[00:00:00] Speaker 01:
I'd like to reserve five minutes for rebuttal.

[00:00:03] Speaker 01:
May it please the court.

[00:00:04] Speaker 01:
My name is Mike Subbitt and I represent Appellant Marty Heimbigner.

[00:00:08] Speaker 01:
Mr. Heimbigner is with me at council table today.

[00:00:11] Speaker 01:
Mr. Heimbigner lives here in the Tri-Cities and he worked here as Chief Financial Officer for Solgen.

[00:00:18] Speaker 01:
Defendants managed Solgen and they orchestrated his termination

[00:00:23] Speaker 01:
when he refused to falsely certify to Sologen's bank that the company's financial statements were in accordance of generally accepted accounting principles.

[00:00:33] Speaker 01:
The district court nevertheless held that defendants had made a compelling case that there was no personal jurisdiction over defendants in Washington and held that Mr. Heine-Beginer could not bring a wrongful termination claim in violation of public policy against the defendants, only an intentional interference with contract claim.

[00:00:52] Speaker 01:
The district courts erred in both respects.

[00:00:55] Speaker 01:
I'd like to start with the personal jurisdiction ruling.

[00:00:59] Speaker 01:
The district court here found no jurisdiction, even though the defendants came to the plaintiff's forum state, committed intentional tort in the plaintiff's forum state, that caused harm in the plaintiff's forum state.

[00:01:12] Speaker 01:
I'm not aware of any other case that has found no jurisdiction under those facts.

[00:01:16] Speaker 01:
and neither the district court nor the defendants cited any.

[00:01:21] Speaker 01:
And the ruling was particularly surprising because the court found that we had easily met the first two prongs of personal jurisdiction, that there was purposeful direction into Washington, and a rising out of relating to.

[00:01:35] Speaker 01:
In fact, the district court found that applying the wrong and a stronger legal test.

[00:01:40] Speaker 01:
It applied.

[00:01:41] Speaker 02:
The court did find that Edgewater was not

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register to and does not conduct any business in Washington that Jones and Schneider operated their offices from Illinois.

[00:01:53] Speaker 02:
So what I think the court said was that the connection was really too attenuated.

[00:02:01] Speaker 01:
This is what the court said, and that was error, Your Honor.

[00:02:04] Speaker 01:
I mean, going back to the Kramer case, the court said there, one contact is enough, that's the one that causes the plaintiff's injury.

[00:02:13] Speaker 01:
And that's especially true if it's an intentional tort.

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Both this court's precedents and the Supreme Court

[00:02:19] Speaker 01:
find a stronger case for jurisdiction when an intentional tort is committed.

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And as I said, this is the only case I've ever seen where the defendant came to the state and committed an intentional tort, although under the Calder effects test, it really doesn't matter that they came here.

[00:02:36] Speaker 01:
It's just icing on the cake.

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And so they committed a tort that was against a plaintiff in Washington.

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They knew that he worked here.

[00:02:46] Speaker 01:
And again,

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The justice court focused, I think, incorrectly on the corporate formalities rather than the realities.

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They were managing a business in Washington, Solgen.

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They were hiring, they were doing the firing, they hired Mr. Heimberger here in Washington, they interviewed him, references, they supervised him, and they fired him.

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And the fact that they did it,

[00:03:13] Speaker 01:
sometimes from Illinois, in the age of the internet and the Calder effects test really doesn't matter.

[00:03:21] Speaker 01:
And as I said, the district court applied incorrectly a butt fork causation test, and that's just not the law anymore.

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So despite these easy showings of personal jurisdiction on our burden, the court then found the defendants had found

[00:03:37] Speaker 01:
proven a compelling case against jurisdiction.

[00:03:41] Speaker 01:
Quite frankly, the district court got a lot of that wrong.

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First of all, the court didn't recognize that in a situation like this, there is a strong presumption of jurisdiction, a heavy burden on the defendants to overcome.

[00:03:54] Speaker 01:
And quite frankly, the court turned what was a routine case of showing that it's more convenient to litigate from Illinois rather than here into a compelling one.

[00:04:07] Speaker 01:
Most out of state defendants could make the showing they make in this case.

[00:04:11] Speaker 01:
That's not a compelling case against jurisdiction.

[00:04:15] Speaker 01:
As the court is aware, it's a seven factor test.

[00:04:18] Speaker 01:
The court found three in favor

[00:04:20] Speaker 01:
of jurisdiction for or against.

[00:04:23] Speaker 01:
Even if it were correct about that tally, and we don't think it was, that's still not a compelling case.

[00:04:29] Speaker 01:
The Roth case and then a couple of more recent cases have reaffirmed.

[00:04:33] Speaker 01:
When it's very evenly balanced, it's not a compelling case.

[00:04:37] Speaker 01:
But the court misanalyzed several of the factors.

[00:04:40] Speaker 01:
And I'm just going to focus on the most egregious one.

[00:04:42] Speaker 01:
It found the degree of purposeful injection favored the defendants.

[00:04:47] Speaker 01:
That is incorrect.

[00:04:48] Speaker 01:
Again, focused on one visit to Washington.

[00:04:53] Speaker 01:
That's enough when the visit is where the intentional tort is committed.

[00:04:57] Speaker 02:
Are the defendants correct when they indicate that the majority of the witnesses were in Illinois and not in Washington?

[00:05:04] Speaker 01:
That is incorrect.

[00:05:05] Speaker 01:
The district court committed another error, and this is the fifth factor.

[00:05:08] Speaker 01:
It only looked to quote the witnesses identified in the complaint.

[00:05:12] Speaker 01:
That's not how a 12b2 motion works.

[00:05:15] Speaker 01:
Mr. Heimbigner submitted a declaration, including several witnesses, including the CEOs, former and present, of Solgen, who live right here.

[00:05:24] Speaker 01:
And it's about

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equal the number of witnesses in Washington and Illinois, some other places.

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And so just getting to the fifth factor, when those are equal or there's witnesses involved, this court holds the factors awash.

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And again, the district court found the fifth factor favored the defendants.

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And so once again, that was another error.

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In terms of going back to the degree of purposeful interjection, Free Stream Aircraft says commission of a tort

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in the state usually supports jurisdiction.

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There's no reason to depart from the usual rule.

[00:06:02] Speaker 01:
Calder, the Supreme Court, said someone who's injured in their home state doesn't need to go to the defendant's home state to seek redress when the defendant knowingly causes injury in the plaintiff's home state.

[00:06:15] Speaker 01:
And so

[00:06:17] Speaker 01:
Finally, Panavision.

[00:06:18] Speaker 01:
The facts here showing purposeful injection, which this court easily found favored the plaintiff in Panavision, are much, much stronger.

[00:06:26] Speaker 01:
All the defendant did there was write a letter to someone in California.

[00:06:31] Speaker 01:
Here, they were running a business.

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So again, I don't think this is a close case.

[00:06:36] Speaker 01:
There was just simply no compelling showing of jurisdiction.

[00:06:41] Speaker 01:
Let me then move on to the merits, the 12b6 motion, and I'm going to frame this

[00:06:45] Speaker 01:
in terms of the certification issue that the court issued an order about.

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And again, there's a statute in Washington, RCW 2.60020, that allows this court to certify.

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In Centurion Properties, this court laid out three factors to consider, whether it's a question of law not clearly determined, outcome-determinative, and significant policy implications.

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And I'm gonna deal with each of those in turn.

[00:07:13] Speaker 01:
Question of law not clearly determined.

[00:07:15] Speaker 01:
Obviously, there's no Washington Supreme Court on this issue, or otherwise it would be an easy case.

[00:07:21] Speaker 01:
The Cagle case and then the two cases on the same day, Allison and Wilmot, I think are very suggestive of what the outcome is because in both of those cases, the Washington Supreme Court analogized wrongful discharge cases in violation of public policy to unlawful termination cases under the Washington law and discrimination.

[00:07:43] Speaker 01:
And I really want to focus on Wilmot and Allison.

[00:07:45] Speaker 01:
because even though it's a different issue, it's exactly the same analysis here.

[00:07:50] Speaker 01:
So Allison involved the question of the meaning of the statutory term, because of, in the Washington law against discrimination.

[00:07:58] Speaker 01:
The common law definition of because of is but for causation, and the US Supreme Court has repeatedly told us that.

[00:08:05] Speaker 01:
The Supreme Court said, no, we are not applying the common law definition to the statute.

[00:08:10] Speaker 01:
we're going to apply substantial factor, which is less than but for causation.

[00:08:15] Speaker 01:
Then in Wilmot decided the same day, again, the common law tort of wrongful discharge, what is the causation standard?

[00:08:23] Speaker 01:
And the court did not use the common law standard.

[00:08:25] Speaker 01:
They took exactly the same standard they had used as the statute under the Washington law against discrimination and said it's substantial factor.

[00:08:34] Speaker 01:
Here, it's the same analysis, but it's a different issue.

[00:08:38] Speaker 01:
We are saying that the broad definition of employer under the Washington law against discrimination, which is no doubt broader than the common law, the Washington Supreme Court would apply that here when the issue is before them.

[00:08:52] Speaker 01:
And so I feel that those certainly suggest strongly what the Washington Supreme Court would do.

[00:09:00] Speaker 01:
At the same time, you know, we don't have an objection to certification.

[00:09:04] Speaker 01:
I raise that in my brief.

[00:09:05] Speaker 01:
Clarity is in the eye of the court.

[00:09:07] Speaker 01:
And certainly, the Washington Supreme Court will answer this question definitively.

[00:09:14] Speaker 01:
I want to talk just for a minute about the Iwana case, because that case is not a model of clarity, and it certainly doesn't answer the question.

[00:09:23] Speaker 01:
Moana does not, whatever else Moana means, it does not foreclose claims against non-director de facto employers.

[00:09:31] Speaker 01:
In fact, what they did there is they said they kind of hadn't proven it.

[00:09:36] Speaker 01:
And that, in fact, is how the defendants read it in the district court.

[00:09:39] Speaker 01:
They said, we just didn't prove de facto employer.

[00:09:43] Speaker 01:
What they said in Awana was that they're not going to need to recognize it there because of the alternative remedy of intentional interference claims.

[00:09:55] Speaker 01:
That was the law when Awana was decided.

[00:09:57] Speaker 01:
In 2015, and it's something we call the wrongful discharge trilogy, which is Rose, Rickman,

[00:10:03] Speaker 01:
And Becker, the Supreme Court, eliminated the availability of any other remedy as part of the wrongful discharge analysis.

[00:10:11] Speaker 01:
Defendants, this is the only case in 11 years to reject a wrongful discharge claim because there was an alternative remedy.

[00:10:20] Speaker 01:
And so again, I feel that the Wilmot-Allison is sufficiently clear.

[00:10:25] Speaker 01:
But if this court doesn't, we're certainly happy to certify.

[00:10:29] Speaker 01:
Just turning very briefly to the other two factors, it certainly, and determinative doesn't mean determinative of the whole case.

[00:10:36] Speaker 01:
There are plenty, we cited several cases where there's certification.

[00:10:40] Speaker 01:
Brady was one where it was certification was only relevant to class certain, there were numerous other claims that it was not relevant to.

[00:10:47] Speaker 01:
It's certainly determinative of the wrongful discharge claims.

[00:10:51] Speaker 01:
And finally, public, you know, the policy, I mean, this is a common law tort.

[00:10:55] Speaker 01:
And it's certainly the Washington Supreme Court is the ultimate arbiters.

[00:10:58] Speaker 01:
And there's significant differences between wrongful discharge and intentional interference.

[00:11:04] Speaker 04:
On the certification issue, as we asked about certifying both the question of indirect employers and, alternately, the question of individuals, there was very little briefing on the second aspect of the issue.

[00:11:21] Speaker 04:
As far as I can tell, even less case law on that issue.

[00:11:25] Speaker 04:
Do you have a position on certification?

[00:11:27] Speaker 01:
I do.

[00:11:28] Speaker 01:
I think if the court does certify over the indirect issue, it should also certify the individual liability.

[00:11:34] Speaker 01:
Actually, I've been on both sides of that issue.

[00:11:36] Speaker 01:
There's numerous district court cases.

[00:11:38] Speaker 01:
There's no appellate court cases whatsoever.

[00:11:41] Speaker 01:
The early trend was to reject it.

[00:11:43] Speaker 01:
And then actually in the Blackburn decision by actually the same district court that decided this case, it's really turned the tide.

[00:11:51] Speaker 01:
And most cases have since then accepted it.

[00:11:54] Speaker 01:
But again, there's absolutely no appellate authority.

[00:11:57] Speaker 01:
We think the very reasons in the Blackburn decision is the same reasons why there should be beyond the common law and indirect.

[00:12:04] Speaker 01:
But we absolutely agree that if you certify the indirect, you should certify the individual.

[00:12:09] Speaker 01:
I'll leave the rest of my time for rebuttal.

[00:12:11] Speaker 01:
OK.

[00:12:17] Speaker 03:
Good morning.

[00:12:18] Speaker 03:
Tom Pedrides, appearing for defendants and appellees.

[00:12:22] Speaker 03:
I'm going to address the question the court asked on Monday first.

[00:12:26] Speaker 03:
Yesterday, we filed a supplemental letter brief to bring to the court's attention a recent Ninth Circuit decision that was just issued on Tuesday.

[00:12:35] Speaker 03:
And that decision was Wells v. BNSF Railway Company.

[00:12:39] Speaker 03:
And it happened to discuss the standards for deciding whether to certify an issue to a state Supreme Court or not.

[00:12:46] Speaker 03:
In Wells, the court concluded that certification is unwarranted because there was sufficient Montana state law to answer the question.

[00:12:55] Speaker 00:
And isn't that precisely the opposite of what's happening here?

[00:12:58] Speaker 00:
In contrast, the Washington Supreme Court has never addressed the issues that we're talking about certifying.

[00:13:03] Speaker 03:
The Washington Supreme Court has not, but the Awana case clearly does.

[00:13:08] Speaker 03:
When you read the Awana decision, they talk about the public policy claim can be brought against the direct employer.

[00:13:17] Speaker 03:
And there's no dispute in Iwana who the direct employer was in that case and who the employee worked for.

[00:13:21] Speaker 00:
So I think you can make the argument that you're making now that Iwana gives us sufficient information to know where the court is heading.

[00:13:26] Speaker 00:
But I don't see how Wells is helpful to you given the factual distinction between what happened in Montana and the case law in Washington from the Washington Supreme Court.

[00:13:39] Speaker 03:
Wells cites to two other Ninth Circuit decisions, Reardon v. State Farm Mutual Auto from

[00:13:47] Speaker 03:
2009, a Ninth Circuit decision, and also Syngenta Seeds v. County of Kauai from 2016.

[00:13:56] Speaker 03:
In both of those cases, the district court or the plaintiff in those cases had raised the question of certification at the district court level.

[00:14:11] Speaker 03:
The Wells case, it was brought up for the first time in front of the Ninth Circuit.

[00:14:15] Speaker 03:
In both of the Reardon case and the Syngenta case, the Ninth Circuit ruled that the standard for determining when the district court judge denies the request to certify was an abuse of discretion.

[00:14:29] Speaker 03:
In this particular case, plaintiffs' counsel raised directly to the district court the question of whether they should certify the issue of the direct employer, de facto employer question.

[00:14:42] Speaker 03:
And the court addressed that issue in a footnote one of its decision in which it said the law is clear and I decline plaintiff's request to review it because the law is clear.

[00:14:54] Speaker 02:
Well, what if we disagree that the law is clear?

[00:14:56] Speaker 03:
So then the question it becomes it's an abuse of discretion standard because

[00:15:01] Speaker 03:
It was raised that issue the issue of the de facto employer was raised and where there is a Washington Court of Appeal that squarely held that the public policy wrongful termination claim can only arise against the direct employer not some indirect or de facto employer that was an employer that controlled the individual, but is there any case indicating a

[00:15:26] Speaker 02:
That didn't control the the employer the employee is there any case that says?

[00:15:31] Speaker 02:
that someone an indirect employer controls the employee

[00:15:36] Speaker 03:
Well, this is where plaintiff's counsel is just, he's saying that Edgewater controlled the plaintiff.

[00:15:43] Speaker 03:
It's just not true.

[00:15:45] Speaker 03:
Well, that's a fact.

[00:15:47] Speaker 03:
Edgewater had an investment, a 30% investment.

[00:15:51] Speaker 03:
It's in the record that they had two board of directors on the board.

[00:15:54] Speaker 04:
Well, we're on a motion to dismiss.

[00:15:55] Speaker 04:
So we're construing all the facts in the light most favorable to plaintiff.

[00:15:58] Speaker 04:
And the district court said that there were disputes as to the extent of Edgewater's control and whether

[00:16:06] Speaker 04:
some of the defendants were acting on behalf of Edgewater or as agents of Solgan.

[00:16:11] Speaker 04:
So that's a dispute of fact.

[00:16:12] Speaker 04:
So at this point, I think we would assume that they were acting on behalf of Edgewater and that Edgewater was exercising control.

[00:16:20] Speaker 03:
I don't believe that this court actually made those distinctions, because what's interesting is when plaintiff filed this lawsuit, plaintiff alleged that he was bringing his claims against Edgewater

[00:16:34] Speaker 03:
and its two agents, the two individuals.

[00:16:39] Speaker 03:
That's what the complaint brought the claim against.

[00:16:43] Speaker 03:
When the court addressed the issue about the de facto employer, it ruled that because Edgewater was not the direct employer, it could not state a claim for public policy.

[00:16:58] Speaker 00:
Council, I'm confused as to why you are hanging your hat on this

[00:17:02] Speaker 00:
I'm putting aside for a moment whether the district court should have even properly reached the merits of a claim after dismissing for personal jurisdiction, which is, I think, a separate question which you can address if you'd like.

[00:17:14] Speaker 00:
But I think the more important question that I'd like to have answered is, why are you focusing on that?

[00:17:19] Speaker 00:
Because we're on de novo review with respect to the merits of the claim.

[00:17:22] Speaker 00:
So I think I heard you say something about an abuse of discretion standard, but I'm not understanding why... To decide for certification.

[00:17:30] Speaker 03:
To decide for certification, it would be a

[00:17:33] Speaker 03:
abuse of discretion.

[00:17:34] Speaker 04:
Well, we can decide for ourselves whether we want to certify.

[00:17:36] Speaker 04:
So we wouldn't be reviewing the district court's decision not to certify.

[00:17:40] Speaker 04:
We would be deciding for ourselves whether we want to certify something.

[00:17:44] Speaker 03:
Again, based on the Reardon case and the Syngenta case, it seems that it's a different standard.

[00:17:49] Speaker 03:
If it hasn't been brought up, the court can decide on its own.

[00:17:51] Speaker 00:
Do you agree that we are reviewing

[00:17:54] Speaker 00:
the merits claims de novo.

[00:17:56] Speaker 03:
Yes, yes.

[00:17:57] Speaker 03:
The merits claims de novo, yes.

[00:17:59] Speaker 03:
And so what I was going to say with respect to when the judge dismissed the two individuals, he did so by saying because they can't bring the claim against Edgewater, they can't bring the claim against the two individuals who are agents of Edgewater.

[00:18:14] Speaker 03:
And that's what plaintiff's complaint was all about.

[00:18:17] Speaker 03:
And to put it to emphasize,

[00:18:20] Speaker 03:
With respect to whether individual liability, because we agree, there is not a case that discusses individual supervisor or manager liability in the context of a wrongful termination violation of public policy.

[00:18:35] Speaker 03:
But that really wasn't a claim that plaintiff was bringing in this action.

[00:18:39] Speaker 03:
He was bringing the action against Edgewater and their two agents.

[00:18:43] Speaker 03:
When you look at what he brought on his appeal,

[00:18:47] Speaker 03:
His issue on appeal number three was should this court certify the de facto employer question.

[00:18:56] Speaker 03:
He didn't even ask whether the court should certify the individual supervisor issue because he wasn't appealing that issue.

[00:19:04] Speaker 03:
And from the standpoint of he brought his lawsuit against the individuals as agents of Edgewater.

[00:19:11] Speaker 03:
It wasn't until his reply that he raised for the very first time that

[00:19:16] Speaker 03:
maybe the court should certify the issue of the two individual supervisors as to whether they could be liable for awful termination or not.

[00:19:23] Speaker 03:
So I'm not even sure that's actually on appeal here because, again, when you look at his complaint and you look how he framed his complaint, he was bringing the lawsuit against Edgewater and its two agents acting on behalf of Edgewater.

[00:19:36] Speaker 03:
And the court dismissed all three defendants on the public policy claim because the court determined that the law was clear

[00:19:44] Speaker 03:
that you can't bring a public policy claim against a non-direct employer.

[00:19:54] Speaker 04:
you can't bring a claim against an employer who exercises no control over the employee.

[00:20:00] Speaker 04:
So if there is a dispute of, I would say it's an open question of whether you can bring a claim against an indirect employer who exercises control.

[00:20:12] Speaker 04:
Do you know of any case that addresses that scenario?

[00:20:16] Speaker 03:
There was a two district court decisions that came after Oana, which were cited in our brief, that indicate what you are saying.

[00:20:25] Speaker 03:
I'm not aware of a Washington state court that addresses it squarely.

[00:20:29] Speaker 03:
But I think when the law is clear, it doesn't have to be based on what the

[00:20:36] Speaker 03:
the Washington Supreme Court has decided.

[00:20:39] Speaker 03:
The IWANA decision hasn't ever been questioned by any other court.

[00:20:42] Speaker 03:
It's been the law of state of Washington for many years.

[00:20:45] Speaker 04:
I'm not questioning it.

[00:20:46] Speaker 04:
I'm saying it's distinguishable.

[00:20:49] Speaker 03:
Well, I think when you read the conclusion of IWANA, the two things that it points to, the wrongful discharge doctrine must be extended with caution.

[00:21:00] Speaker 03:
And that mirrors what the Washington Supreme Court

[00:21:06] Speaker 03:
in its decision allowing public policies.

[00:21:09] Speaker 03:
This is a narrow exception, and subsequent courts have repeatedly said that.

[00:21:13] Speaker 03:
In Oana, it said that there's no need to extend this narrow exception, and it ruled that the trial court properly dismissed the appellant's claims of wrongful discharge against the port.

[00:21:26] Speaker 03:
I think maybe we're getting confused with whether it was a de facto or indirect.

[00:21:31] Speaker 03:
I think what Awana squarely held was, look, there was a direct employer, and that direct employer was the subcontractor.

[00:21:39] Speaker 03:
I think when you read Awana, the port did have control.

[00:21:43] Speaker 03:
They controlled the work site.

[00:21:44] Speaker 03:
They were the contractor.

[00:21:45] Speaker 03:
They had access to allow people to come on, and they hired the sub.

[00:21:49] Speaker 03:
So there was as much control or influence there as Edgewater, which it was an investor.

[00:21:55] Speaker 03:
And so Edgewater itself had two seats on the board.

[00:21:58] Speaker 03:
It doesn't control Solgen.

[00:22:01] Speaker 03:
Solgen had another entity, the other power company on the board, and it had the Solgen people on the board.

[00:22:09] Speaker 03:
So that's not a...

[00:22:11] Speaker 03:
like a factual dispute, that's in the record.

[00:22:15] Speaker 03:
To put the label, well, they controlled.

[00:22:19] Speaker 03:
That's just conclusory allegations.

[00:22:21] Speaker 03:
How did they control?

[00:22:22] Speaker 03:
Because they did not have control of Solzhen.

[00:22:25] Speaker 03:
They were an investor in Solzhen.

[00:22:28] Speaker 03:
And so that's why I think that you have to look at the claims he was bringing.

[00:22:34] Speaker 03:
He really wasn't bringing the claims against

[00:22:36] Speaker 03:
the two individuals as officers and directors of Solgen, he was bringing the claim against Edgewater because he wanted to try to get that investor into the mix.

[00:22:50] Speaker 03:
When you look at the allegations in the complaint,

[00:22:53] Speaker 03:
for example, against Mr. Jones.

[00:22:55] Speaker 03:
There's no allegation in the complaint that Mr. Jones had anything to do with his termination.

[00:22:59] Speaker 03:
There's one allegation that says he attended a meeting in August in which they discussed the accounting issues.

[00:23:08] Speaker 03:
So, I mean the complaint is based on a lot of conclusion allegations and in a motion to dismiss you don't have to take statements of conclusions of fact as statements.

[00:23:20] Speaker 03:
You have to have some factual support for those allegations.

[00:23:24] Speaker 03:
And I think plaintiff chose to bring the case that he did

[00:23:28] Speaker 03:
and crafted it the way he did, exactly the way he wanted to, and the court addressed that and ruled that as a matter of law under Washington, the law is clear that there's no wrongful termination of public policy against some employer other than the actual employer.

[00:23:46] Speaker 03:
And so that's why I think that the case was dismissed.

[00:23:50] Speaker 03:
there's no need to certify on that issue.

[00:23:52] Speaker 03:
With respect to the supervisor liability issue, I'm not even sure that's really in front of this case anymore.

[00:23:57] Speaker 03:
Again, he didn't really appeal their issue about were they acting on behalf of a soldier.

[00:24:06] Speaker 03:
The claim that remains is, well, they're still in the case for

[00:24:13] Speaker 03:
interfering with the contractual relationship that Mr. Hamburger had with Solzhen.

[00:24:18] Speaker 03:
That lawsuit, that claim is still in the case in Illinois if it gets filed.

[00:24:24] Speaker 03:
And so that's a separate claim, which is still in the case.

[00:24:30] Speaker 03:
That's why I think that there is a distinction there, and it's not

[00:24:35] Speaker 03:
your request as to whether you should certify that, yes, you have the discretion to do that.

[00:24:40] Speaker 03:
But I think where it's been addressed at the lower court and denied, I think you should find, well, why did the judge abuse his discretion to deny it?

[00:24:46] Speaker 03:
Because I do, again, think the law is clear.

[00:24:49] Speaker 03:
On the jurisdiction issue, I just want to point out that cases that we cited to in our brief, including Ziegler versus Indian River County,

[00:25:00] Speaker 03:
on page 16 of our answer in brief, and also Glenn Cograin, Rotterdam, also on page 16.

[00:25:07] Speaker 03:
They state the court must weigh all seven factors, and none are dispositive.

[00:25:14] Speaker 03:
Plaintiff's Council is trying to kind of pick here and pick here with respect to what the judge decided.

[00:25:18] Speaker 03:
I think the judge went through those factors and reached correct conclusions with each of them.

[00:25:23] Speaker 04:
I'm reviewing that to know that as well, correct?

[00:25:25] Speaker 03:
Yes, yes.

[00:25:27] Speaker 03:
And then also, the Glencore case found that finding that more factors weigh in favor of defendants over plaintiff renders jurisdiction unreasonable and dismissal of a lack of personal jurisdiction claim as warranted.

[00:25:43] Speaker 03:
I know there's courts that use the word compelling and things like that, but the bottom line is all these courts, they look and they balance them.

[00:25:49] Speaker 03:
And plaintiff's counsel said that it was four to three.

[00:25:52] Speaker 03:
It was really four to two with one slightly in favor of plaintiff.

[00:25:57] Speaker 02:
Well, counsel, how is it that the context is too attenuated?

[00:26:02] Speaker 02:
Solgen was just down the street here in Pasco.

[00:26:05] Speaker 02:
I mean, Jones and Snyder held officer positions with Solgen.

[00:26:13] Speaker 03:
One was an officer and one was a director.

[00:26:17] Speaker 03:
But they were at all times in Illinois, except for occasional travel here.

[00:26:22] Speaker 03:
But he's not suing Solzhen.

[00:26:24] Speaker 03:
He didn't sue Solzhen in this lawsuit.

[00:26:26] Speaker 03:
He sued Edgewater.

[00:26:28] Speaker 03:
And so the judge went through the thing where their contacts with the state

[00:26:35] Speaker 03:
were minimal.

[00:26:37] Speaker 03:
Occasional emails, a few letters, some phone calls, that the court, I think, correctly found with number factors one and two weighed in defendant's favor.

[00:26:49] Speaker 03:
And also the witnesses.

[00:26:51] Speaker 00:
Council, I read the district court's decision on this point to hold that the defendants had sufficient minimum context, not minimum context, that there were sufficient minimum context with Washington, but it would be unreasonable to hail them into court here.

[00:27:05] Speaker 00:
which I think is different than what you're arguing.

[00:27:09] Speaker 03:
Well, I think that the factors that the judge found, he found the four factors in favor of defendants, meaning it would be more burdensome on them.

[00:27:22] Speaker 00:
I understand your argument.

[00:27:24] Speaker 00:
I think to the point that Judge Mendoza was raising is that

[00:27:28] Speaker 00:
It's difficult, I think, for you to stand before us today and argue that there weren't sufficient minimum contacts when even the district court ultimately determined there were, and then on the balance of factors concluded that there wasn't personal jurisdiction.

[00:27:41] Speaker 00:
But I hear your argument now to even be taking back what the district court itself conceded.

[00:27:47] Speaker 03:
Yeah, no, I was focusing on the seven factors.

[00:27:50] Speaker 03:
And I didn't mean with respect to the first two.

[00:27:52] Speaker 03:
There's three, and then of the third, it's the seven.

[00:27:54] Speaker 03:
I was focusing on the seven, not the first or second.

[00:27:59] Speaker 04:
In your briefing, I think you did argue that district court erred in finding there were sufficient minimum contacts.

[00:28:04] Speaker 04:
Are you?

[00:28:06] Speaker 03:
That's in the brief.

[00:28:07] Speaker 03:
I think based on the discussions, we maintain that position.

[00:28:11] Speaker 03:
I'm not going to say that's our strongest position.

[00:28:13] Speaker 03:
For the purpose of this, we're looking at this.

[00:28:15] Speaker 04:
So you're focusing on the balancing.

[00:28:16] Speaker 03:
On the balancing, yes.

[00:28:21] Speaker 03:
That's all I had unless you had other questions.

[00:28:25] Speaker 04:
Thank you, counsel.

[00:28:29] Speaker 04:
Great, thank everyone.

[00:28:30] Speaker 04:
Sorry, yes, we have three minutes.

[00:28:33] Speaker 01:
Thank you.

[00:28:34] Speaker 01:
In terms of the certification, Washington law, we're dealing with the Washington Certification Statute.

[00:28:39] Speaker 01:
And as the court has said, you have as much opportunity to certify as the district court did.

[00:28:46] Speaker 01:
There's no requirement that I did or did not raise it there.

[00:28:48] Speaker 01:
I'm not punished for bringing it up there.

[00:28:51] Speaker 01:
Again, if this court believes that the three factors are met, then it should certify.

[00:28:58] Speaker 01:
The test was not articulated correctly because this is diversity.

[00:29:03] Speaker 01:
This court's role is to figure out, predict what the Washington Supreme Court is going to do.

[00:29:10] Speaker 01:
Again, I think the Iwana case doesn't really give us much.

[00:29:13] Speaker 01:
And by the way, what

[00:29:16] Speaker 01:
my opposing counsel just said here today is that they read it as limited to direct employers.

[00:29:21] Speaker 01:
That isn't how they read it in the district court.

[00:29:23] Speaker 01:
I'm looking at page ER 106.

[00:29:25] Speaker 01:
This is defendant's motion to dismiss, citing the Iwana case, declining to impose liability for common law discharge on an entity who was neither a direct nor a de facto employer.

[00:29:38] Speaker 01:
And so they read Erwana as allowing against de facto employers, and they just said factually.

[00:29:45] Speaker 01:
So they've changed their position on appeal because the district court misread it in a way that was completely prohibited.

[00:29:56] Speaker 01:
I want to, in terms of this issue, again, we're not up here, it wasn't dismissed on Iqbal Twombly, it's not about conclusory allegations, and on the personal jurisdiction,

[00:30:07] Speaker 01:
Mr. Heimberger has a detailed affidavit with not only facts, but emails showing that Edgewater, when they were talking about the offer, meeting between Edgewater and Solgen, we later found out that Edgewater wrote the termination script.

[00:30:25] Speaker 01:
I have it right here that they wrote.

[00:30:27] Speaker 01:
So the idea that they didn't run Edgewater, it's not before, but it's factually untrue.

[00:30:32] Speaker 01:
One last point is the transfer for venue motion.

[00:30:35] Speaker 01:
The district court didn't reach it.

[00:30:36] Speaker 01:
This court can decide this, however.

[00:30:39] Speaker 01:
In the Dole case, very similar, the district court dismissed the case for want of personal jurisdiction.

[00:30:45] Speaker 01:
The district court did not reach, in that case, a motion from nonconvenience, which is very similar to a transfer venue.

[00:30:53] Speaker 01:
This court nevertheless reached the issue in the matter of judicial economy.

[00:30:57] Speaker 01:
I think it can do so here.

[00:30:59] Speaker 01:
It's the same paper record in front of the district court as it would be here.

[00:31:02] Speaker 01:
And that the nine factors that support venue here, they really are strongly in favor of it.

[00:31:09] Speaker 01:
Again, the defendants have asked the court to do so, and we don't have an objection they're doing so.

[00:31:15] Speaker 01:
Again, it's obvious that there was...

[00:31:17] Speaker 01:
jurisdiction here and that venue is proper.

[00:31:21] Speaker 01:
So in sum, this court should reverse the personal jurisdiction ruling and should either reverse the ruling on the dismissal of the wrongful termination claim or certify that claim and the individual liability one.

[00:31:33] Speaker 01:
Just one last point, there are actually seven cases on this cited in the briefs on the individual liability.

[00:31:38] Speaker 01:
They go both ways, but as I said, the most recent trend is on our favor.

[00:31:42] Speaker 01:
Thank you, Your Honor.

[00:31:47] Speaker 04:
Thank you council for your helpful arguments today and I believe we are adjourned for the day.