Chavez et al v. Chiquita Brands LLC, et al

Filing 72

MEMORANDUM OPINION regarding Motion to Stay, Cross-Motion for Reconsideration, Motion for Dismissal of Claims Pursuant to Rule 12(b)92), and Motion for Dismissal of Claims Pursuant to Rule 12(b)(6). Signed by Judge Richard G. Andrews on 5/30/2013. Associated Cases: 1:12-cv-00697-RGA et al.(nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TOBIAS BERMUDEZ CHAVEZ, et al.,
Plaintiffs,
Civil Action No. 12-697-RGA

V.

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

JULIO ABREGO ABREGO, et al.,
Plaintiffs,

v.

Civil Action No. 12-698-RGA

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

ALVARADO ALFARO MIGUEL
FRANCISCO, et al.,
Plaintiffs,

v.

Civil Action No. 12-699-RGA

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

JORGE LUIS AGUILAR MORA, et al.,
Plaintiffs,
v.

Civil Action No. 12-700-RGA

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

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EDWIN AGUERO JIMINEZ, et al.,
Plaintiffs,
v.

Civil Action No. 12-701-RGA

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

GONZALEZ ARAYA FRANKLIN, et al.,
Plaintiffs,

v.

Civil Action No. 12-702-RGA

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

MEMORANDUM OPINION

May~,2013
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In these consolidated cases, Plaintiffs brought causes of action against numerous
defendants for injuries stemming from alleged misuse of dibromochloropropane ("DBCP") on
banana plantations in Panama, Ecuador, Guatemala and/or Costa Rica. Plaintiffs filed their
claims against the same Defendants in the Eastern District of Louisiana. 1 Based on the first-filed
rule, the Court dismissed the cases against five defendants in August, 2012. (D.I. 22, 23). 2 In
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September, 2012, the Eastern District of Louisiana granted Defendants' motions for summary

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judgment based on the statute of limitations, and dismissed Plaintiffs' claims there with

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prejudice. Chaverri v. Dole Food Co., Inc., 896 F.Supp.2d 556 (E.D. La. 2012). Plaintiffs
appealed, and that appeal remains pending. (D.I. 56 at 3). Meanwhile, all remaining Defendants
except Chiquita Brands International, Inc. ("Chiquita") moved to dismiss based on the first-filed
rule, which the Court granted in March, 2013. (D.I. 71).
A similar DBCP case with different parties has also been pending in the Delaware state
courts. In August, 2012, the Delaware Superior Court denied defendants' motion to dismiss
based on the statute of limitations, ruling, in part, that the statute of limitations was tolled even
though the original filing was in another jurisdiction, based on litigation originating in a Texas
state court previously filed by one of the Delaware state court plaintiffs. See Blanco v. AMVAC

Chern. Corp., 2012 WL 3194412 (Del. Super. Aug. 8, 2012). The Superior Court then certified
for interlocutory appeal to the Delaware Supreme Court the issue of whether Delaware

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I omit years of procedural history that are irrelevant to the matters now at issue.

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The citations are to the record in Civil Action No. 12-697. The record in each ofNos.
12-698/699/700/701/702 is substantially the same.
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recognizes cross-jurisdictional tolling. (D.I. 36 at Ex. C).
Plaintiffs moved to stay this case pending the Delaware Supreme Court's ruling on the
cross-jurisdictional tolling issue, and for reconsideration of dismissal based on the first-filed rule.
The remaining defendant, Chiquita, moved for dismissal based on lack of personal jurisdiction,
res judicata and the statute of limitations, and moved for a more definite statement or to dismiss
for failure to state a claim. Plaintiffs' motions to stay and for reconsideration are denied;
Chiquita's motion to dismiss for lack of personal jurisdiction is granted; and Chiquita's
remaining motions to dismiss are dismissed as moot.

1. Plaintiffs' Motion to Stay
Before the Court is Plaintiffs' Motion to Stay Pending Delaware Supreme Court Ruling
on Cross-Jurisdictional Tolling (D.I. 36) and related briefing (D.I. 46, 47, 48, 49, 50, 51). The
reasons advanced for granting a stay are to allow the Delaware Supreme Court to rule on the
cross-jurisdictional tolling issue and to avoid piecemeal appeals. If this Court were going to
decide the cross-jurisdictional tolling issue, the Plaintiffs argument might have merit. The
Court, however, need not decide that issue. Further, the Court has denied the request for Rule
54(b) certification submitted by some Defendants. I do not intend to allow piecemeal appeals.
Therefore, there is no reason to grant a stay. Plaintiffs' Motion to Stay is denied.

2. Plaintiffs' Cross-Motion for Reconsideration
Also before the Court is Plaintiffs' Cross-Motion3 for Reconsideration of this Court's
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Plaintiffs brought this motion in responding to some Defendants' motion for entry of
final judgment under Rule 54(b). (D.I. 54). The Court docket reflects that the Court denied the
motion as moot on March 29, 2013. The Court notes that the motion was not actually moot at
the time, and that the Court had meant to deny it based on the lack of any need for an immediate
appeal and the policy against piecemeal appeals.
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Dismissal Order of August 21, 2012 (D.I. 56) and related briefing (D.I. 63, 64, 67). Plaintiffs
have not shown any intervening change in the controlling law, any new evidence, or any need to
correct a clear error of law or fact or to prevent manifest injustice. See Max's Seafood Cafe ex

rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). As the Court explained in
granting the second motion to dismiss based on the first-filed rule, the litigation in the Eastern
District of Louisiana remains pending so long as the appellate process continues. (D.I. 71). One
of the goals of the first-filed rule is to avoid separate appeals based on conflicting rulings.

Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 930 (3d Cir. 1941). Plaintiffs appealed,
continuing to avail themselves of the entirely fair process in the venue they chose, and one bite at
the apple remains sufficient. (D.I. 56 at 3; D.I. 22). Further, Plaintiffs' Cross-Motion is based on
a September 17, 2012 ruling in the Eastern District of Louisiana, but was not filed until
December 17, 2012. Plaintiffs' Cross-Motion is therefore also untimely. Plaintiffs' CrossMotion is denied.

3. Defendant Chiquita's Motion for Dismissal of Claims Pursuant to Rule 12(b)(2)
Also before the Court is Defendant Chiquita Brands International, Inc.'s Motion for
Dismissal of Claims pursuant to Rule 12(b)(2) (D.I. 37) and related briefing (D.I. 38, 57, 58, 68).
In opposing the Motion, Plaintiffs argue this Court has general jurisdiction over Chiquita,
implicitly conceding there is no specific jurisdiction over Chiquita; in the alternative, Plaintiffs
request jurisdictional discovery or transfer of their case against Chiquita to New Jersey.
When reviewing a motion to dismiss pursuant to Rule 12(b)(2), a court must accept as
true all allegations of jurisdictional fact made by the plaintiff and resolve all factual disputes in
the plaintiffs favor. Traynor v. Liu, 495 F.Supp.2d 444, 448 (D.Del. 2007). Once a jurisdictional
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defense has been raised, the plaintiff bears the burden of establishing, with reasonable
particularity, that sufficient minimum contacts have occurred between the defendant and the
forum to support jurisdiction. See Provident Nat'/ Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d
434, 437 (3d Cir. 1987). To meet this burden, the plaintiff must produce "sworn affidavits or
other competent evidence," since a Rule 12(b)(2) motion "requires resolution of factual issues
outside the pleadings." Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61,67 n. 9

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(3d Cir. 1984).
Determining the existence of personal jurisdiction requires a two-part analysis. First, the
Court must consider whether a defendant's actions come within any of the provisions of
Delaware's long-arm statute. See Intel v. Broadcom, 167 F.Supp.2d 692, 700 (D.Del. 2001).
Next, the Court must determine whether exercising jurisdiction over the defendant in this state
comports with the Due Process Clause ofthe Constitution. See id. Due Process is satisfied ifthe

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Court finds the existence of "minimum contacts" between the non-resident defendant and the
forum state, "such that the maintenance of the suit does not offend traditional notions of fair play
and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(internal quotation marks omitted).
With respect to the first-step statutory inquiry, the Court applies the law of the state in
which the district court is located. See Intel, 167 F.Supp.2d at 700. Delaware's long-arm statute
authorizes jurisdiction over a non-resident when that party or its agent:
Causes tortious injury in [Delaware] or outside of [Delaware] by an act or
omission outside [of Delaware] if the person regularly does or solicits business,
engages in any other persistent course of conduct in [Delaware] or derives
substantial revenue from services, or things used or consumed in [Delaware.]

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10 Del. C. § 31 04(c)(4). This section confers general jurisdiction, such that while a general
presence in Delaware is necessary to assert jurisdiction, the contacts of the non-resident (or its
agent) need not relate to the instant litigation. See Reach & Assocs., P. C. v. Dencer, 269
F.Supp.2d 497, 505 (D.Del. 2003). "While seemingly broad, the standard for general jurisdiction
is high in practice and not often met." !d. (citation omitted).
For the second-step Due Process analysis, the Court applies federal law. The U.S.
Supreme Court recently clarified that general jurisdiction over foreign 4 corporations is proper if
and only if"their affiliations with the State are so 'continuous and systematic' as to render them
essentially at home in the forum State." Goodyear Dunlop Tires Ops. v. Brown,- U.S.--,
- - , 131 S.Ct. 2846,2851 (2011) (citing Int'l Shoe, 326 U.S. at 317). The Goodyear Court
reaffirmed that the quintessential paradigm for general jurisdiction arises from the principal place
of business for the corporation, id. at 2856, although it would also include the state of
incorporation. !d. at 2854.
In the Complaint, Plaintiffs alleged that Chiquita, a New Jersey corporation with its
principal place of business in Ohio, "was authorized to do and was doing business within the
jurisdiction of this Honorable Court." (D.I. 1, ~ 96). In opposing the Motion, Plaintiffs further
assert general jurisdiction based on Chiquita being "generally present with continuous and
systematic activity in Delaware," based on the following: a newspaper article and a Port of
Wilmington press release describing Chiquita's weekly sailings into the Port of Wilmington and
Chiquita's maintenance of a facility there; Chiquita's 2011 Form 10-K describing its general
activities importing bananas and other produce from Central America to the United States,

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"Foreign" in this context means non-Delaware. Goodyear, 131 S.Ct. at 2851.
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without any specific mention of Delaware; the store locator on Chiquita's website pointing
consumers to Delaware retail locations for Chiquita Bites; and the fact that Chiquita's main
operating subsidiary, Chiquita Brands LLC, is a Delaware corporation. (D.I. 57 at 2-5).
Chiquita's principal place ofbusiness moved to North Carolina in 2012. (D.I. 1, ~ 96; D.I. 38 at
3 n.2; id Ex. A).

Chiquita does not dispute that it does business in Delaware, nor does it appear to dispute
that those activities meet the requirements of the Delaware long-arm statute, and therefore satisfy
the statutory step of the general jurisdiction analysis. 5 (D.I. 68 at 6-1 0). Chiquita disputes that it
is "at home" in Delaware under Goodyear and asserts there can be no general jurisdiction under
the Due Process Clause. Chiquita argues, "The same facts could be applied to every state in the
Union." (D.I. 68 at 6).
Plaintiffs' jurisdictional allegations for Chiquita, taken as true, do not show that Chiquita
is "at home" in Delaware under Goodyear. Even viewing the facts in the light most favorable to
Plaintiffs, it cannot be inferred that Chiquita's ownership of a facility in Delaware, movement of
its products through Delaware, and sale of its products in Delaware make Chiquita "at home" in

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Because Chiquita does not dispute that its Delaware activities satisfy Delaware's longarm statute, the Court need not reach Plaintiffs' argument that Chiquita's Delaware subsidiary,
Chiquita Brands LLC, is an "agent" for Chiquita and therefore confers general jurisdiction over
Chiquita, the parent company, under the Delaware long-arm statute. (D.I. 60 at 5-6). A
defendant company may be subject to personal jurisdiction under Delaware's long-arm statute by
virtue of the court's personal jurisdiction over the defendant company's affiliate, under agency
theory. See Intellectual Ventures I LLC v. Nikon Corp., 2013 WL 1298599, *4-5 (D. Del. 2013);
C.R. Bard, Inc. v. Guidant Corp., 997 F.Supp. 556, 560-61 (D.Del. 1998). Plaintiffs do not
assert that this purported agency relationship confers jurisdiction in accordance with the Due
Process Clause, which is the only prong of jurisdiction Chiquita disputes.
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Delaware. 6 Chiquita is a nationwide company and its products (and facilities through which they
are moved) are ubiquitous across the country. See D.I. 57 at 3-4 (quoting Chiquita's 2011 Form
10-K). The Supreme Court seemed to reject the idea that national or international corporations
are subject to general jurisdiction throughout the United States. Goodyear, 131 S.Ct. at 1255-56.
Maintaining a website providing the entire nation with information about the company and its
products does not confer general jurisdiction. CR. Bard, Inc. v. Guidant Corp., 997 F.Supp.
556, 561 (D. Del. 1998). Plaintiffs have not alleged nor shown that Chiquita is any more active
in Delaware than it is in any other state in which it moves and sells its products. Chiquita's
activity in Delaware does not come close to rising to the level of the principal place of business,
that "quintessential paradigm" for general jurisdiction. See Goodyear, 131 S.Ct. at 2856.
Indeed, while Chiquita's contacts with Delaware are regular, and may be economically
substantial, they are not of the "at home" variety. There are no allegations that Chiquita has any
Delaware employees, or does anything in Delaware other than maintain a facility and distribute
bananas, albeit a lot of bananas. Plaintiffs have not factually alleged nor shown that this Court
has general jurisdiction over Chiquita.
Plaintiffs request that if the Court concludes they have failed to meet their burden to
establish personal jurisdiction over Chiquita, the Court allow Plaintiffs to take jurisdictional
discovery regarding Chiquita's business relationship with its subsidiary rather than dismiss the
claims. The Third Circuit has instructed that "[i]fthe plaintiff presents factual allegations that
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Chiquita objects to the admissibility of the newspaper article and the press release, while
Plaintiffs ask the Court to take judicial notice of the fact that Chiquita sails weekly into
Wilmington. The Court need not reach the admissibility of these documents; it must accept
Plaintiffs allegations of the weekly sailings and ownership of the facility as true. See Traynor,
495 F.Supp.2d at 448.

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suggest with reasonable particularity the possible existence of the requisite contacts between the
party and the forum state, the plaintiffs right to conduct jurisdictional discovery should be
sustained." Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir.
2010) (internal quotation marks and brackets omitted). "A plaintiff may not, however, undertake
a fishing expedition based only upon bare allegations, under the guise of jurisdictional
discovery." !d.
Here, Plaintiffs do not make factual allegations suggesting Chiquita's affiliations with
Delaware are so continuous and systematic as to render it essentially at home in Delaware. And
Plaintiffs do not allege any fact to suggest the existence of any contact between Chiquita or
Chiquita Brands, LLC with the State of Delaware (beyond the fact that the subsidiary is a
Delaware entity, and Chiquita moves and sells its products in Delaware as well as the rest of the
country). This is insufficient to justify jurisdictional discovery. Grynberg v. Total Compagnie
Francaise Des Petroles, 2012 WL 4105089, *4 (D. Del. Sept. 18, 2012).
As a second alternative, Plaintiffs ask the Court to transfer the case against Chiquita- the
sole remaining Defendant- to New Jersey, Chiquita's state of incorporation, under 28 U.S.C. §
1406(a). Chiquita does not address this request. If a case is filed in the wrong court, a court has
discretion to "dismiss, or if it be in the interest of justice, transfer [the] case to any district or
division in which it could have been brought." 28 U.S.C. § 1406(a).

A district where the case

"could have been brought" requires that the transferee forum have proper venue and personal
jurisdiction over the defendant. FS Photo, Inc. v. Picture Vision, Inc., 48 F.Supp.2d 442, 449 (D.
Del. 1999). The moving party bears the burden to establish the appropriateness of transfer under
Section 1406. Marnavi SpA v. Keehan, Civ. No. 08-00389-SLR-LPS, 2010 WL 1499583, at *2
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(D.Del. Apr. 14, 2010).
Here, every other Defendant has had their claims dismissed based on the first-filed rule
based on the litigation in the Eastern District of Louisiana. Chiquita is also a defendant in the
Eastern District of Louisiana case and joined the motion for summary judgment granted by that
Court. Chaverri, 896 F .Supp.2d at 558 & n.1. Thus, although New Jersey is therefore a district
where this case, filed after the Eastern District of Louisiana case was filed, "could have been
brought" from a venue and personal jurisdiction perspective, there is nothing else to recommend
such a transfer. The policies behind the first-filed rule mean that transferring the case to New
Jersey would not be in the interest of justice. 7 See Crosley Corp. v. Hazeltine Corp., 122 F .2d
925, 930 (3d Cir. 1941 ). Plaintiffs do not submit any argument in support of their request to
transfer (see D.I. 57), and therefore fail to meet their burden. Their request for a transfer is
therefore denied. Chiquita's motion is granted, and Plaintiffs' claims against Chiquita are
dismissed.

4. Defendant Chiquita's Motionfor Dismissal ofClaims Pursuant to Rule 12(b)(6)
Based on Res Judicata and Statute ofLimitations, and Defendant Chiquita's Motion for a More
Definite Statement or to Dismiss for Failure to State a Claim
Finally, before the Court are two more motions to dismiss by Chiquita, asserting res
judicata based on the Eastern District ofLouisiana's statute of limitations ruling on summary
judgment (D.I. 41), and for a more definite statement or for failure to state a claim based on
Plaintiffs' fraud allegations (D.I. 39). Because the Court has granted Chiquita's motion to
dismiss for lack of personal jurisdiction, these motions are dismissed as moot.
An appropriate order will be entered.

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Plaintiffs did not ask for transfer of the case to the Eastern District of Louisiana.
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