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Cooper v. Tokyo Electric Power Co., Inc.

United States District Court, S.D. California

October 28, 2014

LINDSAY R. COOPER, et al., Plaintiffs,


JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Defendant Tokyo Electric Power Company, Inc.'s ("TEPCO") 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.) Also before the Court are Plaintiffs' Response in Opposition (Plaintiff's Resp. in Opp'n, ECF No. 59.) and TEPCO's Reply in Support (Reply ISO Mot. to Dismiss, ECF No. 62.) of the Motion to Dismiss.

Additionally before the Court is Plaintiffs' Motion to Amend Second Amended Complaint to Add Doe Defendants and Doe Plaintiffs. (Mot. to File Am. Compl., ECF No. 65.) The Court also considers 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.

The Court heard oral argument on August 25, 2014, and thereafter took both matters under submission. Having carefully considered the parties' arguments and the law, the Court GRANTS IN PART and DENIES IN PART TEPCO's Motion to Dismiss and GRANTS Plaintiff's request for leave to amend.


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. (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. Plaintiffs initiated this action against TEPCO, which owns and operates the FNPP, on December 21, 2012, and subsequently filed the FAC on June 4, 2013. 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. (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.

On February 5, 2014, Plaintiffs filed the operative 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 contend that because they no longer rely on TEPCO's affirmative representations and fraud, the Court is not required to analyze any decision made by the Executive Branch of the U.S. Government, thereby avoiding the justiciability issue.

TEPCO moves to dismiss once again, arguing that Plaintiffs' revised claims do not remedy the deficiencies previously identified by the Court. (Mot. to Dismiss 1, ECF No. 55.) According to TEPCO, the new theory of liability elaborated in Plaintiffs' SAC remains inadequate because it still relies on an account of causation of injury that implicates 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 emphasizes that Plaintiffs' claims fail 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.)


TEPCO moves to dismiss Plaintiffs' SAC for lack of subject matter jurisdiction, arguing that the SAC raises nonjusticiable political questions.

1. Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction" and are "presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (internal quotations omitted).

"[D]isputes involving political questions lie outside of the Article III jurisdiction of federal courts." Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007). The political question doctrine forecloses judicial review of controversies which revolve around policy choices constitutionally committed to Congress or the Executive branch. Japan Whaling Ass'n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986). Like other doctrines of justiciability, such as standing, mootness, and ripeness, the political question doctrine is grounded in respect for the Constitution's separation of powers. See Baker v. Carr, 369 U.S. 186, 210 (1962) ("The nonjusticiability of a political question is primarily a function of the separation of powers.").

Under Baker v. Carr , a case may be dismissed on political question grounds if one of the following characteristics is present:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.


Determining whether a case involves a nonjusticiable political question requires a "discriminating inquiry into the precise facts and posture of the particular case." Id. at 217. Courts must analyze "the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action." Id. at 211-12. While many cases involving foreign relations or the military invoke the political question doctrine, "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Id. at 211. Courts must determine, in light of the Baker factors, "whether the military judgment is the kind that warrants application of the political question doctrine." McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1358 (11th Cir. 2007). The court "must analyze [a plaintiff's] claim as it would be tried, to determine whether a political question will emerge." Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1281 (11th Cir. 2009)(citing Occidental of Umm al Qaywayn, Inc. v. A. Certain Cargo of Petroleum, 577 F.2d 1196 (5th Cir. 1978)).

2. Analysis

TEPCO argues that the first, second, third, and fourth Baker issues are implicated in Plaintiffs' theory of causation and that the Court therefore lacks subject matter jurisdiction over Plaintiffs' case. (Mot. to Dismiss 16-17, ECF No. 55.)

Plaintiffs maintain that they have "redirected the focus of their claims" away from TEPCO's alleged misrepresentations and fraud and toward TEPCO's negligent acts and omissions prior to, and during, the nuclear accident at the FNPP. (Plaintiffs' Resp. in Opp'n 6, ECF No. 59.) According to Plaintiffs, because the SAC no longer rests on the theory that TEPCO's misrepresentations influenced military judgments regarding deployment of personnel and assets, the Court need not "stand in judgment over any decision made by the Executive Branch of the U.S. Government." ( Id. at 1.) Plaintiffs contend that their action as amended is now merely one for "ordinary negligence, " which can be resolved through the application of "traditional tort standards" that do not raise political questions. ( Id. at 10.) In particular, the SAC seeks to impose liability for TEPCO's "intentional and negligent oversight in construction, design, regulatory compliance, maintenance, training, emergency readiness, emergency responses, and decision making during the emergency." ( Id. at 11-12.)

TEPCO rejects this characterization of the SAC, however. Despite Plaintiffs' efforts to re-style their pleading by dropping their cause of action for fraud, TEPCO contends that Plaintiffs are nonetheless required to "plead and prove that the chain of causation [of injury] was not broken by the U.S. Navy's independent decisionmaking about where to locate the vessels and what protective measures to take." (Reply ISO Mot. to Dismiss 3, ECF No. 62.) Because the Navy's contribution to causation remains in issue, TEPCO argues that the Court cannot adjudicate Plaintiffs' negligence claims without implicating several of the Baker factors. TEPCO asserts that Plaintiffs continue to rely on concealment by TEPCO and the Japanese government.

After reevaluating the chain of causation in this case, the Court agrees with Plaintiffs that the SAC as amended no longer requires the Court to evaluate the discretionary actions of the U.S. military or communications between the Japanese and U.S. Governments.

A. Actual Causation

As alleged, TEPCO's negligence was an actual cause of Plaintiff's injuries. Plaintiffs allege 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, failed to develop a suitable evacuation plan in case of emergency, failed to make necessary repairs to the plant's cooling system, failed to carry out timely inspections of critical equipment, and ignored warnings that the FNPP was at risk of significant damage from a tsunami. ( Id. at ¶¶ 109, 114, 118-19.) These negligent acts, in conjunction with the earthquake and tsunami, led to the FNPP's ultimate failure which caused Plaintiffs and many other people within the FNPP's vicinity to fall ill.

The discretionary decision to deploy personnel and assets in support of Operation Tomodachi is also undisputedly an actual cause of Plaintiff's injuries. Accepted as true, the SAC states that Plaintiffs were brought into the vicinity of the FNPP by the U.S. Navy in response to the earthquake and tsunami in order to provide humanitarian relief.

B. Proximate Causation

TEPCO contends that the military's contribution to causation should limit its liability in this case.

In certain situations where the defendant's conduct is an actual cause of the harm, the defendant will nevertheless be absolved where there is an independent intervening act that is not reasonably foreseeable. 6 Witkin, Summary 10th (2005) Torts, Cause in Fact and Proximate Cause s. 1186, p. 553 (2012) (citing Mitchell v. Gonzales, 54 Cal.3d 1041 (1991)); See Akins v. Sonoma Cnty., 67 Cal. 2d 185, 199 (1967); Farr v. NC Mach. Co., 186 F.3d 1165, 1169 (9th Cir. 1999). However, "any harm which is in itself foreseeable, as to which the actor has created or increased the recognizable risk, is always proximate, ' no matter how it is brought about, except where there is such intentionally tortious or criminal intervention, and it is not within the scope of the risk created by the original negligent conduct." RESTATEMENT (SECOND) OF TORTS § 442B cmt.b (1965).

TEPCO thinks the Navy's independent decision to send the U.S.S. Reagan to Japan qualifies as a supervening cause of Plaintiffs' harm, thereby limiting TEPCO's liability by breaking the necessary chain of proximate causation. To determine whether the Navy's decision was a supervening cause, TEPCO argues that the Court would be required to evaluate the discretionary decisions of military commanders, which would invoke a political question and therefore deprive the Court of subject matter jurisdiction. If the Navy's decision was unforeseeable, intentionally tortious, or criminal it could qualify as a supervening cause.

TEPCO does not persuade the Court that the military's decision-making could plausibly constitute a supervening cause of injury. Aside from the military's decision to enter the area, the military had no role in the chain of causation for Plaintiff's injuries as alleged in the SAC. As discussed above, Plaintiffs sufficiently allege that TEPCO's negligence was an actual cause of Plaintiffs' injuries. It is foreseeable that as a result of an improperly designed and maintained nuclear plant, people present in the vicinity would be adversely affected by radiation. Likewise, the Navy's presence in this scenario was foreseeable. In the aftermath of a natural disaster, it is foreseeable that foreign military and aid-workers would be among those in the vicinity. As alleged, TEPCO created the very risk of harm that actually occurred.

Because the alleged harm to Plaintiffs was foreseeable and within the scope of risk created by TEPCO, the relevant issue becomes whether the Navy's conduct was intentionally tortious or criminal. At most, based on the initial evidence presented, TEPCO could allege negligence on the part of the Navy. However, the United States is not a party, Plaintiffs allege no negligence on the part of the U.S. military, and the SAC establishes the reasonableness of the military's actions. Plaintiffs contend that once the U.S.S. Reagan detected unsafe levels of radiation, the ship withdrew from the area. Further, Defendants present no facts supporting that the U.S. military's precautions were inadequate or unreasonable, let alone intentionally tortious or criminal. TEPCO only discusses that the Navy is a sophisticated entity with the independent capability of knowing the risks incident to a natural disaster. (Mot. to Dismiss 25, ECF No. 55.)

Further, the Court finds that the SAC alleviates any potential separation of powers concerns. The crux of the case is not whether the decision to deploy or the actions taken during the deployment were reasonable. Plaintiffs are not challenging the executive decision to offer aid to Japan or questioning U.S. foreign relations decisions. While deployment decisions regarding military personnel operating in a disaster zone are essentially professional military judgments, and therefore could implicate a political question, here no military judgments need be reviewed. The choices by the U.S. military only incidentally come into play as a potential affirmative defense to Plaintiffs' theory of negligence, and as discussed above, this theory is not viable. Unlike the other cases presented before the court where the circumstances were thoroughly pervaded by military judgments and decisions, here the allegedly negligent conduct is easily separated from the actions of the U.S. Navy both temporally and factually. Cf. Carmichael, 572 F.3d at 1282-83 (Suit against military contractor related to driver's negligence in an Iraqi convoy accident nonjusticiable because convoy controlled by U.S. military); Corrie, 503 F.3d at 980 (Palestine nationals suing private corporation for selling bulldozers to Israel where bulldozers approved and paid for by U.S.); Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir. 2011) (political question barred negligence claim against military contractor working in combat zone when unauthorized military personnel interfered with repair of electrical box). TEPCO is not a military contractor or otherwise under the control or direction of the United States and in resolving this case, the Court will rely on well-established tort standards. Accordingly, the Court finds that Plaintiffs' amended theory of causation does not implicate any of the Baker factors and that the military judgment in this instance is not the kind that warrants application of the political question doctrine.

Because the Court finds that TEPCO has not set forth a tenable scenario where the Navy's actions could be considered a supervening cause, the Court need not delve into the discretionary decisions of the executive branch, and jurisdiction is no longer barred by the political question doctrine.[1]


1. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted." The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require detailed factual allegations, '... it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed.R.Civ.P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. Moreover, "[f]or a complaint to be dismissed because the allegations give rise to an affirmative defense[, ] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (internal quotation marks omitted).

Where a motion to dismiss is granted, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.

2. Analysis

TEPCO moves to dismiss each of Plaintiffs' asserted causes of action for failure to state a claim for which relief could be granted. The Court ...

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