Rocky Bixby v. Kbr, Inc. , 603 F. App'x 605 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 14 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCKY BIXBY; LAWRENCE No. 13-35513
ROBERTA; RONALD BJERKLUND;
CHARLES ELLIS; MATTHEW D.C. No. 3:09-cv-00632-PK
HADLEY; COLT CAMPREDON; VITO
PACHECO; BRIAN HEDIN; CHARLES
SEAMON; AARON ST. CLAIR; BYRON MEMORANDUM*
GREER; JASON ARNOLD,
Plaintiffs - Appellees,
v.
KBR, INC.; KELLOGG, BROWN &
ROOT SERVICE, INC.,
Defendants - Appellants.
ROCKY BIXBY; LAWRENCE No. 13-35518
ROBERTA; RONALD BJERKLUND;
CHARLES ELLIS; MATTHEW D.C. No. 3:09-cv-00632-PK
HADLEY; COLT CAMPREDON; VITO
PACHECO; BRIAN HEDIN; CHARLES
SEAMON; AARON ST. CLAIR; BYRON
GREER; JASON ARNOLD,
Plaintiffs - Appellants,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
KBR, INC.; KELLOGG, BROWN &
ROOT SERVICE, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak II, Magistrate Judge, Presiding
Argued and Submitted May 4, 2015
Portland, Oregon
Before: W. FLETCHER and HURWITZ, Circuit Judges, and WALTER,** Senior
District Judge.
Several dozen members of the Oregon National Guard brought suit against
military contractor KBR, Inc., and its subsidiaries, alleging fraud and negligence
arising out of the operation of a water treatment plant at Qarmat Ali, in Iraq.
Because the parties are familiar with the facts, we set them out only briefly in this
disposition. After a bellwether trial, a jury unanimously found that the defendants
had not committed fraud, but had been negligent, and awarded over $80 million in
damages. The defendants appeal the verdict and the damages award, and the
**
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
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plaintiffs cross-appeal. We have jurisdiction under 28 U.S.C. § 1291. We reverse
and remand for further proceedings.
We address only one issue on appeal: whether the defendants are subject to
personal jurisdiction in Oregon in light of Walden v. Fiore, 134 S. Ct. 1115 (2014).
We conclude that they are not. The district court found the exercise of specific
jurisdiction over defendants appropriate under Calder v. Jones, 465 U.S. 783(1984). Under Calder, we have held, “the defendant allegedly must have (1)
committed an intentional act, (2) expressly aimed at the forum state, (3) causing
harm that the defendant knows is likely to be suffered in the forum state.” Yahoo!
Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206 (9th
Cir. 2006) (en banc) (internal quotation marks omitted). The district court
reasoned that the defendants had “expressly aimed” their conduct at Oregon
because they “knew the persons to whom they intentionally directed their
misrepresentations and failures to disclose were soldiers of the Oregon National
Guard.” Walden, which was decided while this case was pending on appeal, makes
clear that the personal jurisdiction analysis “looks to the defendant’s contacts with
the forum State itself, not the defendant’s contacts with persons who reside there.”
134 S. Ct. at 1122 (emphasis added). After Walden, it is clear that “the plaintiff
cannot be the only link between the defendant and the forum.” Id. Because the
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district court expressly found that the plaintiffs are the only link between KBR and
Oregon, we hold that the defendants are not subject to personal jurisdiction in
Oregon for their actions in Iraq.
We vacate the judgment and remand for proceedings consistent with this
disposition. We note that defendants’ counsel stated at oral argument that the
statute of limitations would continue to run only up to the date of filing the action
now before us, whether the case is dismissed and then re-filed in an appropriate
forum, or is transferred to an appropriate forum under 28 U.S.C. § 1406. Under
that assumption, we take no position on the appropriate remedy on remand.
REVERSED and REMANDED. The defendants’ motion for summary
reversal is DENIED as moot.
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