A. et al v. Doe Run Resources Corporation et al
MEMORANDUM AND ORDER, IT IS HEREBY ORDERED that defendants' motion for a determination of foreign law 148 is granted in part and denied in part. Mo. Rev. Stat. § 516.190, the state borrowing statute, does not apply and so Missouri' s statute of limitations applies to the plaintiffs claims. The court declines to make a choice-of-law determination at this time, but without prejudice to any party's right to move for such a ruling after more discovery has been completed. Signed by District Judge Catherine D. Perry on 2/11/15. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SR. KATE REID, et al.,
DOE RUN RESOURCES CORP., et al., )
Case No. 4:11CV44 CDP
MEMORANDUM AND ORDER
Pending before me is the defendants‟ motion for a determination of foreign
law pursuant to Federal Rule of Civil Procedure 44.1. The defendants have
requested that the court determine that: (1) the plaintiffs‟ claims “originated” in
Peru and are “fully barred” under Peruvian law so that, in accordance with
Missouri‟s borrowing statute, Peru‟s shorter statute of limitations applies; and (2)
under Missouri‟s choice-of-law analysis, Peru (and not Missouri or New York) has
the most significant relationship to this action, so its substantive laws govern the
plaintiffs‟ claims. The plaintiffs argue that these issues cannot be determined now
on an incomplete record, and that if they can, the law of Missouri or New York
(and not Peru) applies. In case the court disagrees, the plaintiffs also advance an
interpretation of the relevant Peruvian law that is favorable to them.
I have considered the voluminous briefs and exhibits submitted by the
parties, including the reports and rebuttal reports from the retained experts in
Peruvian law, and I have also conducted my own research. After considering all of
these materials, I have concluded that: (1) there has been no showing the plaintiffs‟
claims are fully barred in Peru and so Missouri‟s statute of limitations applies; and
(2) I cannot determine without more discovery whether Peru‟s substantive law
governs part or all of the plaintiffs‟ claims, and so I decline to make a Rule 44.1
ruling as to the content of that law.
Background and Claims
It is undisputed that this action involves polluting activities at a smelter of
lead and other metals located in La Oroya, Peru, and allegedly owned directly or
indirectly and/or controlled by the defendant companies and individuals. The
plaintiffs, most of whom are represented by two American next friends, are
Peruvian children (or persons who have attained the age of majority during
litigation) who allege that they live near La Oroya and have been harmed by
exposure to high levels of lead, cadmium, sulfur dioxide, and other toxic
substances emitted from the smelter.
All told, this action and its predecessor have spent the better part of a decade
in both state and federal court. The parties are familiar with its procedural history,
so I will not recount it here in any detail. In brief, after voluntarily dismissing an
earlier case, the plaintiffs filed suit in Missouri state court in 2011, bringing state
law claims of negligence and strict liability, civil conspiracy, and contribution.
The defendants removed the case to federal court. This court has jurisdiction
under 9 U.S.C. § 205 because the action relates to a foreign arbitration. See Reid v.
Doe Run Res. Corp., 701 F.3d 840, 843 (8th Cir. 2012).
At this time, this action consists of some twenty-odd cases consolidated for
pretrial purposes and involving similar claims by more than 900 plaintiffs. The
parties are engaged in limited discovery, and a special master has been appointed
to assist with electronic discovery issues.
Federal Rule of Civil Procedure 44.1
The defendants request that I make a determination of foreign law pursuant
to Federal Rule of Civil Procedure 44.1. Under Rule 44.1, the determination of
foreign law is a question of law – not fact – that can be based on any relevant
source, “whether or not submitted by a party and whether or not admissible under
the Federal Rules of Evidence.” United States v. Matya, 541 F.2d 741, 746 n.10
(8th Cir. 1976) (citing Fed. R. Civ. P. 44.1).
The rule, adopted in 1966, gives courts wide discretion in accepting or
rejecting evidence of foreign law. Id. (Rule 44.1 and its notes “avoid
characterizing the process by which courts take cognizance of what the law is as
judicial notice, thereby emphasizing the non-evidentiary nature of the process”).
A court may conduct research on its own, especially if it wishes “to reexamine and
amplify material that has been presented by counsel in partisan fashion or in
insufficient detail,” but it is not obligated to do so; it may instead “insist on a
complete presentation by counsel.” Fed. R. Civ. P. 44.1 advisory committee‟s
note; but see also Twohy v. First Nat. Bank of Chicago, 758 F.2d 1185, 1193 (7th
Cir. 1985) (“courts are urged to research and analyze foreign law independently,”
especially because counsel‟s arguments are often one-sided); Faggionato v.
Lerner, 500 F. Supp. 2d 237, 244 (S.D.N.Y. 2007).
Although a court making a Rule 44.1 determination may examine any
relevant material, “it is under no obligation to do so if the party whose burden it is
fails to produce sufficient evidence that foreign law applies.” In re Vivendi
Universal, S.A. Sec. Litig., 618 F. Supp. 2d 335, 340 (S.D.N.Y. 2009). Where the
parties do not adequately prove foreign law so as to “enable the court to apply it in
a particular case,” the law of the forum applies. Mzamane v. Winfrey, 693 F. Supp.
2d 442, 469 (E.D. Pa. 2010) (citing Bel-Ray Co., Inc. v. Chemrite Ltd., 181 F.3d
435, 440 (3d Cir. 1999)). A court has no duty to make further inquiries of a party
who fails to prove the content of the applicable foreign law. See Vivendi, 618 F.
Supp. 2d at 340.
Missouri’s borrowing statute
When Missouri is the forum state, its statutes of limitations generally apply.
Keaton v. Crayton, 326 F. Supp. 1155, 1157–58 (Mo. Ct. App. 1969); Renfroe v.
Eli Lilly & Co., 686 F.2d 642, 646 (8th Cir. 1982). Missouri has adopted a
borrowing statute that imports another jurisdiction‟s limitations period under
certain circumstances. See Combs v. Int’l Ins. Co., 354 F.3d 568, 578-79 (6th Cir.
2004) (history of borrowing statutes).
Missouri‟s borrowing statute provides as follows:
Whenever a cause of action has been fully barred by the laws of the
state, territory or country in which it originated, said bar shall be a
complete defense to any action thereon, brought in any of the courts
of this state.
Mo. Rev. Stat. § 516.190.
Under the plain language of this statute, see, e.g., State v. Owen, 216 S.W.3d
227, 229 (Mo. Ct. App. 2007), there are at least two prerequisites to its application.
It will only be employed if: (1) the cause of action “originated” in the foreign
jurisdiction, and (2) the cause of action is “fully barred” in that jurisdiction.1
Although it has not interpreted “cause of action” as this term is used in Section 516.190, the
Supreme Court of Missouri has generally adopted the Black‟s Law Dictionary definition of a
The first prong is easily met. For purposes of the borrowing statute,
plaintiffs‟ claims originated in Peru because that is where the damage resulting
therefrom was sustained and was capable of ascertainment. See Thompson v.
Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992) (“originated” in Section 516.190
means “accrued”); Mo. Rev. Stat. § 516.100 (“accrued” means “when the damage
resulting therefrom is sustained and is capable of ascertainment”); Benton v.
Cracker Barrel Old Country Stores, Inc., 436 S.W.3d 632, 634 (Mo. Ct. App.
2014) (Section 516.100 definition also applies to where a cause of action accrued);
see also Natalini v. Little, 185 S.W.3d 239, 243-44 (Mo. Ct. App. 2006). The
plaintiffs argue otherwise, but their arguments run afoul of common sense. They
do not allege that they have ever left Peru, so the damage they have allegedly
suffered could not have been sustained and could not have been capable of
ascertainment anywhere else.
The second prong – that plaintiffs‟ claims are fully barred in Peru – has not
been met. See Kampe v. Colom, 906 S.W.2d 796, 807 (Mo. Ct. App. 1995) (“fully
“cause of action”: “a group of operative facts giving rise to one or more bases for suing.”
Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). The
plaintiffs have brought seven claims: two each of negligence, civil conspiracy, and absolute or
strict liability (for each claim, one count against the entity defendants and one count against the
individual defendants), as well as a claim of contribution based on the tortious conduct of entities
acting in concert, against all of the defendants. The plaintiffs have not argued that each of their
claims should be analyzed separately under the borrowing statute, so I presume, for the purpose
of this order, that their claims constitute a single cause of action.
barred” is prerequisite to application of Section 516.190). As Missouri courts have
interpreted it, the borrowing statute imports not only the foreign jurisdiction‟s
limitations period, but also its accrual provisions and its tolling doctrines.
Thompson, 833 S.W.2d at 872; see also Great Plains Trust Co. v. Union Pac. R.
Co., 492 F.3d 986, 995 (8th Cir. 2007).
I agree with the parties that Peruvian law attaches a two-year statute of
limitations to claims of extracontractual liability, which is the closest cognate to at
least some of plaintiffs‟ Missouri tort claims. See Fed. R. Civ. P. 44.1; Peru Civil
Code of 1984 [PCC] art. 2001.4 (translated in Doc. 244-2, p. 4.). I also agree with
the parties that, under Peruvian law, the limitations period usually begins when a
person reasonably becomes aware of an injury received, which may be the same
day the injury occurs or may be later. (Rosenn report I, ¶ 28, ¶ 69(e), Doc. 150-1;
de Trazegnies report I, ¶ 12.12, Doc. 150-13; Espinoza report, ¶¶ 5.8-5.9, Doc.
214-16; Fernandez report, ¶¶ 60-62, Doc. 214-17; de Trazegnies report II, ¶¶ 12.312.4, Doc. 244-1; Rosenn report II, ¶ 49, Doc. 244-4.)2
But plaintiffs argue that several tolling and delayed-accrual doctrines also
apply. Among other things, they contend that Peruvian law recognizes some form
of continuing-harm doctrine that might permit their claims to go forward under
I do not decide, at this point, whether the knowledge of the minor plaintiffs or their parents or
guardians is at issue.
Peruvian law.3 After considering all the evidence, I agree. I conclude that Peru
could apply some doctrine of continuing tort, and so plaintiffs‟ claims are not
“fully barred” in that jurisdiction.
As all of the parties recognize, Peru is a civil-law jurisdiction. Its principal
source of law is legislation, and “the heart of Peru‟s private law is the Civil Code,
adopted in 1984.” (Rosenn report I, Doc. 150-1, ¶¶ 18-20.) The Civil Code, which
“is used to fill in gaps in other legislation” (Id. ¶ 20.), prescribes the beginning and
end of the limitations period as follows:
The term for prescription commences on the date when the action may
be filed4 and continues against the rightholder‟s successors.
The term of prescription runs out as follows, unless otherwise provided by
law: . . . in two years for . . . an action for indemnification for
(PCC arts. 1993, 2001, translated, among other places, in de Trazegnies report II,
Doc. 244-2.) The Code also provides that the limitations period “extinguishes the
The plaintiffs assert several additional arguments about why their claims would not be fully
barred under Peruvian law. For example, they point out that they have alleged multiple harms,
whose ascertainment conceivably began on different dates, some of which might be within the
limitations period even if they all are not. They also mention, in passing, that Peruvian law tolls
a limitations period during the pendency of an action and during minority if a minor plaintiff is
not in the custody of her parents or legal representatives, though they do not attempt to
demonstrate that they met this criterion. Because I conclude that Peru has adopted a continuingharm doctrine, I will not examine these arguments.
This term, ejercitarse, is alternatively translated as “exercised” and “brought” in other
translations of the experts‟ reports. (See, e.g., Espinoza report ¶ 5.8, Doc. 214-16.)
action but not the law itself.” (PCC art. 1989, translated in Fernandez report, ¶ 55,
Doc. 214-17.) Neither party has demonstrated that Peru‟s Civil Code or other
legislation explicitly references a doctrine of continuing harm or continuing tort.
Nonetheless, the defendants argue that such a doctrine is anathema to
Peruvian civil law. Defendants‟ expert Dr. de Trazegnies points to the Code‟s
Statement of Rationale, in which lawmakers (including Dr. de Trazegnies, who
served on the committee that drafted the Code) wrote that:
The basis of the statute of limitations is public policy, because it is in
the interest of society to put an end to latent situations pending
resolution. . . . Legal certainty is the basis for the statute-oflimitations construct, because by allowing [for] opposition to the
exercise of a lapsed cause of action, situations are closed that
otherwise would be forever open.
(de Trazegnies report I ¶ 12.2, Doc. 150-13 (brackets in original).) But where
plaintiffs allege continuing harm, the situation cannot be called “latent” and where
defendants continue to cause an injury, a cause of action is not “lapsed.” The
Statement of Rationale is therefore not persuasive evidence of Peru‟s rejection of
the doctrine of continuing harm.
Dr. de Trazegnies also points out that “continuing harm” is not one of the
enumerated tolling exceptions (“suspensions” and “interruptions” of the limitations
period) provided for in the Civil Code. See Arts. 1994 and 1996 (translations in
Doc. 244-2, p. 3). But one of the plaintiffs‟ experts, Professor Fernandez, asserts
that continuing harm is not a suspension or interruption (Doc. 214-17, ¶ 72, trans.
at p. 18.), but rather a postponement of the accrual date. Plaintiffs‟ expert
Professor Espinoza cites as support two Peruvian court cases that he suggests view
continuing harm this way. Upon examination, it appears that the court did in fact
permit recovery of damages for harms that began occurring many years earlier. In
one of the cases, the court affirmed that the prescription period had not run for 17
years before the plaintiff could know the “true and real dimension” of the damage
he had incurred.5 Although it appears Peru does not recognize stare decisis, and
these cases involve a very different set of facts, these opinions are good evidence
that the Peruvian judiciary will apply a continuing-harm doctrine under certain
circumstances. See Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036,
1038 (9th Cir. 1999) (“expert testimony accompanied by extracts from foreign
legal materials has been and will likely continue to be the basic mode of proving
foreign law”); Inter Med. Supplies, Ltd. V. EBI Med. Sys., Inc., 181 F.3d 446, 459
(3d Cir. 1999) (to resolve disagreement between foreign law experts, court “may
adopt any position that is supported by reasonable inferences either from the
Sala Civil Transitoria de la Corte Supreme de Justicia de la Republica [Civil Court of the
Supreme Court of Justice], 1/12/2006, “Rupp, Luis Alberto León c. el Ministerio de Economia y
Finanazas y la Supreintendecia de Banca y Seguros / indemnización por daños y perjuicios,”
case no. 2546-2004 (Lima), available by search at
accessed Jan. 1, 2015) (interpreting Art. 2001).
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respective country‟s law or from the implications of a legal concept such as a
contract or testament or juristic personality”) (internal quotation marks omitted).
Quoting another Peruvian practitioner, plaintiffs‟ expert Professor Espinoza
the “limitations period for tort liability actions begins when the
resulting damage (or the consequences of the damage) is knowable by
the victim. This can be inferred from the provisions established by
Article 1993 of the Civil Code, which indicate that the calculation of
the limitations period begins „(…) from the date on which the action
may be exercised.‟ It is clear that the action may not be exercised if
the effect of the damage whose redress is being requested (resulting
damage) has not occurred yet, and it is difficult to require the victim
to claim it, if the victim does not know the damage for which he wants
compensation (known damage).”
(Doc. 214-16, ¶ 5.9 (ellipses in original).)6 In other words, what Article 1993
describes as “the date when the action may be filed” is the date when an action
accounting for the whole alleged tort may be filed. Understood this way, there is
nothing in the Code itself – including Article 1993 – that precludes Peruvian
recognition of some type of continuing-tort doctrine.7 Although defendants and
their experts assert that this reading would indefinitely delay the accrual of a cause
See also Dr. de Trazegnies Aff. in Torres v. S. Peru Copper Corp., ¶ 9.7, p. 11 (Doc. 150-14)
(“According to the rules of prescription (limitations on actions), a legal action for damages
should be commenced no later than two years after the damage is done.”); de Trazegnies report
II, ¶ 12.3 (Doc. 244-1) (limitation period begins when “a certain person becomes aware that he
has suffered specific harm”) (emphasis added to both).
The Court notes that it does not have a complete English-language translation of the Code,
only those provisions that at least one party thought were relevant to this motion.
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of action, this is not so. Instead, a cause of action accrues not necessarily after the
harm has occurred completely, but when its extent is knowable.
In addition, plaintiffs‟ expert Professor Fernandez relies in part on Dr. de
Trazegnies‟ textbook on tort liability (RESPONSIBILIDAD EXTRACONTRACTUAL) for his
conclusion that Peruvian law recognizes a doctrine of continuing harm. (Doc. 21417, ¶ 64.) In his reply report, Dr. de Trazegnies explains that not all is as it
appears: the excerpts on continuing harm cited by Professor Fernandez come from
a section of his book entitled “New Horizons,” in which he advocates for changes
to Peruvian law. As such, says Dr. de Trazegnies, these sections do not describe
the current state of Peru‟s tort law but “to a great extent” describe matters not
addressed by the Civil Code. (Doc. 244-1, p. 2.)
Dr. de Trazegnies asserts again that Peru does not recognize continuing-tort
doctrine because it is not explicitly provided for in the Code or other legislation.
However, the “New Horizons” section in RESPONSIBILIDAD EXTRACONTRACTUAL
describes not only potential new legislation but also adaptive and creative
applications of laws that already exist.8 Nowhere does he indicate that current
Peruvian law forecloses the application of a continuing-harm doctrine. Instead, he
notes that the open questions identified in “New Horizons” must be developed and
E.g., ¶ 463, p. 193; ¶ 471, pp. 199, 201.
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resolved through jurisprudence.9 Indeed, in his conclusion to the section in which
his discussion of continuing damage appears, Dr. de Trazaegnies acknowledges
that, even accounting for what he considers to be gaps in current legislation, there
is some protection for a fairly wide range of victims of continuing torts.10
Taking all of the expert reports and source materials into consideration, I
conclude that Peru could apply some type of continuing-harm doctrine in this case.
(See Espinoza report ¶ 5.6, Doc. 214-16 (“A continuing damage is not an event that
calls for the interruption or suspension of the statute of limitations: it is simply a
situation in which the victim is empowered to file their lawsuit for damages while
the damage is occurring. In this case, the limitations period only begins on the day
(dies a quo) in which the continuing damage ceases.”)); see also Itar-Tass Russian
News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998) (In Rule 44.1
cases, “it is not the credibility of the experts that is at issue, it is the persuasive
force of the opinions they expressed”).
In a different section of his report, Dr. Rosenn describes the doctrine of “fraud on the law,”
which is not defined in Peruvian positive law (and in fact a provision that would have done so
was deleted after the final draft of the 1984 Civil Code) yet has “long been a part of Peruvian
case law and doctrine” and was recently defined by the Constitutional Tribunal. (See Rosenn
report I, pp. 15-16.) This is further evidence that the absence of explicit recognition of
continuing-harm doctrine within the Civil Code or other legislation is not conclusive evidence
that Peru‟s judiciary would reject the application of that doctrine in all cases.
¶ 620, p. 401.
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Under Missouri‟s borrowing statute, tolling and accrual provisions attendant
to the foreign forum‟s limitations period are also imported to determine if a cause
of action would be barred there. Since Peru might delay the accrual date(s) in this
case because of the alleged commission of continuing torts, I cannot find that the
plaintiffs‟ claims would be “fully barred” in that jurisdiction.11 See, e.g., Lane v.
St. Louis Union Trust Co., 201 S.W.2d 288, 291 (Mo. 1947) (burden of proving
foreign law was on party to benefit from application of that law); Banque
Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000, 1006 (5th Cir. 1990)
(same); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 136 cmt. f.
Because this action would not be time-barred in Peru, it does not trigger
Missouri‟s borrowing statute. Thus, in a legal oddity, the court has had to examine
Peru‟s law in order to conclude that it does not apply. Instead, Missouri‟s fiveyear statute of limitations for personal injury applies to the plaintiffs‟ claims. Mo.
Rev. Stat. § 516.120(4); see Clayton Cntr. Assocs. V. W.R. Grace & Co., 861
S.W.2d 686, 690 (Mo. Ct. App. 1993) (negligence and strict liability); Olean
Assocs., Inc. v. Knights of Columbus, 5 S.W.3d 518, 521-22 (Mo. Ct. App. 1999)
Even discounting continuing-harm doctrine, it is not clear that Missouri‟s borrowing statute
would apply. The parties do not even attempt to identify the dates when the plaintiffs were
allegedly injured, when they became or should have become aware of their injuries, or when
their causes of action would have expired under Peru‟s limitations period. Compare Pallano v.
AES Corp., 2011 WL 2803365, at *6 (Del. Super. Ct. July 15, 2011).
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Choice-of-Law Analysis Would Be Premature
The defendants also move for a determination, under Missouri choice-of-law
principles, that Peruvian law governs the plaintiffs‟ claims. It is well settled that a
district court sitting in diversity must apply the choice-of-law rules of the state in
which the action was originally filed. Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941); Wolfley v. Solectron USA, Inc., 541 F.3d 819, 823 (8th Cir.
2008). Of course, this action was originally filed in Missouri.
But removal jurisdiction here stems not from diversity of citizenship under
28 U.S.C. § 1332, but from relation to a foreign arbitration under Chapter 2 of the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9
U.S.C. § 205. See Reid, 701 F.3d at 843. This Circuit has not squarely ruled on
whether forum-state choice-of-law principles apply in such cases. It has held,
however, that Klaxon applies to cases removed under the Miller Act. See United
States ex rel. Lichter v. Henke Const. Co., 157 F.2d 13, 24 (8th Cir. 1946). The
Miller Act is similar to Section 205 because it conveys federal jurisdiction over
state-law-type claims. Lichter provides strong support for the argument that
Klaxon should apply in this case.
Nonetheless, most circuits looking specifically at cases whose jurisdiction
arises from the Convention have resorted to federal common law. See, e.g.,
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InterGen N.V. v. Grina, 344 F.3d 134, 143–44 (1st Cir. 2003) (reasoning that
federal choice-of-law principles should apply to all cases whose jurisdiction arises
from chapter 2 of the Federal Arbitration Act, including Section 205, because
“[a]pplying varying state standards in cases falling within the Convention‟s ambit
would be in tension with the elemental purpose of chapter 2”); Becker Autoradio
U.S.A., Inc. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 43 (3d Cir. 1978);
Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1002–04 (9th Cir. 1987);
Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 795
(2d Cir. 1980), cert. denied, 449 U.S. 1080 (1981). However, in these cases, the
Convention supplied both jurisdiction and the substantive rules of decision. The
rationale for applying federal common law in an action involving solely state law
claims is weaker.
The distinction is somewhat pedantic because both federal common law and
Missouri law follow the approach outlined in the Restatement (Second) of Conflict
of Laws, as long as there is no guidance from Congress to the contrary. See Eli
Lilly Do Brasil, Ltda. v. Fed. Express Corp., 502 F.3d 78, 81 (2d Cir. 2007);
Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. 1969); see also Blake v. Comm’r,
697 F.2d 473, 477 n.4 (2d Cir. 1982) (declining to decide whether federal or forum
state choice-of-law principles applied because the result was the same either way).
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Both Missouri and the federal common law recognize the principle of
dépeçage, wherein different issues or claims within a single cause of action may be
decided under the laws of different forums. Wilson v. Image Flooring, LLC, 400
S.W.3d 386, 396 (Mo. Ct. App. 2013); Calhoun v. Yamaha Motor Corp., U.S.A.,
216 F.3d 338, 345 n.12 (3d Cir. 2000); see also Ewing v. St. Louis–Clayton
Orthopedic Grp., Inc., 790 F.2d 682, 686 (8th Cir. 1986); RESTATEMENT (SECOND)
OF CONFLICT OF LAWS § 145 cmt.
d. In addition, both Missouri and federal
common law determinations begin with an investigation of whether the fora laws
conflict in the first place. See Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d
920, 924 (8th Cir. 2007); In re Aircrash Disaster Near Roselawn, Ind., 926 F.
Supp. 736, 740 (N.D. Ill. 1996).
There appears to be no Congressional instruction that federal common law
applied to a case removed under Section 205 should follow any method other than
the Restatement. See, e.g., H.R. Rep. No. 91-1181 (June 11, 1970), reprinted in
1970 U.S.C.C.A.N. 3601, 3602-03. Therefore, there is no need to decide whether
Missouri or federal common law governs the choice-of-law analysis in this case,
and I will use the Restatement approach here.
But this is as far as we can go at this stage. Following the Restatement
requires a determination of which forum has the most significant relationship to the
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action. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(1); see also REST. §
146 (law of state where injury occurred determines rights and liabilities of the
parties unless, with respect to a particular issue, another state has a more
significant relationship to the action). Considering the relative dearth of discovery
and the considerable number of factual questions, there is no way yet to
thoughtfully determine whether Peru, Missouri, or New York has the most
significant relationship to this action. For example, under Restatement § 145(2), a
court must consider:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place
of business of the parties, and
(d) the place where the relationship, if any, between the parties is
As the plaintiffs point out, the court does not even know the location of the
alleged injury-causing conduct. Alone, that might not prevent distinguishing
between at least Peru and the domestic fora, but when considered alongside all the
other unknowns, it demonstrates how premature such a determination would be.
The court cannot know where the relationship, if any, between plaintiffs and
defendants was centered when it does not know anything about that relationship –
or even whether it exists. There is simply no way to assign relative weight to each
of these factors without knowing more, especially more about the location(s) of the
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conduct of the defendants. See REST. § 145(2) (“contacts are to be evaluated
according to their relative importance with respect to the particular issue”).
Compare REST. §§ 145 cmt. d, 146 cmt. e with Wolfley, 541 F.3d at 824 (quoting
Dorman v. Emerson Elec. Co., 23 F.3d 1354, 1359 (8th Cir. 1994)) (“In cases in
which the injury and the conduct causing the injury occur in the same state, the
Restatement principles are easy to apply.”).
Further, any choice-of-law analysis must examine specific criteria, including
the relevant policies of the forum and other interested states, “the relative interests
of those states in the determination of the particular issue” and “the protection of
justified expectations.” REST. § 6(2). Without knowing, for example, more about
communications of and among the defendants, I cannot consider how those
policies and interests bear on this specific case. I also cannot consider the parties‟
expectations, if any, about the governing law or whether that expectation was
justified. The defendants point out that the Stock Transfer Agreement governing
the acquisition of La Oroya by Doe Run Peru was made subject to the law of Peru.
However, the justified expectations of the parties to a contract are quite different
from the justified expectations of tortfeasors. See REST. § 145(1) cmt. b.
Moreover, the comments to the Restatement make clear that, in performing a
choice-of-law analysis in tort cases, the court must also consider policies “such as
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the deterrence of tortious conduct and the provision of compensation for the
injured victim.” Id. Because these considerations “are likely to point in difference
directions,” id., weighing them may be necessary. See also REST. § 6(2) cmt. c
(choice of law will almost always represent “an accommodation of conflicting
values”). As the Restatement acknowledges, a general rule – which an untimely
decision in this case would attempt to articulate – would be impossible and would
amount to little more than an advisory opinion. See id. (for torts, “the difficulties
and complexities involved have as yet prevented the courts from formulating a
precise rule, or series of rules, which provide a satisfactory accommodation of the
underlying factors in all of the situations which may arise”).
Many courts have concluded that “a court is typically in a better position to
decide a choice of law issue after the parties have developed the factual evidence
through the process of discovery.” Clean Earth of Maryland, Inc. v. Total Safety,
Inc., 2:10CV119, 2011 WL 1627995, at *4 (N.D. W. Va. Apr. 28, 2011) (in
diversity waste cleanup tort case, court denied defendant‟s standalone motion for
choice-of-law analysis, even where forum state West Virginia adhered to simpler
principle of lex loci delicti); see also, e.g., Speedmark Transp., Inc. v. Mui, 778 F.
Supp. 2d 439, 444 (S.D.N.Y. 2011); Arlandson v. Hartz Mountain Corp., 792 F.
Supp. 2d 691, 699–700 (D.N.J. 2011); La Reunion Aerienne v. Socialist People’s
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Libyan Arab Jamahiriya, 477 F. Supp. 2d 131, 137 (D.D.C. 2007); Cerda v.
Eletson Maritime Corp., 515 F. Supp. 883, 887 (E.D. Pa. 1981).
In an airplane-crash case relied on by the defendants, I eventually
determined that the law of Indiana – the state of the flight, the subsequent crash,
and the residency of the decedents and their representatives – applied to the
disputed issues of liability, compensatory damages, and punitive damages.
Johnson v. Avco Corp., 4:07CV1695, 2009 WL 4042747, at *7 (E.D. Mo. Nov. 20,
2009). But in an earlier ruling in that case, I declined to consider choice-of-law
issues until sufficient discovery had been completed. See Johnson v. Precision
Airmotive, LLC, 2008 WL 2570825, at *3 (E.D. Mo. June 26, 2008). I noted that
the aircraft at issue was over 29 years old and had a long service record, and I held
that discovery was necessary to determine “what was done to the plane and when”
before I could rule on whether Indiana‟s Product Liability Act would govern any of
the plaintiffs‟ claims. I also noted that it was possible that the law of one state
would apply to one set of defendants or to a particular issue, but not to all
defendants or all issues. Here, I have similar concerns about the lack of available
information concerning the relationships between the plaintiffs and the defendants,
between the defendants and the La Oroya complex, and among the defendants
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themselves. In short, like at that early stage in Johnson, I do not know “what was
done and when,” or from where.
Making a premature choice-of-law determination would be particularly
troublesome here. Under the Restatement approach, this court must examine the
needs of the “interstate and international systems,” as well as the “relevant policies
of the forum” and other interested jurisdictions, which may be considerably at odds
in an action involving a foreign forum. See Lunkenheimer Co. v. Pentair Flow
Control Pacific PTY Ltd., 2014 WL 4450034, at *4 (S.D. Ohio Sept. 10, 2014)
(declining to make premature choice-of-law analysis, including potential Rule 44.1
determination, at motion to dismiss stage because case was a “complicated, factintensive jumble”). Basing a choice-of-law analysis on a firm factual foundation
will prevent unnecessary intrusion into Peru‟s sovereign law.
In sum, although there are situations in which a choice of law may be
determined early on, this is not one of them. The experts have thoroughly
expounded the law, but the most basic facts remain contested; there is no way to
apply one to the other. Fortunately, as the defendants have noted, Rule 44.1
“require[s] an open and unstructured dialogue among all concerned.” 9A Wright et
al., FED. PRAC. & PROC. § 2444 at 351 (3d ed. 2012). The parties are free to request
a choice of law again once they have a factual basis for doing so.
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IT IS HEREBY ORDERED that defendants‟ motion for a determination of
foreign law [#148] is granted in part and denied in part. Mo. Rev. Stat. § 516.190,
the state borrowing statute, does not apply and so Missouri‟s statute of limitations
applies to the plaintiffs‟ claims. The court declines to make a choice-of-law
determination at this time, but without prejudice to any party‟s right to move for
such a ruling after more discovery has been completed.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 11th day of February, 2015.
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