Chavez et al v. Chiquita Brands LLC, et al

Filing 225

REPORT AND RECOMMENDATIONS- re 185 MOTION for Dismissal from the Ecuadorian Portion of this Action and for Protection from Party Discovery. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 7/30/2019. Signed by Judge Sherry R. Fallon on 7/16/2019. (lih)

IN THE UNITED ST ATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TOBIAS BERMUDEZ CHAVEZ, et al.,
Plaintiffs,
V.

DOLE FOOD COMPANY, INC., et al.,
Defendants.

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Civil Action No. 12-697-RGA

REPORT AND RECOMMENDATION
I.

Introduction

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

1

The briefing for the pending motion is as follows: Chiquita's opening brief in support of its
motion to dismiss (D.I. 185), plaintiffs' answering brief (D.I. 197), and Chiquita's reply brief
(D.I. 204).

II.

Background
a. Facts
Plaintiffs are foreign nationals from Ecuador, Panama, and Costa Rica. (D.I. 1 at 13)

Plaintiffs claim that, as workers on banana-growing plantations in Ecuador, Panama, and Costa
Rica between the 1960s and the 1980s, they used the pesticide dibromochloropropane ("DBCP")
in the soil and over the fields. (Id. at 15) See also Chavez v. Dole Food Company, Inc., 836
F.3d 205,211 (3d Cir. 2016). Workers allegedly wore no gloves, protective covering, or
respiratory equipment to prevent absorption or inhalation of DBCP. (DJ. 1 at 15) Plaintiffs
claim that none of the defendants informed them of the dangers ofDBCP or provided them
protective equipment. (Id.) Plaintiffs allege that, as a result, they now suffer from sterility,
cancer, miscarriages, compromised renal systems, compromised respiration systems, chronic
skin disorders, testicular atrophy, impotence, headaches, and chronic stomach ailments. (Id. at
118-10)

b. Procedural History
On June 1, 2012, plaintiffs originally filed this mass tort action against multiple
defendants in the District Court ofDelaware. 2 (D.I. 1) Defendants Dole Food Company, Inc.,

2

The Third Circuit thoroughly sorted through what it termed the "Gordian Knot" of the twentyyear litigation history of the instant case, in considering earlier appeals of motions to dismiss.
Chavez v. Dole Food Company, Inc., 836 F.3d 205,213 (3d Cir. 2016). This litigation began in
1993, when plaintiffs filed a putative class action in Texas state court. See id. at 211.
Defendants impleaded foreign entities and removed the case to the United States District Court
for the Southern District of Texas, which dismissed the class action on forum non conveniens
grounds. See id. at 211-12. The District Court for the Southern District of Texas stated that the
plaintiffs could return to federal court if their home countries refused to take jurisdiction over
their claims. See id. at 212. In the early 2000s, plaintiffs returned to the District Court for the
Southern District of Texas, which revived the case and remanded it to Texas state court. See id.
In 2009, defendants removed the case briefly before it was again remanded to Texas state court.
See id. In 2010, the state court denied class certification. See id. Following this denial,
plaintiffs decided to sue defendants on a non-class basis in federal district court in Louisiana.
2

Dole Fresh Fruit Company, Standard Fruit Company, and Standard Fruit and Steamship
Company (collectively, "Dole") filed a motion to dismiss on June 21, 2012, which the court
granted on August 21, 2012. (D.I. 3; D.I. 22; D.I. 23) Defendant Occidental Chemical
Corporation ("Occidental") filed a motion to dismiss on August 22, 2012, which was granted on
March 29, 2013. (D.I. 24; D.I. 71) On October 24, 2012, plaintiffs filed a motion to stay the
case. (D.I. 36)
On October 26, 2012, Chiquita International filed a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(2). (D.I. 37) On the same day, Chiquita filed two motions: (1) a motion for a
more definite statement, or in the alternative, to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and
(2) a motion to dismiss based on res judicata and the statute of limitations. 3 (D.1. 39; D.I. 41)
On May 30, 2013, Judge Andrews granted Chiquita International's motion to dismiss for lack of
personal jurisdiction and dismissed Chiquita's other motions as moot with respect to Chiquita
International. (D.I. 72) Judge Andrews also denied plaintiffs' motion to stay the case. (Id.) On
July 8, 2013, Chiquita Brands and Chiquita Fresh filed a motion to dismiss pursuant to the firstfiled rule and Fed. R. Civ. P. 12(b)(6) based on res judicata and the statute of limitations. (D.1.
76) On September 19, 2013, Judge Andrews granted Chiquita Brands and Chiquita Fresh's
motion to dismiss, thereby closing the case. (D.I. 81; D.I. 82) On October 16, 2013, plaintiffs
appealed the decisions granting defendants' motions to dismiss and denying plaintiffs' motion to
stay. (D.I. 83; D.I. 84)

See id. at 212-13. Defendants subsequently moved for summary judgment, arguing that
plaintiffs' claims were time-barred under Louisiana's one year statute oflimitations. See id. at
213. In order to preserve their ability to litigate in another forum, plaintiffs filed several suits in
this District. See id. at 213-14.
3
Chiquita International joined Chiquita Brands and Chiquita Fresh in these motions in the event
that the court found that it had jurisdiction despite the arguments in Chiquita International' s
12(b)(2) motion. (D.I. 40 at 1 n.1; D.I. 42 at 1 n.1)
3

On September 2, 2016, the Third Circuit vacated the dismissals, concluding that the
District Court abused its discretion under the first-filed rule by dismissing the plaintiffs' claims
with prejudice. (D.I. 87-2) The Third Circuit determined that the District Court erred by
refusing to transfer the claims against Chiquita International after finding lack of personal
jurisdiction. (Id.) Furthermore, the Third Circuit concluded that plaintiffs' suits in Delaware
were not barred by res judicata. (Id.) The Third Circuit remanded for further proceedings
consistent with its opinion. (Id.)
Chiquita filed its answer to the complaint on November 23, 2016. (D.I. 112) On January
3, 2017, the parties filed a joint status report, wherein Chiquita International advised that
although it previously filed a Rule 12(b)(2) motion objecting to lack of personal jurisdiction, it
was waiving that motion and submitting to the jurisdiction of this court. (D.I. 138 at 1 n.l) On
July 11, 2017, plaintiffs filed an unopposed motion to stay the action until the Third Circuit
resolved the appeal in a related case, Marquinez v. Dole Food Company, 45 F. Supp. 3d 420 (D.
Del. 2014). (D.I. 164) The motion to stay was granted on July 25, 2017. (D.I. 165) On May
29, 2018, the Third Circuit vacated the orders of dismissal in Marquinez and remanded that case
to the District Court for further proceedings. (D.I. 167) See also Marquinez v. Dole Company
Inc., 724 F. App'x 131 (3d Cir. 2018). This case was reopened on June 4, 2018.

On July 26, 2018, Judge Andrews entered a scheduling order, which incorporated a
statement that the Chiquita defendants did not believe they were proper parties with respect to
the Ecuadorian plaintiffs. 4 (D.I. 176 at ,i 2) On November 15, 2018, Chiquita filed the present

4

The scheduling order directed initial discovery and trial preparation efforts on the claims of the
Ecuadorian Plaintiffs. (D.I. 176 at ,i 1) Once the initial screening process was completed as to
all Ecuadorian Plaintiffs, the Panamanian Plaintiffs were to begin the initial screening process,
followed by the Costa Rican Plaintiffs. (Id.)
4

motion to dismiss the Ecuadorian portion of the action and for protection from party discovery.
(D.I. 185) The court held oral argument on the pending motion to dismiss on June 20, 2019.
(D.I. 223)
In the parties' answering and reply briefs, documents outside of the pleadings were
included as exhibits. (D.I. 197; D.I. 204) Moreover, plaintiffs sought to introduce at oral
argument, for the first time, more documents that had not been attached to the pleadings or the
briefs, including the deposition of Barbara Howland ("Ms. Howland") in order to impeach Ms.
Rowland's affidavit, which Chiquita had attached to its reply brief. 5 (D.I. 204, Ex. 3; D.I. 223 at
53:9-54:5) The court excluded Ms. Rowland's deposition. (D.I. 223 at 54:6-55:11) Following
oral argument, plaintiffs filed an offer of proof pursuant to Fed. R. Evid. 103(a)(2), seeking to
include the Howland deposition as part of the record for the instant motion. (D.I. 221)

III.

Legal Standard
Consequently, the court considers Chiquita's motion as one for judgment on the

pleadings pursuant to Federal Rule of Civil Procedure 12(c). 6 Under Federal Rule of Civil
Procedure 12(c), "[a]fter the pleadings are closed- but early enough not to delay trial - a party
may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). When deciding a Rule 12(c)

5

Ms. Howland is the Corporate Secretary for Chiquita International. (D.I. 204, Ex. 3) In her
affidavit, Ms. Howland claims that neither Chiquita International, nor any of its predecessors
owned, operated, or controlled any business in Ecuador, with the limited exception of
"sporadically purchasing small quantities of fruit on the open market in Ecuador." (Id.)
Plaintiffs proffered Ms. Rowland's prior deposition transcript from a similar DBCP-related
injury case pending twelve years ago to impeach Ms. Rowland's affidavit. (D.I. 221; D.I. 223 at
53:22-55:11)
6
Chiquita cites to the scheduling order at Paragraph 2(a) as the procedural foundation for the
instant motion. When questioned at oral argument about which Federal Rule of Civil Procedure
applies to the analysis, Chiquita responded that the court should apply Rule 12(b) or Rule 12(c).
(D.I. 223 at 13:1-14:24) Chiquita filed an answer, and therefore Rule 12(b) is not applicable. A
discussion of the Federal Rule of Civil Procedure applicable to the present motion follows in
section IV infra.
5

motion for judgment on the pleadings based on an allegation that the plaintiff has failed to state a
claim, the motion "is analyzed under the same standards that apply to a Rule 12(b)(6) motion."

Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010), cert. denied, 131 S. Ct. 995, 178 L.Ed.2d
825 (Jan. 18, 2011).
To state a claim upon which relief can be granted pursuant to Rule 12(b)(6), a complaint
must contain a "short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required, the
complaint must set forth sufficient factual matter, accepted as true, to "state a claim to relief that
is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Under this standard, the court must accept all wellpleaded factual allegations as true, and must draw all reasonable inferences in favor of the nonmoving party. See Turbe v. Gov 't of Virgin Islands, 938 F.2d 427,428 (3d Cir. 1991). This
determination is a context-specific task requiring the court "to draw on its judicial experience
and common sense." Iqbal, 556 U.S. at 679.

IV.

Discussion
Chiquita moves to dismiss the Ecuadorian plaintiffs' claims pursuant to the procedure in

Paragraph 2 of the scheduling order. 7 (D.I. 185; D.I. 223 at 12:1-24) Chiquita argues that

7

At oral argument, the court questioned Chiquita's counsel about the present motion:
THE COURT:

Under what rule of civil procedure is this motion filed?

MR. ORLACCHIO: Your Honor, in the scheduling order, paragraph 2
specifically, there was a mechanism for handling this exact dispute. And per the
parties' negotiations as well as Judge Andrews' approval, it was titled motion to
dismiss practice. That's why this motion is titled as it is.
(DJ. 223 at 12:1-9) Chiquita claims to have followed Paragraph 2 procedures in that it observed
the ninety day period to meet and confer before it submitted a letter on October 25, 2018,
6

because plaintiffs were specific about asserting claims alleging Chiquita's involvement with
banana plantations in Panama and Costa Rica, as demonstrated in paragraphs 29 and 96 through
103 of the complaint, but made no such specific allegations concerning Ecuador, it follows that
the Ecuadorian plaintiffs have failed to state a claim. 8 (D .I. 185 at 2, 5-7; see also D .I. 1 at ,,
29, 96-103) Plaintiffs, however, argue that Chiquita's challenge to their allegations is untimely
under Rules 12(b)(6), 12(c), and 12(e). (D.I. 197 at 13-14) Specifically, plaintiffs contend that
Chiquita waived its relief under Rules 12(b)(6) and 12(e) by filing its answer. (Id. at 13)
Furthermore, plaintiffs argue that Chiquita's motion under Rule 12(c) is premature because the
pleadings have not closed. (Id.) Plaintiffs claim that, pursuant to the scheduling order, pleadings
do not close until sixty days after the completion of fact discovery. (Id.)
Generally, motions to dismiss must be filed before or with a responsive pleading, if one is
required. See Fed. R. Civ. P. 12(b). However, the defense of failure to state a claim upon which
relief may be granted may also be considered as a motion for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c). See Fed. R. Civ. P. 12(h)(2)(B); Toy v. Plumbers & Pipejitters Local

Union No. 74 Pension Plan, 439 F. Supp. 2d 337, 341 (D. Del. 2006) (citing Turbe, 938 F.2d at
428). Chiquita filed its answer before filing the present motion to dismiss, and therefore the
motion cannot be considered under Rule 12(b), but rather under 12(c). (D.I. 112; D.I. 185) See

Toy, 439 F. Supp. 2d at 341.

advising the court that Chiquita believed that the Ecuadorian plaintiffs did not plead any claims
against Chiquita. (D.I. 223 at 28: 17-29:7; D.I. 177) Judge Andrews subsequently issued an oral
order that provided a deadline for motions filed pursuant to Paragraph 2(a) of the scheduling
order. (D.I. 178)
8
Plaintiffs assert that they have adequately pleaded conspiracy and participation and assistance
claims against Chiquita. (D.I. 1 at,, 167-181; D.I. 223 at 41:14-42:2) Plaintiffs concede that
they do not explicitly plead that Ecuadorian plaintiffs worked on farms that were controlled by
Chiquita during the relevant time period. (D.I. 223 at 41 :20-42:2)
7

"Pleadings are closed within the meaning of Rule 12(c) if no counter or cross claims are
at issue when a complaint and an answer have been filed." Maniaci v. Georgetown University,
510 F. Supp. 2d 50, 60 (D.D.C. 2007) (citing Fed. R. Civ. P. 7(a)). In other words, pleadings are
considered closed when a defendant files its answer, and "not when Plaintiffs court-imposed
deadline to file a motion for leave to amend his complaint has passed." Id. (citing Fed. R. Civ. P.
7(a)); see also Nortel Networks Ltd. v. Kyocera Wireless Corp., 2002 WL 31114077 (N.D. Tex.
Sept. 20, 2002). Here, the scheduling order states that motions to join other parties, and to
amend or supplement the pleadings shall be filed on or before sixty days following completion of
fact discovery. (D.I. 176 at ,i 4) Although plaintiffs claim that this deadline indicates the proper
close of pleadings, Chiquita filed its answer on November 23, 2016 and pleadings have,
therefore, "closed." (D.I. 197 at 13; D.I. 112)
However, whether pleadings are closed is not relevant where, as here, the parties agreed
to a procedure for a defendant to pursue dismissal from the Ecuadorian phase of the case and
Chiquita acknowledges that its motion is governed by such procedure. (D.I. 176 at ,i,i 1-2) That
agreement was adopted and operates as the Order of the Court. Paragraph 2(a) of the scheduling
order provides as follows:
The Chiquita Defendants do not believe they are proper parties with respect to the
Ecuadorian Plaintiffs and therefore are not "Participating Defendants." 9 To the
extent that any claims are asserted against the Chiquita Defendants, they will join
the process with Del Monte and Shell outlined in the remainder of this paragraph .
. . . The parties will then advise the Court if there is agreement to change the list
of Participating Defendants or if Del Monte and/or Shell intend to make a motion
seeking dismissal of the claims of Ecuadorian Plaintiffs as to either of them.
Following a meet and confer on scope, the parties may also conduct written

9

"'Participating Defendants' include all Defendants against whom Ecuadorian Plaintiffs have
asserted claims in the Complaints. Ecuadorian Plaintiffs who do not allege exposure on
plantations owned, operated or controlled by the Chiquita Defendants do not assert any claims
against the Chiquita Defendants." (D.I. 176 at ,i 2)
8

discovery on the nature and evidentiary bases of the claims of Ecuadorian
Plaintiffs against Del Monte and/or Shell.
(D.I. 176 at, 2) (emphasis added)
The present motion arises from the parties' dispute as to the interpretation of Paragraph 2
of the scheduling order. Chiquita seeks to curb defense costs and expenses of discovery in the
Ecuadorian phase in which it contends it has no interest based on plaintiffs' complaint. (D.I. 223
at 20:13-24) On the other hand, the plaintiffs resist conceding that dismissal is appropriate until
some discovery directed to determining the extent, if any, of Chiquita's participation in Ecuador
has been provided. 10 (Id at 39:8-17) The parties' failed attempt to bring closure to negotiation
of a stipulation of dismissal of Chiquita in Ecuador brings this motion sub judice. 11
Both Chiquita and plaintiffs have attached to their briefing several extraneous documents
not relied upon by or referenced in the complaint. 12 (See D.I. 197; D.I. 204) Plaintiffs provided
two of Chiquita's 10-K annual reports from 1973 and 2010 at oral argument to illustrate that

10

Apparently, the Ecuadorian plaintiffs wish to avoid a dismissal of Chiquita because it could
constitute a "second" dismissal for purposes of Rule 41(a), resulting in a dismissal with
prejudice. (D.I. 223 at 44:5-46:2) Plaintiffs have not provided the court with a reference to the
record as to when the "first" dismissal of Chiquita occurred.
11
In September and October 2018, the parties were negotiating language of a stipulation of
dismissal. (D.I. 223 at 30:6-7; D.I. 185, Ex. B) On October 17, 2018, plaintiffs stated that they
"will not execute nor agree to a voluntary dismissal of Chiquita for claims they have not asserted
against Chiquita." (D.I. 185, Ex. B) The parties ultimately reached an impasse in negotiations,
resulting in Chiquita filing the present motion. (Id.)
12
Chiquita attached Ms. Howland's affidavit and the sworn declaration of Monserrat Maria
Rouillon Puig Mir ("Mrs. Puig Mir") to its reply brief. (D.I. 204, Ex. 3; Ex. 4; Ex. 5) Mrs. Puig
Mir is the attorney representing Chiquita Banana Ecuador CB Brands S.A., and opined that
Chiquita International and its predecessors did not have any business in Ecuador during the
relevant time period. (D.I. 204, Ex. 4; Ex. 5) Plaintiffs attached the 10-K annual reports of
Chiquita and Chiquita's predecessor in interest, United Brands Company (the successor by
merger to United Fruit Company). (D.I. 197, Ex. A; Ex. D) Additionally, plaintiffs attached the
declaration of Steve Striffler, a professor of anthropology at the University of Massachusetts,
who opined that United Fruit Company and Chiquita had a presence in Ecuador during the
relevant time period. (D.I. 197, Ex. B)
9

evidence exists that supports a motion to amend. (D.I. 223 at 48: 10-19, 51: 13-52:7) At oral
argument, plaintiffs also proffered Ms. Howland' s deposition transcript, which the court
excluded. (Id at 53:9-55:11) The court could treat the present motion as a motion for judgment
on the pleadings if it looks only to the allegations within the complaint, or as a motion for
summary judgment if it considers the materials the parties have attached to their briefing. See
Fed. R. Civ. P. 12(d); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997). (D.I. 223 at 15:1-16:10) Given the procedural posture of this case and its governing
scheduling order, the court recommends denying the pending motion without prejudice.
Chiquita may present its motion for summary judgment at the appropriate time, when the
plaintiffs have had the opportunity to obtain discovery relevant to such a motion. See Fed. R.
Civ. P. 12(d) ("All parties must be given a reasonable opportunity to present all the material that
is pertinent to the motion."). The materials outside of the pleadings upon which plaintiffs rely in
opposing Chiquita's dismissal suggest that plaintiffs could seek leave to amend their Ecuadorian
claims prior to the deadline in Paragraph 4 of the scheduling order. 13
Chiquita argues that because the Ecuadorian plaintiffs have not asserted claims against
Chiquita, there are no claims on which they can conduct discovery, and any discovery at this
time would be fishing for facts to support a claim against Chiquita. (D.1. 185 at 5-6) Chiquita's
motion skirts the process established in Paragraph 2 of the scheduling order, which provides
plaintiffs the opportunity to conduct written discovery on the "nature and evidentiary bases of the
claims of Ecuadorian Plaintiffs." (D.I. 176 at~ 2) Chiquita presents a selection of documents in
its reply brief which it contends are not submitted to support its motion, but, instead, for the
limited purpose ofrebutting the exhibits to plaintiffs' answering brief. (D.I. 223 at 15:16-20)

13

The court makes no recommendation with regard to amendment of the pleadings at this time.
10

Chiquita opposes any further discovery beyond what it has provided. Regardless of how
Chiquita characterizes the "purpose" of submitting exhibits, it has, nonetheless, opened the door
to consideration of materials outside of the pleadings in support of the pending motion. In
general, motions to dismiss pleadings are to be considered in the light most favorable to the nonmoving party and when the moving party relies on documents outside of the pleadings, there
should be a fair opportunity for the non-moving party to seek the discovery it needs to
reasonably respond to the motion. See, e.g., Fed. R. Civ. P. 12(d); Michaels v. NCO Financial
Systems Inc., 2011 WL 2600723, at *3-4 (W.D. Pa. June 29, 2011).
Therefore, the court recommends denying Chiquita's motion to dismiss without prejudice
to renew pursuant to Paragraph 2(a) of the scheduling order. Furthermore, the court denies
Chiquita's motion for a protective order prohibiting the plaintiffs from conducting discovery as
permitted under Paragraph 2(a) of the scheduling order. Given the court's recommendation,
plaintiffs' offer of proof is moot.

V.

Conclusion
For the foregoing reasons, the court recommends denying defendants' motion to dismiss

without prejudice, denying defendants' motion for a protective order, and denying plaintiffs'
offer of proof as moot. (C.A. No. 12-697, D.I. 185)
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right

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to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.

Dated: July l ~, 2019

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