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Boeing Tells 9th Circ. Dart Cherokee Beats Remand

 The Boeing Co. urged the Ninth Circuit to overturn a district court's remand to Washington state court of a mass action alleging the aerospace giant contaminated groundwater near an aircraft parts plant, arguing Monday that the U.S. Supreme Court's recent Dart Cherokee decision broadly favors removal.

During a hearing in Seattle, Boeing Chief Counsel Michael Sylvain Paisner argued that the Delaware corporation lost its removal bid because a district judge erred in finding a presumption against removal in the case, which goes against the high court's December ruling in Dart Cherokee Basin Operating Co. v. Owens.

"Dart Cherokee ... removes a significant premise of the district court's opinion," Paisner said. "As Dart Cherokee explains, the presumption is in favor of removal in this situation."

Boeing contended that the lower court also erred in finding that the Class Action Fairness Act's single-event exemption applied because the alleged contamination included multiple and distinct events over decades, and that Boeing contractor Landau Associates was not fraudulently joined.

The allegations go back to the 1970s, when the contamination allegedly began. The plaintiffs claim that Boeing's cleanup efforts with Landau began in 2002 and were directed by the Washington State Department of Ecology.

In November 2013, more than 100 residents of Algona, Washington, sued Boeing for allegedly releasing into the ground and failing to clean up, chemical solvents from its Auburn plant, which contaminated groundwater and seeped into the plaintiffs' properties. The plaintiffs failed to serve their initial complaint and filed an amended complaint in April 2014.

The complaint asserts negligence, nuisance and trespass claims against Boeing and a negligence claim against Landau.

Boeing removed the case to federal court, arguing it was a mass action under CAFA and invoking diversity jurisdiction.

However, in September 2014, the district court remanded the case to state court, agreeing with the plaintiffs that the removal was improper under CAFA's single-event exemption. That prompted Boeing to appeal.

The plaintiffs' attorney David Bigelow of Girardi & Keese conceded that Dart Cherokee goes against the presumption of removal, but said that the case does not warrant removal to federal court, because it is a local controversy and not an interstate case of national importance. He added that the disputed conduct and most of the parties reside in Washington, and that the single-event exception applies because Boeing's conduct was continuous.

He also contended that Landau was not fraudulently joined and that Landau owed a duty to the plaintiffs.

"When Landau comes into the case, it is only stepping into the shoes of Boeing's ongoing, continuing conduct," Bigelow said.

U.S. Circuit Judges Michael Daly Hawkins, Johnnie B. Rawlinson, and Consuelo M. Callahan sat on the panel for the Ninth Circuit.

Boeing is represented in-house by Michael S. Paisner as well as Devin A. DeBacker and Michael F. Williams of Kirkland & Ellis LLP and Jeffrey M. Hanson of Perkins Coie LLP.

The plaintiffs are represented by David N. Bigelow, Robert W. Finnerty and Thomas V. Girardi of Girardi & Keese, Thomas Vertetis of Pfau Cochran Vertetis Amala PLLC, and James S. Rogers of the Law Offices of James S. Rogers.

The case is Allen et al. v. The Boeing Co., case number 15-35162, in the U.S. Court of Appeals for the Ninth Circuit.