883 F.2d 1553 (11th Cir. 1989), 87-5709, Cabalceta v. Standard Fruit Co.

Docket Nº:87-5709.
Citation:883 F.2d 1553
Party Name:Perfecto Barrantes CABALCETA, et al., Plaintiffs-Appellants, Cross-Appellees, v. STANDARD FRUIT COMPANY, Standard Fruit & Steamship Company, Dole Fresh Fruit Company, Castle & Cooke, Inc., the Dow Chemical Company and Shell Oil Company, Defendants-Appellees, Cross-Appellants.
Case Date:September 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1553

883 F.2d 1553 (11th Cir. 1989)

Perfecto Barrantes CABALCETA, et al., Plaintiffs-Appellants,



STANDARD FRUIT COMPANY, Standard Fruit & Steamship Company,

Dole Fresh Fruit Company, Castle & Cooke, Inc.,

the Dow Chemical Company and Shell Oil

Company, Defendants-Appellees,


No. 87-5709.

United States Court of Appeals, Eleventh Circuit

September 28, 1989

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Charles S. Siegel, Brent M. Rosenthal, Dallas, Tex., Louis S. Robles, Miami, Fla., for plaintiffs-appellants, cross-appellees.

Henry Burnett, Miami, Fla., Burt Ballanfant, Houston, Tex., for Shell Oil Co.

Robert C. Zundel, Jr., James E. Wilber, Jonathan B. Fellows, Boca Raton, Fla., for Standard Fruit Co., Standard Fruit & S.S. Co., Dole Fresh Fruit Co., Castle & Cooke, Inc.

Edward T. O'Donnell, Miami, Fla., Gennaro A. Filice III, Oakland, Cal., Charles J. Kalil, Dow Chemical Co., Midland Mich., for Dow Chemical Co.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and CLARK, Circuit Judges, and FITZPATRICK [*], District Judge.

FITZPATRICK, District Judge:

This case presents a number of unique jurisdictional questions, one of first impression regarding the statutory interpretation of 28 U.S.C. Sec. 1332(c), and one involving fraudulent joinder. Because of their colorful and necessary history, we will first look at not only the procedural background of this case but the legal progression of several suits which have been filed against various combinations of the present Defendants/Appellees/Cross-Appellants. This brief historical synopsis will show the lengths to which Plaintiffs and their attorneys have gone in their attempts to have these claims heard in the United States.

The court, however, must first address the preliminary matter of whether or not Plaintiffs/Appellants shall be allowed to supplement the record on appeal with the Affidavit of Professor Hans Baade and the Costa Rican Juridical Identity Certificate No. 3010055925 of Defendant Standard

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Fruit Company. Plaintiffs maintain that this additional material addresses certain political arguments raised by Defendants for the first time on appeal. Defendants argue that the record is complete, that the information contained in the affidavit is irrelevant to the issues before the court, and that Professor Baade has not been qualified as an expert.

The question of subject matter jurisdiction can be raised by any party, or by the court itself, at any point of a proceeding. Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir.1984); see also Eagerton v. Valuations, Inc., 698 F.2d 1115, 1118 (11th Cir.1983). This court's inherent equitable powers allow it to supplement the record with information not reviewed by the district, though this power is not often exercised. Dickerson v. Alabama, 667 F.2d 1364, 1367 (11th Cir.1982).

.... [T]his court has not articulated a general rule for when it is appropriate [to supplement a record on appeal]. Rather we have dealt with such requests on a case-by-case basis. We have refused to supplement the record when a party has filed supplemental material without requesting leave of this court or has appended material to an appellate brief without filing a motion to supplement.

Ross v. Kemp, 785 F.2d 1467, 1474-75 (11th Cir.1986) (footnote omitted). In Ross this court articulated several factors or questions which the court should consider when deciding whether or not to supplement the record: (1) whether "acceptance of the proffered material into the record would establish beyond any doubt the proper resolution of the pending issue," Id.; (2) whether remand of the case would be contrary to the interests of justice and judicial economy; (3) whether the inherent judicial powers of the court in habeas corpus actions dictate supplementation. Id. These factors, however, are only guidelines, and we must evaluate all of the factors, issues and circumstances of each request on a case-by-case basis.

In the present appeal, an application of the Ross factors militates toward a denial of the Motion; however, the overall circumstances compel the court to allow supplementation. Plaintiffs did file the disputed supplemental material prior to moving for its acceptance by the court. Moreover, we are not convinced that the material will be dispositive of any of the issues before the court. As shown below, remand of this case will be necessary for re-evaluation of one issue, though not the issues on which the supplemental material is relevant. Despite these negative aspects of the request, the court is convinced that supplementation is appropriate. Since the court is considering the existence of subject matter jurisdiction, a consideration of all relevant information is necessary to make an informed and final decision. In the interest on judicial economy, supplementation is necessary for a final disposition of this issue and to avoid remand on all issues. In regards to all other motions carried with the case, the Court hereby denies those motions.


Plaintiffs brought this suit in the Circuit Court in and for Dade County, Florida, against Defendants Standard Fruit Co. (Standard Fruit), Standard Fruit & Steamship Co. (Steamship), Dole Fresh Fruit Co. (Dole), Castle & Cooke, Inc. (Castle & Cooke), The Dow Chemical Co. (Dow), and Shell Oil Co. (Shell). Defendants filed a Joint Verified Removal Petition to the United States District Court for the Southern District of Florida, alleging complete diversity of citizenship and that no proper Defendant was a citizen of Florida for the purposes of the removal statutes, 28 U.S.C. Secs. 1441, 1446. Once the case was removed, Standard Fruit filed motions to dismiss for lack of service of process, lack of personal jurisdiction and forum non conveniens; Dole filed a Motion to Dismiss for its fraudulent joinder; the remaining Defendants filed Motions to Dismiss for forum non conveniens; and Plaintiffs filed a Motion to Remand the case to state court. After oral argument the district court: (1) denied Plaintiffs' Motion to Remand; (2) granted Dole's fraudulent joinder Motion to Dismiss; (3) granted all forum non conveniens motions to dismiss; (4) denied as moot Standard Fruit's Motion to Dismiss

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for lack of service of process and personal jurisdiction in light of the dismissal for forum non conveniens. See the district court's published opinion at Barrantes Cabalceta v. Standard Fruit Co., 667 F.Supp. 833 (S.D.Fla.1987). Plaintiffs appeal the district court's denial of their Motion to Remand and the dismissal of their claims. Defendants have cross-appealed the denial as moot of Standard Fruit's motions to dismiss for lack of service of process and lack of personal jurisdiction.

The merits of this case concern Costa Rican residents, and their wives, who lived and worked on a banana plantation in Rio Frio, Costa Rica. Plaintiffs allege that they were exposed to pesticides containing the chemical dibromochloropropane (DBCP) while working on the plantation operated by Standard Fruit. Plaintiffs also allege that Defendants Dow and Shell manufactured and sold products containing DBCP. All of the Defendants, with the exception of Dole, the party dismissed by the district court as fraudulently joined, have agreed to submit to jurisdiction in Costa Rica where the claimed injuries allegedly occurred and where the vast majority of witnesses live. Plaintiffs, however, have struggled for several years to have their claims litigated in a state court in the United States. Certain of the Plaintiffs filed claims in Sibaja v. Dow Chemical Co., 757 F.2d 1215 (11th Cir.), cert. denied, 474 U.S. 948, 106 S.Ct. 347, 88 L.Ed.2d 294 (1985). The Sibaja case, like the present action, originated in Florida state court, was removed to federal district court, and was eventually dismissed on forum non conveniens grounds by this court. The case of Aguilar v. Dow Chemical Co., No. 86-4753 JGD (C.D.Cal.1986) was also removed to federal court and subsequently dismissed for forum non conveniens. A third case, Alfaro v. Dow Chemical Co., 751 S.W.2d 208 (Tex.Ct.App. March 24, 1989), was originally dismissed by the Texas trial court on forum non conveniens grounds, but was recently reversed and remanded by the Texas Court of Appeals which held that the plaintiffs there could maintain their personal injury actions in Texas state courts without the threat of forum non conveniens dismissal. Thus the present action is the fourth and most comprehensive attempt to obtain state court jurisdiction in the United States.

The issues before the court in this appeal are: (1) whether the district...

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