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FACTUAL SUMMARY
The Plaintiffs in Does 1-976 and Does 1-677 have sued Defendant Raymer
pseudonymously as "Individual Defendant I" since their complaints were filed in 2010 and
2011, respectively. However, unlike Cyrus Friedheim, Robert Olson, or Robert Kistinger,
Mr. Raymer 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 six 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
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
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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 August 7, 2017, the Defendant filed a Motion to Dismiss under Rule
12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim.
D.E. 1523.
More than a year ago, 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 citations in this brief are nearly all taken from that Order.
SUMMARY OF ARGUMENT
personal participation in this case are sufficiently pled, and mostly copied from the Factual
Proffer in the related criminal case. See Proffer at 64, D.E. 1523-1. Mr. Raymer's claims
that he was a whistleblower, and that he was merely transmitting the instructions of others,
contradicts the facts alleged in the Complaint, and are not relevant in considering a Rule
12(b)(6) motion.
precluded by collateral estoppel. The Court has already held that principles of equitable
tolling apply to this case, due to the danger of Plaintiffs' coming forward, until at least
March, 2007. D.E. 1110 at 21-22. The Torture Victim Protection Act has a ten-year
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statute of limitations. Plaintiffs sued six of the Individuals in the criminal case in March
of 2017, which was within the limitations period, extended by the Court's equitable tolling.1
ARGUMENT
Standard of Review
When evaluating a Rule 12(b)(6) motion to dismiss, a district court must accept the
factual allegations of the complaint as true and construe them in the light most favorable
to the plaintiff. Ray v. Spirt Airlines, Inc., 767 F.3d 1220, 1223 (11th Cir. 2014). To
withstand the motion, the complaint must contain factual matter, assumed to be true,
sufficient to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 50 U.S. 544, 556 (2007)).
To state a plausible claim for relief, a complaint must contain sufficient non-
conclusory factual allegations to allow the Court to draw the reasonable inference that
[Defendants are] liable for the misconduct alleged. Id. at 678. Plausibility does not
impose a probability requirement, but it does require more than a sheer possibility that
a Defendant has acted unlawfully. Id. Plaintiffs need not include detailed factual
allegations, but the pleadings must include more than an unadorned, the-defendant-
unlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678. On the other hand, a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those
1
Two of the ten individuals, Roderick Hills and Al Bakoczy, are deceased. Two others,
lvaro Acevedo and Vctor Buitrago appear to be Colombian employees of Banadex, who
may not have sufficient contacts with the United States to be sued here. In selecting which
individuals may be personally liable, counsel simply chose the ones identified by the
Department of Justice as having had a significant role in the case. There is nothing in the
Proffer, or other public documents in the criminal case, suggesting that Mr. Raymer acted
as a whistleblower. Before the motion to dismiss was filed, counsel conferred with Mr.
Raymer's attorney and asked him to provide any exculpatory material he wanted me to look
at, but none was provided.
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facts is improbable and that a recovery is very remote and unlikely. Twombly, 550 U.S.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the
Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). On a Rule 12(b)(1) facial attack, the court
evaluates whether the plaintiff has sufficiently alleged a basis of subject matter
jurisdiction in the complaint and employs standards similar to those governing Rule
12(b)(6) review. Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.
2013).
The Factual Proffer in the criminal case shows that on about May 5, 2003,
"continue making the payments" to the AUC, against the advice of outside counsel. See
Proffer at 64, D.E. 1523-1.2 He also attended a meeting on April 8, 2003, in which co-
defendant Robert Olson gave this instruction. Id. Mr. Raymer doesn't dispute that he was
The Defendant responds that he was not a decision-maker, Motion to Dismiss, D.E.
1523 at 1, and was "simply relaying again the exact same previous instruction of his
2
Joel Raymer is Individual I in the criminal case. John Ordman is Individual J. lvaro
Acevedo is Individual F. The identities of these Individuals were produced in discovery to
undersigned counsel pursuant to the Court's Order of November 14, 2016. D.E. 1185.
3
The fact that Mr. Raymer was designated as "Individual I" was disclosed by Chiquita
Brands on November 25, 2016, pursuant to the Court's Order on discovery of November
14, 2016. D.E. 1185.
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Raymer was a decision-maker, or was just obediently repeating the instructions he was
given by someone else, if the standard is conspiracy or aiding and abetting. If Raymer was
in a position to give instructions to Ordman, and instructed Ordman to make the payments,
then Raymer had a significant role in the conspiracy and provided subsantial assistance.
The Defendant also argues he was the one who "discovered and immediately
reported" that the AUC had been designated a Foreign Terrorist Organization, see D.E.
1523 at 2.6 However, he omits mentioning that he told Mr. Ordman to continue making
the payments after learning of it. Mr. Raymer's discovery and reporting of the information
Shortly thereafter, Defendants Raymer and Olson discussed the matter with
outside counsel, who advised them to stop making the payments. Id., Proffer at
55-56.
4
Defendants Raymer and Olson (whose instruction he says he was merely transmitting)
are both attorneys, so Raymer may be vicariously liable as well.
5
Defendant Raymer must do more than dispute the truthfulness of the allegations to prevail
on a Rule 12(b)(6) motion.
6
Whether and when the AUC and FARC were officially designated as terrorist
organizations by the U.S. State Department isn't determinative of anything. It is the
conduct of these groups, and the Defendant's knowledge of it, that is at issue. The murders
could be described as terrorism, since one motive was to intimidate the population, but are
better described as extrajudicial executions.
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designation, and being warned repeatedly by outside counsel, Mr. Raymer advised his
The fact that Chiquita's guilty plea was partly based on Mr. Raymer's conduct, and
that he was one of the ten individuals upon whose conduct Chiquita's prosecution was
based, by itself states a prima facie case of conspiracy and aiding and abetting. The report
individuals involved in the conspiracy, such as Charles Keiser, but Chiquita's guilty plea
The Complaint also alleges that Mr. Raymer was Assistant General Counsel for
Chiquita Brands International for more than 20 years, from February 1992 - May 2012.
Complaint at 2170. This covers most of the time Chiquita Brands was paying Colombian
terrorist groups, including the FARC, AUC, ELN, EPL and others. Chiquita's legal
department was generally involved in the conspiracy, 7 rejecting the advice of outside
counsel, that Chiquita "must stop payments." Proffer at 56. "Bottom line: CANNOT
MAKE THE PAYMENT." Id. This advice was transmitted from outside counsel to
7
Chiquita waived its attorney-client and work product privileges in the criminal case,
suggesting they would have been pierced by the crime-fraud exception anyway.
6
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Defendant Raymer (Individual I) personally. Id. "[T]he company should not continue to
make the Santa Marta payments, given the AUC's designation as a foreign terrorist
organization[.]" Id. Yet the company continued to make the payments, in both Santa Marta
and Urab. As in-house attorneys, Mr. Raymer and Mr. Olson were the links between
outside counsel and Chiquita Brands. They received advice that the payments were illegal,
The Defendant also argues that the fact that no other plaintff groups are suing him
"Individual I" in the criminal case was not generally known until recently. Only
requested it.
The TVPA authorizes a cause of action against [a]n individual for acts of
extrajudicial killing and torture committed under authority of color of law of any foreign
nation. 28 U. S. C. 1350 Note. The Act itself contemplates claims based on secondary
theories of liability. Doe v. Drummond Co., 782 F.3d 576, 603 (11th Cir. 2015), citing
Mohamad v. Palestinian Authority, 566 U.S. at ___, 132 S. Ct. at 1709; Aldana v. Del
Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005).
previous judgment pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples. Id. The Act
defines torture as any act, directed against any individual in the offenders custody or
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In this case, Plaintiffs allege that each of the killings at issue was an extrajudicial
killing in violation of the law of nations under the TVPA, and that Mr. Raymer is legally
responsible for those killings because he conspired with, aided and abetted or was engaged
in joint actions with AUC paramilitaries who carried out the murders.
Theories of secondary liability under domestic law are available to support TVPA
claims, with federal common law supplying the relevant standards. Doe v. Drummond,
782 F.3d at 607- 608. Aiding and abetting liability requires a showing of knowing
substantial assistance to the person or persons who committed the wrongful act. Id., citing
Halbertsam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). Therefore, to plead aiding and
abetting liability, Plaintiffs must allege sufficient facts to show that Mr. Raymer had the
a. Mens rea
To plead knowledge mens rea adequately, the Complaint must contain non-
conclusory factual allegations from which it may reasonably be inferred that Mr. Raymer
acted with knowledge that their participation in Chiquitas support of the AUC would
facilitate the commission of human rights abuses by the AUC in the banana-growing
regions of Colombia where Plaintiffs relatives resided. Mr. Raymer doesn't appear to deny
this, and was even advised of it by outside counsel, yet avers that he was not a decision-
maker and was just transmitting Mr. Olson's instructions. D.E. 1523 at 10. This satisfies
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The allegations of the Complaint, read in the light most favorable to Plaintiffs,
support a reasonable inference that the support to the AUC was given in order to reduce
the companys operating costs in the production of bananas, knowing that violent deaths
collateral by-product of its support, if not an intended result. Order, D.E. 1110 at 27. The
allegations support the further inference that the Defendant condoned the AUCs use of
violent terrorism in these regions because profits took priority over basic human welfare in
the relevant decision-making processes. Id. As with the other Individual Defendants, it
may reasonably be inferred that Mr. Raymer acted with the purpose of promoting the
AUCs extrajudicial killings in those areas, as well as the knowledge that Chiquitas
The Defendant knew the AUC was a violent paramilitary organization from the
early days of Chiquitas relationship with it (by 1997 at the latest). Despite that knowledge,
he continued to participate in Chiquitas support of the AUC even after learning it had been
formally designated a foreign terrorist organization in 2001, and being warned by the
Department of Justice and outside counsel that Chiquitas AUC payments were illegal.
b. Actus reus
Mr. Raymer instructed Mr. Ordman to "continue making the payments" on at least
one occasion on May 5, 2003. It appears from the Proffer, that "but for" this instruction,
Mr. Ordman would not have had the authority to make the payments himself. Mr. Raymer
was also in a meeting with Mr. Olson on April 8, 2003, in which Mr. Olson gave the
instruction to make the payments. These incidents were particularly egregious because
they occurred right after outside counsel advised Mr. Raymer personally that the payments
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were illegal and must be stopped. Proffer at 55-56. Then on or about September 8,
2003, outside counsel advised Defendant Raymer personally that "[Department of Justice]
officials have repeatedly stated that they view the circumstances presented as a technical
violation and cannot endorse current or future payments." Proffer at 74. Yet the
payments continued.
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.
and AUC leaders,8 resulting in Chiquitas agreement to fund the AUC in exchange for the
AUCs services in driving left-wing guerillas and sympathizers out of the banana-growing
regions of Colombia. As to the second element, Plaintiffs allege that the Defendant acting
with knowledge of the AUCs status as violent terrorist group -- later joined the conspiracy
by approving and continuing to implement the AUC payment scheme, knowing of at least
8
As the ATA cases for the FARC victims have shown, the meeting between Charles
Kaiser, Carlos Castao, and Ral Hasbn was not Chiquita's first meeting with terrorist
groups. In addition, about a third of the Plaintiffs represented herein were killed by the
AUC before this meeting. Ever Veloza Garcia and other paramilitaries have testified about
prior payments, which were made in cash rather than via the convivir front companies
organized by Hasbn.
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one of the unlawful goals of the conspiracy (the violent suppression of leftist sympathizers
and innocent civilians), and acting with the intent to help accomplish that goal.
The Complaint alleges that the AUC killed thousands of civilians in banana-
growing regions of Colombia where Plaintiffs family members resided as part of its
campaign to drive leftist sympathizers out of the region, and that AUC squads were in fact
involved in the killings of Plaintiffs family members. Because this allegation describes
acts taken in furtherance of the conspiracy, the Complaint alleges facts from which the
third and final elements of conspiracy liability may be established. That is, Plaintiffs allege
sufficient facts which, if proven, could establish secondary liability based on conspiracy.
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 unsealed. 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
cause of action in the United States without fear." Id. The Defendants 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.
9
Although the Defendant cites no rules in his motion, statutes of limitations are
jurisdictional and are evaluated under Rule 12(b)(1).
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Instead, the Defendant submits newspaper articles from 2004 that were already
considered by the Court. This issue has been actually litigated and determined, and Mr.
Raymer is represented by the same lawyers who represented other Individual Defendants,
ruling on equitable tolling, which wasn't based on the discovery rule or any kind of notice,
but on the danger of coming forward and participating in this case, which has abated
somewhat over time. Id. Therefore, Plaintiffs' claims are not time barred.
Conclusion
For the foregoing reasons, the Court should DENY Defendant Raymer's Motion to
Dismiss.
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify, that on this 10th day of August, 2017, I filed the foregoing
document with the Clerk of the Court using the Court's Electronic Case Filing system,
which will send notices to all parties entitled to receive them.
10
The law of the case doctrine may also apply, since this case has already been to the 11th
Circuit on interlocutory appeal.
12