No E IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. ANGEL ALDANA, et. al. Plaintiffs / Appellants,

Transcription

1 Case: Date Filed: 05/15/2013 Page: 1 of 41 No E IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ANGEL ALDANA, et. al. Plaintiffs / Appellants, v. DEL MONTE FRESH N.A., et. al. Defendants / Appellees. On Appeal from United States District Court for the Southern District of Florida Case No.: 1:01-cv FAM Honorable Federico A. Moreno APPELLANTS REPLY BRIEF Terrence P. Collingsworth CONRAD & SCHERER, LLP th St., NW, Suite 502 Washington, DC Attorneys for Appellants, Aldana, et. al.

2 Case: Date Filed: 05/15/2013 Page: 2 of 41 CERTIFICATE OF INTERESTED PERSONS Pursuant to Eleventh Circuit Rule , appellants certify that, to the best of counsel s knowledge, the certificate of interested persons filed in Appellants Opening Brief and Appellees Response Brief is complete. /s/ Terry Collingsworth Terrence P. Collingsworth Conrad & Scherer, LLP Attorneys for Plaintiffs-Appellants ii

3 Case: Date Filed: 05/15/2013 Page: 3 of 41 TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY OF ARGUMENT II. ARGUMENT.. 3 A. Because Guatemala Definitively Refused Jurisdiction, the District Court Erred by Disregarding The Clear FNC Requirement that an Alternative Forum Be Available B. Plaintiffs Also Satisfied the Standards for Relief Pursuant to Federal Rule of Civil Procedure 60(b) Rule 60(b)(6) Applies to Plaintiffs Claims and Their Motion for Reinstatement Was Timely... 7 a. Plaintiffs Motion for Reinstatement is Properly Considered Under Fed. R. Civ. P. 60(b)(6).. 7 b. Plaintiffs Motion for Reinstatement Was Made Within A Reasonable Time Plaintiffs Satisfied the Substantive Requirements of Rule 60(b)(6).. 9 a. The Guatemalan Order is Entitled to Recognition... 9 b. Plaintiffs Filed an Accurate and Complete Complaint in Guatemala, and the District Court Did Not Find Otherwise..12 c. Plaintiffs Litigation Decisions Do Not Bar Rule 60(b) Relief i. Del Monte s Argument that Plaintiffs Should have Affirmatively Raised Decree Before FNC Dismissal Misstates the Law and Procedural History iii

4 Case: Date Filed: 05/15/2013 Page: 4 of The District Court s FNC Dismissal Did Not Require Plaintiffs to Appeal in Guatemala, but Regardless, the Decision Was Not Appealable C. Granting Plaintiffs Reinstatement Does Not Pose Concerns of Comity or Eviscerate the FNC D. Plaintiffs Also Satisfied the Standards for Relief Pursuant to Federal Rule of Civil Procedure 60(d)(1) E. Plaintiffs Claims are Not Futile After Kiobel v. Royal Dutch Petroleum III. CONCLUSION. 29 iv

5 Case: Date Filed: 05/15/2013 Page: 5 of 41 TABLE OF AUTHORITIES CASES 1 Aldana v. Del Monte Fresh Produce, N.A., Inc., Case No CA 20 (Fla. 11th Cir. Ct. May 30, 2005) aff d, 922 So. 2d 212 (Fla. 3d DCA 2006) F.3d 1242 (11th Cir. 2005)... 1, F.3d 1283 (11th Cir. 2009)... 3, WL (S.D. Fla. Oct. 30, 2012).... in passim Aguinda v. Texaco, 142 F. Supp. 2d 534 (S.D.N.Y. 2001) Bridgestone/Firestone, Inc., 190 F. Supp. 2d 1125 (S.D. Ind. 2002).. 24 Castillo v. Shipping Corp. of India, 606 F. Supp. 497 (S.D.N.Y. 1985) 16 Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d 189 (4th Cir. 2009) Coventry First, LLC v. McCarty, 605 F.3d 865 (11th Cir. 2010) Cruz v. Mar. Co of Philippines, 655 F. Supp (S.D.N.Y. 1987).. 3, 15 De Paula v. Jackson, 1995 WL (S.D.N.Y. Nov. 29, 1995) Esfeld v. Costa Crociere, 289 F.3d 1300 (11th Cir. 2002) Fidelity Bank PLC v. M/T Tabora, 333 F. App x 735 (4th Cir. 2009) Appellants do not rely on any one particular authority. v

6 Case: Date Filed: 05/15/2013 Page: 6 of 41 Ford v. Brown, 319 F.3d 1302 (11th Cir. 2003) rev d on other grounds, 549 U.S. 422 (2007) Galbert v. W. Caribbean Airways, 2013 WL (11th Cir. May 6, 2013)....8 Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572 (D.C. Cir. 1980) Gulf Oil. Corp. v. Gilbert, 330 U.S. 501 (1947).. 25 Hilton v. Guyot, 159 U.S. 113 (1895).. 10 Huang v. Advanced Battery Technologies, Inc., 2011 WL (S.D.N.Y. Mar. 8, 2011)...16 In re Bridgestone/Firestone, Inc., 420 F.3d 702 (7th Cir. 2005) In re Bridgestone/Firestone, Inc. Tires Products Liab. Litig., 470 F. Supp. 2d 917 (S.D. Ind. 2006) , 17 In re Ford Motor Co., 591 F.3d 406 (5th Cir. 2009)... 4 In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279 (7th Cir. 1992) Int l Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589 (5th Cir. 2003) vi

7 Case: Date Filed: 05/15/2013 Page: 7 of 41 Jennings v. BIC Corp., 181 F.3d 1250 (11th Cir.1999).. 28 Kiobel v. Royal Dutch Petroleum, 133 S.Ct (2013)....26, 27, 28 Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947).. 23 Leon v. Million Air, Inc., 251 F.3d 1305 (11th Cir. 2005) , 19 Lisa v. Gutierrez, 2007 WL (Fla. 11th Cir. Ct. May 17, 2007) Malay Int l Shipping Corp. v. Sinochem Int l Co., 436 F.3d 349 (3d Cir. 2006) 4 MBI Grp., Inc. v. Credit Foncier du Cameroun, 627 F. Supp. 2d 35 (D.D.C. 2009) aff d, 616 F.3d 568 (D.C. Cir. 2010). 15 Mendes Junior Int l Co. v. Banco do Brasil, S.A., 394 F. App x 787 (2d Cir. 2010)... 8, 16 Morales v. Ford Motor Co., 313 F. Supp. 2d 672 (S.D. Tex. 2004) , 25 Morrison v. Nat l Australia Bank Ltd., 130 S. Ct (2010)... 26, 27 Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). 29 Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146 (2d Cir. 2005).. 23 Palacios v. The Coca-Cola Co., 499 F. App x 54 (2d Cir. 2012) vii

8 Case: Date Filed: 05/15/2013 Page: 8 of 41 Paulownia Plantations De Panama Corp. v. Rajamannan, 793 N.W. 2d 128 (Minn. 2009). 24 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) Reno v. Catholic Social Sers., 509 U.S. 43 (1993) 29 Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987). 9, 20 Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013 (Fla. 3d DCA 2008) 24 Snaza v. Howard Johnson Franchise Sys., Inc., 2008 WL (N.D. Tex. Dec. 24, 2008).. 15 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).. 28 Syndicate 420 at Lloyd s London v. Early American Ins. Co., 796 F.2d 821 (5th Cir. 1986)... 4 United States v. Beggerly, 524 U.S. 38 (1998) 26 STATUTES 28 U.S.C RULES Fed. R. Civ. P. 15(a)(2) Fed. R. Civ. P. 60(b)(6) , 7, 8, 18 viii

9 Case: Date Filed: 05/15/2013 Page: 9 of 41 OTHER AUTHORITIES Breach of Neutrality, 1 Op. Att y. Gen. 57 (1795) ix

10 Case: Date Filed: 05/15/2013 Page: 10 of 41 I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiffs are U.S. residents who sued Del Monte, a U.S. corporation. Plaintiffs received asylum in the United States after they were confined for over eight hours at gun point, which this Court held constituted torture under the Torture Victims Protection Act (TVPA) and Alien Tort Statute (ATS), 28 U.S.C Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, (11th Cir. 2005). The only issue before this Court is the District Court s error in denying reinstatement after Guatemala refused jurisdiction over Plaintiffs claims, leaving them with no forum in which to litigate their human rights case. Under such circumstances, the forum non conveniens (FNC) doctrine bars dismissal and mandates reinstatement. Del Monte argues Plaintiffs cannot obtain Rule 60 relief by falsely accusing Plaintiffs of pursuing their claims in Guatemala in bad faith, with the designed intent of returning to a U.S. court. The District Court, however, never found that Plaintiffs exercised bad faith. In fact, Plaintiffs expert explained that their Guatemalan counsel disclosed the necessary and proper information to the Guatemalan court. To support its accusations that Plaintiffs acted in bad faith, Del Monte cites inapplicable cases involving egregious circumstances in which the plaintiffs

11 Case: Date Filed: 05/15/2013 Page: 11 of 41 sabotaged their cases or deliberately concealed pertinent information, increasing the likelihood of dismissal so they could pursue claims in the U.S. Those circumstances are not present here. Del Monte also attacks the ex parte nature of the Guatemalan Order. Del Monte s own expert, however, attested that the procedure Plaintiffs and the Guatemalan court followed in this regard was proper. Unable to gain traction with its bad-faith accusations, Del Monte tries to rewrite conditions into the District Court s original FNC order. The District Court, however, imposed no requirement that Plaintiffs appeal the Guatemalan court s refusal to accept jurisdiction. Regardless, the Guatemalan decision was not appealable because it was incontrovertibly correct. At the core of the doctrine of FNC is a concern with an available forum and convenience, but it is not a doctrine of exclusion. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). The District Court s refusal to reinstate this case is an affront to the protections that every Circuit has developed for plaintiffs when a foreign forum is unavailable. Plaintiffs respectfully request their case be reinstated in the District Court. 2

12 Case: Date Filed: 05/15/2013 Page: 12 of 41 II. ARGUMENT A. Because Guatemala Definitively Refused Jurisdiction, the District Court Erred by Disregarding The FNC Requirement that an Alternative Forum Be Available. The only issue in this appeal is whether, after the Guatemalan court refused to exercise jurisdiction, the District Court violated established FNC law by refusing to reinstate the case, thus leaving Plaintiffs with no forum in which to litigate their claims. Del Monte ignores Plaintiffs first argument that because the District Court s dismissal was conditional and without prejudice to seeking reinstatement, it was not a final judgment; therefore, reinstatement was appropriate under established FNC doctrine without resort to Federal Rule of Civil Procedure 60, which provides relief from final judgments. See Opening Brief ( Op. Br. ) at 22; see also, e.g., Cruz v. Mar. Co. of Philippines, 655 F. Supp. 1214, 1215 (S.D.N.Y. 1987) (evaluating request for relief based entirely on proviso in dismissal order); Fidelity Bank PLC v. M/T Tabora, 333 F. App x 735, 739 (4th Cir. 2009) (vacating dismissal order and remanding for proceedings on the merits, absent Rule 60(b) motion, because condition that the Nigerian courts accept jurisdiction was not met). As a matter of law, the refusal of the Guatemalan court to exercise jurisdiction over Plaintiffs complaint means that Guatemala is not an available forum, which is an essential prerequisite to an FNC dismissal. See Aldana v. Del 3

13 Case: Date Filed: 05/15/2013 Page: 13 of 41 Monte Fresh Produce N.A., 578 F.3d 1283, (11th Cir. 2009). This, and every, Circuit to address the issue has held that conditional dismissals are designed to protect Plaintiffs from being left without a forum to litigate their claims. See, e.g., Leon v. Millon Air, Inc., 251 F.3d 1305, 1313 (11th Cir. 2005) (affirming district court s FNC dismissal because the District Court would presumably reassert jurisdiction over the case in the event that jurisdiction in the Ecuadorian courts [wa]s denied. ). As another circuit explained, until a foreign forum actually accepts jurisdiction over a case, that forum s availability is merely a working assumption. Syndicate 420 at Lloyd s London v. Early American Ins. Co., 796 F.2d 821, 830 (5th Cir. 1986). Thus, a subsequent order from a foreign court dismissing this exact case for lack of jurisdiction is sufficient to overcome that working assumption and show an alternative forum is not available. See In re Ford Motor Co., 591 F.3d 406, 413 (5th Cir. 2009). Consistent with this core concept of FNC and conditional dismissals, all circuits to have addressed the issue agree that when a foreign court refuses to accept a case following an FNC dismissal, the U.S. domestic court must reassert jurisdiction, barring exceptional circumstances that do not apply in this case. See, e.g., Malay Int l Shipping Corp. v. Sinochem Int l Co., 436 F.3d 349, 363 n.21 (3d Cir. 2006) (district court should reassert jurisdiction in the event that the foreign court refuses to entertain the suit. ) (quoting Ford v. Brown, 319 F.3d 1302,

14 Case: Date Filed: 05/15/2013 Page: 14 of 41 (11th Cir. 2003), rev d on other grounds, 549 U.S. 422 (2007))); see also Op. Br. at (collecting cases). Del Monte unsuccessfully tries to distinguish these cases by contending they do not mandate reinstatement, but only reconsideration of the original FNC dismissal. Resp. at But all rested on the established principle that after FNC dismissal, if the foreign court later refuses jurisdiction, the district court must reconsider its dismissal, and if it is indeed shown that the foreign court is unavailable, reinstatement is required. See Aldana, 578 F.3d at Del Monte s own case law demonstrates that if the District Court learns the foreign court actually refused to exercise jurisdiction, the district court must reconsider its dismissal on FNC grounds. See Resp. at 23-24, (citing In re Bridgestone/Firestone, Inc., 420 F.3d 702, 707 (7th Cir. 2005)). In In re Bridgestone/Firestone, while the case was on appeal, a member of Plaintiff s family sued the same defendant in Mexico and the Mexican court denied personal jurisdiction over the defendant. 420 F.3d at 705. The Seventh Circuit held, on the face of things, it appears that the very first [FNC] requirement an alternative forum is no longer satisfied. Mexico, apparently, has refused to hear the case. Id. Assuming the plaintiffs acted in good faith... [i]t would be unfair... to pretend that nothing had occurred at all... because the district court s assumption 5

15 Case: Date Filed: 05/15/2013 Page: 15 of 41 about the availability of a Mexican forum might, in the end, prove to be erroneous. Id. at For all these reasons, the District Court erred in refusing to reinstate Plaintiffs case when it became clear that Guatemala had refused jurisdiction. B. Plaintiffs Also Satisfied the Standards for Relief Pursuant to Federal Rule of Civil Procedure 60(b). Even if this Court considers relief under Federal Rule of Civil Procedure 60(b)(6), Plaintiffs demonstrated extreme hardship and prejudice, contrary to the interests of justice. Fed. R. Civ. P. 60(b)(6); see also Op. Br. at (addressing the standard for Rule 60(b)(6) relief). Del Monte argues Plaintiffs are not entitled to Rule 60(b) relief because: 1) Plaintiffs motion was untimely; 2) Plaintiffs acted in bad faith, and 3) Plaintiffs did not file a nullidad. The District Court squarely rejected point one and never found bad faith. See Aldana, 2012 WL , at *5 (finding Plaintiffs motion timely); id. at *6 (not faulting Plaintiffs for failing to cite Article 3 of Decree in their Guatemalan complaint because Article 2 does not apply). Regarding the third point, the District Court acknowledged the FNC conditional dismissal did not require Plaintiffs to appeal the Guatemalan court s decision. Id. at *7. An appeal or annulment, at any rate, was not possible. 6

16 Case: Date Filed: 05/15/2013 Page: 16 of 41 For all the reasons below, Plaintiffs have been left without a forum in which to litigate their claims through no fault of their own, constituting extraordinary circumstances under Rule 60(b)(6). 1. Rule 60(b)(6) Applies to Plaintiffs Claims and Their Motion for Reinstatement Was Timely. In an attempt to box Plaintiffs into a one-year filing deadline for their Motion for Reinstatement, Del Monte disingenuously frames the Guatemalan Order as newly discovered evidence, subject to review under Fed. R. Civ. P. 60(b)(2). Resp. at Plaintiffs motion was appropriately considered under Rule 60(b)(6) and filed within a reasonable time. a. Plaintiffs Motion for Reinstatement is Properly Considered Under Fed. R. Civ. P. 60(b)(6). Del Monte argues Plaintiffs cannot escape the one-year deadline of Rule 60(b)(2) by recasting their motion... as one seeking relief under Rule 60(b)(6). Resp. at The District Court held, however, that Rule 60(b)(2) s time frame is inapplicable because 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. Aldana, 2012 WL , at *4. In fact, Del Monte fails to cite a single case where reinstatement following an FNC dismissal was analyzed under Rule 60(b)(2). See Resp. at 41. Nor does Del Monte attempt to refute or distinguish the District Court s authority. See 7

17 Case: Date Filed: 05/15/2013 Page: 17 of 41 Aldana, 2012 WL , at *4 (citing Mendes Junior Int l Co. v. Banco do Brasil, S.A., 394 F. App x 787, 788 (2d Cir. 2010)). In Mendes, the Second Circuit affirmed the lower court s Rule 60(b)(6) analysis after the plaintiff moved to reinstate five years after an FNC dismissal. 394 F. App x at 788; see also Galbert v. W. Caribbean Airways, -- F.3d --, 2013 WL , at *3 (11th Cir. May 6, 2013) (analyzing whether foreign order denying jurisdiction over Plaintiffs claims warranted Rule 60(b)(6) relief). Del Monte has presented no authority suggesting the District Court erred by analyzing Plaintiffs claims under Rule 60(b)(6). b. Plaintiffs Motion for Reinstatement Was Made Within A Reasonable Time. Del Monte next argues that even if Rule 60(b)(6) applies, Plaintiffs delay was unreasonable. See Resp But the District Court held that Plaintiffs provided good reasons for the timing of the motion. They waited for the appellate process to be exhausted and then filed shortly thereafter in Guatemala. Once the Guatemalan court issued its order, they filed the motion for reinstatement within a few weeks. Aldana, 2012 WL , at *5. Del Monte contends the time for filing a Rule 60(b)(6) motion is not tolled by the pendency of an appeal, but in support of this proposition it cites only inapplicable Rule 60(b)(1) and (b)(2) cases where the one-year limitations period applied. Resp. at 40. However, where the motion is filed under Rule 60(b)(6), the proper analysis is to evaluate the 8

18 Case: Date Filed: 05/15/2013 Page: 18 of 41 circumstances of this case to determine whether the time-lag is reasonable. Aldana, 2012 WL , at *5 (emphasis added); see also Ritter v. Smith, 811 F.2d 1398, 1402 (11th Cir. 1987) (citing favorably a district court case in which Rule 60(b)(6) relief was granted more than five years after the original judgment ). Del Monte provides no evidence the District Court erred in finding Del Monte faces no prejudice and the Plaintiffs have provided good reasons for the timing of the motion. Aldana, 2012 WL , at *5. 2. Plaintiffs Satisfied the Substantive Requirements of Rule 60(b)(6). Del Monte argues Plaintiffs cannot avail themselves of Rule 60(b)(6) because they acted in bad faith in filing their complaint in Guatemala and in purposely procuring an ex parte order with the designed intent of returning to the U.S. Resp. at Del Monte s contentions are baseless. a. The Guatemalan Order is Entitled to Recognition. Del Monte argues the Guatemalan Order denying jurisdiction over Plaintiffs claims is not worthy of any recognition because it would violate principles of due process and comity. Resp. at Without any support in the record, Del Monte accuses Plaintiffs of suspicious circumstances surrounding... [their] procurement of the Guatemalan Ex Parte Order.... Id. at 16. This argument is a spurious attempt to take advantage of recognized procedural differences between 9

19 Case: Date Filed: 05/15/2013 Page: 19 of 41 the Guatemalan and American legal systems and taint this Court s perception of the procedural history in this case. Del Monte previously argued to the District Court that the Guatemalan Order should not be considered. See Dkt. 234, at 2. The District Court, however, expressly acknowledged that Del Monte s own expert had opined that in Guatemala, a complaint is only served on defendants after it is admitted by a judge. Aldana, 2012 WL , at *5; see also Doc. 241, at 7 (citing Dkt (Declaration of Francisco Chavez Bosque ( FCB Decl. ) 5)); id. (citing Dkt (Declaration of Héctor Fajardo Villagrán ( HFV Decl. ) 23-25)). Moreover, the Guatemalan Order is entitled to recognition by this Court for its probative value regarding whether Guatemala is an available forum. Del Monte s own cases do not support barring any recognition of a foreign ex parte order. For example, Hilton v. Guyot, supports Plaintiffs argument and emphasized the importance of comity, stating: the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation is a matter of international duty, not of mere courtesy and good will. 159 U.S. 113, 164 (1895). Importantly, in Hilton, the Court held that the mere assertion of the party that the [foreign] judgment was erroneous in law or in fact was insufficient to contest the validity or the effect of the judgment sued on in the U.S. Id. at

20 Case: Date Filed: 05/15/2013 Page: 20 of 41 Del Monte also relies on Int l Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV, which rejected the application of comity to an ex parte Mexican court decree because [u]nder the law of the United States, a foreign judgment cannot be enforced in a U.S. court unless it was obtained under a system with procedures compatible with... the bare minimum requirements of notice. 347 F.3d 589, 594 (5th Cir. 2003) (emphasis added). Del Monte also argues that the Guatemalan Order would not be admissible in a legal proceeding [so] it cannot be used against the Defendants as proof of anything. Resp. at 18 (emphasis added). Plaintiffs are not trying to enforce a foreign judgment in the U.S.; the claims against Del Monte in Guatemala were not accepted for jurisdiction so there was no judgment against Del Monte. Nor are Plaintiffs seeking to admit the Guatemalan Order in this legal proceeding, only to have it recognized for its probative value concerning whether Guatemala is an available forum. Finally, another of Del Monte s cases, In re Bridgestone/Firestone, Inc. Tires Products Liab. Litig., 470 F. Supp. 2d 917 (S.D. Ind. 2006) (hereinafter Tire Litigation ), actually supports Plaintiffs position not Del Monte s. Tire Litigation involved the ex parte order of a Mexican court that denied jurisdiction following FNC dismissal. Id. at 919. The U.S. district court found it was not improper for the Plaintiffs to have failed to disclose the [foreign] Proceedings to Defendants in advance of the filing of that action. Id. at 929. As in this case, the 11

21 Case: Date Filed: 05/15/2013 Page: 21 of 41 court noted the foreign court, not the plaintiff, notifies the defendant of the lawsuit if it has territorial competency. Id. The district court, therefore, found the ex parte nature of the order did not factor into consideration of whether to recognize the Mexican court s decision for determining reinstatement. Id. For all these reasons, Del Monte s accusations of suspicious circumstances surrounding an ex parte order are unfounded. Regardless, the Guatemalan Order should be considered for its probative value concerning whether Guatemala is an available forum. b. Plaintiffs Filed an Accurate and Complete Complaint in Guatemala, and the District Court Did Not Find Otherwise. There is no dispute that the District Court did not refuse reinstatement based on a bad faith finding, nor did the District Court criticize any of Plaintiffs substantive or procedural actions concerning their Guatemalan complaint. Aldana, 2012 WL , at *5-7. Nevertheless, Del Monte accuses Plaintiffs of suspiciously fil[ing] a weak, incomplete, and deliberately misleading Complaint calculated to induce the Guatemalan judge to refuse its admission on the basis of Decree Resp. at These attacks are unsupported. 2 Decree is the Guatemalan Law of Defense of Procedural Rights of Native Citizens and Residents. The Defense Law prohibits Guatemalan courts from taking jurisdiction over an action already filed abroad in a court of competent jurisdiction. See Dkt , Ex. D; see also Aldana, 2012 WL , at *6 (quoting Defense Law, art. 2). 12

22 Case: Date Filed: 05/15/2013 Page: 22 of 41 Through newly-retained Guatemalan counsel, Plaintiffs filed a timely and proper complaint in the Department of Izabal, Puerto Barrios, the Guatemalan region where the human rights abuses took place. Aldana, 2012 WL , at *2. Plaintiffs expert, Hector Fajardo Villagran (HFV), reviewed Plaintiffs Guatemalan complaint and the Guatemalan Order, and concluded that Plaintiffs had included all relevant information in their complaint. Dkt , Ex. A (HFV Decl. 4, 6-8, 18, 27). Plaintiffs expert also opined that Plaintiffs appropriately provided a history of the prior dismissal in the United States for at least three reasons: 1) to demonstrate that Del Monte had agreed not to summon Plaintiffs in Guatemala because of their physical safety concerns; 3 2) to argue the statute of limitations is tolled; and 3) to preserve any evidence filed in the U.S. courts. Id. 7. Additionally, Plaintiffs were required to disclose the full procedural history of the case, including prior U.S. dismissals, to comply with the Guatemalan Code of Ethics. Id. 18. Del Monte also accuses Plaintiffs of selective[ly] and deceptive[ly] cit[ing] to those portions of Decree that reject the [FNC] doctrine, but not to Article 2 and 3 that guarantee a Guatemalan national s access to its courts. 3 Had Plaintiffs failed to mention the U.S. case and dismissal, they could not argue that Defendants had agreed not to summon Plaintiffs to appear, which was an express condition of the U.S. District Court s FNC dismissal. See Aldana, 2012 WL , at *7. That is, if Plaintiffs were required to return to Guatemala, the District Court would reinstate the case. Id. Had Plaintiffs not referenced this fact, Del Monte would now argue Plaintiffs had sabotaged their claims by ensuring that Plaintiffs had to appear in Guatemala. 13

23 Case: Date Filed: 05/15/2013 Page: 23 of 41 Resp. at 19. This accusation is patently false. Plaintiffs Guatemalan complaint expressly cites and quotes from Article 2. Dkt , Ex. A, Applicable Law, at 9 (English Translation). 4 Del Monte cites no authority for its contention that Plaintiffs had to state they actually wanted to litigate their claims in Guatemala, Resp. at 20, and Plaintiffs satisfied their duty to the Guatemalan court by explicitly outlining the human rights violations that took place in its jurisdiction. See Dkt , Ex. A (HFV Decl. 9) (explaining that plaintiffs need not specify they are filing freely and spontaneously). Regarding Article 3 of the Defense Law, Del Monte contends this provision allows Guatemalan courts to accept jurisdiction following an FNC dismissal. Plaintiffs did not cite this specific provision to the Guatemalan Court because it was inapplicable, as Plaintiffs expert opined, and as the District Court held for different reasons. See Aldana, 2012 WL , at *6 (not applicable because the U.S. court was not aware of this provision); see also Dkt , Ex. A (HFV Decl ) (explaining different reasons the provision was not applicable). Regardless, Guatemalan courts know the law and apply all relevant portions; not citing every potentially relevant law in its entirety does not risk misleading a court. Id In fact, Del Monte s misrepresentation that Plaintiffs deceptive[ly] failed to cite Article 2, Resp. at 19, demonstrates that Del Monte creates a legal catch-22 in which Del Monte criticizes Plaintiffs regardless of whether they cite the provision or not. 14

24 Case: Date Filed: 05/15/2013 Page: 24 of 41 Del Monte relies on cases with egregious circumstances that are nothing like this case. Resp. at For example, several cases involved plaintiffs who refused to file in the foreign forum or submit to its jurisdiction. See, e.g., Snaza v. Howard Johnson Franchise Sys., Inc., 2008 WL , at *6 (N.D. Tex. Dec. 24, 2008) ( That Plaintiffs may ultimately refuse to file their lawsuit in Mexico does not mean that a Sinaloan court is not available. ); Morales v. Ford Motor Co., 313 F. Supp. 2d 672, 675 (S.D. Tex. 2004) (rejecting argument that because the Plaintiffs are unwilling to submit their case to the Venezuelan judiciary, it is unavailable as that term is understood in the law of [FNC]. ). Here, Plaintiffs all U.S. residents who were granted asylum because of the persecution and danger they faced in Guatemala willingly filed a complaint and submitted to the Guatemalan court s jurisdiction. Del Monte s other cases involve plaintiffs who expressly invited the foreign court to dismiss their action. See, e.g., MBI Grp., Inc. v. Credit Foncier du Cameroun, 627 F. Supp. 2d 35, 38 (D.D.C. 2009) aff d, 616 F.3d 568 (D.C. Cir. 2010) (Plaintiffs filed written submissions to the Cameroonian High Court urg[ing] the court to dismiss the action ); De Paula v. Jackson, 1995 WL , at *1 (S.D.N.Y. Nov. 29, 1995) (Plaintiffs filed an ex parte petition in the Brazilian court requesting that court to decline jurisdiction. ); Cruz, 655 F. Supp. at 1215 (plaintiff moved for dismissal). In this case, Plaintiffs did not move to 15

25 Case: Date Filed: 05/15/2013 Page: 25 of 41 dismiss their own claims in Guatemala, nor did they urge the Guatemalan court to do so. Del Monte s other cases involve plaintiffs who purposefully allowed the statute of limitations in the foreign forum to expire. See, e.g., Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 203 (4th Cir. 2009) (plaintiff made the considered decision to pass on the Chinese proceedings and try to invoke U.S. law ); Castillo v. Shipping Corp. of India, 606 F. Supp. 497, 504 (S.D.N.Y. 1985) ( through his own inaction, [plaintiff] lost access to an available forum). Plaintiffs timely filed their complaint in good faith and in compliance with the Guatemalan procedural requirements. Op. Br. at 46. Regarding the substance of the complaint, here again, Del Monte s cases are distinguishable. See Resp. at (citing Mendes, 394 F. App x at 788 (plaintiff waited five years after FNC dismissal before filing a complaint [in the alternative forum] that differed materially from the one in the original action, including identifying the parties differently and structuring the facts so as to minimize any contacts the parties or the action had with Brazil. )); Huang v. Advanced Battery Technologies, Inc., 2011 WL , at *1 (S.D.N.Y. Mar. 8, 2011) (foreign court found there was no personal jurisdiction against the defendant because the plaintiff had failed to alert it that the defendants agreed to submit to its jurisdiction). 16

26 Case: Date Filed: 05/15/2013 Page: 26 of 41 By contrast, in this case, Plaintiffs filed claims against the same parties seeking relief for the same claims, and they highlighted contacts with Guatemala. Aldana, 2012 WL , at *2. They did not unnecessarily delay years in filing their claims in Guatemala, but instead filed immediately upon exhausting their appellate rights in the U.S. Id. at *5. Plaintiffs expert attested that the filings satisfied all requirements of Guatemalan law. The Guatemalan court found, properly, that it could not exercise jurisdiction based on established provisions of Guatemalan law. Op. Br. at 46 (citing Dkt , Ex. A (HFV Decl. 4, 6, 27)). Finally, Del Monte relies substantially on Tire Litigation, which is strikingly different. Resp. at In Tire Litigation, the district court refused to recognize a foreign order dismissing plaintiffs claims because it was obtained through fraudulent and criminal activity. 470 F. Supp. 2d at 929. Plaintiffs Mexican counsel were offered an incentive to get the case dismissed; they filed in the wrong court to take advantage of a family relationship with the court official; they had ex parte contact with the judge; they improperly submitted to the court a proposed order dismissing the lawsuit; they admitted their conduct violated Mexican criminal law and their Attorney Code of Ethics; and they offered an expert witness a contingent fee interest in Plaintiffs recovery in exchange for his testimony. Id. at

27 Case: Date Filed: 05/15/2013 Page: 27 of 41 All of the above factors are absent from this case, and Del Monte s arguments otherwise are not supported by the record. Indeed, in denying reinstatement, the District Court in this case never found that Plaintiffs had not filed their Guatemala complaint in good faith. See Aldana, 2012 WL , at *5-7; see also Op. Br. at 46. Thus, Del Monte s egregious and unfounded accusations should be rejected and Plaintiffs claims reinstated. c. Plaintiffs Litigation Decisions Do Not Bar Rule 60(b) Relief. Del Monte argues that Plaintiffs so-called deliberate litigation decisions preclude Plaintiffs from receiving relief under Rule 60(b)(6). Resp. at These contentions are baseless. i. Del Monte s Argument that Plaintiffs Should have Affirmatively Raised Decree Before FNC Dismissal Misstates the Law and Procedural History. Del Monte argues Plaintiffs are not entitled to Rule 60(b) relief because Plaintiffs made the considered calculation not to disclose the existence of Decree to the district court... in the hope of avoiding the operation of Article 3 of Decree Resp. at 35. Del Monte s argument that Plaintiffs bore the burden of raising Decree (the Defense Law) before the District Court at the FNC dismissal stage ignores the established rule that [a] defendant has the burden of persuasion as to all elements of a [FNC] motion, including the burden of 18

28 Case: Date Filed: 05/15/2013 Page: 28 of 41 demonstrating that an adequate alternative forum is available. Leon, 251 F.3d at The District Court implicitly acknowledged Del Monte had not met its burden when it stated: In reviewing the Court s order granting the Defendants renewed [FNC] motion, there is no mention of the law. A review of the [FNC] motion itself reveals no mention of the law. Indeed, Mr. Chavez s declaration [Del Monte s expert] in support of the [FNC] motion makes no mention of Decree and neither does the state court order dismissing for [FNC]. 5 Aldana, 2012 WL , at *6 (interpreting Article 3 as providing for the restoration of jurisdiction in Guatemala where a foreign judge dismisses a case on [FNC] grounds despite having been informed of Decree ) (quoting FCB Decl. 14); see also id. (noting Defendants indicated at oral argument that Plaintiffs also had not raised this provision). Del Monte cannot fault Plaintiffs for not assuming its burden and responsibility to demonstrate that Plaintiffs claims could be heard in Guatemala, especially considering Del Monte, by its own admission, was also aware of the existence of Decree 34-97, but did not alert the district court to the requirements of Article 3. See Resp. at 35 (acknowledging Decree was referenced in 5 Del Monte baldly asserts: Defendants did raise Decree before the district court in their legal expert s declaration. Resp. at 36. Like the District Court, Plaintiffs independent review of the FCB declaration filed with the FNC dismissal motion revealed no mention of Decree Dkt , Ex. D. 19

29 Case: Date Filed: 05/15/2013 Page: 29 of 41 Plaintiffs response to Del Monte s motion to dismiss in the Florida State Court). Regardless, Rule 60(b)(6) relief has been granted even when there were mistakes in the application of law, counsel s failures to disclose information, and after new information comes to the court s attention. See, e.g., Ritter, 811 F.2d at 1401; Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980); see also Op. Br. at Further, Del Monte asserts that Plaintiffs should not be permitted to raise Decree for the first time in a collateral attack of the FNC Dismissal Order. Resp. at 36. Unlike the cases Del Monte cites for support, however, Plaintiffs do not raise Decree as a new theory for relief on appeal. Id. at 37. Rather, Plaintiffs raise the Guatemalan Order for its probative value to demonstrate Guatemala is no longer an available forum. See Op. Br. at 14. relief. For all these reasons, Plaintiffs litigation decisions do not bar 60(b)(6) 3. The District Court s FNC Dismissal Did Not Require Plaintiffs to Appeal in Guatemala, but Regardless, the Decision Was Not Appealable. The District Court chose not to condition reinstatement on Plaintiffs appeal of the Guatemalan court s refusal to accept jurisdiction. See Aldana, 2012 WL , at *7. Therefore, the cases Del Monte cites where the exhaustion of appellate rights in the foreign court is a condition to reinstatement are irrelevant. 20

30 Case: Date Filed: 05/15/2013 Page: 30 of 41 See Resp. at In fact, the District Court explicitly noted that this case is unlike those cases Del Monte previously relied on because it did not condition reinstatement on appeal. See Aldana, 2012 WL , at *7. Regardless, under Guatemalan law, Plaintiffs could not appeal the dismissal. See Dkt , Ex. A (HFV Decl ) (explaining two bases for the lack of jurisdiction and that the procedural dismissal does not fall within the class of appealable orders). Del Monte asserts, instead, that Plaintiffs should have sought an annulment ( nullidad ) the Guatemalan court s refusal to accept the case for lack of jurisdiction. See Resp. at A nullidad is only available where counsel believes in good faith that the order at issue is legally flawed; to invoke this step to impugn an order that counsel believes is legally sound is unethical. Dkt , Ex. A (HFV Decl ); see also Dkt , Ex. A, (Declaration of Adolfo Cabrera Albizures, 19-21). Plaintiffs expert attested that the Guatemalan judgment dismissing the complaint was well-founded since it expressly follows the provisions of Decree No that mandate the dismissal of complaints filed upon a forum non conveniens order.... Dkt , Ex. A (HFV Decl. 14). That is, once the Plaintiffs filed their case in a foreign jurisdiction in which the Defendants were domiciled, the Guatemalan court was divested of jurisdiction. Id

31 Case: Date Filed: 05/15/2013 Page: 31 of 41 A nullidad is an extraordinary form of relief, and although Del Monte disagrees, Plaintiffs counsel must determine whether this exceptional step is appropriate. Here, Plaintiffs counsel believed in good faith that the order was legally valid, and it would be unethical for counsel to nevertheless impugn that order on appeal. Dkt (HFV Decl. 16, 17, 19). 6 Nevertheless, the District Court imposed an entirely new condition, holding that 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. Aldana, 2012 WL , at *7. The District Court made no attempt in its denial of reinstatement to address the prohibitions under Guatemalan law to filing a nullidad where the challenge would be frivolous. It is not for the District Court to second-guess the process for filing a nullidad or determine without basis that it would be ethical to do so. See In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1312 (7th Cir. 1992) ( A court of the United States owes substantial deference to the construction [a foreign nation] places on its domestic law. ). 6 Del Monte states Plaintiffs only developed their ethical concerns after filing the complaint in Guatemala. Resp. at 28 n.13. Del Monte contended in its Motion to Dismiss for FNC that Guatemala would accept jurisdiction. Dkt. 163, at Once it became clear that Guatemala would not, Plaintiffs consultation with Guatemalan legal experts revealed that a nullidad was not appropriate under the circumstances of this case. Dkt , Ex. A (HFV Decl. 16, 17, 19). 22

32 Case: Date Filed: 05/15/2013 Page: 32 of 41 For all these reasons, Plaintiffs failure to appeal or file a nullidad does not preclude relief under Rule 60(b)(6). See Op. Br. at C. Granting Plaintiffs Reinstatement Does Not Pose Comity Concerns or Eviscerate the FNC. Del Monte s argument that reinstatement would undermine U.S. courts sovereign authority and eviscerate the FNC doctrine is nothing more than hyperbole. See Resp. at The purpose of FNC is not to deprive U.S. residents, who received asylum in the U.S., of any forum in which to adjudicate their claims for human rights violations against a U.S. corporation. See, e.g., Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947) (doctrine meant to serve the convenience of the parties and the ends of justice. ); see also Dkt. 256, at 2 ( leaving the Plaintiffs with no forum... [is] [s]urely... not the essence of [FNC] doctrine, [which is] intended to allow parties to litigate in a more convenient forum. ). Del Monte essentially urges the Court to punish Plaintiffs not only for their choice to file in the United States because they reside here after being granted asylum due to the danger they face in Guatemala but also because Guatemala has enacted a blocking statute. The relevant inquiry under FNC is whether an alternative forum is available, not whether that forum has been foreclosed as a result of a foreign nation s choices. See Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 159 (2d Cir. 2005) ( [FNC] analysis does not concern itself 23

33 Case: Date Filed: 05/15/2013 Page: 33 of 41 with the reason why an alternative foreign forum is no longer available; its singular concern is the fact of present availability. ). Additionally, it is far from true that federal courts have steadfastly refused to find that blocking laws render a foreign forum unavailable.... Resp. at 48. First, most of Del Monte s cases merely found the presence of a blocking law did not per se prevent FNC dismissal. See, e.g., Aguinda v. Texaco, 142 F. Supp. 2d 534, (S.D.N.Y. 2001) (Ecuadorian blocking statute passed after plaintiffs filed claims in U.S. did not per se preclude FNC dismissal); Paulownia Plantations De Panama Corp. v. Rajamannan, 793 N.W. 2d 128, 134 (Minn. 2009) (state court s FNC dismissal conditioned upon jurisdiction not being refused under Panamanian blocking statute); Lisa, S.A. v. Gutierrez, et. al., 2007 WL , at *2-3 (Fla. 11th Cir. Ct. May 17, 2007) (including condition that should the Guatemalan courts refuse to accept jurisdiction over this case... Lisa shall have leave to seek reinstatement of this action before this Court. ). 7 Second, of Del Monte s cases discussing blocking statutes, two were decided under Florida state law and one provided no analysis. See Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013, 1014 (Fla. 3d DCA 2008) (concluding reinstatement would abrogate a 7 One of Del Monte s cases did not even involve a blocking statute. See Morales, 313 F. Supp. 2d at 675 (analyzing the effect of a Venezuelan law requiring parties to submit to jurisdiction). Moreover, Del Monte s contention that other courts have found Guatemala a suitable alternative forum, Resp. at 49 n.21, is irrelevant, as the FNC doctrine requires a fact-specific analysis in each case and conclusions cannot be drawn from other cases. See, e.g., Bridgestone/Firestone, Inc., 190 F. Supp. 2d 1125, 1132 (S.D. Ind. 2002). 24

34 Case: Date Filed: 05/15/2013 Page: 34 of 41 Florida Supreme Court decision); Aldana v. Fresh Del Monte Produce, Inc., Case No CA 20 (Fla. 11th Cir. Ct. May 30, 2005), aff d, 922 So. 2d 212 (Fla. 3d DCA 2006)) (issuing summary denial of motion for reinstatement). 8 This Court has recognized that the private interest factors in federal courts, unlike state courts, do not focus on the connection between the case and a particular state, but rather on the connection of the case to the U.S. as a whole. Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1303 (11th Cir. 2002). Thus, the U.S. interests, considered by a federal court, are different from those of a Florida state court and federal courts remain free to consider and weigh any concerns that would make trial easy, expeditious and inexpensive. Gulf Oil. Corp. v. Gilbert, 330 U.S. 501, 508 (1947). Palacios v. The Coca-Cola Co. is the only case cited by Del Monte that actually involves a federal court s reinstatement analysis following an FNC dismissal and subsequent application of a foreign blocking statute. 499 F. App x 54, 55 (2d Cir. 2012). Even Palacios is distinguishable, however, because there the district court required the plaintiff to appeal the foreign court s refusal to accept jurisdiction as a condition to reinstatement. Id. at 56. Having failed to satisfy the condition, the court found that plaintiffs were not entitled to reinstate their claims. 8 Plaintiffs do not include In Re Ecuadorean Shrimp Litigation, 6 Fla. L. Weekly Supp. 767a, Case No (Fla. 17th Cir. Ct. Sept. 24, 1999), despite Del Monte s citation to it, see Resp. at 48, because it cannot be located on Westlaw or Lexis. The Clerk s Office at the 17th Judicial District in Florida found no record of this case and, in fact, found that the docket number provided by Del Monte belongs to another case entirely. 25

35 Case: Date Filed: 05/15/2013 Page: 35 of 41 Id. Here, the District Court imposed no such requirement. See Aldana, 2012 WL , at *7 (distinguishing Palacios). Thus, FNC case law does not allow Plaintiffs to be left without a forum simply because their home country has enacted a blocking statute. D. Plaintiffs Also Satisfied the Standards for Relief Pursuant to Federal Rule of Civil Procedure 60(d)(1). Additionally, Plaintiffs sought relief under Rule 60(d)(1) to avoid the grave miscarriage of justice of being left without a forum. See United States v. Beggerly, 524 U.S. 38, 46 (1998). Plaintiffs alternatively met the conditions for relief under Rule 60(d)(1). See Op. Br. at E. Plaintiffs Claims are Not Futile After Kiobel v. Royal Dutch Petroleum. The majority in Kiobel v. Royal Dutch Petroleum applied the underlying principles of the presumption against extraterritoriality to the ATS and concluded that federal courts are constrained from exercising their powers under the ATS in cases where a foreign plaintiff sues a foreign defendant for conduct that took place entirely outside the U.S. See Kiobel, 133 S.Ct. 1659, 1669 (2013) (citing Morrison v. Nat l Australia Bank Ltd., 130 S. Ct. 2869, 2883 (2010)). At the same time, the Court made clear that the ATS still extends to claims that touch and concern the territory of the United States... with sufficient force to displace the presumption against extraterritorial application. Id. Thus, Kiobel requires a case-by-case 26

36 Case: Date Filed: 05/15/2013 Page: 36 of 41 analysis concerning whether the presumption is displaced under the facts of each case. Contrary to Del Monte s assertions, in the event this Court reverses the District Court s denial of reinstatement, Plaintiffs claims are not futile. First, unlike in Kiobel, the claims are brought by U.S. residents against U.S. Defendants. The majority noted the import of defendants citizenship or nationality when it found the 1795 Attorney General William Bradford opinion inapplicable to the circumstances in Kiobel precisely because it involved U.S. citizens who violated a treaty by their conduct, which occurred on the high seas and on a foreign shore. Id. at (citing Breach of Neutrality 1 Op. Atty. Gen. 57 (1795) and noting these differences could not counter the weighty concerns posed by Kiobel s facts). There was no doubt, however, that the Court contemplated extending the ATS to conduct by U.S. citizens, even when conduct occurs on a foreign shore. Second, the extraterritorial reach of the ATS is properly analyzed as a merits question pursuant to Fed. R. Civ. P. 12(b)(6), rather than as a subject matter jurisdiction question raised by Fed. R. Civ. P. 12(b)(1), as Del Monte contends. Resp. at 51. Although the ATS is a jurisdictional statute, the Court nevertheless relied on Morrison, which held the question of extraterritorial application is a merits question, not a jurisdiction question. 130 S. Ct. at The Court explained, we think the principles underlying the canon of interpretation similarly 27

37 Case: Date Filed: 05/15/2013 Page: 37 of 41 constrain courts considering causes of action that may be brought under the ATS. Kiobel, 133 S.Ct. at 1664 (emphasis added). Unlike the question of whether the presumption against extraterritoriality applies to ATS claims, subject matter jurisdiction under the ATS depends on whether the norm meets the Sosa standard. See id. at 1665 (citing Sosa v. Alvarez- Machain, 542 U.S. 692, 732 (2004)). Yet, once a court determines a plaintiff has stated claims triggering ATS jurisdiction under the Sosa standard, as this Court already held, Aldana, 416 F.3d at , only then does a court analyze whether that norm may be enforced in the particular circumstances of the case under Fed. R. Civ. P. 12(b)(6). See Kiobel, 133 S.Ct. at 1664 ( The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. ). Under 12(b)(6), Del Monte bears the burden of proving that Plaintiffs claims fail as a matter of law. See Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010). As a result, in light of the Supreme Court s new pronouncement applying principles of the presumption against extraterritoriality to the ATS, this Court should remand to allow Plaintiffs to amend their complaint to provide additional facts concerning U.S. conduct. See, e.g., Fed. R. Civ. P. 15(a)(2); Jennings v. BIC Corp., 181 F.3d 1250, 1258 (11th Cir.1999) ( leave to amend should be liberally granted when necessary in the interest of justice ). 28