DURSO v. SAMSUNG ELECTRONICS AMERICA, INC.

Filing 44

OPINION. Signed by Magistrate Judge Joseph A. Dickson on 7/24/13. (gmd, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT N. DURSO, SUZANNE FAST,
CATHIE COKE and DOUGLAS WALKER,,
Individually and on Behalf of All Other Persons
Similarly Situated,

Civil Action No. 2:12-cv-5352
(DMC)(JAD)

Plaintiffs,
V.

SAMSUNG ELECTRONICS AMERICA, INC.,
Defendant.
JEANNE SPERA AND BETHANY MIZELL on
behalf of themselves and all others similarly
situated,

Civil Action No. 2:12-cv-5412
(DMC)(JAD)

Plaintiffs,
V.

SAMSUNG ELECTRONICS AMERICA,
fiidiit
CHAD AND JESSICA CHOWNINGon behalf of
themselves and all others similarly situated,
-

Civil Action No. 2:12-cv-5440
(DMC)(MF)

Plaintiffs,
V.

OPINION
SAMSUNG ELECTRONICS AMERICA,

Defendant.
JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court upon two motions to consolidate, filed in separate
class actions, namely (i) cross-motion by plaintiffs Robert N. Durso, Suzanne Fast, Cathie Coke
and Douglas Walker, individually and on behalf of all other persons similarly situated (the
“Durso Plaintiffs”), to consolidate and appoint interim class counsel in Durso, et al. v. Samsung

Elecs. Am., Inc., Civ. A. No. 2:12-cv-5412 (DMC)(JAD) (the “Durso Class Action”) (ECF No.
31); and (ii) motion by plaintiffs Jeanne Spera and Bethany Mizell, on behalf of themselves and
all others similarly situated (the “Spera Plaintiffs”), to consolidate actions and appoint interim
class counsel in Spera, et al. v Samsung Elecs. Am., Civ. A. No. 2:12-cv-54l2 (DMC)(JAD) (the
“Spera Class Action”) (ECF No. 12).1

Pursuant to Rule 78 of the Federal Rules of Civil

Procedure, no oral argument was heard. Upon consideration of the parties’ submissions, and for
the reasons stated below: (i) the Durso Plaintiffs’ cross-motion to consolidate is denied; and (ii)
the Spera Plaintiffs’ motion to consolidate is granted.
I.

BACKGROUND.

Currently pending in this Court are three separate class actions that all involve claims
concerning Samsung front-loading washing machines (the “Samsung Washers” or the
2
“Washers”). (Br. Opp. Cross-Motion Consolidate 1, ECF No. 37, Civ. A. No. 2:1 2-cv-53 52).
A.

The Three Pending Class Actions Concerning the Samsung Washers.

and alleged a wide array of defects with respect to the Samsung Washers, from the Washers’ not
cleaning clothes well to the premature failing of the Washers’ pump. (Am. Compi.

¶ 2, ECF No.

12, Civ. A. No. 2:12-cv-5352). Specifically, these defects include “the inability of the [Samsung
Washers] to spin and drain properly and

[] wash large items despite the claim that the washer has

‘super capacity,’ the failure of clothes to come out properly cleaned, the frequent display of
‘error messages’ to the user, frequent mold, mildew smells within the Washer[s] and on clothes
‘This Opinion shall address only the consolidation aspect of these two motions. A separate opinion shall be issued
with respect to the appointment of class counsel aspect of these motions.
2

The only named defendant in each of these class actions is Samsung Electronics America, Inc., hereinafter
“Samsung.”
The Durso Plaintiffs filed an amended class action complaint on December 17, 2012. (Am. Compi., ECF No. 12,
Civ. A. No. 2:12-cv-5352).
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that were just washed, frequent instances of premature failure of the pump, the collection of ‘pot
metal’ in the hose, and the premature disintegration of the rubber within the [Wjasher resulting
in leaks and damage to clothing.” ([4j. The Durso Plaintiffs asserted six causes of action
against Samsung, including violation of the New Jersey Consumer Fraud Act, N.J.S.A.

§ 56:8-2,

et çq (the “CFA”), violation of the Texas Deceptive Trade Practices Act, Tex. Bus. & Comm.
Code

§ 17.41, et q, fraudulent concealment, breach of implied warranties, breach of express

warranties and negligent misrepresentation.
The next filed action is the Spera Class Action, which was filed on August 28, 2012, and
alleged a single defect with respect to the Samsung Washers, namely that there is an “inherent
defect which causes them to develop mold and mildew” (the “Mold Defect”). (Br. Opp. CrossMotion Consolidate 1, ECF No. 37, Civ. A. No. 2:1 2-cv-53 52). Specifically, the Spera Plaintiffs
claimed the Samsung Washers do not clean themselves in the same way that top-loading
machine washers do, which allows a build-up of bioflim (i.e., dirt from clothing and accumulated
soap). (Id.). In addition, the Washers allegedly “create[] an incubator for mold and mildew”
because they must be air- and water-tight to prevent leakage while washing. (Id.). The Spera
Plaintiffs asserted five causes of action against Samsung, including violation of the CFA,
violation of the Missouri Merchandising Practices Act, Mo. Rev. Stat.

§ 407.010, et q, breach

of express warranty, breach of the implied warranty of merchantability and unjust enrichment.
The final action filed is the Chowning Class Action, which was filed on August 29,
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2012, and is nearly identical to the Spera Class Action insomuch as it alleged only the Mold
Defect. The Chowning Plaintiffs asserted the same causes of action as the Spera Plaintiffs, with

“The “Chowning Class Action” refers to the class action filed by plaintiffs Chad and Jessica Chowning, on behalf of
themselves and all others similarly situated, under Civ. A. No. 2:12-cv-5440 (DMC)(MF).

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the only exception being a claim under the Colorado Consumer Protection Act, Co. St.
101,

§ 6-1

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as opposed to the Missouri Merchandising Practices Act.
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B.

The Motions to Consolidate.

On December 7, 2012, counsel for the Durso Plaintiffs requested leave to file a motion to
consolidate the Durso Class Action with the SperalChowning Class Actions. (12/7/20 13 Letter,
ECF No. 11, Civ. A. No. 2:12-cv-5352).

This letter precipitated the filing of the

SperalChowning Plaintiffs’ motion to consolidate (Mot. Consolidate, ECF No. 12, Civ. A. No.
2:1 2-cv-54 1 2),6 and, thereafter, the Durso Plaintiffs’ cross-motion to consolidate (Cross-Motion
Consolidate, ECF No. 31, Civ. A. No. 2:12-cv-5352).
In the Durso motion, the Durso Plaintiffs argued that the three class actions should be
consolidated because they all involve claims relating to defects with the Samsung Washers. (Br.
Supp. Cross-Motion Consolidate 1, ECF No. 3 1-3, Civ. A. No. 2:l2-cv-5352).

The Durso

Plaintiffs contended that there are “common issues of law and fact” between the three actions
nsomucl as—the wide=range-of-claims in-the-Durs rClassActioir iiicuipuratedtheMoldDefect
claims asserted in the Spera/Chowning Class Actions.

(Id. at 4).

Specifically, the Durso

Plaintiffs referred to their allegation of mold and mildew smells existing within the Samsung
Washers and on clothes that were just washed as sufficient to encompass the Mold Defect claims
of the Spera/Chowning Plaintiffs.

(4 at 4).

The Spera/Chowning Plaintiffs, however, disputed that there is a “common issue of law
or fact” between their cases and the Durso Class Action, and thus seek consolidation of çgjy the
Based on the similarity between the allegations and causes of action between the
Class Action and the
Chowning Class Action, the Court shall jointly refer to these plaintiffs and actions as the “SyeralChowning
Plaintiffs” and the “SperalChowning Class Actions.”
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A motion to consolidate was filed only in the
Class Action, not the Chowning Class Action. However, both
sets of plaintiffs submitted joint briefs In opposition to the Durso Plaintiff’s motion to consolidate, and argued the
matters should be consolidated in the manner laid out in the pç motion to consolidate.
4

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Mold Defect class actions, i.e., the Spera Class Action and the Chowning Class Action. (Br.

Opp. Mot. Consolidate 4, ECF No. 37, Civ. A. No.

12-5352). According to the SperalChowning

Plaintiffs, the only similarity between the claims in the Durso Class Action and in the
SperalChowning Class Actions is that they all involve the Samsung Washers.

(

at 1). They

argued consolidating all the class actions would result in the confusion of issues, the
complication of discovery, and prejudice to them insomuch as their claims could be “lost in the
shuffle.” (Id.. at 6). The SperalChowning Plaintiffs argued that, dissimilarly, the consolidation
of only the Spera Class Action with the Chowning Class Action would promote judicial
economy and streamline issues and discovery, as these actions indisputably contain a “common
issue of law or fact.” (Id. at 4).
II.

LEGAL STANDARD.

Rule 42(a) of the Federal Rules of Civil Procedure provides:

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When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any
fl
atttrsin-issueiirthe-actions-itmayordernll theacns
consolidated; and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.

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Fed. R. Civ. P. 42(a).
Rule 42(a) gives the district court “broad powers to consolidate actions involving
common questions of law or fact if, in its discretion, such consolidation would facilitate the
administration of justice.” Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. 65,
80-82 (D.N.J. 1993) (citing Waste Distillation Tech., Inc. v. Pan American Resources, Inc., 775
F. Supp. 759, 761 (D. Del. 1991) (citation omitted); see also In re Mock, 398 F. App’x 716, 718
(3d Cir. 2010).

The purpose of consolidation is “to streamline and economize pretrial

proceedings so as to avoid duplication of effort, and to prevent conflicting outcomes in cases

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involving similar legal and factual issues.” In re TM! Litig., 193 F.3d 613, 724 (3d Cir. 1999)
amended, 199 F.3d 158 (3d Cir. 2000).
The mere existence of common issues, however, does not require consolidation. Liberty
Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149 F.R.D. at 81 (citing Waste Distillation, 775 F.
Supp. at 761). The savings of time and effort gained through consolidation must be balanced
against the inconvenience, delay or expense that might result from simultaneous disposition of
the separate actions. Id. (citations omitted).
III.

ANALYSIS.

The Court finds that consolidation of all three class actions is inappropriate, as there is
little evidence of a “common issue of law or fact” between the Durso Class Action and the
Spera/Chowning Class Actions beyond the mutual involvement of the Samsung Washers,.
The overlap between the Durso Class Action’s allegations regarding a “mold and
mildew” smell in the Washers andlor on recently cleaned clothes is only superficially related to
—--the-mere-speeiMold-Defeetelaims--The- Dtrso-Plaintiffs’-myriad-of-claims -relate-to such—-varying issues as the frequency of ‘error messages’ displayed to wash capacity. Each of these
claims would require individual analysis, and consolidation with the limited Mold Defect claims
would result in delay and confusion of the relevant factual issues in each case. Indeed, proving
all of the claims in the Durso Class Action would inevitably require fact and expert discovery
into a variety of issues that are irrelevant to the SpcraJChowning Class Action. Samsung voiced
exactly such a concern when opposing the consolidation of all three class actions, contending
that consolidated discovery had “the distinct potential of overwhelming the parties’ efforts.”
(Samsung Opp. Cross-Motion Consolidate 3, ECF No. 36, Civ. A. No. 2:12-cv-5352).

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—

Given the disparate factual analyses and sources of proof required by the claims in the
Durso Class Action as compared to the limited claims in the SperalChowning Class Actions,
consolidation is not appropriate.

Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp., 149

F.R.D. 65, 8 1-82 (D.N.J. l993).
Dissimilarly, consolidation of the Spera/Chowning Class Actions would foster the goals
of Rule 42(a). These actions assert identical allegations and causes of action against Samsung
with respect to the alleged Mold Defect inherent in Samsung Washers. There is an obvious
“common issue of law or fact” between these actions, and little risk of any confusion of issues or
prejudice to any party.

Indeed, Samsung did not oppose the consolidation of the

SperaJChowning Class Actions. (Samsung Opp. Cross-Motion Consolidate, ECF No. 36, Civ.
A. No. 2: 12-cv-5352). Consolidating these actions would promote judicial economy by reducing
repetition and duplication, conserving judicial resources, and avoiding inconsistent rulings.
Thus, the Court finds that the Spera/Chowning Class Actions should be consolidated
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Loading Washer Mold Litigation.”
IV.

CONCLUSION.

For the reasons set forth above, the cross-motion to consolidate filed in the Durso Class
Action (ECF No. 31, Civ. A. No. 2:12-cv-5352) is DENIED. The motion to consolidate filed in
the Spera Class Action (ECF No. 12, Civ. A. No. 2:12-cv-5412) is GRANTED.

In addition, there is a disparity among the claims asserted in the two sets of actions. The Durso Plaintiffs asserted
claims for fraudulent concealment, breach of the implied warranty of fitness for a particular purpose, negligent
misrepresentation, and violation of the Texas Deceptive Trade Practices Act. The SperalChowning Plaintiffs did not
assert these claims. Thus, Durso Class Action differs significantly in both its allegations against Samsung and the
causes of action it asserted, and, therefore, should not be consolidated with the SperalChowning Class Actions.

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In addition, the Spera Class Action (Civ. A. No. 2:12-cv-5412) and the Chowning Class
Action (Civ. A. No. 2:12-cv-5440) shall be consolidated under Civ. A. No. 2:12-cv-5412 and
assigned the master caption: “In re: Samsung Front Loading Washer Mold Litigation.”

SO ORDERED

JOSS.M.J.

cc:

Hon. Dennis M. Cavanaugh
Hon. Mark Falk

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