Terrill v. Electrolux Home Products Inc. D/B/A Frigidaire®

• Decision Date: 03 September 2010
• Docket Number: No. CV 108–030.,CV 108–030.
• Citation: 753 F.Supp.2d 1272
• Parties: Michael TERRILL, Robert Brown, Michael Vogler, Palecia Boyd, and Denise Pack, on behalf of themselves and all others similarly situated, Plaintiffsv.ELECTROLUX HOME PRODUCTS, INC. d/b/a Frigidaire®, Defendant.
• Court: U.S. District Court — Southern District of Georgia

753 F.Supp.2d 1272

Michael TERRILL, Robert Brown, Michael Vogler, Palecia Boyd, and Denise Pack, on behalf of themselves and all others similarly situated, Plaintiffs

v.ELECTROLUX HOME PRODUCTS, INC. d/b/a Frigidaire®, Defendant.

No. CV 108–030.

United States District Court, S.D. Georgia, Augusta Division.

Sept. 3, 2010.

Charles A. McCallum, III, R. Brent Irby, McCallum, Hoaglund, Cook & Irby, LLP, Vestavia Hills, AL, Ian James Barlow, Kenneth A. Wexler, Wexler Wallace, LLP, Mark J. Tamblyn, Wexler, Toriseva & Wallace, LLP, Sacramento, CA, Leroy Weathers Brigham, Bell & Brigham, Augusta, GA, for Plaintiffs.Benjamin H. Brewton, Tucker, Everitt, Long, Brewton & Lanier, PC, Leroy Weathers Brigham, Bell & Brigham, Augusta, GA, James Russell Jackson, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, John H. Beisner, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for Defendant.

ORDER

LISA GODBEY WOOD, Chief Judge.

Presently before the Court are Electrolux's Motion to Dismiss (Dkt. No. 79), Electrolux's Motion to Partially Strike Class Allegations (Dkt. No. 87), and Plaintiffs' Motion for Class Certification (Dkt. No. 97). Electrolux's Motion to Dismiss and Motion to Partially Strike Class Allegations are GRANTED IN PART and DENIED IN PART. Plaintiffs' Motion for Class Certification is DENIED.

I. Background

The following factual allegations are taken directly from Plaintiffs' First Amended Complaint, and assumed to be true for purposes of Electrolux's Motion to Dismiss. Plaintiffs are five individuals who reside in Wisconsin, Georgia, South Carolina, Texas, and California who purchased Frigidaire front-load washing machines.¹ Electrolux is incorporated in Delaware and maintains its principal place of business in Augusta, Georgia. (Dkt. No. 66 ¶ 18.) Electrolux manufactures and sells home appliances, including Frigidaire front-load washing machines, throughout the United States. ( Id. ¶¶ 1, 18.) Frigidaire front-load washing machines are sold in Lowe's, Sears, Best Buy, and other national retailers. ( Id. ¶ 31.) Electrolux's website contains the following representations regarding Frigidaire washing machines:

You've Never Done Laundry Like ThisWhatever your decor, space requirements or family size, Frigidaire® washers and dryers fit your home and your lifestyle. From our traditional top load washers and gas or electric dryers to the stylishly efficient front load laundry to the space saving laundry center, you can count on Frigidaire for innovation, performance and style.

...

Your laundry never looked so goodFrigidaire® is the largest manufacturer of front load laundry in the world. So you expect contemporary styling that's beautifully designed to fit your lifestyle.

You trust that the iCare Intelligent Fabric Care System gently washes and completely dries to keep your clothes looking their best. With no agitator, you count on tumble action to wash gently and rinse so completely that your clothes feel fresher and last longer.

( Id. at 30.)

Plaintiffs allege that Frigidaire front-load washing machines, including models BTF2140E, BLTF2940E, FTF2140E, FWFB9100E, FWFB9200E, GLTF2940E, LTF2140E, and LTF2940E, suffer from a serious design defect. ( Id. ¶¶ 1–2.) Specifically, Plaintiffs allege that design defects in the steel drum, gasket, and bellows cause the washing machines to accumulate mold and mildew. ( Id. ¶ 2.) Plaintiffs allege that the mold and mildew accumulation produces a mold and mildew odor on clothes washed in the machines. ( Id.) Plaintiffs allege that the problem was so severe that some clothing was stained and ruined, and the smell of mold permeated their homes. ( Id.)

Plaintiffs also allege that Electrolux knew of the defect before Plaintiffs purchased their machines, but refused to warn consumers. ( Id. ¶ 4.) As evidence of Electrolux's knowledge, Plaintiffs attached an Electrolux internal service flash issued in April 2007. ( Id. Ex. A.) The service flash states that a convolution in the bellows allows water to remain in the bellows, potentially allowing biofilm to form. ( Id.) The bellows is a rubber seal around the door and drum that keeps clothing, water, and detergent inside of the wash basket as it cycles. The service flash also states that a new bellows design that does not have convolutions is “available for such concerns.” ( Id.) The new design is known as “S-shaped,” or “S-shaped bellows.” Plaintiffs allege that they would not have purchased a Frigidaire front load washing machine had they known of this defect.

All of the Plaintiffs' washing machines came with substantially similar warranties issued by Electrolux. Each warranty consists of three different warranties: a one-year, five-year, and twenty-five-year warranty. The one-year warranty provides that “Frigidaire will pay for: ... Labor and replacement parts which prove to be defective in materials or workmanship.” (Dkt. No. 82–1, 2.) The twenty-five-year warranty provides that “Frigidaire will pay for: ... Replacement part for an inner wash basket that breaks due to a defect in materials or workmanship.” ( Id. ¶ 4.) The five-year warranty is not at issue.

Each Plaintiff purchased his or her machine in his or her home state, and none purchased a machine directly from Electrolux. Michael Terrill lives in Cedarburg, Wisconsin. In or about April 2005, he purchased a model GLTF2940ESO Frigidaire machine from Kennedy Hahn in Milwaukee, Wisconsin. (Dkt. No. 66 ¶ 13.) He began experiencing mold and mildew problems in mid-2006. ( Id.) After unsuccessful attempts to clean his machine, he contacted Frigidaire in January 2007. Frigidaire representatives advised him to wipe his machine after each use. ( Id.)

Robert Brown lives in San Die go, California. ( Id. ¶ 14.) He purchased a model LTF2140ES3 Frigidaire machine on May 8, 2006 from a Lowe's Home Improvement store in California. ( Id.) Brown first noticed the alleged defect in July 2006, but waited until May 2009 to contact Electrolux. Electrolux initially advised him to wipe down his machine after each use and to leave the washer door open when not in use. ( Id.) Electrolux eventually offered to pay for the parts and labor to install a replacement bellows, or to provide a rebate on the purchase of a comparable Frigidaire machine. ( Id.)

Michael Vogler lives in San Antonio, Texas. ( Id. ¶ 15.) In May 2007, he purchased a model FTF2140ES3 Frigidaire machine at Conn's in San Antonio, Texas. Vogler alleges that he began experiencing mold and mildew problems in November 2008, and contacted Frigidaire. ( Id.) A Frigidaire representative informed him that his machine's warranty had expired, and all they could do was sell him a new bellows. ( Id.)

Palecia Boyd lives in Milledgeville, Georgia. ( Id. ¶ 16.) She purchased a model GLTF290ES2 Frigidaire machine in July 2006 from Union Furniture in Macon, Georgia. ( Id.) She began experiencing mold and mildew problems in July 2008. ( Id.)

Finally, Denise Pack lives in Round O, South Carolina. ( Id. ¶ 17.) In July 2006, she purchased a model LTF2140ES3 Frigidaire machine from a Lowe's Home Improvement store in Summerville, South Carolina. ( Id.) She first noticed problems with her machine in August 2006. ( Id.)

Terrill originally filed suit on behalf of himself and a proposed nationwide class on March 5, 2008. On July 31, 2009, Plaintiffs filed their First Amended Complaint, adding the additional Plaintiffs and consumer protection claims. In lieu of filing an answer, Electrolux filed a Motion to Dismiss. Electrolux has also filed a Motion to Partially Strike Class Allegations, and Plaintiffs have filed a Motion for Class Certification.

II. Motion to Dismiss

When ruling on a motion to dismiss, the Court does not decide disputed factual issues. See Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1037 (11th Cir.2008). Rather, the Court accepts the plaintiff's well-pleaded factual allegations as true, “and then determine[s] whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, –––U.S. ––––, 129 S.Ct. 1937, 1949–51, 173 L.Ed.2d 868 (2009) (discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). If the plaintiff alleges facts that, combined with reasonable inferences, raise the likelihood of recovery from possible to plausible, the motion to dismiss must be denied. Iqbal, 129 S.Ct. at 1949.

Plaintiffs' First Amended Complaint includes eight counts. Before turning to the merits of each count, the Court must decide what law applies. The Court will then examine the merits of Plaintiffs' allegations in the following order: (1) breach of express warranty (Count II); (2) breach of implied warranty (Count III); (3) violation of the Magnuson–Moss Act (Count V); (4) unjust enrichment (Count IV); (5) violation of the Georgia Uniform Deceptive Trade Practices Act (Count I); (6) violation of the California Unfair Competition Law (Count VI); (7) violation of the Texas Deceptive Trade Practices–Consumer Protection Act (Count VII); and (8) violation of the Wisconsin Deceptive Trade Practices Act (Count VIII).

A. Choice of Law

Before turning to the merits of Electrolux's Motion to Dismiss, the Court must determine which state's laws apply to Plaintiffs' claims.² The Parties agree that Georgia choice-of-law rules govern, but dispute which substantive law ultimately applies. Plaintiffs contend that Georgia law applies to all of their claims, regardless of where individual Plaintiffs or class members reside and purchased their machines. Electrolux argues that the law of the individual Plaintiff's home state governs. Electrolux is correct with respect to all but Plaintiffs' unjust enrichment claim.

Georgia courts ordinarily apply lex loci delicti (law of the state where the injury occurred) to tort actions, see Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assocs., Inc., 468 F.3d 1322, 1326 (11th Cir.2006), and lex loci contractus (law of the state of contract) to...