Rodriguez Delgado v. Shell Oil Co.
| Decision Date | 21 June 2004 |
| Docket Number | No. CIV.A. H-94-1337.,CIV.A. H-94-1337. |
| Citation | 322 F.Supp.2d 798 |
| Parties | Franklin RODRIGUEZ DELGADO, et al., Plaintiffs, v. SHELL OIL COMPANY, et al., Defendants. Del Monte Fresh Produce, N.A., Third-Party Plaintiff, v. Dead Sea Bromine Co., Ltd. and Ameribrome, Inc., Third-Party Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Joseph St Amant, New Orleans, LA, pro se.
John S. McEldowney, Greer Herz & Adams, Galveston, TX, Edward Taylor Moore, Attorney at Law, LaPorte, TX, Stephen D. Susman, Susman Godfrey, Houston, TX, Fred Misko, Jr., Attorney at Law, Dallas, TX, for Plaintiffs.
Don Allen Weitinger, Weitinger & Dressler, Houston, TX, Joseph L. Waitz, Waitz & Downer, Houma, LA, for Intervenor-Plaintiff.
John L. Hill, Jr., Locke Liddell et al, Jose A. Berlanga, Gardere Wynne et al, F. Walter Conrad, Jr., Baker Botts, D. Ferguson McNiel, Vinson & Elkins, Samuel E. Stubbs, Pillsbury Winthrop LLP, Robert Alton Shults, Shults & Beale PLLC, Bradley Wayne Cole, Coats Rose, Thomas Jeffrey Brandt, Houston, TX, Stephen C. Lewis, Barg Coffin Lewis & Trapp, San Francisco, CA, Michael L. Rice, Terence M. Murphy, Jones Day, Dallas, TX, James J. Juneau, Juneau & Boll, Addison, TX, for Defendants.
MEMORANDUM AND ORDER OF REMAND
Pending before the court are Costa Rican Plaintiffs' Motion to Remand for Ruling on Request for Return Jurisdiction (Docket Entry No. 495) and Motion for Reinstatement of Claims by Plaintiffs from Costa Rica (Docket Entry No. 438). Plaintiffs' motion to remand (Docket Entry No. 495) challenges the court's subject matter jurisdiction to rule on their motion to reinstate (Docket Entry No. 438). At issue is whether, following the Supreme Court's opinion in Dole Food Co. v. Patrickson, 538 U.S. 468, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003), this court has jurisdiction to rule on plaintiffs' motion to reinstate and, if not, whether the underlying cases can be remanded to state court. For the reasons explained below, the court concludes that it lacks subject matter jurisdiction to rule on plaintiffs' motion to reinstate. Consequently, plaintiffs' motion to remand for lack of subject matter jurisdiction will be granted.
In 1994 foreign banana workers allegedly injured by exposure to the chemical dibromochloropropane (DBPC) filed four separate actions in Texas state courts. One of the named defendants in each of these cases impleaded third-party defendants, Dead Sea Bromine Co., Ltd. and Ameribrome, Inc. (Dead Sea entities). Asserting that they were instrumentalities of the State of Israel under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602, et seq. (FSIA), the Dead Sea entities removed each case to federal court under 28 U.S.C. § 1441(d), which permits removal of "[a]ny civil action brought in a state court against a foreign state." Arguing inter alia that the Dead Sea entities were not instrumentalities of a foreign state under the FSIA, plaintiffs moved to remand. "In response to plaintiffs' motion to remand defendants argued that federal subject matter jurisdiction was provided by the presence of [the] Dead Sea [entities] in the case and by the existence of complete diversity of citizenship and federal questions." Delgado v. Shell Oil Co. (Delgado II), 890 F.Supp. 1324, 1337 (S.D.Tex.1995).
On June 30, 1994, the court entered a Memorandum and Order in which it concluded that
Dead Sea, as a foreign sovereign, had a right to remove the case, but declined to decide whether Dead Sea's presence conferred subject matter jurisdiction until Dead Sea had an opportunity to fully present its sovereign immunity arguments. The court also deferred deciding whether alternative bases for subject matter jurisdiction existed until the parties submitted additional materials demonstrating the citizenship of Standard Fruit Co.
Delgado II, 890 F.Supp. at 1337 (citing Delgado v. Shell Oil Co. (Delgado I), 890 F.Supp. 1315, 1323 (S.D.Tex.1994)).1
On July 11, 1995, the court entered a Memorandum and Order in which it concluded that
[b]ecause Dead Sea was a foreign sovereign when plaintiffs were allegedly exposed to its DBCP ... [and b]ecause Dead Sea has waived its foreign sovereign immunity and has consented to the jurisdiction of this court, its presence confer[red] federal subject matter jurisdiction over the entire controversy.
Id. at 1372. The court conditionally granted defendants' motion to dismiss under the doctrine of forum non conveniens (f.n.c.), and ordered that a previously entered preliminary injunction "remain in effect pending further order of this court." Delgado II, 890 F.Supp. at 1372-1375. The court's Memorandum and Order also included a return jurisdiction clause.
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.2 In response plaintiffs refiled their claims in their home countries where some are still pending.3
On October 19, 2000, the Fifth Circuit affirmed this court's assertion of subject matter jurisdiction and f.n.c. dismissal of this case. Delgado v. Shell Oil Co. (Delgado III), 231 F.3d 165, 176 (5th Cir.2000)("Dead Sea is a foreign state for purposes of the FSIA and can create federal subject matter jurisdiction in actions that it properly removes to federal court.").
On April 16, 2001, the Supreme Court denied plaintiffs' application for certiorari. Delgado v. Shell Oil Co., 532 U.S. 972, 121 S.Ct. 1603, 149 L.Ed.2d 470 (2001). On February 24, 2003, the Supreme Court denied plaintiffs' motion for leave to file a petition for rehearing. Delgado v. Shell Oil Co., 537 U.S. 1229, 123 S.Ct. 1350, 154 L.Ed.2d 1095 (2003).
Alleging that their claims have been dismissed for want of jurisdiction by the highest court of Costa Rica, Costa Rican plaintiffs seek to have their claims reinstated in an American court pursuant to the return jurisdiction clause contained in the court's Memorandum and Order of July 11, 1995. See Delgado II, 890 F.Supp. at 1375.4
Alleging that their claims were dismissed for want of jurisdiction in a case that was affirmed by the Costa Rican Supreme Court, Costa Rican plaintiffs filed their Motion for Reinstatement of Claims by Plaintiffs from Costa Rica on April 1, 1996 (Docket Entry No. 438). On February 20, 1997, the court entered an Order (Docket Entry No. 472) denying plaintiffs' motion to reinstate "without prejudice to being reinstated as fully briefed upon the issuance of a mandate from the Fifth Circuit affirming the court's final judgment."
On December 11, 2000, plaintiffs filed a submission informing the court that
some of the Costa Rican plaintiffs have settled with all defendants. Some, however, have settled with the manufacturers of DBCP, but not with their employer. The motion for reinstatement as to Costa Rican plaintiffs thus remains pending as to those plaintiffs employed by the Standard Fruit Co./Dole Food Co. group of defendants.5
Plaintiffs also informed the court that they intended to petition the Supreme Court for certiorari to review the Fifth Circuit's decision and suggested that "[t]his [c]ourt may wish to further defer ruling on the Costa Rican motion for reinstatement until the Supreme Court's disposition of that petition."6 On May 30, 2001, the Ninth Circuit held in Patrickson v. Dole Food Co., 251 F.3d 795, 808 (9th Cir.2001), that the Dead Sea entities were not instrumentalities of a foreign state and, therefore, that there was no federal subject matter jurisdiction over banana-worker cases in which the Dead Sea entities had been named as third-party defendants. On June 25, 2001, plaintiffs filed a submission informing the court that the Motion for Reinstatement of Claims by Plaintiffs from Costa Rica was still pending, asserting that although the Supreme Court had denied their petition for certiorari, they intended to seek rehearing, and suggesting that the court should defer ruling on the motion until the Supreme Court ruled on their petition for rehearing.7 On February 6, 2002, the parties submitted a Joint Status Report in which they urged the court to defer ruling on plaintiffs' motion for reinstatement pending the Supreme Court's decision on the petition for certiorari filed in Patrickson, and plaintiffs informed the court that if certiorari was granted in Patrickson, they intended to seek rehearing in this case.8
On June 28, 2002, the Supreme Court granted certiorari in Patrickson. Dole Food Co. v. Patrickson, 536 U.S. 956, 122 S.Ct. 2657, 153 L.Ed.2d 834 (2002); Dead Sea Bromine Co., Ltd. v. Patrickson, 536 U.S. 956, 122 S.Ct. 2658, 153 L.Ed.2d 834 (2002). On April 22, 2003, the Supreme Court affirmed the Ninth Circuit's Patrickson decision in an opinion that squarely rejected the Fifth Circuit's Delgado holding:
The Dead Sea Companies, as indirect subsidiaries of the State of Israel, were not instrumentalities of Israel under the FSIA at any time. Those companies cannot come within the statutory language which grants status as an instrumentality of a foreign state to an entity a "majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof." [28 U.S.C.] § 1603(b)(2). We hold that only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement.
Dole Food Co. v. Patrickson, 538 U.S. 468, 123 S.Ct. 1655, 1660, 155 L.Ed.2d 643 (2003).
Based on the Supreme Court's opinion in Patrickson, plaintiffs and intervenors filed a Motion to Vacate Order of Dismissal and Injunction, and to Remand (Docket Entry No. 483). They argued that "[t]he Supreme Court's holding [in Patrickson] makes clear that this Court did not have jurisdiction when it denied remand of these consolidated cases and...
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