Seltzer v. Atlas Roofing Corporation

Filing 56

OPINION AND ORDER DENYING Motion to Amend/Motion to Intervene in case 1:13-md-02495-TWT (133) and 1:13-cv-04217-TWT (37). Signed by Judge Thomas W. Thrash, Jr on 6/8/2017. Associated Cases: 1:13-md-02495-TWT, 1:13-cv-04217-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
BRIAN DAVID SELTZER
on behalf of himself and all others
similarly situated,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-4217-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 Brian David
Seltzer’s Motion for Leave to Amend the Complaint and to Intervene a Substitute
Class Representative [Doc. 37]. For the reasons set forth below, the Plaintiff’s Motion
for Leave to Amend the Complaint and to Intervene a Substitute Class Representative
[Doc. 37] is DENIED.

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I. Background
The Plaintiff Brian Seltzer is a purchaser of the Atlas Shingles, which are
designed, manufactured, and sold by the Defendant Atlas Roofing Corporation.1 The
Plaintiff claims that the Shingles are defective due to a flaw in the manufacturing
process. The Plaintiff filed a class action lawsuit, asserting multiple claims based on
the allegedly defective Shingles. The Plaintiff now seeks leave to file an amended
complaint so to intervene Catherine Grieve as the potential class representative. The
stated reason for the substitution is that Seltzer has already removed the Shingles from
his roof and replaced them.2 Grieve’s home still has the Shingles installed.3 Thus,
according to the Plaintiff, the interests of the putative class would be better served
with Grieve as the class representative. The Defendant counters that the motion is
inappropriate. The Defendant argues that Grieve “makes no attempt to explain why
she could not adequately protect her interests unless she is allowed to assume and
prosecute Mr. Seltzer’s uncertified claims.”4

1

Am. Compl. ¶ 19.

2

Pl.’s Mot. to Amend and Intervene, at 2.

3

Id.

4

Def.’s Resp. Br., at 2.

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II. Discussion
Federal Rule of Civil Procedure 15(a)(2) provides that the court “should freely
give leave when justice so requires.”5 Because leave to amend is to be freely given,
there must be a substantial reason to deny the motion.6 Substantial reasons justifying
denial include “(1) where there has been undue delay, bad faith, dilatory motive, or
repeated failure to cure deficiencies by amendments previously allowed; (2) where
allowing amendment would cause undue prejudice to the opposing party; or (3) where
amendment would be futile.”7 It is within the sole discretion of the court to grant a
leave to amend.8
The Court finds that the Plaintiff has failed to demonstrate that justice requires
granting the motion for leave to amend. Courts generally deny motions to add or
substitute class representatives prior to class certification.9 For example, in Bailey v.

5

FED. R. CIV. P. 15(a)(2).

6

Foman v. Davis, 371 U.S. 178, 182 (1962); Laurie v. Alabama Ct. of
Crim. App., 256 F.3d 1266, 1274 (11th Cir. 2001).
7

Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962)).
8

Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d
618, 622 (11th Cir. 1983).
9

See, e.g., Garcia v. Lane Bryant, Inc., No. 1:11cv01566 LJO DLB, 2012
WL 293544, at *4-6 (E.D. Cal. Jan. 31, 2012) (denying motion to amend the
complaint so to substitute the named plaintiff because there was not even a pending
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Cumberland Casualty and Surety, Co., the Eleventh Circuit held that the magistrate
court did not abuse its discretion by denying the putative class the opportunity to name
an additional lead plaintiff.10 The court emphasized the difference between a putative
class and a certified class. A putative class does not maintain a separate legal status,
but “once certified, a class acquires a legal status separate from that of the named
plaintiffs.”11 The court also noted that the putative class members were not prejudiced
by the lower court’s denial because their individual claims were tolled at the time the
class action was filed.12 As in Bailey, the Court finds that justice does not require
granting a leave to amend based on the putative class representative’s potential
shortcomings. The Plaintiff counters by citing several cases in which he claims the
courts have substituted class representatives prior to class certification. However, the
Court finds that these cases are distinguishable.13

motion for class certification); Barnes v. First Am. Title Ins. Co., 473 F. Supp. 2d 798,
802 (N.D. Ohio 2007) (denying leave to amend the complaint to substitute the putative
class representative).
10

180 F. App’x 862, 865 (11th Cir. 2006).

11

Id. (quoting Birmingham Steel Corp. v. TVA, 353 F. 3d 1331, 1336 (11th

Cir. 2003)).
12

Id.

13

See, e.g., Kilgo v. Bowman Transp., Inc., 87 F.R.D. 26, 28-29 (N.D. Ga.
1980) (allowing substitution of the class representative at the same time as
conditionally certifying the class action); Phillips v. Ford Motor Co., 435 F.3d 785,
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Next, Grieve seeks intervention under Federal Rule of Civil Procedure 24. For
intervention of right, the applicant “must claim[] an interest relating to the property
or transaction which is the subject of the action.”14 Grieve clearly does not have an
interest relating to the property or transaction based on Mr. Seltzer’s Shingles or
home. As for permissive intervention, it is appropriate when the applicant “has a claim
or defense that shares with the main action a common question of law or fact.”15
Permissive intervention must also be timely.16 At the time of the motion’s filing, the
case already had one round of dispositive motions. Moreover, permissive intervention
is generally not an appropriate mechanism through which to substitute a putative class
representative.17 The Court, therefore, will deny Grieve’s attempt to intervene.

787 (7th Cir. 2006) (allowing substitution of a putative named plaintiff after all the
original putative named plaintiff’s claims had been dismissed); Wright v. American
Bankers Life Assurance Co. of Fla., 586 F. Supp. 2d 464, 475 (D.S.C. 2008) (allowing
a substitution of a class representative of a certified class).
14

FED. R. CIV. P. 24(a).

15

FED. R. CIV. P. 24(b).

16

Id.

17

See Etters v. Bennett, No.5:09-CT-3187-D, 2011 WL 3320489, at * 3
(E.D.N.C. Aug. 1, 2011).
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III. Conclusion
For the reasons set forth above, the Plaintiff Brian David Seltzer’s Motion for
Leave to Amend the Complaint and to Intervene a Substitute Class Representative
[Doc. 37] is DENIED.
SO ORDERED, this 8 day of June, 2017.

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

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