Makowski v. Atlas Roofing Corporation
Filing
33
ORDER granting in part and denying in part (172) Motion to Dismiss for Failure to State a Claim in case 1:13-md-02495-TWT; granting in part and denying in part (21) Motion to Dismiss for Failure to State a Claim in case 1:14-cv-03034-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/16/2015. Associated Cases: 1:13-md-02495-TWT, 1:14-cv-03034-TWT(ss)
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
BRYAN MAKOWSKI
on behalf of himself and all others
similarly situated,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:14-CV-3034-TWT
ATLAS ROOFING CORPORATION
doing business as
Meridian Roofing Company,
Defendant.
OPINION AND ORDER
This is a multi-district action arising out of the marketing and sale of allegedly
defective roofing shingles. It is before the Court on the Defendant Atlas Roofing
Corporation’s Motion to Dismiss [Doc. 172] Count IX of the Plaintiff Bryan
Makowski’s Complaint. For the reasons set forth below, the Defendant Atlas Roofing
Corporation’s Motion to Dismiss [Doc. 172] is GRANTED in part and DENIED in
part.
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
I. Background
The Plaintiff Bryan Makowski is a purchaser of the Atlas Chalet Shingles
(“Shingles”), which are designed, manufactured, and sold by the Defendant Atlas
Roofing Corporation (“Atlas”).1 Atlas represented and continues to represent – in
marketing material and on the Shingles packaging – that the Shingles meet applicable
building codes and industry standards.2 Atlas also provides a limited thirty-year
warranty against manufacturing defects.3
The Plaintiff claims that the Shingles are defective due to a flaw in the
manufacturing process. As a result of this process – which allegedly does not conform
to applicable building codes and industry standards – “the Shingles contain excessive
moisture which creates gas bubbles in the Shingles when they are exposed to the sun
and results in cracking, blistering, and premature deterioration of the Shingles.”4 The
Plaintiff filed suit in the U.S. District Court for the Eastern District of Kentucky,5
1
Compl. ¶ 1.
2
Compl. ¶¶ 15-16.
3
Compl. ¶ 16.
4
Compl. ¶ 20.
5
“[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 Products Liab. Litig., 251 F.R.D. 689, 693 (N.D. Ga. 2008); see also In
re Temporomandibular Joint (TMJ) Implants Products Liab. Litig., 97 F.3d 1050,
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-2-
asserting claims for: negligence (Count I), negligent misrepresentation (Count II),
strict products liability (Count III), breach of express warranty (Count IV), breach of
implied warranties (Count V), violation of the Kentucky Consumer Protection Act
(Count VI), fraudulent misrepresentation (Count VII), and fraudulent concealment
(Count VIII). The Plaintiff seeks damages, litigation expenses, and equitable relief.6
The Defendant moves to dismiss the Plaintiff’s request for equitable relief.
II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a “plausible” claim for relief.7 A complaint may survive
a motion to dismiss for failure to state a claim, however, even if it is “improbable” that
a plaintiff would be able to prove those facts; even if the possibility of recovery is
extremely “remote and unlikely.”8 In ruling on a motion to dismiss, the court must
accept the facts pleaded in the complaint as true and construe them in the light most
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 not been transferred for consolidation.”). Here, both parties appear to
agree that Kentucky law governs the Plaintiff’s state law claims.
6
The Plaintiff’s request for equitable relief was labeled Count IX.
7
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); FED. R. CIV. P. 12(b)(6).
8
Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-3-
favorable to the plaintiff.9 Generally, notice pleading is all that is required for a valid
complaint.10 Under notice pleading, the plaintiff need only give the defendant fair
notice of the plaintiff’s claim and the grounds upon which it rests.11
III. Discussion
The Plaintiff requests that the Court issue an injunction mandating that the
Defendant:
1. “[N]otify owners of the defect,”12
2. “[R]eassess all prior warranty claims and . . . pay the full costs of
repairs,”13 and
3. “[R]eplace defective Chalet shingles with non-Chalet shingles that are
free of defects and are cosmetically similar.”14
9
See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th
Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the benefit of
imagination”).
10
See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.
1985), cert. denied, 474 U.S. 1082 (1986).
11
See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 127
S. Ct. at 1964).
12
Compl. ¶ 126.
13
Id.
14
Id.
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-4-
The Plaintiff also requests that the Court issue a declaratory judgment stating, inter
alia:
1. “That the Shingles have a defect which results in premature failure,”15
2. “That Defendant’s warranty fails of its essential purpose,”16 and
3. That “Defendant’s warranty as a whole is void as unconscionable.”17
To begin, the Plaintiff’s request for injunctive relief must be dismissed.
Injunctive relief is only appropriate “when [a] legal right asserted has been infringed,”
and there will be irreparable injury “for which there is no adequate legal remedy.”18
Here, the Defendant argues – correctly – that the Plaintiff does not even allege that
legal remedies would be inadequate. Monetary damages would sufficiently
compensate the Plaintiff for the Shingles that have blistered and/or cracked. In
response, the Plaintiff argues that he is allowed to plead alternative and inconsistent
claims.19 But the problem here is not that the Plaintiff’s request for injunctive relief
15
Id.
16
Id.
17
Id.
18
Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th
Cir. 2005) (emphasis added).
19
Pl.’s Resp. Br., at 5.
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-5-
is inconsistent with his other claims, it is that he has failed to state a plausible claim
for injunctive relief to begin with.20
To receive declaratory relief, however, the Plaintiff does not have to establish
irreparable injury or the inadequacy of legal remedies.21 In moving to dismiss the
claim for declaratory relief, the Defendant first argues that the Plaintiff does not have
standing because the requested declarations will not redress his injury.22 To satisfy the
Constitutional case-or-controversy requirement, “[a] plaintiff must allege personal
injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be
20
As a technical matter, the Court must dismiss the Plaintiff’s first
requested injunction – that the Defendant must notify owners of the defect – on
jurisdictional grounds. “[S]tanding is a threshold jurisdictional question which must
be addressed prior to . . . the merits of a party’s claims.” Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (internal quotation marks omitted). “In the
absence of standing, a court is not free to opine in an advisory capacity about the
merits of a plaintiff’s claims.” Id. “To have Article III standing to pursue injunctive
relief . . . a plaintiff must have . . . an injury in fact that is capable of being redressed
by the injunction.” Virdi v. Dekalb Cnty. Sch. Dist., 216 Fed. Appx. 867, 871 (11th
Cir. 2007). Here, the Defendant correctly notes that the Plaintiff would not benefit
from this injunction. If, during this litigation, it is established that the Shingles are
indeed defective, it is unclear what the Plaintiff would gain from having the Defendant
simply notify him of this fact.
21
See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241
(1937) (“[A]llegations that irreparable injury is threatened are not required.”);
Katzenbach v. McClung, 379 U.S. 294, 296 (1964) (“Rule 57 of the Federal Rules of
Civil Procedure permits declaratory relief although another adequate remedy exists.”).
22
Def.’s Mot. to Dismiss, at 13-14.
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-6-
redressed by the requested relief.”23 The Plaintiff may establish redressability if he
shows that the “practical consequence” of the declaratory relief “would amount to a
significant increase in the likelihood that the [Plaintiff] would obtain relief that
directly redresses the injury suffered.”24 Here, the requested declarations – e.g., that
the Shingles are defective – would make it more likely that the Plaintiff would obtain
the necessary relief from the Defendant because it would establish an essential
component to liability.25 And although the Plaintiff’s remaining claims may provide
more direct relief, the Declaratory Judgment Act allows plaintiff to seek a declaration
of rights “whether or not further relief is or could be sought.”26
23
Allen v. Wright, 468 U.S. 737, 751 (1984).
24
Utah v. Evans, 536 U.S. 452, 464 (2002).
25
The Defendant argues that the requested declarations could not help the
Plaintiff in a subsequent lawsuit. Consequently, according to the Defendant, the
requested declarations will not redress any injury. In support, the Defendant reasons
that the Plaintiff will be barred, by res judicata, from bringing a new lawsuit to seek
recovery for the injuries complained of in this action. Thus, the argument goes, there
will be no subsequent lawsuit within which the Plaintiff may seek damages based
upon a declaration issued in this action. But the Plaintiff never alleged that all of the
Shingles that it purchased have blistered or cracked. Shingles purchased by the
Plaintiff that currently exhibit no flaws may blister or crack after this lawsuit. Pl.’s
Resp. Br., at 9 (“Plaintiff alleges . . . that he . . . will continue to suffer injuries
attributable to the defective Shingles.”). And the Plaintiff may not be barred from
seeking damages for these Shingles in a subsequent lawsuit. See, e.g., Asher v. G.F.
Stearns Land & Lumber Co., 241 Ky. 292, 43 S.W.2d 1012, 1014 (1931) (“[Res
judicata] does not apply . . . to facts that subsequently arise.”).
26
28 U.S.C. § 2201.
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-7-
Finally, the Defendant argues that the Plaintiff’s declaratory judgment claim
must be dismissed because it abridges the Defendant’s right to a jury trial.27 But as the
Eighth Circuit Court of Appeals has explained, “[a] litigant is not necessarily deprived
of a jury trial merely because it is a party to a declaratory judgment action . . . if there
would have been a right to a jury trial on the issue had it arisen in an action other than
one for declaratory judgment, then there is a right to a jury trial in the declaratory
judgment action.”28 Accordingly, the Plaintiff may pursue his claim for declaratory
relief for now.
IV. Conclusion
For these reasons, the Court GRANTS in part and DENIES in part the
Defendant Atlas Roofing Corporation’s Motion to Dismiss [Doc. 172].
27
Def.’s Mot. to Dismiss, at 14-16.
28
Northgate Homes, Inc. v. City of Dayton, 126 F.3d 1095, 1098-99 (8th
Cir. 1997); see also Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504 (1959)
(“[T]he Declaratory Judgment Act . . . specifically preserves the right to jury trial for
both parties.”); Simler v. Conner, 372 U.S. 221, 223 (1963) (“The fact that the action
is in form a declaratory judgment case should not obscure the essentially legal nature
of the action. The questions involved are traditional common-law issues which can be
and should have been submitted to a jury under appropriate instructions as petitioner
requested . . . [and] the courts below erred in denying petitioner the jury trial
guaranteed him by the Seventh Amendment.”).
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-8-
SO ORDERED, this 16 day of June, 2015.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
T:\ORDERS\13\Atlas Roofing\13md2495 (MDL caption)\mtdtwt[Doc 172].wpd
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?