawsuit in Guatemala and not seek annulment or appeal of the Guatemalan Ex

Parte Order despite having the legal right and grounds to do so. Each of Plaintiffs’

strategic decisions led to the present circumstance from which Plaintiffs seek to be


38

relieved. However, “where a party makes a free and conscious choice regarding

the conduct of the litigation, he cannot be granted relief under Rule 60(b)(6) from

the consequences of that decision.” In re Western Caribbean Airways, 2012 WL

1884684, at *10.

Similarly, Rule 60(b) relief is not available when the circumstances

underlying the request for relief were foreseeable or within the parties

contemplation. See, e.g., Agostini v. Felton, 521 U.S. 203 (1997) (because the

circumstances relied on for relief were known when order was entered 12 years

earlier, they could not constitute a change in factual conditions warranting relief

under Rule 60(b)(5)). There is no question that at the time of the FNC Dismissal

Order, Plaintiffs were fully aware of Decree 34-97 and had already conceived their

plan to raise Decree 34-97 before the Guatemalan Court in the unabashed hope

their Guatemalan complaint would be rejected. See R.234.C.18-19. Rule 60(b)

relief is not available to a litigant who strategically plans his demise in the hope of

undoing a valid judgment. Ohio Valley Environmental Coalition v. Apogee Coal

Co., LLC, 744 F. Supp. 2d 561, 567 (S.D. W.Va. 2010) (where events relied on as

the basis for establishing a “significant change were anticipated” a Rule 60(b)(5)

modification should not be granted).

Moreover, Plaintiffs’ contention that they are “without a forum” flies in the

face of the plain language of Decree 34-97, which makes clear that Guatemala


39

remains an available forum should Plaintiffs sincerely want to litigate there. As

noted supra, Article 2 of Decree 34-97 expressly provides that even after a forum

non conveniens dismissal, the Guatemalan court’s jurisdiction is “renewed” if the

plaintiff’s claims are filed in a “spontaneous and free manner.” R.265.10.

Article 3 also provides for “reassumed” jurisdiction “to avoid depriving

Guatemalan nationals and residents of due process.” Consequently, Decree 34-97

still allows Plaintiffs to file a complaint in Guatemala.

C. Plaintiffs’ Motion to Vacate the FNC Dismissal Order Was Time-Barred

1. Plaintiffs Had, at Most, One Year From the Time of

the FNC Dismissal Order to Seek Reinstatement on the Basis of the Guatemalan Ex Parte Order

It is, of course, beyond question that a Rule 60(b)(2) motion seeking relief

from judgment predicated on “newly discovered evidence” cannot be made “more

than a year after the entry of the judgment or order or the date of the proceeding.”

Fed. R. Civ. P. 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)

(emphasis in original). The one year limitation applicable to Rule 60(b) motions is

jurisdictional and cannot be extended. Mitchell v. Rees, 261 F. App’x 825, 830


40

(6th Cir. 2008), cert. denied, 555 U.S. 1212 (2008); Arrieta v. Battaglia, 461 F.3d

861, 864 (7th Cir. 2006); Oliver v. Beard, 2012 WL 7963128, *2 (M.D. Pa. Dec.

27, 2012), report and recommendation adopted, 2013 WL 1632636 (M.D. Pa. Apr.

16, 2013); Walker v. Briggs, 2011 WL 5866232, *3 (N.D.N.Y. Nov. 22, 2011).

In the face of this strict jurisdictional bar, Plaintiffs waited more than three

years after the FNC Dismissal Order before even attempting to re-file their claims

in Guatemala. Plaintiffs contend that they waited until they had exhausted their

appellate rights. However, Rule 60 makes no allowances for these circumstances,

no matter how justified. The time for making a Rule 60(b) motion is not tolled or

extended 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); Bush v. Raytheon, Co., 2011 WL 1336386, *2 n.5 (M.D. Fla. Apr.

7, 2011); Copeland v. McNeil, 2009 WL 1229042, *2 (N.D. Fla. May 4, 2009). In

short, Plaintiffs’ tactical decision to wait three years to seek Rule 60 relief was

untimely.

The district court concluded that the Guatemalan Ex Parte Order was not

“new evidence, such that Rule 60(b)(2) and its time frame would be applicable. A

court order from Guatemala is not the traditional proof or testimony designed to

convince the judge or jury of the truth or falsity of key facts.” R.256.4. The


41

district court’s assessment, however, erroneously ignores the realities of forum non

conveniens litigation and, indeed, the very premise of Plaintiffs’ Motion to

Reinstate. The “key” factual finding that the Plaintiffs asked the district court to

vacate was its determination that Guatemala was an adequate and available

alternative forum in which Plaintiffs could litigate their claims, see FNC Dismissal

Order, R.212.6, and the “key” piece of alleged evidence that Plaintiffs relied on in

its Motion to Reinstate (indeed, the only piece of evidence) is the Guatemalan Ex

Parte Order. R.26.B.

While foreign orders may not be routine forms of proof that are typically

proffered to a fact finder in civil cases, they are frequently used by litigants seeking

to undo a forum non conveniens dismissal where a district court has found an

alternative foreign forum to be adequate and available. Indeed, many courts

require orders of foreign appellate tribunals before entertaining a motion to

reinstate a case dismissed under forum non conveniens. See, 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., 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), aff’d. as mod.,

303 F.3d 470 (2d Cir. 2002); Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1375

(S.D. Tex. 1995) (reinstatement available only if highest court of any foreign


42

country affirms dismissal for lack of jurisdiction).

Plaintiffs understood that their only chance to convince the district court that

its finding on the Guatemalan court’s availability was erroneous was to submit an

order of a Guatemalan court stating it had no jurisdiction. Without any evidence

on the issue of the Guatemalan Court’s unavailability, Plaintiffs had no basis at all

to file their Motion to Reinstate. Indeed, as Plaintiffs’ Initial Brief readily admits,

their entire reinstatement motion was predicated exclusively on the Guatemalan Ex

Parte Order. It was the linchpin to Plaintiffs’ so-called proof of unavailability.

Because Plaintiffs deliberately waited and waited and waited -- for three

years -- before even trying to obtain such an order, their motion for reinstatement

came far too late.

Moreover, Plaintiffs cannot escape the one-year deadline of Rule 60(b)(2) by

recasting their motion, as they attempt to do here, as one seeking relief under Rule

60(b)(6). While Rule 60(b)(6) motions may be made “within a reasonable time”

and the one-year limitation does not apply, this Court has warned 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

F. App’x 73, 75-76 (11th Cir. 1991); see also Liljeberg v. Health Services

Acquisition, Corp., 486 U.S. 847, 863 n.11 (1988) (“a party may ‘not avail himself

of the broad ‘any other reason’ clause of 60(b)’ if his motion is based on grounds


43

specified in clause (1) -- ‘mistake, inadvertence, surprise or excusable neglect.’

Rather, ‘extraordinary circumstances’ are required to bring the motion within the

“other reason” language and to prevent clause (6) from being used to circumvent

the 1-year limitations period that applies to clause (1). This logic, of course,

extends beyond clause (1) and suggests that clause (6) and clauses (1) through (5)

are mutually exclusive”); Lugo v. Secretary for Department of Corrections, 2010

WL 3743915 (S.D. Fla. Sept. 22, 2010) (same). The district court was therefore

obligated to deny Plaintiffs’ Motion for Reinstatement on this ground alone. Id.19

2. Plaintiffs’ Three-Year Delay Does Not Satisfy the “Reasonable Time” Standard Applicable to Rule 60(b)(6)

Even if the district court were permitted to excuse the Plaintiffs from the

one-year jurisdictional time-bar applicable to Rule 60(b)(2), Plaintiffs’ three year

delay does not come close to satisfying the “reasonable time” requirement of Rule

60(b)(6). Plaintiffs’ tactical decision to permit these proceedings to languish for

three years before taking any judicial steps to litigate their claims in Guatemala is

anything but “reasonable,” especially considering that Plaintiffs planned to

eventually invoke Decree 34-97 in Guatemala as a mean of securing the dismissal

of their claims.

What constitutes a “reasonable time” under rule 60(b)(6) “depends on the 19 Plaintiffs’ counsel conceded to the district court that new evidence was precisely what Plaintiffs were relying on as a basis for reinstatement. See supra note 10.


44

facts in an individual case, and in making the determination, courts should consider

whether the movant had a good reason for the delay in filing and whether the non-

movant would be prejudiced by the delay.” Ramsey v. Walker, 304 F. App’x 827,

828 (11th Cir. 2008); see also In re Diet Drugs, 383 F. App’x 242, 246 (3d Cir.

2010) (“[a] court considers many factors, including finality, the reason for the

delay, the practical ability for the litigant to learn the grounds relied upon earlier,

and potential prejudice to other parties.”).

The only excuse Plaintiffs offer to defend their three year delay is that they

were in the process of appealing the FNC Dismissal Order. R.241.5-6. But, as

Gulf Coast Building and Transit Casualty demonstrate, the pursuit of even a

meritorious appeal does not toll the time for making a Rule 60(b) motion and does

not excuse the appellant from moving expeditiously. Plaintiffs knew they would

invoke Decree 34-97 in Guatemala. There was no reason for Plaintiffs to have

waited three before playing that gambit in the Guatemalan Court.

Plaintiffs argued below, and the district court agreed, that it was not

improper for Plaintiffs to have exhausted their appellate rights before re-filing their

claims in Guatemala. R.265.8. That reasoning is flawed because it rewards

unlimited delay and because, as here, Plaintiffs intended all along to raise Decree

34-97 in Guatemala to cause their own defeat. It is undeniably true that Plaintiffs

had a right to exhaust their appellate rights, but it does not follow, as the district


45

court noted, that “[h]ad [Plaintiffs] re-filed Guatemala, there would have been no

point to appealing here.” R.256.5. First, there was a compelling “point” to re-

filing in Guatemala: If, as Plaintiffs hoped, the Guatemalan courts legitimately

refused to hear their claims, they could have returned to the district court with

“evidence” of that refusal in hand demonstrating that Guatemala was an

unavailable forum. Second, while there is no denying that Plaintiffs’ pursuit of

appeals could theoretically have resulted in a reversal, that is true in all cases

where final orders are appealed. The time limits of Rule 60(b) may not be ignored

because an appeal may succeed. Significantly, there would have been no prejudice

to Plaintiffs if they had re-filed their claims in Guatemala shortly after the FNC

Dismissal Order was issued. If the FNC Dismissal Order had been reversed on

appeal, Plaintiffs could have stayed or dismissed their Guatemalan action and

returned to the district court. Third, if Plaintiffs’ claims had been timely re-filed in

Guatemala, their case would be substantially advanced, maybe even completed.

Their delay in re-filing, however, only exacerbates the extreme prejudice that

Defendants will suffer if required to defend against claims stemming from events

occurring in Guatemala nearly 14 years ago. After all, the district court’s FNC

Dismissal Order was predicated in large part on its finding, affirmed by this Court

on appeal, that nearly all of the evidence and witnesses concerning the alleged

mental “torture” were located in Guatemala. See Aldana II, 578 F.3d at 1293


46

(“The district court squarely took account of our requirement that there be ‘positive

evidence of unusually extreme circumstances,’ and that the court be ‘thoroughly

convinced that material injustice is manifest before exercising any such discretion

as may exist to deny a United States citizen access to the courts of this country.’”).

In short, Plaintiffs’ strategic decision to wait three years after the FNC Dismissal

Order before even re-filing their claims in Guatemala was not reasonable and their

motion to vacate the FNC Dismissal Order came far too late.

D. Reinstatement Would Undermine the Court’s Sovereign Authority and Eviscerate the Doctrine of Forum Non Conveniens Aside from Plaintiffs’ questionable litigation tactics in Guatemala, Plaintiffs’

attempt to utilize a foreign blocking law specifically designed to nullify the forum

non conveniens doctrine should not be countenanced. This “quintessentially

Guatemalan” case represents a model for application of forum non conveniens.

Nevertheless, Plaintiffs embrace a foreign law intentionally fashioned to negate the

forum non conveniens doctrine in the hope of undoing the district court’s FNC

Dismissal Order and this Court’s affirmance of that order. The notion that a U.S.

court must assume jurisdiction over Plaintiffs’ claims pursuant to a blocking law

adopted by a foreign government is unsettling, at best. If the Court were to grant

Plaintiffs reinstatement and construe Decree 34-97 as Plaintiffs propose, it would

amount to an affront to American sovereignty, a surrender of a federal court’s

ability to apply the doctrine of forum non conveniens, and an unwise infringement


47

on the federal judiciary’s constitutional authority to decide cases.20

Not surprisingly, no court in the United States has ever concluded that,

under the factual circumstances presented here, a foreign country’s blocking law

requires the reinstatement of a plaintiff’s claim or that the foreign country’s courts

must be deemed “unavailable.” For example, the Scotts court said:

[O]ur courts cannot be compelled by other countries’ courts and lawmakers to resolve cases that should be determined in those countries. In the present case . . . the case plainly belongs in Panama. Scotts’ products were applied to Hacienda’s orchids there; the orchids were allegedly damaged there; and the alleged damages were suffered there by a company incorporated and based there. Florida “has no interest in adjudicating the dispute of a Panama corporation whose property was injured in Panama by events taking place there.” 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.

Scotts, 2 So. 3d at 1017-18.

Likewise, in considering the impact of Ecuador’s blocking law another

20 Commentators have emphasized that any foreign country’s law 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).


48

Florida court explained:

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. Indeed, the Second Circuit

in Palacios rejected the plaintiffs’ effort to use Decree 34-97 to force reinstatement

of their claims in the Southern District of New York. Palacios, 499 F. App’x at

56-57 (affirming district court’s denial of Plaintiffs’ motion for reinstatement after

FNC dismissal to Guatemala notwithstanding Guatemalan court’s rejection of

Plaintiffs’ Guatemalan complaint pursuant to Decree 34-97).

Federal and state courts, including the courts in the related Stare Court

Action, have steadfastly refused to find that blocking laws render a foreign forum

unavailable merely because of a prior U.S. filing and a forum non conveniens

dismissal. See e.g., 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) (rejecting reinstatement despite Decree 34-97); Aguinda, 142 F. Supp. 2d at

547 (court dismissed plaintiffs’ claims under forum non conveniens despite

plaintiffs’ assertion that Ecuador’s blocking law rendered Ecuador unavailable),

aff’d, 303 F.3d 470 (2d Cir. 2002); Morales v. Ford Motor Co., 313 F. Supp. 2d


49

672, 675-76 (S.D. Tex. 2004) (rejecting plaintiffs’ argument that under

Venezuela’s blocking statute Venezuela would not retain jurisdiction given that

plaintiffs first sued in the U.S. saying, “[t]his court rejects the Plaintiffs’

availability-related arguments and finds that Venezuelan courts are an available

and adequate alternative forum.”); 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); Lisa v.

Gutierrez, 2007 WL 1654482, *2-3 (Fla. 11th Cir. Ct. May 17, 2007) (rejecting

plaintiffs’ argument that Guatemala was unavailable due to the Decree-34-97, the

Guatemalan blocking law at issue here), aff’d, 992 So. 2d 413 (Fla. 3d DCA

2008).21

21 Plaintiffs’ assertion that Guatemala is unavailable is also contrary to the determination of every other court to ever assess the availability of Guatemala as an alternative forum. See Lisa, S.A. v. Gutierrez Mayorga, 441 F. Supp. 2d 1233 (S.D. Fla. July 18, 2006), aff’d, 240 F. App’x. 822 (11th Cir. 2007) (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.


50

E. Reinstatement of Plaintiffs’ Claims Would Be Futile

Finally, two recent decisions of the U.S. Supreme Court make clear that

reinstatement of Plaintiffs’ Fourth Amended Complaint would be futile. In

Mohamad v. Palestinian Authority, __ U.S. __, 132 S.Ct. 1702, 1711 (2012) the

Court ruled that claims for violations of the Torture Victim Protection Act, 28

U.S.C. § 1350, note, as alleged in Count II of Plaintiffs’ Fourth Amended

Complaint, R.156, may not be maintained against corporate entities such as

Defendants.

In Kiobel v. Royal Dutch Shell, __ U.S. __, 2013 WL 1628935 (Apr. 17,

2013) the Court held that the Alien Tort Statute, 28 U.S.C. § 1350, the statutory

basis of Plaintiffs’ claims in Count I of the Fourth Amended Complaint, R.156, has

no extraterritorial effect, and an ATS claim “seeking relief for violations of the law

of nations occurring outside the United States is barred.” Id. at *10 (“[A]ll the

relevant conduct took place outside the United States. And even where the claims

touch and concern the territory of the United States, they must do so with sufficient

force to displace the presumption against extraterritorial application.”) Because

Plaintiffs’ claims “seek[] relief for violations of the law of nations occurring

outside the United States” -- indeed, all of the conduct allegedly occurred in 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).


51

Guatemala -- the claims are barred by Kiobel.

Because Plaintiffs’ TVPA and ATS claims are barred by Mohamad and

Kiobel, it would be futile for the Court to reinstate them in the district court. Cf.

Monjar v. Higgins, 132 F.2d 990, 994 (2d Cir. 1943) (affirming since “it would be

futile to reverse and remand” because the district court “would be shown to lack

jurisdiction”).

F. The District Court Correctly Refused to Grant 60(d)(1) Relief

As a last gasp, Plaintiffs contend that the district court erred in not granting

relief under Rule 60(d)(1). The district court was within its discretion in refusing

Rule 60(d)(1) relief. The Supreme Court has made clear that Rule 60(d)(1) cannot

be used to simply circumvent the strict time limitations applicable to Rule 60(b):

If relief may be obtained through an independent action in a case such as this, where the most that may be charged against the Government is a failure to furnish relevant information that would at best form the basis for a Rule 60(b)(3) motion, the strict 1-year time limit on such motions would be set at naught. Independent actions must, if Rule 60(b) is to be interpreted as a coherent whole, be reserved for those cases of “injustices which, in certain instances, are deemed sufficiently gross to demand a departure” from rigid adherence to the doctrine of res judicata.

United States v. Beggerly, 524 U.S. 38, 46 (1998). Accordingly, Rule 60(d)(1)

relief is only available if the movant can establish that relief is required to “prevent

a grave miscarriage of justice.” Id. at 47; United States v. Tarver, 2013 WL

1405934, *2 n.2 (M.D. Fla. April 8, 2013).


52

This Court has identified the elements for Rule 60(d)(1) relief as “(1) a

judgment which ought not, in equity and good conscience, to be enforced; (2) a

good defense to the alleged cause of action on which the judgment was founded;

(3) fraud, accident, or mistake which prevented the defendant in the judgment from

obtaining the benefit of his defense; (4) the absence of fault or negligence on the

part of defendant; and (5) the absence of any adequate remedy at law.” Travelers

Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985). Plaintiffs’ Rule

60(d)(1) request fails this test.

As shown above, Plaintiffs cannot show that the Guatemalan forum is

genuinely unavailable to them. As a result, Plaintiffs cannot show that the FNC

Dismissal Order is “a judgment which ought not, in equity or good conscience, to

be enforced.” Id. Further, the record makes plain that Plaintiffs concealed Decree

34-97 from the district court and then made suicidal allegations in Guatemala in a

deliberate effort to have their case rejected there. It is thus clear that Plaintiffs’

own actions were intended to, and did, procure the Guatemalan Ex Parte Order.

Consequently, Plaintiffs fail to satisfy the first, third, and fourth elements

necessary for extraordinary equitable relief under Rule 60(d)(1) and preclude them

from showing that relief is “required to prevent a grave miscarriage of justice.”

See Beggerly, 524 U.S. at 46-47. The district court was correct to refuse Plaintiffs’

effort to invoke Rule 60(d)(1).


53

VII. CONCLUSION

For the reasons set forth above, Defendants respectfully request the Court to

affirm the District Court’s order denying Plaintiffs’ Motion to Reinstate.

Respectfully submitted,

Dated: May 1, 2013 STACK FERNANDEZ ANDERSON & HARRIS, P.A. Attorneys for Appellees/Defendants 1200 Brickell Avenue, Suite 950 Miami, Florida 33131-3225 Telephone: 305-371-0001 Facsimile: 305-371-0002

By: s/ Brian J. Stack

Brian J. Stack Florida Bar No. 0476234 E-mail: [email protected]


54

CERTIFICATE OF COMPLIANCE PURSUANT TO RULE 32(a), FED. R. APP. P.

I hereby certify that:

1. This brief complies with the type-volume limitations of Fed. R. App.

P. 32(a)(7)(B) because this brief contains 13,489 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in proportionally spaced typeface using Microsoft Word in

14 point Times New Roman.

By: s/ Brian J. Stack Brian J. Stack Florida Bar No. 0476234


55

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 1st day of May 2013 a true and correct

copy of the foregoing was delivered by U.S. mail and electronic mail to:

Terry Collingsworth, Esq. Email: [email protected]

Conrad & Scherer Attorneys for Appellants

1156 15th Street, NW, Suite 502 Washington, D.C. 20005

Telephone: (202) 543-5811 Facsimile: (866) 803-1125

By: s/ Brian J. Stack Brian J. Stack Florida Bar No. 0476234


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