United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER UNITED STATES DISTRICT JUDGE.
1993, a group of individuals from countries including Costa
Rica, Ecuador, and Panama filed a putative class action in
Texas state court against a number of chemical manufacturers
including, among others, the defendant here, Occidental
Chemical Corp. ("Occidental"). The plaintiffs had
all lived or worked on banana plantations. They alleged that
they had suffered adverse health consequences as a result of
exposure to a chemical pesticide called dibromochloropropane
("DBCP"). In 2010, some 17 years later, after a
long train of procedural misadventures, the plaintiffs
dismissed their claims voluntarily.
case was filed in 2011, and, as filed, involved similar
claims against substantially the same defendants. The
plaintiffs here, however, were not parties to the original
1993 action. Nor are they subject to the 2010 dismissal. They
were, however, absent members of the putative class: They are
foreign nationals from Costa Rica, Ecuador, and Panama who,
like the named plaintiffs in the 1993 lawsuit, allege
tortious exposure to DBCP between the 1960s and early 1980s.
Their claims against Occidental were transferred to this
District in May 2017, following a circuitous procedural path
that led from Louisiana (where the case was brought) to
Delaware to (as against Occidental only) this Court.
Occidental now moves for judgment on the pleadings, arguing
that plaintiffs' claims are time-barred under New York
following reasons, the Court finds plaintiffs' claims
timely and therefore denies Occidental's motion. The
Court's ruling, however, turns on an important and
unresolved question of New York law that has divided courts
in this District: whether New York law tolls the statute of
limitations for purported class members during the pendency
of a class action filed in another state. The Court holds
that New York law does provide for such tolling. Therefore,
the Court holds, based on the long-running Texas litigation
initiated in 1993, plaintiffs' claims were long tolled
and are timely today. Further, in the interest of economy,
the Court certifies this order for interlocutory appeal to
the United States Court of Appeals for the Second Circuit.
manufactured and distributed DBCP, a pesticide known to cause
sterility, sexual and reproductive abnormalities, and cancer.
Compl. ¶¶ 8-10, 65. Plaintiffs allege that they
were exposed to Occidental's DBCP when they lived and
worked on or around DBCP-treated banana plantations in Costa
Rica, Panama, and Ecuador. Id. ¶¶ 66-68.
Because they were never informed of the dangers posed by
DBCP, Plaintiffs allege, they did not wear any protective
covering or respiratory equipment to prevent exposure.
Id. ¶ 5. As a result, they suffered a host of
DBCP-related injuries, including sterility and increased risk
of cancer. Id. ¶¶69, 186.
procedural history of this case is baroque. The Court first
reviews the two-decade-long history of the putative class
actions (styled as Carcamo and, later,
Delgado) brought by plaintiffs bringing similar
claims against defendants including Occidental. As explained,
these cases have proceeded in Texas, Costa Rica, and Hawaii;
none, however, resulted in the certification of a class. The
Court then turns to the procedural history of this lawsuit
(Chavez), which arrived in this Court after pit
stops in Louisiana and Delaware.
The Earlier Putative Class Actions in Texas, Costa Rica, and
August 1993, a putative class action was filed in Texas state
court, captioned Carcamo v. Shell Oil Co.,
93-C-2290. See JSPH ¶¶ 1-4; id.
Exs. 1-4. The Carcamo complaint sought relief
against Occidental and other chemical concerns for the
exposure to DBCP of the named plaintiffs and the putative
class. Id. Ex. 4. The Carcamo plaintiffs
proposed to represent a class defined, as relevant here, as
"[a]ll persons exposed to DBCP, or DBCP-containing
products, designed, manufactured, marketed, distributed or
used by [defendants including Occidental] between 1965 and
1990 in [countries including Costa Rica, Panama, and
Ecuador]." Id. Ex. 6 at 2.
a motion for class certification was filed or resolved,
however, the Carcamo defendants impleaded Dead Sea
Bromine, a corporation indirectly owned in part by the State
of Israel. Id. ¶ 7; id. Ex. 7. Dead
Sea Bromine then removed the case to federal court, asserting
jurisdiction under the Foreign Sovereign Immunities Act
("FSIA"). Id. ¶ 7; id. Ex.
Carcamo case was assigned to Judge Sim Lake of the
United States District Court for the Southern District of
Texas. In June 1994, it was consolidated with a related
matter, which together were re-captioned Delgado v. Shell
Oil Co., No. H-94-1337. JSPH ¶ 8; id. Ex.
8 at 15.
November 1994, Judge Lake issued a scheduling order directing
the parties to provide, inter alia, their views on
class certification, and stating the court's intention to
resolve a series of dispositive motions, including any
motions to dismiss for forum non conveniens. Id.
¶ 9; id. Ex. 9. Although the plaintiffs never
filed a motion for class certification under Federal Rule of
Civil Procedure 23, their letter to Judge Lake asserted that
class treatment would be appropriate. Id. ¶ 10;
id. Ex. 10. In their response, the defendants
disputed that plaintiffs could satisfy Rule 23, id.
¶ 11; id. Ex. 11; the plaintiffs, in reply,
reiterated their position, id. ¶ 13;
id. Ex. 13. Several months later, but before class
certification was briefed or decided, defendants moved to
dismiss fox forum non conveniens. Id. ¶ 14;
id. Ex. 14.
11, 1995, the court resolved the motion to dismiss in a
published memorandum and order. See Delgado v. Shell Oil
Co., 890 F.Supp. 1324 (S.D. Tex. 1995). It held first
that jurisdiction was proper, including under the FSIA. It
then conditionally granted the motion to dismiss on forum
non conveniens grounds, reasoning that adequate
alternative for a existed in the plaintiffs' home
countries. Id. at 1372-73. The Court conditioned
dismissal on, among other things, defendants participating in
expedited domestic discovery and waiving certain procedural
and jurisdictional defenses abroad. Id. The Court
also issued an injunction barring plaintiffs from commencing
any new DBCP-related actions. Id. at 1374-75.
Finally, the Court noted that "a number of other
motions" were pending. It held that "all pending
motions ... not otherwise expressly addressed in this
Memorandum and Order are DENIED as MOOT." Id.
at 1375. The opinion did not address the merits of class
order did, however, include a "return jurisdiction"
clause. It stated:
Notwithstanding the dismissals that may result from this
Memorandum and Order, in the event that the highest court of
any foreign country finally affirms 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 as if the case had never been dismissed for (forum
October 27, 1995, after the defendants had satisfied the
conditions the Court had set for dismissal, the Court entered
a "Final Judgment" dismissing the consolidated
actions and permanently enjoining plaintiffs and others with
knowledge of the judgment from commencing new DBCP-related
litigation. JSPH ¶ 17; id. Ex. 17.
Significantly, in a separate order issued the same day, Judge
Lake clarified that the injunction applied only to
"plaintiffs (and intervenor plaintiffs) in the actions
before the court, " rather than "any potential
plaintiff not before it." Id. ¶16;
Id. Ex. 16.
plaintiffs immediately appealed the Court's exercise of
subject-matter jurisdiction to the United States Court of
Appeals for the Fifth Circuit. Id. ¶ 17.
the Costa Rican plaintiffs prosecuted their claims in Costa
Rica. However, they were rebuffed by Costa Rica's Supreme
Court, which held that the Costa Rican courts lacked
jurisdiction over the DBCP claims. See Id. Ex. 21 at
¶ 14. As a result of that dismissal, in 1996, the Costa
Rican plaintiffs moved for reinstatement of their claims
before Judge Lake pursuant to the return jurisdiction clause.
Id. Judge Lake denied the motion without prejudice,
deferring final judgment on the motion pending resolution of
the plaintiffs' appeal to the Fifth Circuit. See
Id. Ex. 24 at ¶ 4.
October 19, 2000, the Fifth Circuit affirmed Judge Lake's
judgment. See Delgado v. Shell Oil Co., 231 F.3d 165
(5th Cir. 2000). In April 2001, the United States Supreme
Court denied certiorari. JSPH ¶ 19.
while, parallel litigation was underway in Hawaii. In 1997, a
separate set of plaintiffs filed a DBCP class action in
Hawaii state court. Id. ¶ 42. The case followed
roughly the same procedural trajectory as the
Delgado action: defendants impleaded Dead Sea
Bromine; Dead Sea Bromine removed; the federal district court
dismissed plaintiffs' claims on forum non
conveniens grounds; and the plaintiffs appealed.
Id. ¶¶ 43-46. In that case, however, the
Ninth Circuit reversed, holding the district court lacked
subject matter jurisdiction under the FSIA. Id.
¶47; see Patrickson v. Dole Food Co., 251 F.3d
795 (9th Cir. 2001).
decision created a circuit split with the Fifth Circuit. The
Supreme Court granted certiorari. JSPH ¶ 49.
Siding with the Ninth Circuit, the Supreme Court held that
Dead Sea Bromine was not an instrumentality of the State of
Israel and therefore its removal of the case to federal court
under the FSIA had been improper. Dole Food Co. v.
Patrickson, 538 U.S. 468, 480 (2003).
Hawaii plaintiffs therefore returned to state court. There,
the First Circuit Court of Hawaii denied the plaintiffs'
motion for class certification, and, in 2009, granted
defendants' motion for summary judgment on limitations
grounds. JSPH ¶¶ 50-58. In 2014, the Hawaii
Intermediate Court of Appeals affirmed. Id. ¶
59. In 2015, however, the Supreme Court of Hawaii vacated the
limitations holding, thereby reinstating the case.
Id. ¶ 60; Patrickson v. Dole Food Co.,
137 Hawai'i 217 (2015).
back in Texas, in light of the Supreme Court's 2003
decision in Patrickson, the Delgado
plaintiffs filed a Rule 60 motion before Judge Lake
requesting vacatur of the 1995 forum non conveniens
dismissal, on the theory that the district court had lacked
jurisdiction ab initio. Id. ¶ 21; id.
Ex. 21. Judge Lake agreed that the permanent injunction was
now void. However, Judge Lake denied the motion to vacate the
forum non conveniens dismissal. Judge Lake reasoned
that a subsequent change in decisional law did not require
vacatur, because the court had had at least an
"arguable" basis for exercising jurisdiction.
Id. Ex. 22 at 8-10. And denying vacatur, he held,
would not deny the plaintiffs their day in court given the
return jurisdiction clause (which would enable him, as
necessary, to remand the case to state court). Id.
Ex. 22 at 14. Accordingly, on March 15, 2004, Judge Lake
issued another "Final Judgment, " this one vacating
the permanent injunction and dismissing the action for lack
of jurisdiction. Id. ¶ 23.
thereafter, the Costa Rican plaintiffs moved before Judge
Lake for remand to state court, so that a court of competent
jurisdiction could decide whether to reinstate their action.
Id. ¶ 24; id. Ex. 24. On June 18,
2004, Judge Lake granted the motion. Id. ¶ 25;
id. Ex. 25. In a memorandum and opinion addressing
both the Costa Rican plaintiffs' original 1996 motion to
reinstate and their 2004 motion to remand, Judge Lake
explained, first, that under the return jurisdiction clause,
the court had retained jurisdiction to "enforce the
agreements on which the dismissal was premised and to ensure
that an American forum remain[ed] available to adjudicate
plaintiffs' claims if and when the highest court of a
foreign country dismisse[d] them for lack of
jurisdiction." Id. Ex. 25 at 30. The motion to
reinstate, therefore, was "a direct continuation of the
prior proceedings over which the court expressly stated its
intent to retain jurisdiction." Id.
Judge Lake held, the court lacked jurisdiction to decide the
plaintiffs' motion to reinstate for two reasons. First,
review of such a motion was not necessary to enforce the
agreements on which dismissal was premised; and second, after
Patrickson, no other basis for federal jurisdiction
remained. Id. Because the court lacked jurisdiction,
Judge Lake stated, remand would be required so long as the
court had not yet issued a "final judgment" within
the meaning of 28 U.S.C. § 1447(c). JSPH Ex. 25 at
34-35. And the court had not issued such a judgment,
Judge Lake reasoned, because the 1995 forum non
conveniens dismissal had been "'final' only
for purposes of appealing the [decision]"-it had not
been "final" in the sense of "extinguish[ing]
the court's duty either to continue examining its subject
matter jurisdiction over this case, or to remand the
underlying cases to state court when and if it determine[d]
that it lack[ed] subject matter jurisdiction."
Id. Ex. 25 at 35-36. Accordingly, Judge Lake granted
the motion to remand. Id. Ex. 25 at 37-38.
case therefore returned to the Texas state courts. The
parties disputed whether the plaintiffs' claims should be
reinstated. Id. ¶ 26. The trial court granted
the plaintiffs' motion to reinstate, id., and
the Texas Court of Appeals affirmed, holding the case
properly reinstated. Id. ¶27.
September 2009, the plaintiffs finally moved for class
certification. Id. ¶ 30. The defendants,
however, immediately removed the case once more to federal
court. They argued that the plaintiffs' motion for class
certification was subject to the Class Action Fairness Act of
2005 ("CAFA"), 28 U.S.C. §§ 1332(d),
1453(b). Id. Ex. 31. This time, however, the federal
district court declined to find removal appropriate, because
the lawsuit had predated CAFA: "[T]his action, "
the court reasoned, "commenced with the filing of the
state-court petition in 1993, not in 2009 when the
[plaintiffs] submitted their class certification
motion." Id. Ex. 33 at 5. Because the action
long pre-dated CAFA, the defendants had no right to CAFA
removal, and therefore no basis for federal jurisdiction.
Id. The Fifth Circuit denied defendants leave to
appeal. Id. ¶¶ 34-35.
plaintiffs therefore finally returned to state court, only to
have their motion for class certification denied on June 3,
2010. Id. ¶ 37. The next day, plaintiffs
voluntarily dismissed the complaint. Id. ¶ 38.
year later, in June 2011, plaintiffs in this case
filed seven DBCP lawsuits in United States District Court for
the Eastern District of Louisiana. Id. ¶ 61. In
September 2012, these suits were dismissed on
statute-of-limitations grounds under Louisiana law,
id. ¶¶ 63-64; Chaverri v. Dole Food
Co.,896 F.Supp.2d 556, 568-74 (E.D. La. 2012). While
these cases were pending, however, the same plaintiffs, on
June 1 and 2, 2012, filed eight separate DBCP suits in the
United States District Court for the District of Delaware,
id. ¶ 69. The Delaware cases were eventually
consolidated, with Chavez designated the lead case.
Id. ¶¶ 70-72. Because the then-pending
Louisiana cases had been filed before the Delaware cases, the
Delaware district court dismissed plaintiffs' claim