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9th Circ. Will Review Boeing Water Pollution Remand

08 March 2016

The Ninth Circuit on Monday granted Boeing’s petition to appeal the remand to state court of a proposed class action alleging the company discharged hazardous chemicals into groundwater and contaminated properties for more than 40 years from its Auburn, Washington, aircraft parts manufacturing plant.

This will be the second time The Boeing Co. has appealed a remand order delivered by a Washington state federal court judge. The appeals court reversed the first order, but U.S. District Judge Ricardo Martinez in August again granted a new remand request. Now Boeing says the judge did not follow the Ninth Circuit’s instructions and got the law wrong in remanding the case to state court.

In the August petition for leave to appeal that was granted Monday, Boeing also said Judge Martinez failed to properly consider the case’s “important and difficult questions” regarding the application of the the Class Action Fairness Act’s local-controversy exception.

“The district court remanded based on the local-controversy exception without analyzing ‘the adequacy of plaintiffs’ complaint under Washington law,’ as this court instructed. Its ruling thus ignores this court’s clear directive and conflicts with other courts’ decisions rejecting the local-controversy exception where, as here, the claims against the in-state defendant fail as a matter of law,” Boeing said.

The district court’s ruling also improperly relieved the class plaintiffs of their burden by resolving doubts in favor of remand, rather than in favor of removal, Boeing said. The company also said the ruling conflicts with numerous decisions refusing to apply the local-controversy exception to mass environmental torts where the in-state defendant had little or no involvement in causing the pollution.

Boeing argued that the local-controversy exception to CAFA jurisdiction applies only where, among other things, the in-state defendant’s “alleged conduct forms a significant basis for the claims” and the complaint seeks “significant relief” against an in-state defendant.

The complaint targets Boeing and its environmental remediation contractor Landau Associates Inc., and alleges that the Auburn facility cleanup efforts only contributed to further movement of the pollution onto the proposed class members’ properties.

Boeing said that on remand, the district court ignored the Ninth Circuit’s directive and the company’s arguments concerning the adequacy of the claim against Landau under Washington law.

“Instead, the district court simply observed that it had previously determined, and this court affirmed, that Landau was not fraudulently joined,” Boeing said. “But that is not the same as analyzing the adequacy of the claim, and plaintiffs do not carry their burden of stating a claim simply by defeating fraudulent joinder.”

Boeing said the plaintiffs must allege facts that would raise their right to relief against Landau “above the speculative level.” If Judge Martinez had performed the analysis, Boeing said it would be clear that the plaintiffs have failed to state a claim against Landau — and thus failed to carry their burden of establishing that it is a significant defendant.

Boeing is represented by Kevin T. Van Wart, Bradley H. Weidenhammer, and Devin A. DeBacker of Kirkland & Ellis LLP; and Jeffrey M. Hanson of Perkins Coie LLP.

Landau is represented by Michael A. Nesteroff of Lane Powell PC.

The plaintiffs are represented by James S. Rogers, Cheryl L. Snow, and Elizabeth J. Donaldson of Law Offices of James S. Rogers; and Thomas V. Girardi and David N. Bigelow of Girardi Keese.

The case is Jocelyn Allen et al. v. The Boeing Co., number 16-35175 in the U.S. Court of Appeals for the Ninth Circuit.

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