CARL J. BARBIER, District Judge.
Before the Court are Defendants' Motions for Summary Judgment on Prescription
This action arises out of product liability claims made by foreign agricultural workers for injuries and damages allegedly caused by exposure to the pesticide dibromo chloropropane ("DBCP"), while working on banana farms in Costa Rica, Ecuador, and Panama. The instant action consolidates seven actions filed on behalf of approximately 261 plaintiffs in the United States District Court for the Eastern District of Louisiana between May 31, 2011 and June 2, 2011.
In August of 1993 a putative class action, Jorge Carcamo v. Shell Oil Co., was filed in the District Court of Brazoria County, a state court in Texas. The action named as defendants the same defendants listed in the instant case, and defined the putative class as "[a]ll persons exposed to DBCP, or DBCP-containing products ... between 1965 and 1990."
Although the Supreme Court denied certiorari in 2001, this was not the end of the activity associated with the Texas class action.' On April 1, 1996, prior to the Fifth Circuit's affirmation of the f.n.c. dismissal, the Costa Rican plaintiffs in Delgado petitioned the Texas district court for reinstatement of their claims pursuant to the return jurisdiction clause. In 1995, the Costa Rican plaintiffs had refiled their claims in their home country of Costa Rica; however, the Costa Rican court denied jurisdiction over the claims, in a decision that was affirmed by both the Costa Rican appellate court and the Supreme Court of Justice of Costa Rica. Therefore, pursuant to the return jurisdiction clause, the Costa Rican plaintiffs could motion to return to the Texas district court to seek relief. See Delgado, 890 F.Supp. at 1375. On February 20, 1997, the Texas district court elected to defer ruling on the Costa Rican plaintiffs' return jurisdiction motion until after the Supreme Court's decision to deny or grant certiorari on the appeal. As previously stated, the Supreme Court denied certiorari in 2001. To this Court's knowledge, the Costa Rican plaintiffs' motion then sat on the Texas district court's docket until June 21, 2004, when the court remanded the case to the Texas state court where it was originally filed.
The 2004 remand was prompted by the Supreme Court's decision in Dole Food Co. v. Patrickson, 538 U.S. 468, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003), where the Court determined that a Hawaii federal district court lacked jurisdiction to hear a similar DBCP case that had been filed in 1997. Id. at 481, 123 S.Ct. 1655. Because the Texas district court had acquired jurisdiction through :he same means as the Hawaii court (under the Foreign Sovereign Immunities Act), the Texas district court determined that the Costa Rican plaintiffs' claims should be remanded to state court because it no longer had subject matter jurisdiction to determine whether the claims could be reinstated. Delgado v. Shell Oil Co., 322 F.Supp.2d 798, 817 (S.D.Tex.2004). Although the Texas district court remanded the claims, it explained that its previous decision to dismiss the claims was not void, and it declined to vacate its previous judgment and dismissal. Id. at 812-14. The court explained its decision, noting that,
Thereafter, the Texas district court remanded the Delgado and Carcamo cases to state court and entered a final judgment dismissing the federal action for lack of subject matter jurisdiction. On remand, the Texas state court reinstated the cases. The defendants filed a writ of mandamus challenging the reinstatement, which the state court subsequently denied. The state court held that the federal district court's f.n.c. dismissal order was "void" because the federal court had lacked subject matter jurisdiction. In re Standard Fruit Co., Nos. 05-00697, 05-00698, 2005 WL 2230246, at *1 (Tex.App. Sept. 13, 2005). Therefore, all of the Carcamo and Delgado plaintiffs (not just the Costa Rican plaintiffs) were free to file their claims with the state court. Id. In September 2007, the Delgado action was dismissed after defendants settled with all named plaintiffs. On September 29, 2009, the Carcamo plaintiffs filed a motion for class certification. On October 27, 2009, following this filing, defendants again removed to federal district court, this time asserting subject matter jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d). In their notice of removal, defendants argued that under the Class Action Fairness Act, the plaintiffs' motion for class certification "commence[d] a new action as to them," and, therefore, meant that the case could be removed to federal court.
On June 9, 1995, a group of plaintiffs filed a class action lawsuit, Abarca v. CNK Disposition Corporation, No. 95-3765, on behalf of 3,000 individuals in the Thirteenth Judicial Circuit in Hillsborough County, Florida.
On May 10, 1996, five individual plaintiffs filed lawsuits in the Circuit Court of Harrison County, Mississippi.
On October 28, 1996, three cases were filed on behalf of approximately 314 plaintiffs in the Twenty-Ninth Judicial District Court for the Parish of St. Charles, Louisiana.
On October 3, 1997, a putative class action was filed in the Circuit Court of the First Circuit of Hawaii, Patrickson et al. v. Dole Food Co. et al., No. 97-4062-09, on behalf of fifty-nine plaintiffs who had allegedly been exposed to DBCP. Like the Texas and Louisiana cases before it, the case was removed on federal question jurisdiction under the Foreign Sovereign Immunities Act. The district court dismissed the case on the grounds of f.n.c. Plaintiffs appealed to the Ninth Circuit, which subsequently-reversed the district court's decision to permit removal under federal question jurisdiction. Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir.2001), affd, 538 U.S. 468, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003). The case was then remanded to state court where plaintiffs filed a motion for class certification on February 25, 2008. On July 16, 2008, the state court denied plaintiffs' motion for class certification.
On June 4, 2010, an additional group of plaintiffs with DBCP claims filed nine lawsuits in the Circuit Court of the First Circuit, Hawaii against the defendants listed in the instant action.
On April 14, 2005, approximately 105 plaintiffs filed a lawsuit in the Superior Court of the State of California for the County of Los Angeles, Abrego v. Dole Food Co., Inc., No 331844, alleging exposure to DBCP while working on banana farms in Panama.
On October 1, 2004, plaintiffs from Costa Rica filed suit in Superior Court of the State of California for the County of Los Angeles, Abarca et al. v. Dole Food Co. et al., No. 322412.
As previously stated, the instant litigation involves seven consolidated actions filed between May 31, 2011 and June 2, 2011, in the Eastern District of Louisiana. Defendants filed their motions for summary judgment prior to consolidation on April 6, 2012. On April 30, 2012, the Court continued the hearings on the motions. On May 20, 2012, the matters were consolidated. As noted, the Court held oral argument on the motions on August 15, 2012.
Defendants argue that all claims asserted against them are prescribed pursuant to Louisiana Civil Code article 3492, which provides a one-year prescriptive period for delictual actions. Defendants advance their argument as follows. First, Defendants argue that the Plaintiffs' claims are prescribed on their face. They contend that per the letter of the law, Plaintiffs had one year in which to file their actions after being exposed to DBCP. Because no Plaintiff alleges exposure after 1992, and all but one allege exposure between 1966 and 1985, Defendants assert that Plaintiffs' 2011 filings in this Court are beyond the one-year prescriptive period and are barred as a matter of law. Second, Defendants argue that no interruption or suspension of prescription applies to Plaintiffs' claims. Specifically, they argue that
Plaintiffs respond by asserting that their claims are not prescribed because the 1993 Carcamo/Delgado suits interrupted prescription. Plaintiffs argue that the 1995 denial of class certification was not a denial on the merits and, therefore, does not constitute a denial for the purpose of restarting the prescriptive period. Furthermore, Plaintiffs contend that the October 27, 1995 judgment dismissing the Carcamo/Delgado plaintiffs' claims was not a final judgment for the purposes of prescription. Plaintiffs argue that because the f.n.c. dismissal was not on the merits, the corresponding "final judgement" that was entered in the case was not, in fact, final.
Plaintiffs further argue that: (1) Louisiana law does recognize cross-jurisdictional interruption of prescription; (2) interruption of prescription is appropriate for, and can be applied to, mass tort actions; and, (3) subsequent suits filed by individual plaintiffs did not "opt" Plaintiffs out of the Carcamo/Delgado class action and, therefore, such filings did not terminate the interruption of prescription. In response to Defendants' arguments that certain Plaintiffs are prohibited from suing per res judicata, Plaintiffs assert that no Plaintiff in the current suit ever gave his or her permission to participate in the DBCP suits in question. Therefore, none of those Plaintiffs should be barred from suing in Louisiana. Lastly, Plaintiffs assert that they have met the evidentiary burden under the doctrine of contra non valentem by alleging in their petition that they did not discover the connection between their injuries and DBCP until 1993, and by submitting signed affidavits stating the same to the Court.
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing FED. R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that "a reasonable jury could not return a verdict for the nonmoving party." Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would `entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop. Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir.1991) (citation omitted). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify
In a diversity action, a federal district court applies the prescriptive period of the forum state. See Orleans Parish Sch. Bd. v. Asbestos Corp. Ltd., 114 F.3d 66, 68 (5th Cir.1997); Lanzas v. Am. Tobacco., Inc., No. 00-2262, 2001 WL 1223600, at *1 (E.D.La. Oct. 11, 2001). Louisiana Civil Code article 3492 provides a one-year liberative prescription period for delictual actions. La. Civ.Code art. 3492. Prescription begins to run from the day the plaintiffs injury is sustained. Id. Injury is considered to have been sustained when damage to the plaintiff has "manifested itself with sufficient certainty to support accrual of a cause of action." Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La.1993).
Ordinarily, the burden of proving that a plaintiffs claims have prescribed remains with the movant. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002). However, when a plaintiffs claim has prescribed on the face of the complaint, the burden shifts to the plaintiff to negate prescription by proving suspension, interruption, or some other exception to prescription. Id. Prescription statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished. Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992).
As an initial matter, the Court notes that it will not address any arguments made by the parties with respect to "opting out." Per this Court's May 9, 2012 Order (Rec. Doc. 149), briefing on this issue was stayed pending the Louisiana Supreme Court's resolution of Duckworth v. Louisiana Farm Bureau Mutual Insurance Co., 11-837 (La.App. 4 Cir. 11/23/11); 78 So.3d 835, writ granted, 11-2835 (La. 3/30/12), 85 So.3d 99. Moreover, because the Court finds that its analysis of class action interruption of prescription is dispositive, it also declines to address the arguments regarding res judicata and contra non velentem. For the purposes of the prescription analysis, the Court will assume, without finding, that all Plaintiffs have met their initial burden under contra non velentem. Additionally, the Court will also assume that Louisiana recognizes cross-jurisdictional interruption of prescription. See Smith v. Cutter Biological, 99-2068 (La.App. 4 Cir. 9/6/00); 770 So.2d 392, 408 (analyzing the interruption of prescription based upon a class action filed in North Dakota without specifically finding that the principles of cross-jurisdictional interruption apply); Orleans Parish Sch. Bd. v. United States Gypsum Co., 892 F.Supp. 794, 802-03 (E.D.La.1995) (analyzing the interruption of prescription based upon a national class action that "effectively" interrupted the plaintiffs prescriptive period without specifically finding that the principles of cross-jurisdictional interruption apply).
Next, the Court addresses the question of whether the Plaintiffs' claims are facially prescribed. Plaintiffs have asserted that they were injured and/or exposed to DBCP from 1966 until 1992, approximately nineteen to forty-five years before the filing of the instant suit (depending upon the individual Plaintiff). Plaintiffs have also alleged that they did not know of the connection between DBCP and their injuries until 1993, approximately eighteen years before the instant action was filed. As such, the Court finds that all Plaintiffs' claims are clearly beyond the one-year prescriptive period set forth in article 3492
Plaintiffs assert that the 1993 filing of the Carcamo/Delgado class action suspends or interrupts the prescriptive period in the instant case, making Plaintiffs' filing timely. The Court finds this argument unpersuasive. In assessing the argument, the Court looks to Louisiana's class action tolling laws as they existed before 1997.
The Court finds that the denial of the motion for class certification as moot
In American Pipe the Supreme Court found that the filing of a class action tolled the statute of limitations for members of the putative class seeking to intervene in a suit. 414 U.S. at 560-62, 94 S.Ct. at 770. The Court found that the suspension of the statute of limitations for putative class members was appropriate because it promoted the general principles of class actions. Id. at 762-66. In particular, the Court found that the tolling principle discouraged the filing of individual actions since potential plaintiffs could be assured that their rights were being preserved, which was consistent with the class action objective of judicial economy. Id. at 764-66. Furthermore, the Court also found that allowing such a suspension was in line with the general principles behind the use of the statute of limitations. Id. at 766-67. The Court determined that once one individual plaintiff had filed suit on behalf of a class, all defendants were put on notice that they needed to defend themselves against a set of substantive claims as well as a particular generic class of plaintiffs. Id. Thus, no defendant was in danger of being surprised by an action filed by a plaintiff who had slept on his rights. Id. at 766. The Court's reasoning led it to conclude that "the commencement of the class action ... suspend[s] the running of the limitation period only during the pendency of the motion to strip the suit of its class action character." Id. at 770 (emphasis added).
Likewise, in Crown, Cork & Seal, the Court found that this same line of reasoning supported the suspension of the statute of limitations period for putative class members seeking to file individual lawsuits. 462 U.S. at 352-54, 103 S.Ct. 2392. The Court in that case again found that it would not make sense for a putative class member to have to file a separate individual action to preserve his claim while a class action was pending. See id. at 350-53, 103 S.Ct. 2392. Therefore, the Court found that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 353-54, 103 S.Ct. 2392 (citation omitted). The Court further determined that the statute of limitations remained tolled until class certification was denied. Id.
In Armstrong, the Eleventh Circuit echoed the Supreme Court's reasoning in finding that the tolling of the statute of limitations lasted only until the denial of class certification, not until the termination of the appeals process. 138 F.3d at 1378.
A reading of the above-referenced cases indicates to this Court that there are three main concerns when determining whether or not a prescriptive period has been interrupted: (1) the actual pendency of the class action itself; (2) the objective reasonableness of an individual's reliance on an action to protect his or her rights; and, (3) the balance of prejudice to both the plaintiff and defendant based upon the principles underlying class actions and statutes of limitations. In the instant case, the 1993 Carcamo/Delgado motion for class certification was no longer pending after the district court denied the motion for class certification, dismissed the case, and entered a final judgment in 1995. While the denial of class certification may not have been on the merits, coupled with the dismissal of the action, it was nonetheless sufficient to alert putative class members that they could not reasonably expect their rights to be protected by the class action. By denying the motion as moot and dismissing the case, every member of the putative class was put on notice that the motion for class action was no longer pending in the court and, therefore, that the court would not entertain the certification of the class. Thus, each member of the class was alerted that they needed to act to preserve their rights. Moreover, the Court notes that the district court's f.n.c. dismissal was premised on the availability of forums in plaintiffs' home countries, many of which did/do not have a mechanism for class action lawsuits, a fact which the court contemplated in issuing its dismissal order.
Furthermore, even if this Court were to broadly extend the interruption of prescription until the end of the appeals process (a conclusion which pre-1997 law does not support) in order to be fully assured that the judgment was in fact final in any jurisdiction, in 2000 the Fifth Circuit affirmed the f.n.c. dismissal, and in 2001 the Supreme Court denied certiorari.
While Plaintiffs argue that the Supreme Court's 2003 decision in Patrickson continued the interruption of the prescriptive period, the Court notes that two years had passed between the denial of certiorari in the Delgado case and the Supreme Court's decision in Patrickson. Thus, for at least two years no plaintiff was justified in relying on Patrickson to preserve his claims, and it was during that time that the prescriptive period would have lapsed. In addition, allowing the Plaintiffs to rely on Patrickson to continue the interruption of the prescriptive period would border on the acceptance of the "piggy backing" or "stacking" of class actions on top of one another,
To the extent that Plaintiffs argue that the Costa Rican plaintiffs' April 1996 motion to reinstate the case pursuant to the return jurisdiction clause continued the interruption of prescription, or that the mere existence of the return jurisdiction clause continued the interruption period, the Court finds the Fifth Circuit cases addressing the purpose of return jurisdiction clauses helpful. In Robinson v. TCI/US W. Communications, Inc., 117 F.3d 900 (5th Cir.1997), the court explained that the inclusion of a return jurisdiction clause in a f.n.c. dismissal "is part of a larger set of measures needed `to ensure that defendants will not attempt to evade the jurisdiction of the foreign courts.'" Id. at 907-08. In particular, the court noted that such measures are necessary, because the American court entering
In the instant case, the return jurisdiction clause functioned as outlined above. It gave the actual named plaintiffs and intervenors in the suit the right to return to the Texas district court and motion to have the case reopened. See Delgado, 890 F.Supp. at 1375 ("[Upon] the dismissal for lack of jurisdiction of any action commenced by a plaintiff in these actions in his home country or the country in which he was injured, that plaintiff may return to this court and, upon proper motion, the court will resume jurisdiction over the action." (emphasis added)). Thus, at the time that the f.n.c. dismissal was issued the only thing known to any plaintiff, intervenor, or putative class member was that if an actual plaintiff's case was dismissed, then that same plaintiff could return to the Texas district court and motion for the court to resume jurisdiction over the action.
Lastly, when evaluating this outcome in light of the principles behind both prescription and class actions, the Court does not find that this decision is overly prejudicial. All Plaintiffs were given ample time to file their individual claims in Louisiana, and each Plaintiff was alerted that their rights were not protected when the Texas court denied class certification and dismissed the case in 1995. While the events associated with the case after the 2003 Patrickson decision may have had the potential to confuse Plaintiffs, the Plaintiffs' claims prescribed in 1996, prior to any of those events taking place. Additionally, if the Court were to allow this action to proceed, the tenets behind the prescriptive period would be directly called into question. In the seventeen years that have passed since the Carcamo/Delgado action was filed, evidence and witnesses have become harder to locate and claims have grown stale. This conclusion is supported by the testimony of the Plaintiffs' own counsel, who explained to the Court that at least eight of the Plaintiffs involved in the suit have passed away and counsel has been unable to locate thirty-three others.
While the Court is sympathetic to the plight of the Plaintiffs in this case, it finds that the reasoning expressed in American Pipe, Crown, Cork & Seal, Armstrong, and the Louisiana cases that have adopted them preclude it from finding that these claims are not prescribed. All of the above-referenced authorities illustrate that when a court is evaluating the interruption of prescription for putative class members, it should look for a bright line rule that will allow future potential plaintiffs to be assured that their rights are preserved. By Plaintiffs' own admission, the case before this Court is a "one-in-a-million instance," and, as such, the Court declines to adopt a one-in-a-million rule that would blur the lines and confuse future plaintiffs in this and other Louisiana courts. Accordingly,
Id. at 1375.
Order of October 6, 1995, Delgado et al. v. Shell Oil Co. et al., No. 94-1337, (S.D.Tex. Oct. 6, 1995), Rec. Doc. 372, p. 2-3.