Waters et al v. Electrolux Home Products, Inc.
Filing
66
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND GRANTING ALTERNATIVE MOTION TO STRIKE CLASS CLAIMS: Granting in part and Denying in part 58 Motion to Dismiss for failure to State a Claim; Pl tffs' class and other allegations are stricken from 2nd Amended Complaint; and Pltffs' are directed to file a 3rd Amended Complaint within 14 days of being served with this Memorandum/Opinion/Order. Signed by Senior Judge Frederick P. Stamp, Jr on 7/18/16. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GLORIA WATERS and WILLIAM HALL,
on behalf of themselves and
others similarly situated,
Plaintiffs,
v.
Civil Action No. 5:13CV151
(STAMP)
ELECTROLUX HOME PRODUCTS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS AND
GRANTING ALTERNATIVE MOTION TO STRIKE CLASS CLAIMS
Previously, this Court granted the defendant’s motion to
dismiss the complaint, but permitted the plaintiffs to file a
second amended complaint to add any allegations of damages as to
the named plaintiffs regarding their strict products liability
claims.
The plaintiffs filed a second amended complaint, and the
defendant filed a motion to dismiss the second amended complaint
or, alternatively, to strike the plaintiffs’ class allegations.
For the following reasons, the defendant’s motion to dismiss is
granted in part and denied in part and its alternative motion to
strike is granted.
I.
Background
The named plaintiffs live in Weirton, West Virginia.
They
purchased an Electrolux “high efficiency” washing machine at a
Sears Department Store in Steubenville, Ohio in 2009.
After years
of use, the plaintiffs noticed a noxious odor coming from their
washing machine.
They contacted Electrolux in July 2013 and were
told that they should leave the door of the machine open and run
regular cycles with a product called “Affresh®.”
The named
plaintiffs tried these suggestions but saw no positive results.
Upon further investigation, the named plaintiffs discovered
that their washer had developed a coat of “biofilm,” consisting of
bacteria and mold, in the washer drum.
This biofilm caused the
odor and was transferred to clothing and other articles washed in
the machine.
The plaintiffs allege that Electrolux knew its
washers allowed biofilm to develop, but continued to market them
with a special “Deep Clean Sanitize” cycle that it claimed would
kill “99.9% of bacteria with no carryover of bacteria between
loads.”
ECF No. 55 at 12.
The plaintiffs originally filed this proposed class action in
West Virginia state court alleging claims for consumer fraud,
breach of warranties, and unjust enrichment on behalf of all
persons in West Virginia who own a washing machine manufactured by
Electrolux.
The defendants removed the case to this Court under
the Class Action Fairness Act, 28 U.S.C. §§ 1453, 1711–1715.
The
plaintiffs then filed an amended complaint defining a new class of
persons in Ohio who purchased or own a washer manufactured by
Electrolux, and alleging violations of the West Virginia Consumer
Credit and Protection Act (“WVCCPA”), W. Va. Code §§ 46A-6-101 to
2
46A-6-110, violations of the Ohio Consumer Sales Practices Act
(“OCSPA”), Ohio Rev. Code Ann. §§ 1345.01-1345.13, breach of
express
warranties,
breach
of
the
implied
warranty
of
merchantability, tortious breach of warranties, strict products
liability, and unjust enrichment.
Electrolux then filed a motion
to dismiss and to strike the Ohio Class.
This Court denied the
motion to strike and granted the motion to dismiss, but permitted
the plaintiffs to file a second amended complaint to allege damages
to the named plaintiffs as to their strict products liability
claims.
The plaintiffs filed their second amended complaint
alleging that the named plaintiffs suffered the following damages:
(1) damaged or ruined clothing washed in their washing machine; (2)
future health risks caused by exposure to the biofilm and mold that
developed in their machine; and (3) money spent on cleaning
supplies to clean their washing machine.
Electrolux then filed
this motion to dismiss under Rule 12(b)(6) and alternatively to
strike the class allegations.
II.
Discussion
Electrolux argues that the complaint should be dismissed under
Rule 12(b)(6) for failure to state a claim.
Alternatively,
Electrolux asks this Court to strike the class allegations.
For
the following reasons, this Court grants in part and denies in part
Electrolux’s motion to dismiss, and grants Electrolux’s motion to
strike the class allegations.
3
A.
Electrolux’s Motion to Dismiss
This
Court
previously
concluded
that
the
plaintiffs
had
plausibly alleged their strict products liability claims except for
damages as to the named plaintiffs.
This Court permitted the
plaintiffs to file a second amended complaint to allege damages
suffered by the named plaintiffs.
complaint
maintains
the
The plaintiffs’ second amended
allegations
from
the
prior
amended
complaint as to the strict products liability claims and provides
additional allegations regarding damages to the named plaintiffs
and proposed class members.
Electrolux argues that the plaintiffs
fail to plausibly allege damages as to the named plaintiffs.
Specifically, Electrolux argues: (1) that alleged damage to the
named plaintiffs’ clothing is not specific enough to support a
plausible claim because the plaintiffs do not identify specific
articles of clothing that were damaged; (2) that alleged damages
from exposure to mold and biofilm creating a risk of future health
issues are not recoverable under West Virginia law; and (3) that
alleged damages for money spent on products to clean their washing
machine are not recoverable under West Virginia’s economic loss
doctrine.
To survive a motion to dismiss under Rule 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).
4
This plausibility
standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff has stated a claim
that makes it plausible he is entitled to relief.
Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556
U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
First, the plaintiffs’ allegations that the named plaintiffs’
clothing
was
damaged
by
plausibility standard.
their
washing
machine
satisfy
the
The plaintiffs allege that the named
plaintiffs’ “clothing has been damaged and ruined by mold, mildew,
and biofilm deposits from the machine that cannot be removed from
those articles of clothing.”
ECF No. 55 at 19.
Electrolux argues
that the plaintiffs specifically allege which particular articles
of clothing were damaged, the extent of the damage, and when the
damage occurred.
While the plaintiffs do not identify specific
articles of clothing, these allegations sufficiently identify a
class of the named plaintiffs’ identifiable personal property that
was damaged as a result of using their allegedly defective washing
machine.
Electrolux argues that some courts have dismissed cases
with similarly vague allegations of property damage.
In re MI
Windows & Doors, Inc. Prods. Liab. Litig., 908 F. Supp. 2d 720,
725-26 (D.S.C. 2012).
However, the cited authority dealt with
vague allegations of damages to unidentified “property.”
See MI
Windows, 908 F. Supp. 2d at 724-25 (dealing with allegations that
“defective
windows
have
damaged
5
other
property
within
[the
plaintiffs’] homes” (emphasis added)).
Here, the plaintiffs have
alleged damages to an identifiable set of the named plaintiffs’
property: clothing washed in their defective washing machine. This
is sufficient, and the plaintiffs need not specifically identify
any particular article of clothing to make their claim plausible.
See Fed. R. Civ. P. 9 (noting special matters that require pleading
with specificity).
Second, the plaintiffs’ allegations of a potential health risk
from biofilm and mold constitute a nebulous future harm that is not
recoverable under West Virginia law.
Under West Virginia law, a
plaintiff alleging negligence may generally recover only for an
injury that has already occurred, including the future effects of
a present injury.
Rhodes v. E.I. du Pont de Nemours & Co., 636
F.3d 88, 94-95 (4th Cir. 2011).
In their memorandum in response,
the plaintiffs concede that the alleged increased risk of future
health
problems
caused
by
exposure
to
mold
and
biofilm
are
insufficient to establish a physical injury under West Virginia
law.
Accordingly, the plaintiffs fail to plausibly allege future
damages to their health based on exposure to biofilm and mold in
their washing machine.
Third, Electrolux argues that the plaintiffs’ alleged damages
for time and money spent on cleaning products to clean their
washing machine are not recoverable in tort under West Virginia
law.
Under West Virginia law, a claim for negligent design or
6
failure to warn is a strict products liability claim.
Ilosky v.
Michelin Tire Corp., 307 S.E.2d 603, 609 (W. Va. 1983).
In a
strict products liability suit, a plaintiff may not recover “the
difference between the value of the product received and its
purchase price in the absence of a sudden calamitous event.”
Star
Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854, 859 (W. Va.
1982).
Such “direct economic loss” damages may be recovered only
in a breach of contract or warranty claim.
Id. at 858-59.
Similarly, in a strict products liability suit, a plaintiff may
never recover consequential economic losses resulting from the
inability to use the defective product, including lost profits.
Id. at 859, 857-58.
The plaintiffs seek damages for “the cleaning products they
purchased–per Electrolux’s instructions–which do not address the
defect.”
ECF No. 55 at 19.
These expenses were incurred in an
attempt to rid their washing machine of the biofilm that developed
therein; that is, to fix the alleged defect.
expenses
allegedly
resulted
from
defective
the
washing
plaintiffs’
machine,
Thus, these alleged
inability
making
to
these
use
the
expenses
consequential economic losses that are not recoverable in strict
products liability under West Virginia law.
Further, if these
expenses may be considered part of the damage the defective washing
machine caused to itself, the plaintiffs fail to allege a “sudden
7
calamitous event” causing that damage, and the expenses cannot be
recovered as direct economic losses.
Yet, the plaintiffs argue that the economic loss rule does not
apply because they have adequately plead damages to their property
other than the washing machine.
The plaintiffs rely on Aikens v.
Debow, 541 S.E.2d 576 (W. Va. 2000), in which the West Virginia
Supreme Court of Appeals held that a plaintiff cannot maintain a
negligence claim based only on economic losses unless there is a
contractual or special relationship between the plaintiff and
defendant that makes such losses foreseeable.
Aikens
Id. at 589-90.
implies that economic losses may be recovered if the
plaintiff also alleges an injury to the plaintiff or his property,
and other courts have allowed economic loss damages where the
plaintiff alleges injuries to his person or property. However, the
holding in Aikens does not apply to strict products liability
claims.
Star Furniture clearly provides a specific economic loss
rule that applies only to strict liability claims, 297 S.E.2d at
859, while Aikens clearly provides a specific economic loss rule
that applies only to negligence claims.
Because
the
plaintiffs
assert
only
541 S.E.2d at 589-90.
strict
products
liability
claims, the Star Furniture formulation of the economic loss rule
applies, and the Aikens formulation does not apply. Therefore, the
plaintiffs’ alleged damages for money spent on cleaning products
are not recoverable under their strict products liability claims.
8
B.
Electrolux’s Motion to Strike the Class Allegations
Electrolux argues that the second amended complaint’s class
allegations should be stricken because the plaintiffs’ claims
cannot be litigated on a classwide basis. Specifically, Electrolux
argues that the second amended complaint cannot possibly satisfy
Rule 23’s requirements for certifying a class because each class
member must prove individualized damages proximately caused by a
defect in their individual washing machines.
The plaintiffs argue
that the motion to strike is premature, as the plaintiffs have not
yet sought to certify the proposed classes.
Under Federal Rule of Civil Procedure 12(f), a court “may
strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
12(f).
Fed. R. Civ. P.
“Rule 12(f) motions are generally viewed with disfavor
‘because striking a portion of a pleading is a drastic remedy and
because it is often sought by the movant simply as a dilatory
tactic.’” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347
(4th Cir. 2001).
However, a court may grant a motion to strike
class allegations where the pleadings make clear that the proposed
class cannot be certified and no amount of discovery would change
that determination. See Pilgrim v. Universal Health Card, LLC, 660
F.3d 943, 949 (6th Cir. 2011); see also John v. Nat’l Sec. Fire &
Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“Where it is facially
apparent from the pleadings that there is no ascertainable class,
9
a
district
court
may
dismiss
the
class
allegation
on
the
pleadings.”); Fed. R. Civ. P. 23(d)(1)(D) (“[T]he court may issue
orders that . . . require that the pleadings be amended to
eliminate allegations about representation of absent persons and
that the action proceed accordingly.”).
Striking or dismissing
class allegations before the plaintiffs file a motion for class
certification is not premature where it is unnecessary for the
court “to probe behind the pleadings before coming to rest on the
certification question.”
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 161 (1982); see also Pilgrim, 660 F.3d at 949 (concluding that
a motion to strike class allegations filed before a motion for
class certification was not premature where class certification was
facially improper); Fed. R. Civ. P. 23(c)(1)(A) (requiring a court
to
make
a
class
certification
determination
“[a]t
an
early
practicable time”).
Thus, Electrolux’s motion to strike is not
premature
Court
if
this
finds
that
the
plaintiffs’
class
allegations are facially deficient.
To that end, Electrolux argues that the plaintiffs’ class
claims for strict products liability necessarily fail Rule 23’s
typicality, predominance, and superiority requirements because
their strict products liability claims will require individualized
showings of damages and proximate cause as to each class member.
“Rule 23(a) requires that the prospective class comply with
four
prerequisites:
(1)
numerosity;
10
(2)
commonality;
(3)
typicality; and (4) adequacy of representation.
class
action
must
fall
within
enumerated in Rule 23(b).”
357
(4th
omitted).
Cir.
2014)
one
of
the
In addition, the
three
categories
EQT Prod. Co. v. Adair, 764 F.3d 347,
(citation
and
internal
quotation
marks
The plaintiffs seek certification under Rule 23(b)(3),
which is “[f]ramed for situations in which class-action treatment
is not as clearly called for . . . [but] may nevertheless be
convenient and desirable.”
U.S.
591,
615
(1997)
Amchem Prods., Inc. v. Windsor, 521
(internal
quotation
marks
omitted).
“[C]ertification under Rule 23(b)(3) is appropriate when all of the
prerequisites
of
Rule
23(a)
are
satisfied
and
two
other
requirements are met. Specifically, (1) common questions of law or
fact must predominate over any questions affecting only individual
class members; and (2) proceeding as a class must be superior to
other available methods of litigation.”
(citation omitted).
Adair, 764 F.3d at 357
This Court finds that the second amended
complaint facially fails to satisfy Rule 23’s requirements for
class certification and that no amount of discovery could alter
this conclusion.
First, “[t]ypicality requires that the claims of the named
class representatives be typical of those of the class; ‘a class
representative must be a part of the class and possess the same
interest and suffer the same injury as the class members.’”
Leinhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001)
11
(quoting Falcon, 457 U.S. at 156).
“[T]he fact that the named
plaintiffs have the same general complaint against the defendant
does not render their claims typical.”
Jones v. Allercare, Inc.,
203 F.R.D. 290, 300 (N.D. Ohio 2001).
The named plaintiffs are not typical of the proposed classes
“because the proposed class members’ substantive claims depend on
individual permutations . . . .
Each plaintiff must individually
prove that he or she experienced personal injuries and/or property
damage which was proximately caused by the use of the defendant’s
products.”
Id.
The issue of whether each class member suffered
damages as a proximate cause of any defect in their washing
machines will depend upon individual factors such as the nature of
each class member’s use of their washing machine and steps taken to
prevent or get rid of biofilm.
Thus, the named plaintiffs’ proof
of their claims will not necessarily prove any other class member’s
claim, and Rule 23(a)’s typicality requirement cannot be met.
Further, this Court is concerned that the named plaintiffs are
atypical because their consumer protection claims were previously
dismissed
as
representing
time-barred,
class
protection claims.
members
preventing
as
to
them
their
from
potential
adequately
consumer
Additionally, the named plaintiffs reside in
West Virginia and purchased their washing machine in Ohio, which
likely would prevent them from representing the proposed Ohio
class, and may cause typicality issues with the proposed West
12
Virginia class.
The named plaintiffs’ unique place of residency
and place of purchase create complex choice of law issues that
similarly
complicate
their
ability
to
adequately
represent
straightforward classes of Ohio or West Virginia consumers.
Second, predominance requires “[t]he same analytic principles”
governing
Rule
23(a)’s
commonality
analysis,
predominance requirement is “more demanding.”
Behrend, 133 S. Ct. 1426, 1432 (2013).
however
the
Comcast Corp. v.
Commonality requires that
the case present a common question of law or fact that is “of such
a nature that its determination ‘will resolve an issue that is
central to the validity of each one of the claims in one stroke.’”
Adair, 764 F.3d at 360 (quoting Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350 (2011)).
In addition to this, the predominance
inquiry “trains on the legal or factual questions that qualify each
class member’s case as a genuine controversy.” Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 623 (1997).
Thus, to satisfy the
predominance requirement, the case must present common questions
that go to “the controversy at the heart of the litigation.”
Adair, 764 F.3d at 357.
As discussed above, the plaintiffs’ unique place of residency
and place of purchase creates complex choice of law issues and
typicality barriers to litigating all class members’ claims in a
single litigation.
The proposed Ohio class would require the
application of Ohio law, which this Court previously concluded does
13
not apply to the named plaintiffs’ strict products liability
claims.
While West Virginia law would apply to both the named
plaintiffs’
and
the
proposed
West
Virginia
class’s
claims,
individual factual issues would predominate the litigation.
Each
class member must individually prove that their washing machine
proximately caused damage to their person or particular property.
“[W]hile the need for individualized proof of damages does not
necessarily preclude class certification so long as common issues
continue to predominate over individual issues, it is impermissible
to determine damages on a classwide basis in order to facilitate
class
treatment
of
a
case
when
individualized proof of damages.”
255
F.3d
138,
147
(4th
Cir.
the
governing
law
requires
Lienhart v. Dryvit Sys., Inc.,
2001).
Thus,
“the
need
for
individualized proof of damages may defeat predominance where proof
of damages is essential to liability.”
Id.
To state a strict
products liability claim under West Virginia law, a plaintiff must
prove that the product was defective and that the defect was the
proximate cause of the plaintiff’s injury. Ilosky v. Michelin Tire
Corp., 307 S.E.2d 603, 609 (W. Va. 1983). Here, the plaintiffs and
each member of the proposed class must show that the alleged defect
in their washing machine proximately caused damage to their persons
or property other than their machines.
Thus, individualized proof
of damages is an essential element to the plaintiffs’ claims.
While this does not necessarily defeat predominance, as discussed
14
more
thoroughly
individualized
proceedings
below,
this
determinations
such
that
class
Court
also
will
result
treatment
finds
that
in
overly
is
not
such
an
complex
superior
to
individualized litigation.
Third, superiority requires that “proceeding as a class ‘[be]
superior to other available methods for fairly and efficiently
adjudicating the controversy.’” Adair, 764 F.3d at 370-71 (quoting
Fed. R. Civ. P. 23(b)(3)).
In evaluating superiority of the class
action form, “[t]he court must compare the possible alternatives to
determine whether Rule 23 is sufficiently effective to justify the
expenditure of the judicial time and energy that is necessary to
adjudicate a class action and to assume the risk of prejudice to
the rights of those who are not directly before the court.”
Stillmock v. Weis Mkts., Inc., 385 F. App’x 267, 274 (4th Cir.
2010) (quoting 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 1779 (3d ed. 2005)).
The
Fourth Circuit has generally “embraced the view that the mass tort
action for damages may be appropriate for class action, either
partially or in whole.”
Gunnells v. Healthplan Servs., Inc., 348
F.3d 417, 424 (4th Cir. 2003) (internal quotation marks omitted).
However, Rule 23(b)(3) requires the court to “ensure that class
certification in such cases ‘achieve economies of time, effort, and
expense, and promote . . . uniformity of decision as to persons
similarly situated, without sacrificing procedural fairness or
15
bringing about undesirable results.’”
Id. (quoting Amchem, 521
U.S. at 615).
Class treatment would not be superior to individual litigation
in this matter because, as discussed above, the issue of proximate
cause will require individualized factual determinations that will
obviate any benefit of class treatment.
The plaintiffs argue that
this Court may bifurcate the liability and damages issues, allowing
class litigation as to liability and individualized proof of
damages.
However, as discussed above, the damages issue is not
easily separable from the liability issue, as each class member
must prove that their defective washing machine proximately caused
damage
to
their
person
or
property,
which
will
require
individualized factual determinations regarding their use of their
machines.
The required proof of plaintiff specific causation and
damages makes the class action form untenable.
Any attempt to
remedy the typicality and predominance issues discussed above will
likely result in needlessly convoluted class litigation.
Further, while burdensome damage calculations alone do not
necessarily
preclude
class
treatment,
damages
to
each
class
members’ person or property will not be uniform in this litigation,
increasing the complexity and burden of calculating damages.
This
Court will not be able to apply a uniform formula for calculating
damages.
Each class member would need to present individualized
evidence regarding particular damages they suffered.
16
Simply put,
continuity of damages between class members cannot be guaranteed,
making the only issue potentially amendable to class treatment the
issue of whether Electrolux’s washing machines were defective.
However, the burden and complexity of parsing individual causality
and damages claims, or of bifurcating proceedings, will outweigh
any benefits of class treatment on the defectiveness issue.
Thus,
class treatment is not superior to individual litigation in this
civil action.
Accordingly, this Court finds that the second
amended complaint facially fails to support class certification,
and the class allegations must be stricken.
III.
The
plaintiffs
have
Conclusion
plausibly
stated
claims
for
strict
products liability under West Virginia law as limited by the above
ruling. However, the plaintiffs may no longer maintain their class
allegations.
Accordingly, Electrolux’s motion to dismiss or,
alternatively, to strike the class allegations (ECF No. 58) is
GRANTED IN PART AND DENIED IN PART.
It is ORDERED that the
plaintiffs’ class allegations be STRICKEN from the second amended
complaint, that the plaintiffs’ allegations regarding the increased
risk of future health problems caused by exposure to mold and
biofilm be STRICKEN from the second amended complaint, and that the
plaintiffs’ allegations regarding damages in the form of time and
money spent on cleaning products or repairs be STRICKEN from the
second amended complaint.
The plaintiffs are DIRECTED to file a
17
third amended complaint within fourteen days of being served with
this memorandum opinion and order, and in accordance with the same.
This Court will then enter a separate order scheduling a status and
scheduling conference.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
July 18, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
18
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