Tag Archives: Colombia

Case of the Day: Alvarado-Fernandez v. Mazoff

The case of the day is Alvarado-Fernandez v. Mazoff (Fla. Dist. Ct. App. 2014). Matthew Mazoff sued Paola Alvarado-Fernandez, a Colombian national and resident, for injuries allegedly caused by an automobile accident. Alvarado-Fernandez moved to dismiss for insufficient service of process. The trial court denied the motion, and Alvarado-Fernandez appealed. Colombia is a party to the Inter-American Convention (it acceded to the Hague Service Convention in 2013, after the time relevant to the case).
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Case of the Day: Giraldo v. Drummond Co.

The case of the day is Giraldo v. Drummond Co. (N.D. Ala. 2013). The plaintiffs were the wives, parents, or children of people who had been murdered by the AUC paramilitary group in Colombia. They sued Drummond, which, it claimed, had made an agreement with the AUC to provide security for the area around one of Drummond’s mines and its railway lines. The claim was brought under the Alien Tort Statute, the Torture Victim Protection Act, and Colombian wrongful death law. As you can probably guess, the Supreme Court’s Kiobel decision cramped the plaintiffs’ style. In an attempt to avoid summary judgment on Kiobel grounds, the plaintiffs offered testimony from the deposition of Jaime Blanco Maya, a supposed intermediary between the AUC and Drummond. 1 Blanco, according to the judge, refused to answer questions on cross-examination, instead saying: “What I don’t—see, what I said is already there. It’s clear it was made in that statement and if I already made it in that statement I don’t see it needs to be repeated.” According to the judge, this answer or non-answer constituted a denial of Drummond’s right of cross-examination. Really? Did Drummond move to compel? I don’t buy this reasoning at all. I see no reason why the plaintiffs should not be allowed to use the testimony. Let Drummond file an affidavit under FRCP 56(d) if it thinks that it has been prevented from adducing the evidence it needs to oppose a motion for summary judgment.

The plaintiffs also offered a declaration of Jose Gelvez Albarracin. The judge held it could not be considered on summary judgment because Gelvez had also given testimony at a deposition, and the substance of what he had to say in the declaration was not part of his testimony at the deposition. Again: really? Where does this supposed rule come from? Not from FRCP 56. This certainly doesn’t seem to be the rule of Macuba v. Deboer, 193 F.3d 1316 (11th Cir. 1999), the case Drummond cites for the proposition. There is no rule that forbids a party to offer a declaration from a witness who has also given testimony at a deposition, as far as I know.

In short, these aspects of the decision seem just flat-out wrong. Unfortunately, the judge held in the alternative that the case would be dismissed under Kiobel even if he had considered the plaintiffs’ evidence. So it seems unlikely that these mistakes will receive significant appellate attention.

Notes:

  1. Blanco was deposed in Colombia, but apparently in a US-style proceeding where both sides’ lawyers had the opportunity to examine and cross-examine.

Case of the Day: Sea Search Armada v. Colombia

A Spanish GalleonAargh! We return today to Sea Search Armada v. Republic of Columbia, a case I first covered in October 2011. Here was my description of the facts:

According to the complaint, Sea Search Armada had an agreement with the government of Colombia for salvage of the treasure of the San Jose,a Spanish ship carrying $4 to $17 billion of coins and bullion. In 1708, when Britain really ruled the waves, the British navy sank the San Jose, and the ship came to rest off the coast of what is now Colombia. In 1980, the Colombian government authorized the Glocca Mora Co. to explore the continental shelf for shipwrecks, and the next year GMC discovered the wreck of the San Jose. GMC and Colombia agreed that GMC would be entitled to receive 35% of the treasure recovered. GMC assigned its rights to Sea Search Armada, and in 1984, Colombia agreed that SSA would be entitled to GMC’s 35% share, but it refused to enter a written contract with SSA and refused SSA permission to conduct full salvage operations at the shipwreck site. The Colombia parliament then passed a law giving the state the right to all of the treasure, leaving SSA with a 5% finder’s fee, which was to be taxed at 45% to boot!

SSA sued Colombia in its own courts in 1989. The Colombia Constitutional Court struck down the law at issue as unconstitutional in 1994. Later, the Circuit Court of Baranquilla held that SSA and Colombia each owned 50% of the San Jose treasure, although the source of the 50% figure is mysterious given that the original agreement called for a 65/35 split.

As we saw in the earlier post, SSA sued Colombia for recognition and enforcement of the Colombian judgment in the District of Columbia in 2010. SSA also sought damages in the amount of $17 billion. The judge dismissed the claim for recognition and enforcement on the grounds that the Colombian judgment was not one for damages but was merely declaratory and thus was not entitled to recognition UFMJRA, 1 which as its name suggests deals only with money judgments. 2

The DC Circuit has now summarily affirmed, just two weeks after oral argument. It adopted the district court’s reasoning in full.

The statute of limitations analysis seems correct. The courts are also correct to conclude that there is no claim here under the UFMJRA, but I still do not understand why there might not be an action for recognition of the Colombian judgment at common law rather than under the statute. Neither the UFMJRA nor the UFCMJRA precludes recognition of judgments not within the scope of the statute. See, e.g., DC Code § 15-371 (” This subchapter does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this subchapter”). But unfortunately, SSA’s brief does not really make this point, or does not make it clearly, 3 and so it is perhaps not surprising that the court missed it.

The case is not over: SSA has filed a petition against Colombia with the Inter-American Commission on Human Rights, alleging violations of Articles 21 and 25 of the Inter-American Convention on Human Rights.

Photo credit: Yellow Cat

Notes:

  1. In 2011, the District of Columbia adopted the UFCMJRA.
  2. The judge also dismissed the common law claims for conversion and breach of contract on statute of limitations grounds—a point I didn’t cover in my prior post.
  3. The brief seems to argue that the judgment is a money judgment, but then it says: “In any case the principle of comity requires that the District Court enforce the Colombian decision.” Is this an argument that the judgment should be recognized even if it is not within the scope of the statute? It’s hard to say—the very next sentence is: ” The Uniform Enforcement of Money Judgments Act is a codification of common laws of comity.” As far as I can tell, SSA did not cite the savings provision of the Act.