Lindsay Cooper v. Tokyo Elec. Power Co. Holdings ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDSAY R. COOPER; JAMES R. No. 19-55295
SUTTON; KIM GIESEKING; CHARLES
A. YARRIS; ROBERT M. MILLER; D.C. No.
CHRISTOPHER G. BITTNER; ERIC 3:12-cv-03032-
MEMBRILA; JUDY GOODWIN; JLS-MSB
JENNIFER L. MICKE; JOHN W.
SEELBACH; MAURICE D. ENIS; JAIME
L. PLYM; NATHAN J. PIEKUTOWSKI; OPINION
CAROLYN A. WHITE; LOUIE
VIERNES; MICHAEL L. SEBOURN;
K.S., an infant by his father and
natural guardian Michael L.
Sebourn; CHRISTIAN M. EBUENG;
PAUL J. ENCINIAS; DANIEL E. HAIR;
ADAM W. KRUTZLER; DAVID K.
MALONE; ROBERT SELIGMAN; ELOI
A. WHITEMAN; JASON D. HENRY;
NELLIE ALLEN-LOGAN; JAMI
BESCHORNER; NATHAN CANCHE;
NATHAN CRISWELL; JASON TROY
FRIEL; OSCAR GONZALEZ; DAVID
HAHN; JAMES JACKSON; JARRETT
BRADY JOHNSTON; JONATHAN
MEDINA; ADAM MINTZ; MALLORY
K. MORROW; WILLIAM NETHERTON;
MICHELLE ODEN; DONALD RAIRIGH;
CHRISTOPHER RICKARD; ANDREW
RIVERA; STEVEN RAY SIMMONS;
AKEEM SMITH; JUSTIN SPENCER;
2 COOPER V. TOKYO ELEC. POWER CO.
ALAN SPURLING; ANGEL TORRES;
ANTHONY GARCIA; JASMINE ALLEN;
RHONDA ANBERT; SUSAN ASH;
ADAM ARMENTA; JINKY M.A.,
individually and as the
Administrator of the Estate of
Charliemagne T.A.; J.C.A., a minor
by his mother as guardian ad litem
Jinky M.A.; J.A., a minor by his
mother as guardian ad litem Jinky
M.A.; DANA AUSTIN; RENAR AWA;
JOSH BANE; ARAMIS BARRIOS;
TREVOR BECK; MARKUS BEGAY;
JORDAN BENOIT; JORDAN
BETTENCOURT; BRETT A. BINGHAM;
GUNNAR BORTHICK; KENNETH CLEO
BOSWELL; JAMES P. BOWEN;
MATTHEW BRADLEY; NICOLAS
BREWTON; NICOLAUS BROOKS;
RYAN S. BROWN; CASEY
BRUCKLACHER; REBECCA BRUNET;
GERARDO BRUING; ROBIN
CALCATERRA; ROBBY CANLAS;
CARLISI; COURTNEY CARMICHAEL;
MATTHEW CARTWRIGHT; WAYNE
CASSAR; FABIAN CERVANTES;
MELVIN A. CHAMBERLAIN;
TERANCE CHAPMAN; WILLIAM
CHAPMAN, JR.; ANNMARIE
CHESSARI; DAVID CHITWOOD;
GEORGE COBB; LORI LYNN CODY;
KEONDICE W. COOK; ANGELA
CRABTREE; CHAD CROFT; BRIAN
COOPER V. TOKYO ELEC. POWER CO. 3
CROSS; NICOLAS CROUCH; THOMAS
CULBERSON; VICENT CURCI; HONDA
DAGAN; JAMES DARNELL; JANELLE
DARNELL; JASON DASILVA; JOHN
DAVIS; MARK DECASA; NICHOLE M.
DECATUR; MARTIN DELGARDILLO;
TINA DIBERNARDO; BRANDON
DOCKERY; J. D., a minor by his
father as guardian ad litem Jeremy
D.; JEREMY D.; CHRISTIAN DOERR;
IAN W. DOVE; JESSE DUNN;
CHRISTINA DUVALL; CHRISTIAN JOY
NAGUI EBUENG; ANGEL ESCRIBANO;
SETH ESLIN; NICHOLAS J. FELLER;
KYLE E. FELT; TERI FORZA; JOEL
FUDGE; PAUL GABBY; SHANE
GALLAGHER; ZACH GARNER; JOHN
OLIVER GOOCH IV; KATE GRACE;
JENNIFER GUANA; M. H., a minor by
Allison D. Eyring her mother as
guardian ad litem; ANDREW HAJNY;
ROBERT HAREWOOD; DANIEL
PATRICK HARREN; JOSHUA
HARRIGAN; CHAD HARRIS; ROBERT
C. HARTAGE; TIFFANY HARTMAN;
NICHOLAS HELMSTADT; ASHTON
HEMPHILL; ERIN HERRING; CORA E.
HILL; CHAD HOLT; NEIL HOPKINS;
DYLAN IMGRAM; NICK INCA;
JEDIDIAH IRONS; GERARDO IRVING;
BLAKE ISAACS; THE ESTATE OF
THEODORE H., by Manuel Leslie as
the administrator of the estate of
4 COOPER V. TOKYO ELEC. POWER CO.
Theodore H; JOANNA ILOILO;
DARIUS JACKSON; JESSICA JACKSON;
CHRISTIAN A. JESSUP; WILLIAM
JONES; WINSTON JONES; LEON
JULIAN; CHARLES D. KAISER;
DANIEL KREGSTEIN; ZACKARY
KUBE; SHANE M. LANGNES; DANIEL
LAWVIER; ROBERT LEHRMAN;
JULIAN LEON; MARY LOKKA;
NICOLE LOOK FANG; ALYSSA LOPEZ;
ZACKERY LOUVERS; CHRISTOPHER
LOWE; ALEJANDRO LUSK; CORA
MAE; BILLY MARKHAM; ALEX
MATIN; ALFRED MCALLISTER;
DIANNA MCCANTS; THOMAS
MCCANTS; CHENEIL MCCARTER;
TYLER MCDONALD; PETINA
MCINTOSH; RYAN MENENDEZ;
MICHAEL MESIGH; SAMY MOHANIE;
JOEL MONSALUD; LETICIA
MORALES; KEVIN MORRIS; COLIN
MORRISON; TIMOTHY MUIS; JON
NEUMANN; MARK NEWMAN; DANIEL
OLSEN, Officer; CHAD YARBROUGH;
ANTHONY J. YOVANOVIC;
JONATHAN ZAVITZ; WILLIAM
ZELLER; MICHAEL ZITELLA; MIKE
TISOY ORMAN; CHRISTOPHER
PETERSON; MATTHEW PETERSON;
ALYSSA PETTERWAY; KEITH
POTTRATZ; DANIEL PRETTO; ASHLEY
RAMIREZ; TYLER RAY RANDRUP;
SUSAN RODRIQUEZ; BRANDEN
COOPER V. TOKYO ELEC. POWER CO. 5
RUCKER; W. RUSHBY; ERICA RYAN;
DAVID SANCHEZ; DANE SANTO;
DAISY M. SARSLOW; ROBERT
SEELIGMAN; BENITO G. SERENTAS,
JR.; KELLI SERIO; CHRISTOPHER
SHAMRELL; MICHAEL B. SHANNON;
RYAN SIVELS; JOSHUA C. SMILEY;
BRANDON SMITH; FRANCES FISTER
STOGA; BYRON SY; KELLY
TANNEHILL; NIGEL THOMPSON;
CHAD THORTON; MICHAEL TIMKO;
PATRICIA TOTEMEIER; JAMES TRICE;
DARREL USRY; MARK VALDEZ;
OSVALDO VERA; KAILEE VICTRUM;
ANDREW VODOPIJA; ANDREW
VROOMAN; SKYLER STEVEN
WARNOCK; TAWNY WATSON;
TIMOTHY J. WENDAL; IAN LEE
WHEATON; TIM WHITE; EDWARD
JOSEPH WICKLE; PATRICK WIGHT;
KRISTIAN WILLIAM; TIM WOELKY;
JUSTIN WOMMACK; RONALD
WRIGHT; KIOCHI YAMAZAKI; A. G.,
an infant by her mother and natural
guardian Kim Gieseking,
Plaintiffs-Appellants,
6 COOPER V. TOKYO ELEC. POWER CO.
v.
TOKYO ELECTRIC POWER COMPANY
HOLDINGS, INC., AKA TEPCO;
GENERAL ELECTRIC COMPANY;
DOES, 1–200, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted March 10, 2020
Pasadena, California
Filed May 22, 2020
Before: A. Wallace Tashima, Kim McLane Wardlaw,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
COOPER V. TOKYO ELEC. POWER CO. 7
SUMMARY*
International Comity / Choice-of-Law
The panel affirmed the district court’s dismissals of
claims brought in California by United States
servicemembers against Tokyo Electric Power Company
(“TEPCO”) and General Electric Company (“GE”), alleging
they were exposed to radiation from the Fukushima Daiichi
Nuclear Power Plant.
The Japanese Act on Compensation for Nuclear Damage
provides that the operator of a nuclear power plant is strictly
liable for any damage caused by the operation of the power
plant but no other person shall be liable.
GE argued that Japanese law should apply, and that under
Japanese law only the plant operator, TEPCO, could be liable
for injuries resulting from the power plant’s failure. The
panel held that Japan’s Compensation Act was a liability-
limiting statute with outcome-determinative implications, and
was substantive for Erie purposes, and subject to a choice-of-
law analysis. The panel also held that the district court did not
err by conducting a choice-of-law analysis at the motion-to-
dismiss stage of the litigation.
The panel applied California’s three-step “governmental
interest” test in deciding the choice-of-law questions. First,
the panel held that the laws of California and Japan differed
because under Japanese law, the Compensation Act would
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
8 COOPER V. TOKYO ELEC. POWER CO.
limit liability to TEPCO and require dismissal of all claims
against GE; but under California law, GE, as manufacturer,
would be strictly liable for design defects. Second, the panel
held that both jurisdictions had a legitimate interest. In
addition, the panel concluded, as did the district court, that
there was a “true conflict” where California had an interest in
holding manufacturers of defective products liable in tort to
insure compensation for its residents, while Japan had an
interest in consistent application of its liability-limiting
statute to businesses participating in its nuclear industry.
Third, the panel held that Japan’s interests would be more
impaired if its law were not applied. Because there was no
dispute on appeal that application of Japanese law required
dismissal of all claims against GE, the panel affirmed the
dismissal of those claims with prejudice.
TEPCO argued for dismissal on international-comity
grounds. Plaintiffs raised the same challenges to the choice-
of-law analysis for TEPCO’s claims. The panel held that for
the reasons previously stated, the choice-of-law analysis was
not premature or inappropriate at this stage. As to the merits
of the choice-of-law analysis, the district court correctly
found that Japanese law applied to the plaintiffs’ claims
against TEPCO.
The panel proceeded to the question of whether, given
that Japanese law must apply to the proceedings in the
Southern District of California, the district court abused its
discretion in dismissing the case on international comity
grounds. In deciding whether the doctrine of adjudicative
comity applied, courts weigh several factors. The panel held
that it was not an abuse of discretion for the district court to
take the applicability of Japanese law into consideration. The
panel also held that the district court did not abuse its
COOPER V. TOKYO ELEC. POWER CO. 9
discretion in considering Japan’s strong interests in the case
being litigated in Japan. The panel concluded that the district
court did not abuse its discretion when it dismissed the claims
against TEPCO on international comity grounds.
COUNSEL
A. Cabral Bonner (argued) and Charles A. Bonner, Law
Offices of Bonner & Bonner, Sausalito, California; John R.
Edwards (argued) and Catharine E. Edwards, Edwards Kirby
LLP, Raleigh, North Carolina; Paul C. Garner, Rancho
Mirage, California; for Plaintiffs-Appellants.
Mark R. Yohalem (argued) and Gregory P. Stone, Munger
Tolles & Olson LLP, Los Angeles, California, for Defendant-
Appellee Tokyo Electric Power Company Holdings, Inc.
David J. Weiner (argued) and Sally L. Pei, Arnold & Porter
Kaye Scholer LLP, Washington, D.C.; Michael D. Schissel,
Arnold & Porter Kaye Scholer LLP, New York, New York;
for Defendant-Appellee General Electric Company.
OPINION
BYBEE, Circuit Judge:
In the aftermath of a massive earthquake and tsunami in
Japan, the Fukushima Daiichi Nuclear Power Plant (FNPP)
was damaged. Hundreds of United States servicemembers,
deployed to provide relief to the victims, allege that they were
exposed to radiation from the FNPP. The plaintiffs,
servicemembers and their families, brought suit in California
10 COOPER V. TOKYO ELEC. POWER CO.
for negligence and strict products liability against Tokyo
Electric Power Company (TEPCO), the power plant’s owner
and operator, and General Electric Company (GE), the
manufacturer of the plant’s boiling water reactors.
This is the second time we have heard an appeal in this
case. In 2017, we affirmed the district court’s denial of
TEPCO’s motion to dismiss. Cooper v. Tokyo Elec. Power
Co., 860 F.3d 1193 (9th Cir. 2017) (“Cooper III”). On
remand, GE and TEPCO both moved to dismiss. GE argued
that Japanese law should apply to the case and that, under
Japanese law, only the plant operator could be liable for
injuries resulting from the power plant’s failure. TEPCO
argued for dismissal on international-comity grounds. The
district court granted both motions to dismiss. We affirm.
I. FACTS AND PROCEDURAL HISTORY
A. The Act on Compensation for Nuclear Damage
In the early 1960s, the Japanese National Diet enacted
legislation “to establish a basic system pertaining to
compensation for damages in the case where nuclear damage
has occurred in connection with the operation . . . of a nuclear
reactor” and to “provid[e] protection for injured parties and
contribut[e] to the sound development of nuclear reactor
operations.” Act on Compensation for Nuclear Damage, Act
No. 147, ch. I, art. 1 (June 17, 1961) (Compensation Act).
The Compensation Act encouraged participation in Japan’s
nuclear industry while ensuring compensation for any persons
injured through operation of nuclear power plants. Articles
3 and 4 of Chapter II of the Compensation Act provide that
the operator of a nuclear plant is strictly liable for any
damage caused by the operation of the power plant but that
COOPER V. TOKYO ELEC. POWER CO. 11
“no other person shall be liable to compensate for damages.”
Id. at ch. II, arts. 3–4. This is referred to as the “channeling
provision.”
These provisions, along with others that provide for the
creation of a national insurance pool and financial backing
from the Japanese government to fund compensation, work
to facilitate recovery for accident victims by eliminating the
need to prove fault and ensuring recovery of damages. Id.
at ch. III, arts. 6–9.
B. The 2011 Earthquake
On March 11, 2011, a 9.0-magnitude earthquake and
massive tsunami struck Japan, causing enormous and
widespread destruction.1 Some 15,000 people died. The
FNPP was damaged by the earthquake and tsunami and
released over 300 tons of contaminated water into the sea. In
response to the disaster, the United States joined in a
humanitarian relief effort known as “Operation Tomodachi.”
The day following the earthquake, the servicemember
plaintiffs arrived off the coast of Fukushima on the U.S.S.
Ronald Reagan and other vessels participating as part of the
U.S. 7th Fleet’s Reagan Strike Force.
Defendant TEPCO owns and operates the FNPP. After
the FNPP meltdown, the Japanese government provided
billions of dollars in financial support to TEPCO. It also
developed a comprehensive scheme to deal with the
thousands of claims resulting from the FNPP leak, giving
1
We have taken the facts from plaintiffs’ Third Amended Complaint.
Additional details may be found in our prior opinion. Cooper III,
860 F.3d at 1197–98.
12 COOPER V. TOKYO ELEC. POWER CO.
claimants the option to submit a claim (1) directly to TEPCO,
(2) to the newly established Nuclear Damage Claim Dispute
Resolution Center, or (3) to a Japanese court. The plaintiffs,
however, chose to sue in the Southern District of California.
Subject matter jurisdiction was asserted under the district
court’s diversity jurisdiction. 28 U.S.C. § 1332(a)(2).
C. Initial Complaints and the First Appeal
The plaintiffs’ second amended complaint (SAC) alleged
that TEPCO was negligent in operating and maintaining the
FNPP. Six months later, the plaintiffs moved to amend their
complaint to name GE and three other manufacturer
defendants, claiming they had only recently learned of their
involvement. Shortly thereafter, the district court granted in
part TEPCO’s motion to dismiss the SAC. It found that the
plaintiffs’ claims were not barred by the political-question
doctrine, forum non conveniens, or the doctrine of
international comity, but granted the motion in part because
the plaintiffs failed to state claims for strict design-defect
liability and intentional infliction of emotional distress.
Cooper v. Tokyo Elec. Power Co., 2014 WL 5465347 (S.D.
Cal. Oct. 28, 2014) (Cooper I). The court granted leave to
amend, including leave to name GE and the other
manufacturers as defendants.
The plaintiffs then filed their third-amended complaint
(TAC) against TEPCO, GE, and three other named
defendants. The TAC asserts claims for negligence, strict
liability for ultrahazardous activities, res ipsa loquitur,
negligence per se, loss of consortium, and survival and
wrongful death against all defendants. The TAC also raises
strict-liability claims for manufacturing and design defects
against GE and the other named manufacturers.
COOPER V. TOKYO ELEC. POWER CO. 13
GE and TEPCO separately moved to dismiss.
Meanwhile, TEPCO moved for reconsideration of the denial
of its motion to dismiss the SAC. The district court granted
the motion for reconsideration but again denied TEPCO’s
motion to dismiss the SAC. Cooper v. Tokyo Elec. Power
Co., 166 F. Supp. 3d 1103 (S.D. Cal. 2015) (Cooper II). The
district court certified the issues for interlocutory appeal and
denied the pending motions to dismiss as moot.
On appeal, we affirmed the denial of TEPCO’s motion to
dismiss the SAC. Cooper III, 860 F.3d at 1218. We held that
none of the arguments raised in TEPCO’s appeal warranted
dismissal at that stage of the litigation, but allowed that
“[f]urther developments . . . may require the district court to
revisit some of the issues.” Id. at 1197; see also id. at 1210
n.12.
D. Proceedings on Remand
After remand from Cooper III, and in light of a ruling in
a parallel case filed by the same plaintiffs’ counsel raising
similar issues, the district court relieved the defendants of the
requirement to respond to the TAC and allowed the plaintiffs
to file a fourth-amended complaint. The plaintiffs informed
the court they would not do so, leaving the TAC as the
operative complaint in this case.
GE and TEPCO filed new motions to dismiss the TAC.
GE argued that it could not be held liable because, under
California’s choice-of-law rules, Japan’s Compensation Act
applied and channeled all liability to TEPCO as the FNPP’s
14 COOPER V. TOKYO ELEC. POWER CO.
operator.2 TEPCO argued that the court lacked personal
jurisdiction, and that, even if the court had jurisdiction over
it, the doctrine of international comity required dismissal.3
The district court granted both motions. As to GE, the
district court first concluded that it had subject-matter
jurisdiction over the suit. The court then, over the plaintiffs’
objection, conducted a choice-of-law analysis. It determined
that Japanese law governed with respect to third-party
liability and, under that law, GE could not be held liable. As
to TEPCO, the district court concluded that TEPCO had
waived the personal-jurisdiction defense because it had not
raised the issue in previous Rule 12 motions and there was no
intervening change in the law that affected TEPCO’s ability
to raise the defense. But the district court ultimately
dismissed the claims against TEPCO without prejudice on
international-comity grounds.
II. ANALYSIS
The plaintiffs appealed the district court’s ruling on both
GE’s and TEPCO’s motions to dismiss. We begin with GE’s
motion to dismiss before discussing TEPCO’s.
2
GE also argued that the TAC presented a political question, the
claims were time-barred, the complaint should be dismissed under forum
non conveniens, and the doctrine of international comity required
dismissal. The district court did not reach these arguments.
3
TEPCO also revived its forum non conveniens argument before the
district court, but the district court did not reach it.
COOPER V. TOKYO ELEC. POWER CO. 15
A. GE
The district court, after concluding under California’s
choice-of-law rules that Japanese law applied, dismissed all
claims against GE with prejudice. Plaintiffs do not dispute
that if Japan’s Compensation Act applies, their claims must
be dismissed because TEPCO, as the operator, is exclusively
liable under the channeling provision for any damages.
Instead, they raise three challenges to the district court’s
choice-of-law ruling: first, that the channeling provision in
the Compensation Act is procedural, not substantive, and
therefore not subject to a choice-of-law analysis; second, that
it was premature to decide choice-of-law questions at this
stage of litigation; and, third, that the district court’s analysis
was wrong and California’s strict products liability law
should apply to the plaintiffs’ claims against GE. We review
choice-of-law questions de novo, but review underlying
factual findings for clear error. Daewoo Elecs. Am., Inc. v.
Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017). We apply
California’s choice-of-law rules to this claim. See Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
1. Procedural Versus Substantive
A federal district court sitting in diversity jurisdiction,
28 U.S.C. § 1332, applies substantive state or foreign law.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). “The nub
of the policy that underlies [Erie] is that for the same
transaction the accident of a suit by a non-resident litigant in
a federal court instead of in a State court a block away,
should not lead to a substantially different result.” Guar. Tr.
Co. of N.Y. v. York, 326 U.S. 99, 109 (1945); see Van Dusen
v. Barrack, 376 U.S. 612, 639 (1964) (a “change of
courtrooms” should not lead to a change in the law applied to
16 COOPER V. TOKYO ELEC. POWER CO.
the parties). Accordingly, a federal district court will apply
its own rules of procedure, but state or foreign substantive
law. See, e.g., Abogados v. AT&T, Inc., 223 F.3d 932, 935
(9th Cir. 2000).
Unfortunately, “[c]lassification of a law as ‘substantive’
or ‘procedural’ for Erie purposes is sometimes a challenging
endeavor.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S.
415, 427 (1996). “In determining whether a state law is
substantive or procedural, we ask whether the law is outcome
determinative,” that is, whether not applying the law would
significantly affect the result of the litigation. Cuprite Mine
Partners LLC v. Anderson, 809 F.3d 548, 555 (9th Cir. 2015).
We have explained that “[a] substantive rule is one that
creates rights or obligations” while a procedural rule “defines
a form and mode of enforcing the substantive right or
obligation.” County of Orange v. U.S. District Court (In re
County of Orange), 784 F.3d 520, 527 (9th Cir. 2015)
(internal quotation marks omitted). Our inquiry is “guided by
‘the twin aims of the Erie rule: discouragement of forum-
shopping and avoidance of inequitable administration of the
laws.’” Cuprite Mine, 809 F.3d at 555 (quoting Gasperini,
518 U.S. at 428). It is important to the fair administration of
law that “‘the outcome of the litigation in the federal court
should be substantially the same, so far as legal rules
determine the outcome of a litigation, as it would be if tried
in a State court.’” Gasperini, 518 U.S. at 427 (quoting Guar.
Tr., 326 U.S. at 109). The same logic applies when a foreign,
rather than state, forum is at issue.
The plaintiffs argue that the district court should not have
conducted a choice-of-law analysis at all because the
channeling provision in the Compensation Act is procedural
and not substantive. According to the plaintiffs, the provision
COOPER V. TOKYO ELEC. POWER CO. 17
effectively “strips a court of jurisdiction” over claims against
anyone other than an operator of a nuclear plant. But the
plaintiffs do not explain how that is the case. While it is a
well-established principle that jurisdictional rules are not
substantive, see McGee v. Int’l Life Ins. Co., 355 U.S. 220,
224 (1957), the plaintiffs make no meaningful argument
about how the channeling provision is jurisdictional. The
channeling provision makes no reference to jurisdiction or,
indeed, to any court.4 It simply provides that only the
operator of a nuclear reactor will be liable for any damages
caused by the operation of the facility. That is not a
jurisdictional provision. See Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154, 160–61 (2010).
The channeling provision is much more akin to state
statutes that limit liability for certain injuries. If
“[j]urisdiction is the power to declare law,” Ex parte
McCardle, 74 U.S. (7 Wall.) 506, 514 (1869), the channeling
provision is the law itself, not an assignment of the power to
declare it. Importantly, California courts have routinely
treated such liability-limiting provisions as substantive law
and applied them under California’s choice-of-law rules. See,
e.g., Offshore Rental Co. v. Cont’l Oil Co., 583 P.2d 721, 729
(Cal. 1978) (applying Louisiana law foreclosing employer’s
cause of action for negligent injury to key employee); Castro
v. Budget Rent-A-Car Sys., Inc., 65 Cal. Rptr. 3d 430, 444
(Ct. App. 2007) (applying Alabama law precluding liability
against vehicle owner for negligence of a permissive user).
4
Under Japanese procedures put in place after the disaster, claims
may be filed, but do not have to be filed, in a Japanese court. They may
also be filed with TEPCO directly or with the Nuclear Damage Claim
Dispute Resolution Center, created after the FNPP incident.
18 COOPER V. TOKYO ELEC. POWER CO.
Moreover, application of the channeling provision ends
the case as to GE’s liability, making the provision, as the
plaintiffs concede, outcome-determinative. This weighs
heavily in favor of finding that the provision is substantive
rather than procedural. See Gasperini, 518 U.S. at 427–28.
A liability-limiting statute with such outcome-determinative
implications is substantive and subject to a choice-of-law
analysis.
2. Propriety of Choice-of-Law Analysis at the Motion-
to-Dismiss Stage
The plaintiffs next contend that the district court erred by
conducting a choice-of-law analysis at this stage of the
litigation. They argue that they needed additional time and
discovery to fully develop the arguments and factual issues
related to the choice-of-law analysis. The district court
rejected this argument, finding that it was appropriate to
analyze choice-of-law at this stage because the issue was
fully briefed and discovery would not affect the analysis.
The plaintiffs argue that a choice-of-law determination
“requires a level of factual development and detailed legal
briefing that was not and is not present in” this case at this
time. But the plaintiffs cite no principle to support the
argument that a court cannot decide choice-of-law issues in
a motion to dismiss. And although some district courts
reserve ruling on the issue until later in the litigation, the
district court here had all the argument and facts necessary to
make its decision.
As to the contention that additional legal briefing was
necessary, choice of law was one of the primary issues
presented to the district court in the motion to dismiss. It was
COOPER V. TOKYO ELEC. POWER CO. 19
fully briefed by both parties, and the district court was able to
engage in a complete analysis. This is unlike some of the
cases the plaintiffs cited, in which the parties had provided
little or no briefing when asking the district court to decide
the choice-of-law question. See, e.g., Dean v. Colgate-
Palmolive Co., 2015 WL 3999313, at *11 (C.D. Cal. June 17,
2015) (no analysis at all); Czuchaj v. Conair Corp., 2014 WL
1664235, at *9 (S.D. Cal. Apr. 18, 2014) (one page); Brazil
v. Dole Food Co., 2013 WL 5312418, at *11 (N.D. Cal.
Sept. 23, 2013) (no analysis at all).
We are also not persuaded that the district court needed a
more expansive factual record to decide the choice-of-law
issue. The plaintiffs first argue that the terms of the contract
between GE and TEPCO, particularly its choice-of-law or
venue provisions, could influence the analysis. But those
provisions have no bearing on tort claims filed by third
parties, like the plaintiffs. Sutter Home Winery, Inc. v.
Vintage Selections, Ltd., 971 F.2d 401, 407 (9th Cir. 1992)
(“Claims arising in tort are not ordinarily controlled by a
contractual choice of law provision.”); see also Paracor Fin.,
Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1165 (9th Cir.
1996) (finding third parties cannot be bound by a choice-of-
law provision in a contract in which they had no interest).
The plaintiffs also contend that discovery could shed light on
information about the operational responsibilities of GE and
TEPCO, as well as TEPCO’s knowledge about the incoming
U.S. naval ships. But the plaintiffs offer no explanation about
why this information would be important to the analysis of
whether California or Japan has a greater interest in the
application of its substantive laws to the claims against GE.
That information could be important to determining GE’s
ultimate liability, but it has no bearing on the choice-of-law
analysis.
20 COOPER V. TOKYO ELEC. POWER CO.
The district court did not err in proceeding with the full
choice-of-law analysis.
3. Choice of Law
The final question is whether the district court erred when
it decided that the laws of Japan, not California, govern
plaintiffs’ claims against GE. California courts decide
choice-of-law questions by means of the “governmental
interest” test, which proceeds in three steps. Offshore Rental,
583 P.2d at 723. First, the court must determine whether the
substantive laws of California and the foreign jurisdiction
differ on the issue before it. McGhee v. Arabian Am. Oil Co.,
871 F.2d 1412, 1422 (9th Cir. 1989). Second, if the laws do
differ, then the court must determine what interest, if any, the
competing jurisdictions have in the application of their
respective laws. Id. “If only one jurisdiction has a legitimate
interest in the application of its rule of decision, there is a
‘false conflict’ and the law of the interested jurisdiction is
applied.” Id. But 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.” Id. This third step requires
the court to “identify and apply ‘the law of the state whose
interest would be the more impaired if its law were not
applied.’” Id. (quoting Offshore Rental, 583 P.2d at 726).
a. The Laws Differ
The parties agree that the laws of California and Japan
differ. Under Japanese law, the Compensation Act would
apply and channel liability for nuclear damage exclusively to
the licensed operator of the nuclear installation—here,
TEPCO. If Japanese law applies, it requires dismissal of all
COOPER V. TOKYO ELEC. POWER CO. 21
claims against GE. Under California law, on the other hand,
a manufacturer such as GE is strictly liable if its product is
defectively manufactured, defectively designed, or distributed
without adequate instructions or warnings. See Hufft v.
Horowitz, 5 Cal. Rptr. 2d 377, 379 (Ct. App. 1992). If
California law applies and the plaintiffs prove that GE
defectively manufactured or designed the reactor, GE would
be strictly liable. See id.
b. Both Jurisdictions Have a Legitimate Interest
We must next determine what interest, if any, Japan and
California have in the application of their respective laws to
this case. Offshore Rental, 583 P.2d at 724–25. Only if each
jurisdiction involved has a legitimate but conflicting interest
in applying its own law will there be a “true conflict,”
requiring us to move on to step three of the analysis. Id.
at 725–26. The plaintiffs agree that there is a true conflict,
but contend that Japan’s interests are not “strong.” GE argues
that there is no true conflict because, while Japan has
substantial, legitimate interests in applying its laws,
California’s interests are “minimal at best.” It asserts that the
plaintiffs’ claims directly implicate conduct that occurred in
Japan and is subject to a Japanese liability-limiting statute,
giving Japan strong legitimate interests in having its law
applied. In contrast, GE contends that California’s only
interest is in ensuring compensation for California-resident
victims, which would be equally served under Japanese law.
At this point in the analysis, our only consideration is
whether each jurisdiction has legitimate interests in seeing its
own law applied in this case and whether those interests
conflict. Weighing the strength of California’s interests
22 COOPER V. TOKYO ELEC. POWER CO.
against Japan’s occurs at the third step, which we need only
reach if there is a true conflict.
(1) Japan’s Interests. The parties generally agree that
Japan has legitimate interests in having its law applied to this
case. These interests are: (1) adjudicating claims arising from
a natural disaster that occurred in Japan, (2) adjudicating
claims arising from injuries that occurred in Japan, and
(3) providing consistent allocation of liability for nuclear
disasters under the Compensation Act. The final interest is of
particular importance. As the California Supreme Court has
stated:
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,
we believe that 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.
McCann v. Foster Wheeler LLC, 225 P.3d 516, 530 (Cal.
2010). Here, Japan’s Compensation Act limits liability for
participants in its nuclear industry, in part as an incentive for
businesses to participate. This is a “real and legitimate
interest” in having Japanese law apply to the case. Id.
at 531–32.
(2) California’s Interest. California law holds
manufacturers strictly liable for products defectively
COOPER V. TOKYO ELEC. POWER CO. 23
manufactured or designed. Hufft, 5 Cal. Rptr. 2d at 379.
California courts have described the state’s interest
underlying this law:
[It] is to [e]nsure 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
allocation of resources towards safer products;
and (4) to spread the risk of loss among all
who use the product.
Barrett v. Superior Court, 272 Cal. Rptr. 304, 309 (Ct. App.
1990) (internal quotation marks and citations omitted). These
interests are certainly legitimate.
GE, however, contends that these interests are
insignificant in this case, arguing that the plaintiffs “cannot
manufacture a true conflict by invoking irrelevant policies
and interests.” It argues that policies underlying California’s
strict-products-liability law “are immaterial here because
there are no ‘products’ at issue.” But that is not the case.
While it is true that the district court previously commented
that “[t]he FNPP was evidently not a product ‘placed on the
market,’” Cooper II, 166 F. Supp. 3d at 1129, the claims
against GE do not arise out of the FNPP as a single entity.
24 COOPER V. TOKYO ELEC. POWER CO.
GE manufactured particular parts of the Fukushima Daiichi
facility—the reactors. The fact that reactors were not
marketed broadly to consumers does not detract from the fact
that they were designed and built for the FNPP. That is
sufficient, in a proper case, to be subject to California’s
products liability rules. See Rawlings v. D.M. Oliver, Inc.,
159 Cal. Rptr. 119, 122 (Ct. App. 1979) (holding that the fact
that a product was not mass produced has no effect on the
manufacturer’s responsibilities in manufacturing and selling
products).
Although there are no California defendants in this case,
there are plaintiffs who are California residents. And
California has a legitimate interest in ensuring that its injured
residents are compensated for injuries resulting from the
design and manufacture of faulty products, as well as
providing an easy way to prove liability. So, the interests
served by California’s strict-products-liability laws are also
relevant.
We conclude, as did the district court, that there is a so-
called “true conflict” here. California has an interest in
holding manufacturers of defective products liable in tort to
ensure compensation for its residents. Japan, on the other
hand, has an interest in consistent application of its liability-
limiting statute to businesses participating in its nuclear
industry. We therefore move to the final step of the analysis.
c. Japan’s Interests Would be More Impaired if Its
Law Were Not Applied
Once a true conflict is identified, we must consider the
“comparative impairment” step of the analysis, which “seeks
to determine which state’s interest would be more impaired
COOPER V. TOKYO ELEC. POWER CO. 25
if its policy were subordinated to the policy of the other
state.” Offshore Rental, 583 P.2d at 726. The conflict
“should be resolved by applying the law of the state whose
interest would be the more impaired if its law were not
applied.” Id. The purpose of this step is not for us to judge
which law is “better” or “worthier” social policy; instead, we
are “to decide—in light of the legal question at issue and the
relevant state interests at stake—which jurisdiction should be
allocated the predominating lawmaking power under the
circumstances of the present case.” McCann, 225 P.3d
at 534.
California’s courts have frequently applied foreign laws
that serve to protect businesses by limiting liability, even
when applying that law precludes recovery by injured
California residents. For example, in Offshore Rental, a
California corporation brought a claim against a Louisiana
company for the loss of services of a “key” employee who
was injured on the defendant company’s premises in
Louisiana. 583 P.2d at 729. The California Supreme Court
noted that Louisiana’s interest in applying its own law to the
case was “to protect negligent resident tort-feasors acting
within Louisiana’s borders from the financial hardships
caused by the assessment of excessive legal liability or
exaggerated claims resulting from the loss of services of a
key employee.” Id. at 725. California had made a different
choice in legal policies: California had “an interest in
protecting California employers from economic harm because
of negligent injury to a key employee inflicted by a third
party.” Id. Weighing these competing interests, the court
held that “[a]t the heart” of Louisiana’s liability-limiting law
was “the vital interest in promoting freedom of investment
and enterprise within Louisiana’s borders, among investors
incorporated both in Louisiana and elsewhere.” Id. at 728.
26 COOPER V. TOKYO ELEC. POWER CO.
Imposing liability in this situation, when Louisiana had
decided not to, would therefore “strike at the essence of a
compelling Louisiana law.” Id. Particularly because the
accident occurred in Louisiana, California’s interest in
compensation for injured California companies could not
overcome Louisiana’s greater interest in protecting
businesses operating there. Id. at 728–29. Applying
Louisiana law and finding no cause of action, the court
affirmed dismissal of the suit.
Similarly, in McCann, the California Supreme Court
applied Oklahoma law that limited a defendant’s liability
even though it precluded recovery for a California plaintiff.
225 P.3d at 537. McCann was exposed to asbestos while
working in an oil refinery in Oklahoma in the 1950s. Many
years later he developed mesothelioma, and brought suit in
his home state, California, against the manufacturer of a
boiler installed in the refinery. The manufacturer was a
resident of neither Oklahoma nor California, but of New
York. Relying on Offshore Rental, the court applied
Oklahoma’s 10-year statute of repose to the plaintiff’s claim
instead of California’s statute of limitations.5 Id. The court
noted that Oklahoma had an interest in promoting commercial
activity within the state by limiting businesses’ liability,
while California had a general interest in ensuring
compensation for its injured residents, and had a special
interest in providing relief from “asbestos-related harm.” Id.
at 532. Nevertheless, the court concluded that applying
5
Under Oklahoma’s statute of repose, the time for filing suit ran from
the time the construction project was completed, whether McCann knew
of his injury or not. Under California’s statute of limitations, McCann had
one year from the time he learned of his mesothelioma. McCann,
225 P.2d at 521 & n.2, 523, 529.
COOPER V. TOKYO ELEC. POWER CO. 27
California’s statute of limitations would “significantly
undermine Oklahoma’s interest in establishing a reliable rule
of law governing a business’s potential liability for conduct
undertaken in Oklahoma.” Id. at 535. In contrast, failure to
apply California law would have had a less significant impact
on California’s interest. Id. While it precluded the plaintiff’s
recovery, California courts take a “restrained view” of
California’s interest in recovery for its residents for injuries
that occur in another jurisdiction. Id. at 535–36 (discussing
Offshore Rental, 583 P.2d at 728, and Castro, 65 Cal. Rptr.
3d at 443–44). Given Oklahoma’s strong interest in limiting
liability for commercial activity within its borders, the
California Supreme Court applied Oklahoma law and
dismissed the McCann’s claim. Id. at 537.
In light of this precedent, the district court correctly
decided that Japanese law should apply to this case. Japan’s
interests here are similar to those at issue in Offshore Rental,
McCann, and other cases in which California courts (and
federal courts applying California’s choice-of-law rules) have
found that California’s interest in compensation for injured
residents failed to overcome a foreign jurisdiction’s interest
in limiting defendants’ substantive liability for injuries
occurring within its borders.6 Japan’s interest here is in
6
See Arno v. Club Med Inc., 22 F.3d 1464, 1469 (9th Cir. 1994)
(applying French law to plaintiff’s vicarious-liability claim because
Guadeloupe’s interest in “encouraging local industry . . . and reliably
defining the duties and scope of liability of an employer doing business
within its borders” would be more impaired than California’s interest in
“providing compensation to its residents” if its law was not applied);
Castro, 65 Cal. Rptr. 3d at 443–44 (applying Alabama law because its
interest in allocating liability would be more impaired by application of
California’s more permissive statute than would California’s interest in
compensation for injured residents if Alabama law was applied); Tucci v.
28 COOPER V. TOKYO ELEC. POWER CO.
limiting liability for defendants engaged in the nuclear-power
industry in Japan. Japan made a conscious decision to
encourage nuclear power in Japan. It balanced “providing
protection for injured parties” with “contributing to the sound
development of nuclear reactor operations.” Compensation
Act, ch. I, art. 1. Under the Compensation Act, “the Nuclear
Operator is liable to compensate for damages in connection
with the Operation . . . of [the] Nuclear Reactor” and “no
other persons shall be liable to compensate for damages other
than the Nuclear Operator.” Id. at ch. II, arts. 3–4. In
comparing Japan’s and California’s interests, we cannot judge
which policy embodies “the better or worthier rule,” but
instead must determine which jurisdiction’s interest would be
most “significantly impair[ed]” if its law were not applied.
McCann, 225 P.3d at 534.
We have little difficulty concluding that failure to apply
Japanese law in these circumstances would significantly
impair Japan’s interests. Japan’s Compensation Act is
directed specifically at accidents at a nuclear facility;
California’s products liability rules are general in nature and
presumably cover everything from toasters to airplanes. The
release of radiation occurred at the FNPP on Japanese soil
and the United States sent the U.S.S. Ronald Reagan to Japan
in aid of the disaster.7
Club Mediterranee, S.A., 107 Cal. Rptr. 2d 401, 408–12 (Ct. App. 2001)
(applying Dominican law in light of the Dominican Republic’s superior
interest in “assuring that businesses . . . face limited and predictable
financial liability for work-related injuries”).
7
Before the district court and in their opening brief, the plaintiffs
argued that the injury here did not occur in Japan because it happened in
international waters. In reply and at oral argument, the plaintiffs amended
that argument and now claim that the injury occurred on “U.S. soil”
COOPER V. TOKYO ELEC. POWER CO. 29
Even if application of the Compensation Act would bar
any relief for these plaintiffs, we would still be required to
apply Japanese law. See McCann, 225 P.3d at 537–38;
Offshore Rental, 583 P.2d at 729. But application of
Japanese law does not entirely foreclose recovery for the
plaintiffs here. Japanese law allows for compensation for the
plaintiffs’ injuries—just not from GE. This makes
application of Japanese law less intrusive on California’s
interests than in cases like McCann and Offshore Rental. For
these reasons, Japanese law applies to the claims against GE.
Because there is no dispute on appeal that application of
Japanese law requires dismissal of all claims against GE, we
affirm the dismissal of these claims with prejudice.8
B. TEPCO
We next address TEPCO’s motion to dismiss. The
district court also engaged in a choice-of-law analysis for the
claims against TEPCO. After determining that Japanese law
should apply, the court dismissed the claims against TEPCO
on international-comity grounds. We begin by addressing the
choice-of-law analysis. We then consider international
comity.
1. Choice of Law
The plaintiffs raise the same challenges to this choice-of-
law analysis as they did to the analysis of the claims against
because the sailors were injured on U.S. ships. This argument, presented
for the first time in the reply, has been forfeited. See Rizk v. Holder,
629 F.3d 1083, 1091 n.3 (9th Cir. 2011).
8
We therefore need not reach the alternative arguments in GE’s brief.
30 COOPER V. TOKYO ELEC. POWER CO.
GE. For the reasons previously stated, the choice-of-law
analysis is not premature or inappropriate at this stage. As to
the merits of the choice-of-law analysis, the district court
correctly found that Japanese law also applies to the
plaintiffs’ claims against TEPCO.
a. The Laws Differ
There is no disagreement that the laws of Japan and
California differ in three ways with regard to the claims
against TEPCO. First, under Japanese law, the Compensation
Act is the exclusive means of redress, Saikô Saibansho [Sup.
Ct.] May 14, 2009, 2066 HANREI JIHÔ [HANJI] 54,9 but under
California law, there is no such exclusive remedy. Second,
the Compensation Act requires a “high probability” of
causation, Saikô Saibansho [Sup. Ct.] Oct. 24, 1975, 29 Saikô
Saibansho Minji Hanreishû [Minshû] 1417, 1419–20, while
California negligence principles require the plaintiffs to show
only that their injuries were “more likely than not” caused by
radiation exposure. Jones v. Ortho Pharm. Corp., 209 Cal.
Rptr. 456, 460 (Ct. App. 1985). Finally, Japanese law has a
broad definition of compensatory damages, including
damages for proprietary and material losses, spiritual or
mental suffering (“consolation money”), and income lost over
a lifetime, but it does not recognize or allow for punitive
damages, Saikô Saibansho [Sup. Ct.] July 11, 1997, 51(6)
9
The cases cited here were explained in a detailed declaration from
Yasuhei Taniguchi, a retired professor of law who has taught at several
Japanese universities. In addition to an LL.B. from Kyoto University,
Professor Taniguchi holds an LL.M. from the University of California at
Berkeley and a J.S.D. from Cornell University. His analysis was credited
by the district court and is not disputed by the plaintiffs.
COOPER V. TOKYO ELEC. POWER CO. 31
Saikô Saibansho Minji Hanreishû [Minshû] 2573, while
California law does. Cal. Civ. Code § 3294.
b. Both Jurisdictions Have Legitimate Interests
The plaintiffs made no argument here or before the
district court regarding the interests of either forum. We
conclude that the same interests are implicated here as in the
analysis of the claims against GE. California has an interest
in ensuring compensation for its injured residents, while
Japan has an interest in the consistent application of the
Compensation Act to protect its nuclear industry. There is
therefore a true conflict and we proceed to step three of the
governmental-interest test.
c. Japan’s Interests Would be More Impaired if Its
Law Was Not Applied
The analysis at this step is also much the same as for the
claims against GE. As noted supra, California courts have
frequently applied foreign laws like the Compensation
Act—which serve to limit liability for businesses—in these
situations. Japan has an even greater interest in its law
applying to the claims against TEPCO than it did with respect
to GE. TEPCO is a Japanese corporation operating a nuclear
reactor in Japan. It is not only subject to general principles of
Japanese law but, as evidenced by the Compensation Act, to
a series of special rules regarding its responsibility following
a nuclear disaster, just as American nuclear plant operators
are subject to special liability rules under the Price-Anderson
Act.10 Furthermore, following the disaster and consistent
10
See 42 U.S.C. § 2210. See also Duke Power Co. v. Carolina Envtl.
Study Grp., 438 U.S. 59, 63–67 (1978) (background on the Act).
32 COOPER V. TOKYO ELEC. POWER CO.
with the Compensation Act, the Japanese government has
come forward to fund compensation for the victims of the
FNPP meltdown. We were advised in TEPCO’s brief and at
oral argument that the Japanese government has allocated, to
date, more than $76 billion to compensate victims, and that
more than 21,000 victims have received some form of
compensation. Japan has a strong interest in the uniform
application of the Compensation Act. Subjecting TEPCO to
California’s negligence rules would seriously undermine the
comprehensive scheme in the Compensation Act and impair
Japan’s interests. In contrast, California has an interest in
seeing the victims of a nuclear disaster compensated, but that
interest would be equally served under Japanese law.11 The
Compensation Act operates to compensate those injured by
nuclear accidents and the plaintiffs offered no showing that
they cannot be adequately compensated for their injuries
under Japanese law.12
Because Japan’s interests would be more impaired if
California’s laws were applied than California’s would if
Japanese law were applied, we conclude that Japanese law
applies to the claims against TEPCO and affirm the district
court’s holding on the choice-of-law issue. We now proceed
to the question of whether, given that Japanese law must be
applied in any proceedings in the Southern District of
11
Of course, as discussed, the plaintiffs would not be able to recover
punitive damages under Japanese law. But punitive damages are not
intended to compensate for a plaintiff’s losses, see State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003), and TEPCO has stated
that injured parties will be fully compensated for proven injuries.
12
At oral argument, TEPCO agreed to waive any statute of limitations
defense provided the plaintiffs filed their claims in Japan within a
reasonable amount of time.
COOPER V. TOKYO ELEC. POWER CO. 33
California, the district court abused its discretion in
dismissing the case on international-comity grounds.
2. International Comity
“International comity ‘is the recognition which one nation
allows within its territory to the legislative, executive or
judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its
own citizens or of other persons who are under the protection
of its laws.’” Mujica v. AirScan Inc., 771 F.3d 580, 597 (9th
Cir. 2014) (quoting In re Simon, 153 F.3d 991, 998 (9th Cir.
1998)) (other citations omitted). It is “a doctrine of
prudential abstention, one that ‘counsels voluntary
forbearance when a sovereign which has a legitimate claim to
jurisdiction concludes that a second sovereign also has a
legitimate claim to jurisdiction under principles of
international law.’” Id. at 598 (quoting United States v.
Nippon Paper Indus. Co., 109 F.3d 1, 8 (1st Cir. 1997)).
International comity embodies the policy of “good
neighbourliness, common courtesy and mutual respect
between those who labour in adjoining judicial vineyards.”
Id.
There are two kinds of international comity: prescriptive
comity (addressing “the extraterritorial reach of federal
statutes”) and adjudicative comity (a “discretionary act of
deference by a national court to decline to exercise
jurisdiction in a case properly adjudicated in a foreign state”).
Id. at 598–99. This case deals only with adjudicative comity.
In deciding whether to apply the doctrine of adjudicative
comity, the courts weigh “several factors, including [1] the
strength of the United States’ interest in using a foreign
34 COOPER V. TOKYO ELEC. POWER CO.
forum, [2] the strength of the foreign governments’ interests,
and [3] the adequacy of the alternative forum.” Id. at 603
(quoting Ungaro-Benages v. Dresdner Bank AG, 379 F.3d
1227, 1238 (11th Cir. 2004)) (brackets in original)). In
Mujica, we expounded on how to assess the United States’
and the foreign government’s interests in relying on a foreign
forum:
The (nonexclusive) factors we should
consider when assessing [each country’s]
interests include (1) the location of the
conduct in question, (2) the nationality of the
parties, (3) the character of the conduct in
question, (4) the foreign policy interests of the
[countries], and (5) any public policy
interests.
Id. at 604; see also id. at 607. These considerations need not
be addressed mechanically.
We review the district court’s international-comity
determination for an abuse of discretion and reverse only if
the district court applied an incorrect legal standard or if its
“application of the correct legal standard was (1) ‘illogical,’
(2) ‘implausible,’ or (3) without ‘support in the inferences
that may be drawn from the facts in the record.’” Id. at 589
(quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th
Cir. 2009) (en banc)). The district court here “correctly laid
out [the] legal standard,” so “the only question is whether the
district court’s decision . . . to dismiss Plaintiffs’ claims was
illogical, implausible, or unsupported by the record.”
Cooper III, 860 F.3d at 1205.
COOPER V. TOKYO ELEC. POWER CO. 35
In our previous opinion, we concluded that the district
court did not abuse its discretion when it decided against
dismissing the claims against TEPCO on comity grounds. Id.
at 1209. We recognized that this was a “difficult case” and
that there were “strong reasons for dismissing the plaintiffs’
claims in favor of a Japanese forum.” Id. We noted that
“further developments in the district court may counsel in
favor” of dismissal, particularly once the district court
determined which jurisdiction’s law would apply. Id. at 1210
n.12. On remand, the district court reconsidered its comity
analysis based on new developments, finding that these
developments tilted the scales towards dismissal. The
location of the conduct in question, nationality of the parties,
nature of the conduct, and the public-policy interests
remained the same. But after considering the statements from
the Japanese and United States governments—which the
district court did not have before it when it first ruled on the
issue—the district court found that the foreign-policy
interests now favored dismissal.13 And because the choice-
of-law analysis is relevant to comity decisions, the district
court found that its conclusion that Japanese law applied also
13
The district court also left its previous decision on the adequacy-of-
the-alternative-forum factor undisturbed, and the plaintiffs do not
challenge this factor on appeal. They make passing reference to “the
disparities between the American justice system and Japan’s,” but do so
without citation to the record or law that supports the implication that
Japan would be an inadequate forum. They claim that the defendants
needed to present “clear and incontrovertible evidence” that Japan’s courts
would not “deprive Plaintiffs of due process and equal protection of law
to which they are entitled,” but our precedent imposes no such
requirement. The plaintiffs raised similar unsubstantiated claims of bias
in their previous appeal, but we found that there was “no doubt that Japan
would provide an adequate alternative forum.” Cooper III, 860 F.3d
at 1209. The district court did not abuse its discretion by leaving its
previous analysis of this factor in place.
36 COOPER V. TOKYO ELEC. POWER CO.
weighed in favor of dismissal on comity grounds. The
plaintiffs contend that this was an abuse of discretion because
“nothing has changed except for the court’s willingness to
revisit the issue of international comity and decide to punt
this case to Japan.”
First, the conclusion that Japanese law applies to the case
does affect the comity analysis. See Cooper III, 860 F.3d
at 1210 n.12 (citing Mujica, 771 F.3d at 602; Ungaro-
Benages, 379 F.3d at 1240). It was not an abuse of discretion
for the district court to take the applicability of Japanese law
into consideration. If Japan’s interest in the applicability of
its laws to this case was strong enough to overcome
California’s interests in the choice-of-law analysis, it was not
illogical or implausible for the district court to find that Japan
had a similarly strong interest in being the place where the
plaintiffs’ claims are litigated. We can take notice of the fact
that if the suit proceeds in the Southern District of California,
the district court will have to inform itself at every turn of the
nuances of Japanese civil law. That would require
understanding who bears the burden of proof, principles of
causation, and what constitute compensable damages. Not
only would the district court have to educate itself on the law,
but it would need to understand how the Compensation Act
has been administered in the thousands of cases resolved in
Japan, lest the “change of courtrooms” mean a change in
result. Van Dusen, 376 U.S. at 639.
The other “significant change” that the district court
found affected its analysis was the amicus briefs filed in our
court during the first appeal. Neither government had
expressed its views on litigating in U.S. courts before
Cooper III. After Japan filed an amicus brief in Cooper III
expressing a strong interest in the case being litigated in
COOPER V. TOKYO ELEC. POWER CO. 37
Japan, we invited the United States Department of State to
give its views on whether the litigation should proceed in the
United States.14 We considered both amicus briefs and found
that they expressed “important, competing policy interests”
that required “difficult judgment calls” from the district court.
Cooper III, 860 F.3d at 1209. On remand, the district court
weighed the interests expressed in the governments’ amicus
briefs and decided that, in light of the Japanese government’s
strong objection to the case being litigated in the United
States, the foreign-policy factor now weighed in favor of
dismissal.
This was a significant change from the first time the
district court engaged in the comity analysis, despite the
plaintiffs’ assertions to the contrary. The first time the
district court considered the comity factors, neither Japan nor
the United States had expressed an opinion to the district
court about the appropriate venue for the litigation. It was not
improper for the district court to reconsider its previous
holding in light of those statements.
14
In Cooper III, TEPCO and GE (appearing as amicus) argued that
dismissal on comity grounds would promote the Convention on
Supplementary Compensation for Nuclear Damage (“CSC”). The United
States argued that, in denying dismissal on comity grounds, the district
court did not abuse its discretion. See Cooper III, 860 F.3d at 1199–1200.
The CSC guarantees that its contracting parties will have exclusive
jurisdiction over litigation arising out of a nuclear incident within their
borders. Because Japan was not a contracting party to the CSC at the time
of the FNPP disaster, the United States objected to the courts relying on
this argument from TEPCO and GE. Otherwise, the United States argued
that it had “no specific foreign policy interest necessitating dismissal in
this particular case.” Id. at 1208.
38 COOPER V. TOKYO ELEC. POWER CO.
The plaintiffs suggest that the district court effectively
“overruled the Ninth Circuit,” by weighing the amicus briefs
and coming to a different conclusion. But the district court
did nothing of the kind. In Cooper III, we fairly invited the
district court to revisit the comity analysis if and when
circumstances changed. Id. at 1210 & n.12. And the
statement from both governments about where the litigation
should proceed was a changed circumstance for the district
court. The argument that the statements were not new
because we had them before us in Cooper III misunderstands
the scope of our review in that case. The question before us
then was not whether we, with the benefit of the statements,
would have dismissed the suit on comity grounds, but
whether the district court had abused its discretion with the
information that it had. We were careful in stating our
standard of review in that case. Cooper III, 860 F.3d at 1205,
1209. Once the district court had the positions of the United
States and Japanese governments before it, it was entirely
proper for the district court to revisit the comity analysis.
In its amicus brief, Japan strongly objected to this case
being litigated in the United States. Japan has committed a
significant sum of money and resources to ensure fair and
consistent compensation for accident victims. Japan pointed
out that if injured parties could bring their claims anywhere
in the world, foreign courts might apply different legal
standards, resulting in different outcomes for similarly
situated victims. See id. at 1207. This would seriously affect
the integrity of the compensation system established by the
Japanese government. And because the Japanese government
is financing TEPCO’s compensation payments, which are
administered through Japanese courts, that risk is particularly
troublesome. See id. at 1209 (“Japan has an undeniably
strong interest in centralizing jurisdiction over FNPP-related
COOPER V. TOKYO ELEC. POWER CO. 39
claims.”). If Japan cannot exercise some control over the
compensation process, it may be less willing to compensate
FNPP victims who seek remedies outside of a Japanese
forum. That may complicate the victims’ ability to be
compensated. See Cooper III, 860 F.3d at 1207 (“Judgments
originating in American courts may well be inconsistent with
the overall administration of Japan’s compensation fund.”)
When the district court revisited the comity factors, it
noted TEPCO’s argument that Japan’s interests “have only
grown stronger” since its brief was filed. With the benefit of
this position, the district court found that the foreign policy
factor weighed in favor of dismissal, despite the United
States’ “important, competing policy interest.”
The plaintiffs contend that it was illogical for the district
court not to consider the United States’ amicus brief in its
analysis and that the district court owed deference to the State
Department’s opinion about whether to exercise jurisdiction.
But the district court acknowledged the United States’
statement and its competing foreign-policy concerns in its
order. And to the extent that the plaintiffs contend that the
State Department’s brief is an affirmative statement from the
government that was entitled to special deference, the
plaintiffs overstate their case. The plaintiffs point to no
principle that requires district courts to defer to statements of
interest from the United States. We will give “serious weight
to” such statements, Sosa v. Alvarez-Machain, 542 U.S. 692,
733 n.21 (2004), but “[a] statement of national interest alone
. . . does not take the present litigation outside the competence
of the judiciary,” Ungaro-Benages, 379 F.3d at 1236.
Moreover, the United States issued a careful, cautious
statement. The United States first “applaud[ed] the
40 COOPER V. TOKYO ELEC. POWER CO.
Government of Japan’s impressive efforts to provide recovery
for damages caused by the nuclear accident at the Fukushima-
Daiichi power plant, including through the creation of an
administrative compensation scheme that has paid over
$58 billion in claims.” It did express an interest in Japan not
retroactively receiving exclusive jurisdiction over suits under
the CSC, which Japan had not signed at the time of the FNPP
incident. And, for that reason, the U.S. urged us not to
overturn the district court’s decision in Cooper III. See
Cooper III, 860 F.3d at 1207–09. But outside of that, the
United States said only that although “a district court could
choose to dismiss a case based on international comity for a
claim arising overseas[,] . . . [t]he United States has no
specific firm policy interest necessitating dismissal in this
particular case.” The United States stopped well short of
urging that California was the proper forum to exercise
jurisdiction in this case. The United States thus voiced its
concerns with the reasons for which the district court would
grant dismissal on comity grounds, but expressed no
objection that Japan be permitted to adjudicate these claims
in its own courts.
The United States’ measured response pales in
comparison to Japan’s unequivocal objection to the exercise
of jurisdiction in U.S. courts. Recognizing Japan’s interests
under these circumstances was not illogical or implausible,
particularly once the district court determined that Japanese
law would apply to the claims.
We acknowledge that the case is complicated. It
implicates strong, important policy interests in both countries.
But comity is a “fluid doctrine” that can “change in the
course of the litigation.” Cooper III, 860 F.3d at 1210. We
invited the district court to reevaluate its decision in
COOPER V. TOKYO ELEC. POWER CO. 41
appropriate circumstances. The district court did so, and
carefully explained its reasons. Having decided that Japanese
law applies to the case and considering Japan’s strong
interests in the case being litigated in Japan, the district court
did not abuse its discretion when it dismissed the claims
against TEPCO on international-comity grounds.15
III. CONCLUSION
We affirm the district court’s granting of both GE’s and
TEPCO’s motions to dismiss.
AFFIRMED.
15
In light our disposition, we do not reach TEPCO’s personal-
jurisdiction argument.