Dow Chem. Co. v. Calderon

Dow Chem. Co. v. Calderon

Opinion

 [*829]  BERZON, Circuit Judge:

The Dow Chemical Company, Shell Oil Company, and Shell Chemical Company ("the Companies") sued more than a thousand Nicaraguan citizens ("the Nicaraguans") in federal district court in California. The Companies seek a declaration that (1) they are not liable for any injuries to the Nicaraguans caused by dibromochloropropane, a toxic pesticide commonly known as "DBCP"; and (2) any judgments of Nicaraguan courts to the contrary are not enforceable in this country. The question before us is whether the Nicaraguans consented to personal jurisdiction by either (1) choosing to file suit in Nicaragua under a Nicaraguan law that requires American companies to deposit a specified sum or submit unconditionally to the jurisdiction of U.S. courts; or (2) defending on the merits a declaratory judgment action brought by a different company in the same federal district court concerning the same set of underlying Nicaraguan judgments. The district court rejected both of these contentions. Agreeing [**3]  with the district court, we hold that the Nicaraguan defendants did not consent to personal jurisdiction in this action.

I. FACTUAL AND LEGAL BACKGROUND

The underlying disputes in this case concern whether the Companies are liable for injuries allegedly caused by exposure to DBCP. DBCP was used by fruit and vegetable growers throughout the world in the 1950's, 60's, and 70's. By 1979, use of DBCP in the United States was generally prohibited.

Thousands of plaintiffs, including several Nicaraguans, brought suit in the United States in the mid-1990's against both the manufacturers of DBCP and fruit companies that allegedly continued to use DBCP in developing countries after it was banned in the United States. See  Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1335-36 (S.D. Tex. 1995). With respect to the Nicaraguan plaintiffs, the court in Delgado determined that Nicaraguan courts offered an adequate and more convenient alternative forum, see  id. at 1362, and dismissed the suit on forum non conveniens grounds. See  id. at 1372-73.

In 2001, the National Assembly of Nicaragua passed the "Special Law for the Conduct of Lawsuits [**4]  Filed By Persons Affected By the Use of Pesticides Manufactured with a DBCP Base," known as "Special Law No. 364." ¹ Of import to this appeal are two procedural sections, Articles 4 and 7 of Special Law No. 364.

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