        IN THE SUPREME COURT OF THE STATE OF DELAWARE

LUIS ANTONIO AGUILAR                    §
MARQUINEZ et al.,                       §     No. 231, 2017
                                        §
        Plaintiffs Below,               §     On Acceptance of Petition for
        Appellant,                      §     Certification by The United
                                        §     States Court of Appeals for the
       v.                               §     Third Circuit (No. 14-4245)
                                        §
THE DOW CHEMICAL COMPANY                §     There on appeal from the United
et al.,                                 §     States District Court for the
                                        §     District of Delaware
        Defendants Below,               §     (Nos. 12-CV-695, 12-CV-696)
        Appellee.                       §


                            Submitted: January 30, 2018
                             Decided: March 15, 2018

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices.

Upon appeal from The United States Court of Appeals from the Third Circuit.
CERTIFIED QUESTION ANSWERED

Barbara H. Stratton, Esquire, Wilmington, Delaware, Jonathan S. Massey, Esquire,
(argued), Washington, D.C., and Scott M. Hendler, Esquire, Austin, Texas, for
Appellants.

Donald E. Reid, Esquire, Wilmington, Delaware, Michael L. Brem, Houston,
Texas, (argued), James W. Semple, Esquire, Wilmington, Delaware, Boaz S.
Morag, Esquire, New York, New York, Timothy Jay Houseal, Esquire,
Wilmington, Delaware, D. Ferguson McNeil, Esquire, Houston, Texas, Lisa C.
McLaughlin, Esquire, Wilmington, Delaware, Adam V. Orlacchio, Esquire,
Wilmington, Delaware, and Kelly E. Farnan, Esquire, Wilmington, Delaware, for
Appellees.
VAUGHN, Justice:

       The United States Court of Appeals for the Third Circuit certified the

following question of law to this Court in accordance with the Delaware

Constitution, Article IV, § 11(8)(a) and Delaware Supreme Court Rule 41:

       Does class action tolling end when a federal district court dismisses a
       matter for forum non conveniens and, consequently, denies as moot “all
       pending motions,” which include the motion for class certification,
       even where the dismissal incorporated a return jurisdiction clause
       stating that “the court will resume jurisdiction over the action as if the
       case had never been dismissed for f.n.c.,” Delgado v. Shell Oil Co., 890
       F. Supp. 1324, 1375 (S.D. Tex. 1995)? If it did not end at that time,
       when did it end based on the procedural history set forth above?

       By order dated June 16, 2017, this Court accepted the certified question. For

the reasons that follow, we answer the certified question as follows: 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.

                      FACTS AND PROCEDURAL HISTORY1

       The plaintiff-appellants (“the plaintiffs”) worked on banana plantations in

Costa Rica, Ecuador and Panama at various times in the 1970s and 1980s. The


1
 The facts and procedural history are recited for the most part verbatim from the Third Circuit’s
certification request. Marquinez v. Dole Food Co., Inc., No. 14-4245 (3d Cir. June 2, 2017).
                                               2
defendants-appellees (“the defendants”) include United States corporations that

manufactured and distributed a pesticide called dibromochloropropane (“DBCP”),

and other United States corporations that owned and operated the banana plantations.

The plaintiffs allege that they suffered adverse health consequences from exposure

to DBCP while working on the banana plantations.

      In 1993, a putative class action lawsuit was filed in state court in Texas as

Jorge Carcamo v. Shell Oil Co., No. 93-C-2290 (Brazoria County, Texas). The

plaintiffs here were members of the putative class. The putative class included “[a]ll

persons exposed to DBCP or DBCP containing products, designed, manufactured,

marketed, distributed or used by [defendants] between 1965 and 1990” in 25

countries (including Costa Rica, Ecuador and Panama).

      Before a decision was made on class certification, defendants impleaded a

company partially owned by the State of Israel, and used its joinder as a basis to

remove the case to federal court under the Foreign Sovereign Immunities Act

(FSIA), 28 U.S.C. § 1330. The FSIA was the only basis for federal jurisdiction.

      After removal, Carcamo was consolidated with other DBCP-related class

actions in the United States District Court for the Southern District of Texas. The

cases were consolidated as Delgado v. Shell Oil Co., Civil Action No. H-94-1337.

Defendants moved to dismiss the consolidated cases for forum non conveniens.




                                          3
       On July 11, 1995, the Texas District Court granted defendants’ motion and

dismissed the putative class action for forum non conveniens (“Delgado I”).2 The

opinion and order included a “return jurisdiction” clause:

       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 f.n.c.3

       The opinion and order also denied other motions, which arguably included

plaintiffs’ request for class certification:

       In addition to defendants’ motion to dismiss for f.n.c. a number of other
       motions are pending. . . . [A]ll pending motions . . . not otherwise
       expressly addressed in this Memorandum and Order are DENIED as
       MOOT.4

       The Delgado I court entered a final judgment on October 27, 1995, which

included an injunction enjoining plaintiffs and anyone acting in concert with them

from commencing new DBCP-related litigation in any court in the United States

(“Delgado I Final Judgment”).              The plaintiffs appealed the Delgado I Final

Judgment, challenging only the court’s subject matter jurisdiction under the FSIA.



2
  Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1372–73 (S.D. Tex. 1995).
3
  Id. at 1375.
4
   Id. Although no motion for class certification had been filed in the district court, a class
certification motion was filed in the state court before removal. The district court noted in its
dismissal opinion that “plaintiffs have sought class certification in several of the pending actions.”
Id. at 1368.
                                                  4
       On October 19, 2000, the United States Court of Appeals for the Fifth Circuit

held that the Texas District Court properly exercised subject matter jurisdiction over

the consolidated cases.5 The United States Supreme Court denied plaintiffs’ petition

for writ of certiorari on April 16, 2001.6 On February 24, 2003, the United States

Supreme Court denied plaintiffs’ motion for leave to file a petition for rehearing.7

       After they were unable to prosecute their claims in other countries, several of

the original plaintiffs in Delgado moved for reinstatement in the Texas District Court

pursuant to the return jurisdiction clause of Delgado I. While that motion was

pending, the United States Supreme Court held in Dole Food Co. v. Patrickson,

another DBCP action, that the FSIA does not create exclusive federal jurisdiction

over a case involving a foreign corporate defendant unless “the foreign state itself

owns a majority of the corporation’s shares.”8 The Court’s decision in Patrickson

meant that the jurisdictional basis on which Carcamo had been removed to the Texas

District Court was invalid.

       Following Patrickson, the Texas District Court remanded the cases to Texas

state court to consider the plaintiffs’ rights under the return jurisdiction provision of

the Delgado I dismissal.9 Back in Texas state court, defendants petitioned the Court



5
  Delgado v. Shell Oil Co. (Delgado II), 231 F.3d 165, 169 (5th Cir. 2000).
6
  532 U.S. 972 (2001).
7
  537 U.S. 1229 (2003).
8
  538 U.S. 468, 477 (2003).
9
  Delgado v. Shell Oil Co. (Delgado III), 322 F. Supp. 2d 798, 817 (S.D. Tex. 2004).
                                               5
of Appeals of Texas for a writ of mandamus to terminate the litigation, claiming the

plaintiffs failed to comply with the return clause.10 The petition was denied because,

according to the Texas Court of Appeals, the Delgado I court’s order dismissing the

case for forum non conveniens was void for lack of subject matter jurisdiction.11

       Following that decision, a subset of the original plaintiffs again moved in

Texas state court for class certification under Texas law. The defendants again

removed the matter to the Texas District Court, arguing that the motion for class

certification in state court “commences a new action” and was therefore subject to

the Class Action Fairness Act of 2005 (CAFA).12                 The Texas District Court

remanded the matter to Texas state court, holding that the matter was not subject to

CAFA because the class action “commenced with the filing of the state-court

petition in 1993” and “ha[d] been pending in one forum or another since 1993.”13

On June 3, 2010, class certification was denied in Texas state court.

       Following denial of class certification in Texas state court, three different

lawsuits, including this case, were filed in Delaware.




10
   In re Standard Fruit Co., 2005 WL 22304246, at *1 (Tex. App. Sept. 13, 2005).
11
   Id.
12
   Carcamo v. Shell Oil Co., No. G-09-258, at 4 (S.D. Tex. Dec. 18, 2009).
13
   Id. at 5.
                                              6
       On July 21, 2011, Jose Rufino Canales Blanco filed suit on behalf only of

himself in the Superior Court of Delaware. The further procedural history of that

case is discussed below.

       On June 1, 2012 Tobias Bermudez Chavez and others filed a lawsuit in the

United States District Court for the District of Delaware. A year before filing that

suit, however, the same plaintiffs had filed a nearly identical suit in the United States

District Court for the Eastern District of Louisiana. As a result, the Delaware District

Court dismissed the case under the “first-filed rule,” which defers jurisdiction of a

case filed in two different district courts to the forum where the case was first filed.14

Although a panel of the United States Court of Appeals for the Third Circuit affirmed

the dismissal,15 that decision was reversed by the full Court.16 The Third Circuit held

“that the Delaware District Court abused its discretion under the first-filed rule by

dismissing the[] cases with prejudice.”17

       On May 31, 2012, Luis Antonio Aguilar Marquinez and others filed a lawsuit

in the United States District Court for the District of Delaware. Fourteen of the

plaintiffs had previously filed identical lawsuits in either the Eastern District of

Louisiana or in Louisiana state court. As in Chavez, the Delaware District Court




14
   Chavez v. Dole Food Co., 2012 WL 3600307, at *1 (D. Del. Aug. 21, 2012).
15
   Chavez v. Dole Food Co., 796 F.3d 261 (3d Cir. 2015).
16
   Chavez v. Dole Food Co., 836 F.3d 205 (3d Cir. 2016) (en banc).
17
   Id. at 222.
                                             7
dismissed the plaintiffs’ claims under the first-filed rule. The District Court later

granted summary judgment to defendants as against the remaining plaintiffs, holding

that class action tolling stopped in July 1995 when the Delgado I court dismissed the

case for forum non conveniens.18 Plaintiffs appealed to the Third Circuit.

         In the appeal in the Third Circuit, the plaintiffs (one of the fourteen dismissed

on first-filed grounds and 56 of the other plaintiffs) argue that the Delaware District

Court erred by holding that the July 1995 Delgado I opinion and order ended class

action tolling. In the alternative, defendants argue that, at the very latest, class action

tolling ended with the October 1995 Delgado I Final Judgment.

         It is with this procedural background that we turn to the certified question.

                                PARTIES’ CONTENTIONS

         The plaintiffs contend that this Court should answer the certified question by

holding that, under Delaware law, the tolling period initiated by the filing of a

putative class action concludes only with a clear, specific, and unambiguous order

ending the class claims. Under this standard, they contend class action tolling in this

case was not terminated by the Texas District Court’s July 1995 opinion and order

or the October 1995 Delgado I Final Judgment.                  Instead, class action tolling

terminated on June 3, 2010 when the Texas state court denied class certification.

The 1995 Delgado I opinion and order and the Delgado I Final Judgment, they


18
     Marquinez v. Dole Food Co., 45 F. Supp. 3d 420, 423 (D. Del. 2014).
                                                8
contend, did not specifically rule on a motion for class certification. The return

jurisdiction clause in the Delgado I opinion and order provided that if a foreign

forum did not prove adequate, the action would be reinstated “as if the case had

never been dismissed.” The Texas District Court, they contend, thus created a

procedure for the plaintiffs’ claims to return to the Texas District Court in the form

in which they existed prior to being dismissed (i.e. as a putative class) in the event

the foreign forums proved inadequate.

      The defendants contend that this Court should answer the certified question

in the affirmative by holding that the tolling period initiated by the filing of a class

action complaint ends once it is no longer objectively reasonable for absent class

members to rely on the putative action to protect their individual rights. They

contend that under that legal standard, the tolling provided by the Texas class action

terminated at the latest in 1995 with the Delgado I Final Judgment dismissing the

consolidated action in favor of litigation in plaintiffs’ home countries. They reason

that after entry of Delgado I Final Judgment, no putative class member could

reasonably have believed his or her interests were still being protected by the

putative class representatives. They further contend that the rights established by

the return jurisdiction clause were limited to the individually-named plaintiffs in

Delgado, and relief under the return jurisdiction clause did not revive class claims.




                                           9
Moreover, according to the defendants, the clause anticipated a mere possibility that

a reinstatement could occur at some unspecified date in the future.

                                      DISCUSSION

         In Dow Chemical Corp. v. Blanco, this Court held that Delaware recognizes

the concept of cross-jurisdictional tolling.19 The plaintiff in that case was Jose

Rufino Canales Blanco, who, like the plaintiffs here, had been a member of the

putative class in Jorge Carcamo v. Shell Oil Co. in Texas. Dow Chemical came to

this Court as a certified question of law in an interlocutory appeal from the Superior

Court. The certified question was a narrow one, asking only whether Delaware

recognizes the concept of cross-jurisdictional tolling.

         Relying on the United States Supreme Court’s rationale in American Pipe &

Construction Co. v. Utah,20 this Court reasoned that Delaware law favors broad

tolling principles in order to promote judicial economy and forestall the preemptive

filing of individual lawsuits:

         Reading American Pipe too narrowly would defeat an important
         purpose of a class action, which is to promote judicial economy.
         Allowing cross-jurisdictional tolling recognizes and gives effect to the
         proposition that the policy considerations underlying our statute of
         limitations are met by the filling of a class action. Cross-jurisdictional
         tolling also discourages duplicative litigation of cases within the
         jurisdiction of our courts. If members of a putative class cannot rely on
         the class action tolling exception to toll the statute of limitations, they


19
     67 A.3d 392 (Del. 2013).
20
     414 U.S. 538 (1974).
                                             10
       will be forced to file “placeholder” lawsuits to preserve their claims.
       This would result in wasteful and duplicative litigation.21

       The Court also drew upon its earlier case of Reid v. Spazio, which recognized

tolling under Delaware’s Savings Statute during a period when a discretionary

appeal was pending in an action filed in another state.22      It quoted with approval

the following passage from Reid v. Spazio:

       [A]llowing a plaintiff to bring his case to a full resolution in one forum
       before starting the clock on his time to file in this State will discourage
       placeholder suits, thereby furthering judicial economy. Prosecuting
       separate, concurrent lawsuits in two jurisdictions is wasteful and
       inefficient. . . . [And,] the prejudice to defendants is slight because in
       most cases, a defendant will be on notice that the plaintiff intends to
       press his claims.23

       Responding to a defense contention that cross-jurisdictional tolling would

open the floodgates to suits brought by opportunistic plaintiffs, the Court returned

to the subject of placeholder suits:

       But the potential for litigation in Delaware exists whether or not cross-
       jurisdictional tolling is recognized. If we do not recognize cross-
       jurisdictional tolling, putative class members will still be incentivized
       to file placeholder actions in Delaware to protect their interests in the
       event that the putative class is not certified.24

       Since Dow Chemical involved only a narrow certified question of law, our

Court did not consider whether the statute of limitations was or was not tolled on the



21
   Dow Chemical, 67 A.3d at 395.
22
   10 Del. C. § 8118.
23
   Reid v. Spazio, 970 A.2d 176, 181–82 (Del. 2009).
24
   Dow Chemical, 67 A.3d at 397.
                                              11
facts of that case, or articulate a rule for determining when class action tolling ends.

The Superior Court had, however, ruled on the issue:

      Defendants’ first claim is that the 1995 dismissal ended any tolling of
      the statute of limitations, which, therefore, would have expired well
      before this present action was filed. This argument fails on three
      independent grounds. First, Judge Lake’s dismissal was based entirely
      on forum non conveniens, which is emphatically not a decision on the
      merits in the Fifth Circuit. Second, the dismissal included a “return
      jurisdiction” clause as mandated by Fifth Circuit precedent. A
      dismissal conditioned on a right of return is logically equivalent to a
      stay of the action. Under Delaware law where a stay is entered here on
      the grounds of forum non conveniens, but jurisdiction is retained, it
      necessarily operates to toll a statute of limitations. Third, the dismissal
      on the grounds of forum non conveniens rendered moot the pending
      request for class certification.25

      The plaintiffs urge us to adopt a rule that class action tolling terminates only

where there is a clear, specific, and unambiguous order ending the class claims. The

defendants urge us to adopt a rule that tolling ends once it is no longer objectively

reasonable for absent class members to rely on the putative class action to protect

their individual rights.26 Under this rule, the defendants argue, the members of the

putative class, including the plaintiffs, had no objectively reasonable basis to assume

that their rights were still being protected by the Texas proceeding after the district

court entered final judgment dismissing the case on October 27, 1995.




25
   Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *12. (Del. Super. Aug. 12, 2012)
(footnotes omitted).
26
   See Bridges v. Dep’t of Md. State Police, 441 F.3d 197 (4th Cir. 2006).
                                          12
        We embrace the parties’ crystallization of the issue before us, and view

ourselves asked to decide which of these rules Delaware law would embrace to

address the underlying cases.27              We agree with both parties that a clear and

unambiguous rule avoids uncertainty over the starting and ending dates for statutes

of limitation in cross-jurisdictional class action tolling cases. Thus, we adopt a rule

that furthers the certainty interest—cross-jurisdictional class action tolling ends only

when a sister trial court has clearly, unambiguously, and finally denied class action

status. Such an approach is consistent with Dow Chemical’s rationale of avoiding

“wasteful and duplicative litigation.”28 A member of a putative class should not

have to deal with ambiguity in deciding whether class action tolling has ended, and



27
   As can be seen, we have reframed the question before us to be a pure question of law. Under
this Court’s rule governing the process of answering certified questions, Rule 41, we are not
empowered to engage in fact findings when we answer a certified question like this. Del. Sup. Ct.
R. 41(b) (“A certification will not be accepted if facts material to the issue certified are in
dispute.”). To be candid, there was considerable concern among us about whether we could answer
this question because of the parties’ sharply different interpretations of various court orders and
other facts. It is clear from the parties’ briefs, their referral of us to the stipulated record in another
court, and the apt description of the factual background of this case as “baroque” by one of our
federal colleagues, that determining whether the plaintiffs in this case could have reasonably relied
on the Texas proceeding to protect their interests would have required this Court to make findings
of fact. Oral Argument at 10:01–10:07, 47:36–47:50, Marquinez v. Dow Chemical (No. 231,
2017), available at https://livestream.com/accounts/5969852/events/8016608/videos/1687025
57/player (parties referring this Court to the stipulated procedural history in Chavez); Chavez v.
Occidental Chem. Corp., 2018 WL 352810, at *2 (S.D.N.Y. Jan. 10, 2018). Because we all agree
that there was nothing clear about what took place between when the Texas District Court
dismissed Delgado I in 1995 and when that court revived and remanded two of Delgado I’s
consolidated cases to Texas state court in 2004, we have reformulated the question before us, so
as to be helpful to our federal colleagues. In the future, we would hope that the parties would
agree upon the stipulated facts and frame a specific question of law based upon them, as Rule 41
contemplates.
28
   Dow Chemical, 67 A.3d at 395.
                                                   13
the consequent waste of judicial resources by filing a protective action to avoid

risking later dismissal on statute of limitations grounds. Under our formulation of

the rule, class action tolling in the instant case did not end until the Texas state court

denied class certification on June 3, 2010.

         In its July 1995 opinion, the District Court expressly provided that if a named

plaintiff in the class action filed suit in his home country or the country in which he

was injured, and the highest court in that country affirmed a dismissal for lack of

jurisdiction, “the court will resume jurisdiction over the action as if the case had

never been dismissed for f.n.c.”29 A resumption of jurisdiction over the “action as if

the case had never been dismissed,” it seems to us, includes resumption of

jurisdiction over the putative class action.

         The rationale for the return jurisdiction clause was discussed in the body of

the opinion. One of the conditions of the Texas District Court’s dismissal in Delgado

I was that the defendants waive any jurisdictional defenses to suit in the plaintiffs’

home countries. In opposing dismissal on the grounds of forum non conveniens, the

plaintiffs argued, however, “that consent by defendants may not be sufficient

because the courts in several of their home countries will decline to exercise

jurisdiction over consenting defendants because plaintiffs initiated the action




29
     Delgado I, 890 F. Supp. at 1375 (emphasis added).
                                                14
elsewhere.”30 The Texas District Court established a safeguard against this concern,

using the following language:

          To ensure availability of an alternative forum in the event that
          defendants’ motion is ultimately successful the court will condition
          dismissal not only on the defendants’ and third-party defendants’
          stipulation to waive all jurisdictional and limitations defenses but also
          upon acceptance of jurisdiction by the foreign courts involved in these
          cases.31

          The Delgado I Final Judgment was entered after the defendants had satisfied

certain conditions of dismissal. It stated that it was being entered “in accordance

with” the Texas District Court’s opinion and order of July 11, 1995, and did not alter

the return jurisdiction clause.

          On April 1, 1996, less than six months after the October 1995 dismissal, the

Costa Rican plaintiffs sought reinstatement of the case in the Texas District Court

on the grounds that claims they filed in Costa Rica had been dismissed for want of

jurisdiction by the highest court of Costa Rica. Because the appellate process in

Delgado was ongoing, the Texas District Court did not rule upon the motion on the

merits when it was filed in 1996. After the appeals process had finally run its course

in 2003, and after it was determined in Dole v. Patrickson that same year that the

Texas District Court lacked jurisdiction over the case, the Costa Rican plaintiffs’

filed a Motion to Remand for Ruling on Request for Return Jurisdiction. The Texas


30
     Id. at 1356.
31
     Id. at 1357.
                                             15
District Court ruled on the motion in a June 21, 2004 opinion and discussed the effect

of its 1995 opinion and orders.32

       The 2004 opinion and remand order was issued by the same judge who issued

the 1995 opinion and orders dismissing the case on the grounds of forum non

conveniens. He discussed how and why the case came back to him:

       Alleging that their claims have been dismissed for want of jurisdiction
       by the highest court of Costa Rica, Costa Rican plaintiffs seek to have
       their claims reinstated in an American court pursuant to the return
       jurisdiction clause contained in the court’s Memorandum and Order of
       July 11, 1995. . . . Costa Rican plaintiffs filed their Motion for
       Reinstatement of Claims by Plaintiffs from Costa Rica on April 1, 1996.
       . . . On February 20, 1997, the court entered an Order . . . denying
       plaintiffs’ motion to reinstate “without prejudice to being reinstated as
       fully briefed upon the issuance of a mandate from the Fifth Circuit
       affirming the court’s final judgment.”33

       He described the dismissal as conditional, stating “[t]he court conditionally

granted defendants’ motion to dismiss under the doctrine of forum non

conveniens.”34 He further described the 1995 dismissal and the effect of the return

clause:

       Because the return jurisdiction clause expressly provides that plaintiffs
       are to seek return via motion filed in this court, the court concludes that
       plaintiffs’ filing (or reassertion) of their motion to reinstate is a direct
       continuation of the prior proceedings over which the court expressly
       stated its intent to retain jurisdiction.35


32
   Delgado III, 322 F. Supp. 2d 798 (S.D. Tex. 2004).
33
   Id. at 801–02 (citations omitted).
34
   Id. at 801.
35
   Id. at 813.
                                              16
       He further stated that the “f.n.c. dismissal entered in this case was ‘final’ only

for purposes of appealing the court’s f.n.c. decision.”36

       The judge’s 2004 discussion of the nature and effect of his 1995 opinion and

orders is one reasonable way of reading the language of the July 1995 opinion. It

confirms that the court retained jurisdiction to reinstate the case if the foreign courts

did not accept jurisdiction and that a motion to reinstate would be a continuation of

the case—points which can be considered as plausibly grounded in the 1995 opinion

and orders themselves. The Texas District Court did not address the class action on

the merits in its earlier opinion and orders. There were known doubts about whether

the foreign courts would exercise jurisdiction over the plaintiffs’ claims, doubts

which proved true.37        Under these circumstances, we conclude that the 1995

dismissal did not clearly and unambiguously end the class action as a final matter.

Therefore, class-action tolling did not end in 1995.

       Two appellate decisions have been brought to our attention which address the

effect of the July 1995 Delgado I opinion and order and the Delgado I Final

Judgment. One is a Fifth Circuit Court of Appeals case, Chaverri v. Dole Food Co.



36
  Id. at 816.
37
   Many Latin American countries apply the doctrine of preemptive jurisdiction. Under that
doctrine, the filing of suit in one forum extinguishes the jurisdiction of any other forum. At oral
argument, counsel for the plaintiffs confirmed that the Costa Rican courts refused to accept
jurisdiction under the doctrine of preemptive jurisdiction. See generally, Rajeev Muttreja, How to
Fix the Inconsistent Application of Forum Non Conveniens to Latin American Jurisdiction And
Why Consistency May Not Be Enough, 83 N.Y.U. L. REV. 1607 (2008).
                                                17
Inc., which affirmed a decision of the District Court for the Eastern District of

Louisiana.38 Applying principles of Louisiana state law, the District Court found

that the denial of the motion for class certification as moot in the July 1995 Delgado

I opinion and order ended class tolling.39 It also found that entry of Delgado I Final

Judgment in October 1995 “absolutely stopped the pendency of the case” and

restarted the prescriptive period.40 According to the District Court, the Louisiana

courts do not “make a distinction based upon the type or manner of denial, nor [do]

they require that the denial be on the merits.”41

       The other case is from the Supreme Court of Hawai’i.42 In that case the

plaintiffs’ complaint was filed on October 3, 1997. The statute of limitations was

two years. The trial court granted partial summary judgment against the plaintiffs

on statute of limitations grounds. The Intermediate Court of Appeals affirmed the

trial court.

       Two questions were presented to the Hawai’i Supreme Court on certiorari:

       Whether an order entered on July 11, 1995—purportedly dismissing the
       prior class action—that explicitly did not take effect until October [27],
       1995 operates to bar Petitioners’ October 3, 1997 lawsuit on limitations
       grounds.




38
   Chaverri v. Dole Food Co., Inc., 546 F. App’x 409 (5th Cir. 2013) (per curiam).
39
   Chaverri v. Dole Food Co., Inc., 896 F. Supp. 2d 556, 568 (E.D. La. 2012).
40
   Id. at 569.
41
   Id.
42
   Patrickson v. Dole Food Co., Inc., 368 P.3d 959 (Haw. 2015).
                                              18
          Whether an administrative “housekeeping” order included in a forum
          non conveniens order denying “all pending motions” as “moot”—
          without specifying those pending motions—put putative class members
          on notice that class action tolling had ended.43

          The defendants argued that class action tolling ended on July 11, 1995, when

the Texas District Court denied “all other pending motions as moot.” The plaintiffs

argued that the July 11, 1995 order denying “all pending motions as moot did not

take effect until when final judgment was entered on October 27, 1995.”

          The Hawai’i Supreme Court held “that the pendency of a class action in

another jurisdiction operates to toll our state’s applicable statute(s) of limitations

until the court in our sister jurisdiction issues an order expressly denying a motion

for class certification (or expressly denying the last such motion, if there is more

than one motion).” For the same reasons we have found here, the Hawai’i Supreme

Court agreed with the plaintiffs “that the July 11, 1995 order did not terminate class

tolling in a ‘sufficiently clear and unambiguous’ way in order to ‘put putative

members of the class on notice that’ the Hawai’i state statute of limitations had

begun to run against them.”44 But, according to the Court, “the Texas district court’s

October 27, 1995 final judgment dismissing Carcamo/Delgado for f.n.c. clearly




43
     Id. at 966–67.
44
     Id. at 970–71.
                                           19
denied class certification and triggered the resumption of our state statute of

limitations.”45

          We respectfully disagree with the Fifth Circuit’s and the Hawai’i Supreme

Court’s application of class action tolling to the unique circumstances of this case.

Those courts gave no effect to the conditional nature of the dismissal resulting from

the return jurisdiction clause in the Texas District Court’s Delgado I opinion and

order. The return jurisdiction clause allowed the Texas District Court to resume

jurisdiction upon motion of the plaintiffs, which included resumption of its

consideration of plaintiffs’ class action certification request. Under our view of class

action tolling, a conditional dismissal does not finally decide a pending request for

class certification. Thus, neither the 1995 Delgado I opinion and order nor the 1995

Delgado I Final Judgment finally dismissed the request for class action certification.

                                    CONCLUSION

          We answer the certified question in the negative. The Texas District Court’s

Delgado I opinion and order and the Delgado I Final Judgment did not stop class

action tolling. Class action tolling ended when the Texas state court denied class

certification on June 3, 2010. The Clerk of the Court is directed to transmit this

opinion to the Third Circuit.




45
     Id. at 971.
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