Nelson et al v. TAMKO Building Products, Inc.

Filing 16

MEMORANDUM AND ORDER dismissing 7 Motion to Stay Case. Signed by District Judge Monti L. Belot on 6/11/2015. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRENT NELSON and GINGER NELSON,
Plaintiffs,
v.
TAMKO BUILDING PRODUCTS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION
No.

15-1090-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendant TAMKO Building
Products’ motion to compel arbitration or, in the alternative, to
dismiss for improper venue.1

(Doc. 7).

briefed and is ripe for decision.

The motion has been fully

(Docs. 8, 9, 12).

Defendant’s

motion is denied for the reasons herein.
I.

Facts
In 2012, plaintiffs purchased a home in Independence, Kansas, at

a foreclosure sale.

In 2008, the previous home owner purchased

defendant’s Lamarite slate shingles.

The shingles were installed on

the roof by defendant. At some point, defendant stopped manufacturing
the specific shingles which were installed on plaintiffs’ home.
On March 15, 2014, several shingles blew and/or fell off of the
home.

Plaintiffs also observed that the shingles were cracked and

deteriorated.

Plaintiffs

replaced

the

shingles

at

a

cost

of

$89,652.75. In early 2015, plaintiffs’ counsel filed a warranty claim

1

The “venue” to which defendant apparently refers is the
American Arbitration Association. The status of the arbitration and
action, if any, by AAA, is unknown.

seeking reimbursement from defendant.

Defendant denied the claim,

asserting that defendant’s limited warranty did not apply.

The limited warranty contains the following provision:
MANDATORY BINDING ARBITRATION: EVERY CLAIM, CONTROVERSY, OR
DISPUTE OF ANY KIND WHATSOEVER INCLUDING WHETHER ANY
PARTICULAR MATTER IS SUBJECT TO ARBITRATION (EACH AN
“ACTION”) BETWEEN YOU AND TAMKO (INCLUDING ANY OF TAMKO’S
EMPLOYEES AND AGENTS) RELATING TO OR ARISING OUT OF THE
SHINGLES OR THIS LIMITED WARRANTY SHALL BE RESOLVED BY
FINAL AND BINDING ARBITRATION, REGARDLESS OF WHETHER THE
ACTION SOUNDS IN WARRANTY, CONTRACT, STATUTE OR ANY OTHER
LEGAL OR EQUITABLE THEORY.
(Doc. 8, exh. A).
On February 27, 2015, plaintiffs filed a petition in the District
Court of Montgomery County, Kansas, alleging claims of breach of
warranty, violation of the Kansas Consumer Protection Act, negligence,
fraud, etc.

(Doc. 1).2

Defendant removed the action to this court.

In addition to filing their petition in state court, plaintiffs also
filed

a

demand

for

arbitration

with

the

American

Arbitration

Association.
Defendant moves for an order staying this action and compelling
plaintiffs’ to arbitrate their claims.

Plaintiffs respond that they

are not contractually obligated to arbitrate.
II.

Analysis
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.,

ensures that written arbitration agreements in transactions involving
interstate commerce are “valid, irrevocable, and enforceable.” 9
U.S.C. § 2. Federal policy favors arbitration agreements and requires
2

Plaintiffs attached the limited warranty to their state court
petition.
-2-

that the Court “rigorously enforce” them.

Shearson/Am. Exp., Inc. v.

McMahon, 482 U.S. 220, 226, 107 S. Ct. 2332 (1987).

“[A]ny doubts

concerning the scope of arbitrable issues should be resolved in favor
of arbitration.”

Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

Although

federal policy under the FAA strongly favors arbitration, “when the
dispute is whether there is a valid and enforceable arbitration
agreement in the first place, the presumption of arbitrability falls
away.”

See Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d

775, 779 (10th Cir. 1998).
Defendant bears an initial summary-judgment-like burden of
establishing that it is entitled to arbitration.

Hancock v. American

Tel. and Tel. Co., Inc., 701 F.3d 1248, 1261 (10th Cir. 2012).

Thus,

defendant must present evidence which is sufficient to demonstrate an
enforceable agreement to arbitrate.

See id.; Oppenheimer & Co. v.

Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995).

If defendant makes such

a showing, the burden shifts to plaintiffs to demonstrate a genuine
issue for trial.

See id.

As pointed out by plaintiffs in their response, defendant failed
to establish that the limited warranty was part of an enforceable
agreement between plaintiffs or the previous homeowners and defendant.
(Doc. 9 at 5).

Defendant has merely attached the unauthenticated

limited warranty to its motion.3

Because defendant has not submitted

3

Defendant argues in its reply that plaintiffs admit that there
was a warranty between the previous owner and TAMKO. (Doc. 12 at 4).
Defendant, however, fails to cite to a document in which that
admission occurred. Plaintiffs’ affidavits clearly state that they
have not been provided with any agreement which was signed by the
prior owner. (Doc. 9, exhs. 1, 2).
-3-

evidence

sufficient

to

establish

an

enforceable

agreement

arbitrate, defendant’s motion to compel arbitration is denied.

to
The

court need not reach the issue of estoppel as defendant has failed to
establish that a binding agreement to arbitrate exists.

See, e.g.,

Lenox MacLaren Surgical Corp. v. Medtronic, Inc., No. 11-1251, 2011
WL 5545420 (10th Cir. Nov. 15, 2011)(establishing the existence of a
valid agreement signed by the party seeking to enforce the arbitration
clause prior to determining whether a non-signatory party is estopped
from asserting that it is not subject to arbitration).
III. Conclusion
Defendant’s motion to compel arbitration or, in the alternative,
dismiss is denied.

(Doc. 7).

A motion for reconsideration of this order is discouraged.

Any

such motion shall not exceed 3 double-spaced pages and shall strictly
comply with the standards enunciated by this court in Comeau v. Rupp,
810 F. Supp. 1172, 1174 (1992).

The response to any motion for

reconsideration shall not exceed 3 double-spaced pages.

No reply

shall be filed.

IT IS SO ORDERED.
Dated this

11th

day of June 2015, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

-4-