UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT. U.S.C.A. CASE NO E District Court Case No CIV-MORENO

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1 Case: Date Filed: 05/01/2013 Page: 1 of 68 UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT U.S.C.A. CASE NO E District Court Case No 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 Brickell Avenue, Suite 950 Miami, Florida Telephone: Facsimile: Attorneys for Appellees/Defendants

2 Case: Date Filed: 05/01/2013 Page: 2 of 68 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. appeal: Certificate of Interested Persons The following persons and entities have an interest in the outcome of this 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-1 of 2

3 Case: Date Filed: 05/01/2013 Page: 3 of 68 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 C-2 of 2

4 Case: Date Filed: 05/01/2013 Page: 4 of 68 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.

5 Case: Date Filed: 05/01/2013 Page: 5 of 68 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) 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 a. The Guatemalan Ex Parte Order Is Not Entitled to Recognition by this Court b. Plaintiffs Induced the Dismissal of Their Lawsuit in Guatemala by Deliberately Drafting a Flawed Complaint Designed to Invite Its Dismissal

6 Case: Date Filed: 05/01/2013 Page: 6 of 68 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 B. Rule 60(b) Relief Is Unavailable to Relieve Plaintiffs From the Consequences of Their Deliberate Litigation Decisions 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 2. Plaintiffs Three-Year Delay Does Not Satisfy the Reasonable Time Standard Applicable to Rule 60(b)(6) D. Reinstatement Would Undermine the Court s Sovereign Authority and Eviscerate the Doctrine of Forum Non Conveniens 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 ii

7 Case: Date Filed: 05/01/2013 Page: 7 of 68 I. TABLE OF CITATIONS Case Citations 1250 Twenty-Fourth Street Assocs. Ltd. P ship v. Brown, 1987 WL (D.D.C. Nov. 18, 1987) Acapolon Corp. v. Ralston Purina Co., 827 S.W. 2d 189 (Mo. 1992) Page(s) 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) Air Crash Over the Mid-Atlantic on June 1, 2009, 792 F. Supp. 2d 1090 (N.D. Cal. 2011) Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242 (11th Cir. 2005), cert. denied, 549 U.S (2006) 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) Aldana v. Fresh Del Monte Produce, Inc., 2007 WL (S.D. Fla. Oct. 16, 2007) Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285 (S.D. Fla. 2003) Aldana v. Fresh Del Monte Produce, Inc., 922 So. 2d 212 (Fla. 3d DCA 2006), rev. dism., 928 So. 2d 334 (Fla. 2006) 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), rev. dism., 928 So. 2d 334 (Fla. 2006) 33, 41, , 15 5, , 10 iii

8 Case: Date Filed: 05/01/2013 Page: 8 of 68 Case Citations American Bankers Ins. Co. of Florida v. Northwestern National Ins. Co., 198 F.3d 1332 (11th Cir. 1999) Ansari v. NCS Pearson, Inc., 407 F. App x 984 (8th Cir. 2011), cert. denied, 132 S.Ct. 116 (2011) Arnold v. Wood, 238 F.3d 992 (8th Cir. 2001), cert. denied, 534 U.S. 975 (2001) Page(s) 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) Bolanos v. Gulf Oil Corp., 502 F. Supp. 689 (W.D. Pa. 1980), aff d, 681 F.2d 804 (3d Cir. 1982) Bridgestone/Firestone Tire Products Liability Litig., 470 F. Supp. 2d 917 (S.D. Ind. 2006) , 24, 25 Bridgestone/Firestone, Inc., 420 F.3d 702 (7th Cir. 2005) 23, 24, 26, 27 Bush v. Raytheon, Co., 2011 WL (M.D. Fla. Apr. 7, ) Cano v. Baker, 435 F.3d 1337 (11th Cir. 2006), cert. denied, 549 U.S. 972 (2006) Castillo v. Shipping Corp. of India, 606 F. Supp. 2d 497 (S.D.N.Y. 1985) 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 (N.D. Fla. May 4, 2009) 40 iv

9 Case: Date Filed: 05/01/2013 Page: 9 of 68 Case Citations Cruz v. Maritime Co. of Philippines, 655 F. Supp (S.D.N.Y. 1987), aff d, 702 F.2d 47 (2d Cir. 1983) Cuddeback v. Florida Bd. Of Educ., 381 F.3d 1230(11th Cir. 2004) Dawson v. Compagnie Des Bauxites De Guinee, 112 F.R.D. 82 (D. Del. 1986) Page(s) Delgado v. Shell Oil Co., 890 F. Supp (S.D. Tex. 1995) 34, 41 Delgado v. Shell Oil Co., 890 F. Supp (S.D. Tex. 1995), aff d, 231 F.3d 165 (5th Cir. 2000) Ecuadorean Shrimp Litigation, 6 Fla. L. Weekly Supp. 767a, Case No (Fla. 17th Cir. Ct. Sept. 24, 1999) Fidelity Bank PLC v. M/T Tabora, 333 F. App x 735 (4th Cir. 2009) Gilley v. Monsanto Co., 428 F. App x 883 (11th Cir. 2011), cert. denied, 132 S.Ct (2012) 49 24, 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) Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025 (9th Cir. 2011) 40, 44 22, 26, 27, 32 Henderson v. Dunphy, 2009 WL (S.D. Fla. Sept. 3, 2009) 32 Hilton v. Guyot, 159 U.S. 113 (1895) 17 Huang v. Advanced Battery Tech., Inc., 2011 WL (S.D.N.Y. Mar. 8, 2011) 24 v

10 Case: Date Filed: 05/01/2013 Page: 10 of 68 Case Citations Page(s) In re: Diet Drugs, 383 F. App x 242 (3d Cir. 2010) 44 In re: Western Caribbean Airways, 2012 WL (S.D. Fla. May 16, 2012) Int l Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589 (5th Cir. 2003) Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir. 1998), cert. denied, 525 U.S (1998) 10, 31, Jaffke v. Dunham, 325 U.S. 280 (1957) 12 Kiobel v. Royal Dutch Shell, U.S., 2013 WL (Apr. 17, 2013) Liljeberg v. Health Services Acquisition, Corp., 486 U.S. 847 (1988) Lisa v. Gutierrez, 2007 WL (Fla. 11th Cir. Ct. May 17, 2007), aff d, 992 So. 2d 413 (Fla. 3d DCA 2008) Lisa, S.A. v. Gutierrez Mayorga, 240 F. App x. 822 (11th Cir. 2007) 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) Lugo v. Secretary for Department of Corrections, 2010 WL (S.D. Fla. Sept. 22, 2010) MBI Group, Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568 (D.C. Cir. 2010) MBI Group, Inc. v. Credit Foncier Du Cameroun, 627 F. Supp. 2d 35 (D.D.C. 2009) , 32 vi

11 Case: Date Filed: 05/01/2013 Page: 11 of 68 Case Citations Mendes Junior Int l Co. v. Banco Do Brasil S.A., 394 F. App x 787 (2d Cir. 2010) Page(s) 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 (2008) Mohamad v. Palestinian Authority, U.S., 132 S. Ct (2012) 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) Ohio Valley Environmental Coalition v. Apogee Coal Co., LLC, 744 F. Supp. 2d 561 (S.D. W.Va. 2010) Oliver v. Beard, 2012 WL (M.D. Pa. Dec. 27, 2012), report and recommendation adopted, 2013 WL ( M.D. Pa. Apr. 16, 2013) Palacios v. The Coca-Cola Co., 499 F. App x 54 (2d Cir. 2012) Palacios v. The Coca-Cola Co., No. Civ (RJS) (S.D.N.Y. Aug. 18, 2011) passim 30 Paula v. Jackson, 1995 WL (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 (D. Minn. 1996) 49 vii

12 Case: Date Filed: 05/01/2013 Page: 12 of 68 Case Citations Page(s) 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 (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) Snaza v. Howard Johnson Franchise Systems, 2008 WL (N.D. Tex. Dec. 24, 2008) Stewart v. Dep t of Health & Human Servs., 26 F.3d 115 (11th Cir. 1994) passim 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 (11 th 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 (M.D. Fla. April 8, 2013) 51 Walker v. Briggs, 2011 WL (N.D.N.Y. Nov. 22, 2011) 40 viii

13 Case: Date Filed: 05/01/2013 Page: 13 of 68 Case Citations Page(s) 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 Alien Tort Statute, 28 U.S.C , 50 Torture Victim Protection Act, 28 U.S.C. 1350, Note 4, 50 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C Full Faith and Credit Act, 28 U.S.C 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) Fed. R. Civ. P. 60 Guatemalan Law of Defense of Procedural Rights of Nationals and Residents, Decree passim passim 11 Wright & Miller, Federal Practice & Procedure 2864 (1973) 34 ix

14 Case: Date Filed: 05/01/2013 Page: 14 of 68 II. STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal. 28 U.S.C ( [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 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.

15 Case: Date Filed: 05/01/2013 Page: 15 of 68 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 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. R 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. 2

16 Case: Date Filed: 05/01/2013 Page: 16 of 68 suffering amounting to torture. R ,67. All of the alleged misconduct took place in the town of Morales, Guatemala where the Plaintiffs lived and worked. R 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 3

17 Case: Date Filed: 05/01/2013 Page: 17 of 68 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 (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, 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, 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 4

18 Case: Date Filed: 05/01/2013 Page: 18 of 68 Florida Third District Court of Appeal on January 10, 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 (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 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 Aldana v. Fresh Del Monte Produce, Inc., 2007 WL (S.D. Fla. Oct. 16, 2007); R.212. This Court affirmed the FNC Dismissal Order on August 13, Aldana II, 578 F.3d 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 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

19 Case: Date Filed: 05/01/2013 Page: 19 of 68 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 ( Decree ), 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 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 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. 6

20 Case: Date Filed: 05/01/2013 Page: 20 of 68 R.226.A. part: 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. Decree 34-97, referenced in the Guatemalan complaint, provides in pertinent 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 7

21 Case: Date Filed: 05/01/2013 Page: 21 of 68 R 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. Plaintiffs Guatemalan complaint selectively recited only those portions of Decree 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 ( 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 8

22 Case: Date Filed: 05/01/2013 Page: 22 of 68 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 (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. 9

23 Case: Date Filed: 05/01/2013 Page: 23 of 68 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 (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 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 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). 10

24 Case: Date Filed: 05/01/2013 Page: 24 of 68 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). 11

25 Case: Date Filed: 05/01/2013 Page: 25 of 68 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, (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 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). 12

26 Case: Date Filed: 05/01/2013 Page: 26 of 68 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 extinguishes Guatemalan jurisdiction over their claims. But Articles 2 and 3 of Decree 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. 13

27 Case: Date Filed: 05/01/2013 Page: 27 of 68 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 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 (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. 14

28 Case: Date Filed: 05/01/2013 Page: 28 of 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 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 , at *3; Aldana II, 578 F.3d at 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 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 15

29 Case: Date Filed: 05/01/2013 Page: 29 of 68 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). 16

30 Case: Date Filed: 05/01/2013 Page: 30 of 68 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, (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, (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. 17

31 Case: Date Filed: 05/01/2013 Page: 31 of 68 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, 18

32 Case: Date Filed: 05/01/2013 Page: 32 of 68 Plaintiffs filed a weak, incomplete, and deliberately misleading Complaint calculated to induce the Guatemalan judge to refuse its admission on the basis of Decree R (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 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 was wholly unnecessary to state viable claims under Guatemalan law. R.234-2, at 5. The reference to Decree 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. 19

33 Case: Date Filed: 05/01/2013 Page: 33 of 68 Second, to ensure that the Guatemalan Court would refuse to hear the case, Plaintiffs complaint quoted only those portions of Decree 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 that guarantee jurisdiction for Guatemalan nationals. Article 2 of Decree 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 belie the argument, made in this appeal, that they genuinely tried to have their claims heard by a Guatemalan 20

34 Case: Date Filed: 05/01/2013 Page: 34 of 68 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 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 did not apply and assured the Guatemalan Court that it had jurisdiction over Plaintiffs claims. R.234.B

35 Case: Date Filed: 05/01/2013 Page: 35 of 68 Id. at (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,

36 Case: Date Filed: 05/01/2013 Page: 36 of 68 (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, (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, (S.D. Ind. 2006) (plaintiffs attorneys manipulated proceedings to insure dismissal of plaintiffs complaint in Mexico); Paula v. Jackson, 1995 WL (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 , 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 23