Andrews et al v. Pella Corporation et al
Filing
37
ORDER AND REASONS granting in part as to Count VII, denying without prejudice in part as to Count XI and dismissing as moot as to Counts I-VI re 27 Motion to Dismiss for Failure to State a Claim. Signed by Judge Helen G. Berrigan on 10/7/2013. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTY AND GREG ANDREWS,
ET AL, ETC.
CIVIL ACTION
VERSUS
NO. 13–344
PELLA CORPORATION, ET AL
SECTION ʺCʺ (4)
ORDER AND REASONS
This matter comes before the Court on motion to dismiss first amended
complaint pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6) filed by Pella Corporation
(ʺPellaʺ). Rec. Doc. 27. Having reviewed the record, the memoranda of counsel and the
law, the Court rules as follows.
The plaintiffs in this class action are Louisiana homeowners who live in houses
allegedly containing windows manufactured by Pella. They claim that the windows
were defective and caused damages to their houses. In the First Amended Complaint
filed under 28 U.S.C. § 1332, the plaintiffs include claims for a ʺnationalʺ class action,1
along with a Louisiana subclass alleging a claim under Louisiana law for breach of
1
The plaintiffs identify these claims in ¶¶ 58–118 of the First Amended
Complaint.
express warranty under La. Rev. Stat. § 9:2800.58,2 and a national class and Louisiana
subclass seeking declaratory relief that the windows are defective, that provisions of the
warranty are void as unconscionable, that Pella must notify the owners of defects and
pay the cost of inspection to determine if window replacement is needed.3 Rec. Doc. 20.
Since the filing of this motion, the plaintiffs voluntarily dismissed the national class
action claims set forth in ¶¶ 58–118 of the First Amended Complaint. Rec. Doc. 30.
Pella argues that the claim set forth in Count XI for declaratory relief should be
dismissed because the plaintiffs do not allege an underlying substantive cause of action.
The plaintiffs oppose dismissal with the argument that the Court has discretion to
declare the rights and other legal relations whether or not other relief is available or
being sought under the Declaratory Judgment Act, 28 U.S.C. § 2201, because it provides
that the court ʺmay declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be sought.ʺ The
plaintiffs also argue that there exists a substantial and continuing controversy between
the parties warranting the exercise of the Courtʹs discretion under the statute. Rec. Doc.
2
The First Amended Complaint sets forth this claim at ¶¶ 119– 133, although
Pella refers to it as ʺCount VII.ʺ
3
The plaintiffs identify this claim in ¶¶157– 160 of the First Amended Complaint,
although Pella refers to it as ʺCount IX.ʺ
2
31‐1 at 6–7. The plaintiffs also allege that they have an independent basis for subject
matter jurisdiction under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d).
Pella counters that the only remaining claims are based on the Louisiana Products
Liability Act, which does not permit equitable determinations such as those sought by
the plaintiffs in Count XI.
The Court finds if CAFA continues to provide a basis for subject matter
jurisdiction, it does not provide a claim to support a declaratory action. The Court
admits to difficulty in understanding the plaintiffsʹ argument on this issue, and assumes
that whatever relief is available on the remaining claims is already being sought by the
plaintiffs. In addition, the plaintiffsʹ explanation of the nature of any ʺcontinuingʺ
dispute warranting a declaratory action is not clear to the Court. Nonetheless, the
Court does find that the distinct issue whether the LPLA provides the Court with the
authority to make equitable determinations, raised by Pella in its reply brief, is not
properly presented in the motion to dismiss and would more properly addressed on a
motion for summary judgment, accompanied by legal support. The motion to dismiss
on this count will be denied, reserving to the defendant the right to challenge the claim
on summary judgment, if appropriate.
Next, Pella argues that the plaintiffs have failed to plead the required elements
3
for an express warranty claim under the LPLA in Count VII because they do not allege
that they were induced to use the product because of the warranty. The plaintiffs argue
in opposition that they have quoted from the Ownerʹs Manualʹs representations about
testing and performance. The Court reads the First Amended Complaint on this claim
as alleging that Pella made express representations to induce the purchase of the
window, but does not allege that the plaintiffs were induced by any such
representation. Under La. Rev. Stat. § 2800.58:
A product is unreasonably dangerous when it does not conform to an express
warranty made at any time by the manufacturer about the product if the express
warranty has induced the claimant or another person or entity to use the
product and the claimantʹs damage was proximately caused because the express
warranty was untrue.
(emphasis added). In order to recover under this statute, the plaintiff must prove: (1)
the manufacturere made an express warranty regarding the product, (2) the plaintiff
was induced to use the product because of this warranty; (3) the product failed to
conform to that express warranty; and (4) the plaintiffʹs damage was proximately
caused because the express warranty was untrue. Caboni v. General Motors Corp., 278
F.3d 448, 452 (5th Cir. 2002)(emphasis added). As such, the plaintiffsʹ allegations fall
short of the mark.
The record reflects that the plaintiffs have already amended their complaint once
4
after the defendant filed its first motion to dismiss. The plaintiffs do not request an
additional opportunity to amend the complaint with regard to this motion.
Accordingly,
IT IS ORDERED that the motion to dismiss first amended complaint pursuant to
Fed. R. Civ. P. 9(b) and 12(b)(6) filed by Pella Corporation is PARTIALLY GRANTED as
to Count VII ( ¶¶ 119–133), PARTIALLY DENIED WITHOUT PREJUDICE as to Count
XI (¶¶157– 160) and DISMISSED AS MOOT as to Counts I‐VI (¶¶ 58–118). Rec. Doc. 27.
New Orleans, Louisiana, this 7th day of October, 2013.
____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT COURT
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