Case: 17-11993 Date Filed: 06/29/2017 Page: 1 of 37

Case No. 17-11993

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________________________

DOES 1-98 v. BOIES SCHILLER & FLEXNER LLP

__________________________________________

On Appeal from the United States District Court for the

Southern Distrct of Florida, Cases No. 10-cv-60573, 13-cv-80146
(The Honorable Kenneth A. Marra)

_________________________________________

OPENING BRIEF OF APPELLANTS DOES 1-98

_________________________________________

Paul Wolf, CO Bar #42107

Attorney for Does 1-98
P.O. Box 46213
Denver, CO 80201
(202) 431-6986
fax: n/a
paulwolf@yahoo.com

June 29, 2017

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CERTIFICATE OF INTERESTED PERSONS

Pursuant to Eleventh Circuit Rule 26.1-1, counsel for Appellants,

Does 1-98, certifies that the following is a complete list of the trial judge(s),

all attorneys, persons, associations of persons, firms, partnerships, or

corporations (noted with its stock symbol if publicly listed) that have an

interest in the outcome of the particular case on appeal, including

subsidiaries, conglomerates, affiliates, and parent corporations, and other

identifiable legal entities related to a party, known to Appellants, as follows:

Does 1-98, whose identities are known to the District Court

Lee S. Wolosky

Nicholas A. Gravante Jr.

Magda M. Jimenez Train

Sigrid S. McCawley

Stephen N. Zack

Karen C. Dyer

Douglass A. Mitchell

The other partners of Boies Schiller & Flexner, LLP

John Scarola

Searcy Denney Scarola Barnhardt & Shipley, LLP

Heli Abel Torrado

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Jhon Ivan Polo

Walter LNU

Viviana Muoz

Ginna LNU

Cristina LNU

Nelson Marin

Yolanda Marin

Paul David Wolf

Chiquita Brands International, Inc., and all subsidiaries and affiliates.

Covington & Burling, LLP

Blank Rome, LLP

The Honorable Kenneth A. Marra (SDFL)

The Honorable Paul L. Friedman (DCDC)

/s/ Paul Wolf

______________________
Paul Wolf, CO Bar #42107

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ................................... i

TABLE OF CONTENTS ...................................................................... iii

TABLE OF CITATIONS ...................................................................... v

STATEMENT REGARDING ORAL ARGUMENT .......................... 1

JURISDICTIONAL STATEMENT ..................................................... 1

STATEMENT OF THE ISSUES UNDER REVIEW .......................... 2

STATEMENT OF THE CASE ............................................................ 2

A. The Course of Proceedings and Disposition in the

Court Below. ............................................................................ 2

B. The Facts Relevant to the Issues Submitted for Review. .......... 4

STANDARD OF REVIEW .................................................................. 8

SUMMARY OF ARGUMENT ............................................................ 8

ARGUMENT ........................................................................................ 10

I. The Appellants have Constitutional standing because the

unauthorized representation, which has gone on now for
six years, is an invasion of their legally protected right to
prosecute their own claims. ........................................................ 10

II. Allegations of actual, financial damages are not required to

state claims for legal malpractice or invasion of privacy. ........... 14

A. Actual damages are not elements of claims for

malpractice or invasion of privacy. ................................... 14

1. Legal Malpractice ................................................... 14

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2. Invasion of Privacy ................................................. 16

B. Attorneys fees are recoverable in malpractice

actions. ............................................................................. 19

C. In both Florida and the District of Columbia, an

award of nominal damages is sufficient to support
an award of punitive damages. ......................................... 20

1. Florida .................................................................... 21

2. The District of Columbia ....................................... 23

III. The District Court erred by dismissing Appellants claims

for fraud, malpractice and invasion of privacy with prejudice
after finding they were unripe, rather than staying or
abating the claims. ...................................................................... 24

CONCLUSION AND RELIEF REQUESTED .................................. 26

CERFITICATE OF COMPLIANCE WITH WORD LIMITS ...... 27

CERTIFICATE OF SERVICE .......................................................... 28

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TABLE OF CITATIONS

CASES

Adler v. Seligman of Florida, Inc.,

438 So.2d 1063 (Fla.Dist.Ct.App. 1983) ............................................... 22

ADT LLC v. NorthStar Alarm Services, LLC,

2017 WL 1364978 (11th Cir. 2017) ...................................................... 8

AfroAmerican Publishing Co. v. Jaffe,

366 F.2d 649 (D.C. Cir. 1966) (en banc) .......................................... 23-24

American Home Life Insurance Co. v. Cerrone,

43 App.D.C. 508 (1915) ....................................................................... 23

American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr.

& Assoc., 743 F.2d 1519 (11th Cir. 1984) ........................................... 26

Angrand v. Fox, 552 So.2d 1113 (Fla. 3rd Dist. Ct. App. 1989) ......... 24

Ault v. Lohr, 538 So.2d 454 (Fla. 1989) ............................................... 21

Bay General Industries, Inc. v. Johnson,

418 A.2d 1050 (D.C.1980) ................................................................... 23

Bennett v. Spear, 520 U.S. 154 (1997) ................................................. 11

Bierman v. Miller, 639 So.2d 627 (Fla. 3rd Dist. Ct. App. 1994) .......... 25

Burgess v. Lippman, 929 So.2d 1097

(Fla. 4th Dist. Ct. App. 2006) ........................................................... 24-25

Carranza v. Fraas, 763 F.Supp.2d 113 (D.D.C. 2011) ......................... 14

Chudasama v. Mazda Motors Corporation,

123 F.3d 1353 (11th Cir. 1997) ............................................................. 8

Colorado River Water Conservation District v. United States,

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424 U.S. 800 (1976) ............................................................................ 25-26

Council on American-Islamic Relations Action Network, Inc.

v Gaubatz et al, 82 F.Supp.3d 344 (D.D.C. 2015) ................................ 15

District of Columbia v. Watkins, 684 A.2d 395 (D.C. 1996) ............... 15

Drummond v. Collingsworth (Case No. 16-11090, 11th Cir) .............. 13

Fisher v. City of Miami, 172 So.2d 455, 457 (Fla.1965) ...................... 22

Franklin Investment Co. v. Homburg, 252 A.2d 95 (D.C.1969) .......... 24

Gianassi v. State Farm Mut. Auto. Ins. Co.,

60 F.Supp.3d 1267 (MDFL 2014) ......................................................... 25

Hensley v. Paul Miller Ford, Inc., 508 S.W.2d 759 (Ky. 1974) ............ 22

Hillbroom v. PricewaterhouseCoopers LLP,

17 A.3d 566 (D.C. 2011) ......................................................................... 19

Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) .................................. 15

Knight v. Furlow, 553 A.2d 1232 (D.C.1989) ........................................ 19

Lampert v. Judge and Dolph Drug Co.,

141 S.W. 1095 (1911) ............................................................................ 21

Lassiter v. Int'l. Union of Operating Eng'rs,

349 So.2d 622 (Fla. 1976) ................................................................... 21-22

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................ 10

McKnight v. Blanchard, 667 F.2d 477 (5th Cir.1982) .......................... 26

NB ex. rel. Peacock v. District of Columbia,

682 F.3d 77 (D.C. Cir. 2012) ................................................................ 11

O'Neil v. Bergan, 452 A.2d 337 (D.C. 1982) ....................................... 15

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Peay v. Curtis Pub. Co., 78 F.Supp. 305 (D.D.C.1948) .................... 16-17

Perez-Abreu, Zamora & De La Fe, P.A. v. Taracido,

790 So.2d 1051 (Fla. 2001) .................................................................. 24

Price v. Griffin, 359 A.2d 582 (D.C.1976) ........................................... 23

R.D.H. Communications, Ltd. v. Winston,

700 A.2d 766 (D.C. 1997) ..................................................................... 10

Randolph v. ING Life Insurance and Annuity Co.,

973 A.2d 702 (DC. 2009) ...................................................................... 16

Robinson v. Sarisky, 535 A.2d 901 (D.C. 1988) ............................... 22, 23

Roe v. Wade, 410 U.S. 113 (1973) ........................................................ 13

Shapiro, Lifschitz & Schram, P.C. v. Hazard, 24 F.Supp.2d 66,

(D.D.C.1998) ......................................................................................... 16

Sherley v. Sebelius, 610 F.3d 69, 74 (D.C.Cir. 2010) ........................... 11

Sierra Club v. Morton, 405 U.S. 727 (1972) ......................................... 11

Smith v. District of Columbia, 336 A.2d 831 (D.C.1975) .................... 24

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ............................................................................. 12, 20

Tampa Electric Co. v. Ferguson, 118 So. 211 (1928) ........................... 21

Town Center Management Corp. v. Chavez,

373 A.2d 238 (D.C. 1977) ................................................................. 23, 24

United Securities Corp. v. Franklin, 180 A.2d 505 (D.C.1962) ............ 22

Vassiliades v. Garfinckels, Brooks Brothers,

Miller & Rhoades, Inc., 492 A.2d 580 (D.C.1985) ............................ 16, 23

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Vermont Agency of Natural Resources v. U.S. ex rel. Stevens,

529 U.S. 765 (2000) .............................................................................. 11

WardmanJustice Motors, Inc. v. Petrie,

39 F.2d 512 (1930) ............................................................................... 23

Washington Post Co. v. ODonnell,

43 App.D.C. 215, cert. denied, 238 U.S. 625 (1915) ........................... 23

Williams v. Atlantic Coast Line R.R. Co.,

48 So. 209 (1908) ................................................................................. 21

Wolf v. Regardie, 553 A.2d 1213 (D.C. 1989) .................................... 17

CONSTITUTION AND STATUTES

U.S. Constitution, Article III ........................................................ 10, 12, 20

28 U.S.C. 1291 .................................................................................... 1

28 U.S.C. 1332 .................................................................................... 1

RULES OF PROCEDURE

F.R.C.P. 12(b)(1) ............................................................................. 1, 2, 10

F.R.C.P. 12(b)(6) .................................................................................. 2, 14

SECONDARY AUTHORITY

Restatement 2d of Torts (1977) ............................................................ 11

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STATEMENT REGARDING ORAL ARGUMENT

The Appellant believes that oral argument would be helpful to the

disposition of this appeal. This case presents novel questions concerning

whether the use of fraudulent means to steal the clients of another lawyer is

an actionable tort. Oral argument would help the Court evaluate this

question.

JURISDICTIONAL STATEMENT

The Court has jurisdiction over this appeal pursuant to 28 U.S.C.

1291. On April 26, 2017, the District Court dismissed this action in a Final

Judgment of Dismissal with Prejudice, for lack of subject matter jurisdiction

under F.R.C.P. 12(b)(1). D.E. 87. Appellants timely filed a Notice of

Appeal in District Court on April 30, 2017. D.E. 88.

The Plaintiffs allege subject-matter jurisdiction over their claims for

violations of the state tort laws of the District of Columbia and Florida,

which are brought in diversity pursuant to 28 U.S.C. 1332. The plaintiffs

are all Colombians, and the Defendants have partners and offices across the

United States. This appeal is from a final judgment that disposes of all

parties' claims.

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STATEMENT OF THE ISSUES UNDER REVIEW

1. Whether the District Court erred by finding that Appellants lacked

Constitutional standing where the "injury in fact" was the usurpation of their

claims by fraudulent means.1

2. Whether the District Court erred by dismissing Appellants claims for

fraud, malpractice and invasion of privacy with prejudice after finding they

were unripe, rather than staying or abating the claims.

STATEMENT OF THE CASE

A. The course of proceedings and disposition in the court below.

Nearly three years into this dispute, 97 of the individuals with

duplicate claims filed suit in D.C. District Court, alleging fraud, malpractice,

invasion of privacy and related torts. The Joint Panel on Multidistrict

Litigation transferred the case to the Southern District of Florida, assigning

it case number 13-cv-80146-CIV-MARRA. The Appellees filed two

motions to dismiss, dated February 4, 2013 and March 4, 2013, asserting

that Appellants had failed to state a claim and that the District Court had no

subject matter jurisdiction. D.E. 11 (13-cv-80146), 613 (08-1916-MD).

1
In the Civil Appeal Statement, this issue was incorrectly stated as
"Whether the District Court erred by finding that under the laws of Florida
and the District of Columbia, allegations of actual damages are required to
state claims for legal malpractice and invasion of privacy." The District
Court dismissed the claims pursuant to Rule 12(b)(1), not 12(b)(6).
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The District Court treated the transferred complaint as a Motion to

Disqualify in the Appellees underlying case against Chiquita Brands. ("the

Court concludes that the instant Complaint -- to the extent it seeks

declaratory and injunctive relief determining the proper legal representatives

of Does 1-98 -- should not have been filed as a separate complaint seeking

declaratory relief, but rather as a motion to disqualify Boies Schiller and

enjoin it from unauthorized representation of Does 1- 98 in the Montes

litigation.") D.E. 48 at 7. The District Court ordered the parties to confer

within 30 days of the Order to determine the representation issues before it

could consider the Appellants claims. D.E. 48 at 11. Counsel for the

parties met in Denver, CO, and determined that in all but eight cases, Paul

Wolf would continue to represent the Appellant, and the Appellees would no

longer claim to represent them. See Joint Status Report Re: Dual

Representation Issues, D.E. 56. For the remaining eight duplicate claims,

either the signatures didnt match, or there was some other reason to believe

that counsel had signed contracts with different people. Id.

After the representation issue had been resolved 100% in Wolfs

favor, the Appellants filed their First Amended Complaint. D.E. 64. On

December 19, 2016, the Appellee then filed another Motion to Dismiss, for

lack of subject matter jurisdiction and failure to state a claim. After the

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issues were briefed a second time, on April 26, 2017, the District Court

dismissed Appellants claims for lack of subject matter jurisdiction, with

prejudice. D.E. 1390.2 In this Order, the District made no comment on the

Appellee's Motion to Dismiss for Failure to State a Claim. This appeal

followed.

B. The Facts Relevant to the Issues Submitted for Review.

In the Spring of 2010, undersigned counsel was working in the jungle

town of Apartad, Colombia, when the phones began to ring. For three

years, my staff and I had been documenting thousands of murder cases

committed by the Colombian Autodefensas Unidas de Colombia ("AUC")

and the Fuerzas Armadas Revolucionarias de Colombia ("FARC"). In

March of 2007, Chiquita Brands International, Inc. pled guilty in D.C.

District Court to felony charges of engaging in financial transactions with

Specially Designated Terrorist Groups; namely, the FARC and AUC.

In May of 2007, I traveled to Apartad to announce my plans to sue

Chiquita and find clients for a civil action based on the criminal case. Over

the years, by employing four residents of the Urab region, I was able to put

together more than 2000 of these cases, which were filed in five different

2
This Opinion was only filed in the main MDL case, 08-1916-MD, so this
docket entry was used. Other documents in the Appendix were only filed in
the individual cases but not in the main MDL. Although the citations may
appear inconsistent, the record below is spread among three dockets.
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complaints. I wasn't the only attorney to see the merits of this case. A total

of six other Plaintiffs' groups filed their own complaints, representing

several thousand other victims of the AUC in Urab, Santa Marta, and other

regions of Colombia.3

The reason our phones started ringing in February of 2010 was that

the Appellee, Boies Schiller & Flexner, LLP, had learned of our case and

employed the Colombian law firm of Heli Abel Torrado y Asociados, SA.,

(Torrado) to find its own clients in the same town where I had by that time

developed more than 1000 cases. The Torrado firm used unethical methods

to solicit them. For example, Torrado hired at least one official working at

Accin Social,4 a program of the Office of the President of Colombia that

provides financial and other benefits to victims of Colombia's long-running

war. As the victims applied for their Accin Social benefits, they were also

3
I jointly represent the first 173 cases with Conrad & Scherer, solely
represent another 976 against Chiquita Brands International, Inc., and solely
represent another 1170 cases which are only against Individual Defendants.
I also represent another 405 cases committed by the FARC, which the
District Court has said are time-barred. The other plaintiffs counsel have
not publicly disclosed the number of cases they represent. It appears from
their filings that they represent another two to three thousand cases. These
cases were transferred by the Joint Panel on Multidistrict Litigation to the
Southern District of Florida for MDL proceedings.
4
The individual, named Jhon Ivan Polo, was a government employee at the
time he solicited my clients, and is now an attorney in private practice in
Urab. The Appellees have not disclosed whether or how Mr. Polo was to
be compensated, and no formal discovery was conducted in the case below.
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offered forms to sign to sue Chiquita Brands, International, Inc. This

appears to violate the Foreign Corrupt Practices Act and confused many

people about the role of the Colombian government in this case.

About 150 of my existing clients were duped into signing retainer

agreements by Torrados agents, for whom the Appellees filed duplicate

claims. I brought this to the Appellees attention at the time, and provided a

spreadsheet of information about the 150 duplicate claims. After nearly

three years, it appeared that a statute of limitations was about to run, and 97

of the 150 individuals filed suit.5 Before filing suit, I had the Notario in

Apartad ask each of them a series of questions under oath.6 The Appellants

all affirmed that by signing these forms, they never intended to change

attorneys. The Appellants also described numerous false statements made to

induce them to sign the agreements.7

5
Although the case caption says "Does 1-98," one case was a duplicate.
6
A notario is a minor judicial official comparable to a magistrate in the
U.S., who takes sworn statements and provides other functions in addition to
authenticating documents.
7
The known false statements, as related by Appellants in their sworn
testimony, are summarized in parentheticals herein. Doe 19 (Appellee's
agents told Appellant that Asesorias Paul had disappeared); Doe 24
(Appellee 's agents told Appellant they worked for Paul Wolf.); Doe 27 ("I
asked [Appellee's agents working in Ciudadela] if Heli Abel was the same
[as Paul] and they said yes."); Doe 31 (Appellant only gave his documents to
Appellee's agents at the Ciudadela thinking they would be delivered to
Paul); Doe 53 (Appellant states that "It was all a trick."); Doe 32 (Appellee's
agents told Appellant that Asesorias Paul had disappeared); Doe 33
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Since the problem of client overlap among plaintiffs counsel was

broader than this, in the summer of 2011, the plaintiffs counsel all agreed

that John Hopkins, an IT specialist working for plaintiffs' counsel Searcy

Denney Scarola Barnhardt & Shipley LLP, would collect information about

all the cases and run a duplicates report. This was done on about

September 22, 2011.8 Mr. Hopkins also collected the dates when the

Appellants signed the agreements, and determined (as I did) that in 100% of

the cases, my contracts were signed before those of the Appellees.

Nevertheless, the Appellees refused to address this issue for the past six

(Appellee's agents said they were receiving documents for Paul's case); Doe
38 (Appellee's agents said that they were "streamlining" the process in the
Chiquita case, and that Paul Wolf had left and abandoned the case, and that
Wolf's case had ended.); Doe 45 (Appellee's agents told Appellant that Paul
had lost all of her documents that she gave him); Doe 49 (At Don Diego's
mall, Appellee's agents told Appellant that they worked for Paul.); Doe 50
(Appellee's agents told Appellant that Paul's case had been terminated and
that Appellant would have to start all over again); Doe 56 (Appellant went to
Ciudadela because she thought it was Paul's case, then heard that Paul had
left and had abandoned the case; says she was lied to in order to get her to
sign the Heli Abel contract.); Doe 62 (Appellant asked Appellee's agents if
they were the same as Paul, and they replied in the affirmative); Doe 73
(Appellee's agents told her Paul's case had ended and that he would have to
start all over again.); and Doe 94 (Appellees agents told Appellant that they
could process her claim faster than Asesorias Paul.). Complaint at 7-8.
8
Mr. Hopkins computer search only found 88 duplicated claims between
undersigned counsel and the Appellees. However, I had previously gone
through Appellees complaint, typed in the names of every plaintiff, and ran
my own search. I found 150 duplicates this way, confirmed by the date of
the murder. The details of the overlapped cases were provided to the
Appellees in the Fall of 2011, and again on June 17, 2017 in response to the
District Court's Order, D.E. 1472.
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years, up to and including the present, despite a District Court Order

ordering "disclosures of all plaintiff identities and corresponding attorney

designations" by June 19, 2017. D.E. 1492 at 7-8.

STANDARD OF REVIEW

The Court reviews findings of fact for clear error and conclusions of

law de novo. ADT LLC v. NorthStar Alarm Services, LLC, 2017 WL

1364978 (11th Cir. 2017) When a litigant's rights are materially prejudiced

by the District Court's management of a case, the abuse of discretion

standard applies. Chudasama v. Mazda Motors Corporation, 123 F.3d 1353

(11th Cir. 1997)

SUMMARY OF ARGUMENT

The District Court erred by dismissing Appellants' claims with

prejudice for lack of subject matter jurisdiction. In finding that Appellants

had no standing to sue, the District Court reasoned that since there was no

adverse litigation outcome resulting from the duplicate representation,

Appellants had suffered no "injury in fact." This confuses the concepts of

"injury" and "damages." A property owner suffers an injury when someone

trespasses on their land. A victim of theft suffers an injury even if their

property is eventually returned. In this case, the right that was violated was

the Appellants' right to choose their own lawyer and prosecute their own

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claims. In addition, a family member of a person assassinated for political

reasons suffers an injury when her name is published, even if she cannot

prove that the publication has put her in danger, and whether or not the

publication of her name portrays her in a false light. Subsequent to the

publication of thousands of victims' names in the record of the MDL case

below, the District Court entered a Protective Order that treats the names of

the plaintiffs as Highly-Confidential, including those of the Appellants.

An injury is not the same as the "damages" which may flow from it.

A person may suffer an injury, and be vindicated in court, but only awarded

nominal damages. In this case, the appropriate measure of damages is a

separate issue, but may include attorneys fees for the work required to

extinguish the fraudulent claims, and punitive damages in an amount

necessary to deter the Appellees' malicious conduct. The Appellants have

also suffered actual damages through the publication of highly confidential

information about them - the fact that one of their family members was

assassinated by Colombian paramilitaries.

Even if this dispute over client representation is a distraction from the

underlying case against Chiquita Brands, the proper remedy would be to stay

or abate the dispute until the end of the case. After the bellwether trials

beginning October 28, 2019, the parties should either settle the remaining

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claims, or employ a mediator to resolve them. If this doesn't occur, and a

lengthy series of trials ensues, duplicate representation issues can be

addressed as they arise.

ARGUMENT

I. The Appellants have Constitutional standing because the

unauthorized representation, which has gone on now for six years,
is an invasion of their legally protected right to prosecute their
own claims.

Although the Defendants Rule 12(b)(1) challenge was couched in

terms of ripeness,9 the District Court analyzed it as a threshold injury in

fact Article III standing inquiry. D.E. 1390. at 8. However, rather than

considering whether the alleged injury - the usurpation of their claims - was

constitutionally sufficient, the District Court determined that since the

Appellants had not suffered any litigation consequence as a result of the

duplicate representation, there was no Constitutional "injury in fact." See

D.E. 1390 at 10. This is a pure legal issue subject to de novo review.

In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Supreme

Court held that even an aesthetic or psychological injury may constitute an

9
In the District of Columbia, a legal malpractice claim becomes ripe when
there is client knowledge of some injury, its cause, and related
wrongdoing. R.D.H. Communications, Ltd. v. Winston, 700 A.2d 766, 772
(D.C. 1997) Thus, the Appellants claims became ripe when they learned of
the duplicate representation and appeared at the notario's office to give
sworn declarations.
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injury in fact. 504 U.S. at 562-63, citing Sierra Club v. Morton, 405 U.S.

727 (1972). In Lujan, a desire along with a future plan to use a park for

recreational purposes was sufficient to serve as a basis for the non-economic

injury of being deprived of access to the park. This was an injury in fact that

was concrete and specific enough to confer standing.

Lujan was followed by Vermont Agency of Natural Resources v. U.S.

ex rel. Stevens, 529 U.S. 765, 772-773 (2000), which held that

Constitutional standing requires an action to consist of obtaining

compensation for, or preventing, the violation of a legally protected right.10

Id., citing Lujan, 504 U.S. at 560561. See Bennett v. Spear, 520 U.S. 154,

167 (1997); NB ex. rel. Peacock v. District of Columbia, 682 F.3d 77 (D.C.

Cir. 2012); Sherley v. Sebelius, 610 F.3d 69, 74 (D.C.Cir. 2010).

Here, the violation of the Appellants rights consisted of filing claims

in the names of their murdered family members using trickery and deceit.

The Plaintiffs' Complaint was necessary to prevent the ongoing violation of

the right to prosecute their own claims using an attorney of their choice.

Without this lawsuit, the Defendant would continue to represent these

10
The violated right need not be economic in nature. "Obtaining
compensation" refers to the remedy or the measure of damages.
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individuals and make decisions about their cases without the Plaintiffs'

consent, or the participation of their real attorney.11

The District Court erred by finding that the unauthorized

representation in court for six years, with full knowledge of the underlying

fraud, did not constitute an "injury in fact." Instead, the District Court held

that the cost and difficulty of bringing suit was merely a "byproduct" of the

suit itself, insufficient to give rise to a cognizable injury in fact for Article III

purposes, relying on Steel Co. v. Citizens for a Better Environment, 523

U.S. 83 (1998). D.E. 1390 at 10.

The error was to look at the remedy, or measure of damages, rather

than the fact that a legally protected interest (the right to choose your own

lawyer and not have people you've never heard of filing unauthorized claims

in your name) was violated. The six years already spent trying to recover

control over these cases is a measure of the damages, not the injury alleged.

If the 11th Circuit doesn't correct this, then the egregious conduct and

unethical treatment of clients described herein is not an actionable tort.

The underlying case is of a nature that the Court must step in to

protect the plaintiffs.12 First, due to the number of plaintiffs and lack of

11
The Appellees continue to press duplicate claims in District Court, despite
the District Court's Order. D.E. 1492.
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Spanish-speaking ability, and/or willingness to travel to this dangerous

region, there is no real attorney-client relationship for many of the plaintiffs

in the MDL. Many view this case as just another benefit they can apply for,

and have never met with any attorney, only intermediaries sent to Urab to

obtain powers of representation. Second, the experienced mass tort lawyers

who've become involved in this case view it in purely financial terms.

Third, an assumed common-interest privilege has allowed a RICO witness-

payment conspiracy to flourish right under the nose of courts in Alabama,

Florida, and California. Issues related to the RICO conspiracy are on appeal

in Drummond v. Collingsworth, Case No. 16-11090 (11th Cir.).

The District Court observed that disputes over client representation

are a distraction from the more important work that has to be done to move

the case forward. D.E. 1472 at 7. ("Against this backdrop, the Court

observes that judicial resources in this complex proceeding are better spent

on substantive issues rather than on internal disputes between plaintiffs

counsel over conflicting client representation and usurpation claims. The

Court sees little value and significant distraction in being asked to umpire

these disputes, and recommends that counsel for all involved parties attempt

12
Although not argued this way below, the Appellees' standard business
practices are "capable of repetition, yet evading review." Roe v. Wade, 410
U.S. 113 (1973).
13
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to resolve their differences privately.") The Appellees ignored my two

emails pursuant to this Order to confer by June 19, 2017, in which I once

again sent them the same spreadsheet of 150 duplicate claims, and also sent

it to Chiquita Brands International, since my understanding of the District

Court's Order is that the duplicate representation must be disclosed.

Appellants agree that the focus should be on the bellwether cases. This is

why a stay of the instant case was the proper remedy, not dismissal with

prejudice.

II. Allegations of actual, financial damages are not required to state

claims for legal malpractice or invasion of privacy.

Although the District Court did not reach Appellees' Rule 12(b)(6)

Motion to Dismiss for Failure to State a Claim, the Appellants will still show

that they have stated claims, since actual damages are not elements of claims

for either legal malpractice or invasion of privacy. This is a legal issue

subject to de novo review.

A. Actual damages are not elements of claims for legal

malpractice or invasion of privacy.

1. Legal Malpractice

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The elements of a claim for legal malpractice are essentially the

elements of a claim for negligence.13 A plaintiff must demonstrate (1) the

applicable standard of care; (2) a violation of that standard; and (3) a legally

cognizable injury as a result of such violation. Carranza v. Fraas, 763

F.Supp.2d 113, 122 (D.D.C. 2011) citing Kaempe v. Myers, 367 F.3d 958,

966 (D.C. Cir. 2004); O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982).

A uniform standard of care applies in actions for negligence:

reasonable care under the circumstances. 452 A.2d at 341. Inherent in such

reasonable care, however, is the requirement that those with special training

and experience adhere to a standard of conduct commensurate with such

attributes. Id. Thus, a lawyer must exercise that degree of reasonable care

and skill expected of lawyers acting under similar circumstances. Id. at 561.

Just as economic damages are not required to sustain a negligence claim,

they are also not required for professional malpractice, which is evaluated

using a negligence standard.

The standard of care in the attorney-client context includes a fiduciary

duty to the client. Under District of Columbia law, the elements of a claim

13
In an action for negligence, the plaintiff has the burden of proving the
applicable standard of care, a deviation from that standard by the defendant,
and a causal relationship between the deviation and the plaintiff's injury.
District of Columbia v. Watkins, 684 A.2d 395, 401 (D.C. 1996).

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for a breach of fiduciary duty are: (1) the existence of a fiduciary duty, and

(2) a violation of that duty that (3) proximately causes injury. Council on

American-Islamic Relations Action Network, Inc. v Gaubatz et al, 82

F.Supp.3d 344 (D.D.C. 2015); Shapiro, Lifschitz & Schram, P.C. v. Hazard,

24 F.Supp.2d 66, 75 (D.D.C.1998)). Breach of fiduciary duty was not pled

as a separate tort, but is inherent in any legal malpractice claim.

In this case, the harms complained of include publishing their names

without their consent, in a context that may put them in danger, and having

to spend the past six years trying to regain control over their cases, including

having each Appellant give a sworn statement before a Colombian notario,

in which they affirmed they had no idea who the Appellees or their agents

were, that they never intended to switch lawyers or to file duplicate claims,

and that they wished their names be kept out of the public record. These

sworn declarations were provided voluntarily to the Appellees even though

the District Court didn't order any discovery.

2. Invasion of Privacy

The District of Columbia has long recognized the common-law tort

of invasion of privacy. Randolph v. ING Life Insurance and Annuity Co.,

973 A.2d 702 (DC. 2009), quoting Vassiliades v. Garfinckels, Brooks

Bros., 492 A.2d 580, 587 (D.C. 1985). Among the invasions that may

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constitute this tort are public disclosure of private facts and intrusion

upon ones solitude or seclusion. Id., Vassiliades, 492 A.2d at 587 (citing

Peay v. Curtis Pub. Co., 78 F.Supp. 305, 309 (D.D.C.1948)) ([a] person

who unreasonably and seriously interferes with anothers interest in not

having his affairs known to others ... is liable to the other); Restatement 2d

of Torts 652B (1977) (One who intentionally intrudes ... upon the ...

seclusion of another or his private affairs or concerns, is subject to liability

to the other for invasion of his privacy, if the intrusion would be highly

offensive to a reasonable person).

In the District of Columbia, the related tort of intrusion upon seclusion

has three elements: (1) an invasion or interference by physical intrusion, by

use of a defendant's sense of sight or hearing, or by use of some other form

of investigation or examination, (2) into a place where the plaintiff has

secluded himself, or into his private or secret concerns (3) that would be

highly offensive to an ordinary, reasonable person. Wolf v. Regardie, 553

A.2d 1213, 1217 (D.C. 1989). There is no element that actual, financial

damages be incurred. It is the offensiveness of the intrusion that is the tort.

The publication of their names also portrays the Appellants in a false

light. The Appellee knows that its list of plaintiffs will be falsely interpreted

as a list of family members of guerrillas. That is the definition of false light

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invasion of privacy, that the information is true on its face, but is used to

create a false image; ie., portray someone in a false light.

The District Court reasoned that "[t]his argument rests on the highly

speculative fear that representatives of the AUC will, at some time in the

future, decide to target Plaintiffs for retribution based on their pursuit of

claims in this lawsuit against an American corporation..." D.E. 1390 at 9.

It's not the AUC representatives who are to be feared, though; it's the

individuals who personally committed these murders, few of whom were

ever prosecuted, and many of whom still live in the same places. Most of

the murders in the MDL below were never really investigated, but were later

part of a war crimes tribunal in which AUC paramilitary commanders

described their operations and confessed to murder claims made against

them by family members of the victims. The actual "trigger pullers" were

rarely identified, if known, and may or may not have demobilized with the

AUC in 2005. It's reasonable to assume that a significant number of them

would be concerned about an investigation of a murder they committed

which was never investigated. The Appellants don't have to be receiving

death threats to state claims for invasion of privacy.

The Doe Plaintiffs all have one thing in common: a close family

member was assassinated by paramilitary death squads. The assassination of

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one's husband or son because he was suspected of supporting the guerrillas

is a private and secret concern of the Doe Plaintiffs due to the public

perception of "guilt by association." When asked in a neutral manner, 95 of

the 97 original plaintiffs requested that their names be kept confidential and

not published in public recoreds. First Amended Complaint at 3, D.E. 64.

Nevertheless, the Appellees neglected to use Doe pseudonyms to protect

their identities, although every motion to proceed under pseudonyms made

by other counsel in the MDL have been granted.14

B. Attorneys fees are recoverable in malpractice actions.

Attorneys fees are commonly recovered in legal malpractice cases.

"To be sure, 'attorneys fees and costs expended as a result of an attorneys

alleged malpractice [can] constitute legally cognizable damages for purposes

of stating a claim for ... malpractice.' Hillbroom v. PricewaterhouseCoopers

LLP, 17 A.3d 566, 578 (D.C. 2011), citing Knight v. Furlow, 553 A.2d

1232, 1235 (D.C.1989). In Knight, the suit was against a defendant attorney

14
While I was in Colombia last month, I met wtih a client who asked me to
stop someone who is not a party to this lawsuit from publishing her late
husband's name on the internet. The decedent was well-known, but the
family (my client) does not want it known that he was assassinated by the
AUC. For some plaintiffs, it may endanger their lives, such as in cases in
which the killer is still an active paramilitary in the community, or in cases
where the victim could be viewed as an informer or spy. It also bears noting
that the main reason the District Court denied Chiquita's Motion to Dismiss
for Forum Non Conveniens, was that in the District Court's judgment, this
case would be too dangerous to litigate in Colombia.
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for negligence in drafting a will. The plaintiff began to incur damages, and

thus was injured, when he had to pay attorneys fees and court costs both

to defend his brothers challenge to the will in [a] trial court, as well as to

appeal the lower courts adverse ruling. Id.

The District Court held that an "interest that is merely a 'byproduct' of

the suit itself, such as costs of litigation, cannot give rise to a cognizable

injury in fact for Article III purposes." D.E. 1390 at 10, citing Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 118 S. Ct. 1003, 140

L.Ed.2d 210 (1998). The Appellant isn't arguing that the efforts made to

recover control over the claims are the injury. Attorneys fees are one

measure of the damages, and commonly recovered in malpractice cases.

C. In both Florida and the District of Columbia, an award of

nominal damages is sufficient to support an award of
punitive damages.

Rather than engaging in a conflicts of laws analysis, the District Court

cited to cases from both Florida and District of Columbia courts.15 Although

15
The District Court determined that the substantive tort law of Colombia
would apply to this case, primarily because the injuries occurred there, and
any unknown effect of the kiobel case on the extraterritorial application of
state (as opposed to federal) law.
In this case, the law of Colombia was hard to ascertain. According to
Appellants' Colombian law expert, this kind of matter would most likely be
resolved by the disciplinary authorities for the legal profession in Colombia,
rather than civl court. The Appellee's expert argued that the case would be
characterized as a breach of contract, rather than an extra-contractual tort.
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this issue has not been uniformly decided in state courts across the U.S., in

these two jurisdictions, the law is settled.

1. Florida

According to the Supreme Court of Florida, nominal damages are

awarded "to vindicate an invasion of ones legal rights where, although no

physical or financial injury has been inflicted, the underlying cause of action

has been proved to the satisfaction of a jury." Lassiter v. Int'l. Union of

Operating Eng'rs, 349 So.2d 622, 626 (Fla. 1976) See, e.g., Tampa Electric

Co. v. Ferguson, 96 Fla. 375, 118 So. 211 (1928); Williams v. Atlantic Coast

Line R.R. Co., 56 Fla. 735, 48 So. 209 (1908); Lampert v. Judge and Dolph

Drug Co., 238 Mo. 409, 141 S.W. 1095 (1911). "Accordingly, the

establishment of liability for a breach of duty will support an otherwise valid

punitive damage award even in the absence of financial loss for which

compensatory damages would be appropriate." 349 So.2d at 626. Ault v.

Lohr, 538 So.2d 454, 456 (Fla. 1989) (A finding of liability alone will

support an award of punitive damages, even in the absence of financial loss

for which compensation would be appropriate.)

(The Appellants could have sued for breach of contract under U.S. law, but
did not, since the parties never formed any valid contracts.) The Colombian
civil code provided little guidance.
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The Lassiter court further held that a punitive damages award need

not be reasonably related to any actual or compensatory damages awarded.

"We think not, if the statement of such a rule implies more than that a

punitive award must bear some relationship to the fact of the injury or

invasion of legal right and the cause thereof. Id., citing Hensley v. Paul

Miller Ford, Inc., 508 S.W.2d 759 (Ky. 1974).

In Adler v. Seligman of Florida, Inc., 438 So.2d 1063

(Fla.Dist.Ct.App. 1983) the District Court of Appeal of Florida (Fourth

District) held that compensatory damages includes both actual and nominal

damages, and that either is sufficient for an award of punitive damages. "As

to punitive damages we order a new trial as to both issues of liability and

amount. In doing so we recognize that compensatory damages include (1)

actual damages and (2) nominal damages, and that either is sufficient to

sustain an award of punitive damages." Id. at 1067, citing Lassitter. As in

the District of Columbia, in determining the amount of a punitive damages

award, the jury may take into account the duration and cost of the litigation,

and the relative wealth of the defendant. Fisher v. City of Miami, 172 So.2d

455, 457 (Fla.1965) (the wealthier the wrongdoer, the greater the award).

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2. The District of Columbia

In the District of Columbia, where this case was first-filed, "a plaintiff

need not prove anything more than nominal actual damages to justify the

imposition of punitive damages." Robinson v. Sarisky, 535 A.2d 901, 907

(D.C. 1988), citing United Securities Corp. v. Franklin, 180 A.2d 505, 511

(D.C.1962); American Home Life Insurance Co. v. Cerrone, 43 App.D.C.

508, 512 (1915); Washington Post Co. v. ODonnell, 43 App.D.C. 215, 240,

cert. denied, 238 U.S. 625 (1915).

Punitive damages may be awarded for tortious acts aggravated by

evil motive, actual malice, deliberate violence or oppression, Price v.

Griffin, 359 A.2d 582, 589 (D.C.1976) (citation omitted), or for outrageous

conduct ... in willful disregard for anothers rights. Vassiliades v.

Garfinckels, Brooks Brothers, Miller & Rhoades, Inc., 492 A.2d 580, 593

(D.C.1985) (citations omitted). The required mental state need not (and

normally cannot) be proven by direct evidence, but may be inferred from all

the facts and circumstances of the case. Id. at 593; Bay General Industries,

Inc. v. Johnson, 418 A.2d 1050, 1058 (D.C.1980).

Punitive damages depend not upon the amount of actual damage, but

upon the intent with which the wrong was done. Robinson v. Sarisky, 535

A.2d 901, 907 (D.C. 1988), citing Washington Post Co. v. ODonnell, 43

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App.D.C. 215, 240, cert. denied, 238 U.S. 625 (1915); AfroAmerican

Publishing Co. v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966) (en banc); Wardman

Justice Motors, Inc. v. Petrie, 39 F.2d 512, 516 (1930). Once the necessary

malice is established, the amount of punitive damages is left to the jurys

discretion. Town Center Management Corp. v. Chavez, 373 A.2d 238, 245

(D.C. 1977); Franklin Investment Co. v. Homburg, 252 A.2d 95, 98

(D.C.1969); AfroAmerican Publishing Co. v. Jaffe, 366 F.2d 649, 662

(1966) (en banc). Deterrence and punishment are the basic purposes of

punitive damages which the jury may consider in computing the amount to

be awarded. Id. at 663. In determining the amount of a punitive damages

award, the jury may take into account the duration and cost of the litigation

and the relative wealth of the defendant. Town Center Management, 373

A.2d at 246 (collecting cases); Smith v. District of Columbia, 336 A.2d 831,

832 (D.C.1975).

III. The District Court erred by dismissing Appellants claims for

fraud, malpractice and invasion of privacy with prejudice after
finding they were unripe, rather than staying or abating the
claims.

Under Florida state law, "[t]he proper remedy for premature litigation

'is an abatement or stay of the claim for the period necessary for its

maturation under the law.' Burgess v. Lippman, 929 So.2d 1097, 1098 (Fla.

4th Dist. Ct. App. 2006), quoting Angrand v. Fox, 552 So.2d 1113, 1115
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(Fla. 3rd Dist. Ct. App. 1989). Abatement is proper upon a showing by the

movant that a related or underlying judicial proceeding will determine

whether damages were incurred which are causally related to the alleged

negligence/malpractice. 929 So.2d at 1098, citing Perez-Abreu, Zamora &

De La Fe, P.A. v. Taracido, 790 So.2d 1051 (Fla. 2001); Bierman v. Miller,

639 So.2d 627, 628 (Fla. 3rd Dist. Ct. App. 1994).

In Bierman, the plaintiff sued a law firm for legal malpractice,

claiming the firm was negligent in its drafting of an agreement and failing to

protect the plaintiffs interests. 639 So.2d at 628. The legal malpractice

action was filed while the suit regarding the plaintiffs liability was still

pending in federal court. Id. at 627-28. In abating the malpractice action, the

court found the action had not yet accrued because a redressable harm had

not been established. Id. at 628.

Likewise, "Lippman has not yet incurred any legally recoverable

damages as a result of the alleged malpractice because the underlying claims

against Asper are not resolved. ... Thus, the legal malpractice claim is

premature and should be abated." 929 So.2d at 1098. The District Court

erred by dismissing the instant case with prejudice, rather than staying the

case pending the outcome of the litigation against Chiquita Brands. Federal

Courts also follow this rule. See Gianassi v. State Farm Mut. Auto. Ins. Co.,

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60 F.Supp.3d 1267 (MDFL 2014) (District Court would abate, rather than

dismiss without prejudice, motorists premature first party bad-faith claim).

The District of Columbia appears to have no such rule requiring a

stay. However, the Supreme Court in Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976), stated that the district courts

have a virtually unflagging obligation ... to exercise the jurisdiction given

them. Id. at 817. Thus, although a motion to stay is directed to the district

court's sound discretion, see McKnight v. Blanchard, 667 F.2d 477, 479 (5th

Cir.1982), a stay order must be evaluated in light of the court's strong

obligation not to dismiss or postpone the federal claim in the absence of

exceptional circumstances. American Mfrs. Mut. Ins. Co. v. Edward D.

Stone, Jr. & Assoc., 743 F.2d 1519 (11th Cir. 1984). If the Appellants'

claims were dismissed because they appeared to be a distraction from the

progress of the case, rather than because they lack merit, the proper remedy

should be to stay or abate them. This issue is reviewable for abuse of

discretion.

CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons, the Court should REVERSE the District

Court's Order dismissing Appellants' claims for lack of subject matter

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jurisdiction, and REMAND the claims for resolution at a later stage of the

case.

Respectfully submitted,

/s/ Paul Wolf

___________________
Paul Wolf, CO Bar 42107
Attorney for Does 1-98
P.O. Box 46213
Denver, CO 80201
(202) 431-6986
fax: n/a
paulwolf@yahoo.com

June 29, 2017

CERFITICATE OF COMPLIANCE
WITH WORD LIMITS

I hereby certify that:

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 5316 words, as determined by Microsoft

Word 2010; and

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because it

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has been prepared using Microsoft Word 2010 in Times New Roman, 14-

point font.

/s/ Paul Wolf

_______________
Paul Wolf

CERTIFICATE OF SERVICE

I, Paul Wolf, counsel for Appellants and a member of the Bar of this

Court, certify that, on June 29, 2017, a copy of this Opening Brief of

Appellants Does 1-98 was electronically filed with the Court using CM /

ECF.

/s/ Paul Wolf

_______________
Paul Wolf

28