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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 MARIE RILEY, CASE NO. C20-0458JLR 11 Plaintiff, ORDER GRANTING v. PLAINTIFF’S MOTION TO 12 REMAND THE BOEING COMPANY, et al., 13 Defendants. 14
15 I. INTRODUCTION 16 Before the court is Plaintiff Marie Riley’s motion to remand this case to King 17 County Superior Court. (Mot. (Dkt. # 25).) Defendant the Boeing Company (“Boeing”) 18 opposes the motion. (Resp. (Dkt. # 28).) The court has considered the motion, the 19 parties’ submissions in support of and in opposition to the motion, and the applicable law. 20 // 21 // 22 // 1 Being fully advised,1 the court GRANTS Ms. Riley’s motion to remand this case to King 2 County Superior Court.
3 II. BACKGROUND 4 A. Factual Background 5 Ms. Riley’s mother, Deborah Ulrich, worked at Boeing’s electronic circuit board 6 manufacturing facility (the “Boeing Facility”) between 1979 and 1980 (KCSC FAC (Dkt. 7 # 1-4) (sealed) ¶¶ 5, 11.) Ms. Riley alleges that Ms. Ulrich “was exposed via inhalation 8 and/or dermal contact to chemical products and substances that were utilized in the
9 manufacture of [Boeing’s] printed circuit boards” at the Boeing Facility. (Id. ¶ 14.) Ms. 10 Riley further alleges that she was exposed to these chemicals in utero and that they 11 caused her injury. (Id. ¶¶ 73-76.) Ms. Riley further alleges that Defendant Newco, Inc. 12 (“Newco”)2 supplied Boeing with chemicals to which Ms. Ulrich was exposed and which 13 ultimately caused Ms. Riley’s injuries. (Id. ¶ 1.) Based on these allegations, Ms. Riley
14 //
15 1 Ms. Riley requests oral argument (see Mot. at 1), but Boeing does not (see Resp. at 1). Oral argument is not necessary where the non-moving party suffers no prejudice. See Houston v. 16 Bryan, 725 F.2d 516, 517-18 (9th Cir. 1984); Mahon v. Credit Bureau of Placer Cty. Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (holding that no oral argument was warranted where “[b]oth 17 parties provided the district court with complete memoranda of the law and evidence in support of their respective positions,” and “[t]he only prejudice [the defendants] contend they suffered 18 was the district court’s adverse ruling on the motion.”). “When a party has an adequate opportunity to provide the trial court with evidence and a memorandum of law, there is no 19 prejudice [in refusing to grant oral argument].” Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (quoting Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 20 729 (9th Cir. 1991)) (alterations in Partridge). Here, the issues have been thoroughly briefed by the parties, and oral argument would not be of assistance to the court. See Local Rules W.D. Wash. LCR 7(b)(4). Accordingly, the court DENIES Ms. Riley’s request for oral argument. 21 2 Newco does business as Cascade Columbia Distribution Company (“Cascade”). (See Dkt.) 22 1 brings claims for negligence and products liability against Boeing; and for negligence and 2 breach of warranty against Newco. (See id. ¶¶ 25-109.)
3 B. Procedural Background 4 This district is the third forum in the life of this case. Ms. Riley initially filed a 5 complaint against Boeing in Cook County Circuit Court in the Illinois state court system. 6 (See Ill. SAC (Dkt. # 1-3, Ex. A) (sealed).) The Cook County Circuit Court consolidated 7 Ms. Riley’s case with three related cases (collectively, the “Illinois Case”). (See Ill. FNC 8 Order (Dkt. # 1-3, Ex. C) at 1.)3
9 Ms. Riley did not name Newco as a defendant in the Illinois Case. (See Ill. SAC 10 at 1.) On July 1, 2019, after limited discovery on statute of limitations and forum non 11 conveniens (“FNC”) issues, Boeing filed a motion to dismiss and transfer the Illinois 12 Case on FNC grounds. (See Ill. FNC Order at 2-3.) After considering the applicable 13 private and public interest factors, the Cook County Circuit Court concluded that the
14 factors “strongly favor the transfer of [the Illinois Case] to the Washington Superior 15 Court,” granted Boeing’s motion, dismissed the Illinois Case, and held: 16 Pursuant to Rule 187, if the plaintiffs re-file their cases in the Washington Superior Court within six months, Boeing shall: (a) accept service of process 17 from the relevant court in which each case is re-filed; and (b) waive any argument based on a statute of limitations defense. 18 (Id. at 28-29.) 19 // 20
21 3 The court cites to the page numbers provided by the court’s electronic filing system throughout this order, except for the documents filed at Dkt. # 1-3, Exs. A-C, for which the court 22 cites to the page numbers provided by the source documents. 1 Ms. Riley filed a complaint in King County Superior Court on February 24, 2020, 2 naming both Boeing and Newco as defendants. (See KCSC Compl. (Dkt. # 1-4) (sealed)
3 at 2.) Ms. Riley’s Washington complaint alleges that Newco is a Washington corporation 4 with its principal place of business in Seattle, Washington. (Id. ¶ 4.) Boeing removed to 5 this district on March 27, 2020. (See Not. of Removal (Dkt. # 1) at 9.) In its notice of 6 removal, Boeing contends that this court has diversity jurisdiction pursuant to 28 U.S.C. 7 § 1332(a)(1) because Newco—the only non-diverse defendant—is fraudulently joined. 8 (See id. at 4-8.)
9 Ms. Riley filed her motion to remand this case to King County Superior Court on 10 April 27, 2020. (See Mot. at 15.) The court now considers Ms. Riley’s motion. 11 III. ANALYSIS 12 In support of her motion to remand, Ms. Riley contends that (1) Boeing 13 is judicially estopped from removing this case (see id. at 6-7); and (2) even if Boeing is
14 not estopped, this court lacks diversity jurisdiction because Ms. Riley and Newco are 15 both Washington citizens, and Newco is not fraudulently joined (see id. at 7-15). In 16 response, Boeing argues that (1) Boeing is not judicially estopped from removing this 17 case (see Resp. at 5-8); and (2) Newco is fraudulently joined because (a) Ms. Riley’s 18 claims against Newco are time-barred (see id. at 8-11); and (b) Ms. Riley does not plead
19 any actionable claims against Newco (see id. at 11-14). The court sets forth the 20 applicable legal standards before analyzing Ms. Riley’s motion. 21 // 22 // 1 A. Legal Standards 2 1. Removal and Remand
3 Removal of a civil action to federal district court is proper where the federal court 4 would have original jurisdiction over the state court action. See 28 U.S.C. § 1441(a). “If 5 it appears that the federal court lacks jurisdiction, however, ‘the case shall be 6 remanded.’” Martin v. Franklin Capital Corp., 546 U.S. 132, 143 (2005) (quoting 28 7 U.S.C. § 1447(c)). District courts have original jurisdiction over an action with both 8 complete diversity of citizenship among the parties and an amount in controversy
9 exceeding $75,000.00. See 28 U.S.C. § 1332(a); see also Abrego Abrego v. Dow Chem. 10 Co., 443 F.3d 676, 679 (9th Cir. 2006). Federal courts strictly construe the removal 11 statute and must reject jurisdiction if there is any doubt as to the right of removal in the 12 first instance. See Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 13 (9th Cir. 2014); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Thus, the
14 defendant has the burden of establishing that removal is proper. See Kroske v. U.S. Bank 15 Corp., 432 F.3d 976, 980 (9th Cir. 2005). Although Boeing has the burden of 16 establishing the grounds for federal jurisdiction, the court is also obliged to satisfy itself 17 that it has subject matter jurisdiction. See Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th 18 Cir. 2002) (citing Fed. R. Civ. P. 12(h)(3)).
19 2. Fraudulent Joinder 20 Fraudulent joinder is an exception to the requirement of complete diversity. See 21 Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “Joinder of a 22 non-diverse defendant is deemed fraudulent, and the defendant’s presence in the lawsuit 1 is ignored for purposes of determining diversity, ‘[i]f the plaintiff fails to state a cause of 2 action against a resident defendant, and the failure is obvious according to the settled
3 rules of the state.’” Id. (quoting McCabe v. General Foods Corp., 811 F.2d 1336, 1339 4 (9th Cir. 1987)) (internal alteration in McCabe). There is a general presumption against 5 finding fraudulent joinder, and defendants bear a “heavy burden” to establish it. 6 Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 548-49 (9th Cir. 2018). 7 Fraudulent joinder must be proved by clear and convincing evidence. See Hamilton 8 Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007).
9 A defendant may establish fraudulent joinder in one of two ways: “(1) actual 10 fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a 11 cause of action against the non-diverse party in state court.” Grancare, LLC, 889 F.3d at 12 548-49 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009)). A 13 defendant succeeds in the second method if the defendant “shows that an ‘individual[]
14 joined in the action cannot be liable on any theory.’” Id. (quoting Ritchey v. Upjohn 15 Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). However, “if there is a possibility that a 16 state court would find that the complaint states a cause of action against any of the 17 resident defendants, the federal court must find that the joinder was proper and remand 18 the case to the state court.” Id. (quoting Hunter, 582 F.3d at 1046)).
19 The tests for fraudulent joinder and for failure to state a claim under Rule 12(b)(6) 20 are not equivalent. Id. at 549. “A claim against a defendant may fail under Rule 21 12(b)(6), but that defendant has not necessarily been fraudulently joined.” Id. Indeed, 22 the fraudulent joinder standard “is similar to the ‘wholly insubstantial and frivolous’ 1 standard for dismissing claims under Rule 12(b)(1) for lack of federal question 2 jurisdiction.” Id. (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946)). The stringent
3 standard for fraudulent joinder comports with the presumption against removal 4 jurisdiction, under which federal courts “strictly construe the removal statute,” and reject 5 federal jurisdiction “if there is any doubt as to the right of removal in the first instance.” 6 Id. at 550 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)). 7 3. Judicial Estoppel 8 Judicial estoppel is an “equitable doctrine invoked by a court at its discretion.”
9 New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893 F.2d 10 1033, 1037 (9th Cir. 1990)) (internal quotation marks omitted). Courts invoke judicial 11 estoppel “to prevent a party from gaining an advantage by taking inconsistent positions” 12 and to “protect against a litigant playing fast and loose with the courts.” Hamilton v. 13 State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (quoting Russell, 893
14 F.2d at 1037) (internal quotations omitted). The Ninth Circuit “restrict[s] the application 15 of judicial estoppel to cases where the court relie[s] on, or ‘accept[s],’ the party’s 16 previous inconsistent position.” See Hamilton, 270 F.3d at 783; see also Interstate Fire 17 & Cas. Co. v. Underwriters at Lloyd’s, London, 139 F.3d 1234, 1239 (9th Cir. 1998), as 18 amended (May 13, 1998) (“A majority of courts apply judicial estoppel only if the court
19 has relied on the party’s previously inconsistent statement, and we have recently adopted 20 that rule.”). 21 The court considers three non-exclusive factors in determining whether to apply 22 the doctrine: (1) whether the party’s later position is “clearly inconsistent” with its earlier 1 position; (2) whether the party succeeded in persuading a court to accept the earlier 2 position and the court’s acceptance of the later position would lead to the perception that
3 the party misled either court; and (3) whether “the party seeking to assert an inconsistent 4 position would derive an unfair advantage or impose an unfair detriment on the opposing 5 party if not estopped.” See New Hampshire, 532 U.S. at 750-51 (citations omitted). 6 B. Ms. Riley’s Motion to Remand 7 The court first addresses Ms. Riley’s argument that Boeing is estopped from 8 removing this case before turning to Boeing’s argument that jurisdiction is proper
9 because Newco is fraudulently joined. 10 1. Judicial Estoppel – Removal 11 Ms. Riley argues that Boeing is judicially estopped from removing this case in the 12 first instance—regardless of the court’s subject matter jurisdiction—on account of certain 13 positions Boeing took in the Illinois Case. (See Mot. at 6-7.) Specifically, Ms. Riley
14 contends that Boeing secured a FNC-based dismissal in the Illinois circuit courts by 15 specifically relying on the comparison between the Illinois circuit courts and the 16 Washington superior courts. (See id. at 6 (“In moving for a forum non conveniens 17 dismissal in Illinois, Boeing quite clearly intended the state court there to believe that the 18 proposed alternative forum was Washington superior court.”).) Ms. Riley argues that
19 Boeing invited the Cook County Circuit Court to compare court congestion between 20 Illinois and Washington state courts, and that the Cook County Circuit Court’s dismissal 21 of the Illinois Case was based in part on that comparison. (See id. at 6-7.) Ms. Riley 22 further contends that the Cook County Circuit Court would not have ordered FNC-based 1 dismissal had it compared congestion in Illinois state courts to the United States District 2 Court for the Western District of Washington, in which “[f]ive of the district’s seven
3 authorized judgeships are vacant, and every vacancy is a judicial emergency.” (Id. at 6.) 4 Ms. Riley contends that Boeing made “affirmative use of the processes of a state court” 5 to obtain a tactical advantage and should not now be allowed to “change its position, once 6 it is safely out of the original forum.” (Id. at 7.) 7 Boeing relies primarily on Kidwell v. Maybach International Group, No. 8 2:19-cv-149, 2020 WL 897609 (E.D. Ky. Feb. 24, 2020), to counter Ms. Riley’s judicial
9 estoppel argument. (See Resp. at 6.) In Kidwell, the plaintiff moved to remand a 10 removed case to state court on the ground that the defendants “made explicit 11 representations to the Illinois court that they planned to litigate the suit in the state courts 12 of Kentucky,” “base[d] . . . mostly on [the defendants] noting that Boone County Courts 13 heard fewer cases and had a faster resolution time.” Kidwell, 2020 WL 897609 at *1.
14 The Eastern District of Kentucky held that although the defendants had referenced the 15 Boone County, Kentucky docket, “they never clearly and unequivocally stated that they 16 intended to waive their right to remove or litigate the case to a resolution in Kentucky 17 state courts.” Id. Boeing contends that Kidwell directly applies to this case because like 18 the defendants in Kidwell, Boeing “made no representations at all about its legal strategy
19 in the event Ms. Riley refiled in Washington.” (Resp. at 6.) Boeing further counters Ms. 20 Riley’s argument that Boeing made affirmative use of the processes of a state court by 21 arguing that (1) contrary to submitting to the Cook County Circuit Court’s jurisdiction, 22 Boeing’s “use” of the Illinois state court system was not a submission to that court’s 1 jurisdiction, but rather an attempt to obtain dismissal of the case from that jurisdiction; 2 and (2) Boeing did not make affirmative use of the King County Superior Court because
3 it removed this case within 30 days of service, before answering or otherwise responding 4 to the complaint. (See id. at 6-7.) Finally, Boeing contends that the Cook County Circuit 5 Court found the issue of court congestion to be “neutral,” indicating that it was not a 6 major factor in the Cook County Circuit Court’s FNC-based dismissal. (See id.) 7 In reply, Ms. Riley faults Boeing’s reliance on Kidwell, contending that Kidwell 8 addressed the issue of waiver, not judicial estoppel. (See Reply (Dkt. # 29) at 2-3.) Ms.
9 Riley further contends that Boeing did make affirmative use of the Illinois state court 10 system because: 11 during the 21 months before it was dismissed, Boeing successfully moved to dismiss for failure to adequately plead causation (although the court allowed 12 plaintiff to replead), obtained discovery on limitations issues, and filed two separate motions to dismiss on statute of limitations grounds, though both 13 were denied without prejudice. 14 (Id. at 3.) Finally, Ms. Riley contends that the Cook County Circuit Court relied heavily 15 on Boeing’s argument that the case should be transferred not just to Washington but to a 16 specific forum—Washington superior courts—in granting FNC-based dismissal. (See id. 17 at 3-6 (noting that the Cook County Circuit Court’s order mentions “Washington 18 Superior Court” 11 times).) In sum, Ms. Riley argues that having relied on comparing 19 the Illinois state courts to the Washington state courts, and the Cook County Circuit 20 Court having applied the FNC analysis based on that direct comparison, Boeing should 21 be judicially estopped from now removing from the Washington state courts to federal 22 court. (See id. at 4-6.) 1 Having set forth the parties’ positions, the court analyzes whether Boeing is 2 estopped from removing this case to federal court by applying the three judicial estoppel
3 factors: (1) whether the party’s later position is “clearly inconsistent” with its earlier 4 position; (2) whether the party succeeded in persuading a court to accept the earlier 5 position and the court’s acceptance of the later position would lead to the perception that 6 the party misled either court; and (3) whether “the party seeking to assert an inconsistent 7 position would derive an unfair advantage or impose an unfair detriment on the opposing 8 party if not estopped.” See New Hampshire, 532 U.S. at 750-51 (citations omitted).
9 a. Whether Boeing’s Later Position is “Clearly Inconsistent” with its Earlier Position 10 The first factor weighs against invoking judicial estoppel. Courts generally 11 require that for a position to be “clearly inconsistent,” the party must have actually taken 12 a particular position in the first place. Nowhere in the Illinois state court documents filed 13 with this court does Boeing represent that it will not remove a later-filed case to federal 14 court. Although Boeing cited statistics regarding docket congestion in Washington 15 Superior Courts, it never agreed that it would not remove if Ms. Riley re-filed in 16 Washington state court. Therefore, Boeing’s current position—that it may remove this 17 case—is not “clearly inconsistent” with a previous position it took. 18 Ms. Riley is correct that a party may invoke judicial estoppel to secure a remand in 19 a removed case in some instances. However, the authority Ms. Riley relies on for that 20 position here undermines her argument. For example, in Iglesias v. Welch Foods Inc., 21 No. 17-CV-00219-TEH, 2017 WL 1227393, at *2 (N.D. Cal. Apr. 4, 2017), the 22 1 defendants previously took the position that the plaintiffs lacked Article III standing. 2 Defendants then removed the case to federal court, despite acknowledging that the
3 plaintiffs must have Article III standing to remove a case to federal court. Id. In contrast 4 to the defendants in Iglesias, here Boeing took no position on removal or this court’s 5 jurisdiction in the Illinois Case. 6 b. Whether the Court’s Acceptance of Boeing’s Later Position Would Lead to the Perception that the Party Misled Either Court 7 The second factor also weighs against invoking judicial estoppel. Boeing 8 argued the issue of court congestion to the Cook County Circuit Court, which at least 9 implied that FNC-based dismissal was warranted because Washington state courts are 10 less congested than Illinois state courts. (See Ill. FNC Order at 26-28.) Boeing’s position 11 at least implies that Boeing intended to defend the case in the Washington state court 12 system, not in the heavily congested Western District of Washington. However, Ms. 13 Riley overstates the importance of this argument to the Cook County Circuit Court’s 14 decision to dismiss the Illinois Case. The Cook County Circuit Court ultimately found 15 that the congestion factor was “neutral.” (See id. at 28.) The Cook County Circuit Court 16 based its ruling on the other public and private interest factors. (See id. at 10-28.) 17 Several of those factors depend solely on geographic location, making it immaterial 18 whether the case is ultimately litigated in Washington state court or Washington federal 19 court. (See, e.g., id. at 12 (analyzing the “convenience of the parties” factor and 20 concluding that “each plaintiff lives either in King or Snohomish Counties, Washington; 21 none has ever lived in Illinois”; and holding that it is “obvious” that it is inconvenient for 22 1 the case to proceed in Chicago); id. at 15-18 (holding that the “relative ease of access to 2 evidence factor . . . strongly favors Washington”).) Therefore, the Cook County Circuit
3 Court’s FNC-based dismissal order strongly suggests that it was not misled by Boeing’s 4 congestion-based arguments; or if it was, it had no effect on the court’s decision to 5 dismiss the Illinois Case. 6 c. Whether Boeing Would Derive an Unfair Advantage or Impose an Unfair Detriment if Not Estopped 7 The third judicial estoppel factor asks whether the party asserting an inconsistent 8 position would receive an “unfair advantage or impose an unfair detriment on the 9 opposing party if not estopped.” See New Hampshire, 532 U.S. at 751 (citations 10 omitted). Ms. Riley does not explain how Boeing would derive an unfair advantage by 11 removing this case. (See generally Mot.) At most, Ms. Riley states in conclusory fashion 12 that Boeing “obtained a significant tactical advantage” by litigating this case in 13 Washington instead of in Illinois. (See id. at 7.) However, Ms. Riley does not contend 14 that she will lose any substantive rights to pursue her claims if this case proceeds in 15 federal rather than state court, fails to explain the “significant tactical advantage” Boeing 16 will gain by litigating in federal court, and fails to explain how any such advantage would 17 be “unfair.” (See generally id.) Accordingly, the court concludes that this factor weighs 18 against invoking judicial estoppel. 19 // 20 // 21 // 22 1 d. Judicial Estoppel Conclusion 2 In sum, the three judicial estoppel factors weigh against invoking judicial estoppel.
3 Therefore, the court declines to exercise its discretion to invoke judicial estoppel to 4 preclude Boeing from removing this case. See New Hampshire, 532 U.S. at 750. 5 2. Fraudulent Joinder 6 Although Ms. Riley is the moving party on her motion to remand, Boeing is the 7 party seeking to invoke the court’s subject matter jurisdiction. (See Not. of Removal at 2, 8 4-9.) Therefore, Boeing bears the burden to establish that Newco is fraudulently joined.
9 See Kroske, 432 F.3d at 980; Grancare, LLC, 889 F.3d at 548-49. Boeing makes two 10 primary arguments in favor of a fraudulent joinder finding: (1) That Ms. Riley has no 11 viable claim against Newco because the statute of limitations bars any such claim (see 12 Resp. at 8-11); and (2) That Ms. Riley does not plead an actionable claim against Newco 13 because Ms. Riley’s complaint “does not even attempt to specifically identify which
14 workplace chemicals her mother—Deborah Ulrich—might have encountered,” does not 15 plead that Newco supplied any particular chemical among the broad categories identified, 16 and does not plead that Newco supplied the chemical and that it was the cause of her 17 injuries (id. at 12-13). 18 A defendant may establish fraudulent joinder in one of two ways: “(1) [A]ctual
19 fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a 20 cause of action against the non-diverse party in state court.” Grancare, LLC, 889 F.3d at 21 548-49 (quoting Hunter, 582 F.3d at 1044). Boeing seeks to establish fraudulent joinder 22 in the second way, meaning Boeing must show that Newco “cannot be liable on any 1 theory.” Id. (quoting Ritchey, 139 F.3d at 1318). However, “if there is a possibility that a 2 state court would find that the complaint states a cause of action” against Newco, this
3 court “must find that the joinder was proper and remand the case to the state court.” Id. 4 (quoting Hunter, 582 F.3d at 1046). It is not sufficient for Boeing to establish that Ms. 5 Riley fails to state a claim against Newco as understood under Rule 12(b)(6), but rather 6 that Ms. Riley’s claim against Newco “is wholly insubstantial and frivolous.” Id. (citing 7 Bell, 327 U.S. at 682-83). 8 a. Statute of Limitations
9 The parties do not dispute that the Washington Product Liability Act (“WPLA”) 10 provides the statute of limitations that applies to Ms. Riley’s claims against Newco. (See 11 Resp. at 8; see generally Mot.; Reply); see also RCW 7.72.060(3) (providing that, subject 12 to certain tolling provisions, “no claim under this chapter may be brought more than three 13 years from the time the claimant discovered or in the exercise of due diligence should
14 have discovered the harm and its cause”).4 With respect to minors, the three-year statute 15 of limitations is “tolled until the victim reaches the age of majority, 18 years.” St. 16 Michelle v. Robinson, 759 P.2d 467, 468 (Wash. Ct. App. 1988) (citing RCW 17
18 4 Ms. Riley’s claims against Newco are for negligence and breach of warranty. (See KCSC FAC ¶¶ 98-107.) The parties do not discuss or reference the applicable statutes of 19 limitations for Washington personal injury or warranty claims. (See generally Mot.; Resp.; Reply); see also RCW 4.16.080(2) (providing a three-year statute of limitations for personal 20 injury claims); RCW 4.16.080(3) (providing a three-year statute of limitations for claims based on contracts not in writing); RCW 62A.2-725 (providing four-year statute of limitations for contracts for sale and not in writing). However, because these additional statutes of limitations 21 provide a maximum four-year limitations period, the court’s statute of limitations analysis as it applies to Boeing’s fraudulent joinder arguments would not change by considering these 22 additional provisions. Therefore, the court declines to consider them. 1 4.16.190(1)). Ms. Riley was born in 1980. (KCSC Compl. ¶ 8.) She therefore turned 18 2 years old in 1998. Boeing argues that the statute of limitations ran in 2001, several years
3 before Ms. Riley filed her complaint in the King County Case. (See Resp. at 8; KCSC 4 Compl. at 25.) 5 Ms. Riley contends that Boeing waived its statute of limitations argument. In 6 dismissing the Illinois Case on FNC grounds, the Cook County Superior Court held: 7 Pursuant to Rule 187, if the plaintiffs re-file their cases in the Washington Superior Court within six months, Boeing shall: (a) accept service of process 8 from the relevant court in which each case is re-filed; and (b) waive any argument based on a statute of limitations defense. 9 (Ill. FNC Order at 28-29.) “Rule 187” refers to Illinois Supreme Court Rule 10 187(c)(2)(ii), which in turn provides that “[d]ismissal of an action under the doctrine of 11 forum non conveniens shall be upon the following conditions . . . (ii) if the statute of 12 limitations has run in the other forum, the defendant shall waive that defense.” 13 Ms. Riley argues that the Cook County Superior Court ruling quoted above 14 precludes Boeing from arguing that the WPLA’s statute of limitations has run with 15 respect to Ms. Riley’s claims against Newco. (See Mot. at 7-8.) Boeing, in turn, relies 16 on the language of Rule 187 that states “the defendant shall waive that defense” to mean 17 that Boeing waived only its own statute of limitations defense against Ms. Riley’s claims, 18 not limitations-based arguments for fraudulent joinder based on Ms. Riley’s claims 19 against Newco—which was not a defendant in the Illinois Case. (See Resp. at 9-11.) 20 The parties’ dispute presents an interesting question. Rule 187’s language favors 21 Boeing. That rule speaks of waiving a statute of limitations defense, not a statute of 22 1 limitations argument to support an argument for fraudulent joinder. However, although 2 the Illinois Case FNC-based dismissal order cites Rule 187, the order’s language is
3 broader than that of the rule. The order states that Boeing shall waive any argument 4 based on a statute of limitations defense. (Ill. FNC Order at 28-29 (emphasis added).) 5 Because Boeing makes an argument (that Newco is fraudulently joined) based on a 6 statute of limitations defense—albeit Newco’s—the plain language of the order precludes 7 Boeing’s argument. Although the language of the order and Rule 187 are in tension, this 8 court resolves that tension in favor of the plain language of the order.
9 b. Identification of Specific Chemicals and Newco’s Role in the Complaint 10 Separate and apart from Boeing’s fraudulent joinder arguments based on the 11 statute of limitations, Boeing contends that Newco is fraudulently joined for the 12 independent reason that Ms. Riley fails to plead any actionable claims against Newco. 13 (See Resp. at 11-14.) Boeing identifies two purported deficiencies with Ms. Riley’s
14 claims against Newco: (1) that Ms. Riley fails to “specifically identify which workplace 15 chemicals” Ms. Riley’s mother “might have encountered” (see id. at 12); and (2) Ms. 16 Riley’s complaint does not plead that Newco supplied any particular chemical among the 17 broad categories identified, let alone that Newco supplied the chemical and it was the 18 cause of her injuries (see id. at 12-13).
19 The court evaluates Boeing’s challenges to the sufficiency of Ms. Riley’s claims 20 against Newco under Washington State—not federal—pleading standards. See 21 Grancare, LLC, 889 F.3d at 548-49 (“[I]f there is a possibility that a state court would 22 find that the complaint states a cause of action against any of the resident defendants, the 1 federal court must find that the joinder was proper and remand the case to the state 2 court.”) (quoting Hunter, 582 F.3d at 1046). Washington’s pleading standards are more
3 relaxed than those set forth in the Federal Rules of Civil Procedure. See Pac. Nw. 4 Shooting Park Ass’n v. City of Sequim, 144 P.3d 276, 281 (Wash. 2006) (“Washington is 5 a notice pleading state and merely requires a simple, concise statement of the claim and 6 the relief sought.”) (citing Wash. Super. Ct. Civ. R. 8). 7 The court concludes that it is possible that a Washington state court would find 8 that Ms. Riley states a viable claim against Newco. See Grancare, LLC, 889 F.3d at
9 548-49. The court finds unpersuasive Boeing’s assertion that Ms. Riley’s complaint 10 “does not even attempt to specifically identify which workplace chemicals Deborah 11 Ulrich might have encountered” (Resp. at 12) and “does not allege that [Newco] supplied 12 the ‘relevant product’” that caused her injuries (id. at 12-13 (quoting RCW 7.72.010(3))). 13 Ms. Riley’s complaint specifically alleges that her mother was exposed to four categories
14 of chemicals and lists the names of numerous chemicals within those four categories: 15 a. Laminating dry film and chemicals used in the process, which, upon information and belief, included ethylene glycol ethers; 16 b. Volatile organic degreasing and cleaning solvents and their components, including trichloroethylene (TCE); 17 c. Organic solvents and their components, including naphtha, benzene, toluene, xylene, acetone and mineral spirits; and 18 d. Metals used in soldering processes, including but not limited to lead[.]
19 (See KCSC FAC ¶¶ 15(a)-(d).) The complaint further alleges that Newco “supplied, 20 transported, formulated, re-formulated, mixed, sold and/or distributed some of the 21 aforementioned chemical and metal products and substances to [Boeing] and its 22 / 1 employees” and that Boeing “provided all of the aforementioned chemical products and 2 substances to Deborah Ulrich for use at the Boeing Facility.” (Id. ¶¶ 17-18.)
3 These allegations are more than sufficient to meet Washington State’s more 4 relaxed notice pleading standard. Ms. Riley’s complaint places Newco on notice of the 5 factual allegations against it—that it supplied chemicals to Boeing that injured Ms. Riley 6 in utero. (Id. ¶¶ 17-18.) Further, it places Newco on notice of the legal theories against 7 it—negligence and breach of warranty. (Id. ¶¶ 105-114.) Further, if there was any doubt 8 whether Ms. Riley’s complaint meets Washington Superior Court Civil Rule 8(a)’s
9 pleading standard, that doubt would be resolved in favor of remand. See Hawaii ex rel. 10 Louie, 761 F.3d at 1034; Gaus, 980 F.2d at 566. Accordingly, Boeing does not meet its 11 “heavy burden” to establish fraudulent joinder by clear and convincing evidence. See 12 Grancare, LLC, 889 F.3d at 548-49. 13 For the reasons stated above, the court concludes that there is not complete
14 diversity because both Ms. Riley and Newco are Washington citizens, and Newco is not 15 fraudulently joined. Therefore, this court lacks diversity jurisdiction under 28 U.S.C. 16 § 1332(a). Accordingly, the court GRANTS Ms. Riley’s motion to remand this case to 17 King County Superior Court. 18 IV. CONCLUSION
19 For the reasons set forth above, the court GRANTS Ms. Riley’s motion to remand 20 this case to King County Superior Court (Dkt. # 25). The court ORDERS that: 21 // 22 // 1 1. Except for any potential motions for attorneys’ fees and costs pursuant to 2 28 U.S.C. § 1447(c), all further proceedings in this case are REMANDED to the Superior
3 Court for King County, Washington; 4 2. The Clerk shall send copies of this order to all counsel of record for all 5 parties; 6 3. Pursuant to 28 U.S.C. § 1447(c), the Clerk shall mail a certified copy of this 7 order to the Clerk for the Superior Court for King County, Washington; 8 4. Except for any briefs regarding attorneys’ fees and costs, the parties shall
9 file nothing further in this matter, and instead are instructed to seek any further relief to 10 which they are entitled from the courts of the State of Washington, as may be appropriate 11 in due course; and 12 5. The Clerk shall CLOSE this case. 13 Dated this 12th day of June, 2020.
14 A 15 16 JAMES L. ROBART United States District Judge 17
18 19 20 21 22