Kurtz v. Kimberly-Clark Corp.

320 F.R.D. 104, 2017 WL 751231
CourtDistrict Court, E.D. New York
DecidedFebruary 27, 2017
Docket14-CV-1142
StatusPublished
Cited by1 cases

This text of 320 F.R.D. 104 (Kurtz v. Kimberly-Clark Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kurtz v. Kimberly-Clark Corp., 320 F.R.D. 104, 2017 WL 751231 (E.D.N.Y. 2017).

Opinion

ORDER

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 “flush-able.” 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-CV-4090 (“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A class action involving New Hampshire law and New Hampshire residents was withdrawn after it became likely that the court would transfer the case to the United States District Court for the District of New Hampshire.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 & Nice-Pak 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 Honig-man action.

Plaintiffs in the Honigmcm 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 plaintiffs motions to certify a [106]*106nationwide 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.”).

I. 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 ease 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).

II. Nationwide Class

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-CV-4090, 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 plaintiffs claims.”

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Related

Kurtz v. Kimberly-Clark Corp.
321 F.R.D. 482 (E.D. New York, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
320 F.R.D. 104, 2017 WL 751231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kurtz-v-kimberly-clark-corp-nyed-2017.