Bovero v. Electrolux Home Products Incorporated

Filing 11

STIPULATION and ORDER signed by Senior Judge William B. Shubb on 3/29/13: Defendant need not respond to the First Amended Complaint in light of Plaintiff's intention to file a Second Amended Complaint. This action is hereby transferred to the United States District Court for the District of New Jersey. (Kaminski, H)

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C. Brandon Wisoff (State Bar No. 121930)
[e-mail]
Thomas B. Mayhew (State Bar No. 183539)
[e-mail]
Alexander M. Porcaro (State Bar No. 281185)
[e-mail]
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
ELECTROLUX HOME PRODUCTS, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT BOVERO,
Plaintiff,

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v.

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ELECTROLUX HOME PRODUCTS
INCORPORATED,

Case No. 2:13-cv-00087-WBS-AC
JOINT STIPULATION AND [PROPOSED]
ORDER TRANSFERRING ACTION TO
THE DISTRICT OF NEW JERSEY
PURSUANT TO THE FIRST-TO-FILE
RULE AND 28 U.S.C. § 1404(a)

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Defendant.
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Plaintiff Robert Bovero (“Plaintiff”) and Defendant Electrolux Home Products, Inc.

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(“Defendant”) (collectively “Parties”), by and through counsel, hereby stipulate that the Court

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may, and request that it do, (1) transfer this putative class action to the District of New Jersey for

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coordinated or consolidated proceedings with two related putative class actions pending there,

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and (2) extend the time for Defendant’s response until after Plaintiff files an anticipated Second

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Amended Complaint that takes into account the District of New Jersey’s ruling on motions to

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dismiss in the two related actions.

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As support and background for this Stipulation, the Parties agree as follows:

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1. On June 1, 2012, Mariusz Kuzian v. Electrolux Home Products, Inc., Case No. 1:12-cv-

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03341-NLH-AMD, (the “Kuzian Action”) was filed in the United States District Court for the

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District of New Jersey, and an amended complaint was filed on June 14, 2012. The Kuzian
STIPULATION AND [PROPOSED] ORDER
TRANSFERRING ACTION TO D.N.J.
Case No. 2:13-cv-00087-WBS-AC

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Action, asserting claims under New Jersey law, prays for certification of a nationwide class of

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purchasers of certain of Defendant’s refrigerator products alleging defects in the ice makers

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contained in those products.

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2. On May 14, 2012, Christopher Lopiccolo v. Electrolux Home Products, Inc., Case No.

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2:12-cv-02397-ADS-ARL, (the “Lopiccolo Action”) was filed in the United States District Court

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for the Eastern District of New York. The Lopiccolo Action, alleging claims under New York

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law, prays for certification of a nationwide class of purchasers of certain of Defendant’s

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refrigerator products alleging defects in the ice makers contained in those products.

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3. On June 27, 2012, the Lopicollo Action was transferred from the Eastern District of New

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York to the District of New Jersey pursuant to a Joint Stipulation and Consent Order dated June

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22, 2012.

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4. On July 11, 2012, the Honorable Noel L. Hillman of the District of New Jersey entered an

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order consolidating the Kuzian and Lopicollo Actions for the purposes of discovery and case

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management and ordering that the consolidated action proceed under the case number for the

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Kuzian Action, Case No. 1:12-cv-03341-NLH-AMD.

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5. On September 25, 2012, the plaintiffs in the Lopicollo Action filed an amended complaint

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to add the claims of a new putative class representative, Irma Lederer, and then dismissed the

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claims of the prior putative class representative, Christopher LoPiccolo. This amended action

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(the “Lederer Action”), alleging claims under New York law, prays for certification of a New

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York class of purchasers of certain of Defendant’s refrigerator products alleging defects in the ice

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makers contained in those products.

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6. On January 14, 2013, Robert Bovero v. Electrolux Home Products, Inc., Case No. 2:13-

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cv-00087-WBS-AC, (the “Bovero Action” or “this action”) was filed in this Court, and a First

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Amended Complaint was filed on February 28, 2013. This action, alleging claims under

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California law, prays for certification of a California class of purchasers of certain of Defendant’s

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refrigerator products alleging defects in the ice makers contained in those products.

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STIPULATION AND [PROPOSED] ORDER
TRANSFERRING ACTION TO D.N.J.
Case No. 2:13-cv-00087-WBS-AC

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7. On February 26, 2013, pursuant to the Parties’ joint stipulation, this Court entered an

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order extending the time for Defendant to respond to the First Amended Complaint to March 29,

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2013.
8. On March 28, 2013, Judge Hillman entered rulings denying Defendant’s motion to

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dismiss the Kuzian Action and granting in part and denying in part Defendant’s motion to dismiss

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the Lederer Action.

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9. The Parties agree that the Kuzian and Lederer Actions were filed before the Bovero

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Action, and that the various actions are expected to involve overlapping or substantially similar

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factual and legal issues.

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10. The parties further agree that the Bovero Action might have been brought in the District

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of New Jersey and that transferring this action to that court would promote the convenience of the

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parties, the convenience of the witnesses, and the interests of justice.

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11. Defendant’s primary place of business, where many of its witnesses and documents

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would be located, is in Charlotte, North Carolina, which is closer to the District of New Jersey

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than to this Court.

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12. According to official Federal Court Management statistics for September 2012, found at

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http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics/district-courts-september-

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2012.aspx, the average judge in the District of New Jersey had an active caseload of 466 pending

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cases, compared to 1,427 pending cases per judge in this District.

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13. Plaintiff herein intends to file a Second Amended Complaint whether or not this action is
transferred.

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14. Plaintiff agrees that Defendant need not respond to the First Amended Complaint until

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after Plaintiff files his Second Amended Complaint;

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STIPULATION AND [PROPOSED] ORDER
TRANSFERRING ACTION TO D.N.J.
Case No. 2:13-cv-00087-WBS-AC

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ACCORDINGLY, THE PARTIES HEREBY AGREE AND STIPULATE THAT:
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Pursuant to the first-to-file rule and 28 U.S.C. § 1404(a), the Parties jointly request

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transfer of this action to the District of New Jersey for coordinated or consolidated

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proceedings with the Kuzian and Lederer Actions pending there; and

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2.

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Defendant need not respond to Plaintiff’s First Amended Complaint until after
Plaintiff files his Second Amended Complaint

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IT IS SO STIPULATED.

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Dated: March 29, 2013

FARELLA BRAUN + MARTEL LLP
By: /s/ C. Brandon Wisoff
C. Brandon Wisoff

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Attorneys for Defendant
ELECTROLUX HOME PRODUCTS INC.

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Dated: March 29, 2013

EPPSTEINER & FIORICA ATTORNEYS, LLP
By: /s/ Stuart M. Eppsteiner
Stuart M. Eppsteiner
(as authorized on March 29, 2013)

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Attorneys for Plaintiff ROBERT BOVERO, on
behalf of himself and those similarly situated

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STIPULATION AND [PROPOSED] ORDER
TRANSFERRING ACTION TO D.N.J.
Case No. 2:13-cv-00087-WBS-AC

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ORDER

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Based on the foregoing stipulation and for good cause shown,
IT IS HEREBY ORDERED that:

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1.

Defendant need not respond to the First Amended Complaint in light of Plaintiff’s

intention to file a Second Amended Complaint;
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The court finds that under the first-to-file rule and 28 U.S.C. 1404(a), it would be

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in the interests of the parties, witnesses, and justice to transfer the action to the United States

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District Court for the District of New Jersey so that the parties may seek

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coordination/consolidation with the related cases Mariusz Kuzian v. Electrolux Home Products,

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Inc., Case No. 1:12-cv-03341-NLH-AMD, and Irma Lederer v. Electrolux Home Products, Inc.,

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Case No.: 1:12-cv-03930 (NLH-AMD); and

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3.

This action is hereby transferred to the United States District Court for the District

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of New Jersey.
IT IS SO ORDERED.
Dated: March 29, 2013

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_________________________________________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER
TRANSFERRING ACTION TO D.N.J.
Case No. 2:13-cv-00087-WBS-AC

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