Disher et al v. Tamko Building Products, Inc. et al

Filing 255

ORDER: Defendant Tamko's Motion for Order Denying Class Certification as Moot (Doc. 246 ) is GRANTED. Plaintiffs' Motion to Certify Class (Doc. 239 ) is DENIED without prejudice to Class Counsel naming a new proposed class representative by June 18, 2018. The pending motions to exclude and/or Daubert motions (Docs. 178 and 188 ) submitted in relation to the class certification briefing are DENIED as MOOT and without prejudice. Signed by Judge Staci M. Yandle on 5/16/2018. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

RICHARD DISHER, ERIC KLINE,
JOHN O’MALLEY and
DIMITRI MISHUROV, on behalf of
themselves and all others similarly situated,
Plaintiffs,
vs.
TAMKO BUILDING PRODUCTS, INC.,
Defendant.

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Case No. 14-CV-740-SMY-SCW

MEMORANDUM AND ORDER
YANDLE, District Judge:
Pending before the Court is Defendant Tamko Building Products, Inc.’s (“Tamko”)
Motion for Order Denying Class Certification as Moot (Doc. 246). Plaintiffs filed a response in
opposition (Doc. 251). For the following reasons, the motion is GRANTED.
Procedural History and Background
Plaintiffs Richard Disher, Eric Kline, John O'Malley and Dimitri Mishurov 1 filed this
putative class action against Tamko, alleging product defect, breach of warranty, negligence, and
fraud claims. Plaintiffs own homes or other structures in Illinois, Kentucky, and Colorado on
which Tamko's shingles are or have been installed. Plaintiffs alleged that based on Tamko's
representations, they purchased the shingles with the expectation that they would last for at least
30 years. Plaintiffs also alleged that the shingles failed long before 30 years due to certain
design flaws that cause them to crack, curl, blister, de-granulate, deteriorate and cause damage to

1

On March 25, 2015, Mishurov dismissed his claims against Tamko with prejudice pursuant to Fed.R.Civ.P.
41(a)(1)(A)(ii) (Doc. 93).

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the underlying structure. Plaintiffs asserted that with knowledge of these design flaws, Tamko
sold and continues to sell the shingles and to make false representations and warranties with
respect to them.
Tamko moved to dismiss each Plaintiff's claims (Docs. 37, 39, and 41), and on July 31,
2015, this Court granted in part and denied in part Tamko's motions (Doc. 100). Specifically, the
Court denied Tamko's motion to dismiss Disher's strict liability, negligence, breach of express
warranty, unjust enrichment, and Illinois Consumer Fraud Act claims; denied Tamko's motion to
dismiss O'Malley's strict liability, negligence, fraudulent concealment and unjust enrichment
claims; and denied Tamko's motion to dismiss Kline's strict liability, negligence, fraudulent
concealment, Colorado Products Liability Act and breach of express warranty claims. Tamko
also moved to compel arbitration of Plaintiff Kline's claims (Doc. 67), which the Court granted
(Doc. 219).
In August 2015 and April 2016, Tamko filed motions for summary judgment on
Plaintiffs' remaining claims (Docs. 102, 133, and 140). Plaintiffs moved for class certification in
July 2016.

On February 15, 2018, the Court entered orders granting Tamko's motion for

summary judgment as to Disher in its entirety (Doc. 232) and granting in part Tamko's motion
for summary judgment as to O'Malley's claims; leaving only his strict liability and negligence
claims (Doc. 233). Plaintiffs' Motion for Class Certification remains pending. Tamko now
moves this Court to deny that Motion as moot.
Discussion
Decisions on dispositive motions may be made prior to addressing the certification issue
in order to determine whether “the claim of the named plaintiffs lacks merit.” See Cowen v.
Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995) (“The [defendant] elected to move

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for summary judgment before the district judge decided whether to certify the suit as a class
action. This is a recognized tactic.” (citations omitted); see also Fed.R.Civ.P. 23(c)(1) advisory
committee's notes to 2003 amendment (“The party opposing the class may prefer to win
dismissal or summary judgment as to the individual plaintiffs without certification and without
binding the class that might have been certified.”). Significant to this case, a decision that the
named plaintiff’s claim lacks merit disqualifies them as a proper class representative. The effect
is to moot the question whether to certify the suit as a class action. See Cowen, 70 F.3d at 941,
citing Hardy v. City Optical Inc., 39 F.3d 765, 770 (7th Cir. 1994); Glidden v. Chromalloy
American Corp., 808 F.2d 621, 626 (7th Cir. 1986).

However, the granting of summary

judgment in the defendant’s favor on an individual plaintiff's claims before the putative class is
certified does not have any preclusive effect on the future claims of anyone that might have been
included in the putative class but-for plaintiff's shortcomings. Cowen, 70 F.3d at 941-42.
Here, there is currently no plaintiff with a "live claim" who can pursue this litigation. See
Premium Plus Partners, L.P. v. Goldman, Sachs & Co., 648 F.3d 533, 538 (7th Cir. 2011) (it
doesn't matter whether the would-be representative has litigated and lost, or litigated and won;
both situations extinguish any live claim similar to the one held by the remaining members of the
class. It takes a representative with a live claim to carry on with a class action). All claims on
which Plaintiffs sought class certification have been dismissed, referred to arbitration or denied
as a matter of law:
•

Richard Disher sought class certification with respect to all of his claims
under Illinois law, including breach of express warranty, strict liability and
negligence, unjust enrichment and violation of the Illinois Consumer Fraud
Act. Disher's claims were dismissed as a matter of law in their entirety with
the granting of Tamko's motion for summary judgment.

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•

Eric Kline sought certification only with respect to his claims for breach of
express warranty, strict liability and negligence. Kline's claims, however, are
in arbitration. Thus, he cannot represent a proposed class at this time.

•

John O'Malley sought to represent a proposed Kentucky class with respect to
a claim for breach of express warranty. However, O'Malley's breach of
express warranty claim was denied prior to Plaintiffs' motion for class
certification.

Given that Disher, Kline, and O'Malley's class-action claims have been dismissed, they
can no longer be class representatives. Thus, the question of class-certification is irrelevant at
this juncture.

Collins v. Village of Palatine, Illinois, 875 F.3d 839, 846 (7th Cir. 2017).

Accordingly, Tamko's motion is GRANTED.
However, the Seventh Circuit instructs that if a named plaintiff falls short as a class
representative, Counsel should be given an opportunity to designate a new named plaintiff who
better "fits the bill." See Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1080-81 (7th Cir.
2013); Randall v. Rolls-Royce Corp., 637 F.3d 818, 827 (7th Cir. 2011); Phillips v. Ford Motor
Co., 435 F.3d 785, 786-87 (7th Cir. 2006). Therefore, this Court will briefly retain jurisdiction
to entertain motions to intervene so that Class Counsel can substitute someone with a live claim.
Counsel has until June 18, 2018 to find a new class representative.
Conclusion
Tamko's Motion for Order Denying Class Certification as Moot (Doc. 246) is
GRANTED. Plaintiffs' Motion to Certify Class (Doc. 239) is DENIED without prejudice to
Class Counsel naming a new proposed class representative by June 18, 2018. The pending
motions to exclude and/or Daubert motions (Docs. 178 and 188) submitted in relation to the
class certification briefing are DENIED as MOOT and without prejudice. Said motions may
be renewed, if necessary, if a new class representative moves for class certification.

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IT IS SO ORDERED.
DATED: May 16, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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