Seaberg v. Atlas Roofing Corporation
Filing
45
OPINION AND ORDER denying Motion to Certify Class (299) in case 1:13-md-02495-TWT / (39) in case 1:14-cv-03179-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/8/2017. Associated Cases: 1:13-md-02495-TWT, 1:14-cv-03179-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
PENNY SEABERG
on behalf of herself and all others
similarly situated,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:14-CV-3179-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 Penny
Seaberg’s Motion for Class Certification [Doc. 39]. For the reasons set forth below,
the Plaintiff’s Motion for Class Certification [Doc. 39] is DENIED.
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I. Background
The Plaintiff and putative class members are purchasers 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 despite
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
Compl. ¶ 2.
3
Id.
4
Id. ¶ 3. In support of his 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 2-3.
5
Compl. ¶ 11.
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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. ¶ 3.
7
See Primary Mot. for Class Cert., Exs. Tab 23-26. The Plaintiff
incorporates by reference the background section of Plaintiffs’ Motion for Class
Certification in Dishman v. Atlas Roofing Corp. See Mot. for Class Cert., at 2.
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 Penny Seaberg, who is a resident of Miami-Dade County,
Florida, had the Shingles installed on her home in 2004.13 By 2012, the Plaintiff
alleges that the Shingles “had lost their integrity, and had become porous and begun
to leak.”14 As a result, the Plaintiff’s roofers contacted Atlas on her behalf to report
the Shingles’ deterioration.15 On January 8, 2013, Atlas offered $1,536.42 for a
warranty settlement.16 The Plaintiff responded by arguing that the offer was not
sufficient because the whole roof needed to be replaced.17 Atlas denied the Plaintiff’s
request.18 On July 1, 2014, the Plaintiff filed suit in the United States District Court
for the Southern District of Florida19 on behalf of herself and others similarly situated
13
Compl. ¶ 25.
14
Id. ¶ 26.
15
Id.
16
Id. ¶ 27.
17
Id. ¶ 28.
18
Id. ¶ 29.
19
“[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
not been transferred for consolidation.”). Here, both parties agree that Florida law
governs the Plaintiff’s state law claims.
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in the state of Florida.20 She seeks to bring her suit as a class action. Because similar
consumer class actions were filed in 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.21
After the Motion to Dismiss stage, the Plaintiff’s remaining claims in this class
action are for violation of the Florida Deceptive and Unfair Trade Practices Act
(Count I) and breach of express warranty (Count I).22 The Plaintiff seeks both
damages and equitable relief.23 As damages, the Plaintiff seeks the cost of replacing
the Shingles. She proposes two methods for calculating the replacement costs. First,
she 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.24 This method accounts for the fact that “each class member’s
20
See [Doc. 1] under 1:14-cv-03179-TWT.
21
See Transfer Order [Doc. 1] under No. 1:13-md-02495-TWT.
22
See Order granting in part and denying in part the Defendant’s Motion
to Dismiss [Doc. 35] under No. 1:14-cv-03179-TWT.
23
The Plaintiff’s request for declaratory relief was labeled Count VIII.
24
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
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.”).
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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.”25 In the
alternative, she proposes that individual class members can prove their actual
replacement costs through a claims process.26
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).27 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.28
25
Mot. for Class Cert., at 21.
26
Id. at 22.
27
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)).
28
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.29 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.30
The party seeking class
certification bears the burden of proving that these requirements are satisfied.31
29
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).
30
FED. R. CIV. P. 23(b).
31
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.32 When considering the propriety of class certification, the court
should not conduct a detailed evaluation of the merits of the suit.33 Nevertheless, the
court must perform a “rigorous analysis” of the particular facts and arguments asserted
in support of class certification.34 Frequently, that “rigorous analysis” will entail some
overlap with the merits of the plaintiff’s underlying claim.35
III. Discussion
A. 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.”36 “An
32
Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
33
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).
34
Falcon, 457 U.S. at 161; Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th
Cir. 1984).
35
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-52 (2011).
36
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
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identifiable class exists if its members can be ascertained by reference to objective
criteria.”37 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.”38 “A proponent of class certification may rely on the
defendant’s business records to identify prospective class members, but it is not
enough to simply allege that the defendant’s records will allow for identification.”39
“[T]he plaintiff must also establish that the records are in fact useful for identification
purposes.”40
Here, the Plaintiff seeks certification of the following Rule 23(b)(3) class:
All those who as of the date class notice is issued either (a) own a home
or other structure in the State of Florida on which Atlas Chalet or
Stratford Shingles are currently installed; and/or (b) incurred
unreimbursed costs to repair or replace Atlas Chalet or Stratford Shingles
proposed class meets the Rule 23 requirements.”).
37
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)).
38
Id. (quoting NEWBERG ON CLASS ACTIONS § 3.3 (5th ed.)).
39
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).
40
Id. (quoting Karhu v. Vital Pharm., Inc., 621 F. App’x 945, 947 (11th
Cir. 2015)).
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on a home or other structure in the State of Florida which they currently
own or previously owned.41
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
ascertainable. It contends that determining who qualifies as a member under the
second category would require “mini-trials.”42 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
41
Mot. for Class Cert., at 5.
42
See Def.’s Primary Resp. Brief, at 42.
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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.43 But other
than a list of warranty claims made in Florida, the Plaintiff has failed to put forth
evidence demonstrating how class members can be easily ascertained.44 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.45 The Plaintiff also does not submit any receipts, invoices, or credit
43
Mot. for Class Cert., at 6.
44
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).
45
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)),
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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.46 In sum, the Court finds that the Plaintiff fails to
demonstrate an administratively feasible mechanism for identifying class members in
either category of the class definition.47 Without a clearly ascertainable class, the
Court cannot grant class certification.48 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.49
appeal docketed, No. 16-2653 (3d Cir. June 2, 2016).
46
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).
47
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.”).
48
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))).
49
FED. R. CIV. P. 23(f).
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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.”50 “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
them if joined and their geographic dispersion.”51 “[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.”52 The Plaintiff
has met her burden with regard to numerosity. She has presented evidence that – based
on warranty claims data – there are at least ninety-six properties in Florida with the
Shingles installed.53 The Plaintiff, therefore, has presented sufficient evidence that the
likely number of homeowners in Florida 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.
50
FED. R. CIV. P. 23 (a)(1).
51
Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986).
52
Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.
1986).
53
Mot. for Class Cert., Ex. Tab 6.
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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.54 It is not
necessary that all questions of law and fact be common.55 Indeed, “[e]ven a single
[common] question” is sufficient to satisfy the commonality requirement.56 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.”57
“Commonality requires the plaintiff to demonstrate that the class members ‘have
suffered the same injury.’”58 “This does not mean merely that they all suffered a
violation of the same provision of law.”59 “Their claims must depend upon a common
contention . . . of such a nature that it is capable of classwide resolution – which
54
FED. R. CIV. P. 23 (a)(2).
55
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011).
56
Id. (alteration in original).
57
Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004).
58
Wal-Mart, 564 U.S. at 349-50 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
59
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.”60
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.61 These questions of
fact are common to the Plaintiff’s claims and will generate common answers.62
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.63 This
60
Id.
61
See Mot. for Class Cert., at 10.
62
See Wal-Mart, 564 U.S. at 350.
63
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.”64 But “[c]lass
members’ claims need not be identical to satisfy the typicality requirement.”65 This is
because “typicality measures whether a sufficient nexus exists between the claims of
the named representatives and those of the class at large.”66 “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.”67
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
warranty. 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 named Plaintiff experienced different
64
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).
65
Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012).
66
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)).
67
Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984).
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weather conditions, installation, and maintenance of his roof 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.”68 Varying experiences and unique defenses do not necessarily defeat
typicality.69 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.”70 This
requirement serves to uncover conflicts of interest between named parties and the
class they seek to represent.71 A determination of adequacy “encompasses two
separate inquiries: (1) whether any substantial conflicts of interest exist between the
68
City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 651
(S.D. Fla. 2010).
69
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.”).
70
FED. R. CIV. P. 23(a)(4).
71
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.”72 The Court finds that the named Plaintiff and her counsel
adequately represent the class. First, there is no evidence of any conflicts of interest
between the named Plaintiff and the class. As noted above, the named Plaintiff and the
putative class members seek to recover from the same alleged unlawful conduct – a
defect in the Defendant’s Shingles. Second, there is no evidence that the named
Plaintiff will not vigorously and adequately pursue the asserted claims on behalf of
the class members. Third, there is no evidence of any potential conflicts with class
counsel. Moreover, the Plaintiff has presented evidence that proposed class counsel
have extensive experience with class actions and are qualified to conduct this
litigation.73 Thus, the Plaintiff has satisfied 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.74 To meet the predominance requirement, “the issues in the class action
72
Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.
2003).
73
See Mot. for Class Cert., Ex. Tab 10.
74
FED. R. CIV. P. 23(b)(3).
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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.”75 “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.”76 Importantly, “[w]hether an issue predominates can
only be determined after considering what value the resolution of the class-wide issue
will have in each class member’s underlying cause of action.”77 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.78
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
75
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)).
76
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)).
77
Klay, 382 F.3d at 1255 (quoting Rutstein v. Avis Rent-A-Car Sys., 211
F.3d 1228, 1234 (11th Cir. 2000)).
78
Id.
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or individual questions by analyzing how each party will prove them at trial; and (3)
determine whether the common questions predominate.79 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.’”80
(i) Breach of Express Warranty
In Count II of her Complaint, the Plaintiff alleges that the Defendant violated
its express warranty. Under Florida law, to prevail on a breach of warranty claim, a
plaintiff must demonstrate the following elements: “(1) a covered defect existed in the
product at the time of sale; (2) notice of the defect was given within a reasonable time
79
817 F.3d 1225, 1234 (11th Cir. 2016).
80
Id. at 1235 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615
(1997)).
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after the defect was discovered; and (3) Defendant was unable to repair the defect.”81
In addition, the Plaintiff must establish causation and damages.82
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
reasons a roof may fail, including commonplace events and ordinary wear and tear.83
There are also numerous reasons a shingle may blister, crack, or suffer from granule
loss.84 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.85 In response, the
81
McLaughlin v. Monaco RV LLC, No. 8:14-cv-703-T-36TGW, 2015 WL
5355465, at *3 (M.D. Fla. Sept. 14, 2015) (quoting Burns v. Winnebago Indus., Inc.,
No. 8:11-cv-354-T-24TBM, 2012 WL 171088, at *3 (M.D. Fla. Jan. 20, 2012)).
82
See City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630,
640 (S.D. Fla. 2010) (citing McCraney v. Ford Motor Co., 282 So.2d 878, 878 (Fla.
1st Dist. Ct. App. 1973)).
83
See Primary Mot. for Class Cert., Ex. Tab 20, at 137-38.
84
Id., Ex. Tab 20, at 198.
85
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”).
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Plaintiff argues that if the jury agrees with her argument that a defect existed in every
Shingle at the time it was sold, then Atlas’s arguments regarding alternative causation
will be negated. 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
injuries in order for that class member to recover.86 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.87 In such cases, the plaintiffs typically only need to prove that the defect
86
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.”).
87
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”).
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existed at the time of purchase to prove the defect caused their economic injury.88
Here, even if the Plaintiff proves a common defect existed in the Shingles, each class
member cannot recover damages based on that fact alone. The class members 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 fact-intensive inquiry.
The Plaintiff cites two cases – Sanchez-Knutsen v. Ford Motor Co. and Brooks
v. GAF Materials Corp. – which she contends support her 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.89 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.90 The court in
Sanchez-Knutsen framed the plaintiffs’ damages as the diminution in the intrinsic
88
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.”).
89
Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 538 (S.D. Fla.
2015).
90
Id. at 533.
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value of their Explorers, not the repair costs.91 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
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.92 Specifically, the named plaintiffs sought to represent a class of individuals
whose shingles allegedly prematurely cracked.93 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.”94 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
91
Id. at 538-39.
92
Brooks v. GAF Materials Corp., No. 8:11-cv-00983-JMC, 2012 WL
5195982, at *1 (D.S.C. Oct. 19, 2012).
93
Id.
94
Id. at *6.
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– 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.95 Here, the breadth of the Plaintiff’s proposed class is 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.96 The third-owner class members are not even eligible to recover
under the 2002 limited warranty.97 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
95
Id. at *4.
96
See Def.’s Primary Resp. Brief, Ex. G.
97
Id.
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discovering it, and the 2002 limited warranty requires notice within thirty days of
discovery.98 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
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.
She cites several cases where courts have found that widespread consumer complaints
are sufficient to establish constructive notice.99 But the Florida 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, she 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
98
Id., Exs. G-H.
99
See, e.g., Muehlbauer v. General Motors Corp., 431 F. Supp. 2d 847,
859-60 (N.D. Ill. 2006).
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it knew the claimants were late. The Plaintiff cites RHL Properties LLC v. Neese100
in support of her contention. There, the Georgia Court of Appeals stated that courts
“will readily find a waiver of strict compliance with a notice provision based on the
conduct of the parties in order to avoid a forfeiture of substantive contractual
rights.”101 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.102 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 requirements are
individual issues 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 Florida law, the
statute of limitations for breach of warranty claims is five years.103 As the Defendant
100
293 Ga. App. 838 (2008).
101
Id. at 841.
102
Id. at 841-42.
103
Fla. Stat. § 95.11(2)(b).
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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.104 Thus, it is likely a large
percentage of the class members’ warranty claims will be barred by the statute of
limitations.105 The Plaintiff counters with the general rule that individual affirmative
defenses usually do not defeat predominance.106 Thus, she contends that the statute of
limitations 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.”107
104
See Mot. for Class Cert. Hearing [Doc. 366], at 102 under No. 1:13-md02495-TWT.
105
The Court notes that the issue of equitable estoppel will also involve
individualized evidence. For equitable estoppel, each class member will need to prove
that he or she was induced to delay the filing of his or her claim by the Defendant’s
alleged misrepresentations. See Licul v. Volkswagen Grp. of Am., Inc., No. 13-61686CIV, 2013 WL 6328734, at *6 (S.D. Fla. Dec. 5, 2013) (“Equitable estoppel . . . only
applies when a plaintiff is aware that he has a cause of action during the limitations
period, but forbears from bringing suit because of the defendant’s
misrepresentations.”).
106
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
of conduct is established.”).
107
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.)).
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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.108 Specifically, the Eleventh Circuit noted that affirmative
defenses that are coupled with several other individual questions could defeat
predominance.109 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 class’s warranty claims.
(ii) Florida Deceptive and Unfair Trade Practices Act
To state a claim under the FDUTPA, a plaintiff must demonstrate: “(1) a
deceptive act or unfair practice; (2) causation; and (3) actual damages.”110 The Court
finds that the Plaintiff’s FDUTPA claim fails because of both the causation and actual
damages elements. Each class member will need to demonstrate that the alleged
deceptive act or unfair practice caused his or her actual damages. Because many class
members did not directly purchase the Shingles from Atlas, this inquiry will produce
108
Id. at 1241.
109
Id.
110
Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1140 (Fla. Dist. Ct.
App. 2008).
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numerous individual questions.111 Such individual inquiries include whether the class
members were exposed to representations regarding the quality of the Shingles, and
whether class members had pre-existing knowledge of the alleged defect.112 The actual
damages element will also involve individualized evidence. The FDUTPA requires
that a plaintiff prove actual damages.
[T]he measure of actual damages is the difference in the market value of
the product or service in the condition in which it was delivered and its
market value in the condition in which it should have been delivered
according to the contract of the parties. . . . A notable exception to the
rule may exist when the product is rendered valueless as a result of the
defect-then the purchase price is the appropriate measure of actual
damages.113
Because the FDUTPA requires actual damages, it bars recovery of consequential
damages.114 “FDUTPA’s bar on recovery of consequential damages precludes the
recovery of the costs to repair” the class members’ roofs.115 The Plaintiff fails to
111
See In re Ford Motor Co. E-350 Van Products Liab. Litig. (No. II), No.
03-4558, 2012 WL 379944, at *30 (D.N.J. Feb. 6, 2012) (denying certification of
FDUTPA claims because of individualized causation questions).
112
See Pop’s Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677, 685 (S.D. Fla.
2008) (declining to certify a FDUTPA claim because certain class members had prior
knowledge of the alleged deception).
113
Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. Dist. Ct. App. 2006)
(quoting Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984)).
114
Id.
115
Id. at 869-70.
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acknowledge this significant difference in her briefs. Nor does she offer a “reasonable
methodology for generalized proof of the damages that are arguably recoverable under
FDUPTA.”116 The Court therefore declines to certify the Plaintiff’s FDUTPA claim.117
b. Superiority
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.”118 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.119
116
Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1140 (Fla. Dist. Ct.
App. 2008).
117
The Plaintiff’s FDUTPA claim is also subject to a four-year statute of
limitations. See Licul v. Volkswagen Grp. of Am., Inc., No. 13-61686-CIV, 2013 WL
6328734, at *6 (S.D. Fla. Dec. 5, 2013) (“The statute of limitations on a FDUTPA
claim expires four years from the date of sale of the product at issue.”).
118
FED. R. CIV. P. 23(b)(3).
119
Carriuolo v. General Motors Co., 823 F.3d 977, 989 (11th Cir. 2016)
(quoting FED. R. CIV. P. 23(b)(3)).
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Class certification “cannot be denied because the number of potential class members
makes the proceeding complex or difficult.”120 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.”121 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.”122
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 are not insignificant. The Plaintiff’s own expert opined that replacing
120
In re Theragenics Corp. Sec. Litig., 205 F.R.D. 687, 697 (N.D. Ga. 2002).
121
Id. at 697-98 (quoting In re Domestic Air Transp. Antitrust Litigation,
137 F.R.D. 677, 693 (N.D. Ga. 1991)).
122
Klay v. Humana, Inc., 382 F.3d 1241, 1269 (11th Cir. 2004).
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a roof can be “several thousand dollars to tens of thousands of dollars.”123 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.124 The owners
have the option of pursuing their claims in state court, where claims of several
thousands dollars are common.125 In sum, the Court finds that Rule 23(b)’s superiority
requirement is not satisfied.
B. 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.”126 The Plaintiff
123
See Primary Mot. for Class Cert., Ex. Tab 21, at 47.
124
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.”).
125
See Gonzalez v. Owens Corning, 317 F.R.D. 443, 524 (W.D. Pa. 2016).
126
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 19.
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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.”127 However, there is a split among courts over how
to apply the predominance test when asked to certify an issue class.128 Some courts
have certified issue classes despite a lack of overall predominance.129 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.”130 These courts note that “the proper interpretation of the interaction
127
FED. R. CIV. P. 23(c)(4).
128
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
Cir. 1996) (“A district court cannot manufacture predominance through the nimble use
of subdivision (c)(4).”).
129
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.”).
130
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).
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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.”131 The Court finds the
latter interpretation to be persuasive.132 As discussed above, even if the Plaintiff could
establish in a class-wide trial that the Shingles suffer from a common manufacturing
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.”133 As a result, the Court concludes a Rule
23(c)(4) class should not be certified.
131
Castano, 84 F.3d at 745 n.21.
132
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.
133
In re Conagra Peanut Butter Products Liability Litigation, 251 F.R.D.
689, 701 (N.D. Ga. 2008).
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C. 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
Florida on which Atlas Chalet or Stratford roofing shingles are currently installed.”134
The Complaint requests several declarations, including: “[t]he Shingles has a defect
which results in premature failure”; “Atlas’ warranty fails of its essential purpose”;
and “[c]ertain provisions of Atlas’ warranty are void as unconscionable.”135
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
predominant relief sought is injunctive or declaratory.’”136 The monetary relief must
be incidental to the injunctive or declaratory relief.137 “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
134
Mot. for Class Cert., at 5.
135
Compl. ¶ 145.
136
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)).
137
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))).
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entail complex individualized determinations.’”138 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.139
IV. Conclusion
For these reasons, the Court DENIES the Plaintiff Penny Seaberg’s Motion
for Class Certification [Doc. 39].
SO ORDERED, this 8 day of June, 2017.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
138
DWFII Corp., 469 F. App’x at 765 (quoting Murray 244 F.3d at 812).
139
The Defendant argues that the Plaintiff does not have standing to assert
her declaratory relief claim. However, the Court finds that Seaberg does have
standing. As the Court noted in its Order granting in part and denying in part the
Defendant’s Motion to Dismiss, “[t]he Plaintiff may establish redressability if she
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.’” In re Atlas Roofing Corp. Chalet Shingle
Products Liability Litigation, No. 1:13-md-2495-TWT, 2015 WL 3796456, at *2
(N.D. Ga. June 18. 2015) (quoting Utah v. Evans, 536 U.S. 452, 464 (2002)).
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