Patrickson v. Dole Food Company, Inc.

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Electronically Filed
Supreme Court
SCWC-30700
21-OCT-2015
08:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
GERARDO DENNIS PATRICKSON; RODOLFO BERMUDEZ ARIAS;
BENIGNO TORRES HERNANDEZ; FERNANDO JIMENEZ ARIAS; MELGAR
OLIMPIO MORENO; LEANDRO SANTOS; HERMAN ROMERO AGUILAR; ELIAS
ESPINOZA MERELO; CELESTINO HOOKER ERA; ALIRIO MANUEL MENDEZ
and CARLOS HUMBER RIVERA, individually and on behalf of
others similarly situated, Petitioners/Plaintiffs-Appellants,
vs.
DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; DOLE FRESH
FRUIT INTERNATIONAL, INC.; PINEAPPLE GROWERS ASSOCIATION OF
HAWAII; AMVAC CHEMICAL CORPORATION; SHELL OIL COMPANY; DOW
CHEMICAL COMPANY; and OCCIDENTAL CHEMICAL CORPORATION,
(individually and as successor to Occidental Chemical Company
and Occidental Chemical Agricultural Products, Inc., Hooker
Chemical and Plastics, Occidental Chemical Company of Texas and
Best Fertilizer Company); STANDARD FRUIT COMPANY; STANDARD FRUIT
AND STEAMSHIP COMPANY; STANDARD FRUIT COMPANY DE COSTA RICA,
S.A.; STANDARD FRUIT COMPANY DE HONDURAS, S.A.; CHIQUITA BRANDS
INC.; CHIQUITA BRANDS INTERNATIONAL, INC., (individually and as
successor in interest to United Brands Company, Inc.); MARITROP
TRADING CORPORATION; DEL MONTE FRESH PRODUCE N.A., INC.
(incorrectly named as Del Monte Fresh Produce N.A.); DEL MONTE
FRESH PRODUCE COMPANY; DEL MONTE FRESH PRODUCE (HAWAII) INC.,
(incorrectly named as Del Monte Fresh Produce Hawaii, Inc.); DEL
MONTE FRESH PRODUCE COMPANY and FRESH DEL MONTE N.V.,
Respondents/Defendants-Appellees.
DOLE FOOD COMPANY, INC., Defendant/Third-Party Plaintiff-
Appellees, vs. DEAD SEA BROMINE CO., LTD and BROMINE COMPOUNDS
LIMITED, Third-Party Defendants-Appellees.
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SCWC-30700
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30700; CIV. NO. 07-1-0047)
OCTOBER 21, 2015
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal challenges the circuit court’s grant of partial
summary judgment against Plaintiffs on statute of limitations
grounds. At issue on certiorari is whether the filing of a
putative class action in another jurisdiction operated to toll
this state’s statute of limitations, and, if so, at what point,
under the particular circumstances of this case, did such
tolling end. We hold that the filing of a putative class action
in another jurisdiction does toll the statute of limitations in
this state, as such “cross-jurisdictional tolling” supports a
primary purpose of class action litigation, which is to avoid a
multiplicity of suits. See Levi v. University of Hawaiʻi, 67
Haw. 90, 93, 679 P.2d 129, 132 (1984) (“One of the purposes of a
class action suit is to prevent multiplicity of actions, thereby
preserving the economies of time, effort and expense. This
objective can be effectively achieved only by allowing the
proposed members of a class to rely on the existence of a suit
which protects their rights.”).
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Further, under the unique circumstances of this case,
cross-jurisdictional tolling ended when the foreign jurisdiction
issued a final judgment that unequivocally dismissed the
putative class action. In this case, Plaintiffs’ Complaint was
filed within two years (the applicable limitations period) of
the filing of the final judgment and, therefore, was not time-
barred. Accordingly, we hereby vacate the ICA’s judgment on
appeal, which affirmed the circuit court’s1 final judgment,
entered pursuant to its order granting partial summary judgment
against the Plaintiffs and in favor of the Defendants, and we
remand this case to the circuit court for further proceedings
consistent with this opinion.
II. Background
A. The History of DBCP Litigation
This case involves dibromochloropropane (“DBCP”), a
powerful nematocide, or nematode worm killer. The Ninth Circuit
described DBCP as follows:
Tough on pests, it’s no friend to humans either. Absorbed
by the skin or inhaled, it’s alleged to cause sterility,
testicular atrophy, miscarriages, liver damage, cancer and
other ailments that you wouldn’t wish on anyone.
Originally manufactured by Dow Chemical and Shell Oil, the
pesticide was banned from general use in the United States
by the Environmental Protection Agency in 1979. But the
chemical companies continued to distribute it to fruit
companies in developing nations.
Patrickson v. Dole Fruit Co., Inc., 251 F.3d 795, 798 (9th Cir.
2001). Although much of the following history of the multi-
1
The Honorable Gary W.B. Chang presided.
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jurisdictional DBCP litigation is not contained in the record,
it has been extensively chronicled in published (and
unpublished) opinions from other jurisdictions. The instant
case “represents one front in a broad litigation war between
these plaintiffs’ lawyers and these defendants.” Id.
1. Carcamo and Delgado: The DBCP War Begins in Texas
The war began in August 1993, when “a putative class
action, Jorge Carcamo v. Shell Oil Co., was filed in the
District Court of Brazoria County, a state court in Texas. The
action . . . defined the putative class as ‘[a]ll persons
exposed to DBCP, or DBCP-containing products . . . between 1965
and 1990.’” Chaverri v. Dole Food Co., Inc., 896 F. Supp. 2d 556,
560 (E.D.La. 2012)(footnote omitted; first ellipsis added;
second ellipsis in original.
On March 29, 1994, the Carcamo plaintiffs moved for class
certification. Id. Before the Texas state court could hear the
motion, however, the Carcamo defendants removed the case to the
United States District Court for the Southern District of Texas
(“Texas district court”). Id. The statutory basis for removal
was the Foreign Sovereign Immunities Act (“FSIA”), as there were
defendants impleaded into the case who were purportedly owned by
the State of Israel. Id.; see also Marquiniz v. Dole Food Co.,
Inc., 2014 WL 2197621, *1 (D. Del. May 27, 2014).
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After removal, the Texas district court consolidated
Carcamo with another DBCP case, Delgado v. Shell Oil Co.,
originally filed in Galveston County (collectively, the
“Carcamo/Delgado case”). Chaverri, 896 F. Supp. 2d at 560;
Delgado v. Shell Oil Co., 231 F.3d 165, 170 (5th Cir. 2000).
The Carcamo/Delgado defendants moved to enjoin any further DBCP
litigation anywhere in the United States. Canales Blanco v.
Amvac Chemical Corp., 2012 WL 3194412, *2 (Del.Super. Aug. 8,
2012).
2. Abarca: Posturing in Florida
Fearing that the Texas district court would grant the
Carcamo/Delgado defendants’ motion for an injunction against any
further DBCP litigation anywhere else in the United States, the
Carcamo/Delgado plaintiffs filed, on June 9, 1995, a class
action lawsuit entitled Abarca v. CNK Disposition Corporation,
on behalf of 3000 individuals, in Florida state court.
Chaverri, 896 F. Supp. 2d at 562 & 562 n.14. The Abarca
plaintiffs never served their Complaint. 896 F. Supp. 2d at 562
n.14. In its order dated July 11, 1995 (discussed in greater
detail in the next section), the Texas district court entered a
narrower injunction than the defendants originally sought,
enjoining only the Delgado named plaintiffs from filing any
further DBCP complaints in the United States. Canales Blanco,
2012 WL 3194412 at *2; Chaverri, 896 F. Supp. 2d at 562 n.14.
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Therefore, the Carcamo/Delgado plaintiffs, “no longer fearing
the broad injunction defendants had requested and prior to them
being served, voluntarily dismissed Abarca on July 12, 1995.”
Canales Blanco, 2012 WL 3194412 at *2.
3. The War Continues in Texas
This brief interlude in Florida thus concluded, the war
continued in Texas. In addition to moving for an injunction
against United States DBCP filings, the Carcamo/Delgado
defendants had also moved to dismiss the complaints for forum
non conveniens (“f.n.c.”). Chaverri, 896 F. Supp. 2d at 560. The
Texas district court granted the motion in its “Memorandum and
Order” dated July 11, 1995 (“July 11, 1995 order”), and this
order is the focus of the instant Application. Delgado v. Shell
Oil Co., 890 F. Supp. 1324 (S.D.Tex. 1995).
The July 11, 1995 order is 41 pages long. The first six
pages lay out the procedural history in the cases consolidated
before the Texas district court. 890 F. Supp. at 1335-41. The
next 10 pages explain the Texas district court’s reasoning for
asserting federal jurisdiction over the case due to the presence
of the impleaded Israeli companies, pursuant to the FSIA. 890
F. Supp. at 1341-51. Then, the Texas district court delved into
its lengthier (23-page) f.n.c. analysis, including a survey of
the availability of legal remedies in each of the plaintiffs’
home countries, culminating in a dismissal of the consolidated
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cases for f.n.c. 890 F. Supp. at 1351-75. Recognizing the
difficulty litigating these cases in the plaintiffs’ home
countries, the Texas district court allowed the parties another
90 days within which to expedite discovery in the U.S., as
follows:
The court concludes that the overwhelming majority of the
relevant sources of proof are more readily available to the
parties in the home countries of the plaintiffs and that
this factor weighs heavily in favor of dismissal.
Nevertheless, because foreign fora might not afford
plaintiffs as many opportunities for discovery as they
desire, to ensure that plaintiffs have access to evidence
located in the United States no case will be dismissed
until 90 days have elapsed after the entry of this
Memorandum and Order. During that time plaintiffs may
pursue expedited discovery against defendants under the
supervision of this court.
890 F. Supp. at 1367. The last paragraph in the Texas district
court’s July 11, 1995 order read as follows:
Other motions
In addition to defendant’s motion to dismiss for
f.n.c., a number of other motions are pending. Because
Delgado, Jorge Carcamo, Valdez, and Isae Carcamo may be
dismissed in 90 days, all pending motions in those cases
not otherwise expressly addressed in this memorandum and
Order are DENIED as MOOT.
Id. (emphasis in original).
The July 11, 1995 order also contained, pursuant to Fifth
Circuit precedent, a return jurisdiction provision, which read
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 f.n.c.
890 F. Supp. at 1375.
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On October 27, 1995, the Texas district court entered a final
judgment dismissing the Carcamo/Delgado consolidated action
based on the f.n.c. dismissal. Chaverri, 896 F. Supp. 2d at 562.
The Carcamo/Delgado plaintiffs appealed the judgment, but
the United States Court of Appeals for the Fifth Circuit
affirmed the dismissal on October 19, 2000. See Delgado, 231
F.3d at 182. The United States Supreme Court denied certiorari
on April 16, 2001. See Delgado v. Shell Oil Co., 532 U.S. 972
(2001).
Meanwhile, while the appeal of the Texas district court’s
judgment was pending, the war moved to our shores.
4. The War Moves to Hawaiʻi
The instant case was filed on October 3, 1997. As had
happened in Carcamo/Delgado, Dole impleaded the defendant
Israeli companies, and the case was removed to the United States
District Court for the District of Hawaiʻi pursuant to the FSIA.
Dole Food Co. v. Patrickson, 538 U.S. 468, 472 (2003). As the
Texas district court had done, the Hawaiʻi district court
dismissed the case for f.n.c. Patrickson, 251 F.3d at 798. On
appeal, however, unlike the Fifth Circuit, the Ninth Circuit
reversed, holding that the Israeli companies were not organs of
the Israeli government, and therefore, did not qualify as
instrumentalities of a foreign state under the FSIA. 251 F.3d
at 808. Therefore, the Ninth Circuit held that the federal
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courts did not have jurisdiction over the case, and ordered the
Hawaiʻi district court to remand the case to Hawaiʻi state court.
251 F.3d at 808-09. The United States Supreme Court accepted
certiorari to resolve the split between the Fifth and Ninth
Circuits, and affirmed the Ninth Circuit. Dole Food Co., 538
U.S. 468. The instant case was remanded to Hawaiʻi state court,
specifically the Second Circuit Court, and venue was later
changed to the First Circuit Court.
5. Texas Epilogue
The Delgado/Carcamo class action eventually returned to
Texas, pursuant to the return jurisdiction clause in the Texas
district court’s July 11, 1995 order, after the Costa Rican
courts dismissed the Costa Rican plaintiffs’ claims for lack of
jurisdiction. Chaverri, 896 F. Supp. 2d at 561; Marquiniz, 2014
WL 2197621 at *2. The cases were reinstated in Texas state
court. Chaverri, 896 F. Supp. 2d at 562. In September 2007, a
Texas state court dismissed the Delgado action after defendants
settled with the named plaintiffs. Id. In June 2010, a Texas
state court denied a motion to certify the class in the Carcamo
action. Id. Thus, by 2010, the DBCP litigation war had ended;
the remaining DBCP battles occurring on other fronts (e.g., in
Hawaii, the Eastern District of Louisiana, and Delaware,
according to our record on appeal) continued only to the extent
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that the Texas action tolled the statute of limitations in those
jurisdictions.
B. An In-Depth Look at the Instant Hawaii DBCP Class
Action
1. Complaint and First Amended Complaint
In this case, Gerardo Dennis Patrickson, Rodolfo Bermudez
Arias, Benigno Torres Hernandez, Fernando Jimenez Arias, Melgar
Olimpio Moreno, Leandro Santos, Herman Romero Aguilar, Elias
Espinoza Merelo, Celestino Hooker Era, Alirio Manuel Mendez, and
Carlos Humberto Rivera,2 individually and on behalf of others
similarly situated (“Plaintiffs”), filed their Complaint (and
First Amended Complaint) against Dole Food Company, Inc.; Dole
Fresh Fruit Company; Dole Fresh Fruit International, Limited;
Dole Fresh Fruit International, Inc.; Pineapple Growers
Association of Hawaii; Amvac Chemical Corporation; Shell Oil
Company; Dow Chemical Company; Occidental Chemical Corporation;
Standard Fruit Company; Standard Fruit and Steamship Company;
Standard Fruit Company de Costa Rica, S.A.; Standard Fruit
Company de Honduras, S.A.; Chiquita Brands, Inc.; Chiquita
Brands International, Inc.; Maritrop Trading Corporation; Del
2
On certiorari, only six named Plaintiffs remain in this action (Gerardo
Dennis Patrickson, Benigno Torres Hernandez, Fernando Jimenez Arias, Elias
Espinoza Merelo, Alirio Manual Mendez, and Carlos Humberto Rivera). Alirio
Manual Mendez and Carlos Humberto Rivera stipulated to partially dismiss,
without prejudice, all claims against Defendants Dole Food Company, Inc.;
Dole Fresh Fruit Company; Standard Fruit Company; and Standard Fruit and
Steamship Company. Roldolfo Bermudez Arias, Celestino Hooker Era, Herman
Romero Aguilar, Leandro Santos, and Melgar Olimpio Moreno all stipulated to
partially dismiss, without prejudice, all claims against all defendants.
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Monte Fresh Produce, N.A.; Del Monte Fresh Produce Company; and
Doe Defendants.3
The Complaint alleged that the Plaintiffs were banana
plantation workers from Costa Rica, Ecuador, Guatemala, and
Panama, who were exposed to DBCP, made by or used by the
Defendants, and such exposure caused severe injuries to the
Plaintiffs’ reproductive systems. The Plaintiffs alleged as
causes of action the following: negligence, conspiracy, strict
liability, intentional tort, and breach of implied warranty.
They prayed for compensatory and punitive damages.
The circuit court denied the Plaintiffs’ motion for class
certification and appointment of class representative on June
13, 2008. Plaintiffs did not appeal the denial of class
certification. Therefore, this case concerns only the named
Plaintiffs.
2. Dow’s Motion for Partial Summary Judgment
On April 13, 2009, Dow filed a motion for partial summary
judgment against Gerardo Dennis Patrickson, Benigno Torres
Hernandez, Fernando Jimenez Arias, Elias Espinoza Merelo, Alirio
3
The parties later stipulated to dismiss, without prejudice, Chiquita
Brands, Inc.; Chiquita Brands International, Inc.; Maritrop Trading
Corporation; Dole Fresh Fruit International, Inc.; Dole Fresh Fruit
International, Ltd.; Standard Fruit Company de Costa Rica, S.A.; Standard
Fruit de Honduras, S.A.; Del Monte Fresh Produce Company, and Fresh Del Monte
Produce N.V. (incorrectly named as Del Monte Fresh Produce and Fresh Del
Monte N.V.).
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Manuel Mendez, and Carlos Humberto Rivera. Dow argued that on
June 9, 1995 (over two years before the filing of the instant
complaint on October 3, 1997), these six named plaintiffs filed
the Abarca action, which made the same allegations as those in
the instant case. To Dow, the Abarca action proved that these
plaintiffs knew of their claims by June 9, 1995, and their
causes of action accrued by that date. Therefore, because the
Plaintiffs did not file the instant complaint within two years
of having filed the Abarca complaint, their claims were barred
by the two-year statute of limitations found under HRS § 657-7
(1993)4 for tort actions.
3. Plaintiffs’ Opposition to Dow’s Motion for
Partial Summary Judgment
The Plaintiffs filed a memorandum in opposition to Dow’s
motion for partial summary judgment. They counter-argued that
the Abarca action was a “purely defensive response to
defendants’ efforts to enjoin the litigation of any additional
DBCP cases by the Texas [district] court hearing the
[Carcamo/]Delgado litigation.” With regard to the statute of
limitations, the Plaintiffs asserted that the “continued
pendency of the 1993 Carcamo putative class action (consolidated
4
HRS § 657-7 (1993) is entitled “Damage to persons or property” and
provides, “Actions for the recovery of compensation for damage or injury to
persons or property shall be instituted within two years after the cause of
action accrued, and not after, except as provided in section 657-13.” HRS §
657-13 (1993), in turn, contains exceptions for infancy, insanity, and
imprisonment, which are not at issue in this case.
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into ‘Delgado’) suspended the running of the statute of
limitations,” under American Pipe & Constr. Co. v. Utah, 414,
U.S. 538, 554 (1974), which held that “the commencement of a
class action suspends the applicable statute of limitations as
to all asserted members of the class who would have been parties
had the suit been permitted to continue as a class action.” The
Plaintiffs also noted that the United States Supreme Court
extended American Pipe’s holding in Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 350 (1983), to allow tolling not only in
cases where plaintiffs sought to intervene in a continuing
action, but also where they sought to file an entirely new
action. The Plaintiffs noted that this court adopted American
Pipe and Crown, Cork in Levi, 67 Haw. 90, 679 P.2d 129. The
Plaintiffs asserted that the Levi court made clear that “tolling
provisions [extend] to all asserted members of the class, until
class certification is denied.” 67 Haw. at 94, 679 P.2d at 132.
Applying American Pipe, Crown, Cork, and Levi to the
instant facts, the Plaintiffs argued that their Complaint was
timely because the Hawaii statute of limitations was tolled by
the 1993 filing of the Texas class actions. The Plaintiffs
acknowledged that the Texas district court entered a f.n.c.
dismissal order on July 11, 1995, but they argued that the
Carcamo/Delgado putative class action was ultimately reinstated
in Texas state court “as though it had never been dismissed” and
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“remained pending until it was finally dismissed in September
2007.” Therefore, Plaintiffs argued, their 1997 Complaint was
timely.
4. Dow’s Reply
Dow’s reply preliminarily pointed out that its motion for
partial summary judgment had become, in effect, a motion for
summary judgment, because the four other plaintiffs who were not
the subject of the partial motion for summary judgment were in
the process of dismissing their claims against the defendants.
As to whether the Carcamo/Delgado class action tolled the
statute of limitations on the Plaintiffs’ complaint, Dow argued
that American Pipe, Crown, Cork, and Levi do not support the
Plaintiffs’ argument that a class action pending in one
jurisdiction tolled the statute of limitations in another
jurisdiction. Dow argued that those cases involved subsequent
claims brought by members of a putative class in the same
jurisdiction. Dow argued that a majority of jurisdictions do
not allow cross-jurisdictional tolling.
Moreover, even assuming cross-jurisdictional tolling
applied, Dow pointed out that any such tolling ended when class
certification in Carcamo/Delgado was denied by the Texas
district court’s July 11, 1995 order. That order denied “all
pending motions in [the consolidated cases] not otherwise
expressly addressed in this Memorandum and Order” as moot.
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Delgado, 890 F. Supp. at 1375. Dow attached the state court
docket sheet for Carcamo as an exhibit to its reply to show that
plaintiffs’ motion for class certification was pending when the
Texas district court issued its July 11, 1995 order. The
parties stipulated that the six named Plaintiffs in the instant
case were putative class members in the Carcamo case.
Lastly, Dow argued that Plaintiffs cannot rely on class
action tolling after having filed the Abarca action while a
motion for class certification in Carcamo/Delgado was still
pending. The parties stipulated that the six named Plaintiffs
were named parties in Abarca.
5. Hearing on the Motion for Partial Summary Judgment
At the hearing on Dow’s Motion for Partial Summary
Judgment, the parties focused on whether the July 11, 1995 order
denied class certification in the Carcamo/Delgado case clearly
enough to restart the Hawaii statute of limitations.
Plaintiffs’ counsel argued that the July 11, 1995 order did not
dispose of the Carcamo motion to certify a class action, because
“that housekeeping order didn’t reference class certification
specifically,” and “it wasn’t clear that [there] was a pending
motion [for class certification]. It hadn’t been set for
hearing. It hadn’t been briefed. It wasn’t argued.” Dow’s
counsel, on the other hand, argued that the July 11, 1995 order
was “the original denial of the motion [to certify the class]
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and the original dismissal of the [Carcamo/Delgado] action”;
therefore, the July 11, 1995 date set the limitations clock
ticking once again.
It became clear, however, that the circuit court intended
to grant the partial motion for summary judgment in Defendants’
favor because it considered the filing of the Abarca case to be
an effective “opt-out” of the Carcamo/Delgado class action.
6. Order Granting Dow’s Motion for Partial Summary
Judgment; Final Judgment; Notice of Appeal
The circuit court granted Dow’s motion for partial summary
judgment in an order dated July 30, 2009, as well as co-
defendants’ joinders in that motion. The circuit court filed
its judgment on July 26, 2010, and the Plaintiffs timely
appealed.
7. The ICA Appeal
a. Opening Brief
On appeal, Plaintiffs focused on the significance of the
Abarca filing, as that formed the basis of the circuit court’s
order granting Dow’s motion for partial summary judgment on
limitations grounds. The Plaintiffs argued that the filing of
the Abarca complaint, which was never served and later
voluntarily dismissed, did not commence an action for statute of
limitations purposes, and did not manifest an intent to opt-out
of the Carcamo/Delgado class action. Plaintiffs argued that,
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because the putative class action in Delgado was not finally
dismissed until September 2007, and because class certification
was not denied in Carcamo until June 2010, Plaintiffs had two
years from those dates from which to file a timely action;
therefore, the Plaintiffs’ October 1997 Complaint was timely
filed. The Plaintiffs argued that the defendants’ approach
would frustrate the purposes of the class action tolling
doctrine by forcing plaintiffs to prematurely commence
individual actions out of an abundance of caution rather than
relying on class actions to protect their interests. The
Plaintiffs requested that the ICA reverse the circuit court’s
judgment and order granting summary judgment in favor of the
Defendants.
b. Answering Brief
Only Dow filed a substantive Answering Brief, while other
defendants filed joinders to it. Dow first argued that the
Texas district court’s July 11, 1995 order in Carcamo/Delgado
denied a pending class certification motion as moot; therefore,
the Hawaii two-year statute of limitations began running on that
date, and Plaintiffs’ October 3, 1997 Complaint was time-barred.
Second, Dow argued that the ICA should not recognize cross-
jurisdictional tolling. Third, Dow argued that the Plaintiffs
opted out of the Carcamo/Delgado class action by filing
individual claims in the Abarca complaint. Moreover, the filing
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of the Abarca action in June 1995 demonstrated that the
Plaintiffs were aware of their claims at that time, over two
years before they filed the instant complaint, and thus, beyond
the Hawaii two-year statute of limitations governing their
claims. Dow requested that the ICA affirm the circuit court’s
judgment.
c. Reply Brief
In their Reply, the Plaintiffs argued that the July 11,
1995 order was a “routine housekeeping order” incidental to the
district court’s f.n.c. dismissal, which “did not specifically
refer to the [Carcamo/]Delgado plaintiffs’ motion for class
certification” when it ruled that “all pending motions” were
moot. The Plaintiffs also argued that the ICA could recognize
cross-jurisdictional tolling, as this court’s Levi opinion left
open that possibility.
d. The ICA’s Memorandum Opinion
The ICA affirmed the circuit court’s Judgment. Patrickson
v. Dole Food Co., No. 30700 (App. Mar. 7, 2014) (mem.) at 21.
The ICA concluded
[A]ll claims asserted by the Six Plaintiffs that have a
two-year statute of limitations are time barred. The
Abarca action establishes that the Six Plaintiffs were
aware of their claims at least by June 9, 1995, when the
Abarca complaint was filed. Moreover, even if we assume
that class action tolling applied, such tolling ended on
July 11, 1995, when [the Texas district court’s order] was
issued, and the complaint in this case was filed more than
two years later, on October 3, 1997.
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Id. at 15.
III. Standard of Review
This court reviews a circuit court’s grant of summary
judgment de novo. See Hawaii Cmty. Fed. Credit Union v. Keka,
94 Hawaii 213, 221, 11 P.3d 1, 9 (2000). “[S]ummary judgment is
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Id. (citations omitted).
IV. Discussion
A. Plaintiffs’ Application
On certiorari, the Plaintiffs present the following
questions:
A. Whether an order entered on July 11, 1995 – purportedly
dismissing the prior class action – that explicitly did not
take effect until October 11, 1995 operates to bar
Petitioners’ October 3, 1997 lawsuit on limitations
grounds.
B. Whether an administrative “housekeeping” order included
in a forum non conveniens order denying “all pending
motions” as “moot” – without specifying those pending
motions – put putative class members on notice that class
action tolling had ended.
The Plaintiffs first argue that the July 11, 1995 order
“expressly stated that the Order would not take affect [sic]
until 90 days after the date of the Order because it was
conditional upon the defendants submitting to certain
stipulations to make the Order effective. 890 F. Supp. 1373,
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1375. As a result, the Order did not become effective until
October 11, 1995.” The Plaintiffs argue that the Texas district
court’s paragraph denying all other pending motions as moot also
took effect on October 11, 1995. Therefore, the Plaintiffs
argue, they timely filed their Complaint on October 3, 1997,
which was within two years of October 11, 1995.
Next, the Plaintiffs argue that the July 11, 1995 order’s
paragraph denying all other pending motions as moot was a
“generic housekeeping order,” that “did not even refer to a
class certification motion,” and “did not contain any discussion
of the requirements of class certification under federal Rule
23.” The Plaintiffs argue that the provision therefore “did not
[sic], and could not have put, putative class members reasonably
on notice of the need to act.” They argue that this court
should “clarify the law to require that the termination of class
action tolling must be sufficiently clear and unambiguous to put
putative members of the class on notice that limitations has
begun to run against their claims and they have an obligation to
act.”
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B. Dow’s and Dole’s Responses
Dow and Dole filed Responses.5 As to Plaintiffs’ argument
that the July 11, 1995 order did not take effect until October
11, 1995, Dow counter-argues that the conditional f.n.c.
dismissal “is in no way relevant to the denial of the class
action certification motion”; the 90-day expedited discovery
deadline ending on October 11, 1995 had nothing to do with the
dismissal of the Carcamo motion for class certification, which
was pending at the time the Texas district court denied “all
other pending motions” as moot. More emphatically, Dole argues,
“A motion denied is a motion denied. Contrary to Petitioner’s
assertions, there was nothing ‘vague’ or ‘ambiguous’ about the
July 1995 Order.” Thus, the Defendants argue that any class
action tolling stopped on July 11, 1995, when class
certification was denied, and the Plaintiffs had two years from
that date to file their Complaint.
Dow and Dole also point out that the ICA’s holding is
consistent with those of two recent cases examining the effect
of the July 11, 1995 order on putative DBCP class actions filed
within their respective jurisdictions, Marquiniz and Chaverri,
which both concluded that the July 11, 1995 denial of the
5
Respondents Pineapple Growers Association of Hawaii; Occidental
Chemical Corporation, and Shell Oil Company joined in Dow’s Response.
Respondent Pineapple Growers Association of Hawaii joined in Dole’s Response.
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pending motion for class certification restarted limitations
periods. See Marquiniz, 2014 WL 2197621 at *2, and Chaverri,
896 F. Supp. 2d at 569. Dow notes both cases hold that the denial
of class certification, while not on the merits, was sufficient
to end any class action tolling. See Marquiniz, 2014 WL 2197621
at *2 (“While the denial of the motion was not on the merits,
any reliance would have been objectively unreasonable, as the
case was dismissed.”); Chaverri, 896 F. Supp. 2d at 569 (noting
that courts “did not make any distinction based upon the type or
manner of denial, nor did they require that the denial be on the
merits.”). Dow states that these holdings are in line with the
majority rule that “the tolling rule announced in [American
Pipe] extends only through the denial of class status in the
first instance by the district court.” Giovanniello v. ALM
Media, 726 F.3d 106, 116 (2d Cir. 2013). Dole agrees, arguing
that “federal courts are in broad agreement ‘that [class action]
tolling ceases upon entry of an order denying class
certification in the trial court.’” See Arivella v. Lucent
Techs., Inc., 623 F. Supp. 2d 164, 174-75 (D.Mass. 2009).
C. Analysis
1. Cross-Jurisdictional Tolling
A threshold issue in this appeal is whether the pendency of
the Texas Carcamo/Delgado action tolled this state’s statute of
limitations. In other words, this court must decide whether to
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recognize “cross-jurisdictional tolling.” “Cross-jurisdictional
tolling” has been defined as “a rule whereby a court in one
jurisdiction tolls the applicable statute of limitations based
on the filing of a class action in another jurisdiction.” Quinn
v. Louisiana Citizens Prop. Ins. Co., 118 So. 3d 1011, 1018 n.7
(La. 2012) (citations omitted).
We start with the general premise that the pendency of a
class action will toll the statute of limitations for
intervenors and those pursuing individual suits within the
federal court system, and within the Hawaii state court system.
American Pipe, 414 U.S. at 554; Crown, Cork, 462 U.S. at 354;
Levi, 67 Haw. at 93, 679 P.2d at 132. This “class action
tolling” rule originated in American Pipe, which held that the
“the commencement of a class action suspends the applicable
statute of limitations as to all asserted members of the class
who would have been parties had the suit been permitted to
continue as a class action.” American Pipe, 414 U.S. at 554.
In other words, the pendency of a class action will toll the
applicable statute of limitations for would-be intervenors.
Further, “[o]nce the statute of limitations has been tolled, it
remains tolled for all members of the putative class until class
certification is denied. At that point, class members may
choose to file their own suits or to intervene as plaintiffs in
the pending action.” Crown, Cork, 462 U.S. at 354. In other
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words, the American Pipe rule applies not only to intervenors to
a class action, but also to putative class action plaintiffs
seeking to file individual suits upon the denial of class
certification. This court in Levi adopted the American Pipe and
Crown, Cork “class action tolling” rule to Hawaii state court
actions. 67 Haw. at 93, 679 P.2d at 132. Whether class action
tolling applies cross-jurisdictionally so that a putative class
action filed in one jurisdiction operates to suspend this state
statute of limitations is a matter of first impression for this
court.6
We note that other states are split on the issue of whether
a putative class action filed in one jurisdiction will operate
to toll the statute of limitations in another. Cases in which
courts have recognized such cross-jurisdictional tolling include
Stevens v. Novartis Pharmaceuticals Corp., 247 P.3d 244 (Mont.
2010); Vaccariello v. Smith & Nephew Richards, 763 N.E.2d 160
(Ohio, 2002); Staub v. Eastman Kodak Co., 726 A.2d 955
6
We note that, almost 30 years ago, the United States Court of Appeals for
the Second Circuit had the opportunity to examine whether cross-
jurisdictional tolling existed in Hawaii. See In re Agent Orange Product
Liability Litigation, 818 F.2d 210 (2d Cir. 1987). The Hawaii plaintiffs-
appellants in that case argued that the pendency of a multi-district federal
class action in the Eastern District of New York tolled the two-year Hawaii
statute of limitations such that their claims were timely filed. 818 F.2d at
213. The Second Circuit disagreed, holding that “none of [Hawaii’s
limitations statutes] provides for tolling in a situation such as exists here
. . . [so that] it is doubtful that either American Pipe or Crown, Cork can
be treated as applicable precedent.” Id. (citations omitted). In other
words, the Second Circuit declined to interpret Hawaii law to cross-
jurisdictionally toll the state statute of limitations during the pendency of
a federal class action.
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(N.J.Sup.Ct.App.Div. 1999); Hyatt Corp. v. Occidental Fire &
Cas. Co. of N.C., 801 S.W.2d 382 (Mo. Ct. App. 1990); and Lee v.
Grand Rapids Bd. of Educ., 384 N.W.2d 165 (Mich. Ct. App. 1986).
Cases in which courts have declined to adopt cross-
jurisdictional tolling include Casey v. Merck & Co., 722 S.E.2d
842 (Va. 2012); Ravitch v. Pricewaterhouse, 793 A.2d 939 (Pa.
Super. Ct. 2002); Maestas v. Sofamor Danek Group, Inc., 33
S.W.3d 805 (Tenn. 2000); Portwood v. Ford Motor Co., 701 N.E.2d
1102 (Ill. 1998); and Bell v. Showa Denko K.K., 899 S.W.2d 749
(Tex. Ct. App. 1995).
Those states declining to adopt cross-jurisdictional
tolling do so out of concern for forum shopping and delay. See
Portwood, 701 N.E.2d at 1104; Maestas, 33 S.W.3d at 808. On
forum-shopping, the Portwood court reasoned that cross-
jurisdictional tolling “may actually increase the burden on [a]
state’s court system, because plaintiffs from across the country
may elect to file a subsequent suit in that state solely to take
advantage of the generous tolling rule.” 701 N.E.2d at 1104;
see also Ravitch, 793 A.2d at 944 (citing Portwood, 701 N.E.2d
at 1104). On delay, the Portwood court noted that a forum
state’s court has no control over the work of another
jurisdiction’s courts, and that lengthening a forum state’s
statute of limitations during the pendency of an out-of-
jurisdiction class action could require forum states to
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ultimately entertain stale claims. 701 N.E.2d at 1104. The
Maestas court also viewed cross-jurisdictional tolling as a
threat to the forum state’s “power to adopt statutes of
limitations and exceptions to those statutes. . . .” 33 S.W.3d
at 809. Where a forum state’s statute is cross-jurisdictionally
tolled by a pending federal class action in particular, the
Maestas court additionally held that such tolling “would
arguably offend the doctrines of federalism and dual
sovereignty.” Id.
Those states adopting cross-jurisdictional tolling do so to
promote the “efficient utilization of judicial resources and
the reduction of costs to individual litigants,” which “are
among the principal purposes of both state and federal class
action rules.” Staub, 726 A.2d at 966; Stevens, 247 P.3d at
256. The Supreme Court of Ohio adopted cross-jurisdictional
tolling because it was “more important to ensure efficiency and
economy of litigation than to rigidly adhere” to its state
statutes of limitations. Vaccariello, 763 N.E.2d at 163. That
court acknowledged that the purposes of statutes of limitations
are to “put defendants on notice of adverse claims and to
prevent plaintiffs from sleeping on their rights.” 763 N.E.2d
at 162. The court stated, however, that even the United States
Supreme Court in Crown, Cork observed that “blind application of
statutes of limitations would frustrate ‘[t]he principal
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purposes of the class-action procedure –- promotion of
efficiency and economy of litigation.’” Id. (citing 462 U.S. at
349). Therefore, the Vaccariello court stated that “allowing
the filing of a class action in the [other jurisdiction] to toll
the statute of limitations in [a subsequent state action] does
not defeat the purpose” of the state statute of limitations,
because the first class action put the defendant “on notice of
the substance and nature of the claims against it” within the
limitations period.7 Id. Further, noting that the bulk of its
state class action rules is identical to the bulk of the [out-
of-jurisdiction] class action rules, the Vaccariello court held
that “a class action filed in [the other jurisdiction] serves
the same purpose as a class action filed in Ohio.” Id.
The Vaccariello court also did not consider the flood of
lawsuits feared by the Portwood court to be “a realistic
7
Of course cross-jurisdictionally tolling a state statute of limitations
as to a defendant named in the state action but not named in the first class
action would be unfair. Therefore, we agree with the ICA’s footnote 9, which
states:
Because notice to the defendant of the claim is one of the
underlying rationales supporting class action tolling, such
tolling does not apply to claims against a Defendant who
was not previously named as a defendant in Carcamo. From
the record, it appears that Defendants Pineapple Growers
Association of Hawaii, AMVAC Chemical Corporation, Del
Monte Fresh Produce N.A., Inc., and Del Monte Fresh Produce
(Hawaii) Inc. were not named as defendants in Carcamo, and
thus for this additional reason any tolling does not apply
to claims against these Defendants.
Patrickson, mem. op. at 13 n.9. See also Bell, 899 S.W.2d at 758 (declining
to adopt cross-jurisdictional tolling in any event, but observing that such
tolling would not apply to defendants who were not named as defendants in the
first class action).
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potential problem.” Vaccariello, 763 N.E.2d at 163. Rather,
the Vaccariello court held that cross-jurisdictional tolling
“merely allows a plaintiff who could have filed suit in [the
forum state] irrespective of the class action filed in [another
jurisdiction] to rely on that class action to protect her rights
in [the forum state].” Id. To do otherwise, that court held,
“would encourage all potential plaintiffs in [the forum state]
who might be a part of a class that is seeking certification in
[an out-of-jurisdiction] class action to file suit individually
in [the forum state’s] courts to preserve their [forum state]
claims should the class certification be denied.” Id. The
resulting “multiplicity of filings would defeat the purpose of
class actions. . . .” Id. The Superior Court of New Jersey’s
Appellate Division also considered the unfairness of disallowing
cross-jurisdictional tolling when it held that “a contrary rule
would reward defendants who caused a court to delay decision of
class action certification until the statute of limitations had
run. . . .” Staub, 726 A.2d at 966.
We find the reasoning of those states adopting cross-
jurisdictional tolling to be more persuasive, as well as
consistent with our existing precedent, namely Levi. In Levi,
we adopted the American Pipe and Crown, Cork class action
tolling rule and noted the following:
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One of the purposes of a class action suit is to prevent
multiplicity of actions, thereby preserving the economies
of time, effort and expense. This objective can be
effectively achieved only by allowing the proposed members
of a class to rely on the existence of a suit which
protects their rights.
67 Haw. at 93, 679 P.2d at 132. We therefore hold that a class
action filed in another jurisdiction will toll the applicable
Hawaii statute(s) of limitations.
2. The End of the Cross-Jurisdictional Tolling
Period
The next question we confront is, when did the cross-
jurisdictional tolling of our state statute of limitations end?
We are cognizant of the authority marshalled by the Defendants
that a majority of the federal courts hold that “the tolling
rule announced in [American Pipe] extends only through the
denial of class status in the first instance by the district
court.” Giovanniello, 726 F.3d at 107-08; see also Arivella,
623 F. Supp. 2d at 174-75 (“Most courts . . . also agree that
[class action] tolling ceases upon entry of an order denying
class certification in the trial court.” Citing this authority,
the Defendants argue that any tolling ended upon the Texas
district court’s July 11, 1995 order dismissing the
Carcamo/Delgado case for f.n.c. and all other pending motions as
moot. Therefore, argue the Defendants, Plaintiffs’ October 3,
1997 Complaint was untimely, having been filed beyond the two-
year statute of limitations in HRS § 657-7.
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Plaintiffs, on the other hand, focus on the language of the
July 11, 1995 order. They argue that the order’s paragraph
denying all other pending motions as moot was a “generic
housekeeping order,” that “did not even refer to a class
certification motion,” and “did not contain any discussion of
the requirements of class certification under federal Rule 23.”
The Plaintiffs also argue that any tolling ended at the earliest
on October 10, 19958, 90 days after the entry of the July 11,
1995 order, because the order did not take effect immediately;
instead, the order stated, “[N]o case will be dismissed until 90
days have elapsed after the entry of this Memorandum and Order.”
890 F. Supp. at 1367. Therefore, argue the Plaintiffs, their
October 3, 1995 Complaint was timely, having been filed days
before the two year statute of limitations in HRS § 657-7 ended.
They urge this court to “clarify the law to require that the
termination of class action tolling must be sufficiently clear
and unambiguous to put putative members of the class on notice
that limitations has begun to run against their claims and they
have an obligation to act.”
The Plaintiffs’ arguments are persuasive. While it is not
true that the July 11, 1995 order “did not even refer to a class
8
The Plaintiffs calculate the 90th day to be October 11, 1995, but it
appears that the 90th day was October 10, 1995.
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certification motion,”9 it is true that it “did not contain any
discussion of the requirements of class certification under
federal Rule 23.” The denial of class certification in the July
11, 1995 order was, as Plaintiffs argue, not express.
Therefore, we agree with the Plaintiffs that the July 11, 1995
order did not terminate class action tolling in a “sufficiently
clear and unambiguous” way in order to “put putative members of
the class on notice that” the Hawaii state statute of
limitations had begun to run against them.
Moreover, it would appear from the plain language of the
order that July 11, 1995 was not the date that the order itself
would take effect in any event. In the order, the Texas
district court stated that its dismissal of the cases would not
take effect for another 90 days:
The court concludes that the overwhelming majority of the
relevant sources of proof are more readily available to the
parties in the home countries of the plaintiffs and that
this factor weighs heavily in favor of dismissal.
Nevertheless, because foreign fora might not afford
plaintiffs as many opportunities for discovery as they
desire, to ensure that plaintiffs have access to evidence
located in the United States no case will be dismissed
until 90 days have elapsed after the entry of this
Memorandum and Order. During that time plaintiffs may
pursue expedited discovery against defendants under the
supervision of this court.
890 F. Supp. at 1367 (emphasis added). Further, the district
court’s affirmative statement that “no case will be dismissed
9
The record reflects that there was a pending class certification motion
in Carcamo, and the Texas district court was aware of it when it stated in
the July 11, 1995 order, “Defendants respond that while plaintiffs have
sought class certification in several of the pending actions, no classes have
been certified.” Delgado, 890 F. Supp. at 1368.
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until 90 days have elapsed after the entry of this Memorandum
and Order” is in tension with the more tentative “may be
dismissed” language of the provision dismissing all pending
motions as moot:
Other motions
In addition to defendant’s motion to dismiss for
f.n.c., a number of other motions are pending. Because
Delgado, Jorge Carcamo, Valdez, and Isae Carcamo may be
dismissed in 90 days, all pending motions in those cases
not otherwise expressly addressed in this Memorandum and
Order are DENIED as MOOT.
890 F. Supp. at 1375. (capitalization in original; emphasis
added). It would appear from the plain language of the July 11,
1995 order that, as of that date, there still remained a
possibility that the Carcamo/Delgado litigation might not be
dismissed; therefore, a related motion for class certification
might not become moot. Thus, as Plaintiffs argue, the July 11,
1995 order did not unambiguously signal to putative class
members of the need to act to protect their interests. It was
not until October 27, 1995 that the Texas district court filed
its judgment dismissing the Carcamo/Delgado cases that it could
be said with certainty that class certification was denied.
In order to prevent such confusion from arising in the
future, we hold that the pendency of a class action in another
jurisdiction operates to toll our state’s applicable statute(s)
of limitations until the court in our sister jurisdiction issues
an order expressly denying a motion for class certification (or
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expressly denying the last such motion, if there is more than
one motion). The July 11, 1995 order in this case was not an
express denial of class certification; therefore, July 11, 1995
is not the date our state statute of limitations began to run
again. Barring such an express order in this case, we hold that
the Texas district court’s October 27, 1995 final judgment
dismissing Carcamo/Delgado for f.n.c. clearly denied class
certification and triggered the resumption of our state statute
of limitations. The Plaintiffs’ Complaint, which was filed on
October 3, 1997, was therefore timely.
Finally, although the parties no longer pursue the issue of
whether the Abarca filing constituted an “opt-out” of the
Carcamo/Delgado class action, we note that cross-jurisdictional
tolling would also end upon a class member’s decision to opt-out
of a class action suit. In the present case, however, the
Abarca filing was not an opt-out of the Carcamo/Delgado class
action under the Hawaii Rules of Civil Procedure (“HRCP”) or the
Federal Rules of Civil Procedure (“FRCP”). Under both HRCP Rule
23(c)(2) (2011) and FRCP Rule 23(c)(2) (2009), once a court
determines that a class action can be maintained under
subsection (b)(3), then the court notifies class members that
they can opt out of the class by sending a request to the court.
See HRCP Rule 23(c)(2) (“In any class action maintained under
subdivision (b)(3), the court shall direct to the members of the
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class the best notice practicable under the circumstances . . .
advis[ing] each member that . . . the court will exclude the
member from the class if the member so requests by a specified
date. . . .”); FRCP Rule 23(c)(2) (“For any class certified
under Rule 23(b)(3), the court must direct to class members the
best notice that is practicable under the circumstances . . .
clearly and concisely stat[ing] in plain, easily understood
language . . . that the court will exclude from the class any
member who requests exclusion. . . .”)
In this case, the Texas district court had not certified
the Carcamo/Delgado class action; therefore, the opt-out
provisions of HRCP Rule 23(c)(2) and FRCP Rule 23(c)(2) were not
triggered. The Abarca filing was not an opt-out as envisioned
under those rules.
V. Conclusion
We hold that Hawaiʻi recognizes cross-jurisdictional
tolling. Cross-jurisdictional tolling ends when a court in our
sister jurisdiction issues an order expressly denying a motion
for class certification (or expressly denying the last such
motion, if there is more than one motion). Where there is no
such express order, cross-jurisdictional tolling ends when a
court in our sister jurisdiction enters final judgment
dismissing the class action. We note that cross-jurisdictional
tolling also ends when a class member opts out of the class
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pursuant to the class action rules of this state or a sister
jurisdiction.
In this case, the Plaintiffs’ June 1995 Abarca filing was
not an opt-out of the Carcamo/Delgado class action under FRCP
Rule 23(c)(2); therefore, it did not trigger the resumption of
our state’s statute of limitations. The Texas district court’s
July 11, 1995 order did not expressly deny the Carcamo motion
for class certification; therefore, the July 11, 1995 date did
not mark the resumption of our state’s statute of limitations.
The Texas district court did clearly dismiss the Carcamo/Delgado
class action by final judgment entered on October 27, 1995, thus
restarting our state’s two-year limitations period.
Consequently, Plaintiffs were required to file their Complaint
by October 27, 1997. The Plaintiffs filed their Complaint on
October 3, 1997; therefore, the Complaint was timely. As the
ICA held otherwise, its judgment is hereby vacated, as is the
final judgment of the circuit court, and this case is remanded
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to the circuit court for further proceedings consistent with
this opinion.
Sean M. Lyons /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Sidney K. Ayabe,
Calvin E. Young, /s/ Sabrina S. McKenna
Steven L. Goto, and
Michael L. Brem /s/ Richard W. Pollack
(admitted pro hac vice)
for respondent /s/ Michael D. Wilson
The Dow Chemical Company
Melvyn M. Miyagi,
Ross T. Shinyama,
Angela T. Thompson, and
Andrea E. Neuman
(admitted pro hac vice)
for respondent
Dole Food Company, Inc.
Melvyn M. Miyagi,
Ross T. Shinyama, and
Angela T. Thompson
for respondent
Pineapple Growers
Association of Hawaii
Judy A. Tanaka and
Maile Osika
for respondent
Occidental Chemical Corporation
Wendell H. Fuji and
Anthony F. Suetsugu
for respondent
Shell Oil Company
36