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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`DUSTIN BARTEL; et al.,
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`Plaintiffs,
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`v.
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`TOKYO ELECTRIC POWER
`COMPANY, INC.; et al.,
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` Case Nos.: 18-CV-537 JLS (JLB)
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`ORDER: (1) GRANTING TEPCO’S
`MOTION TO DISMISS; AND
`(2) GRANTING GE’S MOTION TO
`DISMISS
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`Defendants.
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`(ECF Nos. 19, 20)
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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. 20), and Defendant General
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`Electric’s (“GE”) Motion to Dismiss, (“GE MTD,” ECF No. 19). Plaintiffs have filed a
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`Response in Opposition to TEPCO’s Motion, (“Opp’n to TEPCO MTD,” ECF No. 24),
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`and to GE’s Motion, (“Opp’n to GE MTD,” ECF No. 23). TEPCO filed a Reply, (“TEPCO
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`Reply,” ECF No. 28), as did GE, (“GE Reply,” ECF No. 27). Having reviewed the parties’
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`arguments and the law, the Court rules as follows.
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`BACKGROUND
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`On March 11, 2011, a 9.0 magnitude earthquake struck Japan, giving rise to tsunami
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`waves more than 40 feet high that struck Japan’s Fukushima-Daiichi Nuclear Power Plant
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`(“FNPP”). Complaint (“Compl.”) ¶ 244, ECF No. 1. The plant’s radioactive core melted
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`down, causing severe damage to the plant and releasing radiation as a result. Id. ¶¶ 251,
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`255. Plaintiffs, who are members of the U.S. Navy crew of the U.S.S. RONALD
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`REAGAN, crews of other vessels participating in the Reagan Strike Force, land-based
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`service personnel, and, in some cases, their dependents, were deployed to Japan as a part
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`of a mission known as “Operation Tomodachi.” Id. ¶ 6. Plaintiffs allege that the FNPP
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`released radioisotopes and exposed them to injurious levels of ionizing radiation during the
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`mission. Id. The release of radiation and subsequent injuries resulted from “negligently
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`designed and maintained” Boiling Water Reactors at the FNPP. Id. ¶ 7.
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`Plaintiffs assert both individual and class action claims. Id. The causes of action
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`include negligence, strict products liability, strict liability for ultrahazardous activities, res
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`ipsa loquitur, negligence per se, loss of consortium, and survival and wrongful death. See
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`generally id. Plaintiffs make these claims against TEPCO, as the owner and operator of
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`the FNPP, and against GE, as the designer of the Boiling Water Reactors within the FNPP.
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`Id. ¶¶ 207, 219, 223.
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`The procedural history of this case—and related cases—is long but relevant. A
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`group of Navy sailors, including many of the Plaintiffs in this case, originally initiated an
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`action against TEPCO in this Court, Cooper v. TEPCO, 12-CV-3032 JLS (WMC)
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`(“Cooper”), on December 21, 2012. TEPCO moved to dismiss and the Court granted
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`TEPCO’s motion without prejudice. Cooper, 990 F. Supp. 2d 1035 (S.D. Cal. 2013). The
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`plaintiffs filed an amended complaint, which TEPCO moved to dismiss; the Court granted
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`in part and denied in part this motion, again permitting the plaintiffs to file an amended
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`complaint. Cooper, 2014 WL 5465347 (S.D. Cal. Oct. 28, 2014). The plaintiffs did so,
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`naming GE as an additional defendant (along with three other manufacturer defendants
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`EBASCO, Toshiba, and Hitachi). TEPCO then moved for reconsideration of the Court’s
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`Order regarding its second motion to dismiss. The Court amended its Order and granted
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`TEPCO’s motion for certification of an interlocutory appeal and stayed the case at the
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`district court level. See Cooper, 166 F. Supp. 3d 1103 (S.D. Cal. 2015).
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`During the Cooper appeal, counsel for the Cooper plaintiffs filed a separate action,
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`Bartel v. TEPCO, 17-CV-1671 JLS (JLB) (“Bartel I”), against TEPCO and GE. Both
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`TEPCO and GE moved to dismiss the complaint, and the Court granted their respective
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`motions and dismissed the plaintiff’s claims, without prejudice. Bartel I, 2018 WL 312701
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`(S.D. Cal. Jan. 5, 2018). Rather than file an amended complaint or appeal that order,
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`counsel for the Bartel I plaintiffs filed the current action, Bartel v. TEPCO, 18-CV-537
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`JLS (JLB) (“Bartel II”). See generally Compl. Fifty-five new plaintiffs joined the
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`operative Complaint as named plaintiffs in the present case. See id.
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`Both TEPCO and GE have moved to dismiss this case against them. The Court
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`addresses each Motion in turn.
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`TEPCO’S MOTION TO DISMISS
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`TEPCO argues that issue preclusion bars Plaintiff’s claims because of the prior
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`Bartel I order. Absent preclusion, TEPCO argues the Court should dismiss Plaintiff’s
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`claims for lack of personal jurisdiction. The Court agrees with TEPCO that preclusion
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`applies and that this court lacks personal jurisdiction over TEPCO.
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`ANALYSIS
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`I.
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`Issue Preclusion
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`Issue preclusion bars the relitigation of issues that a Court has already adjudicated
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`in a previous proceeding. Taylor v. Sturgell, 553 U.S. 880, 892 (2008). When a federal
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`district court with diversity jurisdiction must “determine the preclusive effect of a prior
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`decision by a different federal district court sitting in diversity, the second court must apply
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`preclusion principles according to the law of the initial court’s state.” Daewoo Elecs. Am.
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`Inc. v. Opta Corp., 875 F.3d 1241, 1244 (9th Cir. 2017) (citing Semtek Int’l Inc. v.
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`Lockheed Martin Corp., 531 U.S. 497, 508 (2001)). As a federal district court located in
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`California siting in diversity and determining the preclusive effect of its own prior decision,
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`this Court will apply California’s law of issue preclusion.
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`Under California law, issue preclusion, applies “(1) after final adjudication (2) of an
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`identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted
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`against one who was a party in the first suit or one in privity with that party.” Samara v.
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`Matar, 5 Cal. 5th 322 (2018) (quoting DKN Holdings LLC v. Farber, 61 Cal. 4th 813, 825
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`(2015).
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`This case raises two questions regarding issue preclusion: (1) whether the decision
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`in Bartel I, in which this Court dismissed the Bartel I plaintiffs’ claims for lack of personal
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`jurisdiction, was a final decision on the merits; and (2) whether the new Bartel II plaintiffs
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`are in privity with the Bartel I plaintiffs so that any preclusive effects extends to them.
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`A.
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`Final Decision on the Merits
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`“It is well settled that the principles of res judicata apply to the issue of in personam
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`jurisdiction in the same manner as any other issue.”1 Kendall v. Overseas Dev. Corp., 700
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`F.2d 536, 538 (9th Cir. 1983) (citing Baldwin v. Iowa State Traveling Mens’s Ass’n, 283
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`U.S. 522, 525–26 (1931)). When a court dismisses for lack of personal jurisdiction, issue
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`preclusion bars a plaintiff from relitigating that same issue in the same court if the other
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`elements of issue preclusion are met. Sabek, Inc. v. Engelhard Corp., 65 Cal. App. 4th
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`992, 1000 (1998); MIB, Inc. v. Super. Ct., 106 Cal. App. 3d 228, 234–35 (1980).
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`TEPCO argues that this Courts’ holding in Bartel I dismissing the claims for lack of
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`personal jurisdiction over TEPCO has preclusive effect. TEPCO MTD at 14. Plaintiffs,
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`on the other hand, contend that the Bartel I decision does not preclude their claims because
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`the Court dismissed those claims without prejudice, which is not a final judgment on the
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`merits. Opp’n to TEPCO MTD at 16–19.
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`Plaintiffs’ argument is unpersuasive. The California Court of Appeal in Sabek, Inc.
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`faced this exact issue and found that Plaintiffs’ “argument is untenable.” 65 Cal. App. 4th
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`at 998. There, the Court of Appeal held that issue preclusion applied after the plaintiff had
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`attempted to serve his complaint three previous times, and, each time, the trial court had
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`quashed the service for lack of minimum contacts with the forum. Id. In rejecting the
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`1 While Courts have used the term “res judicata” to reference the doctrine of claim preclusion, it is also
`used to reference the broader doctrine, encompassing both issue and claim preclusion. The Court uses the
`term in the broader sense.
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`argument that issue preclusion did not apply because the judgement was not on the merits,
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`the court noted that “[f]inality for purposes of issue preclusion is not the same as the finality
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`essential to claim preclusion.” Id. As a result, “even when the underlying cause of action
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`itself is not barred, the rules of issue preclusion may nevertheless apply to a final order in
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`which personal jurisdiction is found to be absent. In such a case, the order ‘is on the merits
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`to the extent that it will bar the plaintiff from maintaining a further action in that State,
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`[though] it is not on the merits so far as actions in [a proper forum] are concerned.’” Id. at
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`998–99.
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`Here, there is no dispute that TEPCO raised the personal jurisdiction issue in Bartel I
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`and that TEPCO asserts the identical personal jurisdiction defense again in this action
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`against the same Bartel I plaintiffs. Because this Court decided that issue in a final,
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`appealable order, the requisite elements of issue preclusion are met. Plaintiffs were free to
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`amend the complaint in that action, file a motion to reconsider, or appeal that Order. Under
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`the doctrine of issue preclusion, however, they cannot attempt to relitigate that same issue
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`here. Accordingly, this Court’s ruling in Bartel I that it lacks personal jurisdiction over
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`TEPCO precludes those same Bartel I plaintiffs’ claims against TEPCO in this action.
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`B.
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`Privity
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`The Bartel I plaintiffs are not the only parties to this action, however. Importantly,
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`fifty-five new Plaintiffs, who were not parties in the Bartel I decision, joined in this action.
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`The general rule is that preclusion is not applicable to nonparties. Taylor v. Sturgell, 553
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`U.S. 880, 893 (2008). This is because due process requires a party have an opportunity to
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`be heard in court. See id. “In accordance with due process, [issue preclusion] can be
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`asserted only against a party to the first lawsuit, or one in privity with a party.” DKN
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`In California, courts have embraced a broad and “practical concept of privity.”
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`Castillo v. Glenair, Inc., 23 Cal. App. 5th 262, 276–77 (2018). “Privity requires the sharing
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`of ‘an identity or community of interest,’ with ‘adequate representation’ of that interest in
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`the first suit, and circumstances ‘such that the nonparty should reasonably have expected
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`to be bound’ by the first suit.” DKN Holdings, 61 Cal. 4th at 826 (quoting Clemmer v.
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`Hartford Ins. Co., 22 Cal. 3d 865, 875 (1978)).
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`TEPCO argues that based on this “broad concept of privity,” the fifty-five new
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`Bartel II plaintiffs are in privity with the Bartel I plaintiffs. TEPCO MTD at 16. Privity
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`is established, TEPCO argues, because the new Plaintiffs joined with the Bartel I plaintiffs
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`in this action to bring the same claims as in Bartel I and because the same attorneys
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`represent both the Bartel I and new Plaintiffs.
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`In their Opposition, Plaintiffs argue that the correct standard for privity is set forth
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`in Taylor v. Sturgell, 553 U.S. 880 (2008), which allows only for limited exceptions to the
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`general rule against nonparty preclusion. Opp’n to TEPCO MTD at 19. Under this
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`standard, Plaintiffs contend that privity does not apply.
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`The Supreme Court in Taylor discussed six exceptions to the general rule against
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`nonparty exclusion. 553 U.S. at 893–95. Relevant to this case, the Court held that
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`preclusion may extend to a nonparty if “she was ‘adequately represented by someone with
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`the same interest who was a party’ to the [first] suit.” Id. at 894. (quoting Richards v.
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`Jefferson Cnty., Ala., 517 U.S. 793, 798 (1996)). “A party’s representation of a nonparty
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`is ‘adequate’ for preclusion purposes only if, at a minimum: (1) The interests of the
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`nonparty and her representative are aligned, and (2) either the party understood herself to
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`be acting in a representative capacity or the original court took care to protect the interests
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`of the nonparty.” Id. at 900 (citations omitted). This exception aligns with the California
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`rule for establishing privity noted above.
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`TEPCO contends that Taylor is not controlling here. TEPCO is correct that Taylor
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`“applied federal common law principles in deciding the merits precluding effect of a prior
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`federal question judgment.” TEPCO Reply at 11 (emphasis omitted). The Court disagrees,
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`however, that this distinction makes Taylor inapplicable to this case. Underneath the
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`federal common law principles applied in Taylor, the decision was in fact “grounded in
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`due process” considerations and thus applicable to state law preclusion as well. See Taylor,
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`553 U.S. at 901. Indeed, the California Supreme Court has cited Taylor favorably for its
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`holdings regarding nonparty issue preclusion. See, e.g. Arias v. Super. Ct., 46 Cal. 4th 969,
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`987 (2009) (noting that nonparty employees would not be bound by prior judgment where
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`they did not receive notice or have opportunity to be heard) (citing Taylor, 553 U.S. at
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`900–01).
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`With these considerations in mind, the Court finds that the Bartel I plaintiffs did not
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`adequately represent the Bartel II plaintiffs such that they are in privy. Because the Bartel
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`I putative class was never certified under Federal Civil Rule 23, the unnamed Bartel II
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`parties were not represented by the Bartel I plaintiffs. See Smith v. Bayer Corp., 564 U.S.
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`299, 315–16 (2011). Further, there were no special procedures followed in Bartel I by this
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`Court to ensure any nonparty’s interests were protected. See Richards, 517 U.S. at 798
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`(holding application of preclusion violated due process where there were neither special
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`procedures to protect nonparties’ interests or an understanding by the initial plaintiffs that
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`their suit was brought in representative capacity).
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`Accordingly, the Court holds that its ruling in Bartel I—that this Court lacks
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`personal jurisdiction over TEPCO––precludes the Bartel I plaintiffs’ claims against
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`TEPCO in this action. The ruling does not, however, bar the new Bartel II plaintiffs’ claims
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`because these new plaintiffs were not in privity with the Bartel I plaintiffs.
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`Personal Jurisdiction
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`Having found that issue preclusion does not bar the fifty-five new Plaintiffs from
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`bringing their claims, the Court next addresses whether it has personal jurisdiction over
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`When a defendant moves to dismiss a complaint for lack of personal jurisdiction, the
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`plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Sher v. Johnson,
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`911 F.2d 1357, 1361 (9th Cir. 1990). Where, as here, the motion is based on written
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`materials rather than an evidentiary hearing, “the plaintiff need only make a prima facie
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`showing of jurisdictional facts,” id., and the court “only inquire[s] into whether [the
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`plaintiff’s] pleadings and affidavits” are sufficient to make that showing.” Caruth v. Int’l.
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`Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir. 1995). Although the plaintiff cannot
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`“simply rest on the bare allegations of its complaint,” Amba Marketing Sys., Inc. v. Jobar
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`Int’l., Inc., 551 F.2d 784, 787 (9th Cir. 1977), uncontroverted allegations in the complaint
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`are taken as true, AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).
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`TEPCO argues that this Court lacks personal jurisdiction over it and therefore the
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`Court must dismiss the Plaintiffs’ claims. In response, Plaintiffs first argue that TEPCO
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`waived its personal jurisdiction defense in Cooper and that TEPCO’s waiver should apply
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`in Bartel II. Absent waiver, Plaintiffs claim that California has specific jurisdiction over
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`TEPCO and that TEPCO is subject to nationwide jurisdiction under Rule 4(k)(2).2
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`A. Waiver of Personal Jurisdiction
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`The Court first analyzes whether a waiver of personal jurisdiction in Cooper would
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`apply to Bartel II. In Bartel I, this Court rejected the plaintiffs’ very same argument. See
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`Bartel I, 2018 WL 312701, at *2–3. Plaintiffs raise no new legal arguments for their
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`proposition and only attempt to distinguish one of several cases cited as precedent in the
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`Bartel I Order—Dow Chemical Co. v. Calderon, 422 F.3d 827 (9th Cir. 2005)—in a
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`footnote in their Opposition. See Opp’n to TEPCO MTD at 22 n.4.
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`In Dow Chemical, the Ninth Circuit held that a group of Nicaraguan defendants, who
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`sued in the Central District of California, did not consent to personal jurisdiction by
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`defending on the merits an earlier action concerning the same issues also filed in the Central
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`District. 422 F.3d at 833. The Ninth Circuit held that “defense on the merits in a suit
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`brought by one party cannot constitute consent to suit as a defendant brought by different
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`parties.” Id. at 835. Thus, “[w]ithout an independent affirmative decision to seek relief in
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`[the same] courts, there can be no imputation of a conscious decision to settle all aspects
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`of a dispute” in a later action. Id. at 836.
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`Plaintiffs attempt to distinguish the instant case from Dow Chemical by stating that
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`the “holding is inapposite where, as here, the Plaintiffs to the subsequent case were also
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`2 In Bartel I, Plaintiffs also argued that Washington, D.C. had general jurisdiction over TEPCO. Plaintiffs
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`parties to the original case.” Opp’n to TEPCO MTD at 22 n.4. As they did in Bartel I,
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`Plaintiffs claim they were parties in Cooper because they were part of the putative Cooper
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`class. Id. at 22. This argument is still unpersuasive. “‘[A] nonnamed class member is
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`[not] a party to the class-action litigation before the class is certified.’” Standard Fire Ins.
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`Co. v. Knowles, 568 U.S. 588, 593 (2013) (alterations in original) (quoting Devlin v.
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`Scardelletti, 536 U.S. 1, 16 n.1 (2002) (Scalia, J., dissenting)). Because “there [was] no
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`certified class in Cooper . . . the Bartel [II] plaintiffs would therefore be, at most, unnamed
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`members of an uncertified, proposed putative class.” See Bartel I, 2018 WL 312701, at
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`*3. The Bartell II plaintiffs are therefore not parties to the Cooper action.
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`Accordingly, this Court concludes that TEPCO did not consent to jurisdiction in
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`Bartel II by participating in Cooper. See In re Cathode Ray Tube CRT Antitrust Litig., 27
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`F. Supp. 3d 1002, 1009 (N.D. Cal. 2014) (“[E]ven if actions are closely related—as when
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`different plaintiffs sue the same defendant in different cases but based on the same facts—
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`defendants do not waive their personal jurisdiction defense by raising it only in a later
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`action, so long as the defendant is not independently seeking affirmative relief in the same
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`court concerning the same transaction or occurrence.”).
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`B.
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`Specific Jurisdiction
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`“Personal jurisdiction over a nonresident defendant is tested by a two-part analysis.
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`First, the exercise of jurisdiction must satisfy the requirements of the applicable state
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`long-arm statute. Second, the exercise of jurisdiction must comport with federal due
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`process.” Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1404–05 (9th Cir. 1994).
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`California’s long-arm statute, California Code of Civil Procedure § 410.10, allows courts
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`to “exercise jurisdiction on any basis not inconsistent with the Constitution of [California]
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`or of the United States.” This provision “allows courts to exercise jurisdiction to the limits
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`imposed by the Due Process Clause of the U.S. Constitution.” Mattel, Inc. v. Greiner &
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`Hausser GmbH, 354 F.3d 857, 863 (9th Cir. 2003).
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`“The Due Process Clause protects an individual’s liberty interest in not being subject
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`to the binding judgments of a forum with which he has established no meaningful ‘contacts,
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`Case 3:18-cv-00537-JLS-MSB Document 37 Filed 03/04/19 PageID.1626 Page 10 of 29
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`ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72 (1985) (quoting
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`Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). “[T]he test for personal
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`jurisdiction requires that ‘the maintenance of the suit . . . not offend traditional notions of
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`fair play and substantial justice.’” Ins. Corp. of Ireland v. Compagnie des Bauxites de
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`Guinee, 456 U.S. 694, 702–03 (1982) (quoting Int’l Shoe, 326 U.S. at 316) (internal
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`quotation marks omitted) (ellipsis in original).
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`The required minimum contacts depend on whether the plaintiffs assert the Court
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`has “general” or “specific” personal jurisdiction over TEPCO. General jurisdiction means
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`that the defendant’s connections with the forum are so significant that it may be “haled into
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`court in the forum state to answer for any of its activities anywhere in the world.”
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`Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004). Specific
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`jurisdiction requires a more focused showing that the plaintiff’s claims arise from or relate
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`to the defendant’s conduct within the jurisdiction. Helicopteros Nacionales de Columbia,
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`S.A. v. Hall, 466 U.S. 408, 414 (1984).
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`There are three requirements for a court to exercise specific jurisdiction over a
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`nonresident defendant:
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`(1) The nonresident defendant must purposefully direct his
`activities or consummate some transaction with the forum or
`resident thereof; or perform some act by which he purposefully
`avails himself of the privilege of conducting activities in the
`forum, thereby invoking the benefits and protections of its laws;
`(2) the claim must be one which arises out of or relates to the
`defendant’s forum-related activities; and (3) the exercise of
`jurisdiction must comport with fair play and substantial justice,
`i.e. it must be reasonable.
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`Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1485 (9th Cir. 1993). “The plaintiff
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`bears the burden of satisfying the first two prongs of the test.” Schwarzenegger, 374 F.3d
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`at 802. If the plaintiff meets that burden, “the burden then shifts to the defendant to ‘present
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`a compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting
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`Burger King, 471 U.S. at 476–78).
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`Case 3:18-cv-00537-JLS-MSB Document 37 Filed 03/04/19 PageID.1627 Page 11 of 29
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`1.
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`Purposeful Direction and Purposeful Availment
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`“Purposeful direction” and “purposeful availment” are two different concepts.
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`Ziegler v. Indian River Cnty., 64 F.3d 470, 473 (9th Cir. 1995). “A purposeful availment
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`analysis is most often used in suits sounding in contract” and “typically consists of
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`evidence of the defendant’s actions in the forum, such as executing or performing a contract
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`there.” Schwarzenegger, 374 F.3d at 802. “A purposeful direction analysis, on the other
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`hand, is most often used in suits sounding in tort” and “usually consists of evidence of the
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`defendant’s actions outside the forum state that are directed at the forum, such as the
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`distribution in the forum state of goods originating elsewhere.” Id. at 802–03.
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`a.
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`Purposeful Direction
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`The purposeful direction test applies only to intentional torts, not negligence claims.
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`Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007); cf
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`Hernandez v. City of Beaumont, No. EDCV 13-00967 DDP (DTBx), 2014 WL 6943881,
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`at *3 (C.D. Cal. Dec. 8, 2014) (applying the purposeful availment test because the
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`plaintiff’s claims were based on negligence and products liability). A court may apply both
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`tests when the plaintiff asserts multiple claims. See Picot v. Weston, 780 F.3d 1206, 1212
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`(9th Cir. 2015).
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`Plaintiffs bring claims against TEPCO under negligence, 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. See generally Compl. While both Parties make arguments
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`regarding both the purposeful availment and the purposeful direction tests, here––just as
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`this Court noted in Bartel I––it is “unclear if Plaintiffs allege[d] any intentional torts against
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`TEPCO.”3 Bartel I, 2018 WL 312701, at *4. Plaintiffs have not addressed that ambiguity
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`3 One reason for the uncertainty the Court noted was that Plaintiffs checked the “Other Personal Injury”
`box in the “Torts” section in their Civil Cover Sheet when alleging the nature of their suit. Bartel I, 2018
`WL 312701, at *4. In Bartel II, Plaintiffs did not check this box, instead checking only the product liability
`box. ECF No. 1-1. This is not sufficient to conclusively determine the claims Plaintiffs bring, but it is
`indicative that Plaintiff do not raise intentional torts here, despite their many allegations of intentional
`conduct. See generally Compl.
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`Case 3:18-cv-00537-JLS-MSB Document 37 Filed 03/04/19 PageID.1628 Page 12 of 29
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`in the Bartel II complaint. Based on the claims brought forward by Plaintiffs, and without
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`more than the allegations of intentional conduct, the Court is satisfied that Plaintiffs have
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`not raised any intentional torts and therefore only the purposeful availment test applies.
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`Even if Plaintiffs did in fact raise intentional tort claims, under the purposeful
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`direction test the Court would find that TEPCO did not purposefully direct its activities at
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`California. Plaintiffs have failed to raise any new arguments or facts from those raised in
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`Bartel I concerning purposeful direction. See generally Opp’n to TEPCO MTD; Bartel I,
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`2018 WL 312701, at *4–6. Consequently, the Court finds no reason to depart from its
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`holding in Bartel I that the purposeful direction test is not satisfied.
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`b.
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`Purposeful Availment
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`A defendant purposefully avails itself of a forum state when that defendant
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`“perform[s] some type of affirmative conduct which allows or promotes the transaction of
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`business within the forum state.” Sinatra v. Nat’l. Enquirer, Inc., 854 F.2d 1191, 1195 (9th
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`Cir. 1988). The defendant “submits to the judicial power of an otherwise foreign sovereign
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`to the extent that power is exercised in connection with the defendant’s activities touching
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`on the State.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011).
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`Plaintiffs point to two contacts as evidence of purposeful availment.4 First, Plaintiffs
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`allege TEPCO availed itself of California because it registered to do business in California
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`in 2003. Opp’n to TEPCO MTD 30. In its Statement of Designation filed in 2003, TEPCO
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`stated its business purposes were, among others, the “business of supply of electricity[;]”
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` Additionally, Plaintiffs point to several other of TEPCO’s business relationships, including: TEPCO’s
`forty percent ownership of Eurus Energy America Corporation, a corporation that, according to Plaintiffs,
`has its principle place of business in San Diego, California, Opp’n to TEPCO MTD 30-31; TEPCO’s
`2017 partnership with Energy Impact Partners, a California-based private equity firm, id.; and TEPCO’s
`2016 partnership with Energy Excelerator, a Hawaii and Palo Alto-based nonprofit company, id. “Only
`contacts occurring prior to the event causing the litigation may be considered” in evaluating the
`defendant’s contacts with the state. Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d
`911, 913 (9th Cir. 1990). Plaintiffs do not allege what date the Eurus ownership began, but the Opposition
`indicates it occurred after the FNPP meltdown occurred in March 2011. Thus, all of the TEPCO
`partnerships that Plaintiffs point to occurred after the date of the event at issue in this litigation and have
`no bearing on the personal jurisdiction issue here.
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`Case 3:18-cv-00537-JLS-MSB Document 37 Filed 03/04/19 PageID.1629 Page 13 of 29
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`the “manufacture and sale of electronic apparatus and machines[;]” and the “development,
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`exploitation processing, purchase and sale, and transport of energy resources.” ECF No.
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`24-1 at 4. TEPCO surrendered its business license in 2006. Opp’n to TEPCO MTD at 30.
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`TEPCO’s three-year incorporation in California from 2003 to 2006 is contact with the state
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`which promotes business within the state. This contact is sufficient to meet the purposeful
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`availment requirement. See Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (the
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`“purposeful availment” requirement is satisfied if the defendant “has taken deliberate
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`action within the forum state”).
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`Second, Plaintiffs allege that TEPCO’s business relationship with GE constitutes
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`purposeful availment. Opp’n to TEPCO MTD at 29–30. GE Nuclear Energy, which is the
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`unit of GE that designed the reactor at FNPP, was headquartered in San Jose, California,
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`until 2005. Id.; Compl. ¶ 225. Plaintiffs allege that TEPCO and GE’s relationship was
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`substantial, including contracts for the design, construction, and maintenance of the FNPP
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`by GE. Id.; Compl. ¶ 226. Plaintiffs do not give any details, however, about where the
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`parties negotiated and signed the alleged contracts.
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`Sufficient contacts can occur without physical presence in forum state, see Burger
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`King, 471 U.S. at 476, but nothing regarding the relationship between GE and TEPCO
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`shows that TEPCO reached out to the forum and “invoked the benefits and protections of
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`[California’s] laws.” Id. at 475. The relationship did not create an ongoing relationship in
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`California; instead, according to Plaintiffs, it created an ongoing relationship for
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`obligations in Japan. See Compl. ¶¶ 223–228 (noting the contract called for ongoing
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`mainte

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