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United States District Court Eastern District of Missouri Eastern Division Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 1 of 23 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION SR. KATE REID, et al., ) ) Plaintiffs, ) ) vs. ) Case No. 4:11CV44 CDP ) DOE RUN RESOURCES CORP., et al., ) ) Defendants. ) MEMORANDUM AND ORDER Pending before me is the defendants‟ motion for a determination of foreign law pursuant to Federal Rule of Civil Procedure 44.1. The defendants have requested that the court determine that: (1) the plaintiffs‟ claims “originated” in Peru and are “fully barred” under Peruvian law so that, in accordance with Missouri‟s borrowing statute, Peru‟s shorter statute of limitations applies; and (2) under Missouri‟s choice-of-law analysis, Peru (and not Missouri or New York) has the most significant relationship to this action, so its substantive laws govern the plaintiffs‟ claims. The plaintiffs argue that these issues cannot be determined now on an incomplete record, and that if they can, the law of Missouri or New York (and not Peru) applies. In case the court disagrees, the plaintiffs also advance an interpretation of the relevant Peruvian law that is favorable to them. Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 2 of 23 PageID #: <pageID> I have considered the voluminous briefs and exhibits submitted by the parties, including the reports and rebuttal reports from the retained experts in Peruvian law, and I have also conducted my own research. After considering all of these materials, I have concluded that: (1) there has been no showing the plaintiffs‟ claims are fully barred in Peru and so Missouri‟s statute of limitations applies; and (2) I cannot determine without more discovery whether Peru‟s substantive law governs part or all of the plaintiffs‟ claims, and so I decline to make a Rule 44.1 ruling as to the content of that law. I. Background and Claims It is undisputed that this action involves polluting activities at a smelter of lead and other metals located in La Oroya, Peru, and allegedly owned directly or indirectly and/or controlled by the defendant companies and individuals. The plaintiffs, most of whom are represented by two American next friends, are Peruvian children (or persons who have attained the age of majority during litigation) who allege that they live near La Oroya and have been harmed by exposure to high levels of lead, cadmium, sulfur dioxide, and other toxic substances emitted from the smelter. All told, this action and its predecessor have spent the better part of a decade in both state and federal court. The parties are familiar with its procedural history, - 2 - Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 3 of 23 PageID #: <pageID> so I will not recount it here in any detail. In brief, after voluntarily dismissing an earlier case, the plaintiffs filed suit in Missouri state court in 2011, bringing state law claims of negligence and strict liability, civil conspiracy, and contribution. The defendants removed the case to federal court. This court has jurisdiction under 9 U.S.C. § 205 because the action relates to a foreign arbitration. See Reid v. Doe Run Res. Corp., 701 F.3d 840, 843 (8th Cir. 2012). At this time, this action consists of some twenty-odd cases consolidated for pretrial purposes and involving similar claims by more than 900 plaintiffs. The parties are engaged in limited discovery, and a special master has been appointed to assist with electronic discovery issues. II. Federal Rule of Civil Procedure 44.1 The defendants request that I make a determination of foreign law pursuant to Federal Rule of Civil Procedure 44.1. Under Rule 44.1, the determination of foreign law is a question of law – not fact – that can be based on any relevant source, “whether or not submitted by a party and whether or not admissible under the Federal Rules of Evidence.” United States v. Matya, 541 F.2d 741, 746 n.10 (8th Cir. 1976) (citing Fed. R. Civ. P. 44.1). The rule, adopted in 1966, gives courts wide discretion in accepting or rejecting evidence of foreign law. Id. (Rule 44.1 and its notes “avoid - 3 - Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 4 of 23 PageID #: <pageID> characterizing the process by which courts take cognizance of what the law is as judicial notice, thereby emphasizing the non-evidentiary nature of the process”). A court may conduct research on its own, especially if it wishes “to reexamine and amplify material that has been presented by counsel in partisan fashion or in insufficient detail,” but it is not obligated to do so; it may instead “insist on a complete presentation by counsel.” Fed. R. Civ. P. 44.1 advisory committee‟s note; but see also Twohy v. First Nat. Bank of Chicago, 758 F.2d 1185, 1193 (7th Cir. 1985) (“courts are urged to research and analyze foreign law independently,” especially because counsel‟s arguments are often one-sided); Faggionato v. Lerner, 500 F. Supp. 2d 237, 244 (S.D.N.Y. 2007). Although a court making a Rule 44.1 determination may examine any relevant material, “it is under no obligation to do so if the party whose burden it is fails to produce sufficient evidence that foreign law applies.” In re Vivendi Universal, S.A. Sec. Litig., 618 F. Supp. 2d 335, 340 (S.D.N.Y. 2009). Where the parties do not adequately prove foreign law so as to “enable the court to apply it in a particular case,” the law of the forum applies. Mzamane v. Winfrey, 693 F. Supp. 2d 442, 469 (E.D. Pa. 2010) (citing Bel-Ray Co., Inc. v. Chemrite Ltd., 181 F.3d 435, 440 (3d Cir. 1999)). A court has no duty to make further inquiries of a party - 4 - Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 5 of 23 PageID #: <pageID> who fails to prove the content of the applicable foreign law. See Vivendi, 618 F. Supp. 2d at 340. III. Missouri’s borrowing statute When Missouri is the forum state, its statutes of limitations generally apply. Keaton v. Crayton, 326 F. Supp. 1155, 1157–58 (Mo. Ct. App. 1969); Renfroe v. Eli Lilly & Co., 686 F.2d 642, 646 (8th Cir. 1982). Missouri has adopted a borrowing statute that imports another jurisdiction‟s limitations period under certain circumstances. See Combs v. Int’l Ins. Co., 354 F.3d 568, 578-79 (6th Cir. 2004) (history of borrowing statutes). Missouri‟s borrowing statute provides as follows: Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state. Mo. Rev. Stat. § 516.190. Under the plain language of this statute, see, e.g., State v. Owen, 216 S.W.3d 227, 229 (Mo. Ct. App. 2007), there are at least two prerequisites to its application. It will only be employed if: (1) the cause of action “originated” in the foreign jurisdiction, and (2) the cause of action is “fully barred” in that jurisdiction.1 1 Although it has not interpreted “cause of action” as this term is used in Section 516.190, the Supreme Court of Missouri has generally adopted the Black‟s Law Dictionary definition of a - 5 - Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 6 of 23 PageID #: <pageID> The first prong is easily met. For purposes of the borrowing statute, plaintiffs‟ claims originated in Peru because that is where the damage resulting therefrom was sustained and was capable of ascertainment. See Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992) (“originated” in Section 516.190 means “accrued”); Mo. Rev. Stat. § 516.100 (“accrued” means “when the damage resulting therefrom is sustained and is capable of ascertainment”); Benton v. Cracker Barrel Old Country Stores, Inc., 436 S.W.3d 632, 634 (Mo. Ct. App. 2014) (Section 516.100 definition also applies to where a cause of action accrued); see also Natalini v. Little, 185 S.W.3d 239, 243-44 (Mo. Ct. App. 2006). The plaintiffs argue otherwise, but their arguments run afoul of common sense. They do not allege that they have ever left Peru, so the damage they have allegedly suffered could not have been sustained and could not have been capable of ascertainment anywhere else. The second prong – that plaintiffs‟ claims are fully barred in Peru – has not been met. See Kampe v. Colom, 906 S.W.2d 796, 807 (Mo. Ct. App. 1995) (“fully “cause of action”: “a group of operative facts giving rise to one or more bases for suing.” Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). The plaintiffs have brought seven claims: two each of negligence, civil conspiracy, and absolute or strict liability (for each claim, one count against the entity defendants and one count against the individual defendants), as well as a claim of contribution based on the tortious conduct of entities acting in concert, against all of the defendants. The plaintiffs have not argued that each of their claims should be analyzed separately under the borrowing statute, so I presume, for the purpose of this order, that their claims constitute a single cause of action. - 6 - Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 7 of 23 PageID #: <pageID> barred” is prerequisite to application of Section 516.190).
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