Case 0:08-md-01916-KAM Document 1514 Entered on FLSD Docket 07/25/2017 Page 1 of 21

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD-MARRA/JOHNSON

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION

______________________________________/

This Document Relates To: ATS ACTION

Does 1-2146 v. Friedheim et al. (17-cv-80475)

______________________________________/

Plaintiffs' Memorandum in Opposition

to the Individual Defendants' Motion to Dismiss

Paul Wolf, CO Bar #42107

Counsel for Plaintiffs
P.O. Box 46213
Denver, CO 80201
Tel. (202) 431-6986
Email: [email protected]
Fax: n/a

July 25, 2017

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................. i

TABLE OF AUTHORITIES ........................................................................... iii

FACTUAL SUMMARY ................................................................................. 1

I. The Procedural Posture of the Case. ........................................ 1

II. Facts Connecting Defendant Ordman with the Forum.. .......... 2

SUMMARY OF ARGUMENT ....................................................................... 5

ARGUMENT ................................................................................................... 6

I. The Court has personal jurisdiction over the Defendant. ........ 6

A. The court has personal jurisdiction under Ohio's

long arm statute. .......................................................... 6

(1) Transacting any business in this state; ................ 7

(2) Contracting to supply services or goods in this

state; ............................................................................ 7

(3) Causing tortious injury by an act or omission in

this state; ...................................................................... 7

(7) Causing tortious injury to any person by a

criminal act, any element of which takes place in
this state, which he commits or in the commission
of which he is guilty of complicity. ............................ 10

B. Jurisdiction is Proper Under the Federal Due

Process Clause. ........................................................... 10

C. Contacts with other states establish jurisdiction in

the United States. ........................................................ 12

II. The Plaintiffs have stated claims against Defendants

Ordman and Friedheim. .......................................................... 13

A. Plaintiffs Claims are Not Time-Barred. ...................... 14

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B. Defendant Ordman provided knowing, substantial

assistance to the people who murdered Plaintiffs'
family members. ......................................................... 15

C. Defendant Ordman was a co-conspirator in

Chiquita Brands' conspiracy to pay the AUC. ............ 15

CONCLUSION ............................................................................................... 16

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TABLE OF AUTHORITIES

Cases

Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) ........................... 15

CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996) ............................ 6

Conn. v. Zakharov, 667 F.3d 705 (6th Cir. 2012) .............................................. 6

Creech v. Roberts, 908 F.2d 75 (6th Cir. 1990) ................................................. 8

Doe v. Drummond, 782 F.3d 576 (2015) ........................................................... 15

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) ........................................ 15

Hanson v. Denckla, 357 U.S. 235 (1958) ......................................................... 11

Hollar v. Philip Morris Inc., 43 F.Supp.2d 794 (6th Cir. 1998) ........................ 8

International Shoe Co. v. Washington, 326 U.S. 310 (1945) ............................ 10

Intl Techs. Consultants v. Euroglas S.A., 107 F.3d 386 (6th Cir.1997) ........... 6

Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147 (6th Cir. 1997) ............. 6

Kroger Co. v. Malease Foods Corp., 437 F.3d 506 (6th Cir.2006) ..................... 6

McGee v. International Life Ins. Co., 355 U.S. 220 (1957) ............................... 8

Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 2005) ......................................... 12-13

Payne v. Motorists Mutual Ins. Cos., 4 F.3d 452 (6th Cir.1993) .................. 8

Pennoyer v. Neff, 95 U.S. 714 (1877) ............................................................ 10

Statutes

Torture Victim Protection Act ...................................................................... passim

Ohio Rev. Code Sec 2307-382 ...................................................................... 7-10

Rules

FRCP 4(k)(2) .................................................................................................. 12-13

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FRCP 12(b)(2) ................................................................................................ 1, 6

FRCP 12(b)(6) ................................................................................................ 1

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FACTUAL SUMMARY

I. The Procedural Posture of the Case.

The Plaintiffs in Does 1-976 and Does 1-677 have sued Defendant Ordman

pseudonymously as "Individual Defendant J" since their complaints were filed in 2010

and 2011, respectively. However, unlike Cyrus Friedheim, Robert Olson, or Robert

Kistinger, Mr. Ordman never came forward to identify himself until he was named in the

lawsuit Does 1-2146 v. Cyrus Friedheim et al, filed in the Southern District of Ohio in

March of this year. See 17-cv-00145-TSB. This lawsuit includes prior plaintiffs who are

victims of the AUC (but not FARC), and about 400 new cases, but only against

Individual Defendants under the Torture Victim Protection Act. After the Court's

November 29, 2016 ruling on statutes of limitations, see D.E. 1194, for roughly half of

these plaintiffs, claims against individual defendants were all that were left.

The Ohio Complaint was nearly verbatim to the other two in its general factual

allegations, with about 500 pages of boilerplate paragraphs providing minimal details for

each case to state a plausible claim. However, federal claims under the Alien Tort

Statute, and state law claims of US states that had already been dismissed were not re-

alleged. Claims under Colombian law were not alleged, because the court would apply

the general statute of limitations of the forum to them and they would be too late.

Therefore, only claims under the Torture Victim Protection Act, which has a ten year

statute of limitations, were alleged. On July 14, 2017, the Defendant filed a Motion to

Dismiss under Rule 12(b)(2) and 12(b)(6) for lack of personal jurisdiction and failure to

state a claim. D.E. 1504.

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Three of the Individual Defendants sued herein, Cyrus Friedheim, Robert Olson,

Robert Kistinger, have not responded to the Ohio Complaint, presumably because it is

substantially the same as previous complaints on which the Court has already ruled. 1 On

June 6, 2016, the Court entered an Order granting in part and denying in part motions to

dismiss made by nine individual defendants in the MDL case. See D.E. 1110 at 8-15.

The Court has already held that "[a]s to all remaining Individual Defendants [including

these three], the motion to dismiss the TVPA claims for failure to plead sufficient facts

plausibly stating a claim for relief is DENIED." D.E. 1110 at 38. They presumably have

the right to contest personal jurisdiction in Ohio but see no point in it. The remaining

Individual Defendants sued herein, Joel Raymer and Steven Kreps, have not yet

responded to the Ohio Complaint.

II. Facts Connecting Defendant Ordman with the Forum.

From 1975 to 2006, Defendant Ordman was an employee of Chiquita Brands

International, Inc., including as Senior Vice President of European Banana Sourcing for

the Chiquita Fresh Group, and reporting to Defendant Kistinger. Complaint at 2172.

Although Defendant Ordman may have lived outside of Ohio, he worked directly

for Chiquita Brands International, Inc., and would have been paid by the same Ohio-

based company. He never worked for Banadex or another of Chiquita's foreign

subsidiaries. He had continuous and systematic contacts with Ohio in the form of

1
The Plaintiffs represented herein are suing Steven Kreps, Joel Raymer, and John
Ordman, to whom the Court's June 6, 2016 Order did not apply. Conversely, other
Plaintiff groups sued the Estate of Roderick Hills, Charles Keiser, William Tsacalis,
Fernando Aguirre, Steven Warshaw and Keith Lindner, who are not sued herein. The
two other Individual Defendants sued herein, Mr. Kreps and Mr. Raymer, have not yet
filed any motions under Rule 12(b).

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paychecks issued approximately weekly or monthly, over a period of more than 30 years,

and encompassing the entire time Chiquita was paying Colombian terrorist organizations.

Defendant Ordman was designated as "Individual J" in criminal case 07-CR-0555

(RCL) in the United States District Court for the District of Columbia. Complaint at

2172. The criminal jurisdiction of the United States clearly reached his conduct, which

isi at issue in this case.

In 1987 or 1989, Defendant Ordman met with Defendant Kistinger in Cincinnatti,

Ohio, in which the payments to the FARC terrorist group were approved. Complaint at

2173, citing SLC Report, D.E. 202-4 in 08-1916-MD. Although Defendant Ordman

claims to have no memory of this meeting, an individual designated as Banadex

Employee #1 claims that Defendant Ordman did attend. Id., SLC Report at 31, n 31.

Defendant Ordman then brought $10,000 from Honduras to Guatemala, and gave

the money to Banadex Employee #1 for payment to the FARC. Complaint at 2173,

citing SLC Report at 32. The source of the money was a General Managers Fund used

to keep the payments off the books. Id. A third party delivered this payment to the

FARC. Id. The origin of this money was ultimately Chiquita Brands International in the

United States.

Following the initial payment, regular payments were made, mostly to the FARC

but also to other guerrilla groups. Complaint at 2174, citing SLC Report at 32. These

payments were reviewed periodically by Defendant Ordman. Id. [Banadex Employee

#1] told the SLC that Defendant Ordman and himself were two intermediaries that

Banadex used to make the illegal payments. Id. at 36. According to notes from another

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Chiquita employee, Bud White, Defendants Ordman and Kistinger approved the

payments on an ongoing basis. Id. at 52.

Defendant Ordman was also involved in the bribery scandal involving the port of

Turbo, Colombia, which was investigated by the SEC. Complaint at 2174, citing SLC

Report at 56-57. The SEC investigation revealed Defendant Ordman's involvement in

payments to the AUC as well, which he admitted in his testimony. Id. at 59.

In March 2002, Defendant Ordman and another Chiquita employee designed

procedures for making cash payments to the AUC in Santa Marta. Complaint at 2175,

citing SLC Report at 80. After the payments to the AUC had been suspended for two

months in May 2003 due to internal discussions, Defendant Ordman participated in

restarting them. Id. On or about May 5, 2003, Defendant Raymer instructed Defendant

Ordman to "continue making payments" to the AUC. Complaint at 2175, Factual

Proffer at 64.

These facts show that Defendant Ordman was one of the principal actors in the

criminal conspiracy to pay the AUC, the locus of which was in Cincinatti, Ohio.2 His

2
There were multiple conspiracies in this case. The Individual Defendants conspired
with each other to pay Colombian terrorist groups, and then did pay them for many years,
violating various federal statutes prohibiting terrorist financing and money laundering.
For the most part, these individuals had no communications with anyone in the AUC,
aside from the meeting between Raul Hasbun, Carlos Castano, and several Chiquita
representatives, including Defendant Keiser (who is not sued herein). Aside from this
meeting, the details of how the AUC was paid or spent the money provided by Chiquita
Brands is not known to the Plaintiffs. It is not alleged, for example, that Chiquita
selected any particular individuals to be killed by the AUC.
On the other side of this communications wall was the military structure of the AUC,
which numbered approximately forty-thousand when they demobilized in 2006. There is
no allegation that Defendant Ordman, for example, would have any idea who Bellwether
Plaintiff #8 is, because the conspiracy to kill him was a separate conspiracy. The
conspiracy alleged herein is the conspiracy between Mr. Ordman and his colleagues
working for Chiquita Brands in Ohio.

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acts were imputed to his employer, Chiquita Brands International, greating contributing

to the company's criminal liability.

SUMMARY OF ARGUMENT

The Court has personal jurisdiction over Defendant Ordman under Ohio's long

arm statute due to Mr. Ordman's meeting with Defendant Kistinger and others in

Cincinnati in 1987 or 1989, in which the first payments to the FARC were agreed and

approved. According to the plaintiffs' attorneys in the ATA litigation, this coincided with

the first purchases of banana farms in the Urab region. From that point on, Chiquita

paid various Colombian terrorist groups on a regular basis, including the AUC, FARC,

ELN, EPL, and others. The conspiracy to pay these groups arose in Ohio, and can be

traced to this first meeting.

The Plaintiffs have stated a claim for the same reasons stated in the Court's Order

of June 1, 2016. D.E. 1110. In that Order, similar complaints (including those of Does

1-976 and Does 1-677, who are also plaintiffs in this Ohio case) were found to state

claims against Defendants Friedheim, Olson and Kistinger. Defendant Ordman's deep

involvement in the conspiracy requires the same result. Mr. Ordman designed payment

schemes designed to hide the illegal payments, participated in most of the important

meetings on this subject with Chiquita's executives, and even carried a $10,000 cash

payment from Honduras to Guatemala, and gave it to Banadex Employee #1 in the SLC

Report, for payment to the FARC. These facts speak for themselves.

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ARGUMENT

I. The Court has personal jurisdiction over the Defendant.

A federal court sitting in diversity may not exercise jurisdiction over a defendant

unless courts of the forum state would be authorized to do so by state lawand any such

exercise of jurisdiction must be compatible with the due process requirements of the

United States Constitution. Intl Techs. Consultants v. Euroglas S.A., 107 F.3d 386, 391

(6th Cir.1997) The plaintiff bears the burden of establishing through specific facts that

personal jurisdiction exists over the non-resident defendant, and the plaintiff must make

this demonstration by a preponderance of the evidence. See Kroger Co. v. Malease

Foods Corp., 437 F.3d 506, 510 & n. 3 (6th Cir.2006) Where, as here, the defendant has

moved to dismiss the case under Rule 12(b)(2) for lack of personal jurisdiction, and the

district court rules on the motion without an evidentiary hearing, the plaintiff need only

make a prima facie case that the court has personal jurisdiction. Kroger, 437 F.3d at 510.

At this stage, the Court doesn't weigh the facts disputed by the parties, but instead

considers the pleadings in the light most favorable to the plaintiff. Kerry Steel, Inc. v.

Paragon Indus., Inc., 106 F.3d 147, 153 (6th Cir. 1997).

Under Ohio law, personal jurisdiction over non-resident defendants is available

only if (1) the long-arm statute confers jurisdiction and (2) jurisdiction is proper under the

Federal Due Process Clause.3 Conn. v. Zakharov, 667 F.3d 705, 712 (6th Cir. 2012);

CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996).

A. The court has personal jurisdiction under Ohio's long arm statute.

3
It appears controversial whether Ohio recognizes the concept of general personal
jurisdiction at all, so that is not argued here.

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Ohio's long arm statute, Ohio Rev. Code Sec 2307-382 provides for jurisdiction

over a nonresident defendant in nine specific situations, four of which may be applicable

here. Under (A) of R.C. 2307.382, a court may exercise personal jurisdiction over a

person who acts directly or by an agent, as to a cause of action arising from the persons:

(1) Transacting any business in this state;

Defendant Ordman transacted business in Ohio as an employee of Chiquita

Brands International, which is headquartered in Cincinnati. Although he may have

resided overseas for much of this time, Mr. Ordman reported to Robert Kistinger, who

worked in Cincinnati. On information and belief, Mr. Ordman would have been paid

from Chiquita's bank account at its corporate headquarters in Ohio.

(2) Contracting to supply services or goods in this state;

Similarly, on information and belief, Mr. Ordman's employment contract would

have been based on the laws of Ohio, or at least on the laws of a state of the United

States. His current residence in Costa Rica is irrelevant to where his employment

contract was made.

(3) Causing tortious injury by an act or omission in this state;

The primary basis for specific personal jurisdiction is the fact that the conspiracy

to pay the Colombian terrorist groups arose in Ohio. In 1987 or 1989, Defendant

Ordman met with Defendant Kistinger in Cincinnatti, where the payments to the FARC

terrorist group were discussed and approved, apparently for the first time. Complaint at

2173, citing SLC Report, D.E. 202-4 in 08-1916-MD. Although Defendant Ordman

claims to have no memory of this meeting, an individual designated as Banadex

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Employee #1 stated in an internal investigation by Chiquita Special Litigation Committee

("SLC") that Defendant Ordman did attend. Id., SLC Report at 31, n 31.

Specific jurisdiction may be premised on a single act of the Defendant. Hollar v.

Philip Morris Inc., 43 F.Supp.2d 794, 802 (6th Cir. 1998), citing McGee v. International

Life Ins. Co., 355 U.S. 220, 222 (1957). The Sixth Circuit applies a three part test for

determining the outer limits of in personam jurisdiction based on a single act. Id. The

three elements of the test are: (1) the defendant must purposefully avail himself of the

privilege of acting in the forum state or causing a consequence in the forum state; (2) the

cause of action must arise from the defendants activities there; and (3) the acts of the

defendant or consequences must have a substantial enough connection with the forum

state to make the exercise of jurisdiction over the defendant reasonable. Id., citing Payne

v. Motorists Mutual Ins. Cos., 4 F.3d 452, 455 (6th Cir.1993). Although the U.S.

Supreme Court has never ruled on the issue, the Sixth Circuit applies the "but for" test to

determine whether a cause of action is sufficiently connected to the contacts in the forum

state. Creech v. Roberts, 908 F.2d 75, 80 (6th Cir. 1990). Neither proximate cause nor

forseeability are required. Id.

Here, the cause of action arose from a decision to pay the FARC that was made in

Ohio, and then extended to the AUC in other meetings and conversations in unknown

locations. For nearly 20 more years, Chiquita paid terrorist organizations in Colombia on

a monthly basis, which all began in the meeting between Defendants Ordman and

Kistinger.

After this meeting, Defendant Ordman brought $10,000 from Honduras to

Guatemala, and gave the money to "Banadex Employee #1" for payment to the FARC.

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Complaint at 2173, citing SLC Report at 32.4 The origin of this money was Chiquita

Brands International in the United States.5 Following the initial payment, regular

payments were made, mostly to the FARC but also to other guerrilla groups. Complaint

at 2174, citing SLC Report at 32. These payments were reviewed periodically by

Defendant Ordman. Id. According to notes from another Chiquita employee, Bud

White, Defendants Ordman and Kistinger approved the payments on an ongoing basis.

Id. at 52. An investigation by the Securities and Exchange Commission, which also

involved Mr. Ordman as well, revealed Defendant Ordman's involvement in payments to

the AUC, which he admitted in his testimony. Id. at 59.

After the payments to the AUC had been suspended for two months in May 2003

due to internal discussions, Defendant Ordman participated in restarting them. Id. On or

about May 5, 2003, Defendant Raymer instructed Defendant Ordman to "continue

making payments" to the AUC, which he did, in full knowledge that the AUC had been

designated as a terrorist organization. Complaint at 2175, citing Factual Proffer at 64.

Defendant Raymer was working in Cincinnati at the time.

The acts in Ohio include not only the first meeting with Mr. Kistinger in

Cincinnati, but every electronic transfer of funds received by Mr. Ordman originating in

Ohio, regardless of where Mr. Ordman was located. They also include meetings and

4
Transactions in $10,000 amounts are of interest to Anti Money Laundering analysts
because they are indicative of "structuring" a transaction to avoid Bank Secrecy Act
reporting requirements.
5
Plaintiffs have received over two million pages of discovery from the Defendant,
including materials of Chiquita's Special Litigation Committee, materials produced to the
DOJ and SEC, and materials produced in the ATA litigation in this MDL. It may be that
Plaintiffs are in possession of the information needed to deduce all of this, but I am still
working with an IT consultant in Colombia to produce an application to search the "data
load file" we received, and don't yet know what banking records might be in the
discovery.

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conversations between Mr. Ordman and Mr. Kistinger and Mr. Raymer, who both

worked in Cincinnati. Although Defendant Ordman may not have physically traveled to

Ohio every month, each payment originated in the United States.

(7) Causing tortious injury to any person by a criminal act, any element of
which takes place in this state, which he commits or in the commission of which
he is guilty of complicity.6

Although Mr. Ordman was not personally prosecuted in criminal case 07-CR-

0555 (RCL) in the United States District Court for the District of Columbia, he was

designated as "Individual J," and Chiquita pled guilty in part on the basis of his acts.

Complaint at 2172. In its Factual Proffer, co-defendant Chiquita Brands admitted that

Defendant Ordman committed the acts alleged herein, as part of its guilty plea. The long

arm statute doesn't require that Mr. Ordman be found guilty of a crime, and the plaintiff's

only burden is to state a prima facie case.

B. Jurisdiction is Proper Under the Federal Due Process Clause

The limits of due process were first set forth in Pennoyer v. Neff, 95 U.S. 714

(1877). In Pennoyer, the Supreme Court held that the Oregon state court lacked

jurisdiction over Neff because he was neither domiciled in Oregon, nor served with

process there. The plaintiffs attempted service of process by publication, and tried to

attach property in Oregon owned by Neff. The Pennoyer court discussed the three

"traditional bases" for personal jurisdiction: presence, consent, and domicile.

The court's jurisdictional bases were expanded in International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945), which focused on the defendants' contacts with

the forum state. In International Shoe, a dozen salesmen were located in Washington

6
The section headings "1,2,3...7" correspond to the sections of the Ohio long arm statute.
Sections 4-6 are not applicable.

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State, but had no physical office, no stock of merchandise, and neither negotiated nor

entered into contracts there. Under the long arm statute and existing case law, the shoe

salesmen were not "doing business" in the state or have sufficient presence for the court

to have general personal jurisdiction. Nevertheless, the Supreme Court held that

Historically, the jurisdiction of the courts to render judgment in personam is

grounded in their de facto power over the defendant's person. Hence his presence
within the territorial jurisdiction of a court was a prerequisute to its rendition of a
judgment personally binding him. But now that the capias ad respondendum7 has
given way to personal service of summons or other form of notice, due process
requires only that in order to subject a defendant to a judgment in personam, if he
not be present within the territory of the forum, he have certain minimum contacts
with it such that the maintenence of the suit does not offend traditional notions of
fair play and substantial justice.

Id. at 316. To determine whether the maintenence of the suit offends "traditional notions

of fair play and substantial justice," a court must make an "estimate of the

inconveniences" to the defendant as a result of a trial away from his home. 326 U.S. at

317. Further, a court must determine whether the defendant exercised "the privilege of

conducting activities within [the] state" and "enjoy[ed] the benefits and protections of the

laws of that state." Id. at 319. In sum, the Due Process Clause doesn't require Defendant

Ordman to reside in Ohio in order to be subject to the Ohio courts' jurisdiction.

The law was further developed in Hanson v. Denckla, where the court said that

minimum contacts with the forum cannot exist unless "there be some act by which the

defendant purposefully avails itself of the privilege of conducting activities within the

forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla,

357 U.S. 235, 253 (1958). Therefore, the contact connecting the defendant to the forum

7
In the common law, a capias ad respondendum (Latin: "that you may capture [him] in
order for him to reply") was a writ issued by a court to the sheriff to bring the defendant,
after having failed to appear, to answer a civil action.

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state must be the forseeable result of the defendant's own purposeful conduct, not simply

that of the plaintiff or of third parties.

Here, Mr. Ordman was employed by the Defendant Chiquita Brands from 1975 to

2006, a period of more than 30 years, encompassing the entire time Chiquita paid illegal

armed groups in Colombia. He probably received his salary directly from Chiquita in the

United States.8 More importantly, there is evidence that Defendants Ordman and

Kistinger met in Cincinnati, Ohio in the late 1980s and agreed (with others) to pay the

Colombian FARC and other guerrillas for the first time. This is where and when the

conspiracy to pay the Colombian terrorists arose,9 and is more than just a contact with the

forum. Mr. Ordman was a key leader/organizer of the conspiracy from its inception to its

end, including acts in furtherance of the conspiracy occuring within the state of Ohio.

Fair play and substantial justice require hailing him into Court from his home in Costa

Rica.

C. Contacts with other states establish jurisdiction in the United States.

Should the Defendant somehow have insufficient contacts with Ohio, or not have

purposefully availed himself of the state and its protections, the Court could still exercise

personal jurisdiction over him if he had sufficient minimum contacts with the United

States as a whole.

In Mwani v. Bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005), the D.C. Circuit relied on

a provision in Federal Rule of Civil Procedure Rule 4(k)(2), which states the following:

8
As an employee based in Costa Rica, the Plaintiffs do not know for sure whether Mr.
Ordman was paid from Chiquita's corporate headquarters and bank account in Ohio.
9
In the Helicopteros case, the Supreme Court did not reach the question whether contacts
"related to" a cause of action, but insufficient for the cause to have been "arising from"
them, would be sufficient to establish specific personal jurisdiction. Helicopteros
Nacionales, S.A. v. Hall, 466 U.S. 408, 415 n.10 (1984).

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(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under
federal law, serving a summons or filing a waiver of service establishes personal
jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state's courts of

general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution

and laws.

F.R.C.P. 4(k). The Mwani case used a burden-shifting approach. If the Defendant had

insufficient contacts with any particular state, but had sufficient contacts with the United

States as a whole - as did Osama bin Laden in that case - the burden would shift to the

Defendant to name a state where it could be sued, thereby waiving a challenge to

personal jurisdiction. 417 F.3d at 7. As a U.S. citizen, who was educated and brought up

in the United States, Defendant Ordman has sufficient minimum contacts with the United

States to be sued in some U.S. state. Therefore if the Court found that Defendant

Ordman had insufficient contacts with Ohio, but had sufficient contacts with the United

States, the burden would shift to the Defendant to name another state and consent to

jurisdiction there. Otherwise the Court would have jurisdiction under Rule 4(k)(2).

Plaintiffs don't believe the Court should reach this result, since the whole case against

Chiquita Brands could be said to have arisen from the first meeting approving payments

to the FARC.

II. The Plaintiffs have stated claims against Defendants Ordman and Friedheim.

The Defendants' brief is filed on behalf of several individuals who are not sued by

these plaintiffs. It also responds to allegations made by Plaintiffs' counsel Boies Schiller

& Flexner LLP in their Ohio (and Florida) complaints. Only the arguments pertaining to

Defendant Ordman, and one argument made briefly by Defendant Frieheim, are

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responded to in this brief. Defendant Raymer has indicated he is filing his own Motion to

Dismiss separately and we are not sure about any others.

A. Plaintiffs Claims are Not Time-Barred

The court has already ruled that Plaintiffs' claims were equitably tolled until about

March 19, 2007, which is the date stamped on the Proffer and approximately when the

case was unseealed. See D.E. 1110 at 21-22. "These allegations adequately suggest the

existence of extraordinary circumstances which would justify an equitable tolling of the

statute until at least 2007, when Colombia began to emerge from its extended civil

conflict and the extraordinary circumstances finally abated to a degree where plaintiffs

could pursue causs of action in the United States without fear." Id. The Defendnants

don't contest that the TVPA has a ten-year statute of limitations, or that the Ohio

Complaint was filed within ten years of the unsealing of the criminal case on about

March 19, 2007. Therefore, Plaintiffs' claims are not time barred.

The Court has already dealt with Defendants' exhaustion of local remedies

arguments. D.E. 1110 at 17-21. Local exhaustion is not required.

The Defendants' arguments may be barred by collateral estoppel, since the Court

has already ruled on these issues with respect to other Individual Defendants represented

by the same counsel at Blank Rome LLP.10 They may also be barred by the law of the

case, since this case has already been to the 11th Circuit on interlocutory appeal.

10
This opposition brief primarily addresses the arguments made by Defendant Ordman.
However, on page 19 of Defendants' Motion to Dismiss, D.E. 1504, Defendant Friedheim
argues that the Plaintiffs have also failed to state a claim against him. The issue was
already decided in the Court's Order, D.E. 1110, which was fully briefed by Mr.
Friedheim's counsel, and is now barred by collateral estoppel.

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Case 0:08-md-01916-KAM Document 1514 Entered on FLSD Docket 07/25/2017 Page 20 of 21

B. Defendant Ordman provided knowing, substantial assistance to the

people who murdered Plaintiffs' family members.

Defendant Ordman may be liable if he provided "knowing substantial assistance"

to the person or persons who committed the wrongful act. Order, D.E. 1110 at 24, citing

Doe v. Drummond, 782 F.3d 576, 607-608 (2015), Halberstam v. Welch, 705 F.2d 472

(D.C. Cir. 1983). The allegations infra at pages 2-4 show a clear intent on the part of Mr.

Ordman to provide money to several Colombian terrorist groups. This meets the

knowledge standard easily. The Complaint alleges that Chiquita paid about $1.7 million

dollars to the AUC, and a similar amount to the FARC. Mr. Ordman appears to have

been involved in nearly every aspect of this, from designing secret payment schemes to

carrying the cash himself.

C. Defendant Ordman was a co-conspirator in Chiquita Brands'

conspiracy to pay the AUC.

For similar reasons, the Court should find, as it did with Defendants Friedheim,

Olson and Kistinger, that Defendant Ordman is indirectly liable by means of conspiracy.

See Order, D.E. 1110 at 29-30. To prove an individual defendant indirectly liable by

means of conspiracy, Plaintiffs must allege and prove (1) two or more persons agreed to

commit a wrongful act (2) the defendant joined the conspiracy knowing of at least one of

the goals of the conspiracy and with the intent to help accomplish it, and (3) one or more

of the violations was committed by someone who was a member of the conspiracy and

acted in furtherance of the conspiracy. Id. at 29, citing Cabello v. Fernandez-Larios, 402

F.3d 1148 (11th Cir. 2005) The test is easily met since Defendant Ordman attended the

very first meeting with Mr. Kistinger approving payments to the FARC, and was

involved in nearly all of the illegal payment schemes, including to the AUC, after that.

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Case 0:08-md-01916-KAM Document 1514 Entered on FLSD Docket 07/25/2017 Page 21 of 21

Conclusion

For the foregoing reasons, Defendant Ordman's Motion to Dismiss, D.E. 1504,

should be DENIED.

Respectfully submitted,

/s/ Paul Wolf

____________________
Paul Wolf, CO Bar #42107
Attorney for Plaintiffs
P.O. Box 46213
Denver, CO 80201
(202) 431-6986
[email protected]
fax: n/a

July 25, 2017

Certificate of Service

I hereby certify that today, the 25th of July, 2017, I filed the foregoing document
with the clerk of the court using the court's CM/ECF system, which will provide notice to
all parties entitled to receive it.

/s/ Paul Wolf

______________
Paul Wolf

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