United States District Court, D. Maryland
ALEX KUKICH, Individually and on behalf of all others similar situated, Plaintiff,
ELECTROLUX HOME PRODUCTS, INC., Defendant.
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
October 2016, plaintiff Alex Kukich, individually and on
behalf of all others similarly situated, filed suit against
defendant Electrolux Home Products, Inc.
(“Electrolux”), alleging that the stainless steel
handles on “Over-The-Range Microwave Ovens”
(“Microwave(s)”) designed and manufactured by
Electrolux dangerously reach up to 168°F when the
“cooking surface below is in operation . . . .”
ECF 1 ¶ 1; see also Id. ¶ 34. The
Complaint is supported by several exhibits (ECF 1-3 to ECF
1-5). In the Complaint, Kukich asserts claims, inter
alia, for strict liability on the basis of design defect
and failure to warn (id. ¶¶ 69-89);
negligent failure to warn (id. ¶¶ 90-101);
negligence (id. ¶¶ 102-110); violations of
the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301
et seq. (id. ¶¶ 111-123); and
unjust enrichment (id. ¶¶
who is a citizen of Maryland (id. ¶ 6), seeks
to certify two classes. First, he seeks to certify a class
under Fed.R.Civ.P. 23(b)(2), consisting of “[a]ll
persons in the United States who own a Microwave with a
400-Grade Stainless Steel Handle.” Id. ¶
44. Second, he seeks to certify a class, pursuant to
Fed.R.Civ.P. 23(b)(3), consisting of “[a]ll persons in
the State of Maryland who own a Microwave with a 400-Grade
Stainless Steel Handle that was purchased during the four (4)
years preceding the filing of this action.”
Id. ¶ 45.
has moved to transfer the case to the Middle District of
Pennsylvania, pursuant to 28 U.S.C. § 1404(a) (ECF 25),
where a similar case is pending. The motion is supported by a
memorandum of law (ECF 25-1) (collectively,
“Motion” or “Motion to Transfer”) and
several exhibits. ECF 25-2 through ECF 25-6. Kukich opposes
the Motion (ECF 32, “Opposition”) and submitted
exhibits in support of his position. ECF 32-1 through ECF
32-3. Electrolux has replied. ECF 33 (“Reply”).
Each party has also submitted a “Notice of Supplemental
Authority.” ECF 31 (Kukich); ECF 38
Motion is well briefed and no hearing is necessary to resolve
it. See Local Rule 105.6. For these reasons that
follow, I shall grant the Motion.
is a Delaware corporation with its principal place of
business in North Carolina. ECF 1 ¶ 10. It is in the
“business of designing, manufacturing, and distributing
the Microwaves throughout the United States . . . .”
Id. ¶ 12. The Microwaves “are designed
for installation on a vertical wall directly over the cooking
surface of the range.” Id. ¶ 2.
Electrolux distributes its products under a variety of brand
names, including Electrolux; Electrolux ICON; Frigidaire
Professional; Frigidaire Gallery; Frigidaire; Eureka;
Kelvinator; Sanitaire; Tappan; and White-Westinghouse.
Id. ¶ 11.
owns a Frigidaire Gallery Over-The-Range Microwave Oven,
Model No. FGMV174KFC, which he purchased from the
“HHGREGG” store in Catonsville, Maryland in
October 2013. Id. ¶¶ 7-8, 29-31. It is
“designed, manufactured, and intended to be used
‘over-the range' with its unique stainless steel
‘Handle Design.'” Id. ¶ 21. The
Microwave “was installed pursuant to Defendant's
installation instructions.” Id.¶ 7.
Microwave's handle is constructed with “400-grade
stainless steel”, which is known to absorb and conduct
heat. Id. ¶¶ 1-2, 22. It is identified as
Electrolux part number 5304471830. Id. ¶ 23.
The handle is used “to access the appliance for use,
and is the only way to open the Microwave door.”
Id. ¶ 24. Notably, the handle is
“designed for use with a bare hand . . . .”
Id. However, because the stainless steel handle of
the Microwave can reach temperatures of over 168°F
(75.55°C) in the normal operation of the oven, it creates
“a risk of serious injury to anyone who touches the
handle with a bare hand . . . .” Id.
¶¶ 1, 25. While cooking on his stove, Kukich
“discovered the exceedingly high temperature of [the
Microwave] handle.” Id. ¶ 33.
Laboratories, an independent safety science company, has
stated that the maximum acceptable temperature for
“[b]are or painted metal” handles is 131°F
(55°C). Id. ¶ 3. And, ASTM International
(formerly, the American Society for Testing and Materials)
has said that skin contact with metallic surfaces at
temperatures greater than 154°F (68°C) can result in
irreversible skin damage. Id. ¶¶ 4, 26.
Yet, “[d]efendant has not provided any warnings,
instructions, or visible indicators that the 400-Grade
Stainless Steel Handle becomes hot with the operation of the
cooking surface below and may cause serious burns or other
injuries.” Id. ¶ 28.
claims that defendant continues to design, manufacture,
market, advertise, and sell Microwaves with handles that
cause burns and other injuries, despite knowing of the flaw
with the handles. Id. ¶ 40. Kukich also
complains that Electrolux has failed to implement a
“recall or repair program to adequately announce . . .
the existence” of the defect. Id.
has moved to transfer this case to the Middle District of
Pennsylvania, pursuant to 28 U.S.C. § 1404(a) (ECF 25),
where the case of Rice v. Electrolux Home Products,
Inc., 4:15-cv-0371-MWB (“Rice”) is
pending in the Williamsport Division of that district (Brann,
J.). Electrolux attached as an exhibit to its Motion the suit
filed by Ms. Rice on February 18, 2015. See ECF
25-3. According to defendant, Rice is “based
on the same allegations that form the basis of Kukich's
complaint.” ECF 25-1 at 5. Electrolux points out that
in Rice, as here, the plaintiff seeks to certify a
national class under Rule 23(b)(2), consisting of
“[a]ll persons in the United States who own a Microwave
with a stainless steel handle . . . .” Id. at
7; see ECF 1 ¶ 62 in Rice. Given the
pendency of the Rice case, Electrolux maintains that
“the interests of justice weigh heavily in favor of
transferring . . . to avoid duplicative litigation, avoid
inconsistent rulings, and promote judicial efficiency.”
ECF 25-1 at 5.
opposes the Motion to Transfer. ECF 32. He states, inter
alia, that the Pennsylvania court lacks personal
jurisdiction over him and that a Maryland court should apply
Maryland law with regard to the claims under Maryland law.
ECF 32 at 5, 14.
1404(a) of 28 U.S.C. states, in pertinent part: “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 . . . .” This provision “reflects an
increased desire to have federal civil suits tried in the
federal system at the place called for in the particular case
by considerations of convenience and justice.” Van
Dusen v. Barrack, 376 U.S. 612, 616 (1964). To that end,
it helps “to prevent the waste ‘of time, energy,
and money' and ‘to protect litigants, witnesses,
and the public against unnecessary inconvenience and
expense.” Id. (citation omitted).
“[t]he decision whether to transfer is committed to the
sound discretion of the trial court.” Mamani v.
Bustamante, 547 F.Supp.2d 465, 469 (D. Md. 2008);
see Volkswagen, 545 F.3d at 312 (“‘There
can be no question but that the district courts have
‘broad discretion in deciding whether to order a
transfer.'”); see also Tr. of the Plumbers and
Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc.,
791 F.3d 436, 443 (4th Cir. 2015); In re Ralston Purina
Co., 726 F.2d 1002, 1005 (4th Cir. 1984). In the
exercise of that discretion, the district court must weigh
“a number of case-specific factors.” Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). These
include: “(1) the weight accorded to plaintiff's
choice of venue; (2) witness convenience and access; (3)
convenience of the parties; and (4) the interest of
justice.” Plumbing Servs., Inc., 791 F.3d at
444; see, e.g., Mamani, 547 F.Supp.2d at
469; Cross v. Fleet Reserve Ass'n Pension Plan,
383 F.Supp.2d 852, 856 (D. Md. 2005). Other factors include
the “local interest in having localized controversies
settled at home” and the “appropriateness in
having a trial of a diversity case in a forum that is at home
with the state law that must govern the action.”
Stratagene v. Parsons Behle & Latimer, 315
F.Supp.2d 765, 771 (D. Md. 2004).
moving party bears the burden of showing, by a preponderance
of the evidence, that transfer to another venue is proper.
See Gilbert v. Freshbikes, LLC, 32 F.Supp.3d 594,
607 (D. Md. 2014); CoStar Realty Info., Inc. v.
Meissner, 604 F.Supp.2d 757, 770 (D. Md. 2009);
Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617
(D. Md. 2002). To the extent that the movant claims hardships
arising from the venue, “the movant should submit, for
example, affidavits from witnesses and parties explaining the
hardships they would suffer if the case were heard in the
plaintiff's chosen forum.” Dow v. Jones,
232 F.Supp.2d 491, 499 (D. Md. 2002) (citing Helsel v.
Tishman Realty & Constr. Co., 198 F.Supp.2d 710, 712
(D. Md. 2002)). Bald assertions of inconvenience or hardship
are not sufficient. Dow, 232 F.Supp.2d at 713.
§ 1404(a), the “preliminary” inquiry focuses
on whether the civil action “might have been brought in
the destination venue.” In re: Volkswagen of Am.,
Inc., 545 F.3d 304, 312 (5th Cir. 2008) (internal
quotations omitted). In order to transfer a case to another
district, the transferee court must have personal
jurisdiction over the defendant. D2L Ltd. v.
Blackboard, Inc., 671 F.Supp.2d 768, 778 (D. Md. 2009).
subject matter jurisdiction is predicated on 28 U.S.C. §
1332(d) (ECF 1 ¶ 16), which is part of the diversity
jurisdiction statute. Under 28 U.S.C. § 1391(b), venue
for such an action exists in
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
1391(c) states, in part:
[A]n entity with the capacity to sue and be sued in its
common name under applicable law, whether or not
incorporated, shall be deemed to reside, if a defendant, in
any judicial district in which such defendant is subject to
the court's personal jurisdiction with respect to the
civil action in question . . . .
claims that venue is proper in the Middle District of
Pennsylvania because it has consented to personal
jurisdiction in Pennsylvania based on its registration as a
foreign corporation in that State. ECF 25-1 at 11;
see 28 U.S.C. § 1391(c). Electrolux has
submitted an exhibit demonstrating that since 1992 it has
been registered as a foreign corporation in Pennsylvania.
See ECF 25-6.
asserts that “it cannot be held that venue is proper in
Pennsylvania for the claims of a Maryland resident against a
North Carolina company.” Id. Such a
determination, according to Kukich, “would turn the
venue requirements upside down.” Id. In
addition, plaintiff argues that Pennsylvania lacks personal
jurisdiction “over Mr. Kukich, ” because Kukich
is domiciled in Maryland and lacks “‘continuous
and systematic' contact[s] with Pennsylvania.” ECF
32 at 9. According to Kukich, “Electrolux ignores this
threshold, critical issue”, which constitutes
“the death knell to its motion.” Id.
federal court sitting in diversity undertakes a two-step
inquiry in determining whether personal jurisdiction exists .
. .” over a defendant. United Techs Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). This
applies to § 1332(d). See, e.g., Norberg v.
Shutterfly, Inc., 152 F.Supp.3d 1103, 1104 (N.D. Ill.
2015) (applying the two-step test for personal jurisdiction
in the context of § 1332(d)) (citing Jennings v. AC
Hydraulic A/S, 383 F.3d 546, 548 (7th Cir. 2004)). The
Fourth Circuit explained in Ellicott Mach. Corp., Inc. v.
John Holland Party Ltd., 995 F.2d 474, 477 (4th Cir.
1993): “In the first step, we determine whether the
long-arm statute authorizes the exercise of jurisdiction in
the circumstances presented. If we answer that affirmatively,
we consider whether the exercise of jurisdiction comports
with Fourteenth Amendment due process standards.”
(Internal citations omitted); accord Base Metal Trading,
Ltd. v. OJSC "Novokuznetsky Aluminum
Factory", 283 F.3d 208, 212 (4th Cir. 2002).
Electrolux, the first step is readily satisfied.
“Pennsylvania law imposes a basis for personal
jurisdiction over a business if the business qualifies as a
foreign corporation in the state.”
Bors v. Johnson & Johnson, __F.Supp.3d.__, 2016
W.L. 5172816 at *2 (E. D. Pa. Sept. 20, 2016) (citing
Bane v. Netlink, Inc., 925 F.2d 637, 641 (3d Cir.
1991)). The relevant Pennsylvania statute is 42 Pa.C.S.A.
§ 5301. It provides, id. (emphasis added):
(a) General rule.--The existence of any of
the following relationships between a person and this
Commonwealth shall constitute a sufficient basis of
jurisdiction to enable the tribunals of this Commonwealth
to exercise general personal jurisdiction over such
person, or his personal representative in the case of an
individual, and to enable such tribunals to render personal
orders against such person or representative:
(i) Incorporation under or qualification as a foreign
corporation under the laws ...