Kurtz v. Kimberly-Clark Corporation et al
ORDER. All claims for purchases made in New Jersey by purchasers residing in New Jersey, based on New Jersey law, are severed from the complaint in the instant case. Plaintiff shall recast the New Jersey elements of his complaint in the instant c ase as a single complaint, based on New Jersey law. Those claims are transferable to the District of New Jersey. As a result of the above changes to the instant case, the court will certify three class actions - one in the Belfiore action and two in the Kurtz action - each of which involves different defendants and a different product, but all of which rely on New York law and purchases in New York. Ordered by Judge Jack B. Weinstein on 2/24/2017. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
D. JOSEPH KURTZ, Individually and on
Behalf of All Others Similarly Situated,
– against –
KIMBERLY-CLARK CORPORATION &
COSTCO WHOLESALE CORPORATION,
D. Joseph Kurtz:
Mark J. Dearman
Stuart A. Davidson
Robbins Geller Rudman & Dowd LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Samuel H. Rudman
Mark S. Reich
Robbins Geller Rudman & Dowd, LLP
58 South Service Road
Melville, NY 11747
Eamon Paul Joyce
Sidley Austin LLP
787 Seventh Ave
New York, NY 10019
Daniel A. Spira
Kara L. McCall
Sidley Austin LLP
One S Dearborn
Chicago, IL 60603
Costco Wholesale Corporation:
James M. Bergin
Adam James Hunt
Kayvan Betteridge Sadeghi
Morrison & Foerster
250 West 55th Street
New York, NY 10019
Eamon Paul Joyce
Sidley Austin LLP
787 Seventh Ave
New York, NY 10019
JACK B. WEINSTEIN, Senior United States District Judge:
Three separate but related class actions are before the court. They are brought by
consumers who purchased moist toilet wipes sold by retailer defendants, produced by
manufacturer defendants, and marked “flushable.” Alleged are defects in labeling. Plaintiffs seek
money damages and injunctive relief because they claim the product is not “flushable.” See Kurtz
v. Kimberly-Clark Corp. & Costco Wholesale Corp., No. 14-CV-1142 (“Kurtz action”) (relying
on New Jersey and New York law); Honigman & Kurtz v. Kimberly-Clark, 15-CV-2910
(“Honigman action”) (relying on New York law); and Belfiore v. Procter & Gamble Co., 14-CV4090 (“Belfiore action”) (relying on New York law).
A class action involving New Hampshire law and New Hampshire residents was
withdrawn after it became likely that the court would transfer the case to the United States District
Court for the District of New Hampshire. See Richard & Richard v. Wal-Mart Stores, Inc. &
Rockline Indus., 15-CV-4579 (“Richard action”); Order, 15-CV-4579, Jan. 19, 2017, ECF No. 95
(order granting stipulation of dismissal with prejudice).
A class action involving Maryland law and Maryland residents and a class action involving
Oregon law and Oregon residents were before the court. Palmer & Palmer v. CVS Health & NicePak Prods., Inc., 15-CV-2928 (“Palmer action”) (relying on Maryland law); Armstrong & Kurtz
v. Costco Wholesale Corp. & Nice-Pak Prods., Inc., 15-CV-2909 (“Armstrong action”) (relying
on Oregon law). The Palmer action and Armstrong action were transferred to the United States
District Court for the District of Maryland and the United States District Court for the District of
Oregon, respectively. Order, 15-CV-2909, Feb. 17, 2017, ECF No. 106; Order, 15-CV-2928, Feb.
17, 2017, ECF No. 113.
Remaining before the court are the Kurtz action, the Belfiore action, and the Honigman
Plaintiffs in the Honigman action have not moved for class certification.
Plaintiff in the Belfiore action moved to certify a class of everyone who purchased
Charmin Freshmates, a flushable wipes product, in New York. See Pl.’s Notice of Mot. for Class
Certification, 14-CV-4090, Feb. 27, 2015, ECF No. 58.
Plaintiff in the Kurtz action based his complaint on separate claims under New Jersey and
New York state law. Compl., 14-CV-1142, Feb. 21, 2014, ECF No. 1. On the court’s
suggestion that the same plaintiff could not represent a New York class and a New Jersey class,
plaintiff agreed not to seek certification of a New Jersey class. See Letter, 14-CV-1142, Feb. 6,
2017, ECF No. 282. Remaining are plaintiff’s motions to certify a nationwide class and two
New York classes of everyone who purchased the Kimberly-Clark flushable wipes product and
the Kirkland Signature flushable wipes product in New York. Id.; Omnibus Mem. of Law in
Supp. of Pl.’s Mot. for Class Certification and Appointment of Class Representative and Class
Counsel, 14-CV-1142, Feb. 27, 2015, ECF No. 81 (“Pl.’s Class Cert. Mot.”).
New Jersey Claims
All claims for purchases made in New Jersey by purchasers residing in New Jersey,
based on New Jersey law, are severed from the complaint in the instant case. FED. R. CIV. P. 21
(“On motion or on its own, the court may at any time, on just terms, add or drop a party. The
court may also sever any claim against a party.”); Garber v. Randell, 477 F.2d 711, 714 (2d Cir.
1973) (“[T]he court’s power to sever claims . . . is [ ] discretionary, requiring it to balance the
factors of benefit and prejudice that will result from the alternative courses.”); 4 Moore’s Federal
Practice § 21.05 (2017) (“The trial court . . . has great discretion to restructure an action to
promote the efficient administration of justice. Rule 21 gives the court tools to jettison those
parties and claims that are not within its jurisdiction or that are not conveniently prosecuted
together, preserving parties and claims that are properly before it.” (footnote omitted)); 4
Moore’s Federal Practice § 21.02 (2017) (“In exercising its discretion under Rule 21, the court
must consider principles of fundamental fairness and judicial efficiency. As part of this inquiry,
the court should consider whether an order under Rule 21 would prejudice any party, or would
result in undue delay. . . . Although courts properly wish to avoid duplicative litigation, they
should not hesitate to sever claims based on different factual situations from that of the main
action.” (internal quotation marks and footnotes omitted)).
Efficiency and fairness require transfer of the New Jersey action to New Jersey. See
Order, 15-CV-2909, Feb. 17, 2017, ECF No. 106 (transferring case to the District of Oregon);
Order, 15-CV-2928, Feb. 17, 2017, ECF No. 113 (transferring case to the District of Maryland).
The severance of the New Jersey aspects of the case is not on the merits. No detriment to the
proposed class exists by virtue of a transfer.
Plaintiff shall recast the New Jersey elements of his complaint in the instant case as a
single complaint, based on New Jersey law. Those claims are transferable to the District of New
Jersey. 28 U.S.C. § 1404(a) (“For the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other district or division where it
might have been brought or to any district or division to which all parties have consented.”);
Lead Indus. Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70, 79 n.17 (2d Cir.
1979) (“The broad language of 28 U.S.C. [§] 1404(a) would seem to permit a court to order
transfer Sua sponte”); cf. Order, 15-CV-2909, Feb. 17, 2017, ECF No. 106 (transferring case sua
sponte to the District of Oregon); Order, 15-CV-2928, Feb. 17, 2017, ECF No. 113 (transferring
case sua sponte to the District of Maryland).
Plaintiff in the instant case is seeking certification of a national class. See Pl.’s Class
Cert. Mot. While the court has indicated at a previous hearing that classes based on New York
purchasers and on New York law claims will be certified, the court will not grant certification of
a national class. See Hr’g Tr., 14-CV-1142, Feb. 2, 2017 (“Feb. 2 Hr’g Tr.”); Hr’g Tr., 14-CV4090, Feb. 3, 2017; Forthcoming Order, 14-CV-1142 (forthcoming memorandum and order
addressing motions for class certification in the instant case).
“[A] class representative must be part of the class and possess the same interest and
suffer the same injury as the class members. . . . Rule 23(a) ensures that the named plaintiffs are
appropriate representatives of the class whose claims they wish to litigate. The Rule’s four
requirements—numerosity, commonality, typicality, and adequate representation—effectively
limit the class claims to those fairly encompassed by the named plaintiff's claims.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 348–49 (2011) (internal quotation marks and citations
The named plaintiff in the instant case has not demonstrated the financial or other
capacity to adequately represent a national class of consumers who purchased flushable wipes
manufactured by defendants Kimberly-Clark Corporation or Costco Wholesale Corporation.
Plaintiff has expressed reluctance to conduct a scientific survey of consumers to determine a
reasonable consumer’s understanding of the term “flushable.” Feb. 2, 2017 Hr’g Tr. at 62:10-16
(“[A survey is] something that has been considered. We’re not sure whether or not that’s
something that’s absolutely necessary.”). Conducting such a survey on a national scale would be
costly. Limiting certification to two New York classes and denying certification of a nationwide
class is appropriate when the events underlying his claim took place in New York and discovery
has largely been confined to New York. See, e.g., Adames v. Mitsubishi Bank, Ltd., 133 F.R.D.
82, 91 (E.D.N.Y. 1989) (“Plaintiffs’ counsel . . . has not demonstrated that it would be able
adequately to represent members of a proposed class from the [defendant’s] United States offices
outside New York. Class discovery conducted beyond the New York branch has been very
limited. Counsel concedes that financial limitations have precluded further efforts since
plaintiffs’ counsel has indicated that the discovery necessary to pursue this litigation on behalf of
a nationwide class is presently beyond the means of the named plaintiffs, the Court determines
that the adequacy of representation requirement can be satisfied only with respect to a class of
New York plaintiffs.”); see also Mascol v. E & L Transp., Inc., No. CV-03-3343, 2005 WL
1541045, at *6 (E.D.N.Y. June 29, 2005) (“[A] class representative[’]s financial resources [are] a
relevant factor in determining the adequacy of class representation when the ability of the class
representative to finance notice to large, nationwide classes is questionable”).
New York Classes
As a result of the above changes to the instant case, the court will certify three class
actions – one in the Belfiore action and two in the Kurtz action – each of which involves different
defendants and a different product, but all of which rely on New York law and purchases in New
York. See Forthcoming Order, 14-CV-1142 (forthcoming memorandum and order addressing
motions for class certification)
Because discovery has not started in the Honigman action, it is stayed pending resolution
in this court and the Court of Appeals for the Second Circuit of the motions for class certification
filed in the Kurtz and Belfiore actions.
The parties in the Kurtz and Belfiore actions have the power to seek an appeal of this
court's forthcoming decision on certification of three New York classes pursuant to Rule 23(f).
FED. R. Civ. P. 23(f). Because the issues in the Kurtz and Belfiore actions are largely the same as
the issues in the Honigman action, a decision on certification by the Court of Appeals would
largely control the issue of class certification in the Honigman action.
ck B. Weinstein
enior United States District Judge
February 24, 2017
Brooklyn, New York
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