United States District Court, D. New Jersey
STANLEY FISHMAN, SUZANNE BOWSWER, and VICKI PLUNKETT, individually and on behalf of all others similarly situated, Plaintiffs,
GENERAL ELECTRIC COMPANY, Defendant.
WILLIAM J. MARTINI, District Judge.
Plaintiffs Stanley Fishman, Suzanne Bowser,  and Vicki Plunkett filed this putative class action against Defendant General Electric Company ("GE"). This matter comes before the Court on (1) Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and (2) Plaintiffs' motion to strike certain declarations from affidavits submitted with Defendant's motion to dismiss. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendant's motion to dismiss is GRANTED, and Plaintiffs' motion to strike is DENIED.
GE manufactures, produces, distributes, and sells washing machines throughout the United States. Second Am. Compl. ¶ 40. Sales occur both directly to the consumer and through GE's network of authorized dealers, which includes leading retailers and online merchants. Id. ¶ 41. The Second Amended Complaint alleges that GE's "frontloading washer machines" have design defects that cause them to: (1) accumulate mold, mildew, and "biofilm" (which Plaintiff describes as "a filmy substance that develops within the [w]ashing [m]achines"); (2) produce a moldy or mildew odor that permeates the washing machines and the clothes and other items washing in the machines; and (3) fail to "self-clean" by removing the moisture, residue, and bacteria that lead to the formation of mold, mildew, and foul odors (collectively, the "Mold Problems"). Id. ¶ 2. The Second Amended Complaint alleges that defects in the drum, the door, the door seal, and the amount of water used by the washing machines play a role in the accumulation of mold and mildew. Id. ¶ 57.
Plaintiffs allege although GE was aware that the washing machines were inherently defective, it failed to warn its customers about the design defects or the Mold Problems. Second Am. Compl. ¶ 59. Plaintiffs also allege that consumers received an express one-year factory warranty from GE stating that GE would replace any parts that fail due to a defect in materials or workmanship (the "Express Warranty"), and that GE refused to honor that Express Warranty. Id. ¶¶ 15, 20. Additionally, the Second Amended Complaint alleges that GE made numerous misrepresentations regarding the front-loading washing machines. Id. ¶ 56. For instance, the Amended Complaint alleges that GE improperly publicized the machines as certified ENERGY STAR products. Id. ¶ 25. Plaintiffs also allege that GE made "affirmations of fact and promises including those found in its advertisements, promotional and marketing materials, point-of-sale displays, product specifications, and within the washing machine manuals." Id. ¶ 120. Plaintiffs maintain that all of these representations were false because the washing machines were not of a merchantable quality, were not fit for their ordinary purpose, and were not energy efficient. See id. ¶ 37.
The named Plaintiffs filed this action on behalf of themselves, a putative nationwide class, and a putative sub-class comprised of "[a]ll persons in Missouri, New Jersey, and Pennsylvania who own a Washing Machine for personal, family, or household purposes." Second Am. Compl. ¶ 76. The Second Amended Complaint alleges that the putative class members were damaged because they paid far too much for defective washing machines. Id. ¶¶ 8. The Second Amended Complaint makes the following specific allegations with respect to the named Plaintiffs.
A. Plaintiff Fishman
Fishman purchased a GE washing machine (model number WCVH6260FWW) for household purposes in November 2006. Second Am. Compl. ¶ 14. Mr. Fishman's washing machine came with an Owner's Manual containing the Express Warranty. Id. ¶ 15. He paid approximately $1, 000 for the washing machine and at all times used the washing machine as instructed by GE's manual or as otherwise directed by GE. Id. ¶ 14. Approximately six months after purchasing his washing machine, Fishman noticed a foul, mold, or mildew odor emanating from the machine. Id. Fishman contacted GE so that GE could correct the problem. Id. ¶ 16. GE told Fishman to run an empty load cycle with bleach to clean the washing machine, and recommended that Fishman leave his washing machine door open between washes to reduce the incidence of the Mold Problem. Id. ¶¶ 17-18. This recommendation did not solve the problem. Id. In addition, the GE owner's manual specifically warns that leaving the washer door open creates a risk of injury to children and pets who might be enticed to hang on the door or crawl inside the washer. Id. ¶ 18. GE never resolved the Mold Problems in Fishman's machine, and instead provided Fishman with a check for $75.00. Id. ¶ 20.
B. Plaintiff Bowser
Bowser purchased a GE washing machine (model number WSXH208FWW) from Builders Surplus for household purposes on or about March 3, 2007. Second Am. Compl. ¶ 23. Bowser's washing machine came with an Owner's Manual containing the Express Warranty. Id. ¶ 24. She paid approximately $579.99 for the washing machine and at all times used the washing machine as instructed by GE's manual or as otherwise directed by GE. Id. ¶ 23. In 2010, Bowser noticed a foul, mold, or mildew odor emanating from the machine. Id. Bowser tried to clean her washing machine using bleach, vinegar, and Tide Washing Machine Cleaner. Id. ¶ 26. She also manually cleaned the visible Mold Problem from the gasket and the hose at the bottom of the machine. Id. She also arranged for a certified technician from Sears to attempt to remedy the Mold Problems, but these measures were unsuccessful. Id. Bowser contacted GE. Id. ¶ 27. GE recommended that Bowser keep her washing machine door open and provided her with a box of Tide Washing Machine Cleaner. Id. None of these measures solved the Mold Problems. Id. ¶ 29.
C. Plaintiff Plunkett
Plunkett purchased a GE washing machine (model number WCVH6800JMV) from Foster's Appliance for household purposes on or about January 23, 2010. Second Am. Compl. ¶ 31. Plunkett's washing machine came with an Owner's Manual containing the Express Warranty. Id. ¶ 32. She paid approximately $2023.74 for the washing machine and matching dryer, and at all times used the washing machine as instructed by GE's manual or as otherwise directed by GE. Id. ¶ 31. Less than six months later, Plunkett noticed a foul, mold, or mildew odor emanating from the washing machine. Id. Plunkett contacted Foster's Appliance about the Mold Problem, but never received a response. Id. ¶ 33. She also contacted GE. Id. However, the Second Amended Complaint is not clear as to whether she ever spoke with anyone at GE about the Mold Problem. Plunkett cleaned the unit on a regular basis and ran empty hot water cycles, but these measures failed to correct the Mold Problem. Id. ¶¶ 34-35.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. ...