Bartel v. Tokyo Elec. Power Co., Case Nos.: 18-CV-537 JLS (JLB)

• Decision Date: 04 March 2019
• Docket Number: Case Nos.: 18-CV-537 JLS (JLB)
• Parties: Dustin BARTEL; et al., Plaintiffs, v. TOKYO ELECTRIC POWER COMPANY, INC.; et al., Defendants.
• Court: U.S. District Court — Southern District of California

371 F.Supp.3d 769

Dustin BARTEL; et al., Plaintiffs,

v.TOKYO ELECTRIC POWER COMPANY, INC.; et al., Defendants.

Case Nos.: 18-CV-537 JLS (JLB)

United States District Court, S.D. California.

Signed March 4, 2019

Adam Cabral Bonner, Charles A. Bonner, Law Offices of Bonner & Bonner, Sausalito, CA, Catharine Elizabeth Edwards, Edwards Kirby LLP, Del Mar, CA, Gayle M. Blatt, Casey, Gerry, Schenk, Francavilla, Blatt & Penfield LLP, San Diego, CA, John Reid Edwards, Pro Hac Vice, Edwards Kirby LLP, Raleigh, NC, for Plaintiffs.

Bryan H. Heckenlively, Kyle Warren Mach, Munber, Tolles & Olson LLP, San Francisco, CA, Daniel P. Collins, Gregory P. Stone, Hailyn J. Chen, Munger, Tolles & Olson, LLP, John D. Lombardo, Arnold and Porter LLP, Los Angeles, CA, David J. Weiner, Sally L. Pei, Arnold & Porter Kaye Scholer LLP, Washington, DC, Michael D. Schissel, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, New York, NY, for Defendants.

ORDER: (1) GRANTING TEPCO'S MOTION TO DISMISS; AND (2) GRANTING GE'S MOTION TO DISMISS

(ECF Nos. 19, 20)

Hon. Janis L. Sammartino, United States District Judge

Presently before the Court is Defendant Tokyo Electric Power Company, Inc.'s ("TEPCO") Motion to Dismiss, ("TEPCO MTD," ECF No. 20), and Defendant General Electric's ("GE") Motion to Dismiss, ("GE MTD," ECF No. 19). Plaintiffs have filed a Response in Opposition to TEPCO's Motion, ("Opp'n to TEPCO MTD," ECF No. 24), and to GE's Motion, ("Opp'n to GE MTD," ECF No. 23). TEPCO filed a Reply, ("TEPCO Reply," ECF No. 28), as did GE, ("GE Reply," ECF No. 27). Having reviewed the parties' arguments and the law, the Court rules as follows.

BACKGROUND

On March 11, 2011, a 9.0 magnitude earthquake struck Japan, giving rise to tsunami waves more than 40 feet high that struck Japan's Fukushima-Daiichi Nuclear Power Plant ("FNPP"). Complaint ("Compl.") ¶ 244, ECF No. 1. The plant's radioactive core melted down, causing severe damage to the plant and releasing radiation as a result. Id. ¶¶ 251, 255. Plaintiffs, who are members of the U.S. Navy crew of the U.S.S. RONALD REAGAN, crews of other vessels participating in the Reagan Strike Force, land-based service personnel, and, in some cases, their dependents, were deployed to Japan as a part of a mission known as "Operation Tomodachi." Id. ¶ 6. Plaintiffs allege that the FNPP released radioisotopes and exposed them to injurious levels of ionizing radiation during the mission. Id. The release of radiation and subsequent injuries resulted from "negligently designed and maintained" Boiling Water Reactors at the FNPP. Id. ¶ 7.

Plaintiffs assert both individual and class action claims. Id. The causes of action include negligence, strict products liability, strict liability for ultrahazardous activities, res ipsa loquitur, negligence per se, loss of consortium, and survival and wrongful death. See generally id. Plaintiffs make these claims against TEPCO, as the owner and operator of the FNPP, and against GE, as the designer of the Boiling Water Reactors within the FNPP. Id. ¶¶ 207, 219, 223.

The procedural history of this case—and related cases—is long but relevant. A group of Navy sailors, including many of the Plaintiffs in this case, originally initiated an action against TEPCO in this Court, Cooper v. TEPCO , 12-CV-3032 JLS (WMC) ("Coo per "), on December 21, 2012. TEPCO moved to dismiss and the Court granted TEPCO's motion without prejudice. Cooper , 990 F.Supp.2d 1035 (S.D. Cal. 2013). The plaintiffs filed an amended complaint, which TEPCO moved to dismiss; the Court granted in part and denied in part this motion, again permitting the plaintiffs to file an amended complaint. Cooper , 2014 WL 5465347 (S.D. Cal. Oct. 28, 2014). The plaintiffs did so, naming GE as an additional defendant (along with three other manufacturer defendants EBASCO, Toshiba, and Hitachi). TEPCO then moved for reconsideration of the Court's Order regarding its second motion to dismiss. The Court amended its Order and granted TEPCO's motion for certification of an interlocutory appeal and stayed the case at the district court level. See Cooper , 166 F.Supp.3d 1103 (S.D. Cal. 2015).

During the Cooper appeal, counsel for the Cooper plaintiffs filed a separate action, Bartel v. TEPCO , 17-CV-1671 JLS (JLB) ("Bartel I "), against TEPCO and GE. Both TEPCO and GE moved to dismiss the complaint, and the Court granted their respective motions and dismissed the plaintiff's claims, without prejudice. Bartel I , 2018 WL 312701 (S.D. Cal. Jan. 5, 2018). Rather than file an amended complaint or appeal that order, counsel for the Bartel I plaintiffs filed the current action, Bartel v. TEPCO , 18-CV-537 JLS (JLB) ("Bartel II "). See generally Compl. Fifty-five new plaintiffs joined the operative Complaint as named plaintiffs in the present case. See id.

Both TEPCO and GE have moved to dismiss this case against them. The Court addresses each Motion in turn.

TEPCO'S MOTION TO DISMISS

TEPCO argues that issue preclusion bars Plaintiff's claims because of the prior Bartel I order. Absent preclusion, TEPCO argues the Court should dismiss Plaintiff's claims for lack of personal jurisdiction. The Court agrees with TEPCO that preclusion applies and that this court lacks personal jurisdiction over TEPCO.

ANALYSIS

I. Issue Preclusion

Issue preclusion bars the relitigation of issues that a Court has already adjudicated in a previous proceeding. Taylor v. Sturgell , 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). When a federal district court with diversity jurisdiction must "determine the preclusive effect of a prior decision by a different federal district court sitting in diversity, the second court must apply preclusion principles according to the law of the initial court's state." Daewoo Elecs. Am. Inc. v. Opta Corp. , 875 F.3d 1241, 1244 (9th Cir. 2017) (citing Semtek Int'l Inc. v. Lockheed Martin Corp. , 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) ). As a federal district court located in California siting in diversity and determining the preclusive effect of its own prior decision, this Court will apply California's law of issue preclusion.

Under California law, issue preclusion, applies "(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party." Samara v. Matar , 5 Cal. 5th 322, 234 Cal.Rptr.3d 446, 419 P.3d 924 (2018) (quoting DKN Holdings LLC v. Faerber , 61 Cal. 4th 813, 825, 189 Cal.Rptr.3d 809, 352 P.3d 378 (2015) ).

This case raises two questions regarding issue preclusion: (1) whether the decision in Bartel I , in which this Court dismissed the Bartel I plaintiffs' claims for lack of personal jurisdiction, was a final decision on the merits; and (2) whether the new Bartel II plaintiffs are in privity with the Bartel I plaintiffs so that any preclusive effects extends to them.

A. Final Decision on the Merits

"It is well settled that the principles of res judicata apply to the issue of in personam jurisdiction in the same manner as any other issue."¹ Kendall v. Overseas Dev. Corp. , 700 F.2d 536, 538 (9th Cir. 1983) (citing Baldwin v. Iowa State Traveling Mens's Ass'n , 283 U.S. 522, 525–26, 51 S.Ct. 517, 75 L.Ed. 1244 (1931) ). When a court dismisses for lack of personal jurisdiction, issue preclusion bars a plaintiff from relitigating that same issue in the same court if the other elements of issue preclusion are met. Sabek, Inc. v. Engelhard Corp. , 65 Cal. App. 4th 992, 1000, 76 Cal.Rptr.2d 882 (1998) ; MIB, Inc. v. Super. Ct. , 106 Cal. App. 3d 228, 234–35, 164 Cal.Rptr. 828 (1980).

TEPCO argues that this Courts' holding in Bartel I dismissing the claims for lack of personal jurisdiction over TEPCO has preclusive effect. TEPCO MTD at 14. Plaintiffs, on the other hand, contend that the Bartel I decision does not preclude their claims because the Court dismissed those claims without prejudice, which is not a final judgment on the merits. Opp'n to TEPCO MTD at 16–19.

Plaintiffs' argument is unpersuasive. The California Court of Appeal in Sabek, Inc. faced this exact issue and found that Plaintiffs' "argument is untenable." 65 Cal. App. 4th at 998, 76 Cal.Rptr.2d 882. There, the Court of Appeal held that issue preclusion applied after the plaintiff had attempted to serve his complaint three previous times, and, each time, the trial court had quashed the service for lack of minimum contacts with the forum. Id. In rejecting the argument that issue preclusion did not apply because the judgement was not on the merits, the court noted that "[f]inality for purposes of issue preclusion is not the same as the finality essential to claim preclusion." Id. As a result, "even when the underlying cause of action itself is not barred, the rules of issue preclusion may nevertheless apply to a final order in which personal jurisdiction is found to be absent. In such a case, the order ‘is on the merits to the extent that it will bar the plaintiff from maintaining a further action in that State, [though] it is not on the merits so far as actions in [a proper forum] are concerned.’ " Id. at 998–99, 76 Cal.Rptr.2d 882.

Here, there is no dispute that TEPCO raised the personal jurisdiction issue in Bartel I and that TEPCO asserts the identical personal jurisdiction defense again in this action against the same Bartel I plaintiffs. Because this Court decided that issue in a final, appealable order, the requisite elements of issue preclusion are met. Plaintiffs were free to amend the complaint in that action, file a motion to reconsider, or appeal that Order. Under the doctrine of issue preclusion, however, they cannot attempt to relitigate that same issue here. Accordingly, this Court's ruling in Bartel I that it lacks personal jurisdiction over TEPCO precludes those same Bartel I plaintiffs' claims against TEPCO in this action.

B. Privity

The Bartel I plaintiffs are not the only parties to this action,...