Bixby v. Kbr Inc.
| Decision Date | 22 October 2010 |
| Docket Number | No. CV 09–632–PK.,CV 09–632–PK. |
| Parties | Rocky BIXBY, Lawrence Roberta, Scott Ashby, Charles Ellis, Matthew Hadley, Carlos Avalos, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer, Dennis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, Kevin Stanger, Ronald Bjerklund, Adanrolando Garcia, Brian Hedin, Lewis Martin, and Charles Seamon, Plaintiffs,v.KBR, INC., Kellogg, Brown & Root Service, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc., Defendants. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
Amanda Halter, Jeffrey L. Raizner, Michael P. Doyle, Patrick Mason Dennis, Doyle Raizner, LLP, Houston, TX, David F. Sugerman, David F. Sugerman Attorney, PC, Portland, OR, for Plaintiffs.Randall Jones, Serpe Jones Andrews Callender & Bell PLLC, Geoffrey L. Harrison, J. Hoke Peacock, III, Susman Godfrey LLP, Houston, TX, Raymond B. Biagini, Kurt Hamrock, Lora A. Brzezynski, McKenna Long & Adlridge LLP, Washington, DC, Stephen F. Deatherage, Jeffrey S. Eden, Bullivant Houser Bailey, PC, Portland, OR, for Defendants.
Plaintiffs Rocky Bixby, Lawrence Roberta, Scott Ashby, Charles Ellis, and Matthew Hadley filed this action against defendants KBR, Inc., Kellogg, Brown & Root Service, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc., on June 8, 2009. On September 8, 2009, plaintiffs amended their complaint, adding Carlos Avalos, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer, Dennis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, and Kevin Stanger as additional plaintiffs. Plaintiffs amended their pleading a second time on February 2, 2010, adding Ronald Bjerklund, Adanrolando Garcia, Brian Hedin, Lewis Martin, and Charles Seamon as additional plaintiffs. In their second amended complaint, plaintiffs allege defendants' liability for negligence and for fraud arising out of plaintiffs' exposure to sodium dichromate and resultant hexavalent chromium poisoning while stationed as Oregon National Guardsmen in Iraq and assigned to duty at the Qarmat Ali water plant in 2003.
Now before the court is defendants' motion (# 45) to dismiss for lack of subject-matter jurisdiction. I have considered the motion, oral argument on behalf of the parties, and all of the pleadings on file. For the reasons set forth below, the motion is denied.
The federal courts are courts of limited jurisdiction. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005), citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). As such, the courts presume that causes of action “lie[ ] outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; see also, e.g., Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir.2006).
A motion under Federal Civil Procedure Rule 12(b)(1) to dismiss for lack of subject-matter jurisdiction may be either “facial” or “factual.” See Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004), citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). In a facial attack on subject-matter jurisdiction, the moving party asserts that a plaintiff's allegations are insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the moving party disputes the factual allegations that, if true, would give rise to subject-matter jurisdiction. Where a defendant raises a facial challenge to subject-matter jurisdiction, the factual allegations of the complaint are presumed to be true, and the motion may be granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 1 (9th Cir.2003). By contrast, where a defendant raises a factual challenge to federal jurisdiction, “the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment,” Safe Air v. Meyer, 373 F.3d at 1039, citing Savage, 343 F.3d at 1039 n. 2, and “need not presume the truthfulness of the plaintiff's allegations,” id., citing White, 227 F.3d at 1242.
“Defective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts.” 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective allegation of jurisdiction without leave to amend “unless it is clear, upon de novo review, that the complaint could not be saved by amendment.” Snell v. Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir.2002), citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir.2001).
The plaintiffs are current or former members of the Oregon National Guard who were allegedly injured by exposure to sodium dichromate while deployed in Kuwait and Iraq in 2003.
Defendant KBR is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. KBR is the corporate parent of defendants Kellogg Brown & Root Services, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc.
Defendant Kellogg Brown & Root Services, Inc. (“KB & RS”), is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. KB & RS is the operating company and contracting entity for KBR's Government and Infrastructure (“G & I”) business unit, which is an engineering, construction, and services contractor for public sector and private clients. This is the entity that directly contracted with the United States Government to provide logistical support to the military in the Middle East.
Defendant KBR Technical Services, Inc. (“KBRTS”), is a corporation organized under the laws of the State of Delaware with its principal place of business in Houston, Texas. KBRTS is an employment company that hires individuals who perform work domestically and abroad for KBR-related companies.
Defendant Overseas Administration Services, Ltd. (“OAS”), is a corporation organized under the laws of the Cayman Islands with its principal place of business in Dubai, United Arab Emirates. OAS is an employment company that hires employees who perform work abroad under contracts awarded by various clients to KBR-related companies.
Defendant Service Employees International, Inc. (“SEI”), is a corporation organized under the laws of the Cayman Islands with its principal place of business in Dubai, United Arab Emirates. SEI is an employment company that hires employees who perform work abroad under contracts awarded by various clients to KBR-related companies.
On March 3, 2003—before combat operations began in Iraq—the U.S. Army Corps of Engineers entered into Contract No. DACA63–03–D–0005 () with KBR. Under the RIO contract, KBR and/or its subsidiaries agreed to provide services to the U.S. military in connection with efforts to restore the infrastructure underlying the Iraqi oil industry. Also under the RIO contract, the U.S. Army Corps of Engineers issued various “task orders” for KBR to perform.
Combat operations in Iraq began on March 19, 2003. On March 20, 2003, the Corps of Engineers issued “Task Order 3,” which governed the services to be provided by KBR and its subsidiaries at Qarmat Ali and other facilities. Under Task Order 3, the U.S, military would declare a given worksite to be “benign” before KBR would begin operations there.1
Task Order 3 provides that KBR was responsible for providing the Corps of Engineers with an environmental assessment of any facility in which it undertook operations. The obligation to provide such assessments included the obligation to report and evaluate any environmental hazards. According to Sumner's and Gen. Crear's deposition testimony, KBR was not merely permitted but required under Task Order 3 and the RIO contract to take all necessary precautions to safeguard personnel who might potentially be exposed to environmental hazards at worksites, including the wearing of protective gear and/or the closing down of operations at any unsafe site.
In addition, the RIO contract sets forth specific health and safety requirements KBR was required to comply with in performing services under the contract, including Overseas Environmental Baseline Guidance Document 4715.5–G (Mar. 2000), relevant OHSA standards, industry standards, CERCLA requirements, environmental assessment requirements, Army safety regulations, and Army Corps of Engineers safety standards. These requirements were never waived. The RIO contract further provides that the U.S. government will indemnify KBR for any claims involving bodily injury or death arising out of KBR's provision of services under the contract.
The United States military was involved in active, major combat operations in Iraq between March 19, 2003, and May 1, 2003, when then-President Bush declared an end to major combat activities in Iraq. The KBR defendants' involvement in work at Qarmat Ali began at some time after May 1, 2003.
KBR personnel apparently became aware of the presence of sodium dichromate at Qarmat Ali shortly after commencing operations at that location, because in May 2003, before the Oregon National Guard began sending soldiers to that location, KBR advised one subcontractor performing work at Qarmat Ali that some areas within the site were contaminated with sodium dichromate. It appears that no KBR defendant advised the Oregon National Guard or any Oregon National Guard soldier of the presence of sodium dichromate at the site at any time prior to August 2003.
In May 2003...
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