Allen v. Boeing Co.
| Decision Date | 27 April 2015 |
| Docket Number | No. 15–35162.,15–35162. |
| Citation | 784 F.3d 625 |
| 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. The BOEING COMPANY, a Delaware Corporation, Defendant–Appellant, and Boeing Commercial Airplanes; Landau Associates Inc, a Washington Corporation; Does 1–50, inclusive, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Sylvain Paisner, of Renton Washington (argued), Jeffrey M. Hanson, Perkins Coie LLP, Seattle, Washington, and Michael F. Williams, Peter A. Farrell, Michael J. Podberesky, and Devein A. DeBacker, Kirkland & Ellis, LLP, of Washington, D.C., for defendant-appellant The Boeing Company.
Robert Finnerty, Thomas V. Giraldi, and David N. Bigelow (argued), Giraldi/Keese of Los Angeles, CA, and Thomas Vertetis, Pfau Cochran Vertetis of Tacoma, Washington for the plaintiffs-appellees, Jocelyn Allen, et al.
Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District Judge, Presiding. D.C. No. 2:14–cv–00596–RSM.
Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.
Jocelyn Allen and others (Plaintiffs) sued The Boeing Company (Boeing) and Landau Associates (Landau) in a Washington state court alleging that for over forty years 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 pollution. Boeing removed the case to the District Court for the Western District of Washington claiming federal jurisdiction based on diversity and the Class Action Fairness Act (CAFA). The district court remanded the case to state court holding that (1) Landau was not fraudulently joined, and thus there was not complete diversity, and (2) Plaintiffs' action came within the local single event exception to CAFA federal jurisdiction, 28 U.S.C. § 1332(d)(11)(B)(ii)(I). Boeing sought and was granted leave to appeal pursuant to 28 U.S.C. § 1453(c). We hold that Plaintiffs' action does not come within the local single event exception to CAFA, and that, therefore, the district court has federal jurisdiction under CAFA. We affirm the district court's determination that Boeing failed to show that Landau was fraudulently joined. We refer Plaintiffs' assertion that their action falls within the local controversy exception to federal jurisdiction under CAFA, 28 U.S.C. § 1332(d)(4)(A), to the district court for consideration in the first instance.
From the 1960s to the 1990s, Boeing used solvents that allegedly contained hazardous chemicals in its aircraft parts manufacturing plant in Auburn, Washington. In 1987, the Washington State Department of Ecology (Department of Ecology) initiated requirements for the treatment, storage and handling of hazardous materials. In 2002, Boeing entered into an agreement with the Department of Ecology to investigate and remediate releases of hazardous substances from its manufacturing plant and retained Landau to conduct the investigation and remediation.
In November 2013, Plaintiffs filed an action against Boeing and Landau in King County Superior Court, Washington. Plaintiffs alleged that they “incurred property damages as a result of groundwater contamination by hazardous chemicals at and around” Boeing's Auburn plant “from the 1960s to the present.” They further alleged “that Boeing and its environmental-remediation contractor, Landau, are liable for negligently investigating, remediating, and cleaning up the contamination and for failing to warn Plaintiffs of the contamination.” Based on these allegations, Plaintiffs asserted state law claims of negligence, nuisance, and trespass against Boeing and negligence against Landau.
In April 2014, Boeing removed the action to the District Court for the Western District of Washington. It asserted two independent bases for federal jurisdiction: diversity jurisdiction and CAFA. With respect to diversity jurisdiction, Boeing alleged that Landau had been fraudulently joined to defeat complete diversity.
On September 23, 2014, the district court held that Landau had not been fraudulently joined, but that the action fell within the local single event exception to federal jurisdiction under CAFA, and remanded the case to the state court.
Boeing filed a petition pursuant to 28 U.S.C. § 1453(c)(1) for leave to appeal, which we subsequently granted. We review the remand order de novo. Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1196 (9th Cir.2015).
A defendant generally may remove a civil action if a federal district court would have original jurisdiction over the action. 28 U.S.C. § 1441(a). The Supreme Court has clarified that “no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.” Dart Cherokee Basin Operating Co. v. Owens, ––– U.S. ––––, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014). This clarification reinforces our holding that “the objecting party bears the burden of proof as to the applicability of any express statutory exception under §§ 1332(d)(4)(A) and (B).” Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir.2007).1
Boeing alleged federal jurisdiction based on diversity, 28 U.S.C. § 1332(a)(1), and on the ground that Plaintiffs' action was a “mass action” pursuant to CAFA, § 1332(d)(11)(B). A “mass action” is defined as “any civil action ... in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).” 28 U.S.C. § 1332(d)(11)(B)(i). There is no real question that Plaintiffs' action fits within this definition.
However, § 1332(d)(11)(B)(ii) sets forth certain exceptions to CAFA jurisdiction. In particular, subsection (d)(11)(B)(ii)(I) provides that the term “mass action” does not include a civil action in which “all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State.” It is the district court's holding that Plaintiffs' action falls within this local single event exception to federal jurisdiction under CAFA that commands our attention.
We addressed the local event exception in Nevada v. Bank of America Corp., 672 F.3d 661 (9th Cir.2012). In that case, Nevada brought a parens patriae action alleging that “Bank of America misled Nevada consumers about the terms and operation of its home mortgage modification and foreclosure processes, in violation of [Nevada law].” Id. at 664. In the process of concluding that the parens patriae action was not a “mass action,” id. at 672, we stated:
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