U.S.C.A. CASE NOS. 16-17623; 17-12163 · Case No. 1:16-cv-24275-FAM RESPONSE BRIEF OF APPELLEE DEL...

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


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.”


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.


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


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


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


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


Brief for Respondent (S. Ct.),

2013 WL 5819691 (Oct. 25, 2013)……………………………….

33

* Citations marked with an asterisk are those upon which Appellee

principally relies.


viii

Cases Page(s)


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


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


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


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


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


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


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


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


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,


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).


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]).


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


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


6

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.


7

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]).


8

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]).


9

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]).


10

(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


11

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.


12

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


13

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).


14

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.


15

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


16

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


17

(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.


18

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....”).


19

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


20

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.


21

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.


22

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.


23

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


24

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).


http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=9USCAS205&originatingDoc=I6bfcb0ebcda311df84cb933efb759da4&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)

25

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.


26

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,


27

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).


28

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


29

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.


30

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


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


32

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)


33

(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).


34

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


35

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.”).


36

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


37

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.


38

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


39

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


40

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


41

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.”).


http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000006&cite=FLSTS682.13&originatingDoc=I76e12f80702411e49488c8f438320c70&refType=SP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_f1c50000821b0

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000006&cite=FLSTS682.13&originatingDoc=I6b1e88b90e8611d9bde8ee3d49ead4ec&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)

42

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).


43

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


44

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.


45

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


46

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).


47

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.


48

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


49

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.


50

Respectfully submitted,

By: s/ Brian J. Stack


Fla. Bar No. 476234

Email: [email protected]

Denise B. Crockett, Esq.

Fla. Bar No. 327913


Lazaro Fernandez, Jr.

Fla. Bar No. 716545


Robert Harris

Fla. Bar No. 817783


STACK FERNANDEZ & HARRIS, P.A.

1001 Brickell Bay Drive

Suite 2650


Telephone: 305.371.0001

Facsimile: 305.371.0002

Attorneys for Appellee, Del Monte

International GmbH


mailto:[email protected]

mailto:[email protected]

51

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].



Dated: November 30, 2017


52

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.



SERVICE LIST

Richard C. Lorenzo


Alvin F. Lindsay


Dwayne A. Robinson


Zachary A. Lipshultz


HOGAN LOVELLS US LLP

600 Brickell Avenue


Telephone: (305) 459-6500

Facsimile: (305) 459-6550

Attorneys for Appellant

[Via CM/ECF and U.S. Mail]


U.S.C.A. CASE NOS. 16-17623; 17-12163 · Case No. 1:16-cv-24275-FAM RESPONSE BRIEF OF APPELLEE DEL...

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Transcript of U.S.C.A. CASE NOS. 16-17623; 17-12163 · Case No. 1:16-cv-24275-FAM RESPONSE BRIEF OF APPELLEE DEL...