Ackerman v. Arkema Incorporated - Tolling of State Statute of Limitations

United States C ourt of App eals for the Fifth Circ uit ________ ____ No. 25-20006 ________ ____ Dorothy Ac kerman; Mar y Ackerm an; Sylbestre Aburto; Hunter Bri an Adams; C laude Bart holomew Adams, Et al. Plaintiffs— Appellants, versus Arkema Incorp orated, Defendant—Appellee, ________ __________ _________ ___ Manuel Cruz; Gabriela Cruz, Plaintiffs— Appellants, versus Arkema Incorp orated, Defendant—Appellee. ________ __________ _________ ___ Appeal from the United St ates District Court for the Souther n District of Texas USDC Nos. 4:24-CV-1588, 4: 24-CV-1589 ________ __________ _________ ___ United States Court of Appe als Fifth Circuit FILED October 31, 2025 Lyle W. Cayce Clerk

No. 25-2000 6 2 Before Elrod, Chief Judge, and Clement and Haynes, Circuit Judges. Jennifer W alker Elrod, Chie f Judge: Plaintif fs–Appellants in this c ase were mem bers of a federal class action seeking recompense for pr operty d amage ca used by chemic al explosions at Defendant–App ellee Arke ma Inc.’s industrial plant. After the district court certified a class for injunctive relief but not monetary damag es, Appellants filed individual actions in Texas state court seeking monetary damages. According to Appell ants, the pending federal cla ss action tolled the stat e limitations period. Arkema re moved the cases to federal co urt and moved to dismiss the claims, contending that Texas la w does not recogniz e cross-jurisdic tional tolling of state stat utes of l imita tions. T he dis trict court dismissed the claims as untimely, determining t hat our binding precedent forecloses cross- jurisdictio nal tolling. We agree and AF FIRM. I In the days after Hurricane Harvey, a series of chemical explosio ns occurred at Arkema’s industria l plant in Crosby, Texas, after a loss of power caused the pla nt’s cooling systems to fail. T he explosio ns r eleased t oxic, flammable che mic als into the surrounding community, forcing residents to evacuate and leavin g properties c ontaminated with oily, c hemical-laden a sh and film. Thirty days af ter the last explosion, property ow ners and less ees in the affected area—includin g Appellant s—filed t he Wheeler putativ e class action in t he Southern Dis trict of Texas, 1 a sserting federal statutory claims and stat e-law negligence, trespass, a nd public nuisance cla ims and seekin g injunctive and monetar y relief for all persons with pr operty in terests within ________ __________ ___ 1 Wheeler v. Arkema France S.A., No. 4:17 -cv-2960 (S.D. Tex.).

No. 25-2000 6 3 seven miles of the plant. In May 2022, the district court c ertified a Federal Rule of Civil Procedure 23(b)(2) class for injunctiv e reli ef but declined to certify a Rule 23(b)(3) cla ss f or monetary damages. In June 2024, t he dis trict court approved a class set tlement tha t addressed in junctive relief but not monetary damag es. In April 20 24, a lmost 800 members of t he W heeler cla ss filed individua l actions in Texas state court seeking monetary damages— including Appellants, who filed their st ate-court la wsuits on April 4, 2024, and April 9, 2024, respectiv ely. Appellants’ suits alleged state-la w causes of action for negligence, gross, negli gence, negligence per se, neglig ent misrepresentatio n, t respass, and private nuisance. Appella nts admit ted in their pleadings t hat: (1) their causes o f actio n had ac crued on S eptember 3, 2017; (2) their cla ims were subject to a two-year limitatio ns period under Tex. Civ. Prac. & Rem. Code § 16.003; and (3) they filed their claims in April 2024, almost six yea rs after they had accrued. But Appellant s pleaded that the pending W heeler f ederal c lass action opera ted to toll the state limitatio ns period. Arkema remo ved Appellant s’ cases to federal c ourt on the basis of diversity j urisdiction a nd then moved to dis miss, contending that their claims were untimely because Texas la w does not recognize cross-jurisdict ional tolling of the statute of limit ations. The district court c onsolidated t he cases and g ranted Arke ma’s motions, concluding that our precedent dic tates t hat cross-jurisdic tional t olling is not available and that polic y considerations did not compel a different r esult. Appellants timely appealed. II We review a dis trict court ’s decis ion on a Rule 12 (b)(6) motion de novo, acceptin g all well-pleaded fa cts as true and viewing the fac ts in the light most favo rable to the pla intiff. Ferguson v. Bank of N.Y. Me llon Corp.,

No. 25-2000 6 4 802 F.3d 777, 780 (5th Cir. 2015). “A motion to dis miss may b e granted on a stat ute of limitations defense where it is evident from th e pleadin gs t hat the action is t ime-barred, and the pleadings f ail to raise so me basis for tolli ng.” Stanley v. Morgan, 120 F.4th 467, 470 (5th Cir. 2024) (quoting Taylor v. Bailey Tool Mfg. Co., 7 44 F.3d 94 4, 946 (5th Cir. 201 4)). III Arkema contends that dismissal of Appellants’ c laims is proper because the st atute of limit ations has run and c ross-jurisdictio nal tolling of the li mitations period is f oreclosed under our prec edent. Ap pella nts disagree, asserting that polic y consideratio ns indic ate that T exas courts would r ecognize cross-juris dictional tolling in t his specif ic instance. W e agree with Ark ema. Reviewing de novo, and adhering to o ur b inding precedent, we hold that Texas court s would not ex tend cross-juris dict ional tolling t o Appellants’ claims and that the distric t court therefore pr operly dismissed the cla ims as untimely. A In American Pipe & Construction Co. v. Utah, the United States Supreme Court held tha t t he “com me ncement of a class action suspends the applica ble statute of li mitations as t o all asserted m embers of th e cl ass who would ha ve been parties ha d the suit been permitted to continue as a class action.” 414 U.S. 538, 554 (197 4); see als o Crown, Cork & Seal Co. v. Parker, 462 U.S. 34 5, 350 (1 983) (cla rifying t hat a cla ss action tolls the st atute of limit ations for all asserted members of the class, not just potential intervenors). Texas in termediat e appellat e courts have import ed the American Pipe tolling doctrine into t he Texas state cla ss action context. T his began with Grant v. Aust in Br idge Const ruction Co., which held that “even though t he [state] st atute of limitatio ns on a cla ss memb er’s indiv idual c ause of a ction

No. 25-2000 6 5 would expir e during the pendency of a class act ion, the filing of the [Texas] class actio n suspends t he applic able sta tute of limit ations as to all purported members of t he class.” 725 S.W. 2d 366, 370 (Tex. App. —Houston [14th Dist.] 1987, no writ). Although t he S upreme Court of T exas has n ot yet weighed in on “w hether a tolling doctrine similar to t he one recognized in American Pipe a pplies under Texas la w f or class actions, every case from an intermedia te Texas appella te court that has addressed t he is sue . . . has recognized that a si mi lar doctrine exists under Texas law.” Asplundh Tr ee Expert C o. v. Abshire, 517 S.W.3d 320, 332 (Tex. App.—Austin 2017, no pet.). Texas c ourts have not extend ed Gr ant t o allow cross-jurisd ictional tolling—i.e., to allow a federal class action to t oll a state statute of limitations. The on e Texas intermediate appellate court to consider this issue declined to apply American Pipe t olling to a Texas pers onal injury act ion based o n a federal cla ss action filed in New Mexico. Se e Bell v. Showa Denko K.K., 899 S.W.2d 749, 757 –58 (Tex. A pp.—Amarill o 1995, writ denied). In 1997, w e chara cter ized Texas’s appr oach t o American Pipe, as articula ted in Bell, a s follows: A sta te (Texas) class action t hat raises property damage-type claims tolls a Texas statute of limita tions pending a certific ation ruling. An d, consistent with our understanding of this Texas tolling rule, it is unclear whether, u nder this rule, a federal cla ss act ion f iled in Tex as or in any ot her Stat e would ever toll a Texas statute of limitations, regardless of the type of claims raised. Vaught v. Showa Denko K.K., 107 F.3d 1137, 1147 (5th Cir. 1997) (emp hasis in original). In 200 8, we reaffir med our und erstanding of this issue, h olding that “the Texas courts lik ely w[ould] not extend American Pipe tolling” to toll Texas state- law claims based on the filin g o f a federal cla ss a ction. Newby

No. 25-2000 6 6 v. Enron Corp., 542 F.3 d 463, 472 (5th Cir. 2008). Since Newby, Te xas courts have not readdr essed this cro ss-jurisdictio nal tolling iss ue. B Vaught and Newby con trol. See F ord v. C imar ron I ns. C o., 230 F.3d 828, 832 (5th C ir. 2000) (“[A] prio r panel’s interpreta tion of state law ha s binding prec edentia l effect on ot her pa nels of this court absent a subsequent stat e c ourt decisio n or amendment renderi ng our prior decisi on clea rly wrong.” (int ernal cit ations omit ted)). And alt hough t hese cases recognize Bell ’s sta tement that tolling requires the def endant t o have “notic e of t he type and potentia l number of the cla ims against it,” 899 S.W.2d at 758, they both ultim ately read Be ll to ba r cross- jurisdictio nal tolling specific ally because “the sta te rules for tolli ng are based o n st ate, not federal, la w,” Newby, 54 2 F.3d at 472. T hey th erefore con clude that Texas c ourts would not toll t he state statute of li mitations in light of a federal cla ss action. Appellants’ arg uments that t here are exceptions to this bar on c ross- jurisdictional tolling—such as when c ertain types of cla ims or at issue or when defendants have fa ir notice of t he claims—are unavailing. Newby considered and r ejecte d such arguments, expressly abroga ting district court cases holding that Tex as courts would allo w c ross-jurisdictio nal tolling for property-relat ed cla ims or where defendants had fair notic e. See id. (abrogating Prieto v. John Hancock Mut. Life In s. Co., 132 F.Supp.2d 5 06, 518 (N.D. Tex. 2001); In re Norplant Contraceptive P rods. Liab. Litig., 173 F.R.D. 185, 189 (E.D. Tex. 1997)). In the absence of any subseque nt Tex as decis ions rendering our Erie guesses in Vaught and Newby clearly incorrect, we a dhere to their holding s.

No. 25-2000 6 7 We AF FIRM our learned district court colleague’s dismissal of Appell ants’ claims a s untimely. 2 ________ __________ ___ 2 In deciding this appeal, we considered whether to certify the qu estion of cross- jurisdictional tolling to the Supreme Court of Texas. We ultimately concluded that certification would not be appropriate in this c ase. Neit h er party raised certification in its briefing. When asked at oral a rgument whether certification would be helpful, Arkema’s counsel firmly stated tha t it would not, and Appellants’ counsel only said that it would be helpful with some reluc tance and after repeated questi oning. Furthermore, this does not appear to be a close question un der Bell, which is the only T exas case to ha ve c onsidered the issue. See I n re Gabri el Inv. Grp., Inc., 24 F.4th 503, 507 (5th Cir. 2022) (The Fifth Circuit considers several factors in deciding whether to certify a question to the Sup reme Court of Texas, including “the c loseness of the question a nd the existence of sufficient sources of state law.”).

No. 25-2000 6 8 Haynes, C ircuit Judg e, dissenting in part: I respect fully dis sent from affirmin g at this t ime as I t hink we should certify a question to the Texas Supreme Court to seek an opinion on this subject. 1 As the United States Supreme Court noted, wher e so meone is part of a cla ss action, t hat person’s individ ual ca se on the same is sues shou ld have its statute of limitations suspended. American Pipe & Const ruction Co. v. Utah, 414 U.S. 53 8, 55 4 (1 974). Tha t makes a great deal of sense beca use making individuals file a bunch of litigat ions while having a class action adds a lot of ca ses t o courts w hic h mig ht not be needed. Even if put “in abeyance,” they are st ill on the court’s list for no go od r eason given t he pending class ac tion. If the class action resolves all is sues, then the individua ls will never have to sue. I f it does not, then th e stat ute of limit ations should c ome back in play, and they s hould sue if t hey wish within th at time period. The ma jority opinion not es t hat Texas courts have applied American Pipe to c lass actio ns pending in Texas state courts. The Texas S upreme Court has not ruled on whether that also applies to class ac tions pending in federal courts. The majority opinion relies on our prior cases that ruled on what they thought t he Texas Supreme C ourt would do. See Newby v. Enron Corp., 542 F.3d 463 (5th C ir. 2008); Vaught v. S how a De nko K.K., 107 F. 3d 1137 (5th Cir. 1997). ________ __________ ___ 1 Although I think that one party is supporting sending this to the Texas Supreme Court, even i f neither party requests it, the Texas Supreme Court does not require tha t we have a request from one of the parties for us to certify a question to that court. Tex. R. App. P. 58.1. See In re Norris, 413 F.3d 526, 526–27 (5th C ir. 2005); see al so Brown v. City of H ouston, No. 21-20302, 2022 WL 9893 64, at *2 (5th C ir. Apr. 1, 2022) (“[W]e may certify a question su a sponte.”).

No. 25-2000 6 9 To me, it ma kes lit tle sense to r equire indiv iduals to file indiv idual cases when there is already a case in which they are part of a class addressing their specific issu es. I don’t think state district courts want to ha ve a bunch of abeyance c ases sitting in t heir office a waiting a class action decision. Nor would it make sense to make t he indiv iduals litiga te the issues t hat the cla ss action is lit igating. That is t he whole r eason for the class action to resolve the issues in o ne case and why it makes sense to suspe nd the sta tute of limit ations. The ma jority opinio n declines to c ertify a question to th e Texas Supreme C ourt on t his is sue. I respect fully dissent beca use t hat c ourt’s decision is to w ha t we should adhere. Of course, if the Texas Supreme C ourt declined to answer th e certified question, I would af firm based on our rule of orderliness, th ough I disagree wit h our prior cases on this issue. Accordingly, I respect full y dissent.