Eduardo Alvarado Chaverri v. Dole Food Company

• Court: Supreme Court of Delaware
• Decided: January 12, 2021
• Docket: 519, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

EDUARDO ALVARADO § CHAVERRI, et al., § No. 519, 2019 § Plaintiffs Below, § Court Below: Superior Court of Appellants, § the State of Delaware § v. § C.A. No. N12C-06-017 § DOLE FOOD COMPANY, INC., et § al., § § Defendants Below, § Appellees. §

Submitted: October 14, 2020 Decided: January 12, 2021

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices, constituting the Court en banc.

Upon appeal from the Superior Court. AFFIRMED.

Scott M. Hendler, Esquire (Argued), and Rebecca Webber, Esquire, Hendler Flores, PLLC, Austin, TX, and Andrew C. Dalton, Esquire, Dalton and Associates, P.A., Wilmington, DE, for Appellants.

Andrea E. Neuman, Esquire (Argued), Gibson Dunn & Crutcher LLP, New York, NY, William E. Thomson, Esquire, Gibson Dunn & Crutcher LLP, Los Angeles, CA, and Jennifer C. Wasson, Esquire, and Stephanie E. O’Byrne, Esquire, Potter Anderson & Corroon LLP, Wilmington, DE, for Appellees, Dole Food Company, Inc., Dole Fresh Fruit Company, Standard Fruit Company, and Standard Fruit & Steamship Company. Boaz S. Morag, Esquire, Cleary Gottlieb Steen & Hamilton LLP, New York, NY, and James W. Semple, Esquire, Cooch and Taylor, P.A., Wilmington, DE, for Appellee Del Monte Fresh Produce, N.A., Inc.

Adam V. Orlacchio, Esquire, and Brandon W. McCune, Esquire, Blank Rome LLP, Wilmington, DE, for Appellees, Chiquita Brands International, Inc., Chiquita Brands L.L.C., and Chiquita Fresh North America L.L.C.

Michael L. Brem, Esquire, Schirrmeister Diaz-Arrastia Brem LLP, Houston, TX, and Ryan D. Stottman, Esquire, and Barnaby Grzaslewicz, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE, for Appellee, The Dow Chemical Company.

Craig Stanfield, Esquire, King & Spalding LLP, Houston, TX, and Kelly E. Farnan, Esquire, Richards Layton & Finger, P.A., Wilmington, DE, for Appellee, Shell Oil Company.

Timothy Jay Houseal, Esquire, and Jennifer M. Kinkus, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, DE, for Appellee, Occidental Chemical Corporation.

John C. Phillips, Jr., Esquire, Phillips, Goldman & Spence, P.A., Wilmington, DE, for Appellee, AMVAC Chemical Corporation.

VAUGHN, Justice, for the Majority: I. INTRODUCTION

The Plaintiffs-Appellants worked on banana plantations in Costa Rica,

Ecuador, and Panama. They filed their complaint in this case in 2012, claiming

that while working on the plantations they suffered personal injuries from a pesticide

known as 1, 2, Dibromo 3, Chloropropane (“DBCP”). The Defendants-Appellees

are numerous companies alleged to have caused the Plaintiffs’ exposure to DBCP

and their resulting injuries. In 2013 the Superior Court dismissed the Plaintiffs’

complaint under what has sometimes been referred to as Delaware’s McWane

doctrine (the “Dismissal Order”). On December 31, 2018 the Plaintiffs filed a

motion to vacate the Dismissal Order under Superior Court Civil Rule 60(b)(6).

The Superior Court denied the Plaintiffs’ motion, finding that the motion was

untimely and the Plaintiffs failed to show extraordinary circumstances for vacating

the judgment. The Plaintiffs have appealed from that order. For the reasons that

follow, we have concluded that the Superior Court’s order denying the motion

should be affirmed.

II. FACTS AND PROCEDURAL HISTORY

A.

We set forth the facts and the extensive procedural history of this case to the

extent necessary to decide the appeal.

1 As just mentioned, the Plaintiffs’ claims arise from injuries allegedly caused

by exposure to DBCP while working on banana plantations in Costa Rica, Ecuador,

and Panama. 1 The Defendants are U.S. corporations that were involved in the

manufacture and distribution of DBCP or who owned and operated the banana farms

where the Plaintiffs worked.2

Litigation initially began in Texas state court in 1993 with the filing of a class

action on behalf of all persons allegedly exposed to DBCP between 1965 and 1990

(Carcamo v. Shell Oil Co.).3 The Plaintiffs were members of the class. The case

was removed to the United States District Court for the Southern District of Texas,

where it was consolidated with another DBCP case, Delgado v. Shell Oil Co.

(together, the “Texas Federal Action”).4 In 1995 the Texas Federal Action was

dismissed on grounds of forum non conveniens. The dismissal order included a

“return jurisdiction” clause, however, which provided that the actions could be

reinstated if the courts in the plaintiffs’ home countries refused to hear their claims.

Such turned out to be the case, and several of the original plaintiffs in the Texas

Federal Action moved to reinstate the action in the Texas district court pursuant to

1 Unless otherwise cited, the facts are drawn from the Superior Court opinion below, Chaverri v. Dole Food Co., Inc., 220 A.3d 913 (Del. Super. Ct. 2019). 2 Marquinez v. Dow Chem. Co., 183 A.3d 704, 706 (Del. 2018) (en banc) (the defendants in Marquinez are nearly identical to the Defendants in this this case). 3 See Delgado v. Shell Oil Co., 890 F. Supp. 1324 (S.D. Tex. 1995). 4 Id.

2 the return jurisdiction clause.5 For procedural reasons not relevant here, the Texas

district court remanded Carcamo to the Texas state court without ruling on the

reinstatement motion. 6 The Texas state court granted the plaintiffs’ motion to

reinstate the action. A subset of the original plaintiffs then again moved for class

certification in the Texas state court. On June 3, 2010 the Carcamo case ended

when the Texas state court denied class certification.7

A little over a month later, on July 21, 2011, Jose Rufino Canales Blanco, a

member of the failed Carcamo class, filed suit on behalf only of himself in the

Superior Court. Other members of the failed class, including the Plaintiffs in this

action, filed suits in the U.S. District Court for the Eastern District of Louisiana.

Those cases were consolidated into a single action (the “Louisiana Action”).8

In the Blanco case, the defendants moved for judgment on the pleadings,

asserting that Blanco’s case was barred by the statute of limitations.9 On May 31,

2012, the Superior Court judge assigned to the case indicated by letter to the parties

that he intended to deny the motion on the grounds that the proceedings in Texas

tolled the statute of limitations. The Superior Court followed up with an opinion

issued on August 8, 2012 that recognized cross-jurisdictional tolling and found that

5 See Rodriguez Delgado v. Shell Oil Co., 322 F. Supp. 2d 798, 801-02, 816-17 (S.D. Tex. 2004). 6 Id. at 817. 7 Carcamo v. Shell Oil Co., No. 93-C-2290 (Tex. Dist. Ct. Brazoria Cty. June 3, 2010). 8 Chaverri v. Dole Food Co., 896 F. Supp. 2d 556 (E.D. La. 2012). 9 Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *5 (Del. Super. Ct. Aug. 8, 2012).

3 Blanco’s complaint was filed within the statute of limitations. An interlocutory

appeal was then taken to this Court which presented a narrow certified question:

“Does Delaware recognize the concept of cross-jurisdictional tolling?” 10 This

Court answered the question in the affirmative. This Court’s opinion confined

itself to the certified question and did not make any factual determination as to when

the statute of limitations was tolled.11

Within 24 hours after the Superior Court judge assigned to Blanco indicated

that he would deny the defendants’ motion for judgment on the pleadings, Plaintiffs’

counsel filed three actions in Delaware. One was this case, filed on June 1, 2012.

The other two were Chavez v. Dole Food Company, Inc. and Marquinez v. Dow

Chemical Company, which were filed in the federal district court. The three suits

alleged the same or substantially the same DBCP claims as were asserted in the

Louisiana Action against the same or substantially the same defendants. Many of

the plaintiffs in all three of these cases were also plaintiffs in the Louisiana Action.

On August 2, 2012 the Defendants filed a motion to dismiss this case on

grounds of forum non conveniens because the complaint mirrored the one the

Plaintiffs filed in the Louisiana Action. The Plaintiffs opposed the Defendants’

motion on the basis that the Louisiana Action might be time-barred. The Plaintiffs

10 Dow Chem. Corp. v. Blanco, 67 A.3d 392, 394 (Del. 2013). 11 The Blanco case was ultimately dismissed by stipulation of the parties.

4 were correct. On September 17, 2012 the Louisiana district court dismissed the

Louisiana Action with prejudice under the Louisiana prescription statute.12 While

the motion to dismiss was still pending in Superior Court, the Fifth Circuit affirmed

the Louisiana district court’s dismissal of the Plaintiffs’ Louisiana Action.13

The Superior Court’s dismissal of this case came on November 8, 2013.14

Relying upon this Court’s decisions in McWane v. McDowell 15 and Lisa v.

Mayorga,16 the court concluded that dismissal on forum non conveniens grounds

was justified because “Plaintiffs' Louisiana Action was filed prior to the Delaware

Action. The Louisiana Action was filed in Louisiana District Court, which is a

court capable of prompt and complete justice. The two cases not only arise from

the same nucleus of facts, but they have identical parties and allegations.”17 The

Superior Court rejected the Plaintiffs’ contention that McWane and Lisa did not

apply because the Louisiana Action was no longer pending. The Plaintiffs

appealed, and on October 20, 2014 this Court affirmed the Superior Court’s

judgment of dismissal “on the basis of and for the reasons assigned by the Superior

12 See Chaverri v. Dole Food Co., 896 F. Supp. 2d 556, 571-72, 574 (E.D. La. 2012). 13 See Chaverri v. Dole Food Co., 546 F. App’x 409, 413-15 (5th Cir. 2013). 14 Chaverri v. Dole Food Co., Inc., 2013 WL 5977413 (Del. Super. Ct. Nov. 8, 2013). 15 263 A.2d 281 (Del. 1970). 16 993 A.2d 1042 (Del. 2010). 17 Chaverri, 2013 WL 5977413, at *2. The court stated the three prong McWane standard is met when “(1) there is a prior action pending elsewhere (2) in a court capable of doing prompt and complete justice, and (3) involving the same parties and the same issues.” Id. at *1 (citing McWane, 263 A.2d at 283).

5 Court.”18

B.

On December 28, 2018 Plaintiffs filed a Rule 60(b)(6) motion to vacate the

Dismissal Order. Plaintiffs argued that

Three groundbreaking rulings in Delaware—one by the Delaware Supreme Court and two by the Third Circuit Court of Appeals—reviewing decisions by the District Court of Delaware in similarly situated cases, have operated to make this Court’s November 2013 [Dismissal] Order inconsistent with those rulings. In the interest of justice, the Court should vacate the judgment to provide Plaintiffs with the same opportunity for a trial on the merits as their similarly situated counterparts whose cases are pending in Delaware federal court.19

The three decisions referred to involve the above-mentioned Marquinez and

Chavez cases.

In Chavez, the district court dismissed the plaintiffs’ claims under the federal

first-filed rule.20 The district court explained “[t]he first-filed rule is that when two

federal district courts have the same case, the court which has the first case is the

18 Chaverri v. Dole Food Co., 2014 WL 7367000 (Del. Oct. 20, 2014) (en banc) (ORDER). In footnote 78, the dissent criticizes our statement of the procedural history of the case as a “truncated version” which “lines up only the outer edges and corners of the puzzle and ignores the large mosaic in the middle.” The dismissal order properly focused on the Louisiana Actions. We believe that the dissent places undue emphasis on the procedural history preceding the Louisiana Actions. We remain satisfied that our statement of the procedural history is sufficient to explain our analysis and the result we reach. 19 App. to Appellant’s Opening Br. at A157-58 (Pls’ Mot. Vacate J. Rule 60(b)(6)). 20 Chavez v. Dole Food Co., 2012 WL 3600307, at *1-2 (D. Del. Aug. 21, 2012).

6 one that should decide the case.”21 The district court concluded that because the

plaintiffs had filed the Louisiana Action first, the Delaware case should be dismissed

with prejudice.

Initially, a Third Circuit panel affirmed the district court’s decision in a split

ruling. 22 A rehearing en banc was granted, and the Third Circuit reversed the

district court’s dismissal.23 It described the question whether the district court’s

dismissal with prejudice was an abuse of discretion as a question of first impression

in that circuit. It concluded “that, in the vast majority of cases, a court exercising

its discretion under the first-filed rule should stay or transfer a second-filed suit . . .

[and] [a] dismissal with prejudice will almost always be an abuse of discretion.”24

That Third Circuit decision is the first of the three Delaware decisions the Plaintiffs

refer to in their motion.

In the Marquinez case, the district court issued two orders. The first order

dismissed fourteen plaintiffs’ claims under the federal first-filed rule based on their

identical claims in the Louisiana Action.25 In the second order, the court decided

that tolling of the statute of limitations on the plaintiffs’ claims, which began when

the Texas class action was filed in 1993, ended, and the statute resumed running in

21 Id. at *1. 22 Chavez v. Dole Food Co., 796 F.3d 261 (3d Cir. 2015). 23 Chavez v. Dole Food Co., 836 F.3d 205 (3d Cir. 2016). 24 Id. at 220-21 (emphasis in original). 25 Marquinez v. Dole Food Co., Inc., 2013 WL 12309514, at *1 (D. Del. Sept. 19, 2013).

7 1995 when the Texas Federal Action was dismissed on grounds of forum non

conveniens. 26 The court then granted the defendants’ motion for summary

judgment against the remaining plaintiffs, finding Delaware’s statute of limitations

barred their claims.27 The Marquinez plaintiffs appealed, and the Third Circuit

certified a question to this Court asking whether class action tolling ended when the

Texas Federal Action was dismissed in 1995, and if it did not, when did it end.28

We answered the initial part of the question in the negative, and further

answered that “[c]lass action tolling ended when class action certification was

denied in Texas state court on June 3, 2010.”29 In reaching this conclusion, we

adopted the rule that “cross-jurisdictional class action tolling ends only when a sister

trial court has clearly, unambiguously, and finally denied class action status.” 30

Our answer to the certified question is the second decision referred to in the

26 Marquinez v. Dole Food Co., 45 F. Supp. 3d 420, 423 (D. Del. 2014). 27 Id. at 426. 28 Specifically, the Third Circuit certified the following question: Does class action tolling end when a federal district court dismisses a matter for forum non conveniens and, consequently, denies as moot “all pending motions,” which include the motion for class certification, even where the dismissal incorporated a return jurisdiction clause stating that “the court will resume jurisdiction over the action as if the case had never been dismissed for f.n.c.,” Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1375 (S.D. Tex. 1995)? If it did not end at that time, when did it end based on the procedural history set forth above? Marquinez v. Dow Chem. Co., 183 A.3d 704, 705 (Del. 2018) (en banc). The Delgado case cited in the Third Circuit’s certified question is the Texas Federal Action. 29 Id. at 705-06. 30 Id. at 711.

8 Plaintiffs’ motion.

After the Third Circuit received our answer to the certified question, it vacated

the district court’s orders and remanded the case for further proceedings consistent

with our answer to the certified question and its federal first-filed ruling in Chavez.31

That order is the third Delaware decision referred to in the Plaintiffs’ motion.

C.

The Superior Court’s denial of the Plaintiffs’ motion to vacate under Rule

60(b)(6) rests on two grounds. The court first held that the Plaintiffs’ motion was

untimely. The court “measure[d] the reasonableness of Plaintiffs’ delay from the

time that Plaintiffs’ ‘groundbreaking’ decisions issued to the time at which Plaintiffs

filed the Motion to Vacate,”32 and considered all circumstances surrounding the

delay. The court stated that the seven-month delay between the issuance of the

Third Circuit’s last mentioned order, dated May 29, 2018, and the filing of the

motion to vacate, was not reasonable under the circumstances. The court rejected

the Plaintiffs’ explanations for this delay, which were that “(1) Plaintiffs’ counsel

was overburdened by the other ongoing DBCP cases; and (2) preparing the motion

required significant time and research in light of the complex history of this case.”33

The court concluded that neither explanation was persuasive. The Plaintiffs’ Texas

31 Marquinez v. Dole Food Co., Inc., 724 F. App’x 131, 132 (3d Cir. 2018). 32 Chaverri, 220 A.3d at 921. 33 Id. at 922.

9 counsel in this case also represented the plaintiffs in the three cases the Plaintiffs

now rely upon and were therefore immediately aware of each ruling. The court

also reasoned that the complexity of the case was attributable to Plaintiffs’ counsel’s

own strategic decisions—designed in the court’s eyes, to “distribut[e] the risk to the

putative class”—to file actions in various jurisdictions across the country, including

in both the federal and state courts in Delaware.34 Therefore, the court held that the

Plaintiffs’ delay was unreasonable.

The court also ruled that even if the Plaintiffs’ motion was timely filed, it

“would fail on the merits because it does not present extraordinary circumstances.”35

In reaching this conclusion, the court first found that the class-action tolling decision

in Marquinez was not applicable because the Dismissal Order dismissed the

Plaintiffs’ claims under the McWane doctrine and did not address tolling. Second,

the court found that the cases involving the federal first-filed rule were not

34 Id. at 917. We are observing here that the Superior Court’s statement about distribution of risk was an inference the Superior Court drew from the record before it, an inference we do not find unreasonable. The dissent makes much of Plaintiffs’ counsel’s explanation at oral argument that the decision to split cases between the Superior Court and the federal district court were influenced by perceptions of court costs as between the two courts. This explanation was given as an answer to a question posed by one of the Justices at oral argument. In the argument before the Superior Court on the motion to reopen, Plaintiffs’ local counsel explained that there were “institutional costs that came with filing in federal court versus state court.” Local counsel further explained, however, that “the decision was made to split them, in part, on legal basis.” In explaining the “legal basis,” Plaintiffs’ local counsel stated that “[t]he legal reasoning being that there’s no active forum at the time that these were filed that was sure to hear their cases.” App. to Appellant’s Opening Br. at A088. 35 Chaverri, 220 A.3d at 922.

10 applicable. The court stated that while “the federal first-filed rule and Delaware’s

first-filed rule, as set forth under the McWane Doctrine, sound similar in name, they

are not the same in application.”36 The court explained that

First, the underlying rationales of each doctrine are distinct. The federal first-filed rule is a federal abstention doctrine based on “principles of comity and equity.”37 Those principles give way, however, when a “district court's duty to decide cases within its jurisdiction” becomes unavoidable due to the parties' inability to present their claims to another court. 38 Delaware's McWane Doctrine, by contrast, is an extension of Delaware's forum non conveniens law that is intended to promote “the orderly and efficient administration of justice” by permitting Delaware courts to either stay or dismiss a second-filed action out of deference to the forum in which the parties first filed.39 The doctrine seeks to avoid “the wasteful duplication of time, effort, and expense that occurs when judges, lawyers, parties, and witnesses are simultaneously engaged in the adjudication of the same cause of action in two courts.”40

The court then discussed how the principles differ in their application to

second-filed actions.

Second, and as a result of the above distinctions, the two doctrines differ in how they permit courts to treat second- filed actions. Under the federal rule, courts exercising discretion under the rule, “in the vast majority of cases,” should either stay or transfer the second-filed suit.41 That 36 Id. at 924. 37 Id. (quoting Equal Emp’t Opportunity Comm’n v. Univ. of Pa., 850 F.2d 969, 978 (3d Cir. 1988)). 38 Id. (quoting Chavez, 836 F.3d at 220). 39 Id. (quoting McWane, 263 A.2d at 282-83). 40 Id. (quoting McWane, 263 A.2d at 283). 41 Id. (quoting Chavez, 836 F.3d at 220).

11 requirement preserves the district court’s ability to hear the parties’ case in the event that the first-filed case is dismissed and the second-filed action “is not truly duplicative of the first.” 42 Such a requirement is consistent with the “district court’s duty to decide cases within its jurisdiction.”43 No such duty exists under the McWane doctrine where, as here, the plaintiffs chose to first file their claims in another jurisdiction. Instead, the McWane Doctrine permits dismissal of a plaintiff’s second-filed action to avoid inconsistent and conflicting rulings.44 Such a rule upholds the doctrine’s underlying policy of avoiding wasteful duplication of efforts.45

Finally, the court rejected the Plaintiffs’ contention that denying their motion

would produce inconsistent results.

D.

The Plaintiffs raise three claims on appeal. The first is that the Superior

Court committed an error of law and abused its discretion by failing to adhere to

established Delaware jurisprudence in analyzing the Plaintiffs’ assertion of

extraordinary circumstances under Rule 60(b)(6). The second is that the Superior

Court misapplied the law by giving preference to “finality” of decisions over

Delaware’s public policy favoring adjudication on the merits, and in so holding,

erred when finding the Plaintiffs’ request for relief under Rule 60(b)(6) untimely.

The third is that the Superior Court committed errors of law in a series of “non-

42 Id. (quoting Chavez, 836 F.3d at 220). 43 Id. (quoting Chavez, 836 F.3d at 220). 44 Id. (citing Lisa, 993 A.2d at 1048). 45 Id. (citing Lisa, 993 A.2d at 1048).

12 distinctions” to justify its disregard of Chavez and Marquinez.

In response to these claims, the Defendants contend that the Superior Court

did not abuse its discretion in denying the motion to vacate based on the Plaintiffs’

unreasonable delay, the Superior Court did not abuse its discretion in denying the

motion to vacate based on the Plaintiffs’ failure to set forth “extraordinary

circumstances,” and the Plaintiffs cannot obtain Rule 60(b)(6) relief as to defendants

they excluded from their prior appeal.

III. STANDARD OF REVIEW

Superior Court Rule 60 controls motions to vacate a judgment. It provides

that, “[o]n motion and upon such terms as are just, the Court may relieve a party or

a party's legal representative from a final judgment, order, or proceeding for . . . any

other reason justifying relief from the operation of the judgment.”46

“Relief under Rule 60(b)(6) is an extraordinary remedy which requires a

showing of ‘extraordinary circumstances.’”47 “The ‘extraordinary circumstances’

standard defines the words, ‘any other reason justifying relief,’ in Rule 60(b)(6) as

‘vest[ing] power in courts adequate to enable them to vacate judgments whenever

such action is appropriate to accomplish justice.’”48 This Court recognizes that,

46 Super. Ct. Civ. R. 60(b)(6). 47 Shipley v. New Castle County, 975 A.2d 764, 767 (Del. 2009) (citing Jewell v. Div. of Soc. Servs., 401 A.2d 88 (Del. 1979)). 48 Senu-Oke v. Broomall Condo., Inc., 2013 WL 5232192, at *1 (Del. Sept. 16, 2013) (TABLE) (alteration in original) (quoting Jewell, 401 A.2d at 90).

13 “[a] change in the decisional law may be the basis for reopening a judgment only

where the totality of circumstances is found to be extraordinary, such as when the

change in law has come about in a related case.” 49 “Because of the significant

interest in preserving the finality of judgments, Rule 60(b) motions are not to be

taken lightly or easily granted.”50

“We review a Superior Court order denying a motion to vacate a judgment

under that rule for abuse of discretion.”51 “An abuse of discretion occurs when a

court has . . . exceeded the bounds of reason in view of the circumstances, or . . . so

ignored recognized rules of law or practices so as to produce injustice.”52

IV. DISCUSSION

The Plaintiffs contend that this Court’s class-action tolling decision in

Marquinez and the Third Circuit’s “first-filed” ruling in Chavez were rulings on

matters of first impression in Delaware. They argue that the effect of these rulings

is that the similarly situated Marquinez and Chavez plaintiffs may proceed to trial

on the merits while the Plaintiffs in this case cannot. They continue that they

moved in Superior Court to reopen the case, in the interest of justice, because a

change in law that results in disparate treatment of similarly situated plaintiffs

49 Walls v. Delaware State Police, 1991 WL 134488, at *2 (Del. June 17, 1991) (TABLE). 50 Senu-Oke, 2013 WL 5232192, at *1 (quoting Wilson v. Montague, 2011 WL 1661561, at *2 (Del. May 3, 2011) (TABLE)). 51 Id. (citing Stevenson v. Swiggett, 8 A.3d 1200, 1204 (Del. 2010)). 52 Id. (quoting MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 633-34 (Del. 2001)).

14 qualifies as extraordinary circumstances.

This Court’s decision in Marquinez regarding class-action tolling and the

Third Circuit’s follow-up order establish that Marquinez, Chavez, and this case were

all filed within the applicable statute of limitations. The class-action tolling

decision, however, is of no help to the Plaintiffs because their case was not dismissed

on statute of limitations grounds. The question is whether the Plaintiffs are entitled

to relief from the Superior Court’s dismissal on forum non conveniens grounds.

The issue posed by that question is whether the alleged inconsistent treatment of the

Plaintiffs in this case and the plaintiffs in Marquinez and Chavez constitutes

extraordinary circumstances justifying relief from the Dismissal Order.

The Plaintiffs argue that the cases of In re Terrorist Attacks on Sept. 11, 2001,

Gondeck v. Pan American World Airways, Inc., Smith v. Smith, and Pierce v. Cook

& Co. support their position. In In re Terrorist Attacks, two sets of plaintiffs filed

suit in federal court seeking damages for injuries or deaths caused by the 9/11

attacks.53 In both cases, the defendants argued that they were immune from suit

under the Foreign Sovereign Immunities Act. In both cases, the plaintiffs argued

that the Act was not a defense because their claims fell within a “tort exception” in

the Act. In one case, In re Terrorist Attacks, the Second Circuit ruled that the “tort

exception” was not available to the plaintiffs, resulting in judgment for the

53 In re Terrorist Attacks on Sept. 11, 2001, 741 F.3d 353, 355 (2d Cir. 2013).

15 defendants. Three years later, in Doe v. Bin Laden, the Second Circuit overruled

itself and found that the “tort exception” was available to the plaintiffs, allowing

them to proceed with their suit. The plaintiffs in In re Terrorist Attacks moved for

relief from the judgment against them under Rule 60(b). The district court denied

the motion. The Second Circuit reversed, ruling that the motion for relief should

have been granted. It found that extraordinary circumstances existed because the

Doe v. Bin Laden plaintiffs were allowed to proceed while the In re Terrorist Attacks

plaintiffs were not “based on opposite interpretations of the same statutory

provisions.”54 Both suits rested “on a single underlying tort governed by the same

statute.”55

In Gondeck, two men were killed in the same accident.56 The United States

Department of Labor awarded death benefits to the families of both under the

Longshoremen’s and Harbor Workers’ Compensation Act. One federal district

court set aside the award to one family, which the Fifth Circuit affirmed. The

Supreme Court denied certiorari. A different federal district court affirmed the

award to the other family, which the Fourth Circuit affirmed. Although not citing

Rule 60, the Supreme Court vacated its prior denial of certiorari, granted certiorari,

and reversed the Fifth Circuit’s judgment.

54 Id. at 358. 55 Id. at 359. 56 Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25, 26-27 (1965).

16 Smith involved a change in the law concerning a military pension’s status as

marital property in property division proceedings.57 In 1981, the U.S. Supreme

Court in McCarty v. McCarty ruled that state courts could not order a division of

military retired pay as part of a distribution of marital property in a divorce

proceeding.58 Prior to McCarty, the law of Delaware was that pension rights were

marital property subject to property division. The Smith property division was

ordered in 1981 after McCarty was decided. Following the rule set forth in

McCarty, the Family Court did not divide the husband’s military pension as marital

property. In 1982, the Uniformed Services Former Spouses’ Protection Law was

passed by Congress and signed by the President. That law overruled McCarty by

declaring that, under certain circumstances, state courts could divide military

pensions as marital property. The wife in Smith then moved to reopen the property

division order in her case to consider division of the husband’s military pension,

which was valued at more than the other marital property combined. The Family

Court found that Congress, in passing the law, intended to give state courts the

freedom to undo any harm created by McCarty by removing it retroactively. In

granting the wife’s motion, the Family Court stated that “[t]o do otherwise would be

to carve out a category of people whose cases happened to be decided between June

57 Smith v. Smith, 458 A.2d 711, 712 (Del. Fam. Ct. 1983). 58 Id. at 712-13 (citing McCarty v. McCarty, 453 U.S. 210 (1981)).

17 25, 1981 and September 8, 1982 and deprive them of substantial property interests

which all other similarly-situated litigants have been awarded.”59

In Pierce, occupants of a motor vehicle driven by Pierce were killed or injured

in an accident with a vehicle driven by Edwards that occurred in Oklahoma. 60

Edwards was hauling wheat for defendant Cook. Pierce’s widow and minor

daughter brought suit in Oklahoma state court. On motion of Cook, the suit

brought by Pierce’s widow and minor daughter was removed to federal district court.

A passenger in the Pierce vehicle, Mike Davis, also brought suit in Oklahoma state

court. His suit was also removed to the federal district court. The Davis suit was

dismissed by the district court on the motion of Davis. The Davis suit was later re-

filed in Oklahoma state court by guardians for Davis, who was a minor. This

maneuver apparently destroyed diversity and prevented removal of the second Davis

suit to federal court. The federal district court granted Cook summary judgment

on the suit of Pierce’s widow and minor child on the basis of an Oklahoma Supreme

Court decision holding that a shipper, in that case Cook, was not liable for the torts

of an independent contractor, Edwards. The ruling was affirmed by the Tenth

Circuit on appeal. In the new Davis suit, the Oklahoma trial court granted summary

judgment to Cook on the basis of the same Oklahoma Supreme Court decision. On

59 Id. at 715. 60 Pierce v. Cook & Co., 518 F.2d 720, 721 (10th Cir. 1975).

18 appeal, the Oklahoma Supreme Court overruled its earlier decision and held that the

Davis case could proceed. Pierce’s widow and minor child then moved in the

Tenth Circuit under Rule 60(b) for relief from the judgment against them. The

Tenth Circuit granted relief because Oklahoma state law was controlling on the issue

which resulted in summary judgment against the widow and minor child, and that

controlling law had been changed by the Davis case.

None of these cases support the Plaintiffs’ argument. In In re Terrorist

Attacks, the different initial results in the cases were based on opposite

interpretations by the same federal court of the same federal statute. Nothing like

that has happened here. Gondeck involved conflicting interpretations of the same

federal statute between two federal circuit courts. Here there are no conflicting

interpretations of the same law between two courts applying that same law. Smith

involved a change in controlling law which would, if not remedied, result in litigants

in property division proceedings in the same court receiving materially unequal

treatment. By contrast, this case does not involve litigants in the same court being

treated differently because of a change in controlling law. In Pierce, both the

federal case and the state case were controlled by the same Oklahoma state law.

Chavez and this case are not controlled by the same state law. We disagree with

the dissent’s view that these cases support the Plaintiffs’ position. No case has

been brought to our attention where a state court dismissed a case under state law

19 principles and then vacated the dismissal because of a ruling by a federal court

applying federal law in a case in the federal system.

The Plaintiffs also argue that this Court’s 2017 decision in Gramercy

Emerging Markets Fund v. Allied Irish Banks, P.L.C. clarifies the McWane doctrine

and brings Delaware law into more of an alignment with Chavez. In Gramercy,

this Court ruled that where the action in Delaware is a second-filed action, and a

first-filed action in another jurisdiction has been dismissed on procedural grounds

before the Delaware action was filed, McWane is not the proper focus for analysis.61

In such a case, this Court reasoned, a motion to dismiss for forum non conveniens

should be analyzed using the Cryo-Maid factors without Cryo-Maid’s overwhelming

hardship overlay.62

In Aranda v. Philip Morris USA Inc., decided in 2018, this Court further

addressed scenarios which can present themselves in forum non conveniens disputes:

“a first- filed Delaware case with no case pending elsewhere (the Cryo-Maid test); a

second-filed Delaware case with another first-filed case pending elsewhere (the

McWane test);” and the Gramercy scenario where there is a second-filed Delaware

case after another jurisdiction has dismissed a first-filed action for reasons not going

61 See Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1036 (Del. 2017) (en banc). 62 Id.

20 to the merits of the case.63 We observed that “[a]ll these scenarios call upon the

courts to apply, in one form or another, the same forum non conveniens factors.”64

What differs is the strength of “background presumptions.”65 Where Delaware is

the first-filed action, the defendant must establish overwhelming hardship in order

for Delaware courts to grant dismissal. When Delaware is the second-filed action,

the courts “have greater discretion in determining whether a stay or dismissal is

proper.”66 In Aranda, we held that the availability of another forum, although a

factor to be considered, is not a threshold requirement under Delaware forum non

conveniens law. These clarifications or decisional changes in Gramercy and

Aranda are not extraordinary circumstances which would justify reopening the

judgment in this case.

This case involves the application of different legal principles by courts in

separate, sovereign jurisdictions. The Superior Court judge very ably explained

the distinction between the federal first-filed rule and Delaware’s forum non

conveniens law in her opinion denying the Plaintiffs’ motion, and how those

distinctions permit the federal courts and our state courts to treat second-filed actions

differently. What has happened here is a consequence of filing cases asserting the

63 Aranda v. Philip Morris USA Inc., 183 A.3d 1245, 1250 (Del. 2018) (en banc). 64 Id. at 1250. 65 Id. at 1251. 66 Id. (citing Gramercy, 173 A.3d at 1038).

21 same or similar claims in courts of different jurisdictions where different principles

of law may apply. By dividing the Plaintiffs’ claims between the federal and state

courts of Delaware, Plaintiffs’ counsel rendered them not similarly situated and

created a foreseeable risk that procedural rules of the two jurisdictions may lead to

different results. The developments in the Marquinez and Chavez federal cases

after this case was dismissed are not extraordinary circumstances justifying relief

from the Dismissal Order.

The dissent writes that Chavez contradicts what had been a foundational point

in the Dismissal Order. We disagree. The cases do not involve conflicting

application of the same law. Neither contradicts or undercuts the other.67

Since we find that the Plaintiffs have failed to show extraordinary

circumstances for vacating the Dismissal Order and the Superior Court did not abuse

its discretion in denying the Plaintiffs’ motion on that ground, there is no need for

us to address the Superior Court’s ruling that the motion was untimely or the

Defendants’ argument concerning defendants excluded from the Plaintiffs’ prior

appeal. Yet because the dissent’s strongest disagreement with the trial court’s

analysis appears to be centered on its treatment of the timeliness of the Plaintiffs’

67 In footnote 114, the dissent states that we “ignore[] the key holding in Chavez critical to this analysis, namely, that the prior EDLA dismissal did not exert a claim preclusive effect as a matter of federal common law.” The Superior Court’s Dismissal Order and its denial of the motion to reopen are based on state law, not federal common law. Comity does not require us to modify Delaware state law to conform to federal common law.

22 motion, we offer our views on that issue.

We find no fault with the Superior Court’s consideration, as one factor among

many and as we did in Schremp v. Marvel,68 of the “inflexible time” our rules of

court allow litigants when perfecting an appeal (30 days), or moving for a new trial

under Superior Court Rule 59(b) (10 days) or reargument in this Court (15 days).

To be sure, had that been the Superior Court’s sole consideration, we might view its

timeliness ruling differently. But the court, recognizing its obligation to consider

“all circumstances surrounding the delay,”69 did not so limit its analysis.

Not surprisingly, the Superior Court cited the two reasons for the delay offered

by the Plaintiffs—the burden of the many other DBCP cases counsel was handling

and the time and research required to prepare the motion— and found them to be

unpersuasive. We cannot say that the trial court’s conclusion exceeds the bounds

of reason, especially when we consider that Plaintiffs’ motion, which was filed seven

months after Chavez and fourteen months after Gramercy (arguably the most

relevant starting point for the timeliness analysis)70—contains barely five pages of

68 405 A.2d 119, 120 (Del. 1979). 69 Chaverri, 220 A.3d at 921. 70 The dissent makes the point that “the change in case law, as it relates to the preclusive effect of the EDLA’s dismissal, is extraordinary,” (See Dissent infra text accompanying notes 77-78), “particularly when viewed through the prism of our intervening decision in Gramercy.” See Dissent infra text accompanying notes 191-92. If that is so then one might reasonably argue that if any “change in case law” cast a doubt on the validity of the 2013 McWane dismissal order, it was the change effected by Chavez and Gramercy. And Gramercy was decided on October 17, 2017, 14 months before the Plaintiffs filed their Rule 60(b)(6) motion.

23 substantive text and only three unremarkable exhibits. The simplicity of the motion

itself cannot be squared with the Plaintiffs’ contention that it took seven months to

untangle and explain the procedural history of this case in the motion.71

And finally, we appreciate the dissent’s concern that the complexity of the

case that arguably contributed to the delay was in large part the product of the

“extraordinary resistance exerted by the defendants over three decades.”72 But it

was not improper—or, for that matter, unfounded—in our view for the Superior

Court to comment on how the Plaintiffs’ strategic choices are at least a partial cause

of their present predicament. In sum we conclude that the Superior Court’s finding

that the Plaintiffs’ delay in filing the motion to vacate the then six-year-old judgment

of dismissal was not an abuse of discretion.

V. CONCLUSION

Ultimately, the question is whether the Superior Court abused its discretion in

denying the Plaintiffs’ motion to reopen the judgment as untimely and for failure of

the Plaintiffs to show extraordinary circumstances. As we recently observed, when

we review a trial court for abuse of discretion, “[t]he question is not whether we

agree with the court below, but rather [whether] we believe ‘that the judicial mind

71 Likewise, Plaintiffs’ counsel’s suggestion at oral argument that the work related to the motion necessitated the hiring of a new lawyer (See Dissent infra text accompanying notes 167-68) is hard to square with the brevity of the motion. 72 See Dissent infra text accompanying notes 158-59.

24 in view of the relevant rules of law and upon due consideration of the facts of the

case could reasonably have reached the conclusion of which complaint is made.’”73

Applying that standard, we find that there was no abuse of discretion. We therefore

affirm the judgment of the Superior Court.

73 In re Asbestos Litig (Shaw v. American Friction), 228 A.3d 676, 681 (Del. 2020) (quoting Pitts v. White, 109 A.2d 786, 788 (Del. 1954)).

25 VALIHURA, Justice, dissenting:

In this suit, workers on overseas banana plantations (“Farmworkers”) accuse a

group of American companies of manufacturing or using a pesticide while concealing its

toxicity and failing to take precautions or warn them of the danger. They have sought

redress in multiple fora. In 2013, the Superior Court dismissed their suit here in Delaware

based upon forum non conveniens, following the dismissal of a similar suit in the Eastern

District of Louisiana (“EDLA”). This Court affirmed the Superior Court’s dismissal.

In dismissing the case, the Superior Court deferred to the EDLA ruling that this suit

was time-barred. Based on that premise, and its assumption that the Eastern District’s

judgment had preclusive effect, the Superior Court correctly applied our law as it then

existed, namely, the ‘McWane standard’ for forum non conveniens.74 But in 2016, the

Third Circuit, in a related case, disavowed the preclusive power of the EDLA’s dismissal.

Thus, the Third Circuit’s ruling, although not binding on our state courts, contradicts what

had been a foundational point in the Superior Court’s dismissal. Subsequently, this Court

in 2017 held in Gramercy that McWane’s discretionary standard, tilted in favor of

defendants, would not apply where the dismissal of the prior filed action lacked preclusive

effect.75 Perhaps because the parties below did not focus on Gramercy, the Superior Court

74 See Chaverri v. Dole Food Co. (Chaverri III), 2013 WL 5977413, at *2 (Del. Super. Nov. 8, 2013), aff’d, 2014 WL 7367000 (Del. Oct. 20, 2014) (“Plaintiffs’ Delaware Action meets the three prongs of the McWane test and must be dismissed” because the doctrine applies “after a first filed action is adjudicated to conclusion in a court of competent jurisdiction.”). The Superior Court also observed that the EDLA action and the Chaverri case pending before it “not only arise from the same nucleus of facts, but they have identical parties and allegations.” Id. The plaintiffs in the Superior Court case are foreign nationals from Costa Rica, Panama, and Ecuador. 75 Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1040 (Del.

26 was of the view that, “[n]o change in the law governing the McWane Doctrine has occurred

since the Court issued the November 13 Dismissal Order.” 76 But Gramercy did add an

important clarification to the McWane doctrine. Following Gramercy, the Marquinez

decision in 2018 triggered the disparate treatment of the Delaware plaintiffs by allowing

the federal Delaware plaintiffs to proceed while the plaintiffs in Superior Court could not.77

Based on the Third Circuit’s ruling in Chavez, and the Marquinez decisions, the

Farmworkers on December 31, 2018 moved to reopen the forum non conveniens dismissal

under Superior Court Rule 60(b)(6). The Superior Court refused, holding that any change

in case law was not controlling, and that the plaintiffs had waited unreasonably long to file

their motion.

I believe that the change in case law, as it relates to the preclusive effect of the

EDLA’s dismissal, is extraordinary under the highly unique circumstances here, and that

the Superior Court judgment should be reopened. Absent vacatur with remand to the

Superior Court, these plaintiffs will be prevented from having their case heard on the

merits, despite having pursued their rights vigilantly for more than a quarter of a century

in multiple states and countries. That injustice is magnified as they are now being treated

2017) (“If the prior lawsuit is no longer pending, absent an unusual situation such as Lisa’s where the Delaware action was solely brought to facilitate recovery in the prior action, McWane falls out of the calculus. The fact that the prior action was dismissed may, of course, have great relevance. But that is because principles of preclusion and stare decisis might dictate dismissal.”). 76 Chaverri v. Dole Food Co. Inc. (Chaverri V), 220 A.3d 913, 924 (Del. Super. 2019). 77 The Chavez plaintiffs and the Farmworkers here were both among the consolidated plaintiffs in the Eastern District suit. See Supp. Cert. to Supp. Br., ex. A, Chaverri v. Dole Food Co., Inc. N12C-06-017 ALR (Del. Super. Sept 11, 2013) (D.I. 74) (Civil docket for the Eastern District case, 2:11-cv-01289-CJB-KWR, dated Sept. 10, 2013).

27 differently from similarly situated plaintiffs whose cases followed nearly identical

procedural paths, but who filed in a federal courthouse just blocks up the street. Further,

in Marquinez, the Third Circuit certified to this Court a question of Delaware law, and

reversed its own lower federal court out of deference to our ruling. Comity between

sovereigns weighs in favor of us showing the same respect to the Third Circuit now, where

the Third Circuit has determined a question of federal law differently than the

determination previously made by the Superior Court, and where the impact of that

determination means that the federal plaintiffs can now proceed and the Superior Court

plaintiffs cannot. These decisional changes in this unique, factually connected case do

indeed constitute extraordinary circumstances. Accordingly, I respectfully dissent.

I.

Farmworkers allege in their Superior Court complaint that they worked on banana

plantations in Costa Rica, Ecuador, and Panama where they were exposed to nematocide

dibromochloropropane (“DBCP”) in the course of their work.78 They further allege that

Appellees Shell Oil Company, the Dow Chemical Company, the Occidental Chemical

78 Compl. at ¶¶ 125–57, Chaverri v. Dole Food Co., N12C-06-017 ALR (Del. Super. June 1, 2012). The Majority says that it is setting forth “the facts and the extensive procedural history of this case to the extent necessary to decide this appeal.” Maj. Op. at 1. Its truncated version of the procedural history implies that it does not deem the omitted parts of that history (which is a good deal of it) relevant. Although the Majority agrees with me that “all circumstances surrounding the delay” should be considered, Maj. Op. at 23, it lines up only the outer edges and corners of the puzzle and ignores the large mosaic in the middle. Rule 60(b) is an equitable mechanism for relief and context matters. The context includes a fuller account of the plaintiffs’ procedural trek through the judicial system. The more inclusive description reveals that the Majority’s suggestions that plaintiffs engaged in unreasonable delay and tactical risk-splitting are hard to square with the full picture.

28 Corporation, and AMVAC Chemical Corporation (“Manufacturers”) developed and

manufactured DBCP,79 and that the remaining Appellees80 (“Plantations”) employed it on

their banana plantations, or are the parent companies or successors in interest to the firms

who did.81

The Farmworkers allege that the Manufacturers and Plantations knew about the

health hazards DBCP posed, but sold and deployed it without warning the Farmworkers or

taking the appropriate precautions. 82 The Farmworkers claim that as a result of their

exposure, they have suffered numerous adverse health effects.83 All allege compromised

fertility, while the individual plaintiffs allege a variety of health complaints, including renal

and ocular problems, liver disease, and cancer.

In 1993, a number of plaintiffs claiming injuries from DBCP exposure on farms in

various countries filed a putative class action in Texas state court.84 One of the Plantations

impleaded a company partially owned by the Israeli government and alleged that it was the

true manufacturer. That foreign firm removed the case to federal court in the Southern

District of Texas under the Foreign Sovereign Immunities Act (the “FSIA”).85 There, the

79 Compl. at ¶ 44, 61, 78, 84. 80 Chiquita Brands International, Inc.; Chiquita Brands LLC; Chiquita Fresh North America, LLC; Del Monte Fresh Produce NA Inc.; Dole Food Co. Inc.; Dole Fresh Fruit Company; Standard Fruit Company; and Standard Fruit and Steamship Company. 81 Id. at ¶¶ 95–101, 106, 107, 109–14. 82 Id. at ¶ 181. 83 Id. at ¶¶ 125–57. 84 Id. at ¶ 158. Four separate actions were filed in Texas state court: Delgado v. Shell Oil Co.; Jorge Carcamo v. Shell Oil Co.; Valdez v. Shell Oil Co.; and Isae Carcamo v. Shell Oil Co. 85 Delgado v. Shell Oil Co. (Delgado I), 890 F.Supp. 1324, 1336 (S.D. Tex. 1995). FSIA applies

29 defendants sought dismissal on forum non conveniens grounds contending that the balance

of the relevant private and public interests points clearly toward trial in the plaintiffs’ home

countries.

Along with that motion, those defendants also sought an injunction prohibiting

further DBCP litigation elsewhere in the United States.86 Fearing that the District Court

might grant a broad injunction, thousands of DBCP plaintiffs, including some of the

Farmworkers, filed another putative class action in Florida state court.87 The defendants

in that suit removed the case to the District Court for the Middle District of Florida.88

On July 11, 1995, the Texas District Court concluded that because the Israeli entity

was a foreign sovereign, and because it had waived its foreign sovereign immunity, its

presence conferred federal subject matter jurisdiction over the entire controversy.89 It also

conditionally granted dismissal for forum non conveniens, but that order included a

provision (“Return Clause”) by which a plaintiff, following a final dismissal for lack of

in civil cases in which a foreign sovereign nation is a party. FSIA was originally enacted as Pub. L. 94-583, 90 Stat. 2891 [94th Cong., 2d Sess., Oct. 21, 1976]. If an action is brought in state court and a party is a foreign sovereign nation or instrumentality thereof, such nation or instrumentality may remove the action to federal court, even if the claims arise only under state law. 28 U.S.C. §§ 1441(d), 1603(a). This was the second attempt at removal in the Texas litigation. The District Court had remanded after the first removal, rejecting a Manufacturer’s claim that ‘arising under’ jurisdiction existed on the basis of federal preemption of the causes of action. Rodriguez v. Shell Oil Co., 818 F.Supp. 1013, 1018 (S.D. Tex. 1993). 86 Blanco v. AMVAC Chem. Corp. (Blanco I), 2012 WL 3194412, at *2 (Del. Super. Aug. 8, 2012) (reciting the DBCP procedural history). 87 Chaverri v. Dole Food Co. (Chaverri I), 896 F.Supp.2d 556, 562 n.14 (E.D. La. 2012). 88 Id. at 562. 89 See Delgado I, 890 F.Supp. at 1340 (noting the Israeli firm’s waiver of sovereign immunity and personal jurisdiction defenses).

30 jurisdiction in a foreign country, could return and, upon proper motion, “the court will

resume jurisdiction over the action as if the case had never been dismissed for f.n.c.”90

In the July 1995 decision, the Texas District Court also enjoined the plaintiffs there,

and “anyone acting in active concert or participation” with them from filing additional

DBCP cases.91 Because that injunction was not as broadly worded as the DBCP plaintiffs

had initially feared, they voluntarily dismissed the Middle District of Florida case the

following day. 92 On October 27, 1995, the court entered its Final Judgment which

included an injunction that permanently enjoined the plaintiffs, intervenors, and others

from commencing actions based on other DBCP-related claims.93

The Texas plaintiffs appealed this dismissal, and also promptly pursued claims in

the courts of their home countries, including in Costa Rica.94 Asserting that Costa Rica’s

courts disclaimed jurisdiction, the Texas plaintiffs sought to revive the Texas suit in 1996

90 Delgado I, 890 F.Supp. at 1375. See also Robinson v. TCI/US W. Comm. Inc., 117 F.3d 900, 907 (5th Cir. 1997) (failure to include a return jurisdiction clause in an f.n.c. dismissal constitutes a per se abuse of discretion); Delgado v. Shell Oil Co. (Delgado II), 322 F.Supp.2d 798, 807 (S.D. Tex. 2004) (“The Fifth Circuit’s requirement that f.n.c. dismissals contain return jurisdiction clauses, and its explanations of the reasons for this requirement, make it clear that return jurisdiction clauses are intended to ensure that cases subject to those dismissals remain subject to the dismissing court’s jurisdiction.”). 91 Delgado I, 890 F.Supp. at 1376. 92 See Chaverri I, 896 F.Supp.2d at 562 n.14 (noting that the Middle District of Florida suit was dismissed the day after the Texas court limited the injunction to only the named plaintiffs in the Texas litigation, rather than the entire putative class). 93 Delgado II, 322 F.Supp.2d at 801 (citing to Delgado v. Shell Oil Co., C.A. No. H-94-1337 Mem. Op. (Docket Entry 493) (S.D. Tex. Mar. 15, 2004)) (reciting case history). 94 Id. at 801–02.

31 while their appeal of the forum non conveniens judgment was still pending.95 The District

Court refused to reinstate the case before the Fifth Circuit ruled.96 On October 19, 2000,

the Fifth Circuit affirmed the District Court’s decisions on both removal and judgment

concluding that the Israeli entities were “foreign states” under the FSIA. On April 10,

2001, the United States Supreme Court denied certiorari.97 By early February 2002, the

parties in Texas submitted a joint status report urging the court to defer ruling on plaintiffs’

motion for reinstatement pending the Supreme Court’s decision on a petition for certiorari

filed in a Ninth Circuit case.98

On April 22, 2003, the United States Supreme Court resolved a circuit split, and

siding with the Ninth Circuit, it ruled that the Israeli entities, as indirect subsidiaries of the

State of Israel, were not instrumentalities of Israel under the FSIA at any time, and thus,

they were not capable of conferring subject matter jurisdiction on the federal district

court.99

95 Id. 96 Id. at 802. 97 Delgado v. Shell Oil Co. (Delgado III), 231 F.3d 165, 176, 182–83 (5th Cir. 2000), cert. denied 532 U.S. 972 (2001). 98 Delgado II, 322 F.Supp.2d at 802. The Ninth Circuit held in Patrickson v. Dole Food Co., 251 F.3d 795, 808 (9th Cir. 2001) that the Israeli entities were not instrumentalities of a foreign state and therefore there was no federal subject matter jurisdiction over the cases in which these entities had been named as third-party defendants. 99 Dole Food v. Patrickson, 538 U.S. 468, 477, 123 S.Ct. 1655, 1662 (2003). Because Israel did not own a majority of shares in the subsidiary at issue, the Supreme Court held that those subsidiaries were not foreign instrumentalities, and therefore, the defendant could not invoke FSIA for purposes of removal. 538 U.S. at 477–78.

32 On May 13, 2003, the Texas plaintiffs and intervenors filed a motion to vacate the

final judgment and injunction issued by the Southern District of Texas, and sought to have

the case remanded. In a March 15, 2004 ruling, the Southern District of Texas vacated its

previous injunction preventing the named plaintiffs from bringing or intervening in any

DBCP-related litigation “because it has prospective effect that denies plaintiffs a day in

court,” but it denied the request to vacate its forum non conveniens dismissal.100 In June

2004, that court remanded the matter back to Texas state courts to decide the reinstatement

motion.101 In 2006, the Texas state court granted the motion to reinstate and allowed the

plaintiffs and intervenors to file an eighth amended putative class action complaint.102 The

Texas defendants removed the case a third time, claiming the Class Action Fairness Act

conferred federal jurisdiction.103 The Southern District of Texas rejected this argument,

and, finding no basis for federal jurisdiction, remanded the case back to Texas state

courts.104 The parties agree that Texas state courts denied class certification on June 3,

2010.105

100 Delgado v. Shell Oil Co., C.A. No. H-94-1337 Mem. Op. (Docket Entry 493) (S.D. Tex. Mar. 15, 2004). 101 Delgado II, 322 F.Supp.2d at 813, 817. 102 See In re Standard Fruit Co., 2005 WL 2230246, at *1 (Tex. App. Sept. 13, 2005) (denying Plantations petition for a writ of mandamus to the Texas state trial court to reverse its decision to revive the suit). 103 Chavez v. Dole Food Co., Inc., 836 F.3d 205, 212 (3d Cir. 2016) (en banc) (citing Carcamo v. Shell Oil Co., No. 09–cv–258 (KMH) (S.D. Tex. Dec. 18, 2009)). 104 Id. 105 Op. Br. at 3; Ans. Br. at 7. The trial court cites to this decision as Carcamo v. Shell Oil Co., No. 93-C-2290 (Tex. Dist. Ct. Brazoria Cty. June 3, 2010).

33 After that denial, individual DBCP litigants filed a multitude of individual cases in

various courts in the United States. Because of the passage of time, all of the DBCP cases

were potentially time-barred. In order for the DBCP plaintiffs’ individual suits to survive

motions on the statute of limitations, they would need to find a jurisdiction which would

toll the applicable limitations period for the time the Texas motion for class certification

was pending.

In earlier cases, the United States Supreme Court had held that in federal courts

considering federal causes of action, “the commencement of a class action suspends the

applicable statute of limitations as to all asserted class members of the class who would

have been parties had the suit been permitted to continue as a class action.” 106 That so-

called ‘intra-jurisdictional tolling’ continues until class certification is denied. 107 To

survive anticipated motions to dismiss on the basis of the applicable statutes of limitations,

plaintiffs needed to find a jurisdiction which would both adopt the federal rule on intra-

jurisdictional tolling and extend it to toll their own statutes of limitations for plaintiffs who

106 Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553–554 (1974) (holding that, “the commencement of [a] class suit tolls the running of the statute [of limitations] for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.”). 107 Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983). In Crown, Cork & Seal Co., the Supreme Court clarified that the filing of a class action tolls the statute of limitations as to all asserted members of the class, not just as to intervenors. Thus, tolling applied to those members of the putative class who, following the denial of class certification, prefer to intervene and those who prefer to file individual actions. Specifically, the Court stated that, “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied,” and then, “[a]t that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id.

34 are putative members of classes in lawsuits in other jurisdictions, “cross-jurisdictional

tolling.”

Jose Blanco was among the DBCP plaintiffs filing individual suits following Texas

court’s denial of class certification, and he filed suit in the Delaware Superior Court in July,

2011.108 The Farmworkers, among others, filed the Eastern District suit in the EDLA in

late May and early June of the same year.109 At that time, neither Louisiana nor Delaware

had ruled on whether they recognized cross-jurisdictional tolling.110

In both Louisiana and Delaware, the defendants sought to dismiss the case as

time-barred.111 In each, the corresponding plaintiffs sought to invoke cross-jurisdictional

tolling. Recognizing that the same dilemma of finding a forum which would recognize

cross-jurisdictional tolling applied to every other potential DBCP plaintiff from the

108 See generally Blanco I, 2012 WL 3194412. 109 Chaverri I, 896 F.Supp.2d 556 at 559. The locations of these filings, in Louisiana and Delaware, make sense since the Port of New Orleans is a major hub in the banana trade where many of the Plantations and Manufacturers have significant operations. Oral argument video 11:19 – 12:20. https://livestream.com/accounts/ 5969852/events/9319197/videos/212100209/player. Almost all of the Manufacturers and Plantations are Delaware entities. Compl. ¶¶ 4–16. 110 The Court of Chancery adopted the federal intra-jurisdictional tolling rule not long after Blanco filed in the Superior Court. Dubrof v. Wren Holdings, LLC, 2011 WL 5137175, at *13 (Del. Ch. Oct. 28, 2011). 111 Because Louisiana law is based on the civil law rather than the common law, in lieu of a statute of limitations that state has a ‘liberative prescription.’ See LSA-C.C. Art. 3447 (“Liberative prescription is a mode of barring of actions as a result of inaction for a period of time.”). The two legal doctrines are conceptually similar, but whereas statutes of limitations “are merely procedural bars to the enforcement of obligations, civilian prescriptive periods act to extinguish the civil [i.e. legal] obligation to which they apply.” Eaglin v. Eunice Police Dep’t, -- - So.3d ---, 2018 WL 3154744, at *4 (La. June 27, 2018) (citing La. Health Serv. & Indem. Co. v. McNamara, 561 So.2d 712, 718 (La. 1990)) (bracketed text in the original).

35 putative Texas class, the Superior Court immediately informed the parties in Blanco, in a

May 31, 2012 letter, of an intent to deny the defendants’ motion before issuing, at a later

date, a full written opinion. The letter, in effect, invited other plaintiffs to file in Delaware

Superior Court because Delaware law recognized the concept of cross-jurisdictional

tolling.112

Not surprisingly, immediately after the Superior Court issued that letter, and while

the dispositive motion based on Louisiana’s time bar remained pending in the EDLA suit,

the Farmworkers filed suit in the Delaware Superior Court. At the same time, other

plaintiffs in the EDLA suit filed in the District of Delaware, later consolidated into the

Chavez action.113 The Chavez plaintiffs and Farmworkers share the same counsel, but

were split between Delaware Superior Court and the Delaware federal court out of concern

that certain litigation costs would become prohibitively expensive in Superior Court.114

112 See Blanco I, 2012 WL 3194412 at *6 n.37 (noting that, “[t]he [Superior] Court recognized, and counsel confirmed at the hearing on the motion, that this action could affect other plaintiffs’ decision on where to file suit. Because the two-year statute of limitations expired on June 3, 2012, the Court notified counsel, by letter, that it intended to deny defendants’ motion. In particular, the Court informed the parties that the prior class action had tolled plaintiff’s statute of limitations.”). 113 Chavez, 836 F.3d at 213–14. Still other EDLA plaintiffs filed in the District of Delaware on June 1, 2012 as well, but were consolidated into the Marquinez litigation instead of Chavez. Marquinez v. Dole Food Co. (Marquinez IV), 2020 WL 1474803, at *1 (D. Del. Mar. 26, 2020). 114 The Majority attributes the Farmworkers decision to file in both state and federal court to a strategic decision “designed in the court’s eyes to ‘distribute the risk to the putative class.’” Maj. Op. at 10. However, counsel was asked directly by the Court to explain the decision to file in both courts. As counsel explained: “Given the number of plaintiffs I represented, my co-counsel at the time. . . advised me that the cost of managing litigation for so many plaintiffs in the state of Delaware could become prohibitive. . . [he] advised me the year prior the special master assigned to the asbestos litigation had assessed over $100,000 in fees to the plaintiff. In that case it could be spread out among different law firms, but I was

36 The Manufacturers and Plantations worked to shut down both of these actions.

They moved to dismiss the Superior Court action on forum non conveniens grounds,115 and

to dismiss the District of Delaware action under the federal first-filed rule.116 The District

of Delaware granted dismissal.117 Both of these dismissal motions relied on the existence

of the prior-filed EDLA litigation.

Meanwhile, the EDLA dismissed the Farmworkers’ case with prejudice as time-

barred.118 Applying Louisiana law, the District Court assumed that Louisiana would adopt

cross-jurisdictional tolling, but that this would toll the suit only until the Texas forum non

the only lawyer with these cases and I feared being confronted with costs that would be prohibitive. And so I filed 30 cases in the state court of Delaware where I believed the issues had already been resolved, and then the balance of the cases in federal court where I did not believe I would be confronted with the same kind of costs because of the U.S. magistrate system that provides the same kind of oversight that the appointed special master does.” Although the Majority’s assumed reason implies an element of strategic forum shopping, I have no reason to doubt the veracity of counsel’s explanation, the soundness of the Third’s Circuit’s explicit refutation of any suggestion of forum shopping by the plaintiffs, or the Superior Court’s own identification of the defendants as the one who engaged in “repeated forum shopping removals and technical dismissals.” See infra n.165. Oral argument video 17:10 – 18:16. https://livestream.com/accounts/5969852/events/9319197/ videos/212100209/player. Plaintiffs’ counsel further explained to this Court: Mr. Hendler: I respectfully submit that it wouldn’t have made sense to go to federal court except for the cost consideration, which I feared was going to be prohibitive for a small two lawyer firm like my own to bear, and so that’s the only reason I made that decision. . . . Oral argument video: 46:28 – 46:51. https://livestream.com/accounts/5969852/events/9319197/videos/212100209/player. 115 Chaverri III, 2013 WL 5977413 at *1. 116 Chavez, 836 F.3d at 214. 117 Chavez v. Dole Food Co., 2012 WL 3600307, at *2 (D. Del. Aug. 21, 2012). 118 Chaverri I, 896 F.Supp.2d at 574.

37 conveniens dismissal in 1995.119 The Farmworkers appealed, but while that appeal was

pending, Louisiana state courts rejected cross-jurisdictional tolling entirely. 120 The

Louisiana Supreme Court reasoned that a state law establishing a tolling rule for class

actions provided for intra-jurisdictional tolling only. 121 Thereafter, the Fifth Circuit

affirmed the EDLA’s dismissal.122

While that was occurring, the Blanco defendants sought interlocutory review from

this Court of the Superior Court’s decision to recognize cross-jurisdictional tolling through

the June 2010 class certification ruling. The Superior Court certified the appeal in the

form of a single certified question: whether Delaware recognizes cross-jurisdictional

tolling.123 In 2013, this Court answered in the affirmative.124

Following these proceedings, in November 2013, the Superior Court decided the

question of the Manufacturers’ and Plantations’ motion to dismiss Farmworkers’ Chaverri

119 Chaverri I, 896 F.Supp.2d at 568–69. 120 Quinn v. La. Citizens Prop. Ins. Corp., 118 So.3d 1011, 1020 (La. 2012). 121 See id. (“After examining the words of the article, we find, therefore, that the plain language of La. C.C.P. art. 596 dictates that the suspension of prescription provided therein applies only to ‘petition[s] brought on behalf of a class’ in the state courts of Louisiana.”). 122 Chaverri v. Dole Food Co. (Chaverri IV), 546 F. App’x 409, 414 (5th Cir. 2013) (per curiam) (unreported case). The EDLA dismissal was expressly “with prejudice.” Chaverri I, 896 F.Supp.2d at 574. The Fifth Circuit did not discuss prejudice, but affirmed the EDLA without qualification. 123 Blanco v. AMVAC Chem. Corp. (Blanco II), 2012 WL 5215301 (Del. Super. Sept. 18, 2012). The Superior Court declined to certify an appeal of its ruling that the 1995 forum non conveniens dismissal ended tolling. Id. 124 See Dow Chem. Corp. v. Blanco (Blanco III), 67 A.3d 392, 399 (Del. 2013).

38 case for forum non conveniens.125 In reliance on two cases from this Court, McWane126

and Lisa,127 the Superior Court dismissed the Chaverri case.128 As the Superior Court

explained, McWane instructed trial courts to freely exercise their discretion to stay or

dismiss a case on forum non conveniens grounds when “(1) there is a prior action pending

elsewhere (2) in a court capable of doing prompt and complete justice, and (3) involving

the same parties and the same issues.”129 Lisa extended this doctrine by treating the first

element as satisfied when earlier-filed litigation in another forum is no longer pending, but

was dismissed with prejudice.130 The Superior Court reasoned that McWane compelled

dismissal on forum non conveniens grounds “after a first filed action is adjudicated to

conclusion in a court of competent jurisdiction.”131 It observed that the McWane standard

seeks to avoid the risk of inconsistent and conflicting rulings. 132 In 2014, this Court

summarily affirmed the Superior Court’s decision.133

125 Chaverri III, 2013 WL 5977413 at *1. 126 McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co., 263 A.2d 281 (Del. 1970). 127 Lisa, S.A. v. Mayorga, 993 A.2d 1042 (Del. 2010). 128 Chaverri III, 2013 WL 5977413 at *2. 129 Id. at *1 (citing McWane, 263 A.2d at 283). 130 Id. at *2 (citing Lisa, 993 A.2d at 1048). 131 Id. (the Superior Court observed that, “[i]n Lisa, the Delaware Supreme Court found that the Delaware action could not proceed after a dismissal with prejudice of the Florida action because it would risk the possibility of inconsistent and conflicting rulings, which is exactly the outcome that the McWane doctrine seeks to avoid.”). 132 Id. 133 Chaverri IV, 2014 WL 7367000, at *1.

39 B.

Following our summary dismissal, this Court’s mandate issued on November 6,

2014. But, other DBCP litigation continued in the Delaware federal courts. The

Farmworkers draw the Court’s attention to three decisions in two such Delaware federal

companion cases.

The first of these decisions is Chavez v. Dole Food Co.134 The Chavez litigants had

also been plaintiffs in the EDLA litigation who filed in Delaware after the Superior Court

announced an intention to deny statute of limitations dismissal. Whereas the Farmworkers

filed in the Superior Court, the Chavez plaintiffs filed in the United States District Court

for the District of Delaware.135 Whereas Farmworkers were dismissed under McWane’s

forum non conveniens doctrine, the Chavez plaintiffs were dismissed under the federal

“first-filed rule.”136 Just as this Court affirmed the trial court’s dismissal, a divided three-

judge panel of the Third Circuit initially affirmed the Chavez dismissal.137 However, on

September 2, 2016, a unanimous eleven-member en banc panel of the Third Circuit

reversed the three-judge Third Circuit panel’s dismissal, holding that the prior EDLA

dismissal did not exert a claim preclusive effect as a matter of federal common law.138

134 836 F.3d 205 (3d Cir. 2016) (en banc). 135 Id. at 209–210. 136 Chavez, 2012 WL 3600307 at *2; see also N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010) (“The first-filed rule states that, in determining the proper venue, where there are two competing lawsuits, the first suit should have priority.”) (internal quotation omitted). 137 Chavez v. Dole Food Co., Inc., 796 F.3d 261, 271 (3d Cir. Aug. 11, 2015). 138 Chavez, 836 F.3d at 232. As the Third Circuit explained, federal common law looks to state law, and under their reading, Louisiana’s statutory framework for res judicata contains an

40 Without that preclusion, the Third Circuit found the first-filed doctrine inapplicable and

permitted the Chavez plaintiffs’ suit to advance.139

The second and third decisions relied upon by the Farmworkers in their Rule

60(b)(6) motion both relate to the companion Marquinez v. Dow Chem. Co. case. The

District of Delaware had granted the Manufacturers and Plantations summary judgment on

the basis of the statute of limitations. 140 As the District Court saw it, Delaware’s

acknowledgement of cross-jurisdictional tolling would have ended with the 1995 forum

non conveniens dismissal in the Southern District of Texas. 141 During the Marquinez

plaintiffs’ appeal, the Third Circuit certified a question to this Court, asking us to determine

when class action tolling ended.142 In one of the two decisions the Farmworkers cite as

applicable exception. Id. The Third Circuit held that Louisiana’s doctrine of res judicata included a “safety valve” for “exceptional circumstances.” Id. at 229. It reasoned that, “the plaintiffs here ‘vigorously pursued these claims, only to be met at every moment with procedural hurdles.’” Id. Accordingly, it held that “a Louisiana court, faced with these facts, would conclude that the Byzantine procedural history of this case merits an exception to Louisiana’s normal rules of claim preclusion.” Id. The Majority discusses Chavez only as to its holding disfavoring dismissals with prejudice under the first-filed rule. Maj. Op. at 7. 139 Chavez, 836 F.3d at 234. 140 Marquinez v. Dow Chem. Co. (Marquinez I), 45 F.Supp.3d 420, 426 (D. Del. 2014). 141 Id. at 424. 142 Marquinez v. Dow Chem. Co. (Marquinez II), 183 A.3d 704, 711 (Del. 2018). The full question was: “Does class action tolling end when a federal district court dismisses a matter for forum non conveniens and, consequently, denies as moot “all pending motions,” which include the motion for class certification, even where the dismissal incorporated a return jurisdiction clause stating that “the court will resume jurisdiction over the action as if the case had never been dismissed for f.n.c.,” Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1375 (S.D. Tex. 1995)? If it did not end at that time, when did it end based on the procedural history set forth above?” Id. at 705. Though the Superior Court in Blanco ruled that the cross-jurisdictional tolling continued despite the Texas forum non conveniens decision, it had refused to certify that aspect of

41 constituting extraordinary circumstances, this Court determined that the limitations period

remained tolled until the June 3, 2010 denial of class certification.143 As we explained,

the Return Clause continued to contemplate litigation as a class in Texas, and so the

principles justifying cross-jurisdictional tolling continued to apply despite the 1995 forum

non conveniens dismissal.

Lastly, the third of the Farmworkers’ three cases is the Third Circuit’s decision

following their receipt of our certified answer in Marquinez, where the Third Circuit

reversed the judgment and remanded the case to the Delaware District Court.144 This 2018

decision allowed the Delaware federal plaintiffs to proceed.

On December 28, 2018, Appellants sought leave from the Superior Court to file a

Motion to Vacate the judgment under Superior Court Rule 60(b)(6). The Farmworkers

argued that Chavez and the two Marquinez decisions effected a change in decisional law

constituting extraordinary circumstances justifying reopening the judgment dismissing the

Delaware Superior Court case. The Superior Court denied relief on two independent

its ruling for interlocutory appeal and so we did not rule on it then. Blanco II, 2012 WL 6215301; Blanco III, 67 A.3d at 399. 143 Marquinez II, 183 A.3d at 711. 144 See Marquinez v. Dole Food Co.(Marquinez III), 724 F. App’x 131, 132 (3d Cir. 2018) (unreported case): “IT IS HEREBY ORDERED that the District Court's orders entered September 19, 2013, and May 27, 2014, and its final judgment entered September 22, 2014, are VACATED. IT IS FURTHER ORDERED that this appeal is REMANDED to the District Court for further proceedings consistent with the Delaware Supreme Court’s opinion in Marquinez and this Court’s opinion in Chavez.”

42 grounds—that the Chavez and Marquinez cases were “irrelevant and non-controlling law,”

and that Farmworkers unreasonably delayed in filing their Motion.145

II.

Superior Court Civil Rule 60(b) provides the mechanism for a party to reopen or

otherwise obtain relief from an adverse judgment. Rule 60(b) permits six categories of

justification for such relief, the last of which is the residual “any other reason justifying

relief from the operation of the judgment.”146 Relief under this residual category requires

a showing of an “extraordinary situation or circumstance.”147 Even on such a showing,

the movant is “obliged to act without unreasonable delay” in making a Rule 60(b)(6)

Motion or relief will be denied.148 The decision of whether to grant vacatur under Rule

60(b)(6) lies in the sound discretion of the trial court and will be disturbed only on an abuse

of that discretion.149

A. The Farmworkers Did Not Delay Unreasonably

The Superior Court concluded that “[a]s a preliminary matter, the timeliness of

Plaintiffs’ filing precludes the Court from reaching the merits of their Motion.” 150 It

reached that conclusion by construing this Court’s holding in Schremp v. Marvel as

standing for the proposition that the time a party takes to file a Rule 60(b)(6) motion should

145 Chaverri V, 220 A.3d at 925 (Del. Super. 2019). 146 Del. Super. Ct. Civ. R. 60(b). 147 Jewell v. Div. of Soc. Servs., 401 A.2d 88, 90 (Del 1979). 148 Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979) (per curiam). 149 Cox v. Gen. Motors Corp., 239 A.2d 706, 707 (Del. 1967). 150 Chaverri V, 220 A.3d at 920.

43 be compared to the time available for other forms of relief had they been procedurally

available.151 In the trial court’s view, even allowing for the most recent case to be the

measure of timeliness, the seven month gap before filing the instant motion was

unreasonable. 152 The Farmworkers justified this delay by reference to counsel’s large

workload from this and other ongoing DBCP litigation, and the extraordinary complexity

of this case.153 As the trial court saw it, this was a problem of their own making and did

not excuse or render reasonable a seven month delay in filing.154

“Although there is no set time limit in which a party must file a Rule 60(b) motion,

the movant must exercise diligence and act without unreasonable delay.” 155 The

prohibition on ‘unreasonable delay’ requires the court to strike a balance between two

competing interests: the integrity of the judicial process that a meritorious Rule 60(b)

motion implicates, and the finality of judgments.156 Because, according to Schremp, the

151 Id. at 921 (citing Schremp, 405 A.2d at 121). The Schremp Court in the cited holding measured an unexplained two-month delay in filing a motion to vacate a stipulated dismissal entered by his counsel without his knowledge or consent with the time limits for requesting a new trial, reargument, or filing appeal. 152 Id. at 922. 153 Plfs. Mot. to Vacate at ¶ 9, Chaverri v. Dole Food Co., Inc., N12C-06-017 ALR (Del. Super. Dec. 31, 2018) (D.I. 101). 154 See Chaverri V, 220 A.3d at 922 (“the purported ‘Gordian Knot’ in which Plaintiffs find themselves is the result of Plaintiffs’ own strategy of filing duplicative actions across the country. The Court cannot overlook the delay simply because it took Plaintiffs time to untie and package that history for presentation to the Court.”). 155 Shipley v. New Castle Cty., 975 A.2d 764, 770 (Del. 2009). Even “a four or five year delay, alone and without more, does not preclude relief under Rule 60(b).” Scureman v. Judge, 1998 WL 409153, at *3 (Del. Ch. June 26, 1998). 156 MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 635 (Del. 2001).

44 plaintiffs’ delay must be viewed considering all relevant circumstances -- which include

the twenty-seven years of litigation obstacles they were forced to address -- the

Farmworkers’ delay, whether two years or seven months, is not unreasonable.

The trial court dismissed the Farmworkers’ reasons for their delayed filing, all of

which related to the complexity of the case, because it found them to be difficulties of their

counsel’s own creation and hence unreasonable. 157 In Superior Court’s words, that

complexity was “the result of Plaintiffs’ own strategy of filing duplicative actions across

the country.”158 I disagree. My Exhibit A is intended to assist by graphically illustrating

the relevant timeline, extraordinary resistance exerted by the defendants over nearly three

decades, and the extraordinary persistence of the Farmworkers. Measured against that

period, the gap between the Farmworkers’ pivotal cases and their motion is comparatively

brief.

Further, Schremp supports my view. There, the plaintiff waited almost two years

to sue the defendant who negligently backed her car into his causing approximately $708

in damage. Plaintiff lost at trial and a year later, his attorney dismissed the case. Plaintiff

claims he did not learn of his attorney’s dismissal of his case until seven months after the

dismissal. He then waited two more months to file a Rule 60(b) motion which was denied

based on its untimeliness. In our affirmance of that dismissal, we criticized the plaintiff

for asking this Court to “look at the case only from his point of view, disregarding that of

157 Chaverri V, 220 A.3d at 922. 158 Id.

45 the defendant.”159 We said that after three years, the “defendant had a right to hope and

conclude that the litigation was finally at an end.”160 We specifically noted that, “[n]one

of the delay we have identified was in any way charged to defendant.”161

In Schremp, plaintiff had his day in court, losing after trial, whereas here, the

plaintiffs have yet to have the merits of their case heard anywhere. And whereas the

defendant in Schremp had caused no delay, defendants here have engaged the Farmworkers

for over twenty-seven years in an exhausting array of procedural maneuvers in multiple

fora. Most importantly, we said twice in the nine-paragraph opinion in Schremp, that we

should “consider all of the circumstances.”162 That does not mean narrowly focusing only

on the relatively short deadlines for filing an appeal and seeking reargument. It means

taking a realistic and holistic view of the entire case with the ultimate goal of ensuring that

justice is done. Here, justice is not served by blaming the delay on the Farmworkers, and

then shutting the courthouse doors to them. Even the Superior Court itself had observed

earlier in Blanco:

“A fairer reading of the procedural history here is that defendants have attempted to tranquilize these claims through repeated forum shopping removals and technical dismissals, playing for time and delay and striving to prevent, or arguably frustrate, the claims from ever being heard on the merits in any court. . . Any prejudice defendants suffer due to lapse of time was due, in part, to their own decision to wage the extended procedural war delaying the prior action as reflected in the procedural history.”163

159 405 A.2d at 120. 160 Id. at 121. 161 Id. 162 Id. at 120 (emphasis added). 163 Blanco, 2012 WL 3194412, at *12.

46 The Third Circuit in Chavez made similar comments and referred to “[a] series of byzantine

procedural developments” that eventually led the plaintiffs out of Texas and into

Louisiana.164 They described this case as a procedural “Gordian knot.”165

The Farmworkers have continuously sought judicial redress for their injuries in the

proper channels. To the extent that their choice to file in the EDLA resulted in the

application of the liberative prescription and led to the forum non conveniens dismissal

here, at the time they filed, neither the courts of Louisiana nor Delaware had ruled on

whether cross-jurisdictional putative class actions toll limitations periods. That the

Farmworkers guessed wrong and failed to anticipate that we would recognize such tolling

and the Supreme Court of Louisiana would not is hardly blameworthy. Indeed, within

twenty-four hours of the Delaware Superior Court indicating that Delaware would

recognize such tolling, Farmworkers filed their suit here. The Third Circuit also

emphasized that these plaintiffs were not forum shopping.166 It said that, “the plaintiffs

were not scouring multiple jurisdictions for more advantageous substantive law or more

164 Chavez, 836 F.3d at 209. 165 Id. at 212–13 (“Deciding where to file suit therefore required the plaintiffs to predict how courts in Delaware and Louisiana would, in the absence of clear precedent, untangle the procedural Gordian knot that this litigation had become.”). In the legend, at the time of the Macedonian invasion of the Persian Achaemenid Empire, a large intricate knot existed in the Phrygian satrapy at Gordium. According to an oracle, the one who could unravel the knot would rule all of Asia. In the most popular account, after arriving in Gordium with his army and contemplating the knot, Alexander the Great cut the knot with his sword. Arrian, Anabasis of Alexander 82–83 (Edward James Chinnock, trans. 1884). 166 Chavez, 836 F.3d at 222 (“The plaintiffs were not trying to game the system by filing duplicative lawsuits. They were trying to find one court, and only one court, willing to hear the merits of their case.”).

47 sympathetic fact-finders,” rather, “they were trying to find one court -- and only one court

-- willing to reach the merits of their claims.”167

The proliferation of suits and the procedural complexity in this case are largely the

result of the Manufacturers’ and Plantations’ strategy, and not the Farmworkers’, and they

are responsible for years, if not decades, of delay. Although the Farmworkers’ seven-

month delay in filing for Rule 60(b) relief is concerning to me, in light of the entirety of

the complex litigation history -- now spanning twenty-seven years, the time they took to

file the Rule 60(b) motion, which filing necessitated their hiring a new lawyer, is not

unreasonable.168

167 Id. at 232. 168 During oral argument before this Court plaintiffs’ counsel stated: Mr. Hendler: This was a very complicated record and the fact of the matter is I had to go outside of my firm and see additional attorney resources to help support the effort. That lawyer had to spend time getting up on the record and the facts, and researching the issues, drafting the briefs, and we nevertheless got it filed within seven months of the Third Circuit’s decision in Marquinez. Oral argument video: 48:10 – 48:38. https://livestream.com/delawaresupremecourt/events/ 9319197/videos/212100209. Again, the Majority suggests that these representations by plaintiffs’ counsel are not credible. See Maj. Op. at 24, n.71 (“Likewise, Plaintiffs’ counsel’s suggestion at oral argument that the work related to the motion necessitated the hiring of a new lawyer is hard to square with the brevity of the motion.”). The Majority seems to assume that the page length of the Motion exactly mirrors the work needed to file the Motion. I note that before filing their Motion, the Farmworkers sought the Court’s leave to exceed the court-imposed page limits. As Farmworkers explained in the motion to vacate, “[i]n the seven months, Plaintiffs’ counsel’s law firm consisting of two active attorneys, has been actively advancing the overall litigation by conferring with opposing counsel to manage discovery and timetables for preparing the Chavez and Marquinez plaintiffs’ cases for trial pending in federal court and actively researching and pursuing resources to complete this motion with all deliberate speed.” Rather than question the credibility of counsel, I would rather think that it did take considerable time for new counsel to review and evaluate the litigation history spanning over two decades, and that any diligent lawyer would have done so prior to filing a motion to vacate.

48 B. Extraordinary Circumstances Are Present Here

The presence or absence of extraordinary circumstances justifying Rule 60(b)(6)

relief is subject to a totality of the circumstances test. 169 The Delaware courts have

followed the parallel federal rule.170 Rule 60(b) is an equitable mechanism for relief.171

Not only do our state courts look to federal precedent in Rule 60(b) analyses, but in

this particular case, our Delaware courts and the Delaware federal courts have been

intertwined procedurally and have cooperated substantively. This cooperation and

deference was most clearly manifest after plaintiffs appealed both of the Marquinez orders

to the Third Circuit and the Third Circuit certified to this Court the question of when class

action tolling ended. Not surprisingly, the Third Circuit accepted and deferred to our

decision and reversed and remanded the Marquinez litigation to the Delaware District

Court “for further proceedings consistent with the Delaware Supreme Court’s opinion in

169 See Ungar v. Palestinian Liberation Org., 599 F.3d 79, 87 (1st Cir. 2010) (reversing a district court’s denial of Rule 60(b)(6) relief because it “did not analyze the totality of the circumstances but, rather, focused on what it improvidently believed to be a categorical bar to relief.”). 170 Jewell, 401 A.2d at 90. 171 See Johnson v. Spencer, 950 F.3d 680, 700–01 (10th Cir. 2020) (“We have described Rule 60(b)(6) as a ‘grand reservoir of equitable power to do justice in a particular case.’”) (quoting Kile v. United States, 915 F.3d 682, 687 (10th Cir. 2019)); Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014) (stating that, “we have long employed a flexible, multifactor approach to Rule 60(b)(6) motions, including those built upon a post-judgment change in the law, that takes into account all the particulars of a movant’s case,” and observing that, “[t]he fundamental point of 60(b) is that it provides a grand reservoir of equitable power to do justice in a particular case.”) (quoting Hall v. Cmty. Mental Health Ctr., 772 F.2d 42, 46 (3d Cir. 1985)); Jewell, 401 A.2d at 90 (“[Rule 60(b)(6)]. . . vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.”) (quoting Klapprott v. United States, 335 U.S. 601, 615 (1949)).

49 Marquinez and this Court’s opinion in Chavez.”172 Although no party here argues that

Chavez is binding on us, a unanimous decision by an eleven-member en banc panel of the

Third Circuit, issued in companion federal litigation is entitled to our corresponding

deference here.173

The Superior Court’s and the Majority’s refusal to credit Chavez with the deference

it deserves results in the Delaware federal courts and our state court treating the EDLA

judgment differently. This is problematic given the resulting disparate impact on these

plaintiffs. This result, which now closes the Delaware Superior Court’s doors to these

plaintiffs, is even more ironic considering that it was the Delaware Superior Court in

Blanco in 2012 that essentially told the plaintiffs that the Delaware Superior Court’s doors

were open to them.

I agree that a mere change in decisional law occurring after a judgment becomes

final ordinarily does not constitute extraordinary circumstances under Rule 60(b)(6). 174

172 Marquinez III, 724 F.App’x at 132 (emphasis added). 173 Chavez made clear that the preclusive effect of a timeliness dismissal entered by a federal court, whether exercising its diversity or federal question jurisdiction, is a question of federal law. See Chavez, 836 F.3d at 225. The preclusive effect of a federal court’s judgment is a question of federal common law and a federal court sitting in diversity jurisdiction will apply the preclusion law of the state in which it sits. Cal. State Teachers’ Retirement Sys. v. Alvarez, 179 A.3d 824, 841 (Del. 2018) (citing Pyott v. La. Mun. Police Employees’ Retirement Sys., 74 A.3d 612, 616 (Del. 2013)). Further, the claim-preclusive effect of a dismissal issued by a federal diversity court varies by jurisdiction, because the federal diversity court must look to state substantive law to assess cross-jurisdictional claim preclusion. In applying these principles, the Third Circuit in Chavez held that, “Louisiana’s statutorily-codified equitable exception to res judicata applied to the present facts,” and thus, “the timeliness dismissals entered by the Louisiana District Court do not create a res judicata bar to the plaintiffs’ Delaware suits.” 836 F.3d at 231–232. 174 Travelers Indemn. Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir. 1986).

50 Even a ruling demonstrating that a court outright misapplied the laws of its own or another

jurisdiction generally does not, without more, justify relief.175 But here there is more.

Courts have stepped in, on occasion, to address the injustice suffered when changes

in decisional law unfairly impact similarly situated plaintiffs in a factually-connected case.

For example, in In re Terrorist Attacks on September 11, 2001, the United States Court of

Appeals for the Second Circuit addressed the injustice caused when multiple plaintiffs of

one tort obtained different outcomes because of a change in decisional law.176 In that case,

the Second Circuit found that “the interest in finality is outweighed by the interest in

treating victims of the same tort consistently.”177

Similarly, in Gondeck v. Pan Am. World Airways, Inc., the United States Supreme

court vacated an order denying certiorari and reversed a circuit court’s judgment that

affirmed the denial of a death-benefits award after learning that another circuit court had

upheld an award to a different claimant under the same federal law. Gondeck involved a

claim for death benefits under the Longshoremen’s and Harbor Workers’ Compensation

Act. Two men were killed in the same accident. An award made by the Department of

Labor to the survivors of one man was set aside by the United States District Court for the

Southern District of Florida. The Fifth Circuit affirmed. The Supreme Court denied

175 Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 748-49 (5th Cir. 1995). The Batts court also noted a number of exceptions to this general rule, including where two cases arising out of the same transaction result in conflicting judgments. Id. at 748, n.6. 176 741 F.3d 353 (2d Cir. 2013) (citing Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25, 26– 27, 86 S.Ct. 153, 15 L.Ed.2d 21 (1965) (per curiam)). 177 Id. at 357.

51 certiorari. Then, the survivors of a second man killed in the same accident litigated in the

Eastern District of Virginia and lost but the Fourth Circuit reversed and upheld the right to

recover. The survivors in the first case then petitioned for rehearing in the Supreme Court.

The Supreme Court granted the petition and reversed the Fifth Circuit. The United States

Supreme Court thus required the two circuits to construe the same federal statute the same

way because one petitioner stood alone in not receiving an award and “‘the interests of

justice would make unfair the strict application of our rules.’”178

Following this principle, the Tenth Circuit Court of Appeals, in Pierce v. Cook &

Co., Inc.,179 granted Rule 60(b) relief based on a post-judgment change in the law arising

out of the same accident as that in which the plaintiffs were injured. In this diversity case,

the plaintiff sued a truck driver’s employer for his negligence in causing a traffic accident.

Summary judgment was granted in favor of the employer. Subsequently, a suit brought

in state court by one of the passengers in the Pierce plaintiffs’ car (who was injured in the

same accident) resulted in a change in Oklahoma law creating liability on the part of the

employer for the negligence of the carrier. 180 Because “[t]he federal courts in which

plaintiffs were forced to litigate ha[d] given them substantially different treatment than that

received in state court by another injured in the same accident,” 181 the Tenth Circuit

178 382 U.S. at 27 (citing United States v. Ohio Power Co., 353 U.S. 98, 99, 77 S.Ct. 652, 1 L.Ed.2d 683 (1957)). 179 518 F.2d 720 (10th Cir. 1975) (en banc), cert. denied, 423 U.S. 1079 (1976). 180 Hudgens v. Cook Indus., Inc., 521 P.2d 813, 816, 78 A.L.R.3d 902 (Okla. 1973) (overruling Marion Machine, Foundry & Supply Co. v. Duncan, 101 P.2d 813 (Okla. 1940)). 181 Pierce, 518 F.2d at 723.

52 granted Rule 60(b) relief. The court stated that, “[i]n diversity jurisdiction cases the

results in federal court should be substantially the same as those in state court litigation

arising out of the same transaction or occurrence.” 182 It held that “[t]he unusual

combination of events which have occurred make the situation extraordinary.”183 Here,

the subsequent change in the law effected by Chavez occurred in a factually-related case

and has now resulted in disparate treatment of the state court and federal court plaintiffs

based upon those courts’ different treatment of the preclusive effect of the EDLA

dismissal.184

Although in Pierce, the plaintiffs were forced to litigate in federal court after the

defendant removed the case, here the plaintiffs were given assurance by the Delaware

Superior Court that defendants’ efforts to resist cross-jurisdictional tolling would fail.

They lost only when Delaware courts’ assessment of the preclusive effect of the EDLA

182 Id. (emphasis added). 183 Id. (emphasis added). The Tenth Circuit distinguished its own earlier precedent where the changes in decisional law had arisen in unrelated litigation. See Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958). The Pierce court stated that, “Collins differs from the instant case in that the decisional change came in an unrelated case,” whereas, in Pierce, “it came in a case arising out of the same accident as that in which the plaintiffs now before us were injured.” 518 F.2d at 723. 184 Notably, the Oklahoma Supreme Court decision came more than three years after the Tenth Circuit’s dismissal of the federal plaintiff’s claims. Nevertheless, the Tenth Circuit granted the plaintiff’s Rule 60(b)(6) motion. See also Tsakonites v. Transpacific Carriers Corp., 322 F. Supp. 722 (S.D.N.Y. 1970) (granting Rule 60(b)(6) relief where more than five years intervened between the district court’s judgment and a subsequent United States Supreme Court decision which indicated that the district court judgment was error). Again, delay in filing such a motion should be avoided. But it is not necessarily preclusive. Litigants seeking this extraordinary relief would be wise to not test the bounds of the court’s mercy by delaying their application. A defendant’s interest in finality, even in circumstances like those presented here, must also be weighed carefully in the balancing of interests.

53 judgment diverged with the Third Circuit’s later determination. Just as in Pierce,

compelling reasons exist here for having the federal and state courts afford uniform

treatment of the EDLA dismissal to these plaintiffs who complain of the same injuries and

had to file individual actions elsewhere. And since the preclusive effect of that federal

judgment is a question of federal common law,185 the en banc unanimous decision of the

Third Circuit on that question should carry great weight.

Delaware courts have acknowledged that important and novel issues of other

sovereigns are often best determined by their courts where practicable.186 Pierce found

Rule 60(b)(6) implicated when fellow plaintiffs of one tort received different results in

state and federal court after the state court promulgated changes in the law in a way that

affected the outcome. Comity counsels that we do the same when the converse situation

arises -- the federal court changed the law in this interrelated case in a materially significant

way that results in one set of plaintiffs having access to the courts but not the other.187

185 Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 1028, 149 L.Ed.2d 32 (2001). 186 See Martinez v. E.I. DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1109–1110 (Del. 2014) (“If, as our jurisprudence holds, significant weight should be accorded the neutral principle that important and novel issues of Delaware law are best decided by Delaware courts, then it logically follows that our courts must acknowledge that important novel issues of other sovereigns are best determined by their courts where practicable.”). 187 The Majority disagrees that Chavez undercuts the dismissal order and states that these cases “do not involve conflicting applications of the same law.” Maj. Op. at 22. They then say that the Farmworkers, by filing in both state and federal court, “created a foreseeable risk that procedural rules of the two jurisdictions may lead to different results.” Maj. Op. at 22. Yet the Majority ignores the key holding in Chavez critical to this analysis, namely, that the prior EDLA dismissal did not exert a claim preclusive effect as a matter of federal common law. See Chavez, 836 F.3d at 225 (“a timeliness dismissal entered by a federal court, whether exercising its diversity or federal question jurisdiction, is always a question of federal law.”). By applying McWane and Lisa, the Superior Court necessarily gave preclusive effect to the ruling while the Third Circuit did not.

54 III. Conclusion

A bedrock principle of Delaware law is “that every right, when withheld, must have

a remedy, and every injury its proper redress.” 188 The purpose of our forum non

conveniens doctrine, is “to discourage forum shopping and promote the orderly

administration of justice by recognizing the value of confining litigation to one jurisdiction

whenever that is both possible and practical.”189 It is not advanced by closing the last

courthouse door to a litigant. Nor is the value of “confining litigation to one

jurisdiction”190 advanced by reducing one to none.191

Thus, these courts gave conflicting treatment to the same judgment in a factually intertwined case. The Majority acknowledges that where the Delaware action is the second-filed action, and a first filed action in another jurisdiction has been dismissed on procedural grounds, McWane is not the proper focus for analysis. Maj. Op. at 20–21. Yet McWane was the focus of the Superior Court’s analysis. And the Superior Court incorrectly stated that “[n]o change in the governing McWane Doctrine has occurred since the Court issued the November 13 Dismissal order,” but clearly, Gramercy (decided on October 27, 2017) had effected a change in the McWane doctrine, as the Majority agrees. The combination of Gramercy, Chavez and Marquinez create the kind of conflict giving rise to an “extraordinary circumstance” justifying relief. 188 Dorsey v. State, 761 A.2d 807, 816 (Del. 2000) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *109). 189 Lisa, 993 A.2d at 1047. 190 United Phosphorus, Ltd. v. Micro-Flo, 808 A.2d 761, 764 (Del. 2002). 191 In In re Asbestos Litig., a majority of this Court affirmed the dismissal of the plaintiff’s case where the plaintiff was two months late with her expert reports (which were ultimately completed and filed before her motion for change of trial date was heard). Justice Vaughn’s dissent, which I joined, observed that, “[t]he good cause analysis requires a trial court to consider the unique circumstances of the case before it,” and that “[a] court applying the good cause standard should be especially mindful of one overarching consideration – Delaware’s strong judicial policy that courts should decide cases on their merits.” We remarked further that, “[t]he unfairness to plaintiff in this case is substantial” since “[t]his is not a case where, despite denial of the motion for trial grouping, the plaintiff can still proceed to trial.” We also noted that there, the Superior Court had “applied the good cause standard in a rigid, inflexible manner,” and had “failed to engage in a fair balancing of all relevant factors.” 228 A.3d at 684–85, 689 (Del 2020). Those same policy concerns that animated my dissenting vote there apply here where these plaintiffs, despite twenty-seven years of litigation, will never have their case heard on the merits by any

55 In answering the pivotal questions of whether Chavez, together with Marquinez

present extraordinary circumstances, I believe that they do, particularly when viewed

through the prism of our intervening 2017 decision in Gramercy. Under Gramercy, a

court must determine whether relief is appropriate by engaging in an examination of the

six classic “Cryo–Maid factors”192 without a presumption as to whether relief is or is not

appropriate. 193 By contrast, under the McWane standard, the court generally does not

perform an analysis of these factors.194 Viewing the Superior Court’s 2013 dismissal with

the benefit of the Third Circuit’s decision in Chavez and our own decision in Gramercy,

the Third Circuit’s conclusion in Chavez, that the prior-filed EDLA dismissal was not

entitled to preclusive effect, would lead to a different result, namely, the 2013 dismissal

would not have been within the ambit of Lisa. Rather, Gramercy’s intermediate approach

would apply instead of McWane and Lisa. Chavez, accordingly, produced an

extraordinary circumstance, the effect of which was compounded by the later rulings in

Marquinez. I agree with my esteemed colleagues in the Majority that as a general matter,

court. 192 Gen. Foods Corp. v. Cryo–Maid, Inc., 198 A.2d 681 (Del. 1964). Those six factors are (1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises, if appropriate; (4) the pendency or nonpendency of a similar action in another jurisdiction; and (5) whether or not the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction; and (6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive. Gramercy, 173 A.3d at 1036–37. 193 Id. at 1044. 194 Chadwick v. Metro Corp, 856 A.2d 1066, 2004 WL 1874652, at *2 (Del. Aug. 12, 2004) (TABLE) (“Our courts generally do not consider a motion to dismiss under traditional forum non conveiens analysis when a similar action is pending elsewhere.”).

56 “[i]ntervening changes in the law rarely justify relief from final judgments under

60(b)(6).”195 But this just happens to be one of those rare cases.

For the foregoing reasons, I respectfully dissent.

195 Cox, 757 F.3d at 121 (3d Cir. 2014).

57 Exhibit A