Full opinion text
AMENDED ORDER AFTER RECONSIDERATION: (1) GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS, (2) DENYING DEFENDANT’S MOTION TO DISMISS UNDER FORUM NON CONVE-NIENS AND INTERNATIONAL COMITY, AND (3) GRANTING MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL (ECF Nos. 69 & 73) Honorable Jams L. Sammartino, United States District Judge Presently before the Court is Defendant Tokyo Electric Power Company, Inc.’s (“TEPCO”) Motion for Reconsideration or, Alternatively, for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b). (Mot. Reconsideration, ECF No. 73.) TEPCO asks the Court to reconsider its prior Order granting in part and denying in part TEPCO’s Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim or, in the Alternative, to Dismiss under the Doctrines of Forum Non Conveniens and International Comity. (See SAC Order, ECF No. 69 (granting in part and denying in part TEPCO’s Mot. to Dismiss, ECF No. 55.)) Having carefully considered the Parties’ arguments and the law, the Court (1) GRANTS TEPCO’s Motion for Reconsideration, (2) MAINTAINS its prior rulings, and (3) CERTIFIES this case for interlocutory appeal. This Order AMENDS and SUPERSEDES the Court’s prior Order docketed as ECF No. 69. FACTUAL AND PROCEDURAL BACKGROUND This Order incorporates by reference the factual and procedural background set forth in the Court’s Nov. 26, 2013 Order dismissing Plaintiffs’ First Amended Complaint (“FAC”) without prejudice. (FAC Order, Nov. 26, 2013, ECF No. 46.) This section presents a brief summary of the most relevant facts in order to provide context for the issues discussed below. Plaintiffs are members of the U.S. military who allege that they were injured by radiation exposure when they were deployed near the Fukushima-Daichi Nuclear Power Plant (“FNPP”) in Japan in the aftermath of the disastrous earthquake and tsunami that struck that country on March 11, 2011. On December 21, 2012 Plaintiffs initiated this action against TEP-CO, which owns and operates the FNPP, and subsequently filed the FAC on June 4, 2013. 1. First Amended Complaint Plaintiffs’ FAC alleged that TEPCO “conspired and acted in concert with the Japanese Government ... to create an illusory impression that the extent of the radiation that had leaked from the site of the FNPP was at levels that would not pose a threat” to human health and safety, and that TEPCO “failed to alert public officials, including the U.S. Navy, the Plaintiffs, and the general public, to the danger of coming too close to the FNPP.” (See FAC ¶¶ 70,109, ECF No. 21.) On November 26, 2013, the Court granted TEPCO’s motion to dismiss the FAC, concluding that subject matter jurisdiction was lacking because Plaintiffs’ claims were non-justiciable under the political question doctrine. (FAC Order 9, Nov. 26, 2013, ECF No. 46.) The Court determined that adjudicating Plaintiffs’ claims would require impermissible scrutiny of the U.S. military’s discretionary judgments regarding deployment of personnel and would also require evaluation of the Japanese Government’s communications with the U.S. Government regarding the FNPP. (Id. at 7-9.) The Court dismissed Plaintiffs’ claims with leave to amend and declined to address TEPCO’s arguments for dismissal on the merits or its arguments urging dismissal on the basis of forum non conve-niens and international comity. 2. Second Amended Complaint On February 5, 2014, Plaintiffs filed the Second Amended Complaint (“SAC”), omitting claims grounded in TEPCO’s purported fraud and misrepresentation, and instead relying on allegations that TEPCO .was negligent in the siting, design, construction, and operation of the FNPP. Plaintiffs maintain, inter alia, that TEPCO failed to adhere to basic safety requirements in designing and operating the FNPP, failed to take adequate measures to prevent and minimize nuclear accidents, and failed to develop a suitable evacuation plan in case of emergency. (SAC ¶ 109, ECF No. 50.) Plaintiffs further allege that TEPCO ignored warnings that the FNPP was at risk of significant damage from a tsunami, failed to make necessary repairs to the plant’s cooling system, and failed to carry out timely inspections of other critical equipment. (Id. at ¶¶ 114, 118-19.) Plaintiffs contended that because they no longer relied on TEPCO’s affirmative representations and fraud, the Court was not required to analyze any decision made by the Executive Branch of the U.S. Government, thereby avoiding the justicia-bility issue. TEPCO moved to dismiss once again, arguing that Plaintiffs’ revised claims did not remedy the deficiencies previously identified by the Court. (Mot. to Dismiss 1, ECF No. 55.) TEPCO filed the operative Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim or, in the Alternative, to Dismiss under the Doctrines of Forum Non Conveniens and International Comity. (Mot. to Dismiss, ECF No. 55.) In addition, Plaintiff filed a Response in Opposition (Plaintiffs Resp. in Opp’n, ECF No. 59.) and TEPCO filed a Reply in Support (Reply ISO Mot. to Dismiss, ECF No. 62.) of the Motion to Dismiss. According to TEPCO, the new theory of liability elaborated in Plaintiffs’ SAC remained inadequate because it still relied on an account of causation of injury that implicated the deployment decisions of the U.S. Navy and high-level communications between the Japanese and U.S. Governments, thereby raising the same issues of justiciability that warranted dismissal of the original pleading. (Id.) In addition, TEPCO emphasized that Plaintiffs’ claims failed on the merits and that this suit should be dismissed on the grounds of forum non conveniens and international comity to allow for litigation to proceed in Japan. (Id. at 4-6.) Additionally Plaintiffs filed a Motion to Amend Second Amended Complaint to Add Doe Defendants and Doe Plaintiffs. (Mot. to File Am. Compl., ECF No. 65.) The Court considered TEPCO’s Response in Opposition, (TEPCO’s Resp. in Opp’n, ECF No. 67.), and Plaintiffs’ Reply in Support (Reply ISO Mot. to File Am. Compl., ECF No. 68.) of the Motion to Amend. After oral argument the Court took both matters under submission and on October 28, 2014, the Court issued its Order granting in part and denying in part TEPCO’s motion. (Order, ECF No. 69.) The Court granted TEPCO’s motion to dismiss Plaintiff’s strict liability and design defect claims as well as Plaintiffs claims on behalf of Doe plaintiffs. (Id.) The Court denied TEPCO’s motion to dismiss for lack of subject matter jurisdiction. (Id.) In so deciding, the Court reasoned that Plaintiffs’ amended theory of causation did not implicate any of the Baker factors and that the military judgment in this instance is not the kind that warranted application of the political question doctrine. (Id. at 9.) Further, the Court found that Plaintiff adequately alleged proximate causation as against TEPCO. (Id. at 12.) The Court determined that the Firefighter’s Rule was not a bar to recovery because it does not apply to independent acts of misconduct which were not the cause of a plaintiffs presence at the scene. (Id. at 13.) Lastly, the Court denied TEPCO’s motions to dismiss under the doctrines of forum non conveniens and international comity. (Id.) 3. Motion for Reconsideration, or Alternatively, for Certification Subsequently, TEPCO filed a Motion for Reconsideration or, Alternatively, for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b). (Mot. Reconsideration, ECF No. 73.) Plaintiff filed a Response in Opposition to (Opp’n Reconsideration, ECF No. 84) and TEPCO filed a Reply in Support of (Reply Reconsideration, ECF No. 90) the Motion. TEPCO premises its Motion for Reconsideration on the grounds of (1) an intervening change in controlling law in International Comity analysis and (2) clear error with respect to the Court’s Causation and Firefighter’s Rule analysis. (Mot. Reconsideration 1-3, ECF No. 73-1.) TEPCO requests that if the Court does not reconsider its Order and dismiss the case, then the Court should certify the Order (or an Amended Order) for interlocutory appeal. The Court heard oral argument regarding the motion on March 12, 2015. I. RECONSIDERATION 1. Legal Standard In the Southern District of California, a party may apply for reconsideration “[wjhenever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part.” Civ. L.R. 7.1(i)(l). The moving party must provide an affidavit setting forth, inter alia, new or different facts which previously did not exist. Id. Generally, reconsideration of a prior order is “appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (citation omitted). Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000) (citation omitted). Ultimately, whether to grant or deny a motion for reconsideration is in the sound discretion of the district court. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir.2003) (citing Kona Enters., 229 F.3d at 883). A party may not raise new arguments or present new evidence if it could have reasonably raised them earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999)). 2. Analysis TEPCO premises its Motion for Reconsideration on the grounds of (1) an intervening change in controlling law and (2) clear error. (Mot. Reconsideration 1-3, ECF No. 73-1.) The Court addresses each basis in turn. A. Intervening Change in Controlling Law TEPCO alleges that an intervening change in controlling law justifies its Motion for Reconsideration. {Id. ■ at 9.) Specifically, TEPCO argues that the Ninth Circuit’s decision in Mujica v. AirScan, Inc., 771 F.3d 580 (9th Cir.2014) — handed down two weeks after this Court’s Order— substantially alters the legal standard governing international comity. {Id.) In its Order denying dismissal based on international comity, the Court relied on the three-part Ungaro-Benages test, analyzing: (1) the strength of the U.S.’s interests in using a foreign forum, (2) the strength of the foreign government’s interests, (3) and the adequacy of the foreign forum. Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1232 (11th Cir.2004). TEPCO argues that reconsideration is warranted in light of the Ninth Circuit’s substantial revision and elaboration of the factors to be considered in evaluating the first two elements of the Ungaro-Benages framework. (Mot. Reconsideration 10, ECF No. 73-1.) TEPCO notes that while the court in Mujica endorsed Ungaro-Benages ’ framework as a useful starting point, it held that the framework lacked substantive standards for assessing its three factors and did not provide sufficient guidance to district courts. {Id. at 5.) The Mujica court articulated a five-factor test that may be applied in assessing the interests of the respective countries and TEP-CO contends that the Court should consider this guidance now. (Id.) With respect to both the U.S. and foreign country’s interests, the Ninth Circuit held that courts should consider the nonexclusive factors including: (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 United States, and (5) any public policy interests. Mujica, 771 F.3d at 604, 607. Under a renewed analysis using Mujica’s five factors, TEPCO contends that the case should be dismissed. Plaintiff responds that although Mujica clarified how a district court should evaluate a comity claim, it left unchanged the primary factors a court should use in deciding the claim. (Opp’n 8, ECF No. 84.) The Court AGREES with TEPCO that Mujica’s holding is relevant in this case, and a renewed analysis in light of the opinion is warranted. Accordingly, the Court AMENDS its Order below to incorporate the Mujica factors. (See infra pp. 39-49.) B. Clear Error TEPCO contends that reconsideration is warranted due to clear error in the Court’s Order regarding its (1) superseding cause analysis and (2) application of the Firefighter’s Rule. (Mot. for Reconsideration 17, ECF No. 73-1.) The Court AGREES with TEPCO that in light of its allegations of clear error, a renewed analysis of the Order is warranted. Accordingly, the Court AMENDS its Order to incorporate the Parties’ supplemental arguments and to clarify its ruling. (See infra pp. 1117-28.) C. Conclusion Accordingly, the Court AMENDS the following sections, taking into account the parties subsequent briefing on reconsideration: Subject Matter Jurisdiction, Proximate Causation, Firefighter’s Rule, and International Comity. II. TEPCO’S MOTION TO DISMISS PLAINTIFFS’ SAC FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM OR, IN THE ALTERNATIVE, TO DISMISS UNDER THE DOCTRINES OF FORUM NON CONVENIENS AND INTERNATIONAL COMITY SUBJECT MATTER JURISDICTION TEPCO moves to dismiss Plaintiffs’ SAC for lack of subject matter jurisdiction, arguing that the SAC raises nonjusticiable political questions. 1. Legal Standard A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a court’s subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that “may not grant relief absent a constitutional or valid statutory grant of jurisdiction” and are “presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir.2003) (internal quotations omitted). “[Disputes involving political questions lie outside of the Article III jurisdiction of federal courts.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir.2007). The political question doctrine forecloses judicial review of controversies which revolve around policy choices constitutionally committed to Congress or the Executive branch. Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). Like other doctrines of justiciability, such as standing, mootness, and ripeness, the political question doctrine is grounded in respect for the Constitution’s separation of powers. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (“The nonjusticiability of a political question is primarily a function of the separation of powers.”). A case should be dismissed on political question grounds if one of the following characteristics is present: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. Determining whether a case involves a nonjusticiable political question requires a “discriminating inquiry into the precise facts and posture of the particular case.” Id. at 217, 82 S.Ct. 691. Courts must analyze “the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action.” Id. at 211-12, 82 S.Ct. 691. While many cases involving foreign relations or the military invoke the political question doctrine, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id. at 211, 82 S.Ct. 691. Courts must determine, in light of the Baker factors, “whether the military judgment is the kind that warrants application of the political question doctrine.” McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1358 (11th Cir.2007). The court “must analyze [a plaintiffs] claim as it would be tried, to determine whether a political question will emerge.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1281 (11th Cir.2009) (citing Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum, 577 F.2d 1196 (5th Cir.1978)). 2. Analysis TEPCO argues that the first, second, third, and fourth Baker factors are implicated in Plaintiffs’ theory of causation, and that the Court, therefore, lacks subject matter jurisdiction over this case. (Mot. to Dismiss 16-17, ECF No. 55.) Plaintiffs maintain that they have “redirected the focus of their claims” away from TEPCO’s alleged misrepresentations and fraud, and toward TEPCO’s negligent acts and omissions prior to, and during, the nuclear accident at the FNPP. (Plaintiffs’ Resp. in Opp’n 6, ECF No. 59.) According to Plaintiffs, because the SAC no longer rests on the theory that TEPCO’s misrepresentations influenced military judgments regarding deployment of personnel and assets, the Court need not “stand in judgment over any decision made by the Executive Branch of the U.S. Government.” (Id. at 1.) Plaintiffs contend that their action as amended is now merely one for “ordinary negligence,” which can be resolved through the application of “traditional tort standards” that do not raise political questions. (Id. at 10.) In particular, the SAC seeks to impose liability for TEPCO’s “intentional and negligent oversight in construction, design, regulatory compliance, maintenance, training, emergency readiness, emergency responses, and decision making during the emergency.” (Id. at 11-12.) TEPCO rejects this characterization of the SAC. Despite Plaintiffs’ efforts to restyle their pleading by dropping their cause of action for fraud, TEPCO contends that Plaintiffs are nonetheless required to “plead and prove that the chain of causation [of -injury] was not broken by the U.S. Navy’s independent decisionmaking about where to locate the vessels and what protective measures to take.” (Reply ISO Mot. to Dismiss 3, ECF No. 62.) Because the Navy’s contribution to causation remains in issue, TEPCO argues that the Court cannot adjudicate Plaintiffs’ negligence claims without implicating several of the Baker factors. TEPCO asserts that Plaintiffs continue to rely on concealment by TEPCO and the Japanese government. After reevaluating the “chain of causation” in this case, the Court agrees with Plaintiffs that the SAC as amended no longer requires the Court to evaluate the discretionary actions of the U.S. military or communications between the Japanese and U.S. Governments. In reaching this decision the Court must make á “discriminating inquiry into the precise facts and posture” of this case. A. Factual Causation Causation in fact is one necessary element in causation analysis. See USAir, Inc. v. U.S. Dept. of Navy, 14 F.3d 1410, 1413 (9th Cir.1994) (citing Maupin v. Widling, 192 Cal.App.3d 568, 237 Cal.Rptr. 521, 524 (Cal.Ct.App.1987)). As alleged, TEPCO’s negligence was a factual cause of Plaintiffs injuries. Plaintiffs allege that TEPCO failed to adhere to basic safety requirements in designing and operating the FNPP, failed to take adequate measures to prevent and minimize nuclear accidents, failed to develop a suitable evacuation plan in case of emergency, failed to make necessary repairs to the plant’s cooling system, failed to carry out timely inspections of critical equipment, and ignored warnings that the FNPP was at risk of significant damage from a tsunami. (SAC ¶¶ 109, 114, 118-19, ECF No. 50.) These negligent acts, in conjunction with the earthquake and tsunami, led to the FNPP’s ultimate failure which caused Plaintiffs and many other people within the FNPP’s vicinity to fall ill. The Navy’s decision to deploy personnel and assets in support of Operation Tomo-dachi is also a factual cause of Plaintiffs injuries. Accepted as true, the SAC states that the Navy transported Plaintiffs into the vicinity of the FNPP in response to the earthquake and tsunami in order to provide humanitarian relief to Japan. Aside from transporting Plaintiffs into the area, the executive branch had no role in the chain of causation for Plaintiffs’ injuries as alleged in the SAC. B. Proximate Causation TEPCO contends that the U.S. military’s contribution to causation should limit its liability in this case. If the U.S. military’s actions were a superseding cause that cut off TEPCO’s liability, TEPCO’s allegedly negligent acts or omissions were not a proximate cause of Plaintiffs’ injuries. See USAir, 14 F.3d at 1413. (i) Legal Standard The doctrine of proximate causation limits liability. 6 Witkin, Summary 10th (2005) Torts, Cause in Fact and Proximate Cause s. 1186, p. 553 (2012). In certain situations where the defendant’s conduct is an actual cause of plaintiffs harm, the defendant will nevertheless be absolved where there is an independent intervening act that was not reasonably foreseeable. Id.; Farr v. NC Mach. Co., 186 F.3d 1165, 1169 (9th Cir.1999) (“the doctrine of superseding intervening cause is at bottom an expression of the requirement of foreseeability”) (citing Robert E. Keeton, Legal Cause In the Law of Torts 38-41 (1963)); See Akins v. Sonoma Cnty., 67 Cal.2d 185, 199, 60 Cal.Rptr. 499, 430 P.2d 57 (1967) (Whether defendant is liable “revolves around a determination of whether the later cause of independent origin ... was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable”). A superseding cause must be something more than a subsequent act in a chain of causation: It must be an act that was not reasonably foreseeable at the time of the defendant’s negligent conduct. Moreover, even if the intervening act is negligent, it is not a superseding cause if the first actor should have known that a third person might so act. USAir, 14 F.3d at 1413 (citing Restatement (Second) of Torts § 447(a)); Earp v. Nobmann, 122 Cal.App.3d 270, 175 Cal.Rptr. 767, 780 (Cal.Ct.App.1981). California has adopted sections 442 through 453 of the Restatement (Second) of Torts. USAir, 14 F.3d at 1413. These sections discuss whether an intervening force should be considered a “superseding cause” thereby limiting an actor’s liability for harm which his antecedent negligence was a substantial factor in bringing about. Restatement (Second) of Torts §§ 440-53 (1965). Relevant considerations include: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation; (d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act; (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. Usually, “the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm.” Id. § 452(1). However, section 452(2) covers the exceptional case where the entire responsibility for a situation has been shifted to a third party: Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause. Where a third person has the opportunity to take affirmative action to avert the threatened harm, various factors should be considered, including: “the degree of danger and the magnitude of the risk of harm, the character and position of the third person who is to take responsibility, his knowledge of the danger and the likelihood that he will or will not exercise proper care, his relation to the plaintiff or to the defendant, the lapse of time, and perhaps other considerations.” Restatement (Second) of Torts § 452(2) cmt. f. (ii) Analysis TEPCO argues that the Navy’s independent decision to send the U.S.S. Reagan to Japan was a superseding cause of Plaintiffs’ harm, which limited TEPCO’s liability by breaking the chain of proximate causation. To determine whether the Navy’s decision was a superseding cause, TEPCO argues that the Court will be required to evaluate the discretionary decisions of military commanders, which would invoke a political question and deprive the Court of subject matter jurisdiction. As a threshold matter, the Court notes that superseding cause is usually a factual issue that would be determined by a jury. See Benefiel v. Exxon Corp., 959 F.2d 805, 808 (9th Cir.1992). However in the instant case, TEPCO argues that where the military’s discretionary decision making is a step in the chain of causation of injury, the inquiry into whether the Navy’s decision could be a superseding cause would necessarily raise a nonjusticia-ble political question, thus depriving the Court of jurisdiction. Although TEPCO argues that under these circumstances the inquiry itself raises a non-justiciable political question, the Court must look at the nature and extent of the military’s involvement and decide whether it is the type of ease where a political question is necessarily implicated. See McMahon, 502 F.3d 1331 (11th Cir.2007) (not all cases involving the military are necessarily foreclosed by the political question doctrine). (a) Foreseeability At the outset, TEPCO argues that “it was not foreseeable that the most sophisticated military in the world [would] place its servicemembers ’two miles’ from the FNPP and do so after Unit 1 had already exploded and the risk of radiation was well-known.” (Mot. Reconsideration 18, n.5, ECF No. 73-l(citing N.Y. Times articles which came out the day of and the day after the tsunami when Plaintiffs allegedly arrived off the coast of Japan).) On the other hand, Plaintiffs argue that TEPCO was aware of the risks of engaging in an ultra-hazardous activity, aware of the applicable safety standards, aware of the potential for an earthquake, aware that in the past, the U.S. and other allies had provided humanitarian aid in the aftermath of earthquakes and other emergencies, and that harm to foreign relief workers in the vicinity was foreseeable. (Opp’n Reconsideration 24-25, ECF No. 84.) Plaintiffs argue that TEPCO’s unstated assertion is that the Navy was negligent in entering the radioactive zone. (Id. at 26.) However, Plaintiffs allege that upon discovering the increasing radioactivity, the Military Command ordered its fleet further out to sea. (Id.) Plaintiffs contend that it is unreasonable to believe that Military Command would knowingly place itself and its crewmembers in a zone of life-threatening radioactivity. (Id.) At this early stage in the proceedings, TEPCO does not persuade the Court that the U.S. military’s decision-making could constitute a superseding cause of Plaintiffs’ injuries. It is foreseeable that as a result of an improperly designed and maintained nuclear plant, people present in the vicinity would be adversely affected by radiation. Likewise, the Navy’s presence in this scenario was foreseeable. In the aftermath of a natural disaster, it is foreseeable that foreign military and aid-workers would be among those in the vicinity. It would be improper to shift the entire responsibility from TEPCO to the Navy where the Navy’s actions were a foreseeable consequence of the very negligence alleged against TEPCO. “In line with the fundamental rule of foreseeability, the courts have largely abandoned the effort to construct a rule of law that exculpates the first actor merely because a second actor has discovered the danger and could avoid it.” Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts 213 (2d ed.). Even if TEPCO claims that the Navy was somehow negligent, “it is not a superseding cause if the first actor should have known that a third person might so act” or if the action of the third party was not highly extraordinary given the circumstances. USAir, 14 F.3d at 1413; Restatement (Second) of Torts § 447. The SAC alleges that the Navy’s actions were reasonable. Plaintiffs contend that once the U.S.S. Reagan detected unsafe levels of radiation, the ship withdrew from the area! Further, TEPCO presents no facts showing the U.S. military’s precautions were inadequate or unreasonable. TEPCO only points out that the Navy is a sophisticated entity with the independent capability of knowing the risks incident to a natural disaster. (Mot. to Dismiss 25, ECF No. 55.) As discussed above, the Navy’s actions were foreseeable, they appear to be reasonable in light of Plaintiffs’ SAC, and they do not overwhelm and supplant TEP-CO’s negligence. (b) Third Party’s Failure to Prevent Harm In addition, although TEPCO did not initially rely on the Restatement, in its Motion for Reconsideration TEPCO states that its “superseding cause argument is embodied by section 452(2)”: Third Person’s Failure to Prevent Harm. (Id. at 20.) TEPCO argues that the factors as outlined in the Restatement’s comment show that the Navy’s decision to send servicemem-bers into, this dangerous situation may act as a superseding cause and litigation of this case will therefore require an inquiry into the Navy’s decision making. (Id. at 22.) First, TEPCO states that the Navy’s character and position enabled it to take responsibility to prevent Plaintiffs from radiation. (Id.) Second, TEPCO argues, it is unlikely that the Navy would not exercise proper care. (Id.) Third, the Navy has complete control over servieemembers and a duty to care for and protect them. (Id.) Fourth, TEPCO contends that the lapse of time makes it clear that the Navy had actual knowledge of the danger of radiation. (Id.) The Court is not persuaded by TEPCO’s “third party failure to prevent harm” argument. Analysis of the relevant factors does not establish that the Navy’s actions constituted a supervening cause and that duty shifted from TEPCO to the Navy. First, the degree of danger and the magnitude of the risk of harm were great because TEPCO was conducting the ultra-hazardous activity of running a nuclear power plant. In addition, the Navy’s knowledge of the danger is unclear at this stage in this litigation. Although there appears to have been general knowledge of the potential nuclear leak, the extent of the leak and the magnitude of danger were likely unknown, especially given the close time frame between the disaster and the Navy’s arrival. Even assuming the Navy knew of the existence of the leak, it is likely that the Navy exercised proper care over the servieemembers. Next, although the Navy was in the position to take responsibility for the care of the service-members, it is not mutually exclusive that the Navy acted reasonably and that harm also resulted. In addition, the Navy had no relationship with TEPCO. Lastly, there was only a short lapse of time between the disaster and the Navy’s arrival, within one day, and this was amidst an ongoing humanitarian disaster. (c) Baker Factors Moreover, in light of the specific factual posture of this case, as discussed above, the Court does not find any Baker factors or separation of powers concerns to be implicated. While deployment decisions regarding military personnel operating in a disaster zone are essentially professional military judgments, and therefore could implicate a political question, here no military judgments need be reviewed. The crux of the case is not whether the decision to deploy or the actions taken during the deployment were reasonable. The Navy’s choices only incidentally come into play as a potential affirmative defense to Plaintiffs’ theory of negligence, and as discussed above, that theory is likely not viable. The first Baker factor “is primarily concerned with direct challenges to actions taken by a coordinate branch of the federal government”. Lane v. Halliburton, 529 F.3d 548, 560 (5th Cir.2008). Here, Plaintiffs are not challenging the executive decision to offer aid to Japan or questioning U.S. foreign relations decisions. Next, in resolving this case, the Court will rely on well-established tort standards for judging a private corporation’s negligence, and thus the second Baker factor is not implicated. Plaintiffs ask the court to judge TEP-CO’s policies and actions, not those of the military or Executive Branch, and accordingly, the third Baker factor is not implicated. To recover, Plaintiffs do not need this Court to evaluate the Executive’s longstanding policy of deploying military to assist with humanitarian aid. All parties accept that the Executive acted within its discretionary authority to deploy the U.S.S. Reagan to support the humanitarian mission in Japan. (See RT 29, ECF No. 99.) TEPCO’s “intended defense has not been shown as legitimately implicating this broad, policy-based decision.” See Lane, 529 F.3d at 563. And unlike the other cases presented before the court where the circumstances were thoroughly pervaded by military judgments and decisions, here, the allegedly negligent conduct is easily separated from the actions of the U.S. Navy both temporally and factually. Cf. Carmichael, 572 F.3d at 1282-83 (suit against military contractor related to driver’s negligence in an Iraqi convoy accident nonjusticiable because convoy controlled by U.S. military); Corrie, 503 F.3d at 980 (Palestine nationals suing private corporation for selling bulldozers to Israel where bulldozers approved and paid for by U.S.); Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir.2011) (political question barred negligence claim against military contractor working in combat zone when unauthorized military personnel interfered with repair of electrical box). TEPCO is not a military contractor or otherwise under the control or direction of the United States. Were the actions of TEPCO and the military so intertwined that to question TEPCO’s decisions would necessarily question the Navy’s decisions, any contribution to causation could very well raise a nonjusticiable political question. However, it is unclear from TEPCO’s briefing and oral argument how resolving this case would question or impose upon the discretionary decisions of the executive branch. (See RT 22-38, ECF No. 99.) TEPCO thinks that in hearing this case, the Court would have to question how the mission was conducted. However, at this point, the Court thinks it could hear evidence with respect to where certain ships were located and what protective measures were taken without passing judgment on the executive’s decisions. Therefore, the fourth Baker factor is not implicated. Accordingly, because the Court finds that Plaintiffs’ amended theory of causation does not implicate any of the Baker factors, the Court need not delve into the discretionary decisions of the executive branch, and the military judgment in this instance does not warrant application of the political question doctrine. The Court notes that Plaintiffs substantively changed their theory of the case in the SAC in order to alleviate the Court’s justiciability concerns. Plaintiffs’ FAC relied on the Japanese Government and TEPCO’s deception regarding the condition of the FNPP. Plaintiffs’ alleged a chain of causation involving TEPCO’s communications with the Navy and the Navy’s reliance on those misrepresentations. This necessarily included the issue of whether the Navy justifiably relied on TEPCO’s misrepresentations and whether the Navy made an informed decision in-deploying personnel near the FNPP. See Corrie, 503. F.3d at 983 (“Whether to grant military or other aid to a foreign nation is a political decision inherently entangled with the conduct of foreign relations.”). Accordingly, the Court dismissed the FAC as nonjustieiable. However, the SAC omits these allegations. The SAC no longer alleges that had it not been for TEPCO’s distribution of false information regarding radiation levels at the FNPP, military commanders would have adopted a different course of action. Similarly, the SAC no longer alleges that “but for TEPCO’s allegedly wrongful conduct, the military would not have deployed personnel near the FNPP or would have taken additional measures to protect service members from radiation exposure.” (Order 7, Nov. 26, 2013, ECF No. 46.) Moreover, Plaintiffs no longer specifically allege that the Japanese Government was TEPCO’s ‘co-conspirator’ in providing misleading information to the Navy, (Mot. to Dismiss 18, ECF No. 55.), and, the Court therefore need not examine the Japanese Government’s disclosures to the U.S. military. (See Reply in Supp. 7-9, ECF No. 62.) The “residual factual allegations asserting (1) TEPCO’s affirmative misrepresentations that the conditions at the reactor complex were within safe limits, and (2) that the radioactive release was far more dangerous than TEPCO communicated, are not the basis of Plaintiffs claims in the SAC.” (Resp. in Opp’n 11, ECF No. 59.) TEPCO argues throughout its motion to dismiss that these statements continue to support its political question defense. However, these allegations, “although included in the SAC,” are not the basis for Plaintiffs current claims as is evident from the briefing and oral argument. TEPCO’s motion to dismiss for lack of subject matter jurisdiction is therefore DENIED. FAILURE TO STATE A CLAIM 1. Legal Standard Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted.” The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ’detailed factual allegations,’ ... it [does] demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, “a plaintiffs obligation to provide the ’grounds’ of his ’entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); see also Fed.R.Civ.P. 12(b)(6). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “ ‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. This review requires context-specific analysis involving the Court’s “judicial experience and common sense.” Id. at 1950 (citation omitted). “[Wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. Moreover, “[f]or a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading.” McCalden v. Ca. Library Ass’n, 955 F.2d 1214, 1219 (9th Cir.1990) (internal quotation marks omitted). Where a motion to dismiss is granted, “leave to amend should be granted ‘unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’ ” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401. 2. Analysis TEPCO moves to dismiss each of Plaintiffs’ asserted causes of action for failure to state a claim for which relief could be granted. The Court considers each of TEPCO’s arguments in turn. A. Proximate Causation TEPCO contends that Plaintiffs fail to satisfy the crucial element of proximate causation, such that all nine of their claims must be dismissed because there is no plausible connection between TEPCO’s allegedly wrongful conduct and Plaintiffs’ injuries. TEPCO relies on the same argument discussed above regarding the U.S. military’s role in causation and its unlikely reliance on TEPCO’s representations. (Mot. to Dismiss 21, ECF No. 55.) As discussed above, the Court finds that Plaintiffs have sufficiently pled proximate causation. As alleged, Plaintiffs harms were directly caused by TEPCO’s negligence and Plaintiffs no longer contend that the military based its decision to deploy on TEPCO’s representations. Additionally, the Court finds TEPCO’s reliance on the Ninth Circuit’s decision in Galen v. Cnty. of L.A., 477 F.3d 652 (9th Cir.2007), and the First Circuit’s decision in Jacob v. Curt, 898 F.2d 838 (1st Cir.1990), to be misplaced. TEPCO contends that “when the decisionmaking of a government body is an essential step in the chain of causation of injury, a plaintiffs burden to plead and prove proximate causation requires a showing that the government’s decisionmaking was not the result of its own independent judgment.” (Mot. to Dismiss 21, ECF No. 55.) In both cases, plaintiffs sued individuals who had made statements leading to a later independent government decision. In Galen, the court identified that California law vests judicial officers with “the exclusive authority to enhance or reduce bail.” 477 F.3d at 663. Therefore, a deputy’s recommendation with respect to setting bail could not subject that deputy to liability for the judicial officer’s decision. Id. In Jacob, the court held that a researcher could not be found liable for a foreign government’s decision to close a health clinic because of the researcher’s prior article criticizing the clinic. 898 F.2d at 839. In Galen and Jacob, due to the nature of the successive independent decisions, the government officials who made the subsequent decisions were the exclusive proximate cause of plaintiffs’ harm. In both cases, the courts held that the independent government decisions were superseding causes that broke the chain of causation. The situation before the Court is factually and legally distinguishable from these two cases. As alleged, TEPCO’s negligence was unrelated to the Navy’s decision to offer aid to Japan. As discussed previously, the Navy’s decision to offer aid to Japan and to transport servicemembers into the area as part of that mission did not supplant TEPCO’s allegedly negligent behavior. The Court finds that the SAC sufficiently alleges that TEPCO’s negligence was a proximate cause of Plaintiffs’ injuries. Accordingly, the Court DENIES TEPCO’s motion to dismiss on this basis. B. Firefighter’s Rule TEPCO contends that Plaintiffs’ recovery is barred under the “firefighter’s rule,” because as professional rescuers, they cannot recover for injuries caused by a hazard incident to the situation to which they responded. (Mot. to Dismiss 22, ECF No., 55.) TEPCO maintains that Plaintiffs, as members of the U.S. Armed Forces participating in Operation Tomoda-chi, were acting as professional rescuers and are therefore covered by the “firefighter’s rule.” (Id. at 23) (citing Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254, 257-58 (1975).) TEPCO argues that the same event which drew the Navy also caused, in combination with- another’s tortious conduct, a further consequence that harmed the responders. (Mot. Reconsideration 24, ECF No. 73-1.) TEPCO argues that this factual situation is evident in several cases and that the Firefighter’s Rule consistently bars liability. TEPCO contends that the case that most squarely addresses this fact pattern is White v. Edmond, 971 F.2d 681 (11th Cir.1992), in which the plaintiff firefighter responded to a fire and then, as a direct result of the fire, the allegedly negligently designed shock absorbers on a Volvo in the garage exploded and injured the firefighter. Id. at 682-83. The Court held that the Fireman’s Rule barred suit against the manufacturer because the “possibility of an unexpected explosion” was within the range of “anticipated, risks of firefighting.” Id. at 689. TEPCO points to a distinction within the cases where a defect manifests itself coincident with rather than because of the event. (Id. at 25-26.) For example, in Stapper v. GMI Holdings, Inc., 73 Cal.App.4th 787, 86 Cal.Rptr.2d 688 (1999), the plaintiff firefighter was injured when, during the course of a house fire, the defendant’s allegedly defectively designed garage door opener malfunctioned and plaintiff was trapped in the garage. Id. at 790, 86 Cal.Rptr.2d 688. The Court noted that, because the plaintiff alleged that the door malfunction was not caused by the fire, plaintiffs claim was not barred by the firefighter’s rule. Id. at 793, 86 Cal.Rptr.2d 688 n. 2; see also Lipson v. Superior Court, 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822 (1982) (explaining firefighter’s rule would not apply to a gasoline tank explosion which occurred independently of an electrical fire which was responsible for a fireman’s presence at the house) and Rowland v. Shell Oil Co., 179 Cal.App.3d 399, 224 Cal.Rptr. 547 (1986) (where truck driver failed to properly handle his vehicle and it tipped over, leading in turn to a “chemical spill” from the vehicle, the court held that the negligence that triggered the accident was not independent of the resulting spill, and therefore the firefighter’s ultrahazardous-liability claim for injuries incurred while responding to the spill were barred by the firefighter’s rule). Here, TEPCO argues, the negligence was not independent of the tsunami/earthquake, but a shared underlying cause of Plaintiffs’ injuries. (Mot. Reconsideration 26, ECF No. 73-1.) Further, TEPCO argues that the Navy knew of the risk of radiation, so it was reasonable to anticipate the harm and therefore it was a risk inherent in responding to the natural disaster. (Id. at 26-27.) Accordingly, because Plaintiffs’ injuries were due to a shared underlying cause created by defendant and the condition that brought the rescuer to the scene, the Firefighter’s Rule should be a bar to liability. (Id. at 27.) However, Plaintiffs contend that the firefighter’s rule does not apply to them because a nuclear meltdown is not a risk inherent in offering humanitarian assistance. See Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, 369, 99 Cal.Rptr. 29, 491 P.2d 821 (1971). Further, the firefighter’s rule does not bar recovery for independent acts of misconduct which were not the cause of the plaintiffs presence on the scene. Donohue v. S.F. Hous. Auth., 16 Cal.App.4th 658, 663, 20 Cal.Rptr.2d 148 (1993). Although TEPCO draws on similarities between certain cases and the current situation, the Court agrees with Plaintiffs that the SAC is not barred by the firefighter’s rule. First, there is no authority extending the application of the Firefighter’s Rule outside of the context of domestic first responders such as firefighters or police officers. The Court will not extend the Firefighter’s Rule to this type of circumstance absent authority to do so. Second, the cases on which TEPCO relies are distinguishable based on the scope of the scene and the associated scope of risk. In contrast to providing humanitarian aid to a country after a natural disaster, when a firefighter or police officer responds to a fire or a car accident, the geographic area is limited and the anticipated risks are confined to that fixed situation. In light of the facts of this case, the Court finds that radiation exposure due to a private corporation’s negligence was not a risk inherent in the Navy’s mission of providing humanitarian assistance, including: supplying food, water, and emergency shelter. Accordingly, the Court DENIES TEPCO’s motion to'dismiss Plaintiffs’ claims on this basis. C. TEPCO’s Duty of Care with Respect to Plaintiffs’ Claims of Negligence, Negligence Per Se, Res Ipsa Loqui-tur, Failure to Warn, and Nuisance TEPCO argues that Plaintiffs’ claims for negligence, failure to warn, and nuisance must be dismissed because TEP-CO owed no duty of care to Plaintiffs. TEPCO relies on two arguments in support of it’s contention. First, there was no need to warn the U.S. military about potential radiation because “it would be inappropriate, as a matter of substantive tort law, for the court to recognize an innovative judge-made duty of foreign sovereigns and foreign entities to provide disclosures to other sovereigns in the context of a large-scale humanitarian crisis.” (Mot. to Dismiss 25, ECF No. 55). Second, TEP-CO contends that it had no duty to warn a sophisticated entity such as the Navy regarding known risks of operating in a disaster zone especially as the U.S.S. Reagan had nuclear detection capabilities. (Id.) Both of these arguments appear to be only related to TEPCO’s duty to warn the U.S. military in the context of negligence. TEPCO does not address any independent duty owed to Plaintiffs as individuals in the area. (Reply ISO Mot. to Dismiss 14, ECF No. 6.) Further, TEPCO does not address the merits of Plaintiffs’ Strict Products Liability Failure to Warn or Nuisance claims. Plaintiffs respond by arguing that TEP-CO owed an absolute duty to all persons within the vicinity of the FNPP. (Plaintiffs Resp. in Opp’n 18, ECF No. 59.) As discussed above, the SAC alleges a chain of causation independent from the decisions made by the Navy. Thus, TEPCO owed Plaintiffs the same duty of care it owed to those in the vicinity of the FNPP in reasonably operating the FNPP. TEPCO’s two arguments have no bearing on whether it owed a duty to the individual service-members. In light of the Court’s decision regarding causation and the Parties’ arguments, the Court DENIES TEPCO’s motion to dismiss Plaintiffs’ claims on this basis. D. Actual and Justifíable Reliance TEPCO moves to dismiss Plaintiffs’ negligence claim arguing that the claim is based in large part on negligent misrepresentation and argues that Plaintiff did not demonstrate actual and justifiable reliance. (Mot. To Dismiss 26, ECF No. 55.) Plaintiffs contend that this issue is irrelevant because they are not asserting a negligent misrepresentation claim. (Plaintiffs Resp. in Opp. 24, ECF No. 59.) Because Plaintiffs are pursuing no such claim, the Court DENIES as moot TEPCO’s motion to dismiss Plaintiffs’ negligence claim on this basis. E. Strict Liability for Design Defect A strict liability for design defect claim has four elements: (1) the product is placed on the market, (2) there is knowledge that it will be used without inspection for defect, (3) the product is defective, and (4) the defect causes injury. Nelson v. Sup.Ct., 144 Cal.App.4th 689, 50 Cal.Rptr.3d 684, 688 (Cal.Ct.App.2006). TEPCO moves to dismiss Plaintiffs’ strict liability design defect claim, arguing that Plaintiffs fail to allege facts supporting the claim that the FNPP is a product “placed on the market.” (Mot. to Dismiss 28, ECF No. 55.) Because the FNPP is a nuclear power facility that was owned by TEPCO at all times and was never transferred to a different “user,” TEPCO argues that Plaintiffs’ design defect claim must fail. (Id. at 28-29.) Plaintiffs argue that Defendants placed the electricity from the FNPP on the market which was stored' and manufactured in the FNPP and that this should lead to strict liability for design defect. (Plaintiffs Resp. in Opp’n 31, ECF No. 59.) Plaintiffs design defect claim lacks merit. Plaintiffs may not ignore elements of the design defect cause of action simply because it would make sense to apply liability in light of the potential for injury to the public. Plaintiffs do not persuasively explain how a design defect claim is viable in light of these facts. The product, electricity, was not defectively designed and did not cause Plaintiffs injuries. The FNPP was evidently not a product “placed on the market.” The alleged defects in storage and design do not support a defective design claim. Accordingly, the Court GRANTS TEPCO’s motion to dismiss Plaintiffs’ design defect claim WITH PREJUDICE because Plaintiffs can not cure the defects in this claim by alleging additional facts consistent with their pleading. F. Intentional Inñiction of Emotional Distress (“IIED”) A claim for IIED requires (1) extreme and outrageous conduct by the defendant with the intention of causing emotional distress, (2) the plaintiffs suffering severe emotional distress, and (8) actual and proximate causation of the emotional distress. Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, 819 (Cal.1993). Thus, “it is not enough that the conduct be intentional and outrageous. It must be conduct directed at the Plaintiff.” Id. This distinguishes IIED from negligent infliction of emotional distress. Id., 25 Cal.Rptr.2d 550, 863 P.2d at 820. TEPCO contends that Plaintiffs’ claim for IIED fails for two reasons: (1) the federal statutory scheme for compensating victims of nuclear incidents, known as the Price-Anderson Act, prohibits claims for emotional distress in the absence of physical injury, suggesting that common law liability should not provide recovery in such cases either; and, (2) Plaintiffs do not allege facts establishing that TEPCO engaged in “extreme and outrageous conduct” or that any such conduct was “directed at” Plaintiffs, two necessary elements of the IIED cause of action. (Mot. to Dismiss 29-30, EOF No. 55). Plaintiffs maintain that the Price-Anderson Act does not apply to foreign producers of nuclear power. (Resp. in Opp’n 24-25, ECF No. 59). Plaintiffs also contend that TEPCO’s degree of negligence rises to the level of extreme and outrageous. (Id. at 25.) Plaintiffs make no effort to respond to TEPCO’s argument that no conduct was “directed at” Plaintiffs, a prerequisite for imposing liability for IIED. Plaintiffs’ IIED claim lacks merit. Plaintiffs attempt to cast TEPCO’s alleged negligence as extreme and outrageous conduct. However, negligence is insufficient to state a claim for IIED. Plaintiff must establish intentional conduct or reckless disregard. Potter, 25 Cal.Rptr.2d 550, 863 P.2d 795 at 819. Plaintiffs also fail to allege facts sufficient to establish that TEPCO engaged in any conduct specifically “directed at” them. Because IIED imposes liability for ambiguous injuries that are easily feigned, Plaintiffs may not recover in the absence of facts indicating that the defendant’s conduct specifically targeted them and sought to cause them harm. There is no plausible way to claim that TEPCO engaged in any conduct directed at the U.S. servicemembers. Much of the alleged negligence occurred years before the Plaintiffs were deployed and they never had any contact with TEPCO other than suffering from the radiation. Accordingly, the Court GRANTS TEP-CO’s motion to dismiss Plaintiffs’ IIED claim WITH PREJUDICE. G. Strict Liability for Ultrahazardous Activities TEPCO also moves to dismiss Plaintiffs’ claim for strict liability for injuries resulting from an inherently dangerous activity. TEPCO makes a similar argument as with the IIED claim that the Price-Anderson Act prohibits strict liability claims for releases of radiation below federal limits, and suggests that common law liability should not provide recovery absent pleading that their exposure to radiation exceeded federal limits. (Mot. to Dismiss 32-33, ECF No. 55.) Second, TEPCO argues that the Convention on Supplementary Compensation for Nuclear Damage (“CSCND”) specifies that all claims concerning nuclear accidents should be resolved in the country where the accident occurred. (Id. at 33-34.) TEPCO apparently concedes that operation of a nuclear power facility is an inherently dangerous or “ultrahazardous” activity. (Reply ISO Mot. to Dismiss 18 n. 7, ECF No. 62 (TEPCO’s Motion assumed arguendo that the operation of a nuclear power plant qualifies as an ultrahazardous activity).) Plaintiffs again argue that the Price-Anderson Act does not apply to a foreign nuclear operator and that the CSCND is not yet in force and has not been ratified by Japan. (Plaintiffs Resp. in Opp. 24-25, 29-30, ECF No. 59.) Also, Plaintiffs argue that TEPCO’s activities meet the criteria of abnormally dangerous. (Id. at 27-29.) The Court finds TEPCO’s arguments unpersuasive. TEPCO offers no legal support for applying the Price-Anderson Act by analogy to a foreign corporation and the Court declines to do so. Also, the Court will not dismiss a claim that is sufficiently pled because of the pending CSCND. Accordingly, the Court DENIES TEPCO’s motion to dismiss the strict liability for ultra-hazardous activity claim. II. Loss of Consortium TEPCO moves to dismiss Plaintiffs’ loss of consortium claim arguing that since Plaintiffs’ tort claims fail there is no valid loss of consortium cause of action. (Mot. to Dismiss 34, ECF No. 55.) Plaintiffs clarify that a tort claim and a spouse’s loss of consortium claim are separate claims. (Plaintiffs Resp. in Opp’n 31-32, ECF No. 59.) Because the Court finds that Plaintiffs have stated a claim for which relief may be granted for several tort claims, the loss of consortium claim survives. MOTION TO DISMISS CLAIMS ON BEHALF OF DOE PLAINTIFFS Finally, TEPCO moves to dismiss the claims purportedly brought by Plaintiffs on behalf of “John & Jane Does 1-70,000.” (Mot. to Dismiss 34, ECF No. 55.) TEPCO argues that this is an impermissible attempt by Plaintiffs’ counsel to bring claims on behalf of “placeholder plaintiffs” so as to buy time while they try to drum up 70,000 future clients. (Id. at 34-35.) Additionally, TEPCO states that this designation is inappropriate in the context of a class action because absent class members are not formal parties which could be designated as Doe parties. (Reply ISO Mot. to Dismiss 18-19, ECF No. 62.) Plaintiffs i