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Dzielak v. Whirlpool Corp.

United States District Court, D. New Jersey

December 21, 2018

CHARLENE DZIELAK, et al., Plaintiffs,
v.
WHIRLPOOL CORPORATION, et al., Defendants.

          REPORT AND RECOMMENDATION

          HONORABLE JAMES B. CLARK, III UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on a Motion to Dismiss by Defendant Whirlpool Corporation ("Whirlpool" or "Defendant") pursuant to Federal Rule of Civil Procedure 12(b)(2) [Dkt. No. 294]. The named plaintiffs and class members who do not reside in New Jersey ("Plaintiffs") oppose Whirlpool's motion [Dkt. No. 295]. This Report and Recommendation is issued pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the undersigned respectfully recommends that the Court deny Whirlpool's motion to dismiss.

         1. BACKGROUND [1]

         This action arises from the sale of Maytag washing machines that bore the ENERGY STAR® ("Energy Star") label signifying that they met federal standards of water and electrical efficiency. According to the Amended Complaint, appliances in the Energy Star program exceed the federal minimum efficiency standards and help to save money on utility bills [Am. Compl. ¶ 2, Dkt. No. 86]. As a result, there is allegedly a tremendous demand by consumers for Energy Star qualified appliances. Id.¶3. To capitalize on this demand, Plaintiffs allege Whirlpool engaged in a long-term advertising campaign in which Whirlpool utilized various forms of media to promote mislabeled washing machines as Energy Star qualified. Id.¶ 5. Plaintiffs purchased Maytag Centennial models MVWC6ESWWO, MVWC6ESWW1 and MVWC7ESWW02 (the "Washers"). In May 2012, the U.S. Department of Energy determined that the models did not meet the Energy Star efficiency standards. Based upon these allegations, Plaintiffs instituted this action on January 5, 2012 alleging, inter alia, that each class member suffered uniform harm because they all purchased Washers improperly labeled with Energy Star. Additionally, Plaintiffs allege that each purchaser "paid more money in additional water and energy costs to operate his or her Mislabeled Washing Machine than they would have had the appliance actually met the ENERGY STAR® qualification as represented and promised by Whirlpool." Id. ¶ 118.

         On May 25, 2012, Whirlpool filed a motion to dismiss Plaintiffs' First Amended and Consolidated Complaint under Federal Rule of Civil Procedure 12(b), asserting, inter alia, that Plaintiffs failed to state a claim upon which relief can be granted [Dkt. No. 37]. On June 16, 2014, the Court granted in part and denied in part Whirlpool's motion to dismiss [Dkt. No. 78]. After Plaintiffs filed their Second Amended Complaint [Dkt. No. 89], on August 27, 2014, Whirlpool filed another motion to dismiss which was, again, granted in part and denied in part [Dkt. No. 127].

         On April 17, 2017, Plaintiffs filed a renewed motion for class certification, which was granted in part and denied in part on December 20, 2017. [Dkt. Nos. 241, 283]. Specifically, the Court certified the class only as to the theory that the price of the washing machines was inflated and only as to defendant Whirlpool. Id. The Court declined to certify the class as to the theory that the Plaintiffs paid more in water and energy costs and did not certify the class against the defendant Retailers. Id.

         On May 23, 2018, Whirlpool filed the instant motion under Federal Rule of Civil Procedure 12(b)(2) alleging, inter alia, that this Court lacks personal jurisdiction over the claims of the named plaintiffs and class members who do not reside in New Jersey [Dkt. No. 294]. Whirlpool asserts that this new defense only recently became available after the United States Supreme Court issued a decision in Bristol Meyers-Squibb v. Superior Court of California, 137 S.Ct. 1773 (2017) on June 19, 2017.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(2) provides for dismissal of an action when the Court does not have personal jurisdiction over a defendant. "Once challenged, the plaintiff bears the burden of establishing personal jurisdiction." O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007)(citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001)). In deciding a motion to dismiss for lack of personal jurisdiction, the Court must "accept all of the plaintiffs allegations as true and construe disputed facts in favor of the plaintiff." Carteret Sav. Bank v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992), cert, denied, 506 U.S. 817, 113 S.Ct. 61, 121 L.Ed.2d 29 (1992).

         Nevertheless, a Rule 12(b)(2) defense can be waived. Under Rule 12(h)(1) "every defense listed under Rule 12(b)(2)-(5) is waived if a party fails to either: (i) make it by motion under this rule or (ii) include it in a responsive pleading or in an amendment allowed by Fed. R. 15(a)(1) as a matter of course." Fed.R.Civ.P. 12(h)(1). Accordingly, "a personal jurisdiction defense is waived if not included in a preliminary Rule 12 motion or, if no such motion is made, the defense is not included in the defendant's responsive pleading." T.J. McDermott Transp. Co. v. Cummins, Inc., 2018 U.S. Dist. LEXIS 4141, *6, 2018 WL 355139 (D.N.J. January 9, 2018) (citing to Fed.R.Civ.P. 121(h)(1)).

         Further, under Rule 12(g)(2), "a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Fed.R.Civ.P. 12(g)(2)(emphasis added). However, Rule 12(g) does not preclude the filling of a second Rule 12(b) motion if the defense or objection was not available at the time of the initial filling. T.J. McDermott Tramp. Co, 2018 U.S. Dist. LEXIS 4141 at *6 (citing Jewett v. IDT Corp., 2008 U.S. Dist. LEXIS 12335 at **6-7 (D.N.J. Feb. 20, 2008)).

         III. DISCUSSION

         Whirlpool concedes that it failed to raise the Rule 12(b)(2) defense in any of its previous motions to dismiss or its opposition to Plaintiffs' motion for class certification.[2] Presently, however, Whirlpool argues that it is not precluded from asserting a Rule 12(b)(2) defense because the specific defense being asserted was not available when Whirlpool filed its previous motions to dismiss in this matter. More specifically, Whirlpool contends that its Rule 12(b)(2) defense only recently became available after the Supreme Court issued a decision in Bristol-Myers Squibb on June 17, 2017.

         In opposition to Defendant's motion, Plaintiffs contend that Whirlpool waived its Rule 12(b)(2) defense because it did not challenge personal jurisdiction in its original motion to dismiss, nor did it raise personal jurisdiction as an affirmative defense in its answer. See Dkt. No. 295 at 10. Consequently, Plaintiffs urge that Whirlpool waived its right to assert the defense. In addition, Plaintiffs argue that Whirlpool's continued participation in this litigation amounts to a legal ...


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