Ricky Allen Lee v. Itt Corporation, an Indiana corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY ALLEN LEE and PAUL
VERNON RIGSBY, individually and on
behalf of all others similarly situated,
Plaintiffs - Appellees,
v.
ITT CORPORATION, an Indiana
corporation and ITT FEDERAL
SERVICES INTERNATIONAL
CORPORATION, a Delaware corporation,
Defendants - Appellants.
No. 12-35372
D.C. No. 2:10-cv-00618-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted July 8, 2013
Seattle, Washington
Before: KLEINFELD, M. SMITH, and N.R. SMITH, Circuit Judges.
FILED
JUL 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Lee and Rigsby worked for ITT Corporation in Kuwait. They sued ITT for
allegedly failing to pay them overtime and failing to perform other requirements
under their employment contracts. ITT appeals the district court’s order certifying
a class of “[a]ll employees of Defendant ITT Corporation or its subsidiaries who
performed work under the ‘GMASS’ contract in Kuwait.”
The district court correctly held that Kuwait’s substantive law governs these
claims, but erred in applying Washington’s six-year statute of limitations. “Except
as provided by RCW 4.18.040, if a claim is substantively based . . . [u]pon the law
of one other state, the limitation period of that state applies . . . .” Rev. Code
Wash. § 4.18.020. The district court erred by applying subsection 040, the “escape
clause,” which says, “[i]f the court determines that the limitation period of another
state applicable under RCW 4.18.020 . . . is substantially different from the
limitation period of this state and has not afforded a fair opportunity to sue
upon . . . the claim, the limitation period of this state applies.” Rev. Code Wash.
§ 4.18.040 (emphasis added).
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The Kuwait statute appears to be a statute of repose, for which the escape
clause is not available, Fields v. Legacy Health Sys., 413 F.3d 943, 954 (9th Cir.
2005), and even if it were not, we cannot see a basis for deeming it unfair, see Hein
v. Taco Bell, Inc., 803 P.2d 329, 334 (Wash. Ct. App. 1991). As for the unnamed
class members, one year after the employment contract ends does not deprive them
of a fair opportunity to sue. The laws of several states would provide no more
time, and sometimes less, in comparable circumstances of inconvenience. See,
e.g., Ariz. Rev. Stat. § 12-541 (one year after accrual); Del. Code Ann. tit. 10,
§ 8111 (one year after accrual). Nothing in the record shows that any of the
unnamed plaintiffs could not pursue their claims within one year of the contract’s
end because of the hardships associated with living and working in Kuwait. To the
contrary, the record shows that some unnamed class members knew about their
claims while they were in Kuwait, before their contracts ended: “I am aware that
other employees of ITT were not paid overtime in accordance with Kuwaiti law,
because this issue was the subject of frequent discussion among ITT employees,”
and Lee and Rigsby appear to have sued within one year as required under
Kuwait’s law.
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Because we cannot discern from the record how many class members would
be affected by applying the Kuwaiti statute, we vacate the order certifying the
class.
REVERSED and REMANDED.
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