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Famular v. Whirlpool Corp.

United States District Court, S.D. New York

January 19, 2017



          Vincent L. Briccetti United States District Judge

         Plaintiffs Walt Famular, Howard Frank, Nancy Furlong, John Newman, Sherry Adams, Richard Spahr, William David Seay, Darla Moulton, and Karin LeMay (collectively, “plaintiffs”), on behalf of themselves and all others similarly situated, bring this action against defendants Whirlpool Corporation (“Whirlpool”), Lowe's Home Centers, LLC (“Lowe's”), Home Depot U.S.A., Inc. (“Home Depot”), and Sears Holdings Corporation (“Sears”) (collectively, “defendants”), for allegedly misrepresenting the water and energy efficiency of three models in Whirlpool's Maytag Centennial line of washing machines.

         Plaintiffs bring state law claims for breach of express warranty, unjust enrichment, and violations of various states' consumer-protection statutes.

         Before the Court are two motions to dismiss. (Docs. ##29, 32). Home Depot moves to dismiss for lack of personal jurisdiction under Rule 12(b)(2) and for untimeliness and failure to state a claim under Rule 12(b)(6). The remaining defendants-Whirlpool, Lowe's, and Sears- separately move to dismiss on the same grounds.

         For the reasons set forth below, the motions to dismiss as to Home Depot, Lowe's, and Sears are GRANTED; and Whirlpool's motion to dismiss is GRANTED IN PART and DENIED IN PART, with the only surviving claims being Famular's claims against Whirlpool.

         The Court has subject matter jurisdiction pursuant to pursuant to 28 U.S.C. § 1332(d).


         In deciding the pending motions, the Court accepts as true all well-pleaded allegations in the amended complaint and draws all reasonable inferences in plaintiffs' favor.

         This case arises from the purchase of three models of Whirlpool's washing machines by nine different plaintiffs, each a resident of a different state: Famular (New York), LeMay (Tennessee), Newman (Maryland), Moulton (South Dakota), Seay (South Carolina), Frank (Illinois), Spahr (Pennsylvania), Furlong (Kentucky), and Adams (Oklahoma). Each plaintiff purchased the washing machine in his or her home state. The washing machines at issue in this case come from Whirlpool's Maytag Centennial line of residential washing machines, with model numbers MVWC6ESWW1, MVWC6ESWW0, and MVWC7ESWW0[1] (the “allegedly mislabeled washing machines”).

         Many of the plaintiffs purchased their washing machines from Home Depot, Sears, and Lowe's. Home Depot is a Delaware corporation with its principal place of business in Georgia. Sears is a Delaware corporation with its principal place of business in Illinois. Lowe's is a North Carolina corporation, with its principal place of business there as well. Whirlpool is a Delaware corporation with a principal place of business in Michigan.

         The allegedly mislabeled washing machines were labeled and marketed as ENERGY STAR® compliant and displayed the ENERGY STAR® label. The ENERGY STAR® program is administered by the United States Department of Energy and the United States Environmental Protection Agency, and is intended “to identify and promote energy-efficient products . . . to reduce energy consumption, improve energy security, and reduce pollution through voluntary labeling of, or other forms of communication about, products . . . that meet the highest energy conservation standards.” 42 U.S.C. § 6294a. To that end, to qualify for the ENERGY STAR® program, residential washing machines must meet energy- and water-efficiency criteria. “Since ENERGY STAR® is widely recognized as the preeminent brand for energy efficient products, participation in the ENERGY STAR® program has a significant impact on the marketability of products.” (Am. Compl. ¶ 27). Accordingly, industry participants seek out the ENERGY STAR® licensing.

         “The most significant tool used in the ENERGY STAR® program is the ENERGY STAR® label that incorporates the ENERGY STAR® certification mark.” (Id. ¶ 28). To the consumer, the ENERGY STAR® label indicates that a given product is highly efficient, which enables “consumers to maximize their water and energy savings while helping to protect the environment.” (Id. ¶ 29). Although ENERGY STAR® products are often more expensive than otherwise-comparable models, consumers are willing to pay this higher up-front cost due to the long-term environmental benefits and water- and energy-cost savings.

         Each plaintiff purchased an allegedly mislabeled washing machine sometime during 2009 or 2010. Plaintiffs claim to have relied on the ENERGY STAR® qualification of the washing machines and made their purchase, at a price premium, due the machines' “supposed water and energy efficiency and ENERGY STAR® qualification.” (Id. ¶¶ 84-92).

         Beginning in 2010, the Department of Energy tested the allegedly mislabeled washing machines to ensure compliance with the ENERGY STAR® standards. In 2012 the allegedly mislabeled washing machines were disqualified from the ENERGY STAR® program because results showed these models failed to meet the ENERGY STAR® standards. (Id. ¶¶ 93-103).

         Plaintiffs were all members of a putative nationwide class in Dzielak v. Whirlpool Corp., Case No. 2:12-cv-00089-KM-JBC (“Dzielak”), filed on January 5, 2012, in the United States District Court for the District of New Jersey. None of the plaintiffs here was a named plaintiff in Dzielak. On February 5, 2016, the Dzielak plaintiffs voluntarily narrowed their proposed class by seeking certification of only seven state classes, none of which is included in this case. On February 8, 2016, plaintiffs filed the complaint in this case (Doc. #1), and, on March 9, 2016, they filed an amended complaint. (Doc. #5).


         I. Legal Standards

         A. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

         On a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), “plaintiff[s] bear[] the burden of showing that the court has jurisdiction over [each] defendant.” In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003). Prior to conducting discovery, plaintiffs may defeat a motion to dismiss “by pleading in good faith legally sufficient allegations of jurisdiction.” Ball v. Matallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). Plaintiffs can also make this showing through their own affidavits and supporting materials containing an averment of facts that, if credited, would suffice to establish jurisdiction over the defendants. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). “[W]here the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff[s] and doubts are resolved in the plaintiff[s'] favor.” A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993). When deciding a motion to dismiss for lack of personal jurisdiction, the Court must consider defendants' contacts with the forum state at the time of plaintiffs' filing of the complaint. Nelson v. Mass. Gen. Hosp., 2007 WL 2781241, at *13 (S.D.N.Y. Sept. 20, 2007). When the action is brought as a purported class action, personal jurisdiction over each defendant is assessed with respect to the named plaintiffs' causes of action. Beach v. Citigroup Alt. Invests. LLC, 2014 WL 904650, at *6 (S.D.N.Y. Mar. 7, 2014).

         B. Rule 12(b)(6) Motions to Dismiss

         1. Statute of Limitations

         Under New York law, which governs when federal subject matter jurisdiction exists by way of diversity, the statute of limitations is an affirmative defense, and the burden is on defendants to show plaintiffs' claims are untimely. Bano v. Union Carbide Corp., 361 F.3d 696, 707-10 (2d Cir. 2004). Defendants generally meet this burden by demonstrating when the causes of action accrued. St. John's Univ. v. Bolton, 757 F.Supp.2d 144, 157 (E.D.N.Y. 2010). Because the burden lies with defendants, “[t]he pleading requirements in the Federal Rules of Civil Procedure . . . do not compel a litigant to anticipate potential affirmative defenses, such as the statute of limitations, and to affirmatively plead facts in avoidance of such defenses.” Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). On a Rule 12(b)(6) motion, the Court may only dismiss an action based on the statute of limitations if, on the face of the complaint, it is clear the claim is untimely. Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). For a defendant's statute of limitations argument to succeed, the plaintiff must “plead[] itself out of court.” In re marchFIRST Inc., 589 F.3d 901, 904-05 (7th Cir. 2009).

         2. Failure to State a Claim

         In deciding a Rule 12(b)(6) motion for failure to state a claim, the Court evaluates the sufficiency of the operative complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiffs' legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.

         To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         II. Personal Jurisdiction

         To determine whether personal jurisdiction exists over a non-domiciliary defendant, which all defendants are, the Court engages in a two-step inquiry. Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010). First, the Court determines whether the forum state's law permits the exercise of jurisdiction over each defendant. Id. “[T]he second step is to analyze whether personal jurisdiction comports with the Due Process Clause of the United States Constitution.” Id. at 164. Due Process requires that personal jurisdiction exist over each defendant. See, e.g., Calder v. Jones, 465 U.S. 783, 788-791 (1984).

         “[A] court may exercise two types of personal jurisdiction over a corporate defendant properly served with process. These are specific (also called ‘case-linked') jurisdiction and general (or ‘all-purpose') jurisdiction.” Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016).

         Specific personal jurisdiction over a defendant exists “in a suit arising out of or related to the defendant's contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). “[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal quotation marks omitted).

         Whirlpool concedes that specific personal jurisdiction exists over it with respect to Famular's claims. With the exception of Famular's claims against Whirlpool, defendants argue there is no basis for specific personal ...

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