United States District Court, E.D. New York
D. JOSEPH KURTZ, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
KIMBERLY-CLARK CORPORATION & COSTCO WHOLESALE CORPORATION, Defendants.
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
Wholesale Corporation: James M. Bergin Adam James Hunt Kayvan
Betteridge Sadeghi Morrison & Foerster, Eamon Paul Joyce
Sidley Austin LLP
B. Weinstein Senior United States District Judge
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
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residents was withdrawn after it became likely that the court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).
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.
before the court are the Kurtz action, the
Belfiore action, and the Honigman action.
in the Honigman action have not moved for class
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.
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
New Jersey Claims
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)).
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 ...