Murray v. Sears, Roebuck and Co. et al

Filing 234

ORDER by Judge Claudia Wilken DENYING 167 MOTION FOR CLASS CERTIFICATION. (ndr, COURT STAFF) (Filed on 2/12/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARTIN MURRAY,

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No. C 09-5744 CW

Plaintiff,

ORDER DENYING
MOTION FOR CLASS
CERTIFICATION
(Docket No. 167)

v.

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SEARS, ROEBUCK AND CO., et al.,

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Defendants.
________________________________/

United States District Court
For the Northern District of California

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Plaintiff Martin Murray brought this action against

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Defendants Sears, Roebuck and Co. and Electrolux Home Products,

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Inc. alleging violations of California consumer protection law.

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He now moves for class certification.

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motion.

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argument and now denies the motion for the reasons set forth

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below.

The Court took the matter under submission without oral

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Defendants oppose the

BACKGROUND
Murray purchased a Kenmore-brand clothes dryer from a Sears

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store in San Bruno, California in September 2001.

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dryer for two to three years, he began to notice stains appearing

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on his clothing.

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appear near the stains, Murray began to suspect that his dryer

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might be the cause.

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inspect the inside of the machine and observed that rust had

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developed on the frontal exterior of the dryer’s “drum,” the

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cylindrical part of the machine that holds and rotates the

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clothes.

After using the

Eventually, when tears and cuts started to

In 2007, he removed the dryer’s door to

Docket No. 199, Murray Depo. 141:2-:14.

He believed

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that the stains, tears, and cuts in his clothing were the result

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of his clothes coming into contact with this rust during the

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drying process.

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Id.

In November 2009, Murray filed this putative class action in
San Mateo County Superior Court on behalf of all California

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consumers who purchased the same Kenmore-brand dryer that he did.

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In his complaint, he alleged that Sears and Electrolux, the

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dryer’s manufacturer, had marketed the dryer to consumers by

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promoting its “stainless steel” drum without disclosing that the

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United States District Court
For the Northern District of California

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drum’s front -- the portion of the drum that allegedly rusted --

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was actually made of a mild steel, which is more susceptible to

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corrosion and chipping.

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asserted claims against Defendants for unjust enrichment, breach

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of contract, and violations of California’s Consumer Legal

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Remedies Act (CLRA) and Unfair Competition Law (UCL).

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removed the action to this Court in December 2009 under the Class

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Action Fairness Act.

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Based on this alleged omission, Murray

Defendants

On February 8, 2010, Defendants moved to stay this action

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until the Seventh Circuit resolved a pending appeal in a nearly

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identical lawsuit that had been filed in the Northern District of

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Illinois in 2006.

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named Steven Thorogood, had purchased the same dryer model as

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Murray and -- while being represented by the same counsel as

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Murray -- asserted a similar set of claims against Sears based on

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the company’s allegedly deceptive marketing practices.

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Specifically, Thorogood sought to represent a nationwide class to

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pursue claims based on violations of the Tennessee Consumer

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Protection Act, Tenn. Code. Ann. §§ 47-18-101 et seq., and

The plaintiff in that case, a Tennessee man

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analogous statutes in twenty-eight other states.

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court initially certified the class but, in 2008, the Seventh

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Circuit reversed, holding that the case presented “no common

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issues of law or fact, so there would be no economies from class

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action treatment.”

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742, 747 (7th Cir. 2008) (Thorogood I).

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explained,

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United States District Court
For the Northern District of California

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The district

Thorogood v. Sears, Roebuck & Co., 547 F.3d
The Seventh Circuit

Since rust stains on clothes do not appear to
be one of the hazards of clothes dryers, and
since Sears did not advertise its stainless
steel dryers as preventing such stains, the
proposition that the other half million
buyers, apart from Thorogood, shared his
understanding of Sears’s representations and
paid a premium to avoid rust stains is, to put
it mildly, implausible, and so would require
individual hearings to verify.

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Id. at 748.

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remanded, the district court dismissed the action for lack of

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subject matter jurisdiction and denied Thorogood’s request for

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attorneys’ fees.

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Defendants moved to stay the proceedings in this Court, the

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Seventh Circuit affirmed the dismissal of Thorogood’s case and the

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denial of his request for attorneys’ fees.

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Roebuck & Co., 595 F.3d 750, 752, 754 (7th Cir. 2010) (Thorogood

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II) (noting that, even prior to dismissal, the court had

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“expressed great skepticism of the merits of the plaintiff’s

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individual claim”).

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After the class was decertified and the case was

On February 12, 2010, less than a week after

Thorogood v. Sears,

The Seventh Circuit’s decision in Thorogood II, affirming

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dismissal, resolved the appeal that originally served as the basis

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for Defendants’ motion to stay in this case.

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after that decision was issued, Defendants notified the Court that
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However, shortly

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Sears was planning to pursue a permanent injunction in the

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Northern District of Illinois under the All Writs Act,1 28 U.S.C.

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§ 1651, to preclude other consumers from pursuing class-wide

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relief against Sears based on the same claims that were dismissed

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in Thorogood II.

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for an injunction justified a stay of Murray’s case because, if

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the request was granted, it “would, among other things, enjoin

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plaintiff Martin Murray and his counsel in this action from

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prosecuting this action as anything other than an individual

Defendants asserted that Sears’s pending request

United States District Court
For the Northern District of California

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action.”

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Action or Proceeding, at 2.

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temporary stay of discovery proceedings in this case in May 2010.

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Docket No. 87, May 11, 2010 Minute Order.

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See Docket No. 63, Defs.’ Notice of Pendency of Other
This Court therefore issued a

One week later, on May 18, 2010, the Northern District of

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Illinois issued a decision denying Sears’s request for a permanent

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injunction.

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necessary because Sears could achieve the same result by asserting

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a defense of collateral estoppel in this action based on the

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Seventh Circuit’s decisions in Thorogood I and Thorogood II.

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Sears appealed the district court’s order to the Seventh Circuit.

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The court reasoned that injunctive relief was not

While that appeal was pending, Defendants in this case case
moved to strike the class action allegations in Murray’s

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The All Writs Act provides that the “all courts established by
Act of Congress may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). The Supreme Court has
“repeatedly recognized the power of a federal court to issue such
commands under the All Writs Act as may be necessary or appropriate to
effectuate and prevent the frustration of orders it has previously
issued in its exercise of jurisdiction otherwise obtained.” United
States v. New York Tel. Co., 434 U.S. 159, 172 (1977).

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complaint.

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Illinois’s order -- the same order that Sears had just appealed --

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Defendants argued that Murray was collaterally estopped from

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bringing his class claims in light of the Thorogood decisions.

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July 2010, this Court granted the motion to strike.

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found that, “although rejection of a multi-state class does not

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ipso facto foreclose all single-state class actions, the analysis

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in the Seventh Circuit’s decision and the similarities between the

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factual allegations and legal theories in that case and this case,

Heeding the guidance of the Northern District of

United States District Court
For the Northern District of California

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require the application of collateral estoppel.”

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In

The Court

Order Granting Motion to Strike, at 11.2

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Docket No. 104,

Murray filed an amended class action complaint the following

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week.

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allegations that had not been asserted by Thorogood.

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particular, he alleged that Sears and Electrolux had specifically

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marketed certain Kenmore-brand dryer models, including the model

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he purchased, as having an “all stainless steel drum” and

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expressly represented that this feature made the dryers more

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durable and less susceptible to corrosion and chipping than other

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models.

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52.

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on the grounds that Murray was collaterally estopped from

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representing a class.

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Murray’s complaint, this Court denied the motion to strike and

In his amended complaint, Murray added new factual
In

See Docket No. 106, First Amended Complaint (1AC) ¶¶ 50-

Defendants once again moved to strike the class allegations

However, based on the new allegations in

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The order noted, “Because the Court has concluded that Plaintiff
cannot proceed on his class allegations, the Court need not wait for a
decision by the Seventh Circuit” on Sears’s appeal of the Northern
District of Illinois’ order denying Sears’s motion for a permanent
injunction. Order Granting Motion to Strike at 11-12.

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allowed Murray to proceed on his class claims.

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Order Denying Motion to Strike, at 7-8 (“Because the allegations

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in the instant case are sufficiently different from those in

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Thorogood, the class certification issues necessarily decided in

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the previous proceeding are not identical to those presently

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before the Court.

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asserting his claims on a class-wide basis.”).

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Docket No. 120,

Plaintiff is not collaterally estopped from

In November 2010, two months after this Court denied
Defendants’ second motion to strike, the Seventh Circuit reversed

United States District Court
For the Northern District of California

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the Northern District of Illinois’ order denying Sears’s motion

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for a permanent injunction.

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624 F.3d 842 (7th Cir. 2010) (Thorogood III).

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court expressed disagreement with this Court’s order finding that

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Murray had sufficiently amended his class action allegations to

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avoid the bar of collateral estoppel.

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“Murray’s suit is barred by collateral estoppel” because the minor

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differences between his class claims and Thorogood’s do not

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suggest that he will be better able to meet Rule 23(a)’s

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commonality requirement).

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be enjoined from proceeding on his class action claims and,

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further, that all other putative “members of Thorogood’s class

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must be enjoined as well as the lawyers so that additional Murrays

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don’t start popping up, class action complaint in hand, all over

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the country, represented by other members of the class action

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bar.”

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District of Illinois to enter the injunction and denied

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Thorogood’s requests for rehearing and rehearing en banc in

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December 2010, 627 F.3d 289 (7th Cir. 2010).

Id. at 853.

Thorogood v. Sears, Roebuck & Co.,
In its opinion, the

Id. at 852 (concluding that

The court thus held that Murray should

The Seventh Circuit directed the Northern

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The following month, January 2011, this Court stayed all

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discovery proceedings in light of Thorogood III and scheduled a

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case management conference to address how this case should proceed

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once the Northern District of Illinois issued its injunction

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barring Murray from pursuing his class claims against Defendants.

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Before that case management conference was held, however,

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Thorogood filed a petition for a writ of certiorari, which the

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Supreme Court granted in June 2011.

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In its three-sentence order, the Supreme Court vacated the Seventh

131 S. Ct. 3060, 361 (2011).

United States District Court
For the Northern District of California

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Circuit’s opinion in Thorogood III and remanded the case for

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further consideration in light of its recent decision in Smith v.

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Bayer Corp., 131 S. Ct. 2368 (2011), which addressed the

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preclusive effect of one court’s class certification decision on

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subsequent motions for class certification in other courts.3

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In May 2012, the Seventh Circuit instructed the Northern

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District of Illinois to vacate its injunction barring Murray from

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pursuing his class claims in this action.4

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Roebuck & Co., 678 F.3d 546, 552 (7th Cir. 2012) (Thorogood IV).

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One month later, in June 2012, this Court lifted the stay of

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discovery in Murray’s case and set a briefing schedule for his

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class certification motion.

Thorogood v. Sears,

Murray now moves for class

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3

Both Murray and Thorogood participated in Smith as amici curiae
at the briefing stage. This order discusses Smith in further depth
below.
4 The Northern District of Illinois had entered the injunction in
April 2011, before the Supreme Court had granted Thorogood’s petition
for certiorari and vacated the Seventh Circuit’s opinion in Thorogood
III. See Docket No. 139-2, N.D. Ill. Injunction in Thorogood.

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certification under Federal Rules of Civil Procedure 23(b)(2) and

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23(b)(3).5

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LEGAL STANDARD

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Plaintiffs seeking to represent a class must satisfy the

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threshold requirements of Rule 23(a) as well as the requirements

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for certification under one of the subsections of Rule 23(b).

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Rule 23(a) provides that a case is appropriate for certification

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as a class action if

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(1)

the class is so numerous that joinder of all members is
impracticable;

(2)

there are questions of law or fact common to the class;

(3)

the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and

(4)

the representative parties will fairly and adequately
protect the interests of the class.

United States District Court
For the Northern District of California

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Fed. R. Civ. P. 23(a).
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Plaintiffs must also establish that one of the subsections of
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Rule 23(b) is met.

In the instant case, Plaintiffs seek

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certification under subsections (b)(2) and (b)(3).
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Rule 23(b)(2) applies where “the party opposing the class has
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acted or refused to act on grounds generally applicable to the
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class, thereby making appropriate final injunctive relief or
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5

Although Murray asserts that he is also moving for class
certification “pursuant to Cal. Code of Civil Procedure § 1781,” Docket
No. 167, Class Cert. Mot. ii, that provision is inapplicable for two
reasons. First, “federal procedural rules govern a case that has been
removed to federal court.” Smith, 131 S. Ct. at 2374 n.2 (explaining
that federal courts apply Federal Rule of Civil Procedure 23 to class
certification decisions rather than analogous state rules of procedure).
Second, section 1781 of the California Code of Civil Procedure was
repealed in 2000. Murray most likely intended to cite section 1781 of
the California Civil Code, which governs consumer class actions brought
in state court.

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corresponding declaratory relief with respect to the class as a

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whole.”

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Fed. R. Civ. Proc. 23(b)(2).

Rule 23(b)(3) permits certification where common questions of

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law and fact “predominate over any questions affecting only

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individual members” and class resolution is “superior to other

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available methods for the fair and efficient adjudication of the

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controversy.”

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intended “to cover cases ‘in which a class action would achieve

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economies of time, effort, and expense . . . without sacrificing

Fed. R. Civ. P. 23(b)(3).

These requirements are

United States District Court
For the Northern District of California

10

procedural fairness or bringing about other undesirable results.’”

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Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting

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Fed. R. Civ. P. 23(b)(3) Adv. Comm. Notes to 1966 Amendment).

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Regardless of what type of class the plaintiff seeks to

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certify, it must demonstrate that each element of Rule 23 is

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satisfied; a district court may certify a class only if it

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determines that the plaintiff has borne this burden.

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Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v.

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Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977).

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general, the court must take the substantive allegations of the

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complaint as true.

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Cir. 1975).

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analysis,’” which may require it “‘to probe behind the pleadings

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before coming to rest on the certification question.’”

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Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting

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Falcon, 457 U.S. at 160-61).

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will entail some overlap with the merits of the plaintiff’s

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underlying claim.

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2551.

Gen. Tel.

In

Blackie v. Barrack, 524 F.2d 891, 901 (9th

However, the court must conduct a “‘rigorous

Wal-Mart

“Frequently that ‘rigorous analysis’

That cannot be helped.”

Dukes, 131 S. Ct. at

To satisfy itself that class certification is proper, the
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court may consider material beyond the pleadings and require

2

supplemental evidentiary submissions by the parties.

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F.2d at 901 n.17.

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context of a motion for class certification, district courts must

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consider ‘the persuasiveness of the evidence presented.’”

6

v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting

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Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.

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2011)).

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whether a class should be certified.

Blackie, 524

“When resolving such factual disputes in the

Aburto

Ultimately, it is in the district court’s discretion
Molski v. Gleich, 318 F.3d

United States District Court
For the Northern District of California

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937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms

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Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).

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DISCUSSION
I.

Principles of Comity
Defendants urge this Court to show comity toward the Seventh

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Circuit’s denial of class certification in Thorogood I, 547 F.3d

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at 748.

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Smith, a federal court must defer to any prior federal class

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certification decision addressing the same claims and issues.

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support this claim, they cite language from Smith encouraging

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federal courts “to apply principles of comity to each other’s

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class certification decisions when addressing a common dispute.”

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131 S. Ct. at 2382.

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They argue that, under the Supreme Court’s decision in

To

While Smith requires federal courts to show respect for prior

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class certification rulings, it does not require that they

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mechanically adopt those prior rulings whenever they are presented

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with a motion to certify a class in a copycat lawsuit.

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especially true where, as here, a class was never certified in the

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earlier action and the plaintiff in the subsequent lawsuit never
10

This is

1

joined the earlier action.

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proposed class action nor a rejected class action may bind

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nonparties.”

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rule could lead to abuses by “class counsel [who] repeatedly try

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to certify the same class” with different plaintiffs in different

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jurisdictions but it concluded that this concern did not justify

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“departing from the usual rules of preclusion.”

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(“[O]ur legal system generally relies on principles of stare

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decisis and comity among courts to mitigate the sometimes

Id. at 2380.

As Smith explained, “Neither a

The Smith Court acknowledged that this

Id. at 2381-82

United States District Court
For the Northern District of California

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substantial costs of similar litigation brought by different

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plaintiffs.

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lies in binding nonparties to a judgment.”).

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We have not thought that the right approach . . .

The Seventh Circuit has relied on this aspect of Smith in

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rejecting the same argument that Defendants advance here.

15

v. Dart, 683 F.3d 373, 377 (7th Cir. 2012) (“[T]he defendants’

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argument that Smith v. Bayer Corp. adopted a rule of comity in

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class action suits that precludes granting class certification in

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a copycat class action must be rejected.” (emphasis in original)).

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Although the court recognized that the prospect of duplicative

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litigation by multiple class action plaintiffs raises legitimate

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policy concerns,6 it nevertheless held that federal courts are not

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bound to adopt other courts’ prior class certification rulings.

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The court explained,

Smentek

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6

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In describing this problem, the Smentek court specifically
singled out Murray’s counsel in the present case. See 683 F.3d at 37677 (“Without a rule of preclusion, class action lawyers can do what the
lawyer here (and the lawyer in Thorogood) did: keep bringing identical
class actions with new class representatives until they draw a judge who
is willing to certify the class.”).

11

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2
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5
6
7

How are courts or legislatures to prevent
class action litigation from metastasizing?
The rule urged by the defendants in this case
that the denial of class certification bars
the certification of the same or a similar
class in a suit by a member of the same class
as the previous suit might do the trick, but
it would contradict the holding of Smith v.
Bayer Corp., which is that a class member who
did not become a party to the previous
parallel class action is not precluded from
seeking class certification in his class
action.

8

Id. (citations omitted).

9

concluded, “We are left with the weak notion of ‘comity’ as

Based on this reasoning, the court

United States District Court
For the Northern District of California

10

requiring a court to pay respectful attention to the decision of

11

another judge in a materially identical case, but no more than

12

that even if it is a judge of the same court or a judge of a

13

different court within the same judiciary.”

14

in this district subsequently cited Smentek in concluding that

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“consideration of previous decisions on an identical class action

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is not mandatory but discretionary.”

17

4067594, at *1 (N.D. Cal.).

18

itself, make clear that Thorogood I does not preclude Murray from

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moving for class certification in this case.

20

Id. at 377.

A court

Williams v. Foods, 2013 WL

These decisions, along with Smith

Nevertheless, even if Thorogood I is not dispositive here, it

21

remains persuasive.

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evidence are nearly identical to the allegations and evidence that

23

Thorogood submitted in his failed bid for class certification and,

24

as explained further below, they contain many of the same

25

deficiencies.

26

class certification here, as Defendants contend, it provides

27

strong guidance in deciding Murray’s motion and must be afforded

28

“respectful attention.”

Murray’s factual allegations and supporting

Thus, while Thorogood I does not compel a denial of

Smentek, 683 F.3d at 377.
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1
2

II.

Rule 23(a)
Murray moves to certify the following class:

3

all persons in the state of California who
purchased from Sears, through a Sears retail
store or on the Sears website at www.sears.com
within the applicable statute of limitations
period for each claim, a Kenmore or Frigidaire
laundry dryer classified with a stainless
steel drum and the drum front was not made of
stainless steel that was manufactured by
Electrolux.

4
5
6
7
8

Class Cert. Mot. 11.

Murray asserts that there are at least forty

9
Kenmore-brand dryer models and at least ten Frigidaire-brand dryer
10
United States District Court
For the Northern District of California

models which are sold by Sears, manufactured by Electrolux, and
11
contain a stainless steel drum with a non-stainless steel drum
12
front.

Docket No. 167-2, Boling Decl. ¶ 13.

13
A.

Numerosity

14
The parties have stipulated that thousands of California
15
consumers purchased the Kenmore-brand dryer models identified in
16
Murray’s proposed class definition.

See Docket No. 198-1, Oliss

17
Decl., Ex. A, Stipulated Facts ¶¶ 3-4.

Murray has not

18
specifically identified how many of these consumers purchased
19
dryers “within the applicable limitations period” or how many
20
purchased Frigidaire-brand dryers.

Nonetheless, because

21
Defendants do not deny that these numbers would satisfy Rule
22
23(a)’s numerosity requirement, the Court assumes that this
23
requirement has been met.
24
B.

Commonality

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26
27
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Rule 23 contains two related commonality provisions.

Rule

23(a)(2) requires that there be “questions of law or fact common
to the class.”

Rule 23(b)(3), in turn, requires that these common
13

questions predominate over individual ones.

2

addresses only whether Murray has satisfied Rule 23(a)(2)’s

3

requirements, which are “less rigorous than the companion

4

requirements of Rule 23(b)(3).”

5

F.3d 1011, 1019 (9th Cir. 1998) (“Rule 23(a)(2) has been construed

6

permissively.”).

7

23(a)(2) may be satisfied even if fewer than all legal and factual

8

questions are common to the class.

9

Associates, LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) (“‘All

10
United States District Court
For the Northern District of California

1

questions of fact and law need not be common to satisfy the

11

[commonality requirement].’” (citations omitted; alterations in

12

original)), cert. denied, 133 S. Ct. 2361 (2013).

This section

Hanlon v. Chrysler Corp., 150

The Ninth Circuit has made clear that Rule

Meyer v. Portfolio Recovery

13

As noted above, the Seventh Circuit held that class

14

certification was inappropriate in Thorogood I because “there

15

[were] no common issues of law or fact” in that case.

16

747.

17

Thorogood failed to present evidence that “Sears advertised the

18

dryers as eliminating a problem of rust stains by having a

19

stainless steel drum.”

20

advertise a host of features that might matter to consumers, such

21

as price, size, electrical usage, appearance, speed, and controls,

22

but not, as far as anyone in this litigation has suggested except

23

the plaintiff, avoidance of clothing stains due to rust.”).

24

Without this evidence, the court concluded, “Each class member who

25

wants to pursue relief against Sears [would] have to testify to

26

what he understands to be the meaning of a label or advertisement

27

that identifies a clothes dryer as containing a stainless steel

28

drum.”

547 F.3d at

The court reasoned that commonality was lacking because

Id.

Id. (“Advertisements for clothes dryers

Although the court noted other problems with the
14

1

proposed class, it explained that the “deal breaker [was] the

2

absence of any reason to believe that there is a single

3

understanding of the significance of labeling or advertising

4

clothes dryers as containing a ‘stainless steel drum.’”

5

Id.

Murray’s motion for class certification suffers from the same

6

fatal defect.

7

evidence that Defendants represented on a class-wide basis that

8

the dryer’s drum front was made of stainless steel (rather than

9

mild steel) and that this feature would prevent its user’s clothes

Like Thorogood, he has failed to present any

United States District Court
For the Northern District of California

10

from developing rust stains or tears.

11

that some of Sears’s sales managers acknowledged during their

12

depositions that the company promoted the stainless steel drums in

13

advertisements, none of these managers testified that Sears

14

marketed the drums as preventing rust stains or tearing.

15

product manager testified that he did not know why the company

16

chose to promote the stainless steel drum.

17

224:7 (“I don’t really know [the benefits of a stainless steel

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drum].

19

perception and my understanding is, the more you use, the smoother

20

it gets.”).7

I’m not an engineer.

Although Murray points out

One

Pigatto Depo. 223:22-

I guess at this point, the

Another testified that she believed the stainless

21
22
23
24
25
26
27
28

7

Rather than citing to the relevant page-and-line numbers of the
deposition transcripts he submitted as evidence, Murray instead cites to
a series of “Deposition Statements” which purport to summarize the
deposition testimony on which he wishes to rely. See Docket Nos. 17071. Defendants object to these deposition summaries -- which total over
one hundred pages in length -- because Murray prepared them himself.
This objection is sustained. “The Court bases its decisions on what the
evidence shows, not on how a party has characterized the evidence.”
eForce Global, Inc. v. Bank of America, 2010 WL 2573976, at *2 (N.D.
Cal.); see also Harris v. City of Seattle, 152 Fed. Appx. 565, 568 (9th
Cir. 2005) (unpublished opinion) (noting that the plaintiff’s
“characterization of [a witness]’s deposition testimony does not
represent probative evidence”). The Court relies in this order only on

15

1

steel drum was marketed as an aesthetic feature.

2

Depo. 32:9-:10.

3

Sears’s marketing team when asked about the company’s advertising

4

practices.

5

supports Murray’s claim that California consumers, as a class,

6

were likely to be confused by Sears’s marketing claims.

Christensen

A third Sears employee simply referred Murray to

Wood Depo. 57:4-:13, 60:6-:17.

None of this testimony

7

While some of Sears’s promotional materials state that the

8

Kenmore-brand dryers feature an “exclusive, all stainless-steel

9

drum that provides lasting durability,” King Depo. 133:11-:13,

United States District Court
For the Northern District of California

10

this hardly qualifies as a material misrepresentation.

11

Seventh Circuit explained when it examined this same evidence in

12

Thorogood III,

13
14
15
16
17
18

As the

It’s true that stainless steel does not rust
or chip, and therefore a dryer that is made,
even if only in part (the drum), of stainless
steel should indeed provide “lasting
durability.” But the claim is not falsified
if a small part of the drum is made of “mild”
steel coated with ceramic. And a dryer’s
durability has nothing to do with rust stains
in clothing, Thorogood’s contention and
Murray’s as well.

19

624 F.3d at 851; see also Thorogood IV, 678 F.3d at 549 (“Some of

20

Sears’ ads do point out that stainless steel doesn’t rust, but no

21

one likes rust, whether or not the rust rubs off on clothes.”).

22

The only evidence Murray has presented to suggest that Sears

23

specifically represented that the stainless steel drum would

24

protect clothes from rust stains is his own interaction with a

25

salesperson at Sears’s San Bruno store.

26

declaration that the salesperson “represented that the Product

Murray stated in his

27
28

the actual deposition transcripts attached to Murray’s deposition
summaries, even though Murray himself neglected to cite to them.

16

1

consisted of a stainless steel drum, which affected the

2

performance, quality, benefit and value of the dryer, in that the

3

stainless steel drum could not chip, rust or stain clothing placed

4

inside it for drying.”

5

But Murray’s account of his personal experience at a single Sears

6

store does not suggest that Sears made this representation about

7

the Kenmore-brand dryers on a class-wide basis.

8

suggest that Sears ever made such a representation about the

9

Frigidaire-brand dryers nor that Electrolux ever made similar

See Docket No. 167-4, Murray Decl. ¶ 4.

Nor does it

United States District Court
For the Northern District of California

10

representations about either brand of dryers.

11

isolated (and uncorroborated) incident of allegedly deceptive

12

marketing suggests that Murray’s claims, much like Thorogood’s,

13

are highly “idiosyncratic” and, thus, not amenable to class-wide

14

proof.

15

If anything, this

Thorogood I, 547 F.3d at 747.

Indeed, Murray’s failure to identify any other class member

16

whose clothes were stained by rust only reaffirms that his claimed

17

injury here is unique.

18

that other California consumers’ clothes were ever damaged by

19

Kenmore or Frigidaire dryers.

20

his deposition whether he knew of “any other person who has had

21

the same failure that [he] had in a Kenmore stainless steel drum,”

22

he responded, “Other than Mr. Thorogood, no.”

23

173:18-:21.

24

offered by a Sears service technician and a customer service

25

specialist who, collectively, could only recall receiving two

26

complaints -- one of which came from Thorogood -- about rust

27

developing on the front of a stainless steel dryer drum.

28

Docket No. 198, Hess Depo. 16:5-:22; Daley Depo. 20:14-:18.

He has not offered any evidence to suggest

In fact, when he was asked during

Murray Depo.

This response is consistent with the testimony

17

See

1

Despite this lack of evidence of any common misrepresentation

2

or injury, Murray contends that his claims raise common questions

3

of law.

4

whether Defendants’ alleged misrepresentations regarding the

5

dryer’s drum were material and whether they were likely to mislead

6

a reasonable consumer.

7

Co., 2013 WL 5201190, at *19 (N.D. Cal.) (“The standard for

8

establishing a violation of California’s UCL, FAL, and CLRA is the

9

‘reasonable consumer’ test, which requires a plaintiff to ‘show

He argues that common questions must be resolved as to

See generally Gustavson v. Wrigley Sales

United States District Court
For the Northern District of California

10

that members of the public are likely to be deceived’ by the

11

business practice or advertising at issue.” (citations omitted)).

12

These questions, however, would only be relevant to all putative

13

class members if Murray had adduced some evidence to suggest that

14

Defendants had actually made misrepresentations on a class-wide

15

basis.

16

that Sears engaged in an isolated instance of deception in

17

California when Murray went to purchase his own dryer in 2001.

18

This evidence is not sufficient to give rise to any relevant

19

questions of law that are common to all potential class members.

20

Accordingly, because he has not identified any common questions of

21

fact or law that pertain to every class member, Murray has failed

22

to meet the commonality prerequisite.

As explained above, Murray’s evidence suggests, at most,

23

C.

24

Rule 23(a)(3) requires that the “claims or defenses of the

Typicality

25

representative parties [be] typical of the claims or defenses of

26

the class.”

27

class and possess the same interest and suffer the same injury as

28

the class members.”

Thus, every “class representative must be part of the

Falcon, 457 U.S. at 156 (quoting E. Tex.
18

1

Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))

2

(internal quotation marks omitted).

3

satisfied if the named plaintiffs have suffered the same or

4

similar injuries as the unnamed class members, the action is based

5

on conduct which is not unique to the named plaintiffs, and other

6

class members were injured by the same course of conduct.

7

v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

8

Typicality is not met, however, “where a putative class

9

representative is subject to unique defenses which threaten to

This requirement is usually

Hanon

United States District Court
For the Northern District of California

10

become the focus of the litigation.”

11

Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

12

903 F.2d 176, 180 (2d Cir. 1990).

13

Id. (quoting Gary Plastic

Murray has failed to satisfy the typicality requirement here

14

for the same reasons he has failed to satisfy the commonality

15

requirement: specifically, he has not presented evidence of any

16

class-wide misrepresentations or class-wide injury.

17

above, the only evidence here that Defendants ever specifically

18

represented that their dryers’ stainless steel drums protect

19

clothes from rust stains comes from Murray’s own isolated

20

experience at the San Bruno Sears store.

21

any evidence to suggest that either Defendant ever made the same

22

representations to other California consumers.

23

presented any evidence to suggest that other California consumers

24

ever had the same problems with the Kenmore-brand dryers that he

25

had.

26

that of the proposed class.

27
28

As explained

Murray has not presented

Nor has he

On this record, Murray’s experience is not representative of

Murray is atypical in other ways, as well.

For instance, he

stated repeatedly during his deposition that when he first
19

1

inspected the interior of his dryer in 2007, he noticed that the

2

entire drum was loose.

3

154:23-:25 (“I could feel that the drum was loose, that it was

4

actually moving and not firmly in contact with whatever was

5

supposed to hold it in.”).

6

drum was most likely what caused his clothes to become exposed to

7

the rust in the first place because the rust had only developed on

8

the exterior portion of the drum front -- a part of the dryer that

9

would not normally come into contact with any clothes.

Murray Depo. 143:6-:10, 144:24-145:1,

In fact, he testified that the loose

Id.

United States District Court
For the Northern District of California

10

142:22-:24, 143:15-:16, 154:17-155:5.

11

other problems with Murray’s dryer may have contributed to the

12

rust stains he experienced -- leaves him vulnerable to fact-based

13

defenses that could not be raised against other class members.

14

Hanon, 976 F.2d at 508 (recognizing that typicality is not met

15

where a plaintiff’s “unique background and factual situation

16

require him to prepare to meet defenses that are not typical of

17

the defenses which may be raised against other members of the

18

proposed class”).

19

evidence shows that Electrolux changed the way that it installed

20

its dryer drums in 2002, shortly after Murray purchased his dryer.

21

Docket No. 197-1, King Decl. ¶¶ 12-15 (describing how “beginning

22

around 2002, Electrolux redesigned the suspension system of the

23

Kenmore dryers” by changing the way that the drum was attached to

24

the rest of the machine).

25

This admission -- that

This is especially true here, where the

In addition to these unique fact-based defenses, Murray is

26

also subject to unique legal defenses based on the statute of

27

limitations for each of the claims he asserts.

28

limitations periods here are four years for Murray’s contract
20

The relevant

1

claim, Cal. Code Civ. Proc. § 337; four years for his UCL claim,

2

Cal. Bus. & Prof. Code § 17208; three years for his CLRA claim,

3

Cal. Civ. Code § 1783; and three years for his unjust enrichment

4

claim, Cal. Code Civ. Proc. § 338(d).

5

purchased his dryer in September 2001, all of his claims would

6

have expired in September 2004 or September 2005, absent equitable

7

tolling or some other rule of delayed accrual.

8

that his claims -- which he did not file until November 2009 --

9

are not time-barred because they are subject to equitable tolling

Thus, because Murray

Murray contends

United States District Court
For the Northern District of California

10

and the delayed-discovery rule.

11

two highly dubious premises.

12

have discovered that his dryer was damaging his clothes until

13

after the limitations period elapsed.

14

that he began to notice rust stains on his clothes within three

15

years of purchasing the dryer, this claim will be difficult to

16

establish.

17

claims are sufficiently similar to Thorogood’s claims to justify

18

tolling the limitations period during the pendency of Thorogood’s

19

lawsuit.

20

Murray’s efforts to distinguish his case from Thorogood’s

21

throughout this litigation (including in the instant motion).

22

any case, Defendants need not establish conclusively at this stage

23

that Murray’s delayed-discovery and equitable tolling arguments

24

are entirely without merit.

25

enough for them to establish that their limitations defense

26

against Murray could “threaten to become the focus of the

27

litigation.”

28

his dryer more than eight years before he filed this action --

These arguments, however, rest on

The first is that Murray could not

Given Murray’s admission

The second questionable premise is that Murray’s

This, too, will be difficult to establish in light of

In

For the purposes of Rule 23(a), it is

Hanon, 976 F.2d at 508.

21

Because Murray purchased

1

twice the length of the longest applicable limitations period

2

here -- and his delayed-discovery and equitable tolling arguments

3

appear particularly weak, Defendants have met this burden.

4

Finally, Murray has not presented sufficient evidence to

5

establish that his experience purchasing and operating a Kenmore

6

dryer accurately represents the experiences of consumers who

7

purchased and purchased Frigidaire dryers.

8

district have generally held that plaintiffs lack standing to

9

bring CLRA claims based on the marketing of products that they

Courts in this

United States District Court
For the Northern District of California

10

never purchased.

11

2847575, at *6 (N.D. Cal.) (“A plaintiff has standing to assert

12

injury based on a defective product or false advertising only if

13

the plaintiff experienced injury stemming from the purchase of

14

that product.”); Carrea v. Dreyer’s Grand Ice Cream, Inc., 2011 WL

15

159380, at *3 (N.D. Cal.) (dismissing plaintiff’s CLRA claims

16

related to products that he never purchased because he never

17

“suffered any injury or lost money or property with respect to

18

those products”).

19

in bringing CLRA claims based on products that he or she never

20

purchased.

21

2009) (finding that a plaintiff failed to satisfy the typicality

22

prerequisite “because of her non-consumer status under the CLRA

23

and her atypicality with respect to possible unique defenses”).

24
25

See, e.g., Granfield v. NVIDIA Corp., 2012 WL

A plaintiff therefore may not represent a class

Mazur v. eBay Inc., 257 F.R.D. 563, 569 (N.D. Cal.

For all of these reasons, Murray has not satisfied Rule
23(a)’s typicality requirement.

26

D.

27

Rule 23(a)(4) establishes as a prerequisite for class

28

Adequacy

certification that “the representative parties will fairly and
22

1

adequately protect the interests of the class.”

2

23(a)(4).

3

class counsel.

4

Fed. R. Civ. P.

Rule 23(g)(2) imposes a similar adequacy requirement on

Murray is not an adequate class representative because, as

5

previously explained, his claims are not typical of those he seeks

6

to represent.

7

(C.D. Cal.) (recognizing “considerable overlap between the

8

typical[it]y prerequisite of Rule 23(a)(3) and the adequate

9

representation requirement of Rule 23(a)(4)”).

A&J Deutscher Family Fund v. Bullard, 1986 WL 14903

Because Murray has

United States District Court
For the Northern District of California

10

not satisfied this requirement, there is no need to address the

11

adequacy of class counsel.

12

III. Rule 23(b)

13

As explained above, Murray’s motion for class certification

14

must be denied because he has failed to satisfy the requirements

15

of Rule 23(a).

16

failed to satisfy the requirements of Rule 23(b).

This section briefly explains why he has also

17

A.

18

A court may grant certification under Rule 23(b)(2) “if class

Rule 23(b)(2)

19

members complain of a pattern or practice that is generally

20

applicable to the class as a whole.

21

have not been injured by the challenged practice, a class may

22

nevertheless be appropriate.”

23

1047 (9th Cir. 1998); see also 7A Wright, Miller & Kane, Federal

24

Practice & Procedure § 1775 (2d ed. 1986) (“All the class members

25

need not be aggrieved by or desire to challenge the defendant’s

26

conduct in order for some of them to seek relief under Rule

27

23(b)(2).”).

Even if some class members

Walters v. Reno, 145 F.3d 1032,

28
23

1

Murray has not clearly defined the scope of the injunctive
relief he seeks nor has he explained why he is seeking injunctive

3

relief in the first place.

4

injunction, inter alia, for Sears’ deceptive practice of failing

5

to substantiate the performance features of major appliances as

6

directed by the [Federal Trade Commission]8 so he can rely upon

7

the future disclosures of such features by Sears.”

8

210, Pl.’s Reply 9.

9

to a request for an order directing Sears (but, curiously, not

10
United States District Court
For the Northern District of California

2

Electrolux) to comply generally with existing federal consumer

11

protection regulations -- an obligation that would exist even in

12

the absence of an injunction.

13

injunction would redress Murray’s alleged injuries or those of the

14

class he seeks to represent.

15

Ctr., 1998 WL 34345518, at *11 (D. Neb.) (“Ordering [the

16

defendant] to generally comply with existing law is, if not

17

redundant, broader than necessary to remedy the underlying

18

wrong.”).

19

He asserts that he is seeking “an

Docket No.

This request for relief essentially amounts

It is not clear how this proposed

See Betts v. Univ. of Nebraska Med.

In any event, Murray has not established that the conduct he

20

complains of -- namely, deceptive representations about the

21

ability of stainless steel dryer drums to prevent rust stains on

22

clothing -- is applicable to the class as a whole.

23

above, the only plausibly deceptive representations he has

24

identified are the isolated statements of a single salesperson he

As noted

25
26
8

27
28

Although Murray cites a Federal Trade Commission regulation in a
footnote of his reply brief, he fails to explain how the agency and its
regulations are relevant to his present claims, all of which arise under
state law.

24

1

met more than ten years ago.

2

the need for class-wide injunctive relief.

This is not sufficient to establish

3

B.

4

To qualify for certification under Rule 23(b)(3), “a class

Rule 23(b)(3)

5

must satisfy two conditions in addition to the Rule 23(a)

6

prerequisites: common questions must ‘predominate over any

7

questions affecting only individual members,’ and class resolution

8

must be ‘superior to other available methods for the fair and

9

efficient adjudication of the controversy.’”

United States District Court
For the Northern District of California

10
11

Hanlon, 150 F.3d at

1022 (quoting Fed. R. Civ. P. 23(b)(3)).
As explained above, Murray has not identified any relevant

12

legal or factual questions that are common to all putative class

13

members.

14

superiority requirements of Rule 23(b)(3).

As such, he cannot satisfy the predominance or

15
16

CONCLUSION
For the reasons set forth above, Plaintiff’s motion for class

17

certification (Docket No. 167) is DENIED.

18

Plaintiff’s motion for leave to file supplemental briefing on

19

class certification (Docket No. 225) is DENIED.

20

brief on April 9, 2013, without leave of the Court and in

21

violation of the local rules, responding to Defendants’ statement

22

of recent decision.

23

issue is not necessary, especially as the Court does not rely on

24

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), in this order.

25

Defendants’ objections to Plaintiff’s reply evidence are OVERRULED

26

as moot.

27
28

See Docket No. 223.

In addition,

Plaintiff filed a

Further briefing on this

A case management conference shall be held at 2:00 p.m. on
Wednesday, March 12, 2014, to set a case management schedule for
25

1

Murray’s individual claims.

2

management statement on or before March 5, 2014.

3

The parties shall file a joint case

IT IS SO ORDERED.

4
5
6

Dated:

2/12/2014

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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