Cooper v. Tokyo Elec. Power Co.

• Decision Date: 11 June 2015
• Docket Number: CASE NO. 12–CV–3032 JLS (WMC)
• Citation: Cooper v. Tokyo Elec. Power Co., 166 F.Supp.3d 1103 (S.D. Cal. 2015)
• Parties: Lindsay R. Cooper, et al., Plaintiffs, v. Tokyo Electric Power Company, Inc., Defendant.
• Writing for the Court: Honorable Janis L. Sammartino, United States District Judge
• Court: U.S. District Court — Southern District of California

166 F.Supp.3d 1103

Lindsay R. Cooper, et al., Plaintiffs,

v.Tokyo Electric Power Company, Inc., Defendant.

CASE NO. 12–CV–3032 JLS (WMC)

United States District Court, S.D. California.

Signed June 11, 2015

Adam Cabral Bonner, Charles A. Bonner, Law Offices Of Bonner & Bonner, Sausalito, CA, Paul C. Garner, Carlsbad, CA, for Plaintiffs.

Daniel P. Collins, Gregory P Stone, John B Owens, Munger, Tolles & Olson, LLP, Los Angeles, CA, for Defendant.

AMENDED ORDER AFTER RECONSIDERATION: (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS, (2) DENYING DEFENDANT'S MOTION TO DISMISS UNDER FORUM NON CONVENIENS AND INTERNATIONAL COMITY, AND (3) GRANTING MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL

(ECF Nos. 69 & 73)

Honorable Janis L. Sammartino, United States District Judge

Presently before the Court is Defendant Tokyo Electric Power Company, Inc.'s (“TEPCO”) Motion for Reconsideration or, Alternatively, for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b). (Mot. Reconsideration, ECF No. 73.) TEPCO asks the Court to reconsider its prior Order granting in part and denying in part TEPCO's Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim or, in the Alternative, to Dismiss under the Doctrines of Forum Non Conveniens and International Comity. (See SAC Order, ECF No. 69 (granting in part and denying in part TEPCO's Mot. to Dismiss, ECF No. 55.))

Having carefully considered the Parties' arguments and the law, the Court (1) GRANTS TEPCO's Motion for Reconsideration, (2) MAINTAINS its prior rulings, and (3) CERTIFIES this case for interlocutory appeal. This Order AMENDS and SUPERSEDES the Court's prior Order docketed as ECF No. 69.

FACTUAL AND PROCEDURAL BACKGROUND

This Order incorporates by reference the factual and procedural background set forth in the Court's Nov. 26, 2013 Order dismissing Plaintiffs' First Amended Complaint (“FAC”) without prejudice. (FAC Order, Nov. 26, 2013, ECF No. 46.) This section presents a brief summary of the most relevant facts in order to provide context for the issues discussed below.

Plaintiffs are members of the U.S. military who allege that they were injured by radiation exposure when they were deployed near the Fukushima–Daichi Nuclear Power Plant (“FNPP”) in Japan in the aftermath of the disastrous earthquake and tsunami that struck that country on March 11, 2011. On December 21, 2012 Plaintiffs initiated this action against TEPCO, which owns and operates the FNPP, and subsequently filed the FAC on June 4, 2013.

1. First Amended Complaint

Plaintiffs' FAC alleged that TEPCO “conspired and acted in concert with the Japanese Government ... to create an illusory impression that the extent of the radiation that had leaked from the site of the FNPP was at levels that would not pose a threat” to human health and safety, and that TEPCO “failed to alert public officials, including the U.S. Navy, the Plaintiffs, and the general public, to the danger of coming too close to the FNPP.” (See FAC ¶¶ 70, 109, ECF No. 21.)

On November 26, 2013, the Court granted TEPCO's motion to dismiss the FAC, concluding that subject matter jurisdiction was lacking because Plaintiffs' claims were non-justiciable under the political question doctrine. (FAC Order 9, Nov. 26, 2013, ECF No. 46.) The Court determined that adjudicating Plaintiffs' claims would require impermissible scrutiny of the U.S. military's discretionary judgments regarding deployment of personnel and would also require evaluation of the Japanese Government's communications with the U.S. Government regarding the FNPP. (Id. at 7–9.) The Court dismissed Plaintiffs' claims with leave to amend and declined to address TEPCO's arguments for dismissal on the merits or its arguments urging dismissal on the basis of forum non conveniens and international comity.

2. Second Amended Complaint

On February 5, 2014, Plaintiffs filed the Second Amended Complaint (“SAC”), omitting claims grounded in TEPCO's purported fraud and misrepresentation, and instead relying on allegations that TEPCO was negligent in the siting, design, construction, and operation of the FNPP. Plaintiffs maintain, inter alia, that TEPCO failed to adhere to basic safety requirements in designing and operating the FNPP, failed to take adequate measures to prevent and minimize nuclear accidents, and failed to develop a suitable evacuation plan in case of emergency. (SAC ¶ 109, ECF No. 50.) Plaintiffs further allege that TEPCO ignored warnings that the FNPP was at risk of significant damage from a tsunami, failed to make necessary repairs to the plant's cooling system, and failed to carry out timely inspections of other critical equipment. (Id. at ¶¶ 114, 118–19.) Plaintiffs contended that because they no longer relied on TEPCO's affirmative representations and fraud, the Court was not required to analyze any decision made by the Executive Branch of the U.S. Government, thereby avoiding the justiciability issue.

TEPCO moved to dismiss once again, arguing that Plaintiffs' revised claims did not remedy the deficiencies previously identified by the Court. (Mot. to Dismiss 1, ECF No. 55.) TEPCO filed the operative Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim or, in the Alternative, to Dismiss under the Doctrines of Forum Non Conveniens and International Comity. (Mot. to Dismiss, ECF No. 55.) In addition, Plaintiff filed a Response in Opposition (Plaintiff's Resp. in Opp'n, ECF No. 59.) and TEPCO filed a Reply in Support (Reply ISO Mot. to Dismiss, ECF No. 62.) of the Motion to Dismiss. According to TEPCO, the new theory of liability elaborated in Plaintiffs' SAC remained inadequate because it still relied on an account of causation of injury that implicated the deployment decisions of the U.S. Navy and high-level communications between the Japanese and U.S. Governments, thereby raising the same issues of justiciability that warranted dismissal of the original pleading. (Id. ) In addition, TEPCO emphasized that Plaintiffs' claims failed on the merits and that this suit should be dismissed on the grounds of forum non conveniens and international comity to allow for litigation to proceed in Japan. (Id. at 4–6.)

Additionally Plaintiffs filed a Motion to Amend Second Amended Complaint to Add Doe Defendants and Doe Plaintiffs. (Mot. to File Am. Compl., ECF No. 65.) The Court considered TEPCO's Response in Opposition, (TEPCO's Resp. in Opp'n, ECF No. 67.), and Plaintiffs' Reply in Support (Reply ISO Mot. to File Am. Compl., ECF No. 68.) of the Motion to Amend.

After oral argument the Court took both matters under submission and on October 28, 2014, the Court issued its Order granting in part and denying in part TEPCO's motion. (Order, ECF No. 69.) The Court granted TEPCO's motion to dismiss Plaintiff's strict liability and design defect claims as well as Plaintiff's claims on behalf of Doe plaintiffs. (Id. ) The Court denied TEPCO's motion to dismiss for lack of subject matter jurisdiction. (Id. ) In so deciding, the Court reasoned that Plaintiffs' amended theory of causation did not implicate any of the Baker factors and that the military judgment in this instance is not the kind that warranted application of the political question doctrine. (Id. at 9.) Further, the Court found that Plaintiff adequately alleged proximate causation as against TEPCO. (Id. at 12.) The Court determined that the Firefighter's Rule was not a bar to recovery because it does not apply to independent acts of misconduct which were not the cause of a plaintiff's presence at the scene. (Id. at 13.) Lastly, the Court denied TEPCO's motions to dismiss under the doctrines of forum non conveniens and international comity. (Id. )

3. Motion for Reconsideration, or Alternatively, for Certification

Subsequently, TEPCO filed a Motion for Reconsideration or, Alternatively, for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b). (Mot. Reconsideration, ECF No. 73.) Plaintiff filed a Response in Opposition to (Opp'n Reconsideration, ECF No. 84) and TEPCO filed a Reply in Support of (Reply Reconsideration, ECF No. 90) the Motion. TEPCO premises its Motion for Reconsideration on the grounds of (1) an intervening change in controlling law in International Comity analysis and (2) clear error with respect to the Court's Causation and Firefighter's Rule analysis. (Mot. Reconsideration 1–3, ECF No. 73–1.)

TEPCO requests that if the Court does not reconsider its Order and dismiss the case, then the Court should certify the Order (or an Amended Order) for interlocutory appeal. The Court heard oral argument regarding the motion on March 12, 2015.

I. RECONSIDERATION

1. Legal Standard

In the Southern District of California, a party may apply for reconsideration “[w]henever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part.” Civ. L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, new or different facts which previously did not exist. Id.

Generally, reconsideration of a prior order is “appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (citation omitted). Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000) (citation omitted). Ultimately, whether to grant or deny a motion for reconsideration is in the sound discretion of the district court. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir.2003) (citing Kona Enters., 229 F.3d at 883 ). A party may not raise new arguments or present new...