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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
U.S.C.A. CASE NOS. 16-17623; 17-12163
INVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A.
Appellant,
vs.
DEL MONTE INTERNATIONAL GMBH
Appellee.
Appeal from the United States District Court
for the Southern District of Florida
Case No. 1:16-cv-24275-FAM
RESPONSE BRIEF OF APPELLEE DEL
MONTE INTERNATIONAL GMBH
STACK FERNANDEZ & HARRIS, P.A.
Brian J. Stack, Esq.
Lazaro Fernandez, Jr., Esq.
Robert Harris, Esq.
Denise B. Crockett, Esq.
1001 Brickell Bay Drive, Suite 2650
Miami, Florida 33131
Telephone: 305-371-0001
Facsimile: 305-371-0002
Attorneys for Appellee
Case: 17-12163 Date Filed: 11/30/2017 Page: 1 of 68
i
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Rule 26.1-1 of the Eleventh Circuit Rules, Appellee, Del Monte
International GmbH, sets forth the trial judge, attorneys, persons, associations of
persons, firms, partnerships, or corporations that may have an interest in the
outcome of this appeal and the case below, including subsidiaries, conglomerates,
affiliates and parent corporations, including publicly held corporations that own
10% or more of any party’s stock and other identifiable legal entities related to a
party:
1. Congelas Del Monte S.A.
2. Corporacion Bandeco C.R., S.A.
3. Corporacion de Desarrollo Agricola Del Monte, S.A.
4. Crockett, Denise B.
5. Del Monte Fresh Produce Company
6. Del Monte Fresh Produce International Inc.
7. Del Monte Fresh Produce N.A., Inc.
8. Del Monte International, GmbH
9. Espana, Alejandro Ogarrio Ramirez
10. Fernandez, Jr., Lazaro
11. Fresh Del Monte Produce Inc., a publicly traded company on the New
York Stock Exchange under ticker symbol “FDP.”
12. Harris, Robert
13. Hogan Lovells US LLP
Case: 17-12163 Date Filed: 11/30/2017 Page: 2 of 68
ii
14. International Chamber of Commerce, International Court of Arbitration
15. Inversiones y Procesadora Tropical, S.A. (INPROTSA)
16. Lindsay, Alvin F.
17. Lipschultz, Zachary A.
18. Lorenzo, Richard C.
19. Moreno, Honorable Federico A.
20. Naon, Horacio Grigera
21. Ocariz, Humberto
22. Robinson, Dwayne A.
23. Stack, Brian J.
24. Stack Fernandez & Harris, P.A. (f/k/a Stack Fernandez Anderson & Harris,
P.A.)
CORPORATE DISCLOSURE STATEMENT
Appellee, Del Monte International GmbH, hereby discloses that it is an
indirect subsidiary of, and its ultimate parent corporation is, Fresh Del Monte
Produce Inc., a publicly traded company on the New York Stock Exchange under
ticker symbol “FDP.”
Case: 17-12163 Date Filed: 11/30/2017 Page: 3 of 68
iii
STATEMENT REGARDING ORAL ARGUMENT
Appellee respectfully suggests that oral argument is unnecessary in this case.
As this Court has made clear, “arbitration losers who resort to the courts continue
to lose in all but the most unusual circumstances.” Wiregrass Metal Trades
Council AFL-CIO v. Shaw Environmental & Infrastructure, Inc., 837 F.3d 1083,
1085 (11th Cir. 2016). Such circumstances are clearly not present here.
Appellant’s arguments are belied by the law, including binding precedent from this
Court, and were properly rejected by the District Court based on the factual record
and a substantial body of well-established case law which firmly supports
Appellee’s position. The parties have fully briefed the issues, and additional
argument on Appellant’s frivolous contentions is unnecessary and a waste of the
time and resources of this Court and the litigants.
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iv
TABLE OF CONTENTS
Page(s)
TABLE OF CITATIONS
vii
JURISDICTIONAL STATEMENT
1
REFERENCES TO THE RECORD
1
INTRODUCTION
1
STATEMENT OF THE ISSUES
2
STATEMENT OF THE CASE
3
I. Statement of the Facts and Course of Proceedings
3
A. The Exclusive Pineapple Sales Agreement and Its Post-
Termination Restrictive Covenants
3
B. The ICC Arbitration Proceeding
5
C. The Tribunal’s Final Award in Favor of Del Monte
7
1. The Tribunal Properly Concluded that the Agreement’s
Post-Termination Restrictive Covenants Were
Enforceable
8
2. Del Monte Did Not Fraudulently Induce INPROTSA
into Entering into the Agreement
9
3. The Tribunal’s Damage Award Was Proper
10
D. INPROTSA’s Petition to Vacate the Final Award and Del
Monte Cross-Petition to Confirm the Final Award
11
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v
TABLE OF CONTENTS
(continued)
Page(s)
II. Standard of Review
13
SUMMARY OF ARGUMENT
14
ARGUMENT
15
I. The District Court Had Subject Matter Jurisdiction and
Removal Jurisdiction Over this Action Under the New York
Convention
15
A. This Court Has Held that District Courts Have Subject
Matter Jurisdiction Over Vacatur Proceedings Under the
New York Convention
15
B. Original Subject Matter Jurisdiction Pursuant to 9 U.S.C.
§ 203 Is Not Limited to Actions to Compel Arbitration and
to Confirm Arbitral Awards
20
C. Del Monte’s Cross-Petition to Confirm Final Award Was
Sufficient to Confer Original Subject Matter Jurisdiction
23
D. INPROTSA Concedes that the District Court Had Removal
Jurisdiction
24
II. INPROTSA’s Petition to Vacate Did Not Raise Any New York
Convention Grounds and Was Thus Properly Dismissed
25
A. INPROTSA Improperly Premised Its Petition to Vacate on
the Florida Domestic Arbitration Code
26
B. This Court Has Established that the Exclusive Grounds to
Vacate an Arbitral Award Governed by the New York
Convention are Set Forth in Article V of the Convention
27
1. Industrial Risk and Costa are Dispositive of this Appeal 27
Case: 17-12163 Date Filed: 11/30/2017 Page: 6 of 68
vi
TABLE OF CONTENTS
(continued)
Page(s)
2. Industrial Risk and Costa Were Properly Decided
29
3. This Court Is Bound by Its Prior Holdings in Industrial
Risk and Costa
32
C. INPROTSA Did Not Demonstrate Any Basis for Vacatur
of the Final Award Under the New York Convention
35
III. INPROTSA’s Petition to Vacate Did Not Raise Any Grounds
for Vacatur Under Chapter 1 of the FAA
38
IV. The Tribunal Did Not Make Legal or Factual Errors
41
V. Confirmation of the Final Award Was Proper
42
VI. Remand of this Case is Unnecessary and Unwarranted
48
CONCLUSION
49
CERTIFICATE OF COMPLIANCE
51
CERTIFICATE OF SERVICE 52
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vii
TABLE OF CITATIONS
Cases Page(s)
Alterman v. Marin-Busutil,
716 So. 2d 849 (Fla. 4th DCA 1998)……………………………..
41
Americatel El Salvador, S.A. de C.V. v. Compania de
Telecomunicaciones de El Salvador, S.A. de C.V.,
2007 WL 2781057 (S.D. Fla. Sept. 19, 2007)……………………
44
Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft
MBH & CIE KG,
783 F.3d 1010 (5th Cir. 2015)……………………………………
38
B.L. Harbert Int’l, LLC v. Hercules Steel Co.,
441 F.3d 905 (11th Cir. 2006)……………………………………
2
Bamberger Rosenheim Ltd. v. OA Dev., Inc.,
862 F.3d 1284 (11th Cir. 2017)…………………………………..
34, 35, 39, 40
Battles v. American Van Lines, Inc.,
2016 WL 1258597 (S.D. Fla. Mar. 31, 2016)……………………
40
Beiser v. Weyler,
284 F. 3d 665 (5th Cir. 2002)…………………………………….
24
Belz v. Morgan Stanley Smith Barney, LLC,
2014 WL 897048 (M.D. Fla. Mar. 6, 2014)……………………..
44
BG Gp PLC v. Rep. of Argentina,
134 S. Ct. 1198 (2014)……………………………………………
20, 33, 34, 35
BG Gp PLC v. Rep. of Argentina,
Brief for Respondent (S. Ct.),
2013 WL 5819691 (Oct. 25, 2013)……………………………….
33
* Citations marked with an asterisk are those upon which Appellee
principally relies.
Case: 17-12163 Date Filed: 11/30/2017 Page: 8 of 68
viii
Cases Page(s)
BG Gp PLC v. Rep. of Argentina,
Brief of Petitioner (S. Ct.),
2013 WL 4587966 (Aug. 26, 2013)……………………………..
33
Big Top Koolers, Inc. v. Circus-Man Snacks, Inc.,
528 F.3d 839 (11th Cir. 2008)……………………………………
13, 49
Booth v. Hume Pub., Inc.,
902 F.2d 925 (11th Cir. 1990)……………………………………
36
Carden v. Arkoma Assocs.,
494 U.S. 185 (1990)……………………………………………...
49
Citigroup Global Markets, Inc. v. Bock,
2013 WL 210253 (S.D. Fla. Jan. 17, 2013)………………………
39
*Costa v. Celebrity Cruises, Inc.,
470 F. App’x 726 (11th Cir. 2012)……………………………..
passim
*Costa v. Celebrity Cruises, Inc.,
768 F. Supp. 2d 1237, 1239 (S.D. Fla. 2011)…………………..
passim
*Cullen v. Paine, Webber, Jackson & Curtis, Inc.,
863 F.2d 851 (11th Cir. 1989)…………………………………....
15, 45
Cvoro v. Carnival Corp.,
2017 WL 216020 (S.D. Fla. Jan. 17, 2017)……………………
17
Czarina, L.L.C. v. W.F. Poe Syndicate,
358 F.3d 1286 (11th Cir. 2004)………………………………….
19, 21
Davis v. Prudential Secs., Inc.,
59 F.3d 1186 (11th Cir. 1995)……………………………………
39
Democratic Rep. of the Congo v. Air Capital Gp., LLC,
2013 WL 3223686 (S.D. Fla. Jun. 24, 2013)……………………..
46
Case: 17-12163 Date Filed: 11/30/2017 Page: 9 of 68
ix
Cases Page(s)
Employers Ins. of Wausau v. Banco Seguros Del Estado,
199 F.3d 937 (7th Cir. 1999)……………………………………..
30
Escobar v. Celebration Cruise Operator,
805 F.3d 1279 (11th Cir. 2015)…………………………………..
21, 22
Escobar v. Shearson Lehman Hutton, Inc.,
762 F. Supp. 461 (D.P.R. 1991)………………………………….
44
Evans v. Ga. Regional Hosp.,
850 F.3d 1248 (11th Cir. 2017)…………………………………..
32
Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A.,
613 F. Supp. 2d 1362 (S.D. Fla. 2009)…………………………...
38
Fowler v. Ritz-Carlton Hotel Co., LLC,
579 F. App’x 693 (11th Cir. 2014)……………………………….
40
Francisco v. Stolt Achievement MT,
293 F.3d 270 (5th Cir. 2002)……………………………………..
25
Gerson v. UBS Fin. Serv., Inc.,
2012 WL 3962374 (S.D. Fla Sep. 10, 2012)……………………..
36
*Gonsalvez v. Celebrity Cruises, Inc.,
935 F. Supp. 2d 1325 (S.D. Fla. 2013)…………………………..
17, 43
*Gonsalvez v. Celebrity Cruises, Inc.,
750 F.3d 1195 (11th Cir. 2013)………………………………….
17
Hagans v. Lavine,
415 U.S. 528 (1974)……………………………………………...
18
Holzer v. Mondadori,
2013 WL 1104269 (S.D.N.Y. Mar. 14, 2013)……………………
18
Ikon Global Markets, Inc. v. Appert,
2011 WL 9687842 (W.D. Wash. Jul. 28, 2011)………………….
44
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x
Cases Page(s)
In re Holsey,
589 F. App’x 462 (11th Cir. 2014)……………………………….
34
*Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH,
141 F.3d 1434 (11th Cir. 1998)………………………………….
passim
*Infuturia Global Ltd. v. Sequus Pharm., Inc.,
631 F.3d 1133 (9th Cir. 2011)………………………………….
23, 24, 25
Ingaseosas Int’l Co. v. Aconcagua Investing Ltd.,
2011 WL 500042 (S.D. Fla. Feb. 10, 2011)……………………...
19, 20
Ingaseosas Int’l Co. v. Aconcagua Investing Ltd.,
479 F. App’x 955 (11th Cir. 2012)……………………………….
19, 20
Jaffke v. Dunham,
352 U.S. 280 (1957)……………………………………………...
13
Johnson v. Directory Assistants Inc.,
797 F.3d 1294 (11th Cir. 2015)…………………………………..
39
Johnson Controls, Inc. v. Edman Controls, Inc.,
712 F.3d 1021 (7th Cir. 2013)……………………………………
30
Jones v. Sec’y, Dep’t of Corrections,
607 F.3d 1346 (11th Cir. 2010)…………………………………..
37
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable
Trust,
863 F. Supp. 2d 351 (S.D.N.Y. 2012)……………………………
18, 24
Lindo v. NCL (Bahamas), Ltd.,
652 F.3d 1257 (11th Cir. 2011)…………………………………..
21, 22
Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249 (11th Cir. 2001)…………………………………..
49
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xi
Cases Page(s)
Main Drug, Inc v. Aetna U.S. Healthcare, Inc.,
475 F.3d 1228 (11th Cir. 2007)…………………………………..
18
Marr v. Webb,
930 So. 2d 734 (Fla. 3d DCA 2006)……………………………...
41
Matter of Arbitration between InterCarbon Bermuda Ltd. and
Caltex Trading & Transp. Corp.,
146 F.R.D. 64 (S.D.N.Y. 1993)…………………………………..
44
Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co.,
761 So. 2d 306, 313 (Fla. 2000)………………………………….
46
McDaniel v. Bowen,
800 F.2d 1026 (11th Cir. 1986)…………………………………..
49
Morales-Garcia v. Holder,
576 F.3d 1058 (9th Cir. 2009)……………………………………
35
Morosani v. First Nat’l Bank of Atlanta,
703 F.2d 1220 (11th Cir. 1983)…………………………………..
49
Oilmar Co. Ltd. v. Energy Transport Ltd.,
2014 WL 8390659 (D. Conn. Oct. 6, 2014)……………………...
18
Oxford Health Plans LLC v. Sutter,
133 S. Ct. 2064 (2013)……………………………………………
39
Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89 (1984)……………………………………………….
18
Pignato v. Great W. Bank,
664 So. 2d 1011 (Fla. 4th DCA 1995)……………………………
29
PMA Capital Ins. Co. v. Platinum Underwriters Bermuda, Ltd.,
659 F. Supp. 2d 631 (E.D. Pa. 2009)……………………………..
18, 40
Case: 17-12163 Date Filed: 11/30/2017 Page: 12 of 68
xii
Cases Page(s)
Pochat v. Lynch,
2013 WL 4496548 (S.D. Fla. Aug. 22, 2013)……………………
40
Possehl, Inc. v. Shanghai Hia Xing Shipping,
2001 WL 214234 (S.D.N.Y. Mar. 1, 2001)………………………
44
Powerex Corp. v. Reliant Energy Servs., Inc.,
551 U.S. 224 (2007)……………………………………………...
25
Rep. of Argentina v. BG Gp. PLC,
715 F. Supp. 2d 108 (D.D.C. 2010)………………………………
20
Reynolds v. Chapman,
253 F.3d 1337 (11th Cir. 2001)…………………………………..
48
RZS Holdings AVV v. PDVSA Petroleos S.A.,
598 F. Supp. 2d 762 (E.D. Va. 2009)……………………………..
30
Saturn Telecommc’ns Servs., Inc. v. Covad Commc’ns. Co.
560 F. Supp. 2d 1278 (S.D. Fla. 2008)…………………………...
26
Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire &
Marine Ins. Co.,
668 F.3d 60 (2d Cir. 2012)……………………………………….
17, 18
Scherk v. Alberto-Culver Co.,
417 U.S. 506 (1974)……………………………………………...
31
Smith v. GTE Corp.,
236 F.3d 1292 (11th Cir. 2001)…………………………………..
32
Spector v. Torenberg,
852 F. Supp. 201 (S.D.N.Y. 1994)……………………………….
18, 22
Sprint Communications Co., L.P. v. APCC Servs., Inc.,
554 U.S. 269 (2008)……………………………………………...
18
Case: 17-12163 Date Filed: 11/30/2017 Page: 13 of 68
xiii
Cases Page(s)
*Stemcor, USA Inc. v. CIA Siderurgica Do Para Cosipar,
2017 WL 3821785 (5th Cir. Sep. 1, 2017)……………………..
19, 23, 25
Subway Int’l B.V. v. Bletas,
2012 WL 1118205 (D. Conn. Apr. 3, 2012)……………………...
18
Sural (Barbados) Ltd. v. Gov’t of Rep. of Trinidad and Tobago,
2016 WL 4264061 (S.D. Fla. Aug. 12, 2016)……………………
26, 35, 38
United States v. Kaley,
579 F.3d 1246 (11th Cir. 2009)…………………………………..
34
United States v. Kirksey,
425 F. App’x 858 (11th Cir. 2011)……………………………….
48
United States v. L.A. Tucker Truck Lines,
344 U.S. 33 (1952)……………………………………………….
34
United States v. Pelle,
263 F. App’x 833 (11th Cir. 2008)……………………………….
37
United States v. Steele,
147 F.3d 1316 (11th Cir. 1998)…………………………………..
33
Vaden v. Discover Bank,
556 U.S. 49 (2009)……………………………………………….
22
Visiting Nurse Ass’n of Fl., Inc. v. Jupiter Medical Ctr., Inc.,
154 So. 3d 1115 (Fla. 2014)……………………………………...
41
Wiregrass Metal Trades Council AFL-CIO v. Shaw Environmental
& Infrastructure, Inc.,
837 F.3d 1083 (11th Cir. 2016)…………………………………..
iii, 35, 39, 41
Zurich Am. Ins. Co. v. Team Tankers A.S.,
2014 WL 2945803 (S.D.N.Y. Jun. 30, 2014)…………………….
18
Case: 17-12163 Date Filed: 11/30/2017 Page: 14 of 68
xiv
Statutes Page(s)
Fla. Stat. § 95.031(2)(a)…………………………………………….
10
Fla. Stat. Chapter 682………………………………………………
11, 14, 26
Fla. Stat. § 682.13…………………………………………………..
41
Fla. Stat. § 682.13(1)……………………………………………….
41
Fla. Stat. § 682.13(1)(b)(3)…………………………………………
26
Fla. Stat. § 682.13(1)(d)……………………………………………
26
Fla. Stat. § 682.13(1)(a)-(e)………………………………………..
42
Fla. Stat. Chapter 684………………………………………………
26
Fla. Stat. § 684.0027………………………………………………..
28
Fla. Stat. § 684.0046………………………………………………..
26
*New York Convention, Article V…………………………………
passim
New York Convention, Article V(1)……………………………….
22
New York Convention, Article V(1)(e)……………………………
22
New York Convention, Article VI…………………………………
22
9 U.S.C. § 10……………………………………………………….
35
9 U.S.C. § 10(a)…………………………………………………….
28, 41
9 U.S.C. § 10(a)(3)…………………………………………………
39, 40
9 U.S.C. § 10(a)(4)…………………………………………………
35, 39, 40
*9 U.S.C. § 12……………………………………………………...
3, 26, 44, 45
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xv
Statutes Page(s)
9 U.S.C. § 201……………………………………………………... 14
*9 U.S.C. § 202……………………………………………………. Passim
*9 U.S.C. § 203……………………………………………………. Passim
9 U.S.C. § 204……………………………………………………...
14
*9 U.S.C. § 205…………………………………………………….
Passim
9 U.S.C. § 206……………………………………………………... 14, 22, 23
*9 U.S.C. § 207……………………………………………………. 14, 22, 23, 30
*9 U.S.C. § 208……………………………………………………. 14, 32
9 U.S.C. § 302……………………………………………………... 30
28 U.S.C. § 1291…………………………………………………... 1
28 U.S.C. § 1331…………………………………………………...
1
28 U.S.C. § 1441…………………………………………………...
1, 24
28 U.S.C. § 1441(a)………………………………………………...
23
28 U.S.C. § 1447(e)………………………………………………...
25
Other Authorities
Richard W. Hulbert, The Case for a Coherent Application of
Chapter 2 of the Federal Arbitration Act,
22 Am. Rev. Int’l Arb. 45 (2011)………………………………..
30, 32
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1
JURISDICTIONAL STATEMENT
For the reasons explained more fully infra, the District Court had subject
matter jurisdiction to dismiss Appellant’s petition to vacate an international arbitral
award falling under the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (“New York Convention”) and to grant Appellee’s cross-
petition to confirm the same award pursuant to 9 U.S.C. § 203, 9 U.S.C. § 205, 28
U.S.C. § 1331, and 28 U.S.C. § 1441. This Court has jurisdiction over this appeal
of the District Court’s rulings pursuant to 28 U.S.C. § 1291, which provides for
jurisdiction over appeals from final decisions of the U.S. District Courts.
REFERENCES TO THE RECORD
Appellee shall refer to the record in the same manner as Appellant, see
INPROTSA Brief, at 1-2, but shall, where referenced documents were not included
in Appellant’s Appendix, include parallel references to Appellee’s Supplemental
Appendix as follows: DM App. (tab in appendix under which the cited document
is located).
INTRODUCTION
After more than two years of arbitration proceedings, a two-week final
evidentiary hearing, the parties’ collective expenditure of $6.7 million in legal fees
and costs, and a futile rehash of its losing arguments before the District Court,
Appellant is now asking this Court to unwind everything as if none of it occurred,
Case: 17-12163 Date Filed: 11/30/2017 Page: 17 of 68
2
to adopt its skewed belief that it prevailed on its fraud counterclaims and defenses
in the arbitration, and to substitute the Court’s judgment for the Tribunal’s.
Adopting a “never-say-die attitude,” Appellant has raised abjectly unmeritorious
grounds in an effort to “drag[] the dispute through the court system without an
objectively reasonable belief it will prevail.” B.L. Harbert Int’l, LLC v. Hercules
Steel Co., 441 F.3d 905, 913 (11th Cir. 2006), abrogated on other grounds, Frazier
v. CitiFinancial Corp., 604 F.3d 1313 (11th Cir. 2010).
As the District Court held, nothing presented by Appellant below was
remotely sufficient to overcome the legal presumption in favor of confirmation of
the subject arbitral award. Therefore, the Court should affirm the District Court in
all respects and award fees and costs to Appellee pursuant to its Rule 38 motion
filed contemporaneously herewith.
STATEMENT OF THE ISSUES
1. Whether the District Court properly exercised subject matter
jurisdiction over Appellant’s Petition to Vacate Final Arbitral Award (“Petition to
Vacate”), ECF 1:10-39 (I App. 1[A]), and Appellee’s Cross-Petition to Confirm
Final Arbitral Award (“Cross-Petition to Confirm”), ECF 6 (II App. 6), in
conformity with this Court’s previous holdings in Industrial Risk Insurers v.
M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434 (11th Cir. 1998), and Costa v.
Celebrity Cruises, Inc., 470 F. App’x 726 (11th Cir. 2012).
Case: 17-12163 Date Filed: 11/30/2017 Page: 18 of 68
3
2. Whether the District Court properly dismissed Appellant’s Petition to
Vacate.
3. Whether the District Court properly determined that Appellant failed
to serve its Petition to Vacate within the three-month limitations period set forth in
9 U.S.C. § 12.
4. Whether the District Court properly confirmed the Final Award.
STATEMENT OF THE CASE
I. Statement of the Facts and Course of Proceedings
A. The Exclusive Pineapple Sales Agreement and Its
Post-Termination Restrictive Covenants
The underlying arbitral dispute arose from an exclusive Pineapple Sales
Agreement (the “Agreement”) entered into between the parties in May 2001. ECF
6:3 (II. App. 6); ECF 1:41-78 (I App. 1[B]). Pursuant to the Agreement, Appellee,
Del Monte International GmbH (“Del Monte”), a Swiss corporation, supplied at no
cost to Appellant, Inversiones y Procesadora Tropical INPROTSA, S.A.
(“INPROTSA”), a Costa Rican pineapple grower, approximately 61 million scarce
and expensive “MD-2” variety pineapple seeds (worth in excess of $25 million)
and extensive technical expertise to transition INPROTSA’s plantation from an
obsolete pineapple variety called “Champaka” to an extra sweet variety developed
by Del Monte called the “MD-2” that is sold in supermarkets throughout the world
today. ECF 6:3 (II App. 6); ECF 1:95, 107-109, at ¶¶ II.3, V.42-47 (I App. 1[C]).
Case: 17-12163 Date Filed: 11/30/2017 Page: 19 of 68
4
In exchange for Del Monte’s provision of MD-2 pineapple seeds and
technical expertise, Del Monte demanded -- and INPROTSA agreed -- that during
the Agreement, INPROTSA would sell its MD-2 pineapples exclusively to Del
Monte, and if the Agreement were ever terminated for any reason, INPROTSA (a)
would “return” to Del Monte or “destroy” all remaining MD-2 pineapples and
related MD-2 plant stock derived from the 61 million pineapple seeds and (b)
would not sell to third parties any MD-2 pineapples derived from such seeds. ECF
6:3 (II App. 6); ECF 1:105, 107, 111, 113, 116-118, 119-120, at ¶¶ V.32, 41-42,
51, 56, 62-65, 67-69, 91-92 (I App. 1[C]).
The Agreement rescued INPROTSA from insolvency and proved to be an
economic windfall to it. During the term of the Agreement, INPROTSA
quadrupled the size of its plantation, increased its annual sales from $2 million to
more than $20 million, and was paid approximately $233 million by Del Monte
over the life of the Agreement. ECF 6:3 (II App. 6); ECF 6-2 (DM App. 6-2), ECF
6-3 (DM App. 6-3).
After a successful 12-year relationship, the Agreement terminated in 2013.
ECF 1:95, 97, at ¶¶ II.2, 11 (I App. 1 [C]). Rather than comply with its contractual
obligations, INPROTSA breached the post-termination covenants by refusing to
return or destroy the MD-2 pineapples and related plant stock on its plantation and
by selling MD-2 pineapples to Del Monte’s competitors. ECF 1:97, at ¶ II.11 (I
Case: 17-12163 Date Filed: 11/30/2017 Page: 20 of 68
5
App. 1[C]). Del Monte’s demand that INPROTSA comply with the Agreement
was rejected. ECF 6:3-4 (II App. 6).
B. The ICC Arbitration Proceeding
In March 2014, Del Monte commenced an arbitration proceeding before the
International Court of Arbitration of the International Chamber of Commerce (the
“ICC”), Case No. 20097/RD, in accordance with the Agreement’s arbitration
provision, which mandated final and binding arbitration before the ICC in Miami,
Florida. ECF 6:3 (II App. 6); ECF 1:72-73, at Clause Nineteen (I App. 1[B]); ECF
1:90-91, at ¶ I.a, b. (I App. 1[C]). Del Monte asserted claims against INPROTSA
for money damages, specific performance, and permanent injunctive relief.
INPROTSA asserted various fraud-based counterclaims and defenses. ECF 1:95-
102, at ¶¶ II.2-28 (I App. 1[C]). The Agreement was governed by Florida law.
ECF 1:77, at Clause Twenty-Eight (I App. 1[B]).
Pursuant to the procedural orders of the three-member arbitral Tribunal (the
“Tribunal”), discovery was limited to requests for documents. The parties were
required to attach sworn witness statements to memoranda of law called “claim
memorials” setting forth the factual and legal support for or against a party’s
claims, defenses and/or counterclaims. ECF 20-1:3-6, at ¶¶ 4-23 and ECF
20-1:9-11 (DM App. 20-1). The Final Hearing on the merits was limited to cross-
examination and re-direct examination of the disclosed witnesses, not for
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submitting additional evidence. Id. The Tribunal “ha[d] [the] discretion to decide
on the relevance, admissibility, evaluation and weight of the evidence,” and in
exercising its discretion, “could deny any weight to [] evidence.” ECF 20-1:7, at,
¶ 29 (DM App. 20-1); ECF 20-2:4, at ¶ 9 (DM App. 20-3).
During the discovery period, INPROTSA objected to producing any
documents reflecting its costs and profits earned on INPROTSA’s post-termination
sales of MD-2 pineapples to third parties, instead producing only revenues
generated from its sales. ECF 1:131, at ¶ V.107 (I App. 1[C]). INPROTSA also
sandbagged Del Monte by attaching to its final claim memorial an unsworn,
unauthenticated letter of an undisclosed, third-party witness, Fernando Baeza (the
“Baeza Letter”), who opined on a disputed issue in the case. ECF 1:111-112, at
¶ V.52 (I App. 1[C]).
In November 2015, the Tribunal conducted a two-week final hearing in
Miami, Florida, at which the parties presented their disclosed witnesses for cross-
examination and re-direct examination. ECF 1:94, at ¶ I.bb (I App. 1[C]). At the
final hearing, Del Monte objected to the admission of the Baeza Letter because
Baeza was not disclosed as a witness and did not submit a sworn witness
declaration, and the Baeza Letter itself was unsworn and unauthenticated. The
Tribunal admitted the Baeza Letter into evidence over Del Monte’s objections.
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ECF 20:6-9 (DM App. 20); ECF 20-3 (DM App. 20-3).1
C. The Tribunal’s Final Award in Favor of Del Monte
On June 10, 2016, the Tribunal issued a reasoned 48-page Final Arbitral
Award (“Final Award”) in favor of Del Monte and against INPROTSA. ECF
1:90-142 (I App. 1[C]). The Final Award completely vindicated Del Monte’s
position, rejected all of INPROTSA’s counterclaims and defenses, and (a) granted
Del Monte specific performance of INPROTSA’s contractual covenant to return or
destroy 93% of the MD-2 pineapples and MD-2 plant stock growing on its
plantation,2 (b) permanently enjoined INPROTSA from selling 93% of
INPROTSA’s MD-2 pineapple production to third parties, and (c) ordered
INPROTSA to pay Del Monte damages in the amount of $26,133,000.00, pre- and
post-award interest, arbitral costs of $650,000.00, and attorney’s fees and costs of
$2,507,440.54. ECF 1:133-134, 136-137, at ¶¶ V.112-115, 122 (I App. 1[C]). The
Tribunal rejected the very same arguments that INPROTSA regurgitated to the
1 The Tribunal’s ultimate decision to accord the Baeza Letter “no probative
weight” because it was contradicted by multiple witnesses, ECF 1:111-112,
118-119, at ¶¶ V.51-52, 66 (I App. 1[C]); ECF 20:8 (DM App. 20); ECF 20-3 (DM
App. 20-3), was one of INPROTSA’s grounds in support of its Petition to Vacate
in the District Court. ECF 1:22-23, 36-38 (I App. 1[A]).
2 The 93% figure was based on the Tribunal’s finding that 93% of the plant
material on INPROTSA’s plantation as of the date of the Final Award originated
from the 61 million MD-2 seeds provided by Del Monte to INPROTSA under the
Agreement. ECF 1:127-128, at ¶¶ V.94-96 (I App. 1[C]).
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District Court in support of its Petition to Vacate and in opposition to Del Monte’s
Cross-Petition to Confirm. ECF 1:10-39, 90-142 (I App. 1[A], I App. 1[C]); ECF
15 (II App. 15); ECF 16 (II App. 16).
1. The Tribunal Properly Concluded that the Agreement’s
Post-Termination Restrictive Covenants Were Enforceable
Agreeing with Del Monte, the Tribunal rejected INPROTSA’s contention
that the post-termination restrictive covenants were conditioned on Del Monte
being the exclusive owner of the MD-2 variety, holding that “the absence of a
patent does not prevent parties from entering contracts under state law creating
respective rights and obligations regarding an unpatented product, including
restrictions on the product.” ECF 1:118, at ¶ V.65 (I App. 1[C]). The Tribunal
concluded that INPROTSA’s interpretation of the Agreement would contravene
the mandate of Florida law “to interpret a contract in such a way as to give
meaning to all provisions while doing violence to none,” while Del Monte’s and
the Tribunal’s interpretation “harmonizes the contract provisions and the intent of
the parties as determined from the Agreement and the evidence in the record.”
ECF 1:118, at ¶ V.65, n.44 (I App. 1[C]). Furthermore, the Tribunal found that
INPROTSA had admitted to Del Monte and to Alfredo Volio, a third party witness
who “has no interest in this proceeding and [whose] testimony [in the arbitration]
was credible and unrefuted by INPROTSA,” that the post-termination covenants
were enforceable. ECF 1:118-119, 124, at ¶¶ V.66, 83 (I App. 1[C]).
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2. Del Monte Did Not Fraudulently Induce INPROTSA into
Entering into the Agreement
The Tribunal rejected INPROTSA’s defenses and counterclaims premised
on the allegation that it was defrauded into entering into the Agreement by Del
Monte and deceived into rejecting a competing pineapple sales contract from the
Dole Food Company. ECF 1:105-124, at ¶¶ 34-83 (I App. 1[C]). The Tribunal
held:
(a) Del Monte did not intend to fraudulently deceive INPROTSA because
Del Monte had developed the MD-2 variety, brought the variety to market, and
believed that it had exclusive rights to market the variety. (ECF 1:106, 107-109,
114-116, at ¶¶ V.39, 43-48, 59-61 (I App. 1[C]));
(b) INPROTSA was not fraudulently deceived about whether Del Monte
owned the MD-2 variety when it signed the Agreement because INPROTSA was
aware of litigation between Del Monte and Dole that challenged Del Monte’s
ownership rights in the MD-2. (ECF 1:110-111; 113, 115-117, at ¶¶ V.49-51, 56,
61-62 (I App. 1[C]));
(c) Del Monte did not “fraudulently induc[e] [INPROTSA] to enter into
the Agreement or caus[e] it to accept clauses Primera, Segunda, Sétima or
Vigésimo Novena thereof.” (ECF 1:124, at ¶ 124 (I App. 1[C]).
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(d) INPROTSA did not rely to its detriment on any statements
purportedly made by Del Monte to confuse the market into thinking it had a patent
on the MD-2 variety. (ECF 1:115-116, at ¶ V.61 (I App. 1[C]));
(e) INPROTSA entered into the Agreement with Del Monte because Del
Monte’s contract proposal was financially better for INPROTSA than what Dole
had offered. (ECF 1:122-124, at ¶¶ V.76-83 (I App. 1[C]));
(f) INPROTSA ratified the Agreement after it learned in 2002 that Del
Monte had settled its lawsuit with Dole and that Del Monte was no longer asserting
exclusive ownership rights in the MD-2. (ECF 1:107, 116-117, at ¶¶ V.40, 62
(I App. 1[C]));
(g) INPROTSA’s fraud counterclaim was barred by Florida’s statute of
repose, § 95.031(2)(a), Fla. Stat. (ECF 1:120-121, 124, at ¶¶ V.71-74 (I App.
1[C])); and
(h) INPROTSA was bound by the Agreement’s post-termination
restrictive covenants. (ECF 1:124, at ¶ V.83 (I App. 1[C])).
3. The Tribunal’s Damage Award Was Proper
Del Monte sought damages based on the revenues INPROTSA wrongfully
collected from the sale of MD-2 pineapples following the Agreement’s
termination. ECF 1:130-131, at ¶ V.105 (I App. 1[C]). The Tribunal held that
disgorgement of INPROTSA’s revenues was a permissible remedy under Florida
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law, particularly since the Tribunal found that calculating INPROTSA’s net profits
“was not possible given INPROTSA’s refusal to provide such information in
discovery.” ECF 1:130-132, at ¶¶ V.102-109 (I App. 1[C]). Acknowledging that
Del Monte’s damage calculation was conservative and likely understated, the
Tribunal awarded Del Monte $26,133,000.00 in damages incidental to specific
performance in order to return Del Monte to the status quo at the time of the
breach. Id.
INPROTSA moved for correction and clarification of the Final Award,
which was denied in its entirety by the Tribunal on August 6, 2016. ECF
1:189-191 (I App. 1[D]); ECF 1:193-198 (I App. 1[E]).
D. INPROTSA’s Petition to Vacate the Final Award and
Del Monte’s Cross-Petition to Confirm the Final Award
On September 9, 2016, INPROTSA filed its Petition to Vacate in Florida
state court. ECF 1:10-39 (I App. 1[A]). INPROTSA’s counsel emailed a copy of
the Petition to Vacate to Del Monte’s counsel in Miami and requested Del Monte’s
counsel to accept service of the Petition on Del Monte’s behalf. Del Monte’s
counsel responded that he was not authorized to accept service on Del Monte’s
behalf. ECF 19-3 (II App. 19-3). Service of process of the Petition to Vacate was
never effected on Del Monte. ECF 6:19 (II App. 6); ECF 15:3, at ¶ 6 (II App. 15).
The Petition to Vacate sought vacatur of the Final Award pursuant to the
provisions of a Florida statute governing domestic arbitrations (Chapter 682, Fla.
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Stat.). The Petition asserted no grounds for vacatur under the New York
Convention. ECF 1:10-39 (I App. 1[A]).
Del Monte removed the state court action to the District Court on October 7,
2016. ECF 1 (I App. 1). On October 11, 2016, Del Monte filed its Motion to
Dismiss Petition to Vacate Final Arbitral Award (“Motion to Dismiss”) and Cross
Petition to Confirm Final Arbitral Award (“Cross-Petition to Confirm”) contending
that INPROTSA had failed to allege a basis for vacatur under the New York
Convention and that, even if the Florida domestic arbitration code applied, the
Tribunal had not committed any errors of law or fact to justify vacatur or deny
confirmation of the Final Award. ECF 6 (II App. 6).
On October 28, 2016, INPROTSA filed separate memoranda in opposition
to Del Monte’s Motion to Dismiss, ECF 15 (II App. 15), and to Del Monte’s
Cross-Petition to Confirm. ECF 16 (II App. 16). On November 7, 2016, Del
Monte filed a reply in support of its Motion to Dismiss, ECF 19 (DM App. 19),
and a reply in support of its Cross-Petition to Confirm, ECF 20 (DM App. 20),
pointing out that INPROTSA had failed to state any legally cognizable grounds to
vacate the Final Award or defeat its confirmation.
On December 6, 2016, the District Court dismissed the Petition to Vacate
because it “failed to raise any New York Convention defenses” justifying vacatur
of the Final Award, see Order Granting Motion to Dismiss and Denying Motion
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for Remand (the “Dismissal Order”), but did not issue a ruling on Del Monte’s
Cross-Petition to Confirm. ECF 24 (II App. 24).
Following a limited remand by this Court on March 27, 2017 to permit the
District Court to rule on Del Monte’s Cross-Petition to Confirm, the District Court
entered its Order Granting Cross-Petition to Confirm the Arbitral Award on May 7,
2017 (“Confirmation Order”), in which it set forth the basis for subject matter
jurisdiction over the case and its reasons for confirming the Final Award,
including, inter alia, that INPROTSA had established no defenses to confirmation.
ECF 47 (III App. 47).
INPROTSA appealed both the Dismissal Order and the Confirmation Order
on May 9, 2017. ECF 50 (III App. 50).
II. Standard of Review
Del Monte agrees with INPROTSA that the Dismissal Order and the
Confirmation Order are subject to de novo review by this Court and that factual
findings are reviewed for clear error. Del Monte disagrees with INPROTSA’s
statement that “the district court made no findings of fact.” INPROTSA Brief,
at 20.
This Court can affirm the District Court’s rulings on any ground supported
by the record. Jaffke v. Dunham, 352 U.S. 280, 281 (1957); Big Top Koolers, Inc.
v. Circus-Man Snacks, Inc., 528 F.3d 839, 844-45 (11th Cir. 2008).
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SUMMARY OF ARGUMENT
This Court should affirm the District Court’s Dismissal Order and
Confirmation Order.
First, the District Court had subject matter jurisdiction and removal
jurisdiction to consider this case. Because the New York Convention (Chapter 2 of
the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 201-208) indisputably governs
the Final Award, INPROTSA has appropriately conceded that “removal
jurisdiction existed in the proceedings below” pursuant to 9 U.S.C. § 205.
INPROTSA Brief, at 29, n.3. Furthermore, the District Court had subject matter
jurisdiction under 9 U.S.C. § 203 to consider INPROTSA’s Petition to Vacate and
Del Monte’s Cross-Petition to Confirm.
Second, the District Court properly dismissed INPROTSA’s Petition to
Vacate because it failed to raise any New York Convention grounds in support of
vacatur. INPROTSA contends that it was entitled to assert non-Convention
grounds in support of its request for vacatur, but this Court’s holdings in Industrial
Risk and Costa foreclose that argument. Nevertheless, even if INPROTSA were
permitted to assert defenses contained in Chapter 1 of the FAA or the Florida
domestic arbitration code (Chapter 682, Fla. Stat.), it failed to demonstrate that the
Tribunal made any errors that could justify vacatur.
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Third, the District Court properly confirmed the Final Award. The record
demonstrates that the District Court considered each of INPROTSA’s purported
defenses to confirmation -- even those not cognizable under the Convention -- and
correctly found all of them to be without merit. Moreover, the District Court
correctly held that INPROTSA failed to serve its Petition to Vacate within the
limitations period imposed by the FAA and was, therefore, barred from raising any
defenses to confirmation. Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863
F.2d 851, 853-54 (11th Cir. 1989) (failure of party to timely serve petition to
vacate award within limitations period bars party “from raising the invalidity of the
award as a defense in opposition to a motion … to confirm the award.”).
Fourth, contrary to INPROTSA’s invitation, remand of this matter is
unnecessary and unwarranted because the record on appeal is complete and
sufficient to enable this Court to make a de novo review of the District Court’s
rulings. Affirmance is required because there are multiple, independent grounds
supporting the District Court’s well-reasoned Orders.
ARGUMENT
I. The District Court Had Subject Matter Jurisdiction and Removal
Jurisdiction Over this Action Under the New York Convention
A. This Court Has Held that District Courts Have Subject Matter
Jurisdiction Over Vacatur Proceedings Under the New York
Convention
Section 202 of the FAA (9 U.S.C. § 202) provides that all arbitration
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agreements and awards that are not purely domestic (including awards entered in
the United States) “fall under the [New York] Convention.” INPROTSA does not
contest that the Agreement and the Final Award fall under the New York
Convention. See INPROTSA Brief, at 20, 28.
Section 203 of the FAA (9 U.S.C. § 203) provides that:
[a]n action or proceeding falling under the New York Convention
shall be deemed to arise under the laws and treaties of the United
States. The district courts of the United States … shall have original
jurisdiction over such an action or proceeding, regardless of the
amount in controversy.
In Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d
1434 (11th Cir. 1998), this Court held that 9 U.S.C. § 203 “creates original federal
subject-matter jurisdiction over any action arising under the Convention,” and,
upon finding that the arbitral award at issue was “non-domestic within the meaning
of § 202 of the FAA and article 1 of the New York Convention,” ruled that “we
therefore hold federal subject matter jurisdiction over this appeal.” Industrial Risk,
141 F.3d at 1440-41.
In Costa v. Celebrity Cruises, Inc., 470 F. App’x 726, *1 (11th Cir. 2012),
this Court affirmed that federal courts have subject matter jurisdiction to consider
petitions to vacate arbitral awards. In Costa, the plaintiffs brought an action in
federal district court seeking to vacate an international arbitral award governed by
the Convention. Costa v. Celebrity Cruises, Inc., 768 F. Supp. 2d 1237, 1239
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(S.D. Fla. 2011). The district court held that it had subject matter jurisdiction
under § 203 of the FAA to consider the petition for vacatur. Id. at 1240, n.2. On
appeal from an order dismissing the petition to vacate, this Court “reject[ed] all of
the appellants’ arguments” and affirmed the district court in all respects. Costa,
470 F. App’x 726, at *1.3 See also Gonsalvez v. Celebrity Cruises, Inc., 935 F.
Supp. 2d 1325 (S.D. Fla. 2013), aff’d, 750 F.3d 1195, 1197, n.1 (11th Cir. 2013)
(district court and this Court assumed existence of subject matter jurisdiction over
a vacatur action under the New York Convention and ruled on merits of dispute).
Indeed, the vast majority of cases have held that the federal courts have
subject matter jurisdiction to consider petitions to vacate pursuant to § 203. See,
e.g., Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire & Marine Ins. Co., 668
3 INPROTSA does not cite in its Brief to this Court’s opinion in Costa. Instead,
INPROTSA speculates that the district court’s ruling on jurisdiction in Costa was
dicta because “independent grounds for federal jurisdiction, including admiralty
existed.” INPROTSA Brief, at 35, n.6. To the contrary, the district court’s
analysis in Costa was based on, and consistent with, the language of the New York
Convention and this Court’s holding in Industrial Risk. Moreover, the district
court in Costa held expressly that 9 U.S.C. § 203 “provides for subject matter
jurisdiction in this case,” id. at 1240, n.2, leaving no doubt as to the basis of its
ruling. Likewise, in Cvoro v. Carnival Corp., 2017 WL 216020 (S.D. Fla. Jan. 17,
2017), the district court held that federal courts have subject matter jurisdiction to
consider petitions to vacate awards falling under the New York Convention. Id. at
*4. INPROTSA’s effort to distinguish Cvoro on the basis that “admiralty
jurisdiction also existed” is incorrect because the district court in Cvoro expressly
premised its finding of jurisdiction on the New York Convention. There is no
mention of admiralty jurisdiction in Cvoro.
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F.3d 60, 71 (2d Cir. 2012);4 Oilmar Co. Ltd. v. Energy Transport Ltd., 2014 WL
8390659, *2 (D. Conn. Oct. 6, 2014); Zurich Am. Ins. Co. v. Team Tankers A.S.,
2014 WL 2945803, *3 (S.D.N.Y. Jun. 30, 2014), aff’d, 811 F.3d 584 (2d Cir.
2016); Subway Int’l B.V. v. Bletas, 2012 WL 1118205, *2 (D. Conn. Apr. 3, 2012);
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 863
F. Supp. 2d 351, 356 (S.D.N.Y. 2012); PMA Capital Ins. Co. v. Platinum
Underwriters Bermuda, Ltd., 659 F. Supp. 2d 631, 634-35 (E.D. Pa. 2009), aff’d,
400 F. App’x 654 (3d Cir. 2010); Spector v. Torenberg, 852 F. Supp. 201, 205-06
(S.D.N.Y. 1994); Holzer v. Mondadori, 2013 WL 1104269, *6 (S.D.N.Y. Mar. 14,
4 INPROTSA criticizes the District Court in this case for relying on Scandinavian
Reinsurance and its progeny because, according to INPROTSA, the Second Circuit
did not “provide[] any analysis whatsoever as to why Chapter 2 grants federal
jurisdiction to petitions to vacate” and that “‘drive-by’ jurisdictional rulings of this
nature carry no precedential value.” INPROTSA Brief, at 34-35, n.5. The cases
relied upon by INPROTSA are inapposite. Thus, INPROTSA cites to the dissent
in Sprint Communications Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 312
(2008), in which the dissenting judges refused to be bound by cases in which
Article III standing was not at issue or addressed at all, see id. at 313. Similarly, in
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 118-19 (1984) and
Hagans v. Lavine, 415 U.S. 528, 553, n.5 (1974), the courts did not consider
themselves bound by prior cases in which the jurisdictional issue was not
mentioned at all. These cases stand in stark contrast to Scandinavian Reinsurance
where the court expressly addressed its jurisdiction and set forth the source of that
jurisdiction. Scandinavian Reinsurance, 668 F.3d at 71. This Court has
recognized that its explicit jurisdictional rulings must be followed. Main Drug, Inc
v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1231 (11th Cir. 2007) (while a court
is not bound by a prior decision’s sub silentio treatment of jurisdiction, “[i]f
jurisdictional holdings are explicit, they must be followed....”).
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2013). See also Stemcor, USA Inc. v. CIA Siderurgica Do Para Cosipar, 2017 WL
3821785, *2 (5th Cir. Sep. 1, 2017) (federal court has jurisdiction under New York
Convention where there is “an arbitration agreement or award that falls under the
Convention,” and the dispute “relate[s] to that arbitration agreement”).
The only case INPROTSA cites to in which a court dismissed a vacatur
action under the New York Convention on the purported basis of lack of subject
matter jurisdiction is Ingaseosas Int’l Co. v. Aconcagua Investing Ltd., 2011 WL
500042 (S.D. Fla. Feb. 10, 2011) (Huck, J.), aff’d on other grounds, 479 F. App’x
955 (11th Cir. 2012). INPROTSA Brief, at 33-36. Significantly, the district
court’s decision in Ingaseosas pre-dated this Court’s definitive ruling on the issue
in Costa. Moreover, as INPROTSA acknowledges, id., at 33, the district court in
Ingaseosas relied on Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286,
1290-91 (11th Cir. 2004), but Czarina did not address a federal court’s jurisdiction
to consider a vacatur petition. For this reason, the District Court properly refused
to follow Ingaseosas and held, consistent with the weight of authority, that “there
is federal jurisdiction over this petition to vacate.” ECF 47:3-6 (III App. 47).5
5 The Ingaseosas court also based its ruling on an outdated and incorrect belief
that other courts that have addressed the issue have “universally agree[d]” that
federal district courts do not have jurisdiction to consider petitions to vacate.
Ingaseosas, 2011 WL 500042, at *3. As the District Court noted, “[m]any federal
courts, including this Court, have found jurisdiction over vacatur actions under
§ 203 of the New York Convention.” ECF 47:5 (II App. 47); see also supra at
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After attempting to defend the flawed opinion in Ingaseosas, INPROTSA
was forced to admit that while “[t]his Court affirmed that decision,” it did so “on
alternative grounds.” INPROTSA Brief, at 33. Indeed, although this Court
affirmed the district court in Ingaseosas, it did not endorse Judge Huck’s belief
that the district court lacked subject matter jurisdiction, but found instead that
subsequent events had made it impossible for the district court to grant effective
relief “and thus the case is moot.” Ingaseosas, 479 F. App’x at 958.6
B. Subject Matter Jurisdiction Pursuant to 9 U.S.C. § 203
Is Not Limited to Actions to Compel Arbitration and to
Confirm Arbitral Awards
In the teeth of this Court’s rulings on subject matter jurisdiction in Industrial
17-19 (citing to many of those cases). Compounding its error, the Ingaseosas court
then asserted incorrectly that Industrial Risk was inapposite because there was
already subject matter jurisdiction in that case given the earlier filing of a motion
to compel arbitration and, thus, that it was “evident” that this Court’s subject
matter jurisdiction did not derive from the petition to vacate. Ingaseosas, 2011
WL 500042, at *4. This analysis misses the point. Industrial Risk controls
because the Court in that case found that there was subject matter jurisdiction for
matters that fall under the Convention. Industrial Risk, 141 F.3d at 1441. 6 See Rep. of Argentina v. BG Gp. PLC, 715 F. Supp. 2d 108, 119-20 (D.D.C.
2010) (district court had subject matter jurisdiction pursuant to 9 U.S.C. § 203 to
consider action initiated by filing of petition to vacate because “Award plainly falls
within the “non-domestic provision of Article I(1) of the New York
Convention….”), aff’d, 555 F. App’x 2 (D.C. Cir. 2014). The D.C. Circuit
affirmed the district court’s ruling on remand after the U.S. Supreme Court’s
opinion in BG Gp PLC v. Rep. of Argentina, 134 S. Ct. 1198 (2014). Thus, both
the D.C. Circuit and the U.S. Supreme Court affirmed the district court’s exercise
of subject matter jurisdiction over the petition to vacate.
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Risk and Costa and the plethora of similar holdings in other Circuits, INPROTSA
nonetheless contends that the District Court did not have subject matter jurisdiction
to consider INPROTSA’s Petition to Vacate because “[i]n defining federal subject
matter jurisdiction [under 9 U.S.C. § 203], however, Congress extended
jurisdiction only to actions or proceedings ‘falling under’ the New York
Convention” and this Court “has repeatedly recognized” that the New York
Convention only provides for two causes of action: to compel arbitration and to
confirm an arbitral award. INPROTSA Brief, at 29, 30 (emphasis in original). As
noted supra, the District Court appropriately rejected this argument. ECF 47:5
(III App. 47). The cases INPROTSA cites -- Czarina, Escobar v. Celebration
Cruise Operator, 805 F.3d 1279 (11th Cir. 2015), and Lindo v. NCL (Bahamas),
Ltd., 652 F.3d 1257 (11th Cir. 2011) -- set forth the unremarkable proposition that
there are two ways under the New York Convention to enforce an arbitration
agreement (by compelling arbitration and confirming an arbitral award). As the
District Court aptly held, INPROTSA’s reliance on Czarina is misplaced:
Czarina does not stand for the limiting proposition that INPROTSA is
urging the Court to adopt – that the Federal Arbitration Act only
provides original jurisdiction over actions to compel arbitration and
actions to confirm arbitration awards under the New York
Convention. In Czarina, the Eleventh Circuit did not analyze whether
a federal court has subject matter jurisdiction under § 203 to
adjudicate motions to vacate an arbitration award falling under the
Convention.
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Confirmation Order (ECF 47:5 (III App. 47). Likewise, this Court did not address
the district court’s subject matter jurisdiction at all in Escobar or Lindo, both of
which involved motions to compel arbitration.7
INPROTSA further argues that “[t]he structure and content of the New York
Convention also evidences that there are [only] two proceedings arising under that
treaty: actions to compel arbitration [per § 206] and actions to enforce arbitral
awards [per § 207].” INPROTSA Brief, at 31. The District Court appropriately
rejected the arbitrary distinction: “It seems INPROTSA is asking the Court to split
hair – finding jurisdiction is only proper if asked to confirm an award, but not if
there is a motion to vacate the same award.” ECF 47:5 (III App. 47).
Article V(1) of the New York Convention provides that “[r]ecognition and
enforcement of an award may be refused” if the losing party establishes at least
one of the seven grounds in Article V. Nothing in Article V suggests -- much less
states -- that the defenses to confirmation cannot be asserted in a vacatur petition.
Moreover, Articles V(1)(e) and VI expressly recognize that a New York
Convention award may be vacated by the courts. See Spector, 852 F. Supp. at
7 INPROTSA’s reliance on Vaden v. Discover Bank, 556 U.S. 49 (2009),
INPROTSA Brief, at 27, 29, is similarly misplaced. In Vaden, the U.S. Supreme
Court determined that the district court did not have jurisdiction to hear a motion to
compel arbitration of purely state law claims under Chapter 1 of the FAA. Id. at
66-70. Vaden did not address whether a federal district court has subject matter
jurisdiction to consider a petition to vacate under the New York Convention.
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205-06 (“[R]ather than foreclosing this Court from vacating the award, the
Convention explicitly acknowledges the authority of this Court to do so.”);
Stemcor, 2017 WL 3821785, at *4, n.3 (“‘[n]othing in § 206 or § 207 limits the
subject matter jurisdiction of federal courts.’”) (citation omitted).
C. Del Monte’s Cross-Petition to Confirm Final Award Was
Sufficient to Confer Subject Matter Jurisdiction
INPROTSA also argues that because “[f]ederal subject matter jurisdiction is
measured at the time of removal,” the filing by Del Monte of its Cross-Petition to
Confirm after removal was insufficient to cure what INPROTSA claims was a
jurisdictional defect. INPROTSA Brief, at 31-32. INPROTSA is incorrect. The
Ninth Circuit held in Infuturia Global Ltd. v. Sequus Pharm., Inc., 631 F.3d 1133,
1137, 1138 (9th Cir. 2011) that a party, following removal of a state court action to
federal court under 9 U.S.C. § 205, may properly create subject matter jurisdiction
though the filing of a pleading that alleges a basis for federal jurisdiction. Infuturia
emphasized that the requirement that there be a basis for federal jurisdiction at the
time of the removal applied only to removal based on 28 U.S.C. § 1441(a)), not on
removal based on 9 U.S.C. § 205. Infuturia, 631 F.3d at 1137.
Here, even if INPROTSA’s Petition to Vacate could not have originally
been filed in federal court (a contention that the courts have roundly rejected, see
supra at 16-19, the removal of the Petition and the filing of the Cross-Petition to
Confirm the Final Award by Del Monte plainly supplied the requisite subject
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matter jurisdiction under 9 U.S.C. § 203. The cases cited by INPROTSA, see
INPROTSA Brief, at 31-32, are inapposite because they all involved removal
solely pursuant to 28 U.S.C. § 1441, not pursuant to the clearly expansive 9 U.S.C.
§ 205 (providing for removal of any action or proceeding that “relates to an
arbitration agreement or award falling under the Convention”). See Beiser v.
Weyler, 284 F.3d 665, 669 (5th Cir. 2002) (“[W]henever an arbitration agreement
falling under the Convention could conceivably affect the outcome of the
plaintiff’s case, the agreement ‘relates to’ the plaintiffs suit.”); Infuturia, 631 F.3d
at 1137 (“The phrase ‘relates to’ is plainly broad, and has been interpreted to
convey sweeping removal jurisdiction in analogous statutes.”).8
D. INPROTSA Concedes that the District Court Had Removal
Jurisdiction
Despite taking a contrary position in the District Court, INPROTSA now
concedes that “removal jurisdiction existed in the proceedings below.”
INPROTSA Brief, at 29, n.3 (emphasis supplied). That admission is fatal to
INPROTSA’s jurisdictional argument because, following a proper removal under
9 U.S.C. § 205, Del Monte was permitted to file its Cross-Petition to Confirm the
8 Because INPROTSA’s Petition to Vacate clearly relates to the Arbitral Award, it
was properly removed pursuant to 9 U.S.C. § 205. See, e.g., Kolel Beth Yechiel,
863 F. Supp. 2d at 356 (removal of state court action that “attempt[s] to vacate the
Arbitration Decision” was proper under § 205).
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Final Award and cure any jurisdictional defect that existed at the time of removal.
Infuturia, 631 F.3d at 1137. Other courts hold that if removal jurisdiction under
9 U.S.C. § 205 exists, then original subject matter jurisdiction under § 203 likewise
exists. See, e.g., Stemcor, 2017 WL 3821785, at *2 (holding district court has
subject matter jurisdiction if arbitral award falls under the Convention and action
relates to award; explaining that original subject matter and removal jurisdiction
are generally co-extensive; and “treating the question of original and removal
jurisdiction under the Convention as identical.”); Francisco v. Stolt Achievement
MT, 293 F.3d 270, 272 (5th Cir. 2002) (district court has both removal and subject
matter jurisdiction if dispute was one that fell under the New York Convention).9
II. INPROTSA’S Petition to Vacate Did Not Raise Any New York
Convention Grounds and Was Thus Properly Dismissed
INPROTSA argues that it was entitled to seek vacatur of the Final Award
pursuant to the grounds for vacatur set forth in Chapter 1 of the FAA and insists
that the Court should remand this case to the District Court to allow it to consider
those defenses. INPROTSA Brief, at 36-42. INPROTSA is incorrect for multiple
9 INPROTSA cites to Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007), purportedly for the proposition that although the case was properly
removed it could still suffer from a lack of subject matter jurisdiction. INPROTSA
Brief, at 29, n.3. Powerex is inapposite. In that case, the Court noted in dicta that
under 28 U.S.C. § 1447(e), not implicated here, where a case is removed and
additional defendants are joined that destroy diversity, a court may permit joinder
and remand the case. Powerex, 551 U.S. at 272.
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reasons.10
A. INPROTSA Improperly Premised Its Petition to Vacate on the
Florida Domestic Arbitration Code
Although INPROTSA now contends that it sought vacatur pursuant to
Chapter 1 of the FAA that is most decidedly not the case. The four corners of the
Petition to Vacate demonstrate that INPROTSA sought vacatur of the Final Award
pursuant to § 682.13(1)(b)(3) and § 682.13(1)(d), Fla. Stat., two provisions in
Florida’s Revised Arbitration Code governing domestic arbitrations. ECF 1:10, 23,
24, 35 (I App. 1[A]); INPROTSA Brief, at 5 (acknowledging that INPROTSA
sought “vacatur under the Revised Florida Arbitration Code.”).
INPROTSA concedes, as it must, that the Florida domestic arbitration code
does not apply to the Final Award,11 by now belatedly arguing FAA Chapter 1
10 In addition to the reasons detailed in this section, the Petition to Vacate was also
properly dismissed because it was not timely served and was thus barred by the
statute of limitations under 9 U.S.C. § 12, as the District Court properly held in its
Confirmation Order (ECF 47:12-14 (III App. 47)). See infra at 43-45.
11 See Saturn Telecommc’ns Servs., Inc. v. Covad Commc’ns Co., 560 F. Supp. 2d
1278, 1282 (S.D. Fla. 2008) (state arbitration codes do not apply unless arbitration
agreement expressly provides for their application). Moreover, even if the Florida
arbitration statutes did apply, INPROTSA improperly relied on Chapter 682, Fla.
Stat., governing domestic arbitration awards rather than the Florida International
Commercial Arbitration Act (“FICAA”), Chapter 684, Fla. Stat., which governs
international arbitrations, and which grounds for vacatur in § 684.0046 are
identical to those set forth in Article V of the New York Convention. Sural
(Barbados) Ltd. v. Gov’t of Rep. of Trinidad and Tobago, 2016 WL 4264061, *4,
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grounds. As discussed immediately below, FAA Chapter 1 grounds are utterly
inapplicable.
B. This Court Has Established that the Exclusive Grounds to
Vacate an Arbitral Award Governed by the New York
Convention are Set Forth in Article V of the Convention
1. Industrial Risk and Costa Are Dispositive of this Appeal
The District Court, citing Industrial Risk and Costa, properly dismissed
INPROTSA’s Petition to Vacate because “the only grounds to vacate a
non-domestic award are set forth in Article V of the New York Convention” and
because “Petitioner does not rely on any of the New York Convention defenses.”
ECF 24:1-2 (II App. 24). Without mentioning this Court’s decision in Costa at all,
INPROTSA contends erroneously that the District Court’s reliance on Industrial
Risk was improper because Industrial Risk was decided incorrectly and has been
abrogated by a subsequent decision of the U.S. Supreme Court. INPROTSA Brief,
at 37-39.
In Industrial Risk, this Court was asked to decide the scope of defenses
available to a party seeking vacatur of an international arbitral award governed by
the New York Convention. This Court held unequivocally that the “arbitral award
must be confirmed unless appellants can successfully assert one of the seven
n.4 (S.D. Fla. Aug. 12, 2016) (“FICAA ‘effectively mirrors the limited grounds to
refuse enforcement in the New York Convention.’”) (citation omitted).
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defenses against enforcement of the award enumerated in Article V of the New
York Convention” and emphasized that “[t]he New York Convention’s
enumeration of defenses against enforcement is exclusive.” Id. at 1141, 1142
(emphasis supplied).
Likewise, in Costa, the plaintiffs sought to vacate an international arbitral
award falling under the New York Convention on grounds set forth in 9 U.S.C.
§ 10(a) of Chapter 1 of the FAA (governing domestic arbitrations) and in
§ 684.0027 of the Florida International Arbitration Act. Costa, 768 F. Supp. 2d at
1239. Citing to this Court’s holding in Industrial Risk, the district court in Costa
dismissed with prejudice a complaint seeking vacatur of an international arbitration
award, holding that
the only potential grounds for vacating the arbitration award in this
case are the seven defenses to enforcement enumerated in the
Convention. And any additional grounds for vacating an arbitration
award as may be contained in Chapter 1 of the FAA or the [Florida
International Arbitration Act] are strictly inapplicable.
Costa, 768 F. Supp. 2d at 1240. On appeal, this Court “affirmed the judgment of
dismissal based on our decision in Industrial Risk.” Costa, 470 F. App’x 726,
at *1.
Because, as INPROTSA acknowledges, both Del Monte and INPROTSA are
foreign corporations with their principal places of business outside the enforcing
jurisdiction, ECF 1:12 (I App. 1[A]), and this dispute involves property located
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abroad and contemplates performance abroad, id., the Final Award is non-domestic
and governed exclusively by the New York Convention. Industrial Risk, 141 F.3d
at 1440, n.6. The only grounds to vacate the Final Award are, therefore, found
exclusively in Article V of the New York Convention, as the District Court
properly held.12
2. Industrial Risk and Costa Were Properly Decided
INPROTSA contends that “[t]his Court’s opinion in Industrial Risk misreads
the New York Convention” and that “[n]o other Circuit (or the Supreme Court) has
followed suit; in fact their precedent is to the contrary.” INPROTSA Brief, at 37.
Although rulings from other Circuits have no bearing on the binding precedents of
12 INPROTSA contends that it was entitled to rely on defenses other than those in
Chapter 2 as its basis for vacatur -- and was “not bound by Eleventh Circuit
precedent” -- because it filed its Petition to Vacate in Florida state court.
INPROTSA Brief, at 39, n.8. The New York Convention, not Florida law,
exclusively governs the international arbitral award in this case. “The New York
Convention ... governs the enforcement of arbitration agreements, and of arbitral
awards made pursuant to such agreements, in federal and state courts.” Industrial
Risk, 141 F.3d at 1440 (emphasis supplied). Pignato v. Great W. Bank, 664 So. 2d
1011 (Fla. 4th DCA 1995), cited by INPROTSA, belies INPROTSA’s contention
that, even while in state court, it was not bound by Eleventh Circuit law. In
Pignato, the Florida state court declined to follow a ruling of the Eleventh Circuit
construing state law, explaining that “[w]e do not consider ourselves bound by the
Eleventh Circuit’s decision, because it construes Florida law, not federal law.” Id.
at 1015. Where, as here, there is federal court precedent from the circuit in which
the state is located on an issue of federal law, the state court will “accord[] unusual
weight to [it],” id., as the Florida court would have been obligated to do had this
case remained in that venue.
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this Court, including Industrial Risk and Costa, INPROTSA’s contention regarding
those rulings is incorrect and misleading. Several Circuits have joined this Circuit
in limiting grounds in support of vacatur to those found exclusively in Article V of
the New York Convention. See, e.g., Johnson Controls, Inc. v. Edman Controls,
Inc., 712 F.3d 1021, 1025 (7th Cir. 2013) (“Chapter 2 [of the New York
Convention] and 3 [of the Inter-American Convention] of the FAA state that a
Convention award may be vacated only on grounds specified in the applicable
Convention, 9 U.S.C. §§ 202, 302.”); Employers Ins. of Wausau v. Banco Seguros
Del Estado, 199 F.3d 937, 941-42 and n.1 (7th Cir. 1999) (Section 207 of the New
York Convention “governs the procedure of confirming an arbitral award as well
as the procedure for refusal for an award.”) (emphasis supplied); RZS Holdings
AVV v. PDVSA Petroleos S.A., 598 F. Supp. 2d 762, 766-67 and n.4 (E.D. Va.
2009) (citing Industrial Risk approvingly and explaining that because of conflict
between grounds for vacatur under FAA Chapter 1 and FAA Chapters 2 and 3,
“the Court follows the line of case law from the Sixth, Seventh and Eleventh
Circuits holding that … the reasons enumerated in Article V … provide the
exclusive list of grounds to vacate international arbitral awards.”), aff’d, 383 F.
App’x 281 (4th Cir. 2010). See also Richard W. Hulbert, The Case for a Coherent
Application of Chapter 2 of the Federal Arbitration Act, 22 Am. Rev. Int’l Arb. 45,
70-71 (2011) (“To vacate an award is surely to refuse to enforce it, and § 207 [of
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31
the New York Convention] sets out the exclusive grounds on which that may be
done with respect to an award defined in § 202 [of the New York Convention].”).
This Court’s rulings in Industrial Risk and Costa strictly limiting the
grounds for vacatur are consistent with “[t]he purpose of the New York
Convention, and of the United States’ accession to the convention, [] to ‘encourage
the recognition and enforcement of international arbitral awards,’ to ‘relieve
congestion in the courts and to provide parties with an alternative method for
dispute resolution that [is] speedier and less costly than litigation.’” Industrial
Risk, 141 F.3d at 1440, 1443-44 (citations omitted). Moreover, as the U.S.
Supreme Court made clear in Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974),
“[t]he goal of the [New York] Convention, and the principal purpose underlying
American adoption and implementation of it, was . . . to unify the standards by
which . . . arbitral awards are enforced in the signatory countries.” Id. at 520,
n.15 (emphasis supplied). Uniformity is only served if, as this Court held, the
grounds for vacatur of an award under the New York Convention are the same as
the grounds to refuse to enforce the award. Indeed,
[a]n intention that inconsistent standards are to be applied to the
validity of an award falling under the Convention, by the same court
in the same case between the same parties, depending on whether the
issue is to confirm the award (at the suit of the winner) or to vacate it
(at the suit of the loser), cannot easily (or even plausibly) be imputed
to Congress…. [That a petition to vacate -- like a petition to
confirm -- should be judged by Convention standards] is the
conclusion imposed by logic, by the aim for uniformity that has
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inspired American accession to the Convention, and by the apparent
objective of the intention to rescue international commercial
arbitration in the United States from the labyrinthian complexities,
inadequacies and incompleteness of Chapter 1.
Hulbert, supra, at 72 (emphasis supplied).
Industrial Risk interpreted the New York Convention in a manner that
promotes consistency and uniformity:
The Eleventh Circuit [in Industrial Risk] obviously could not accept
that, a court, commanded by the statute to enter as a judgment of the
court an international award where no Convention objection is found,
can at the same time, on the same facts in the same case between the
same parties, set aside that award on a ground not permitted by the
Convention. The language of § 208, barring application of Chapter 1
provisions in a Chapter 2 case when the Chapter 1 provision is “in
conflict with this chapter or the Convention as ratified by the United
States,” would appear to be ample justification for that result.
Hulbert, supra, at 76.
3. This Court Is Bound by Its Prior Holdings in Industrial Risk
and Costa
INPROTSA’s suggestion that this Court should ignore its prior rulings in
Industrial Risk and Costa must, obviously, be rejected. “Under the well-
established prior panel precedent rule of this Circuit, the holding of the first panel
to address an issue is the law of this Circuit, thereby binding all subsequent panels
unless and until the first panel’s holding is overruled by the Court sitting en banc
or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300, n.8 (11th
Cir. 2001); Evans v. Ga. Regional Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017)
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(same). Moreover, even if INPROTSA were correct (which it is not) and
Industrial Risk had been decided incorrectly, “a panel cannot overrule a prior one’s
holding even though convinced it is wrong.” United States v. Steele, 147 F.3d
1316, 1317-18 (11th Cir. 1998).
Knowing full well that this Court’s rulings in Industrial Risk and Costa are
fatal to its case, INPROTSA is left to argue that Industrial Risk “is irreconcilable”
with BG Gp. PLC v. Rep. of Argentina, 134 S. Ct. 1198 (2014), which INPROTSA
contends “properly applied the broader Chapter 1 grounds for vacatur to a petition
to vacate a foreign arbitral award rendered in the United States.” INPROTSA
Brief, at 37-38. Contrary to INPROTSA’s assertion, BG Gp. did not abrogate
Industrial Risk.
The only issue before the Court in BG Gp. was a narrow one: “who -- [the]
court or arbitrator -- bears primary responsibility for interpreting and applying the
local litigation requirement [that the dispute first be submitted to a local court
before arbitration]…?” BG Gp., 134 S. Ct. at 1204. Whether FAA Chapter 1
grounds apply in a New York Convention case was not an issue in BG Gp., was
not discussed at all by the Court, and was not disputed by the parties.13 Because
13 Brief of Petitioner, BG Gp. PLC v. Rep. of Argentina, 134 S. Ct. 1198 (2014),
No. 12-138, 2013 WL 4587966, 60-62 (Aug. 26, 2013); Brief for Respondent, BG
Gp. PLC v. Rep. of Argentina, 134 S. Ct. 1198 (2014), No. 12-138, 2013 WL
5819691, 50 (Oct. 25, 2013).
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the Court found no grounds for vacatur and denied the vacatur petition, its
reference to the FAA Chapter 1 grounds was dicta and had no bearing on the
outcome of the litigation.
Because BG Gp. did not address or determine the grounds available to a
losing party who seeks to vacate an arbitral award governed by the New York
Convention, that case does not require or permit this Court to depart from its own
clear precedent on this issue in Industrial Risk and Costa. United States v. Kaley,
579 F.3d 1246, 1255 (11th Cir. 2009) (while the court cannot follow a prior panel
precedent overruled by the U.S. Supreme Court, the overruling requires “a clearly
contrary opinion of the Supreme Court,” that is “squarely on point,” and that
“actually abrogate[s] or directly conflict[s] with” the court’s prior decisions); In re
Holsey, 589 F. App’x 462, 467-68 (11th Cir. 2014) (where intervening U.S.
Supreme Court decision did not “specifically address” the matter at issue, it was
“not clearly on point” and circuit panel had to follow its own prior precedent);
United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38 (1952) (issue in prior
decision not argued in briefs or discussed by the court “is not binding precedent on
[the] point.”).14
14 Nor does this Court’s recent decision in Bamberger Rosenheim Ltd. v. OA Dev.,
Inc., 862 F.3d 1284 (11th Cir. 2017), provide a basis for this Court to abandon its
holdings in Industrial Risk and Costa. INPROTSA contends that “[t]his Court
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C. INPROTSA Did Not Demonstrate Any Basis for Vacatur of the
Final Award under the New York Convention
Arbitral awards falling under the FAA, including the New York Convention,
are subject to exceedingly limited judicial review. Bamberger Rosenheim, 862
F.3d at 1286-87 (“Because arbitration is an alternative to litigation, judicial review
of arbitration decisions is ‘among the narrowest known to the law.’”) (citation
omitted); Wiregrass Metal, 837 F.3d at 1085 (“arbitration losers who resort to the
courts continue to lose in all but the most unusual circumstances”); Sural, 2016
WL 4264061, at *5 (there is a “high threshold required to overturn an arbitration
award under the [New York] Convention.”). “Moreover, ‘the party seeking
vacatur bears the burden of establishing grounds sufficient to vacate the arbitration
recently recognized that BG Group undercuts Industrial Risk in the Bamberger
Rosenheim published decision, where this Court declined to apply Chapter 2
defenses to confirmation to a petition to vacate a foreign arbitral award as
Industrial Risk mandates.” INPROTSA Brief, at 40. First, Bamberger Rosenheim
was not an en banc ruling by this Court sufficient to displace Industrial Risk and
Costa as binding prior precedent, see supra at 32-33. Second, in Bamberger
Rosenheim, this Court made clear that it was not deciding the issue, see id., at
1287, n.2 (“We assume, without deciding, that § 10 [of Chapter 1 of the FAA]
applies to the award in the present case.”) (emphasis supplied). Nor did this Court
“decline[] to apply Chapter 2 defenses,” as INPROTSA contends. The claimed
error by the arbitral panel in that case arguably fit both within the New York
Convention and FAA Chapter 1 grounds, and this Court found “no reason to
analyze [the losing party’s] arguments under the New York Convention or
§ 10(a)(4) [of FAA Chapter 1] separately.” Industrial Risk and Costa thus remain
precedent to which this Court is bound. See Morales-Garcia v. Holder, 576 F.3d
1058, 1064 (9th Cir. 2009) (“assumptions on non-litigated issues are not
precedential holdings binding future decisions.”).
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award.’ Thus, if the party cannot establish one of the specified grounds for
vacatur, the court must confirm the arbitral award.’” Gerson v. UBS Fin. Serv.,
Inc., 2012 WL 3962374, *2 (S.D. Fla. Sep. 10, 2012) (citation omitted); Booth v.
Hume Pub., Inc., 902 F.2d 925, 933 (11th Cir. 1990) (court’s role “‘is limited to
ascertaining whether there exists one of the specific grounds for the vacation of an
award.’”) (citation omitted).
INPROTSA has not come close to meeting its heavy burden of establishing
grounds for vacatur of the Final Award under the New York Convention. In its
Petition to Vacate, INPROTSA argued that the Tribunal “exceeded its powers”
when it misinterpreted the Agreement by issuing an award enforcing the
Agreement’s post-termination restrictive covenants, ECF 1:25-29 (I App. 1[A]),
and when it misapplied Florida law by (1) enforcing post-termination restrictive
covenants that were allegedly unreasonable in geographic scope and time, id., at
30-31, (2) ruling that certain of INPROTSA’s defenses were time-barred, id., at 32,
and (3) awarding damages based on INPROTSA’s gross revenues without
deducting INPROTSA’s expenses, id., at 33-35. INPROTSA also argued that the
Tribunal “engaged in misconduct” when it made an erroneous evidentiary ruling
that failed to give proper weight to the Baeza Letter, id., at 35-38.15
15 INPROTSA does not even mention in its Brief many of the other purported
“grounds” for vacatur that it raised in the District Court, and for good reason, since
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An award falling under the New York Convention is “‘subject only to
minimal standards of judicial review for basic fairness and consistency with
national public policy.’” Industrial Risk, 141 F.3d at 1440. (citation omitted).16
Courts have firmly established that a New York Convention award is not subject to
vacatur because the arbitral panel purportedly made legal or factual errors.
Accordingly, the errors of law or fact that INPROTSA alleges that the Tribunal
committed, including the Tribunal’s purported misinterpretation of the Agreement,
misapplication of the law, and incorrect evidentiary rulings are not recognized
grounds for vacatur in Article V of the New York Convention. See, e.g., Costa,
all of them are utterly meritless. The only grounds raised on appeal are that the
Tribunal misinterpreted the Agreement and awarded damages in excess of the
amount allowed by Florida law. INPROTSA Brief, at 41-42. All other alleged
grounds not included in INPROTSA’s Brief are waived. See, e.g., Jones v. Sec’y,
Dep’t of Corrections, 607 F.3d 1346, 1355 (11th Cir. 2010) (“a litigant who fails in
his initial brief even to allege an error waives the right to relief based upon that
allegation” and “we will not grant relief based upon an allegation raised where a
litigant ‘fail[s] to elaborate or provide any citation of authority in support of the …
allegation.’”) (citations omitted); United States v. Pelle, 263 F. App’x 833, 841, n.2
(11th Cir. 2008) (where appellant “makes nothing more than a bare allegation of
error without explaining why it is error, we deem the point waived and will not
address it further.”). INPROTSA similarly failed in its Brief to address (beyond a
few conclusory, unsupported contentions) the legal sufficiency and merits of its
purported grounds for vacatur, thereby waiving any right to relief on those issues.
16 INPROTSA did not contend in its Petition to Vacate that the Final Award
“violated public policy.” INPROTSA did, however, attempt to assert frivolous
public policy violations in its opposition to Del Monte’s Cross-Petition to Confirm,
which the District Court properly rejected. See infra at 45-47.
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768 F. Supp. 2d at 1241 (“Erroneous legal reasoning or misapplication of the law
is generally not a violation … within the meaning of the [New York]
Convention.”); Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 613
F. Supp. 2d 1362, 1369 (S.D. Fla. 2009) (“A holding in an arbitration award that is
contrary to the substantive law governing the arbitration is not a defense under the
[New York] Convention, and therefore a district court generally may not review an
arbitration award on the merits.”); Asignacion v. Rickmers Genoa
Schiffahrtsgesellschaft MBH & CIE KG, 783 F.3d 1010, 1015, 1017, n.24 (5th Cir.
2015) (holding that “a court reviewing an award under the Convention cannot
refuse to enforce the award solely on the ground that the arbitrator may have made
a mistake of law or fact” and that courts must defer to arbitration panel’s
interpretation of the parties’ contract); Sural, 2016 WL 4264061, at *5 (challenge
to award based on alleged incorrect evidentiary rulings by the arbitrators was
“woefully deficient” to provide basis for vacatur).
III. INPROTSA’S Petition to Vacate Did Not Raise Any Grounds for
Vacatur Under Chapter 1 of the FAA
FAA Chapter 1 defenses are inapplicable as a matter of law to arbitration
awards governed by the New York Convention. Costa, 768 F. Supp. at 1240.
However, even if the grounds for vacatur in Chapter 1 of the FAA applied, as
INPROTSA now seems to argue, none of the factual and legal errors complained
of by INPROTSA justify vacatur of the Final Award. As noted, INPROTSA
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contends that by committing legal and factual errors, the Tribunal “exceeded its
powers” and “engaged in misconduct.” However, “an arbitration panel exceeds its
powers [under § 10(a)(4) of Chapter 1 of the FAA], only when it rules on a matter
not submitted to them.” Citigroup Global Markets, Inc. v. Bock, 2013 WL 210253,
*4 (S.D. Fla. Jan. 17, 2013) (citing Davis v. Prudential Secs., Inc., 59 F.3d 1186
(11th Cir. 1995)). Nowhere does INPROTSA contend that the Tribunal ruled on a
matter not submitted to it and, contrary to INPROTSA’s suggestion, an arbitral
panel does not exceed its powers by misconstruing the parties’ agreement or
misapplying the governing law. Oxford Health Plans LLC v. Sutter, 133 S. Ct.
2064, 2068 (2013) (“So the sole question for us is whether the arbitrator (even
arguably) interpreted the parties’ contract, not whether he got its meaning right or
wrong.”); Bamberger Rosenheim, 862 F.3d at 1288 (same); Wiregrass Metal, 837
F.3d at 1087 (reversing district court’s vacatur of award on ground that arbitrator
had exceeded her power in construing contract, and explaining that “we must defer
entirely to the arbitrator’s interpretation of the underlying contract no matter how
wrong we think that interpretation is.”); Johnson v. Directory Assistants Inc., 797
F.3d 1294, 1302 (11th Cir. 2015) (reversing district court’s vacatur of award,
explaining that “mere disagreement with an arbitrator’s legal or factual
determinations does not justify vacatur under § 10(a)(4).”)
Moreover, “[t]o amount to misconduct under this section [§ 10(a)(3) of
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Chapter 1 of the FAA], an arbitrator must have acted in bad faith or committed an
error so gross ‘as to amount to affirmative misconduct.’ In other words, ‘a mere
difference of opinion between the arbitrators and the moving party as to the correct
resolution of a procedural problem will not support vacatur under section
10(a)(3).’” Battles v. American Van Lines, Inc., 2016 WL 1258597, *4 (S.D. Fla.
Mar. 31, 2016) (citations omitted). The alleged failure by the Tribunal, for
example, to give proper weight to the Baeza Letter does not, as a matter of law,
provide a basis for vacatur under § 10(a)(3). See Fowler v. Ritz-Carlton Hotel Co.,
LLC, 579 F. App’x 693, 698 (11th Cir. 2014) (contention that arbitrator was guilty
of misconduct because he failed to consider certain evidence was “frivolous”
where “arbitrator allowed both parties a full and fair opportunity to present
evidence”); Bamberger Rosenheim, 862 F.3d at 1289, n.4 (rejecting as basis for
vacatur that “the arbitrator erred in admitting certain deposition testimony”);
Pochat v. Lynch, 2013 WL 4496548, *10 (S.D. Fla. Aug. 22, 2013) (“the courts
should not review the legal adequacy of [the arbitrator’s] evidentiary rulings” and
finding no basis for vacatur under either § 10(a)(3) or § 10(a)(4) where arbitrator
made allegedly erroneous evidentiary rulings).17 INPROTSA raised no grounds
17 INPROTSA cites only two cases in purported support of its claim that the Final
Award should be vacated under Chapter 1 of the FAA, see INPROTSA Brief, at
41-42. In PMA Capital Ins. Co., 659 F. Supp. 2d at 637-39, a Pennsylvania district
court vacated an arbitral award because the panel completely eliminated a
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for vacatur of the Final Award under Chapter 1 of the FAA.18
IV. The Tribunal Did Not Make Legal or Factual Errors
Moreover, even if errors of law or fact constituted grounds for vacatur under
mandatory provision of the contract that it did not want to deal with it, and in its
place, provided for a payment neither authorized by the contract nor requested by
the parties. That is a far cry from what the Tribunal did in this case, in which it
simply interpreted the provisions of the Agreement (and did so correctly). And,
Wiregrass Metal, 837 F.3d 1083, belies INPROTSA’s position. In Wiregrass
Metal, this Court reversed the district court’s vacatur of an award because the
arbitrator, like the Tribunal here, had merely interpreted the parties’ contract and
had not modified it by issuing a ruling contradicting the express language of the
contract. Id. at 1088, 1093.
18 § 682.13, Fla. Stat., the Florida domestic arbitration statute upon which
INPROTSA erroneously premised its Petition to Vacate, essentially mirrors
9 U.S.C. § 10(a) which sets forth the grounds for vacatur in a case governed by
Chapter 1 of the FAA. But INPROTSA would not fare any better under Florida
law than it does under federal law. Under Florida law, errors in judgment as to the
facts or the law, including errors in contract interpretation, application of the law,
or the weighing of evidence, are not grounds for vacatur under § 682.13(1).
Visiting Nurse Ass’n of Fl., Inc. v. Jupiter Medical Ctr., Inc., 154 So. 3d 1115,
1134 (Fla. 2014) (“section 682.13(1) is directed at arbitral misconduct or lack of
authority, and not mere errors of law, or errors of construction or interpretation of a
contract;” therefore, arbitrators who interpreted a contract inconsistent with the
contract’s terms or in a manner that would violate state or federal law “did not
exceed its powers”); Marr v. Webb, 930 So. 2d 734, 738 (Fla. 3d DCA 2006)
(“The arbitration panel ‘is the sole and final judge of the evidence and the weight
to be given to it,’ and we will not review the findings of fact contained in its
arbitration award” as grounds that the arbitrator exceeded its authority) (citation
omitted); Alterman v. Marin-Busutil, 716 So. 2d 849, 849 (Fla. 4th DCA 1998)
(“The errors claimed by appellant all relate to errors in the arbitrator’s factual
findings, conclusions, or interpretation of the contract, not to those factors
enumerated in section 682.13(1)(a)-(e), which would justify a trial court in
vacating an arbitrator’s decision.”).
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either the New York Convention or Chapter 1 of the FAA, the record firmly
establishes that the Tribunal did not err in its interpretation of the Agreement or in
the amount of damages it awarded to Del Monte. See supra at 8, 10-11.19
V. Confirmation of the Final Award Was Proper
INPROTSA argues that the Confirmation Order should be reversed because
the District Court (1) improperly determined that the Petition to Vacate was time
19 As noted, these are the only purported grounds for vacatur even mentioned by
INPROTSA in its Brief. INPROTSA Brief, at 41-42. The other supposed grounds
raised by INPROTSA in the District Court are also without merit. First, the
Tribunal properly rejected INPROTSA’s contention that the geographic time and
scope of the restrictive covenants was unreasonable, ECF 1:98, 136 at ¶¶ II.16,
VI.122(i) (I App. 1[C]). The Tribunal limited the scope of the post-termination
covenants to MD-2 plant stock derived from seeds supplied by Del Monte, gave
INPROTSA the option to replace existing MD-2 plant stock in stages over a
14-month growth cycle, and gave INPROTSA the option to sell its MD-2
pineapples to Del Monte at the same prices paid to Del Monte’s other independent
growers. ECF 1:100-101, 124-128, 136-137, at ¶¶ II.27(iv), V.84-96, VI.122 (I
App. 1[C]). Second, contrary to INPROTSA’s contention, the Tribunal did not
hold that any of INPROTSA’s defenses were time-barred; rather, it found certain
of INPROTSA’s counterclaims time-barred, and regardless, INPROTSA was
permitted to provide evidence and legal arguments as to all of its defenses, even
though they were ultimately rejected based on the entire evidentiary record
presented. ECF 1:90-95, 98, 121-122, 136, at § I, ¶¶ II.16, V.73-75, V1.122(i) (I
App. 1[C]). Third, contrary to INPROTSA’s claim that the Tribunal did not give
proper weight to the Baeza Letter, the Tribunal admitted the Baeza Letter into
evidence, considered it, and gave it no probative weight in light of the contrary
testimony by INPROTSA’s former production manager and the former Costa
Rican Minister of Agriculture, who had “no interest in this proceeding and [whose]
testimony was credible and unrefuted by INPROTSA.” ECF 1:111-112, 118-119,
at ¶¶ V.52, 66 (I App. 1[C]); ECF 20-1:7, at ¶ 29 (DM App. 20-1); ECF 20-2:4, at
¶ 9 (DM App. 20-2).
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barred under 9 U.S.C. § 12 and, therefore, that INPROTSA had waived its right to
assert defenses to confirmation and (2) failed to consider the merits of
INPROTSA’s “defenses” to confirmation.20 INPROTSA Brief, at 42-43.
INPROTSA is incorrect.
Courts in this Circuit have held that a petition to vacate an international
arbitral award governed by the New York Convention is subject to a three month
statute of limitations pursuant to 9 U.S.C. § 12. Gonsalvez, 935 F. Supp. 2d at
1331. 9 U.S.C. § 12 provides, in relevant part:
Notice of a motion to vacate, modify, or correct an award must be
served upon the adverse party or his attorney within three months
after the award is filed or delivered…. If the adverse party shall be a
nonresident then the notice of the application shall be served by the
marshal of any district within which the adverse party may be found
in like manner as other process of the court.
(emphasis supplied).21 Service must be effected pursuant to Rule 4, Fed. R. Civ.
20 INPROTSA also contends that the District Court did not have subject matter
jurisdiction to consider Del Monte’s Cross-Petition to Confirm, but that argument
fails for the reasons stated supra at 15-25.
21 INPROTSA did not raise below, and therefore waived, the argument that Del
Monte has a subsidiary in Florida and that, as a result, is a resident for purposes of
service of process under 9 U.S.C § 12. Nonetheless, INPROTSA purports to
challenge on appeal the District Court’s finding that “Del Monte does not have a
subsidiary in Florida.” ECF 47:13, n.2 (III App. 47). INPROTSA Brief, at 10, n.1
and 47. Even if the presence of a subsidiary were sufficient for residency
purposes, INPROTSA presented no evidence below of the existence of a Del
Monte subsidiary in Florida. Indeed, the “evidence” to which INPROTSA now
cites, i.e., fee statements from Del Monte’s counsel addressed to “Del Monte Fresh
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P., not by email or other means. Americatel El Salvador, S.A. de C.V. v. Compania
de Telecomunicaciones de El Salvador, S.A. de C.V., 2007 WL 2781057, *1-2
(S.D. Fla. Sept. 19, 2007) (service by FedEx and without a summons was
insufficient under 9 U.S.C. § 12 and Rule 4); Belz v. Morgan Stanley Smith
Barney, LLC, 2014 WL 897048, *4-7 (M.D. Fla. Mar. 6, 2014) (motion to vacate
arbitral award was time barred due to failure to strictly comply with service
requirements under 9 U.S.C. § 12, and actual notice through email to counsel was
insufficient to cure the defect); Ikon Global Markets, Inc. v. Appert, 2011 WL
9687842, *2-3 (W.D. Wash. Jul. 28, 2011) (requiring strict compliance with Rule 4
service requirements for nonresidents).22
INPROTSA concedes that it did not serve the Petition to Vacate pursuant to
Rule 4.23 Instead, INPROTSA requested Del Monte’s counsel to accept service of
Produce Company” in Florida, ECF 65 (III App. 65), do not establish a corporate
subsidiary relationship.
22 INPROTSA relies on Possehl, Inc. v. Shanghai Hia Xing Shipping, 2001 WL
214234 (S.D.N.Y. Mar. 1, 2001), Matter of Arbitration between InterCarbon
Bermuda Ltd. and Caltex Trading & Transp. Corp., 146 F.R.D. 64 (S.D.N.Y.
1993), and Escobar v. Shearson Lehman Hutton, Inc., 762 F. Supp. 461 (D.P.R.
1991), INPROTSA Brief, at 46-50, which are factually distinguishable and
contrary to the express language of the nonresident provision of 9 U.S.C. § 12 and
to the policy in this Circuit requiring strict compliance with the service
requirements of Rule 4. ECF 19:9-10 (DM App. 19).
23 INPROTSA does not contend that it served the Petition to Vacate pursuant to
Chapter 48, Florida Statutes, governing service of process.
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the Petition on behalf of Del Monte, which Del Monte’s attorney declined to do.
ECF 19:10, ECF 19-3 (DM App. 19-3). Accordingly, the District Court ruled
correctly that INPROTSA’s Petition to Vacate had not been properly served and
was, therefore, untimely. ECF 47:12-14 (III App. 47).
Second, INPROTSA argues that even if its Petition to Vacate was time
barred, it was not precluded by this Court’s holding in Cullen v. Paine, Webber,
Jackson & Curtis, Inc., 863 F.2d 851 (11th Cir. 1989), from raising different
defenses to confirmation of the Final Award than it could have raised in its vacatur
petition. The very premise of INPROTSA’s argument is fallacious. As has been
made abundantly clear by this Court in Industrial Risk and Costa, the grounds to
vacate an arbitral award governed by the New York Convention are identical to the
grounds to defeat the award’s confirmation. Therefore, when INPROTSA missed
the deadline under 9 U.S.C. § 12 to serve its Petition to Vacate and raise
Convention defenses, it was precluded under Cullen from raising the same
Convention defenses in an effort to defeat confirmation.
Third, contrary to INPROTSA’s contention, INPROTSA Brief, at 50-51, the
District Court did address and reject each of INPROTSA’s purported defenses to
confirmation in its Confirmation Order. The District Court explicitly rejected
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INPROTSA’s fraud defense as a valid public policy defense24 and as an improper
“rehash” of the arguments raised by INPROTSA in the arbitration and rejected by
the Tribunal. ECF 47:9-10 (III App. 47). The District Court held:
The arbitration tribunal ruled on the merits and simply disagreed with
INPROTSA that there was fraud in the inducement. To rule otherwise
would mean that any losing party raising a fraud defense in an
international arbitration, could relitigate the issue in federal court.
Id. at 10. Further, the very premise of INPROTSA’s argument -- that it is a
violation of public policy to enforce a contract procured by fraud -- is erroneous.
Under Florida law, when a party claims that it was fraudulently induced to execute
a contract and sues for damages (as INPROTSA did in the arbitration by way of
counterclaim), the contract is deemed ratified and the defrauded party is obligated
to perform its end of the bargain. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours
& Co., 761 So. 2d 306, 313 (Fla. 2000); Democratic Rep. of the Congo v. Air
Capital Gp., LLC, 2013 WL 3223686, *8-9 (S.D. Fla. Jun. 24, 2013) (“When a
party seeks damages for a fraudulent inducement claim, it affirms the contract, and
thus ratifies the terms of the agreement.”). Consequently, even if the Court were to
adopt INPROTSA’s unfounded belief that Del Monte was guilty of fraud, the
Tribunal did not violate public policy by enforcing the Agreement.
24 The District Court noted that the “arbitration panel’s consideration and ruling on
the merits of INPROTSA’s fraud defense does not violate the ‘most basic
notions of morality and justice’” requiring this Court to deny confirmation of the
arbitral award.” ECF 47:10 (III App. 47).
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INPROTSA’s other two public policy arguments against confirmation (not
raised by INPROTSA in its Brief) were also appropriately rejected by the District
Court: (1) The Tribunal’s decision not to attribute probative value to the Baeza
Letter was caused by INPROTSA’s election not to list Mr. Baeza as a witness or to
submit a sworn declaration signed by him, and because it was contrary to
overwhelming sworn evidence in the record. ECF 47:10-11 (III App. 47). The
District Court noted: “Evidentiary decisions are not grounds to refuse confirmation
of an arbitral award under the New York Convention’s public policy defense.” Id.
at 11. (2) The Tribunal’s decision to enforce the provision of the Agreement
requiring the return or destruction of MD-2 plants grown from Del Monte-supplied
seeds was not “contrary to notions of justice,” id., at 12, but merely enforced the
parties’ agreement “to restrict the use of the property, the seeds, regardless of who
technically owns them.” Id.
Only after addressing the merits of INPROTSA’s defenses to confirmation
and rejecting them, did the District Court address the statute of limitations issue as
an additional reason for confirming the Final Award: “To summarize the Court’s
conclusions, INPROTSA’s affirmative defenses to confirmation of the arbitral
award do not overcome the legal presumption in favor of confirming arbitral
awards. Even if the Court were to find INPROTSA’s objections meritorious, this
Court finds the objections untimely.” Id. at 12-14.
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VI. Remand of this Case Is Unnecessary and Unwarranted
Contrary to INPROTSA’s suggestion that the case should be “remand[ed]
for the District Court to consider the merits of INPROTSA’s vacatur petition in the
first instance, even if simply to modify the amount of the award,” and “to consider
INPROTSA’s defenses to confirmation on the merits,” INPROTSA Brief, at 41,
50-51, remand of this case is unnecessary and unwarranted. INPROTSA had an
opportunity to fully brief the merits of Del Monte’s Motion to Dismiss the Petition
to Vacate and Del Monte’s Cross-Petition to Confirm in the District Court. The
District Court considered the Petition to Vacate and the Cross-Petition to Confirm
on their merits and issued correct rulings on the merits of each. The record before
this Court is complete and sufficient to enable this Court to review de novo the
District Court’s rulings, Peebles v. Merrill Lynch, Pierce, Fenner & Smith, 431
F.3d 1320, 1324 (11th Cir. 2005), so there is no reason for remand. Reynolds v.
Chapman, 253 F.3d 1337, 1347 (11th Cir. 2001) (“remand unnecessary when
record is adequate to enable reviewing court to decide issue on appeal” and
“remand would waste judicial resources given the sufficiency of this record.”);
United States v. Kirksey, 425 F. App’x 858, 860 (11th Cir. 2011) (“‘A remand is
unnecessary, however, where the record on appeal is sufficient to enable review,’”
the court noting that, as here, the record “would not be further developed in any
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significant way upon remand.”) (citation omitted).25
More importantly, even if the stated reasons for the District Court’s rulings
were incorrect, there are additional grounds in the record upon which this Court
can, and should, affirm the Dismissal Order and the Confirmation Order. Big Top
Koolers, 528 F.3d at 844-45 “[W]e can affirm on any ground that finds support in
the record.”); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001)
(“We need not decide whether the district court properly resolved that issue if there
is another basis for affirming its judgment, because we may affirm its judgment on
any ground that finds support in the record.”).
CONCLUSION
For the foregoing reasons, Appellee, Del Monte International GmbH,
respectfully requests that this Court affirm the District Court’s Dismissal Order and
Confirmation Order.
25 The cases cited by INPROTSA, INPROTSA Brief, at 41, do not support its
request for remand. In Carden v. Arkoma Assocs., 494 U.S. 185 (1990), the
Supreme Court held only that it was appropriate for the circuit court to determine
whether the district court’s finding of diversity jurisdiction was correct. McDaniel
v. Bowen, 800 F.2d 1026, 1032 (11th Cir. 1986), involved a remand based on the
appellate court’s unwillingness to displace the fact-finding function of an
administrative agency. In Morosani v. First Nat’l Bank of Atlanta, 703 F.2d 1220,
1222 (11th Cir. 1983), the appellate court declined to consider alternate theories
raised by appellee in an interlocutory appeal because there would be further
development of the record below.
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Respectfully submitted,
By: s/ Brian J. Stack
Brian J. Stack, Esq.
Fla. Bar No. 476234
Email: [email protected]
Denise B. Crockett, Esq.
Fla. Bar No. 327913
Email: [email protected]
Lazaro Fernandez, Jr.
Fla. Bar No. 716545
Email: [email protected]
Robert Harris
Fla. Bar No. 817783
Email: [email protected]
STACK FERNANDEZ & HARRIS, P.A.
1001 Brickell Bay Drive
Suite 2650
Miami, Florida 33131
Telephone: 305.371.0001
Facsimile: 305.371.0002
Attorneys for Appellee, Del Monte
International GmbH
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,
TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS
1. This document complies with the word limit of Fed. R. App. P.
32(a)(7)(B) because, excluding the parts of the document exempted by Fed. R.
App. P. 32(f) and Eleventh Circuit Rule 32-4:
X this document contains 12,860 words, or
___ this brief uses a monospaced typeface and contains [state the number of] lines
of text.
2. This document complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because:
X this document has been prepared in a proportionally spaced typeface using
Microsoft Word 2016 in 14 point font Times New Roman, or
___ this document has been prepared in a monospaced typeface using [state name
and version of word-processing program] with [state number of characters per inch
and name of type style].
By: s/ Brian J. Stack
Brian J. Stack, Esq.
Dated: November 30, 2017
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th day of November 2017 I
electronically filed the foregoing document with the Clerk of Court by using the
CM/ECF system. I further certify that the foregoing is being served this day upon
all counsel of record or pro se parties identified in the following Service List in the
manner specified, either via transmission of Notices of Electronic Filing generated
by CM/ECF or in some other authorized manner for those counsel or parties who
are not authorized to receive electronically Notices of Electronic Filing.
By: s/ Brian J. Stack
Brian J. Stack, Esq.
SERVICE LIST
Richard C. Lorenzo
Email: [email protected]
Alvin F. Lindsay
Email: [email protected]
Dwayne A. Robinson
Email: [email protected]
Zachary A. Lipshultz
Email: [email protected]
HOGAN LOVELLS US LLP
600 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 459-6500
Facsimile: (305) 459-6550
Attorneys for Appellant
[Via CM/ECF and U.S. Mail]
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