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Neely v. The Boeing Co.

United States District Court, W.D. Washington, Seattle

May 15, 2018



          Richard A. Jones, United States District Judge.


         This matter comes before the Court on Defendant The Boeing Company's (“Boeing”) Motion to Dismiss. Dkt. # 61. Plaintiff Michael Neely opposes the Motion. Dkt. # 63. For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendant's Motion.


         The following is taken from Plaintiff's Second Amended Complaint (“SAC”), which is assumed to be true for the purposes of this motion to dismiss. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).

         Plaintiff is an aerospace engineer who began working at Boeing on May 1, 1995 as a member of the Space and Defense Business Unit. Dkt. # 57 at ¶ 8. In 2014, Boeing assigned Plaintiff to support the Commercial Business Unit by working on the Boeing 777x aircraft Electrical Load Management System (“ELMS”). Id. at ¶ 11. While working on his first assignment on the 777x ELMS, Plaintiff alleges that he reported concerns related to Boeing's failure to comply with U.S. Federal Aviation Administration (“FAA”) safety regulations related to the development of the ELMS. Id. at ¶¶ 17-20, 22, 26, 30-32. Plaintiff also alleges that from December 1, 2014 through all of 2015, Boeing continued its failure to comply with company and program policies and procedures governed by FAA regulations. Id. at ¶ 20. Specifically, Plaintiff alleges that he reported that there were safety issues impacting the ELMS being developed for the 777x aircraft because Boeing was attempting to use the ELMS from a prior aircraft without properly updating it. Id. at ¶ 17. These ELMS design requirements did not meet FAA regulations. Id. at ¶ 18. Boeing released these ELMS design requirements to its supplier and then falsely reported completed scheduling milestones. Id. at ¶ 20. Plaintiff also learned that Boeing falsified entries in its internal risk management system to prevent employees from reporting risk issues related to the development of the 777x aircraft. Id. at ¶ 25. In 2015, Boeing reported a twenty percent (20%) decrease in earnings in its 10-K report to the SEC due to the increased spending on the development of the 777x aircraft. Id. at ¶ 26. Plaintiff contends that this increased spending was due to Boeing's failure to adhere to FAA regulations and its premature release of the ELMS design requirements to its supplier, and that this information was withheld from its stockholders. Id.

         Plaintiff alleges that he made several complaints to Boeing. The first was on June 30, 2015. Id. at ¶ 27. Plaintiff alleged that Boeing was violating internal policies, as well as the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq. Id. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on August 26, 2015. Id. at ¶ 28. On September 3, 2015, Plaintiff was issued a written warning for improper use of a company-issued credit card. Id. at ¶ 29. Plaintiff made a second internal complaint to Boeing on October 6, 2015, alleging that Boeing failed to follow internal and external FAA regulated procedures. Id. at ¶ 31. Plaintiff made two more complaints to Boeing on November 6, and November 7, 2015, making the same allegations. Id. When Boeing took no action in response to these complaints, Plaintiff filed a complaint with the FAA directly on March 6, 2016. Id.

         Plaintiff also filed additional complaints with Boeing on November 6, and November 7, 2015, alleging that he was being retaliated against for being a whistleblower. Id. at ¶ 32. A few days later, Plaintiff received a negative performance review. Id. At some point, Boeing conducted an investigation in response to Plaintiff's complaints. Id. at ¶ 33. During his investigative interviews, Plaintiff was informed that his complaints were being dismissed and closed without cause. Id. Plaintiff later filed additional complaints with the Occupational Safety and Health Administration (“OSHA”) alleging violations of Section 519 of the Wendell H. Form Aviation Investment and Reform Act for the 21st Century (“AIR 21”), 49 U.S.C. § 42121, et seq. and the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A (“SOX”) on February 20, March 10, and March 14, 2016. Id. at ¶ 33. The complaints allege that Boeing retaliated against him because he voiced concerns about FAA violations. Id. Plaintiff was either laid off or terminated from his employment on March 25, 2016[1]. Id. at ¶ 34.

         Plaintiff filed his original Complaint in the U.S. District Court of the Central District of California on July 7, 2016. Dkt. # 1. Plaintiff filed a First Amended Complaint on August 15, 2016. Dkt. # 14. On October 12, 2016, Boeing filed a motion to transfer, and the case was transferred to the Western District of Washington on November 18, 2016. Dkt. ## 24, 26. The Court granted Plaintiff leave to amend, and he filed a SAC on September 20, 2017. Dkt. ## 46, 57. Boeing now moves to dismiss Counts One, Two, Three, Six, Seven, and Ten of the SAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Boeing also moves to dismiss Plaintiff's claims for declaratory and injunctive relief. Dkt. # 61.


         A. FRCP 12(b)(1)

         Federal courts are tribunals of limited jurisdiction and may only hear cases authorized by the Constitution or a statutory grant. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The burden of establishing subject-matter jurisdiction rests upon the party seeking to invoke federal jurisdiction. Id. Once it is determined that a federal court lacks subject-matter jurisdiction, the court has no choice but to dismiss the suit. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

         A party may bring a factual challenge to subject-matter jurisdiction, and in such cases the court may consider materials beyond the complaint. PW Arms, Inc. v. United States, 186 F.Supp.3d 1137, 1142 (W.D. Wash. 2016) (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003); see also McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (“Moreover, when considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”).

         B. ...

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