Marquinez et al v. Dole Food Company Inc. et al

Filing 451

MEMORANDUM ORDER: The motion for a stay (D.I. 446 ) is DENIED (see Order for further details). Signed by Judge Richard G. Andrews on 2/23/2024. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LUIS ANTONIO AGUILAR MARQUINEZ,
et al. ,
Plaintiffs,

Civil Action No. 12-695-RGA (consolidated)

V.

DOLE FOOD COMP ANY, INC., et al. ,
Defendants.

MEMORANDUM ORDER
Before-me-is Plaintiffs' motion to stay the enforcement of my_ order denying their motion
to allocate expert fees. (D.I. 446). I have considered the parties' briefs. (D.I. 446, 448). For the
reasons discussed below, I will DENY Plaintiffs' motion.
I.

BACKGROUND
This is a mass tort action in which about sixty-five Ecuadorian Plaintiffs 1 allege that

Defendants exposed them to a toxic pesticide called dibromochloropropane ("DBCP") while
they were working on banana plantations in Ecuador in the 1960s through the 1980s. (D.I. 1 ,r,r
5-7, 41-42, 117-20). After the parties submitted conflicting expert declarations on the contents
of Ecuadorian law (D.I. 341 , D.I. 356-1 , Ex. B, D.I. 360-2, Ex. 2), I ordered the parties to
nominate one or more experts to assist me with answering whether an acci6n de protecci6n
("protective action") under Ecuadorian constitutional law is an appropriate mechanism for
Plaintiffs' claims. (D.I. 383). The parties nominated only one expert, Professor Angel R.
Oquendo. (See D.I. 387, 389). I asked Prof. Oquendo "to opine on matters of Ecuadorian law

1

(D.I. 262 at 4). There are also groups of Plaintiffs from two other countries.
1

relevant to the applicability of the Delaware Borrowing Statute." (D.I. 389). Prof. Oquendo
submitted a report on the issue. (D.I. 393).
Plaintiffs deposited their half of Prof. Oquendo' s fees with the Court (D.I. 438 at 6) and
filed a motion to allocate the expert fees (D.I. 419). The Magistrate Judge denied Plaintiffs'
motion. (D.I. 438, 439). I affirmed the Magistrate Judge ' s order. (D.I. 445). Plaintiffs now
seek to stay my order pending their appeal to the Third Circuit. (D.I. 446).2

II.

LEGAL STANDARD
Four factors guide the stay analysis: (1) whether the movant has made "a strong showing"

that it is likely to succeed on the merits; (2) whether the movant will be irreparably injured
- absent a stay:; (3) whether a stay will substantially injure other interested parties; and (4) where
the public interest lies. Republic of Phil. v. Westinghouse Elec. Corp., 949 F.2d 653 , 658 (3d
Cir. 1991).
'" [T]he most critical' factors, according to the Supreme Court, are the first two: whether
the stay movant has demonstrated (1) a strong showing of the likelihood of success and (2) that it
will suffer irreparable harm-the latter referring to 'harm that cannot be prevented or fully
rectified' by a successful appeal." In re Revel AC, Inc. , 802 F.3d 558, 568 (3d Cir. 2015) (first
quoting Nken v. Holder, 556 U.S. 418,434 (2009) ; then quoting Roland Mach. Co. v. Dresser
Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984)). The Court' s analysis should proceed as follows:
Did the applicant make a sufficient showing that (a) it can win on the merits
(significantly better than negligible but not greater than 50%) and (b) will suffer
2

Plaintiffs filed their notice of appeal on February 14, 2024. (D.I. 450). Plaintiffs have the
burden of showing likelihood of success on the merits for this interlocutory appeal, but they have
not attempted to show why there would be appellate jurisdiction now. To the extent the
underlying motion (D.I. 419) sought to allocate Plaintiffs' half of the fees to Defendants, and the
issue is not mooted by subsequent events such as Plaintiffs being the prevailing party, I would
expect that Plaintiffs would be able to raise the issue in an appeal at the conclusion of the case.
Plaintiffs have not cited anything in their motion suggesting otherwise.
2

irreparable harm absent a stay? If it has, we balance the relative harms
considering all four factors using a sliding scale approach. However, if the
movant does not make the requisite showings on either of these first two factors,
the inquiry into the balance of harms and the public interest is unnecessary, and
the stay should be denied without further analysis.
Revel AC, 802 F.3d at 571 (cleaned up).

Ill.

DISCUSSION
Plaintiffs argue I should stay the release of their half of Prof. Oquendo' s fees pending

Plaintiffs' appeal of my fee allocation decision. (D.I. 446 at 1). Plaintiffs contend they have "a
sufficient basis to appeal" but acknowledge I may not find a likelihood of success on the merits
given that I denied their fee allocation motion. (Id. at 2). Plaintiffs nevertheless argue they can
show a likelihood of success because the Magistrate Judge-and I did not engage in "the-requisite
analysis of the amount and character of the services performed nor analysis of the difficulty of
the problems involved." (Id. at 2-3).
Plaintiffs argue that absent a stay, their portion of Prof. Oquendo ' s fees will be
distributed to him. Plaintiffs contend this is an irreparable injury, as they "would then be forced
to expend considerable time and resources to attempt to claw back those funds in the event of an
appellate decision reversing the Order." (Id. at 3). Plaintiffs argue that Prof. Oquendo' s "regular
globe-trotting" complicates the issue. (Id. ). Plaintiffs further contend that a stay best serves the
public interest and would not harm any interested parties. (Id. ).
Defendants3 do not take a position on Plaintiffs' motion. (D.I. 448 at 1). Defendants
argue, though, that the validity of Prof. Oquendo' s opinions is inextricably intertwined with the

3

For the purpose of the present motion, "Defendants" refers only to those Defendants being sued
by Ecuadorian Plaintiffs. (See D.I. 448 at 1 n.1).
3

reasonableness of his fees . (Id.). Defendants thus intend to "object to any appeal of these
intertwined issues in a piecemeal fashion. " (Id. at 2).4
I do not think Plaintiffs have established a likelihood of irreparable harm absent a stay.
"The irreparable harm requirement is met if a plaintiff demonstrates a significant risk that he or
she will experience harm that cannot adequately be compensated after the fact by monetary
damages." Adams v. Freedom Forge Corp., 204 F.3d 475, 484-85 (3d Cir. 2000). Mere
economic loss "does not usually constitute irreparable injury." Sampson v. Murray, 415 U.S. 61 ,
90 (1974). Plaintiffs must instead "meet a more stringent standard to show that the harm is
peculiar or special." Drabbant Enters. , Inc. v. Great Atl. & Pac. Tea Co., 688 F. Supp. 1567,
1573-(D. Del. 1988); see-also Coca-Cola Bottling Co. ojElizabethtown v. Coca--Cola Co. , 668
F. Supp. 906, 910 (D. Del. 1987) ("The threshold of 'peculiarity' that the proposed action
threatens must be high, because purely economic injuries are generally compensable and do not
require injunctive relief.").
Plaintiffs' argument focuses solely on an economic loss, and they have not shown a
likelihood of "peculiar or special" harm. Plaintiffs' half of Prof. Oquendo' s fees has already
been deposited with the Court. (D.I. 438 at 6). Even after the Magistrate Judge stated that she
cannot infer financial hardship without supporting evidence, Plaintiffs did not submit evidence
showing they are impecunious. (See D.I. 445 at 4). If Plaintiffs succeed on the merits of this
case, they will be able to recover their half of Prof. Oquendo' s fees from Defendants. (See id. at
2 n.2 ("Once the case is concluded, the rule provides that the expert' s fees are taxable as costs to
the losing party." (citation omitted))). Alternatively, if Plaintiffs' appeal of the reasonableness of

4

Defendants also contend that Prof. Oquendo is the real party in interest for Plaintiffs' motion to
stay. (D.I. 448 at 1).
4

the fees succeeds (now or later), they should be able to recover any excess fees (i.e., the amount
in excess of a reasonable fee) from Prof. Oquendo. Plaintiffs have not provided any reason to
believe otherwise. The contention that Prof. Oquendo' s "regular globe-trotting" would interfere
with recovery of the funds is unsupported.

IV.

CONCLUSION
Because Plaintiffs have not shown they will suffer irreparable harm absent a stay, I do not

have to consider the other Hilton factors . The motion for a stay (D.I. 446) is DENIED.
IT IS SO ORDERED.
Entered this

5

UrP
day

of February, 2024