United States District Court, S.D. New York
WALT FAMULAR, HOWARD FRANK, NANCY FURLONG, JOHN NEWMAN, SHERRY ADAMS, RICHARD SPAHR, WILLIAM DAVID SEAY, DARLA MOULTON, and KARIN LEMAY, on behalf of themselves and all others similar situated, Plaintiffs,
WHIRLPOOL CORPORATION, LOWE'S HOME CENTERS, LLC, HOME DEPOT U.S.A., INC., and SEARS HOLDINGS CORPORATION, Defendants.
AMENDED OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
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.
bring state law claims for breach of express warranty, unjust
enrichment, and violations of various states'
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.
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
Court has subject matter jurisdiction pursuant to pursuant to
28 U.S.C. § 1332(d).
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.
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 (the “allegedly mislabeled
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.
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
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
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.
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. ¶¶
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.
Rule 12(b)(2) Motion to Dismiss for Lack of Personal
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,
Rule 12(b)(6) Motions to Dismiss
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).
Failure to State a Claim
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.
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.
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).
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).
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).
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 ...