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By Mike Curley

Law360 (December 5, 2018, 2:22 PM EST) — A California federal judge has found that the makers and distributors of NutriBullet must face a suit alleging a blender injured a New Zealand woman in California court, ruling that the companies did not demonstrate a need to have the case dismissed.

U.S. District Judge Dean D. Pregerson on Tuesday told NutriBullet LLC and other California companies named in the suit that because the bulk of the factors in deciding on the forum are neutral and deference is given to plaintiff Elizabeth Flack’s choice of court, there’s no reason to dismiss the suit in favor of resolution in New Zealand.

According to the opinion, Flack claimed that in July 2016, a NutriBullet blender came apart while she was using it, exposing the blades and resulting in severe cuts to her hand that required a trip to the emergency room. Flack sued NutriBullet and other companies that supply or sell the blenders, as well as Chinese electronics companies who have not yet been served.

NutriBullet moved to dismiss, arguing that the served defendants have consented to jurisdiction in New Zealand and that the country’s products liability law provides a remedy to Flack.

Flack argued that the Chinese parties have not yet consented and that New Zealand has “no fault” laws backed by a government insurance company, meaning she would have no forum at all for her suit there.

The judge wrote that when there are unserved defendants, the court only needs to consider the ones it currently has jurisdiction over, therefore, all the defendants who entered an appearance have given consent.

Judge Pregerson further ruled that while New Zealand’s laws may not provide a judicial remedy, they do provide an administrative remedy. He wrote that only a remedy that is no remedy at all would be considered inadequate when deciding the forum.

Regarding Flack’s choice of forum, while the judge agreed with NutriBullet’s argument that a foreign plaintiff gets less deference, he said that does not translate into no deference. Judge Pregerson wrote that Flack’s choice — NutriBullet and the other companies’ home territory — lessens any concerns about forum shopping, making her choice neutral.

Flack has argued that she and her witnesses can appear in California, while the defendants argued they would have no trouble appearing in New Zealand, the judge wrote. In addition, each has focused its arguments on evidence available in their chosen forum — NutriBullet focusing on evidence of Flack’s injury, while Flack focusing on evidence of the alleged wrongdoing of making, selling and marketing the product.

“In short, evidence of plaintiff’s alleged harm is in New Zealand and evidence of defendants’ alleged wrongdoings are in Los Angeles,” Judge Pregerson wrote.

Being that the physical evidence involved is privately owned and can be transported to either forum, Judge Pregerson found this, too, was neutral.

Local interest in the suit weighs against dismissal, the judge wrote, saying that California courts have a “significant interest” in deciding suits against resident corporations whose alleged conduct affects those in other jurisdictions. He added the court is already handling 17 other cases involving NutriBullet and is familiar with the subject matter.

“We thank the court for the consideration it gave our motion and arguments,” Boris Treyzon of Abir Cohen Treyzon Salo LLP, representing Flack, told Law360 on Wednesday. “We are gratified that our client will now be able to expeditiously proceed with resolution of her injury and obtain appropriate medical care she so urgently needs.”

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