Angel Enrique Villeda Aldana v. Del Monte Fresh Produce N.A., Inc. , 741 F.3d 1349 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16143
________________________
D.C. Docket No. 1:01-cv-03399-FAM
ANGEL ENRIQUE VILLEDA ALDANA,
JORGE AUGUSTIN PALMA ROMERO, et al.,
Plaintiffs - Appellants,
versus
DEL MONTE FRESH PRODUCE N.A., INC.,
BANDEGUA, Compania De Desarrollo De Guatemala, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2014)
Before MARCUS and DUBINA, Circuit Judges, and HODGES, * District Judge.
MARCUS, Circuit Judge:
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
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For the third time, we take up this case involving Guatemalan labor
organizers who claim that Fresh Del Monte Produce, Inc. (“Del Monte, Inc.”) and
its subsidiaries were responsible for armed kidnapping, intimidation, and torture on
a Guatemalan banana plantation in 1999. When last we met, this Court affirmed
the dismissal of Plaintiffs’ claims for forum non conveniens. Plaintiffs since filed
a complaint in Guatemala, but the local court refused to hear the case because of
that country’s forum non conveniens blocking statute. Without appealing that
decision, Plaintiffs sought to reinstate their action in federal court. The district
court refused to reopen the case in the absence of exceptional circumstances
pursuant to Rule 60(b)(6). Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) does not
provide relief because on this record Plaintiffs cannot justify their failure to
mention the blocking law or the unavailability of a foreign forum to the district
court during the prior proceedings. See Galbert v. W. Caribbean Airways, 715
F.3d 1290, 1294 (11th Cir. 2013), cert. denied, 134 S. Ct. 792 (2013). The district
court did not abuse its considerable discretion in refusing reinstatement when the
Plaintiffs created the procedural plight they now challenge. We affirm.
I.
Plaintiffs are Guatemalan citizens and former officers of Sindicato de
Trabajadores del Banano de Izabla (SITRABI), a labor union representing banana
workers at the Zaculeu Lanquin Arapahoe Plantation in the Bobos District,
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Municipality of Morales, Izabal, Guatemala (the “Bobos plantation”). Aldana v.
Del Monte Fresh Produce, N.A., Inc. (Aldana I), 416 F.3d 1242, 1257 (11th Cir.
2005) (per curiam). Defendants are Del Monte, Inc.; Del Monte Fresh Produce
Company (“Del Monte Fresh”); and Compania De Desarollo Bananero De
Guatemala, S.A. (“Bandegua”). Plaintiffs state that Del Monte Fresh, a Delaware
corporation, and Bandegua, a Guatemalan corporation, are wholly owned by Del
Monte, Inc., a for-profit company with a principal place of business in Coral
Gables, Florida. Del Monte, Inc. is one of the world’s largest producers and
distributors of bananas. Id.
In the fall of 1999, Plaintiffs were enmeshed in a bitter labor dispute at the
Bandegua-owned Bobos plantation. See Aldana v. Del Monte Fresh Produce N.A.,
Inc. (Aldana II), 578 F.3d 1283, 1286 (11th Cir. 2009). Plaintiffs allege that on
October 13 and 14, in retaliation for their union activities, an armed private
security force employed by Defendants kidnapped, detained, and tortured them on
the plantation. Id. Specifically, Plaintiffs claim that the armed security force held
them for eight hours, repeatedly threatened them with imminent death, forced them
at gunpoint to sign formal resignation letters and to make radio announcements
acknowledging the union’s defeat, and released them only after saying they would
be killed if they did not flee the country. Id. Plaintiffs have since been granted
political asylum in the United States. Id. at 1286-87.
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We are well acquainted with this case. Plaintiffs filed their first complaint in
the United States District Court for the Southern District of Florida on August 2,
2001, asserting violations of international law through the Torture Victim
Protection Act (TVPA) and the Alien Tort Statute (ATS), 28 U.S.C. § 1350. 1 The
complaint also included Florida tort claims. In 2003, Defendants moved to dismiss
for forum non conveniens. The district court denied the motion, but in a
subsequent ruling it dismissed on other grounds. Villeda Aldana v. Fresh Del
Monte Produce, Inc., 305 F. Supp. 2d 1285, 1291, 1308 (S.D. Fla. 2003). Plaintiffs
appealed the dismissal, while simultaneously filing state law claims in a Dade
County, Florida, circuit court. Aldana II, 578 F.3d at 1287. A panel of this Court
reversed the dismissal of the TVPA and ATS claims for torture and remanded to
the district court. Aldana I, 416 F.3d at 1253.
Meanwhile, the state court dismissed due to forum non conveniens, but said
it would revisit its decision if the Plaintiffs were required to return to Guatemala in
connection with the trial. Aldana II, 578 F.3d at 1287. A Florida appeals court
affirmed. Aldana v. Fresh Del Monte Produce Inc., 922 So. 2d 212 (Fla. 3d DCA
1
Recent Supreme Court decisions may well bar Plaintiffs from stating claims grounded on the
TVPA or ATS against the corporate Defendants for events occurring abroad. See Kiobel v.
Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (holding that the ATS does not apply to
violations of the law of nations occurring within territory of a sovereign other than the United
States); Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (holding that the TVPA allows
suits only against natural persons). Because Plaintiffs are not otherwise entitled to relief under
Rule 60(b)(6), we have no occasion to consider the impact of Kiobel and Mohamad on their
claims.
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2006) (unpublished table decision). On remand in federal court, the district court
also dismissed for forum non conveniens. Following the state court’s findings
where necessary because of collateral estoppel, the district court concluded that
each prong of the forum non conveniens inquiry favored dismissal: Guatemala
provided an “adequate alternative forum” and all of the relevant private and public
interest factors weighed heavily in favor of adjudication there. Aldana II, 578 F.3d
at 1288. While the Plaintiffs contended that Guatemalan courts were not adequate
because adjudication there placed their lives at risk, they in no way argued that a
Guatemalan forum was unavailable. Like the state court, the district court
expressly preserved the “Plaintiff’s right to seek reconsideration if any of the
Plaintiffs are required to appear in person in Guatemala in order to litigate their
claims.” Villeda Aldana v. Fresh Del Monte Produce, Inc., 01-3399-CIV, 2007
WL 3054986, at *6 (S.D. Fla. Oct. 16, 2007). On appeal we affirmed, finding no
abuse of discretion in the district court’s determination. Aldana II, 578 F.3d at
1300. We concluded that Guatemalan courts were “adequate,” despite the
Plaintiffs’ concerns with safety and corruption, and “available,” when Plaintiffs did
not contest that “Guatemala possesses jurisdiction over the entire case.” Id. at
1290. In addition, we found that the district court did not err in determining that
both the private and public interest factors weighed in favor of dismissal. Id. at
1292-1300.
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Plaintiffs unsuccessfully sought rehearing en banc, Aldana v. Del Monte
Fresh Produce N.A., Inc., 401 F. App’x 518 (11th Cir. Feb. 9, 2010) (unpublished
table decision), and certiorari in the Supreme Court, Aldana v. Fresh Del Monte
Produce, Inc., 131 S. Ct. 102 (Oct. 4, 2010) (mem.). After exhausting their options
in an American judicial forum, the Plaintiffs filed an ex parte complaint in a trial
court in the Department of Izabal, Puerto Barrios, Guatemala, on December 6,
2010. Notably, in that submission Plaintiffs cited Decree 34-97, Guatemala’s
forum non conveniens blocking statute, which provides in relevant part:
DEFENSE OF THE PROCEDURAL RIGHTS OF NATIONALS
AND RESIDENTS ACT
Article 1. Because it violates the rights guaranteed by the Political
Constitution of the Republic and the judicial order of the Guatemala
[sic], the theory of Forum Non Conveniens -- lack of jurisdiction due
to inconvenient forum -- is declared unacceptable, inapplicable, and
invalid when invoked to prevent the trial from continuing in the
defendant’s domicile Courts.
Article 2. The action in personam validly filed abroad by a national
plaintiff before a competent judge shall extinguish national
jurisdiction which shall not be renewed unless a new claim is filed in
the country in a spontaneous and totally free manner by the plaintiff.
Article 3. In the event a foreign judge is informed of the scope of this
law and he declines to hear the case submitted to his jurisdiction,
Guatemalan courts may reassume jurisdiction as an exceptional,
measure and to avoid depriving Guatemalan nationals and residents of
due process . . . .
The day after Plaintiffs submitted their complaint, the Guatemalan court
issued a ruling refusing to hear the claims:
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[T]he said lawsuit is DENIED, due to the fact that after reading the
lawsuit it is clear that the represented party has already filed a lawsuit
for damages in the United States District Court, Southern District of
Florida (Whereby [sic] this court is incompetent to hear this lawsuit.
Regarding this subject, article 2 of the Law of Defense of Procedural
Rights for Nationals and Residents, Decree 34-97 of the National
Congress of the Republic of Guatemala, establishes that an action
duly filed abroad by a national before a competent court precludes the
national competence; being this the grounds to declare inadmissible
the lawsuit filed.
Plaintiffs then moved to reinstate their suits both in state and federal court without
appealing the decision in Guatemala. The Florida court refused to reopen the
matter and the state appellate court affirmed. Aldana v. Fresh Del Monte Produce,
86 So. 3d 1127 (Fla. 3d DCA 2012) (unpublished table decision).
In contesting the federal motion, both sides put forth competing Guatemalan
legal experts. Defendants submitted the declaration of Francisco Chavez Bosque,
whose experience included 35 years of legal practice in Guatemalan courts and
time as a law professor teaching civil procedure. According to Bosque, a plaintiff
may challenge a judge’s refusal to hear a case in a number of ways. First, a
plaintiff may file a written objection with the judge called a nulidad. If the judge
denies the nulidad, the plaintiff may appeal to the Court of Appeals. If the judge’s
rejection of a complaint violates due process, the decision of the Court of Appeals
may be subject to additional appellate review via an amparo. Moreover, Bosque
observed that “a judge’s order refusing to admit a complaint is without prejudice,
which means that the plaintiff may re-file the complaint with the same judge in a
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revised form that addresses or corrects the deficiencies identified in the judge’s
original order of rejection.” Bosque concluded that “Plaintiffs stated their claim in
a deliberately weak manner and so as to induce its rejection” because they went out
of their way to cite Decree 34-97 and failed to inform the judge that they were
filing their claim in a spontaneous and totally free manner, which would have
taken them outside the blocking law.
Plaintiffs countered with the declaration of Héctor Fajardo Villagrán, an
experienced Guatemalan lawyer and former justice of the peace. Villagrán did
“not believe that [the complaint] was written in a weak, incomplete, or deliberately
misguiding manner.” According to him, Plaintiffs need not have specified that
their complaint was filed in a free and spontaneous manner, because “[i]n
Guatemalan judicial practice, all legal actions are filed in an absolutely free and
spontaneous manner.” Villagrán did not contest that Guatemalan procedure
provided an opportunity for a nulidad. Instead, he opined that a nulidad was not an
option in this case because of the Code of Professional Ethics, which commands
lawyers to “act with probity and good faith” and to “refrain from abusing the
means of appeal.”
On October 29, 2012, after staying the action pending the state court
outcome, the district court denied Plaintiffs’ motion for reinstatement. The district
court determined that the relevant rule was the catch-all Rule 60(b)(6). The court
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found that the motion had been filed within a reasonable amount of time, as
required by Rule 60(c). However, the court held that Plaintiffs had not met the
high Rule 60(b)(6) bar:
Plaintiffs’ failure to file a [nulidad] in Guatemala and to exhaust their
avenues for relief in their home country precludes this Court from
finding the ‘exceptional circumstances’ standard is met. Their
abandonment of their appellate rights in Guatemala precludes the
Court from finding that there is no avenue for relief, but for
reinstating this case. . . . At a minimum, Plaintiffs should have filed a
[nulidad] in Guatemala prior to seeking reinstatement here. Absent
that persistence by the Plaintiffs in the foreign jurisdiction, the Court
cannot invoke the extraordinary remedy of Rule 60(b)(6) to grant
relief.
Aldana v. Fresh Del Monte Produce, Inc., 01-3399-CIV, 2012 WL 5364241, at *7
(S.D. Fla. Oct. 30, 2012). The district court did not address, and thus implicitly
rejected, Plaintiffs’ argument that attorneys would have broken ethical rules by
filing a nulidad. Nor did the court reach the question of whether collateral estoppel
from the state court order would bar reinstatement of Plaintiffs’ claims in federal
court. Plaintiffs filed a timely notice of appeal. We have jurisdiction to review the
district court’s final order pursuant to 28 U.S.C. § 1291.
II.
A.
Plaintiffs must seek reinstatement of their claims through Rule 60, which
lists grounds for relief from a final judgment. Fed. R. Civ. P. 60; see Seven Elves,
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Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. Jan. 1981). 2 Plaintiffs ask us to
reexamine the forum non conveniens decision entered by the district court and
affirmed by this Court by arguing simply that the Guatemalan order showed
Guatemala was not an available forum. But Plaintiffs’ argument is incomplete:
they must explain how Rule 60 entitles them to relief from the previous judgment.
While protests about the unavailability of a foreign forum surely bear on the Rule
60 analysis, Plaintiffs must make their case through that procedural framework.
Plaintiffs nevertheless contend that they need not invoke Rule 60 because
they seek relief from a conditional judgment. But they do not, and cannot, claim
that the district court’s condition for reinstatement has been satisfied. The court’s
dismissal expressly preserved Plaintiffs’ right to seek reconsideration if (and only
if) they were required to appear personally in Guatemala. Villeda Aldana, 2007
WL 3054986, at *6. The Plaintiffs’ motion to reinstate alleges the unavailability of
relief in a Guatemalan forum, not that they were being forced to appear in
Guatemala in person. Nor can Plaintiffs now complain that the original forum non
conveniens dismissal was inadequately conditioned. Because Plaintiffs did not
make that argument to the district court at the time or to this Court on direct
appeal, any arguments to that effect have been waived or rejected. See Access
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue
not raised in the district court and raised for the first time in an appeal will not be
considered by this court.” (quoting Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.
1994))).
B.
We turn, then, to Rule 60(b), the procedural means by which a party may
seek relief from a final judgment. “By its very nature, the rule seeks to strike a
delicate balance between two countervailing impulses: the desire to preserve the
finality of judgments and the ‘incessant command of the court’s conscience that
justice be done in light of all the facts.’” Seven Elves, 635 F.2d at 401 (quoting
Bankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)). The first
five provisions of Rule 60(b) provide relief in specific circumstances, including in
the event of mistake, fraud, or newly discovered evidence. Rule 60(b)(6) provides
a catch-all, authorizing a court to grant relief from a judgment for “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Our case precedent has
carefully constrained this open-ended language. “Rule 60(b)(6) motions must
demonstrate ‘that the circumstances are sufficiently extraordinary to warrant
relief.’” Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006) (per curiam)
(quoting Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000)).
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“Even then, whether to grant the requested [Rule 60(b)] relief is . . . a matter
for the district court’s sound discretion.” Cano, 435 F.3d at 1342 (second
alteration in original) (quoting Toole, 235 F.3d at 1317). Plaintiffs “must
demonstrate a justification so compelling that the [district] court was required to
vacate its order.” Id. (alteration in original) (quoting Cavaliere v. Allstate Ins. Co.,
996 F.2d 1111, 1115 (11th Cir. 1993)). Accordingly, we review a district court’s
denial of a Rule 60(b)(6) motion for abuse of discretion, Galbert, 715 F.3d at 1294,
though we review the district court’s interpretation of foreign law de novo. Cooper
v. Meridian Yachts, Ltd., 575 F.3d 1151, 1163 n.5 (11th Cir. 2009).
Plaintiffs insist that, as a general matter, without a forum for litigating their
claims they suffer extreme hardship and prejudice. In a case arising in the same
procedural posture as this one, a recent panel of this Court rejected a similar
argument. See Galbert, 715 F.3d 1290. In Galbert, the plaintiffs, residents of
Martinique, France, sued a Colombian airliner and two Florida travel charter
companies after a plane crashed en route from Panama to Martinique. Id. at 1292.
The district court dismissed because of forum non conveniens and we affirmed.
Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009). The plaintiffs then
brought claims in a French court, though they argued in that forum that it lacked
jurisdiction. Galbert, 715 F.3d at 1293. The French trial and appellate courts
found jurisdiction but the Court of Cassation (the French Supreme Court) thought
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otherwise and dismissed the matter. Id. at 1293-94. Upon filing a Rule 60(b)(6)
motion, the federal district court refused to reinstate plaintiffs’ suit. Id. at 1294.
This Court affirmed, tellingly noting:
Though the Baptes consistently argued that Martinique was an
unavailable forum in each of the French courts they encountered . . .
they failed to raise that argument to the Southern District of Florida in
2007 during the pendency of Defendants’ motion to dismiss. Indeed,
in its FNC order, the district court noted that the Baptes did not
dispute the adequacy of Martinique as an alternate forum. Moreover,
in affirming the FNC order, this court noted that the Baptes “d[id] not
challenge the district court’s determination that Martinique is an
adequate alternative forum or that they [could] reinstate their suit in
Martinique without undue prejudice or inconvenience.” The
appropriate time for a plaintiff to argue the unavailability of an
alternate forum is in their brief opposing a defendant’s motion to
dismiss based on forum non conveniens. The Baptes failed to do that
in the district court. They have also not offered any explanation for
their failure to argue unavailability at the appropriate time in the
Southern District of Florida instead of waiting until they presented
their claims to the courts in Martinique. Thus, the Baptes’ motion to
vacate appears to be nothing more than an effort to raise arguments in
opposition to the forum non conveniens dismissal which they failed to
raise initially in their opposition to Defendants’ motion to dismiss.
Such circumstances are not “sufficiently extraordinary” to warrant
Rule 60(b)(6) relief.
Id. at 1295 (citations omitted). Put differently, in Galbert a panel of this Court held
that a plaintiff who has no good explanation for failing to contest the availability of
a foreign forum during an initial forum non conveniens determination in federal
court is not entitled to Rule 60(b)(6) relief later on the basis of the foreseeable
unavailability of a foreign court.
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At no point in the prior forum non conveniens litigation did Plaintiffs argue
to the district court or, for that matter, to this Court that a Guatemalan forum was
unavailable. At no time did they mention Decree 34-97, though they had cited that
very statute previously to a Florida state court. Instead, Plaintiffs dwelled on the
alleged inadequacy of Guatemalan courts. They cited “continued violence against
trade union leaders,” and insisted that the country’s courts were “ill-equipped to
adjudicate a case challenging the use of clandestine security forces to torture trade
unionists in a country where trade unionists are routinely murdered, and judges
turn a blind eye to such violence.” Plaintiffs / Appellants’ Opening Br. at 31,
Aldana II, 578 F.3d 1283 (No. 07-15471). But Plaintiffs made no mention of
availability. See Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001)
(“Availability and adequacy warrant separate consideration.”). With Plaintiffs
expressing no concerns about the possible unavailability of a Guatemalan judicial
forum, the district court did not condition dismissal on a Guatemalan court
accepting jurisdiction.
Of course, not every failure to argue unavailability would necessarily
foreclose Rule 60(b)(6) relief when a Plaintiff is denied jurisdiction abroad. Thus,
reinstatement might be proper when unavailability is unforeseeable, such as when
a foreign forum adopts a new rule that prevents it from hearing the case. Cf. Bank
of Credit & Commerce Int’l (Overseas) Ltd. v. State Bank of Pak., 273 F.3d 241,
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246-47 (2d Cir. 2001) (remanding for reconsideration of forum non conveniens
decision after repeal and replacement of foreign statute). But Galbert specifically
faulted the plaintiffs for not “offer[ing] any explanation for their failure to argue
unavailability,” observing that they may have omitted the argument for strategic
reasons. 715 F.3d at 1295 (emphasis added). Here, too, Plaintiffs offer no good
reason for failing to contest availability in the first instance in federal district court.
In their briefs, Plaintiffs explained only that they did not bear the burden of
disproving forum non conveniens before the district court. At oral argument, for
the first time, Plaintiffs claimed that collateral estoppel from the Florida state court
decision prevented them from litigating the issue of availability before the district
court. But the procedural posture does not justify Plaintiffs’ silence as to
availability when, arguing the same motion, they strenuously challenged the
adequacy of the Guatemalan courts -- both go to the merits of forum non
conveniens. And Plaintiffs do not explain why they failed to ask the district court
to condition dismissal on availability of a Guatemalan forum in light of Decree 34-
97.
At the time, Plaintiffs had a strategic reason not to contest availability.
Article 3 of Decree 34-97 specifies that if “a foreign judge is informed of the
scope” of the blocking law “and he declines to hear the case . . . Guatemalan courts
may reassume jurisdiction as an exceptional measure and to avoid depriving
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Guatemalan nationals and residents of due process.” Essentially, the Article 3
escape clause allows foreign courts to call the country’s bluff: if judges know
about the blocking law and dismiss for forum non conveniens anyway, Guatemalan
courts will not leave claimants in the cold. Due to Article 3, arguing Decree 34-97
to the district court would have made Guatemalan availability more likely.
Plaintiffs chose to remain silent. This type of gamesmanship is just the behavior
we refused to reward in Galbert, when the plaintiffs “could have raised the same
argument initially in their opposition to forum non conveniens dismissal in the
Southern District of Florida. Because they failed to do so, possibly for strategy
reasons, we conclude that their attempt to raise the argument anew in their motion
to vacate must also fail.” Id. at 1295. Plaintiffs are not entitled to Rule 60(b)(6)
extraordinary relief because they did not challenge the unavailability of
Guatemalan jurisdiction before and they offer no credible justification for that
oversight now.
Moreover, the district court did not abuse its discretion in denying Rule
60(b)(6) relief when Plaintiffs did not pursue a reasonable appeal in the
Guatemalan courts. Rule 60(b)(6) does not reward a party that seeks to avoid the
consequences of its own “free, calculated, deliberate choices.” Ackermann v.
United States, 340 U.S. 193, 198 (1950); cf. id. at 197 (denying relief under Rule
60(b) because “[w]e cannot agree that petitioner has alleged circumstances
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showing that his failure to appeal [a federal court order] was justifiable”). Under
Rule 60(b)(6), “[a] party remains under a duty to take legal steps to protect his own
interests.” 11 Charles Alan Wright et al., Federal Practice and Procedure § 2864
(3d ed. 2013) (citing Ackermann, 340 U.S. at 197). The Rule 60(b)(6) emergency
valve does not offer its extraordinary relief to a party that ties itself in knots in
order to plead confinement.
In a recent and closely analogous Second Circuit case, former labor leaders
sued Coca-Cola alleging violence and intimidation at Guatemalan bottling and
processing plants. See Palacios v. Coca-Cola Co., 499 F. App’x 54, 55 (2d Cir.
2012) (summary order). The federal district court dismissed for forum non
conveniens but, because the plaintiffs informed the court of Decree 34-97 and
argued availability, the court attached a condition permitting reconsideration if the
“case is dismissed in Guatemala under the Defense Law, and this result is affirmed
by the highest court of Guatemala.” Palacios v. Coca-Cola Co., 757 F. Supp. 2d
347, 363 (S.D.N.Y. 2010). After the plaintiffs filed their claims in a Guatemalan
trial court and that court dismissed for want of jurisdiction, plaintiffs took no
appeal. Palacios, 499 F. App’x at 55. In a summary order, the Second Circuit
rejected Rule 60 reinstatement because the labor activists “declined to appeal the
dismissal of their petition by the Guatemalan trial court, despite having a strong,
good-faith basis for such an appeal.” Id. at 56. The procedural facts in this case
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closely resemble Palacios, except here Plaintiffs did not reference Decree 34-97,
and thus did not ensure dismissal was conditioned on availability. Absence of such
a condition only makes Rule 60(b)(6) reinstatement more difficult here than in
Palacios. Rule 60(b)(6) does not more readily tolerate a plaintiff’s failure to
pursue jurisdiction in a foreign forum when that plaintiff fails to question
availability upon dismissal.
We find further support from a related doctrine elaborated by other circuits:
a party cannot avoid an initial forum non conveniens dismissal based on “the
unavailability of an alternative forum when the unavailability is a product of its
own purposeful conduct.” Compania Naviera Joanna SA v. Koninklijke Boskalis
Westminster NV, 569 F.3d 189, 203 (4th Cir. 2009) (quoting In re Compania
Naviera Joanna S.A., 531 F. Supp. 2d 680, 686 (D.S.C. 2007)); see MBI Grp., Inc.
v. Credit Foncier du Cameroun, 616 F.3d 568, 572 (D.C. Cir. 2010) (“A
conditional forum non conveniens dismissal protects a plaintiff against the
possibility that the foreign forum will not hear his case. It does not give the
plaintiff license to deliberately prevent his suit in the foreign court from going
forward in order to render an alternative forum defective.”); In re
Bridgestone/Firestone, Inc., 420 F.3d 702, 707 (7th Cir. 2005); Veba-Chemie A.G.
v. M/V Getafix, 711 F.2d 1243, 1248 n.10 (5th Cir. 1983).
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Though Plaintiffs could have sought a nulidad, they abandoned their
appellate rights in Guatemala. Plaintiffs acknowledge that Guatemalan law allows
nulidads and other appellate challenges. They counter only that they lacked a basis
for appeal and thus were barred by ethical principles. But Plaintiffs had at least
one good faith ground for appeal. Decree 34-97 makes an exception for claims
filed “in a spontaneous and totally free manner.” Plaintiffs’ expert admitted that
Plaintiffs’ Guatemalan action was “filed in a free and spontaneous manner.”
Therefore, by submitting the declaration, Plaintiffs all but acknowledged that they
had a good faith basis for appeal. A party need not always pursue appellate
options to the hilt to receive Rule 60(b)(6) relief. But the failure to take any
reasonable appellate steps can justify a district court’s conclusion that exceptional
circumstances are wanting.
In short, for two independent reasons, the district court did not abuse its
considerable discretion in denying Rule 60(b)(6) relief: Plaintiffs failed to argue
availability when the case was originally dismissed for forum non conveniens; and
they failed to pursue reasonable appellate options.3
C.
3
Because we affirm the district court’s determination that Plaintiffs were not substantively
entitled to Rule 60(b) relief, we have no occasion to consider whether to affirm on an alternate
ground of Rule 60(c) untimeliness.
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Nor does Rule 60(d)(1) entitle Plaintiffs to relief. That rule preserves a
court’s historical equity power to “entertain an independent action to relieve a
party from a judgment, order, or proceeding.” Fed. R. Civ. P. 60(d)(1). The
Supreme Court has made clear that such “[i]ndependent actions must, if Rule 60(b)
is to be interpreted as a coherent whole, be reserved for those cases of ‘injustices
which, in certain instances, are deemed sufficiently gross to demand a departure’
from rigid adherence to the doctrine of res judicata.” United States v. Beggerly,
524 U.S. 38, 46 (1998) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238, 244 (1944)). Rule 60(d)(1) relief is only available if relief is
required to “prevent a grave miscarriage of justice.” Id. at 47. We have identified
the following elements required for Rule 60(d)(1) relief:
(1) a judgment which ought not, in equity and good conscience, to be
enforced; (2) a good defense to the alleged cause of action on which
the judgment is founded; (3) fraud, accident, or mistake which
prevented the defendant in the judgment from obtaining the benefit of
his defense; (4) the absence of fault or negligence on the part of
defendant; and (5) the absence of any remedy at law.
Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (quoting
Bankers Mortg. Co., 423 F.2d at 79).
Plaintiffs cannot come close to establishing the requisite elements of an
independent action. As we’ve explained, during the original forum non conveniens
proceedings, Plaintiffs at no point contested that Guatemalan courts were available
to hear their claims. And after dismissal in federal court, Plaintiffs failed to
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Case: 12-16143 Date Filed: 02/06/2014 Page: 21 of 21
challenge the ex parte denial of jurisdiction in Guatemala. Plaintiffs show no
“grave miscarriage of justice.” Beggerly, 524 U.S. at 47. On balance, equitable
considerations weigh against permitting Rule 60(d)(1) relief. At all events, we can
discern no abuse of discretion in the trial court’s refusal to reopen the case.
AFFIRMED.
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