Allen v. Boeing Co.
| Decision Date | 05 May 2016 |
| Docket Number | No. 16–35175.,16–35175. |
| Citation | 821 F.3d 1111 |
| Parties | Jocelyn ALLEN; Lawrence J. Allen; Vivian Lynn Allen; Caren Barnes; Emery Blessing; Horace Bliner; Robert A. Bliner; Jason Bogart; Brenda Brammer; Bretney A. Brownfield; Donald N. Campbell; Deborah Jean Cettolin; Carole Denise Coggin; Robert Allen Coggin; Angela Comstock; Timothy Eugene Connor; Christine R. Councilman; Daryl Crawford; Shawn Creed–Woolery; Anita Decker; Daniel Decker ; Kerri Decker; Shawn Decker; Daniel Andrew Dolloff; Jacob Dolloff; Toni Rae Dolloff; Jeffrey Dosch; Karrie Dosch; Alvine Drayton; Patricia Ann Duke; Juanita Dupont; Donald Warren Edwards; Tammy Elsner; Michael Patrick Ethier; Fay Farrington; Larry D. Ford, Sr.; Kenneth Mark Foreman; Sherri Lee Foreman; Michael Gese; Aimee Green; Josh Green ; Lee Lynn Hardy; Lisa Ann Hardy; Barry Curtis Harmon, II; Nicole Harmon; Donald R. Haupt; Kari Lyn Hernandez; Ronald A. Holt; Brian Jones; Mikisha D. Jones; Tatiana Jones; Phyllis Kain; Robert Kennicott; Andrey Kinakh; Tony Kingsada; Michelle Klusmeyer; Sonja Lapping; Brittney Lynn Lickey; Robin Lindy; Wayne Lindy ; Ashley Lisenby; Paullet Littlefield; Deidre Lorenz; Courtney MacIsaac; Paul Malavotte; Randolph Malilong; Annissa Manolovitz; Lisa Martin; Marie McAskill; Jill A. Mentzer; John L. Mentzer; Vicki L. Mills; Karen Millsap; Terrence Millsap; Kylie Morefield; Elizabeth Morgan; Tara Mott; Cecily Neilsen; Anthony B. Nocera; Diane C. Nocera; Jessica Parker; Richard Parker; Patricia Plattner; Mike Ramirez; Ludmilla Redka; Brian Reitz; Kathleen Rismoen; Matthew Montgomery Roberts; Lura Elaine Robertson; Janene M. Rollins; Claude Rought; Dan Rudolph ; Deborah A. Ryan; Richard R. Ryan; Steve Sanborn; Michael C. Scott; Daveene Kim Sears; Gerald L. Sears; Darron Shook; Lisa Shook; Stacie Sippo; Harold A. Sponberg; Penny J. Sponberg; Trent B. Testerman; Bernadette J. Tranholt; Robin L. Tranholt; Jeffrey A. Trekla; Karen R. Trekla; Jessica A. Vaughn; Gabriel Warren; Max Werden; Tina Werden; Stacy Wiley; Anthony Williams; Cinda J. Zitterich; Ricky L. Zitterich, Plaintiffs–Appellees, v. BOEING COMPANY, a Delaware Corporation, Defendant–Appellant, and Boeing Commercial Airplanes, a division of Boeing Company; Landau Associates Inc., a Washington Corporation, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Sylvain Paisner (argued), The Boeing Company, Renton, WA; Jeffrey M. Hanson, Perkins Coie LLP, Seattle, WA; Kevin T. Van Wart, P.C., and Bradley H. Weidenhammer, Kirkland & Ellis, Chicago, IL, for Defendant–Appellant.
James S. Rogers and Elizabeth J. Donaldson, Law Offices of James S. Rogers, Seattle, WA; Thomas V. Girardi, David N. Bigelow (argued), and Robert W. Finnerty, Girardi/Keese, Los Angeles, CA, for Plaintiffs–Appellees.
Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, Chief District Judge, Presiding. D.C. No. 2:14–cv–00596–RSM.
Before: RONALD LEE GILMAN,* JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.
CALLAHAN
, Circuit Judge:
Jocelyn Allen and others (Plaintiffs) sued The Boeing Company (Boeing) and Landau Associates (Landau) in Washington state court, alleging that for several decades Boeing released toxins into the groundwater around its facility in Auburn, Washington, and that for over a decade Landau had been negligent in its investigation and remediation of the resulting pollution. Boeing removed the case to the United States District Court for the Western District of Washington, claiming federal jurisdiction based on diversity and the Class Action Fairness Act (CAFA). See 28 U.S.C. § 1332(d)
. The district court remanded the case to state court, finding that there was not complete diversity and that Plaintiffs' action came within the single-event exception to CAFA federal jurisdiction, 28 U.S.C. § 1332(d)(11)(B)(ii)(I). Boeing appealed. We affirmed the district court's rejection of Boeing's allegation of fraudulent joinder (which would have allowed for diversity jurisdiction), but vacated and remanded, finding that the case did not come within CAFA's single-event exception. Allen v. Boeing, 784 F.3d 625, 627 (9th Cir.2015). We noted that Plaintiffs had also sought remand to the state court pursuant to the local controversy exception, 28 U.S.C. § 1332(d)(4)(A)(i), but because the district court had failed to address this exception, we referred the issue to the district court to consider in the first instance. Id. at 637. On remand, the district court held that Plaintiffs' case came within the local controversy exception and again remanded the case to state court.
Boeing appeals, arguing that Plaintiffs have not demonstrated that they seek “significant relief” from Landau, the in-state defendant, and that Landau's conduct does not form “a significant basis of the claims asserted,” as required by 28 U.S.C. § 1332(d)(4)(A)(i)
. We affirm the district court's remand of this case to the state court, holding that Plaintiffs have adequately pled both that they are seeking “significant relief” from Landau and that Landau's alleged conduct forms a “significant basis” for their claims.
Because we look to the complaint to determine whether the Plaintiffs' action comes within the local controversy exception (see infra ), we set forth at some length the allegations contained in Plaintiffs' First Amended Complaint (“FAC”).
From the 1960s to the 1990s, Boeing used solvents, which allegedly contained hazardous chemicals, in its aircraft-parts manufacturing plant in Auburn, Washington. In 1987, the Washington State Department of Ecology initiated requirements for the treatment, storage, and handling of hazardous materials.
Plaintiffs are over 108 individuals who allege that for several decades Boeing used materials, chemicals, and solvents that it “knew to be hazardous to human health and harmful to the environment, including the soil and groundwater.” Among the solvents allegedly used as degreasing agents for metal parts were tricholoroethylene (“TCE”), tricholorethane (“TCA”), and tetrachloroethylene, also known as percholorlethylene (“PCE”), and possibly dicholorethene. In 2002, Boeing agreed with the State of Washington “to complete a remedial investigation, feasibility study, draft a cleanup action plan, perform cleanup actions, and clean up as necessary to remediate releases of hazardous substances associated with the Boeing Auburn Plant.” The agreement provided that Boeing “must identify the probable source of any release of hazardous substances, chemical constituents, horizontal and vertical extent of any releases of hazardous substances, the rate and direction of migration of the hazardous substances,” as well as “track and document the contamination concentrations and potential migration.” In 2002, Boeing also contracted with Landau “for the investigation and remediation of the Boeing Auburn Plant.” Plaintiffs allege that around that time Boeing and Landau identified a plume of volatile organic chemicals (“VOCs”), “including TCE and PCE and their degradation products including vinyl chloride (‘VC’) in the groundwater” at the Plant, identified a building on the Plant as the likely source of the plume, and noted that the plume had moved off the Plant's property and was continuing to move in the shallow groundwater in a north and/or northwest direction. The FAC further asserts that Boeing and Landau “knew at that time that the movement of these hazardous substances posed a threat to the health and rights of nearby property owners and residents and their properties,” and that both defendants failed to take reasonable actions to investigate and remediate the plume or to warn “nearby property owners and residents of the presence and movement of hazardous substances.”
The FAC further alleges that in 2009 Boeing and Landau identified a second plume of pollutants, including TCE and PCE, that was moving off Boeing's property in the groundwater. Plaintiffs reiterate that Boeing and Landau failed to investigate and remediate the pollution and failed to warn the property owners and residents.
In 2013, Boeing and Landau performed samplings in the area of Plaintiffs' homes and informed the residents of the presence of hazardous substances on their properties. The FAC alleges that VOCs have been detected in air samples taken from crawl spaces and homes. It alleges that these VOCs are harmful to humans.1
In November 2013, Plaintiffs filed an action against Boeing and Landau in King County Superior Court, asserting state law claims of negligence, nuisance, and trespass against Boeing and negligence against Landau. Plaintiffs allege that Landau owed them a cognizable duty to exercise reasonable care and that it failed to exercise reasonable care in its investigation, remediation, and containment of the hazardous substances. Plaintiffs seek damages from Boeing and Landau for their foreseeable injuries, including “the difference between the current value of their properties and such value if the harm had not been done, the cost of remediation actions, costs of repair or restoration, the value of the use of the continuous trespass, injuries to persons, medical costs, medical monitoring, attorneys' fees and expenses as allowed by law, and consequential damages flowing from the contamination which are the natural and proximate result of [Landau's] conduct.”
In April 2014, Boeing, the out-of-state defendant, removed the action to the United States District Court for the Western District of Washington, asserting two independent bases for federal jurisdiction: diversity and CAFA. The district court ruled that Landau, the in-state defendant, had not been fraudulently joined. This meant that there was not complete diversity of citizenship for jurisdictional purposes. At the same time, the district court remanded the case to the state court on the ground that the action came within CAFA's single-event exception. Boeing appealed. We issued an opinion...
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