FISHMAN v. GENERAL ELECTRIC COMPANY
OPINION. Signed by Judge William J. Martini on 4/23/14. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
STANLEY FISHMAN, SUZANNE
BOWSWER, and VICKI PLUNKETT,
individually and on behalf of all others similarly
Civ. No. 2:12-cv-00585 (WJM)
GENERAL ELECTRIC COMPANY,
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiffs Stanley Fishman, Suzanne Bowser,1 and Vicki Plunkett filed this
putative class action against Defendant General Electric Company (“GE”). This matter
comes before the Court on (1) Defendant’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), and (2) Plaintiffs’ motion to strike certain declarations from
affidavits submitted with Defendant’s motion to dismiss. There was no oral argument.
Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendant’s motion to dismiss is
GRANTED, and Plaintiffs’ motion to strike is DENIED.
GE manufactures, produces, distributes, and sells washing machines throughout
the United States. Second Am. Compl. ¶ 40. Sales occur both directly to the consumer
and through GE’s network of authorized dealers, which includes leading retailers and
online merchants. Id. ¶ 41. The Second Amended Complaint alleges that GE’s “frontloading washer machines” have design defects that cause them to: (1) accumulate mold,
mildew, and “biofilm” (which Plaintiff describes as “a filmy substance that develops
within the [w]ashing [m]achines”); (2) produce a moldy or mildew odor that permeates
the washing machines and the clothes and other items washing in the machines; and (3)
fail to “self-clean” by removing the moisture, residue, and bacteria that lead to the
formation of mold, mildew, and foul odors (collectively, the “Mold Problems”). Id. ¶ 2.
Plaintiff Bowser’s name is improperly listed in the caption as “Suzanne Bowswer.”
The Second Amended Complaint alleges that defects in the drum, the door, the door seal,
and the amount of water used by the washing machines play a role in the accumulation of
mold and mildew. Id. ¶ 57.
Plaintiffs allege although GE was aware that the washing machines were
inherently defective, it failed to warn its customers about the design defects or the Mold
Problems. Second Am. Compl. ¶ 59. Plaintiffs also allege that consumers received an
express one-year factory warranty from GE stating that GE would replace any parts that
fail due to a defect in materials or workmanship (the “Express Warranty”), and that GE
refused to honor that Express Warranty. Id. ¶¶ 15, 20. Additionally, the Second
Amended Complaint alleges that GE made numerous misrepresentations regarding the
front-loading washing machines. Id. ¶ 56. For instance, the Amended Complaint alleges
that GE improperly publicized the machines as certified ENERGY STAR products.2 Id.
¶ 25. Plaintiffs also allege that GE made “affirmations of fact and promises including
those found in its advertisements, promotional and marketing materials, point-of-sale
displays, product specifications, and within the washing machine manuals.” Id. ¶ 120.
Plaintiffs maintain that all of these representations were false because the washing
machines were not of a merchantable quality, were not fit for their ordinary purpose, and
were not energy efficient. See id. ¶ 37.
The named Plaintiffs filed this action on behalf of themselves, a putative
nationwide class, and a putative sub-class comprised of “[a]ll persons in Missouri, New
Jersey, and Pennsylvania who own a Washing Machine for personal, family, or
household purposes.” Second Am. Compl. ¶ 76. The Second Amended Complaint
alleges that the putative class members were damaged because they paid far too much for
defective washing machines. Id. ¶¶ 8. The Second Amended Complaint makes the
following specific allegations with respect to the named Plaintiffs.
A. Plaintiff Fishman
Fishman purchased a GE washing machine (model number WCVH6260FWW) for
household purposes in November 2006. Second Am. Compl. ¶ 14. Mr. Fishman’s
washing machine came with an Owner’s Manual containing the Express Warranty. Id. ¶
15. He paid approximately $1,000 for the washing machine and at all times used the
washing machine as instructed by GE’s manual or as otherwise directed by GE. Id. ¶ 14.
Approximately six months after purchasing his washing machine, Fishman noticed a foul,
mold, or mildew odor emanating from the machine. Id. Fishman contacted GE so that
GE could correct the problem. Id. ¶ 16. GE told Fishman to run an empty load cycle
with bleach to clean the washing machine, and recommended that Fishman leave his
washing machine door open between washes to reduce the incidence of the Mold
Certified ENERGY STAR products are more energy efficient than regular products. Id. ¶ 47.
In order to use the ENERGY STAR mark, manufacturers must comply with current ENGERY
STAR guidelines. Id. ¶ 45.
Problem. Id. ¶¶ 17-18. This recommendation did not solve the problem. Id. In addition,
the GE owner’s manual specifically warns that leaving the washer door open creates a
risk of injury to children and pets who might be enticed to hang on the door or crawl
inside the washer. Id. ¶ 18. GE never resolved the Mold Problems in Fishman’s machine,
and instead provided Fishman with a check for $75.00. Id. ¶ 20.
B. Plaintiff Bowser
Bowser purchased a GE washing machine (model number WSXH208FWW) from
Builders Surplus for household purposes on or about March 3, 2007. Second Am.
Compl. ¶ 23. Bowser’s washing machine came with an Owner’s Manual containing the
Express Warranty. Id. ¶ 24. She paid approximately $579.99 for the washing machine
and at all times used the washing machine as instructed by GE’s manual or as otherwise
directed by GE. Id. ¶ 23. In 2010, Bowser noticed a foul, mold, or mildew odor
emanating from the machine. Id. Bowser tried to clean her washing machine using
bleach, vinegar, and Tide Washing Machine Cleaner. Id. ¶ 26. She also manually
cleaned the visible Mold Problem from the gasket and the hose at the bottom of the
machine. Id. She also arranged for a certified technician from Sears to attempt to
remedy the Mold Problems, but these measures were unsuccessful. Id. Bowser contacted
GE. Id. ¶ 27. GE recommended that Bowser keep her washing machine door open and
provided her with a box of Tide Washing Machine Cleaner. Id. None of these measures
solved the Mold Problems. Id. ¶ 29.
C. Plaintiff Plunkett
Plunkett purchased a GE washing machine (model number WCVH6800JMV)
from Foster’s Appliance for household purposes on or about January 23, 2010. Second
Am. Compl. ¶ 31. Plunkett’s washing machine came with an Owner’s Manual
containing the Express Warranty. Id. ¶ 32. She paid approximately $2023.74 for the
washing machine and matching dryer, and at all times used the washing machine as
instructed by GE’s manual or as otherwise directed by GE. Id. ¶ 31. Less than six
months later, Plunkett noticed a foul, mold, or mildew odor emanating from the washing
machine. Id. Plunkett contacted Foster’s Appliance about the Mold Problem, but never
received a response. Id. ¶ 33. She also contacted GE. Id. However, the Second
Amended Complaint is not clear as to whether she ever spoke with anyone at GE about
the Mold Problem. Plunkett cleaned the unit on a regular basis and ran empty hot water
cycles, but these measures failed to correct the Mold Problem. Id. ¶¶ 34-35.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under
Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in
the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.
Although a complaint need not contain detailed factual allegations, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations
must be sufficient to raise a plaintiff’s right to relief above a speculative level, such that it
is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc.,
542 F.3d 59, 64 (3d Cir. 2008). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’ . . . it asks for more than a sheer possibility.” Id.
Pursuant to Federal Rule of Civil Procedure 9(b), a plaintiff alleging fraud must
state the circumstances of the alleged fraud with sufficient particularity to place the
defendant on notice of the “precise misconduct with which [it is] charged.” Frederico v.
Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (quoting Lum v. Bank of America, 361
F.3d 217, 223-24 (3d Cir. 2004)) (internal quotations omitted). To satisfy this standard,
the plaintiff must plead or allege the date, time and place of the alleged fraud or
otherwise inject precision or some measure of substantiation into a fraud allegation. Id.
Plaintiffs’ Second Amended Complaint asserts six causes of action:
(1) Count 1: Violation of the New Jersey Consumer Fraud Act (“New Jersey CFA”);
(2) Count 2: Violation of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law (“Pennsylvania UTPCPL”);
(3) Count 3: Violation of the Missouri Merchandising Practices Act (“Missouri MPA”);
(4) Count 4: Breach of Express Warranty;
(5) Count 5: Breach of the Implied Warranty of Merchantability; and
(6) Count 6: Unjust Enrichment.
Plaintiffs assert that New Jersey law applies to the putative nationwide class. Defendant
does not dispute that New Jersey law applies for purposes of this motion.3 The Court
previously dismissed Count 6 with prejudice, and will do so again here. The Court will
discuss Counts 1-5, as well as Plaintiffs’ motion to strike, below.
Defendant reserved its right to analyze each Plaintiff’s claims under New Jersey’s choice-oflaw principles at a later stage in the litigation. See Def.’s Br. at 12 n.7.
A. The Statutory Consumer Fraud Claims (Counts 1-3)
In Count 1, Plaintiffs assert a claim for Violation of the New Jersey CFA, N.J.
Stat. Ann. 56:8-1, et seq. In Count 2, Plaintiffs assert a claim for violation of the
Pennsylvania UTPCPL, 73 Pa. Stat. Ann. § 201-1, et seq. In Count 3, Plaintiffs assert a
claim for violation of the Missouri MPA, Mo. Rev. Stat. § 407.010, et seq. Defendant
moves to dismiss all three Counts, arguing that Plaintiffs failed to plead fraud with the
particularity required by Rule 9(b). The Court agrees.
The Second Amended Complaint falls short of meeting Rule 9(b)’s heightened
pleading standard. Plaintiffs failed to provide essential dates, such as the dates on which
Plaintiffs contacted GE. Accordingly, the Second Amended Complaint does not
sufficiently allege facts showing that GE was aware of the alleged defects prior to the
sales at issue in this litigation. See Weske v. Samsung Elecs. Am., Inc., 2012 U.S. Dist.
LEXIS 32289, at *17-18 (D.N.J. Mar. 12, 2012). Plaintiffs have also failed to identify
when certain allegedly false representations were made. For instance, while Plaintiffs
allege that the washing machines do not “self-clean” (Second Am. Compl. ¶ 3), they cite
to no representation from GE claiming that the washing machines self-clean. Thus, the
allegations in the Amended Complaint are not sufficient “to place the defendant [or the
Court] on notice of the precise misconduct . . . charged.” Frederico, 507 F.3d at 200.
Furthermore, the Second Amended Complaint fails to sufficiently allege that
Plaintiffs suffered an ascertainable loss. See N.J. Stat. Ann. § 56:8-19; 73 Pa. Stat. Ann.
§ 201-9.2; Mo. Rev. Stat. § 407.025. Plaintiffs have not set forth facts showing “either
out-of-pocket loss or a demonstration of loss in value.” Green v. Green Mtn. Coffee
Roasters, Inc., 279 F.R.D. 275, 281 (D.N.J. 2011) (quoting Thiedemann v. MercedesBenz USA, LLC, 872 A.2d 783, 792 (N.J. 2005)). To satisfy Rule 9(b)’s heightened
standard, Plaintiffs must make a more detailed attempt to “quantify the difference in
value between the promised product and the actual product received.” Smajlaj v.
Campbell Soup Co., 782 F. Supp. 2d 84, 99 (D.N.J. 2011).
Accordingly, the motion to dismiss Counts 1, 2 and 3 is GRANTED, and Counts
1, 2 and 3 are DISMISSED WITHOUT PREJUDICE.
B. The Warranty Claims (Counts 4 and 5)
In Count 4, Plaintiffs assert a claim for breach of express warranty. In Count 5,
Plaintiffs assert a claim for breach of the implied warranty of merchantability. Defendant
moves to dismiss, arguing that Plaintiffs failed to adequately plead warranty claims. The
The Amended Complaint does not provide enough information to support an
express warranty claim. Under New Jersey law, in order to state a claim for breach of
express warranty, Plaintiffs must allege: (1) that Defendant made an affirmation, promise,
or description about the product; (2) that this affirmation, promise, or description became
part of the basis of the bargain for the product; and (3) that the product ultimately did not
conform to the affirmation, promise, or description. N.J. Stat. Ann. § 12A:2–313;
Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691, 706 (D.N.J. 2011). Regarding
the Express Warranty, Plaintiffs have failed to allege that they contacted GE during the
one-year warranty period.4 While the Second Amended Complaint clearly indicates that
Plaintiffs contacted GE, it is not clear when Plaintiffs made this contact. See Spera v.
Samsung Elecs. Am., Inc., No. 12-05412, 2014 WL 1334256, at *8 (D.N.J. Apr. 2, 2014)
(dismissing an express warranty claim because “the Court cannot discern from the
Complaints whether Samsung was contacted during the warranty period”). Plaintiffs also
allege that Defendant made “affirmations of fact and promises including those found in
its advertisements, promotional and marketing materials, point-of-sale displays, product
specifications, and within the washing machine manuals.” Second Am. Compl. ¶ 120.
Specifically, Plaintiffs allege that Defendant warranted that the washing machines would
“self-clean.” Second Am. Compl. ¶ 132. However, Plaintiffs do not provide language
from any advertisements, promotional or marketing materials, point-of-sale displays, or
product specifications in which GE stated that the washing machines would self-clean.
And with respect to Plaintiffs’ allegations that GE touted its washing machines as
certified ENERGY STAR products, the Second Amended Complaint fails to allege that
the washing machines did not qualify for the ENERGY STAR label.
The Second Amended Complaint also does not state an implied warranty claim,
because it fails to allege that Plaintiffs contacted GE within a one-year period from
purchase. The Owner’s Manuals containing the Express Warranty referenced in the
Second Amended Complaint each include the following disclaimer:
EXCLUSION OF IMPLIED WARRANTIES – Your sole and exclusive remedy
is product repair as provided in this Limited Warranty. Any implied warranties,
including the implied warranties of merchantability or fitness for a particular
purpose, are limited to one year or the shortest period allowed by law.
Declaration of Angela Corbett (“Corbett Declaration”), ECF No. 39-3, Exs. A, B, C.5
New Jersey courts generally recognize disclaimers, and will enforce them if they are clear
Defendant argues that the breach of express warranty claim fails because Express Warranty only covers “defects in
materials and workmanship" and therefore does not cover what Plaintiffs characterize in the Second Amended
Complaint as "design defects." The Court agrees with Plaintiffs that “at the pleading stage, where the distinction
between defect in design and defect in materials or workmanship is a matter of semantics...the defendant's
characterization of the nature of the claim pre-discovery should not control whether the complaint survives.” Alin v.
Am. Honda Motor Co., No. 08–4825, 2010 WL 1372308, at *6 (D.N.J. Mar. 31, 2010). This argument thus does not
provide adequate grounds for dismissal.
Because Plaintiffs have relied on portions of the Owner’s Manuals in the Second Amended Complaint, and
because the warranty is integral to their claims, the Court may consider the Owner’s Manuals on a motion to
dismiss. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
and conspicuous. See N.J. Stat. Ann. 12A:2–316; Gladden v. Cadillac Motor Car Div.,
Gen. Motors Corp., 416 A.2d 394, 399 (N.J. 1980).
Here, each disclaimer is in bold, italicized, and set off from the surrounding text.
Accordingly, the Court finds that the disclaimers, which limit any implied warranties to a
one-year period, are clear and conspicuous and, therefore, enforceable. See Berman v.
ADT LLC, No. 12-7705, 2013 WL 6916891 (D.N.J. Dec. 13, 2013) (finding a disclaimer
that specifically mentions “merchantability” and is easily discernible from its surrounding
text to be enforceable); Atl. Health Sys., Inc. v. Cummins Inc., No. 08-3194, 2010 WL
5252018, at *6 (D.N.J. Dec. 17, 2010) (finding a disclaimer located on the last page of
warranty information to be conspicuous and thus enforceable). Accordingly, because
Plaintiffs have not alleged that they contacted GE within one year from purchasing their
respective washing machines, Plaintiffs have failed to state a claim for breach of the
implied warranty of merchantability.
Accordingly, the motion to dismiss Counts 4 and 5 is GRANTED, and Counts 4
and 5 are DISMISSED WITHOUT PREJUDICE.
C. Motion to Strike
Plaintiffs also move to strike portions of the Corbett Declaration and the
Declaration of Diane L. Santillo (the “Santillo Declaration”), which were submitted in
support of Defendant’s motion to dismiss. Specifically, Plaintiffs move to strike
paragraphs 5, 8, and 11 of the Corbett Declaration and paragraphs 3 and 4 of the Santillo
Declaration, arguing that those paragraphs contain facts that are not appropriately
considered on a motion to dismiss under Rule 12(b)(6). Because the Court need not, and
did not, consider any of the contested paragraphs from the Corbett Declaration or the
Santillo Declaration in deciding the motion to dismiss, Plaintiff’s motion to strike is
DENIED as moot. See Children's Hosp. of Philadelphia v. Independence Blue Cross, 89
F. Supp. 2d 630, 632 n. 2 (E.D. Pa. 2000).
For the reasons stated above, Defendant’s motion to dismiss is GRANTED.
Counts 1, 2, 3, 4, and 5 are DISMISSED WITHOUT PREJUDICE. Count 6 is again
DISMISSED WITH PREJUDICE. The Court shall grant Plaintiffs thirty days to file a
Third Amended Complaint consistent with this Opinion. Plaintiffs’ motion to strike is
DENIED. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: April 23, 2014
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