Case 0:08-md-01916-KAM Document 2499 Entered on FLSD Docket 07/01/2019 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN TORT
STATUTE AND SHAREHOLDERS
DERIVATIVE LITIGATION
/

This Document Relates To:

ATS CASES
_______________________________________ /

ORDER DIRECTING SUBMISSION OF SUPPLEMENTAL BRIEFING

ON HEARSAY CHALLENGES TO PLAINTIFFS’ PROFFERED
CAUSATION EVIDENCE ON SUMMARY JUDGMENT
PURSUANT TO FED.R.CIV. P. 56(c)(2)

THIS CASE is before the Court on Defendants’ Joint Motion for Summary Judgment on

Colombian Law Claims [DE 2283, 2302] and the Individual Defendants Motion for Summary Judgment

on the TVPA claims [DE 2295, 2304 ]. As a central tenet, both motions challenge whether a triable issue

of fact presents on the question of AUC responsibility for the death of each bellwether Plaintiff’s decedent.

Defendants contend that Plaintiffs do not adduce any admissible, competent evidence on this point, and that

without such evidence Plaintiffs fail to adduce evidence on an essential element of all claims (causation)

sufficient to withstand summary judgment.1

Under Rule 56(c)(2), “[a] party may object that the material cited to support or dispute a fact cannot

be presented in a form that would be admissible in evidence.” The Advisory Committee’s note to this 2010

amendment to Rule 56 further states “[An] objection [under Rule 56(c)(2)] functions much as an objection

at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is

1
In their initial motion, Defendants generally contended that Plaintiffs failed to adduce admissible nonhearsay
evidence on this point in regard to each death. In their reply brief, Defendants more particularly identified alleged
hearsay problems with various pieces of evidence adduced by Plaintiffs in support of their claims on the issue of AUC
responsibility and involvement in each death.
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admissible as presented or to explain the admissible form that is anticipated.” See Abbot v. Elwood Staffing

Services, Inc., 44 F. Supp. 3d 1125 (N.D. Ala. 2014) (citing Advisory Committee’s note).

This Court previously denied Plaintiffs’ request for an opportunity to submit a surreply brief

addressing Defendants’ hearsay challenges to their evidence proffered on this issue in opposition to the

Defendants’ motion for summary judgment [DE 2469]. Notwithstanding Plaintiffs’ failure to address

specifically Defendants’ hearsay challenges to their evidence on this point in their opposition briefs, the

Court has now determined that it will allow a supplementation of the summary judgment briefing upon this

specific, narrow point within the confines of the prescriptions which follow. See generally Jones v. UPS

Ground Freight, 683 F. 3d 1283, 1293-94 (11th Cir. 2012); Benjamin v. Thomas, 766 Fed. Appx. 834 (11th

Cir. 2019); Garside v. Osco Drug, Inc. 895 F.2d 46 (1st Cir. 1990); Henry v. Colonial Baking Co. of Dothan,

952 F. Supp. 744, 750 (M.D. Ala. 1996).

It is accordingly ORDERED AND ADJUDGED:

1. Addressing each specific designated bellwether Plaintiff’s decedent2, the non-Wolf “ATS”

Plaintiffs are directed to file a supplemental brief, not to exceed FIFTEEN (15) PAGES

2
The eleven bellwether Plaintiffs (non-Wolf) selected for summary judgment briefing and bellwether trials have
been designated by the parties as follows:
1. Ana Ofelia Torres Torres (10-60573-CIV-MARRA (Montes)
2. Gloria Eugenia Munoz (10-60573-CIV-MARRA (Montes)
3. Nancy Mora Lemus (08-80480-CIV-MARRA) (Manjarres)
4. Pastora Durango (10-60573-CIV-MARRA) (Montes)
5. Jane Doe 46 (08-80465-CIV-MARRA) (D.C. Action Does 1-144)*
6. Jane Doe 7 (08-CIV-80421-MARRA) (N.J. Plaintiffs)
7. Juana Doe 11 and Minor Doe 11A (07-CIV-60821-MARRA) (Carrizosa)
8. Juvenal Enrique Fontalvo (08-80480-CIV-MARRA)(Manjarres)
9. Juana Perez 43A (08-80465-CIV-MARRA) (D.C. Action Does 1-144)
10. Seven surviving children of Jose Lopez 339 (08-80508-CIV-MARRA)(Valencia)
11. John Doe 7 (08-80421-CIV-MARRA) (N.J. Plaintiffs)
[DE 2218] [DE 2244].
*The claim of Jane Doe 46 does not involve allegations of an AUC-related death but rather alleges a guerilla-
based death (decedent Peter Doe 46). This Plaintiff has moved to sever her claims from the designated bellwether
(continued…)
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in length, which shows that the specific material(s) presented on the issue of AUC

responsibility for each death is either admissible as presented, OR, Plaintiffs shall explain

the admissible form that is anticipated at trial. If the latter option is elected, Plaintiffs shall

specifically explain how they could or would satisfy a hearsay exception at trial, or, how

they could or would introduce admissible evidence on the point through a specific witness

who is both available and competent to testify to the facts at trial. In this instance, Plaintiffs

shall identify a specific place in the existing summary judgment record (by docket entry

number (or sub-docket entry number e.g. XX-1, XX-2), and a specific page number, where

the witness is identified, and where the contents of anticipated trial testimony may be

found.

The Wolf Plaintiffs shall file a separate consolidated supplemental brief on the AUC

connection to each death point not to exceed SEVEN (7) PAGES in length.

Plaintiffs shall submit a line-by-line response to each objection lodged by Defendants.

Where record citations are supplied, Plaintiffs shall NOT cite to a paragraph contained

in their own or Defendants’ “Statement of Material Facts” (SOMF), statements which

generally offer the parties’ respective cumulative summaries of evidence found throughout

cases selected for summary judgment briefing and trial [DE 2322] and the Court has determined to grant the requested
severance. Therefore, this Order governs submission of supplemental briefing on the remaining ten bellwether
plaintiffs identified in the above list.
A twelfth bellwether plaintiff, drawn from Case No. 10-60573 (Montes) was previously dismissed pursuant to
stipulation of the parties [DE 2244, p. 1].
From the Wolf plaintiffs, the following bellwether Plaintiffs have been selected for summary judgment briefing
only:
1. Doe 840 (10-80652-CIV-MARRA)
2. Doe 378 (10-80652-CIV-MARRA)
The Wolf Plaintiffs also seek to include Doe 265 from Case 11-80404 (Does 1-677) to this mix, explaining that they
inadvertently included this Plaintiff in their original bellwether designation, and that this Plaintiff in any event presents
a good case for summary judgment briefing. Defendant, however, has objected to the proposed amendment of the
Wolf Plaintiffs’ bellwether designations and the Court has determined to sustain the objection and exclude this
Plaintiff from consideration in the current summary judgment briefing.
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the voluminous record; rather, Plaintiffs shall provide a citation to a specific location in

the record where the source evidence on a specific point may be found (by reference to a

topical description of the item and a specific docket entry and page number within the

docket entry where the item may be found).

2. Where documentary evidence is proffered, Plaintiffs shall – in addition to addressing any

applicable hearsay challenges—further explain how they intend to authenticate the

document(s) at trial. This discussion shall include, without limitation, an explanation of

how Plaintiffs anticipate the authentication of the following previously-cited documents:

(a) “Record 138” captioned “Preliminary hearing for filing of partial and additional

indictment and imposition of measure to ensure appearance at trial,” as to Raul Emilio

Hasbun Mendoza and others (“Hasbun Indictment”) [DE 2346-78];

(b) Bogota Superior Court, Justice and Peace Division, 2015 “Sentencia” of Mangones

Lugo [DE 2346-72]

(c) “First Instance Judgment” of Fredy Rendon Herera alias El Aleman [DE 2346-93];

(d) Various Justice and Peace Law file contents, including Colombian prosecutors’ letters

to war crime victims;

3. Plaintiffs shall present their supplemental briefing on this evidentiary challenge in

separately numbered paragraphs, captioned by the name of each specific decedent, to be

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followed by an itemization of the evidence anticipated for introduction at trial as it pertains

to that specific decedent.

4. Plaintiffs shall file their supplemental briefing on this point by no later than MONDAY

JULY 15, 2019 (One consolidated statement shall be filed by the non-Wolf Plaintiffs, and

one consoldiated statement filed by the Wolf Plaintiffs) .

5. Defendants shall file a single consolidated response to the Plaintiffs’ supplemental briefs,

not to exceed TWENTY-TWO (22) PAGES in length, by no later than MONDAY JULY

22, 2019.

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 1st day of July

2019.

KENNETH A. MARRA
United States District Judge

cc. all counsel