Tobias Bermudez Chavez v. Occidental Chemical Corp.

18‐1120‐cv
Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2018
(Argued: March 4, 2019 Decided: August 7, 2019)
Docket No. 18‐1120‐cv
TOBIAS BERMUDEZ CHAVEZ, GERARDO ANTONIO FONESCA TORRES, FRANKLIN
GUILLEN SALAZAR, GARCIA MONTES JOSE GABINO, MARIANO DE LOS ANGELES
PIZARRO, ANTONIO OSORNO OSORNO, EUSEBIO PEREZ DINARTES, ANGEL NAPTALI
AGILA SALINAS, JOSE VICENTE CAMPOS DEL PESO, GABRIEL RODOLFO CAMPOVE
ARCE, JOSE ANTONIO E. ESPINOZA, MANUEL ISAIAS ESTRADA MOSQUERA, PEDRO
RAMON GARCIA VILLON, MANUEL JESUS INGA DOMINGUEZ, JOSE VIRGILIO LOPEZ
CORREA, JUAN BAUTISTA NORIEG MOREIRA, ANGEL RAFAEL ROMERO CASTRO,
JULIAN GONZALO SUAREZ DEL ROSARIO, SIXTO TORRES FARIAS, TEODORO
FERNANDO UNAMUN CORONEL, IDELFONSO ARAUZ ARAUZ, HECTOR ARCIA,
SANTOS CAMARENA‐CABALLERO, FULVIO CESAR CHAVEZ SUIRA, JOSE ANTONIO
GONZALE HERNANDEZ, VALENTIN MONTERO MENDEZ, JUSTO GERMAN OPORTO
VILCHEZ, JULIO SEVILLA FLORES, FELIX VARGAS RODRIGUEZ, LEOCADIO ZURDO
AMADOR, JULIO ABREGO ABREGO, BERNARDO ABREGO JORIETO, SIMON ABREGO
PINEDA, ONCHI ABREGO QUINTERO, DILVIO ALVAREZ MORENO, JUAN CHOLY
APARICIO, FRANCISCO DEL SOCORRO BAT MORA, CELIO BONILLA VALDEZ, PEDRO
BRICENO ESCALANTE, SANTIAGO CASTILO CASTILLO, LIBERATO CASTILO CASTILLO,
GERARDO DELEON ZAPATA, ABNEGO GUILLERMO DUGEL WILLIAMS, FELICIMO
DUGUEL MICHI, MANUEL GONZALES SANCHEZ, ERNESTO GUADAMUZ, HILARIO
JULIAN MILTON, RICARDO ADOLFO MALDONAD SMITH, JOSE MIRANDA NICO,
PANCHO MOLINA ACUNA, RAMON ABREGO, LORENZO MORALES MORALES, JULIO
MORENO MONTEZUMA, MARIO MUNOZ SANTOS, ALEJANDRO PALACIO PINEDA,
GENITO QUINTERO GONZALEZ, GREGORIO ELLINGTON, DIONICIO SANTIAGO
ABREGO, SIMON SANTOS VILLAGRA, JULIO SANTOS SANTOS, NAPOLEON SERRANO
NITI, VICTORIANO SERRANO CHICO, SAMUEL SMITH SMITH, SAMUEL TAYLOR ERA,
DEMETRIO WILLIAMS JIMENEZ, SEBASTIAN WILLIAMS MIGAR, ALVARADO ALFARFO
18‐1120‐cv
Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
MIGUEL FRANCISCO, EDGAR ARROYO GONZALEZ, MARCELO COREA COREA, JOSE
DAIZ BENAVIDEZ, GONZALEZ MARIN MARVIN, MIGUEL ANGEL MORALES GUZMAN,
RODRIGO QUIROS CHAVARRIA, GUILLER SANDRE REYES MORA, VEGA UGALDE
NORMAN, FLORENTINO GILBERTO ALCIBA MONTESARRATE, TOMAS GILBERTO
ASUNCI QUIMI, ODILO CASTRO LOPEZ, JOSE SANTIAGO LOJA ALVARADO, RICARDO
ALBERTO ORRALA RAMIREZ, JOSE NICANOR PACHECO URGILES, LUIS ALFONSO
PALADIN ILLESCAS, MANUEL JOSE PORRAS ALVAREZ, JOSE LEONCIO PUCHA
VILLAMAGUA, LEOPOLDO MAURICIO QUEZAD VITONERA, GERMASN ELEUTERIO
RAMIR OYOLA, EUGENIO DE JESUS VIVAR SANCHEZ, ESTEBAN GARCIA ACOSTA,
MARIANO GONZALEZ PITTI, HECTOR GUTIERREZ VICTORIA, WILLFREDO MIRANDA
PATINO, JUAN DEDIOS QUINTERO, MARIO REYES SALDANA, DANIEL RODRIGUEZ
MADRID, ARCENIO RODRIGUEZ GALLARDO, FERMIN ROMERO DE LEON, JAVIER
ENRIQUE RUBIO MORALES, MARGARITO SALINAS MOJICA, BASILIO SALINAS MOJICA,
LINO VILLARREAL CONCEPCION, JORGE LUIS AGUILAR MORA, CARLOS AGUIRRE
FLORES ALVAREZ, JUAN JOSE ARGUELLO JIMENEZ, JOSE BUSTOS OSES, RAFAEL
BUSTOS BUSTOS, GERMAN FALLAS HERRERA, ELIZONDO GUARIN EDUARDO,
FEDERICO CLEVER MONTERO SALAS, JULIAN ALVAREZ JOVINO, NERTOR EVELINO
CACAY CORDOVA, JOSE DARIO CHICA ROMERO, MARIANO CRUZ JIMENEZ
GUANOQUIZA, ALCIDES HUMBERTO LUPU REYES, MANUEL BENIGNO ORTIS, MIGUEL
ANGEL QUITO AREVALO, GREGORIO JUAN TORRES TENESACA, FRANCISCO OSWALDO
VILLACR MENDOZA, EULOGIO APOLOGIO ZAMBRA OTERO, ALCIDES BAULES
RODRIGUEZ, LAUDINO CABALLERO RIOS, AGRIPINO CAMARENA CEDENO, DOMINGO
CASTILLO MORALES, DANIEL CENSION CAMANO, DANIEL ESPINOSA MITRE, OSCAR
ALEXIS GANTES ARAUZ, CESAR AUGUSTO GONZALE CABALLERO, EDUARDO
GONZALEZ CABALLERO, ENEDICTO JIMENEZ MIRANDA, RAFAEL MARTINEZ
GONZALEZ, AURELIO MIRANDA DIAZ, MARCOS MORALES GUTIERREZ, ABRAHAM
MORENO CONCEPCION, JUAN ADOLFO OLIVERO MAGUE, LEOPOLDO PENA SANJUR,
PAULINO PITTY SANCHEZ, LUIS ENRIQUE NAVARRO QUINTERO, CATALINO ROSALES
PINEDA, NICOLAS SANTOS MONTENEGRO, CATALINO SERRUD, SANTOS TORRES
PINZON, AQUILINO VIGIL SANCHEZ, EDWIN AGUERO JIMENEZ, JORGE AGUERO
RETANA, ALBERTO CONEJO CHACON, DIDIER CORDERO CISNEROS, ESTANISLAO
CRUZ CRUZ, MIGUEL ANTONIO DIAZ CORDERO, DOGABERTO ESQUIVEL
VALDELOMAR, JOSE GAMBOA CASTILLO, MARCOS GOLUBOAY MEJIAS, ROGER
ANTONIO LOPEZ ZAMORA, RUFINO MATARRITA MORENO, JOSE FABIO NUNEZ
CASTRO, CARLOS LUIS PEREIRA OROZCO, FRANCISCO PEREIRA RAMIREZ, CARLOS
MANUEL QUIROS ZUNIGA, WILLIAM FELICIANO RODRIGUEZ, JOSE ANGEL ROJAS
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
BARQUERO, HERNAN SOLANO CASTRO, RAFAEL SOLANO SABORIO, MARIO TORRES
MORA, RAFAEL VALDERRAMA GRANADOS, GREIVIN VALENCIA LOPEZ, MELECIO
VARELA SOTO, VICTOR VARGAS ARIAS, NIXON MODESTO ALVARAD VASQUEZ,
ROBERTO WILLIAM BARONA BENITES, LAURO OLMEDO CHACON QUICHIMBO,
FRANCISCO DOMINGO CONTRER ESPINOZA, EPIFANIO ARCHIBALDO CORN LEON,
MANUEL GUAICHA CARDENAS, JUAN DE JESUS HUERTA MOSQUERA, MIGUEL ANGEL
INIGUEZ OCHOA, HUGO EBERIO LEON VELEZ, MILTON MEDARDO MAZA VIVANCO,
ROSARIO AVELINO NICANOR VIRGILIO, GALO MIGUEL ORBE VALENCIA, JOSE
NICANOR PACHECO URGILES, ERICK FRANKLIN PALOMI ROMERO, ANGEL RAFAEL
ROMERO CASTRO, LUIS VINICIO SALVATI VILLA, MIGUEL ANGEL SARAGURO, JOSE
FERNANDO SARMIE CABRERA, LUIS GILBERTO VASQUE LOPEZ, EUGENIO APOLINARIO
VILL PRIMITIVO, MAURO GREGORIO ZERDA GUERRA, BELISARIO ATENCIO MUNOZ,
LUIS ALBERTO BARRIA ARAUZ, BENEDICTO CORELLA VASQUEZ, HUMBERTO DEL CID
QUINTERO, ABEL GALLARDO CONCEPCION, ALCIBIADES GOMEZ QUIEL, CIRO
GUTIERREZ CORTEZ, SALVADOR MILLAN PENALBA, MANUEL MAYORGA MOREDIBU,
FELIX ANTONIO QUIROZ MORANTE, EMILIANO VEGA MORALES, GONZALEZ ARAYA
FRANKLIN, GERMAN EDUARDO BRAVO VALDERRAMOS, EDWIN CERDAS MASIS,
JORGE LUIS CORDERO BAQUERO, JOHNNY ESPINOZA GAMBOA, ESNEY HERNANDEZ
FAJARDO, JIMENEZ RAMIREZ GILBERTO, ALVARADO RODRIGUEZ WILBERT, JOSE
MANUEL SALAZAR BRENES, AUDIT VARGAS ROBLES, ELVIN VARGAS BLANCO,
ROLANDO VILLEGAS JIMENEZ, ELEVIO VINDAS ZAMORA, DOUGLAS ROLANDO
SANCHEZ, VICENTE BARRIA ARAUZ, GENARO BONILLA QUINTERO, NOEL ENRIQUE
VALDES RODRIGUEZ, MARIO ESTEBAN CACERAS HERNANDEZ, TOMAS ALBERTO
CEDENO RODRIGUEZ, WILFREDO GOMEZ VARGAS, EVIDELIO GONZALEZ ACOSTA,
EDWIN ENUVIN GUERRA GONZALEZ, JUAN DEDIOS BAUTISTA SANCHEZ, RONALDO
MORALES VARGAS, LIONEX MORALES MONTENEGRO, ALBERTO PINEDA
MARQUINEZ, RAFAEL PINEDA MARQUINEZ, FELIX ANTONIO PINEDA ESPINOSA,
ERICK ELIAS PINEDA JURADO, PABLO RIVERA BUICOBO, ISRAEL SANCHEZ GONZALEZ,
ADOLFO VEGA GUERRA,
Plaintiffs ‐ Appellees,
v.
OCCIDENTAL CHEMICAL CORPORATION, INDIVIDUALLY AND AS A SUCCESSOR TO
OTHER OCCIDENTAL CHEMICAL COMPANY OTHER OCCIDENTAL CHEMICAL
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
AGRICULTURAL PRODUCTS INC. OTHER HOOKER CHEMICAL AND PLASTICS OTHER
OCCIDENTAL CHEMICAL COMPANY OF TEXAS OTHER BEST FERTILIZER COMPANY,
Defendant ‐ Appellant.
Before: SACK, RAGGI, and CARNEY, Circuit Judges.
The plaintiffs filed this action in 2012 in the United States District Court for
the District of Delaware, alleging that several American corporations, including
Occidental Chemical Corporation, manufactured, sold, distributed, and used
dibromochloropropane (DBCP), a pesticide to which the plaintiffs were exposed
when they worked on banana plantations in Central and South America between
the 1960s and the 1980s. They allege that as a result of their exposure, they
suffered various injuries, including sterility, sexual and reproductive
abnormalities, and cancer. The plaintiffsʹ claims against Occidental were
transferred to the Southern District of New York in 2017, after which Occidental
filed a motion for judgment on the pleadings, arguing, inter alia, that the
plaintiffsʹ claims were time‐barred under New Yorkʹs three‐year statute of
limitations for personal‐injury suits. On January 10, 2018, the district court (Paul
A. Engelmayer, Judge) denied Occidentalʹs motion, holding that the plaintiffsʹ
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
claims were tolled between 1993 and 2010 by the pendency of a related class
action in Texas.
The questions on interlocutory appeal are (1) whether New York law
recognizes ʺcross‐jurisdictional class action tolling,ʺ i.e., tolling of a New York
statute of limitations by the pendency of a class action in another jurisdiction;
and (2) whether, under New York law, a non‐merits dismissal of class
certification can terminate class action tolling, and if so, whether the Orders at
issue did so. New Yorkʹs courts have yet to address these questions. A decision
on these questions, either of which may be dispositive of this appeal, requires
value judgments and important public policy choices that the New York State
Court of Appeals is better suited to make than is this Court. We therefore
CERTIFY the questions to the New York Court of Appeals.
JOHN P. ELWOOD, Vinson & Elkins LLP,
Washington, DC (D. Ferguson McNiel, III,
Vinson & Elkins LLP, Houston, TX,
Timothy Jay Houseal, Young Conaway
Stargatt & Taylor, LLP, Wilmington, DE, on
the brief), for Defendant‐Appellant.
JONATHAN S. MASSEY, Massey & Gail LLP,
Washington, DC (Paul J. Berks, Massey &
Gail LLP, Chicago, IL, Scott M. Hendler,
Hendler Flores Law PLLC, Austin TX, on
the brief), for Plaintiffs‐Appellees.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
SACK, Circuit Judge:
This appeal presents two state‐law questions that neither this Court nor
New Yorkʹs courts have addressed: (1) whether New York law recognizes ʺcross‐
jurisdictional class action tolling,ʺ i.e., tolling of a New York statute of limitations
by the pendency of a class action in another jurisdiction; and (2) whether a non‐
merits dismissal of class certification can terminate class action tolling, and if so,
whether the Orders at issue here, which include a ʺreturn jurisdictionʺ clause, did
so where the plaintiffs filed a motion to reinstate their claims within six months
of the caseʹs dismissal.
The plaintiffs are agricultural workers from Costa Rica, Ecuador, and
Panama, who allegedly suffered adverse health effects from exposure to the
pesticide dibromochloropropane (ʺDBCPʺ) between the 1960s and the 1980s,
while working on banana plantations in Central and South America. In 2012, the
plaintiffs filed a putative class action in the United States District Court for the
District of Delaware against DBCP manufacturers and distributors, including
Occidental Chemical Corp. (ʺOccidentalʺ), as well as companies that owned or
operated the farms where the plaintiffs worked. Their claims against Occidental
were transferred by the Delaware district court to the Southern District of New
York in May 2017.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
Occidental filed a motion for judgment on the pleadings, arguing, inter alia,
that the plaintiffsʹ claims were time‐barred under New Yorkʹs three‐year statute
of limitations for personal‐injury suits. The district court (Paul A. Engelmayer,
Judge) denied Occidentalʹs motion, concluding that the plaintiffsʹ claims were
tolled between 1993 and 2010 because of the pendency of a putative class action
filed in Texas state court in 1993 (the ʺTexas Actionʺ). The district courtʹs
decision was based on its view that the New York State Court of Appeals would
likely (1) permit ʺcross‐jurisdictional tolling,ʺ the tolling of claims in New York
during the pendency of a class action filed in another jurisdiction; and (2) decide
that the dismissal of the Texas Action on the basis of forum non conveniens and the
denial of class certification as moot did not terminate class action tolling.
On appeal, Occidental challenges both conclusions. It argues that
although New York courts have adopted the class action tolling doctrine
established under different circumstances in American Pipe Construction Co.
v. Utah, 414 U.S. 538 (1974), the New York Court of Appeals likely would not
apply that doctrine in the cross‐jurisdictional context. In the alternative,
Occidental asserts that even if New York law permits cross‐jurisdictional class
action tolling, the plaintiffsʹ claims would still be untimely because the 1995
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
dismissal of the Texas Action on the grounds of forum non conveniens terminated
any such tolling.
The district court lacked the authority to tender the issues of New York
law raised before it to the New York Court of Appeals; we, though, have the
ability to do so. See New York Court of Appeals Rules, § 500.27;1 United States
Court of Appeals for the Second Circuit Rule 27.2. The principal questions on
appeal have important implications that have yet to be addressed by New Yorkʹs
appellate courts. In light of the dearth of precedential opinions, and the
potentially far‐reaching consequences for New York courts of the answer to these
questions, we elect not to attempt to resolve them in the first instance, but
instead to invite the Court of Appeals to address them if it so wishes. We
therefore certify the following two questions to the Court of Appeals and stay
resolution of this case in the interim:
1. Does New York law recognize cross‐jurisdictional class action tolling, as
described in this opinion?
1 Whenever it appears to the Supreme Court of the United States, any United
States Court of Appeals, or a court of last resort of any other state that
determinative questions of New York law are involved in a case pending before
that court for which no controlling precedent of the [New York] Court of
Appeals exists, the court may certify the dispositive questions of law to the [New
York] Court of Appeals.
N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a).
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
2. Can a non‐merits dismissal of class certification terminate class action
tolling, and if so, did the Orders at issue here do so?
BACKGROUND
General Factual Background2
Between 1965 and at least 1985, Occidental and other U.S.‐based
corporations manufactured and distributed DBCP, a pesticide that was injected
into the soil or sprayed over banana plantations in Costa Rica, Ecuador, and
Panama, among other countries. The plaintiffs lived and worked on those
plantations. The plaintiffs allege that they were never warned of the health risks
posed by exposure to DBCP and were not instructed or encouraged to wear any
protective gear to prevent skin absorption or inhalation of the pesticide. They
allege that they suffered various injuries resulting from their exposure to DBCP,
including, inter alia, sterility, low sperm quantity and reduced sperm quality,
liver damage, an increased risk of cancer, vision loss from cornea damage,
chronic skin disorders, and compromised pulmonary and respiratory systems.
2The facts set forth in this opinion are drawn from the Complaint, originally filed on
June 1, 2012, in the United States District Court for the District of Delaware. Appʹx 14.
That remains the operative Complaint in the action against Occidental before us, which
was transferred to the Southern District of New York in May 2017. See id. at 113, 137.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
The risks associated with exposure to DBCP were allegedly known by
some manufacturers as early as 1961. By 1976, the U.S. Environmental Protection
Agency (ʺEPAʺ) had identified DBCP as a suspected carcinogen. In July 1977,
Occidental allegedly discovered that 35 of 114 workers at its Lathrop, California
manufacturing plant were sterile. In September 1977, the EPA prohibited
DBCPʹs use everywhere but in a few locations in Hawaii, and even there only
under restricted conditions. Occidental nevertheless continued to manufacture,
sell, market, and distribute DBCP until at least 1979 for agricultural use,
including on banana plantations in Costa Rica, Panama, and Ecuador.
Procedural History
This case is the latest in a series of putative class actions filed by
agricultural workers from Central and South America against Occidental and
others for DBCP‐related injuries. The plaintiffsʹ timeliness argument relies
heavily on the existence of two previous actions: one filed in Texas and the other
in Hawaii. We therefore summarize those actionsʹ procedural histories before
turning to the procedural history of the case at bar.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
1. Texas and Hawaii Class Actions
In August 1993, a group of plaintiffs brought a putative class action in
Texas state court asserting claims against Occidental and others purporting to be
on behalf of all persons exposed to DBCP between 1965 and 1990 in several
countries, including Costa Rica, Panama, and Ecuador.3 In April 1994, the
defendants impleaded Dead Sea Bromine, a corporation indirectly owned in part
by the State of Israel, which removed the case to federal court in the Southern
District of Texas. The district court consolidated the action with a similar action
captioned Delgado v. Shell Oil Co., No. H‐94‐1337 (S.D. Tex.).
On April 17, 1995, the defendants filed a motion to dismiss the Texas
actions on the grounds of forum non conveniens. The district court granted the
motion on July 11, 1995 (the ʺJuly 1995 Orderʺ). The court concluded, as an
initial matter, that Dead Sea Bromine was an agent of a foreign state and that the
court therefore could exercise subject matter jurisdiction under the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1602‐1611 (the ʺFSIAʺ). Delgado v. Shell
Oil Co., 890 F. Supp. 1324, 1336‐38, 1372 (S.D. Tex. 1995). The court then
3The case was originally captioned Bermudez v. Shell Oil Co., No. 93‐C‐2290 (23rd Dist.
Ct., Brazoria Cty., Tex.), and subsequently renamed, Carcamo v. Shell Oil Co., No. 93‐C‐
2290 (23rd Dist. Ct., Brazoria Cty., Tex.).
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
concluded that dismissal was appropriate because adequate alternative fora
existed in the plaintiffsʹ home countries, and the balance of public and private
interests tipped strongly in favor of dismissal. Id. at 1358‐72.
The district court conditioned dismissal on the defendants ʺagree[ing] to
waive all jurisdictional and certain limitations‐based defenses.ʺ Delgado, 890 F.
Supp. at 1372. It also noted that dismissal on the basis of forum non conveniens
was proper only insofar as ʺthe courts in [the countries where the plaintiffs
resided or were injured] do not refuse to exercise jurisdiction over these actions.ʺ
Id. It ʺdenied as mootʺ ʺall pending motions . . . not otherwise expressly
addressed,ʺ which included motions for class certification. Id. at 1375. The court
did not specifically address class certification, but denied it alongside all other
ʺpending motionsʺ as an administrative matter instead. The court inserted a
ʺreturn jurisdictionʺ clause at the end of its order, however, which stated:
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 [forum non
conveniens].
Id.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
On October 27, 1995, the defendants having met the district courtʹs
conditions for dismissal, the district court entered a ʺfinal judgmentʺ dismissing
the action (together with the July 1995 Order, the ʺ1995 Ordersʺ). The plaintiffs
responded by filing an appeal with the United States Court of Appeals for the
Fifth Circuit, which challenged the district courtʹs exercise of subject matter
jurisdiction under the FSIA.
After their claims were thus dismissed by the district court, the Costa Rica
plaintiffs filed suit in Costa Rica. The Costa Rica courts dismissed their claims
for lack of personal jurisdiction, however. The decision was affirmed by the
Costa Rica Supreme Court.
On April 1, 1996, while the appeal to the Fifth Circuit was pending, the
Costa Rica plaintiffs filed a motion in the Southern District of Texas to reinstate
their claims pursuant to the ʺreturn jurisdictionʺ clause in the July 1995 Order.
The district court denied the motion without prejudice, deferring judgment until
after the Fifth Circuit resolved the plaintiffsʹ then‐pending appeal. On October
19, 2000, the Fifth Circuit affirmed the dismissal of the plaintiffsʹ claims,
concluding, in relevant part, that Dead Sea Bromide was an instrumentality of
the State of Israel, and that the district court therefore had not erred in exercising
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
subject matter jurisdiction. Delgado v. Shell Oil Co., 231 F.3d 165, 176‐77 (5th Cir.
2000).
In 1997, another group of plaintiffs filed a DBCP‐related class action in
Hawaii state court captioned Patrickson v. Dole Food Co., No. 07‐1‐0047 (Haw. Cir.
Ct. Oct. 3, 1997). As the defendants in the Texas Action had done, the defendants
in the Hawaii litigation, which included Occidental, impleaded Dead Sea
Bromine. They also impleaded a second Israeli entity, Bromine Compounds, Ltd.
The Israeli companies, in turn, removed the case to federal court.
On March 8, 1999, the United States District Court for the District of
Hawaii dismissed the plaintiffsʹ claims on the basis of forum non conveniens. The
plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit,
which reversed and remanded the case to the district court with instructions to
remand the case in turn to Hawaii state court, concluding that the district court
lacked subject matter jurisdiction under the FSIA. Patrickson v. Dole Food Co., 251
F.3d 795, 808‐09 (9th Cir. 2001). The defendants appealed, and the Supreme
Court granted their petition for writ of certiorari on June 28, 2002. Dole Food Co. v.
Patrickson, 536 U.S. 956 (2002).
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
The Supreme Court agreed with the Ninth Circuit. Contrary to the Fifth
Circuitʹs holding in Delgado, 231 F.3d at 176‐77, it concluded that neither Dead
Sea Bromine nor Bromine Compounds, Ltd. was an instrumentality of the State
of Israel because the State of Israel did not own a majority of either companyʹs
shares. See Dole Food Co. v. Patrickson, 538 U.S. 468, 477 (2003). Therefore, neither
entity could invoke the FSIA provisions allowing removal of state‐court actions
to federal court, and the district court could not exercise subject matter
jurisdiction over the plaintiffsʹ claims. Id. at 480 (ʺ[W]e hold . . . that a foreign
state must itself own a majority of the shares of a corporation if the corporation is
to be deemed an instrumentality of the state under the provisions of the FSIA.ʺ).
The Hawaii plaintiffs then continued to pursue their class action in Hawaii
state courts. In 2008, a Hawaii court denied the plaintiffsʹ motion for class
certification. In 2009, it granted the defendantsʹ motion for summary judgment,
concluding that the plaintiffsʹ claims were time‐barred. In 2014, the Intermediate
Court of Appeals of Hawaii affirmed. Patrickson v. Dole Food Co., Inc., 330 P.3d
389 (Haw. Ct. App. 2014). The following year, the Supreme Court of Hawaii
vacated the Intermediate Courtʹs judgment, concluding that (1) Hawaii law
recognizes cross‐jurisdictional tolling, and (2) the July 1995 Order did not
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
terminate such tolling because the denial of class certification was ʺnot expressʺ
and did not ʺput putative members of the class on notice that the Hawaiʹi state
statute of limitations had begun to run against them.ʺ Patrickson v. Dole Food Co.,
368 P.3d 959, 970‐71 (2015) (internal quotation marks omitted). The case
continues to be litigated in Hawaii state court.
Meanwhile, in the Texas Action, the Carcamo/Delgado plaintiffs filed a
motion on May 13, 2003, requesting that the district court vacate its July 1995
Order in light of the Supreme Courtʹs ruling that Dead Sea Bromine was not an
instrumentality of the State of Israel. On March 12, 2004, the district court denied
the motion, reasoning that the change in law did not require vacatur. It issued a
final judgment denying the plaintiffsʹ motion to vacate the July 1995 Order but
indicated that it would consider remanding the case to state court upon the filing
of a properly supported motion.
On March 23, 2004, the Costa Rica plaintiffs filed a motion requesting that
the district court reinstate the case and remand it to Texas state court. On June
18, 2004, the district court granted the plaintiffsʹ motion. It determined that
under the ʺreturn jurisdiction clauseʺ in the July 1995 Order, it had jurisdiction
ʺto ensure that an American forum remain[ed] available to adjudicate plaintiffsʹ
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
claims if and when the highest court of a foreign country dismisse[d] them for
lack of jurisdiction,ʺ and that the plaintiffsʹ motion was ʺa direct continuation of
the prior proceedings over which the court expressly stated its intent to retain
jurisdiction.ʺ Delgado v. Shell Oil Co., 322 F. Supp. 2d 798, 813‐15 (S.D. Tex. 2004).
It decided that under 28 U.S.C. § 1447(c), it had power to remand a case ʺat any
time before final judgment,ʺ and concluded that the forum non conveniens
dismissal ʺwas not a ʹfinal judgment.ʹʺ Id. at 816 (quoting 28 U.S.C. § 1447(c)).
Because Patrickson had ʺterminated whatever ancillary jurisdiction existed from
the courtʹs original (now [held] erroneous) assertion of subject matter jurisdiction
over this controversy,ʺ id., it remanded the case to Texas state court, id. at 816‐17.
On April 26, 2005, following remand, the 23rd District Court of Brazoria
County, Texas, granted the plaintiffsʹ motion to reinstate their claims. In
September 2009, the plaintiffs filed a motion for class certification. The following
month, the defendants attempted once more—this time unsuccessfully—to
remove the case to federal court. On June 3, 2010, the Texas state court denied
the plaintiffsʹ motion for class certification. The plaintiffs voluntarily dismissed
their claims the next day.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
2. Instant Action
In June 2011, approximately one year after the Texas state court had
denied the Carcamo/Delgado plaintiffsʹ motion for class certification, seven DBCP‐
related lawsuits were filed in the United States District Court for the Eastern
District of Louisiana. In September 2012, the district court dismissed those cases
on statute‐of‐limitations grounds under Louisiana law. Chaverri v. Dole Food Co.,
896 F. Supp. 2d 556, 568‐74 (E.D. La. 2012).
In June 2012, while the Louisiana cases remained pending, the plaintiffs in
the instant action filed eight complaints in the United States District Court for the
District of Delaware and one in Delaware state court. In November 2012, the
federal district court consolidated the cases before it into two actions, captioned
Marquinez v. Dole Food Co., No. 12‐cv‐695 (D. Del.), and Chavez v. Dole Food Co.,
No. 12‐cv‐697 (D. Del.).
The Marquinez defendants filed a motion for summary judgment, which
the district court granted, concluding that the 1995 Order dismissing the Texas
Action on the basis of forum non conveniens had terminated class action tolling.
Marquinez v. Dole Food Co., 45 F. Supp. 3d 420, 424‐25 (D. Del. 2014). The
plaintiffs appealed the judgment to the Third Circuit, which certified the
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
following question to the Delaware Supreme Court: ʺDoes class action tolling
end when a federal district court dismisses a matter for forum non conveniens and,
consequently, denies as moot all pending motions . . . even where the dismissal
incorporated a return jurisdiction clause . . . ?ʺ Marquinez v. Dow Chem. Co., 183
A.3d 704, 705 (Del. 2018) (internal quotation marks omitted). The Delaware
Supreme Court accepted certification and on March 15, 2018, concluded that the
1995 Order did not terminate tolling because it did not ʺclearly, unambiguously,
and finally den[y] class action status.ʺ Id. at 711. On May 29, 2018, after
receiving the Delaware Supreme Courtʹs response to the certified question, the
Third Circuit vacated the district courtʹs grant of summary judgment and
remanded the case to the district court for further proceedings. Marquinez v. Dole
Food Co., 724 F. Appʹx 131, 132 (3d Cir. 2018).
Separately, in Chavez, Occidental filed a motion to dismiss for lack of
personal jurisdiction, which the district court granted in part on May 4, 2017.
The district court simultaneously transferred the claims against Occidental to the
United States District Court for the Southern District of New York. On
September 1, 2017, Occidental filed a motion for judgment on the pleadings,
arguing that the plaintiffsʹ claims were time‐barred. The district court (Paul A.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
Engelmayer, Judge) denied the motion on January 10, 2018, concluding that
(1) the New York Court of Appeals would likely adopt cross‐jurisdictional
tolling, and (2) the July 1995 Order did not terminate tolling because it did not
address class certification on the merits and contained a ʺreturn jurisdiction
clauseʺ that anticipated the actionʹs reinstatement. Chavez v. Occidental Chem.
Corp., 300 F. Supp. 3d 517, 534, 537 (S.D.N.Y. 2018). In so ruling, the district court
acknowledged that its conclusion regarding cross‐jurisdictional class action
ʺinvolves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.ʺ Id. at 540 (quoting
28 U.S.C. § 1292(b)). The district court then denied Occidentalʹs motion for
reconsideration, see Chavez v. Occidental Chem. Corp., No. 17 Civ. 3459 (PAE), 2018
WL 620488, at *4, 2018 U.S. Dist. LEXIS 14522, at *17 (S.D.N.Y. Jan. 29, 2018), and
Occidental moved for leave to file an interlocutory appeal, which this Court
granted on April 18, 2018.
DISCUSSION
Occidental argues that the district court erred in denying its motion for
judgment on the pleadings because, in its view, New York law does not permit
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
cross‐jurisdictional class action tolling, and, even if it did, such tolling would
have ended in 1995, when the district court dismissed the Texas Action on the
basis of forum non conveniens. The plaintiffs, unsurprisingly, disagree.
For the following reasons, we decline to determine for ourselves, at least at
this juncture, whether New York law recognizes cross‐jurisdictional tolling and,
if so, whether the 1995 Orders terminated tolling in this case. We certify both
questions to the New York State Court of Appeals instead.
I. Standard of Review
We review de novo a district courtʹs decision on a motion for judgment on
the pleadings pursuant to Rule 12(c). L‐7 Designs, Inc. v. Old Navy, LLC, 647 F.3d
419, 429 (2d Cir. 2011). In deciding a Rule 12(c) motion, we ʺaccept all factual
allegations in the complaint as true and draw all reasonable inferences in [the
plaintiffsʹ] favor.ʺ Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009).
II. Certification
Section 27.2 of the Second Circuitʹs Local Rules permits us, ʺ[i]f state law
permits,ʺ to ʺcertify a question of state law to that stateʹs highest court.ʺ 2d Cir.
R. 27.2. New York law allows certification from this Court to the New York
Court of Appeals for ʺdispositive questionsʺ of New York law for which ʺno
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
controlling precedent of the Court of Appeals exists.ʺ N.Y. Comp. Codes R. &
Regs. tit. 22, § 500.27(a). We have certified questions where, inter alia, ʺstate law
is not clear and state courts have had little opportunity to interpret it.ʺ Briggs
Ave. LLC v. Ins. Corp. of Hannover, 516 F.3d 42, 46 (2d Cir. 2008); see also Tire Engʹg
& Distribution LLC v. Bank of China Ltd., 740 F.3d 108, 114 (2d Cir. 2014) (certifying
questions permitted ʺwhere the New York Court of Appeals has not spoken
clearly on an issue and we are unable to predict, based on other decisions by
New York courts, how the Court of Appeals would answer a certain questionʺ).
Before we certify a question, then, we consider ʺ(1) whether the New York
Court of Appeals has addressed the issue and, if not, whether the decisions of
other New York courts permit us to predict[4] how the Court of Appeals would
resolve it; (2) whether the question is of importance to the state and may require
value judgments and public policy choices; and (3) whether the certified question
is determinative of a claim before us.ʺ Barenboim v. Starbucks Corp., 698 F.3d 104,
109 (2d Cir. 2012).
4Presumably the panel meant ʺpredict with confidenceʺ since panels in general, and
we in this case in particular, can make such predictions that we fear, however, are
unreliable because they are based on insufficient state authority.
22
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
III. Application
1. Whether New York Law Recognizes Cross‐Jurisdictional Class Action Tolling
The parties agree that the plaintiffsʹ claims are subject to New Yorkʹs three‐
year statute of limitations for personal injury actions. See Appellant Br. 1, 17 n.6;
Appellees Br. 1, 32. They further agree that the plaintiffs discovered their
injuries—and that their claims therefore accrued under New York law—no later
than August 31, 1993. See N.Y. C.P.L.R. § 214‐c (toxic tort claims accrue upon the
ʺdiscovery of the injury by the plaintiffʺ or ʺthe date when through the exercise of
reasonable diligence such injury should have been discovered by the plaintiff,
whichever is earlierʺ). Their disagreement concerns the tolling of the plaintiffsʹ
claims: whether, under New York law, the 1995 Orders in the Texas Action
suspended the time their claims were running, and, if so, for how long.
New York courts have adopted the federal law rule espoused by the
Supreme Court in American Pipe, that the pendency of a class action filed (unlike
in the present case) in New York tolls absent class membersʹ claims. See, e.g.,
Cullen v. Margiotta, 811 F.2d 698, 719 (2d Cir. 1987) (ʺNew York courts have . . .
long embraced the principles of American Pipe.ʺ), overruled on other grounds,
Agency Holding Corp. v. Malley‐Duff & Assocs., Inc., 483 U.S. 143 (1987); Osarczuk
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
v. Associated Univs., Inc., 130 A.D.3d 592, 595, 12 N.Y.S.3d 286, 289 (2d Depʹt 2015)
(explaining that ʺNew York courts have adopted [the American Pipe] ruleʺ such
that ʺcommencement of a class action suit tolls the running of the statute of
limitations for all purported members of the classʺ); Paru v. Mutual of Am. Life Ins.
Co., 52 A.D.3d 346, 348, 863 N.Y.S.2d 151, 152 (1st Depʹt 2008) (noting in dicta that
a putative class action would be tolled due to pendency of an earlier class action
complaint filed in New York).
New Yorkʹs courts have yet to decide, however, the issue presented in this
appeal: whether New York law recognizes cross‐jurisdictional class action
tolling, i.e., whether an action pursued outside New York tolls the New York
statute of limitations for absent class membersʹ claims in New York courts. See,
e.g., Chavez, 300 F. Supp. 3d at 530 (ʺNew York courts have not squarely
addressed whether New York law permits cross‐jurisdictional tolling.ʺ); Famular
v. Whirlpool Corp., No. 16 Civ. 944 (VB), 2017 WL 2470844, at *7, 2017 U.S. Dist.
LEXIS 8265, at *20 (S.D.N.Y. June 7, 2017) (same); Soward v. Deutsche Bank AG, 814
F. Supp. 2d 272, 281 (S.D.N.Y. 2011) (same).5 The threshold question in this
5Courts in this Circuit have not arrived at a consensus in predicting whether the New
York Court of Appeals would adopt cross‐jurisdictional tolling. Compare Hart v. BHH,
LLC, 323 F. Supp. 3d 560, 566 (S.D.N.Y. 2018) (predicting that the New York Court of
24
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
appeal is whether—despite the dearth of relevant case law—we can determine
with some degree of confidence whether the Court of Appeals would likely
conclude that New York law recognizes such cross‐jurisdictional tolling. See
Appeals would apply cross‐jurisdictional tolling), Chavez, 300 F. Supp. 3d at 530 (same,
and noting that, as of January 2018, ʺ[c]ourts in the [Southern District of New York]
ha[d] split, 2‐2, . . . in their predictions as to whether the New York Court of Appeals
would apply cross‐jurisdictional tolling as a matter of New York lawʺ), Famular v.
Whirlpool Corp., 2017 WL 2470844, at *7‐9, 2017 U.S. Dist. LEXIS 8265, at *19‐23 (S.D.N.Y.
June 7, 2017) (same), and In re LIBOR‐Based Fin. Instruments Antitrust Litig., 2015 WL
6243526, at *145‐46, 2015 U.S. Dist. LEXIS 147561, at *457‐59 (S.D.N.Y. Oct. 20, 2015)
(same), with In re Bear Stearns Cos., Inc. Sec., Derivative, & ERISA Litig., 995 F. Supp. 2d
291, 311‐12 (S.D.N.Y. 2014) (declining to recognize cross‐jurisdictional tolling under
New York law), affʹd on other grounds sub nom. SRM Glob. Master Fund Ltd. Pʹship v. Bear
Stearns Cos. LLC, 829 F.3d 173 (2d Cir. 2016), and Soward, 814 F. Supp. 2d at 281 (same).
State and federal courts in other jurisdictions have similarly failed to agree on the
significance, for purposes of the cross‐jurisdictional tolling inquiry, of a stateʹs adoption
of American Pipe and its progeny. Compare In re Linderboard Antitrust Litig., 223 F.R.D.
335, 348‐51 (E.D. Pa. 2004) (predicting that the courts in Colorado, Indiana, Kansas,
South Carolina, and Tennessee would adopt cross‐jurisdictional tolling, in part because
they had previously adopted intra‐jurisdictional tolling), Dow Chemical Corp. v. Blanco,
67 A.3d 392, 397 (Del. 2013) (recognizing cross‐jurisdictional tolling under Delaware law
after noting that the American Pipe ʺanalysis is equally sound regardless of whether the
original class action is brought in the same or in a different jurisdiction as the later
individual actionʺ), and Patrickson v. Dole Food Co., 368 P.3d 959, 968‐70 (2015)
(concluding, based in part on Hawaiiʹs adoption of American Pipe, that Hawaii law
permits cross‐jurisdictional tolling), with Clemens v. DaimlerChrysler Corp., 534 F.3d 1017,
1025 (9th Cir. 2008) (declining to read cross‐jurisdictional tolling rule into California law
after noting that ʺ[t]he rule of American Pipe . . . does not mandate cross‐jurisdictional
tolling as a matter of state procedureʺ), Maestas v. Sofamor Danek Grp., Inc., 33 S.W.3d
805, 808 (Tenn. 2000) (declining to recognize cross‐jurisdictional tolling under
Tennessee law after noting the distinctions between cross‐jurisdictional and intra‐
jurisdictional tolling), and Portwood v. Ford Motor Co., 701 N.E.2d 1102, 1104‐05 (Ill. 1983)
(same, under Illinois law).
25
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
Barenboim, 698 F.3d at 109; see also, e.g., State Farm Mut. Auto. Ins. Co. v. Mallela,
372 F.3d 500, 505 (2d Cir. 2004) (ʺWhere the substantive law of the forum state is
uncertain or ambiguous, the job of the federal courts is carefully to predict how
the highest court of the forum state would resolve the uncertainty or ambiguity.ʺ
(quoting Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994)). We
do not think that we can.
Occidental argues that the New York Court of Appeals would likely reject
cross‐jurisdictional tolling. In its view, the doctrine conflicts with New Yorkʹs
ʺtraditional presumption in favor of reposeʺ and practice of ʺconstru[ing] tolling
doctrines ʹas narrowly as possible,ʹʺ Appellant Br. 24 (quoting Overall v. Estate of
Klotz, 52 F.3d 398, 404 (2d Cir. 1995)), in order to ʺavoid undermining [New
Yorkʹs] important interests in ʹfinality, certainty and predictability,ʹʺ id. (quoting
ACE Secs. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581, 593 (2015)). Cross‐
jurisdictional tolling would weaken ʺthe Stateʹs control over the limitations
period for litigation in [New Yorkʹs] courts—one of the most basic and
fundamental aspects of state judicial policy—and subject[] [New York] to the
choices of other sovereignsʹ legislatures and courts.ʺ Id. at 25‐26. It ʺbrings with
it the possibility . . . of ʹsuspending the statute of limitations indefinitely into the
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
future and, in the process, undermining the very purpose of statutes of
limitations.ʹʺ Id. at 26 (quoting Quinn v. La. Citizens Prop. Ins. Corp., 118 So. 3d
1011, 1022 (La. 2012) (brackets omitted)). And, Occidental argues, it invites
forum‐shopping. Id. at 29.
The plaintiffs assert to the contrary that the New York Court of Appeals
would likely adopt cross‐jurisdictional tolling for the same reason that New York
courts adopted American Pipe tolling: to reduce court congestion and discourage
placeholder lawsuits. Appellees Br. 22‐23. ʺBy recognizing cross‐jurisdictional
tolling, New York furthers its own interest in avoiding duplicative litigation in its
own courts,ʺ a threat to which New York courts are ʺuniquely vulnerableʺ
because New York is ʺthe state of incorporation or principal place of business of
many corporations.ʺ Id. at 32. Therefore, ʺif New York fails to recognize cross‐
jurisdictional tolling, it is more likely than other states to experience preemptive
suits from class members in putative class actions who fear losing access to the
New York forum.ʺ Id. at 33. In response to Occidentalʹs argument that cross‐
jurisdictional tolling would result in an increase in forum‐shopping, the plaintiffs
note that New Yorkʹs borrowing statute, N.Y. C.P.L.R. § 202, protects against
opportunistic filing by prohibiting claims that would be untimely under either
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
New Yorkʹs or the foreign jurisdictionʹs statutes of limitations. They further note
that data suggest that Occidental overstates the forum‐shopping threat:
ʺ[N]umerous states have adopted cross‐jurisdictional tolling, but Occidental does
not identify a single one that has experienced the flood of stale claims that it
predicts will inundate New York.ʺ Id. at 31.
New York courtsʹ adoption of American Pipe tolling for New York‐only
cases may be the most persuasive evidence of how the Court of Appeals would
decide this question. As the district court observed, the principles from which
American Pipe tolling derives—fair notice of claims to defendants, reasonable
reliance by putative class members on the pending class action, and judicial
efficiency—ʺapply with equal force in the context of cross‐jurisdictional tolling.ʺ
Chavez, 300 F. Supp. 3d at 532.
Yet that evidence is insufficient to allow this Court to predict with
sufficient confidence how the New York Court of Appeals would resolve the
matter. Despite some important similarities, American Pipe tolling and cross‐
jurisdictional tolling are different such that adoption of the former does not
necessarily imply adoption of the latter. Unlike American Pipe tolling, cross‐
jurisdictional tolling may ʺrender [a stateʹs] limitations period effectively
28
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
dependent on the resolution of claims in other jurisdictions, with the length of
the limitations period varying depending on the efficiency (or inefficiency) of
courts in those jurisdictions.ʺ Wade v. Danek Med., Inc., 182 F.3d 281, 288 (4th Cir.
1999). It may also result in opportunistic filings by forum‐shopping plaintiffs.
Id. at 287. We are not convinced that New York courts would reject cross‐
jurisdictional tolling because of these risks: New York courts have applied N.Y.
C.P.L.R. § 205(a), a statutory provision that tolls claims following certain non‐
merits dismissals, in the cross‐jurisdictional context. See, e.g., Stylianou v. Inc. Vill.
of Old Field, 23 A.D.3d 454, 457, 805 N.Y.S.2d 573, 573 (2d Depʹt 2005). But we
cannot confidently predict, in light of these differences, that the New York Court
of Appeals would adopt cross‐jurisdictional tolling based primarily on its
adoption of American Pipe tolling.
2. Effect on Cross‐Jurisdictional Tolling of Non‐Merits Denial of Class Certification
Even if we were able to conclude that the New York Court of Appeals
would likely adopt cross‐jurisdictional tolling, that would not end our inquiry.
We would still have to decide whether the Texas Action tolled the plaintiffsʹ
29
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
claims at least until June 1, 2009.6 The plaintiffs assert that the Texas Action
tolled their claims until June 3, 2010, when the Texas state court denied their
motion for class certification on the merits. Occidental argues that the plaintiffsʹ
claims were tolled, if at all, until no later than October 1995, when the Southern
District of Texas issued a final judgment dismissing the Texas Action from
federal court and denying all ʺpending motions,ʺ including class certification, as
moot, notwithstanding the fact that the court did not address the merits of any of
the pending motions. At the core of the partiesʹ disagreement is the effect, for
tolling purposes, of the 1995 Orders dismissing the Texas Action on the basis of
forum non conveniens.
The Supreme Court has explained that, ʺ[o]nce the statute of limitations
has been tolled, it remains tolled for all members of the putative class until class
certification is denied.ʺ Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354 (1983).
In Giovanniello v. ALM Media, LLC, 726 F.3d 106 (2d Cir. 2013), we concluded that
ʺAmerican Pipe tolling does not extend beyond the denial of class status,ʺ at which
point ʺ[i]ndividual class members [a]re required . . . to take action to preserve
6 Because the plaintiffs filed the instant action on June 1, 2012, their claims would be
timely under New Yorkʹs three‐year statute of limitations only if filed on or after June 1,
2009.
30
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
their rights or face the possibility that their action could become time barred.ʺ Id.
at 116. We further noted that ʺ[t]he American Pipe rule is based on the idea that
under Rule 23 of the Federal Rules of Civil Procedure, potential class members
are protected by the commencement of a putative class action,ʺ and that ʺ[t]his
objectively reasonable reliance rationale breaks down once the district court
disallows class status.ʺ Id. at 117.
Neither this Court nor the Supreme Court has determined, however,
whether a denial of class certification must be on the merits in order to terminate
class action tolling. Here, the Southern District of Texas denied class certification
as an administrative matter: Because it concluded that dismissal was justified on
the basis of forum non conveniens, it denied ʺall pending motionsʺ as moot.
Occidental argues that the denial of class status for any reason terminates tolling.
See Appellant Br. 40 (ʺ[T]he underlying reason for the termination of class status
is irrelevant to tolling,ʺ which ʺstops upon denial of the class certification
motion.ʺ). The plaintiffs assert that only a ʺclear and unambiguousʺ denial of
class status on the merits ends tolling, Appellees Br. 49, because ʺ[a]n order that
does not clearly operate to terminate tolling does not adequately put absent class
members on notice of the need to file individual claims to protect their interests,ʺ
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
id. at 51. They further note that the 1995 Orders did not deny class status on the
merits, and that the July 1995 Order contained a ʺreturn jurisdiction clauseʺ that
authorized the plaintiffs to reinstate the class action if the highest court of any
foreign country affirmed the dismissal of their claims for lack of jurisdiction. Id.
at 53. This, they claim, made it reasonable for them to continue to rely on the
pendency of the Texas Action to toll their claims.
Existing case law sheds little light on whether a non‐merits denial of class
status necessarily terminates tolling. Few courts have addressed the issue, and
there is no consensus among those that have. Some have held that denial of class
status or dismissal of class action claims does not necessarily terminate tolling.
See, e.g., Betances v. Fischer, 144 F. Supp. 3d 441, 457‐58 (S.D.N.Y. 2015) (explaining
that ʺthe statute of limitations was tolled during the pendency of . . . three
previous actionsʺ because ʺthe appropriateness of a class action had not been
addressed in any of th[os]e . . . actionsʺ); Scott v. District of Columbia, 87 F. Supp.
3d 291, 298 (D.D.C. 2015) (concluding, in relevant part, that tolling did not begin
when the court dismissed the class action claims with leave to amend, but only
when the court dismissed the claims with prejudice). Others have concluded
that the denial of class status for any reason terminates tolling. See, e.g., Collins v.
32
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
Village of Palatine, 875 F.3d 839, 841 (7th Cir. 2017), cert. denied, 138 S. Ct. 2014
(2018) (concluding that ʺ[t]olling stops immediately when a class‐action suit is
dismissed—with or without prejudice—before the class is certifiedʺ); Bridges v.
Depʹt of Md. State Police, 441 F.3d 197, 211‐12 (4th Circ. 2006) (noting that ʺ[t]he
American Pipe rule provides a narrow exception to the fixed statutes of
limitations,ʺ and concluding that, even where denial of class certification was
only for administrative purposes, ʺno absentee class member could reasonably
have relied on the named plaintiffsʺ).
Similarly, courts are divided on the issue of the effect on tolling, if any, of
the ʺreturn jurisdiction clauseʺ in the July 1995 Order. The Delaware Supreme
Court, relying in part on the July 1995 Orderʹs inclusion of a ʺreturn jurisdiction
clauseʺ and the Costa Rica plaintiffsʹ motion to reinstate the action fewer than six
months after the October 1995 dismissal, decided that the Texas court had not
ʺclearly and unambiguously end[ed] the class action as a final matter.ʺ
Marquinez v. Dow Chem. Co., 183 A.3d 704, 713 (Del. 2018). Because, under
Delaware law, ʺcross‐jurisdictional class action tolling ends only when a sister
trial court has clearly, unambiguously, and finally denied class action status,ʺ id.
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
at 711, the court concluded that ʺclass‐action tolling did not end in 1995,ʺ id. at
713.
The Fifth Circuit, which examined the issue under Louisiana law, held
otherwise, albeit by non‐precedential unpublished opinion: Even if cross‐
jurisdictional tolling were permissible, and despite the inclusion of a ʺreturn
jurisdiction clauseʺ in the July 1995 Order, ʺdismissal of th[e] suit in 1995 would
have caused the prescriptive period to begin anew.ʺ Chaverri v. Dole Food Co., 546
F. Appʹx 409, 413 (5th Cir. 2013) (per curiam) (characterizing, and agreeing with,
the district courtʹs conclusion). The Chaverri court largely adopted the reasoning
of the United States District Court for the Eastern District of Louisiana in the case
on appeal. It had concluded that Louisiana courts ʺd[o] not make any distinction
based upon the type or manner of denial, nor d[o] they require that the denial be
on the merits.ʺ Chaverri v. Dole Food Co., 896 F. Supp. 2d 556, 568‐69 (E.D. La.
2012), affʹd, 546 F. Appʹx 409 (5th Cir. 2013).7
7 The United States District Court for the Eastern District of Louisiana concluded, in
the alternative, that even if the July 1995 Order had not terminated tolling, the October
1995 ʺfinal judgmentʺ did. Chaverri v. Dole Food Co., 896 F. Supp. 2d 556, 569 (E.D. La.
2012) (ʺPer Louisiana law, the entrance of the final judgment absolutely stopped the
pendency of the case and restarted prescription.ʺ).
34
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
Finally, the Hawaii Supreme Court, which, in the litigation described
above, examined the issue under Hawaii law, explained that ʺthe pendency of a
class action in another jurisdiction operates to toll our stateʹs applicable statute(s)
of limitations until the court in our sister jurisdiction issues an order expressly
denying a motion for class certification.ʺ Patrickson v. Dole Food Co., 368 P.3d 959,
971 (2015). Applying that rule to the 1995 Orders, the court concluded—without
specific reference to the ʺreturn jurisdiction clauseʺ—that the July 1995 Order
ʺwas not an express denial of class certification; therefore, July 11, 1995 is not the
date our state statute of limitations began to run again,ʺ and the plaintiffsʹ claims
were timely filed. Id. It went on to note, in dicta and with little analysis, that
ʺthe Texas district courtʹs October 27, 1995 final judgment dismissing [the Texas
Action] for [forum non conveniens] clearly denied class certification and triggered
the resumption of our state statute of limitations.ʺ Id.
We are aware of no controlling authority that would provide us with
reliable guidance in determining whether, if New York law recognized cross‐
jurisdictional tolling, the 1995 Orders, which denied class status, not on the
merits but as moot, and contained a ʺreturn jurisdiction clause,ʺ would terminate
tolling.
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3. Certification of These Two Questions to the New York Court of Appeals
In deciding whether to certify a question to the Court of Appeals, we ask
(1) whether the Court of Appeals has addressed the issue and, if not, whether we
can confidently predict, based on the decisions of other New York courts, how
the Court of Appeals would resolve it; (2) whether the question raises an
important issue that requires value judgments and public policy choices; and
(3) whether the question is dispositive. See Barenboim, 698 F.3d at 109. We
conclude that certification of both questions presented on appeal is appropriate:
First, as discussed above, New York courts have yet to address either
question. Second, either question may be dispositive: If New York law does not
recognize cross‐jurisdictional tolling, or if either of the 1995 Orders terminates
tolling, the plaintiffsʹ claims would be time‐barred. Third, answering these
questions will likely require significant policy judgments. The Supreme Court
has long noted the public policy aspects of decisions regarding the scope of, and
exceptions to, tolling doctrines and statutes of limitations.8 Insofar as the
8 See, e.g., Rotella v. Wood, 528 U.S. 549, 555 (2000) (limitations provisions serve various
policy goals, including ʺrepose, elimination of stale claims, and certainty about a
plaintiffʹs opportunity for recovery and a defendantʹs potential liabilitiesʺ); Hardin v.
Straub, 490 U.S. 536, 543 (1989) (ʺ[a] Stateʹs decision to toll the statute of
limitations . . . does not frustrate § 1983ʹs compensation goal [but instead] enhances the
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
questions presented on appeal implicate the scope and viability of a tolling
doctrine that New York courts have yet to adopt, the answers to these questions
implicate the balance between victimsʹ interest in redress, defendantsʹ interest in
repose and accurate factfinding, and the publicʹs interest in a well‐functioning
judicial system. And insofar as cross‐jurisdictional tolling might expose New
York to long periods of tolling based on class actions filed in other jurisdictions,
they directly affect New York Stateʹs ʺinterest in managing its own judicial
system.ʺ Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008).
We conclude that the New York Court of Appeals is far better suited than
we are to decide whether, under the circumstances presented, New York law
recognizes cross‐jurisdictional tolling, and when such tolling ends. See Casey v.
Merck & Co., Inc., 653 F.3d 95, 103‐04 (2d Cir. 2011) (certifying cross‐jurisdictional
tolling question to the Virginia Supreme Court because of the ʺlack of
authoritative state court decisions on point,ʺ the issueʹs ʺconsiderable importance
inmateʹs ability to bring suit and recover damages for injuriesʺ); Mills v. Habluetzel, 456
U.S. 91, 99 (1982) (long periods of limitations may ʺpresent a real threat of loss or
diminution of evidence, or an increased vulnerability to fraudulent claimsʺ); Bd. Of
Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487 (1980) (statutes of limitations
ʺhave long been respected as fundamental to a well‐ordered juridical systemʺ).
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
to the state,ʺ and the likelihood that certification would ʺresolve th[e] litigation as
the issue[] to be certified [was] determinative of th[e] appealʺ).
CONCLUSION
Determination of the applicable law ʺrequires value judgments and
important public policy choices that the New York Court of Appeals is better
situated than we to make.ʺ Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 42
(2d Cir. 2010). We therefore certify the following two questions to the New York
Court of Appeals:
1. Does New York law recognize cross‐jurisdictional class action tolling, as
described in this opinion?
2. Can a non‐merits dismissal of class certification terminate class action
tolling, and if so, did the Orders at issue here do so?
Should the New York Court of Appeals choose to grant certification to
either or both questions, then it is, of course, invited to address any other issues it
deems germane or to reframe the question or questions as it deems appropriate.
Consistent with our prior practice, ʺwe do not intend to limit the scope of the
Court of Appealsʹ analysis through the formulation of our question[s], and we
invite the Court of Appeals to expand upon or alter th[ese] question[s].ʺ
10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 126 (2d
Cir. 2011).
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Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.
Pursuant to N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27, and Second
Circuit Rule 27.2, it is hereby ORDERED that the Clerk of the Court transmit to
the Clerk of the New York Court of Appeals this opinion as our certificate,
together with a complete set of the briefs, appendices, and record filed by the
parties in this Court. We direct the parties to bear equally any fees and costs that
may be imposed by the New York Court of Appeals in connection with this
certification. This panel will retain jurisdiction of the appeal after disposition of
this certification by the New York Court of Appeals.
39