GORCZYNSKI v. ELECTROLUX HOME PRODUCTS, INC. et al

Filing 67

OPINION. Signed by Judge Renee Marie Bumb on 4/29/2019. (tf, )

[Dkt. Nos. 35, 47]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
THOMAS P. GORCZYNSKI,
individually and on behalf of
others similarly situated,
Plaintiff,

Civil No. 18-10661(RMB/KMW)
v.

OPINION

ELECTROLUX HOME PRODUCTS, INC.,
SUPER K CORPORATION d/b/a ABC
DISCOUNT APPLIANCES, MIDEA
AMERICA CORP., MIDEA MICROWAVE
AND ELECTRICAL APPLIANCES
MANUFACTURING CO., LTD., AND
ABC CORPS. 1-10,
Defendants.
APPEARANCES:
SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C.
By: Simon B. Paris, Esq.; Patrick Howard, Esq.;
Charles J. Kochner, Esq.
1650 Market Street, 52nd Floor
Philadelphia, Pennsylvania 19103
Counsel for Plaintiff Thomas P. Gorczynski
K&L GATES LLP
By: Patrick J. Perrone, Esq.; Loly G. Tor, Esq.;
Michael S. Nelson, Esq.
One Newark Center, 10th Floor
Newark, New Jersey 07102
Counsel for Defendant Electrolux Home Products, Inc.
WARD GREENBERG HELLER & REIDY, LLP
By: Gerhard P. Dietrich, Esq.; Gabrielle A. Giombetti, Esq.
1835 Market Street, Suite 650
Philadelphia, Pennsylvania 19103
Counsel for Defendant Midea America Corp.

RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Thomas P. Gorczynski (“Plaintiff”) brings this
putative class action, alleging that Defendants Electrolux Home
Products, Inc. (“Electrolux”) and Midea America Corp. (“Midea
USA”) knowingly manufactured, marketed, and sold microwaves with
defective handles in violation of the New Jersey Consumer Fraud
Act (“CFA”), N.J.S.A. § 56:8-2.

Plaintiff also claims that

Defendant Electrolux violated the Magnuson-Moss Consumer Products
Warranties Act (“MMWA”), 15 U.S.C. § 2301, et seq., and breached
the implied warranty of merchantability.
Both Electrolux [Dkt. No. 35] and Midea USA [Dkt. No. 47]
now move to dismiss Plaintiff’s Amended Complaint [Dkt. No. 26]
on various bases.

Defendants’ primary arguments for dismissal

are that Plaintiff’s claims are subsumed by the New Jersey
Products Liability Act (“PLA”), N.J.S.A. 2A:58C-1, et seq., and
that Plaintiff has failed to sufficiently plead his CFA claim.
Electrolux also sets forth arguments for dismissal of the breach
of implied warranty and MMWA claims.

For the reasons set forth

herein, both Motions to Dismiss will be DENIED, without
prejudice.

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I.

FACTUAL AND PROCEDURAL BACKGROUND
In this purported class action, Plaintiff alleges that

Defendants designed, manufactured, and marketed over-the-range
stainless-steel microwaves (the “Microwaves”) with defective
stainless-steel handles that become excessively hot if an
individual is cooking on a stovetop below (the “Handle Defect”).
Plaintiff alleges that in May 2015, he purchased a Frigidaire
Gallery Over-the-Range Microwave, which is a model that suffers
from the Handle Defect.

See Am. Compl., at ¶ 12.

Plaintiff contends that the Microwaves in question,
including his own, were manufactured by Midea Microwave China
(“Midea China”) and distributed by Electrolux in the United
States.

As alleged in the Amended Complaint, Midea USA is “the

North American headquarters of Midea, the world’s leading
manufacturer of air conditioners and home appliances.” See id. at
¶ 26.

Meanwhile, Electrolux “distributes products under a

variety of brand names, including Electrolux, Electrolux ICON,
Frigidaire Professional, Frigidaire Gallery, Frigidaire, Eureka,
Kelvinator, Sanitaire, Tappan, and White-Westinghouse.” See id.
at ¶ 17.
Plaintiff alleges that the Handle Defect causes the
Microwaves’ handles to reach temperatures as high as 200̊
Fahrenheit when a cooktop below is operating at full power. See
Am. Compl., at ¶ 6.

Because the high temperature of the handle
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can make it unsafe for an individual to open the Microwave door,
Plaintiff claims that the Handle Defect renders the Microwave
unreasonably dangerous and unfit for its intended purpose. See
id. at ¶ 8.
According to Plaintiff, Midea China became aware of the
Handle Defect during testing in 2010, prior to distributing the
Microwaves in the United States. See Am. Compl., at ¶ 6.
Plaintiff further alleges that these test results were accessible
to Electrolux as early as 2010, and customers complained about
the Handle Defect as early as 2013, yet Electrolux continued to
sell the Microwaves throughout the United States, with over
70,000 sales in New Jersey. Id. Plaintiff contends that, despite
full knowledge of the Handle Defect, Defendants have neither
rectified the issue (through repair or replacement of the handle)
nor warned consumers about the existence of the Handle Defect.
Plaintiff filed the initial complaint [Dkt. No. 1-1],
individually and on behalf of all others similarly situated, in
the New Jersey Superior Court, Camden County, in May 2018.
Electrolux removed the case to this Court on June 15, 2018.
Following a pre-motion letter filed by Electrolux, expressing an
intent to file a motion to dismiss, Plaintiff filed the Amended
Complaint on August 6, 2018.

Now, Defendants move to dismiss

Plaintiff’s Amended Complaint under Fed R. Civ. P. 12(b)(6).

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II.

LEGAL STANDARD
To withstand a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 662. “[A]n unadorned, the defendantunlawfully-harmed-me accusation” does not suffice to survive a
motion to dismiss. Id. at 678. “[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.” Twombly, 550 U.S.
at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
In reviewing a plaintiff’s allegations, the district court
“must accept as true all well-pled factual allegations as well as
all reasonable inferences that can be drawn from them, and
construe those allegations in the light most favorable to the
plaintiff.” Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir.
2012).

When undertaking this review, courts are limited to the

allegations found in the complaint, exhibits attached to the
complaint, matters of public record, and undisputedly authentic
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documents that form the basis of a claim. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997);
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993).
III. ANALYSIS
Defendants each filed motions to dismiss the Amended
Complaint, both arguing that (1) Plaintiff’s CFA and breach of
implied warranty claims are subsumed by the PLA; (2) Plaintiff
failed to plead his CFA claim with particularity, as required by
Fed. R. Civ. P. 9(b); and (3) Plaintiff lacks standing under
Article III.1

Electrolux also argues that Plaintiff’s warranty

claims contain deficiencies and are time barred.

This Court

finds that Plaintiff’s claims are not subsumed by the PLA and
that Electrolux’s other arguments are for dismissal are without
merit.
A. New Jersey Products Liability Act
First, Defendants argue that Plaintiff’s claims are subsumed
by the PLA, because the PLA is the exclusive remedy for claims
arising out of harm caused by a defective product. See
Electrolux’s MTD, at 10; Midea USA’s MTD, at 9.

In opposition,

Defendants argue that Plaintiff lacks standing to pursue classwide claims for products that he did not personally purchase.
However, the Court will not address these arguments as they are
more appropriately set forth in response to a motion for class
certification.
1

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Plaintiff argues that the PLA does not apply where a plaintiff
alleges damage to the product itself. See Plaintiff’s Response in
Opposition to Electrolux’s MTD (“Pl.’s Resp. to Electrolux)[Dkt.
No. 44].

The Court agrees with Plaintiff.

The PLA was enacted by the New Jersey Legislature in 1987
“based on an ‘urgent need for remedial legislation to establish
clear rules with respect to certain matters relating to actions
for damages for harm caused by products.’” Kuzian v. Electrolux
Home Prod., Inc., 937 F. Supp. 2d 599, 607 (D.N.J. 2013)(citing
Sinclair v. Merck & Co., Inc., 195 N.J. 51 (2008)).

In 2007, the

New Jersey Supreme Court set forth substantive guidance regarding
the scope of the PLA and explicitly recognized that “‘[w]ith the
passage of the Product Liability Act ... there came to be one
unified, statutorily defined theory of recovery for harm caused
by a product.’” In re Lead Paint Litigation, 191 N.J.
405(2007)(internal citation omitted).

The New Jersey Supreme

Court also noted that “[t]he language chosen by the Legislature
in enacting the PLA [was] both expansive and inclusive,
encompassing virtually all possible causes of action relating to
harms caused by consumer and other products.” Id. (citing
N.J.S.A. 2A:58C–1(b)(3)).
The nature of the alleged “harm,” caused by a defective
product, dictates whether the NJPLA governs that specific type of
claim.

See Kuzian, 937 F. Supp. 2d at 607–08.
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Under the PLA, a

product liability action is defined as “any claim or action
brought by a claimant for harm caused by a product, irrespective
of the theory underlying the claim, except actions for harm
caused by breach of an express warranty.” N.J.S.A. 2A:58C–
1(b)(3).

The PLA further defines “harm caused by a product” to

include the following: “(a) physical damage to property, other
than to the product itself; (b) personal physical illness, injury
or death; (c) pain and suffering, mental anguish or emotional
harm; and (d) any loss of consortium or services or other loss
deriving from any type of harm described in subparagraphs (a)
through (c) of this paragraph.” N.J.S.A. 2A:58C–1(b)(2)(emphasis
added).

Thus, a claim for “physical damage ... to the product

itself” is not a “product liability action” because the PLA
specifically excludes such damage from its definition of “harm.”
Estate of Edward W. Knoster v. Ford Motor Co., 200 F. App'x 106,
116 (3d Cir. 2006)(citing Alloway v. General Marine Ins. L.P.,
149 N.J. 620(1997)); see also Beyerle v. Wright Med. Tech. Inc.,
2014 WL 12623029, at *3 (D.N.J. Dec. 23, 2014)
In this case, Plaintiff alleges only that the Handle Defect
damages the value and usefulness of the Microwave itself.
Specifically, Plaintiff alleges that Handle Defect makes the
handle unreasonably hot and prevents consumers from opening the
Microwave door, rendering the Microwave unusable when an
individual is cooking on the surface below.
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As result, Plaintiff

seeks economic damages associated with the cost of repair or
replacement of the Microwave.

Plaintiff neither alleges nor

seeks any damages for physical harm caused by the handle defect
(such as burns to his hand).

Plaintiff also does not seek any

damages for other harms under the purview of the PLA, such as
emotional distress.
As noted by the Third Circuit, the “PLA cannot subsume that
which it explicitly excludes from its coverage.” Knoster, 200 F.
App’x at 116 (emphasis in original).

Thus, where a CFA claim

relates exclusively to harm to the product itself, it cannot be
subsumed by the PLA.

See id.; see also Beyerle v. Wright Med.

Tech. Inc., 2014 WL 12623029, at *3 (D.N.J. Dec. 23, 2014)(“At
this stage in the litigation, it appears that Plaintiff's CFA
claim seeks economic damages resulting from harm to the product
itself, and, as such, is not subsumed by the PLA”).
Furthermore, Courts in the District of New Jersey have held
that claims alleging that a plaintiff “did not get what [they]
paid for,” such as breach of implied warranty and unjust
enrichment, are also not subsumed by the PLA. See Volin v. Gen.
Elec. Co., 189 F. Supp. 3d 411, 418 (D.N.J. 2016), as amended
(May 31, 2016).

As such, Plaintiff’s claims, which pertain

exclusively to “harm” to the Microwave itself, cannot be subsumed
by the PLA.

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B. New Jersey Consumer Fraud Act
Plaintiff’s Amended Complaint asserts a cause of action
under the New Jersey Consumer Fraud Act, which “provides a
private cause of action to consumers who are victimized by
fraudulent practices in the marketplace.” Gotthelf v. Toyota
Motor Sales, U.S.A., Inc., 525 F. App'x 94, 103 (3d Cir.
2013)(citing Gonzalez v. Wilshire Credit Corp., 207 N.J. 557
(2011)).

To constitute consumer fraud, “the business practice in

question must be ‘misleading’ and stand outside the norm of
reasonable business practice in that it will victimize the
average consumer.” Turf Lawnmower Repair, Inc. v. Bergen Record
Corp., 139 N.J. 392 (1995).
To state a claim under the CFA, a plaintiff must allege
facts sufficient to establish: (1) unlawful conduct; (2) an
ascertainable loss; and (3) a causal relationship between the
unlawful conduct and the ascertainable loss. See International
Union of Operating Engineers Local No. 68 Welfare Fund v. Merck &
Co., 192 N.J. 372, 389–391(2007)(“IUOEL”).

Under the CFA, there

are three categories of “unlawful conduct”: (1) affirmative acts,
(2) knowing omissions, and (3) violations of regulations. Id.
“Proof of any one of those acts or omissions is sufficient to
establish unlawful conduct under the CFA.” Kuzian, 937 F. Supp.
2d at 614 (emphasis added). As explained by the New Jersey
Supreme Court, the “CFA does not require proof that a consumer
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has actually relied on a prohibited act in order to recover.

In

place of the traditional reliance element of fraud and
misrepresentation, we have required that plaintiffs demonstrate
that they have sustained an ascertainable loss.” IUOEL, 192 N.J.
at 391.

Additionally, the CFA is “remedial legislation which

should be construed liberally.” Id. at 376 n.1.
In this instance, Plaintiff argues that he has adequately
alleged the three elements of a CFA claim.

First, Plaintiff

argues that Defendants engaged in unlawful conduct by knowingly
omitting information about the Handle Defect from marketing
materials and by affirmatively misleading customers by marketing
the Microwaves as fit for use “Over-the-Range” despite the Handle
Defect.

Second, Plaintiff argues that he alleged an

“ascertainable loss” in that the product is worth less than what
he paid for it, because it is unfit for its intended purpose.
Third, Plaintiff alleges that Defendant’s affirmative acts and
omissions caused him to overpay for a defective microwave.
Defendants argue that Plaintiff’s CFA claim lacks the level
of particularity necessary when a claim is premised on fraud or
misrepresentation, as required under Fed. R. Civ. P. 9(b).

To

satisfy the requirements of Rule 9(b), “in alleging fraud or
mistake, a party must state with particularity the circumstances
constituting fraud or mistake.”

The level of particularity

required is sufficient details to put Defendants on notice of the
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“precise misconduct with which they are charged.” See Smajlaj, et
al. v. Campbell Soup Co., 782 F.Supp.2d 84, 104 (D.N.J.2011).
When alleging an affirmative misrepresentation under the CFA, the
complaint “must state what the misrepresentation was, what was
purchased, when the conduct complained of occurred, by whom the
misrepresentation was made, and how the conduct led plaintiff to
sustain an ascertainable loss.” See Francis E. Parker Mem'l Home,
Inc. v. Georgia-Pac. LLC, 945 F. Supp. 2d 543, 558 (D.N.J. 2013).
In this case, Plaintiff argues that his claim is premised
upon two types of “unlawful conduct” under the CFA: both
“affirmative acts” and “knowing omissions.”

Affirmative acts of

fraud require no showing of intent on behalf of the defendant,
meaning that “a defendant who makes an affirmative
misrepresentation is liable even in the absence of knowledge of
the falsity of the misrepresentation, negligence or the intent to
deceive.” Vukovich v. Haifa, Inc., 2007 WL 655597, at *9 (D.N.J.
Feb. 27, 2007).

“In contrast, when the alleged consumer fraud

consists of an omission, a plaintiff must show that the defendant
acted with knowledge.” Id.
Defendants argue that Plaintiff’s CFA claim is deficient
because Plaintiff fails to allege that Defendants “knowingly
concealed the alleged defect.”

Indeed, Plaintiff’s complaint is

inconsistent in the degree of knowledge ascribed to Defendants.
At one point, Plaintiff alleges that Midea China knew of the
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defect through test results in 2010, but that these results were
only “known to or readily accessible” to Electrolux and Midea
USA. See Am. Compl., at ¶ 64.

In other places, Plaintiff alleges

that all Defendants “held actual knowledge of the handle
temperatures in 2010.” Id. at ¶ 72.

If Plaintiff’s CFA claim was

premised solely upon a knowing omission, these inconsistent
allegations about Defendants’ degree of knowledge would possibly
warrant dismissal.

However, Plaintiff has sufficiently alleged

that Defendants’ representations, that the Microwaves were
suitable for over-the-range use, were false.

Thus, Plaintiff has

adequately alleged unlawful conduct in the form of an affirmative
misrepresentation, even in the absence of knowledge or intent.
Defendants also argue that Plaintiff has failed to allege an
ascertainable loss under the CFA.

However, an ascertainable loss

under the CFA “occurs when a consumer receives less than what was
promised.” See Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304,
336 (D.N.J. 2014)(internal citations omitted).

In other words,

when a plaintiff “received something less than, and different
from, what they reasonably expected in view of defendant’s
presentations.

That is all that is required to establish

ascertainable loss.” See id.

Plaintiff clearly alleges that he

purchased a product that was marketed as an “Over-the-Range”
microwave, but cannot use it for its intended purposes.
Plaintiff alleges that he would have either paid less or not
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purchased the Microwave if he had known of the Handle Defect.
Although Defendants argue that Plaintiff never alleges that the
Handle Defect manifested itself in his Microwave, the Amended
Complaint clearly contains such an allegation. See Am. Compl., at
¶¶ 54-55 (“As a result of Plaintiff’s skin contact with the
handle of his Microwave, he discovered the exceedingly high
temperature of the handle”).

Therefore, Plaintiff’s allegations

sufficiently set forth ascertainable loss and causation.
C. Breach of Warranty of Merchantability
Finally, Electrolux argues that Plaintiff’s breach of the
implied warranty of merchantability and MMWA claims must be
dismissed because they are time-barred.

Specifically, Electrolux

argues that the “Use & Care Guide” for the Microwave included a
clear and conspicuous disclaimer that reduced the statute of
limitations for breach of implied warranty claims to one year (as
opposed to the statutory default of four years).
New Jersey law generally recognizes disclaimers and will
enforce them as long as they are clear and conspicuous. See
N.J.S.A. 12A:2–316; Realmuto v. Straub Motors, Inc., 65 N.J. 336,
341–42, 322 A.2d 440 (1974); Gladden v. Cadillac Motor Car Div.,
83 N.J. 320, 331, 416 A.2d 394 (1980).

The Third Circuit has

recognized that reductions to the statute of limitations for
breach of implied warranty claims may be permissible, in
accordance with N.J.S.A. 12A:2-725, as long as the disclaimer
14

satisfies the language requirements of § 12A:2-316. See New
Jersey Transit Corp. v. Harsco Corp., 497 F.3d 323, 328 (3d Cir.
2007).2

To be conspicuous, a disclaimer must be “so written that

a reasonable person against whom it is to operate ought to have
noticed it.” Gladden, 83 N.J. at 331.
The disclaimer at issue was displayed in all capital
letters, with a bolded header, on the last pages the Microwave’s
Use & Care Guide (attached to the Amended Complaint as “Exhibit
E”).

Plaintiff argues that the location of the disclaimer, at

the end of the Use & Care Guide and packaged inside the product’s
box, meant that it was not visible to consumers at the point of
sale.

Therefore, Plaintiff argues that the time limitation of

the implied warranty was not clear and conspicuous, as required
by N.J.S.A. § 12A:2-316.
As set forth on the last page of the Use & Care Guide,
titled “MAJOR APPLIANCE WARRANTY INFORMATION,” the policy states,
in relevant part:
DISCLAIMER OF IMPLIED WARRANTIES; LIMITATION OF REMEDIES
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS LIMITED
WARRANTY SHALL BE PRODUCT REPAIR OR REPLACEMENT AS PROVIDED
HEREIN. CLAIMS BASED ON IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE LIMITED TO ONE YEAR OR THE SHORTEST PERIOD ALLOWED
BY LAW, BUT NOT LESS THAN ONE YEAR. ELECTROLUX SHALL NOT BE
Third Circuit precedent directly contradicts Defendant
Electrolux’s argument that the language requirements of § 12A:2316 do not apply to reductions to the limitations period under §
12A:2-725.
2

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LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES SUCH AS
PROPERTY DAMAGE AND INCIDENTAL EXPENSES RESULTING FROM ANY
BREACH OF THIS WRITTEN LIMITED WARRANTY OR ANY IMPLIED
WARRANTY. SOME STATES AND PROVINCES DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR
LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, SO THESE
LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WRITTEN
WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE
OTHER RIGHTS THAT VARY FROM STATE TO STATE.
Frigidaire Use & Care Guide, p. 32 [Dkt. No. 26-5].
Deciding whether a warranty disclaimer is “clear and
conspicuous” is a question of law for the court. See Hillsborough
Rare Coins, LLC v. ADT LLC, 2017 WL 1731695, at *9 (D.N.J. May 2,
2017). Courts in the District of New Jersey have previously held
that warranty disclaimers are conspicuous where they contain all
capital letters and include the language “implied warranties of
merchantability,” even where such disclaimers are located on the
last page of a user manual. See Spera v. Samsung Elecs. Am.,
Inc., 2014 WL 1334256, at *8 (D.N.J. Apr. 2, 2014).

However,

“warranties which do not prominently and conspicuously
communicate important exclusions or limitations in clear and
readily understandable language are generally regarded as
improper or invalid since they serve to mislead or confuse the
average consumer.” Gladden v. Cadillac Motor Car Div., Gen.
Motors Corp., 83 N.J. 320, 335, (1980)(internal citations
omitted).
In this case, the disclaimer’s language, purporting to limit
the implied warranty period to one year, is not clear and
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conspicuous to the average consumer.

Notably the disclaimer

states that claims “are limited to one year or the shortest
period allowed by law, but not less than one year,” while
simultaneously acknowledging that “some states and provinces do
not allow the exclusion or limitation of incidental or
consequential damages, or limitations on the duration of implied
warranties, so these limitations or exclusions may not apply to
you. This written warranty gives you specific legal rights. You
may also have other rights that vary from state to state.”

As

the average consumer is not fully versed in the specific
statutory limitations periods provided on a state-by-state basis,
this language seems likely to mislead or confuse customers.
Furthermore, Plaintiff has plausibly alleged that the average
consumer would not have noticed the disclaimer. See
Durso v. Samsung Electonics Am., Inc., 2014 WL 4237590, at *9
(D.N.J. Aug. 26, 2014)(finding that a reasonable person may not
have noticed the warranty disclaimer for washing machine because
it was located at the end of the user manual and would not be
seen until after the washer was delivered and installed).
Therefore, this Court finds that it would not be “clear and
conspicuous” to the average consumer whether or not this
limitation applied to him.

Although the Court is skeptical that

discovery will produce evidence that Defendant’s disclaimer

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language was clear and conspicuous, this Court will not preclude
Electrolux from raising this issue again at a later point.
Accordingly, the Court will deny Electrolux’s motion to
dismiss Plaintiff’s claim for breach of implied warranty of
merchantability.

Additionally, because Plaintiff’s MMWA claim is

coextensive with the underlying state law warranty claim, this
claim will go forward to the extent that the breach of implied
warranty claim remains viable. See Volin, 189 F. Supp. 3d at 421
(citing Cooper v. Samsung Elecs. Am., Inc., 374 Fed.Appx. 250,
254 (3d Cir.2010)).
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss

will be DENIED without prejudice. An appropriate Order shall
issue on this date.
DATED: April 29, 2019

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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