Cooper et al v. Gieseking et al

Filing 166

ORDER: (1) Granting GE's Motion to Dismiss; and (2) Granting TEPCO's Motion to Dismiss. (ECF Nos. 152 , 153 ). Signed by Judge Janis L. Sammartino on 3/04/2019. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LINDSAY R. COOPER; et al.,

Case No.: 12cv3032-JLS (JLB)
Plaintiffs,

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ORDER: (1) GRANTING GE’S
MOTION TO DISMISS; AND
(2) GRANTING TEPCO’S MOTION
TO DISMISS

v.
TOKYO ELECTRIC POWER
COMPANY, INC.; et al.,

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(ECF Nos. 152, 153)

Defendants.

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Presently before the Court is Defendant Tokyo Electric Power Company, Inc.’s

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(“TEPCO”) Motion to Dismiss, (“TEPCO MTD,” ECF No. 153), and Defendant General

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Electric’s (“GE”) Motion to Dismiss, (“GE MTD,” ECF No. 152). Plaintiffs have filed a

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Response in Opposition to TEPCO’s Motion, (“Opp’n to TEPCO MTD,” ECF No. 155),

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and to GE’s Motion, (“Opp’n to GE MTD,” ECF No. 154). TEPCO filed a Reply,

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(“TEPCO Reply,” ECF No. 157), as did GE, (“GE Reply,” ECF No. 156). Having

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reviewed the parties’ arguments and the law, the Court rules as follows.

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BACKGROUND
On March 11, 2011, an earthquake struck Japan, giving rise to tsunami waves that

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struck Japan’s Fukushima-Daiichi Nuclear Power Plant (“FNPP”).

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Complaint (“TAC”) ¶¶ 112, 113, 119, 127, ECF No. 71. The plant’s radioactive core

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melted down causing severe damage to the plant and releasing radiation as a result. Id.

Third Amended

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¶ 182. Plaintiffs are members of the U.S. Navy crews of the U.S.S. RONALD REAGAN,

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crews of other vessels participating in the Reagan Strike Force, land-based service

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personnel, and/or their dependents. Id. ¶ 2. Plaintiffs were deployed to Japan as part of a

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mission known as “Operation Tomodachi.” Id. Plaintiffs allege that the FNPP released

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radioisotopes and exposed them to injurious levels of ionizing radiation during the mission.

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Id. The release of radiation and subsequent injuries resulted from “negligently designed

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and maintained” Boiling Water Reactors at the FNPP. Id. ¶ 83.

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Plaintiffs initiated this action against TEPCO, the owner and operator of the FNPP,

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on December 21, 2012. TEPCO moved to dismiss. The Court granted TEPCO’s motion

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without prejudice. ECF No 46. Plaintiffs filed a Second Amended Complaint (“SAC”),

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which TEPCO moved to dismiss, and the Court granted in part and denied in part this

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motion, again permitting Plaintiffs to file an amended complaint. ECF No. 69. Plaintiffs

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filed their Third Amended Complaint (“TAC”), naming GE as an additional defendant,

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along with three other manufacturer defendants EBASCO, Toshiba, and Hitachi.1 ECF

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No. 71. TEPCO then moved for reconsideration of the Court’s order regarding its second

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motion to dismiss. ECF No. 73. The Court amended its order and granted TEPCO’s

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motion for certification of interlocutory appeal and stayed the case at the district court level.

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ECF No. 107. The Ninth Circuit affirmed the Court’s denial of TEPCO’s Motion to

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Dismiss Plaintiffs’ SAC. See 860 F.3d 1193.

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Plaintiffs’ TAC asserts both individual and class action claims. See generally TAC.

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Their causes of action include negligence, strict products liability, strict liability for

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ultrahazardous activities, res ipsa loquitur, negligence per se, loss of consortium, and

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survival and wrongful death. Id. Plaintiffs make these claims against TEPCO as the owner

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and operator of the FNPP, id. ¶¶ 85, 96, and against GE as the designer of the Boiling

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Water Reactors within the FNPP. Id. ¶¶ 88, 141. Both GE and TEPCO have moved to

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dismiss this case against them. The Court addresses each Motion in turn.

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Plaintiffs have voluntarily dismissed their claims against EBASCO, Toshiba, and Hitachi. ECF No. 139.
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12cv3032-JLS (JLB)

GE’S MOTION TO DISMISS

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In its Motion, GE argues that this Court lacks subject matter jurisdiction over this

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case. GE MTD at 19–21. Next, GE argues that this Court should conduct a choice-of-law

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analysis and apply Japan’s Act on Compensation for Nuclear Damage, Act No. 147 of June

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17, 1961 (“Compensation Act”), which precludes GE from liability for nuclear events. GE

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MTD at 21–32.2

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I.

Subject Matter Jurisdiction

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GE argues that this Court lacks subject matter jurisdiction because (1) Plaintiffs fail

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to satisfy diversity jurisdiction under 28 U.S.C. § 1332(a), and (2) Plaintiffs’ attempt to

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invoke jurisdiction under the Class Action Fairness Act (“CAFA”) fails to show that “class

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certification will ever be warranted.” GE MTD at 19–20.

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A.

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The United States Supreme Court has “consistently interpreted § 1332 as requiring

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complete diversity: In a case with multiple plaintiffs and multiple defendants, the presence

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in the action of a single plaintiff from the same State as a single defendant deprives the

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district court of original diversity jurisdiction over the entire action.” Exxon Mobil Corp.

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v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).

Diversity Jurisdiction Under Section 1332

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GE argues Plaintiffs fail to establish diversity jurisdiction because they fail to meet

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the section 1332 requirement of complete diversity of citizenship. GE MTD at 19.

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Plaintiffs do not oppose this contention. See generally Opp’n to GE MTD. In the TAC,

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Plaintiffs allege that GE is incorporated in New York and has its principle place of business

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in Connecticut. TAC ¶¶ 87–88. Plaintiffs state that Plaintiff Jedediah Irons is a citizen

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GE also argues that the Court should dismiss Plaintiffs claims under the doctrine of forum non conveniens
or the political question doctrine. Further, GE argues that, if California law applies, Plaintiffs claims are
time-barred and that Plaintiffs fail to state a claim against GE for several factual and legal deficiencies in
the Complaint. Finally, GE argues that all claims against GE should be dismissed as a matter of
international comity and that the Court lacks jurisdiction because the of Convention on Supplemental
Compensation for Nuclear Damage. Because the Court agrees with GE that Japanese law applies, the
Court does not reach these arguments.
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New York. Id. ¶ 81. Because both GE and Mr. Irons are citizens of New York, complete

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diversity is defeated and this court lack subject matter jurisdiction under section 1332.

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B.

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The Class Action Fairness Act of 2005 provides “expanded original diversity

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jurisdiction for class actions.” United Steel, Paper & Forestry, Rubber, Mfg., Energy,

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Allied Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v. Shell Oil Co., 602 F.3d 1087,

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1090–91 (9th Cir. 2010). Jurisdiction under CAFA requires the total number of members

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of the proposed plaintiff class be 100 or more persons and the primary defendants not be

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“States, State officials, or other governmental entities against whom the district court may

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be foreclosed from ordering relief.” 28 U.S.C. § 1332(d)(5); see also Serrano v. 180

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Connect, Inc., 478 F.3d 1018, 1020 (9th Cir. 2007). Once these threshold requirements are

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met, federal courts are vested with “original jurisdiction of any civil action in which the

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matter in controversy exceeds . . . $5,000,000” and in which any member of the class is a

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citizen of a State different from any defendant. 28 U.S.C. § 1332(d)(2).

Subject Matter Jurisdiction Under CAFA

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GE argues that this is not a class action, and thus “Plaintiffs cannot avail themselves

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of CAFA’s minimal diversity provision.” GE MTD at 19. GE points to statements by

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Plaintiffs’ counsel that acknowledge that the case is “primarily a mass tort case,” not a

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“class case.” Id. (quoting Aug. 31, 2017 Status Conference Tr. at 59, ECF No. 145).

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Further, GE argues that the TAC reveals no basis to believe that class certification will ever

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be warranted.

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requirements and that jurisdiction is appropriate. Opp’n to GE MTD at 11–12.

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Id. at 7.

Plaintiffs contend that their TAC satisfies all the CAFA

Here, there are 239 named Plaintiffs, and Plaintiffs allege no claims against any State

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or governmental entity.

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$1,000,000,000, meeting the amount in controversy requirement.

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Further, Lindsay Cooper is a citizen of California, while GE is a citizen of New York (state

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of incorporation) and Connecticut (principle place of business), thus minimal jurisdiction

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is also satisfied. Accordingly, the TAC meets the CAFA jurisdictional requirements. See

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28 U.S.C. § 1332(d)(11)(b).

See generally TAC.

The prayer for relief demands
See TAC Prayer.

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Despite GE’s contentions that there are insufficient allegations to certify the class

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alleged here, none of these alleged flaws are “so obviously fatal as to make the plaintiff’s

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attempt to maintain the suit as a class action frivolous.” See Cunningham Charter Corp.

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v. Learjet, Inc., 592 F.3d 805, 807 (7th Cir. 2010). Accordingly, the Court concludes that

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there is subject matter jurisdiction under CAFA.

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II.

Choice-of-Law

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GE requests the Court perform a choice-of-law analysis as to the issue of GE’s

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liability, arguing Japanese law applies and precludes GE from liability.3 GE MTD at

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21–32. Plaintiffs argue that the Court should defer making a choice-of-law analysis at this

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point, although California substantive law should apply to the case and GE is strictly

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liable.4 Opp’n to GE MTD at 14–24.

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In a diversity case, the district court must apply the choice-of-law rules of the state

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in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941);

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Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir. 1987). California

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applies a three-step “governmental interest” analysis to choice-of-law questions:

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First, the court examines the substantive law of each jurisdiction
to determine whether the laws differ as applied to the relevant
transaction. Second, if the laws do differ, the court must
determine whether a “true conflict” exists in that each of the
relevant jurisdictions has an interest in having its law applied.
“If only one jurisdiction has a legitimate interest in the

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In their briefs and at oral argument, Plaintiffs asserted that the Ninth Circuit has already expressed a
position on GE’s arguments regarding the choice-of-law issue. See, e.g., Opp’n to GE MTD at 21. But,
as the Ninth Circuit made clear, “the district court has yet to undergo a choice-of-law analysis” and it is
yet to be determined “what body of law applies.” Cooper v. Tokyo Elec. Power Co., 860 F.3d 1193, 1215
(9th Cir. 2017). Further, the issue regarding the applicability of the Compensation Act was not before the
Ninth Circuit.
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The Parties also reference American federal law in their choice-of-law arguments. Plaintiffs argue the
Court could “potentially even cobbl[e] together the appropriate law from California, Japan, American
federal law and other appropriate sources,” Opp’n to GE MTD at 11, but ultimately take the position that,
if the Court does consider choice of law, it should apply California law. Id. at 14. Based on the pleadings,
the claims alleged, and the facts of the case, the Court will conduct its choice-of-law analysis as to the
laws of California or Japan.
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application of its rule of decision, there is a ‘false conflict’ and
the law of the interested jurisdiction is applied.” On the other
hand, if more than one jurisdiction has a legitimate interest, “the
court must move to the third stage of the analysis, which focuses
on the ‘comparative impairment’ of the interested jurisdictions.
At this stage, the court seeks to identify and apply the law of the
state whose interest would be the more impaired if its law were
not applied.

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Abogados v. AT&T Inc., 223 F.3d 932, 934 (9th Cir. 2000) (internal citations omitted).

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Generally, the preference is to apply California law, rather than choose the foreign law as

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a rule of decision. Strassberg v. New England Mut. Life Ins. Co., 575 F.2d 1262, 1264 (9th

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Cir. 1978). “[T]he party seeking to dislodge the law of the forum[] bears the burden of

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establishing that the foreign jurisdiction has an interest, cognizable under California

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conflict-of-law principles, in the application of its law to the dispute at hand.” McGhee v.

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Arabian Am. Oil Co., 871 F.2d 1412, 1424 (9th Cir. 1989).

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A.

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Before the Court conducts the choice-of-law analysis, it addresses Plaintiffs’

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preliminary arguments regarding the appropriateness of conducting the analysis at this

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point in the litigation.

Preliminary Choice-of-Law Issues

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Plaintiffs argue that the choice-of-law determination requires additional time and

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development to analyze fully, thus the Court should not decide the issue at the motion-to-

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dismiss stage. Opp’n to GE MTD at 21–24. The Court disagrees. “The question of

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whether a choice-of-law analysis can be properly conducted at the motion to dismiss stage

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depends on the individual case.” Czuchaj v. Conair Corp., No. 13-cv-1901 BEN (RBB),

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2014 WL 1664235, at *9 (S.D. Cal. Apr. 18, 2014). As long as a court has sufficient

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information to analyze the choice-of-law issue thoroughly, see In re Graphics Processing

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Units Antitrust Litig., 527 F. Supp. 2d 1011, 1028 (N.D. Cal. 2007), and discovery will not

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likely affect the analysis, see Frezza v. Google Inc., No. 5:12-cv-00237-RMW, 2013 WL

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1736788, at *5–6 (N.D. Cal. Apr. 22, 2013), it is appropriate for the Court to undertake a

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choice-of-law analysis at the motion-to-dismiss stage. Here, GE and Plaintiffs fully briefed
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the issues, and discovery will not affect the analysis. Thus, the Court finds that there is

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adequate information to analyze the specific choice-of-law determination as to the issue of

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GE’s liability.

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Next, Plaintiffs argue that the Compensation Act’s channeling provision is

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procedural, not substantive, and therefore not appropriate for the Court apply. Opp’n to

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GE MTD at 21–24. Whether or not the Court applies Japanese law or California law in the

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first place is a choice-of-law issue, and choice-of-law rules are considered “substantive.”

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Patton v. Cox, 276 F.3d 493, 495 (9th Cir. 2002) (a federal court in a diversity case must

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apply the choice-of-law rules of the state in which it sits); see also O’Connell & Stevenson,

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Rutter Group Practice Guide: Fed. Civil Procedure Before Trial, Ch. 1-B (The Rutter

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Group 2017) (same). The law of California will therefore dictate which forums law will

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apply to this case.

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As for the Compensation Act itself, the Court concludes that this issue is substantive.

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Plaintiffs have provided no authority to support their assertion that application of the

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Compensation Act’s channeling provision is procedural. Applying the Compensation Act

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would significantly affect the result of this litigation because whether or not the

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Compensation Act is applied determines the entire case as to GE’s liability. This makes

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the Act a substantive one, and thus proper for the Court sitting in diversity to apply. See

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Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (finding issue substantive

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if applying the foreign law, rather than the forum State’s law, “significantly affect[s] the

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result of a litigation”).

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B.

Choice-of-Law Analysis
1.

Differences in the Forum Laws

The first factor in California’s governmental interest test asks whether the laws of
the two forums differ. The Parties and the Court all agree the laws absolutely conflict.
Under Japanese law, the Compensation Act applies.

The Compensation Act

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channels liability for nuclear damage exclusively to the licensed operator of a nuclear

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installation. See Compensation Act, art. 3 & 4 (when a Nuclear Operator in the course of
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Operation of a Nuclear Reactor causes Nuclear Damage, “no other persons shall be liable

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to compensate for damages other than the Nuclear Operator”). The Parties agree that, if

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the Court were to apply this Act, it must dismiss all claims against GE.

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In contrast, California law holds the manufacturer liable if a product is defective.

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Under California law, “[a] manufacturer is strictly liable for injuries caused by a product

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that is (1) defectively manufactured, (2) defectively designed, or (3) distributed without

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adequate instructions or warnings of its potential for harm.” Hufft v. Horowitz, 4 Cal. App.

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4th 8, 13 (1992) (citing Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 428 (1978)). If Plaintiffs

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prove that GE defectively manufactured or designed the reactor, under California law, GE

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would be strictly liable for Plaintiffs’ injuries.
2.

“True Conflicts” Analysis

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The second factor in California’s governmental interest test requires the Court to

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evaluate each jurisdiction’s interest in the application of its law to the issue at hand. The

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Court must examine the governmental policies underlying the California and Japanese

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laws, “‘preparatory to assessing whether either or both states have an interest in applying

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their policy to the case.’ Only if each of the states involved has a ‘legitimate but conflicting

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interest in applying its own law’ will [the court] be confronted with a ‘true’ conflicts case.”

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Offshore Rental Co. v. Cont’l Oil Co., 22 Cal. 3d 157, 163 (1985) (internal citations

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omitted). “When one of two states related to a case has a legitimate interest in the

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application of its law and policy and the other has none, there is no real problem; clearly

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the law of the interested state should be applied.” Hernandez v. Berger, 102 Cal. App. 3d

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795, 799 (1980) (internal citations omitted).

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a.

California’s Interest

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Plaintiffs allege GE’s Boiling Water Reactors contained numerous design and

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manufacturing defects for which GE should be liable. TAC ¶ 83. As noted, California law

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holds manufacturers strictly liable for products defectively manufactured or designed.

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Hufft, 4 Cal. App. 4th at 13. The governmental interest underlying California’s strict

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products liability law
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“is to insure that the costs of injuries resulting from defective
products are borne by the manufacturers that put such products
on the market rather than by the injured persons who are
powerless to protect themselves.” . . . The other purposes, or
public policies, behind the creation of the doctrine of strict
products liability in tort as a theory of recovery are: “(1) to
provide a ‘short cut’ to liability where negligence may be present
but difficult to prove; (2) to provide an economic incentive for
improved product safety; (3) to induce the reallocation of
resources toward safer products; and (4) to spread the risk of loss
among all who use the product.”
Barrett v. Super. Ct., 222 Cal. App. 3d 1176, 1186 (1990) (internal citations omitted).

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Plaintiffs argue California has a strong interest in applying its laws to this case

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because California seeks to protect U.S. servicemen and women stationed and serving the

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Naval and Marine branches in the Southern District of California. Opp’n to GE MTD at

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16–17 & 17 n.1. Plaintiffs also argue California has a strong public policy behind

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protecting those injured on account of defective products. Id. at 18. The primary purpose

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behind California’s strict products liability law is to guarantee that the costs of injuries

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resulting from defective products are borne by manufacturers, not victims. Id. at 18–19 &

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19 n.2. The Court agrees this interest is significant and, thus, California has an interest in

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ensuring compensation for the victims from California.

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California has no interest, however, in ensuring compensation for plaintiffs who

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neither are California residents nor injured in California. See Chen v. L.A. Truck Ctrs.,

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LLC, 7 Cal. App. 5th 757, 771 (2017) (citing Hurtado v. Super. Ct., 11 Cal. 3d 574, 583

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(1974)). Although California has an interest in ensuring compensation for the Plaintiffs

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residing in California, this interest does not extend to the other, non-resident Plaintiffs.

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Other interests tied to California’s strict products liability do apply to non-residents.

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Specifically, California has an interest in encouraging corporations to manufacture safe

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products regardless of whether these products will affect California residents.

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Hurtado, 11 Cal. 3d at 583–584. California also has an interest in deterring defective

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nuclear power plants, both through the strict liability imposed in California for defective

See

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products and the availability of punitive damages. These are significant interests that apply

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whether or not Plaintiffs reside in California.

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After weighing these factors, the Court finds that California has a strong interest in
having its strict products liability law apply to this matter.

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b.

Japan’s Interest

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GE argues that Japan has a compelling interest in “applying its own law on allocation

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of liability to a nuclear power plant accident occurring in Japanese territory.” GE MTD at

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26–27. GE cites this Court’s past Order, wherein it stated, “Japan has an interest in

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adjudicating claims arising from the March 11, 2011 earthquake and tsunami that

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devastated large swaths of the country as evidenced by Japan's large investment in

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responding to the disaster.” GE MTD at 26 (citing ECF No. 69 at 28).

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Japan also has an interest because it is the place of the wrong. The “place of the

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wrong” is the state where the last event necessary to make the actor liable occurred. Mazza

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v. Am. Honda Motor Co., 666 F.3d 581, 593 (9th Cir. 2012) (citing Zinn v. Ex-Cell-O

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Corp., 148 Cal. App. 2d 56, 80 n.6 (1957)). Plaintiffs’ injuries occurred off the coast of

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Japan as a result of the release of radioisotopes from the FNPP, TAC ¶ 84, and “the situs

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of the injury remains a relevant consideration” in choice-of-law issues. Offshore Rental,

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22 Cal. 3d at 168.

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Finally, Japan has an interest in imposing liability based on and consistent with the
Compensation Act.
“When a state adopts a rule of law limiting liability for
commercial activity conducted within the state in order to
provide what the state perceives is fair treatment to, and an
appropriate incentive for, business enterprises, . . . the state
ordinarily has an interest in having that policy of limited liability
applied to out-of-state companies that conduct business in the
state, as well as to businesses incorporated or headquartered
within the state.”

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McCann, 48 Cal. 4th 68, 91 (2010); see also McGhee, 871 F.3d at 464 (holding Turkey has

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“a legitimate interest in limiting the liability of corporations that conduct business within

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its borders”).

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After considering these interests, the Court concludes that Japan also has a strong

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interest in resolving the issues surrounding the incident, which occurred in Japan. Having

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found that both Japan and California have an interest in having their own laws applied, a

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true conflict exists.

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3.

Comparative Impairment Analysis

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Once the trial court “determines that the laws are materially different and that each

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state has an interest in having its own law applied, thus reflecting a true conflict, the court

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must take the final step and select the law of the state whose interests would be “more

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impaired’ if its law were not applied.” Wash. Mut. Bank, FA, 24 Cal. 4th at 920. “In

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making this comparative impairment analysis, the trial court must determine ‘the relative

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commitment of the respective states to the laws involved’ and consider ‘the history and

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current status of the states’ laws,’ and ‘the function and purpose of those laws.’”5 Id.

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(quoting Offshore Rental, 22 Cal. 3d at 167). “Accordingly, [the Court’s] task is not to

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determine whether the [Japanese] rule or the California rule is the better or worthier rule,

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but rather to decide—in light of the legal question at issue and the relevant [] interests at

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stake—which jurisdiction should be allocated the predominating lawmaking power under

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the circumstances of the present case.” McCann, 48 Cal. 4th at 97.

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Plaintiffs argue California’s interest would be significantly impaired if Japanese law

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were applied because GE’s liability would go “unexamined” and GE would evade financial

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Neither Party makes any arguments as to the “history and current status of the states’ laws.” Offshore
Rental, 22 Cal. 3d at 167. In Offshore Rental, the court found California’s law to be “unusual and
outmoded” in contrast to Louisiana’s “prevalent and progressive” law, a fact the court found weighed
toward Louisiana having a stronger interest in applying its law. Id. There is nothing to indicate either
California’s law on product liability or Japan’s Compensation Act are outmoded; indeed, both remain
prevalent today. See Chen, 7 Cal. App. 5th 757 (applying California’s strict liability law in 2017); Nasu
Decl. 9 (noting the Act has been, and continues to be, applied to provide compensation to the victims of
the 2011 incident at the Fukushima Plant).
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responsibility for its alleged misdeeds. Opp’n to GE MTD 19 n.2. According to Plaintiffs,

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without a finding of liability as to GE, Plaintiffs’ rights will not be vindicated, California’s

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interest in ensuring victims are compensated would be frustrated, and California could be

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responsible for Plaintiffs’ long-term medical bills. Id.; see also Munguia v. Bekens Van

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Lines, LLC, No. 1:11-cv-01134-LJO-SKO, 2012 WL 5198490, at *5 (E.D. Cal. Oct. 19,

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2012) (concluding California has an interest that “its residents are compensated for their

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injuries and do not become dependent on the resources of California for necessary medical,

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disability, and unemployment benefits”).

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Predictably, GE disagrees. GE contends that the Compensation Act could fully

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compensate Plaintiffs for their injuries. GE MTD at 30. Under the Compensation Act,

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Plaintiffs with valid claims may recover against TEPCO––the operator liable for such

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injuries––which has already acknowledged its liability for any harm caused by the radiation

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and has already paid over $70 billion to compensate those affected by the incident. Id.

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The Court finds no convincing support for Plaintiffs’ assertion that Japanese law will

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leave them with “minimal and insufficient damages” requiring the U.S. Government or

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California to pick up the financial balance. And while Plaintiffs’ contention that litigating

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in the Japanese forum will be exponentially more difficult than litigating in California may

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be true, Plaintiffs have shown no law or facts that indicate that the Japanese forum is closed

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to any of the named, or unnamed, Plaintiffs. As the California Supreme Court has held,

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“the policy underlying a statute may [] be less ‘comparatively pertinent’ if the same policy

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may easily be satisfied by some means other than enforcement of the statute itself.”

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Offshore Rental, 22 Cal. 3d at 166. Such is the case here. Because compensation for

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Plaintiffs’ injuries is available in the Japanese forum, Plaintiffs have not demonstrated how,

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or to what extent, California’s policy of compensating injured victims will be frustrated.

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Plaintiffs also argue that California’s interest in deterring tortfeasors would be

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greatly impaired. Opp’n to GE MTD 18–20. If Japanese law is applied, Plaintiffs concede

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that dismissal of their claims would follow. They argue that, if this occurs, no forum would

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be capable of holding GE responsible, thwarting California’s interest in deterrence. Id.

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at 18.

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Although deterrence is a legitimate interest, “California decisions have adopted a

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restrained view of the scope or reach of California law with regard to the imposition of

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liability for conduct that occurs in another jurisdiction and that would not subject the

6

defendant to liability under the law of the other jurisdiction.” McCann, 48 Cal. 4th at 99.

7

For example, in McCann, the California Supreme Court applied California’s choice-

8

of-law analysis and determined that the application of Oklahoma law was more

9

appropriate, despite the fact that Oklahoma’s statute of limitations barred the plaintiff––a

10

California resident exposed to asbestos in Oklahoma––while California’s statute of

11

limitations did not. 48 Cal. 4th at 99. Although that decision meant the plaintiff could not

12

recover at all from the defendant, the court held Oklahoma had a “predominate interest” in

13

regulating conduct that occurred within its borders and an interest “in being able to assure

14

individuals and commercial entities operating within its territory that applicable limitations

15

on liability set forth in the jurisdiction’s law will be available to those individuals and

16

businesses in the event they are faced with litigation in the future.” Id. at 97.

17

Likewise, in Offshore Rental, the California Supreme Court applied Louisiana law

18

in a case involving a California corporation seeking to recover for loss of services of an

19

employee injured in Louisiana. 22 Cal. 3d at 160. The court concluded that, “[b]y entering

20

Louisiana, plaintiff exposed itself to the risks of the territory, and should not expect to

21

subject defendant to a financial hazard that Louisiana law had not created.” Id. at 169

22

(internal quotations and alterations omitted). Louisiana’s “vital interest in promoting

23

freedom of investment and enterprise within Louisiana’s borders” prevailed over

24

California’s interest in compensating residents. Id. at 168 (emphasis in original).

25

The reasoning from both McCann and Offshore Rental is applicable to the present

26

case and weighs in favor of Japan having the more impaired interest. Japan has an interest

27

in ensuring the uniform applicability of the Compensation Act, which limits liability to

28

companies operating in Japan in the field of nuclear reactor operations. Japan instituted
13
12cv3032-JLS (JLB)

1

the Compensation Act to encourage businesses to participate in Japan’s nuclear industry,

2

and it has an interest in applying its law fairly to all businesses who participate. See

3

Declaration of Kohei Nasu (“Nasu Decl.”), ECF No. 152-22 at 9; see also Meraz v. Ford

4

Motor Co., No. CV 13-00260 PSG (VBKXx), 2014 WL 12558123, at *5 (C.D. Cal. June

5

13, 2014) (citing McCann to hold Georgia has an interest in limiting liability for

6

commercial activity conducted within the state to provide fair treatment to, and an

7

appropriate incentive for businesses to operate within the state). Furthermore, Plaintiffs

8

boarded a vessel destined for Japan, thus exposing themselves to the “risks of the territory.”

9

Plaintiffs therefore cannot expect to subject GE to a “financial hazard” under California

10

law because one of the ships carrying Plaintiffs that provided aid to Japan had a home port

11

of San Diego. Castro v. Budget Rent-A-Car Sys., Inc., 154 Cal. App. 4th 1162, 1180 (2007)

12

(finding that because incident occurred within Alabama’s borders, Alabama had a

13

“presumptive interest in controlling the conduct of those persons who use its roadways,

14

absent some other compelling interest to be served by applying California law”).

15

In sum, after balancing the impairments and reviewing the relevant case law, the

16

Court is persuaded that Japan’s interests would be “more impaired” if its law was not

17

applied to this matter. Accordingly, Japanese law applies to the issue of GE’s liability.

18

C.

19

Having determined that Japanese law applies, the Court must next determine the

20

ramification of that finding. Article 3 of the Compensation Act provides that, when

21

damage that is attributable to the operation of a nuclear reactor occurs, the Nuclear

22

Operator is liable for all damages in connection with the operation of the nuclear reactor.

23

Compensation Act, art. 3. Article 4 provides, in the case set forth in Article 3, “no other

24

persons shall be liable to compensate for damages other than the Nuclear Operator.” Id.

25

art. 3 & 4. Justice Kohei Nasu, former Justice on the Japanese Supreme Court, explains

26

that the Compensation Act “has adopted principles of . . . strict and unlimited liability of

27

the Operator of a nuclear plant . . . [and] channeling of third party liability for Nuclear

28

Damage exclusively to the Operator.” Nasu Decl. at 9.

Application of Japanese Law

14
12cv3032-JLS (JLB)

1

Only two questions remain about the applicability of the Compensation Act to this

2

Case. The first is whether GE is an “Operator” within the meaning of the statute. Under

3

Article 2 of the Compensation Act, there are a variety of definitions that may qualify an

4

entity as a “Nuclear Operator.” See Compensation Act art. 2 (listing eight possibilities).

5

In his declaration, Justice Nasu states that, in his opinion, GE is not an Operator because it

6

is not licensed as such in Japan. Nasu Decl. at 9. GE also points to a recent Tokyo High

7

Court decision that found that the Compensation Act precluded a finding of liability against

8

any entity other than TEPCO. GE MTD at 24–25. The Court finds that GE does not fall

9

within any of the Compensation Act’s definitions for a Nuclear Operator, and thus GE

10

“shall [not] be liable to compensate for damages.” See Compensation Act art. 3.

11

The second question is whether the exception to the Compensation Act’s channeling

12

provision applies. Article 3 provides that the channeling provision does “not apply in the

13

case where the damage was caused by an abnormally massive natural disaster.”

14

Compensation Act, art. 3. A massive 9.0 magnitude earthquake, giving rise to tsunami

15

waves more than 40 feet high that struck and severely damaged the FNPP, releasing

16

radiation as a result, caused the damage in this case. Although this exception would seem

17

to apply, the Japanese government and courts have taken the position that it does not. GE

18

MTD at 21–22; see also Declaration of David Weiner, Ex. B, ECF No. 152-4 at 6 (July 19,

19

2012 Tokyo District Court decision finding Article 3 exception does not apply). Moreover,

20

as GE points out, even if the exception were to apply, liability would fall to the Japanese

21

government under Article 17 of the Compensation Act, resulting in no liability for GE. GE

22

MTD at 22 (citing Compensation Act art. 17). Based on the clear positions of the Japanese

23

government and courts regarding the applicability of the exception, the Court agrees that

24

the Article 3 exception does not apply.

25

The Court concludes, that under the Compensation Act, all liability for the meltdown

26

channels to the Nuclear Operator (TEPCO), GE is not an Operator under the Act, and that

27

no exception applies. Thus, none of Plaintiffs’ claims against GE can stand under the

28

Compensation Act.
15
12cv3032-JLS (JLB)

1

II.

Conclusion

2

Based on the foregoing, the Court finds that subject matter jurisdiction is appropriate

3

in this case under CAFA. Under California’s choice-of-law governmental interest test, the

4

Court finds that Japanese law applies to this case. Further, the Court interprets the Japanese

5

Compensation Act to channel all liability from third parties to the Nuclear Operator.

6

Because GE is not an Operator and no exception applies, the Compensation Act precludes

7

all liability against GE.

8

DISMISSES all of Plaintiffs’ claims against GE pursuant to the Compensation Act.

Thus, the Court GRANTS GE’s Motion to Dismiss and
TEPCO’S MOTION TO DISMISS

9
10

In its Motion to Dismiss, TEPCO argues that it did not waive its personal jurisdiction

11

defense, and therefore this Court should dismiss Plaintiffs’ claims for lack of personal

12

jurisdiction. TEPCO MTD at 12–28. TEPCO also argues that new developments,

13

including the choice-of-law analysis this Court should undertake, weigh in favor of

14

dismissing the claims under international comity. TEPCO MTD at 28–43.

15

I.

Personal Jurisdiction

16

Under Rule 12(h)(1) of the Federal Rules of Civil Procedure, a defendant waives

17

any personal jurisdiction objection if it omits it from a previous motion filed under Rule

18

12 or fails to raise the issue in its responsive pleading. Fed. R. Civ. P. 12(h)(1); see also

19

Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1983) (“It is clear under this rule that

20

defendants wishing to raise [the personal jurisdiction] defense[ ] must do so in their first

21

defensive move, be it a Rule 12 motion or a responsive pleading.”). An exception to this

22

rule exists when a defense or objection was unavailable at the time the defendant filed its

23

earlier motion or responsive pleading. Fed. R. Civ. P. 12(g)(2).

24

TEPCO argues that under Ninth Circuit law prior to Bristol-Myers Squib Co. v.

25

Superior Court, 137 S. Ct. 1773 (2017), TEPCO did not have ‘available’ to it the objection

26

to personal jurisdiction that it now asserts under Bristol-Myers when it filed its prior motion

27

to dismiss. TEPCO MTD at 19–23, 25–28.

28

///
16
12cv3032-JLS (JLB)

1

In Bristol-Myers, a group of consumers brought tort claims against the defendant (a

2

pharmaceutical company) in California state court, alleging injuries from the use of the

3

defendant’s drug. 137 S. Ct. at 1778. The 678 plaintiffs included 86 California residents

4

and 592 non-California residents from other states. Id. Although the nonresident plaintiffs

5

were not prescribed the drug in California, injured in California, or treated for their injuries

6

in California, id., and the drug was not manufactured, labeled, or packaged in California,

7

id. at 1778, the California Supreme Court found specific personal jurisdiction to exist. Id.

8

at 1778–79. Employing a “sliding scale approach,” the California Supreme Court held

9

that, although the claims by the non-California-resident plaintiffs did not arise out of

10

contacts in the state, Bristol Myers distribution contract with a California company

11

co-defendant, as well as other non-claim-related forum contacts “permitted the exercise of

12

specific jurisdiction based on a less direct connection between [Bristol Myers]’s forum

13

activities and plaintiffs’ claims than might otherwise be required.” Id. at 1778–79. The

14

United States Supreme Court reversed, finding “no support for this approach” in its

15

personal jurisdiction jurisprudence.

16

“straightforward application . . . of settled principles of personal jurisdiction,” id. at 1783,

17

in which specific jurisdiction over a claim can only be exercised if there is an “affiliation

18

between the forum and the underlying controversy, principally, an activity or an occurrence

19

that takes place in the forum State.”

20

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

Id. at 1781.

Instead, the Court employed a

Id. at 1781 (quoting Goodyear Dunlop Tires

21

The Court is not convinced that the Bristol-Myers opinion constituted a change in

22

the law adequate to revive TEPCO’s personal jurisdiction defense. TEPCO claims that its

23

business relationship with GE would have been enough to assert personal jurisdiction over

24

it under then-current Ninth Circuit precedent, which, according to TEPCO, applied the

25

same “sliding scale” approach the Supreme Court rejected. TEPCO MTD at 20 (citing

26

Yahoo! Inc. v. La Ligue Contre le Racisme et L’Antisemitisme, 433 F. 3d 1199, 1210 (9th

27

Cir. 2006) (en banc)). But in Bristol-Myers, the Supreme Court specifically noted that it

28

has previously held that “‘a defendant’s relationship with a . . . third party, standing alone,
17
12cv3032-JLS (JLB)

1

is an insufficient basis for jurisdiction.’” Bristol-Myers, 137 S. Ct. at 1781 (quoting

2

Walden v. Fiore, 571 U.S. 277, 286 (2014) (citing Rush v. Savchuk, 444 U.S. 320, 332

3

(1980) (“Naturally, the parties’ relationships with each other may be significant in

4

evaluating their ties to the forum. The requirements of International Shoe, however, must

5

be met as to each defendant over whom a state court exercises jurisdiction”)) (emphasis

6

added). Indeed, the Supreme Court has long held that “[d]ue process requires that a

7

defendant be haled into court in a forum State based on [its] own affiliation with the State,

8

not based on the ‘random, fortuitous, or attenuated’ contacts [it] makes by interacting with

9

other persons affiliated with the State.” Walden, 571 U.S. at 286 (quoting Burger King,

10

471 U.S. at 475).

11

Moreover, a fair reading of Yahoo! does not support TEPCO’s contention that

12

raising a personal jurisdiction defense would have been futile prior to Bristol-Myers. In

13

Yahoo!, the Ninth Circuit noted that, “[i]n a specific jurisdiction inquiry, we consider the

14

extent of the defendant’s contacts with the forum and the degree to which the plaintiff’s

15

suit is related to those contacts. A strong showing on one axis will permit a lesser showing

16

on the other.” Yahoo! Inc., 433 F.3d at 1210. In the context of that case, this unremarkable

17

statement merely meant “[a] single forum state contact can support jurisdiction if ‘the cause

18

of action . . . arises out of that particular purposeful contact of the defendant with the forum

19

state,’” id. (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987), a holding not in

20

disagreement with Bristol-Myers. The Court is unable to find a case stretching Yahoo! to

21

find specific jurisdiction in a case factually similar to Bristol-Myers. Thus, nothing in

22

Yahoo! convinces the Court that, had TEPCO raised a personal jurisdiction defense earlier

23

in the litigation, the Court would have had no choice but to assert jurisdiction over TEPCO

24

on the current facts.

25

Because TEPCO previously filed a motion to dismiss and failed to raise the personal

26

jurisdiction defense there, see ECF No. 26, TEPCO waived its jurisdictional challenge and

27

may not raise it here. See Alvarez v. NBTY, Inc., 2017 WL 6059159, at *6-7 (S.D. Cal.

28

Dec. 6, 2017) (finding defendants waived personal jurisdiction defense because Bristol18
12cv3032-JLS (JLB)

1

Myers did not change Ninth Circuit law); see also Sloan v. General Motors LLC, 287 F.

2

Supp. 3d 840, 854 (N.D. Cal. 2018) (same).

3

II.

Choice of Law

4

Like GE, TEPCO also requests that the Court perform a choice-of-law analysis,

5

which it asserts will impact the international comity analysis. TEPCO MTD at 30–38.

6

Plaintiffs argue that the choice of law analysis is not ripe for determination and that

7

California law will apply. Opp’n to TEPCO MTD at 36–37.

8

A.

9

As they did in their Opposition to GE’s Motion, Plaintiffs argue that the choice-of-

10

law analysis is not “ripe for determination” because the case requires additional time for

11

development. Id. at 36. The Court already addressed––and rejected––this argument above.

12

See supra GE Motion to Dismiss section II.A. The court will therefore conduct a choice-

13

of-law analysis as it pertains to the claims against TEPCO.

14
15

B.

Preliminary Choice-of-Law Issues

Choice-of-Law Analysis
1.

Differences in the Forum Laws

16

The first factor in California’s governmental interest test asks whether the laws of

17

the two forums differ. TEPCO argues that Japanese and California law differ in at least

18

three significant ways.

19

Compensation Act would be the exclusive means of redress and strict liability would apply

20

for all aspects of the incident. Id. at 32 (citing Compensation Act, art. 3). Under California

21

law, strict liability may also apply to an ultra-hazardous activity theory based on the

22

operation and maintenance of the nuclear power plant. Id. at 34 n.14. But strict liability is

23

not the only theory Plaintiffs may raise under California law; for the same construction and

24

operation activities that constitute the hazardous activity, negligence principles may also

25

be applied. Id. at 34.

TEPCO MTD at 32–35.

First, under Japanese law, the

26

Second, the Compensation Act requires any plaintiffs to establish a “high

27

probability” of causation. Id. at 33. This standard of causation requires that “plaintiff[s]

28

must show a likelihood of 70% or 80%.” Id. (citing Apr. 25, 2018 Declaration of Yasuhei
19
12cv3032-JLS (JLB)

1

Taniguchi (“Taniguchi Decl.”) ¶ 26, ECF No. 153-3). In contrast, California negligence

2

principles require “[p]laintiffs to establish that their injuries were more likely than not

3

caused by radiation exposure,” which is a greater than 50% likelihood. Id. (citing Jones

4

v. Ortho Pharm. Corp., 163 Cal. App. 3d 396, 403 (1985)).

5

Third, TEPCO argues that the Compensation Act does not permit punitive damages.

6

Id. at 33. According to TEPCO, damages under the Act are limited to compensatory

7

damages and “do not permit an award of additional sums for the purpose of punishing the

8

nuclear operator.” Id. (citing Apr. 25, 2018 Taniguchi Decl. ¶¶ 3–21). California law, on

9

the other hand, permits punitive damages for both strict liability and negligence claims. Id.

10

at 35 (citing Cal. Civ. Code § 3294).

11

Plaintiffs do not contest that the Compensation Act conflicts with California law on

12

these points. And while Plaintiffs “do not concede that the standards set forth by TEPCO

13

are the proper standards under Japanese law for this case,” they raise no alternative

14

interpretations and no reasons why such an interpretation of Japanese law would be

15

consistent with California law. Accordingly, the Court finds that the laws of Japan and

16

California conflict.

17

2.

“True Conflicts” Analysis:

18

The second factor in California’s governmental interest test requires the Court to

19

evaluate each jurisdiction’s interest in the application of its law to this issue. In their

20

Opposition to TEPCO’s Motion, Plaintiffs make no specific arguments regarding the

21

interests of either forum. See generally Opp’n to TEPCO MTD. In addressing whether

22

there is a true conflict as it pertains to the claims against GE, the Court determined that

23

both California and Japan have strong interests in applying their respective laws to this

24

case. See supra GE Motion to Dismiss section II.B.(2). Nothing regarding the specific

25

laws and facts at issue in the claims against TEPCO changes this analysis in any way.

26

Thus, the Court finds a true conflict exists.

27

///

28

///
20
12cv3032-JLS (JLB)

1

3.

Comparative Impairment

2

The third and final step the court must take is to determine which forum’s interests

3

would be “more impaired” if its law were not applied. The Court’s previous analysis of

4

this step with regard to GE’s liability is applicable here as well, and thus the Court

5

concludes that Japan’s interests would be “more impaired” if its law was not applied to this

6

matter.

7

In fact, when compared to the claims against GE, Japan’s interests in applying its

8

laws in the case against TEPCO are even stronger. After the FNPP accident, the Japanese

9

government established the Nuclear Damage Compensation and Decommissioning

10

Facilitation Fund (“NDF”), providing over $75 billion dollars to TEPCO to resolve claims

11

arising from the accident. TEPCO MTD at 41 (citing Declaration of Norihito Yamazaki

12

(“Yamazaki Decl.”) ¶ 27, ECF No. 153-17). The Japanese government explained that if

13

United States’ law is applied, it could result in inconsistent adjudication of claims, which

14

would be “highly corrosive to the integrity of the compensation system,” not only for

15

reasons of fairness to the claimants, but also the continued viability of funding of the NDF.

16

Id. (citing Government of Japan Amicus Brief, at 3–4).

17

Because Japan has an overwhelmingly strong interest in applying its laws in this

18

case, and because those interests would be more impaired than California’s, the Court

19

determines that Japanese law applies to the issue of TEPCO’s liability.

20

III.

International Comity

21

International comity is an abstention doctrine that permits federal courts to defer to

22

the judgment of an alternative forum where the issues to be resolved are “entangled in

23

international relations.” Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237

24

(11th Cir. 2004) (quoting In re Maxwell Comm’n Corp., 93 F.3d 1036, 1047 (2d Cir.

25

1996)). Courts must evaluate several factors, including “the strength of the United States’

26

interest in using a foreign forum, the strength of the foreign governments’ interests, and

27

the adequacy of the alternative forum.” Id. at 1238 (citing cases).

28

///
21
12cv3032-JLS (JLB)

1

In assessing the interests of the respective countries, courts should consider five

2

nonexclusive factors: (1) the location of the conduct in question, (2) the nationality of the

3

parties, (3) the character of the conduct in question, (4) foreign policy interests, and (5) any

4

public policy interests. Mujica v. AirScan Inc., 771 F.3d 580, 604, 607 (9th Cir. 2014).

5

Also relevant to the analysis is which country’s law applies and whether those laws

6

conflict. Id. at 602–03. With respect to the third element—adequacy of the foreign

7

forum—the focus should be on procedural fairness in the forum and whether the opponent

8

has presented specific evidence of significant inadequacy. Id. at 607–08.

9

Previously, the Court held that, although “both the U.S. and Japan have an interest

10

in having this suit heard within their forum[,] . . . [the] reasons for maintaining jurisdiction

11

of this case [were] more compelling.” ECF No. 107 at 46. Consequently, the Court

12

“decline[d] to exercise its discretion in dismissing this case under the doctrine of

13

international comity.” Id. In affirming that decision, the Ninth Circuit noted in Cooper

14

that “further developments in the district court may counsel in favor of dismissing

15

Plaintiff’s lawsuit in favor of a Japanese forum” 860 F.3d at 1201 n.12.

16

TEPCO argues that since the Ninth Circuit’s decision, “several significant factors

17

have tilted the balance sharply in favor of a Japanese court.” TEPCO MTD at 29.

18

Specifically, TEPCO argues that the outcome of the choice of law analysis, the Japanese

19

Government’s objection to the suit, and several recent findings by this Court in the Bartel

20

cases should sway this Court to dismiss Plaintiffs’ claims on international comity grounds.

21

Id. at 30–43.

22

A.

23

Following a choice-of-law analysis, the country’s law that applies is relevant to the

24

international comity analysis. Ungaro-Benages, 379 F.3d at 1240; see also Mujica, 771

25

F.3d at 602 (“At least in cases considering adjudicatory comity, we will consider whether

26

there is a conflict between American and foreign law as one factor in . . . the application of

27

comity.”).

28

///

Changes Since Ninth Circuit Decision: Choice-of-Law

22
12cv3032-JLS (JLB)

1

Plaintiffs argue that if the Court determines that Japanese law applies, that fact

2

should not weigh in favor of dismissal. They argue that while some issues will likely turn

3

on Japanese law, the entire case will likely be decided under a mixed-law framework.

4

Opp’n to TEPCO MTD 38–39. According to Plaintiffs, that puts this Court in as good of

5

a position as the Japanese court to rule on the case. Moreover, Plaintiffs assert that, even

6

if Japanese law applies to all the major issues, this Court is “fully capable” of applying that

7

law in this case. Id.

8

The Court appreciates this vote of confidence, but these arguments have very little

9

weight in the comity analysis. And even if they did, it is undercut by Plaintiffs’ own

10

briefing. While Plaintiffs state that applying Japanese law will be straightforward, they

11

already disagree that the standards TEPCO set forth in its Motion concerning Japanese law

12

are the correct standards. Id. at 27 n.10. Given this disagreement, this Court would be

13

forced to decide what the correct standards under Japanese law are without the benefit of

14

“any familiarity with the substantive principles and nuances of Japanese law” that will

15

“inevitably arise during the course of this complex litigation.” TEPCO MTD at 39. The

16

Court agrees that “[i]t would be preferable to allow a Japanese court to articulate and apply

17

the pertinent principles of Japanese law in the uniform and authoritative manner that only

18

the courts of Japan can do.” Id.

19

Based on the Ninth Circuits’ guidance regarding the now-completed choice-of-law

20

analysis and the preference to have Japanese courts articulate and apply important and

21

pertinent principles of Japanese law themselves, the Court finds that this factor weighs in

22

favor of dismissing the case.

23
24

B.

Significant Changes Since Ninth Circuit Decision: Japanese
Government’s Objection to this Suit

25

Prior to the Ninth Circuit appeal in these proceedings, neither the Japanese

26

government nor the United States government expressed an interest in the location of this

27

litigation. This Court cited that fact as a reason for maintaining jurisdiction, and the Ninth

28

Circuit subsequently noted that, “when a country in question expresses no preference [to
23
12cv3032-JLS (JLB)

1

the location of the litigation], the district court can take that fact into consideration.”

2

Cooper, 860 F.3d at 1206. When “a foreign county[] request[s] that the United States court

3

dismiss a pending lawsuit in favor of a foreign forum[, it] is a significant consideration

4

weighing in favor of dismissal.” Id. (citing Jota v. Texaco, Inc., 157 F.3d 153, 160 (2nd

5

Cir. 1998)).

6

During the appeal in the Ninth Circuit, the Japanese government submitted an

7

amicus brief stating its strong objection to continuing this suit in the United States and

8

expressing its belief that the suit should be dismissed in favor of the Japanese forum. Id.

9

Following the submission of Japan’s amicus brief, the Ninth Circuit solicited the views of

10

the U.S. State Department, which submitted an amicus brief in support of this Court

11

maintaining jurisdiction. Id. at 1207. The Ninth Circuit thoroughly discussed each

12

country’s relevant policy interests. Id. at 1206–09. It found that “Japan has an undeniably

13

strong interest in centralizing jurisdiction over FNPP-related claims,” and that “the United

14

States believes that maintaining jurisdiction over this case will help promote the

15

[Convention on Supplementary Compensation for Nuclear Damage], an interest that

16

encompasses all future claims arising from nuclear incidents around the globe.”6 Id. at

17

1209. The Ninth Circuit concluded that these “important, competing policy interests”

18

create a “difficult judgment call” for this Court. Id.

19

TEPCO argues that, since filing the amicus brief in March 2016, Japan’s interests

20

have only grown stronger. The Japanese government has now paid more than $76 billion

21

to resolve more than 17,000 claims and approximately 160 court proceedings through

22

TEPCO’s “Nuclear Damage Claim Dispute Resolution Center.”7 TEPCO MTD at 41. The

23

sheer number of parties compensated through the Japanese system, TEPCO argues,

24
25
26
27
28

In its amicus brief, the United States also noted that, “certainly, [the district court] could choose to
dismiss [this] case based on international comity.” TEPCO MTD at 40 (quoting U.S. Government’s
amicus curiae brief in the Ninth Circuit 16–17).
6

7

More than 440 court proceedings have been filed, while 160 have been adjudicated or settled. TEPCO
MTD 41.
24
12cv3032-JLS (JLB)

1

increases Japan’s interest in ensuring there is consistency in how plaintiffs are treated to

2

guarantee there are ample funds to maintain the system. Id. at 41–42.

3

Weighing these interests, the Court concludes that the United States and Japan both

4

have important, competing policy interest here. Because the Japanese government has now

5

made its position known and Defendants have made strong showings for why Japan’s

6

foreign and public policy interests would be harmed, however, the Court finds that this

7

factor now weighs slightly in favor of dismissal.

8

C.

9

TEPCO raises two other developments in support of its argument. First, TEPCO

10

points to this Court’s decision in Bartel I, in which the Court found TEPCO’s activities in

11

California ended five years before the incident and many years before the litigation. This,

12

TEPCO argues, is a change from the Court’s finding that TEPCO “is a large corporation

13

with a significant physical presence in the United States and is registered as a foreign

14

corporation in California.” ECF No. 107 at 41. The Court does not agree that this fact

15

changes its previous analysis. When assessing the nationality of the parties, this Court

16

focused on the Plaintiffs’ U.S. citizenship, not just TEPCO’s ties to California.

17

Additionally, TEPCO does not refute its significant ties to the United States in general,

18

which still weighs against dismissal.

Significant Changes Since Ninth Circuit Decision: Other Developments

19

Second, TEPCO argues that the nature of the conduct now weighs in favor of

20

dismissal. Because Japanese law applies, the case is no longer a “civil tort case regarding

21

a Japanese company’s negligence and personal injury to U.S. plaintiffs,” as this Court

22

previously found. Id. at 42. Instead, this is a strict liability tort under Japanese law.

23

TEPCO MTD at 43. This is true, but it does not change the Court’s previous finding that

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this factor is neutral. A Japanese tort is still not a criminal case or violation of international

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moral norms that would weigh in favor of dismissal. Therefore, the Court finds this also

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does not move the scale in favor of dismissal.

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IV.

Conclusion

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As the Ninth Circuit previously made clear, this is a “close case” with competing

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interests pointing in both directions. After further developments, and with the benefit of

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the Ninth Circuit’s guidance, the Court has now reweighed its prior ruling on international

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comity. The location of the conduct in question, as well as the nationality of the parties,

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continues to weigh against dismissal; the nature of the conduct and public policy interests

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remains neutral.

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governments’ views, the Court finds that the foreign and public policy interests weigh

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toward dismissal. And having conducted a choice-of-law analysis and having determined

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Now, however, after considering the Japanese and United States

that Japanese law applies, this factor also weighs in favor of dismissal.

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On balance, the Court concludes that the factors now weigh in favor of dismissal.

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Accordingly, the Court GRANTS TEPCO’s Motion to Dismiss and DISMISSES

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WITHOUT PREJUDICE Plaintiffs’ case against TEPCO under international comity.

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CONCLUSION

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Based on the foregoing, the Court (1) GRANTS GE’s Motion to Dismiss (ECF No.

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152) and DISMISSES Plaintiffs’ TAC as to the claims against GE; and (2) GRANTS

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TEPCO’s Motion to Dismiss (ECF No. 153) and DISMISSES Plaintiffs’ TAC

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WITHOUT PREJUDICE as to the claims against TEPCO. The Court dismisses the

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complaint against TEPCO without prejudice so that Plaintiffs may file their claims in the

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proper forum.

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IT IS SO ORDERED
Dated: March 4, 2019

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