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Chavez v. Dole Food Co., Inc.

United States District Court, D. Delaware

July 16, 2019

TOBIAS BERMUDEZ CHAVEZ, et al, Plaintiffs,
v.
DOLE FOOD COMPANY, INC., et al, Defendants.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon, Judge

         I. Introduction

         Presently before the court in this alleged mass toxic tort action is a motion for dismissal from the Ecuadorian portion of the action and for protection from party discovery filed by defendants Chiquita Brands International, Inc. ("Chiquita International"), Chiquita Brands, LLC ("Chiquita Brands"), and Chiquita Fresh North America, LLC ("Chiquita Fresh") (collectively, "Chiquita"). (D.I. 185) Chiquita brought this motion pursuant to the procedure incorporated in Paragraph 2(a) of the court's July 26, 2018, scheduling order. (D.I. 176) The action involves alleged exposure to toxic pesticides used on banana plantations in Ecuador, Panama, and Costa Rica. For purposes of case management, the scheduling order provides for three stages based on the location of the plantations with the Ecuadorian portion proceeding first. (D.I. 176 at ¶ 1) For the following reasons, I recommend DENYING defendants' motion without prejudice.[1]

         II. Background

         a. Facts

         Plaintiffs are foreign nationals from Ecuador, Panama, and Costa Rica. (D.I. 1 at ¶ 3) Plaintiffs claim that, as workers on banana-growing plantations in Ecuador, Panama, and Costa Rica between the 1960s and the 1980s, they used the pesticide dibromochloropropane ("DBCP") in the soil and over the fields. (Id. at ¶ 5) See also Chavez v. Dole Food Company, Inc., 836 F.3d 205, 211 (3d Cir. 2016). Workers allegedly wore no gloves, protective covering, or respiratory equipment to prevent absorption or inhalation of DBCP. (D.I. 1 at ¶ 5) Plaintiffs claim that none of the defendants informed them of the dangers of DBCP or provided them protective equipment. (Id.) Plaintiffs allege that, as a result, they now suffer from sterility, cancer, miscarriages, compromised renal systems, compromised respiration systems, chronic skin disorders, testicular atrophy, impotence, headaches, and chronic stomach ailments. (Id. at ¶¶ 8-10)

         b. Procedural History

          On June 1, 2012, plaintiffs originally filed this mass tort action against multiple defendants in the District Court of Delaware.[2] (D.I. 1) Defendants Dole Food Company, Inc., Dole Fresh Fruit Company, Standard Fruit Company, and Standard Fruit and Steamship Company (collectively, "Dole") filed a motion to dismiss on June 21, 2012, which the court granted on August 21, 2012. (D.I. 3; D.I. 22; D.I. 23) Defendant Occidental Chemical Corporation ("Occidental") filed a motion to dismiss on August 22, 2012, which was granted on March 29, 2013. (D.I. 24; D.I. 71) On October 24, 2012, plaintiffs filed a motion to stay the case. (D.I. 36)

         On October 26, 2012, Chiquita International filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). (D.I. 37) On the same day, Chiquita filed two motions: (1) a motion for a more definite statement, or in the alternative, to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and (2) a motion to dismiss based on res judicata and the statute of limitations.[3] (D.I. 39; D.I. 41) On May 30, 2013, Judge Andrews granted Chiquita International's motion to dismiss for lack of personal jurisdiction and dismissed Chiquita's other motions as moot with respect to Chiquita International. (D.I. 72) Judge Andrews also denied plaintiffs' motion to stay the case. (Id.) On July 8, 2013, Chiquita Brands and Chiquita Fresh filed a motion to dismiss pursuant to the first-filed rule and Fed.R.Civ.P. 12(b)(6) based on res judicata and the statute of limitations. (D.I. 76) On September 19, 2013, Judge Andrews granted Chiquita Brands and Chiquita Fresh's motion to dismiss, thereby closing the case. (D.I. 81; D.I. 82) On October 16, 2013, plaintiffs appealed the decisions granting defendants' motions to dismiss and denying plaintiffs' motion to stay. (D.I. 83; D.I. 84)

         On September 2, 2016, the Third Circuit vacated the dismissals, concluding that the District Court abused its discretion under the first-filed rule by dismissing the plaintiffs' claims with prejudice. (D.I. 87-2) The Third Circuit determined that the District Court erred by refusing to transfer the claims against Chiquita International after finding lack of personal jurisdiction. (Id.) Furthermore, the Third Circuit concluded that plaintiffs' suits in Delaware were not barred by res judicata. (Id.) The Third Circuit remanded for further proceedings consistent with its opinion. (Id.)

         Chiquita filed its answer to the complaint on November 23, 2016. (D.I. 112) On January 3, 2017, the parties filed a joint status report, wherein Chiquita International advised that although it previously filed a Rule 12(b)(2) motion objecting to lack of personal jurisdiction, it was waiving that motion and submitting to the jurisdiction of this court. (D.I. 138 at 1 n.1) On July 11, 2017, plaintiffs filed an unopposed motion to stay the action until the Third Circuit resolved the appeal in a related case, Marquinez v. Dole Food Company, 45 F.Supp.3d 420 (D. Del. 2014). (D.I. 164) The motion to stay was granted on July 25, 2017. (D.I. 165) On May 29, 2018, the Third Circuit vacated the orders of dismissal in Marquinez and remanded that case to the District Court for further proceedings. (D.I. 167) See also Marquinez v. Dole Company Inc., 724 Fed.Appx. 131 (3d Cir. 2018). This case was reopened on June 4, 2018.

         On July 26, 2018, Judge Andrews entered a scheduling order, which incorporated a statement that the Chiquita defendants did not believe they were proper parties with respect to the Ecuadorian plaintiffs.[4] (D.I. 176 at ¶ 2) On November 15, 2018, Chiquita filed the present motion to dismiss the Ecuadorian portion of the action and for protection from party discovery. (D.I. 185) The court held oral argument on the pending motion to dismiss on June 20, 2019. (D.I. 223)

         In the parties' answering and reply briefs, documents outside of the pleadings were included as exhibits. (D.I. 197; D.I. 204) Moreover, plaintiffs sought to introduce at oral argument, for the first time, more documents that had not been attached to the pleadings or the briefs, including the deposition of Barbara Howland ("Ms. Howland") in order to impeach Ms. Howland's affidavit, which Chiquita had attached to its reply brief.[5] (D.I. 204, Ex. 3; D.I. 223 at 53:9-54:5) The court excluded Ms. Howland's deposition. (D.I. 223 at 54:6-55:11) Following oral argument, plaintiffs filed an offer of proof pursuant to Fed.R.Evid. 103(a)(2), seeking to include the Howland deposition as part of the record for the instant motion. (D.I. 221)

         III. Legal Standard

         Consequently, the court considers Chiquita's motion as one for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).[6] Under Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). When deciding a Rule 12(c) motion for judgment on the pleadings based on an allegation that the plaintiff has failed to state a claim, the motion "is analyzed under the same standards that apply to a Rule ...


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