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

Transcription

1 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 OPENING BRIEF Terrence P. Collingsworth CONRAD & SCHERER, LLP th St., NW, Suite 502 Washington, DC Attorneys for Appellants, Aldana, et. al.

2 CERTIFICATE OF INTERESTED PERSONS Pursuant to Circuit Rule , Plaintiff-Appellants Angel Aldana, et. al. hereby submit their Certificate of Interested Persons. District Court Trial Judge Honorable Federico A. Moreno United States District Court Southern District of Florida Plaintiffs-Appellants Alvayero Hernandez, Rigoberto 318 North Mariposa Avenue Apt. 103 Los Angeles, CA Guerra Evans, Oscar Leonel 1811 Princeton St., Apt. A Las Vegas, NV Loyo Martinez, Gumerzindo 29 Belmont St., Apt. 2 Lawrence, MA Martinez, Marel 4412 Lockwood Ave. Los Angeles, CA Mcintosch Rodriguez, Lyionhel 227 W. 106th Street Los Angeles, CA Palma Romero, Jorge Agustin 7604 S. Sherwood Ave, Oklahoma City, OK Villeda Aldana, Angel Enrique 852 South Cain Avenue ii

3 Liberal, Kansas Counsel for Plaintiffs-Appellants Collingsworth, Terrence P. CONRAD & SCHERER LLP th St., NW, Suite 502 Washington, DC Fax: Defendant-Appellees Compania De Desarrollo De Guatemala, S.A. (BANDEGUA) C/O 800 Douglas Road North Tower, 12th Floor Coral Gables, FL Del Monte Fresh Produce Company 800 Douglas Road North Tower, 12th Floor Coral Gables, FL Fresh Del Monte Produce, Inc. C/O 800 Douglas Road North Tower, 12th Floor Coral Gables, FL Counsel for Defendant-Appellees Fernandez, Lazaro Stack, Brian J. STACK, FERNANDEZ, ANDERSON, HARRIS & WALLACE, P.A Brickell Ave., Suite 950 Miami, FL iii

4 STATEMENT REQUESTING ORAL ARGUMENT Pursuant to Circuit Rule 28-1(c), Plaintiffs hereby request oral argument before this Court. Plaintiffs believe that the Alien Tort Statute and Torture Victim Protection Act, 28 U.S.C. 1350, issues raised by this Appeal as they relate to the forum non conveniens doctrine present important public policy questions. The resolution of these issues would be facilitated if the Court has the opportunity to question the parties and hear elaboration on the numerous issues presented. Respectfully resubmitted this 28 th day of February, 2013, /s/ Terrence Collingsworth By: Terrence Collingsworth Attorney for Appellants, Aldana, et. al. iv

5 TABLE OF CONTENTS I. INTRODUCTION... 1 II. STATEMENT OF JURISDICTION... 4 III. STATEMENT OF ISSUES... 5 IV. STATEMENT OF CASE... 5 A. Factual Background...5 B. Procedural History... 9 V. SUMMARY OF ARGUMENT...14 VI. STANDARD OF REVIEW...16 VII. ARGUMENT...18 A. The District Court Erred by Not Reinstating Plaintiffs Case When, Following its FNC Dismissal, the Guatemala Court Demonstrated Beyond Dispute that Guatemala Is Not An Available Forum There is no dispute the Guatemalan court found it lacked jurisdiction over Plaintiffs case, making Guatemala unavailable as a forum As a matter of law, the District Court was required to reinstate Plaintiffs case when Guatemala was no longer available as a forum B. The District Court Erroneously Denied Relief under Federal Rule of Civil Procedure 60(b)(6) Despite the Exceptional Circumstances this Case Presents...29 v

6 1. The District Court Did Not Condition Reinstatement on Appealing the Guatemalan Court s Refusal of Jurisdiction, But Regardless, the Decision was Not Appealable The District Court erred in denying relief under Federal Rule of Civil Procedure 60(b)(6) because extraordinary circumstances and interests of justice require that Plaintiffs be provided with a forum for their claims C. Alternatively, the District Court Erred in Denying Relief Under Federal Rule of Civil Procedure 60(d)(1) VIII. CONCLUSION...47 vi

7 TABLE OF AUTHORITIES CASES 1 Aldana v. Del Monte Fresh Produce, N.A., Inc., 2003 WL (S.D. Fla. June 6, 2003) F. Supp. 2d 1285 (S.D. Fla. 2003) F.3d 1242 (11th Cir. 2005)... 1, 5-8, So. 2d 212 (Fla. 3d DCA 2006) So. 2d 334 (Fla. 2006) F.3d 1284 (11th Cir. 2006) S. Ct. 596 (2006) WL (S.D. Fla. Oct. 16, 2007).. 2, 11, 29, 30, F.3d 1283 (11th Cir. 2009)... 2, 12, F.3d Fed. App x 518 (11th Cir. 2010) S.Ct. 102 (2010) So. 2d 1127 (Fla. 3d DCA 2012) WL (S.D. Fla. Oct. 30, 2012). in passim Bank of Credit & Commerce Int l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241 (2d Cir. 2001).. 33 Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir. 1970). 38, 45 Biermann v. Commissioner, 769 F.2d 707 (11th Cir. 1985) Bros Inc. v. W.E. Grace Mfg. Co., 351 F.2d 208 (5th Cir. 1965). 40 BUC Int l Corp. v. Int l Yacht Council Ltd., 517 F.3d 1271 (11th Cir. 2008). 37 Burton v. G.A.C. Finance Co., 525 F.2d 961 (5th Cir. 1976) Appellants do not rely on any one particular authority. vii

8 Calloso v. Morgan & Co., 324 F.Supp.2d 1320 (S.D. Fla. 2004).. 30, 39 Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655 (2d Cir. 1997).. 45 Carijano v. Occidental Petroleum Corp., 643 F.3d 1216 (9th Cir. 2011) , 24 Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151 (11th Cir. 2009)... 17, 30 Delgado v. Shell Oil Co., 890 F. Supp (S.D. Tex. 1995) El Fadl v. Central Bank of Jordan, 75 F.3d 668 (D.C. Cir. 1996) 25 Erchonia Corp. v. Bissoon, 421 F. App x 122 (2d Cir. 2011) Fidelity Bank PLC v. M/T Tabora, 333 Fed. App x 735 (4th Cir. 2009).. 23 Ford v. Brown, 319 F.3d 1302 (11th Cir. 2003). 24 Gallop v. Cheney, 642 F.3d 364 (2d Cir. 2011).. 34 Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572 (D.C. Cir. 1980)... 40, 43 Griffin v. Swim-Tech, 722 F.2d 677 (11th Cir. 1984) , 38 Gschwind v. Cessna Aircraft Co., 161 F.3d 602 (10th Cir. 1998) viii

9 Gutierrez v. Advanced Medical Optics, Inc., 640 F.3d 1025 (9th Cir. 2011) , 27 Hadix v. Caruso, 461 F.Supp.2d 574 (D. Mich. 2006). 40 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997 (1944) In re Bridgestone/Firestone, Inc., 420 F.3d 702 (7th Cir. 2005) In re Frigitemp Corp., 781 F.2d 324 (2d Cir. 1986).. 36 In re Ford Motor Co., 591 F.3d 406 (5th Cir. 2009). 26 In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279 (7th Cir. 1992) In re West Caribbean Airways, 2012 WL (S.D. Fla. May 16, 2012) Irish National Ins. Co. v. Aer Lingus Teovanta, 739 F.2d 90 (2d Cir. 1984).. 16, 27 Jackson v. Crosby, 437 F.3d 1290 (11 th Cir. 2006) Johnson v. American Sec. Ins. Co., 392 Fed. App x. 838 (11th Cir. 2010) Kapprott v. United States, 335 U.S. 601 (1949).. 35 Karaha Bodas Co. v. Pertamina, 313 F.3d 70 (2d Cir. 2002) 33 ix

10 Keeling v. Sheet Metal Workers Int l Assoc n, Local Union 162, 937 F.2d 408 (9th Cir. 1991). 40 Koon v. United States, 518 U.S. 81 (1996) Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6 (2d Cir. 1987).. 46 La Seguridad v. Transytur Line, 707 F.2d 1304 (11th Cir. 1983)... 30, 39 Leon v. Million Air, Inc., 251 F.3d 1305 (11th Cir. 2001)... 17, 22, 26, 43 Malaysia Int l Shipping Corp. v. Sinochem Int l Co., 436 F.3d 349 (3d Cir. 2006) U.S. 422 (2007).. 24 Manu Int l, S.A. v. Avon Products, Inc., 641 F.2d 62 (2d Cir. 1981) Mercier v. Sheraton Int l, Inc., 935 F.2d 419 (1st Cir. 1991). 23 Mizokami Bros. of Arizona, Inc. v. Mobay Chemical Corp., 660 F.2d 712 (8th Cir. 1981)... 25, 27 Mohamad v. Palestinian Authority, 132 S. Ct (2012) Montero v. Potter, 174 Fed. App x. 489 (11th Cir. 2006) Nemaizer v. Baker, 793 F.2d 58 (2d Cir. 1986).. 38, 45 Nisson v. Lundy, 975 F.2d 802 (11th Cir. 1992) x

11 Palacios v. The Coca-Cola Co., No. 10-CIV-3120 (RJS) S.D.N.Y. Aug. 18, Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991). 34 Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11th Cir. 2002). 16 Prophet v. International Lifestyles, Inc. 447 Fed. App x. 121 (11th Cir. 2011) , 22 Ravelo Monegro v. Rosa, 211 F.3d 509 (9th Cir. 2000). 17 Republic of Panama v. BCCI Holdings (Lunxembourg) S.A., 119 F.3d 935 (11th Cir. 1997) Rings v. Chatham County, GA, 144 Fed. App x. 99 (11th Cir. 2005). 38 Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987). 39 Rivera v. United States, 761 F. Supp. 126 (S.D. Fla. 1991). 43 Robinson v. TCI/US West Communications, Inc., 117 F.3d 900 (5th Cir.1997).. 17 Samantar v. Yousouf, 130 S. Ct (2010).. 25 Schertenleib v. Traum, 589 F.2d 1156 (2d Cir. 1978) Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981)... 35, 38 xi

12 Solaroll Shade and Shutter Corp., Inc. v. Bio-Energy Systems, Inc., 803 F.2d 1130 (11th Cir. 1986). 38 Syndicate 420 at Lloyd s London v. Early American Ins. Co., 796 F.2d 821 (5th Cir. 1986). 26 Trade Arbed, Inc. v. African Express MV, 941 F.Supp. 68 (D. La. 1996) Tyco Fire & Sec., LLC v. Alcocer, 218 Fed. App x. 860 (11th Cir. 2007) United States v. Beggerly, 524 U.S. 38, 118 S.Ct (1998).. 44 United States v. Boch Oldsmobile, Inc., 909 F.2d 657 (1st Cir.1990).. 37 U.S. v. Certain Real Property Located at Route 1, Bryannt, Ala., 126 F.3d 1314 (11th Cir. 1997). 38, 39, 43 Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003). 25 Warter v. Boston Secs., S.A., 380 F.Supp.2d 1299 (S.D. Fla. 2004) Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264 (11th Cir. 2009) Wiwa v. Royal Dutch Shell Petroleum Co., 226 F.3d 88 (2d Cir. 2000) 28 Yavuz v. 61 MM, Ltd., 576 F.3d 1166 (10th Cir. 2009) 24 xii

13 STATUTES 28 U.S.C U.S.C U.S.C , 4, 9 RULES Fed. R. App. P Fed. R. Civ. P Fed. R. Civ. P. 60(b)(6).... in passim Fed. R. Civ. P. 60(d)(1).... in passim OTHER AUTHORITIES 7 J. Lucas & J. Moore, Moore's Federal Practice 60.27[2] (2d ed. 1982) xiii

14 I. INTRODUCTION Plaintiffs are U.S. residents who formerly served as trade union leaders at Defendants banana plantation in Guatemala, known as Bandegua (Compania De Desarrollo De Guatemala, S.A.). This is the third time this case has been appealed to this Court. First, in 2005, this Court reversed the District Court s dismissal of Plaintiffs torture claims under the Torture Victims Protection Act (TVPA) and Alien Tort Statute (ATS), 28 U.S.C. 1350, finding that Plaintiffs confinement for over eight hours at gun point under the constant threat of death constituted torture, and hence a violation of a specific, universal, and obligatory norm of international law. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, (11th Cir. 2005), reh g en banc denied, Aldana v. Fresh Del Monte Produce Co., 452 F.3d 1284 (11th Cir. 2006), cert. denied Fresh Del Monte Produce Inc. v. Aldana, 127 S. Ct. 596 (2006). Accordingly, this Court remanded the case to the District Court for adjudication consistent with its holding. On remand, Defendants renewed their motion to dismiss based on forum non conveniens (FNC), already twice-denied by the District Court, and the District Court referred the motion to a magistrate for consideration. Following a lengthy hearing, the magistrate issued a written order finding that the U.S. was the appropriate forum for Plaintiffs torture case. The District Court rejected the magistrate s finding, however, relying instead on a prior state court s FNC

15 dismissal of Plaintiffs state law claims under the doctrine of collateral estoppel. Thus, Six years after the case was filed, the U.S. District Court dismissed Plaintiffs case for the second time. Aldana v. Del Monte Fresh Produce, N.A., Inc., 2007 WL (S.D. Fla. Oct. 16, 2007). Plaintiffs appealed this decision and in 2009, this Court affirmed, in a 2-1 decision, the District Court s dismissal on FNC grounds. Aldana v. Del Monte Fresh Produce, N.A., Inc., 578 F.3d 1283 (11th Cir. 2009). The affirmance was premised on the District Court s finding that the Plaintiffs had an adequate and available forum in Guatemala. Id. at Plaintiffs, pursuing the sole option left to them, filed their case in Guatemala, the forum the District Court had previously found to be available and adequate. In 2010, however, the Guatemalan court dismissed Plaintiffs complaint, holding it did not possess jurisdiction because the Guatemala law divests courts of jurisdiction when a Plaintiff first filed in a foreign country that has jurisdiction, in this case the United States. After dismissal in Guatemala, Plaintiffs sought reinstatement in the District Court, arguing that Guatemala was not an available forum, and hence a basic requirement of FNC dismissal was no longer satisfied. The District Court denied Plaintiffs Motion for Reinstatement and Plaintiffs now appeal this decision. Plaintiffs submit that this Court would not have upheld the prior FNC dismissal if it had been clear then that there was no available and adequate forum, 2

16 as the fundamental requirement for an FNC dismissal would not have been satisfied. Now that Guatemala has refused jurisdiction, there is no question that it is an unavailable forum. The sole forum available to Plaintiffs now is the District Court. As in the prior two appeals, this case again presents important issues regarding the right of torture victims to seek redress in U.S. courts pursuant to the TVPA and ATS. By refusing to reinstate Plaintiffs case after Guatemala denied jurisdiction, the District Court violated another basic tenet of the FNC doctrine: if a foreign jurisdiction turns out to be unavailable, the case must be reinstated after dismissal. This basic availability requirement has led circuit courts to endorse conditional dismissals whereby district court must reinstate a case if the foreign forum proves to be unavailable or inadequate after FNC dismissal. In this case, the District Court abrogated its duty to reinstate Plaintiffs case after Guatemala refused to exercise jurisdiction through no fault of Plaintiffs. The only ground upon which the District Court denied Plaintiffs Motion for Reinstatement was that Plaintiffs did not appeal the Guatemalan court s decision. The Guatemalan court s decision, however, was not appealable and other extraordinary remedies were not available for the reasons addressed herein. In ruling the Plaintiffs should have appealed the Guatemalan court s refusal to entertain jurisdiction, the District Court imposed an entirely new condition on its 3

17 original FNC dismissal. Indeed, the District Court expressly acknowledged that its original dismissal order did not require Plaintiffs to appeal, but it nonetheless held they should have done so regardless. Plaintiffs U.S. residents who received asylum here because of the human rights abuses they suffered in Guatemala and for which they now seek justice are left with no forum in which to litigate their more than a decade-old claims. The fact that they are left without a forum satisfies the exceptional circumstances requirement for relief under Federal Rule of Civil Procedure 60(b)(6) and, alternatively, Rule 60(d)(1). For all these reasons and those contained herein, this Court should reverse the District Court and order reinstatement. II. STATEMENT OF JURISDICTION This appeal is taken from the District Court s order, entered on October 30, 2012, denying Plaintiffs Motion for Reinstatement. Aldana v. Fresh Del Monte Produce, Inc., 2012 WL (S.D. Fla. Oct. 30, 2012) 2. The District Court had jurisdiction over Plaintiffs claims pursuant to 28 U.S.C and This Court has jurisdiction under 28 U.S.C Pursuant to Eleventh Circuit Rule 30-1, Plaintiffs file limited Record Excerpts (RE), containing the Docket sheet from the District Court, the operative complaint, and the order being appealed. All other documents in the record are referenced by the District Court docket number with the designation Dkt.. Additionally, Plaintiffs cite to the WestLaw version of the District Court s order denying Plaintiffs Motion for Reinstatement, which is also located in the Record (RE-265). 4

18 III. STATEMENT OF ISSUES 1) Did the District Court violate the fundamental premise of FNC law by refusing to reinstate Plaintiffs case following an FNC dismissal where no alternative forum ultimately existed? 2) Did the District Court err when it found Plaintiffs were not entitled to relief under Federal Rule of Civil Procedure 60(b)(6)? 3) Did the District Court err when it failed to grant relief under Federal Rule of Civil Procedure 60(d)(1)? IV. STATEMENT OF CASE A. Factual Background Unless otherwise specified, the following factual background is taken directly from this Court s 2005 decision in this case, which held Plaintiffs had sufficiently alleged claims for torture based on Plaintiffs confinement for over eight hours at gun point under the constant threat of death, pursuant to the ATS and TVPA. 3 Aldana, 416 F.3d at Plaintiffs are seven Guatemalan citizens currently residing in the United 3 The U.S. Supreme Court held in 2012 that corporations cannot be liable under the TVPA. See Mohamad v. Palestinian Authority, 132 S. Ct (2012). However, factual discovery in this case is expected to uncover the identities of the individuals who were responsible for Plaintiffs torture, and at that time they may seek to add them as named Defendants under the TVPA. 4 The quoted references are to Plaintiffs Third Amended Complaint and based on the District Court s factual record at the time of the FNC dismissal, but the same allegations can be found in Plaintiffs Fourth Amended Complaint (FAC). RE

19 States. Del Monte is a Delaware company with its principal place of business in Coral Gables, Florida. Id. In Guatemala, Plaintiffs were officers in SITRABI, a national trade union of plantation workers. Id. At the time in question, they represented workers on a Bandegua banana plantation in the municipality of Morales, Izabal. Bandegua is a wholly-owned subsidiary of Del Monte. Id. SITRABI and Bandegua were negotiating a new collective bargaining agreement for workers at the plantation. Id. While those negotiations were ongoing, Bandegua terminated 918 workers. SITRABI responded by filing a complaint in the Labor Court of Guatemala. Negotiations continued. Id. Plaintiffs allege that on or before 13 October 1999, Bandegua hired or established an agency relationship with a private, armed security force. Private security forces are permitted and regulated in Guatemala. Id. According to Plaintiffs, on 13 October 1999, Del Monte agents met with the security force to plan violent action against the Plaintiffs and other SITRABI leaders. 5 Id. According to Plaintiffs, at 5:45 p.m. the security force, which is described as a gang of over 200 heavily armed men, arrived at SITRABI's headquarters in Morales, Izabal. Id. There, the security force held two Plaintiffs hostage, threatened to kill them, and shoved them with guns. Id. Throughout the evening, other SITRABI leaders were lured, abducted or otherwise forced to the 5 Plaintiffs allege that governmental officials were present during the violence, and thereafter worked to shield the perpetrators from full prosecution. RE-156, FAC, 64, 68. 6

20 headquarters and similarly detained. Id. The SITRABI headquarters is one hundred meters from the National Police office. Id. Based on this geographic proximity, Plaintiffs conclude that it was an absolute certainty that the National Police were aware of all events of the night. Id. Once the seven SITRABI leaders were in the headquarters, a leader of the security force... who claimed to be the President of the [municipal] Chamber of Commerce, blamed Plaintiffs for the area s economic decline. Id. The official also explained that Plaintiffs union activity could cause Del Monte to abandon the plantation. Id. Later, a mayoral candidate appeared. Id. While the candidate was at SITRABI headquarters, the security force reached a consensus that the two main leaders of SITRABI [both of whom are Plaintiffs in this case] would be taken to a radio station... where they would be forced to denounce the union. Id. Plaintiffs also allege that the actual Mayor of Morales participated. Id. He, along with several other armed aggressors, allegedly accompanied Plaintiffs to a radio station, where Plaintiffs, at gunpoint, announced the labor dispute was over and that they were resigning from the union, and from their jobs. Id. Members of the security force then took the two Plaintiffs back to the headquarters. Id. There, they received a facsimile of a model resignation form, purportedly sent from Del Monte or Bandegua. Id. The Plaintiffs signed the letters at gunpoint and were released at 2:00 a.m. on 14 October 1999 after being 7

21 detained for more than eight hours. Id. The leader of the security force allegedly threatened to kill Plaintiffs if they failed to leave Guatemala. Id. To avoid this direct threat of harm, Plaintiffs left the area of Morales and fled to Guatemala City. RE-156, FAC, 55-56; see also Dkt (Exhibit A- Second Declaration of Angel Enrique Villeda Aldana), 5-6. Once in Guatemala City, the danger to Plaintiffs increased due to their participation in the criminal prosecution of the key gang members who tortured them. Ultimately, five of the Plaintiffs testified against their attackers, but did so only after the Public Minister of Guatemala provided them with a secret place to live up until the trial, and after the U.S. embassy promised to relocate them to the U.S. following the trial if violent retaliation seemed likely. RE (Exhibit A), 7-9. After the trial, the threat of death to the five Plaintiffs was so significant that the U.S. embassy arranged for them to immediately flee to Los Angeles after they testified. This is the only reason Plaintiff Aldana believes that he and the others are still alive. Id. 8-9, 14. After the first five Plaintiffs were in the U.S. safely, the two other Plaintiffs, Gumerzindo Loyo Martinez and Rigoberto Alvayero Hernandez, came out of hiding in rural Guatemala and, with the assistance of the U.S. embassy, also fled to the United States. Id. 14. All of the Plaintiffs have since been granted political asylum by the United States, and are now either permanent residents or in the final 8

22 stages of obtaining permanent residency status. Id Plaintiffs have resided in the U.S. continuously since fleeing Guatemala, and nothing has changed within Guatemala to make a return there safe. Id. 17. B. Procedural History Once safely within the United States, on August 3, 2001, Plaintiffs filed a case in the United States District Court for the Southern District of Florida against Defendants under the Alien Tort Statute (ATS), 28 U.S.C. ' 1350, and the Torture Victims Protection Act (TVPA), 28 U.S.C. ' 1350, note, which allow an alien to sue for human rights violations in U.S. federal courts. Aldana, et. al. v. Fresh Del Monte Produce, Inc., et. al., Case No CIV-MORENO. Defendants filed, inter alia, a motion to dismiss based on forum non conveniens, which the District Court denied. Specifically, the U.S. District Court Judge found that Plaintiffs were granted asylum in the United States precisely because of the threat of death in Guatemala, and concluded that [a] forum that puts Plaintiffs lives at risk cannot be an adequate alternative under the doctrine of forum non conveniens. Aldana v. Fresh Del Monte Produce, Inc., 2003 WL , at *2 (S.D. Fla. June 6, 2003). The District court also later denied Defendant s motion for reconsideration of its FNC decision. Id. at *4. After its FNC ruling, the U.S. District Court subsequently dismissed Plaintiffs case for lack of subject matter jurisdiction, finding that the conduct alleged did not amount to torture. Aldana v. 9

23 Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285 (S.D. Fla. 2003). This Court reversed, finding that Plaintiffs had sufficiently stated claims of torture under the ATS and TVPA and that the U.S. District Court had jurisdiction over such claims. Aldana, 416 F.3d at On January 12, 2004, while their federal case was on appeal, Plaintiffs filed state law claims in the Eleventh Judicial Circuit Court for Miami Dade County, asserting eight causes of action under Florida law, including battery, assault, arbitrary arrest and detention, false imprisonment, and intentional infliction of emotional distress. Defendants filed a motion to dismiss on FNC grounds, renewing the arguments made before and twice rejected by the federal district court. Contrary to the prior FNC ruling, however, the Florida Circuit Court assumed [a]n adequate alternate forum exists for these Plaintiffs in Guatemala and Guatemala possesses jurisdiction over the entire case, including all of the parties. Dkt (Defendants Motion to Dismiss, Ex. A (Aldana v. Fresh Del Monte Produce, Inc., No CA-20, 2.a., 2.c., 3.b.-c. (Mar. 30, 2005)). The Florida Circuit Court granted Defendants FNC motion and dismissed Plaintiffs case on the condition that, in light of concerns regarding Plaintiffs safety, Plaintiffs would not be forced to return to Guatemala to litigate. Id. 3.b.-c. 10

24 Plaintiffs appealed the Florida Eleventh Judicial Circuit Court s FNC dismissal to the Third District Court of Appeal for the State of Florida, which affirmed the dismissal without publishing an opinion. Aldana v. Fresh Del Monte Produce, Inc., 922 So. 2d 212 (Fla. 3d DCA 2006). Plaintiffs then appealed to the Florida Supreme Court, which dismissed the case without review. Aldana v. Fresh Del Monte Produce, Inc., 928 So. 2d 334 (Fla. 2006). Following the Eleventh Judicial Circuit s dismissal, Plaintiffs ATS and TVPA case in the U.S. District Court continued, where Defendants yet again moved to dismiss on FNC grounds. On October 16, 2007, rejecting a magistrate s contrary finding, the U.S. District Court found that it was bound by the legal and factual conclusions of the Florida state court, regarding its FNC determination, including the fact that Plaintiffs would not be required to appear in person in Guatemala in order to litigate their claim, and ultimately dismissed Plaintiffs federal claims without prejudice. Aldana, 2007 WL , at *3. In its conditional dismissal, the U.S. District Court explicitly noted the FNC doctrine requires that if the motion is granted, that the plaintiff must be able to reinstate the suit in the alternative forum without undue inconvenience or prejudice. Id. at 5. (citations omitted) (finding no indication whatsoever that Plaintiffs will be unable to do so, and Defendants have stipulated that they are amenable to service in Guatemala ). 11

25 Plaintiffs appealed the dismissal of their federal case and, on August 13, 2009 in a 2-1 decision, this Court found the federal trial court did not abuse its discretion by dismissing on FNC grounds. See Aldana, 578 F.3d at 1290 (noting that [i]n order to be available, the foreign court must be able to assert jurisdiction over the litigation sought to be transferred. ) (citation omitted) (emphasis added). On February 9, 2010, the Eleventh Circuit denied Plaintiffs petition for rehearing and rehearing en banc. Aldana v. Del Monte Fresh Produce N.A., Inc., 401 F.3d Fed. App x 518 (11th Cir. 2010) (Table, No BB). On October 4, 2010, the Supreme Court denied Plaintiffs petition for certiorari. Aldana v. Fresh Del Monte Produce, Inc., 131 S.Ct. 102 (2010). Having exhausted their options in the United States in both the state and federal systems, Plaintiffs promptly filed a petition in Guatemala seeking relief against Defendants on December 6, Dkt. 226, Ex. A. Plaintiffs filed their petition in the Department of Izabal, Puerto Barrios, the Guatemalan region where the violations at issue took place. Plaintiffs Guatemalan petition sought relief for the same human rights violations for which they originally sought relief in the U.S. District Court for the Southern District of Florida and in the Florida Eleventh Judicial Circuit Court and against the same Defendants named in their claims in both the federal and state courts. 12

26 On December 7, 2010, the Guatemalan court issued a ruling indicating the Guatemalan courts lack jurisdiction to hear Plaintiffs claims. The clerk of the Guatemalan court notified Plaintiffs counsel of this decision on December 10, Dkt. 226, Ex. B. Specifically, the Guatemalan court relied on the Guatemalan law that codifies a plaintiff s choice of forum as one that cannot be disturbed once a plaintiff has chosen a court with jurisdiction. Id. (citing the Law of Defense of Procedural Rights for Nationals and Residents, Decree (Defense Law)). In light of the fact that Guatemala had refused jurisdiction and thus was not an available forum for their claims, Plaintiffs promptly filed a Motion for Reinstatement before the U.S. District Court on January 25, Dkt Defendants responded on February 25, Dkt On August 31, 2011, the District Court stayed Plaintiffs Motion for Reinstatement. Dkt The District Court held a hearing on July 24, The District Court denied Plaintiffs Motion for Reinstatement on October 30, 2012, finding that although its previous dismissal on FNC did not condition reinstatement on Plaintiffs exhausting Guatemalan appellate review, Plaintiffs failure to file a nullidad [or annulment ] in Guatemala and to exhaust their avenues for relief, nevertheless precluded the Court from finding that the exceptional circumstances of Federal Rule of Civil Procedure 60(b)(6) were met. 13

27 Aldana, 2012 WL , at *7. 6 Plaintiffs now appeal this decision and seek reversal of the District Court s denial of reinstatement. V. SUMMARY OF ARGUMENT The District Court erred as a matter of law in denying Plaintiffs Motion for Reinstatement. The District Court dismissed Plaintiffs claims without prejudice to seeking reinstatement if the Plaintiffs were required to appear in Guatemala to prosecute their cases, but imposed no conditions to reinstatement, except the implicit requirement that Plaintiffs file their claims in Guatemala. Plaintiffs did so, but the Guatemalan court refused jurisdiction under the Defense Law. This law divests the Guatemalan courts of jurisdiction once a Plaintiff files their case in an alternative jurisdiction in this case, the U.S. District Court for the Southern District of Florida where the Defendants are domiciled. Defendants maintain their principal places of business in Florida. After the District Court dismissed the case on FNC grounds, a key assumption of its dismissal was proven incorrect Guatemala, indisputably, was not an available forum to Plaintiffs. Without an alternative forum, the District 6 After the Guatemalan court refused jurisdiction, Plaintiffs also filed a Motion for Reinstatement in the Eleventh Judicial Circuit Court for Miami Dade County on March 29, That court summarily denied Plaintiffs Motion in an unpublished decision. Dkt. 257, Ex. 2 (Order). Plaintiffs appealed this decision to the Third District Court of Appeal for the State of Florida, which affirmed the lower court s denial of Plaintiffs Motion for Reinstatement without publishing an opinion. Aldana v. Fresh Del Monte Produce, Inc., 86 So. 2d 1127 (Fla. 3d DCA 2012). 14

28 Court should have resumed jurisdiction over Plaintiffs case and its failure to do so violated the basic tenets of FNC law. In refusing to reinstate, the District Court imposed a new condition: Plaintiffs had to appeal the Guatemalan court s refusal of jurisdiction or otherwise seek extraordinary relief from the court s decision through a procedural challenge called an annulment (or nullidad in Spanish). The Guatemalan Court s refusal to accept jurisdiction is not appealable, and for reasons addressed herein, Plaintiffs could not file a nullidad without violating the Guatemalan Civil Code and Guatemalan Code of Professional Ethics. Even if they could, however, the District Court s original FNC dismissal did not require them to do so and imposing an ex post facto condition is fundamentally unjust and prejudicial. Moreover, even if the District Court s refusal to reinstate the case did not per se violate FNC law, the fact that Plaintiffs have now been foreclosed from litigating their human rights claims in any forum, through no fault of theirs, creates the kind of extraordinary circumstances justifying relief under Federal Rule of Civil Procedure 60(b)(6). Thus, the District Court s failure to grant relief under this provision also constitutes error. Finally, the District Court failed to consider an alternative ground upon which relief may be granted, Rule 60(d)(1). This rule may be invoked to avoid a 15

29 grave miscarriage of justice, which will occur here if Plaintiffs are not provided a forum in which to litigate the merits of their human rights claims. There is no ultimate factual question in this case concerning the injuries the Plaintiffs suffered they received asylum in the U.S. based on the very same human rights abuses for which they seek redress against Defendants. Denying reinstatement and leaving Plaintiffs without a forum to bring claims for the injuries they suffered violates FNC case law. This Court should therefore reverse the District Court s order denying Plaintiffs Motion for Reinstatement and reinstate the case so the merits of Plaintiffs claims for human rights violations can be adjudicated after more than a decade. VI. STANDARD OF REVIEW The District s Court s failure to apply the established rule of law that a conditional FNC dismissal must be reinstated once it is clear that the proposed alternative forum is not available is reviewed, as are all questions of law, de novo. See Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1220 (11th Cir. 2002) ( We review the district court s decision to grant or deny equitable relief for abuse of discretion, underlying questions of law de novo, and findings of fact upon which the decision to grant equitable relief was made under the clearly erroneous standard. ); Irish National Ins. Co. v. Aer Lingus Teovanta, 739 F.2d 90, 92 (2d Cir. 1984) (noting that while district courts enjoy discretion in deciding whether to 16

30 dismiss based on FNC, there would be little purpose in Congress giving this Court a power of review if it was not a meaningful one, including the right to determine whether the district court reached an erroneous conclusion on either the facts or the law. ). Further, questions of foreign law, here the significance of the Guatemalan court order denying jurisdiction, are reviewed de novo. Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1164 n.5 (11th Cir. 2009); see also Fed. R. Civ. P. 44. Even when a court of appeals reviews a dismissal based on forum non conveniens for abuse of discretion, Leon v. Million Air, Inc., 251 F.3d 1305, 1310 (11th Cir. 2001) (quoting Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 951 (11th Cir. 1997)), [a] district court by definition abuses its discretion when it makes an error of law. Prophet v. International Lifestyles, Inc. 447 Fed. App x. 121, (11th Cir. 2011) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)); see also Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) ( In the forum non conveniens context, a district court may abuse its discretion by relying on an erroneous view of the law, by relying on a clearly erroneous assessment of the evidence, or by striking an unreasonable balance of relevant factors. ) (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 511 (9th Cir. 2000)); Robinson v. TCI/US West Communications, 17

31 Inc.,117 F.3d 900, (5th Cir.1997) ( failure to include a return jurisdiction clause in an f.n.c. dismissal constitutes a per se abuse of discretion. ). Whether the District Court erred in refusing to grant relief under Federal Rule of Civil Procedure 60(b)(6) or 60(d)(1) is reviewed for abuse of discretion. Johnson v. American Sec. Ins. Co., 392 Fed. App x. 838, 839 (11th Cir. 2010) ( We review the denial of post-judgment motions for abuse of discretion. ). VII. ARGUMENT A. The District Court Erred by Not Reinstating Plaintiffs Case When, Following its FNC Dismissal, the Guatemala Court Demonstrated Beyond Dispute that Guatemala Is Not An Available Forum. noted that: Prior to denying Plaintiffs Motion for Reinstatement, the District Court [I]t is troubled by the notion of dismissing a lawsuit in this forum based on the doctrine of forum non conveniens when there is a Guatemalan law precluding Plaintiffs from proceeding in those courts. Given that law, a forum non conveniens dismissal becomes an adjudication on the merits leaving the Plaintiffs with no forum in which to proceed and receive an adjudication of their claims. Surely, that is not the essence of forum non conveniens doctrine intended to allow parties to litigate in a more convenient forum. Dkt. 256, at 2 (Order granting stay of Plaintiffs Motion for Reinstatement). Despite this initially correct statement of the FNC doctrine, the District Court later denied reinstatement citing only Plaintiffs failure to appeal the Guatemalan court s refusal to accept jurisdiction. Aldana, 2012 WL , at *7. It is undisputed that the plain language of the District Court s original FNC dismissal 18

32 did not require the Plaintiffs to appeal any decision by the Guatemalan court. Id. The District Court expressly acknowledged that [u]nlike the forum non conveniens dismissals in Warter [v. Boston Secs., S.A., 380 F.Supp.2d 1299, 1316 (S.D. Fla. 2004)] and Palacios [v. The Coca-Cola Co., No. 10-CIV-3120 (RJS) S.D.N.Y. Aug. 18, 2011)], the Aldana order dismissing this case for forum non conveniens did not contain such a precondition to reinstatement. Id. Thus, unlike any other case cited by the District Court or the Defendants below, the District Court applied entirely new conditions to reinstatement after Plaintiffs conclusively established the Guatemalan court was not available. Regardless of the propriety of this belatedly-imposed condition, however, Plaintiffs demonstrate below that the Guatemalan court s decision was not appealable. 1. There is no dispute the Guatemalan court found it lacked jurisdiction over Plaintiffs case, making Guatemala unavailable as a forum. Defendants filed a motion to dismiss based on FNC and urged the District Court to send the case to Guatemala. Dkt Plaintiffs vigorously opposed the motion on multiple grounds. As the District Court acknowledged in its order denying Plaintiffs Motion for Reinstatement, when advocating to dismiss this case in favor of Guatemala, neither the Defendants nor their expert mentioned that jurisdiction would likely be refused under the Law of Defense of Procedural Rights for Nationals and Residents, Decree ( Defense Law )), which is the 19

33 Guatemalan law that codifies a plaintiff s choice of forum as one that cannot be disturbed once a plaintiff has chosen a court with jurisdiction. 7 See Dkt. 226, Ex. B; see also Aldana, 2012 WL , at *6. 8 On December 6, 2010, 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. One day later, on December 7, 2010, the Guatemalan court issued an order finding it lacked jurisdiction. Id. at *3 (quoting the entirety of the English translation of the Guatemalan Court s order). In that order, the court referred to the law of Guatemala that divests all Guatemalan courts 7 Under fixed rules of civil law in Guatemala, concurrent jurisdiction may lie with courts of a defendant s domicile and the courts where the harm occurred. See Dkt. 226, Ex. D (attaching portions of Guatemalan law and their translations, including Guatemalan Código Procesal Civil y Mercantil (Civil and Commercial Procedural Code) art. 17.). Like other civil law systems, however, Guatemalan law recognizes the doctrine of preemptive jurisdiction, under which the jurisdictional base of one court is dissolved with the filing of the case in another court. Id. (including Civil and Commercial Procedural Code art. 5); see also Aldana, 2012 WL , at *6 (quoting Defense Law, art. 2). In other words, the Defense Law prohibits Guatemalan courts from taking jurisdiction over an action already filed abroad in a court of competent jurisdiction (in this case, the U.S. District Court for the Southern District of Florida and the Florida Circuit Court). 8 The District Court further determined that Article 3 of Decree did not provide an exception to this provision because the Court was unaware of Decree when it issued its order dismissing for forum non conveniens... Aldana, 2012 WL , at *6 (noting that Article 3 states, [i]n 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... ). Plaintiffs expert also opined that Article 3 did not provide an exception to the Guatemalan court s denial of jurisdiction for additional reasons. Dkt. 241, Ex. A (Hector Fajardo Villagran Decl ). 20

34 of jurisdiction once Plaintiffs filed their case in a foreign forum that had jurisdiction over Defendants. Dkt. 226, Ex. B. Plaintiffs expert, Hector Fajardo Villagran [hereinafter HFV ], provided declaration testimony after reviewing Plaintiffs complaint filed with the Guatemalan court and the Guatemalan court s dismissal opinion, and concluded that Plaintiffs had included all relevant information in their Guatemalan complaint and correctly provided a history of the prior dismissal in the United States. Dkt. 241, Ex. A (HFV Decl. 4, 6-8, 18, 27). The District Court s order denying reinstatement did not take issue with the substance and procedure of Plaintiffs effort to file their case in Guatemala in good faith. Aldana, 2012 WL , at *5-7. Rather, the District Court only held that Plaintiffs should have filed a petition for extraordinary relief, a nullidad, to challenge the Guatemalan Court s refusal to accept jurisdiction. Id. at *7. The procedural and substantive history demonstrate conclusively that there is no factual dispute that the Guatemalan court refused jurisdiction. The only issue, therefore, is whether the District Court erred as a matter of law when it denied reinstatement after it was proven the Guatemalan courts were not available, and thus an essential prerequisite to an FNC dismissal was no longer satisfied. Plaintiffs demonstrate in the next section that reinstatement was required under such extraordinary circumstances. 21

35 2. As a matter of law, the District Court was required to reinstate Plaintiffs case when Guatemala was no longer available as a forum. The District Court ignored the critical requirement in the FNC doctrine, and in its own prior ruling, that an alternative jurisdiction must be available. The law is clear that an action can only be dismissed for FNC if: 1. the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties; 2. the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs initial forum choice; 3. if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and 4. the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice. Prophet, 447 Fed. App x. at 124 (citing Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir. 2009)). Id. All elements must be met before a court may dismiss on FNC grounds. Id. If, as in this case, it becomes apparent that an alternative forum is not available, all cases setting the clear standards for FNC dismissal requires that the case must be reinstated.. Thus, although Plaintiffs also satisfy the requirements for relief under Federal Rules of Civil Procedure 60(b)(6) and 60(d)(1), see infra B.- C., reinstatement is procedurally proper through the application of FNC law because the original dismissal presupposed that Guatemala was an available forum. See Leon v. Millon Air, Inc., 251 F.3d at 1311 (affirming district court s FNC 22

36 dismissal because the District Court would presumably reassert jurisdiction over the case in the event that jurisdiction in the Ecuadorian courts [wa]s denied. ). An alternative forum is available to the plaintiff when the foreign court can assert jurisdiction over the litigation sought to be transferred. Id. (addressing dispute concerning whether foreign law precludes foreign courts from asserting jurisdiction over Plaintiffs claims is a dispute about availability). Every Circuit Court to consider the precise issue before this Court agrees that when a foreign court refuses to entertain a suit following an FNC dismissal, the domestic court must reassert jurisdiction. See, e.g., Gutierrez v. Advanced Medical Optics, Inc., 640 F.3d 1025, 1031 (9th Cir. 2011) (remanding for district court to reconsider its dismissal after foreign court declined to accept jurisdiction while appeal was pending); Fidelity Bank PLC v. M/T Tabora, 333 Fed. App x 735, (4th Cir. 2009) (vacating lower court s conditional dismissal and remanding after foreign court did not accept jurisdiction); In re Bridgestone/Firestone, Inc., 420 F.3d 702, (7th Cir. 2005) (vacating dismissal order because the very first forum non conveniens requirement an available alternative forum [wa]s no longer satisfied after the foreign country refused to hear the case, and remanding with instructions that plaintiffs be able to continue to pursue their claim against the defendants in the United States, unless fraud in the foreign proceedings is demonstrated); Mercier v. Sheraton Int l, Inc., 935 F.2d 419, 426 (1st Cir. 1991) 23

37 (reinstating case because [a]t a minimum, the district court should have granted a dismissal conditioned on the Turkish courts actually taking cognizance of a substitute action. ). In fact, the entire purpose of the FNC dismissal is to protect plaintiffs from being denied any forum in which to litigate the merits of their claims, with the recognition that if it later becomes apparent that the alternative forum refused jurisdiction and thus is not available, the plaintiff may seek reinstatement in the U.S. court. See, e.g., Ford v. Brown, 319 F.3d 1302, 1310 (11th Cir. 2003) ( approv[ing] of conditional dismissals, in which the district court dismisses the case only if the defendant waives jurisdiction and limitations defenses, and only if it turns out that another court ultimately exercises jurisdiction over the case. ); Carijano, 643 F.3d at 1243 (reversing for abuse of discretion because district court failed to place any mitigating conditions on its dismissal ); Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1182 (10th Cir. 2009) (upholding lower court s conditional dismissal where it permitted reinstatement in the U.S. court, without prejudice, should the foreign court decline to hear the case); Malaysia Int l Shipping Corp. v. Sinochem Int l Co., 436 F.3d 349, 363 n.21 (3d Cir. 2006) (explaining that conditional dismissals allow the district court to reassert jurisdiction in the event that the foreign court refuses to entertain the suit and provide protection to plaintiffs by ensuring that an adequate alternative forum will exist. ) (quoting 24

38 Ford, 319 F.3d at ), rev d on other grounds, 549 U.S. 422 (2007); Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 607 (10th Cir. 1998) (affirming district court s dismissal conditioned on defendants consent to have action reinstated if foreign court refused jurisdiction); Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 675 (5th Cir. 2003) (vacating FNC dismissal because the district court did not include a return jurisdiction clause in its dismissal order and remanding with instructions that one be added to ensure the parties be able to return to the dismissing court should the lawsuit become impossible in the foreign forum); El Fadl v. Central Bank of Jordan, 75 F.3d 668, 679 (D.C. Cir. 1996) (explaining that the district court may dismiss for forum non conveniens, but only if conditioned on the defendants submitting to jurisdiction in Jordan and on the Jordanian courts acceptance of the case. ), overruled on other grounds by Samantar v. Yousouf, 130 S. Ct (2010); Mizokami Bros. of Arizona, Inc. v. Mobay Chemical Corp., 660 F.2d 712, 719 (8th Cir. 1981) (vacating dismissal order where plaintiff raised a serious question of the availability of a Mexican forum and remanding with instructions that any subsequent dismissal be conditioned); Schertenleib v. Traum, 589 F.2d 1156, 1163 (2d Cir. 1978) (if the foreign forum refuses jurisdiction notwithstanding defendant s consent, plaintiff is still protected by the conditional nature of the dismissal. ); Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1372 (S.D. Tex. 1995) (concluding that the adequate 25

39 alternative fora in other countries will only be available... if the courts in those countries do not refuse to exercise jurisdiction over these actions. ). Conceptually, 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). A subsequent order from a foreign court dismissing this exact case for lack of jurisdiction is sufficient to overcome that working assumption that the alternative forum is not available. In re Ford Motor Co., 591 F.3d 406, 413 (5th Cir. 2009). The District Court s refusal to reinstate this case is an affront to the protections that this, and every, Circuit has developed for plaintiffs in cases where a foreign forum refuses to accept jurisdiction or is otherwise demonstrated to be unavailable. See, e.g., Leon, 251 F.3d at 1313 (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. ). In fact, in Leon, this Court specifically addressed a similar blocking statute under Ecuadorian law and noted that because of the uncertainty concerning future interpretation of that law, it required the District Court to include in its FNC dismissal a provision allowing the case to be reinstated in the event that jurisdiction to entertain such a case is rejected by a final decision of a court in Ecuador. Id. at Indeed, as the District Court in this case originally noted in 26