Jeff Jonah v. Kimberly-Clark Corporation et al

Northern District of California, cand-4:2015-cv-03243

MOTION to Amend/Correct (File a Consolidated Amended Complaint) filed by Jeff Jonah. Motion Hearing set for 3/13/2019 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 2/13/2019. Replies due by 2/20/2019.

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0 1 GUTRIDE SAFIER LLP ADAM J. GUTRIDE (State Bar No. 181446) 2 SETH A. SAFIER (State Bar No. 197427) 3 KRISTEN SIMPLICIO (State Bar No. 263291) 100 Pine Street, Suite 1250 4 San Francisco, California 94111 Telephone: (415) 639-9090 5 Facsimile: (415) 449-6469 adam@gutridesafier.com 6 seth@gutridesafier.com 7 kristen@gutridesafier.com anthony@gutridesafier.com 8 Attorneys for Plaintiffs 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 JENNIFER DAVIDSON, an individual, on CASE NO. 14-CV-1783-PJH 14 behalf of herself, the general public and 15 those similarly situated RELATED CASE NO. 15-CV-3243-PJH 16 Plaintiff, PLAINTIFF'S MOTION FOR LEAVE TO FILE CONSOLIDATED AMENDED 17 v. COMPLAINT 18 KIMBERLY-CLARK CORPORATION; Date: March 13, 2019 19 KIMBERLY-CLARK WORLDWIDE, Time: 9:00 a.m. INC.; KIMBERLY-CLARK GLOBAL Courtroom 3, 3rd Floor 20 SALES LLC; AND DOES 1 THROUGH 50 Judge: Hon. Phyllis J. Hamilton 21 Defendants 22 23 24 25 26 27 28 -i- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 TABLE OF CONTENTS 2 NOTICE OF MOTION AND MOTION ..........................................................................................1 3 I. INTRODUCTION ................................................................................................................1 4 II. Background ...........................................................................................................................1 5 III. ARGUMENT ........................................................................................................................3 6 A. The Cases Should Be Consolidated. .........................................................................3 7 B. Plaintiff Should Be Granted Leave To Amend. ........................................................4 8 1. Legal Standard ..............................................................................................4 9 2. Leave to Amend Should Be Granted. ...........................................................4 10 IV. CONCLUSION .....................................................................................................................6 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 TABLE OF AUTHORITIES 2 CASES 3 Barnett v. Cty. of Contra Costa, 2007 U.S. Dist. LEXIS 8131 (N.D. Cal. Jan. 24, 4 2007) ....................................................................................................................................... 5 5 Bruton v. Gerber Prod. Co., 703 F. App'x 468 (9th Cir. 2017).................................................... 6 6 Cedano v. Thrifty Payless, Inc., 2011 U.S. Dist. LEXIS 123950 (D. Or. Oct. 25, 7 2011) ....................................................................................................................................... 5 8 Costelo v. Chertoff, 258 F.R.D. 600 (C.D. Cal. 2009).................................................................. 5 9 Gasser v. Kiss My Face, LLC, 2017 U.S. Dist. LEXIS 175273 (N.D. Cal. Oct. 23, 10 2017) ....................................................................................................................................... 6 11 Hartford Cas. Ins. Co. v. J.R. Mktg., L.L.C., 61 Cal. 4th 988 (2015) ........................................... 6 12 Howey v. United States, 481 F.2d 1187 (9th Cir. 1973) ............................................................... 5 13 Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) ............................................................................. 4 14 Moore v. Kayport Package Express, Inc., 885 F.2d 531 (9th Cir. 1989) ..................................... 4 15 Richie v. Blue Shield of Cal., 2014 U.S. Dist. LEXIS 170446 (N.D. Cal. Dec. 9, 16 2014) ....................................................................................................................................... 5 17 United States v. Smithkline Beecham Clinical Labs., 245 F.3d 1048 (9th Cir. Cal. 18 2001) ....................................................................................................................................... 4 19 Watson-Smith v. Spherion Pac. Workforce, LLC, 2009 U.S. Dist. LEXIS 18590 20 (N.D.Cal. Feb. 20, 2009)......................................................................................................... 5 21 22 RULES 23 Fed. R. Civ. P. 15(a)...................................................................................................................... 4 24 Fed. R. Civ. Proc. 42 ..................................................................................................................... 3 25 26 27 28 -iii- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 NOTICE OF MOTION AND MOTION 2 On March 13, 2019 at 9:00 a.m., in Courtroom 3, on the 3rd floor of the United States 3 District Court for the Northern District of California (Oakland Division), Jennifer Davidson and 4 Jeff Jonah will, and hereby does, move, pursuant to Rules 15 and 42 of the Federal Rules of Civil 5 Procedure, to (1) consolidate this matter with the related case, Jonah v. Kimberly-Clark 6 Corporation, et al, Case No. 15-cv-3243; and (2) seek leave to file the proposed Consolidated 7 Amended Complaint attached hereto as Exhibit 1 to the Declaration of Kristen Simplicio, filed 8 concurrently. A redline indicating the differences between the Consolidated Amended Complaint 9 and the operative First Amended Complaint filed in this matter is attached as Exhibit 2. A redline 10 indicating the differences between the Consolidated Amended Complaint and the operative First 11 Amended Complaint filed in Jonah is attached as Exhibit 3. 12 The four new individuals who are named in the proposed Consolidated Amended 13 Complaint concurrently seek to intervene in this matter. They consent to the instant motion. 14 This motion is based on the following memorandum of points and authorities, the 15 accompanying declaration of Kristen Simplicio, the complete records and files in this action, and 16 all matters of which the Court may take notice. 17 18 19 20 21 22 23 24 25 26 27 28 -1- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 I. INTRODUCTION 2 Plaintiffs Jennifer Davidson and Jeff Jonah ("Plaintiffs") respectfully seek (1) to 3 consolidate their cases; and (2) leave to file a Consolidated Amended Complaint which adds 4 nationwide causes of action; amends certain existing allegations, including the proposed classes; 5 and includes other plaintiffs as proposed class representatives. The underlying case is unchanged: 6 Plaintiffs allege that Defendants' "flushable" wipes are not truly suitable for disposal by flushing 7 down the toilet. This motion is timely, as it is being filed on the agreed-upon deadline to file an 8 amended complaint,1 the class certification motion has not yet been filed, and a trial date has not 9 yet been set. 10 The Jonah and Davidson cases readily meet the standards for consolidation set forth in 11 Rule 42. Even Defendants' motion to relate establishes that "[i]t is readily apparent on the face of 12 the pleadings and in substance that the Davidson and Jonah Actions are the same." Davidson, 13 Dkt. #58 at 2. 14 Moreover, leave to amend should be freely granted. Since the filing of the First Amended 15 Complaint in 2014 (Davidson) and 2015 (Jonah) and subsequent stay pending the appeal of the 16 dismissal, much has happened. The Federal Trade Commission has weighed in on the definition 17 of flushability, and the Ninth Circuit issued its ruling that now permits plaintiffs to file claims for 18 unjust enrichment. Thus, this complaint reflects that changing landscape. In addition, as set forth 19 in the concurrently filed Motion to Intervene, the addition of four other named plaintiffs ("New 20 Plaintiffs") will help protect the rights of the proposed class of consumers. 21 II. BACKGROUND 22 Defendants manufacture pre-moistened wipes that can be used for personal hygiene, child 23 care, pet care, or cleaning. Among these products are four brands of wipes that Defendants tout as 24 "FLUSHABLE" –Cottonelle® Fresh Care Flushable Wipes & Cleansing Cloths, Scott Naturals® 25 Flushable Moist Wipes, Huggies® Pull-Ups® Flushable Moist Wipes, and U by Kotex® Refresh 26 flushable wipes (collectively, the "Wipes"). Plaintiffs Jennifer Davidson and Jeff Jonah allege in 27 1 While the parties agreed that this motion should be filed on January 25, 2019, in a joint 28 stipulation filed and entered on January 25, 2019, the parties agreed that Plaintiffs may file this motion on January 29, 2019. -1- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 their First Amended Complaints that the Wipes are not flushable, as they are not suitable for 2 disposal by flushing down a toilet, because the Wipes do not disperse in water. As a result, the 3 Wipes risk damage to household pipes and cause havoc at municipal sewage treatment facilities. 4 Plaintiffs further allege that, had Defendants not falsely advertised the Wipes, they would never 5 have purchased them but instead would have paid less for regular, non-"flushable" wipes. 6 Plaintiffs sued on behalf of themselves and a proposed class of similarly situated California 7 consumers, for violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. 8 Code §§ 17200 et. seq.; False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500 et. 9 seq.; Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750 et. seq.; and for common 10 law fraud. 11 Davidson filed her original complaint on March 13, 2014. Davidson case, Dkt. 1. The 12 Court dismissed Davidson's First Amended Complaint on December 9, 2014. Id., Dkt. 44. 13 Davidson appealed. Id., Dkt. 55. Jonah filed his original complaint on June 9, 2015. Jonah case, 14 Dkt. 1. On July 22, 2015, the Jonah case was deemed related to the Davidson case. Id., Dkt. 16. 15 Jonah and the Defendants agreed to stay the Jonah case pending resolution of Davidson's appeal. 16 Id., Dkt. 29-30. 17 On October 20, 2017, the Ninth Circuit reversed the dismissal of Davidson's First 18 Amended Complaint and remanded. On May 17, 2018, the Ninth Circuit declined to hear 19 Kimberly-Clark's petition for en banc review, and the stay was dissolved. On December 10, 20 2018, the United States Supreme Court denied Kimberly-Clark's petition for certiorari. 21 During the pendency of the stay, a number of key developments occurred, which are 22 reflected in the proposed amended complaint. They include: 23 - guidance from the Federal Trade Commission as to the definition of flushable in 24 the form of a consent decree obtained with a different flushable wipes 25 manufacturer; 26 - progress in two other class action lawsuits, one on behalf of municipalities and one 27 on behalf of New York consumers, against Defendants for falsely advertising their 28 wipes as "flushable," both of which have made public new facts about Defendants' -2- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 practices, including the revelation Defendants' flushable wipes were banned from 2 Defendants' headquarters due to the wipes causing a massive clog; and 3 - rulings by the California Supreme Court and the Ninth Circuit that now recognize 4 free-standing claims for unjust enrichment. 5 In addition, in the years since filing these actions, more information has become public about 6 Defendants' wipes and "flushable" technology in general, which has lead Plaintiffs to seek leave 7 to amend to add claims arising under warranty theories (violations of Magnuson-Moss Warranty 8 Act, and breaches of express and implied warranties). 9 Moreover, Plaintiffs' counsel has been contacted by other consumers from California and 10 several additional states who wish to join this suit. Several of those consumers now seek to join 11 this litigation. These consumers' claims are substantially similar to Plaintiffs. Each purchased 12 either the Cottonelle or Scott Naturals brands of "flushable" wipes at issue in this suit in reliance 13 on the "flushable" representation. Each learned that the wipes were not flushable, often because 14 they experienced clogs or other damage to their home plumbing and septic tanks. And each seeks 15 to bring claims that are substantially similar, if not identical, to Plaintiffs, for common law unjust 16 enrichment, warranty claims, and violations their states' of consumer laws. 17 III. ARGUMENT 18 Plaintiff refers and incorporates in entirety the concurrently filed Motion to Intervene. For 19 the reasons set forth therein, and below, leave to file a consolidated amended should be granted. 20 A. The Cases Should Be Consolidated. 21 This court has the discretion to consolidate cases where the actions "involve a common 22 question of law or fact." Fed. R. Civ. Proc. 42. The burden is not high. Moreover, Rule 42 gives 23 this Court more discretion to consolidate cases than what is set forth in the local rule governing 24 related cases, which requires "substantially the same parties, property, transaction or event" and a 25 showing of unduly burdensome duplication of labor. L.R. 3-12. 26 Here, Defendants already agreed that the cases are related. See generally Dkt. # 58. Jonah 27 and Davidson have brought the same false advertising claims against the same Defendant. As this 28 Court previously agreed that Davidson had standing to seek to represent purchasers of all four -3- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 brands of Defendants' flushable wipes, Davidson case, Dkt. # 24 at 10-11, the fact that each 2 purchased a different brand is of no consequence, as they are each members of the putative class 3 that the other seeks to represent. 4 There will be significant economies from consolidating the cases. If the same or 5 overlapping classes are certified in each case, class members are likely to be confused. Dual 6 notices may have to be sent, and the costs of administering a notice and opt-out program are 7 much likely to be higher. And there may be conflicting rulings at trial. Consolidation will 8 streamline litigation and benefit the class(es). 9 B. Plaintiff Should Be Granted Leave To Amend. 10 1. Legal Standard 11 Leave to amend a pleading is generally "freely granted" and should be granted unless the 12 district court "determines that the pleading could not possibly be cured by the allegation of other 13 facts." See United States v. Smithkline Beecham Clinical Labs., 245 F.3d 1048 (9th Cir. Cal. 14 2001) (citing Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)) (reversing a district court's 15 denial of leave to amend which was based on an unduly narrow reading of the plaintiff's 16 complaint). See also Fed. R. Civ. P. 15(a) ("court should freely give leave when justice so 17 requires). In determining whether to grant leave to amend, the court should consider "the 18 presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure 19 deficiencies by previous amendments, undue prejudice to the opposing party and futility of the 20 proposed amendment." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 21 1989). Finally, while the Court should consider all these factors, "the crucial factor is the 22 resulting prejudice to the opposing party." Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 23 1973). 24 2. Leave to Amend Should Be Granted. 25 This Court should grant Plaintiff's request to amend the complaint. 26 Courts routinely permit class action plaintiffs to amend their complaint to add new parties, 27 additional allegations, and amended class definitions. See, e.g., Barnett v. Cty. of Contra Costa, 28 2007 U.S. Dist. LEXIS 8131, at *4 (N.D. Cal. Jan. 24, 2007); Cedano v. Thrifty Payless, Inc., -4- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 2011 U.S. Dist. LEXIS 123950, at *15 (D. Or. Oct. 25, 2011); Watson-Smith v. Spherion Pac. 2 Workforce, LLC, 2009 U.S. Dist. LEXIS 18590, at *4 (N.D.Cal. Feb. 20, 2009) (granting leave to 3 amend complaint to modify class definition); see also Costelo v. Chertoff, 258 F.R.D. 600, 604- 4 05 (C.D. Cal. 2009) (refusing to consider different class definition where plaintiff did not move to 5 amend); Richie v. Blue Shield of Cal., 2014 U.S. Dist. LEXIS 170446, at *41 (N.D. Cal. Dec. 9, 6 2014) (same). 7 Here, Plaintiffs seek to amend the complaint in three ways. First, they seek to add 8 additional information that supports their existing claims, and make minor modifications that 9 better clarify the scope of the relief sought at trial. For example, Plaintiffs have added new 10 information regarding the construction and design of Defendants' wipes, and added some 11 additional information pertaining to the latest edition of INDA's flushability guidelines. Plaintiffs 12 have also added more specifics as to the pertinent information that was omitted from Defendants' 13 wipes. And they have clarified the specifics of the injunction they hope to obtain, which should 14 better inform the parties' trial preparations. 15 Second, they seek to add four new causes of action for unjust enrichment, and for 16 warranty related claims (violations of Magnuson-Moss Warranty Act, breach of express warranty, 17 and breach of implied warranty). None of these causes of action will alter the scope of discovery 18 in any way, as the allegations all stem from the same theories being advanced by the Plaintiffs as 19 to the flushability of Defendants' wipes, and the related price premium being commanded by 20 Defendants as a result of that false representation. Moreover, with respect to the claim for unjust 21 enrichment, while the case was stayed, both the California Supreme Court and the Ninth Circuit 22 ruled that consumers may bring free-standing claims for unjust enrichment- a change in the law 23 from when Plaintiffs' filed their cases. See Hartford Cas. Ins. Co. v. J.R. Mktg., L.L.C., 61 Cal. 24 4th 988 (2015); Bruton v. Gerber Prod. Co., 703 F. App'x 468, 470 (9th Cir. 2017). See also 25 Gasser v. Kiss My Face, LLC, 2017 U.S. Dist. LEXIS 175273, at *26 (N.D. Cal. Oct. 23, 2017) 26 (citing Bruton; allowing plaintiff in product labeling case to proceed 17 U.S. Dist. LEXIS 27 175273, at *26 (N.D. Cal. O with claims for unjust enrichment). 28 Finally, Plaintiffs seek to amend to permit the New Plaintiffs seek to join this lawsuit. The -5- Motion for Leave to Amend– Case No. 14-CV-1783-PJH 0 1 the same evidence will be used to prove the New Plaintiffs' claims as is needed to prove 2 Plaintiffs. 3 None of the amendments will result in undue delay. No trial date has been set. No 4 depositions have been taken. The motion for class certification has not yet been filed. The hearing 5 on that motion is not until June. As Defendants' opposition to Plaintiffs' motion for class 6 certification is not due until May 5, 2019, Defendants have plenty of time to take discovery and 7 complete their depositions of all the Plaintiffs. 8 Finally, and most importantly, there is no prejudice to Defendants because of the 9 amendment. In fact, if Plaintiffs are not permitted to amend their complaint with the New Parties, 10 the New Parties will file separate lawsuits, which would likely prejudice Defendants more by 11 requiring it to defend multiple identical suits around the country. 12 IV. CONCLUSION 13 For the foregoing reasons, Plaintiffs respectfully requests that they be permitted to file the 14 consolidated amended complaint in Exhibit 1. 15 Dated: January 29, 2019 GUTRIDE SAFIER LLP 16 17 _/s/ Kristen Simplicio__________________ Adam J. Gutride, Esq. 18 Seth A. Safier, Esq. Kristen Simplicio, Esq. 19 100 Pine Street, Suite 1250 San Francisco, California 94114 20 21 22 23 24 25 26 27 28 -6- Motion for Leave to Amend– Case No. 14-CV-1783-PJH