United States District Court, D. Colorado
ALLSTATE FIRE & CASUALTY INSURANCE COMPANY and ALLSTATE VEHICLE & PROPERTY INSURANCE COMPANY, Plaintiffs,
ELECTROLUX HOME PRODUCTS, INC., Defendant.
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Electrolux Home
Products, Inc.'s Motion to Sever and Dismiss [Docket No.
11]. The Court has subject matter jurisdiction over this case
pursuant to 28 U.S.C. § 1332.
filed their complaint on August 17, 2016. Docket No. 1.
Plaintiffs provided insurance coverage to property owners who
suffered losses at the following locations on the following
Dates of Loss
Allstate Paid Out in Excess of
Anthony & Rachel Plucinski
8972 Kent Street, Westminster, Colorado
Eric & Cheryl Smith
1446 Fairfield Avenue Windsor, Colorado
No. 1 at 2, ¶ 4. Plaintiffs have a subrogation interest
in the claims asserted in this action. Id., ¶
5. Plaintiffs allege that each of the subrogor's claims
at issue "stemmed from a fire caused by a dryer
designed, manufactured, and sold into the stream of commerce
by Electrolux." Id. at 3, ¶ 11. Defendant
argues that the two subrogation claims are improperly joined.
Docket No. 11.
of the Federal Rules of Civil Procedure governs misjoinder
and nonjoinder of parties, providing that "[t]he court
may  sever any claim against a party." Fed.R.Civ.P.
21. Severance under Rule 21 creates a separate case.
Chrysler Credit Corp. v. Country Chrysler, Inc., 928
F.2d 1509, 1519 (10th Cir. 1991). A court has broad
discretion in deciding whether to sever parties or claims.
German by German v. Fed. Home Loan Mortg. Corp., 896
F.Supp. 1385, 1400 (S.D.N.Y. 1995). "The cases make it
clear that parties are misjoined when they fail to satisfy
either of the preconditions for permissive joinder of parties
set forth in Rule 20(a)." 7 Charles Alan Wright, Arthur
R. Miller, & Mary Kay Kane, Fed. Prac. & Proc. Civ.
§ 1683 (3d ed. 2010).
joinder of claims in a single action is governed by Rule 20
of the Federal Rules of Civil Procedure, which provides that
parties "may join in one action as plaintiffs if: (A)
they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to
all plaintiffs will arise in the action." Fed.R.Civ.P.
20(a)(1). The permissive joinder rule is to be construed
liberally "to promote trial convenience and to expedite
the final determination of disputes, thereby preventing
multiple law suits." Cooper v. Fitzgerald, 266
F.R.D. 86, 88 (E.D. Pa. 2010). As the Supreme Court
instructed, the impulse under the Federal Rules of Civil
Procedure is for courts to entertain the "broadest
possible scope of action consistent with fairness to the
parties"; thus, "joinder of claims, parties and
remedies is strongly encouraged." United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966).
argues that severance is proper because "the
only relationship between the different claims
alleged in the Complaint is the allegation that each of the
fires was caused by a dryer manufactured by Electrolux."
Docket No. 11 at 4 (emphasis in original). Defendant asserts
that plaintiffs do not allege that the dryers at issue are
the same model and therefore have the same structure and
parts configuration. Id. If the case involves
different models, defendant states that the case "will
hinge on distinct facts that are unique to each
plaintiff." Id. (quoting Payne v. Grant
Cty., Okla., 2014 WL 3349617, at *2 (W.D. Okla. July 8,
argue that joinder of these claims is appropriate because
"the individual Plaintiffs' rights arise from the
manufacturer-defendant's defectively designed
product" and both "individual Plaintiffs  must
establish that the dryers at issue were sold in a defective
condition unreasonably dangerous to the consumer in any
strict products liability action." Docket No. 15-1 at 5,
first requirement for joinder is that the claims must
'aris[e] out of the same transaction, occurrence, or
series of transactions or occurrences.'"
DIRECTV, Inc. v. Barrett, 220 F.R.D. 630, 631 (D.
Kan. 2004) (quoting Fed.R.Civ.P. 20(a)). "[A]ll
logically related events entitling a person to institute a
legal action against another generally are regarded as
comprising a transaction or occurrence." 7 Wright, et
al., Fed. Prac. § 1653. In this case, plaintiffs allege
that the two dryers that caused the fires were each
ball-hitch dryers and shared several structural features.
Docket No. 1 at 3, ¶¶ 11-13. The complaint also
describes Electrolux's process for designing, testing,
and redesigning its ball-hitch clothes dryers. Id.
at 3-5, ¶¶ 15-28. While the two dryers were not
identical models, the complaint alleges that they share
common features and that Electrolux's process of
designing each dryer is relevant to each claim. This is the
form of logical relationship that Fed.R.Civ.P. 20(a)
requires. See DIRECTV, 220 F.R.D. at 632 (finding
joinder proper where "each defendant in each case
purchased one or more devices, identical or nearly identical,
designed to illegally intercept satellite signals or
facilitate illegal interception").
asserts that courts regularly find that injuries from the
same type of product do not arise out of the same transaction
or occurrence, Docket No. 11 at 5, but each case cited by
defendant arises in the context of drug liability. See
Hyatt v. Organon USA, Inc., 2012 WL 4809163, at *1 (E.D.
Mo. Oct. 10, 2012); In re Diet Drugs (Phentermine,
Fenfluramine, Dexfenfluramine) Prod. Liab. Litig., 294
F.Supp.2d 667, 679 (E.D. Pa. 2003); In re Rezulin Prod.
Liab. Litig., 168 F.Supp.2d 136, 144 (S.D.N.Y. 2001);
Boschert v. Pfizer, Inc., 2009 WL 1383183, at *3
(E.D. Mo. May 14, 2009); Cumba v. Merck & Co.,
2009 WL 1351462, at *1 (D.N.J. May 12, 2009). The rule for
joinder in prescription drug cases appears to be somewhat
stricter as a result of the importance of medical histories,
drug dosage, and other differences peculiar to individual
plaintiffs. See, e.g., Cumba, 2009 WL 1351462, at *1
("The majority of courts to address joinder in the
context of drug liability cases have found that basing
joinder merely on the fact that the plaintiffs ingested the
same drug and sustained injuries as a result thereof is
insufficient.") (emphasis added); Hyatt, 2012
WL 4809163, at *1 (listing joinder cases related to
prescription drug suits). In the instant case, there is no
comparable concern that subrogors' characteristics will
predominate over other issues. In addition, the dispute in
this case alleges more than that the subrogors purchased
similar dryers. The complaint alleges that those dryers were
redesigned in a similar manner and shared features that
caused the fires in the instant case. Docket No. 1 at 3-6,
Civ. P. 20(a) also requires questions of law or fact common
to all plaintiffs. The complaint alleges that defendant is
liable under a theory of strict products liability.
Id. at 6-11, ¶¶ 37-49. "A claim of
defect can be premised on a design defect, manufacturing
defect, or a failure to warn." White v. Caterpillar,
Inc., 867 P.2d 100, 105 (Colo.App. 1993) (citing
Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo.
1987)). Under all three theories, a plaintiff must prove that
a product has a defective condition that renders it
unreasonably dangerous. Id. (citation omitted).
Colorado courts apply both the consumer expectation test,
which considers whether a product is "dangerous to an
extent beyond that which would be contemplated by the
ordinary consumer, " and a risk-benefit analysis that
considers "the efficacy of alternative designs."
Id. Plaintiffs' claims thus require
consideration of similar evidence with respect to consumer
expectations and design.
August 11, 2017, defendant submitted a supplemental reply in
support of its motion to sever and dismiss. Docket No. 47. In
its reply brief, defendant argued that plaintiffs have
"conceded that the two claims in this case involve
different facts and legal theories." Id. at 2.
In support, defendant cites a telephonic hearing where
plaintiffs stated the first claim involved "a
manufacturing defect" that does not exist in "other
consolidated actions pending around the country, "
making that claim file "unique because it's a
different failure mode." Docket No. 47 at 8, pp. 5-6,
II. 25, 1-7. On September 22, 2017, pursuant to a directive
from the Court, Docket No. 48, plaintiffs responded to
defendant's arguments about the fires having different
causes. Docket No. 49. While glossing over the fact that the
fires apparently started in different ways, id. at
1, plaintiffs point to a central issue that would
nevertheless be common, namely, whether the dryers'
plastic components are defectively designed and whether the
use of such plastic breached the standard of care. While the
causes of the fires will pose different issues of proof,
defendant has not shown that this issue will predominate over
the common issues in such a way as to merit severance.
defendant argues that it would be prejudiced if the two
actions are not severed. Docket No. 11 at 6-7. Defendant
argues that discovery would be "unwieldy and
inefficient, " but merely argues that a hypothetical
delay in discovery could delay the entire case. Id.
at 6. Apart from an isolated telephonic hearing, Docket No.
41, the docket in this case does not evidence any delays
related to discovery. To the contrary, the telephonic hearing
suggests that much of the discovery is proceeding in
accordance with "other coordinated proceedings, "
Docket No. 42 at 4, p. 4, II. 2-4, suggesting that the
parties have successfully coordinated discovery between this
case and other proceedings around the country. Defendant also
argues that "the vastly different factual circumstances
involved in each of the claims will result in prejudice ...