NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEIL HORNSBY, Husband; MARICOR No. 15-35686
POAGE HORNSBY, Wife,
D.C. No. 2:14-cv-00394-SAB
Plaintiffs-Appellants,
v. MEMORANDUM*
ALCOA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Submitted December 7, 2017**
Seattle, Washington
Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
Plaintiff Neil Hornsby appeals the district court’s dismissal with prejudice of
his First Amended Complaint. We have jurisdiction under 28 U.S.C. § 1291, and
we review “a district court’s determination of whether a plaintiff’s complaint
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
complied with the notice pleading requirements” de novo. Lehman v. Nelson, 862
F.3d 1203, 1211 (9th Cir. 2017) (quoting Pickern v. Pier 1 Imp. (U.S.), Inc., 457
F.3d 963, 968 (9th Cir. 2006)).
From 2000 to 2002, and again from 2003 to 2008, Neil Hornsby worked at
Alcoa Wenatchee Works in various capacities in the pot rooms. In 2015, Hornsby
was diagnosed with congestive heart failure, Stage II. He then sued Alcoa under
Washington’s Industrial Insurance Act, RCW 51.24.020, alleging that Alcoa
deliberately injured him, and Alcoa removed the case to the district court. The
district court subsequently dismissed Hornsby’s First Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. We affirm
that dismissal.
Under Title 51 RCW, the Washington state legislature has created “a no-
fault system for efficiently compensating workers injured on the job. As part of
that system, employers receive immunity from civil suits resulting from on-the-job
injuries.” Walston v. Boeing Co., 181 Wash. 2d 391, 393 (2014). Employers who
deliberately injure their employees, however, are not immune from suit. Id. The
Washington Supreme Court has further clarified that the narrow exception to the
statute is reserved for claims where “the employer had actual knowledge that an
injury was certain to occur and willfully disregarded that knowledge.” Id. at 396
(quoting Birklid v. Boeing Co., 127 Wash. 2d 853, 865 (1995)). Therefore,
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Hornsby must plead that (1) Alcoa had actual knowledge that Hornsby’s injuries
were certain to occur, and (2) Alcoa willfully disregarded that knowledge.
“[W]e begin by taking note of the elements a plaintiff must plead to state a
claim . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Under Federal Rule of
Civil Procedure 8(a), “only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 679 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678. “Where a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.” Somers v.
Apple, Inc., 729 F.3d 953, 959–60 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).
This “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
The plausibility standard is not met here. In his First Amended Complaint,
Hornsby makes conclusory allegations that “Alcoa deliberately injured Plaintiff
Neil Hornsby because it had actual knowledge that an injury or disease was certain
to occur and willfully disregarded that knowledge.” In support of these
contentions, Hornsby points to Alcoa’s knowledge that (1) he had “collapsed from
heat stress in August 2005,” (2) “Hornsby’s [2007] individual pulmonary function
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results showed ‘mild restrictive’ with ‘no restrictions,’” and (3) a 2008 pulmonary
test “showing a further decline in his pulmonary function.”
Furthermore, Hornsby alleges that Alcoa had the requisite “actual
knowledge” that injury was certain to occur if Hornsby returned to work because it
was aware of various medical studies and testimony that showed it was
“biologically plausible for aluminum particles to cause pulmonary fibrosis,” and
“exposure to aluminum powder is thought to be directly correlated with the
development of pulmonary fibrosis in aluminum industry workers.”
Even if true, that is insufficient to state a plausible claim for relief.
Although Alcoa might have guessed that exposure to aluminum particles could be
harming Hornsby, it did not have “actual knowledge” that his 2005 collapse or
subsequent decline in pulmonary function was caused by his work alone.
Additionally, the studies and testimony cited by Hornsby undermine his own
claim, as they merely show that a connection between aluminum particles and
pulmonary fibrosis is “plausible” or “thought to be directly correlated.” Therefore,
Alcoa cannot be said to have actually known that Hornsby’s work in its factory
was the direct cause of his ailments or that if he returned to work “an injury was
certain to occur.” Walston, 181 Wash. 2d at 396.
Last, by Hornsby’s own account, he was unaware of his condition until
November 5, 2014―over six years after Hornsby left Alcoa. We find it difficult to
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reconcile the allegation that Alcoa had actual knowledge of impending or current
harm, with the fact that Hornsby himself did not know he was injured until years
later. That is not plausible. Accordingly, we affirm the district court’s dismissal of
Hornsby’s First Amended Complaint.
Costs awarded to Appellee Alcoa, Inc.
AFFIRMED.
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