United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
HONORABLE JAMES B. CLARK, III UNITED STATES MAGISTRATE JUDGE.
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.
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.
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].
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.
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.
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).
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)).
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.
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. 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.
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 ...