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Kurtz v. Kimberly-Clark Corp.

United States District Court, E.D. New York

February 24, 2017

D. JOSEPH KURTZ, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
KIMBERLY-CLARK CORPORATION & COSTCO WHOLESALE CORPORATION, Defendants.

          D. Joseph Kurtz: Mark J. Dearman Stuart A. Davidson Robbins Geller Rudman & Dowd LLP, Samuel H. Rudman Mark S. Reich Robbins Geller Rudman & Dowd, LLP

          Kimberly-Clark Corporation: Eamon Paul Joyce Sidley Austin LLP, Daniel A. Spira Kara L. McCall Sidley Austin LLP

          Costco Wholesale Corporation: James M. Bergin Adam James Hunt Kayvan Betteridge Sadeghi Morrison & Foerster, Eamon Paul Joyce Sidley Austin LLP

          ORDER

          Jack B. Weinstein Senior United States District Judge

         Three separate but related class actions are before the court. They are brought by consumers who purchased moist toilet wipes sold by retailer defendants, produced by manufacturer defendants, and marked “flushable.” Alleged are defects in labeling. Plaintiffs seek money damages and injunctive relief because they claim the product is not “flushable.” See Kurtz v. Kimberly-Clark Corp. & Costco Wholesale Corp., No. 14-CV-1142 (“Kurtz action”) (relying on New Jersey and New York law); Honigman & Kurtz v. Kimberly-Clark, 15-CV-2910 (“Honigman action”) (relying on New York law); and Belfiore v. Procter & Gamble Co., 14-CV-4090 (“Belfiore action”) (relying on New York law).

         A class action involving New Hampshire law and New Hampshire residents was withdrawn after it became likely that the court would transfer the case to the United States District Court for the District of New Hampshire. See Richard & Richard v. Wal-Mart Stores, Inc. & Rockline Indus., 15-CV-4579 (“Richard action”); Order, 15-CV-4579, Jan. 19, 2017, ECF No. 95 (order granting stipulation of dismissal with prejudice).

         A class action involving Maryland law and Maryland residents and a class action involving Oregon law and Oregon residents were before the court. Palmer & Palmer v. CVS Health & Nice-Pak Prods., Inc., 15-CV-2928 (“Palmer action”) (relying on Maryland law); Armstrong & Kurtz v. Costco Wholesale Corp. & Nice-Pak Prods., Inc., 15-CV-2909 (“Armstrong action”) (relying on Oregon law). The Palmer action and Armstrong action were transferred to the United States District Court for the District of Maryland and the United States District Court for the District of Oregon, respectively. Order, 15-CV-2909, Feb. 17, 2017, ECF No. 106; Order, 15-CV-2928, Feb. 17, 2017, ECF No. 113.

         Remaining before the court are the Kurtz action, the Belfiore action, and the Honigman action.

         Plaintiffs in the Honigman action have not moved for class certification.

         Plaintiff in the Belfiore action moved to certify a class of everyone who purchased Charmin Freshmates, a flushable wipes product, in New York. See Pl.'s Notice of Mot. for Class Certification, 14-CV-4090, Feb. 27, 2015, ECF No. 58.

         Plaintiff in the Kurtz action based his complaint on separate claims under New Jersey and New York state law. Compl., 14-CV-1142, Feb. 21, 2014, ECF No. 1. On the court's suggestion that the same plaintiff could not represent a New York class and a New Jersey class, plaintiff agreed not to seek certification of a New Jersey class. See Letter, 14-CV-1142, Feb. 6, 2017, ECF No. 282. Remaining are plaintiff's motions to certify a nationwide class and two New York classes of everyone who purchased the Kimberly-Clark flushable wipes product and the Kirkland Signature flushable wipes product in New York. Id.; Omnibus Mem. of Law in Supp. of Pl.'s Mot. for Class Certification and Appointment of Class Representative and Class Counsel, 14-CV-1142, Feb. 27, 2015, ECF No. 81 (“Pl.'s Class Cert. Mot.”).

         I. New Jersey Claims

         All claims for purchases made in New Jersey by purchasers residing in New Jersey, based on New Jersey law, are severed from the complaint in the instant case. Fed.R.Civ.P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.”); Garber v. Randell, 477 F.2d 711, 714 (2d Cir. 1973) (“[T]he court's power to sever claims . . . is [ ] discretionary, requiring it to balance the factors of benefit and prejudice that will result from the alternative courses.”); 4 Moore's Federal Practice § 21.05 (2017) (“The trial court . . . has great discretion to restructure an action to promote the efficient administration of justice. Rule 21 gives the court tools to jettison those parties and claims that are not within its jurisdiction or that are not conveniently prosecuted together, preserving parties and claims that are properly before it.” (footnote omitted)); 4 Moore's Federal Practice § 21.02 (2017) (“In exercising its discretion under Rule 21, the court must consider principles of fundamental fairness and judicial efficiency. As part of this inquiry, the court should consider whether an order under Rule 21 would prejudice any party, or would result in undue delay. . . . Although courts properly wish to avoid duplicative litigation, they should not hesitate to sever claims based on different factual situations from that of the main action.” (internal quotation marks and footnotes omitted)).

         Efficiency and fairness require transfer of the New Jersey action to New Jersey. See Order, 15-CV-2909, Feb. 17, 2017, ECF No. 106 (transferring case to the District of Oregon); Order, 15-CV-2928, Feb. 17, 2017, ECF No. 113 (transferring case to the District of Maryland). The severance of the New Jersey aspects of the ...


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