By Gina Kim
LOS ANGELES - A lawsuit against the Boeing Co. over a 2018 wildfire in Southern California should be heard in state court, a federal judge tentatively ruled Monday, a move that could allow other plaintiffs to sue the aerospace giant.
If U.S. District Judge Michael W. Fitzgerald sticks with his tentative decision, the Boeing case will join coordinated proceedings presided over by Los Angeles County Judge William F. Highberger. Southern California Fire cases JCCP 5000.
Bellwether trials are set to commence in February 2020.
Don Howarth and Suzelle M. Smith of Howarth & Smith on behalf of plaintiff Andrew Von Oeyen and others, initially sued Boeing in Los Angeles County Superior Court in February along with defendant Southern California Edison Co., whose equipment is believed to have started the Nov. 8, 2018 Woolsey Fire.
The fire began near the Boeing-owned Santa Susana Field Laboratory in Ventura County and charred more than 96,000 acres. Von Oeyen et al. v. The Boeing Company et al. 19-CV3955 (C.D. Cal, filed April 30, 2019).
Other plaintiff firms also pursued Boeing as a defendant but dismissed their cases without prejudice, citing lack of evidence, jurisdiction issues and that Boeing's government contract work could give it immunity.
Howarth & Smith kept Boeing as a defendant, and filed an amended complaint April 30 to clear out toxic tort allegations and proceed on state claims only. On May 6, Boeing removed the action to U.S. district court, invoking the federal officer removal statute.
Over the last several weeks, both plaintiffs and defense argued over whether the case should be remanded to superior court. The primary dispute was whether plaintiffs' unserved original complaint or the first amended complaint is the operative pleading for purposes of a remand.
In his tentative ruling, Fitzgerald agreed with plaintiffs that their amended complaint is the operative pleading.
"Here where the original complaint was not served, this particular risk of gamesmanship is not at play," Fitzgerald wrote. "Accordingly, because the Court determines that Boeing removed a non-operative complaint, this alone is sufficient basis for granting the Remand Motion. If there is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court."
Boeing failed to meet that burden, Fitzgerald wrote.
In their pleadings, Howarth and Smith argued their newly-amended lawsuit deals only with state-related wildfire damages claims. There are no federal officer-ordered actions or omissions at Boeing's Santa Susana Field Lab property that required Boeing to allow electrical infrastructure to fall into disrepair or permit vegetation to spread as to increase the risk of fire, plaintiffs argued.
Boeing removed the action to federal court operating on plaintiffs' original complaint - which was unserved - that addressed claims about the fire's juncture, pollution on premises and contamination. When the case was removed to federal court, plaintiffs' original complaint and not their unserved amended complaint was the operative pleading, Boeing contended in their opposition.
Plaintiffs' first amended complaint "is nothing more than a thinly- veiled attempt to avoid federal jurisdiction," Boeing argued.
On Monday, Gibson, Dunn & Crutcher LLP partner Peter S. Modlin argued that it is a matter of law that plaintiffs' unserved initial complaint is the operative complaint for purposes of removal. If an amended complaint isn't served prior to a defendant's answer, the amended complaint doesn't become operative at all, he argued, adding that law requires an amended complaint to be served to the defense for it to become operative.
Howarth contended that the first complaint was nullified once an amended complaint was timely filed. There is no law that doesn't allow the amended complaint to supersede the initial, he added. He also argued Boeing waited until after the first amended complaint was filed to remove the case to federal court.
"We're beating a dead horse here, it's pretty clear," Fitzgerald remarked, while acknowledging the legal issue was an interesting one.
Howarth said after the hearing that his firm went after Boeing and refused to dismiss the company because "we like to get in all defendants we all believe apparently had a hand in this [fire]."
"You name everyone who's responsible and you'll see justice in the appropriate court. State or federal, we'll argue anywhere - both are good places to be in. I'm not going to leave someone out because I'm afraid to argue in a particular jurisdiction," he said.
Now that Von Oeyen prevailed on remand, the question remains as to whether other plaintiffs might pursue Boeing again.
If the remand is successful others plaintiffs could seek to amend their complaints to add Boeing, Howarth said.
Alexander Robertson of Robertson & Associates LLP who is the plaintiffs' co-leadership counsel in the Woolsey litigation said Monday he and his fellow leadership colleagues have no plans at this time to pursue Boeing as a co-defendant.
Ronald L.M. Goldman of Baum Hedlund Aristei & Goldman, who represents individual plaintiffs in the case, said he might pursue Boeing again.
"Discovery is ongoing, and we'll revisit Boeing if needed if we find people who fell ill due to [Boeing's] failure to properly clean up the toxic waste after the fire," Goldman said.