Richard G. Andrews, United States District Judge.
Presently before the Court are Defendants [Dole and Standard]'s Motion for Summary Judgment (D.I. 81) and related briefing (D.I. 82, 99, 103, 108) as well as Defendant [Chiquita's] Motion for Rehearing/Renewed Motion for Dismissal of Claims Pursuant to Rule 12(b)(6) Based on Statute of Limitations (D.I. 104) and related briefing (D.I. 105).
This litigation stems from injuries allegedly caused by the misuse of dibromochloropropane ("DBCP") on banana plantations in Panama, Ecuador, Guatemala, and Costa Rica. The seven Plaintiffs in No. 12-695 describe themselves as four Panamanian citizens who were exposed to DBCP in 1972 (Aguilar Marquinez), 1973-75 (Serrano Chito), 1976 (Salinas Jiminez), various times from 1970-84 (Martinez Ibarra), and three Ecuadorian citizens who were exposed to DBCP in 1972-80 (Castro Epifano), 1978-82 (Pesantez Redrovan), and 1974-75 (Malla Lopez). (D.I. 1 ¶¶ 112-20). While the Complaint does not state when Plaintiffs became aware of their injuries, it does allege that, "None of the Plaintiffs discovered their injuries were due to their DBCP exposure prior to
In August 1993, a putative DBCP class action was filed in Texas state court. The case was removed to federal court based on the Foreign Sovereign Immunities Act ("FSIA") because one of the defendants was largely owned by the State of Israel. In July 1995, the federal court dismissed the case based on forum non conveniens ("f.n.c."). In the memorandum and order dismissing the case, the court denied as moot all pending motions, one of which was the motion for class certification. Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1375 (S.D.Tex.1995). The dismissal was affirmed by the Fifth Circuit, Delgado v. Shell Oil Co., 231 F.3d 165 (5th Cir.2000), and the Supreme Court denied review, 532 U.S. 972, 121 S.Ct. 1603, 149 L.Ed.2d 470 (2001).
Meanwhile, Plaintiffs' Counsel filed a putative DBCP class action in Hawaii, which was also removed to federal court based on the FSIA and dismissed for f.n.c. On appeal, the Ninth Circuit reversed the district court's decision permitting removal under the FSIA, Patrickson v. Dole Food Co., 251 F.3d 795, 808 (9th Cir.2001), and the Supreme Court affirmed, Dole Food Co. v. Patrickson, 538 U.S. 468, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003). Based on this ruling, the Delgado plaintiffs filed a motion to have the Texas federal case remanded to Texas state court and to reinstate the individual plaintiffs' claims pursuant to a "return jurisdiction" clause included in the 1995 f.n.c. dismissal order. Delgado v. Shell Oil Co., 322 F.Supp.2d 798, 803-04 (S.D.Tex.2004). Because Patrickson divested the district court of subject matter jurisdiction, the Texas federal court remanded the case to Texas state court. Id. at 815, 817. The case was reinstated in Texas state court. Plaintiffs filed a motion for class certification in 2009, which the state court denied on June 3, 2010.
Subsequently, Plaintiffs' Counsel filed DBCP suits in the Eastern District of Louisiana, Delaware Superior Court, and this Court. The Plaintiffs argue that the denial of class certification did not occur until June 3, 2010, that cross-jurisdictional tolling applied, and therefore the claims were within the applicable statutes of limitations.
It was based upon this state of affairs that I denied Defendants' earlier motion to dismiss and motion for summary judgment. I noted, however, that Chaverri was on appeal, and that the Fifth Circuit's ruling might be informative. (D.I. 96 ¶ 4, 98 ¶ 3). As it turns out, the Fifth Circuit's decision did not really shed any more light on the issue than was previously available. See Chaverri v. Dole Food Co. Inc., 546 Fed.Appx. 409, 413 (5th Cir.2013) (per curiam) (unpublished) ("Largely for the reasons expressed in the district court's well-reasoned opinion, we agree that Chaverri presented no facts relevant to any statute or caselaw to support that [the statute of limitations] was interrupted for a sufficient period of time.").
I previously stated that I thought the Delaware Superior Court's opinion was more persuasive than the District Court's decision in Chaverri. (D.I. 98 ¶ 3). After further review, including consideration of the additional briefing in this case, the Fifth Circuit's stated rationale for affirmance of Chaverri, and a recent decision of the Hawaii Intermediate Court of Appeals,
Chaverri, 896 F.Supp.2d at 568.
The Eastern District of Louisiana summarized the case law well, identifying three factors for "determining whether or not a [limitations] period has been [tolled]":
Chaverri, 896 F.Supp.2d at 571. The motion for class certification was no longer pending after the district court in 1995 denied it as moot. While the denial of the motion was not on the merits, any reliance would have been objectively unreasonable, as the case was dismissed. Because most
Even assuming that tolling operated during the pendency of the appeals process, the Fifth Circuit affirmed the f.n.c. dismissal and the Supreme Court denied certiorari in 2001. While Patrickson set forth a basis for reinstating the case, that decision was not until 2003, two years after the appeals process had run.
The Plaintiffs have not been unfairly prejudiced. The case was reinstated in Texas state court. Plaintiffs have had their chance to be heard as a class. Class certification was finally denied on the merits in 2010. Plaintiffs had plenty of opportunity to pursue individual claims, but chose not to.
There is a second basis on which summary judgment to Dole and Standard might be granted. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007).
Defendants point out that that there is no evidence at all that supports tolling from the dates of exposure (generally in the 1970's) to August 1993. Dole submitted an expert declaration stating, in essence, that exposure to DBCP does not cause the latent type of reproductive issues of which Plaintiffs complain. (D.I. 84-1 at 10-13). Additionally, Dole submitted a letter dated July 27, 1993 from Charles S. Siegel, addressed to defense counsel as well as Dole, indicating which clients were represented in the DBCP litigation. (D.I. 87 Ex. 9). Dole contends that this letter indicates that forty-seven of the plaintiffs, whose names appear on that list, must have been aware of their claims at the time the letter was sent. (D.I. 82 at 25).
While Plaintiffs state that this is insufficient to grant summary judgment, I think it is sufficient to put the burden on Plaintiffs to come forward with evidence supporting the proposition that each Plaintiff was unaware of his injuries, or was unaware of the cause of his injuries.
The Court will enter a separate order.
Presently before the Court are Defendants [Dole and Standard]'s Motion for Summary Judgment (D.I. 81) and related briefing (D.I. 82, 99, 103, 108) as well as Defendant [Chiquita's] Motion for Rehearing/Renewed Motion for Dismissal of Claims Pursuant to Rule 12(b)(6) Based on Statute of Limitations (D.I. 104) and related briefing (D.I. 105). Defendant Chiquita's motion (D.I. 104) has not been fully briefed, and therefore is
For the reasons discussed in the accompanying memorandum, Defendants' motion for summary judgment (D.I. 81) is hereby
As for collateral estoppel, it only applies "where a question of fact essential to the judgment is litigated and determined by a valid and final judgment." Brown v. State, 721 A.2d 1263, 1265 (Del.1998). As I have stated, Judge Herlihy did not decide whether the July 1995 denial of class certification as moot restarted the statute of limitations, so Defendants are not estopped. Additionally, the Superior Court decision was a denial of a motion for judgment on the pleadings, so this question was not even fully litigated. In any event, the Superior Court's decision is still subject to appeal to the Delaware Supreme Court, and it is therefore not final. Finally, under Third Circuit law, I am not bound by it. See, e.g., Safeco Ins. Co. v. Wetherill, 622 F.2d 685, 688-89 (3d Cir.1980) ("[T]he decisional law of lower state courts and other federal courts ... should be accorded proper regard... but not conclusive effect."); McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661-63 (3d Cir.1980) ("In determining state law, a federal tribunal should be careful to avoid the danger of giving a state court decision a more binding effect than would a court of that state under similar circumstances.") (internal citations omitted).
As for the Rooker-Feldman argument, it does not apply here. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) ("The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.). Defendants did not bring this suit, and therefore the doctrine does not apply.