1 2
3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 ASHLEY WAHL, CASE NO. C20-0467JLR 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 Ashley Wahl’s motion to remand this case to King 17 County Superior Court. (Mot. (Dkt. # 24).) 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. Wahl’s motion to remand this case to King 2 County Superior Court.
3 II. BACKGROUND 4 A. Factual Background 5 Ms. Wahl’s father, David Wahl, worked at Boeing’s aircraft manufacturing 6 facility (the “Boeing Facility”) between 1989 and 1990. (KCSC FAC (Dkt. # 1-4) 7 (sealed) ¶ 12.) Ms. Wahl alleges that Mr. Wahl “was exposed via inhalation and/or 8 dermal contact to chemical products and substances that were utilized in the performance
9 of his duties” at the Boeing Facility. (Id. ¶ 14.) Ms. Wahl further alleges that she 10 suffered birth defects as a result of Mr. Wahl’s exposure to these chemicals. (Id. 11 ¶¶ 71-72.) Ms. Wahl further alleges that Defendant Newco, Inc. (“Newco”)2 supplied 12 Boeing with chemicals to which Mr. Wahl was exposed and which ultimately caused Ms. 13 Wahl’s injuries. (Id. ¶ 1.) Based on these allegations, Ms. Wahl brings claims for
14 //
15 1 Ms. Wahl 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. Wahl’s request for oral argument. 21
2 Newco does business as Cascade Columbia Distribution Company (“Cascade”). (See 22 Dkt.) 1 negligence and products liability against Boeing; and for negligence and breach of 2 warranty against Newco. (See id. ¶¶ 27-107.)
3 Ms. Wahl alleges that she “is an incapacitated adult who suffers from Agenesis of 4 the Corpus Callosum, vision problems, and developmental delay.” (Id. ¶ 10.) Ms. Wahl 5 contends that she is incompetent or disabled to such a degree that she cannot understand 6 the nature of these proceedings. (Id. ¶ 11.) 7 B. Procedural Background 8 This district is the third forum in the life of this case. Ms. Wahl initially filed a
9 complaint against Boeing in Cook County Circuit Court in the Illinois state court system. 10 (See Ill. Compl. (Dkt. # 1-5) (sealed).) The Cook County Circuit Court consolidated Ms. 11 Wahl’s case with three related cases (collectively, the “Illinois Case”). (See Ill. FNC 12 Order (Dkt. # 1-8) (sealed) at 1.) 13 Ms. Wahl did not name Newco as a defendant in her initial or amended complaints
14 in the Illinois Case. (See Ill. Compl. at 1; Ill. FAC (Dkt. # 1-6) (sealed) at 1; Ill. SAC 15 (Dkt. # 1-7 (sealed) at 1.) On July 1, 2019, after limited discovery on statute of 16 limitations and forum non conveniens (“FNC”) issues, Boeing filed a motion to dismiss 17 and transfer the Illinois Case on FNC grounds. (See Ill. FNC Order at 2-3.) After 18 considering the applicable private and public interest factors, the Cook County Circuit
19 Court concluded that the factors “strongly favor the transfer of [the Illinois Case] to the 20 Washington Superior Court,” granted Boeing’s motion, dismissed the Illinois Case, and 21 held: 22 // 1 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 2 from the relevant court in which each case is re-filed; and (b) waive any argument based on a statute of limitations defense. 3 (Id. at 28-29.) 4 Ms. Wahl filed a complaint in King County Superior Court on February 24, 2020, 5 naming both Boeing and Newco as defendants. (See KCSC Compl. (Dkt. # 1-3) (sealed) 6 at 2.) Ms. Wahl’s Washington complaint alleges that Newco is a Washington corporation 7 with its principal place of business in Seattle, Washington. (Id. ¶ 4.) Ms. Wahl amended 8 her complaint on March 26, 2020. (See KCSC FAC at 26.) Boeing then removed to this 9 district on March 27, 2020. (See Not. of Removal (Dkt. # 1) at 10.) In its notice of 10 removal, Boeing contends that this court has diversity jurisdiction pursuant to 28 U.S.C. 11 § 1332(a)(1) because Newco—the only non-diverse defendant—is fraudulently joined. 12 (See id. at 4-8.) 13 Ms. Wahl filed her motion to remand this case to King County Superior Court on 14 April 27, 2020. (See Mot. at 21.) The court now considers Ms. Wahl’s motion. 15 III. ANALYSIS 16 In support of her motion to remand, Ms. Wahl contends that (1) Boeing 17 is judicially estopped from removing this case (see id. at 6-7); and (2) even if Boeing is 18 not estopped, this court lacks diversity jurisdiction because Ms. Wahl and Newco are 19 both Washington citizens, and Newco is not fraudulently joined (see id. at 7-20). In 20 response, Boeing argues that (1) Boeing is not judicially estopped from removing this 21 case (see Resp. at 8-9); and (2) Newco is fraudulently joined because (a) Ms. Wahl’s 22 1 claims against Newco are time-barred (see id. at 10-16); and (b) Ms. Wahl does not plead 2 any actionable claims against Newco (see id. at 16-20). The court sets forth the
3 applicable legal standards before analyzing Ms. Wahl’s motion. 4 A. Legal Standards 5 1. Removal and Remand 6 Removal of a civil action to federal district court is proper where the federal court 7 would have original jurisdiction over the state court action. See 28 U.S.C. § 1441(a). “If 8 it appears that the federal court lacks jurisdiction, however, ‘the case shall be
9 remanded.’” Martin v. Franklin Capital Corp., 546 U.S. 132, 143 (2005) (quoting 28 10 U.S.C. § 1447(c)). District courts have original jurisdiction over an action with both 11 complete diversity of citizenship among the parties and an amount in controversy 12 exceeding $75,000.00. See 28 U.S.C. § 1332(a); see also Abrego Abrego v. Dow Chem. 13 Co., 443 F.3d 676, 679 (9th Cir. 2006). Federal courts strictly construe the removal
14 statute and must reject jurisdiction if there is any doubt as to the right of removal in the 15 first instance. See Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 16 (9th Cir. 2014); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Thus, the 17 defendant has the burden of establishing that removal is proper. See Kroske v. U.S. Bank 18 Corp., 432 F.3d 976, 980 (9th Cir. 2005). Although Boeing has the burden of
19 establishing the grounds for federal jurisdiction, the court is also obliged to satisfy itself 20 that it has subject matter jurisdiction. See Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th 21 Cir. 2002) (citing Fed. R. Civ. P. 12(h)(3)). 22 // 1 2. Fraudulent Joinder 2 Fraudulent joinder is an exception to the requirement of complete diversity. See
3 Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “Joinder of a 4 non-diverse defendant is deemed fraudulent, and the defendant’s presence in the lawsuit 5 is ignored for purposes of determining diversity, ‘[i]f the plaintiff fails to state a cause of 6 action against a resident defendant, and the failure is obvious according to the settled 7 rules of the state.’” Id. (quoting McCabe v. General Foods Corp., 811 F.2d 1336, 1339 8 (9th Cir. 1987)) (internal alteration in McCabe). There is a general presumption against
9 finding fraudulent joinder, and defendants bear a “heavy burden” to establish it. 10 Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 548-49 (9th Cir. 2018). 11 Fraudulent joinder must be proved by clear and convincing evidence. See Hamilton 12 Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 13 A defendant may establish fraudulent joinder in one of two ways: “(1) actual
14 fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a 15 cause of action against the non-diverse party in state court.” Grancare, LLC, 889 F.3d at 16 548-49 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009)). A 17 defendant succeeds in the second method if the defendant “shows that an ‘individual[] 18 joined in the action cannot be liable on any theory.’” Id. (quoting Ritchey v. Upjohn
19 Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). However, “if there is a possibility that a 20 state court would find that the complaint states a cause of action against any of the 21 resident defendants, the federal court must find that the joinder was proper and remand 22 the case to the state court.” Id. (quoting Hunter, 582 F.3d at 1046)). 1 The tests for fraudulent joinder and for failure to state a claim under Rule 12(b)(6) 2 are not equivalent. Id. at 549. “A claim against a defendant may fail under Rule
3 12(b)(6), but that defendant has not necessarily been fraudulently joined.” Id. Indeed, 4 the fraudulent joinder standard “is similar to the ‘wholly insubstantial and frivolous’ 5 standard for dismissing claims under Rule 12(b)(1) for lack of federal question 6 jurisdiction.” Id. (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946)). The stringent 7 standard for fraudulent joinder comports with the presumption against removal 8 jurisdiction, under which federal courts “strictly construe the removal statute,” and reject
9 federal jurisdiction “if there is any doubt as to the right of removal in the first instance.” 10 Id. at 550 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)). 11 3. Judicial Estoppel 12 Judicial estoppel is an “equitable doctrine invoked by a court at its discretion.” 13 New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893 F.2d
14 1033, 1037 (9th Cir. 1990)) (internal quotation marks omitted). Courts invoke judicial 15 estoppel “to prevent a party from gaining an advantage by taking inconsistent positions” 16 and to “protect against a litigant playing fast and loose with the courts.” Hamilton v. 17 State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (quoting Russell, 893 18 F.2d at 1037) (internal quotations omitted). The Ninth Circuit “restrict[s] the application
19 of judicial estoppel to cases where the court relie[s] on, or ‘accept[s],’ the party’s 20 previous inconsistent position.” See Hamilton, 270 F.3d at 783; see also Interstate Fire 21 & Cas. Co. v. Underwriters at Lloyd’s, London, 139 F.3d 1234, 1239 (9th Cir. 1998), as 22 amended (May 13, 1998) (“A majority of courts apply judicial estoppel only if the court 1 has relied on the party’s previously inconsistent statement, and we have recently adopted 2 that rule.”).
3 The court considers three non-exclusive factors in determining whether to apply 4 the doctrine: (1) whether the party’s later position is “clearly inconsistent” with its earlier 5 position; (2) whether the party succeeded in persuading a court to accept the earlier 6 position and the court’s acceptance of the later position would lead to the perception that 7 the party misled either court; and (3) whether “the party seeking to assert an inconsistent 8 position would derive an unfair advantage or impose an unfair detriment on the opposing
9 party if not estopped.” See New Hampshire, 532 U.S. at 750-51 (citations omitted). 10 B. Ms. Wahl’s Motion to Remand 11 The court first addresses Ms. Wahl’s argument that Boeing is estopped from 12 removing this case before turning to Boeing’s argument that jurisdiction is proper 13 because Newco is fraudulently joined.
14 1. Judicial Estoppel – Removal 15 Ms. Wahl argues that Boeing is judicially estopped from removing this case in the 16 first instance—regardless of the court’s subject matter jurisdiction—on account of certain 17 positions Boeing took in the Illinois Case. (See Mot. at 6-7.) Specifically, Ms. Wahl 18 contends that Boeing secured a FNC-based dismissal in the Illinois circuit courts by
19 specifically relying on the comparison between the Illinois circuit courts and the 20 Washington superior courts. (See id. at 6 (“In moving for a forum non conveniens 21 dismissal in Illinois, Boeing quite clearly intended the state court there to believe that the 22 proposed alternative forum was Washington superior court.”).) Ms. Wahl argues that 1 Boeing invited the Cook County Circuit Court to compare court congestion between 2 Illinois and Washington state courts, and that the Cook County Circuit Court’s dismissal
3 of the Illinois Case was based in part on that comparison. (See id. at 6-7.) Ms. Wahl 4 further contends that the Cook County Circuit Court would not have ordered FNC-based 5 dismissal had it compared congestion in Illinois state courts to the United States District 6 Court for the Western District of Washington, in which “[f]ive of the district’s seven 7 authorized judgeships are vacant, and every vacancy is a judicial emergency.” (Id. at 6.) 8 Ms. Wahl contends that Boeing made “affirmative use of the processes of a state court”
9 to obtain a tactical advantage and should not now be allowed to “change its position, once 10 it is safely out of the original forum.” (Id. at 7.) 11 Boeing relies primarily on Kidwell v. Maybach International Group, No. 12 2:19-cv-149, 2020 WL 897609 (E.D. Ky. Feb. 24, 2020), to counter Ms. Wahl’s judicial 13 estoppel argument. (See Resp. at 8.) In Kidwell, the plaintiff moved to remand a
14 removed case to state court on the ground that the defendants “made explicit 15 representations to the Illinois court that they planned to litigate the suit in the state courts 16 of Kentucky,” “base[d] . . . mostly on [the defendants] noting that Boone County Courts 17 heard fewer cases and had a faster resolution time.” Kidwell, 2020 WL 897609 at *1. 18 The Eastern District of Kentucky held that although the defendants had referenced the
19 Boone County, Kentucky docket, “they never clearly and unequivocally stated that they 20 intended to waive their right to remove or litigate the case to a resolution in Kentucky 21 state courts.” Id. Boeing contends that Kidwell directly applies to this case because like 22 the defendants in Kidwell, Boeing “made no representations at all about its legal strategy 1 in the event Ms. Wahl refiled in Washington.” (Resp. at 8.) Boeing further counters Ms. 2 Wahl’s argument that Boeing made affirmative use of the processes of a state court by
3 arguing that (1) contrary to submitting to the Cook County Circuit Court’s jurisdiction, 4 Boeing’s “use” of the Illinois state court system was not a submission to that court’s 5 jurisdiction, but rather an attempt to obtain dismissal of the case from that jurisdiction; 6 and (2) Boeing did not make affirmative use of the King County Superior Court because 7 it removed this case within 30 days of service, before answering or otherwise responding 8 to the complaint. (See id. at 9.) Finally, Boeing contends that the Cook County Circuit
9 Court found the issue of court congestion to be “neutral,” indicating that it was not a 10 major factor in the Cook County Circuit Court’s FNC-based dismissal. (See id.) 11 In reply, Ms. Wahl faults Boeing’s reliance on Kidwell, contending that Kidwell 12 addressed the issue of waiver, not judicial estoppel. (See Reply (Dkt. # 30) at 1-3.) Ms. 13 Wahl further contends that Boeing did make affirmative use of the Illinois state court
14 system because: 15 during the 21 months before it was dismissed, Boeing successfully moved to dismiss [Ms. Wahl’s] negligence claim for failure to adequately plead 16 causation (although the court allowed plaintiff to replead), obtained discovery on statute of limitations issues, and filed two separate motions to 17 dismiss on statute of limitations grounds, though both were denied without prejudice. 18 (Id. at 3.) Finally, Ms. Wahl contends that the Cook County Circuit Court relied heavily 19 on Boeing’s argument that the case should be transferred not just to Washington but to a 20 specific forum—Washington superior courts—in granting FNC-based dismissal. (See id. 21 at 4-6 (noting that the Cook County Circuit Court’s order mentions “Washington 22 1 Superior Court” 11 times).) In sum, Ms. Wahl argues that having relied on comparing 2 the Illinois state courts to the Washington state courts, and the Cook County Circuit
3 Court having applied the FNC analysis based on that direct comparison, Boeing should 4 be judicially estopped from now removing from the Washington state courts to federal 5 court. (See id. at 4-6.) 6 Having set forth the parties’ positions, the court analyzes whether Boeing is 7 estopped from removing this case to federal court by applying the three judicial estoppel 8 factors: (1) whether the party’s later position is “clearly inconsistent” with its earlier
9 position; (2) whether the party succeeded in persuading a court to accept the earlier 10 position and the court’s acceptance of the later position would lead to the perception that 11 the party misled either court; and (3) whether “the party seeking to assert an inconsistent 12 position would derive an unfair advantage or impose an unfair detriment on the opposing 13 party if not estopped.” See New Hampshire, 532 U.S. at 750-51 (citations omitted).
14 a. Whether Boeing’s Later Position is “Clearly Inconsistent” with its Earlier Position 15 The first factor weighs against invoking judicial estoppel. Courts generally 16 require that for a position to be “clearly inconsistent,” the party must have actually taken 17 a particular position in the first place. Nowhere in the Illinois state court documents filed 18 with this court does Boeing represent that it will not remove a later-filed case to federal 19 court. Although Boeing cited statistics regarding docket congestion in Washington 20 Superior Courts, it never agreed that it would not remove if Ms. Wahl re-filed in 21 // 22 1 Washington state court. Therefore, Boeing’s current position—that it may remove this 2 case—is not “clearly inconsistent” with a previous position it took.
3 Ms. Wahl is correct that a party may invoke judicial estoppel to secure a remand in 4 a removed case in some instances. However, the authority Ms. Wahl relies on for that 5 position here undermines her argument. For example, in Iglesias v. Welch Foods Inc., 6 No. 17-CV-00219-TEH, 2017 WL 1227393, at *2 (N.D. Cal. Apr. 4, 2017), the 7 defendants previously took the position that the plaintiffs lacked Article III standing. 8 Defendants then removed the case to federal court, despite acknowledging that the
9 plaintiffs must have Article III standing to remove a case to federal court. Id. In contrast 10 to the defendants in Iglesias, here Boeing took no position on removal or this court’s 11 jurisdiction in the Illinois Case. 12 b. Whether the Court’s Acceptance of Boeing’s Later Position Would Lead to the Perception that the Party Misled Either Court 13 The second factor also weighs against invoking judicial estoppel. Boeing 14 argued the issue of court congestion to the Cook County Circuit Court, which at least 15 implied that FNC-based dismissal was warranted because Washington state courts are 16 less congested than Illinois state courts. (See Ill. FNC Order at 26-28.) Boeing’s position 17 at least implies that Boeing intended to defend the case in the Washington state court 18 system, not in the heavily congested Western District of Washington. However, Ms. 19 Wahl overstates the importance of this argument to the Cook County Circuit Court’s 20 decision to dismiss the Illinois Case. The Cook County Circuit Court ultimately found 21 that the congestion factor was “neutral.” (See id. at 28.) The Cook County Circuit Court 22 1 based its ruling on the other public and private interest factors. (See id. at 10-28.) 2 Several of those factors depend solely on geographic location, making it immaterial
3 whether the case is ultimately litigated in Washington state court or Washington federal 4 court. (See, e.g., id. at 12 (analyzing the “convenience of the parties” factor and 5 concluding that “each plaintiff lives either in King or Snohomish Counties, Washington; 6 none has ever lived in Illinois”; and holding that it is “obvious” that it is inconvenient for 7 the case to proceed in Chicago); id. at 15-18 (holding that the “relative ease of access to 8 evidence factor . . . strongly favors Washington”).) Therefore, the Cook County Circuit
9 Court’s FNC-based dismissal order strongly suggests that it was not misled by Boeing’s 10 congestion-based arguments; or if it was, it had no effect on the court’s decision to 11 dismiss the Illinois Case. 12 c. Whether Boeing Would Derive an Unfair Advantage or Impose an Unfair Detriment if Not Estopped 13 The third judicial estoppel factor asks whether the party asserting an inconsistent 14 position would receive an “unfair advantage or impose an unfair detriment on the 15 opposing party if not estopped.” See New Hampshire, 532 U.S. at 751 (citations 16 omitted). Ms. Wahl does not explain how Boeing would derive an unfair advantage by 17 removing this case. (See generally Mot.) At most, Ms. Wahl states in conclusory fashion 18 that Boeing “obtained a significant tactical advantage” by litigating this case in 19 Washington instead of in Illinois. (See id. at 7.) However, Ms. Wahl does not contend 20 that she will lose any substantive rights to pursue her claims if this case proceeds in 21 federal rather than state court, fails to explain the “significant tactical advantage” Boeing 22 1 will gain by litigating in federal court, and fails to explain how any such advantage would 2 be “unfair.” (See generally id.) Accordingly, the court concludes that this factor weighs
3 against invoking judicial estoppel. 4 d. Judicial Estoppel Conclusion 5 In sum, the three judicial estoppel factors weigh against invoking judicial estoppel. 6 Therefore, the court declines to exercise its discretion to invoke judicial estoppel to 7 preclude Boeing from removing this case. See New Hampshire, 532 U.S. at 750. 8 2. Fraudulent Joinder
9 Although Ms. Wahl is the moving party on her motion to remand, Boeing is the 10 party seeking to invoke the court’s subject matter jurisdiction. (See Not. of Removal at 2, 11 4-9.) Therefore, Boeing bears the burden to establish that Newco is fraudulently joined. 12 See Kroske, 432 F.3d at 980; Grancare, LLC, 889 F.3d at 548-49. Boeing makes two 13 primary arguments in favor of a fraudulent joinder finding: (1) That Ms. Wahl has no
14 viable claim against Newco because the statute of limitations bars any such claim (see 15 Resp. at 10-16); and (2) That Ms. Wahl does not plead an actionable claim against 16 Newco because Ms. Wahl’s complaint “does not even attempt to specifically identify 17 which workplace chemicals” Mr. Wahl “might have encountered,” does not plead that 18 Newco supplied any particular chemical among the broad categories identified, and does
19 not plead that Newco supplied the chemical and that it was the cause of her injuries (id. at 20 18). 21 A defendant may establish fraudulent joinder in one of two ways: “(1) [A]ctual 22 fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a 1 cause of action against the non-diverse party in state court.” Grancare, LLC, 889 F.3d at 2 548-49 (quoting Hunter, 582 F.3d at 1044). Boeing seeks to establish fraudulent joinder
3 in the second way, meaning Boeing must show that Newco “cannot be liable on any 4 theory.” Id. (quoting Ritchey, 139 F.3d at 1318). However, “if there is a possibility that a 5 state court would find that the complaint states a cause of action” against Newco, this 6 court “must find that the joinder was proper and remand the case to the state court.” Id. 7 (quoting Hunter, 582 F.3d at 1046). It is not sufficient for Boeing to establish that Ms. 8 Wahl fails to state a claim against Newco as understood under Rule 12(b)(6), but rather
9 that Ms. Wahl’s claim against Newco “is wholly insubstantial and frivolous.” Id. (citing 10 Bell, 327 U.S. at 682-83). 11 a. Statute of Limitations 12 The parties do not dispute that the Washington Product Liability Act (“WPLA”) 13 provides the statute of limitations that applies to Ms. Wahl’s claims against Newco. (See
14 Resp. at 10-11; see generally Mot.; Reply); see also RCW 7.72.060(3) (providing that, 15 subject to certain tolling provisions, “no claim under this chapter may be brought more 16 than three years from the time the claimant discovered or in the exercise of due diligence 17 should have discovered the harm and its cause”).3 With respect to minors, the three-year 18
19 3 Ms. Wahl’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 20 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 injury claims); RCW 4.16.080(3) (providing a three-year statute of limitations for claims based 21 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 22 provide a maximum four-year limitations period, the court’s statute of limitations analysis as it 1 statute of limitations is “tolled until the victim reaches the age of majority, 18 years.” St. 2 Michelle v. Robinson, 759 P.2d 467, 468 (Wash. Ct. App. 1988) (citing RCW
3 4.16.190(1)). Ms. Wahl was born in 1990. (KCSC FAC ¶ 8.) She therefore turned 18 4 years old in 2008. Boeing argues that the statute of limitations ran in 2011, several years 5 before Ms. Wahl filed her complaint in the King County Case. (See Resp. at 11; KCSC 6 Compl. at 25.) Ms. Wahl contends (1) that Boeing waived its statute of limitations 7 argument; and (2) that the statute of limitations is tolled because Ms. Ms. Wahl is 8 incompetent under RCW 4.16.190.
9 i. Whether Boeing Waived its Statute of Limitations Argument 10 In dismissing the Illinois Case on FNC grounds, the Cook County Superior Court 11 held: 12 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 13 from the relevant court in which each case is re-filed; and (b) waive any argument based on a statute of limitations defense. 14 (Ill. FNC Order at 28-29.) “Rule 187” refers to Illinois Supreme Court Rule 15 187(c)(2)(ii), which in turn provides that “[d]ismissal of an action under the doctrine of 16 forum non conveniens shall be upon the following conditions . . . (ii) if the statute of 17 limitations has run in the other forum, the defendant shall waive that defense.” 18 Ms. Wahl argues that the Cook County Superior Court ruling quoted above 19 precludes Boeing from arguing that the WPLA’s statute of limitations has run with 20 // 21
applies to Boeing’s fraudulent joinder arguments would not change by considering these 22 additional provisions. Therefore, the court declines to consider them. 1 respect to Ms. Wahl’s claims against Newco. (See Mot. at 8.) Boeing, in turn, relies on 2 the language of Rule 187 that states “the defendant shall waive that defense” to mean that
3 Boeing waived only its own statute of limitations defense against Ms. Wahl’s claims, not 4 limitations-based arguments for fraudulent joinder based on Ms. Wahl’s claims against 5 Newco—which was not a defendant in the Illinois Case. (See Resp. at 11-13.) 6 The parties’ dispute presents an interesting question. Rule 187’s language favors 7 Boeing. That rule speaks of waiving a statute of limitations defense, not a statute of 8 limitations argument to support an argument for fraudulent joinder. However, although
9 the Illinois Case FNC-based dismissal order cites Rule 187, the order’s language is 10 broader than that of the rule. The order states that Boeing shall waive any argument 11 based on a statute of limitations defense. (Ill. FNC Order at 28-29 (emphasis added).) 12 Because Boeing makes an argument (that Newco is fraudulently joined) based on a 13 statute of limitations defense—albeit Newco’s—the plain language of the order precludes
14 Boeing’s argument. Although the language of the order and Rule 187 are in tension, this 15 court resolves that tension in favor of the plain language of the order. 16 ii. Whether Ms. Wahl is Judicially Estopped from Pleading Incompetency 17 Even if the court considered Boeing’s statute of limitations arguments, the court 18 would decline to invoke judicial estoppel to preclude Ms. Wahl from pleading
19 incompetency. Boeing argues that Ms. Wahl waived her right to argue, or is judicially 20 estopped from arguing, that her incompetency tolls the statute of limitations as to her 21 claims against Newco. (See Resp. at 13-16.) Boeing contends that (1) Ms. Wahl “did not 22 plead or otherwise raise incompetency or disability” in the Illinois Case, “even though it 1 could have served as a basis for tolling the applicable statute of limitations” (see id. at 2 15); (2) Ms. Wahl’s assertion of the discovery rule in the Illinois Case is “clearly
3 inconsistent” with her claim of incompetency (see id. at 16); and (3) Ms. Wahl seeks an 4 unfair advantage by litigating her case for almost two years, then raising incompetency 5 only when it may allow her to remain in her preferred forum, King County Superior 6 Court (see id.). 7 Boeing’s judicial estoppel argument fails. The standard for incompetency is 8 statutorily defined in the Revised Code of Washington:
9 For purposes of this chapter, a person may be incapacitated as to person when the superior court determines the individual has a significant risk of personal 10 harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety. 11 RCW 11.88.010(1)(a). Boeing cites no authority under which invoking the discovery 12 rule against one party precludes invoking incompetency later against another party in a 13 separate action. (See generally Resp.) Further, Boeing makes no argument that Ms. 14 Wahl does not meet the statutory definition for incapacitation and provides no authority 15 that invoking incompetency is inconsistent with invoking the discovery rule. (See 16 generally id.) Indeed, the two do not appear wholly inconsistent: It may be possible for 17 a party to discover facts that should put them on notice of the claims against a particular 18 party, but still be unable to “understand the nature of the proceedings” and pose “a 19 significant risk of personal harm based upon a demonstrated inability to adequately 20 provide for nutrition, health, housing, or physical safety.” See RCW 4.16.190(1); RCW 21 11.88.010(1)(a). 22 1 Therefore, the first judicial estoppel factor—whether Ms. Wahl’s later position is 2 “clearly inconsistent” with her earlier position—weighs against invoking judicial
3 estoppel here. See New Hampshire, 532 U.S. at 750-51 (citations omitted). For similar 4 reasons, the second factor—whether the party succeeded in persuading a court to accept 5 the earlier position and the court’s acceptance of the later position would lead to the 6 perception that the party misled either court—also weighs against invoking judicial 7 estoppel, because Boeing concedes that Ms. Wahl did not raise incompetency in the 8 Illinois Case, where Newco was not a defendant. (See Resp. at 15.) Given that the first
9 and second factors weigh strongly against invoking judicial estoppel, the court concludes 10 that it is unnecessary to consider the third judicial estoppel factor and declines to invoke 11 judicial estoppel here. 12 iii. Whether the Statute of Limitations Prevents Ms. Wahl from Stating a Viable Claim Against Newco 13 As stated above, Boeing waived its right to raise any statute of limitations-based 14 arguments. However, even if the court considered Boeing’s statute of limitations-based 15 arguments for the purpose of fraudulent joinder, they would fail. The standard for 16 establishing fraudulent joinder is more stringent than the standard for prevailing on a 17 Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be 18 granted. Grancare, LLC, 889 F.3d at 549. Yet even under the more Boeing-friendly 19 Rule 12(b)(6) standard, “the applicability of equitable tolling depends on matters outside 20 the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss . . . if 21 equitable tolling is at issue.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003–04 22 1 (9th Cir. 2006) (footnote added). In such cases, the court may only grant the defendant’s 2 motion “if the assertions of the complaint, read with the required liberality, would not
3 permit the plaintiff to prove that the statute was tolled.” Conerly v. Westinghouse Elec. 4 Corp., 623 F.2d 117, 119 (9th Cir. 1980) (quoting Jablon v. Dean Witter & Co., 614 F.2d 5 677, 682 (9th Cir. 1980); see also Anderson v. Teck Metals, Ltd., No. CV-13-420-LRS, 6 2015 WL 59100, at *2 (E.D. Wash. Jan. 5, 2015) (“A Rule 12(b)(6) challenge ‘which 7 tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative 8 defense, such as the defense that the plaintiff’s claim is timebarred,’ except for the
9 ‘relatively rare circumstances where facts sufficient to rule on an affirmative defense are 10 alleged in the complaint.’”) (quoting Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th 11 Cir. 2007)). Thus, the court cannot dismiss the complaint unless “[t]he facts necessary to 12 determine the applicability of the discovery rule . . . clearly appear on the face of the 13 complaint.” See Anderson, 2015 WL 59100 at *2.
14 Boeing’s argument that the running of the statute of limitations for Ms. Wahl’s 15 claims against Newco requires a finding of fraudulent joinder does not succeed under the 16 stringent fraudulent joinder standard. Ms. Wahl’s operative complaint alleges that Ms. 17 Wahl is “an incapacitated adult who suffers from Agenesis of the Corpus Callosum, 18 vision problems, and developmental delay” and that “[d]ue to her disability, her parents
19 care for her and manage her daily life including her finances, nutrition, health, hygiene 20 and housing.” (See KCSC FAC ¶ 10.) The complaint further alleges that “pursuant to 21 RCW 4.16.190 the applicable [s]tatute of [l]imitations in this action is tolled because 22 [Ms. Wahl] is ‘incompetent or disabled to such a degree that she cannot understand the 1 nature of the proceedings.’” (See id. ¶ 11.) Under RCW 4.16.190, for a person who is 2 “incompetent or disabled to such a degree that he or she cannot understand the nature of
3 the proceedings, such incompetency or disability as determined according to []chapter 4 11.88 RCW . . . the time of such disability shall not be a part of the time limited for the 5 commencement of action.” RCW 4.16.190(1). 6 The effect of Ms. Wahl pleading incompetency is that it is at least “possible” that 7 she could prove that the statute of limitations was tolled as to her claims against Newco. 8 See Conerly, 623 F.2d at 119. Therefore, the running of the statute of limitations does
9 not “clearly appear on the face of the complaint.” See Anderson, 2015 WL 59100 at *2. 10 Further, Ms. Wahl’s positions in the Illinois case upon which Boeing relies to attack the 11 merits of Ms. Wahl’s incompetency assertion are matters outside the four corners of the 12 complaint. See Conerly, 623 F.2d at 119 (holding that the court may only dismiss an 13 action for failure to state a claim on statute of limitations grounds “if the assertions of the
14 complaint, read with the required liberality, would not permit the plaintiff to prove that 15 the statute was tolled”). 16 Even if the court considered Ms. Wahl’s positions in the Illinois Case, the 17 incompetency determination Boeing asks this court to make is a merits decision into 18 which the court declines to wade. See, e.g., id. As discussed above, it is far from clear
19 that asserting the discovery rule against a defendant in one case is inconsistent with 20 asserting incompetency against a separate defendant in another case, and Boeing presents 21 no authority to that effect. See supra § III.B.2.a.ii; (see also generally Resp.) It is 22 sufficient for now that Ms. Wahl’s incompetency argument is not “wholly insubstantial 1 and frivolous” and that there is at least a possibility that a Washington state court “would 2 find that the complaint states a cause of action” against Newco. See Grancare, LLC, 889
3 F.3d at 548-49. Therefore, unless Boeing’s final argument regarding the viability of Ms. 4 Wahl’s claims against Newco succeeds, the court “must find that the joinder was proper 5 and remand the case to the state court.” Id. (quoting Hunter, 582 F.3d at 1046). 6 b. Identification of Specific Chemicals and Newco’s Role in the Complaint 7 Separate and apart from Boeing’s fraudulent joinder arguments based on the 8 statute of limitations, Boeing contends that Newco is fraudulently joined for the
9 independent reason that Ms. Wahl fails to plead any actionable claims against Newco. 10 (See Resp. at 16-20.) Boeing identifies two purported deficiencies with Ms. Wahl’s 11 claims against Newco: (1) that Ms. Wahl fails to “specifically identify which workplace 12 chemicals” Mr. Wahl “might have encountered” (see id. at 18); and (2) Ms. Wahl’s 13 complaint does not plead that Newco supplied any particular chemical among the broad
14 categories identified, let alone that Newco supplied the chemical and it was the cause of 15 her injuries (see id.). 16 The court evaluates Boeing’s challenges to the sufficiency of Ms. Wahl’s claims 17 against Newco under Washington State—not federal—pleading standards. See 18 Grancare, LLC, 889 F.3d at 548-49 (“[I]f there is a possibility that a state court would
19 find that the complaint states a cause of action against any of the resident defendants, the 20 federal court must find that the joinder was proper and remand the case to the state 21 court.”) (quoting Hunter, 582 F.3d at 1046). Washington’s pleading standards are more 22 relaxed than those set forth in the Federal Rules of Civil Procedure. See Pac. Nw. 1 Shooting Park Ass’n v. City of Sequim, 144 P.3d 276, 281 (Wash. 2006) (“Washington is 2 a notice pleading state and merely requires a simple, concise statement of the claim and
3 the relief sought.”) (citing Wash. Super. Ct. Civ. R. 8). 4 The court concludes that it is possible that a Washington state court would find 5 that Ms. Wahl states a viable claim against Newco. See Grancare, LLC, 889 F.3d at 6 548-49. The court finds unpersuasive Boeing’s assertion that Ms. Wahl’s complaint 7 “does not even attempt to specifically identify which workplace chemicals Mr. Wahl 8 might have encountered” (Resp. at 18) and “does not allege that [Newco] supplied the
9 ‘relevant product’” that caused her injuries (id. (quoting RCW 7.72.010(3))). Ms. Wahl’s 10 complaint specifically alleges that Mr. Wahl was exposed to six categories of chemicals 11 and lists the names of numerous chemicals within those six categories: 12 a. Paints, primers, corrosion inhibitors and the constituents contained therein, including: ethylene glycol ether, ethylene glycol ether acetate, 13 chromate a/k/a hexavalent chromium, propylene glycol ether,10-11 Green Primer, LPS3 Corrosion Inhibitor, AV8 Corrosion Inhibitor; 14 b. Paint strippers and the constituents contained therein, including: methylene chloride and phenol; 15 c. Sealants and the constituents therein, including: lead-based sealants, Sealant 5-95, Sealant 5-45, and Sealant 5-26; 16 d. Lubricants and the constituents contained therein, including: Freon, LPS, Boelube, and cetyl alcohol; 17 e. Solvents and the constituents contained therein, including: trichloroethylene (TCE), ethylene glycol ethers, methylene chloride, 1-1- 18 1 trichloroethane, Freon, methyl ethyl ketone (MEK), methyl propyl ketone (MPK), phenol, naphtha, benzene, toluene, acetone, xylene, and 19 mineral spirits; and f. Other products and the constituents contained therein, including: 20 Isopropyl alcohol (IPA), Dienol, Corban 35, 1000 Body Joint. 21 (See KCSC FAC ¶¶ 15(a)-(f).) The complaint further alleges that Newco “supplied, 22 transported, formulated, re-formulated, mixed, sold and/or distributed some of the 1 aforementioned chemical and metal products and substances to [Boeing] and its 2 employees” and that Boeing “provided all of the aforementioned chemical products and
3 substances to David Wahl for use at the Boeing Facility.” (Id. ¶¶ 17-18.) 4 These allegations are more than sufficient to meet Washington State’s more 5 relaxed notice pleading standard. Ms. Wahl’s complaint places Newco on notice of the 6 factual allegations against it—that it supplied chemicals to Boeing that injured Ms. Wahl 7 in utero. (Id. ¶¶ 17-18.) Further, it places Newco on notice of the legal theories against 8 it—negligence and breach of warranty. (Id. ¶¶ 98-107.) Further, if there was any doubt
9 whether Ms. Wahl’s complaint meets Washington Superior Court Civil Rule 8(a)’s 10 pleading standard, that doubt would be resolved in favor of remand. See Hawaii ex rel. 11 Louie, 761 F.3d at 1034; Gaus, 980 F.2d at 566. Accordingly, Boeing does not meet its 12 “heavy burden” to establish fraudulent joinder by clear and convincing evidence. See 13 Grancare, LLC, 889 F.3d at 548-49.
14 For the reasons stated above, the court concludes that there is not complete 15 diversity because both Ms. Wahl and Newco are Washington citizens, and Newco is not 16 fraudulently joined. Therefore, this court lacks diversity jurisdiction under 28 U.S.C. 17 § 1332(a). Accordingly, the court GRANTS Ms. Wahl’s motion to remand this case to 18 King County Superior Court.
19 IV. CONCLUSION 20 For the reasons set forth above, the court GRANTS Ms. Wahl’s motion to remand 21 this case to King County Superior Court (Dkt. # 24). The court ORDERS that: 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