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Kukich v. Electrolux Home Products, Inc.

United States District Court, D. Maryland

January 24, 2017

ALEX KUKICH, Individually and on behalf of all others similar situated, Plaintiff,



         In 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. ¶¶ 134-139).[1]

         Kukich, 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.

         Electrolux 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 (Electrolux).[2]

         The 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.

         I. Factual Background[3]

         Electrolux 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.

         Kukich 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.

         The 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.

         Underwriters 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.

         Kukich 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.

         II. Discussion

         Electrolux 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.

         Kukich 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.


         Section 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).

         Notably, “[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).

         The 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.


         Under § 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).

         Here, 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.

         Section 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 . . . .

         Electrolux 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.

         Plaintiff 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.

         “A 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).

         As to 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:
(2) Corporations.--
(i) Incorporation under or qualification as a foreign corporation under the laws ...

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