Waterfall Homeowners Association et al v. Viega, Inc. et al

Filing 81

ORDER Denying Motion to Transfer Case. Signed by MDL Panel on 2/9/12. (Copies have been distributed pursuant to the NEF - ASB)

Case MDL No. 2321 Document 197 Filed 02/09/12 Page 1 of 4

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: YELLOW BRASS PLUMBING COMPONENT
PRODUCTS LIABILITY LITIGATION

MDL No. 2321

ORDER DENYING TRANSFER

Before the entire Panel:* Pursuant to 28 U.S.C. § 1407, homeowners and property owners in
eight District of Nevada actions move to centralize this litigation in the District of Nevada.
Uponor/Wirsbo defendants1 in nine actions support centralizing all actions containing claims involving
their products (e.g., all but the District of Nevada Coleman-Toll action) in the District of Nevada. This
litigation currently consists of thirteen actions pending in three districts, as listed on Schedule A. The
Panel has been notified of nine additional, potentially related actions.
The positions of the parties to this litigation vary greatly. Various plumbing and supply
defendants2 and defendant/third party defendant Interstate Plumbing & Air Conditioning, LLC, oppose
centralization. D.R. Horton defendants3 oppose centralization (specifically transfer of the District of
Arizona Bembnister action), and alternatively suggest centralization of only Uponor/Wirsbo claims.
Defendants Centex Homes and Carina Corp. oppose centralization and, alternatively, support
centralization of Uponor/Wirsbo claims. Vanguard/Viega defendants4 and defendant King Bros.
Industries oppose centralization and, alternatively, request separation and remand of the claims against

*

Judge W. Royal Furgeson, Jr., did not attend the Panel’s January 2012 hearing session and thus
did not participate in the decision of this matter. Further, at oral argument, it was announced that more
than two Panel members have interests which would normally disqualify them under 28 U.S.C. § 455
from participating in the decision of this matter. Accordingly, the Panel invoked the Rule of Necessity
and all Panel members present participated in the decision of this matter in order to provide the forum
created by the governing statute, 28 U.S.C. § 1407. See In re Adelphia Communications Corp. Sec.
& Derivative Litig., 273 F. Supp. 2d 1353 (J.P.M.L. 2003); In re Wireless Telephone Radio Frequency
Emissions Prods. Liab. Litig., 170 F. Supp. 2d 1356 (J.P.M.L. 2001).
1

Uponor, Inc., Uponor North America, Inc., Wirsbo Company, and Uponor Wirsbo, Inc.

2

Ferguson Enterprises, Inc.; HD Supply Construction Supply LP; Anderson Fittings and Brass
Company LLC; HD Supply, Inc.; Hughes Water & Sewer, LP; RCR Plumbing and Mechanical, Inc.; and
United Plumbing, LLC.
3

4

D.R. Horton Inc.; D.R. Horton Inc.-Dietz-Crane Homes; DRH Southwest Construction Inc.
VG Pipe, LLC, Vanguard Industries, Inc., Vanguard Piping Systems, Inc., Viega, Inc., Viega, LLC.

Case MDL No. 2321 Document 197 Filed 02/09/12 Page 2 of 4

-2them. Plaintiffs in three D. Nevada declaratory judgment actions oppose centralization to the extent that
(1) transfer slows resolution of their pending motions to compel arbitration or (2) addition of nonNevada cases delays the transferee court’s ability to address the homeowners’ pre-litigation compliance
with Nev. Rev. Stat. § 40.600, et seq. Del Webb defendants5 (1) oppose centralization of the District
of Arizona Richards and District of Nevada Coleman-Toll actions, (2) support centralization of all cases
involving Uponor/Wirsbo claims, and (3) oppose centralization of claims involving Vanguard/Viega
products. Plaintiffs in the Arizona actions and third party defendant Ampam Riggs Plumbing, Inc., in
Richards oppose centralization of both Arizona actions. Plaintiff Coleman-Toll Limited Partnership and
defendant Rehau, Inc., oppose centralization of their action, District of Nevada Coleman-Toll. Various
parties also request that the Panel stay its transfer decision pending resolution of certain related appellate
activity.
Though the Panel has in the past centralized litigation involving market-wide conduct,6 we are
typically hesitant to centralize litigation against multiple, competing defendants which marketed,
manufactured and sold similar products.7 In the three plumbing products dockets in which the Panel has
centralized recently,8 we centralized actions concerning products made by a single defendant (or
defendant group) or actions involving Uponor products that were designed under a specific standard,
F1807. Here, several actions contain multiple unrelated defendants, the Uponor/Wirsbo products
reportedly fall under at least two standards (F1960 and F2080), and it is unclear which Uponor/Wirsbo
products are at issue in each action.
Moving parties are correct that the actions share some basic questions of fact because the
components at issue – made by at least three manufacturers – contained high zinc content brass produced
under two industry standards, UNS C36000 (machined brass) and/or UNS C37700 (forged brass).
However, significant localized intervening causation issues are expected to be at play (i.e., the applicable
standards according to which the fittings were made, the thickness of the product, manufacturing
conditions, proper installation/training, local water quality, compliance with local building codes, etc.)
in each action. At least three industry manufacturing standards are involved in this litigation, and the
Rehau and Vanguard/Viega products are at issue in, respectively, one and two actions, while
Uponor/Wirsbo products are at issue in most actions. Significantly, several plaintiffs include in their

5

Del Webb Communities, Inc.; PN II, Inc.; Pulte Building Systems, LLC; Del Webb Home
Construction Inc.; Pulte Home Corp.; Pulte Homes, Inc.; and PulteGroup Inc.
6

See, e.g., In re: Mutual Funds Investment Litig., 310 F.Supp.2d 1359 (J.P.M.L. 2004).

7

See In re: Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig., 709 F.Supp.2d 1375 (J.P.M.L.
2010); In re: Table Saw Prods. Liab. Litig., 641 F.Supp.2d 1384 (J.P.M.L. 2009); In re: Auction Rate
Securities Mktg. Litig., 581 F.Supp.2d 1371, 1372 (J.P.M.L. 2009).
8

See In re Zurn Pex Plumbing Prods. Liab. Litig., 572 F.Supp.2d 1380 (J.P.M.L. 2008); In re Kitec
Plumbing System Prods. Liab. Litig., 655 F.Supp 2d 1364 (J.P.M.L. 2009); In re Uponor, Inc., F1807
Plumbing Fittings Prods. Liab. Litig., 787 F.Supp.2d 1351 (J.P.M.L. 2011).

Case MDL No. 2321 Document 197 Filed 02/09/12 Page 3 of 4

-3class definitions other “attendant” plumbing system components which could implicate numerous other
manufacturers, eliminating many of the efficiencies that could be gained by centralization. Further, the
relatively advanced progress of the District of Arizona Richards action, the fact that one of the actions
is being arbitrated and others could proceed to arbitration, as well as the dissimilarity of numerous claims
convince us that the significant inconvenience to the parties and practical case management challenges
presented by centralization outweigh its benefits.
Considering all of these factors, the papers filed and hearing session held, we are not persuaded
that centralization of these actions would serve the convenience of the parties and witnesses or further
the just and efficient conduct of this litigation. We consider voluntary coordination among the parties
(many of whom are represented by the same counsel) and the involved judges (most of whom are located
in Nevada) to be a preferable alternative. Though we are denying centralization, we nevertheless
encourage the parties to pursue such alternatives, should the need arise, to minimize the potential for
duplicative discovery and inconsistent pretrial rulings. See, e.g., In re Eli Lilly and Co. (Cephalexin
Monohydrate) Pat. Litig., 446 F.Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex
Litigation, Fourth, § 20.14 (2004).
IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for
centralization of the actions listed on Schedule A is denied.

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
John G. Heyburn II
Chairman
Kathryn H. Vratil
Paul J. Barbadoro
Charles R. Breyer

Barbara S. Jones
Marjorie O. Rendell

Case MDL No. 2321 Document 197 Filed 02/09/12 Page 4 of 4

IN RE: YELLOW BRASS PLUMBING COMPONENT
PRODUCTS LIABILITY LITIGATION

MDL No. 2321

SCHEDULE A

District of Arizona
Jerry L. Richards, et al. v. Del Webb Communities Inc., et al., C.A. No. 2:11-00368
Anthony Bembnister, et al. v. D.R. Horton Incorporated - Dietz-Crane Homes, et al.,
C.A. No. 2:11-01458
District of Nevada
Solera at Anthem Community Association, Inc. v. Del Webb Communities, Inc., et al.,
C.A. No.2:11-00425
Fulton Park Unit Owners' Association, et al. v. PN II, Inc., C.A. No. 2:11-00783
Dakota Condominum Association v. Wirsbo Company, et al., C.A. No. 2:11-00812
Robert Wolinsky, et al. v. Carina Corporation, C.A. No. 2:11-00830
Coleman-Toll Limited Partnership v. Rehau, Inc., C.A. No. 2:11-01227
Greystone Nevada, LLC v. Fiesta Park Homeowners' Association, C.A. No. 2:11-01422
Greystone Nevada, LLC, et al. v Anthem Highlands Community Association,
C.A. No. 2:11-01424
U.S. Home Corporation v. Parker-Hansen, et al., C.A. No. 2:11-01426
Waterfall Homeowners Association, et al. v. Viega, Inc., et al., C.A. No. 2:11-01498
Charleston and Jones, LLC, et al. v. Uponor, Inc., et al., C.A. No. 2:11-01637
District of Oregon
Association of Unit Owners of East Village at Orenco Station, a Condominium v. Uponor,
Inc., et al., C.A. No. 3:11-01169