GOULD v. THE GUIDA-SEIBERT DAIRY COMPANY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TIFFANEE GOULD, individually

and on behalf of her minor son, Civ. No. 22-cv-01861 (NLH/AMD)

A.J., et al.,

OPINION

Plaintiffs,

v.

THE GUIDA-SEIBERT DAIRY

COMPANY, et al.,

Defendant.

APPEARANCES:

JOSEPH D. LENTO, ESQUIRE

SAMUEL D. JACKSON, ESQUIRE

LENTO LAW GROUP, P.C.

3000 ATRIUM WAY

SUITE 200

MT. LAUREL, NJ 08054

Attorneys for Plaintiffs

PHILIP A. GOLDSTEIN, ESQUIRE

MCGUIREWOODS LLP

1251 AVENUE OF THE AMERICAS

20TH FLOOR

NEW YORK, NEW YORK 10020

Attorneys for the Defendant The Guida-Seibert Dairy Company

HILLMAN, District Judge

Before the Court is Defendant the Guida-Seibert Dairy

Company’s (“Defendant” or “Guida-Seibert”) Partial Motion to

Dismiss (ECF 10) and Motion to Strike (ECF 11). For the reasons

expressed below Defendant’s Partial Motion to Dismiss will be

granted and Defendant’s Motion to Strike will be denied.

BACKGROUND

For purposes of the instant motion, the Court will treat

all facts alleged in the Complaint as true and draw all

reasonable inferences in favor of Plaintiffs. See Jones v. Pi

Kappa Alpha Int’l Fraternity, 431 F. Supp. 3d 518, 522 (D.N.J.

Dec. 18, 2019).

Plaintiffs are a group of parents individually and on

behalf of their minor children who allege that their children

were injured as a result of drinking contaminated milk processed

by Guida-Seibert. (ECF 1 at 1–3). The minor children all

attend school in the Camden School District. (Id. at 3). The

Camden School district has a contract with Aramark for food

services within the schools. (Id. at 4). In turn, Aramark

contracts with Guida-Seibert for milk to provide in the schools.

(Id.).

On March 30, 2022, Plaintiffs were advised that

contaminated milk was provided to the students and that their

children consumed the contaminated milk. (Id.) The milk was

contaminated with a commercial cleaning agent, either Vortex of

Vortexx. (Id. at 4–5). Plaintiffs were further advised that

that their children were displaying physical symptoms after

consuming the milk. (Id. at 5). Plaintiffs’ children’s

symptoms included “severe stomach pain and cramping, nausea,

vomiting, diarrhea, and flatulence.” (Id.). Plaintiffs’

children were transported from school to a local hospital. (Id.

at 4). All of the children were discharged from the hospital.

(Id. at 5). Plaintiffs claim they are unsure what lasting

effects the chemical consumption may have on their children.

(Id.). As of the filing of the complaint, some of the children

continued to have stomach pain. (Id.).

Plaintiffs filed their complaint on April 1, 2022. (ECF

1). Plaintiffs allege the following counts: (1) negligence, (2)

New Jersey Products Liability Act (“NJPLA”), and (3) Negligent

Infliction of Emotional Distress (“NIED”). (Id. at 9–12).

Plaintiffs’ complaint includes class allegations. (Id. at

6–8). Plaintiffs describe two classes, the New Jersey Parent

Class consisting of the parents and legal guardians of students

in New Jersey school districts that ingested Guida-Seibert

contaminated milk, and the New Jersey Student Class consisting

of students in New Jersey school districts that ingested the

contaminated milk. (Id. at 6).

On May 23, 2022, Defendant filed both its Motion to Dismiss

(ECF 10) and Motion to Strike (ECF 10). On July 5, 2022,

Plaintiffs filed memorandums in opposition to these motions.

(ECF 20, ECF 21). Finally, Defendant filed reply briefs on July

11, 2022. (ECF 24, ECF 25).

DISCUSSION

A. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). A pleading

is sufficient if it contains “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (alteration in original) (citation

omitted).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted). A court in reviewing

a Rule 12(b)(6) motion must only consider the facts alleged in

the pleadings, the documents attached thereto as exhibits, and

matters of judicial notice. S. Cross Overseas Agencies, Inc. v.

Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999).

“A motion to dismiss should be granted if the plaintiff is

unable to plead ‘enough facts to state a claim to relief that is

plausible on its face.’” Malleus, 641 F.3d at 563 (quoting

Twombly, 550 U.S. at 570).

I. Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiffs’ claims under

28 U.S.C. § 1332.

II. Motion to Dismiss

A. Negligence and NIED

Defendants argue that Plaintiffs’ claims for negligence and

for NIED should be dismissed because the NJPLA subsumes these

other causes of action in products liability matters. (ECF 10-1

at 13–15). While Plaintiffs admit that the NJPLA “encompass[es]

virtually all possible causes of action relating to harms caused

by consumer and other products,” they argue that that Federal

Rule of Civil Procedure 8 permits plaintiffs to plead in the

alternative. (ECF 20 at 12–13) (alteration in original). Thus,

they claim that the negligence and NIED counts should proceed in

the event that the NJPLA does not apply to certain plaintiffs.

(Id. at 13–14). Defendant responds that courts have already

contemplated this argument, and found that such alternative

pleading “would ‘contravene the NJPLA’s intent to provide a

single statutory products liability claim.’” (ECF 24 at 9

(quoting Nagy v. Goodyear Tire & Rubber Co., No. 12-4235, 2013

U.S. Dist. LEXIS 45147, at *6-7 (D.N.J. Mar. 28, 2013)).

The NJPLA was enacted by the New Jersey Legislature in 1987

“based on an ‘urgent need for remedial legislation to establish

clear rules with respect to certain matters relating to actions

for damages for harm caused by products.’” Sinclair v. Merck &

Co., Inc., 948 A.2d 587, 593 (N.J.2008) (citing N.J.S.A. 2A:58C–

1(a)). In 2007, the New Jersey Supreme Court set forth

substantive guidance regarding the scope of the NJPLA and

explicitly recognized that “[w]ith the passage of the Product

Liability Act, . . . there came to be one unified, statutorily

defined theory of recovery for harm caused by a product.” In Re

Lead Paint Litigation, 924 A.2d 484, 503 (N.J. 2007) (citation

omitted) (alteration in original). The New Jersey Supreme Court

also observed that “[t]he language chosen by the Legislature in

enacting the PLA is both expansive and inclusive, encompassing

virtually all possible causes of action relating to harms caused

by consumer and other products.” Id. (citing N.J.S.A. 2A:58C–

1(b)(3)).

A product liability action is statutorily defined as “any

claim or action brought by a claimant for harm caused by a

product, irrespective of the theory underlying the claim, except

actions for harm caused by breach of an express warranty.”

N.J.S.A. 2A:58C–1(b)(3). The NJPLA further defines the type of

“harm” caused by a product to include the following: “(a)

physical damage to property, other than to the product itself;

(b) personal physical illness, injury or death; (c) pain and

suffering, mental anguish or emotional harm; and (d) any loss of

consortium or services or other loss deriving from any type of

harm described in subparagraphs (a) through (c) of this

paragraph.” N.J.S.A. 2A:58C–1(b)(2).

Thus, regardless of the underlying legal theory advanced by

a plaintiff, the NJPLA is the exclusive method to prosecute a

claim for physical harm caused by a product, where that harm is

claimed to be caused by a manufacturing defect, a design defect,

or a failure for the product to contain adequate warnings or

instructions. Koruba v. American Honda Motor Co., Inc., 935

A.2d 787, 795 (N.J. Super. Ct. App. 2007); N.J.S.A. 2A:58C–2.

Plaintiffs’ allegations fall squarely within the purview of

the NJPLA’s coverage of manufacturing defects, as they allege an

issue with the milk’s packaging or processing. (ECF 1 at 9,

12). Therefore, Plaintiffs’ negligence and NIED claims are

subsumed by the NJPLA. Plaintiffs’ counts for negligence and

for NIED will be dismissed.

B. NJPLA

The NJPLA provides for strict liability against a

manufacturer or seller of a product where the claimant proves

that a product caused harm because it “was not reasonably fit,

suitable or safe for its intended purpose” because it failed to

conform to design specifications or standards, failed to include

adequate warnings, or was defectively designed.” N.J.S.A.

2A:58C–2. Here, Plaintiffs allege a manufacturing defect, as

the milk “deviated from the ‘design specification, formulae, or

performance standards’ of [Guida-Seibert] or from ‘otherwise

identical units’, i.e. cartons of milk from other,

uncontaminated batches.” (ECF 1 at 10).

Defendant argues that the NJPLA claim should be dismissed

to the extent it is brought on behalf of the parents in their

individual capacity because they do not allege that the parents

suffered physical injury. (ECF 10-1 at 22). Plaintiffs admit

that the parents did not suffer a physical injury and “do not

oppose” this argument. (ECF 20 at 14 n.1).

The Supreme Court of New Jersey has held that the NJPLA

requires a physical injury. Sinclair v. Merck & Co., 948 A.2d

587, 595 (N.J. 2008). The Supreme Court explained that prior to

the NJPLA, New Jersey applied the Restatement (Second) of Torts

§ 402A for strict liability for defective products in New

Jersey, which required physical harm. Id. Because “[n]othing

in the legislative history of the PLA suggests that the

Legislature intended to eliminate that physical component,” the

New Jersey Supreme Court determined that liability for defective

products under the NJPLA requires physical injury as well. Id.

As Plaintiffs admit, they have not plead any physical

injury suffered by the parents. (ECF 20 at 14 n.1). As such,

the parents in their individual capacities have not sufficiently

plead a NJPLA claim. The NJPLA claim on behalf of the parents

in their individual capacities will be dismissed. With this

dismissal, the parents no longer have any remaining claims in

their individual capacities. Thus, the parents may proceed in

this action only on behalf of their minor children.

C. Punitive Damages

Defendants assert that Plaintiffs request for punitive

damages should be dismissed because Plaintiffs have not plead

the requisite level of culpability to support a punitive damages

award. (10-1 at 24). Plaintiffs counter that “[g]iven the size

of this contamination event – an event stemming from products

that presumably went through numerous steps of the supply chain

– it is reasonable to infer that at least one representative at

Defendant-company was aware of this contamination and either

contumaciously or recklessly shipped the product out anyway.”

(ECF 20 at 30). Defendant responds that such allegation is not

included in the complaint, and that regardless it is

“unsupported and idle supposition.” (ECF 24 at 20).

Pursuant to New Jersey’s Punitive Damages Act:

Punitive damages may be awarded to the

plaintiff only if the plaintiff proves, by

clear and convincing evidence, that the harm

suffered was the result of the defendant’s

acts or omissions, and such acts or

omissions were actuated by actual malice or

accompanied by a wanton and willful

disregard of persons who foreseeably might

be harmed by those acts or omissions. This

burden of proof may not be satisfied by

proof of any degree of negligence including

gross negligence.

N.J.S.A. § 2A:15-5.12.

Plaintiffs’ complaint does not include allegations that

describe Defendant’s acts or omissions that may rise to a level

beyond negligence. We therefore dismiss the request for

punitive damages without prejudice.

III. Motion to Strike

Defendant moves to strike Plaintiffs allegations pleading a

class action.

A. Standard for Motion to Strike Class Allegations

Pursuant to Federal Rule of Civil Procedure 12(f), “[t]he

court may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” As

it relates to class allegations, “[a]t an early practicable time

after a person sues or is sued as a class representative, the

court must determine by order whether to certify the action as a

class action.” Fed. R. Civ. P. 23(c)(1)(A). But, “[a]s a

practical matter, the court’s [decision] usually should be

predicated on more information than the complaint itself affords

. . . [and] courts frequently have ruled that discovery

relating to the issue whether a class action is appropriate

needs to be undertaken before deciding whether to allow the

action to proceed on a class basis.” Oravsky v. Encompass Ins.

Co., 804 F.Supp.2d 228, 240-41 (D.N.J. Apr. 28, 2011) (citing 5C

Wright, Miller & Kane, Federal Practice & Procedure Civil 3d §

1785.3 (explaining that the practice employed in the

overwhelming majority of class actions is to resolve class

certification only after an appropriate period of discovery)).

Thus, “dismissal of class certification allegations should

be ordered only ‘in those rare cases where the complaint itself

demonstrates that the requirements for maintaining a class

action cannot be met.’” S. Broward Hosp. Dist. v. MedQuist,

Inc., 516 F.Supp.2d 370, 401 (D.N.J. Mar. 30, 2007) (quoting

Clark v. McDonald's Corp., 213 F.R.D. 198, 205 n.3 (D.N.J. Mar.

3, 2003)). Further, “the better course is to deny [a motion to

strike class allegations] because ‘the shape and form of a class

action evolves only through the process of discovery.’” Id. at

401-02 (citations omitted).

B. Plaintiffs’ Class Allegations

Plaintiffs describe two classes, the New Jersey Parent

Class and New Jersey Student Class. (ECF 1 at 6). Plaintiffs

include in these respective classes the parents and legal

guardians of students in New Jersey school districts that

ingested Guida-Seibert contaminated milk and the students that

ingested the contaminated milk. (Id.) While the Plaintiffs

named in the complaint are all parents of children and children

in the Camden City School District, Plaintiffs extend the class

to “other such school districts within the State of New Jersey

as discovery may reveal.” (Id.).

Plaintiffs assert that their proposed class has numerosity,

and that the members “could clearly range from the hundreds to

the thousands.” (ECF 1 at 7). Plaintiffs admit that they “do

not know, at present, how many of the students within the Camden

City School District ingested the contaminated milk, nor whether

any schools from other districts were similarly affected.”

(Id.). As for Plaintiffs’ Brief in Opposition to the Motion to

Strike, they have clarified that “[t]he number of children

affected was not ‘huge’—believed at this time to be no more than

100.” (ECF 21 at 5).

Plaintiffs allege that common questions predominate,

specifically (1) whether defendant carelessly, recklessly, or

negligently introduced a contaminant into its milk, (2) whether

such contamination proximately caused harm to class members, and

(3) the proper measure of damages. (ECF 1 at 7).

Plaintiffs assert that their claims are typical of the

class, as all of the Plaintiff-parents are parents of children

who ingested Defendant’s contaminated milk, and all of the

Plaintiff-children ingested Defendant’s contaminated milk. (Id.

at 8)

Plaintiffs aver that they “will fairly and adequately

protect and represent the interest of the Classes” and that they

“are represented by counsel who are experienced and competent.”

(Id.).

Finally, Plaintiffs allege that a class action is a

superior method for the fair and efficient adjudication of the

instant controversy because it is efficient and avoids

unnecessary duplication of evidence, effort, and expense.

(Id.). They assert that permitting the suit to proceed as a

class action provides those injured “with a method for obtaining

redress on claims that might not be practicable to pursue

individually.” (Id.).

Because we are dismissing all of the claims brought by the

parents as individuals, the following discussion of the class

allegations refers only to the student class.

C. Predominance and Superiority

Defendant argues that the nature of Plaintiffs’ personal

injury allegations will require an individualized analysis.

(ECF 11-1 at 16–22). Defendant points to chemical exposure

cases in support of this argument, which require inquiry into

the duration of chemical exposure, the nature of the exposure,

pre-existing conditions, and other individual factors. (Id. at

16–22). Plaintiffs respond that the circumstances here are

distinct from other chemical exposure cases. (ECF 21 at 6).

For example, unlike other cases involving dangerous chemicals,

the levels of exposure here are much more consistent; none of

the children are believed to have consumed more than, at most, a

single, half-pint carton of the tainted milk.” (Id.).

Resolution of the question of predominance and superiority

requires consideration of the facts of this case. Thus, this is

not one of “those rare cases where the complaint itself

demonstrates that the requirements for maintaining a class

action cannot be met.” S. Broward Hosp. Dist., 516 F.Supp.2d at

401 (quoting Clark, 213 F.R.D. at 205 n.3). Rather, discovery

will inform the issue of predominance. We find that striking

the class allegations at this stage on these grounds is

premature.

D. Fail-Safe

Defendant next urges that this Court should strike the

class allegations because Plaintiffs’ class description is a

fail-safe class. (ECF 11-1 at 22). Defendant explains that

defining the class as students who ingested Defendant’s milk

“and who experienced physical symptoms or illness therefrom”

requires a showing of causation for inclusion in the class.

(ECF 11-1 at 23). They assert that “were [Guida-Seibert]

successful in proving that consumption of the Product caused no

injury, such a verdict would have no preclusive effect.” (ECF

11-1 at 23–24). Plaintiffs argue that the class is not “fail-

safe,” but instead the class is ascertainable through “objective

criteria.” (ECF 21 at 8). Moreover, Plaintiffs assert that

“[i]n the event that the Court does find that Plaintiffs’ class

definitions are ‘fail-safe’ classes, then Plaintiffs ought to be

permitted to make whatever grammatical adjustments are necessary

to bring their class definitions in line with this rule.” (ECF

21 at 9).

“A fail-safe class is ‘one that is defined so that whether

a person qualifies as a member depends on whether the person has

a valid claim.’” Landy v. Nat. Power Sources, LLC, No. 21-

00425, 2022 WL 797967, at *4 (D.N.J. Mar. 16, 2022) (quoting

Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th

Cir. 2012)). We note that “[t]he Third Circuit has not yet

determined that a fail-safe class is impermissible.” Id. That

said, the issue with a “fail-safe” class definition is that “a

class member either wins or, by virtue of losing, is defined out

of the class and is therefore not bound by the judgment.” Id.

(quoting Messner, 669 F.3d at 825). This undermines the

preclusive effect of a class action. Id. (quoting Zarichny v.

Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610, 624

(E.D. Pa. 2015) (“Further, ‘such a class impermissibly skirts

the bar of res judicata.’”).

While a Court may strike class allegations based on a fail-

safe definition, the Court may also provide Plaintiffs with an

opportunity to amend the class description. Martinez v. TD Bank

USA, N.A., No. 15-7712, 2017 WL 2829601, at *12 (D.N.J. June 30,

2017) (striking class allegations based on a fail-safe

description where “[n]o amount of additional class discovery

will alter that conclusion”); Grubb v. Green Tree Servicing,

LLC, No. 13-07421, 2017 WL 3191521, at *14 (D.N.J. July 27,

2017) (“Although ‘fail-safe’ classes are generally denied

certification on these grounds, some courts, nevertheless, have

allowed plaintiffs to amend their proposed class definition so

that they are legally sufficient.”); Merino v. Wells Fargo &

Co., No. 16-7840, 2017 WL 3908670, at *6 (D.N.J. Sept. 6, 2017)

(quoting Messner v. Northshore Univ. HealthSystem, 669 F.3d 802,

825 (7th Cir. 2012)) (“Defining a class so as to avoid, on one

hand, being over-inclusive and, on the other hand, the fail-safe

problem is more of an art than a science. Either problem can and

often should be solved by refining the class definition rather

than by flatly denying class certification on that basis.”).

Moreover, Courts have also explained that determination of

whether a class definition is fail-safe is better left to the

class certification stage, rather than decision on a motion to

strike. Merino, 2017 WL 3908670, at *6 (declining to strike the

class allegations and reserving the question for the class

certification stage). In their motion to certify class,

Plaintiffs may refine their class description. Carney v.

Goldman, No. 15-00260, 2018 WL 2441766, at *10 (D.N.J. May 30,

2018) (quoting Kalow & Springut, LLP v. Commence Corp., 272

F.R.D. 397, 402 (D.N.J. 2011), on reconsideration in part, No.

07–3442, 2011 WL 3625853 (D.N.J. Aug. 15, 2011)) (“Plaintiff[s]

[are] not bound by the class definitions proposed in [their]

Amended Complaint, and the Court can consider Plaintiff[s’]

revised definitions, albeit those revisions [being] made in

[their] motion for class certification.”).

Assuming without deciding that the current class definition

is fail-safe, we refuse to strike the class allegations on these

grounds. At this stage, we are not convinced that no amount of

class discovery could permit Plaintiffs to refine their

definition so as to not be fail-safe. As such, it is not

appropriate to strike the class allegations as fail-safe at this

time. Plaintiffs may be able to refine their class definition.

Under the facts of this case, analysis of this question is best

left to the class certification stage. See Merino, 2017 WL

3908670, at *6. Defendant may raise this argument at the class

certification stage.

E. Rules Enabling Act

Defendant argues that this Court should strike the class

allegations based on the Rules Enabling Act. (ECF 11-1 at 26).

Defendant claims that New Jersey law conflicts with Federal Rule

of Civil Procedure 17(c), abridging the rights of the minor

children in this action and enlarging the rights of the parents.

(Id. at 31). Defendant explains that Federal Rule of Civil

Procedure 17(c) permits “a general guardian” to file suit on

behalf of a minor. (Id. at 26). Defendant notes that under New

Jersey law “a parent of a minor may be appointed guardian ad

litem without court order ‘upon the filing of a pleading or

certificate signed by an attorney stating the parental

relationship, the child’s status, and, if a minor, the age, the

parent’s consent to act as guardian ad litem and the absence of

a conflict of interest between parent and child.’” (Id. at 28

(quoting N.J. Ct. R. 4:26-2(b)(1)).

Defendant’s argument relies on a mischaracterization of the

New Jersey Court rule. The full section of the rule that

Defendant cites states:

Appointment of Parent in Negligence Actions.

In negligence actions, unless the court

otherwise directs, a parent of a minor shall

be deemed to be appointed guardian ad litem

of the child without court order upon the

filing of a pleading or certification signed

by an attorney stating the parental

relationship; the child’s status and age;

the parent’s consent to act as guardian ad

litem; and the absence of a conflict of

interest between parent and child.

N.J. Ct. R. 4:26-2(b)(1). While Defendant’s characterization

suggests that a parent may be appointed, the Court rule states

that the parent shall be deemed appointed. This distinction

undercuts Defendant’s argument. Both Federal Rule of Civil

Procedure 7 and New Jersey Court Rule 4:26-2 permit a parent to

file suit on behalf of their child. Thus, these parents filing

on behalf of their children does not violate the Rules Enabling

Act as their rights are not enlarged nor are the minors’ rights

abridged.

In addition to whether a parent can bring a claim on behalf

of their child, Defendant also points to New Jersey Court Rule

4:44-3, which requires a court in cases involving minors to

“determine whether the settlement is fair and reasonable as to

its amount and terms.” (ECF 11-1 at 29). The Court must also

undertake an analysis of whether the settlement is fair and

reasonable pursuant to the Federal Rule of Civil Procedure

regarding class action settlements, which requires that “[i]f

the proposal would bind class members, the court may approve it

only after a hearing and only on finding that it is fair,

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). To the

extent that Defendant’s argument here is that the Court will not

be able to assess the fairness and reasonableness without an

individualized assessment of each plaintiff, such argument

relies on the specific facts of this case and as such this Court

will permit class discovery before deciding this point.

Although we have concluded that Defendant’s argument that

class certification violates the Rules Enabling Act is unfounded

based on the text of the New Jersey and Federal Rules, we now

also address the caselaw that Defendant cites.

Defendant relies on a Michigan case and comparison to

Michigan law in support of its analysis that class certification

violates the Rules Enabling Act. (ECF 11-1 at 29). In support

of its persuasiveness, Defendant argues that “like New Jersey,

Michigan required individual scrutiny on a parent’s ability to

bring and settle claims on behalf of his or her minor child.”

(Id.). However, New Jersey Court Rule 4:26-2 presumes that a

guardian may bring a suit on behalf of their child unless the

Court otherwise states. This is distinct from the Michigan law

where “not even parents may bring a minor’s claim on the minor’s

behalf without a court first formally appointing the parent as

the minor’s representative.” In re Flint Water Cases, 558 F.

Supp. 3d 459, 494 (E.D. Mich. 2021). Michigan law is also

stricter than New Jersey in its approval of personal injury

settlements for minors. While New Jersey law requires the Court

to determine that “the settlement is fair and reasonable as to

its amount and terms” New Jersey Court Rule 4:44-3, Michigan law

specifies that in making such determination “[f]or a claim for

damages due to personal injury, the minor ‘shall appear in court

personally to allow the judge an opportunity to observe the

nature of the injury unless, for good cause, the judge excuses

the minor’s [ ] presence.’ Mich. Ct. R. 2.420(B)(1).” In re

Flint Water Cases, 558 F. Supp. 3d 459, 494 (E.D. Mich. 2021).

Defendant has not pointed to any such requirement in New Jersey

nor is the Court aware of any.

The New Jersey cases that Defendant cites discuss a

parent’s ability to release claims on behalf of their child or

settle claims on behalf of their child without court approval.

Colfer v. Royal Globe Ins. Co., 519 A.2d 893, 894 (N.J. Super.

App. Div. 1986) (holding that a settlement of a UMI claim made

by parents on behalf of a minor child was not binding on the

child where the parents signed a release and indemnity

agreement, but the settlement was not submitted for court

approval); Fitzgerald v. Newark Morning Ledger Co., 267 A.2d

557, 559 (N.J. Super. Law. Div. 1970) (finding a release and

indemnity agreement entered by a parent on behalf of their child

void as against public policy as “[t]he agreement placed the

father’s personal interest in a position antagonistic to his

duty toward the infant.”); Hojnowski v. Vans Skate Park, 901

A.2d 381, 389–90 (N.J. 2006) (holding that “a parent’s execution

of a pre-injury release of a minor’s future tort claims arising

out of the use of a commercial recreational facility is

unenforceable.”); Loesch, to Use of Harleysville Mut. Cas. Co.

v. Vassiliades, 86 A.2d 14, 16 (N.J. Super. App. Div. 1952)

(finding an indemnity clause in an out of court settlement

agreement void as against public policy); Cumberland Cnty.

Welfare Bd. v. Rodriquez, 365 A.2d 723, 731 (N.J. Super. Law.

Div. 1976) (denying the welfare board’s request to release

personal injury proceeds held on behalf of a minor child for

future surgery to pay for present expenses for the child or

repay the welfare board).

Each of these cases are distinct from the procedural

posture here. The rule underlying each of these cases is that

under New Jersey Law “[n]o binding compromise or settlement of

the claim or cause of action of an infant may be made, even by a

judicially appointed guardian, except by leave of court.”

Loesch, to Use of Harleysville Mut. Cas. Co., 86 A.2d at 15

(quoting Rubin v. Trowbridge Sign Co., 99 N.J.L. 216, 122 A. 763

(E. & A. 1923)). However, unlike each of Defendant’s examples,

here there is Court oversight.

Consistent with the New Jersey caselaw that Defendant

cites, this Court has the authority to comply with the

requirements of the New Jersey Court rules requiring judicial

approval of settlements on behalf of minor children. While we

will not strike the class allegations on these grounds at this

time, the Court acknowledges that there are public policy

considerations here that relate to binding a minor to a

settlement.1 Thus, the Court reserves final determination of

whether this will pose an issue with respect to certification of

the class, with consideration of the predominance or superiority

requirements of a class action, at the class certification

stage.

CONCLUSION

For the reasons expressed above, Defendant’s Partial Motion

to Dismiss the complaint will be granted and Defendant’s motion

to strike will be denied. The Negligence (Count One) and

Negligent Infliction of Emotional Distress (Count Three) claims

will be hereby dismissed against all defendants. The New Jersey

Products Liability Act claim (Count Two) on behalf of the

1 We note that certain concerns are alleviated by the dismissal

of the parents’ individual claims, as this alleviates concern of

conflict between parents’ individual interests in the litigation

and the minors’ interests.

parents in their individual capacities will be dismissed. The

New Jersey Products Liability Act claim (Count Two) brought on

behalf of the minor children will proceed as the only remaining

claim.

An appropriate order will be entered.

Date: February 21, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.