Renzi v. Demilec (USA) LLC et al

Filing 113

OPINION AND ORDER granting in part and denying in part 55 Motion for Partial Summary Judgment. Signed by Judge Kenneth A. Marra on 12/9/2013. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80516-CIV-MARRA/MATTHEWMAN
LUCILLE RENZI,
individually and on behalf of all others
similarly situated,
Plaintiff,
vs.
DEMILEC (USA) LLC et al.,
Defendants.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant Demilec (USA) LLC’s (“Defendant”)
Motion for Partial Judgment for Lack of Standing (DE 55). The motion is fully briefed and ripe
for review. The Court has carefully considered the motion and is otherwise fully advised in the
premises.
I. Background
On May 14, 2012, Plaintiff Lucille Renzi (“Plaintiff”) filed a seven-count class action
complaint. Count four of the complaint is labeled “violation of consumer protection acts.”
(Compl., DE 1.) Paragraph 102 of the Complaint states:
This is a claim for relief under Florida Statutes § 501.201, et seq., the Florida Deceptive and
Unfair Trade Practices Act (“FDUTPA”) as well as the various Consumer Protection Acts
of the jurisdictions in which affected properties of Class Members are present, including but
not limited to, L.SA-R.S. 51:1401, et seq. (Louisiana Unfair Trade Practices and Consumer
Protection Law); Ala. Code 1975 § 8-19-1, et seq. (Alabama Deceptive Trade Practices Act);
N.C.G.S. § 75-1.1, et seq. (North Carolina Consumer- Protection Act); O.C.G.A. § 10-1-390,
et seq. (The Georgia Fair Business Practices Act of 1975); Va. Code. Ann. § 59.1- 196, et
seq. (Virginia Consumer Protection Act); Tex. Bus. Com. Code Ann. § 17.41, et seq. (Texas
Deceptive Trade Practices-Consumer Protection Act); and Miss. Code Ann. § 75-24-1, et

seq. (Mississippi Consumer Protection Act).
Within the Complaint, Plaintiff alleges various injuries on her behalf and on behalf of a class
related to allegedly defective spray foam installed in her home.1 (Compl. ¶ ¶ 14-33.) The Complaint
identifies “three Florida subclasses” in the class allegations. (Compl. ¶ 41.) Plaintiff is a resident
of Boynton Beach, Florida. (Compl. ¶ 6.) Defendant set forth the following affirmative defense:
Plaintiff and/or putative members’ claims under the various states’ consumer protection laws
are barred, in whole or in part, to the extent that Plaintiff and/or members of the proposed
classes are not citizens of the states pursuant to whose laws they seek to bring claims, and
thus lack standing to maintain some or all of those causes of actions.
(Affirmative defense 76, DE 18.)
Defendant moves for summary judgment on count four of the Complaint on the basis of
standing because Plaintiff asserts violations of various consumer protection acts of different
states. According to Defendant, because she is not a resident of those states, she does not have
standing to bring those claims.
II. Summary Judgment Standard
The Court may grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The stringent burden of establishing the absence of a genuine issue of material
fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court
should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be resolved
against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
1

On June 6, 2013, the Judicial Panel on Multidistrict Litigation denied transfer of this
action to MDL No. 2444. (DE 88.)
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The movant “bears the initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge this
burden, the movant must point out to the Court that there is an absence of evidence to support the
nonmoving party’s case. Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production shifts and
the nonmoving party “must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record . . . or showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) and (B).
Essentially, so long as the non-moving party has had an ample opportunity to conduct
discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477
U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the nonmoving party “is merely colorable, or is not significantly probative, then summary judgment may
be granted.” Anderson, 477 U.S. 242, 249-50.

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III. Discussion
It is well-established that courts have an independent obligation to ensure that standing
exists. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). Article III grants
federal courts judicial power to decide only cases and controversies. Allen v. Wright, 468 U.S.
737 (1984). The constitutionally minimum requirements for standing are (1) the plaintiff must
have suffered, or must face an imminent and not merely hypothetical prospect of suffering, an
invasion of a legally protected interest resulting in a “concrete and particularized” injury; (2) the
injury must have been caused by the defendant's complained-of actions and (3) the plaintiff's
injury or threat of injury must likely be redressible by a favorable court decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
With respect to standing in a class action, the Eleventh Circuit has stated the following:
Any analysis of class certification must begin with the issue of standing. Only after the court
determines the issues for which the named plaintiffs have standing should it address the
question whether the named plaintiffs have representative capacity, as defined by Rule 23(a),
to assert the rights of others. It is not enough that a named plaintiff can establish a case or
controversy between himself and the defendant by virtue of having standing as to one of
many claims he wishes to assert. Rather, each claim must be analyzed separately, and a claim
cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the
injury that gives rise to that claim.
Prado-Steinman ex rel. Prado v. Bush, 221 F.3d 1266, 1280 (11th Cir. 2000) (internal citations
and quotation marks omitted).
Furthermore, with respect to state statutory claims, “there must be a named plaintiff with
constitutional standing to assert each particular claim.” In re Checking Account Overdraft
Litigation, 694 F. Supp. 2d 1302, 1324 (S.D. Fla. 2010) (dismissing state statutory claims where
no named plaintiff resides in the state from which the claim is asserted). “Plaintiffs may only

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assert a state statutory claim if a named plaintiff resides in that state.” Id. at 1325. Here, Plaintiff
is a resident of Florida who had the allegedly defective spray foam installed in her Florida home
and suffered injuries. (Compl. ¶ ¶ 6, 14-33.) Plaintiff does not, therefore, have standing under
other state consumer protection acts.
Plaintiff, however, argues that “class certification issues are dispositive and . . . it is
appropriate to reach those before Article III standing concerns.” (Resp. at 3.) In making this
argument, Plaintiff relies on Amchem Products v. Windsor, 521 U.S. 591 (1997), an asbestos
class action case. There, the defendants challenged the plaintiffs’ Article III standing but the
United States Supreme Court held that the class certification issues were “dispositive” and
“logically antecedent” to the standing issues in the case. Id. at 612. The Court does not read
Amchem as requiring Article III standing issues to be delayed in all cases until after class
certification. Indeed, numerous courts have distinguished Amchem as being limited to the
context of global settlements and/or addressing the standing of absent class members, and not
named plaintiffs. See Easter v. Am. West Fin., 381 F.3d 948, 962 (9th Cir. 2004); In re Packaged
Ice Antitrust Litigation, 779 F. Supp. 2d 642, 655 (E.D. Mich. 2011); In re Wellbutrin XL
Antitrust Litigation, 260 F.R.D. 143, 154 (E.D. Pa. 2009); see also Zaycer v. Sturm Foods, Inc.,
896 F. Supp. 2d 399, 406-07 (D. Md. 2012) (standing challenge resolved before class
certification in class action brought under various state’s consumer protection laws).
Thus, the Court does not agree with Plaintiff that she has standing to bring claims
pursuant to other state’s statutes. That stated, the Court finds that Plaintiff, and the Florida
subclass, do have standing to pursue claims under the FDUTPA.
For the foregoing reasons, Defendant’s partial motion for summary judgment is granted
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in part and denied in part. 2
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Demilec (USA)
LLC’s (“Defendant”) Motion for Partial Judgment for Lack of Standing (DE 55) is GRANTED
IN PART AND DENIED IN PART.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 9th day of December, 2013.
______________________________________
KENNETH A. MARRA
United States District Judge

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The Court will not address Defendant’s contention that Plaintiff cannot remedy her
failure through the amendment of the pleadings. Until Plaintiff moves for amendment, the issue
is not before the Court.
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