Petition for Writ of Certiorari — Jane Doe 8, et al., Petitioners v. Chiquita Brands International, Inc.

APPENDIX

ia

TABLE OF CONTENTS

Appendix A, Court of Appeals Decision

(Sep. 8, 2022)......................................................... 1a

Appendix B, District Court Decision

(Sep. 30, 2020)..................................................... 38a

Appendix C, Order Denying Rehearing

(Nov. 14, 2022) ..................................................... 66a

1a

APPENDIX A

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

___________________

No. 21-10211

___________________

Filed 09/08/22

MYRIAM RAMIREZ GARCIA,

substituted in place of Antonio Gonzalez Carrizosa, et

al.,

JANE DOE 8,

Plaintiff-Appellant,

versus

CHIQUITA BRANDS INTERNATIONAL, INC.,

Defendant-Appellee,

CHIQUITA FRESH NORTH AMERICA LLC,

substituted in place of Antonio Gonzalez Carrizosa, et

al.,

2a

___________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:08-md-01916-KAM

___________________

Before NEWSOM, MARCUS, Circuit Judges, and

COVINGTON, District Judge.*

MARCUS, Circuit Judge:

This action is about many things. It’s about one

U.S. company facing over four thousand accusations of

criminal conduct in a foreign country. It’s about a

putative class action that lasted more than a decade

before the plaintiffs moved for class certification. But

for us today, it’s largely about one issue: whether we

apply federal law or a foreign country’s law on the

availability of equitable class tolling in a Rule 23 class

action. At bottom, it’s about the reach of Erie Railroad

Company v. Tompkins.1

For almost a decade, Chiquita Brands

International, Inc. (“Chiquita”) funded a violent,

paramilitary terrorist group operating in Colombia.

Chiquita’s near-decade-long support for the terrorist

group spawned over a decade’s worth of litigation. One

putative class action under Federal Rule of Civil

*

Honorable Virginia H. Covington, United States District

Judge for the Middle District of Florida, sitting by designation

1

See 304 U.S. 64 (1938).

3a

Procedure 23, Cardona v. Chiquita Brands

International, Inc., was filed against Chiquita in 2007,

and it included only state and Colombian law claims

after the plaintiffs’ federal claims were dismissed by a

panel of this Court on interlocutory review.2

After class certification in Cardona was denied in

2019, the Plaintiffs here -- who were unnamed class

members in Cardona -- filed this Complaint in federal

district court in New Jersey, raising state and

Colombian law claims. The case was eventually

transferred by the Judicial Panel on Multidistrict

Litigation (“JPML”) to the Southern District of

Florida. That court dismissed the Colombian law

claims as time-barred, despite the Plaintiffs’

contention that they should have a right to equitable

tolling under the rule announced by the Supreme

Court in American Pipe3 -- a federal, judge-made rule

that tolls the statute of limitations for the claims of

unnamed class members while a putative Rule 23

class action is pending certification. The Plaintiffs

challenge that determination, and they also say that

the district court abused its discretion in denying their

request to amend the Complaint to (1) support their

claim for minority tolling,4 and (2) add claims under

the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, et seq.

2

See 760 F.3d 1185 (11th Cir. 2014).

3

See Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756,

38 L.Ed.2d 713 (1974).

4

Under the doctrine of minority tolling, the statute of

limitations for victims who were minors at the time of their

4a

We affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

Although there is a square conflict between Colombian

law and federal law in this diversity action, under

Erie, Colombia’s law prevails over the rule announced

in American Pipe. However, the district court abused

its discretion in dismissing the Plaintiffs’ Complaint

with prejudice without having allowed the Plaintiffs

the opportunity to amend to support their minority

tolling argument, although the district court correctly

denied the Plaintiffs’ application to amend their

Complaint to include Alien Tort Statute claims.

I.

The facts are straightforward. From 1997 to 2004,

the Auto-defensas Unidas de Colombia (“AUC”) -- a

violent paramilitary group in Colombia designated by

the U.S. government as a Foreign Terrorist

Organization (“FTO”) -- killed, tortured, and assaulted

thousands of Colombian civilians. Soon after Chiquita

pleaded guilty in the District Court for the District of

Colombia to one count of engaging in transactions with

a specially-designated global terrorist group (the

AUC) in violation of 50 U.S.C. § 1705(b), family

members of banana workers and others who had been

targeted and killed by the AUC filed a putative federal

class action in federal district court in New Jersey

against Chiquita on July 19, 2007 for its role in

funding, arming, and otherwise supporting AUC. The

injuries is tolled until those victims reach the age of majority. See

infra Section III.A.

5a

Cardona plaintiffs brought a Rule 23(b)(1) class

action, alleging claims under the ATS, the Torture

Victims Protection Act (“TVPA”), and pursuant to New

Jersey and Colombian law. In 2008, the JPML

centralized the Cardona action and several similar

actions in the Southern District of Florida.

In June 2011, the district court largely denied

Chiquita’s first motion to dismiss in the Cardona

action, but Chiquita appealed that determination to

our Court on an interlocutory basis. A panel of this

Court dismissed the ATS and TVPA claims. See

Cardona, 760 F.3d 1185 (11th Cir. 2014). The Cardona

plaintiffs then filed a second amended complaint in

November 2012, naming Chiquita and several of its

former executives and employees as individual

defendants. In March 2017, the Cardona plaintiffs

sought to file a third amended complaint to add

several hundred additional named plaintiffs -- the

same Plaintiffs here. But the district court denied that

motion, given the “advanced stage of the proceeding

and imminent scheduling of the matter for trial.” Class

certification was denied on May 31, 2019. No longer

putatively represented by the named plaintiffs in the

Cardona action, the Plaintiffs sued Chiquita Brands

in district court in New Jersey on March 25, 2020.

Complaint, Jane Doe 8, et al. v. Chiquita Brands Int’l,

Inc., Civ. No. 20-3244, DE 1, 2020 WL 1561707 (D.N.J.

Mar. 2020). The Complaint asserted various claims

under New Jersey law and violations of Colombian

6a

civil and criminal law. 5 The JPML transferred the

case to the Southern District of Florida.

The Plaintiffs’ case was cut short. The district

court granted Chiquita’s motion to dismiss with

prejudice, dismissing the remaining claims brought

under Colombian law as time-barred by Colombia’s

ten-year statute of limitations because the filing of the

Cardona action did not toll it. The district court also

dismissed all New Jersey state law claims on

extraterritoriality grounds -- a decision that the

Plaintiffs do not appeal.

The court concluded that the Plaintiffs’ Colombian

law claims were time-barred after performing a twostep choice-of-law analysis. For starters, the district

court rejected the Plaintiffs’ argument that, under

American Pipe, the Colombian statute of limitations

was tolled for the twelve years while class certification

was pending in Cardona. It explained that the judgemade rule announced in American Pipe concerned the

tolling of the statute of limitations only for claims

arising under federal law for Rule 23 purposes. The

5

The Complaint asserted these causes of action under New

Jersey law: War Crimes; Crimes Against Humanity; Terrorism;

Material Support to Terrorist Organizations; Extrajudicial

Killing; Torture; Cruel, Inhuman or Degrading Treatment;

Violation of the Right to Life, Liberty and Security of the Person;

Gross Violations of Internationally Recognized Human Rights;

Wrongful Death; Assault and Battery; Intentional Infliction of

Emotional Distress; Negligent Infliction of Emotional Distress;

Negligence and Negligent Hiring; and Loss of Consortium.

Plaintiffs allege the assertion of “analogous” claims against

Chiquita under Colombian law, pursuant to various sections of

the Colombian Civil Code and the Colombian Criminal Code

7a

district court agreed with many other federal courts,

which have held that Erie compels the conclusion that

state class tolling rules -- not the rule announced in

American Pipe -- control in diversity class actions.

After finding that American Pipe did not apply to

state law claims, the district court applied New Jersey

choice-of-law rules because the case had originally

been filed in New Jersey. The court observed that the

laws of New Jersey and Colombia were in “true

conflict” because, although one New Jersey appellate

court had embraced American Pipe’s equitable tolling,

Colombia had not recognized a similar principle.

Considering that Colombian law claims were at issue,

and the litigation’s only connection to New Jersey was

that Chiquita was incorporated there, the court

concluded that Colombia had “a more significant

relationship” to the parties in the litigation, and

therefore, Colombian law applied. The bottom line, the

court reasoned, is that Colombia’s ten-year statute of

limitations barred the Plaintiffs’ claims.

The Plaintiffs moved to Alter or Amend the Final

Judgment of Dismissal with Prejudice under Rule

59(e) of the Federal Rules of Civil Procedure. They

sought to include additional facts to establish that

some of the Plaintiffs still were entitled to minority

tolling and to add claims arising under the Alien Tort

Statute.

The district court rejected the application to

amend. As for minority tolling, the court explained

that the Plaintiffs failed to previously raise minority

tolling as a method of avoiding the limitations bar in

either their Complaint or their motion to dismiss, so

8a

any application to amend the Complaint on those

grounds had been waived. The district court reasoned

that it was clear from the face of the Complaint that

all of the claims were barred by Colombia’s statute of

limitations, so the Plaintiffs needed to explain how

those minor Plaintiffs’ claims were still live -- and they

failed to do so. As for the Plaintiffs’ ATS claims, the

court denied the application on futility grounds.

The Plaintiffs timely appealed the dismissal of

their Colombian law claims and the district court’s

denial of their request to amend to support their

minority tolling argument and to add ATS claims.

II.

We start with the district court’s dismissal of the

Plaintiffs’ Colombian law claims for failure to state a

claim, which we review de novo. Randall v. Scott, 610

F.3d 701, 705 (11th Cir. 2010). We also review de novo

a district court’s choice-of-law rulings, Strochak v.

Federal Ins. Co., 109 F.3d 717, 719 (11th Cir. 1997),

and its determinations of foreign law. United States v.

Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997); see also

Fed. R. Civ. P. 44.1. The Plaintiffs assert that the

American Pipe tolling principle applies under Erie (or

New Jersey or Colombian law), and class tolling saves

their claims from being timed out by Colombia’s

statute of limitations.

We observe at the outset that Erie Railroad

Company v. Tompkins and its progeny instruct us that

the substantive law of Colombia must be applied in the

same manner as we would apply the substantive law

of Texas or Florida. In Day & Zimmerman, Inc. v.

Challoner, the Supreme Court considered a personal

9a

injury action resulting from an explosion in Cambodia.

The district court, sitting in diversity, applied Texas

law. 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975). The

Fifth Circuit recognized that this was likely in error

and “stated that were it to apply Texas choice-of-law

rules, the substantive law of Cambodia would

certainly control as to the wrongful death, and perhaps

as to the claim for personal injury.” Id. The appellate

court nevertheless declined to apply choice-of-law

rules that would result in the application of “the law

of a jurisdiction that had no interest in the case, no

policy at stake.” Id. at 4, 96 S.Ct. 167.

The Supreme Court reversed and held that a

federal court sitting in Texas must apply Texas choiceof-law rules. The Court explained, “[a] federal court in

a diversity case is not free to engraft onto those state

rules exceptions or modifications which may commend

themselves to the federal court, but which have not

commended themselves to the State in which the

federal court sits.” Id. In other words, a federal court

cannot decline to apply the correct choice-of-law rule

merely because it does not like the outcome -- even if

that outcome results in the application of a foreign

sovereign’s law.

Various federal courts have followed this principle

wherever the choice-of-law rule has taken them. See,

e.g., Abogados v. AT&T, Inc., 223 F.3d 932 (9th Cir.

2000) (applying Mexican law); Spinozzi v. ITT

Sheraton Corp., 174 F.3d 842 (7th Cir. 1999) (applying

Mexican law); Brink’s Ltd. v. S. African Airways, 93

F.3d 1022 (2d Cir. 1996) (applying South African law);

CenTra, Inc. v. Estrin, 639 F. Supp. 2d 790 (E.D. Mich.

2009) (applying Canadian law); Faggionato v. Lerner,

10a

500 F. Supp. 2d 237 (S.D.N.Y. 2007) (applying French

law). We now reach the same conclusion and hold that,

in this case, Colombia must be considered just like a

“state” for Erie and choice-of-law purposes.

But that’s just the start of our analysis. The

question presented forces us to dive deep into Erie’s

“murky waters.” See Shady Grove Orthopedic Assocs.,

P.A. v. Allstate Ins. Co., 559 U.S. 393, 398, 130 S.Ct.

1431, 176 L.Ed.2d 311 (2010). Under Erie and its

progeny, “federal courts sitting in diversity apply state

substantive law and federal procedural law.”

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415,

427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). But as

every first-year law student quickly discovers, the

distinction between substance and procedure is often

hazy. To guide our Erie analysis, we explicated the

following four-step process in Esfeld v. Costa Crociere:

The first step of the analysis is to determine

whether state and federal law conflict with

respect to the disputed issue before the

district court. If no conflict exists, then the

analysis need proceed no further, for the court

can apply state and federal law harmoniously

to the issue at hand. However, if the

applicable state and federal law conflict, the

district court must ask whether a

congressional statute or Federal Rule of Civil

Procedure covers the disputed issue. Hanna

v. Plumer, 380 U.S. 460, 469–70, 85 S.Ct.

1136, 1143, 14 L.Ed.2d 8 (1965). If a federal

statute or rule of procedure is on point, the

district court is to apply federal rather than

state law. If no federal statute or rule is on

11a

point, then the court must determine whether

federal judge-made law, rather than state

law, should be applied.

In making this determination respecting

federal judge-made law, the district court

should begin its inquiry by deciding whether

failure to apply state law to the disputed issue

would lead to different outcomes in state and

federal court. Guaranty Trust Co. v. York, 326

U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079

(1945). That is, with respect to the state law

standard at issue, the court must ask: “Would

application of the standard have so important

an effect upon the fortunes of one or both of

the litigants that failure to apply it would

unfairly discriminate against citizens of the

forum State, or be likely to cause a plaintiff to

choose the federal court?” Gasperini, 518 U.S.

at 428, 116 S.Ct. at 2220 (internal

punctuation omitted). If the answer is “no,”

then the district court should apply federal

judge-made law. If the answer is “yes,”

meaning that state law is outcomedeterminative, the court must apply the state

law

standard,

unless

affirmative

“countervailing federal interests” are at stake

that warrant application of federal law. Id. at

432, 116 S. Ct. at 2222; Byrd v. Blue Ridge

Rural Elec. Coop., 356 U.S. 525, 537, 78 S.Ct.

893, 901, 2 L.Ed.2d 953 (1958). These steps,

when taken together, constitute the proper

analysis that a district court should employ in

cases involving Erie issues.

12a

289 F.3d 1300, 1307 (11th Cir. 2002) (citations

omitted).

We now embark on Esfeld’s four-step Erie

inquiry. At the end of our journey, we conclude that

Colombia’s interests outweigh the application of

federal law.

A.

Step one asks whether a conflict between federal

and state law exists. Under federal law, American

Pipe’s equitable rule would toll the Plaintiffs’ claims

while the Cardona plaintiffs awaited class

certification because they were unnamed class

members in that putative Rule 23 class action. See

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345,

350–51, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). But

determining whether a conflict with federal law exists

requires us to first decide which state’s tolling rule we

measure against American Pipe: New Jersey’s or

Colombia’s.

To choose between the two, we are obliged to

apply the choice-of-law rules of the state in which the

court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313

U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

New Jersey’s choice-of-law rules apply because the

case began in New Jersey before the JPML transferred

it to the district court in the Southern District of

Florida. See In re Volkswagen Audi Warranty

Extension Litig., 692 F.3d 4, 17–18 (1st Cir. 2012).

In McCarrell v. Hoffmann-La Roche, Inc. the New

Jersey Supreme Court crafted a two-step analysis to

tackle a choice-of-law dispute over determining the

applicable statute of limitations in a tort action. See

13a

227 N.J. 569, 153 A.3d 207, 215 (2017). McCarrell first

requires us to decide “whether the laws of the states

with interests in the litigation are in conflict” because

if the laws do not conflict, then the forum state’s law

governs. Id. at 216. Under New Jersey law, a conflict

arises “when choosing between one or another state’s

statute of limitations is outcome determinative.” Id.

Once a court has determined that a conflict exists,

McCarrell instructs New Jersey’s state courts to follow

Section 142 of the Second Restatement in determining

which state’s statute of limitations controls. Id. at 221.

Section 142 explains:

In general, unless the exceptional circumstances

of the case make such a result unreasonable:

(1) The forum will apply its own statute of

limitations barring the claim.

(2) The forum will apply its own statute of

limitations permitting the claim unless:

(a) maintenance of the claim would serve no

substantial interest of the forum; and

(b) the claim would be barred under the

statute of limitations of a state having a more

significant relationship to the parties and the

occurrence.

Restatement (Second) of Conflicts of Law § 142 (Am.

Law Inst. 1971).

Let’s start with what each forum’s law says. New

Jersey law permits class tolling. See Staub v. Eastman

Kodak Co., 320 N.J.Super. 34, 726 A.2d 955, 967 (N.J.

Super. Ct. App. Div. 1999), cert. denied, 161 N.J. 334,

736 A.2d 527 (1999). But interpreting a foreign

14a

country’s law (here Colombian law) is trickier. While

observing that the court’s “determination must be

treated as a ruling on a question of law[,]” Federal

Rule of Civil Procedure 44.1 permits a district court to

“consider any relevant material or source, including

testimony[.]” Fed. R. Civ. P. 44.1. Particularly because

Colombia is a civil law country, “the interpretations of

legal scholars are given significant weight in

determining the meaning of statutory provisions.” See

Palencia v. Perez, 921 F.3d 1333, 1340 (11th Cir.

2019); but see Mamani v. Sánchez de Lozada Sánchez

Bustamante, 968 F.3d 1216, 1246 (11th Cir. 2020)

(citation and quotation marks omitted) (“[We are not]

required to take those [expert] conclusions at face

value. A court can engage in its own research and

consider any relevant material thus found or to insist

on a complete presentation by counsel, but is not

obligated to take any such action.”).

To aid in its determination of Colombian law, the

district court turned to the affidavits submitted by

Chiquita’s expert, Professor Alberto Acevedo Rehbein

(“Professor Acevedo”), and the Plaintiffs’ expert,

Professor Jaime Alberto Arrubla-Paucar (“Professor

Arrubla”). Based on a thorough review of Colombian

law and Professor Acevedo and Professor Arrubla’s

affidavits, the district court determined that

Colombian law does not allow for equitable class

tolling. We agree.

As Chiquita’s expert explained, Colombia is a

civil law country, so the source of legal authority is

statutory law or legislative statutes -- not case law.

Professor Acevedo clarified that Article 2536 of the

Colombian Civil Code is the source of Colombia’s ten-

15a

year “ordinary” statute of limitations, a prescription

applicable to individual tort actions and that begins to

run as of the occurrence of the damaging event. Both

parties agree that this statute of limitations provision

applies. The relevant question is whether Colombian

law can equitably toll it.

According to Professor Acevedo, although the

statute may be “suspended” for certain unusual

reasons -- which only include minority tolling and the

disruption caused by acts of “force majeure” rendering

it impossible to file suit in Colombia -- there is no

equitable rule comparable to “the common law notion

of equitable tolling” applicable in civil actions. Nor did

the Plaintiffs identify another civil law rule in

Colombia (or a decision from Colombia’s highest court)

that would entitle them to equitable tolling.

We agree with Professor Acevedo’s assessment of

Colombian law. In the first place, the Plaintiffs make

three significant concessions: (1) they agree that

Colombia’s ordinary, ten-year statute of limitations for

tort actions applies; (2) they concede that “there is no

express legal standard that states a special statute of

limitations or that indicates when said term begins to

run” here; and (3) they admit that “this question has

rarely been discussed by the Supreme Court of

Justice[,]” which is Colombia’s highest court.

Plaintiffs’-Appellants’ App’x 867 ¶¶ 37–39 [“App’x”]

(emphasis added). In short, Colombian law has not

spoken on class tolling. And that silence speaks

volumes because, as a civil law country, Colombia

establishes its laws almost exclusively through

criminal and civil statutes -- not from the decisions of

its courts. As Professor Acevedo explained:

16a

Colombia’s Constitution provides that “law is

the primary source of rights.” Because

Colombia is of the civil (Roman) law tradition,

the word “law” in Colombia’s Constitution

means statutory law or legislative statutes.

As used in the Colombian Constitution, “law”

does not include case law. “Stare decisis” is

not applicable in Colombia. Rather, the sole

source of law is the law itself -- statutes

enacted by the legislature.

App’x 929–30, ¶ 9 (footnotes omitted).

Colombia’s system of class actions -- which bears

some similarities to our federal system of class actions

under Federal Rule of Civil Procedure 23 -- does not

change the calculus on equitable tolling. Article 88 of

the 1991 Colombian Constitution specifically provides

for a system of class actions. To develop the principles

set forth in Article 88, the Colombian Congress

enacted the Popular and Group Actions Act in 1998,

which created two systems of collective action: acción

popular (popular action) and acción de grupo (group

action). L. 472, Agosto 5, 1998, [art. 1] Diario Oficial

[D.O.] (Colom.); see also Manuel A. Gómez, Will the

Birds Stay South? The Rise of Class Actions and Other

Forms of Group Litigation Across Latin America, 43 U.

Miami Inter-Am. L. Rev. 481, 496 (2012). Unlike the

popular action, which allowed plaintiffs to seek

injunctive relief, the group action was “devised to offer

a redress mechanism to a group, category or class of

individuals uniformly situated with respect to an

event or product that allegedly caused them harm[,]”

allowing those aggrieved plaintiffs to collectively “seek

17a

monetary compensation for individual damages

suffered by class members.” Gómez, supra, at 497–98.

Article 53 of the Popular and Group Actions Act

explains the following procedures regarding the

admission of group actions:

Within ten (10) working days of filing a

lawsuit, the competent judge will admit or

dismiss it. In the court order admitting the

lawsuit, in addition to having such court

order sent the defendant within ten (10) days,

the judge will order for each defendant to be

personally notified. In class-action lawsuits,

the members of the class action suit will be

informed through the press or through any

effective means considering the potential

beneficiaries thereof. For these purposes, the

judge may simultaneously use different

means of communication.

L. 472, Agosto 5, 1998, [art. 53] Diario Oficial [D.O.]

(Colom.). Notably, group or class actions have a

statute of limitations of only two years, compared to

ten years for individual tort actions.

“With respect to class certification, the only two

factors analyzed by the court to decide whether a claim

should proceed as a group action are whether the

alleged harm by all class members arose out of a

common cause, and whether the two-year statute of

limitation has expired.” Gómez, supra, at 499. After

certification is completed, class members can still opt

in within twenty days and opt out within five days

following the term established to effect service of

process. Id. at 499–50. The end of the opt-out period is

18a

accompanied by a settlement hearing and a final

decision on the merits, which has res judicata effect for

those class members who did not opt out. Id. at 500. If

a class member did opt out of the group action, she is

still entitled to file an individual claim under

Colombia’s ordinary ten-year statute of limitations for

tort actions.

Our own review of scholarship on the legal system

of Colombia and civil law countries supports the

bottom-line conclusion that Colombia lacks an

equitable class tolling rule. Along with adopting a

Roman Law system, Colombia “imported the French

doctrine of separation of powers, as well as France’s

theory of sources of law.” Luz Estella Nagle, Evolution

of the Colombian Judiciary and the Constitutional

Court, Ind. 6 Int’L & Comp. L. Rev. 59, 69 (1995). This

separation of governmental power “established a

judiciary subservient to the role of the legislative and

executive branches[.] ... As such, there was a rigid

anti-judicial review attitude.” Id. at 70. Judges were

relegated to “a supporting role” and were only charged

with articulating and assiduously applying the

legislative code. Id.

Consequently, “civil law systems are ‘closed,’ in

the sense that every possible situation is governed by

a limited number of general principles.” William

Tetley, Mixed Jurisdictions: Common law v. Civil Law

(Codified and Uncodified), 60 La. L. Rev. 677, 706

(2000). Because the legislative code governs the

outcome of a case, “there is no binding rule of

precedent” in civil law systems -- “[e]ach new decision

must be grounded on the authority of the legislative

text which provides the basis of continuity and

19a

stability.” Joseph Dainow, The Civil Law and the

Common Law: Some Points of Comparison, 15 Am. J.

Comp. L. 419, 426 (1966); see also Federal Judicial

Center, A Primer on the Civil-Law System 36 (1995)

(“In civil-law systems, the role and influence of judicial

precedent, at least until more recent times, has been

negligible[.] ... Civil-law judges or their scholaradvisers initially look to code provisions to resolve a

case, while common-law judges instinctively reach for

casebooks to find the solution.”).

Because of the strict limits that a civil law system

imposes on its judges, “the civil law judge lacks

inherent equitable power.” John H. Merryman &

Rogelio Pérez-Permdomo, The Civil Law Tradition: An

Introduction to the Legal Systems of Europe and Latin

America 52 (4th ed. 2019). While civil law countries

can delegate equitable power to judges, their

legislatures make the deliberate choice to delegate

power in limited, carefully defined circumstances. Id.

at 52–53. Equitable doctrines -- like American Pipe’s

class tolling rule -- could become the law in civil law

countries only if the legislature passes such a rule or

when it explicitly delegates to the courts the power to

create that doctrine. Neither has transpired in

Colombia, so Colombian law does not allow for class

tolling.

The Plaintiffs still maintain that Colombian law

recognizes class tolling in these unique circumstances.

Professor Arrubla offers that “it is possible” that

Colombia’s ordinary ten-year statute of limitations

could be construed to create an exception for

“imprescriptible” civil actions arising from “crimes

against humanity.” App’x 866 ¶ 33 (emphasis added).

20a

Or, he maintains, Colombia’s statute of limitations

would be suspended due to impossibility or

interrupted because of the Cardona litigation.

Neither argument is persuasive. The Plaintiffs’

imprescriptibility argument fails because it presumes

that Colombian courts would implicitly read an

equitable tolling provision into Colombian civil laws

where one does not currently exist -- an assumption

hard to square with Colombia’s civil law system. And

the Plaintiffs’ impossibility and interruption

arguments similarly force us to play a guessing game

about how loosely related provisions of Colombia’s

Civil Code and its Procedural Code could save the

claims of unnamed class members who relied on a

federal putative class action in the United States.

Because inferring an equitable tolling principle in

Colombian law is not this Court’s prerogative,

Colombia’s ordinary ten-year statute of limitations for

individual tort actions applies without the benefit of

class tolling.

New Jersey law allows for class tolling, while

Colombian law does not. We next must decide whether

that conflict is “outcome determinative.” See

McCarrell, 153 A.3d at 216. For the same reasons why

applying federal law over Colombian law is outcome

determinative under step three from Esfeld, see infra

at Section II.C, the conflict between Colombian and

New Jersey law is plainly outcome determinative here:

The claims would be timely if we applied New Jersey

law, but time-barred if we applied Colombian law.

Because an outcome-determinative conflict exists,

and the forum (New Jersey) would permit the claim to

21a

proceed, McCarrell tells New Jersey’s state courts to

apply New Jersey law unless “(a) maintenance of the

claim would serve no substantial interest of the forum;

and (b) the claim would be barred under the statute of

limitations of a state having a more significant

relationship to the parties and the occurrence.” 153

A.3d at 221 (N.J. 2017) (quotation marks omitted).

Applying these principles, as the district court did

in this case, we conclude that Colombian law applies.

Under New Jersey law, the singular fact that a party

has been incorporated in the state, standing alone,

does not vest New Jersey with a substantial interest

in the matter. See id. at 217. The only connection the

Plaintiffs’ claims have to New Jersey is that it’s where

Chiquita is incorporated. The Plaintiffs’ claims are all

based on Colombian law; they arose out of Chiquita’s

criminal conduct in Colombia; and the claims only

involve Colombian citizens. New Jersey cannot fairly

be said to have a “substantial interest” in this matter.

See Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d

412, 414 n.3, 418 (1973), abrogated on other grounds

by McCarrell, 227 N.J. 569, 153 A.3d 207 (declining to

apply New Jersey law because North Carolina was

where the parties were located, where the cause of

action arose, and where all the relevant incidents

occurred). Plainly, Colombia has a far more

“significant relationship” with the parties and the

misconduct.

Not-withstanding

Chiquita’s

incorporation in New Jersey, New Jersey has no direct

ties to the acts or the victims.

The Plaintiffs claim, nevertheless, that New

Jersey has a more substantial interest in applying its

class tolling rule than Colombia, and that New Jersey

22a

has a more significant relationship with the class

tolling issue. But they fail to explain why the focus of

the “substantial interest” inquiry should be placed on

that rule - - rather than on the claims at issue. In any

event, the Cardona action was not even filed in a New

Jersey state court, so declining to apply New Jersey’s

class tolling rules would not frustrate New Jersey’s

class action procedure.

To recap, in the choice between New Jersey and

Colombian law, New Jersey’s conflict-of-laws analysis

leads us to pick Colombian law. We return to step one

from Esfeld: whether federal law (the rule announced

in American Pipe) and state law (Colombian law) are

in conflict. They are because federal law provides for

equitable class tolling while Colombian law does not.

Our Erie analysis continues.

B.

The second step in the calculus is easy. Esfeld

instructs us to “ask whether a congressional statute or

Federal Rule of Civil Procedure covers the disputed

issue.” 289 F.3d at 1307. If they do, the federal rule

trumps the state rule. Hanna, 380 U.S. at 473–74, 85

S.Ct. 1136. But because judge-made rules -- like the

one found in American Pipe -- do not qualify as Federal

Rules of Civil Procedure under Hanna v. Plumer, this

inquiry does not apply to them. See Carbone v. CNN,

Inc., 910 F.3d 1345, 1349 (11th Cir. 2018). We move on

to step three from Esfeld.

C.

Next up is the outcome-determination inquiry -“whether failure to apply state law to the disputed

issue would lead to different outcomes in state and

23a

federal court.” Esfeld, 289 F.3d at 1307. In Guaranty

Trust Company v. York, the Supreme Court propounded an “outcome-determination” test, explaining

that courts should ask the following question to

determine whether the application of a law would be

outcome determinative: “[D]oes it significantly affect

the result of a litigation for a federal court to disregard

a law of a State that would be controlling in an action

upon the same claim by the same parties in a State

court?” 326 U.S. at 109, 65 S.Ct. 1464. But the

Guaranty Trust test “was never intended to serve as a

talisman”; its application must instead further “the

twin aims of the Erie rule: discouragement of forumshopping and avoidance of inequitable administration

of the laws.” Hanna, 380 U.S. at 466–68, 85 S.Ct. 1136.

Even under Hanna’s modified version of

Guaranty Trust, applying the rule in American Pipe in

diversity class actions is “outcome determinative.” For

one, American Pipe would result in forum-shopping.

An unnamed class member of a former Rule 23

putative class action (where class certification was

denied) would have a longer time to file her individual

state law claim in federal court than in state court

because of American Pipe, so she would likely choose

the federal forum. And this result would also cause the

inequitable administration of the laws (at least when

federal class actions are filed predicated on state law

claims) because unnamed class members in a federal

forum would benefit from the class action vehicle,

while also individually getting a longer statute of

limitations period. By effectively modifying a state’s

statute of limitations, American Pipe would “alter[ ]

the mode of enforcement of state-created rights in a

24a

fashion sufficiently ‘substantial’ to raise the sort of

equal protection problems to which the Erie opinion

alluded.” See Hanna, 380 U.S. at 469, 85 S.Ct. 1136.

The Plaintiffs say that a putative class member

who waits to file her individual claim is not engaging

in forum-shopping because she is just following what

American Pipe tells her to do. But that counter is

unavailing because the federal forum affords her the

substantive advantage of filing past the state statute

of limitations.

D.

That just leaves one last step before applying

state law: deciding whether the countervailing federal

interests militate in favor of applying the rule in

American Pipe over Colombia’s interests in not

recognizing a class-tolling rule. See Byrd, 356 U.S. at

537, 78 S.Ct. 893. They do not.

Let’s begin with the obvious. For one, state

statutes of limitation are substantive rules that

federal courts sitting in diversity presumptively apply.

Gasperini, 518 U.S. at 427, 116 S.Ct. 2211. And

significantly, American Pipe and its successor, Crown,

Cork & Seal Co., Inc. v. Parker, involved federal causes

of action. In neither of those cases was jurisdiction

founded on diversity. American Pipe involved a claim

arising under the federal antitrust laws, and Crown

dealt with a lawsuit filed under Title VII of the Civil

Rights Act of 1964. Finally, and most importantly, a

tolling rule tends to follow the accompanying statute

of limitations -- so long as the former operates as an

“integral” part of the latter. Walker v. Armco Steel

25a

Corp., 446 U.S. 740, 746, 100 S.Ct. 1978, 64 L.Ed.2d

659 (1980).

Walker v. Armco Steel Corporation is the

launchpad for this part of our Erie analysis. In Walker,

the Supreme Court considered “whether in a diversity

action the federal court should follow state law or,

alternatively, Rule 3 of the Federal Rules of Civil

Procedure in determining when an action is

commenced for the purpose of tolling the state statute

of limitations.” Id. at 741, 100 S.Ct. 1978. Although the

plaintiff in that case had filed his complaint nominally

within Oklahoma’s statute of limitations period,

Oklahoma law did not consider the action

“commenced” for that purpose until the defendant had

been served -- and the plaintiff failed to serve the

defendant within the statutory window. Id. at 741–42,

100 S.Ct. 1978. The plaintiff argued that Rule 3 -rather than state law -- governed when an action

began, which would have allowed the plaintiff’s claim

to survive despite his delayed service. The Supreme

Court disagreed because:

Rule 3 governs the date from which various

timing requirements of the Federal Rules

begin to run, but does not affect state statutes

of limitations. In contrast to Rule 3, the

Oklahoma statute is a statement of a

substantive decision by that State that actual

service on, and accordingly actual notice by,

the defendant is an integral part of the

several policies served by the statute of

limitations. ... As such, the service rule must

be considered part and parcel of the statute of

limitations. Rule 3 does not replace such

26a

policy determinations found in state law. Rule

3 and [the Oklahoma Statute] ... can exist side

by side, therefore, each controlling its own

intended sphere of coverage without conflict.

Id. at 751–52, 100 S.Ct. 1978 (citations omitted); see

also Ragan v. Merchants Transfer & Warehouse Co.,

337 U.S. 530, 534, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949)

(similar).

Under Walker’s teachings, we think we must

apply Colombia’s no-class-tolling rule if it’s integral to

the operation of Colombia’s statute of limitations. See

Cambridge Mut. Fire Ins. Co. v. Claxton, 720 F.2d

1230, 1232–33 (11th Cir. 1983) (determining whether

Georgia’s statute regarding tolling was “integral” to

the operation of its statute of limitations, consistent

with Walker). Moreover, the Plaintiffs tell us very

little about Colombia’s no-class-tolling law and its

class action system, apart from offering aspirational

arguments about how Colombian law might equitably

toll the ten-year statute of limitations in the

circumstances of this case. That silence is notable,

after all, because the Plaintiffs shoulder the burden of

proving that Colombia’s interests are nothing more

than procedural in nature. See Chang v. Carnival

Corp., 839 F.3d 993, 996 (11th Cir. 2016) (“[I]t is the

plaintiff’s burden to show that equitable tolling is

warranted.”).

Based on what we know about Colombia’s class

action system, we make two observations. First,

Colombia’s class action system in some ways is

structured like Federal Rule of Civil Procedure 23.

Thus, for example, the named plaintiffs in both

27a

Colombian group actions and Rule 23 class actions,

prior to certification, putatively represent unnamed

class members and pursue relief that can bind

unnamed class members. See Fed. R. Civ. P. 23(e)(2)

(outlining several factors for a court to consider in

deciding to adopt a proposal that binds class

members). Unnamed class members in both systems

are informed of the suit through notice that is “most

practicable under the circumstances.” See Fed. R. Civ.

P. 23(c)(2)(b). And both systems allow class members

to opt out of the class action. See Fed. R. Civ. P.

23(e)(4).

Second, and significantly, Colombia’s class action

system places a strong premium on processing claims

with dispatch. Not only do Colombia’s judges have just

ten days to decide whether to “admit” or “deny” group

or class actions, but, as we’ve seen, Colombian law

provides for a short two-year statute of limitations for

group or class actions -- even though it has adopted a

ten-year statute of limitations for individual tort

actions. Contrast that with Rule 23, which places no

similar time limitation on class certification decisions,

allows the district court to revisit the class

certification determination until final judgment is

entered, and allows for interlocutory appeals to the

circuit courts of appeal from those decisions. See Fed.

R. Civ. P. 23(f). The time gap between group and

individual actions suggests that Colombia wants

group action decisions to be decided swiftly.

Although the decision of whether to “admit” or

“deny” a group action under Colombian law is

significantly more straightforward than whether to

certify a class action under Rule 23, that difference

28a

corroborates our understanding of Colombia’s

interests in its group action system. Colombian courts

consider only whether there’s a common cause

between the class members, whether there are at least

twenty members in the class, and whether the twoyear statute of limitations has passed when deciding

whether to certify a class. Rule 23 requires far more

than just satisfying numerosity and commonality to

certify a damages class action, which is essentially the

type of Rule 23 class action to which a group action is

most analogous because the group action seeks

monetary damages. In addition to demanding

adequacy of representation and ensuring that the

named plaintiff is typical of unnamed class members,

Rule 23(b)(3) also requires that the plaintiffs seeking

a damages class action show that “questions of law or

fact common to class members predominate over any

questions affecting only individual members, and that

a class action is superior to other available methods

for fairly and efficiently adjudicating the controversy.”

Fed. R. Civ. P. 23(b)(3). These differences underscore

that Rule 23 places a greater emphasis on accuracy

(that is, knowing that the class-action vehicle is the

better form of adjudication) than speed.

The most obvious conclusion we draw from these

observations, and from what the parties have told us

about Colombian law, is that the absence of a class

tolling rule in Colombia is part of and “integral” to the

operation of its statutes of limitation and its

expeditious group action system. See Walker, 446 U.S.

at 746, 100 S.Ct. 1978. As we previously discussed, see

supra at Section II.A, Colombia’s failure to codify class

tolling is a policy choice made by its legislature under

29a

its civil law system. Further, allowing for

“impossibility” and “minority tolling” in Colombia’s

legal system suggests that Colombia has created

“equitable” exceptions to its statutes of limitation in

two limited circumstances. But because Colombia has

created only these two exceptions without also

creating one for class tolling, the better inference is

that Colombia’s no-class-tolling rule is not just some

procedural afterthought, but is instead a purposeful

policy choice made by its legislature -- one that we

must honor under Erie.

A no-class-tolling rule furthers the operation of

Colombia’s group action system by, among other

things, ensuring that group admission decisions will

be decided quickly. Allowing for class tolling in this

case would extend the disposition of this litigation far

past Colombia’s statute of limitations for both group

and individual actions. It would undermine

Colombia’s significant interest in the expeditious

disposition of class actions, just like how applying

Federal Rule of Civil Procedure 3 over Oklahoma’s

tolling rule would have undermined Oklahoma’s

statute of limitations in Walker. This too suggests that

Colombia’s no-class-tolling rule is substantive, and

any countervailing federal interests cannot outweigh

the application of Colombian law.

Moreover, the overwhelming weight of circuit

authority supports today’s result. We begin with the

Fifth Circuit’s decision in Vaught v. Showa Denko K.K.

See 107 F.3d 1137 (5th Cir. 1997). In Vaught, the Fifth

Circuit applied a Texas rule proscribing class tolling,

notwithstanding the federal interests at play:

30a

[T]his Texas rule clearly conflicts with the

well-established federal practice on class

action tolling. We conclude, however, that, for

this case, the federal interest in that practice

does not trump the Texas tolling rule. Unlike

the situation in Byrd [v. Blue Ridge Rural

Electric Cooperative] or Hanna, neither the

federal constitution nor federal law would be

displaced. On the other hand, a tolling rule is

an “integral part” of a statute of limitations.

Therefore, Texas’ interest in its tolling rule

has quite considerable depth.

Id. at 1147 (citations omitted); see also Weatherly v.

Pershing, LLC, 945 F.3d 915, 925–28 (5th Cir. 2019)

(re-affirming Vaught and concluding that, because

Florida law does not allow the use of class tolling, state

interests prevail in the Erie analysis).

Just like the Texas legislature in Vaught,

Colombia seems to have adopted a class action system

that illustrates “a deliberate policy choice by [its]

legislature” favoring the speedy resolution of class

action claims. See 107 F.3d at 1147 (emphasis added);

see also Weatherly, 945 F.3d at 927 (emphasis in

original) (explaining that “[t]he Florida Legislature

did speak by enacting” a statute that did not allow for

class tolling). Barring class tolling in these

circumstances “is a means of enforcing [that] statute

of limitations.” See Vaught, 107 F.3d at 1147.

The Fourth, Second, and Seventh Circuits’

decisions on this issue are also persuasive. See

generally Casey v. Merck & Co., 653 F.3d 95 (2nd Cir.

2011); Wade v. Danek Med., Inc., 182 F.3d 281 (4th Cir.

31a

1999); Hemenway v. Peabody Coal Co., 159 F.3d 255

(7th Cir. 1998). In Wade v. Danek Medical, Inc., the

plaintiff was a putative member of two medical device

class actions in the Eastern District of Pennsylvania

and the Eastern District of Louisiana. Eventually,

those class actions were not certified, and the plaintiff

then filed an action in the Eastern District of Virginia.

182 F.3d at 284. That court, sitting in diversity,

determined that Virginia law applied, that the statute

of limitations had run, and that Virginia would not

equitably toll the statute of limitations. Id. at 288. The

panel in Wade thus faced a square conflict between the

rule announced in American Pipe and Virginia law.

The Fourth Circuit determined that, under Erie,

Virginia law should prevail. The court read Walker (in

addition to other companion cases) “to stand for the

proposition that, in any case in which a state statute

of limitations applies -- whether because it is

‘borrowed’ in a federal question action or because it

applies under Erie in a diversity action -- the state’s

accompanying rule regarding equitable tolling should

also apply.” Id. at 289. The Second Circuit, facing

almost exactly the same issue in Wade and relying in

part on Wade’s analysis, reached the same result. See

Casey, 653 F.3d at 100 (“[W]e now join the majority of

our sister courts that have addressed the issue in

holding that a federal court evaluating the timeliness

of state law claims must look to the law of the relevant

state to determine whether, and to what extent, the

statute of limitations should be tolled by the filing of a

putative class action in another jurisdiction.”). And the

Seventh Circuit also summarily reached the same

conclusion. See Hemenway, 159 F.3d at 265 (citation

32a

omitted) (“American Pipe ... dealt with claims under

federal law, for which the period of limitations was

also federal; this enabled the Supreme Court to craft

tolling rules as a matter of federal law. When state law

supplies the period of limitations, it also supplies the

tolling rules.”).6

Under Esfeld’s four-step inquiry, we conclude that

Colombia’s law, which does not recognize equitable

class tolling, must be respected. We, therefore, hold

that the equitable rule announced in American Pipe

did not toll Colombia’s ten-year statute of limitations

during the pendency of the Cardona litigation.

III.

With Erie behind us, we turn to the district court’s

denial of the Plaintiffs’ Rule 59(e) motion to amend.

The Plaintiffs charge the court with abusing its

6

The Plaintiffs’ reliance on the Eighth Circuit’s decision in

Adams Public School District v. Asbestos Corporation is

misplaced. See 7 F.3d 717 (8th Cir. 1993). For one thing, Adams’s

note that American Pipe is “sufficiently strong to justify tolling in

a diversity case when the state law provides no relief,” id. at 718–

19, is purely dictum because the court held that a new state law

prevented the plaintiff’s claim from being timed out by the

relevant statute of limitations. Id. at 719 (“This new statute is

clear evidence of the North Dakota legislature’s intent that the

six-year statute of limitations [does] not bar asbestos claims like

the school district’s. We can, therefore, serve both the federal and

state interests by applying the American Pipe rule so the present

claim is not barred.”). And even still, the Eighth Circuit did not

have to evaluate the Walker issue -- that is, whether the state

tolling rule was integral to the operation of the statute of

limitations -- so its reasoning is distinguishable.

33a

discretion in denying them an opportunity to amend

the Complaint to include facts supporting the right of

some of their members to minority tolling. They also

say that the district court should have allowed them to

amend the Complaint to include ATS claims.

A.

We begin with the Plaintiffs’ minority tolling

argument. “[O]ur cases say that a Rule 12(b)(6)

dismissal on statute of limitations grounds is

appropriate only if it is apparent from the face of the

complaint that the claim is time-barred.” La Grasta v.

First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.

2004) (quotation marks omitted). But a plaintiff’s

failure to plead facts that would prevent a dismissal

on statute of limitations grounds does not typically

warrant dismissal with prejudice. Federal Rule of

Civil Procedure 15(a)(2) allows a party to “amend its

pleading only with the opposing party’s written

consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

However, Rule 15(a)(2) provides that “[t]he court

should freely give leave when justice so requires.” Id.

We have explained that Rule 15(a)(2) “severely

restrict[s]” a district court’s ability to dismiss with

prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th

Cir. 2001) (quotation marks omitted). “Generally,

where a more carefully drafted complaint might state

a claim, a plaintiff must be given at least one chance to

amend the complaint before the district court

dismisses the action with prejudice.” Id. (emphasis

added) (cleaned up). There are exceptions, though.

Under Rule 15(a), a district court need not give leave

to amend under three circumstances:

34a

(1) where there has been undue delay, bad

faith, dilatory motive, or repeated failure to

cure deficiencies by amendments ...;

(2) where allowing amendment would cause

undue prejudice to the opposing party; or (3)

where amendment would be futile.

Id.7

The Plaintiffs concede “the original complaint did

not specify [the] Plaintiffs’ minority status.”

Appellant’s Br. at 57. Moreover, we already know that,

from the face of the Complaint, the Plaintiffs’ claims

are barred under the Colombian ten-year statute of

limitations. Under La Grasta v. First Union Securities,

Inc., the Plaintiffs needed to then show why the

statute of limitations would not apply -- and their

failure to do so warranted dismissal. See 358 F.3d at

845.

But it did not warrant a dismissal with prejudice.

Of the three reasons offered in Bryant v. Dupree, none

applies here. First, there is no evidence of bad faith or

delay on the part of the Plaintiffs, nor did the Plaintiffs

repeatedly fail to cure the deficiencies in their

minority tolling claim. In Bryant, we held that because

the plaintiffs had stated that, if given the chance to

7

As an aside, it is uncontested that both New Jersey and (more

pertinently) Colombian law provide for minority tolling. See N.J.

Stat. § 2A:14-21; App’x. 939–40 (citing Colombian Civil Code, Art.

2530). If certain Plaintiffs were minors when they or their loved

ones were harmed by the AUC, then those Plaintiffs would be

entitled to tolling until they reached the age of eighteen.

35a

amend, they could correct their pleading deficiencies,

the district court abused its discretion in refusing to

give them such an opportunity. 252 F.3d at 1164. The

circumstances are no different here. In their proposed

Amended Complaint, the Plaintiffs may not have

provided the birthdates of the minor victims to

corroborate their claim that certain Plaintiffs ought to

be entitled to minority tolling. But their proposed

Amended Complaint identified each Plaintiff who was

a minor before March 25, 2010, and this offers enough

by way of factual allegation to plausibly state a claim

for minority tolling for those Plaintiffs.

Second, Chiquita cannot explain -- nor can we

divine any reason -- why allowing the Plaintiffs just

one other opportunity to plead their entitlement to

minority tolling would cause Chiquita any prejudice.

It is true that the underlying litigation has spanned

more than a decade, but “[t]he lengthy nature of

litigation, without any other evidence of prejudice to

the defendants or bad faith on the part of the

plaintiffs, does not justify denying the plaintiffs the

opportunity to amend their complaint.” See Bryant,

252 F.3d at 1164.

Third, amendment would not be futile because, by

corroborating their claim to minority tolling with the

Plaintiffs’ birthdays, the Plaintiffs can more than

plausibly say that those Plaintiffs’ claims are not timebarred. Assuming that the Plaintiffs have accurately

characterized the age of the minor members, the

statute of limitations would not begin running for

those victims until they turned eighteen -- and the

earliest date that would be for the oldest minor victim

is March 26, 2010. Because the Plaintiffs filed suit on

36a

March 25, 2020, each minor victim’s claim is plausibly

timely. See Thomas v. Davie, 847 F.2d 771, 773 (11th

Cir. 1988) (explaining that the district court abused its

discretion in not allowing amendment when “it [did]

not appear beyond doubt that [plaintiff] cannot prove

a set of facts which would entitle him to relief”).

Chiquita doesn’t quibble about any of these

points. Instead, it simply asserts that the Plaintiffs

waived any right to claim minority tolling because

they “failed both in the opposition to Chiquita’s motion

to dismiss and in the briefing on the Rule 59(e) motion

to provide adequate factual support for their tolling

claims.” Appellee’s Br. at 51. But Chiquita

misconstrues the significance of waiver of an

argument in this context. Cf. Long v. Satz, 181 F.3d

1275, 1279 (11th Cir. 1999) (explaining that “[f]iling a

motion is the proper method to request leave to amend

a complaint”). Even if the Plaintiffs made only a brief

reference to minority tolling in their opposition to

Chiquita’s motion to dismiss, that failure should not

warrant the hefty sanction of dismissal with prejudice

because they properly requested leave to amend. And

because the Plaintiffs still raised the issue of minority

tolling in their Rule 59(e) motion, the issue is properly

before us.

Thus, as we see it, the district court abused its

discretion in failing to allow the Plaintiffs to amend

their Complaint.

B.

In their Rule 59(e) motion, the Plaintiffs also

sought to amend the Complaint to include claims

arising under the Alien Tort Statute in order to

37a

preserve those claims for appeal while they awaited

the Supreme Court’s decision in Nestle USA, Inc. v.

Doe. See ––– U.S. ––––, 141 S. Ct. 1931, 210 L.Ed.2d

207 (2021). The district court denied this request

because amendment would be futile. We affirm

because the Supreme Court’s decision came, and it

forecloses the Plaintiffs’ ATS claims. See id. at 1935

(holding that domestic corporations are not liable

under the ATS for causing injuries abroad based on

decisions made in the United States).

***

Erie’s waters are murky, but the result in today’s

choice-of-law dispute is clear: Colombian law prevails

over the rule announced in American Pipe. We also

hold that the district court erred by failing to allow the

Plaintiffs to amend to plead minority tolling, although

the district court correctly denied their attempt to add

ATS claims. We therefore AFFIRM in part,

REVERSE in part, and REMAND for further

proceedings consistent with this opinion.

38a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 08-MD-01916-KAM

IN RE: CHIQUITA BRANDS INTERNATIONAL,

INC. ALIEN TORT STATUTE AND

SHAREHOLDER DERIVATIVE LITIGATION

This Document Relates to ATS ACTION:

20-60831-CIV-MARRA (2020 N.J. Action)

(Jane Doe 8 et al. v. Chiquita Brands Int’l, Inc.)

_________________________________________________/

Filed September 30, 2020

ORDER GRANTING DEFENDANT CHIQUITA

BRANDS INTERNATIONAL, INC.’S MOTION

TO DISMISS 2020 NEW JERSEY ACTION

(Case No. 20-CIV-60831-MARRA) [DE 2664]

THIS CAUSE is before the Court on Defendant

Chiquita Brands International, Inc. (“Chiquita”)’s

Motion to Dismiss the Newly-Filed (2020) New Jersey

Complaint [DE 2664]. The 2020 New Jersey Plaintiffs

have filed their Opposition to the Motion [DE 2682]

and Defendant Chiquita has filed its Reply [DE 2683].

For reasons which follow, the Court grants the motion

39a

and dismisses this action as time barred under

Rule12(b)(6).

I. Background

Familiarity with the procedural history of the

original New Jersey putative class action, Does 1-11 v.

Chiquita Brands International, et al. (Case No. 0880421-CIV-MARRA) within the context of this MDL

proceeding is presumed. Key elements from the

procedural history of that case, as relevant to the

instant motion, are set forth as follows:

The original New Jersey putative class action

complaint, filed July 19, 2007, named only Chiquita as

defendant, along with various fictitious “Moe”

corporations and individuals. A Second Amended

Complaint, filed November 16, 2012, named Chiquita

and several of its former executives and employees as

Individual Defendants (Freidheim, Hills, Kistinger,

Olson, Keiser, Tsacalis). Five years later, on March 10,

2017, the putative named class representatives moved

to file a third amended complaint against the two

putative class defendants, seeking to add persons

previously included as unnamed members of the

putative

class

as

additional

named

class

representatives [DE 1289]. On March 27, 2017, the

Court denied this motion, citing the “advanced stage

of the litigation and imminent scheduling of [the]

matter for trial.” [DE 1315].

In between these two events, on March 11, 2017,

the same subset of persons proposed as additional

named class representatives in the original New

Jersey action filed two new putative class actions

against various former Chiquita executives in the

40a

Southern District of Florida, Does 1-205 et al. v. Cyrus

Freidheim and Charles Keiser (Case No. 17-cv-80323)

and the Southern District of Ohio, Does 1-205 et al. v.

Robert Olson, Robert Kistinger, William Tsaclais and

John Ordman (Case No. 17-cv-80547), cases now

consolidated in this MDL. Chiquita was not named as

a defendant in either case.

Two years later, in February 2019, the named

class representatives in the original New Jersey

Action moved for class certification under Fed. R. Civ.

P. 23(b)(3) [DE 2290]. On May 31, 2019, the Court

denied that motion [DE 2471]. No appeal was taken

from this order.

Approximately one year later, on March 25, 2020,

the named class representatives in the 2017

Ohio/Florida putative class actions filed the abovestyled 2020 New Jersey Action, this time naming

Chiquita Brands International Inc. as sole Defendant.1

The 2020 New Jersey Complaint asserts wrongful

death claims against Chiquita, in addition to other

torts, under New Jersey and Colombian law.2

1

This is the same group of Plaintiffs offered as additional

named class representatives in the original New Jersey Plaintiffs’

unsuccessful bid to file a third amended complaint: The 2020 New

Jersey Plaintiffs specifically identify themselves as persons

drawn from the pool of unnamed members of the (failed) putative

class described in that original New Jersey Action [2020 New

Jersey Complaint, ¶ 1031].

2

The 2020 New Jersey Complaint asserts the following causes

of action under New Jersey law: War Crimes; Crimes Against

Humanity; Terrorism; Material Support to Terrorist

41a

The 2020 New Jersey Complaint alleges, under a

section captioned “Jurisdiction,” that “[t]he Court has

jurisdiction over this case with respect to claims based

on the laws of New Jersey, any other applicable state,

and/or the laws of Colombia.” [Case 20-CV-60831,

2020 NJ Complaint, DE 1, ¶ 3]. Since all Plaintiffs are

alleged to be residents and citizens of Colombia, while

Defendant Chiquita is alleged to be a corporation

organized under the laws of New Jersey,

headquartered in Fort Lauderdale, Florida,

presumably the 2020 New Jersey Plaintiffs intend to

invoke this Court’s diversity of citizenship jurisdiction,

pursuant to 28 U.S.C. § 1332(a)(2), over the asserted

New Jersey and Colombian tort claims.

By its current motion, Chiquita seeks dismissal of

the 2020 New Jersey Plaintiffs’ Colombian law claims

under Rule 12(b)(6) as time-barred under the ordinary

ten-year Colombian statute of limitations. It also

moves to dismiss the state law claims pursuant to this

Organizations; Extrajudicial Killing; Torture; Cruel, Inhuman or

Degrading Treatment; Violation of the Right to Life, Liberty and

Security of the Person; Gross Violations of Internationally

Recognized Human Rights; Wrongful Death; Assault and

Battery; Intentional Infliction of Emotional Distress; Negligent

Infliction of Emotional Distress; Negligence and Negligent

Hiring; Loss of Consortium. [Case No. 20-60831-CIV-MARRA]

[Complaint, DE 1, ¶¶ 1032-1162]. The 2020 New Jersey Plaintiffs

allege, in a footnote, the assertion of “analogous” claims against

Chiquita under Colombian law under various sections of the

Colombian Civil Code and the Colombian Criminal Code

[Complaint, DE 1, ¶1022 (p. 139 n. 1) ].

42a

Court’s prior rulings rejecting the extraterritorial

reach of various state common laws.3

II. Summary of Arguments

A. Chiquita’s Limitations Defense

Chiquita contends that New Jersey choice-of-law

rules govern in this diversity action, resulting in

application of the Colombian ten-year ordinary statute

of limitations, and any accompanying tolling rules.

3

As to the non-Colombian law claims asserted under New

Jersey and “other applicable state” law, the 2020 New Jersey

Plaintiffs recognize that this Court previously rejected

application of state tort laws to claims arising from the

extraterritorial deaths of their family members, and advise that

they reassert these claims here solely for purposes of preserving

them. Plaintiffs also contend, incorrectly, that they have

“brought” Alien Tort Statute (“ATS”) claims in this action, also

for the stated purpose of preserving the claims. They

acknowledge that the latter are foreclosed by Cardona v.

Chiquita Brands International, 760 F.3d 1185 (11th Cir. 2014)

(rejecting ATS claims based on extraterritorial conduct of

Colombian paramilitaries against Colombian citizens) [DE 2682

pp. 4-5], but ask this Court to defer ruling on the viability of their

purported ATS claims pending resolution of related issues of ATS

statutory interpretation now before the U.S. Supreme Court in

Cargill Inc. v. Doe and Nestle USA Inc. v. Doe [DE 2682 p. 4].

However, since the 2020 New Jersey Complaint does not allege

any claims under the ATS or any other federal statutory

authority, this Court finds no occasion to address or defer ruling

on the viability of any hypothetical claims falling into this

category.

Given the Plaintiffs’ exposition on these items, the Court

dismisses with prejudice all state law claims, declines to issue an

advisory opinion on unpled ATS claims, and now turns its

analysis to Chiquita’s time-bar challenge to the Colombian law

tort claims.

43a

Contending that this statute knows of no exception for

civil actions based on crimes against humanity, class

action tolling, or other equitable tolling precepts,

Chiquita argues that Plaintiffs’ Colombian law tort

claims are time-barred on the face of the 2020 New

Jersey Complaint.

To establish the relevant Colombia law, Chiquita

offers the affidavit of a Colombian law expert,

Professor Alberto Acevedo Rehbein [DE 2664-2].

Professor Acevedo identifies Article 2536 of the

Colombian Civil Code as the source of Colombia’s tenyear “ordinary” statute of limitations, applicable to

individual tort actions, a prescription which begins to

run as of the occurrence of the damaging event. Id. at

¶¶ 8, 10. He discusses certain circumstances under

which the statute may be “suspended,” such as the

minority of a party, or a disruption caused by acts of

“force majeure” rendering it impossible to file suit. He

contrasts these circumstances to an “interruption” of

the statute, triggered by filing of a complaint against

a defendant, or the (first) issuance of a written demand

letter. Id. at ¶¶13-14. Professor Acevedo states that

Colombian law otherwise “does not have a specific or

equitable rule regarding the common law notion of

equitable tolling” applicable in civil actions. Id. at ¶

15.

Further, while “group” actions brought on behalf

of multiple claimants are authorized under Colombian

law, Professor Acevedo states that the filing of such an

action will not “interrupt” the running of the statute

for any person beyond those named as members of the

group, i.e. the “interruption” triggered by filing of a

group action will not extend to other individual actions

44a

not yet filed. Id. at ¶¶ 16-17, 19. Finally, Professor

Acevedo identifies the underpinning policy rationale

for the limitations, explaining that Colombia’s

prescriptions are intended to “ensure [ ] peaceful

coexistence, grant certainty and ultimately, the right

to peace, by limiting the uncertainty and unrest

generated by never-ending disputes.” Id. at ¶18, n. 12

(citing Ruling C-597/98 of Colombia’s Constitutional

Court).

B. Plaintiffs’ Avoidance of Time-Bar

1. American Pipe Class Action Tolling

As a threshold proposition, Plaintiffs contend that

their claims are preserved under application of the

American Pipe class action tolling rule, as a matter of

federal law, obviating the need to engage in a choice of

law analysis. Thus, regardless of whether the

Colombian or New Jersey statute of limitation is in

play, Plaintiffs argue that their claims were tolled

during the pendency of the original New Jersey

putative class action, and that their current

Complaint is not barred, on its face, by statute of

limitation applications.

American Pipe is a rule that tolls the time for

absent class members to bring a claim while a class

action is pending of which they are members.

American Pipe & Constr. Co. v. Utah, 414 U.S. 538

(1974). The American Pipe case concerned the tolling

of claims under a federal statute, the Sherman Act.

Invoking the rule here, as unnamed members of the

putative class identified in the original New Jersey

Action, the 2020 New Jersey Plaintiffs contend that

their individual claims were tolled from the date that

45a

action was filed (July 19, 2007) up through the date on

which class certification was denied (May 31, 2019)

[DE 2682, pp. 9-10, citing In re Gen. American Life Ins.

Co. Sales Practices Litig, 391 F.3d 907, 915 (8th Cir.

2004)].

Alternatively, if American Pipe is not held

applicable here, they contend that New Jersey choiceof-law precepts control, resulting in application of New

Jersey limitations law and related tolling rules. They

contend that a New Jersey analogue to American Pipe

tolling is available, citing a New Jersey intermediate

appellate court opinion holding that an unnamed class

member’s participation in a putative class action

lawsuit tolls the running of the limitations period for

his or her individual state law claims. Staub v.

Eastman Kodak Co., 320 N.J. Super. 34, 726 A.2d 955,

966-67 (N.J. Sup. Ct. App. Div. 1999) (recognizing

cross-jurisdictional class action tolling for state law

claims).

2. Colombian Law: Imprescriptibility of

Crimes Against Humanity

As a third alternative, if American Pipe tolling is

unavailable as a matter of federal law, or a New Jersey

analogue, and Colombian law is found to control the

limitations issue, Plaintiffs argue that their claims are

not time-barred under Colombia’s general ten-year

statute of limitations because: (1) crimes against

humanity are “imprescriptible” under Colombian law,

as that law has predicted by their Colombian law

expert and (2) Colombian law, again as predicted by

their legal expert, would likely recognize a concept

comparable to “class action tolling,” thereby tolling the

46a

statute for the term of the pendency of the original

New Jersey putative class action.

As to their first argument, Plaintiffs’ legal expert,

Professor Jaime Alberto Arrubla-Paucar (“Arrubla”),

proposes that Colombia’s “ordinary” ten-year statute

of limitations could “reasonably” be read to permit an

exception for civil actions arising from “crimes against

humanity,” rendering such actions “imprescriptible.”

Professor Arrubla recognizes – concurring with

Chiquita’s legal expert -- that “ordinary” tort claims

under the Colombian Civil Code are subject to a

general ten-year statute of limitations, codified at

Article 2536 of the Colombian Civil Code [DE 2682-1,

¶ 15], and that this limitations provision does not

expressly recognize any equitable “tolling” exceptions.

Professor Arrubla also recognizes there “is no

legal standard in Colombian legislation that expressly

governs the imprescriptibility of civil suits arising

from commission of crimes against humanity,” and

further notes that the Supreme Court of Justice,

Colombia, the nation’s “highest body of ordinary

jurisprudence ... has not expressly manifested on the

applicability or imprescriptibility” of such torts. Id. at

¶ 25. However, because the Colombian Criminal Code

considers “crimes of genocide, crimes against

humanity and war crimes” to be “imprescriptible,” id.

at ¶¶ 22-23, and because the Attorney General of the

Nation’s office has specifically recognized “payments

or financing made by banana companies to

paramilitary groups” as crimes against humanity,” id.

at ¶ 24, Professor Arrubla concludes that it is

“reasonable” to interpret Colombia’s Civil Code in the

same manner, advancing such an interpretation as

47a

one “in agreement with international conventions or

treaties on human rights ratified by Colombia.” Id. at

¶ 25.

Professor

Arrubla

theorizes

that

this

interpretation best aligns with Colombia’s ratification

of international treaties generally promoting the

protection of human rights, as well as a recent opinion

issued by the Inter-American Court of Human Rights

interpreting Chilean legislation. Id. at ¶¶ 26, 27, 31,

33. 4 Against this backdrop, Professor Arrubla

concludes it is “possible” to infer “that civil suits

involving civil liability arising from the commission of

crimes against humanity are imprescriptible, as this

is the only manner of ensuring victims their basic

rights to the truth, justice and reparation.” Id. at ¶ 33.

3.

Colombian

Law:

Limitation

Suspension and Equitable Tolling

Alternatively, Professor Arrubla opines that: (1)

the Colombian ten-year ordinary statute of limitations

might be subject to suspension “for as long as [any

individual plaintiffs] were unable to carry out the

respective actions, either due to violence,

displacement, threats, kidnapping or any other

circumstance that hindered them from exercising

4

Professor Arrubla acknowledges that this aspect of his

opinion directly conflicts with a January 29, 2020 pronouncement

from the Colombian Council of State criticizing the InterAmerican Court of Human Rights’ ruling on Chilean legislation

as inconsistent with established rules of interpretation governing

the Colombian Civil Code. Id. at ¶¶ 28-29.

48a

their rights,” id. at ¶57, 5 or, (2) the running of the

Colombian statute of limitations might be deemed

interrupted by the filing of the original New Jersey

putative class action, as to unnamed members of that

class who now bring individual claims against

Chiquita. Such an interpretation of the Colombian

statute, he contends, is “most in agreement with the

principle of access to administration of justice” as

5

In support of this theory, Professor Arrubla draws from

provisions of the Colombian Administrative and ContentiousAdministrative Procedural Code, Article 164, stating that a

victim of the crime of “forced disappearance” seeking to bring a

claim for direct reparation has two years to pursue such a claim,

running from the date on which the victim appears, or failing a

reappearance, from the date on which a definitive ruling issues

in the parallel criminal proceeding. Id. at ¶50. As to victims of

“forced displacement,” he cites to a ruling by Colombia’s Council

of State holding that the time to file a corresponding reparation

suit begins to run at the moment that the event giving rise to the

crime has ceased, i.e. at the moment when the victim of forced

displacement is returned. Id. at ¶ 51.

From these provisions governing criminal proceedings and

correlating reparation suits, Arrubla extrapolates that a similar

suspension should be inferred for civil causes of action arising out

of the crimes of forced disappearances and forced displacements,

apparently on the theory that these events should be treated as

circumstances of “impossibility” which would trigger a

“suspension” of Colombia’s ten-year limitation period under

Article 2430 and Article 2541 of Colombia’s Civil Code. Id. at ¶

53. Thus, in the event his proffered theory of “imprescriptibility

is not accepted,” he alternatively opines that the statute of

limitations for many victims would nonetheless be suspended “for

as long as they were unable to carry out the respective actions,

whether due to violence, displacement, threats, kidnapping or

any other circumstance that hindered them from exercising their

rights.” Id. at ¶57

49a

embodied in Article 229 of Colombia’s Political

Constitution, and resonates with “pro homine”

principles of statutory construction, which “establish[

] the most favorable interpretation of judicial

standards for individuals and their rights,” i.e., an

“interpretation that fosters respect for human dignity,

and consequently for the protection assurance and

promotion of human rights.” Id. at ¶¶ 65-66

III. Choice-of-Law Analysis

A. Federal Equitable Tolling Rule

Plaintiffs contend, first, that the American Pipe

tolling rule operates, as a matter of federal law, to toll

their claims for the twelve-year pendency of the

original New Jersey putative class (from time of filing

to date class certification was denied).

The federal-court rule holding statutes of

limitations subject to equitable tolling, from the time

a class action is filed until certification is denied, has

its origins in American Pipe & Constr. Co. v. Utah, 414

U.S. 538 (1974).6 American Pipe concerned the tolling

of claims under a federal statute, the Sherman Act,

and did not purport to announce a rule that would

apply to state law (or foreign law) claims. Vincent v.

The Money Store, 915 F. Supp. 2d 553, 560-61

(S.D.N.Y. 2013); Weatherly v. Pershing, LLC, 322 F.3d

6

In American Pipe, the United States Supreme Court held that

an applicable statute of limitations is tolled during the pendency

of a class action for putative class members who intervene after

the denial of class certification. In Crown Cork & Seal Co. v.

Parker, 462 U.S. 345, 350 (1983), the Court extended the rule to

purported members of the class who later file individual suits,

rather than intervene.

50a

746 (N.D. Tex. 2018)(tolling for individual claims

during class action was inapplicable to Florida law

claims brought by former investors in a Ponzi scheme);

Brandt v. Ocwen Loan Servicing, LLC, 2017 WL

5878581 (E.D. Cal. 2017) (filing of a class action in

federal court only tolls the statute of limitations with

respect to federal claims and not state law claims).

Many courts have thus found American Pipe

inapplicable to a mass tort personal injury case where

the court is sitting in diversity jurisdiction, as it is

here. See in Re Vioxx Prods. Liab. Litig, 478 F. Supp.

2d 897, 906-08 (E. D La. 2007) (America Pipe and its

progeny do not apply by their own force in diversity

cases); Wade v. Danek Medical., Inc. 182 F.3d 281, 286

(4th Cir. 1999) (federal court sitting in diversity was

required to apply state rather than federal law on

equitable tolling); Barela v. Denko K.K., 1996 WL

316544, at *4 (D.N.M. 1996) (federal interests

enunciated in American Pipe are not as strong when a

federal court sits in diversity)(collecting cases). But see

Adams Public School Dist. v. Asbestos Corp., 7 F.3d

717, 719 (8th Cir. 1993) (recognizing independent

federal tolling beyond that provided by relevant state

law and applying America Pipe in diversity case

involving public building asbestos claims).

Under this approach, when a federal court sits in

diversity jurisdiction, the tolling rules come from the

state (or foreign jurisdiction) whose law is being

applied. Casey v. Merck & Co., 653 F.3d 95 (2d Cir.

2011) (federal court evaluating timeliness of state law

claims must look to law of relevant state to determine

whether statute of limitations should be tolled by

filing of a putative class action); Lombardo v.

51a

CitiMortgage, Inc., 2019 WL 35446630 (D. Mass.

2019); In re Vioxx Products Liability Litigation, 522 F.

Supp. 2d 799 (E. D. La. 2007); Wilchfort v. Knight, 307

F. Supp. 3d 64 (E.D.N.Y. 2018); Vincent v. The Money

Store, 915 F. Supp. 2d 553 (S.D.N.Y. 2013).

This Court concurs, and with these observations

in mind, now turns its examination to a choice-of-law

analysis to determine which jurisdiction’s limitations

law controls here – Colombia or New Jersey - and in

turn, to resolve whether an analogous “class action”

tolling rule or other equitable tolling doctrine is

recognized under the laws of that jurisdiction.

B. Choice of Law – Statute of Limitations

A federal court sitting in diversity ordinarily

applies the choice-of-law rules of the state in which the

court sits to determine which state’s law applies.

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496

(1941). In the context of an MDL, courts routinely

apply the choice-of-law rules of the court from which

the case was transferred. See e.g. In re Volkswagen

Audi Warranty Extension Lit., 692 F.3d 4, 17 (1st Cir.

2012); Chang v. Baxter Healthcare Corp., 599 F.3d

728, 732 (7th Cir. 2010); In re Air Disaster of Ramstein

Air Base, Ger., 81 F.3d 570, 576 (5th Cir. 1996); Phelps

v. Cont’l Ill. Nat’l Bank & Trust Co. of Chicago (In re

Nucorp Energy Sec. Litig.), 772 F.2d 1486, 1492 (9th

Cir. 1985); In re Horizon Organic Milk Plus DHA

Omega-3 Marketing and Sales Practice Litig., 955 F.

Supp. 2d 1311, 1322 (S.D. Fla. 2013); In re New

England Mut. Life Ins. Co. Sales Practice Litig., 236 F.

Supp. 2d 69 (D. Mass 2002).

52a

Thus, as the MDL transferee court in this

proceeding, this Court must apply the choice-of-law

rules of New Jersey, the state where the transferor

court sits, in determining whether New Jersey would

apply its own statute of limitations, and related tolling

rules, or the statute and related tolling rules of some

other state or forum.

New Jersey’s choice-of-law analysis involves a

two-step process. The first inquiry is “whether the

laws of the state with an interest in the litigation are

in conflict.” If no conflict exists, there is no choice of

law issue for determination and the forum state will

apply its own law. McCarrell v. Hoffmann-LaRoche,

Inc., 227 N.J. 569, 153 A.3d 207, 216 (N.J. 2017). As to

state limitations law, a “true conflict” presents when a

complaint is timely filed within one state’s statute of

limitations but is filed outside of another’s statute.

McCarrell, 153 A.3d at 216. In other words, a “a true

conflict” exists when the choice of limitations period is

outcome determinative. Id. (citing Schmelze v. ALZA

Corp, 561 F Supp. 2d 1046, 1048 (D. Minn. 2008)). In

the latter instance, the court must decide, under the

appropriate choice of law rule, which jurisdiction’s

statute governs.

Following Section 142 of the Restatement

(Second) of Conflict of Laws, in the event of a “true

conflict” a New Jersey Court will generally apply the

statute of limitations of the forum state “whenever

that state has a substantial interest in the

maintenance of the claim ... unless exceptional

circumstances

would

render

that

result

unreasonable.” Id. at 221-222. Conversely, where New

Jersey does not have a “substantial interest” in the

53a

claims, a New Jersey Court will apply the statute of

limitations of the state with “a more significant

relationship to the parties and the occurrence.” Id. at

222 (“[W]hen New Jersey has no substantial interest

in the litigation, under section 142, our courts will not

apply our State’s statute of limitation to save a claim

when another state has a more significant relationship

to the case.”).

Here, Colombia and New Jersey have different

rules governing equitable tolling of statutes of

limitations applicable to individual tort actions. New

Jersey recognizes equitable tolling in a narrow

category of cases, and while the New Jersey Supreme

Court has not addressed the issue, one intermediate

appellate New Jersey court has embraced American

Pipe class action tolling.7 The Colombian Civil Code, in

contrast, does not incorporate or recognize equitable

tolling principles. Thus, a true conflict of law exists,

and it is one which is “outcome determinative,” since

the tort claims alleged in the 2020 New Jersey

7

Equitable tolling is recognized in limited situations under

New Jersey law, namely, where the defendants have actively

misled the plaintiff; the plaintiff has in “some extraordinary way”

been prevented from asserting his or her rights, or the plaintiff

has timely asserted his or her rights mistakenly in the wrong

forum. See Montero v. Board of Trustees, Public Employees’

Retirement System,2020 WL 4045270 (N.J. App. July 20, 2020)

(citing F.H.U. v. A.C.U., 427 N.J. Super 354, 379, 48 A.3d 1130

(N.J. App. 2012)). See also Staub v. Eastman Kodak, 320 N.J.

Super 34, 726 A.2d 955 (App. Div.), cert. den., 161 N.J. 334 (1999)

(state statute of limitation held tolled from date that putative

class action was filed in federal court until class certification

motion denied)

54a

Complaint are timely only if New Jersey law applies

here. Therefore, the Court must apply New Jersey

choice of law rules, to determine whether New Jersey

would apply its own limitations law to the tort claims

asserted in 2020 New Jersey Complaint, or the laws of

Colombia.

As noted, New Jersey follows Section 142 of the

Restatement (Second) of Conflicts of Law, under which

its own limitations law is applied when it has a

“substantial interest” in the litigation, unless

“exceptional circumstances” would render that result

“unreasonable.” Where it does not have a substantial

interest in the claims a New Jersey court will apply

the statute of limitations of the state with “a more

significant relationship to the parties and the

occurrence. McCarrell v. Hoffman-La Roche, Inc., 227

N.J. 569, 153 A.3d 207, 221-222 (N.J. 2017).

In this case, the only pertinent connection to New

Jersey advanced as a premise for New Jersey’s

interest in the suit is the fact that Chiquita is

organized under the laws of New Jersey. This falls far

short of establishing a “substantial interest,” held by

New Jersey, in the application of its own limitations

law to Plaintiffs’ claims. See MTK Food Services, Inc.

v. Sirius America Ins. Co., 455 N.J. Super. 307, 189

A.3d 914 (N.J. App. Div. 2018) (discussing McCarrell’s

reaffirmation of result in Heavner v. Uniroyal, 63 N.J.

130,141, 305 A.2d 412 (1973)). All of the Plaintiffs in

this case are Colombian citizens, and all claims arise

out of tortious conduct which occurred on Colombian

soil. Plaintiffs allege that Chiquita extended financial

support to the AUC, a Colombian paramilitary group,

between 1995 and 2004, with payments delivered to

55a

AUC operatives on Colombian soil, and they allege

that their family members suffered grievous personal

injury as a result of war crimes and other atrocities

perpetrated against them by the AUC on Colombian

soil. Moreover, all of the claims that would go forward

if not barred by the statute of limitations are brought

under Columbian law.8

New Jersey has no “substantial interest” in claims

that arise under Columbian law based on tortious

conduct allegedly committed on foreign soil against

foreign citizens. Therefore, contrary to Plaintiffs’

contention, New Jersey choice of law precepts do not

presumptively require application of New Jersey law

to the limitations issue. Since New Jersey has no

“substantial interest” in these claims, the Court must

instead decide which forum has “a more significant

relationship to the parties and the occurrence,” and

must then apply the limitations law of that forum,

along with any accompanying equitable estoppel rules.

Compare Avraham v. Golden, 2020 WL 2214535

(D.N.J. May 7, 2020) (New Jersey held to have

“significant interest” in claims arising from tortious

conduct primarily committed in New Jersey,

triggering New Jersey limitations law as to those

claims, while tortious conduct committed while all

parties lived in Florida held subject to Florida

limitations statutes).

Since Colombia is the situs of the alleged tortious

conduct charged to both Chiquita and the AUC, and

since all Plaintiffs are Colombian citizens asserting

8

See n.3, supra.

56a

Colombian law claims, the Court easily finds that

Colombia is the forum with “a more significant

relationship to the parties and the occurrence.”

Therefore, under controlling New Jersey choice-of-law

precepts, Colombia limitations law applies here,

triggering Colombia’s ordinary ten-year statute of

limitations, applicable to individual tort actions, and

related tolling precepts. See McCarrell, 153 A.3d at

221-22.

IV. Standard of Review

A complaint is properly dismissed under Fed. R.

Civ P. 12(b)(6) if a plaintiff fails to provide “enough

facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 54, 57, 127

S. Ct. 1955, 167 L. Ed. 2d 929 (2007). In deciding a

Rule 12(b)(6) motion, the court must “accept all wellpleaded factual allegations in the complaint as true

and construe the facts in a light most favorable to the

nonmoving party.” Dacosta v. Nwachukwa, 304 F.3d

1045, 1047 (11th Cir. 2002). But the court need not

accept as true unreasonable inferences or legal

conclusions cast in the form of factual allegations.

Twombly, 127 S. Ct. at 1965; Dalrymple v. Reno, 334

F.3d 991, 996 (11th Cir. 2003); Kane Enter v.

MacGregor, 322 F.3d 371 (5th Cir. 2003).

A complaint is properly dismissed under Rule

12(b)(6) where it is apparent on the face of the

pleading that the plaintiffs’ claims are barred by the

statute of limitations. Jablon v. Dean Witter & Co., 614

F.2d 677, 682 (9th Cir. 1980). While the applicability

of equitable tolling generally depends on matters

outside the pleadings, a motion to dismiss based on a

57a

limitations defense is properly granted where the

assertions of the complaint, read with the required

liberality, would not permit the plaintiff to prove that

the statue was tolled. Henderson v. Reid, 271 Fed.

Appx. 51, 54 (11th Cir. 2010) (affirming dismissal of

plaintiffs’ claims where complaint included no

allegations establishing entitlement to tolling of the

statute of limitations); TwoRivers v. Lewis, 174 F.3d

987, 991 (9th Cir. 1999).

In this case, as discussed below, the Court

concludes that Chiquita’s asserted limitation defense

is properly resolved under application of Colombia’s

10-year statute of limitations and that forum’s

accompanying rules regarding equitable estoppel. The

Court further finds the current motion is

appropriately resolved under Rule 12(b)(6) based on

the allegations of the Complaint, and certain

indisputable facts within the Court’s judicial notice

power, namely, the content of Colombian limitations

law. See generally Ennenga v. Starns, 677 F.3d 766

(7th Cir. 2012).

In reaching this conclusion, the Court observes

that the experts on both sides concur on the general

applicability of Colombia’s “ordinary” ten-year statute

of limitations to individual tort actions such as those

asserted in this case. Both experts also recognize that

the Colombian Civil Code does not expressly recognize

equitable tolling concepts. The Court declines to follow

the aspirational statements of law advanced by

Professor Arrubla, and shall apply the Colombian

prescription statute as it is currently written and

interpreted under Colombian law. See Penaloza v.

Drummond Co., 384 F. Supp. 3d 1328, 1352 (N.D. Ala.

58a

2017) (holding wrongful death claims barred under

Colombian

ten-year

statute

of

limitations,

notwithstanding Professor Arrubla’s declaration that

Colombian law deems crimes against humanity as

“imprescriptible,” noting this imprescriptibility

precept has not been not held applicable to civil claims

against private parties for alleged crimes against

humanity).

V. Discussion

Because Colombian law governs the limitations

issue here presented, Chiquita’s challenge to the

timeliness of the 2020 New Jersey complaint turns on

whether the tolling justifications claimed by Plaintiffs

are recognized under Colombian law. If civil causes of

action arising from crimes against humanity are

imprescriptible, as claimed by the Plaintiffs’ expert, or

if Colombian law recognizes some equivalent of class

action tolling, then the Complaint withstands the

limitations challenge and Chiquita’s motion would

appropriately be denied. On the other hand, if the

Colombian Civil Code does not permit of such

exceptions to the running of the ten-year statute, then

Plaintiffs’ claims are time-barred on the face of the

Complaint.

As discussed above, Plaintiffs’ “imprescriptibility”

argument draws from Professor Arrubla’s expansive

reading of the Colombian statute, based on his

aspirational beliefs on what the law should be, as

opposed to what the law is and how it is currently

interpreted. While Professor Arrubla identifies

competent policy arguments which might favor a

change or expansion of the Colombian Civil Code, to

59a

mirror the treatment of criminal lawsuits arising from

crimes against humanity, he does not show – and to

the contrary he candidly recognizes--that this is not

the law in Colombia today. Professor Arrubla’s

predictive analysis regarding the importation of

equivalent “class action tolling” precepts into the

Colombian Civil Code suffers the same frailty; it is an

aspirational statement of the law, as opposed to a

description of the law as it is.

With all due respect to Professor Arrubla, this

Court is not at liberty to apply his aspirational vision

of Colombian law as he predicts it may someday be

interpreted through the creation or expansion of

public policy. The Court must ascertain and apply

Colombia law as it exists now, and specifically must

decide whether a tolling of the ordinary ten-year

Colombian statute of limitations is permitted under

existing Colombian law.

Under Rule 44.1, this is a question of law which

the Court may determine based on foreign law

materials outside the pleadings in ruling on a motion

to dismiss. de Fontbrune v. Wofsy, 838 F.3d 992 (9th

Cir. 2016). Further, under Rule 44.1, the Court may

use an expert report to determine the content of

substantive foreign law. It is, however, within the

Court’s discretion to reject even the uncontradicted

conclusions of an expert witness and reach its own

decision based on its independent examination of

foreign legal authorities. HFGL Ltd. v. Alex Lyon &

Son Sales Managers and Auctioneers, Inc., 264 F.R.D.

146 (D. N.J. 2009). See also Sunstar, Inc. v. AlbertoCulver Co., 586 F.3d 487, 495 (7th Cir. 2009); Bigio v.

Coca-Cola Co., 2010 WL 3377503 at *4 (S.D.N.Y.

60a

2010), aff’d, 675 F.3d 163 (2d Cir. 2012); Jonas v.

Estate of Leven, 116 F. Supp. 3d 314, 330 (S.D.N.Y.

2015). The Court may also consult other sources of

foreign law, such as articles, treatises, and judicial

opinions, whether submitted by a party or admissible

under the federal rules of evidence. Rule 44.1, Federal

Rules of Civil Procedure.9

In short, federal courts have discretion to

judicially notice the laws of foreign countries pursuant

to the fact-finding procedures contained in Rule 44.1.

Ferrostaal, Inc. v. M/V Sea Phoenix, 2004 WL

3304655 (D. N.J. 2004) (citing Sidali v. INS, 107 F.3d

191, 197 n. 9 (3d Cir. 1997)). Thus, pursuant to Rule

44.1, this Court shall take judicial notice of the

relevant contents of the Colombian Civil Code, as

summarized below and applied to the facts of this case.

Article 2536 of the Colombian Civil Code

prescribes a ten-year “ordinary” statute of limitations,

applicable to individual tort claim, which begins to run

as of the date of occurrence of the damaging event.

[Acevedo DE 2664-2, ¶ 8, 10] [Arrubla, DE 2682-1, at

¶15]. This limitations period may be suspended under

certain specified circumstances (minority or force

9

Fed. R. Civ. P. 44.1 provides:

A party who intends to raise an issue concerning the

law of a foreign country shall give notice by pleadings

or other reasonable written notice. The court, in

determining foreign law, may consider any relevant

material or source, including testimony, whether

submitted by a party of admissible under the Federal

Rules of Evidence. The court’s determination shall be

treated as a ruling on a question of law.

61a

majeure), but the Colombian civil code otherwise does

not expressly recognize precepts of equitable tolling

and specifically does not recognize class action tolling

concepts [Acevedo, at ¶¶16-19].

Plaintiffs’ legal expert predicts that civil causes of

action arising out of crimes against humanity might

be deemed imprescriptible under Colombian law,

while there is no precedent currently endorsing this

proposition. Further, he opines that filing of the 2007

New Jersey putative class action suit could be viewed

as a statutorily-recognized “interruption” of the

Plaintiffs’ claims, under an expansive reading of

Article 94 of Colombia’s General Procedure Code

(Arrubla at ¶¶ 62-65), a result he considers most

consistent with general principles of statutory

interpretation favoring the vindication of individual

rights and “protection assurance and promotion of

human rights ... consecrated on the constitutional

level.” Id. at ¶65.

However, Professor Acevedo, the defense expert,

shows that Colombian law does not have a specific or

equitable rule regarding the common law notion of

equitable tolling, and that suspension or interruption

of ten-year ordinary statute of limitations, by its

terms, is limited to the specific action and claims

brought in that action. [Declaration of Acevedo, 26642, at ¶¶15-16 (“Therefore, by filing a complaint under

a group action, the interruption of the statute of

limitation will apply only in relation to that group

action, and not to any individual actions that were not

filed.”) ]. He also states that “law is the primary source

of rights” under Colombia’s Constitution, and that the

word “law” in this context means statutory law or

62a

legislative statutes – not case law.

Declaration of Acevedo, DE 2683-1, ¶9].

[Second

Based on its review of the conflicting expert

opinions on the availability of a class action or “group”

tolling equivalent under Colombian law, this Court

concludes, as a matter of law, that the ten-year statute

of limitations would apply to the torts pled in the 2020

New Jersey Complaint, and that neither equitable

tolling nor class action tolling is available to toll this

limitations period. See generally Seguros Del Estado,

S.A. v. Scientific Games, Inc., 262 F.3d 1164 (11th Cir.

2001) (observing conflict in expert testimony on

operation of Colombian general ten-year statute of

limitations as it applied to insurance company’s suit

against

insured

for

reimbursement

under

indemnification agreement and upholding district

court rejection of expert opinion).

Further, based on its review of Professor Arrubla’s

expert affidavit, this Court is not persuaded that it

should infer the imprescriptibility of civil causes of

action arising from crimes against humanity using the

expansive public policy rationale advanced by him.

Based on these conclusions, the Court holds that

Colombia’s 10-year ordinary statute of limitations

began to run, at the latest, on March 17, 2007, the date

Chiquita’s D.C. plea to crimes relating to its financial

support of foreign terrorist organizations became

public (Complaint, ¶1026), and it expired ten years

later, on March 17, 2017. The 2020 New Jersey

Complaint, filed well after that time (March 25, 2020),

comes too late, and the 2020 New Jersey Plaintiffs’

Complaint does not identify any premise for a

63a

suspension or interruption of the statute which would

bring any of the asserted claims within it.10

10

Plaintiffs offer a further saving theory, for a subset of “some”

plaintiffs who were the alleged victims of forced displacement or

forced disappearances at the hands of AUC forces. See e.g.

Complaint, ¶ 424 (Jane Doe 216); ¶¶ 463-464 (Jane Doe 26); ¶¶

469-470 (Jane Doe 27, 121, 122 and Jane Doe 23),¶ 471 (John Doe

32), ¶472 (John Doe 33), ¶482 (John Doe 37), ¶485 (John Doe 39)]

On this point, Plaintiffs draw from the affidavit of Professor

Arrubla, who opines that Colombia’s ten-year general limitations

statute might reasonably be interpreted as “interrupted” by such

occurrences, which he views as circumstances of “impossibility”

that might trigger a suspension of the limitations statute – for a

maximum term of ten years -- under Article 2430 of Colombia’s

Civil Code. Arrubla Dec. at ¶¶ 50-54. [On this point, he cites

Article 2430 of the Civil Code, stating “[t]he statute of limitations

will not be counted against those who are faced with absolute

impossibility of exercising their right, for the duration of said

impossibility.” Id. at ¶53.]

As discussed above, however, Professor Arrubla’s opinions in

this regard -- like his opinions regarding the imprescriptibility of

civil actions based on crimes against humanity – are extrapolated

from Colombian law rules governing reparation claims brought

by the victims of crimes as part of the criminal proceedings. He

explains, for example, that the time for filing reparation claims

arising out of forced disappearance does not begin to run until the

victim appears (or a definitive criminal ruling is made), and that

the time for filing reparation claims for forced displacement

similarly begin to run when the victim returns.

Since this case involves civil causes of action arising out of

forced disappearances and forced displacements - not reparation

claims arising in criminal proceedings - the Court does not find

Professor Arrubla’s extrapolations and predictions of Colombian

law on “impossibility” doctrine controlling in this case. Notably,

Professor Arrubla does not identify any provision of the

64a

VI. Conclusion

Based on the foregoing, it is ORDERED AND

ADJUDGED:

1.

Defendant Chiquita’s Motion to Dismiss the

Colombian law claims of the 2020 New Jersey

Action (Case 20-CV-60831) as time-barred under

Colombia’s ordinary ten-year statute of

limitations [DE 2664] is GRANTED.

2.

Defendant’s Motion to Dismiss the New Jersey

(“or other applicable”) state law claims of the 2020

New Jersey Action is GRANTED.

3.

The 2020 New Jersey Complaint is DISMISSED

WITH PREJUDICE under Rule 12(b)(6) for

failure to state a claim on which relief may be

granted.

4.

A final judgment of dismissal pursuant to Rule 58

will follow by separate Order of the Court.

5.

The Plaintiffs’ request for oral argument on this

matter [DE 2682] is DENIED.

Colombian Civil Code which would specifically recognize a

suspension, or other interruption to the ten-year ordinary statute

of limitations applicable to civil claims against private parties

arising out of the crimes of forced disappearance or forced

displacements. Without citation to a statute governing this

specific issue, or a judicial ruling addressing it, the Court is not

persuaded by Professor Arrubla’s prediction of Colombian law.

Without Professor Arrubla’s legal theory, the facts, as pled, do not

support an “interruption” of the limitation statute and no

amendment to the complaint could cure this defect. Accordingly,

the Court finds the individual claims of this discrete group of

Plaintiffs to be time-barred on the face of the Complaint.

65a

DONE AND ORDERED in Chambers at West Palm

Beach, Florida this 29th day of September, 2020.

66a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 21-10211-DD

________________________

MYRIAM RAMIREZ GARCIA,

substituted in place of Antonio Gonzalez Carrizosa ,

et al.,

Plaintiffs,

JANE DOE 8,

Plaintiff - Appellant,

versus

CHIQUITA BRANDS INTERNATIONAL, INC.,

Defendant - Appellee,

CHIQUITA FRESH NORTH AMERICA LLC,

substituted in place of Antonio Gonzalez Carrizosa, et

al.,

Defendants.

67a

________________________

Appeal from the United States District Court for the

Southern District of Florida

________________________

Filed November 14, 2022

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

BEFORE: NEWSOM, MARCUS, Circuit Judges, and

COVINGTON, District Judge.*

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. (FRAP 35) The Petition for Panel Rehearing is

also denied. (FRAP 40)

*

Honorable Virginia H. Covington, United States District

Judge for the Middle District of Florida, sitting by designation.