    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                 )
EDUARDO ALVARADO                 )
CHAVERRI, et al.,                )
                                 )
    Plaintiffs,                  )
                                 )
    v.                           )    C.A. No. N12C-06-017 ALR
                                 )
DOLE FOOD COMPANY, INC.,         )
et al.,                          )
                                 )
    Defendants.                  )

                     Submitted: September 25, 2019
                      Decided: November 8, 2019

     Upon Plaintiffs’ Motion to Vacate Judgment Under Rule 60(b)(6)
                                 DENIED

                     MEMORANDUM OPINION
Andrew C. Dalton, Esquire, Dalton & Associates, P.A., Wilmington, Delaware,
Scott M. Hendler, Esquire, Hendler Flores, PLLC, Austin, Texas, Attorneys for
Plaintiffs.

Somers S. Price, Jr., Esquire, Potter, Anderson & Corroon LLP, Wilmington,
Delaware; Andrea Neuman, Esquire, Thomas Manakides, Gibson, Dunn &
Crutcher, New York, New York, Attorneys for Defendants Dole Food Company,
Inc., Dole Fresh Fruit Company, Standard Fruit Company, and Standard Fruit and
Steamship Company.

Adam Orlacchio, Esquire, Brandon McCune, Esquire, Blank Rome LLP,
Wilmington, Delaware, Attorneys for Defendants Chiquita Brands International,
Inc., Chiquita Brands, LLC, and Chiquita Fresh North America, LLC.

Donald E. Reid, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington,
Delaware, Michael L. Brem, Esquire, Shirrmeister, Diaz-Arrastia, Brem, LLP,
Houston, Texas, Attorneys for Defendant Dow Chemical Company.

Timothy Jay Houseal, Esquire, Jennifer M. Kinkus, Esquire, William E. Gamgort,
Esquire, Young, Conaway, Stargatt & Taylor, LLP, Wilmington, Delaware,
Attorneys for Occidental Chemical Corporation.

John C. Phillips, Esquire, Phillips, Goldman, McLaughlin & Hall, P.A.,
Wilmington, Delaware, Attorney for Defendant AMVAC Chemical Corporation.

Kelly E. Farnan, Esquire, Katharine L. Mowery, Esquire, Richards, Layton &
Finger, P.A., Wilmington, Delaware, Craig Stanfield, King & Spalding, LLP,
Houston, Texas, Attorneys for Defendant Shell Oil Company.

James Semple, Esquire, Cooch & Taylor, P.A., Wilmington, Delaware, Attorney
for Defendant Del Monte Fresh Produce, N.A., Inc.

Rocanelli, J.




                                       1
      Six years ago today, this Court dismissed this case on grounds of forum non

conveniens under Delaware’s McWane Doctrine1 (“November 2013 Dismissal

Order”).2 The basis for dismissal of this action was that the claims made in this

Court had already been filed in in the United States District Court for the Eastern

District of Louisiana (“Louisiana District Court”). By the time this Court granted

the motion to dismiss at issue here, the Louisiana District Court had already

dismissed Plaintiffs’ claims on statute of limitations grounds and the United States

Court of Appeals for the Fifth Circuit had already affirmed the Louisiana District

Court’s dismissal on those grounds. The Delaware Supreme Court, sitting en banc,

adopted this Court’s reasoning and affirmed the November 2013 Dismissal Order on

October 20, 2014.3 Accordingly, this lawsuit was dismissed because Plaintiffs had

first pursued their claims in another court even though the claims in that other court

had already been dismissed.



1
  See McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d
281, 283 (Del. 1970) (setting forth the principle that Delaware courts should freely
exercise discretion in staying a Delaware action “when there is a prior action pending
elsewhere, in a court capable of doing prompt and complete justice, involving the
same parties and the same issues”); see also Lisa, S.A. v. Mayorga, 993 A.2d 1042,
1047 (Del. 2010) (“[W]here the Delaware action is not the first filed, the policy that
favors strong deference to a plaintiff’s initial choice of forum requires the court
freely to exercise its discretion in favor of staying or dismissing the Delaware action
(the ‘McWane doctrine’).”).
2
  See Chaverri v. Dole Food Co., 2013 WL 5977413 (Del. Super. Ct. Nov. 8, 2013),
aff’d, 2014 WL 7367000 (Del. Oct. 20, 2014).
3
  See Chaverri v. Dole Food Co., 2014 WL 7367000 (Del. Oct. 20, 2014) (en banc).
                                             2
        Now Plaintiffs have moved to vacate the November 2013 Dismissal Order

pursuant to Superior Court Rule of Civil Procedure 60(b)(6) on the basis that “[t]hree

groundbreaking rulings” issued since the November 2013 Dismissal Order have so

radically disrupted the legal foundations of this Court’s November 2013 Dismissal

Order that the dismissal can no longer stand. Defendants oppose Plaintiffs’ Motion.

                FACTUAL AND PROCEDURAL BACKGROUND

        Plainitffs’ claims arise from alleged exposure to the pesticide 1, 2, dibromo 3,

chloropropane (“DBCP”) by persons employed on various banana farms throughout

Central America, including Costa Rica, Ecuador, and Panama.

I.      Litigation in Texas and Various “Home” Countries

        In 1993, Plaintiffs’ Texas counsel filed a class action lawsuit in Texas state

court (“Texas State Action”) on behalf of all persons allegedly exposed to DBCP

between 1965 and 1990 as a result of actions taken by Defendants. 4 In 1994,

Defendants removed the Texas State Action to the United States District Court for

the Southern District of Texas (“Texas District Court”), where the case was

consolidated with other DBCP cases (“Texas Federal Action”).5

        In 1995, the Texas District Court dismissed the Texas Federal Action for

forum non conveniens, finding the courts of Plaintiffs’ home countries better suited



4
    See Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1337 (S.D. Tex. 1995).
5
    See id. at 1338.
                                           3
to resolve Plaintiffs’ claims (“Dismissal Order”).6 However, the Dismissal Order

permitted Plaintiffs to return to the Texas District Court to resume the Texas Federal

Action “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.”7

      After the foreign courts declined jurisdiction, in 2004, the Texas Federal

Action was reinstated and the claims remanded to the Texas state court8 where the

parties litigated Plaintiffs’ claims until 2010 when the Texas state court denied

Plaintiffs’ motion for class certification.9

II.   Plaintiffs Pursue Claims in Louisiana

      The class certification denial did not conclude the litigation.         Instead,

members of the putative class struck out on their own to seek relief through

individual actions. Between May 31, 2011 and June 2, 2011, members of the

putative class began filing actions in the Louisiana District Court, resulting in seven

actions with 291 plaintiffs, all of which the Louisiana District Court consolidated




6
  See id. at 1372–73.
7
  Id. at 1375.
8
  See Rodriguez Delgado v. Shell Oil Co., 322 F. Supp. 2d 798, 801–02, 816–17
(S.D. Tex. 2004).
9
  Carcamo v. Shell Oil Co., No. 93-C-2290 (Tex. Dist. Ct. Brazoria Cty. June 3,
2010).
                                      4
into a single action proceeding under a caption resembling the caption in this case:

Chaverri v. Dole Food Co. (“Louisiana Action”).10

      Over the next year, Plaintiffs’ counsel made a number of strategic decisions

which involved distributing the risk to the putative class by dividing up the plaintiffs

from the Texas litigation into a series of lawsuits filed in the federal and state courts

of Delaware. First, a single plaintiff filed an action in the Delaware Superior Court

on July 21, 2011 (“Blanco”).11 On May 31, 2012, this Court issued a letter notifying

counsel that Blanco may proceed because, in part, Delaware law recognized the

concept of cross-jurisdictional tolling.12 Over the course of the next twenty-four

hours, and while the Louisiana Action was still pending, Plaintiffs’ counsel filed

three additional actions in Delaware: two in federal court (“Marquinez” and

“Chavez”) and the instant action. The plaintiffs in all three actions were also

plaintiffs in the Louisiana Action, and all three actions involved the same defendants

and nearly identical claims as those involved in the Louisiana Action.

      On August 2, 2012, Defendants filed a motion to dismiss the instant action.

Defendants argued that this case should be dismissed based on forum non conveniens

because the Complaint in this action mirrored the complaint in the first-filed



10
   896 F. Supp. 2d 556 (E.D. La. 2012).
11
   See Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *5 (Del. Super. Ct.
Aug. 8, 2012).
12
   Pls.’ Mot. Vacate J. Rule 60(b)(6), Ex. A.
                                          5
Louisiana Action. Plaintiffs opposed the Motion to Dismiss on the basis that the

Louisiana Action might be time-barred.         Plaintiffs’ concerns materialized on

September 17, 2012, when the Louisiana District Court dismissed the Louisiana

Action with prejudice under the Louisiana prescription statute.13

      One day after the Louisiana Action’s dismissal, this Court granted

Defendants’ application for interlocutory appeal in the Blanco matter.14 The Court

in the instant action stayed Defendants’ Motion to Dismiss pending the Delaware

Supreme Court’s decision in Blanco. This Court lifted the stay in the instant action

after the Delaware Supreme Court issued its opinion in Blanco (the “Blanco

Decision”),15 and a hearing was scheduled on Defendants’ Motion to Dismiss.

Before the hearing took place, the Fifth Circuit affirmed the Louisiana District

Court’s dismissal of Plaintiffs’ claims in the Louisiana Action on statute of

limitations grounds.16


13
   See Chaverri v. Dole Food Co., 896 F. Supp. 2d 556, 571–72, 574 (E.D. La. 2012).
14
   See Blanco v. AMVAC Chem. Corp., 2012 WL 6215301 (Del. Super. Ct. Sept. 18,
2012). In granting the application, this Court certified the following question: “Does
Delaware recognize the concept of cross-jurisdictional tolling?” Id.
15
   In the Blanco Decision, the Delaware Supreme Court held that Delaware law
recognizes the concept of cross-jurisdictional tolling. See Dow Chem. Corp. v.
Blanco, 67 A.3d 392, 393 (Del. 2013). This Court later found the Delaware Supreme
Court’s answer and opinion in Blanco not to be applicable to this Court’s analysis
and disposition of Defendant’s Motion to Dismiss because the Delaware Supreme
Court explicitly limited its ruling in Blanco to Delaware’s recognition of cross-
jurisdictional tolling, which the parties did not raise in this action. See Chaverri v.
Dole Food Co., 2013 WL 5977413, at *2 (Del. Super. Ct. Nov. 8, 2013).
16
   See Chaverri v. Dole Food Co., 546 F. App’x 409, 413–15 (5th Cir. 2013).
                                           6
      On November 8, 2013, this Court issued its November 2013 Dismissal

Order,17 finding that the McWane Doctrine permits Delaware courts to freely

exercise discretion in favor of staying or dismissing a second-filed Delaware action

when “(1) there is a prior action pending elsewhere (2) in a court capable of doing

prompt and complete justice, and (3) involving the same parties and the same

issues.”18 The animating principle behind this preference, this Court explained, is

the policy that favors strong deference to a plaintiff’s initial choice of forum. 19 “This

policy is meant to discourage forum shopping and promote the orderly

administration of justice ‘by recognizing the value of confining litigation to one

jurisdiction, whenever that is both possible and practical.’” 20 Finding the instant

action met the three prongs of the McWane Doctrine, this Court granted Defendants’

Motion to Dismiss.21 On October 20, 2014, the Delaware Supreme Court, sitting en

banc, adopted this Court’s reasoning and affirmed the November 2013 Dismissal

Order.22 In the meantime, the sole plaintiff in Blanco voluntarily dismissed his


17
   Chaverri v. Dole Food Co., Inc., 2013 WL 5977413, at *3 (Del. Super. Ct. Nov.
8, 2013).
18
   Chaverri v. Dole Food Co., Inc., 2013 WL 5977413, at *1 (Del. Super. Ct. Nov.
8, 2013) (citing McWane, 263 A.2d at 283).
19
   Id. at *2 (citing Lisa, 993 A.2d at 1047).
20
   Id. (quoting Lisa, 993 A.2d at 1047).
21
   Id. at *2–3.
22
   Chaverri v. Dole Food Co., 2014 WL 7367000 (Del. Oct. 20, 2014). Plaintiffs
did not appeal this Court’s November 2013 Dismissal Order as to all Defendants,
but only as to Dole Food Company, Inc., Dole Fresh Fruit Company, Standard Fruit
Company, and Standard Fruit and Steamship Company.
                                           7
claims against Defendants on October 7, 2014, after Defendants moved for summary

judgment on grounds including the statute of limitations and the plaintiff’s “inability

to demonstrate any exposure [to DBCP] or causation.”23

III.   Developments in the Federal Litigation

       While the Delaware state-court litigation ended in 2014 in the Blanco and

Chaverri cases, the parties to the two actions filed in the United State District Court

for the District of Delaware (“Delaware District Court”) continue to litigate their

claims to this day.    Plaintiffs now argue that “three pivotal and precedential

decisions” issued in those federal cases warrant reopening this matter.24

       A.    The Third Circuit’s Decision in Chavez v. Dole

       The first decision Plaintiffs cite was issued by the United States Court of

Appeals for the Third Circuit in the Chavez case more than two years before

Plaintiffs filed the instant Motion to Vacate. In Chavez, the Delaware District Court

had dismissed the plaintiffs’ claims under the federal first-filed rule.25 The District

Court observed that the federal first-filed rule provides that “when two federal

district courts have the same case, the court which has the first case is the one that

should decide the case.”26 In light of this observation, the District Court concluded


23
   See Blanco v. AMVAC Chem. Corp., No. N11C-07-149, at *2 (Del. Super. Ct. Oct.
9, 2014).
24
   Pls.’s Mem. Supp. Mot. Vacate Under Rule 60(b)(6), at 3.
25
   See Chavez v. Dole Food Co., 2012 WL 3600307, at *1–2 (D. Del. Aug. 21, 2012).
26
   Id. at *1.
                                       8
that because the plaintiffs had filed the Louisiana Action first, the Delaware District

Court case should be dismissed with prejudice.27

      While a Third Circuit panel initially affirmed the District Court’s decision,

the en banc Third Circuit vacated the District Court’s order on September 2, 2016.28

The Third Circuit concluded that federal courts exercising discretion under the

federal first-filed rule, “in the vast majority of cases, . . . should stay or transfer a

second-filed suit.”29 The Third Circuit therefore held that, based on the facts of the

Chavez case and the federal law governing the federal first-filed rule, the District

Court abused its discretion by dismissing the case with prejudice.30

      B.     The Two Decisions in Marquinez v. Dole Food Co.

      The next two decisions Plaintiffs cite in support of their Motion to Vacate

arose in the federal Marquinez case in which the Delaware District Court issued two

separate orders. In the first order, the District Court dismissed fourteen plaintiffs’

claims under the federal first-filed rule based on their identical claims in the

Louisiana Action (“First-Filed Decision”).31 In the second order, the District Court

granted summary judgment in favor of the defendants, finding Delaware’s statute of



27
   See id. at *2.
28
   See Chavez v. Dole Food Co., 836 F.3d 205 (3d Cir. 2016).
29
   Id. at 220.
30
   Id. at 221–22.
31
   See Marquinez v. Dole Food Co., 2013 WL 12309514, at *1 (D. Del. Sept. 19,
2013).
                                        9
limitations barred the remaining plaintiffs’ claims (“Tolling Decision”).32

Specifically, the District Court found that the statute of limitations stopped tolling

in 1995 when the Texas District Court dismissed the Texas Federal Action on the

grounds of forum non conveniens.33

      The Marquinez plaintiffs appealed both orders, and the Third Circuit certified

to the Delaware Supreme Court the question of whether class action tolling ended

when the Texas District Court dismissed the Texas Federal Action based on forum

non conveniens.34    Plaintiffs cite the Delaware Supreme Court’s answer and

accompanying opinion as the second groundbreaking legal development supporting

the Motion to Vacate.

             1.     The Delaware Supreme Court’s Tolling Decision

      On March 15, 2018, the Delaware Supreme Court issued its answer to the

Third Circuit’s certified question, finding Delaware’s statute of limitations

continued to toll after the Texas District Court dismissed the Texas Federal Action

in 1995.35 In reaching this conclusion, the Court adopted the rule that “cross-

jurisdictional class action tolling ends only when a sister trial court has clearly,

unambiguously, and finally denied class action status.”36 The Court observed that


32
   See Marquinez v. Dole Food Co., 45 F. Supp. 3d 420, 426 (D. Del. 2014).
33
   See id. at 423.
34
   See Marquinez v. Dow Chem. Co., 183 A.3d 704, 705 (Del. 2018).
35
   Id. at 705–06.
36
   Id. at 711.
                                       10
this approach “is consistent with [the Blanco Decision’s] rationale of avoiding

‘wasteful and duplicative litigation.’”37

               2.   The Third Circuit Adopts the Delaware Supreme Court’s
                    Opinion

      The Third Circuit issued the Plaintiffs’ final so-called groundbreaking

decision on May 29, 2018—seven months before Plaintiffs filed the Motion to

Vacate.38 First, the court adopted the Delaware Supreme Court’s answer to the Third

Circuit’s certified question and vacated the Delaware District Court’s Tolling

Decision.39    Next, the court vacated the Delaware District Court’s First-Filed

Decision, citing its decision in Chavez and noting that the circumstances in Chavez

were “materially identical” to those in the lower court’s First-Filed Decision.40

                               LEGAL STANDARD

      Superior Court Rule of Civil Procedure 60(b) controls motions to vacate and

provides, in relevant part: “On motion and upon such terms as are just, the Court

may relieve a party or a party’s legal representative from a final judgment, order, or

proceeding for . . . any other reason justifying relief from the operation of the

judgment.”41



37
   Id. (quoting Dow Chem. Corp. v. Blanco, 67 A.3d 392, 395 (Del. 2013)).
38
   See Marquinez v. Dole Food Co., 724 F. App’x 131 (3d Cir. 2018).
39
   See id. at 132.
40
   See id.
41
   Super. Ct. Civ. R. 60(b)(6).
                                       11
      A motion to vacate a judgment or order “pursuant to . . . Superior Court Civil

Rule 60(b) is addressed to the sound discretion of the Court.”42 “Delaware courts

receive such motions with favor because they promote Delaware’s strong judicial

policy of deciding cases on the merits and giving parties to litigation their day in

court.” 43 As such, all doubts should be resolved in favor of the movant.44

      Rule 60(b) implicates two important values: (1) “ensuring the integrity of the

judicial process” and (2) “the finality of judgments.”45 “Because of the significant

interest in preserving the finality of judgments, Rule 60(b) motions are not to be

taken lightly or easily granted.”46

                                      DISCUSSION

      The “significant interest in preserving the finality of judgments” is an

important consideration for this Court,47 and several issues arising from Plaintiffs’

Motion to Vacate would undermine that policy if the Court granted their Motion. As

a preliminary matter, the timeliness of Plaintiffs’ filing precludes the Court from

reaching the merits of their Motion. The Court need not reach the merits of a Rule



42
   Verizon Del., Inc. v. Baldwin Line Const. Co., 2004 WL 838610, at *1 (Del. Super.
Ct. Apr. 13, 2004).
43
   Id. at *1.
44
   Id.
45
   Wilson v. Montague, 2011 WL 1661561, at *2 (Del. May 3, 2011) (citations
omitted).
46
   Id.
47
   See MCA, Inc. v. Matsushita Elec. Indus. Co., 785 A.2d 625, 635 (Del. 2001).
                                         12
60(b) motion if the Court determines that the motion was untimely.48 Moreover,

even if the Court did not find Plaintiffs’ Motion untimely, Plaintiffs’ Motion fails on

the merits because it presents no extraordinary circumstances. Thus, in the interest

of upholding the integrity of the judicial process, the Motion to Vacate shall be

denied for the reasons set forth in the following discussion.

I.    The Motion to Vacate Is Untimely

      As a preliminary matter, the Court must consider whether Plaintiffs filed their

Motion to Vacate in a timely manner. While Rule 60(b) does not require a movant

to file a motion to vacate within a particular time period, Delaware courts have held

that unreasonable delay in bringing such a motion will preclude the Court from

granting relief.49 The party seeking relief under Rule 60(b) is “obliged to act without

unreasonable delay.”50 In determining whether there is unreasonable delay, the

Court must look at all circumstances surrounding the delay.51

      Delaware case law varies on what constitutes an unreasonable delay. In

Schremp v. Marvel, the Delaware Supreme Court affirmed the Superior Court’s

denial of the plaintiff’s Rule 60(b) motion because it was untimely when the plaintiff

waited two months after the plaintiff had knowledge of the basis to file a motion to



48
   Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979).
49
   Id.
50
   Id.
51
   Id. at 120–21.
                                       13
vacate.52 In reaching that decision, the Court in Schremp took into account the

“inflexible time” that the Delaware Rules of Civil Procedure provide parties in

pursuing other forms of relief.53 In Opher v. Opher, the Delaware Family Court

ruled that a Rule 60(b) motion was untimely when the petitioner waited eleven

months to file the motion.54 The Family Court stated, “To allow relief in such

egregious circumstances would encourage parties to disregard the procedures and

time limits imposed elsewhere in the Court Rules.”55         In Christina Board of

Education v. 322 Chapel Street, the Superior Court noted the purpose behind Rule

60(b): even though Rule 60(b) provides “relief to a party who for one of the

articulated reasons has missed the time for a direct appeal, it is not available to a

party who has shown an unexplained disregard of the court rules as well as his own

interest.”56




52
   Id. at 120 (finding a delay of two months unreasonable); see also Opher v. Opher,
531 A.2d 1228, 1234 (Del. Fam. Ct. 1987) (finding a delay of eleven months
unreasonable); Ramirez v. Rackley, 70 A.2d 18 (Del. Super. Ct. 1949) (finding a
delay of sixteen months unreasonable).
53
    See Schremp, 405 A.2d at 121 (“Tested by the pace at which litigation often
proceeds, [two months] may not seem like a long time. But, measured by the
inflexible time one has for appealing an adverse judgment (thirty days), or moving
for a new trial (ten days), or reargument in this Court (fifteen days), [the motion to
vacate] was untimely.” (citations omitted)).
54
   Opher, 531 A.2d at 1234.
55
   Id.
56
   See Christina Bd. of Educ. v. 322 Chapel St., 1995 WL 163509, at *6 (Del. Super.
Ct. Feb. 9, 1995).
                                          14
      In evaluating the reasonableness of a delay, the Court must measure the time

that elapsed between when the movant could have filed the motion and when the

movant actually filed the motion.57 The Court thus measures the reasonableness of

Plaintiffs’ delay from the time that Plaintiffs’ “groundbreaking” decisions issued to

the time at which Plaintiffs filed the Motion to Vacate. In addition, the Court

considers all circumstances surrounding Plaintiffs’ delay to determine if the delay is

unreasonable.

      Plaintiffs urge this Court to use the final decision in the so-called

groundbreaking trilogy as the benchmark for determining the timeliness of the

Motion to Vacate.58 As discussed below, the Court rejects that decision’s relevance

to the November 2013 Dismissal Order. However, assuming arguendo that the

decision provides a basis for relief, the seven-month delay is not reasonable under

the circumstances.

      In their Motion to Vacate, Plaintiffs provide two explanations for the seven-

month delay: (1) Plaintiffs’ counsel is overburdened by the other ongoing DBCP

cases; and (2) preparing the Motion required significant time and research in light of



57
   Bouret-Echevarria v. Caribbean Aviation Maint. Corp., 784 F.3d 37, 43–44 (1st
Cir. 2015) (citing Klapprott v. United States, 335 U.S. 601, 607–16 (1949)).
58
   The other two decisions issued two years and ten months, respectively, prior to
the date that Plaintiffs filed the instant Motion. The reasons why Plaintiffs’ Motion
is untimely based on the date of the final decision are only exacerbated by evaluating
the Motion’s timeliness based on the dates of those decisions.
                                            15
the complex history of this case.59 The unreasonableness of Plaintiffs’ delay is

further underscored by Plaintiffs’ own explanations. First, Plaintiffs’ Texas counsel

in the instant action also represented the plaintiffs in each case Plaintiffs cite as

grounds to vacate this Court’s November 2013 Dismissal Order. Plaintiffs’ Texas

counsel was therefore immediately aware of each “groundbreaking” legal

development giving rise to the instant Motion but nevertheless delayed filing by two

years from the first decision cited to seven months until the final decision cited. And

while the Court is mindful of the complexity of the overall DBCP litigation, the

purported “Gordian Knot” in which Plaintiffs find themselves is the result of

Plaintiffs’ own strategy of filing duplicative actions across the country. The Court

cannot overlook the delay simply because it took Plaintiffs time to untie and package

that history for presentation to the Court. It was an unreasonable delay.

II.   The Motion to Vacate Does Not Set Forth Extraordinary Circumstances

      Even if Plaintiffs’ Motion was timely filed, the Motion to Vacate would fail

on the merits because it does not present extraordinary circumstances. The words

“any other reason justifying relief” of Rule 60(b)(6) vests power in the Court to

vacate judgments whenever such action is appropriate to accomplish justice.60

Subsection (b)(6) is an independent ground for relief, with a different standard to be


59
   Pls.’ Mot. Vacate J. Rule 60(b)(6) ⁋ 9; Pls.’ Mem. Supp. Mot. Vacate Rule
60(b)(6), at 29–30.
60
   Jewell v. Div. of Soc. Servs., 401 A.2d 88, 90 (Del. 1979).
                                          16
applied than under the other paragraphs of Rule 60.61 The movant must demonstrate

“extraordinary circumstances.”62 Similar to the other subsections of Rule 60(b), “the

interest of justice provision is addressed to the Court’s sound discretion.”63 This

Court has stated that “[d]espite the broad power inherent in the provision, the Court

must, of course, identify a valid reason to grant relief from a judgment, and must

recognize that such reasons exist only in ‘extraordinary situation[s] or

circumstances.’”64 Whether extraordinary circumstances exist is a case-by-case

determination under the facts of the particular case.65

      “[I]ntervening changes in the law rarely justify relief from final judgments

under 60(b)(6).”66 In other words, a mere change in the law will rarely constitute

the “extraordinary circumstances” necessary to upend a court’s otherwise final

judgment. Plaintiffs’ Motion points to several cases in which such a rarity existed.

Each of those cases, however, involved changes in controlling law that contradicted

the outcomes of those courts’ prior final judgments.67 None of the “groundbreaking”

decisions Plaintiffs cite in their Motion constitute such a change.


61
   Id.
62
   Id.
63
   Wife B v. Husband B, 395 A.2d 358 (Del. 1978).
64
   Rembrandt Techs., L.P. v. Harris Corp., 2009 WL 2490873, at *2 (Del. Super. Ct.
Aug. 14, 2009) (citing Jewell, 401 A.2d at 90).
65
   Christina Bd. of Educ., 1995 WL 163509, at *7 (emphasis added).
66
   Cox v. Horn, 757 F.3d 113, 121 (3d Cir. 2014).
67
   See Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25 (1965) (vacating an
order denying certiorari and reversing the circuit court’s judgment that affirmed the
                                         17
      A.     The Tolling Decisions Do Not Affect the Outcome of the November
             2013 Dismissal Order

      The Court rejects Plaintiffs’ arguments as to the relevancy of the tolling

decisions in Marquinez. The Court’s November 2013 Dismissal Order dismissed

Plaintiffs’ claims under Delaware’s McWane Doctrine.            It did not address

Delaware’s tolling laws.68 On the other hand, the Delaware Supreme Court limited

its opinion in Marquinez to the narrow issue of when cross-jurisdictional tolling

ends.69 That issue never arose in this matter, and its development under Delaware


denial of a death-benefits award after learning that another circuit court had upheld
an award to a different claimant under the same federal law); In re Terrorist Attacks
on Sept. 11, 2001, 741 F.3d 353 (2d Cir. 2013) (finding Rule 60(b) relief appropriate
where an earlier Second Circuit decision had prohibited some plaintiffs’ claims to
proceed and a subsequent Second Circuit decision permitted other plaintiffs’ claims
to proceed, despite applying the same statutory law to the same incident of harm);
Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct. 1983) (finding Rule 60(b) relief
appropriate to reopen proceedings and permit the respondent to produce additional
evidence where a recently enacted statute effectively overruled decisional law
governing the Delaware Family Court’s prior decision not to treat the respondent’s
husband’s military asset as a marital asset).
68
   Plaintiffs’ argument that the Marquinez decisions somehow affect this Court’s
November 2013 Dismissal Order is similar to an argument Plaintiffs made in support
of their opposition to Defendants’ 2013 Motion to Dismiss:
       Plaintiffs argue that the Delaware Supreme Court spoke on the issues
       of the instant case, and in favor of allowing this case to proceed, at the
       time that it answered the certified question in Dow Chemical Corp. v.
       Blanco. The court rejects this argument. The Delaware Supreme Court
       was very explicit in its ruling that the only question it was addressing
       was whether Delaware recognizes cross jurisdictional tolling.
Chaverri v. Dole Food Co., 2013 WL 5977413, at *2 (Del. Super. Ct. Nov. 8, 2013)
(footnotes omitted).
69
   See Marquinez, 183 A.3d at 705–06. In response to the Third Circuit’s certified
question, the Delaware Supreme Court provided the following answer:
                                           18
law therefore has no impact on this Court’s November 2013 decision.                The

Marquinez tolling decisions therefore do not present extraordinary circumstances

warranting relief from judgment.

      B.     Developments in the Federal First-Filed Rule Do Not Affect
             Delaware’s McWane Doctrine

      The cases involving the federal first-filed rule are also inapposite. Those

decisions—Chavez and the Third Circuit’s order reinstating fourteen plaintiffs’

claims in Marquinez—are simply not controlling law. While the federal first-filed

rule and Delaware’s first-filed rule, as set forth under the McWane Doctrine, sound

similar in name, they are not the same in application.

      First, the underlying rationales of each doctrine are distinct. The federal first-

filed rule is a federal abstention doctrine based on “principles of comity and

equity.”70 Those principles give way, however, when a “district court’s duty to

decide cases within its jurisdiction” becomes unavoidable due to the parties’

inability to present their claims to another court.71 Delaware’s McWane Doctrine,



      No, the federal district court dismissal in 1995 on grounds of forum non
      conveniens and consequent denial as moot of “all pending motions,”
      including the motion for class certification, did not end class action
      tolling. Class action tolling ended when class action certification was
      denied in Texas state court on June 3, 2010.
Id.
70
   See Equal Emp’t Opportunity Comm’n v. Univ. of Pa., 850 F.2d 969, 978 (3d Cir.
1988).
71
   Chavez v. Dole Food Co., 836 F.3d 205, 220 (3d Cir. 2016).
                                       19
by contrast, is an extension of Delaware’s forum non conveniens law that is intended

to promote “the orderly and efficient administration of justice” by permitting

Delaware courts to either stay or dismiss a second-filed action out of deference to

the forum in which the parties first filed.72 The doctrine seeks to avoid “the wasteful

duplication of time, effort, and expense that occurs when judges, lawyers, parties,

and witnesses are simultaneously engaged in the adjudication of the same cause of

action in two courts.”73

      Second, and as a result of the above distinctions, the two doctrines differ in

how they permit courts to treat second-filed actions. Under the federal rule, courts

exercising discretion under the rule, “in the vast majority of case,” should either stay

or transfer the second-filed suit.74 That requirement preserves the district court’s

ability to hear the parties’ case in the event that the first-filed case is dismissed and

the second-filed action “is not truly duplicative of the first.”75 Such a requirement

is consistent with the “district court’s duty to decide cases within its jurisdiction.” 76

No such duty exists under the McWane Doctrine where, as here, the plaintiffs chose

to first file their claims in another jurisdiction. Instead, the McWane Doctrine

permits dismissal of a plaintiff’s second-filed action to avoid inconsistent and


72
   McWane, 263 A.2d at 282–83.
73
   Id. at 283.
74
   See Chavez, 836 F.3d at 220.
75
   See id.
76
   See id.
                                           20
conflicting rulings.77 Such a rule upholds the doctrine’s underlying policy of

avoiding wasteful duplication of efforts.78

         Based on these fundamental distinctions between the federal first-filed rule

and Delaware’s McWane Doctrine, the first-filed rule decisions Plaintiffs cite do not

present extraordinary circumstances. No change in the law governing the McWane

Doctrine has occurred since the Court issued the November 2013 Dismissal Order.

Federal decisions issued by a federal court applying federal law do not supplant well-

established Delaware law.

         C.    Denying Plaintiffs’ Motion to Vacate Would Not Produce
               Inconsistent Results

         In an effort to appeal to the reasoning of this Court’s November 2013 decision,

Plaintiffs argue that permitting the November 2013 Dismissal Order to stand would

produce inconsistent results, which is precisely what this Court sought to avoid by

dismissing Plaintiffs’ claims. This argument misses the point. The purported

inconsistencies for which Plaintiffs sound alarms stem from the outcome of this case

and the outcome of the ongoing federal litigation. Plaintiffs argue that the federal-

court plaintiffs have been permitted to proceed on their claims, while Plaintiffs here

have not, and hence an inconsistency exists. This is not the type of inconsistency

with which this Court was concerned six years ago. The Court’s November 2013


77
     See Lisa, 993 A.2d at 1048.
78
     See id.
                                           21
Dismissal Order was concerned with the inconsistency that would exist if the Court

permitted Plaintiffs’ claims to proceed in Delaware after the Louisiana District Court

dismissed their identical claims in Plaintiffs’ preferred forum. Contrary to Plaintiffs’

concerns, the Court’s refusal to reopen Plaintiffs’ case does not create

inconsistencies; rather, it prevents them.

                                   CONCLUSION

      In consideration of the three decisions issued in federal cases involving

different plaintiffs allegedly affected by DBCP, the Court finds that Plaintiffs

unreasonably delayed filing their Motion to Vacate and failed to set forth any

extraordinary circumstances warranting relief under Rule 60(b)(6). Plaintiffs waited

up to two years and, at minimum, seven months to file their Motion, even though

Plaintiffs’ Texas counsel also represented the plaintiffs in each of the federal cases

Plaintiffs cite. In addition, even if seven months did not constitute an unreasonable

delay, the purported extraordinary circumstances to which Plaintiffs point are

decisions issued in federal cases, involving irrelevant and non-controlling law.

Therefore, Plaintiffs’ Motion to Vacate is hereby denied.

      IT IS SO ORDERED.



                                                                                                                                     Andrea L. Rocanelli
                                                  ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                                  The Honorable Andrea L. Rocanelli


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