Delgado v. Shell Oil Co.

• Decision Date: 19 October 2000
• Docket Number: No. 95-21074,N,95-21074
• Citation: 231 F.3d 165
• Parties: (5th Cir. 2000) FRANKLIN RODRIGUEZ DELGADO, ET AL. (Individually and on behalf of all others similarly situated), Plaintiffs-Appellants-Cross-Appellees, v. SHELL OIL COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (Individually and as successor to Occidental Chemical Company and Occidental Chemical and Agricultural Products, Inc.); STANDARD FRUIT CO.; STANDARD FRUIT AND STEAMSHIP COMPANY; DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT CO.; CHIQUITA BRANDS, INC.; CHIQUITA BRANDS INTERNATIONAL, INC.; DEL MONTE TROPICAL FRUIT COMPANY, Defendants-Appellees-Cross-Appellants, DEL MONTE FRESH PRODUCE, N.A., Defendant-Third Party Plaintiff-Appellee-Cross-Appellant, v. DEAD SEA BROMINE COMPANY, LTD.; AMERIBROM, INC., Third Party Defendants-Appellees-Cross-Appellants. JORGE COLINDRES CARCAMO, ET AL. (Individually, and on behalf of all others similarly situated), Plaintiffs-Appellants-Cross-Appellees, v. SHELL OIL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (Individually and as successor to Occidental Chemical and Occidental Chemical and Agricultural Products, Inc.); STANDARD FRUIT COMPANY; STANDARD FRUIT AND STEAMSHIP COMPANY; DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; CHIQUITA BRANDS, INC.; CHIQUITA BRANDS INTERNATIONAL, INC., Defendants-Appellees-Cross-Appellants, DOW CHEMICAL COMPANY, Defendant-Third Party Plaintiff-Appellee-Cross-Appellant, v. DEL MONTE FRESH PRODUCE COMPANY (sued as Del Monte Tropical Fruit Company); DEAD SEA BROMINE COMPANY, LTD.; AND AMERIBROM, INC., Third Party Defendants-Appellees-Cross-Appellants, DEL MONTE FRESH PRODUCE, N.A., INC., Third Party Defendant-Fourth Party Plaintiff-Appellee-Cross-Appellant, v. BROMINE COMPOUNDS, LTD., Fourth Party Defendant-Appellee-Cross-Appellant. JUAN RAMON VALDEZ, ET AL., Plaintiffs-Appellants-Cross-Appellees, v. SHELL OIL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (Individually and as successor to Occidental Chemical Company and Occidental Chemical and Agricultural Products, Inc.); STANDARD FRUIT COMPA
• Court: U.S. Court of Appeals — Fifth Circuit

Page 165

231 F.3d 165 (5th Cir. 2000)

FRANKLIN RODRIGUEZ DELGADO, ET AL. (Individually and on behalf of all others similarly situated), Plaintiffs-Appellants-Cross-Appellees, v. SHELL OIL COMPANY; DOW CHEMICAL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (Individually and as successor to Occidental Chemical Company and Occidental Chemical and Agricultural Products, Inc.); STANDARD FRUIT CO.; STANDARD FRUIT AND STEAMSHIP COMPANY; DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT CO.; CHIQUITA BRANDS, INC.; CHIQUITA BRANDS INTERNATIONAL, INC.; DEL MONTE TROPICAL FRUIT COMPANY, Defendants-Appellees-Cross-Appellants, DEL MONTE FRESH PRODUCE, N.A., Defendant-Third Party Plaintiff-Appellee-Cross-Appellant, v. DEAD SEA BROMINE COMPANY, LTD.; AMERIBROM, INC., Third Party Defendants-Appellees-Cross-Appellants.

JORGE COLINDRES CARCAMO, ET AL. (Individually, and on behalf of all others similarly situated), Plaintiffs-Appellants-Cross-Appellees, v. SHELL OIL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (Individually and as successor to Occidental Chemical and Occidental Chemical and Agricultural Products, Inc.); STANDARD FRUIT COMPANY; STANDARD FRUIT AND STEAMSHIP COMPANY; DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; CHIQUITA BRANDS, INC.; CHIQUITA BRANDS INTERNATIONAL, INC., Defendants-Appellees-Cross-Appellants, DOW CHEMICAL COMPANY, Defendant-Third Party Plaintiff-Appellee-Cross-Appellant, v. DEL MONTE FRESH PRODUCE COMPANY (sued as Del Monte Tropical Fruit Company); DEAD SEA BROMINE COMPANY, LTD.; AND AMERIBROM, INC., Third Party Defendants-Appellees-Cross-Appellants, DEL MONTE FRESH PRODUCE, N.A., INC., Third Party Defendant-Fourth Party Plaintiff-Appellee-Cross-Appellant, v. BROMINE COMPOUNDS, LTD., Fourth Party Defendant-Appellee-Cross-Appellant.

JUAN RAMON VALDEZ, ET AL., Plaintiffs-Appellants-Cross-Appellees, v. SHELL OIL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (Individually and as successor to Occidental Chemical Company and Occidental Chemical and Agricultural Products, Inc.); STANDARD FRUIT COMPANY; STANDARD FRUIT AND STEAMSHIP COMPANY; DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; CHIQUITA BRANDS, INC.; CHIQUITA BRANDS INTERNATIONAL, INC., Defendants-Appellees-Cross-Appellants, DOW CHEMICAL COMPANY, Defendant-Third Party Plaintiff-Appellee-Cross-Appellant, v. DEL MONTE FRESH PRODUCE, N.A.; DEL MONTE TROPICAL FRUIT COMPANY; DEAD SEA BROMINE COMPANY, LTD.; AMERIBROM, INC., Third Party Defendants-Appellees-Cross-Appellants.

ISAE CARCAMO, Plaintiff-Appellant-Cross-Appellee, v. DOW CHEMICAL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (Individually and as successor to Occidental Chemical Company and Occidental Chemical and Agricultural Products, Inc.); STANDARD FRUIT COMPANY; STANDARD FRUIT AND STEAMSHIP COMPANY; DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY, Defendants-Appellees-Cross-Appellants, SHELL OIL COMPANY, Defendant-Third Party Plaintiff-Appellee-Cross-Appellant, v. DEAD SEA BROMINE COMPANY, LTD.; AMERIBROM, INC., Third Party Defendants-Appellees-Cross-Appellants.

RAMON RODRIGUEZ RODRIGUEZ, Plaintiff-Appellant, v. SHELL OIL COMPANY; STANDARD FRUIT & STEAMSHIP COMPANY; CHIQUITA BRANDS; CHIQUITA BRANDS INTERNATIONAL, INC.; STANDARD FRUIT COMPANY, Defendants-Third Party Plaintiffs-Appellees, and DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT CO.; DOW CHEMICAL COMPANY; OCCIDENTAL CHEMICAL, Defendants-Appellees, v. BROMINE COMPOUNDS, LTD.; AMVAC CHEMICAL COMPANY; DEAD SEA BROMINE COMPANY, LTD., Third Party Defendants-Appellees.

No. 95-21074, No. 97-20060

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 19, 2000

Rehearing Denied Nov. 16, 2000.

[Copyrighted Material Omitted] Appeals from the United States District Court For the Southern District of Texas Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In these consolidated appeals,¹ Plaintiffs-Appellants ("Plaintiffs"), who are several thousand foreign agricultural workers, challenge the district court's orders dismissing on forum non conveniens, five of six cases removed from Texas state court. Plaintiffs assert that the removals were improper and that the district court lacked subject matter jurisdiction. Concluding that removal and jurisdiction were proper in all of the five dismissed cases, we affirm.

I. BACKGROUND

A. Overview

Plaintiffs originally filed all six cases in various Texas state courts, seeking damages for injuries allegedly caused by their apparently incremental exposure over a considerable period to a nematocide, dibromochloropropane ("DBCP"), while working on banana farms in several foreign countries. Plaintiffs justify their presence in the state courts of Texas on provisions of a Texas statute that furnishes a Texas forum to a plaintiff who has been injured in a foreign country if that plaintiff is a citizen of a foreign country that has equal treaty rights with the United States. See Tex. Civ. Prac. & Rem. Code § 71.031. Defendants-Appellees (collectively "Defendants") are Shell Oil Company ("Shell"), Dow Chemical Company ("Dow"), Occidental Chemical Corporation ("Occidental"), Standard Fruit Company and Standard Fruit & Steamship Company (collectively "the Standard Fruit entities"), Dole Fresh Fruit Company and Dole Food Company, Inc. (collectively "the Dole entities"), Chiquita Brands, Inc., and Chiquita Brands International, Inc. (collectively "the Chiquita entities"), and Del Monte Tropical Fruit Company and Del Monte Fresh Produce, N.A. (collectively "the Del Monte entities"). Defendants are alleged to have designed, manufactured, sold, or used DBCP.

The filing of these cases in the state courts of Texas was by no means happenstance. In a classic exercise of forum shopping, Plaintiffs selected Texas because, among other plaintiff-friendly features, its law at the time of filing provided no applicable doctrine of forum non conveniens pursuant to which their actions could be dismissed. See Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 679 (Tex. 1990).²

In response, Defendants determined that removal of these cases to federal court, where forum non conveniens was available, would be an effective way to send these suits back to their countries of origin. In pursuit of their objective, a different pre-designated defendant in each of the six cases first filed a third-party petition impleading Dead Sea Bromine Company, Limited ("Dead Sea"). Next, Dead Sea removed each action to federal court by virtue of its alleged status as a "foreign state" under the Foreign Sovereign Immunity Act ("FSIA"), 28 U.S.C. §§ 1602-1611.³ As the third step, Dead Sea waived its sovereign immunity in each of the federal cases.

But, among other things, Plaintiffs contend that Texas Rule of Civil Procedure 38(a) requires a third-party plaintiff to obtain leave of court to serve a third-party petition when it is filed more than thirty days after service of the defendant's original state court answer.⁴ In four of the six cases, the third-party petitions were filed more than thirty days after the answers. In the remaining two cases, the third-party petitions were filed within less than thirty days following the answers, so leave of court was not required.

B. Prior Proceedings

Against this backdrop, we pause to recount in turn the individual procedural history of each case, for cognizance of the prior proceedings in each is essential to our determination of (1) the efficacy of Defendants' joinder of Dead Sea, (2) the validity of Dead Sea's removals, and (3) the existence of federal subject matter jurisdiction.

1. Delgado v. Shell Oil Co. ("Delgado")

The Delgado plaintiffs are more than 2,000 residents of three foreign countries who filed suit originally in Galveston County, Texas.⁵ The defendants in Delgado previously attempted to remove to federal court, asserting that the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y, preempted the plaintiffs' claims and provided federal question jurisdiction. The district court remanded, noting that even if the FIFRA preempted the Delgado plaintiffs' claims, there was no federal question jurisdiction. See Rodriguez v. Shell Oil Co., 818 F. Supp. 1013, 1018 (S.D. Tex. 1993).⁶ Subsequently, Defendant Del Monte Fresh Produce, N.A., filed an original answer in state court and, within thirty days, served a third-party petition impleading Dead Sea and its American affiliate, Ameribrom, Inc., ("Ameribrom") as third-party defendants. State court leave to serve the third-party petition was not required. Later the same day that the third-party petition was filed against it, Dead Sea removed the case to the Southern District of Texas, Galveston Division.⁷

The other defendants joined in the removal and filed cross-claims against Dead Sea and, in some cases, against one another.⁸ Shell filed supplemental notices of removal. The Delgado plaintiffs filed a motion to remand, asserting lack of subject matter jurisdiction. The district court denied the motion, concluding that Dead Sea was a foreign state entitled to remove, pursuant to 28 U.S.C. § 1441(d),⁹ and consolidated Delgado with Jorge, which we consider next.

2. Jorge Carcamo v. Shell Oil Co. ("Jorge")

The Jorge plaintiffs are nine representatives who filed suit originally in Brazoria County, Texas, on behalf of themselves and an uncertified class of more than 16,000 citizens and residents of twelve foreign countries.¹⁰ Defendant Dow filed a third-party petition against Dead Sea, Ameribrom, and the Del Monte entities and delivered a courtesy copy of that petition to Dead Sea. More than thirty days had elapsed since Dow had served its original answer in state court, and Dow did not obtain state court leave prior to filing the third-party petition. Regardless, on the same day that Dow filed its third-party petition, Dead Sea removed the case to the Southern District of Texas, Galveston Division.¹¹ Predictably, the other defendants joined in the removal, asserting additional bases of subject matter...