Fuku-Bonsai, Inc. v. E.I. Du Pont de Nemours & Co.

Opinion by Judge FLETCHER; Dissent by Judge BOOCHEVER.

Plaintiffs Fuku-Bonsai, Inc. and its president, David Fukumoto, (collectively, “Fuku-Bonsai”) appeal from the district court’s order dismissing its complaint because it was barred by release language in a settlement agreement between the parties. We have jurisdiction pursuant to 28 U.S.C. § 1291 , 1 and we reverse.

I. BACKGROUND

Fuku-Bonsai is a Hawaii corporation that raises ornamental plants for commercial sale. Like many other commercial growers and nurseries, Fuku-Bonsai used a DuPont fungicide called Benlate. Growers suspected that the Benlate was contaminated with the herbicide atrazine after the Benlate destroyed their plants. 2 In 1992, Fuku-Bonsai brought a products liability action against DuPont. It was one of over seventy Benlate cases filed in the Third Circuit Court of Hawaii that were consolidated for discovery. In 1994, before trial, Fuku-Bonsai settled its claims against DuPont for $2.5 million. As part of the settlement agreement, Fuku-Bonsai released DuPont from certain claims. The scope of that release is at issue in this appeal.

Shortly after Fuku-Bonsai settled and dismissed the product liability…

dissenting:

It is agreed that Delaware law applies in deciding whether the release signed by Fuku-Bonsai bars it from bringing this suit claiming that DuPont fraudulently withheld or concealed information that induced Fuku-Bonsai to settle its claims for less than fair value.

When we decided Matsuura v. Alston & Bird and E.I. du Pont de Nemours and Co., 166 F.3d 1006 (9th Cir.1999) (per cu-riam), the Delaware Supreme Court had not accepted certification of the controlling state law question. Once the Delaware Supreme Court answers that question, our decision in Matsuura will no longer be binding on the interpretation of Delaware *1035 law. The Delaware Supreme Court, not a federal court, will resolve that state law issue.

Because, as indicated in the majority opinion, the Delaware Supreme Court has accepted certification of this question in a similar case, see E.I. du Pont de Nemours and Company v. Florida Evergreen Foliage and Louis Chang, 98-2242-CIV-GOLD, I would await its decision before attempting to decide the Delaware law question. The added delay should not prove too great a hardship as Fuku-Bon-sai has retained the $2.5 million it received in settlement of its claims.