Torch v. Windsor Surry Company et al
OPINION AND ORDER: Granting Motion for Leave to File Amended Complaint/Petition 40 ; Finding as Moot Motion to Dismiss 17 ; Finding as Moot Motion to Strike 18 . Amended Complaint is due 11/7/2017. Signed on 10/24/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT TORCH, on behalf of himself and
all others similarly situated,
Case No. 3:17-cv-00918-AA
OPINION AND ORDER
WINDSOR SURRY COMPANY, d/b/a
WINDSORONE; WINDSOR WILLITS
COMPANY, d/b/a WINDSOR MILL; and
WINDSOR HOLDING COMPANY,
In this putative products liability class action, plaintiff Robett Torch moves for leave to
file an amended complaint. Defendants Windsor Surry Company, Windsor Willits Company,
and Windsor Holding Company (together, "Windsor" or "defendants") move for an order
dismissing all of the causes of action in the Complaint. In addition, defendants move for an
order striking all of the class allegations and class claims for relief in the Complaint.
For the reasons set foiih herein, plaintiffs motion to amend is GRANTED and
defendants' motion to dismiss and motion to strike are DENIED as moot.
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This is a products liability case involving allegedly defective wood boards used for
external trim on houses and other buildings. Plaintiff and Putative Class Representative Robeii
Torch alleges the WindsorONE trim board installed at his house prematurely rotted and
deteriorated, causing significant damage to his home.
On behalf of himself and a class of
similarly situated persons, plaintiff seeks damages and declaratory relief.
On June 12, 2017, plaintiff filed this action against defendants, asserting seven claims for
relief: (1) strict products liability, (2) negligence, (3) breach of express warranty, (4) breach of
implied wa1rnnty of merchantability under Or. Rev. Stat. § 72.3140, (5) breach of implied
warranty of fitness for particular purpose under Or. Rev. Stat. § 72.3150, (6) breach of
manufacturer's implied wananty of merchantability under Or. Rev. Stat. § 72.8020, and (7)
declaratory relief. Plaintiff seeks to bring this case as a class action under Federal Rule of Civil
Procedure 23. The proposed class is: "All persons and entities in the State of Oregon who own
or owned homes, apmiments, office buildings, or other structures in which WindsorONE trim
board is or was installed on the exterior[.]" Comp!.
On August 11, 2017, defendants filed a motion to dismiss and, alternatively, a motion to
strike the class allegations, arguing plaintiffs claims are barred by the statutes of limitations,
implied wananties do not apply because of the terms of the express warranty, and plaintiff did
not rely on any statements about WindsorONE trim board in deciding to purchase his house ..
Defendants also contend that plaintiff's complaint is defective because the proposed class is
overbroad, includes putative members who lack standing, and is insufficiently numerous and
because Plaintiff Robert Torch is an atypical and inadequate class representative. Additionally,
defendants aver that individual issues will predominate and that individual actions would be a
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superior method of adjudicating the controversy.
On September 22, 2017, plaintiff filed a
motion for leave to amend the complaint. I will first address the motion to amend.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 15(a), "[t]he court should freely give leave [to
amend] when justice so requires." Fed. R. Civ. P. 15(a)(2); see also Sonoma Cly. Ass'n of
Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) ("In general, a comt should
liberally allow a patty to amend its pleading."). The Ninth Circuit has cautioned that a court
"may decline to grant leave to amend only if there is strong evidence of 'undue delay, bad faith
or dilatory motive on the patt of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing patty by virtue of allowance of the
amendment, [or] futility of amendment, etc."' Id. (alteration in original) (quoting Foman v.
Davis, 371U.S.178, 182 (1962)).
Defendants argue that amendment would be futile and that plaintiffs motion for leave to
amend should therefore be denied.
Plaintiffs proposed amendment adds a plaintiff, Jesus
Defendants argue that plaintiffs proposed amendment is futile because
Gomez's claims are barred by the applicable statutes of limitations. In addition, defendants
argue that plaintiffs have not alleged any tolling of the statute of limitations. Finally, defendants
argue that the the proposed amendment is futile because it adds a plaintiff, Gomez, who is not a
typical or adequate class representative.
Futility alone is enough to deny a motion for leave to amend. Nunes v. Ashcroft, 375
F.3d 805, 808 (9th Cir. 2004). However, a proposed amendment is futile only if"no set of facts
can be proved under the amendment to the pleadings that would constitute a valid and sufficient
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claim." }vfiller v. Rykojf---Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). 1 Additionally, a
proposed amendment is futile if it "either duplicative of existing claims or patently frivolous, or
both." Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir. 1995). The party opposing the amended
complaint bears the burden of showing futility. Nunes, 375 F.3d at 808.
Plaintiff, in the initial complaint and the proposed amended complaint, asse1is equitable
Plaintiff alleges that "[d]ue to Defendants' fraudulent concealment of the defects
associated with its trim board, Defendants are estopped from asse1iing statute of limitations
defenses to any of the claims alleged herein."
149; Proposed Amend.
In addition, plaintiff, in response to defendants' motion to dismiss, asse1is equitable tolling of the
statute of limitations. Plaintiff alleges that he "was a putative class member in an action pending
in the United States District Comi for the Northern District of California" which "alleg[ed]
essentially the same facts and claims as the instant action." Pl.'s Mem. Opp. Defs.' Mot Dismiss
10 (doc. 42). Plaintiff asserts that "the California action tolled the statute of limitations for Mr.
Torch and the putative class."
Equitable tolling and equitable estoppel are doctrines which may apply to extend the
limitations period or preclude a defendant from asserting that defense. Lukavsky v. City & Cty.
of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008). Equitable estoppel, which is sometimes
referred to as "fraudulent concealment," focuses primarily on actions taken by the defendant to
prevent a plaintiff from filing suit. Id. Conversely, equitable tolling focuses on "whether there
was excusable delay by the plaintiff: If a reasonable plaintiff would not have known of the
1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009) rejected the "no set of facts" test for motions to dismiss for failure to state a
claim. However, even after Twombly and Iqbal, the Ninth Circuit has continued to apply the "no
set of facts" test to motions for leave to amend. See, e.g., lvfissouri ex rel. Koster v. Harris, 847
F.3d 646, 656 (9th Cir. 2017).
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existence of a possible claim within the limitations period, then equitable tolling will serve to
extend the statute of limitations for filing suit until the plaintiff can gather what information he
needs." Id. (quoting Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002)).
Analysis of whether the statute of limitations has actually been tolled or whether
defendants are equitably estopped from asse1ting statute of limitations defenses is not appropriate
at this stage of the litigation, as I am simply looking to whether there is a set of facts that, if
proven, would constitute a valid and sufficient claim.
Given what is alleged in plaintiffs
proposed amended complaint, including but not limited to the facts regarding equitable estoppel
and equitable tolling, I cannot conclude the amendment would be futile.
In addition, plaintiffs proposed amended complaint includes facts regarding the
typicality and adequacy of the proposed additional plaintiff as a class representative.
those allegations could support a finding that proposed plaintiff Gomez is an adequate class
representative. Again, weighing the evidence supporting those allegations is not appropriate at
this juncture. Inclusion of facts that, if proved, would constitute a valid and sufficient claim is
sufficient for purposes of allowing plaintiff leave to amend his complaint.
Because the proposed amendments are not futile, because I find no other reason to
decline to grant leave to amend exists, and because permitting amendment serves the interests of
justice, plaintiffs motion for leave to file an amended complaint is granted. Defendants have not
caiTied their burden of showing that the amendment would be futile.
Because defendants' motion to dismiss and motion to strike are based on plaintiffs initial
complaint, those motions are denied as moot. Defendant may again make those motions upon
plaintiffs filing of an amended complaint. I realize that even upon plaintiffs amendment,
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substantial portions of defendants' arguments may remain applicable and defendants may
reassert those arguments.
Defendants, in their opposition to plaintiffs motion to amend, request that the Couti take
judicial notice of a pending action, Windsor Suny Company, et al. v. Jesus Gomez, Case No.
l 7CV41107, filed September 20, 2017 in the Circuit Court of the State of Oregon, County of
That case, which defendants filed against proposed plaintiff Gomez, asse1is
Gomez breached a settlement agreement and release by attempting to join this lawsuit.
Defendants' request for judicial notice is GRANTED, as court filings are appropriate subjects of
judicial notice. See Fed. R. Evid. 20l(b)(2). However, the pending state court action does not
justify denying plaintiffs motion to amend because an unresolved breach of contract claim does
not establish futility of amendment. Defendants may assert arguments regarding breach of a
settlement agreement and/or release in subsequent motions once plaintiff files an amended
Plaintiffs Motion for Leave to File First Amended Class Action Allegation Complaint
(doc. 40) is GRANTED and defendants' Motion to Dismiss Plaintiffs Complaint Pursuant to
Fed. R. Civ. P. 12(b)(6) (doc. 17) and Motion to Strike Class Allegations (doc. 18) are DENIED
as moot. Plaintiff is granted leave to file an amended complaint within 14 days of this order.
IT IS SO ORDERED.
Dated this cliday of October 2017.
United States District Judge
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