A federal court has dismissed as time-barred the claims of 3,000 foreign banana plantation workers allegedly exposed to pesticides. See Marquinez v. Dole Food Co., No. 12-695 (D.Del., 5/27/14).
This litigation stems from injuries allegedly caused during the use in the 1970's and 1980's of dibromochloropropane ("DBCP") on banana plantations of multiple defendants in Panama, Ecuador, Guatemala, and Costa Rica. Plaintiffs' May, 2012 complaint included the boilerplate assertion that no plaintiff knew the cause of his injuries before August 31, 1993. Why that day? In August 1993, a putative DBCP class action had been filed in Texas state court. The case was removed to federal court based on the Foreign Sovereign Immunities Act because one of the defendants was largely owned by the State of Israel. In July 1995, the federal court had dismissed the case based on forum non conveniens. See Delgado v. Shell Oil Co.,890 F.Supp. 1324, 1375 (S.D. Tex. 1995). The dismissal was affirmed by the Fifth Circuit, 231 F.3d 165 (5th Cir. 2000), cert. denied, 532 U.S. 972 (2001). The case was, after some procedural issues and delays, reinstated in Texas state court. Plaintiffs filed a motion for class certification in 2009, which the state court denied on June 3, 2010.
Here, defendants moved for summary judgment based on the running of the statutes of limitations- 1993 to 2012 seemed like a long time. Plaintiffs argued that the doctrine of cross-jurisdictional tolling applied, and that the denial of class certification in the previous class case did not occur until June 3, 2010, and therefore the claims here were still within the applicable statutes of limitations.
Cross-jurisdictional tolling can be defined as a rule under which a court in one jurisdiction tolls the applicable statute of limitations on a pending claim based on the previous filing of an overlapping class action in a different jurisdiction. The Delaware federal court had originally been inclined to reject defendant's motion because in Blanco v. AMVAC Chemical Corp., 2012 WL 3194412 (Del. Super. Aug. 8, 2012), the Delaware state court held that Delaware recognizes this type of cross-jurisdictional tolling, See also Dow Chemical Corp. v. Blanco, 67 A.3d 392, 394 (Del. 2013)(Delaware does recognize doctrine).
After further briefing, the court concluded, however, that tolling here stopped in 1995, when the case was dismissed. Extending tolling in the manner and to the extent advocated for by plaintiffs here would go far beyond the policy-based justifications for the doctrine. In American Pipe, for example, the Supreme Court found that tolling the statute of limitations for putative class members was appropriate because it promoted judicial economy such that individual class members need not file individual suits. 414 U.S. at 551. In Crown, Cork & Seal, the Supreme Court further explained that once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action. 462 U.S. at 354. Under the doctrine, tolling lasts only until the denial of class certification, not until the termination of the appeals process. Because the policy justification for tolling is to encourage class members reasonably to rely on the class action to protect their rights, tolling ends when reliance on the named plaintiffs' prosecution of the matter ceases to be reasonable. Here, the dismissal of the federal class action was sufficient to end any reasonable reliance -- the plaintiffs' home countries did not provide for a class action, so each individual was on his own, regardless of forum.
In addition to the objective reasonableness of an individual's reliance on the action to protect his or her rights, the prejudice to the defendant based upon the principles underlying class actions and statutes of limitations is also a relevant concern.