Hurley v. Skechers, U.S.A., Inc. et al

Filing 17

MEMORANDUM OPINION & ORDER denying (1344) Motion to Dismiss; denying (1370) Motion to Dismiss; denying (1532) Motion for Hearing; denying (1571) Motion to Dismiss in case 3:11-md-02308-TBR-LLK; denying (6) Motion to Dismiss; denying (16) Motion for Hearing in case 3:13-cv-00790-TBR; denying (6) Motion to Dismiss in case 3:13-cv-00851-TBR; denying (6) Motion to Dismiss in case 3:13-cv-01011-TBR. Signed by Senior Judge Thomas B. Russell on 2/6/2014. Associated Cases: 3:11-md-02308-TBR-LLK, 3:13-cv-00790-TBR, 3:13-cv-00851-TBR, 3:13-cv-01011-TBRcc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
IN RE: SKECHERS TONING SHOE
PRODUCTS LIABILITY LITIGATION

Master File No. 3:11-MD-2308-TBR
MDL No. 2308

Case Nos. 3-13-CV-790, 3:13-CV-851,
3:13-CV-1011

THOMAS B. RUSSELL
U.S. DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motions to Dismiss, (Docket Nos. 1344,
1370, 1571), and Motion for Hearing on the Motions to Dismiss, (Docket Nos. 1532). Plaintiffs
have responded. (Docket Nos. 1447, 1516, 1641.) Defendants have replied. (Docket Nos. 1496,
1621, 1678.) This matter is fully briefed and ripe for adjudication. For the following reasons,
the Court will DENY Defendants’ Motions to Dismiss without prejudice, (Docket Nos. 1344,
1370, 1571.) The Court will also DENY Defendants’ Motion for a Hearing on the Motions to
Dismiss. (Docket No. 1532.)
I.

Defendants’ Case Specific Motions Premised on State Law
Defendants move to dismiss the Complaints of several individual Plaintiffs based on the

statute of limitations of the applicable states’ law in each case.1 Plaintiffs argue that ruling on
case specific legal and factual issues in the cases filed in this multidistrict litigation (MDL) will
not promote efficiency through coordination of discovery, which is the primary purpose of the
multidistrict litigation transfer. (Docket No. 1447, at 1.) Defendants argue that the Court has
discretion to rule on these motions and that MDL transferee courts do in fact “routinely” dismiss

1

Defendants also move to dismiss Plaintiff’s claims based on other state laws. (See, e.g., Docket No. 1370-1, at 2
(moving for dismissal on basis of failure to give notice of claim and opportunity to cure as required by W.V. Code §
46-A-6-10(b).)) For the same reasons that the Court will refrain from ruling on the merits of Defendants’ Motions
to Dismiss premised on the applicable statute of limitations, the Court will refrain from ruling on the merits of
Defendants’ case specific motions based on these state laws.

time-barred actions under the laws of numerous states. (Docket No. 1496, at 4.) Plaintiffs do
not dispute that the Court has authority/discretion rule on case specific motions, but instead
argue that authority/discretion is “better left unexercised in light of the delay and burden that
such motions will create for the Court and the parties.” (Docket No. 1447-1, at 2.)
The primary purpose of multidistrict litigation (MDL) is the promotion of “efficiency
through coordination of discovery.” In re: Nuvaring Prods. Liab. Litig., No. 4:08MD1946RWS, 2009 WL 4825170, at *2 (E.D. Mo. Dec. 11, 2009) (citations omitted). Case specific
rulings “are neither the purpose, nor the forte, of a court presiding over a multidistrict litigation.”
Id. (citations omitted). Instead, the function of an MDL is to “promote judicial economy and
litigant efficiency by allowing the transferee court to preside over matters common among all
cases” and, therefore, the transferee court typically does not rule on case-specific legal issues.
Id. Quite simply, deciding case specific issues is not the role of a MDL court. In fact, in many
instances the “transferor” court is better suited to decide case specific legal issues—particularly
in cases involving local laws where they naturally have more familiarity and expertise, such as in
these cases.
Although it would clearly be within this Court’s discretion to consider and rule on
Defendants’ case specific motions, the Court, in its discretion, will refrain from ruling on the
merits of these motions. Resolution of these motions would require analysis of the specific facts
of each individual case and the unique law of the Plaintiffs’ states of residence. 2 This would
result in a significant burden on the Court and would not promote efficiency. The time and

2

The Court notes that, according to the latest report of the Judicial Panel on Multidistrict Litigation, there are 572
cases pending in MDL 2308. Furthermore, Plaintiff has continued to file cases in this MDL since the date of that
report and contends they plan to file approximately one thousand additional cases in this MDL. (Docket No. 15161, at 3.) Even if only a small percentage of these cases had case specific motions for dismissal based on state law,
there would be a substantial burden placed upon the Court and inefficiency would result. Additionally, the Court
would be in the uncomfortable position of having to perform an analysis of many different states’ laws.

resources of the Court are better expended on issues that are common to all cases. Therefore, the
Court will leave the resolution of these motions to the transferor courts upon remand.
Accordingly, the Court will DENY Defendants’ Motions to Dismiss based on state law
statute of limitations. Any further case specific Motions to Dismiss premised on state law
statutes of limitations will also be denied. For the same reasons, the Court will also DENY
Defendants’ Motions to Dismiss premised on other, case specific state laws. (See, e.g., Docket
No. 1370-1, at 2 (moving for dismissal on basis of failure to give notice of claim and opportunity
to cure as required by W.V. Code § 46-A-6-10(b)).)
I.

Plaintiff Paula Hurley’s Consumer Protection, Fraud/Negligent Representation, and
Warranty Claims
As to Plaintiff Paula Hurley, (Case No. 3-13-CV-790), Defendants move to dismiss her

consumer protection, fraud/negligent representation, and warranty claims based on principles of
release and res judicata. (Docket No. 1344, at 2.) Specifically, Defendants state these claims
were previously settled as part of the nationwide class action in Grabowski v. Skechers U.S.A.,
Inc. and, on May 13, 2013, this Court entered a final order approving that settlement and barring
further proceedings by any class members who failed to opt out. Defendants claim Plaintiff
Hurley was a member of the Grabowski class who settled and broadly released any claims under
consumer protection laws, fraud/misrepresentation theories, and warranty theories. Defendant
argues because Plaintiff Hurley did not opt out of that class action her claims are barred.
(Docket No. 1344-1, at 8.)
The Court finds that Plaintiff Hurley was part of the class which the Final Approval
Order in Grabowski settled. (See Docket No. 934.) Plaintiff Hurley is not listed as one of the
persons opting out of the settlement. (See Docket No. 934, at 13-33.) Accordingly, she is bound
by the class settlement’s terms.

Plaintiff Hurley has not responded to Defendants’ argument that the Grabowski class
action settlement precludes her from pursuing warranty, fraud/misrepresentation, and consumer
protection claims. However, the Court notes that the settlement agreement did expressly reserve
claims relating to personal injury to the Plaintiffs. (Docket No. 934, at 7.) Accordingly, to the
extent they are premised on personal injury and viable, Plaintiff Hurley’s consumer protection,
fraud/negligent representation, and warranty claims will be permitted to proceed at this stage of
the litigation and the Court will DENY the Motion to Dismiss, (Docket No. 1344), on those
claims. (Case No. 3-13-CV-790.)
II.

Plaintiff Ingrid Baird’s Consumer Protection, Fraud/Negligent Representation, and
Warranty Claims
For the same reasons discussed above with respect to Plaintiff Hurley, Defendants move

to dismiss Plaintiff Ingrid Baird’s, (Case No. 3:13-CV-1011), consumer protection,
fraud/negligent representation, and warranty claims. However, unlike Plaintiff Hurley, Plaintiff
Baird does attempt to refute Defendants’ arguments. Specifically, Plaintiff Baird states:
Plaintiff’s claims sounding in warranty, fraud and negligent representation
allege personal injury as a result of Skechers’ wrongful conduct. Pursuant
to the Grabowski settlement agreement, these claims are expressly reserved
to the plaintiff. Specifically, section VIII, subsection C of the agreement
specifically states “[n]otwithstanding the language in this section and/or this
Agreement, the members of the Class . . . are not releasing any claims of or
relating to personal injury.” Therefore, the plaintiff’s claims sounding in
warranty, fraud, and negligent representation are not barred by the
settlement in Grabowski and should not be dismissed.
(Docket No. 1641-1, at 20.) The Court agrees that the settlement agreement did expressly
reserve claims relating to personal injury to the Plaintiffs. (Docket No. 934, at 7.) Accordingly,
to the extent they are premised on personal injury and viable, Plaintiff Baird’s consumer
protection, fraud/negligent representation, and warranty claims will be permitted to proceed at

this stage of the litigation and the Court will DENY the Motion to Dismiss, (Docket No. 1571),
on those claims.3 (Case No. 3:13-CV-1011.)
CONCLUSION
For these reasons, and consistent with the Court’s conclusions above,
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss are DENIED. (Docket Nos.
1344, 1370, 1571.) The Court will also DENY Defendants’ Motion for a Hearing on the
Motions to Dismiss. (Docket No. 1532.)

IT IS SO ORDERED.

February 6, 2014

3

Defendants’ reply to Plaintiff Baird’s argument states:
While accurate, this argument does nothing more than highlight the fatal flaw in her
argument. Those personal injury claims were not part of the Grabowski class action, and
therefore the filing of that suit could not save her otherwise untimely Complaint. But
Plaintiff’s other, advertising-based claims were released by the Grabowski settlement, and
therefore they must be dismissed even if there were a basis for tolling as to them.
(Docket No. 1678, at 13.) Defendants are referencing an argument Plaintiff makes that under state law
the running of the statute of limitations with respect to her personal injury claims should have been
tolled upon the filing of the class-action complaints in Grabowski. This is a case specific issue and, as
discussed above, the Court declines to decide it.