Abdur Rahaman v. J.C. Penney Corporation, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ABDUR RAHAMAN

as Pers0nal Representative of
SHARIFA BELGUM and
MAHAMUDUL HASAN HRIDOY,

Plaintiffs,
V».;- C.A. N0. Nl5C-O7-174 MMJ
J.C. PENNEY CORPORATION, INC.,
THE CHILDREN’S PLACE, and
WAL-MART STORES, INC.

Defendants.

\./S&\J§/§\J§\./\J§/§\J§

Submitted: February 3, 2016
Decided: May 4, 2016

Upon Defendants’ Motion to Dismissl
GRANTED

ORA PI1§I__!QFNJ

Jonathan Greenbaum, Esq. (Argued), Barry Coburn, Esq., Coburn & Greenbaum
PLLC, Peter B. AndreWs, Esq., Craig J. Springer, Esq., AndreWS & Springer LLC,
Attorneys for Plaintiffs

Mary E. Gately, Esq. (Argued), Victoria Brun0, Esq., John Reed, Esq., DLA Piper
LLP (US), Attorneys for Defendant The Children’s Place, Inc.

Robert P. Fletcher, Esq. (Argued), Robert F. Reklaitis, Esq., Jeffrey L. O’Hara,
Esq., AndreW L. Cole, Esq., LeClair Ryan, Attorneys for Defendant J.C. Penney
C0rp0rati0n, Inc.

David Deb0ld, Esq. (Argued), Thomas Dupree, Esq., Jason R. Meltzer, Esq.,
Gibs0n, Dunn & Crutcher LLP, Stephen C. Norlnan, Esq., Potter Anderson &
Corroon LLP, Attorneys for Defendant Wal-Mart St0res, Inc.

JOHNSTON, J.

The Delaware Supreme Court held that Mexican law applied to the case. In
examining the four contacts, the Court found: (1) the injury occurred in Mexico,
which was not considered fortuitous because the victims were Mexican citizens;”
(2) although the defective helicopter part was manufactured in Texas, it was never
intended to be used in Texas and was used only in Mexico;z" (3) plaintffs’ location
(Mexico) was more pertinent than that of Bell Helicopter (Texas) because "the
decedents’ representatives live with the consequence of the decedents’ deaths in
Mexico;"z$ and (4) the relationship between the parties was centered in Mexico
because that is where the helicopter crash occurred.%

In the present case, the "most significant relationship test" favors the
application of Bangladeshi law. The first contact_"the place where the injury
occurred"_favors applying Bangladeshi law. The injuries suffered by Plaintiffs
occurred in Bangladesh as a result of the collapse of Rana Plaza. As in Bell
Helicopter, the fact that the injuries occurred in Bangladesh is not fortuitous. The
victims in this case are Bangladeshi citizens, working in a factory in Bangladesh.
Plaintiffs were not "fortuitously" in Bangladesh_they were there as citizens

reporting to work.

23 ra'. ar 1053-54.
24 1a at 1054-56.
25 ld. ar 1056.

26 1a ar 1056-57.

ll

The second contact-the place where the conduct causing the injury
occurred_favors applying Bangladeshi law. The Complaint states that
Defendants’ failure to monitor the construction of Rana Plaza and to inspect the
building to ensure compliance with local building codes led to the building’s

7

collapse.z Accordingly, the alleged negligent conduct causing the injury was

centered in Bangladesh.

The third contact_"the domicil[e], residence, nationality, place of
incorporation and place of business of the parties"_does not weigh heavily toward
either Delaware or Bangladeshi law. Plaintiffs reside in Bangladesh. Defendants
are all incorporated in Delaware, but do business around the world. To the extent
that Plaintiffs here, similar to plaintiffs in Bell Helicopter, must live with the
consequences of the injuries sustained and the decedents’ deaths-their location in
Bangladesh may be more pertinent.,

The fourth contact-"the place where the relationship, if any, between the
parties is centered"_favors applying Bangladeshi law. Rana Plaza is located in
Bangladesh and the garments that Defendants source are produced in Bangladesh.
Defendants’ incorporation in Delaware and the fact that the garments are being
manufactured in Bangladesh for the U.S. market do not provide a nexus to

Delaware great enough to consider Delaware as the place where the relationship is

27 Complaint, 11 29 (Trans. ID .57585318).
12

centered. The relationship is centered where the garments are produced and the
injuries occurred-Bangladesh.

The Restatement presumption favors application of Bangladeshi law. The
only factor that even slightly points to applying Delaware law is Defendants’ place
of incorporation. The injury occurred in Bangladesh, the conduct causing the
injury occurred in Bangladesh, and the relationship between the parties’ is centered
in Bangladesh. The Court finds that Bangladesh has the most significant
relationship to the occurrence and the parties. Therefore, Bangladeshi law will
apply.

Bangladeshi One-Year Statute of Limitations G0verns the Dispute

The Limitation Act, 1908 dictates the limitations periods for suits filed in
Bangladesh.zg Pursuant to section 3 of the Limitation Act, Bangladeshi courts
must dismiss any suit filed after the period of limitation has expired.zg Section 12
of the Limitation Act states that the time period for bringing a suit begins the day
after the event or occurrence which gives rise to a cause of action.s°

The First Schedule of the Limitation Act notes the applicable limitations

period for a specific cause of action.$l Article 21 of the Limitation Act sets for the

28 Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss Comp1aint,
Exhibit A: Declaration of Nihad Kabir ("Nabir Declaration"), 11 24 (Trans. ID 57919681).

29 ld. ar 11 25.

3° 14. ar 11 29.

31 1¢1. ar 11 27.

13

applicable limitation period for wrongful death claims.” Article 2l of the First
Schedule provides a limitation period of one year, from the date of the death of the
person killed, for suits to be filed by executors, administrators or representatives
under the Fatal Accidents Act, 1855 ("Fatal Accidents Act").33 The Fatal

Accidents Act created a cause of action "to provide compensation to families for

loss occasioned by the death of a person caused by actionable wrong."34

Article 22 of the Limitation Act sets forth the applicable limitation period
for bodily injury oiaimo.33 Artioio 22 of cho First soiioduio provides a limitation
period of one year, from when the injury is committed, for suits for compensation
for any other injury to the person.% The tenn "bodily injury" found in article 22
encompasses bodily injuries caused by a negligent act or omission.37

Delaware law permits Delaware courts to apply the laws of different states
or countries. Delaware’s 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

33 lot ar 11 28.

33 ld.

34 Nabir Declaration, Exhibit 4: The Fatal Accidents Act, 1855.
35 Nabir Declaration, 11 28.

33 Id.

33 1¢1. ar 11 34.

l4

person who at the time of such accrual was a resident of this State, the
time limited by the law eftllis state shell epply.”

The Delaware limitations period for wrongful death and personal injury
actions is two years.39 Because the one-year limitations period for these causes of
action dictated by Bangladeshi law is shorter than that prescribed by Delaware law,
the Bangladeshi limitations periods will apply.

The parties have submitted competing expert opinions as to the application
of Bangladesh’s statute of limitations to the dispute. While the experts disagree as
to whether an exception applies, all agree that the Limitation Act applies.‘i°
Further, the experts agree that articles 21 and 22 are the relevant sections for this
dispute.‘"

Plaintiffs’ experts, Dr. Ridwanul Hoque and Mohammad Saqib Jillani, each
argue that an exception to the one-year limitations period applies. Jillani contends
that section 6 of the Limitation Act provides an exception where a claimant suffers
from some kind of disability."z The exception for legal disability provides:

Where a person entitled to institute a suit [or proceeding] or make an
application for the execution of the decree is, at the time from which

38 l0De1. C. § 8121.
39 l01)e1. c. §§ 3107, 8119.

40 Nabir Declaration, 1 24; Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to
Dismiss, Exhibit A: Declaration of Ridwanul Hoque ("Hoque Declaration"), 1 32 (Trans. ID
58190374); Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss,
Exhibit B: Declaration of Mohammad Saqib Jillani ("Jillani Declaration"), 1 3.l (Trans. ID
58190374).

41 Nabir Declaration, 11 30~34; Hoque Declaration, 1 32; Jillani Declaration, 1 3. l.

42 Jillani Declaration, 1 3.2.

15

the period of limitation is to be reckoned a minor, or insane, or an

idiot, he may institute the suit [or proceeding] or make the application

within the same period after the disability has ceased, as would

otherwise have been allowed from the time prescribed therefor in the

third column of the First Schedule [or in section 48 of the Code of

civil Pro¢edure, 1903 (A¢t v <>f1908)]."3

This exception is not applicable to the present case. Plaintiffs argue that the
limitations period should be tolled because many of the employees killed or injured
in the Rana Plaza collapse were children. These minor children are part of a
proposed class. The Court will not recognize this exception in this case because
Plaintiffs have not pursued certification of the class. The issue of class standing
has not been properly raised for the Court’s consideration. The proposed class,
therefore, remains undefined. The cases cited by Jillani are distinguishable. In
each case, the minor was identified to the Court.“ Here, the alleged minors injured
or killed have not been identified in any way to the Court. The Court will not

consider an exception to the limitations period based on the rights of parties who

have not been properly named to the suit.

43 ld.

44 Jillani Declaration, 11 3.3.2 ("[O]ne of the plaintiffs namely Sheheryar Zaka the respondent No.
2 undeniably suffered from a legal disability of minority and the time for the limitation for
instituting the suit, in question, cannot be said to run against any of them."); Id. at 11 3.3.3 ("Mst
Tahira Begum and Ayazudding could not give a valid and legal discharge on behalf of two minor
children who were entitled to the damages in their own right."); Id. at 11 3.3.4 ("Since the
plaintiffs-respondents, who are co-heirs, as tenants-in-common, having distinct shares, and since
Mst. Chhotibai could not under Hindu Law give a discharge in her own right in respect of the
rights of her daughters, the third proposition applies so that the second part of s. 7 comes into

p1ay.").
l 6

Hoque contends that the limitation period should be "relaxed." He notes that
Bangladeshi law does not provide a specific answer as to whether a suit of this
kind can enjoy relaxed limitation periods and states that there is no case law that

45

specifically addresses the issue. Hoque argues that the Bangladeshi practice of

allowing for "legal leeway for judicial intervention" would operate here to extend
the limitations period in this suit.46

Hoque points to section 13 of the Limitation Act, which states that in
computing the period of limitation, any time spent by the defendant outside of
Bangladesh shall be excluded.‘" Hoque states that section 13 was enacted for a
defendant who is a Bangladeshi national, but argues that same rationale can be
adopted for non-resident defendants. Hoque argues that section 20 of the Code of
Civil Procedure, 1908, reveals that foreign corporations that are absent from
Bangladesh may be sued for torts in Bangladesh if the cause of action, wholly or in
part, arises there.48 Hoque contends, because Defendants’ negligence led to the
failure to ensure a safe working place, which led to the collapse of Rana Plaza,

they can be treated as absentee defendants for the purpose of tolling the limitations

period.49

45 Hoque Declaration, 11 33.
46 '

Ia'.
47 Hoque Declaration, 11 35,
48

Id.
49 ld.

l7

Hoque also relies on a recent decision by the Supreme Court of Bangladesh
where the Court relaxed the limitations period dictated by Article 22 of the
Limitation Act. In Bangladesh Beverage Industries v. Rowshan Akhter,
representatives of a decendent killed in an auto accident brought suit against the
negligent driver, pursuant to Article 22.50 Twelve years after the suit was
instituted, Plaintiff sought to add Bangladesh Beverage Industries, the employer of
the driver involved in the accident. Bangladesh Beverage argued that the one-year
limitation period under Article 22 barred Plaintiffs from adding Bangladesh
Beverage to the suit. The Court held that the original action was properly filed
within one year and that the addition of Bangladesh Beverage to the suit related
back to the institution of the suit. The Court stated:

The parties agreed that the instant occurrence is tortious liability and

according to me, tortious liability is a continuous compensatory

liability [that] can be brought within a reasonable time as there is no
limitation prescribed under law of Tort, as such, Article 120 of the

Lim:ita;if§i€).r'?i'_ i.e. where t-hrzz‘-€:'is no pres_~f=rzfr'i;bed lizz“zrit_ziifitz.n, [an] action

car:jiz;;:;'bi.~*<:»ii_;g_l:z: within six from the_a-aie- of--_aez;:r::i»i#€:rii.=:e.$‘

However, Hoque admits that the Court’s statement is "deficient in its
reasoning and it is not true that tort claims are not subject to any limitation."$z

While Bangladeshi courts may carve out exceptions to limitations periods

where they find that justice so requires, this Court will not disturb such a period

5° Hoque Declaration, Annex 6.l: Bangladesh Beverage v. Rowshan Akhter, 62 DLR (2010) 483.

51 1a ar 495.
52 Hoque Declaration, 11 37.

18

where the plain reading of the statute provides a clear answer. The Complaint
alleges causes of action for negligence and wrongful death. The limitations
periods for these causes of action are addressed by Articles 21 and 22 of the
Limitation Act. Articles 21 and 22 each provide a one-year limitation period. The
collapse of Rana Plaza occurred on April 24, 2013. The Complaint was filed on
July 21, 20l5. Therefore, Plaintiffs’ claims are time-barred by the Bangladesh
one-year statute of limitations
Duty of Care
_,_PLti_es’ Contentions

Defendants contend that Complaint must be dismissed because Plaintiffs
failed to state a claim for negligence. Defendants argue that Plaintiffs have failed
to allege any reasonably conceivable set of circumstances capable of establishing
that Defendants owed a duty of care to Plaintiffs. Further, Defendants argue that
Plaintiffs have not pled the existence of any duty with particularity, as is required
under Delaware Superior Court Rule 9(b).

Defendants state that this case involves nonfeasance-an omission to act.
Plaintiffs have alleged that Defendants failed to implement standards and oversight
mechanisms; failed to monitor construction of Rana Plaza; failed to properly
inspect the building to ensure compliance with local code; and failed to take

reasonable steps to implement policies, audits, or other oversight to ensure that

19

workers were safe and healthy. Defendants argue that nonfeasance cases, such as
this one, require the existence of a special relationship between the parties.”
Defendants claim that their relationship with Plaintiffs is too attenuated to impose
a duty of care on Defendants. The Complaint recognizes that "[l]ocal
manufacturers and global brands rely on a system of ‘indirect sourcing."’
Defendants argue that this relationship is insufficient to impose a duty of care

owed by Defendants to Plaintiffs.

Defendants argue that Plaintiffs’ wrongful death claim must fail for the same
reasons. To prevail on a wrongful death claim, Plaintiffs must prove the same
legal duty required for a negligence claim. Defendants argue that the wrongful
death claim must be dismissed if the underlying negligence claim fails.

Plaintiffs contend that Defendants knew or should have known of the safety
risks occurring in Bangladeshi garment factories. Plaintiffs claim that the
conditions present in the garment factories from which Defendants sourced
clothing presented a peculiar risk. Plaintiffs argue that Defendants knew or should
have known of the structural issues plaguing Rana Plaza, and thus owed Plaintiffs

a duty of care to ensure a safe workplace.

53 Doe 30’s Mother v. Bradley, 58 A.3d 429, 448 (Del. Super. 2012)*

20

ACTHALAND_ PROCEDURAL CQNTEXT_:

On April 23, 2013, cracks were noticed in Rana Plaza, an eight-story
commercial building in Savar, Bangladesh. The building was evacuated. An
engineer declared Rana Plaza unsafe and requested a more thorough inspection by
public authorities. Despite knowing that the building was unsafe, managers
demanded workers return to work the next day. On April 24, 2013, Rana Plaza
collapsed. More than 1,000 people were killed and more than 2,000 people were
injured

On July 21, 2015, Plaintiffs Abdur Rahaman, as personal representative of
Sharifa Belgum, and Mahamudul Hasan Hridoy filed their Complaint against
Defendants J.C. Penney Corporation, Inc., The Children’s Place, Inc., and Wal-
Mart Stores, Inc. The Complaint asserts two claims_negligence and wrongful
death. Plaintiffs allege that Defendants acted negligently in failing to ensure safe
and healthy working conditions for garment factory employees at Rana Plaza.
Abdur Rahaman is the husband and personal representative of Sharifa Belgum, a
worker in one of the five garment factories in Rana Plaza who died in the collapse;_.;
Mahamudul Hasan Hridoy worked in one of the five garment factories in Rana
Plaza and was injured in the collapse. Plaintiffs seek to bring this lawsuit as a class
action on behalf of other similarly situated workers and their representatives.

On September 18, 20l5, Defendants filed their Motion to Dismiss.

Discussion

The parties agree that Delaware law applies to the determination of whether
Plaintiffs’ Complaint adequately alleges claims for negligence and wrongful death
against Defendants. There is no Bangladesh case on point. Therefore, the Court
need not engage in a choice of law analysis. Delaware law applies to this
determination

Delaware law requires plaintiffs to adequately plead three elements in order
to state a claim for negligence: (l) a duty of care owed by defendants to plaintiffs;
(2) a breach of that duty by defendants; and (3) injury to plaintiffs proximately
caused by the breach.54 In negligence cases alleging nonfeasance, or an omission
to act, there is no general duty to others without a "special relationship" between
the parties.§$ The Delaware Supreme Court in Riedel v. ICI Americas Inc.,$é held:
"The fact that the actor realizes or should realize that action on his part is necessary
for another's aid or protection does not of itself impose upon him a duty to take

such action."”

Plaintiffs do not allege the existence of a special relationship, but rather
argue that an exception applies. Plaintiffs argue that Defendants operate within a

supply chain such that Plaintiffs are employed as independent contractors for

54 ld. at 447.

55 ld. ar 447-48.

55 968 A.zd 17 (Del. 2009).

57 Id. at 22 (citing REsTATEMENr(SEcoND) ToRTs § 314 (AM. LAw INsT. 1965)).

21

Defendants. Plaintiffs claim that this relationship, coupled with the known safety

risks at Rana Plaza, created a duty of care under the "peculiar risk" doctrine.
"Under the peculiar risk doctrine, one who employs an independent

contractor to do work which the employer should see is likely to create a peculiar

risk of physical harm unless special precautions are taken, is subject to liability for

»58

injuries caused by the absence for such precautions. The risk contemplated by

the doctrine is "peculiar to the work to be done, and arising out of its character, or
out of the place where it is to be done, against which a reasonable [person] would
recognize the necessity of taking special precautions."$g However, "application of
the doctrine is limited so that employers of independent contractors will not have
to become conversant with all activities of their contractors."60

In the present case, Plaintiffs argue that they are within the protected class
under the peculiar risk doctrine. However, Plaintiffs were employees of garment
factories within Rana Plaza_they were not employees of Defendants. A plain
reading of Chapter l5, section 409 demonstrates that Plaintiffs are not within the
class protected by the peculiar risk doctrine. Section 409 states: "Except as stated

in §§ 410-29, the employer of an independent contractor is not liable for physical

harm caused to another by an act of omission of the contractor or his servants."

58 m re Asbes¢os Lm'g., 2002 wL 31007993, ar *1 (Del. super.).

59 Bryam‘ v. Delmarva Power & Light Co., 1995 WL 653987, at *6 (Del.Super.) (citing
RESTATEMENT (SECOND) oF ToRTS § 413 (AM. LAw INsT. l965)).
6° m re Asbes¢os Lm'g_, 2002 wL 31007993, at *1.

22

In M0nk v. Virgin Islana's Water & Power Authority,m the United States
Court of Appeals for the Third Circuit agreed and held that "employers should not
be held liable to an independent contractor’s employees under section 413."62 The
class intended to be protected by this doctrine is third-party bystanders.63 Thus
Plaintiffs cannot invoke the doctrine to create a duty of care owed to them by
Defendants.

Further, Defendants cannot claim protection under this section because there
are no allegations in this case that constitute a "peculiar risk." "A peculiar risk is a
special risk peculiar to the work to be done, and arising out of its character, or out
of the place where it is to be done, against which a reasonable man would
recognize the necessity of taking special precautions."64 Plaintiffs have not
identified a risk peculiar to the garment industry. The inadequacies in the
construction of Rana Plaza are not peculiar to the business in which Defendants
engaged. Defendants could not be reasonably expected to take precautions against
a building collapse when deciding to source garments from factories in

Bangladesh.

"" 53 1=.3¢11381 (3d. cir. 1995').

62 ld. at 1394.
63 In re Asbestos Litig., 2002 WL 31007993, at *2 ("This section does not define the class of

protected "others," but a plain reading suggests that the class does not include a contractor's
employees, particularly when read in pari materia with § 409's phrase ‘harrn caused to another
by an act or omission of the contractor or his servants.’ The Comment to § 413 provides that the

risk is ‘a special danger to those in the vicinity."’).
64 Brjyant, 1995 WL 653987, at *6.

23

The Court need not decide whether a general contractor/independent
contractor relationship exists. Even if the Court were to find that Defendants are
general contractors, under Delaware law, "generally, an owner or general
contractor does not have a duty to protect an independent contractor’s employees
from the hazards of completing the project."é$ However, there are exceptions to
this rule. "A general contractor has a duty to protect an independent contractor’s
employees when the general contractor: (l) actively controls the manner and
method of performing the contract work; (2) voluntarily undertakes the

responsibility for implementing safety measures; or (3) retains possessory control

»66

over the work premises during work None of these exception apply to

Defendants in this case. Defendants’ only contact with the garment factories in

7

Bangladesh was through a system of indirect sourcing.6 Defendants neither

voluntarily undertook any safety responsibilities, nor controlled the work being
done in Rana Plaza in any fashion. Accordingly, Defendants did not owe Plaintiffs

any general contractor’s duty of care.68

66 Hawzhorne v_ Edzs Co., 2003 wL 23009254, ar *2 (Del. super.).

66 Handler Corp. v. Tlapechco, 901 A.zd 737, 743 (1)@1. 2006).

67 Complaint, 11 41.

68 This doctrine preventing contractor liability seems to be contrary to public policy. A general
contractor can hire independent contractors, and as long as the general contractor ignores
workplace safety, the general contractor is shielded from liability to the employees of
independent contractors. The Court suggests that the better rule would be to encourage general
contractors to take all reasonable measures to ensure the safety of all workers on the job site.
Such efforts should be encouraged_not affirmatively stifled as a means to escape liability. A
general contractor’s efforts to provide a safe work environment could be rewarded, and

24

Plaintiffs next argue that Plaintiffs knew or should have known of the unsafe
working conditions in Rana Plaza. Plaintiffs contend that Defendants were aware
of the long history of injuries and fatalities due to the poor working conditions in
the garment factories. Plaintiffs claim that the ethical sourcing statements made by
Defendants imposed on Defendants a duty of care. These statements by
Defendants do not, by themselves, create a duty to employees of independent
contractors where a duty does not otherwise exist. Plaintiffs fail to allege that
Defendants fall into one of the three exceptions for general contractor liability.
Even if Defendants knew or should have known of the risks at Rana Plaza, without
asserting active control over the performance of the work, voluntarily taking
responsibility for implementing safety measures, or retaining possessory control
over the premises, Defendants do not owe Plaintiffs a duty of care.

Plaintiffs further contend that Defendants owed Plaintiffs a duty of care
under the illegal conduct exception. The illegal conduct exception imposes
liability on the employer of an independent contractor where "the employer causes
or knows of and sanctions illegal conduct."69 The Court finds that Plaintiffs have
failed to set forth any evidence that Plaintiffs were required to engage in illegal

conduct in order to manufacture the garments sourced by Defendants. Plaintiffs

supported by the law refusing to impose liability on a general contractor who endeavors to do the
right thing. Evidence of a general contractor undertaking safety measures could be handled in
the same manner as subsequent remedial measures. There is no public policy benefit to

punishing a general contractor who seeks to keep workers safe.
69 colon v. Gannen co., 2013 wL 5819666, ar *1 (Del.).

25

have not pointed to any provision in Defendants’ agreements with the party with
whom Defendants contracted to source garments from factories in Rana Plaza that
states that Plaintiffs’ work should be performed in contravention of the law.
Plaintiffs have identified no practice that would require, as a practical matter,
illegal conduct in the manufacturing of garments.

Plaintiffs finally argue that at the motion to dismiss stage, without having
engaged in discovery, questions of fact remain as to whether Defendants
voluntarily assumed the responsibility to provide a safe workplace for the
independent contractor’s employees. The United States Court of Appeals for the
Ninth Circuit faced the same issue at the motion to dismiss stage in Doe I v. Wal-
Mart Stores, Inc.m The complaint in Doe alleged that "Defendant breached its
supplier contracts by failing to adequately monitor supplier factories" in China,
Bangladesh, Indonesia, Swaziland, and Nicaragua." Plaintiffs asserted several
negligence claims against defendant and argued that "Defendant, through vicarious
liability, is responsible for its suppliers’ negligence."n The Ninth Circuit affirmed
dismissal of the negligence claims and held that "Wal-Mart did not owe Plaintiffs a

common-law duty to monitor Wal-Mart's suppliers or to prevent the alleged

7° 572 F.sd 677 (9ch cir. 2009).
" Doe lv. Wal-Marz S¢@res, 2007 wL 5975664, ar *2-3 (c.D. cal.).
72 Id. at *4.

26

intentional mistreatment of Plaintiffs by the suppliers."73 The Court further held
that although Wal-Mart contracted with suppliers regarding deadlines, quality of
products, materials used, prices, and other common buyer-seller contract _terms,
these "supply contract terms do not constitute an immediate level of ‘day-to-day’
control over a supplier's employees so as to create an employment relationship

between a purchaser and a supplier's employees."m

Just as in Doe 1 v. Wal-Mart, Plaintiffs in this case have failed to allege facts
to establish that Defendants owed Plaintiffs a duty of care. Defendants were not
Plaintiffs’ direct employer. Additionally, Plaintiffs have failed to demonstrate that
an exception to the general rule for independent contractor liability exists.
Plaintiffs’ allegations are insufficient to prevent dismissal.

CONCLUSIQl_\_{_

Bangladesh has the most significant relationship to the causes of action
asserted, therefore its law applies to the determination of the statute of limitations.
Articles 21 and 22 of the Limitation Act govern the limitations periods for
negligence and wrongful death. Each provide a one-year limitation period. The
collapse of Rana Plaza occurred on April 24, 2013. The Complaint was filed on

July 2l, 2015. Therefore, Plaintiffs’ claims are time-barred by the Bangladeshi

one-year statute of limitations.

73 Walmart, 572 F.3d at 683.

74 Id.
27

The parties agree that Delaware law governs the duty of care dispute.
Defendants were not Plaintiffs’ direct employer and have failed to dernonstrate: a
"special relationship;" a "peculiar risk;" sanctioned illegal conduct; or an exception
to the general rule protecting independent contractors from liability. Therefore,

Plaintiffs have failed to state a prima facie case for negligence and wrongful death.

THEREFORE, Defendants’ Motion to Dismiss is hereby GRANTED.

IT IS SO ORDERED.

T Honora e Mary M. Johnston

28

Defendants argue that the Complaint should be dismissed because Plaintiffs’
claims were filed after the expiration of the one-year statute of limitations period
under Bangladesh law. Defendants also argue for dismissal because the Complaint
fails to allege an essential element of each claim-a duty of care imposed by law
that Defendants owed to Plaintiffs.

On November 20, 2015, Plaintiffs filed their Memorandum in Opposition to
the Defendants’ Motion to Dismiss. Plaintiffs contend that their claims are not
time-barred and that the Complaint was timely filed under both Delaware and
Bangladeshi law. Plaintiffs also argue that Defendants knew or should have
known of the structural issues plaguing Rana Plaza, and thus owed Plaintiffs a duty
of care to ensure a safe workplace.

On December 23, 2015, Defendants filed their Reply Brief in Support of the
Motion to Dismiss.

After briefing, the Court held oral argument on the Motion to Dismiss.

:STANDARI§ OF REVIEW
Failure to State a Claim

When reviewing a motion to dismiss pursuant to Superior Court Civil Rule

l2(b)(6), the Court must determine whether the claimant "may recover under any

reasonably conceivable set of circumstances susceptible of proof."l The Court

l Spence v. Funk, 396 A.Zd 967, 968 (Del. 1978).

4

must accept as true all non-conclusory, well-pleaded allegations.z Every
reasonable factual inference will be drawn in favor of the non-moving party.3 If
the claimant may recover under that standard of review, the Court must deny the
motion to dismiss.4

Heightened Pleading Standard

Pursuant to Superior Court Civil Rule 9(b), a plaintiff alleging negligence
must state with particularity the circumstances constituting negligence. "When
pleading negligence, plaintiffs have to meet the heightened standard of Rule 9(b),
and must specify a duty, a breach of the duty, who breached the duty, what act or
failure to act caused the breach, and the party who acted."$

In requiring a plaintiff to plead with particularity, Rule 9(b) operates to: (l)
provide defendants with enough notice to prepare a defense; (2) prevent plaintiffs
from using complaints as fishing expeditions to unearth wrongs about which they
had no prior knowledge; and (3) preserve a defendant's reputation and goodwill

against baseless claims.6

2 1¢1.

3 Wilmington Sav. Fund. Soc ’y, F.S.B. v. Anderson, 2009 WL 597268, at *2 (Del. Super.) (citing
z_`?§»»;ia_ »ia-.- '_r'i;.zriz-§Zl; 834 :a.tzd 451, 458 (Del. 2005)).

“”‘~' ,§j_;e»@z¢¢.:<_;,~_ :z§§?ez' A.;:§';_§a;-,@i;_ 968.

5 Rinaldi v. Iomega Corp., 1999 WL 1442014, at *7 (Del. Super.).

6 In re Benzene Litig., 2007 WL 625054, at *6 (Del. Super.).

5

_ANAL_YSIS
Statute of Limitations
_l’artie

Defendants argue that the Complaint should be dismissed because Plaintiffs
failed to file it within the required time period. Defendants contend that
Bangladeshi law applies to this dispute because Bangladesh has the most
significant relationship to the causes of action asserted. Therefore, Defendants
argue, Delaware’s borrowing statute7 applies and borrows the limitations period of
the state or country where the cause of action arose if that period is shorter than the
period mandated under Delaware law. Delaware has a two-year limitations period
for personal injury and wrongful death claims.g The Bangladesh Limitation Act,
1908 ("Limitation Act") dictates that the limitations period for personal injury and
wrongful death claims arising out of alleged negligence is one year from the date
that the death or injury occurred.g Defendants contend that Bangladesh’s limitation
period applies because it is shorter than Delaware’s period. The Complaint alleges
that the deaths and injuries occurred on April 24, 2013. The Complaint was filed

September 24, 2015. Therefore, Defendants argue that Plaintiffs’ claims are time-

710 Del. C. § 8121.
810 Del. c. §§ 8107, 8119.
9 Fatal Accidents Act of 1855 § l; Bangladesh Limitation Act l908, Arts. 2l, 22.

6

barred under Bangladeshi law.l°

Plaintiffs contend that the Bangladeshi one-year statute of limitations does
not apply to this action. Plaintiffs claim that Delaware has the most significant
relationship to the cause of action and therefore its limitations period should apply.
Plaintiffs further argue that choice of law principles favor applying Delaware law,
especially given the shortcomings of the Bangladeshi legal system to be able to
handle a case of this size and nature. The case originally was filed in the United
States District Court for the District of Columbia on April 23, 20l5. The present
Complaint was flled in this Court on July 2l, 20l5. On July 22, 20l5, the action
before the District Court was voluntarily dismissed. Plaintiffs contend that filing a
class action in federal court tolls the statute of limitations for subsequent filings,
and therefore the Complaint is not time-barred under Delaware law."

Plaintiffs next argue that even if Bangladeshi law is applicable, the
Complaint would not be time-barred. Plaintiffs claim that the case could be
brought under Bangladesh’s general tort lawn or the Indian Succession Act of
l925, both of which are subject to a six-year statute of limitations.

Plaintiffs claim that even if the claims were brought under articles 21 and 22

of the Limitation Act, they still would not be subject to a one-year limitation

10 Defendants claim that even if Delaware’s two-year limitations period were to apply, Plaintiffs’
claims still would be time-barred.

" Am. pipe & conszr. ca v. Umh, 414 U.s. 538, 559 (1974).

‘2 Bangladesh Limitation Act l908, Art. 120.

7

period. Section 13 of the Limitation Act tolls the limitations period and states that
the time a defendant spends outside of Bangladesh shall be excluded from
computation of the limitation period While Bangladeshi courts have not
addressed whether section 13 applies to foreign corporations, Plaintiffs argue that
other common law countries similar to Bangladesh recognize this provision for
such parties Further, section 20 of the Bangladeshi Code of Civil Procedure
provides that corporations can be sued in tort if the cause of action arises in
Bangladesh. While Bangladeshi law does not address foreign corporations,
Plaintiffs rely on persuasive Indian law, which states that absentee foreign
corporations can be sued where the resultant damage occurs in India. The statute
of limitations for section 13 is six years. Therefore, Plaintiffs argue, their claims
are not time-barred.
,_Discussion__
Choice of Law

As the forum state, Delaware applies its own choice-of-law rules.l3 In
determining whether the law of Delaware or the law of Bangladesh govems the
controversy, the Court must consider the facts in accordance with the "most

significant relationship" test.l4 That test, as articulated by the Delaware Supreme

13 Alls¢a¢e Ins. c@. v. Hague, 449 U.s. 302, 307 (1981).

14 Oliver B. Cannon & Son, Inc., v. Door-Oliver, Inc., 394 A.2d 1l60, 1166 (Del. 1978).
8

Court,l§ is set forth in section 145 of the Restatement (Second) Conflict of Laws

and provides:

(l) The rights and liabilities of the parties with respect to an issue in
tort are determined by the local law of the state which, with respect to
that issue, has the most significant relationship to the occurrence and
the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6
to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil[e], residence, nationality, place of incorporation

and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is

centered.
These contacts are to be evaluated according to their relative
importance with respect to the particular issue.

The most significant relationship test "does not authorize a court to simply
add up the interests on both sides of the equation and automatically apply the law
of \the jurisdiction meeting the highest number of contacts . . . ."16 Rather, the
contacts are to be evaluated qualitatively in order to determine which factors are
most important in a particular case.

In Lee v. Choice Hotels International, Inc.,w plaintiff suffered personal
injuries when he nearly drowned in a hotel swimming pool while staying at the

Quality Resort Waterfront City in Batam, Idonesia. Plaintiffs alleged that Choice

15 Travelers Indem. Co. v. Lake, 594 A.2d 38, 46-47 (l99l).
"" 1¢1. ar 48 n.e.
" 2006 wL 1148737 (Del. super.).

Hotels Intemational, Inc., a Delaware corporation, was liable as franchisor of
Quality Resort Waterfront City. Plaintiffs argued that Delaware law applied to the
dispute. Choice Hotels argued that Indonesian law applied.ls

The Court looked to the "most significant relationship test" to determine the
choice of law issue. The Court determined that Indonesian law had the most
significant relationship to the dispute.‘g Although Choice Hotels was incorporated
in Delaware and Delaware was the chosen forum, the Court found that "there is a
rebuttable presumption in favor of applying Indonesian law since the accident
occurred there and that presumption should not be disturbed where place of
incorporation is the only factor favoring the forum."z°

In Bell Helicopter Textron, Inc. v. Arteaga,zl the Delaware Supreme Court
conducted a choice of law analysis pursuant to the most significant relationship
test. In Bell Helicopter, representatives of Mexican citizens brought a products-
liability action against the Delaware manufacturer of a helicopter part that

malfunctioned and caused the helicopter to crash in Mexico, killing all onboard.zz

Defendants argued that Mexican law applied to the claims. Plaintiff argued that

Texas law applied.

22 Id. at 1048.
10