                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICKY ALLEN LEE and PAUL                         No. 12-35372
VERNON RIGSBY, individually and on
behalf of all others similarly situated,         D.C. No. 2:10-cv-00618-JCC

              Plaintiffs - Appellees,
                                                 MEMORANDUM*
  v.

ITT CORPORATION, an Indiana
corporation and ITT FEDERAL
SERVICES INTERNATIONAL
CORPORATION, a Delaware corporation,

              Defendants - Appellants.


                    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.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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).




                                            2
      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.




                                           3
         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.




                                          4
