Wolfpen II Planned Community Homeowners Association, Inc. v. Atlas Roofing Corporation

Filing 65

OPINION AND ORDER denying Motion to Certify Class (298) in case 1:13-md-02495-TWT and (60) in case 1:13-cv-04208-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/8/2017. Associated Cases: 1:13-md-02495-TWT, 1:13-cv-04208-TWT(jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE ATLAS ROOFING
MDL DOCKET NO. 2495
CORPORATION CHALET SHINGLE 1:13-md-2495-TWT
PRODUCTS LIABILITY
LITIGATION
WOLFPEN II PLANNED
COMMUNITY HOMEOWNERS
ASSOCIATION, INC., on behalf of
themselves and all others similarly
situated,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-4208-TWT

ATLAS ROOFING CORPORATION,
Defendant.

OPINION AND ORDER

This is a multi-district class action arising out of the marketing and sale of
allegedly defective roofing shingles. It is before the Court on the Plaintiff Wolfpen II
Planned Community Homeowners Association, Inc.’s Motion for Class Certification
[Doc. 60]. For the reasons set forth below, the Plaintiff’s Motion for Class
Certification [Doc. 60] is DENIED.

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I. Background
The Plaintiff and putative class members are owners of Atlas Chalet and
Stratford Shingles (“Shingles”).1 The Defendant Atlas Roofing Corporation (“Atlas”)
designed, manufactured, and sold the Shingles.2 Atlas represented and continues to
represent that the Shingles are durable, reliable, free from defects, and compliant with
industry standards and building codes.3 The Plaintiff alleges that the Shingles were
defective at the time of sale due to a flaw in the manufacturing process.4 Specifically,
the manufacturing process “permits moisture to intrude [into the Shingle] creating a
gas bubble that permits blistering and cracking.”5 The Plaintiff further alleges that

1

It should be noted that – for purposes of this lawsuit – Chalet/Stratford
Shingles are indistinguishable. See Primary Mot. for Class Cert. [Doc. 57], Ex. Tab
14, Thomas Dep., at 35 under No. 13-cv-02195-TWT. The differences between the
two Shingles relate to aesthetics, not design. Id.
2

Am. Compl. ¶ 2.

3

Id.

4

Id. ¶ 3. In support of its argument regarding the alleged defects in the
Shingles, the Plaintiff relies on the expert testimony of both Dean Rutila and Anthony
Mattina. In Dishman v. Atlas Roofing Corp., the Defendant filed a Daubert motion
challenging the admissibility of both Rutila’s and Mattina’s testimony. See Def.’s
Primary Resp. Br. [Doc. 59] under No. 1:13-cv-02195-TWT. The Defendant
incorporates by reference the Defendant’s Response Brief in Dishman v. Atlas
Roofing Corp. See Def.’s Resp. Br., at 3.
5

Am. Compl. ¶ 12.

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despite Atlas’s knowledge of the defect, Atlas did nothing to correct the defective
design and continued to market and warrant the Shingles as durable.6
Atlas provided four different limited warranties throughout the eleven-year
class period.7 The initial limited warranty was a twenty-five-year warranty, and it
provided that the Shingles were “free from manufacturing defects, which would
reduce the useful life of the product.”8 The warranty was transferrable to future
property owners.9 On January 1, 2002, Atlas began issuing thirty-year limited
warranties.10 The thirty-year warranty provided that the Shingles were “free from
manufacturing defects, which results in leaks.”11 Atlas also limited the number of
transfers of the warranty. For the thirty-year warranty, the coverage could only be
transferred once and the second owner had to provide Atlas notice of the transfer of
coverage.12
6

Id. ¶ 16.

7

See Primary Mot. for Class Cert., Exs. Tab 23-26. The Plaintiff
incorporates by reference the background section of the Plaintiffs’ Motion for Class
Certification in Dishman v. Atlas Roofing Corp. See Mot. for Class Cert., at 3.
8

See Primary Mot. for Class Cert., Ex. Tab 23.

9

Id.

10

Id.

11

Id., Exs. Tab 24-26.

12

Id.

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The named Plaintiff Wolfpen II Planned Community Homeowners Association,
Inc. (“Wolfpen HOA”) consists of all record homeowners in the Wolfpen II Planned
Community, which is located in Hendersonville, North Carolina.13 Construction of the
Community lasted multiple years and finished in approximately 2007.14 The Shingles
were installed during the Community’s construction.15 In 2012, after observing
blistering, cracking, and granule loss on the Shingles, the Wolfpen HOA filed a
warranty claim with Atlas, seeking the replacement of the Shingles.16 Ultimately,
Atlas agreed to pay only a portion of the replacement cost for two roofs in the
Community.17
On July 23, 2013, the Plaintiff filed suit in the United States District Court for
the Western District of North Carolina18 on behalf of itself and others similarly

13

Am. Compl. ¶ 20.

14

Mot. for Class Cert, Ex. Tab 1, at 10.

15

Id., Ex. Tab 1, at 51-52.

16

Id., Ex. Tab 2, at 24-25, 37.

17

Id., Ex. Tab 2, at 38, 41.

18

“[I]n multidistrict litigation under 28 U.S.C. § 1407, the transferee court
applies the state law that the transferor court would have applied.” In re Conagra
Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689, 693 (N.D. Ga. 2008); see also In
re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055
(8th Cir. 1996) (“When considering questions of state law, however, the transferee
court must apply the state law that would have applied to the individual cases had they
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situated in the state of North Carolina.19 It seeks to bring its suit as a class action.
Because similar consumer class actions were filed in several other states, the Judicial
Panel on Multidistrict Litigation transferred all related class actions pending in federal
court to this Court for coordinated or consolidated pretrial proceedings.20
After the Motion to Dismiss stage, the Plaintiff’s remaining claims in this class
action are for Breach of Express Warranty (Count I) and Breach of Implied Warranties
of Merchantability and Fitness for a Particular Purpose (Count II).21 The Plaintiff
seeks both damages and equitable relief.22 As damages, the Plaintiff seeks the cost of
replacing the Shingles. It proposes two methods for calculating the replacement costs.
First, it states that a common formula that calculates replacement costs on a square
foot basis could be employed, allowing class members to recover by merely showing
the size of their roofs.23 This method accounts for the fact that “each class member’s

not been transferred for consolidation.”). Here, both parties agree that North Carolina
law governs the Plaintiff’s state law claims.
19

See [Doc. 1] under No. 1:13-cv-04208-TWT.

20

See Transfer Order [Doc. 1] under No. 1:13-md-02495-TWT.

21

See Order granting in part and denying in part the Defendant’s Motion
to Dismiss [Doc. 56] under No. 1:13-cv-04208-TWT.
22

The Plaintiff’s request for declaratory relief was labeled Count V.

23

See Primary Mot. for Class Cert., Ex. Tab 21, at 7 (stating that “[s]hingle
replacement for most homes will cost $2.85 to $3.35 per square feet of roof area, with
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damages are the expense of removing and discarding the defective shingles, including
the cost of the replacement shingles plus all associated labor costs.”24 In the
alternative, the Plaintiff proposes that individual class members can prove their actual
replacement costs through a claims process.25
II. Class Certification Standard
To maintain a case as a class action, the party seeking class certification must
satisfy each of the prerequisites of Rule 23(a) and at least one of the provisions of
Rule 23(b).26 Rule 23(a) sets forth the four prerequisites to maintain any claim as a
class action:
One or more members of a class may sue or be sued as representative
parties on behalf of all members only if: (1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests of
the class.27

this square foot cost modified up or down based on a standard location adjustment
factors that account for variations in local labor and material costs.”).
24

Mot. for Class Cert., at 21.

25

Id.

26

Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004), abrogated
in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639
(2008).
27

FED. R. CIV. P. 23(a).

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These prerequisites are commonly referred to as: (1) numerosity, (2) commonality, (3)
typicality, and (4) adequacy of representation.28 Failure to establish any one of the
four factors precludes certification. In addition, under Rule 23(b), the individual
plaintiffs must convince the Court that: (1) prosecuting separate actions by or against
individual members of the class would create a risk of prejudice to the party opposing
the class or to those members of the class not parties to the subject litigation; (2) the
party opposing the class has refused to act on grounds that apply generally to the class,
necessitating final injunctive or declaratory relief; or (3) questions of law or fact
common to the members of the class predominate over any questions affecting only
individual members and that a class action is superior to other available methods for
fair and efficient adjudication of the controversy.29

The party seeking class

certification bears the burden of proving that these requirements are satisfied.30

28

Cooper v. Southern Co., 390 F.3d 695, 711 n.6 (11th Cir. 2004),
overruled in part on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58
(2006).
29

FED. R. CIV. P. 23(b).

30

General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Valley
Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003).
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The decision to grant or deny class certification lies within the sound discretion
of the district court.31 When considering the propriety of class certification, the court
should not conduct a detailed evaluation of the merits of the suit.32 Nevertheless, the
court must perform a “rigorous analysis” of the particular facts and arguments asserted
in support of class certification.33 Frequently, that “rigorous analysis” will entail some
overlap with the merits of the plaintiff’s underlying claim.34
III. Discussion
A. Standing
Atlas contends that the Plaintiff lacks standing. Under the North Carolina law,
homeowners’ associations may have standing to bring a suit on behalf of its
members.35 But – here – the Plaintiff does not seek to bring the suit solely on behalf

31

Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
32

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).

33

Falcon, 457 U.S. at 161; Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th

Cir. 1984).
34

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-52 (2011).

35

See Creek Pointe Homeowner’s Ass’n, Inc. v. Happ, 146 N.C. App. 159,
164 (2001) (holding that the “NCPCA does not automatically confer standing upon
homeowners’ associations in every case, and that questions of standing should be
resolved by our courts in the context of the specific factual circumstances presented
and with reference to the ‘principles of law and equity as well as other North Carolina
statutes’ that supplement the NCPCA.”).
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of its members. The Plaintiff is bringing suit on behalf of itself as well. To bring a
case on its own behalf, the Plaintiff needs to demonstrate that it has met the
“irreducible constitutional minimum” standard.36 In particular, a plaintiff must show
that:
(1) it has suffered an injury in fact that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical; (2) the injury
is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.37
The Court finds that the Plaintiff has established standing. The Wolfpen HOA’s
Declaration of Covenants gives it the power to “[i]nstitute, defend, or intervene in its
own name in litigation or administrative proceedings on matters affecting the planned
community.”38 The Shingles’ alleged deterioration affects the Wolfpen HOA, because
– based on the Declaration of Covenants – the community buildings’ exteriors are
“common elements” owned by the Wolfpen HOA.39 Thus, it is responsible for the

36

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 (1998)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
37

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180-81 (2000).
38

Pl.’s Reply Br., Ex. Tab 1, at 18 (Section 9.3(4)).

39

Id., Ex. Tab 1, at 11 (Section 5.1(b)).

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maintenance and upkeep of the exteriors, including the roofs.40 It is clear, therefore,
that the Plaintiff has alleged an injury in fact. And this alleged injury in fact is causally
connected to Atlas’s alleged actions – the design, manufacturer, and sale of the
purportedly defective Shingles. Finally, a favorable verdict would obviously redress
the Plaintiff’s alleged injury.
In response, Atlas contends that the Plaintiff does not have standing to assert
any claims based on damage to the underlying structures or interiors. The underlying
structures or interiors are owned by the individual homeowners.41 Thus, if the Plaintiff
was to assert any claims based on the underlying structures or interiors, it would need
to do so through associational standing. And because a claim based on the underlying
structures or interiors would require individualized proof, the Plaintiff does not have
associational standing. The Court agrees. “An organization generally lacks standing
to sue for money damages on behalf of its members if the damage claims are not
common to the entire membership, nor shared equally, so that the fact and extent of
injury would require individualized proof.”42 Because damage to the underlying

40

Id., Ex. Tab 1, at 25 (Section 13.1(a)).

41

See Def.’s Resp. Br., Ex. B, at 43-45; Pl.’s Reply Br., Ex. Tab 1, at 26
(Section 13.3).
42

Creek Pointe Homeowner’s Ass’n, Inc. v. Happ, 146 N.C. App. 159, 167

(2001).
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structures or interiors would vary among the association members, making
individualized proof necessary, the Plaintiff lacks associational standing to assert a
claim based on the underlying structures and interiors.
The Plaintiff counters by arguing that it would actually be responsible for the
costs of repairing the units’ underlying structures or interiors. It argues “that by nature
of its obligation to repair, replace and maintain the roofs in the community, it is
likewise responsible for any damages caused to the interior of a unit directly caused
by failure of any roof in the community.”43 The Court, however, is unconvinced that
the Plaintiff is automatically liable for any damage to the interior of the units caused
by a roof’s failure. First, the Plaintiff fails to cite to any section in the Declaration of
Covenants that demonstrates it is automatically liable. Second, two association
members testified that, depending on the individual circumstances, it may be the
responsibility of the association member – not the Wolfpen HOA – to pay for the
damages.44 Thus, it does not appear that the Plaintiff is automatically injured via
damage to the interior of the units, meaning it cannot assert those injuries on its own
behalf. As a result, the Court finds that the Plaintiff has standing to assert claims in

43

Pl.’s Reply Br., at 5.

44

See Def.’s Resp. Br., Ex. B, at 43-45; Ex. J, at 73-76.

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relation to damages to the exterior portion of the Wolfpen units; but it does not have
standing to assert any claims based on damages to the interior of the units.
B. Rule 23(b)(3) Class
1. Class Definition
Though not explicitly stated in Rule 23, it is well accepted that “[b]efore a
district court may grant a motion for class certification, a plaintiff . . . must establish
that the proposed class is adequately defined and clearly ascertainable.”45 “An
identifiable class exists if its members can be ascertained by reference to objective
criteria.”46 The analysis of the objective criteria must be administratively feasible,
meaning identifying class members is a “manageable process that does not require
much, if any, individual inquiry.”47 “A proponent of class certification may rely on the
defendant’s business records to identify prospective class members, but it is not

45

Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)
(quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)); see also
Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 534 (S.D. Fla. 2015) (“The
court may address the adequacy of the class definition before analyzing whether the
proposed class meets the Rule 23 requirements.”).
46

Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782, 787
(11th Cir. 2014) (quoting Fogarazzo v. Lehman Bros., Inc., 263 F.R.D. 90, 97
(S.D.N.Y. 2009)).
47

Id. (quoting NEWBERG ON CLASS ACTIONS § 3.3 (5th ed.)).

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enough to simply allege that the defendant’s records will allow for identification.”48
“[T]he plaintiff must also establish that the records are in fact useful for identification
purposes.”49
Here, the Plaintiff seeks certification of the following Rule 23(b)(3) class:
All those who as of the date class notice is issued: (a) own a home or
other structure in the State of North Carolina on which Atlas Chalet or
Stratford roofing shingles are currently installed; or (b) incurred
unreimbursed costs to repair or replace Atlas Chalet or Stratford roofing
shingles on a home or other structure which they currently own or
previously owned in the State of North Carolina.50
The Defendant raises two objections to the proposed class definition. First, it argues
that the class definition is overly broad. By including current and former owners who
incurred costs in repairing or replacing their roofs, the Defendant contends that the
class definition does not require the owners to have suffered any damage due to an
alleged manufacturing defect. The Defendant also argues that the class is not

48

In re Delta/AirTran Baggage Fee Antitrust Litigation, No. 1:09-md-2089TCB, 2016 WL 3770957, at *4 (N.D. Ga. July 12, 2016) (citation omitted) (citing
Bussey, 562 F. App’x at 787).
49

Id. (quoting Karhu v. Vital Pharm., Inc., 621 F. App’x 945, 947 (11th

Cir. 2015)).
50

Mot. for Class Cert., at 5.

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ascertainable. It contends that determining who qualifies as a member under the
second category would require “mini-trials.”51
The Court agrees with both of the Defendant’s objections. For the Defendant’s
first objection, the Court finds that this issue is better addressed in its predominance
discussion. The Plaintiff alleges that every Shingle is defective, and so the question
becomes whether the former and current owners can prove that the alleged defect
caused their injuries – the replacement or repair costs of their roofs – or were they due
to other causes. This causation question raises concerns regarding individualized
evidence, and thus the Court will address it in the predominance section of its Order.
Still, the Plaintiff has failed to demonstrate that identification of Atlas Chalet/Stratford
Shingles is administratively feasible. The Defendant usually did not sell the Shingles
directly to homeowners. The Plaintiff contends that there are reliable methods for
determining membership, including markings on the Shingles and warranty claims.52
But other than a list of warranty claims made in North Carolina, the Plaintiff has failed
to put forth evidence demonstrating how class members can be easily ascertained.53

51

See Def.’s Primary Resp. Brief, at 42.

52

Mot. for Class Cert., at 6.

53

See In re Delta/AirTran Baggage Fee Antitrust Litigation, 2016 WL
3770957, at *16 (noting that the plaintiffs provided receipts or credit card statements
documenting their purchases in addition to the defendants’ business records).
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The Defendant has offered evidence that most warranty claims were generated by
roofers soliciting business by advertising that the Atlas Shingles were defective. And
the warranty claims only represent a tiny fraction of the homes with Atlas Shingle
roofs. In addition, the Plaintiff does not proffer evidence that demonstrates each
Shingle contains a marking indicating it is an Atlas Chalet or Stratford Shingle. This
potentially means a large number of class members’ Shingles will need to be
individually examined to determine whether they are Chalet/Stratford Shingles. That
is exactly the kind of individual inquiry the ascertainability requirement is meant to
protect against.54 The Plaintiff also does not submit any receipts, invoices, or credit
card records that demonstrate using such records is a viable option for identifying
class members. Merely noting that such records could be used is insufficient to
demonstrate ascertainability.55 In sum, the Court finds that the Plaintiff fails to

54

See Gonzalez v. Corning, 317 F.R.D. 443, 506 (W.D. Pa. 2016) (“Class
members whose structures have Oakridge-brand shingles installed on them cannot be
determined by release tape. At most, the release tape will indicate that the shingle was
manufactured at a plant that produces Oakridge-brand shingles.” (citation omitted)),
appeal docketed, No. 16-2653 (3d Cir. June 2, 2016).
55

See Carrera v. Bayer Corp., 727 F.3d 300, 306-07 (3d Cir. 2013) (“A
plaintiff may not merely propose a method of ascertaining a class without any
evidentiary support that the method will be successful.”); Brooks v. GAF Materials
Corp., 284 F.R.D. 352, 363 (D.S.C. 2012) (finding a putative class was not
ascertainable because the plaintiffs only put forth the defendant’s warranty documents
as a possible database to identify putative class members).
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demonstrate an administratively feasible mechanism for identifying class members in
either category of the class definition.56 Without a clearly ascertainable class, the
Court cannot grant class certification.57 Nevertheless, because the Court’s Order is
subject to immediate appeal under Rule 23(f), the Court will address the requirements
of Rules 23(a) and 23(b)(3) to determine whether the Plaintiff would otherwise be
entitled to class certification.58
2. Rule 23(A)
a. Numerosity
To satisfy the numerosity requirement, the Plaintiff must show that joinder of
all members of the putative class would be “impractical.”59 “Practicability of joinder
depends on many factors, including, for example, the size of the class, ease of
identifying its numbers and determining their addresses, facility of making service on

56

See Marcus v. BMW of North America, LLC, 687 F.3d 583, 593 (3d Cir.
2012) (“If class members are impossible to identify without extensive and
individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.”).
57

See Perez v. Metabolife Intern., Inc., 218 F.R.D. 262, 266 (S.D. Fla.
2003) (“An identifiable class is essential so that the Court can determine whether a
particular claimant is a class member.” (quoting McGuire v. International Paper Co.,
No. 1:92-CV593BRR, 1994 WL 261360, at *3 (S.D. Miss. Feb. 18, 1994))).
58

FED. R. CIV. P. 23(f).

59

FED. R. CIV. P. 23 (a)(1).

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them if joined and their geographic dispersion.”60 “[W]hile there is no fixed
numerosity rule, generally less than twenty-one is inadequate, more than forty
adequate, with numbers between varying according to other factors.”61
The Plaintiff has met its burden with regard to numerosity. It has presented
evidence that, in North Carolina, Atlas has sold 428,836 squares of Shingles.62 Based
on the assumption that there are 30 shingle squares for the average North Carolina
home, the Plaintiff estimates that there are approximately 14,294 homes with the
Shingles installed.63 The Plaintiff, therefore, has presented sufficient evidence that the
likely number of homeowners in North Carolina who fall within the class exceeds the
minimum threshold. Moreover, the large number of putative class members makes
joinder impractical. Thus, the Court finds the numerosity requirement is satisfied.

60

Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986).

61

Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.

1986).
62

See Mot. for Class Cert., Ex. Tab 6.

63

See id., at 8.

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b. Commonality
The commonality requirement is satisfied if the named plaintiff demonstrates
the presence of questions of law or fact common to the entire class.64 It is not
necessary that all questions of law and fact be common.65 Indeed, “[e]ven a single
[common] question” is sufficient to satisfy the commonality requirement.66 But the
issues still must be susceptible to class-wide proof, and the plaintiff’s claims must
share “the same essential characteristics as the claims of the class at large.”67
“Commonality requires the plaintiff to demonstrate that the class members ‘have
suffered the same injury.’”68 “This does not mean merely that they all suffered a
violation of the same provision of law.”69 “Their claims must depend upon a common
contention . . . of such a nature that it is capable of classwide resolution – which

64

FED. R. CIV. P. 23 (a)(2).

65

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011).

66

Id. (alteration in original).

67

Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004).

68

Wal-Mart, 564 U.S. at 349-50 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
69

Id. at 350.

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means that determination of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.”70
Here, the Court finds that the Plaintiff has sufficiently demonstrated
commonality. The Plaintiff alleges that the Shingles suffer from a common defect due
to a flaw in the manufacturing process. Thus, some common issues include: (1)
whether the Shingles are defective; (2) whether the defect is caused by a flawed
manufacturing process; (3) whether the defect causes the Shingles to suffer from
blistering, cracking, and granule loss problems as well as premature failure; (4)
whether the defect in the Shingles breached the Defendant’s expressed and implied
warranties; and (5) whether the Defendant knew of the defect.71 These questions of
fact are common to the Plaintiff’s claims and will generate common answers.72
Accordingly, the Plaintiff has satisfied the commonality requirement.
c. Typicality
The typicality requirement mandates that the claims and defenses of the
representative plaintiffs are typical of the claims and defenses of the class.73 This

70

Id.

71

See Mot. for Class Cert., at 10.

72

See Wal-Mart, 564 U.S. at 350.

73

FED. R. CIV. P. 23(a)(3).

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requirement is satisfied when “a plaintiff’s injury arises from or is directly related to
a wrong to a class, and that wrong includes the wrong to the plaintiff.”74 But “[c]lass
members’ claims need not be identical to satisfy the typicality requirement.”75 This is
because “typicality measures whether a sufficient nexus exists between the claims of
the named representatives and those of the class at large.”76 “A sufficient nexus is
established if the claims or defenses of the class and the class representative arise from
the same event or pattern or practice and are based on the same legal theory.”77
Here, the Plaintiff’s claims arise from the same allegations of wrongful conduct
as the claims of the putative class members. Specifically, all the claims are based on
the sale of Shingles which allegedly suffer from the same defect. Moreover, the
Plaintiff’s claims arise from the same legal theories, including breach of express and
implied warranties and fraudulent concealment. In response, the Defendant argues
that, based on the experiences of the named Plaintiff, there is no typical plaintiff, and
that individualized defenses render the Plaintiff’s claims atypical. To be sure, the
74

Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1022 (11th Cir.
1996), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553
U.S. 639, 641 (2008).
75

Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012).

76

Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004) (quoting
Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)).
77

Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984).

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named Plaintiff experienced different weather conditions, installation, and
maintenance of its roofs than the putative class members. In addition, the named
Plaintiff’s warranties are not necessarily typical of the class as a whole. Nevertheless,
“the showing required for typicality is not demanding.”78 Varying experiences and
unique defenses do not necessarily defeat typicality.79 If a “sufficient nexus” exists –
as the Court found above – then the typicality requirement is met. Thus, the Court
concludes that the Plaintiff has satisfied Rule 23(a)’s typicality requirement.
d. Adequacy of Representation
To prove adequacy of representation, a plaintiff must demonstrate that the class
representatives “fairly and adequately protect the interests of the class.”80 This
requirement serves to uncover conflicts of interest between named parties and the
class they seek to represent.81 A determination of adequacy “encompasses two
separate inquiries: (1) whether any substantial conflicts of interest exist between the

78

City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 651
(S.D. Fla. 2010).
79

See Ault, 692 F.3d at 1216 (“While each class member may have a
stronger or weaker claim depending upon his or her degree of reliance, we conclude
that this alone does not make class representatives’ claims atypical of the class as a
whole.”).
80

FED. R. CIV. P. 23(a)(4).

81

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).

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representatives and the class; and (2) whether the representatives will adequately
prosecute the action.”82 Here, there is no evidence that the named Plaintiff will not
vigorously and adequately pursue the asserted claims on behalf of the class members.
Moreover, the Plaintiff has presented evidence that proposed class counsel have
extensive experience with class actions and are qualified to conduct this litigation.83
Nevertheless, the Defendant contends that there is a substantial conflict of
interest between the Plaintiff and the putative class members. Specifically, the
Defendant argues that because the Plaintiff does not have standing to assert a claim
based on damage to the interior of the units, the Plaintiff is “claim splitting” the
breach of warranties claims and the property damage claims, creating a conflict of
interest with the putative class members.84 But this argument overlooks the fact that
the Plaintiff may still recover based on property damage to the exterior of the Wolfpen
units.85 Moreover, the Plaintiff is not claim splitting the homeowners’ warranty claims
and property damage claims. Because the homeowners do not own the Shingles, they

82

Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.

2003).
83

See Mot. for Class Cert., Ex. Tab 8.

84

See Def.’s Resp. Br., at 9-10.

85

See Pl.’s Reply Br., Tab 1, at 10-11 (Section 5.1(b)) (part of the
“Common Elements” is the “exterior building surfaces”).
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do not have warranty claims against Atlas. Indeed, if a homeowner seeks to recover
for any damage to the interior of his or her unit, the proper defendant would likely be
the Wolfpen HOA. The Court thus rejects the Defendant’s claim splitting argument.
The Plaintiff has met the requirements of Rule 23(a)(4).
3. Rule 23(b)(3)
a. Predominance
The Plaintiff seeks class certification under Rule 23(b)(3). To certify a Rule
23(b)(3) class, the Plaintiff must demonstrate two prerequisites: predominance and
superiority.86 To meet the predominance requirement, “the issues in the class action
that are subject to generalized proof and thus applicable to the class as a whole, must
predominate over those issues that are subject to individualized proof.”87 “Common
issues of fact and law predominate if they ha[ve] a direct impact on every class
member’s effort to establish liability and on every class member’s entitlement to
injunctive and monetary relief.”88 Importantly, “[w]hether an issue predominates can
only be determined after considering what value the resolution of the class-wide issue
86

FED. R. CIV. P. 23(b)(3).

87

Cooper v. Southern Co., 390 F.3d 695, 722 (11th Cir. 2004) (quoting
Kerr v. City of W. Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989)).
88

Babineau v. Federal Express Corp., 576 F.3d 1183, 1191 (11th Cir. 2009)
(alteration in original) (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir.
2004)).
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will have in each class member’s underlying cause of action.”89 But if the “plaintiffs
must still introduce a great deal of individualized proof or argue a number of
individualized legal points to establish most or all of the elements of their individual
claims,” then predominance does not exist.90
In Brown v. Electrolux Home Products, Inc., the Eleventh Circuit provided a
three-step approach for evaluating predominance: (1) identify the parties’ claims and
defenses and their elements; (2) determine whether these issues are common questions
or individual questions by analyzing how each party will prove them at trial; and (3)
determine whether the common questions predominate.91 In addition, the Eleventh
Circuit noted that “[d]istrict courts should assess predominance with its overarching
purpose in mind – namely, ensuring that ‘a class action would achieve economies of
time, effort, expense, and promote . . . uniformity of decision as to persons similarly
situated, without sacrificing procedural fairness or bringing about other undesirable
results.’”92

89

Klay, 382 F.3d at 1255 (quoting Rutstein v. Avis Rent-A-Car Sys., 211
F.3d 1228, 1234 (11th Cir. 2000)).
90

Id.

91

817 F.3d 1225, 1234 (11th Cir. 2016).

92

Id. at 1235 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615

(1997)).
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In Counts I and II of its Amended Complaint, the Plaintiff alleges that the
Defendant violated its express and implied warranties. Under North Carolina law, to
prevail on a breach of express warranty claim, a plaintiff must demonstrate the
following elements: “(1) an express warranty as to a fact or promise relating to the
goods, (2) which was relied upon by the plaintiff in making his decision to purchase,
(3) and that this express warranty was breached by the defendant.”93 And, of course,
“[t]o recover damages for a breach, a plaintiff must show that the breach proximately
caused the loss sustained.”94 For breach of implied warranty of merchantability, a
plaintiff must prove:
first, that the goods bought and sold were subject to an implied warranty
of merchantability; second, that the goods did not comply with the
warranty in that the goods were defective at the time of sale; third, that
his injury was due to the defective nature of the goods; and fourth, that
damages were suffered as a result.95
Here, the Court finds that – even if the Plaintiff could prove a uniform defect –
individual issues going to causation, notice, coverage, and statute of limitations
predominate over any common questions in this case. To begin, there are numerous
93

Prichard Enters., Inc. v. Adkins, 858 F. Supp. 2d 576, 584 (E.D.N.C.
2012) (quoting Harbor Point Homeowners’ Assc’n, Inc. ex rel. Bd. of Dirs. v. DJF
Enters., Inc., 206 N.C. App. 152, 162 (2010)).
94

Id. (citing Rose v. Epley Motor Sales, 288 N.C. 53, 60 (1975); City of
Charlotte v. Skidmore, Owings & Merrill, 103 N.C. App. 667, 679 (1991)).
95

Cockerham v. Ward, 44 N.C. App. 615, 624-25 (1980).

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reasons a roof may fail, including commonplace events and ordinary wear and tear.96
There are also numerous reasons a shingle may blister, crack, or suffer from granule
loss.97 Thus, it is likely that the Defendant will bring at least one causation challenge
against most – if not all – putative class members. Because the causation
determination for most putative class members will involve individualized evidence,
these individual causation questions will predominate at any trial.98 In response, the
Plaintiff argues that if the jury agrees with its argument that a defect existed in every
Shingle at the time it was sold, then Atlas’s arguments regarding alternative causation
will be negated.99 Not so. Because the Plaintiff seeks the replacement costs of all class
members’ roofs, the alleged defect in the Shingles must have caused a class member’s

96

See Primary Mot. for Class Cert., Ex. Tab 20, at 137-38.

97

Id., Ex. Tab 20, at 198.

98

See City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630,
641 (S.D. Fla. 2010) (holding that “even if Plaintiffs were able to demonstrate that
FlexPipe had a general defect, it would not assist Plaintiffs in meeting their burden of
showing that that particular defect was the legal cause of each class member’s harm”).
99

The Plaintiff also argues that “Atlas simply restates its defense on the
merits, which is not relevant to class certification.” Pl.’s Reply Br., at 16. But the issue
of causation is not an affirmative defense; it is an element of the Plaintiff’s warranty
claims. Thus, Atlas’s causation challenges are relevant at the class certification stage.
In addition, they do not fall under the general rule that affirmative defenses do not
defeat predominance.
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injuries in order for that class member to recover.100 All roofs will fail eventually. If
an Atlas Shingle roof survives to the end of normal roof life expectancy, the
homeowner-class member has not been damaged by the alleged manufacturing defect.
If the roof fails due to hail or wind damage or improper installation, the homeownerclass member has not been damaged. This is unlike a products liability case where the
plaintiffs claim an economic injury by seeking the diminution in the intrinsic value of
the product.101 In such cases, the plaintiffs typically only need to prove that the defect
existed at the time of purchase to prove the defect caused their economic injury.102
Here, even if the Plaintiff proves a common defect existed in the Shingles, each class

100

See Marcus v. BMW of North Am. LLC, 687 F.3d 583, 605 (3d Cir.
2012) (“[I]t is undisputed that even if Marcus could prove that Bridgestone RFTs
suffer from common, class-wide defects, those defects did not cause the damage he
suffered for these two tires: the need to replace them.”).
101

See Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 254 F.R.D. 68,
73 (E.D.N.C. 2008) (“[N]amed plaintiffs seek to recover damages for the results of
the failure of the allegedly defective silage bags – the gravamen of their complaint is
not diminution in the silage bags’ intrinsic value.”); Naparala v. Pella Corp., Nos.
2:14-mn-00001-DCN, 2:14-cv-03465-DCN, 2016 WL 3125473, at *11 (D.S.C. June
3, 2016) (holding that complex causation issues existed because the “plaintiff’s claim
focuses on Pella’s failure to repair and replace the Windows, not the initial purchase
of the Windows”).
102

See Daffin v. Ford Motor Co., No. C-1-00-458, 2004 WL 5705647, at *7
(S.D. Ohio July 15, 2004) (“The alleged injury, however, is not accelerator sticking
but economic loss resulting directly from the allegedly defective piece of equipment.
The causation question is therefore vastly simplified and does not suffer the infirmities
argued by Ford.”).
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member cannot recover damages based on that fact alone. They also must prove that
the alleged defect caused their roof to prematurely fail. For the class members who
have already had their roofs replaced or repaired, this will be an especially factintensive inquiry.
The Plaintiff cites two cases – Sanchez-Knutsen v. Ford Motor Co. and Brooks
v. GAF Materials Corp. – which it contends support its argument. However, the Court
finds that these cases do not help the Plaintiff. In Sanchez-Knutsen, the court
dismissed the need for individual inquiries into causation, concluding that the
evidence did not justify the defendant’s concerns.103 At issue was whether Ford’s
Explorer vehicle suffered from a defect at the time of purchase that permitted exhaust
and other gases to enter the passenger compartment of the vehicle.104 The court in
Sanchez-Knutsen framed the plaintiffs’ damages as the diminution in the intrinsic
value of their Explorers, not the repair costs.105 Thus, the court did not face the same
causation issues presented in this instant case. Here, each class member will need to
prove that the alleged defect caused his or her Shingles to prematurely fail, not just

103

Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 538 (S.D. Fla.

2015).
104

Id. at 533.

105

Id. at 538-39.

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that the defect exists. This will likely create substantial causation inquiries when
deciding the class members’ claims.
Brooks is also distinguishable. There, homeowners sued GAF Materials Corp.
(“GAF”), which manufactures roofing materials, over allegedly defective roof
shingles.106 Specifically, the named plaintiffs sought to represent a class of individuals
whose shingles allegedly prematurely cracked.107 In certifying the proposed class, the
court discounted the need for individual causation inquiries, stating that the “Plaintiffs
seek to establish causation on a large scale – that GAF knowingly sold shingles that
contained an inherent manufacturing defect that will inevitably cause the shingles to
crack, split, or tear.”108 While the Plaintiff, here, presents a similar causation
argument, the Court believes that evidence in this case demonstrates that other specific
causation issues – such as improper installation, inadequate ventilation, or
environmental factors – will be significant in deciding the putative class members’
cases. Moreover, the class in Brooks was limited to persons whose shingles had
already cracked, split, or torn.109 Here, the breadth of the Plaintiff’s proposed class is
106

Brooks v. GAF Materials Corp., No. 8:11-cv-00983-JMC, 2012 WL
5195982, at *1 (D.S.C. Oct. 19, 2012).
107

Id.

108

Id. at *6.

109

Id. at *4.

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much larger – it includes owners whose roofs may have been repaired or replaced for
reasons other than the alleged premature failure. As a result, the Plaintiff’s proposed
class presents more individualized causation questions.
Individual issues will also predominate with respect to two requirements in
Atlas’s express warranty: transferability and notice. Transferability presents individual
questions because the 2002 limited warranty specifically requires a second owner to
notify Atlas in writing within thirty days of the real estate transfer for any coverage
to be transferred.110 The third-owner class members are not even eligible to recover
under the 2002 limited warranty.111 As a result, the class members who purchased a
home with Atlas Shingles already installed on it will have to prove that the warranty
properly transferred to them. Proving compliance with Atlas’s notice requirement will
require even more individualized evidence. The 1999 limited warranty requires each
warrantee to provide notice of the alleged defect to Atlas within five days of
discovering it, and the 2002 limited warranty requires notice within thirty days of
discovery.112 Each class member will then need to demonstrate that his or her notice
to Atlas was for the alleged defect and not for an unrelated issue. Finally, each class

110

See Def.’s Primary Resp. Brief, Ex. G.

111

Id.

112

Id., Exs. G-H.

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member will need to demonstrate that he or she provided Atlas an opportunity to cure
the alleged defect. There are, therefore, numerous individualized issues that will
predominate the issues of notice and transferability.
In response, the Plaintiff first argues that evidence of numerous consumer
complaints regarding the alleged defect may be used to satisfy the notice requirement.
It cites several cases where courts have found that widespread consumer complaints
are sufficient to establish constructive notice.113 But the North Carolina courts have
yet to recognize constructive notice in this context. As a result, the Court is unwilling
to hold that constructive notice is sufficient to satisfy the notice requirement. The
Plaintiff then argues that, through common evidence, it will demonstrate the
Defendant waived the notice requirement. According to the Plaintiff, the Defendant
never asked the warranty claimants whether they were filing their claims within thirty
days of discovering the alleged defect. Nor did the Defendant enforce the requirement
when it knew the claimants were late. The Plaintiff cites RHL Properties LLC v.
Neese114 in support of its contention. There, the Georgia Court of Appeals stated that
courts “will readily find a waiver of strict compliance with a notice provision based

113

See, e.g., Muehlbauer v. General Motors Corp., 431 F. Supp. 2d 847,
859-60 (N.D. Ill. 2006).
114

293 Ga. App. 838 (2008).

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on the conduct of the parties in order to avoid a forfeiture of substantive contractual
rights.”115 Thus, the Plaintiff argues that by routinely failing to insist on compliance
with the notice requirement, the Defendant waived the requirement. The Court
disagrees. The Neese case concerned whether the defendant waived its notice
requirement with respect to one party.116 The Plaintiff has failed to cite any case law
that states a defendant may waive the notice requirement with respect to all of its
warranty claimants if it does not enforce the requirement for each past claimant.
Consequently, the Court finds that the notice and opportunity to cure requirement is
an individual issue that cannot be resolved through common evidence.
Atlas is also likely to employ affirmative defenses against many class members,
with the most likely defense being the statute of limitations. Under North Carolina
law, warranty claims must be brought within four years from the date a “breach is or
should have been discovered.”117 As the Defendant correctly pointed out during the
class certification hearing, based on Atlas’s sales data, only 5% of the Shingles were
sold in the last four years.118 Thus, it is likely a large percentage of the class members’
115

Id. at 841.

116

Id. at 841-42.

117

N.C. Gen. Stat. § 25-2-725(2).

118

See Mot. for Class Cert. Hearing [Doc. 366], at 102 under No. 1:13-md02495-TWT.
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warranty claims will be barred by the statute of limitations.119 In addition, some class
members’ claims may be subject to North Carolina’s statute of repose, which provides
that “[n]o action for recovery of damages for . . . damage to property based upon or
arising out of any alleged defect . . . shall be brought more than six years after the date
of the initial purchase for use or consumption.”120 Thus, whether certain class
members’ claims are barred under the statute of repose will depend on individualized
evidence, including the date and nature of the class members’ property damage.
The Plaintiff counters with the general rule that individual affirmative defenses
usually do not defeat predominance.121 Thus, it contends that the statute of limitations
119

The Court notes that the issue of equitable tolling will also involve
individualized evidence. “Equitable estoppel arises when a party has been induced by
another’s acts to believe that certain facts exist, and that party ‘rightfully relies and
acts upon that belief to his detriment.’” Jordan v. Crew, 125 N.C. App. 712, 720
(1997) (quoting Thompson v. Soles, 299 N.C. 484, 487 (1980)). Thus, each class
member will need to demonstrate that he or she was hindered from discovering the
defect by an affirmative action by Atlas.
120

N.C. Gen. Stat. § 1-50(a)(6). On October 1, 2009, the period of repose
was increased to twelve years. See N.C. Gen. Stat. § 1-46.1(1). However, that statute
only applies to actions that accrue on or after October 1, 2009. Id. Thus, class
members’ claims that accrued prior to October 2009 would still be subject to the sixyear statute of repose. See Robinson v. Bridgestone/Firestone N. Am. Tire, LLC, 209
N.C. App. 310, 314-15 (2011) (“To the extent that plaintiffs are arguing that the courts
should apply N.C. Gen. Stat. § 1-46.1(1) to this action, we are barred from doing so
by the General Assembly’s decision not to make the revised statute of repose
retroactive.”).
121

In re Checking Account Overdraft Litigation, 286 F.R.D. 645, 656 (S.D.
Fla. 2012) (“Unique affirmative defenses rarely predominate where a common course
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issue, along with other potential affirmative defenses, can be handled in the second
phase of the case after a liability trial. It is accurate that “courts traditionally have been
reluctant to deny class action status under Rule 23(b)(3) simply because affirmative
defenses may be available against individual members.”122 But as the Eleventh Circuit
recently confirmed in Brown v. Electrolux Home Products, Inc., affirmative defenses
are nevertheless relevant when determining the question of predominance.123
Specifically, the Eleventh Circuit noted that affirmative defenses that are coupled with
several other individual questions could defeat predominance.124 Such is the case here.
The statute of limitations defense coupled with the other individual issues discussed
above outweigh any common questions raised by the Plaintiff.
b. Superiority

of conduct is established.”).
122

Brown v. Electrolux Home Products, Inc., 817 F.3d 1225, 1240 (11th Cir.
2016) (quoting WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 4:55 (5th
ed.)).
123

Id. at 1241.

124

Id.

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To meet the superiority requirement, the Court must conclude “that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.”125 The factors relevant in determining superiority include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.126
Class certification “cannot be denied because the number of potential class members
makes the proceeding complex or difficult.”127 But the difficulties in managing a class
are important “if they make the class action a less fair and efficient method of
adjudication than other available techniques.”128 Thus, the focus should be “on the
relative advantages of a class action suit over whatever other forms of litigation might
be realistically available to the plaintiffs.”129

125

FED. R. CIV. P. 23(b)(3).

126

Carriuolo v. General Motors Co., 823 F.3d 977, 989 (11th Cir. 2016)
(quoting FED. R. CIV. P. 23(b)(3)).
127

In re Theragenics Corp. Sec. Litig., 205 F.R.D. 687, 697 (N.D. Ga. 2002).

128

Id. at 697-98 (quoting In re Domestic Air Transp. Antitrust Litigation,
137 F.R.D. 677, 693 (N.D. Ga. 1991)).
129

Klay v. Humana, Inc., 382 F.3d 1241, 1269 (11th Cir. 2004).

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The Court finds that class treatment is not superior to other available methods
of adjudication. Based on the number of individual issues discussed above,
adjudicating these claims on a class-wide basis will likely present a manageability
problem. There will be numerous fact-intensive individual inquiries, including
physical inspection of class members’ Shingles and individual testimony regarding
when class members discovered the defect and provided notice to Atlas. In addition,
the Court does not agree with the Plaintiff’s contention that the class members lack
any significant interest in controlling the litigation. The damages claimed by the
named Plaintiff is not insignificant. The Plaintiff’s own expert opined that replacing
a roof can be “several thousand dollars to tens of thousands of dollars.”130 Thus, this
case is unlike class actions where the class members have suffered only a minor harm
and would not pursue their claim but for the class action mechanism.131 The owners
have the option of pursuing their claims in state court, where claims of several

130

See Primary Mot. for Class Cert., Ex. Tab 21, at 47.

131

Cf. In re Delta/AirTran Baggage Fee Antitrust Litigation, No. 1:09-md2089-TCB, 2016 WL 3770957, at *23 (N.D. Ga. July 12, 2016) (“Where, as here, the
class members’ claims are ‘so small that the cost of individual litigation would be far
greater than the value of those claims,’ the class-action vehicle is superior to other
forms of litigation available to Plaintiffs, and class certification is appropriate.”).
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thousands dollars are common.132 In sum, the Court finds that Rule 23(b)’s superiority
requirement is not satisfied.
C. Rule 23(c)(4) Class
As an alternative, the Plaintiff asks the Court to certify a Rule 23(c)(4) class
consisting of four common questions: “(1) whether the shingles suffer from a common
manufacturing defect; (2) whether the defect breaches any express or implied
warranties; (3) whether the defect necessitates replacement of all roofs containing the
shingles; and (4) whether Atlas fraudulently concealed the defect.”133 The Plaintiff
contends that certifying a class based on these four questions will materially advance
the litigation.
Under Rule 23(c)(4), “an action may be brought or maintained as a class action
with respect to particular issues.”134 However, there is a split among courts over how
to apply the predominance test when asked to certify an issue class.135 Some courts
132

See Gonzalez v. Owens Corning, 317 F.R.D. 443, 524 (W.D. Pa. 2016).

133

See Pl.’s Primary Reply Br. [Doc. 61], at 25 under No. 1:13-cv-02195TWT. The Plaintiff incorporates by reference Section V of Plaintiffs’ Reply Brief in
Dishman v. Atlas Roofing Corp. See Pl.’s Reply Br., at 20.
134

FED. R. CIV. P. 23(c)(4).

135

Compare In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 225 (2d
Cir. 2006) (“[A] court may employ Rule 23(c)(4)(A) to certify a class on a particular
issue even if the action as a whole does not satisfy Rule 23(b)(3)’s predominance
requirement.”), with Castano v. American Tobacco Co., 84 F.3d 734, 745 n.21 (5th
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have certified issue classes despite a lack of overall predominance.136 But many other
courts “have emphatically rejected attempts to use the (c)(4) process for certifying
individual issues as a means for achieving an end run around the (b)(3) predominance
requirement.”137 These courts note that “the proper interpretation of the interaction
between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must
satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule
that allows courts to sever common issues for a class trial.”138 The Court finds the
latter interpretation to be persuasive.139 As discussed above, even if the Plaintiff could
establish in a class-wide trial that the Shingles suffer from a common manufacturing

Cir. 1996) (“A district court cannot manufacture predominance through the nimble use
of subdivision (c)(4).”).
136

See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)
(“[E]ven if the common questions do not predominate over the individual questions
so that class certification of the entire action is warranted, Rule 23 authorizes the
district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A)
and proceed with class treatment of these particular issues.”).
137

Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 700 (S.D. Fla. 2014)
(quoting City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 646 (S.D.
Fla. 2010)); see also Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 316
(S.D. Ala. 2006).
138

Castano, 84 F.3d at 745 n.21.

139

The Eleventh Circuit has not provided clear guidance as to whether
predominance must be found for the cause of action as a whole when certifying a Rule
23(c)(4) class.
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defect, each class member’s claim will still need to be separately tried to determine
issues like causation, notice, and statute of limitations. It is these individual issues that
will predominate. Moreover, certifying an issues class would not promote judicial
efficiency. The “Plaintiffs’ case for certification collapses when it confronts the fact
that certification of a common issues class will not dispose of a single case or
eliminate the need for a single trial.”140 As a result, the Court concludes a Rule
23(c)(4) class should not be certified.
D. Rule 23(b)(2) Class
The Plaintiff seeks to certify the following Rule 23(b)(2) class: “All those who
as of the date class notice is issued own a home or other structure in the State of North
Carolina on which Atlas Chalet or Stratford roofing shingles are currently
installed.”141 The Amended Complaint requests several declarations: “[t]he Shingles
have a defect which results in premature failure”; “Atlas’ warranty fails of its essential
purpose”; and “Atlas’ warranty is void as unconscionable”142
The Court concludes that a Rule 23(b)(2) class is inappropriate. “A declaratory
or injunctive relief class pursuant to Rule 23(b)(2) is appropriate only if ‘the
140

In re Conagra Peanut Butter Products Liability Litigation, 251 F.R.D.
689, 701 (N.D. Ga. 2008).
141

Mot. for Class Cert., at 6.

142

Am. Compl. ¶ 118.

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predominant relief sought is injunctive or declaratory.’”143 The monetary relief must
be incidental to the injunctive or declaratory relief.144 “Monetary damages are
incidental when ‘class members automatically would be entitled [to them] once
liability to the class . . . as a whole is established[,]’ and awarding them ‘should not
entail complex individualized determinations.’”145 Here, it is clear that the monetary
damages are not incidental to the requested declaratory relief. Indeed, the Plaintiff is
seeking monetary relief for each putative class member, and the damages calculation
will be individualized. In addition, it appears the Plaintiff is seeking the declarations
for the purpose of recovering future warranty claims. Rule 23(b)(2)’s finality
requirement does not allow a plaintiff to use declaratory relief to “lay the basis for a
damage award rather than injunctive relief.”146

143

DWFII Corp. v. State Farm Mut. Auto Ins. Co., 469 F. App’x 762, 765
(11th Cir. 2012) (quoting Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001)
(citation omitted)).
144

See Murray, 244 F.3d at 812 (“[M]onetary relief predominates in (b)(2)
class actions unless it is incidental to requested injunctive or declaratory relief.”
(emphasis in original) (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411
(5th Cir. 1998))).
145

DWFII Corp., 469 F. App’x at 765 (quoting Murray 244 F.3d at 812).

146

Christ v. Beneficial Corp., 547 F.3d 1292, 1298 (11th Cir. 2008) (quoting
7A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1775 (3d ed. 2005)).
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IV. Conclusion
For these reasons, the Court DENIES the Plaintiff Wolfpen II Planned
Community Homeowners Association, Inc.’s Motion for Class Certification [Doc. 60].
SO ORDERED, this 8 day of June, 2017.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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