Case 0:08-md-01916-KAM Document 2420 Entered on FLSD Docket 04/20/2019 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)
__________________________________________/

Plaintiffs Expedited Motion to Certify Appeal as Frivolous,

or to Stay Proceedings of Cases Subject to the Appeal

Come now the Plaintiffs, to move the Court to Certify that the basis set forth in Attorney

Scarola's Reply to Attorney Wolf's Response to Scarola's Notice of Appeal, DE 2418, is frivolous.

Under Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the appellants (hereinafter the

"Scarola Plaintiffs") cannot prevail in an appeal of the Court's Order on the plaintiffs' use of aliases,

DE 2397, based on the collateral order doctrine. A Proposed Certification is attached.

I. The Court's Order on Pseudonyms doesn't fit within the collateral order doctrine.

In Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the district court ordered

Mowhawk to disclose certain confidential materials on the ground that Mohawk had waived the

attorney-client privilege. Justice Sotomayor, affirming a decision of the 11th Circuit, wrote that

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disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under

the collateral order doctrine. Id. at *1.1 The instant case is based on similar facts.

“Under Cohen,” the Eleventh Circuit had explained, “an order is appealable if it (1)

conclusively determines the disputed question; (2) resolves an important issue completely separate

from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment.”

541 F. 3d 1048, 1052 (11th Cir. 2008) (per curiam). It was the third element, whether the order

would be effectively unreviewable on appeal from a final judgment, that made the collateral order

doctrine inapplicable, because “a discovery order2 that implicates the attorney-client privilege”

can be adequately reviewed “on appeal from a final judgment.” Id.3

In applying Cohen’s collateral order doctrine, the Supreme Court has stressed that it must

“never be allowed to swallow the general rule that a party is entitled to a single appeal, to be

deferred until final judgment has been entered.” Digital Equipment Corp. v. Desktop Direct, Inc.,

511 U. S. 863, 868 (1994) (citation omitted). The admonition recognizes that interlocutory appeals

encroach on the prerogatives of district court judges, who play a “special role” in managing

ongoing litigation. Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981); Richardson-

Merrell Inc. v. Koller, 472 U. S. 424, 436 (1985) (“[T]he district judge can better exercise [his or

her] responsibility [to police the prejudgment tactics of litigants] if the appellate courts do not

repeatedly intervene to second-guess prejudgment rulings”).

1
Justice Thomas wrote a separate opinion concurring in part and concurring in the judgment. Id.
Justice Thomas didn't believe the Cohen doctrine applied at all. There were no dissenting opinions.
2
See 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3914.23, p. 123 (2d
ed. 1992) (“[T]he rule remains settled that most discovery rulings are not final”).
3
The Scarola Plaintiffs rely on Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003) and James
v. Jacobson, 6 F.3d 233 (4th Cir. 1993). These cases predate Mohawk. The Mahone case was not
about the collateral order doctine. In Mahone, the question was whether a district court retained
jurisdiction to decide a motion for reconsideration under Rule 60(b) after a notice of appeal had
been filed.
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The justification for immediate appeal must therefore be sufficiently strong to overcome

the usual benefits of deferring appeal until litigation concludes. Mohawk at *5. Significantly, “the

third Cohen question, whether a right is ‘adequately vindicable’ or ‘effectively reviewable,’ simply

cannot be answered without a judgment about the value of the interests that would be lost through

rigorous application of a final judgment requirement.” Id., citing Digital Equipment, 511 U. S. at

878–879. That a ruling “may burden litigants in ways that are only imperfectly reparable by

appellate reversal of a final district court judgment ... has never sufficed.” Id. citing Digital

Equipment at 872.

In making this determination, the court doesn't engage in an “individualized jurisdictional

inquiry.” Coopers & Lybrand v. Livesay, 437 U. S. 463, 473 (1978). Rather, the focus is on “the

entire category to which a claim belongs.” Digital Equipment, 511 U. S., at 868. As long as the

class of claims, taken as a whole, can be adequately vindicated by other means, “the chance that

the litigation at hand might be speeded, or a ‘particular injustic[e]’ averted,” does not provide a

basis for jurisdiction under §1291. Id., quoting Van Cauwenberghe v. Biard, 486 U. S. 517, 529

(1988) (alteration in original). Here, the category of claim is whether a plaintiff can proceed to

trial under a pseudonym. It is nearly on all fours with Mohawk, which was about whether certain

discovery was protected by the attorney-client privilege. 4

The Scarola Plaintiffs argue that "appeals under the collateral order doctrine do not

generally divest the district court of jurisdiction over issues not under consideration in the appeal."

4
Since none of my clients are joining in the appeal, we intend to comply with the Order, which
requires either identifying the plaintiffs on the record, or withdrawing their claims, within 45 days.
The withdrawal of a claim should be without prejudice to refiling it someday, in the event of a
favorable decision in the court of appeals, however unlikely that may be.
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DE 2419 at 2.5 This mistates the rule, which is that a party generally has to wait for a final

judgment. The Scarola Plaintiffs' appeal clearly doesn't fall within the collateral order doctrine.

As the Supreme Court has explained, "a federal district court and a federal court of appeals should

not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an

event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the

district court of its control over those aspects of the case involved in the appeal." Griggs v.

Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); see Marrese v. American Academy of

Orthopaedic Surgeons, 470 U.S. 373, 379 (1985), reh'g denied, 471 U.S. 1062 (1985). The Scarola

Plaintiffs apparently rely on the limiting language of "those aspects of the case involved in the

appeal," 459 U.S. at 58, and believe they can litigate their cases simultaneously in this Court and

in the 11th Circuit, but that's not how it works.

Finally, the Scarola Plaintiffs will have to overcome a very difficult standard of review.

The Court found there was a presumption that the parties' names are public, and that the Plaintiffs

hadn't adduced evidence to rebut the presumption. For instance, evidence in the form of deposition

testimony by one of the bellwether plaintiffs, that the murderer was never punished for the crime,

and is in prison for another crime, was insufficient to rebut the presumption. 6 The Scarola

Plaintiffs will have to argue that the ruling on this case, and similar, was an abuse of discretion.

The Plaintiffs admitted that none of them had been harmed or threatened because of this litigation.

5
The Scarola Plaintiffs rely on City of New York v. Beretta U.S.A. Corp., 234 F.R.D. 46, 50
(E.D.N.Y. 2006). This case has no binding authority, entirely different facts, and there is no point
in analyzing it.
6
We're not sure this was the right analysis either. If the Court had balanced the Plaintiffs'
reasonable fears against the public's interest in knowing their names, it should find that the public
has virtually no interest in exposing them. What is anyone's legitimate interest in doing that? The
plaintiffs shouldn't have to prove incidents of retaliation or threats to demonstrate the risk of going
to trial, potentially having newspapers report their names, and in some cases, the names of the
actual murderers, who were never punished. Nevertheless, the order is not appealable under the
collateral order doctrine.
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Some courts have held that a district court may retain jurisdiction by declaring an appeal

to be frivolous. See McMath v. City of Gary Indiana, 976 F.2d 1026, 1031 (7th Cir. 1992) (“It is

for the district court, and not [the Court of Appeals], to determine in the first instance whether an

appeal is frivolous.”); Levin v. Alms and Associates, Inc., 634 F.3d 260, 266 (4th Cir. 2011);

League of Women Voters of Ohio v. Blackwell, 432 F. Supp. 2d 734, 740 (N.D. Ohio 2006) aff'd

in part, rev'd in part sub nom. League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th

Cir. 2008) (district court certified the appeal of sovereign immunity frivolous and retained

jurisdiction); Order Granting Petition to Certify Defendants' Appeal as Frivolous, DE 70, in

Toscano v. City of Fresno, 13-cv-1987-SAB (EDCA, Oct 19, 2015); FRAP 38, Frivolous Appeal

- Damages and Costs.

Counsel was unable to find any 11th Circuit cases on point. However, time is of the

essence. Before the District Court begins transferring the record on appeal, it should certify that

the appeal is frivolous under Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). In any

event, this appeal should not be allowed to tie up the cases of Plaintiffs who are not joining in it.

A Proposed Certification is attached.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986
paulwolf@yahoo.com

April 20, 2019

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Certificate of Service

I hereby certify that on this 20th day of April, 2019, I filed the foregoing document, and
all exhibits thereto with the Clerk of the Court using the Court's Electronic Case Filing (ECF)
system, which will send electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

_________________
Paul Wolf

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Case 0:08-md-01916-KAM Document 2420 Entered on FLSD Docket 04/20/2019 Page 7 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)
__________________________________________/

Proposed Certification

In consideration of the Notice of Appeal filed on April 18, 2019, all responses and replies

thereto, and to Plaintiffs Attorney Wolf's Expedited Motion to Certify Appeal as Frivolous, or to

Stay Proceedings of Cases Subject to the Appeal, and all responses and replies thereto, and to all

exhibits thereto, it is hereby

CERTIFIED that the basis for appeal set forth in the Reply at DE 2418 is FRIVOLOUS.

Under Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the Court's Order on the use of

pseudonyms, dated April 11, 2019, DE 2397, does not fall within the collateral order doctrine.

Done this _______ day of _________, 2019.

___________________
Kenneth A. Marra
U.S. District Judge