Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 1 of 22 PageID #: 13495
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`LUIS ANTONIO AGUILAR MARQUINEZ, et
`al.,
`
`
`
`Plaintiffs,
`
`v.
`
`DOLE FOOD COMPANY, INC., et al.,
`
`Defendants.
`
`Civil Action No. 1:12-cv-00695-RGA
`
`(Consolidated with 00696, 00697, 00698,
`00699, 00700, 00701, 00702)
`
`
`PLAINTIFFS’ OPPOSITION TO MOTION BY DEFENDANTS SHELL
`OIL COMPANY, THE DOW CHEMICAL COMPANY, OCCIDENTAL
`CHEMICAL CORPORATION, AND AMVAC FOR SUMMARY JUDG-
`MENT AS TO ECUADORIAN PLAINTIFFS
`
`
`
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 2 of 22 PageID #: 13496
`
`
`
`Table of Contents
`Table of Contents ............................................................................................................................ ii
`Table of Authorities ........................................................................................................................ iii
`Introduction ..................................................................................................................................... 1
`Nature and Stage of the Proceeding ................................................................................................ 1
`Summary of the Argument .............................................................................................................. 2
`Argument ........................................................................................................................................ 3
`Ecuador Constitutional and Organic Law does not impose any time limitation on
`I.
`Plaintiffs’ claims and supersede the Ecuador Civil Code. .......................................................... 4
`II.
`Even under Defendants’ approach, the Delaware limitations period applies. .................. 9
`A.
`The Borrowing Statute is applied by comparing the time periods specified by the
`Delaware and foreign statutes. ................................................................................................ 9
`B.
`Defendants authority does not support their position. ................................................ 13
`III. There are sufficient facts to determine Plaintiffs were diligent in pursuing their claims—
`especially because Defendants have not put forth any evidence that Plaintiffs knew of their
`claims let alone anything so conclusive to preclude a genuine issue of material fact. ............. 16
`Conclusion .................................................................................................................................... 17
`
`
`
`
`
`
`
`
`
`ii
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 3 of 22 PageID #: 13497
`
`
`
`Table of Authorities
`
`Cases
`American Sur. Co. of New York v. Gainfort, 219 F.2d 111 (2d Cir. 1955) .................................... 13
`Argentine Republic v. Amerada Hess Shipping Corp. 488 U.S. 428 (1989) ................................... 8
`Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................ 5
`Brown v. E.I. duPont de Nemours & Co., 820 A.2d 362 (Del. 2003) ..................................... 16, 17
`Burpulis v. Director of Revenue, 5498 A.2d 1082 (1985) ............................................................. 11
`Chavez v. Dole Food Co., Inc., 836 F.3d 205 (3d Cir. 2016) .......................................................... 1
`De Adler v. Upper New York Inv. Co. LLC, 2013 WL 5874645 (Del. Ch. Oct. 31, 2013) ...... 10, 14
`Department of Homeland Sec. v. MacLean, 574 U.S. 383 (2015) ................................................ 10
`Dow Chem. Corp. v. Blanco, 67 A.3d 392 (Del. 2013) .............................................................. 1, 7
`Dow Chemical Corp. v. Blanco, 67 A.3d 392, 394 (Del. 2013) ..................................................... 8
`Frombach v. Gilbert Assocs., 236 A.2d 363 (Del. 1967) .............................................................. 13
`Furnari v. Wallpang, Inc., 2014 WL 1678419 (Del. Super. April 16, 2014) ................................ 11
`Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d 254 (3d. Cir. 2012) ................................ 17
`Husband B. v. Wife B., 396 A.2d 169 (Del. Super. Ct. 1978) .......................................................... 8
`In re Asbestos Litig., 673 A.2d 159 (Del. 1995) ........................................................................... 16
`Jones v. USPS Postal Service, 2018 WL 324730 (D. Del. Jan. 8, 2018) ........................................ 5
`Jutrowski v. Township of Riverdale, 904 F.3d 280 (3d Cir. 2018) .................................................. 5
`Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ...................................................................... 17
`Marquinez v. Dow Chemical Co., 183 A.3d 704 (Del. 2018) ................................................. 1, 7, 8
`May v. Remington Arms Co., 2005 WL 2155229 (Del. Super. Ct. Aug. 31, 2005) ................. 14, 15
`Nationwide Mut. Ins. Co. v. Krongold, 318 A.2d 606 (1974) ................................................. 11, 12
`Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988) ............................ 7
`Pack v. Beech Aircraft Corp., 132 A.2d 54 (1957) ......................................................................... 9
`Pallano v. AES Corp., 2011 WL 2803365 (Del. Super. July 15, 2011) .................................... 4, 10
`Plumb v. Cottle, 492 F. Supp. 1330 (D. Del. 1980) ........................................................................ 9
`Strassman v. Essential Images, 2018 WL 5718286 (M.D. Pa. Nov. 1, 2018) ................................ 5
`TL of Florida, Inc. v. Terex Corp., 54 F. Supp. 3d 320 (D. Del. 2014) ......................................... 10
`Vichi v. Koninklijke Philips Elecs. N.V., 2009 WL 4345724 (Del. Ch. Dec. 1, 2009) .................. 10
`Youell v. Maddox, 692 F. Supp. 343 (D. Del. 1988) ...................................................................... 12
`
`
`
`
`
`iii
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 4 of 22 PageID #: 13498
`
`
`
`Statutes
`10 Del. Code § 8119 ........................................................................................................... 1, 2, 4, 7
`10 Del. Code § 8121 ................................................................................................................... 1, 2
`Article 2235 of the Ecuadorian Civil Code ................................................................................. 3, 9
`
`Rules
`Fed. R. Civ. P. 8(c) .......................................................................................................................... 5
`
`
`
`iv
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 5 of 22 PageID #: 13499
`
`
`
`Introduction
`
`The Ecuadorian Plaintiffs (“Plaintiffs”) in these consolidated cases respectfully file this
`
`Opposition to Motion By Defendants Shell Oil Company, The Dow Chemical Company, Occi-
`dental Chemical Corporation, and AMVAC For Summary Judgment As To Ecuadorian Plaintiffs
`(D.I. 356). Defendants’ motion should be denied, for the same reasons that a companion Motion
`by Dole For Summary Judgment As To Ecuadorian Plaintiffs (D.I. 334) should be denied. Under
`the Delaware Borrowing Statute, 10 Del. C. § 8121, there is no basis for using the Ecuador limi-
`tations statute to bar Plaintiffs’ claims.
`Defendants maintain that their Motion “fulfills Delaware’s ‘well recognized and legitimate
`public purpose’ to bar ‘ancient claims.’” D.I. 356 at 2 (citation omitted). But the Delaware Supreme
`Court has already rejected Defendants’ arguments to dismiss Plaintiffs’ claims under the Delaware
`limitations statute, Del. Code § 8119, in Dow Chem. Corp. v. Blanco, 67 A.3d 392 (Del. 2013),
`and Marquinez v. Dow Chemical Co., 183 A.3d 704 (Del. 2018). Plaintiffs’ claims are timely under
`the Delaware limitations statute, and Delaware public policy favors entertaining those claims. In-
`deed, the en banc Third Circuit has instructed (in an appeal of a related case) that DBCP litigation
`should proceed expeditiously. Chavez v. Dole Food Co., Inc., 836 F.3d 205, 234 (3d Cir. 2016) (en
`banc) (“We revive this litigation now, more than two decades after it began, while expressing our
`sincerest hope that it proceeds with more alacrity than it has to the present date.”). Plaintiffs are
`entitled to their long-delayed day in court.
`
`Nature and Stage of the Proceeding
`
`Plaintiffs worked on banana plantations in Ecuador, where they were exposed to a toxic
`
`pesticide called dibromochloropropane (DBCP), which causes sterility, cancer, and sexual and re-
`productive abnormalities. DBCP was suspended for use in the United States in 1977 and banned
`for all purposes in 1985 because of the harms it causes. Still, Defendants continued to expose
`Plaintiffs to DBCP without adequate protective equipment or precautions, which caused grievous
`injuries to their health. Plaintiffs sued in this Court on June 1, 2012.
`
`
`
`1
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 6 of 22 PageID #: 13500
`
`
`
`On September 18, 2020, this Court granted Defendants’ Motion for Application of Ecuador
`
`Law (D.I. 233) and ruled that Ecuador law governs Plaintiffs’ claims, other than their negligence
`claim, which is governed by Delaware law. (D.I. 324). In connection with that ruling, this Court
`held that Delaware’s Borrowing Statute applies here because Plaintiffs’ cause of action arises out-
`side this State. The Borrowing Statute provides:
`Where a cause of action arises outside of this State, an action cannot be brought in
`a court of this State to enforce such cause of action after the expiration of whichever
`is shorter, the time limited by the law of this State, or the time limited by the law of
`the state or country where the cause of action arose, for bringing an action upon
`such cause of action. Where the cause of action originally accrued in favor of a
`person who at the time of such accrual was a resident of this State, the time limited
`by the law of this State shall apply.
`
`
`
`10 Del. Code § 8121.
`This Court expressly did not decide whether application of the Borrowing Statute “means
`
`that Plaintiffs’ times are time-barred.” (D.I. 324, at 11). Instead, this Court concluded that “further
`analysis of Delaware’s Borrowing Statute would be more appropriate in the context of summary
`judgment.” (Id.) This Court added that “calculating the relevant limitations period under the Bor-
`rowing Statute would benefit, at a minimum, from more detailed briefing on the content of Ecua-
`dorian law and the factual situations of the individual Plaintiffs.” (Id. at 11–12.)
`
`Summary of the Argument
`
`Under the Borrowing Statute, Plaintiffs’ claims are governed by the Delaware statute of
`limitations. The Borrowing Statute directs the Court to apply the shorter of the two relevant laws
`governing limitations, “the time limited by the law of this State, or the time limited by the law of
`the state or country where the cause of action arose.” 10 Del. C. § 8121.
`I. The Delaware limitations period is the shorter period because under Ecuadorian law
`Plaintiffs could bring a constitutional claim (or “acción de protección”), which would not be gov-
`erned by any time limitation at all. So the Ecuador limitations period is longer than the relevant
`Delaware limitations statute, 10 Del. Code § 8119, which prescribes a two-year limitations period.
`
`
`
`2
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 7 of 22 PageID #: 13501
`
`
`
`II. Even under Defendants’ unfounded assumption that Plaintiffs’ claims in Ecuador would
`be limited to claims governed by Article 2235 of the Ecuadorian Civil Code, the Delaware Bor-
`rowing Statute would still point to the Delaware limitations provision in this case. The two-year
`Delaware statute of limitations applies here because on its face it prescribes a shorter time period
`than the four years prescribed by Article 2235. To be sure, the Delaware statute of limitations is
`subject to judicial tolling principles, which do not exist in Ecuador. But Delaware courts consider
`any tolling doctrines only after deciding which statute applies under the Borrowing Statute. Dela-
`ware rules of statutory interpretation confirm that the Borrowing Statute should be interpreted in
`that fashion. Thus, the Delaware borrowing statute points to the two-year Delaware limitations
`period, even under Defendants’ approach to Article 2235.
`III. The facts in the summary judgment record are sufficient facts to determine Plaintiffs
`were diligent in pursuing their claims—especially because Defendants have not put forth any evi-
`dence that Plaintiffs knew of their claims, let alone anything so conclusive to preclude a genuine
`issue of material fact.
`
`Argument
`
`The Delaware Borrowing Statute directs the Court to apply the shorter of the two relevant
`“laws” governing limitations, “the time limited by the law of this State, or the time limited by the
`law of the state or country where the cause of action arose”:
`Where a cause of action arises outside of this State, an action cannot be brought in
`a court of this State to enforce such cause of action after the expiration of whichever
`is shorter, the time limited by the law of this State, or the time limited by the law of
`the state or country where the cause of action arose, for bringing an action upon
`such cause of action.
`
`10 Del. C. § 8121.
`
`Here, the Court’s task is to determine whether the relevant Delaware statute of limitations
`
`is longer or shorter than its counterpart in Ecuador. Under this analysis, the Delaware statute of
`
`limitations applies for two reasons:
`
`
`
`3
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 8 of 22 PageID #: 13502
`
`
`
`1. Ecuador law would not impose any time limitation on Plaintiffs’ claims, while the rele-
`vant Delaware statute (Del. Code § 8119) prescribes a two-year limitations period. For these rea-
`sons, the Delaware limitations period is shorter.
`2. Even under Defendants’ argument that the relevant Ecuador statute prescribes a four-
`year period for personal injury claims, the two-year Delaware statute of limitations prescribes a
`shorter period. Two years is shorter than four years. The Delaware courts consider any tolling
`doctrines only after deciding which statute applies under the Borrowing Statute, as even the cases
`cited by Defendants prove. As a result, the Delaware borrowing statute points to the Delaware
`limitations period, even under Defendants’ approach.
`
`I. Ecuador Constitutional and Organic Law does not impose any time limitation on
`Plaintiffs’ claims and supersede the Ecuador Civil Code.
`
`Defendants argue that Plaintiffs’ claim would be governed by a four-year time-bar under
`Ecuador law. Defendants’ argument is wrong. As explained by Professor Maria Dolores Mino
`(“Mino Decl.,” attached as Exhibit 1 to D.I. 340), “the adequate remedy that the plaintiffs in this
`case could and most likely [would] pursue [in Ecuador] to obtain redress for their claim is the
`constitutional jurisdiction through ‘acción de protección,’” which is a constitutional claim that
`would be subject to no statute of limitations at all. Ex. 1, ¶ 16; Ex. 2 (Mino 2d Decl.), ¶ 16. De-
`fendants do not deny Professor Mino’s qualifications, nor could they. She is an expert on the Ec-
`uadorian Constitution, an alternate judge on the Constitutional Court in Ecuador, Professor of Law
`and Director of the Center for Transparency and Human Rights of Universidad Internacional del
`Ecuador, and the Executive Director of Observatorio de Derechos y Justicia, an Ecuadorian NGO
`that works on the promotion and protection of human rights. Ex. 1, ¶¶ 1–3; Ex. 2 ¶¶ 1–3.
`Defendants are wrong in arguing that the Ecuadorian constitutional claim cannot be con-
`sidered because it is “unpled.” Under the Borrowing Statute, courts ask whether the statute of
`limitations for an “analogous” foreign claim is longer or shorter than Delaware’s. Pallano v. AES
`Corp., 2011 WL 2803365, *4 n.37 (Del. Super. July 15, 2011). That standard is more than met
`here. Indeed, Professor Mino has opined that the facts alleged in Plaintiffs’ complaint as currently
`
`
`
`4
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 9 of 22 PageID #: 13503
`
`
`
`pled already state a constitutional claim: “According to the facts alleged in the Complaint, the
`plaintiffs in this case can pursue redress under the [acción de protección] against the defendants
`under article 88 of the [Ecuador Constitution], at any time. The plaintiffs may argue that the de-
`fendant violated their constitutional right to health when a) it did not take any measures to prevent
`labor-related illnesses among workers; and b) once those illnesses were reported, no measure was
`adopted to provide redress to the plaintiffs.” Ex. 1, ¶ 7(8) (emphasis added). “[T]he claims pre-
`sented by the plaintiffs in this case fall under constitutional and human rights law.” Ex. 1, ¶ 17.
`“The facts of the case could therefore be subject matter for an [acción de protección], regardless
`the moment of their occurrence.” Ex. 1, ¶ 7(c); see also Ex 2, ¶ 7(a), (d). Plaintiffs need not amend
`their Complaint to add a constitutional claim. The claim is already there.
`Defendants contend Plaintiffs have not labeled their claim as “acción de protección.” They
`ignore Professor Mino’s testimony that a claim of negligence can be brought as an acción de pro-
`tección. Ex. 1, ¶ 10 (“the fact that the negligent conduct of the defendant caused harm to the plain-
`tiffs’ health, gives them grounds to present successfully an [acción de protección]”); Ex. 2, ¶ 8.
`Hence, Plaintiffs’ negligence claim already qualifies as an acción de protección in Ecuador. More-
`over, Defendants’ focus on a claim’s label is misplaced. A plaintiff need only present “a short and
`plain statement of the claim showing that the pleader is entitled to relief.” Jutrowski v. Township
`of Riverdale, 904 F.3d 280, 293 n.14 (3d Cir. 2018) (quoting Fed. R. Civ. P. 8(c)). “[A] com-
`plaint...must contain either direct or inferential allegations respecting all the material elements
`necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S.
`544, 562 (2007) (internal quotation marks and citation omitted; emphasis in original). “[I]mperfect
`statements of the legal theory supporting the claim asserted” are not a basis for dismissal. Jones v.
`USPS Postal Service, 2018 WL 324730, *2 (D. Del. Jan. 8, 2018) (Andrews, J.); see also Strass-
`man v. Essential Images, 2018 WL 5718286, *4 (M.D. Pa. Nov. 1, 2018) (no need to plead “spe-
`cific legally cognizable claims”).
`Defendants submit a declaration from Dr. Santiago Velázquez Coello (D.I. 356-1, Ex. B),
`which strikingly does not dispute Professor Mino’s conclusion that the facts already pleaded in
`
`
`
`5
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 10 of 22 PageID #: 13504
`
`
`
`Plaintiffs’ Complaint state a claim under the Ecuadorian Constitution. Dr. Velázquez asserts in
`conclusory fashion that an acción de protección would be barred by principles of retroactivity, but
`he offers nothing to challenge the specific examples cited by Professor Mino allowing constitu-
`tional claims to be raised even if they depend on facts antedating the 2008 adoption of the current
`Ecuadorian Constitution. Ex. 1, ¶ 7(c) (“[S]everal AP regarding facts that occurred before the
`entry into force of the EC in 2008, have been successfully litigated in the constitutional jurisdiction
`after the entry into force of the EC in 2008.”); Ex. 2, ¶¶ 7(c), 9–16 (detailing the jurisdictional law,
`doctrinal precedent, and practical precedent of retroactive application of the 2008 Ecuadorian Con-
`stitution).
`Dr. Velázquez contends that constitutional claims cannot be asserted because Ecuadorian
`labor courts are available to hear worker rights claims. But he ignores Professor Mino’s testimony
`that in several decisions the Ecuadorian Constitutional Court has recognized constitutional juris-
`diction to hear worker rights claims in Ecuador. Ex. 1, ¶ 7(e). The Constitutional Court “has rec-
`ognized that employers that violate the rights of workers must pay for damages under the broader
`concept of ‘full reparations.’ Also, the [Court] has stated in one particular case, that workers that
`have suffered labor-related illnesses are to be recognized as victims, and therefore receive a just
`compensation for the violations of their constitutional rights.” Id. ¶ 7(f). “[T]he fact that Ecuado-
`rian legal framework has both civil and labor-related remedies, do not bar the plaintiff to present
`an acción de protección in this case, because he is claiming the existence of human rights viola-
`tions, and seeking redress for them.” Id. ¶ 31. Further, contrary to Dr. Velázquez’s view, Plaintiffs
`would need not exhaust their claims before seeking constitutional redress. Ex. 2, ¶¶ 7(e), 17–19.
`Dr. Velázquez also asserts that a civil law claim in Ecuador would be governed by a differ-
`ent set of procedural rules from a constitutional claim, so that “it is not possible for a civil trial for
`damages to become a constitutional case.” D.I. 356-1, Ex. B, at 10. But that scenario is irrelevant.
`Plaintiffs do not propose to file a civil law claim in Ecuador and then seek to transform it into a
`constitutional claim. Indeed, the fact that different rules apply to the two procedures is exactly the
`point. As Professor Mino explains, “[t]he Constitutional jurisdiction has its own rules of procedure,
`
`
`
`6
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 11 of 22 PageID #: 13505
`
`
`
`that differ from those that apply to Civil Law. . . . Therefore, plaintiffs in this case would not be
`affected by the . . . 4-year statute of limitations set forth in Ecuador’s Civil Code, if they were to
`pursue redress through an acción de protección.” Ex. 1, ¶ 15; Ex. 2, ¶ 7(b), 11, 14.
`Defendants argue that an Ecuadorian constitutional claim would be contrary to Delaware
`public policy because (supposedly) it would surprise Defendants with unexpected liability. D.I.
`356, at 17. In other words, after urging this Court to apply Ecuador law, Defendants now insist that
`it would be unfair to do so. Defendants should be judicially estopped from seeking to disavow
`Ecuador law, see Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.
`1988), and in any event their new-found argument has no merit, for multiple reasons. First, De-
`fendants cite no case under the Delaware Borrowing Statute holding that a foreign limitations pe-
`riod may not even be considered in the Borrowing Statute analysis if it is “too long.”1 And for
`good reason; the very purpose of the Borrowing Statute is to select the shorter limitation period
`when a foreign plaintiff brings a claim arising in a foreign jurisdiction. If the foreign limitations
`period is “too long,” then it will not be applied under the Borrowing Statute. No issue of Delaware
`“public policy” will arise because the foreign limitations period will not govern. Put another way,
`if Defendants were right that Ecuador limitations law should not be applied because it would vio-
`late “public policy,” then the solution would be to apply the two-year Delaware limitations statute
`(Del. Code § 8119), under which Plaintiffs’ claims are timely. That is the appropriate outcome and
`the one Plaintiffs seek.
`In addition, Defendants’ contention that an Ecuadorian constitutional claim would surprise
`Defendants with unexpected liability is far-fetched. The Delaware Supreme Court has twice re-
`jected dismissal of Plaintiffs’ claims on limitations grounds and has twice allowed them to go
`forward. The Delaware Supreme Court has found that Plaintiffs’ claims do not constitute undue
`
`
`1 Defendants cite the Restatement (Second) of Conflict of Laws § 90, comment a (cited D.I.
`356, at 17), but the Restatement explains that “[t]he rule of this Section has a narrow scope of
`application” and does not apply to “a preliminary step to the rendition of a judgment on the
`merits” – such as the specialized analysis under the Borrowing Statute.
`
`
`
`7
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 12 of 22 PageID #: 13506
`
`
`
`surprise in light of the DBCP putative class actions filed against Defendants nearly three decades
`ago, in 1993. In Dow Chem. Corp. v. Blanco, 67 A.3d 392 (Del. 2013), the Court noted that “[t]he
`commencement of a class action against the defendants in this case, whether here or in another
`jurisdiction, puts the defendants on notice of the substance and nature of the claims against them.”
`Id. at 393. The Court found that “all of the defendants to be bound by the ultimate decision in this
`case were clearly on notice of the action at the outset.” Id. at 394 (internal quotation marks and
`citation omitted). In Marquinez v. Dow Chemical Co., 183 A.3d 704 (Del. 2018), the Court again
`rejected Defendants’ objections of unfair surprise and reiterated that, in light of the long history of
`DBCP litigation, “a defendant will be on notice that the plaintiff intends to press his claims.” Id.
`710 (internal quotation marks and citation omitted).2 The cases cited by Defendants are inapt and
`do not support their arguments of unfairness in this case. Husband B. v. Wife B., 396 A.2d 169, 171
`(Del. Super. Ct. 1978) (cited D.I. 356, at 17), involved “vested rights, such as rights arising from
`contracts between the parties,” in the context of a divorce proceeding. Defendants enjoy no such
`rights, particularly in light of the Delaware Supreme Court decisions rejecting the Defendants’
`arguments.
`Defendants next maintain that “private rights of action under international human rights
`instruments are not cognizable here.” D.I. 356, at 18. But Plaintiffs are not asserting a “private
`right of action” under an international treaty; theirs is a constitutional claim under the Ecuadorian
`Constitution. The cases cited by Plaintiffs involve specific treaties that did not create private rights
`of action to enforce them, such as the Geneva Convention on the High Seas and the Pan American
`
`2 Further, the Delaware courts have also noted that Defendants themselves are responsible for
`the delay in this litigation, and it would be ironic to reward them from such tactics. “[A] fairer
`reading of the procedural history here is that defendants have attempted to tranquilize these
`claims through repeated forum shopping removals and technical dismissals, playing for time
`and delay and striving to prevent, or arguably frustrate, the claims from ever being heard on
`the merits in any court.” Blanco v. AMVAC Chemical Corp., 2012 WL 3194412, *12 (Del.
`Super. Aug. 12, 2012). The Delaware Supreme Court agreed: “Defendants have caused a lot of
`the delay—upon which they now seek to rely—through their own procedural maneuvering and
`they may not take refuge behind it. Plaintiff here has tried to act continuously since the filing
`of the original [ ] action, and has been procedurally thwarted at every turn by defendants . . . .”
`Dow Chemical, 67 A.3d at 394 (quoting the Delaware Superior Court).
`8
`
`
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 13 of 22 PageID #: 13507
`
`
`
`Maritime Neutrality Convention. E.g., Argentine Republic v. Amerada Hess Shipping Corp., 488
`U.S. 428, 442 (1989). Defendants have cited no cases refusing to consider a claim arising under a
`foreign constitution merely because that constitution embodies norms from (and is interpreted con-
`sistent with) international agreements.
`
`II. Even under Defendants’ approach, the Delaware limitations period applies.
`A. The Borrowing Statute is applied by comparing the time periods specified by the Del-
`aware and foreign statutes.
`
`Even under Defendants’ unfounded assumption that Plaintiffs’ claims in Ecuador would be
`limited to claims governed by Article 2235 of the Ecuadorian Civil Code, while ignoring constitu-
`tionally protected claims, the Delaware Borrowing Statute would still point to the Delaware limi-
`tations provision in this case. Delaware courts apply the Borrowing Statute by comparing the stat-
`utorily prescribed limitations period of Delaware law with the statutorily prescribed period of the
`foreign forum. The courts consider any judicially created tolling doctrines only after deciding
`which statute applies under the Borrowing Statute. That is precisely how Defendants describe the
`proper approach in their Motion: “When another jurisdiction’s statute of limitations applies, ‘the
`borrowed statute is accepted with all its accoutrements,’ including rules governing accrual and
`tolling.” (D.I. 356 at 8–9 (quoting Plumb v. Cottle, 492 F. Supp. 1330, 1336 (D. Del. 1980) (em-
`phasis altered))).The court applies rules governing accrual and tolling only after determination to
`apply the shorter limitations period. In this case, the two-year Delaware statute applies because it
`is shorter on its face than Article 2235 (four years).
`In Pack v. Beech Aircraft Corp., 132 A.2d 54, 57 (1957), for example, the Delaware Su-
`preme Court held that the two-year limitation provision of the New Jersey wrongful death statute
`applied rather than the Delaware general three-year limitation statute without considering any toll-
`ing provisions. The Court explained that the Borrowing Statute should be applied by focusing on
`the limitations periods specified by the statutes being compared. Pack was decided only ten years
`after the Borrowing Statute’s 1947 enactment, and the Delaware Supreme Court plainly interpreted
`the word “law” in the Borrowing Statute to refer to the relevant statute of limitations:
`
`
`
`9
`
`

`

`Case 1:12-cv-00695-RGA-SRF Document 360 Filed 02/12/21 Page 14 of 22 PageID #: 13508
`
`
`
`Id.
`
`If a non-resident chooses to bring a foreign cause of action into Delaware for en-
`forcement, he must bring the foreign statute of limitations along with him if the
`foreign statute prescribes a shorter time than the domestic statute. . . . On its face,
`therefore, the general purpose of the statute is to shorten the period of limitation
`applicable to actions arising in foreign jurisdictions if the foreign statute specifies
`a shorter period; with a proviso, however, that the rights of a certain class of resi-
`dents shall be unaffected by the change. Such, we think, is the clear and obvious
`meaning of the statute.
`
`Defendants would read the word “law” in the Borrowing Statute as meaning “judicial de-
`cisions as well as statutes,” which is contrary to how the word “law” is used elsewhere in Title 10,
`Part V (Limitations of Actions), Chapter 81. E.g., section 8134(a) (“The provisions of any law,
`rule or regulation to the contrary notwithstanding . . . .”). The “Laws of Delaware” are not a sum-
`mary of court rulings but rather the collection of legislative enactments before their codification
`in the Delaware Code. See also Department of Homeland Sec. v. MacLean, 574 U.S. 383, 395
`(2015) (“‘Specifically prohibited by law’ here means statute.”) (citation omitted). Defendants
`would also vastly complicate judicial inquiry under the Borrowing Statute by requiring intensive
`inquiries into foreign judicial decisions and into how foreign courts might apply their statutes in
`practice, rather than allowing courts to rely on the time limits prescribed by foreign statutes on
`their face. Defendants have no answer to any of these points.
`The Delaware courts consistently follow Plaintiffs’ interpretation:
`
`TL of Florida, Inc. v. Terex Corp., 54 F. Supp. 3d 320, 328 (D. Del. 2014) (considering
`tolling principles only after concluding that Delaware’s limitations statute was shorter on its face);
`
`De Adler v. Upper New York Inv. Co. LLC, 2013 WL 5874645, *13 & n.149 (Del. Ch. Oct.
`31, 2013) (determining that the Delaware limitations statute of three years was shorter than the
`Ecuadorian statute of ten years by consulting the texts of the statutes on their face, without con-
`sidering tolling or accrual principles – “regardless of claim accrual or tolling under Ecuadorian or
`Delaware law”);
`
`Vichi v. Koninklijke Philips Elecs. N.V., 2009 WL 4345724, at *17 (Del. Ch. Dec. 1, 2009)
`(selecting three-year Delaware statute of limitation, and only afterwards considering tolling prin-
`ciples under Delaware law, including “three doctrines that may to