When we say “bananas,” today’s case is actually about bananas, that herb people tend to call a fruit.  It is also quite unusual and complicated.  Because it also involves some tragic underlying events, our quips are done.  A bit of etymology is warranted, though.  We used the term “judge-made law” in the title and that can have a negative connotation sometimes.  Many of the substantive due process rights recognized by the United States Supreme Court in the roughly seventy years before the current term could be called “judge-made.”  Critics of those decisions might even label the justices who authored them as “activist judges,” which we find to be an over-used appellation.  When referring to common law, which still forms a large chunk of the law we feature on this Blog, there is typically no dig about its origin.  Was Judge Pigot an activist judge when he wrote the decision in the “Case of Thorns” (Hulle v. Orynge)?  Are the early state cases recognizing the learned intermediary doctrine for cases about prescription medical products more “judge-made” than those that followed that carved out exceptions?  We suppose this is one of those “eye of the beholder,” or perhaps “mouth of the advocate,” situations.

In Garcia v. Chiquita Brands Int’l, Inc., __ F.4th __, 2022 WL 4100393 (11th Cir. Sept. 8, 2022), the application by a federal court sitting in diversity of the Colombian statute of limitations for personal injury actions turns in large part on the class action tolling rule being “judge-made law.”  We will try to unpack this mad tangle of Erie R.R. Co. v. Tomkins, choice of law, and class action law.  Usually when we talk about Erie here, we are talking about the need for federal courts sitting in diversity to exercise restraint when they predict state law.  For instance, in a case about a class III medical device, the court should be very hesitant to create some new state cause of action as a way to create a path to avoid preemption.  The judges on a state’s highest court can make new law, but the federal judge sitting in diversity really should not.  Garcia adds the wrinkle of what happens when the “state” is another country.  The short answer is that there should be similar restraint, but the steps to get there are not simple.

Our recounting of the underlying facts and procedural posture, however, has been simplified.  The defendant apparently utilized the services of AUC, a well-known paramilitary/terrorist group—see Narcos and other depictions of the cocaine trade—to intimidate banana workers through acts of violence.  We say “apparently” instead of “allegedly” because the defendant pleaded guilty to violating a presidential order relating to national security under 50 U.S.C. § 1705(b).  2022 WL 4100393, *2.  (We note that Garcia says this plea happened in the “District Court for the District of Colombia [sic]” and that 1705(b) is the civil penalties subsection, but we will treat it like Garcia did—as a violation of U.S. criminal law.)  In 2007, those allegedly affected by these acts brought a class action called Cardona in the District of New Jersey under the Alien Tort Statute, the Torture Victims Protection Act, New Jersey law, and Colombian law.  Cardona was sent with other actions to a new MDL down in the Southern District of Florida in 2008.  Eventually, after some claims had been culled, in March 2017, the Cardona plaintiffs sought to amend to add “several hundred additional plaintiffs.”  That was denied and, in May 2019, so was class certification.  Then those additional plaintiffs—presumably all Colombian citizens—brought a new (non-class) suit in the District of New Jersey—the defendant is incorporated in NJ—asserting a range of claims under New Jersey and Colombia (but not federal) law.  The new case was sent back to the same aged MDL in the Southern District of Florida.  Then, the Colombian claims were dismissed with prejudice as time-barred and the New Jersey claims were dismissed on extraterritoriality.  After the denial of a Rule 59 motion, an appeal followed on the Colombian claims only.

As different as the facts and case history above are from what we normally cover, there are several common issues.  Most of them are more on the procedural side, but class action tolling popularized in the U.S. Supreme Court’s American Pipe decision can have a major impact in serial product liability litigation.  We can remember many exchanges where we describe our core practice to a non-lawyer and have been met with a version of “oh, you do class actions.”  Our response, time and patience permitting, may explain why class actions tend not to work for these sorts of cases except for settlement classes.  Our elevator explanation notwithstanding, persistent plaintiff lawyers do bring class actions that have broad proposed class definitions that would make many future plaintiffs “putative class members.”  Because the nature of modern advertising-driven litigation means that a chunk of all claims will be brought after the statutes of limitation have expired absent some sort of tolling, the pendency of a class action—and they do tend to pend—can save a bunch of cases that would otherwise be S.O.L. on S.O.L.  This is particular problematic where the class action was pending in a different jurisdiction than where the otherwise time-barred cases were brought.  Indeed, if Garcia had involved two states, rather than a state and a sovereign nation, then we would have included it on our cross-jurisdictional class action tolling scorecard.

Colombia has a ten-year statute of limitations for the individual claims asserted in Garcia and the conduct at issue all occurred before 2005.  Garcia was filed in March 2020, so even if the 2017 request to amend in Cardona counted as initiation of the claims in Garcia, significant tolling would be required to save every claim from the Colombia statute of limitations, if it applied.  Twelve years of class action tolling, if it applied, would do the trick.  But how do you get American Pipe to apply to claims brought under Colombia law in a case filed directly in the District of New Jersey?  Here, at least, the answer was that you cannot mix and match like that.

Based on Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3 (1975), the analysis for determining whether to apply the substantive law of a foreign country is the same as for substantive state law.  2022 WL 4100393, **3-4.  The Eleventh Circuit developed a “four-step process” for deciding which law should apply under ErieId. at *4 (citing Esfeld v. Costa Crociere, 289 F.3d 1300 (11th Cir. 2002)).  Garcia was filed in a federal court New Jersey, so its choice-of-law rules apply despite the transfer.  Being a state with lots of out-of-state plaintiffs in its courts, New Jersey had specific guidance on determining choice-of-law for statute of limitations.  Id. at *5 (citing one of the many McCarrell decisions from Accutane litigation).  Choice of law analyses always start with determining a conflict.  New Jersey has class action tolling and, according to Garcia, Colombia does not.  The latter determination involved a deep dive into Colombia’s law, which we will skip.  The tenor, though, was one of restraint, rather than projecting the court’s view of what the law should be:

In short, Colombian law has not spoken on class tolling.  And that silence speaks volumes because, as a civil law country, Colombia establishes its laws almost exclusively through criminal and civil statutes – not from the decisions of its courts.

Id. at *6.  Because the application of class action tolling vel non would be outcome determinative, the next steps under McCarrell were to determine if maintaining an action “would serve no substantial interest” of New Jersey and if Colombia had a “more significant relationship to the parties and the occurrence.”  Id. at *8.  Both clearly weighed in favor of applying Colombia’s statute of limitation law, which would bar the claims.

The next inquiry under Erie/Esfeld was “whether a congressional statute or Federal Rule of Civil Procedure covers the disputed issue.”  Id. at *9 (citation omitted).  The inquiry was not whether “federal law covers the disputed issue.”  Class action tolling under American Pipe may be federal law, but it came from judges and has not been incorporated into the Federal Rules of Civil Procedure.  In this sense, the law established by a clear Supreme Court decision did not count.  Id.  If it did, then the result of the New Jersey choice-of-law analysis would have been reversed.  We can dispense with the last two Erie/Esfeld inquiries fairly quickly.  Failure to apply Colombia’s law would lead to different outcomes in state and federal court, which is contrary to one of the purposes of Erie.  Id.  In addition, federal interests did not weigh in favor of applying federal law over Colombia’s laws.  Id. at **10-12.  While Garcia did not expressly address the issue of whether cross-jurisdictional class action tolling is ever appropriate, we note that it did cite a few cases that did reject this particular species of tolling.  Compare id. at *12 with this post.  It did recognize that New Jersey’s interest in having its class action tolling apply was limited because the prior Cardona class on which potential tolling would be based was filed in New Jersey state court.  2022 WL 4100393, *9.  In the end, of course, an attempt at cross-jurisdictional class action tolling was rejected.

All of that analysis came across as thorough and well-reasoned.  While we certainly have no dog in the fight, Garcia’s decision to reverse of dismissal with prejudice and remand with instructions that plaintiffs should be permitted to amend did not.  For one thing, it was analyzed under Fed. R. Civ. P. 15, which is the right rule for addressing a motion to amend a pleading.  But plaintiffs filed a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e).  Although Garcia referred to this loosely as an “application to amend” and a “request to amend,” it is not the same thing as a motion to amend a pleading.  Id. at *3.  Second, given the long history here, relying on a pre-TwIqbal case that a plaintiff should get a second shot to state a claim with a “more carefully drafted complaint” is not terribly persuasive.  Id. at *13 (citation omitted).  Third, the rejection of the district court’s ruling that plaintiffs had waived an alternative tolling argument—that some of them were minors before March 2010—because “dismissal with prejudice” was a “hefty sanction” seemed off.  Id. at *14.  Dismissal here was based on the determination, after full briefing, that the case was time-barred, not as a sanction.  We are used to the old saw that appellate courts like to find waiver.  Maybe that is just judge-made, so it did not count here.