United States District Court, D. New Jersey
JUSTIN DEFILLIPPO, DEREK SCACHETTI, and TIMOTHY BABBITT, on behalf of themselves and all others similarly situated, Plaintiffs,
WHIRLPOOL CORPORATION, Defendant.
HELLER NAGEL RANDEE M. MATLOFF NAGEL RICE, LLP JOSEPH
LOPICCOLO POULOS LOPICCOLO PC On behalf of Plaintiffs
LATHROP BARRERE NELSON, III MONTGOMERY MCCRACKEN WALKER &
RHOADS LIBERTYVIEW, SUITE MEGAN B. TRESEDER LOWENSTEIN
SANDLER LLP On behalf of Defendant
L. HILLMAN, U.S.D.J.
putative class action concerns claims by Plaintiffs and all
similarly situated individuals arising out of allegedly
defective refrigerators manufactured by Defendant Whirlpool
Corporation. Pending before the Court is the motion of
Defendant to dismiss Plaintiffs' complaint. For the
reasons expressed below, Defendant's motion will be
granted in part and denied in part.
Justin DeFillippo, Derek Scachetti, and Timothy Babbitt, on
behalf of themselves and others who are similarly situated,
claim that Defendant, Whirlpool Corporation, has violated the
New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq.
(“NJCFA”), the New Jersey Truth-in-Consumer
Contract, Warranty and Notice Act (“TCCWNA”),
N.J.S.A. 56:12-14, et seq., New York's General Business
Law §§ 349 and 350, and the Magnuson-Moss Act, 15
U.S.C. § 2301 et seq. Plaintiffs also assert claims
against Whirlpool for common law fraud, breach of implied and
express warranties, and unjust enrichment.
these claims arise out of Whirlpool's sale of French Door
Bottom Mount refrigerators. Plaintiffs summarize their claims
• [U]nder various brand names such as Whirlpool,
KitchenAid and Maytag, [from 2012 to the present Whirlpool
sold French Door Bottom Mount (“FDBM”)
refrigerators] containing defects that cause the
refrigerators to provide insufficient cooling in the
refrigerator and/or freezer of the unit. According to
internal technical service pointers (“TSP”)
released by Whirlpool to its service providers, the defect
occurs due to impeded air flow in the freezer compartment
which is caused by frost on the freezer evaporator. Corrosion
then forms on the brass freezer defrost thermistor impacting
the thermistor performance allowing ice to accumulate on the
evaporator (the “Defect”).
• Whirlpool knew about the Defect as early as March 2014
when it issued a TSP to its Dealers. The TSP provided details
of the Defect. This TSP was distributed to dealers but not
• Additional TSPs were released in June 2016 and then
again in September 2016, each one informing dealers, but not
the public, about the Defect, explaining the Defect occurs
due to “impeded air flow in the freezer compartment
[which is caused by] frost on the freezer evaporator.”
“Corrosion [then forms] on the brass freezer defrost
thermistor [impacting] the thermistor performance allowing
ice to accumulate on the evaporator.” • According
to the TSPs, there is a way to remedy the problem. The TSPs
instruct the service provider to “[o]rder and install
service kit Wl0902214 [which] includes a plastic thermistor,
foil and wire tie.” • Whirlpool knew, or was
reckless in not knowing, at or before the time it sold the
first unit, that the Whirlpool Refrigerators contained the
Defect. Whirlpool had sole and exclusive possession of this
• Notwithstanding this knowledge, Whirlpool uniformly
concealed this material information in its marketing,
advertising, and sale of the Refrigerators, which Whirlpool
knew to be defective, both at the time of sale and on an
• At all times, Whirlpool uniformly concealed the Defect
from Plaintiffs and all consumers of Whirlpool refrigerators
and failed to remove Plaintiffs' refrigerators from the
marketplace or take adequate remedial action. Instead,
Whirlpool sold and serviced Plaintiffs' refrigerators
even though it knew, or was reckless in not knowing, that its
refrigerators were defective and would ultimately provide
insufficient cooling in the refrigerator and/or freezer of
• As a consequence of Whirlpool's false and
misleading statements and active and ongoing concealment of
the Defect, Plaintiffs and the Class Members purchased and
currently own defective Refrigerators and have incurred
• Moreover, in addition to affirmatively misleading the
Class Members, Whirlpool routinely declined to provide Class
Members warranty repairs or other remedies for the Defect.
(Plaintiffs' Second Amended Compl., Docket No. 17 at 1-2,
citations to exhibits omitted).
complaint details each of the three Plaintiff's alleged
experience with his FDBM refrigerator. DeFillippo, a citizen
of New York, purchased a FDBM refrigerator in September 2015
for $3, 000 and began experiencing the alleged defect within
one week. DeFillippo contacted Whirlpool right away, and a
Whirlpool representative instructed him to unplug his
refrigerator and plug it back in. That fixed the problem
until the improper cooling occurred again. DeFillippo
contacted Whirlpool again, and because the defect does not
cause a “trouble shooting code” to appear, the
Whirlpool representative instructed him to unplug the
refrigerator and plug it back in. That temporary fix failed,
and DeFillippo's FDBM refrigerator has experienced the
defect numerous times over the course of 26 months.
DeFillippo now has to use a spare refrigerator. (Docket No.
17 at 4-5.)
a citizen of New Jersey, purchased a home in August 2017 that
included a FDBM refrigerator manufactured in 2012. On June 1,
2018, Scachetti's FDBM refrigerator stopped cooling
properly, and he immediately contacted Whirlpool, which sent
a repair technician on June 4, 2018. The Whirlpool technician
told Scachetti that based on the description of the problem
that he knew before even looking at the refrigerator what the
problem was and that Whirlpool knows about this defect. The
technician confirmed the EVAP was not working properly and
installed a new one. Whirlpool charged Scachetti a $96.00
service call fee, but despite Scachetti's demands,
Whirlpool has refused to reimburse him the $96.00 service
call fee because the refrigerator was outside its warranty
period. (Docket No. 17 at 5-6.)
a citizen of New Jersey, purchased a FDBM refrigerator on
January 21, 2013 for $2, 342.00, along with a 5- year
extended warranty for $152.96 from Warrantech. Within 10
months the FDBM refrigerator did not cool properly, and
Babbitt contacted Whirlpool immediately. Babbitt was
instructed to unplug the refrigerator for a few hours and
then replug it, but because that would result in food
spoilage, Babbitt insisted that Whirlpool send a repair
person. On December 24, 2013, a repair person from American
Home Appliance Service noted that the compressor was noisy
and that Babbitt had attempted to resolve the issue by
defrosting the ice in the freezer.
problem occurred again a year later. By then, the Whirlpool
warranty had expired, and a repair person was sent under
Babbitt's extended warranty. On January 7, 2015, a repair
person changed the compressor, but in a few weeks, the
refrigerator stopped cooling properly. On January 28, 2015,
another repair person again replaced the compressor and
replaced the evaporator coil. In mid-October 2018,
Babbitt's FDBM refrigerator stopped cooling sufficiently,
and Whirlpool has refused to repair the defect. Babbitt had
to purchase another refrigerator to store his food. (Docket
No. 17 at 6-8.)
has moved to dismiss all the claims of each of the Plaintiffs
on various bases depending on the particular claim and the
plaintiff who asserts it. Plaintiffs have opposed Whirlpool's
Subject Matter Jurisdiction
Court has original subject matter jurisdiction under the
Class Action Fairness Act, 28 U.S.C. §§ l332(d) and
(6) because (i) the number of Class Members is 100 or more;
(ii) the Class Members' damages, the aggregate amount in
controversy exclusive of interest and costs, exceeds $5, 000,
000; and (iii) minimal diversity exists because at least one
of the Class Plaintiffs and one Defendant are citizens of
different states. This Court also has original subject matter
jurisdiction over the Class Plaintiffs' federal statutory
claim under the Magnuson-Moss Warranty Act, 15 U.S.C.
§ 2301 et seq., and supplemental jurisdiction
over the remaining claims under 28 U.S.C. § 1367.
Standard for Motion to Dismiss
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
in original) (citations omitted) (first citing Conley v.
Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd.
of Psychiatry & Neurology, Inc., 40 F.3d 247, 251
(7th Cir. 1994); and then citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a court must
take three steps. First, the court must “tak[e] note of
the elements a plaintiff must plead to state a claim.”
Second, the court should identify allegations that,
“because they are no more than conclusions, are not
entitled to the assumption of truth.” Third,
“whe[n] there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)
(alterations in original) (citations omitted) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679
district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claim.” Twombly, 550 U.S. at 563 n.8
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236
(1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard
for ‘all civil actions' . . . .”); Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(“Iqbal . . . provides the final nail in the
coffin for the ‘no set of facts' standard that
applied to federal complaints before
Twombly.”). “A motion to dismiss should
be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
face.'” Malleus, 641 F.3d at 563 (quoting
Twombly, 550 U.S. at 570).
in reviewing a Rule 12(b)(6) motion must only consider the
facts alleged in the pleadings, the documents attached
thereto as exhibits, and matters of judicial notice. S.
Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may
consider, however, “an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiff's claims are based on the
document.” Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993). If any other matters outside the pleadings are
presented to the court, and the court does not exclude those
matters, a Rule 12(b)(6) motion will be treated as a summary
judgment motion pursuant to Rule 56. Fed.R.Civ.P. 12(b).
Plaintiff's consumer fraud claims
have asserted claims under the New Jersey Consumer Fraud Act
and the New York General Business Law §§ 349 and
350, all of which concern deceptive business
capacity to mislead is the prime ingredient of all types of
consumer fraud.” Argabright v. Rheem Manufacturing
Company, 201 F.Supp.3d 578, 605-06 (D.N.J. 2016)
(quotations and citations omitted) (discussing the NYGBL
§ 349 and NJCFA). “False promises,
misrepresentations, and concealment or omission of material
facts all constitute deceptive practices under these
statutes.” Id. (citations omitted).
successful GBL § 349 claim requires that a plaintiff
prove, by a preponderance of the evidence, that (1) the
defendant has engaged in an act or practice that is deceptive
or misleading in a material way; (2) the plaintiff has been
injured by reason thereof; and (3) the deceptive act or
practice is consumer oriented.” Koch v.
Greenberg, 14 F.Supp.3d 247, 261 (S.D.N.Y. 2014)
(quoting Gaidon v. Guardian Life Ins. Co. of Am., 94
N.Y.2d 330, 343-44, 704 N.Y.S.2d 177, 725 N.E.2d 598 (Ct.
App. 1999)) (quotations and citations omitted). “In
contrast to private contract disputes, unique to the parties,
consumer-oriented conduct within the meaning of the statute
requires acts or practices that have a broader impact on
consumers at large.” Id. (citation omitted).
“Consumer-oriented conduct does not require a
repetition or pattern of deceptive behavior, ” and as
long as conduct was aimed at the public at large, it is
immaterial that the defendant may not have “committed
the complained-of acts repeatedly-either to the same
plaintiff or to other consumers.” Id.
(citation omitted). Where the “acts complained of
potentially affect similarly situated consumers, the
consumer-oriented prong will be met.” Id.
(quotations and citations omitted).
§ 350 prohibits false advertising and has the same
elements as § 349, except for the requirement that the
Defendant's advertisement “(1) had an impact on
consumers at large, (2) was deceptive or misleading in a
material way, and (3) resulted in injury.” Koch v.
Greenberg, 14 F.Supp.3d 247, 261 (S.D.N.Y. 2014)
NJCFA was passed to address “sharp practices and
dealings in the marketing of merchandise and real estate
whereby the consumer could be victimized by being lured into
a purchase through fraudulent, deceptive or other similar
kind of selling or advertising practices.” Chaudhri
v. Lumileds LLC, 2018 WL 6322623, at *6 (D.N.J. 2018)
(quoting Daaleman v. Elizabethtown Gas Co., 77 N.J.
267, 271 (1978)). As “remedial legislation, ” the
NJCFA “should be construed liberally.”
Id. (quoting Int'l Union of Operating
Engineers Local No. 68 Welfare Fund v. Merck & Co.,
192 N.J. 372, 377 n.1 (2007)). To establish a prima facie
case under the NJCFA, “a plaintiff must allege (1)
unlawful conduct by the defendant, (2) an ascertainable loss
by plaintiff; and (3) a causal connection between the
defendant's unlawful practice and the plaintiff's
ascertainable loss.” Angelo ...