      Case: 12-31026          Document: 00512379325              Page: 1      Date Filed: 09/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                                        FILED
                                                                                   September 19, 2013

                                             No. 12-31026                             Lyle W. Cayce
                                                                                           Clerk



EDUARDO ALVARADO CHAVERRI; JAVIER ANTONIO C. MENA; FELIZ
PEDRO CHEVEZ; VICTOR JULIA LORIA RAMIREZ; OLMA MATARRITA;
ET AL

                                                  Plaintiffs - Appellants

v.

DOLE FOOD COMPANY INCORPORATED; DOLE FRESH FRUIT
COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT &
STEAMSHIP COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL
CHEMICAL CORPORATION, individually & successor to Occidental
Chemical Company, & Occidental Chemical Agricultural Products,
Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas,
Best Fertilizer Company; AMVAC CHEMICAL CORPORATION; SHELL OIL
COMPANY; CHIQUITA BRANDS INTERNATIONAL INCORPORATED;
CHIQUITA BRANDS INCORPORATED; MARITROP TRADING
CORPORATION; DEL MONTE FRESH PRODUCE, N.A.,

                                                   Defendants - Appellees
------------------------------------------------------------------------------------------------------------

TOBIAS BERMUDEZ CHAVEZ; GERARDO ANTONIO FONSECA TORRES;
FRANKLIN GUILLEN SALAZAR; GARCIA MONTES JOSE GABINO;
MARIANO DE LOS ANGELESS OBANDO PIZARRO; ET AL,

                                                  Plaintiffs - Appellants

v.

DOLE FOOD COMPANY INCORPORATED; DOLE FRESH FRUIT
COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT &
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                                             No. 12-31026

STEAMSHIP COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL
CHEMICAL CORPORATION, individually & successor to Occidental
Chemical Company, & Occidental Chemical Agricultural Products,
Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas,
Best Fertilizer Company; AMVAC CHEMICAL CORPORATION; CHIQUITA
BRANDS INTERNATIONAL INCORPORATED; CHIQUITA BRANDS
INCORPORATED; MARITROP TRADING CORPORATION; DEL MONTE
FRESH PRODUCE, N.A., INCORPORATED; SHELL OIL COMPANY,

                                                   Defendants - Appellees
------------------------------------------------------------------------------------------------------------

BERNARDO ABREGO JORIETO; SIMON ABREGO PINEDA; ONCHI
ABREGO QUINTERO; DILVIO ALVAREZ MORENO; JUAN CHOLY
APARICIO; ET AL,

                                                  Plaintiffs - Appellants

v.

DOLE FOOD COMPANY INCORPORATED; DOLE FRESH FRUIT
COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT &
STEAMSHIP COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL
CHEMICAL CORPORATION, individually & successor to Occidental
Chemical Company, & Occidental Chemical Agricultural Products,
Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas,
Best Fertilizer Company; AMVAC CHEMICAL CORPORATION; SHELL OIL
COMPANY; CHIQUITA BRANDS INTERNATIONAL INCORPORATED;
CHIQUITA BRANDS INCORPORATED; MARITROP TRADING
CORPORATION; DEL MONTE FRESH PRODUCE, N.A., INCORPORATED,

                                                   Defendants - Appellees
------------------------------------------------------------------------------------------------------------

ALVARADO ALFARO MIGUEL FRANCISCO; EDGAR ARROYO
GONZALEZ; MARCELO COREA COREA; JOSE DIAZ BENAVIDEZ;
GONZALEZ MARIN MARVIN, ET AL,

                                                  Plaintiffs - Appellants

v.


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                                             No. 12-31026

DOLE FOOD COMPANY INCORPORATED; DOLE FRESH FRUIT
COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT &
STEAMSHIP COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL
CHEMICAL CORPORATION, individually & successor to Occidental
Chemical Company, & Occidental Chemical Agricultural Products,
Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas,
Best Fertilizer Company; AMVAC CHEMICAL CORPORATION; SHELL OIL
COMPANY; CHIQUITA BRANDS INTERNATIONAL INCORPORATED;
CHIQUITA BRANDS INCORPORATED; MARITROP TRADING
CORPORATION; DEL MONTE FRESH PRODUCE, N.A., INCORPORATED,

                                                   Defendants - Appellees
------------------------------------------------------------------------------------------------------------

JORGE LUIS AGUILAR MORA; CARLOS AGUIRRE ALVAREZ, also known
as Carlos Aguirre Flores Alvarez; JUAN JOSE ARGUELLO JIMINEZ;
JORGE BUSTOS OSES; RAFAEL BUSTOS BUSTOS; ET AL,

                                                  Plaintiffs - Appellants

v.

DOLE FOOD COMPANY INCORPORATED; DOLE FRESH FRUIT
COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT &
STEAMSHIP COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL
CHEMICAL CORPORATION, individually & successor to Occidental
Chemical Company, & Occidental Chemical Agricultural Products,
Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas,
Best Fertilizer Company; AMVAC CHEMICAL CORPORATION; SHELL OIL
COMPANY; CHIQUITA BRANDS INTERNATIONAL INCORPORATED;
CHIQUITA BRANDS INCORPORATED; MARITROP TRADING
CORPORATION; DEL MONTE FRESH PRODUCE, N.A., INCORPORATED,

                                                   Defendants - Appellees
------------------------------------------------------------------------------------------------------------

GERMAN EDUARDO BRAVO VALDERRAMOS; EDWIN CERDAS MASIS;
JORGE LUIS CORDERO BAQUERO; JOHNNY ESPINOZA GAMBOA;
ESNEY HERNANDEZ FAJARDO; ET AL,

                                                  Plaintiffs - Appellants


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                                             No. 12-31026

v.

DOLE FOOD COMPANY INCORPORATED; DOLE FRESH FRUIT
COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT &
STEAMSHIP COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL
CHEMICAL CORPORATION, individually & successor to Occidental
Chemical Company, & Occidental Chemical Agricultural Products,
Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas,
Best Fertilizer Company; AMVAC CHEMICAL CORPORATION; SHELL OIL
COMPANY; CHIQUITA BRANDS INTERNATIONAL INCORPORATED;
CHIQUITA BRANDS INCORPORATED; MARITROP TRADING
CORPORATION; DEL MONTE FRESH PRODUCE, N.A., INCORPORATED,

                                                   Defendants - Appellees
------------------------------------------------------------------------------------------------------------

EDWIN AGUERO JIMENEZ; JORGE AGUERO RETANA; ALBERTO
CONEJO CHACON; DIDIER CORDERO CISNEROS; ESTANISLAO CRUZ;
ET AL,

                                                  Plaintiffs - Appellants

v.

DOLE FOOD COMPANY INCORPORATED; DOLE FRESH FRUIT
COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT &
STEAMSHIP COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL
CHEMICAL CORPORATION, individually & successor to Occidental
Chemical Company, & Occidental Chemical Agricultural Products,
Incorporated, Hooker Chemical & Plastics, Occidental Chemical of Texas,
Best Fertilizer Company; AMVAC CHEMICAL CORPORATION; SHELL OIL
COMPANY; CHIQUITA BRANDS INTERNATIONAL INCORPORATED;
CHIQUITA BRANDS INCORPORATED; MARITROP TRADING
CORPORATION; DEL MONTE FRESH PRODUCE, N.A., INCORPORATED,

                                                  Defendants - Appellees




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                                       No. 12-31026



                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-1289


Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The plaintiffs appeal the district court’s order dismissing their suit as
time-barred under Louisiana’s one-year prescriptive period. We AFFIRM.


                      FACTS AND PROCEDURAL HISTORY
       The plaintiffs claim they were injured by the pesticide dibromo
chloropropane (“DBCP”), to which they were exposed when working on banana
farms in Costa Rica, Ecuador, and Panama between 1960 and 1992. The
relevant background of the DBCP litigation across the United States as well as
in other countries beginning in 1993 is described in significant detail in the
district court’s order dismissing this suit. See Chaverri v. Dole Food Co., Inc.,
896 F. Supp. 2d 556, 559-69 (E.D. La. 2012). The present appeal involves seven
consolidated actions that 258 agricultural workers brought in the United States
District Court for the Eastern District of Louisiana, filed between May 31 and
June 2, 2011. We will use the lead plaintiff’s name, Chaverri, to refer to all. The
defendants in this action, whom we will collectively call “Dole Food,” are entities
alleged to have either manufactured, distributed, or used DBCP on the farms
where the plaintiffs worked between 1960 and 1992.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                  No. 12-31026
      Dole Food filed a motion for summary judgment contending Chaverri’s
claims were time-barred, or “prescribed,” under Louisiana law. The district
court in this diversity suit applied Louisiana prescription rules. It determined
that Chaverri’s claims were facially prescribed. Even if prescription had been
temporarily interrupted, such interruption ended long ago. The suit was now
time-barred in Louisiana.
      On appeal, Chaverri argues that a putative class action filed in Texas in
1993, later dismissed but then reinstated, has sufficiently interrupted
prescription.   Chaverri also asks for remand to the district court for
consideration of a new decision by the Louisiana Supreme Court.


                                  DISCUSSION
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as did the district court. Richard v. Wal-Mart
Stores, Inc., 559 F.3d 341, 344 (5th Cir. 2009).             Summary judgment is
appropriate if the moving party can show “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).


I. Application of Louisiana’s prescription rules
      All plaintiffs allege they were exposed to DBCP at least 18 years before
these lawsuits were filed in 2011. Accordingly, the district court held that all
claims were facially prescribed under Louisiana’s governing one-year
prescriptive period. See LA. CIV. CODE art. 3492. Chaverri then had the burden
of proving “suspension, interruption, or some exception to prescription . . . .”
Terrebonne Parish Sch. Bd. v. Mobil Oil, 310 F.3d 870, 877 (5th Cir. 2002). To
meet this burden, Chaverri argued that Louisiana courts would recognize the
filing of putative class actions in other states – what the parties have labeled

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                                   No. 12-31026
cross-jurisdictional tolling – as a basis for interrupting prescription. The district
court assumed without holding that a putative class action filed in federal court
in Texas in 1993 interrupted prescription.         The court held, though, that
dismissal of that suit in 1995 would have caused the prescriptive period to begin
anew. See LA. CIV. CODE ANN. art. 3463. After reviewing subsequent procedural
events in that suit, the court concluded that Chaverri’s claims were filed in 2011
well beyond Louisiana’s one-year prescriptive period. 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 prescription
was interrupted for a sufficient period of time. We will discuss below a new
Louisiana Supreme Court precedent that Chaverri argues is relevant.
       On appeal, Chaverri renews the arguments about the interruption of
prescription and also advances a claim – which Dole Food contends is waived by
Chaverri’s failure to brief the issue in the district court – of issue preclusion.
Chaverri argues that the Texas litigation has been interpreted by other courts
around the country adversely to Dole Food, precluding the district court here
from reaching a contrary decision. Issue preclusion, also known as collateral
estoppel, requires that the same issue be presented in both the prior and
current litigation. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir.
2005). The district court in its thorough ruling discussed many of the other
DBCP decisions. See Chaverri, 896 F. Supp. 2d at 561-62. Chaverri’s arguments
fail because none of the decisions address the specific issue presented in this
case: did the putative class action in Texas interrupt prescription of Chaverri’s
2011 claims under the specific Louisiana rules?
      The other argument raised by Chaverri, and which Dole Food also
contends was not raised in the district court, is that the district court’s order
violated the Rooker-Feldman doctrine. That doctrine prohibits a state-court
loser from using a federal court to gain the equivalent of a reversal. See Exxon

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                                  No. 12-31026
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005). The motion
for summary judgment in this case did not invite the district court to reverse any
state-court judgment addressing prescription in Louisiana.


II. The Louisiana Supreme Court’s decision in Quinn
      In its order granting summary judgment, the district court assumed for
the purposes of its analysis that Louisiana recognized cross-jurisdictional
interruption of prescription.    After the district court’s grant of summary
judgment but before the appellate briefing here, the Louisiana Supreme Court
issued a decision rejecting cross-jurisdictional interruption of prescription.
Quinn v. Louisiana Citizens Prop. Ins. Corp., – So.3d — , No. 2012-CC-0152,
2012 WL 5374255 (La. Nov. 2, 2012).
      The Quinn court analyzed Article 596 of the Louisiana Code of Civil
Procedure, which was adopted in 1997 and provides for suspension of
prescription by the filing of class actions. Quinn, 2012 WL 5374255, at *6. The
court held that the text of Article 596 was so closely tied to the specific
procedures of Louisiana class actions that prescription could be suspended only
by “putative class actions filed in Louisiana state courts.” Id. at *7. At least
since 1997, then, cross-jurisdictional tolling has not existed in Louisiana. Dole
Food would have us go further and hold that the Quinn court’s policy reasoning
indicates such tolling has never been recognized. See id. at *8-9. It is not
necessary to decide whether Quinn clearly addressed the state’s law prior to
1997. It is enough that Quinn provides no analytical assistance to Chaverri. On
the face of the complaint, Louisiana’s one-year prescriptive period has expired.
Under Louisiana law, Chaverri had the burden of establishing some rule of
suspension, interruption, or other exception to save these facially-prescribed
claims. See Terrebonne Parish Sch. Bd., 310 F.3d at 877. Quinn makes it clear
that class actions filed in other states no longer interrupt prescription and gives

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                                  No. 12-31026
no support to an argument that such suits ever would have done so. Therefore,
Chaverri’s burden remains unmet.
      Chaverri seeks a remand to permit the district court to determine the
relevance of Quinn and engage in a choice-of-law analysis. Chaverri contends
that Quinn is expressly premised on a Louisiana statute and thus leaves open
the question of its applicability to a federal court proceeding. We see no basis for
remand. The district court sitting in diversity properly applied Louisiana’s
substantive law of prescription. See, e.g., Orleans Parish Sch. Bd. v. Asbestos
Corp., 114 F.3d 66, 68 (5th Cir. 1997). Therefore a new choice-of-law analysis
would be superfluous. There is no need for the district court to review the effect
of Quinn as we have done so after full briefing by the parties.
      AFFIRMED.




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