Jones

dissenting.

The contract between Calpine and the Joneses created a blatantly obvious and huge financial incentive for Calpine to hinder or preclude timely completion of the power plant. From this, it is not difficult to infer that the risk that Calpine would not cooperate with the Joneses was assigned to the Joneses. A contrary conclusion perversely rewards the omission of obvious terms from express inclusion in contracts.

*188 I, therefore, respectfully dissent and would affirm.

*187 MEMORANDUM **

The appellants, personal representatives for the Estates of Darrell M.P. Jones and Cynthia Jones (“the Joneses”), appeal the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) of their claims for breach of contract against appellee Calpine Corporation. The Joneses argue that Calpine breached its implied, good faith duty to cooperate toward the fulfillment of the contract’s condition precedent, the timely completion of a power plant. The district court held that the contract did not imply a duty to cooperate toward the plant’s timely completion and that the contract assigned the risk that Calpine would not cooperate to the Joneses. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review the district court’s dismissal de novo. 1 For the reasons set forth below, we reverse the district court’s dismissal and remand for further proceedings.

Under Washington law, when a party prevents the occurrence or fulfillment of a condition precedent, the condition is excused and the preventing party must complete the contract. 2 Taking the Joneses’ allegations as true, 3 Calpine had complete control over the plant’s construction, but deliberately…