GONZALEZ v. OWENS CORNING et al

Filing 44

MEMORANDUM AND OPINION consolidating docket number 09-1567 and docket number 13-0936 with this case. Signed by Chief Judge Joy Flowers Conti on 9/27/2013. (ten).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAIME GONZALEZ, et al.,

)
)
Plaintiffs,
)
) Civil Action No. 13-cv-1378
v.
)
)
OWENS CORNING and OWENS
)
CORNING SALES, LLC,
)
Defendants.
)
_____________________________________________________________________________
GERALD BOEHM, et al.,
Plaintiffs,
v.
OWENS CORNING and OWENS
CORNING SALES, LLC,
Defendants.

)
)
)
) Civil Action No. 13-cv-0936
)
)
)
)
)

______________________________________________________________________________
PATRICIA WRIGHT, et al.,
Plaintiffs,
v.
OWENS CORNING and OWENS
CORNING SALES, LLC,
Defendants.

)
)
)
) Civil Action No. 09-1567
)
)
)
)
)

MEMORANDUM OPINION
CONTI, Chief District Judge
These are purported class actions seeking to recover damages caused by defective
roofing shingles sold by Owens Corning and Owens Corning Sales, LLC (collectively “Owens
Corning”). Pending before the court is a motion to consolidate Boehm, et al. v. Owens Corning,
et al. with Wright, et al. v. Owens Corning, et al., a case that is currently pending before this

court at 09-1567. (13-936, ECF No. 42.) Boehm was recently transferred to this court from the
United States District Court for the Central District of California. (Id., ECF No. 35.) Owens
Corning filed a brief in support of its motion to consolidate (ECF No. 43) and Boehm filed a
brief in opposition. (ECF No. 47.) The court held a hearing on the motion on September 23,
2013. For the reasons set forth below, Boehm and Wright will be consolidated with Gonzalez, et
al. v. Owens Corning, et al., 13-1378, which is another companion case that was recently
transferred to this court from the United States District Court for the Southern District of Texas.

I. FACTUAL BACKGROUND
On November 11, 2009, Patricia Wright and Kevin West (collectively “Wright”)
filed a putative class action complaint on behalf of themselves and a nationwide class of
individuals who own structures on which Owens Corning Oakridge roofing shingles have been
installed. (09-1567, ECF Nos. 1 and 119.) According to Wright, Owens Corning’s Oakridge
shingles are defective, and result in damage to the structures on which they are installed. (Id.)
The Wright case is currently in discovery related to class certification.
On February 28, 2013, the same attorneys representing Wright before this court
filed a putative class action complaint in the United States District Court for the Central District
of California on behalf of Gerald Boehm and a nationwide class of individuals who own
structures on which Owens Corning Oakridge roofing shingles have been installed. (Boehm, et
al. v. Owens Corning, et al., No. 13-0355 (C.D. Cal.), ECF No. 1.) Alternatively, Boehm sought
to represent a smaller class of individuals who own structures located in California. (Id.)

On

April 16, 2013, Boehm filed an amended complaint in which he abandoned his pursuit of a
nationwide class and asked the California court to certify only a class of California owners. (Id.,
ECF No. 13.)
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Similarly, the same attorneys representing Wright before this court and Boehm
before the California court filed a putative class action complaint in the United States District
Court for the Southern District of Texas on behalf of Jaime Gonzalez and a nationwide class of
individuals who own structures on which Owens Corning Oakridge roofing shingles have been
installed. (Gonzalez et al. v. Owens Corning, et al., No. 13-0032 (S.D. Tx.), ECF No. 1.)
Alternatively, Gonzalez sought to represent a smaller class of individuals who own structures
located in Texas. (Id.)

On April 5, 2013, Gonzalez filed an amended complaint in which he

abandoned his pursuit of a nationwide class and asked the Texas court to certify only a class of
Texas owners. (Id., ECF No. 23.)
Around the same time that counsel for Gonzalez and Boehm was seeking to limit
the class allegations in the California and Texas courts to owners of California and Texas
structures only, Wright filed a motion in this court that effectively sought to excise putative class
members located in California and Texas from the nationwide class previously proposed. (091567, ECF No. 150.) This court denied that motion, finding that it would result in judicial
inefficiencies and prejudice Owens Corning to have “to defend the same kinds of claims on three
different fronts.” (13-0936, ECF No. 42, Ex. A at 7, 12.) Thereafter, both the California and
Texas district courts transferred the actions pending against Owens Corning to this court.
In doing so, Judge Selna, of the United States District Court for the Central
District of California, noted that “…the class action definition in Wright [nationwide class]
necessarily incorporates the class in Boehm [California class]… and the issues are substantially
similar and arise from the same alleged actions by [Owens Corning].” (Id., ECF No. 35 at 1.)
Judge Kazen relied on analogous reasoning in transferring Gonzalez from the Southern District
of Texas to this court. Specifically, Judge Kazen found “substantial overlap” between the “core

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issues”, evidence, legal claims and parties in Gonzalez and Wright. (13-1378, ECF No. 42 at 79.)
After Judge Selna transferred Boehm to this court, Owens Corning filed the
instant motion to consolidate Boehm with Wright. (13-0936, ECF No. 42.) Although Gonzalez
had not yet been transferred to this court, Owens Corning asked that in the event it was later
transferred, this court also consolidate Gonzalez for the same reasons. (Id., ECF No. 43 at 2 n.1.)
While the instant motion was pending in Boehm, the United States District Court for the
Southern District of Texas transferred Gonzalez to this court. At the September 23rd hearing,
counsel for Boehm, who is the same attorney representing Gonzalez, stated that he would raise
the same substantive objections to consolidating Gonzalez with the cases already pending in this
court. Because those issues had been fully briefed, and because no party objected, the court
proceeded to consider whether Gonzalez, Boehm and Wright should all be consolidated.

II. LEGAL AUTHORITY
Federal Rule of Civil Procedure 42(a) provides that a court may consolidate
separate actions that are pending before the court if the actions “involve a common question of
law or fact.” FED. R. CIV. P. 42(a). “The moving party bears the burden of proof on a motion for
consolidation.” Farahmand v. Rumsfeld, No. 02-1236, 2002 WL 31630709, at *1 (E.D. Pa. Nov.
20, 2002). “The purpose of consolidation is ‘to streamline and economize pretrial proceedings
so as to avoid duplication of effort, and to prevent conflicting outcomes in cases involving
similar legal and factual issues.’” In re TMI Litig., 193 F.3d 613, 724 (3d Cir. 1999) (quoting In
re Prudential Securities, Inc. Ltd. Partnerships Litig., 158 F.R.D. 562, 571 (S.D.N.Y. 1994)).

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A district court has broad discretion to determine whether consolidation would
facilitate the administration of justice. In re Mock, 398 F. App’x 716, 718 (3d Cir. 2010).
“When exercising this discretion, a court should weigh the benefits of judicial economy ‘against
the potential for new delays, expense, confusion or prejudice.’” Farahmand, 2002 WL 31630709,
at *1 (quoting Easton & Co. v. Mut. Benefit Life Insur. Co., No. 91-4012, 1992 WL 778794, at
*4 (D.N.J. Nov. 4, 1992)).

III. DISCUSSION
Owens Corning argues that consolidation of the Wright case and the Boehm case
is proper because it would be prejudicial and duplicative to litigate these two cases separately.
Owens Corning supports its motion with citations to this court’s May 14, 2013 oral decision
rejecting Wright’s attempt to excise the California and Texas class members from Wright, and
Judge Selna’s June 24, 2013 opinion granting Owens Corning’s motion to transfer the Boehm
case to this court, as well as to the operative complaints in each action and relevant case law, all
of which, it contends, demonstrate that these two cases should be consolidated because they
involve the same counsel, the same parties or proposed classes, the same facts and the same legal
grievances. (13-0936, ECF No. 43.) Equivalent arguments apply to joining the newly transferred
Gonzales case. As Judge Kazen recognized, that case involves the same parties, legal claims,
factual issues and evidence as Wright. (13-1378, ECF No. 42 at 7-9.)
In opposition, Boehm argues that his case, although factually similar to Wright’s
pending action, is ultimately different because he asserts “unique claims” under three California
state statutes on behalf of a purported class of California residents. (13-0936, ECF No. 47 at 2.)
In addition, Boehm argues that he would be prejudiced if forced to “rush his case along” the
same schedule as the Wright case, in which discovery on the issue of class certification will be
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completed in about a month. (Id. at 4.) At the September 23rd hearing, when counsel for
Boehm/Gonzalez was given the opportunity to address the propriety of consolidating the newlytransferred Gonzalez case, as well as Boehm, he indicated that the prejudice caused by having to
“rush” the transferred cases through discovery was the principal objection.
The court finds that Owens Corning satisfied its burden to establish that
consolidation of Wright and Boehm and Gonzalez is appropriate. Three United States District
Court Judges recognized that pursuit of Boehm and Gonzalez separate from Wright will result in
duplicative efforts, wasted judicial and party resources, and the risk of inconsistent judgments.
(13-0936, ECF No. 42-1 (Conti, J.); 13-1378, ECF No. 42 (Kazen, J.) and 13-0936, ECF No. 35
(Selna, J.).) All three cases are based on the same general grievance; i.e., that Owens Corning
sold Oakridge roofing shingles knowing that they were defectively designed but claiming that
they were of high quality, and failed to honor the various warranties held by the purchaser when
the shingles failed, causing property damage. (13-1378, ECF No. 23 (Gonzalez Complaint); 091567, ECF No. 119 (Wright Complaint) and 13-0936, ECF No. 42-2 (Boehm Complaint).)
While the Wright case seeks to certify a nationwide class whose property was damaged by
Owens Corning’s shingles, the Boehm case seeks to certify a class of California residents whose
property was damaged by Owens Corning’s shingles and the Gonzalez case seeks to certify a
class of Texas residents whose property was damaged by Owens Corning’s shingles. (Wright
Complaint ¶¶ 55-56; Boehm Complaint ¶ 53; and Gonzalez Complaint ¶ 54.) Therefore the
proposed classes in Boehm and Gonzalez are subsumed within the proposed class in Wright.
Based on these facts, this court finds that these three actions “involve a common
question of law or fact” and that consolidation will streamline and economize pretrial
proceedings, avoid duplication of effort, and prevent conflicting outcomes. In reaching this
conclusion, the court weighed the benefits of judicial economy against the potential for new
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delays, expense, confusion and prejudice, and considered each of counsel’s arguments in
opposition to consolidation. The fact that much of the expense and delay was self-inflicted upon
Boehm and Gonzalez, whose counsel attempted to pursue duplicative actions in California and
Texas while simultaneously asking this court to certify a nationwide class of Owens Corning
customers, weighed significantly in the court’s consideration of these factors.
As such, the court summarily dispenses with Boehm’s argument that his case
should not be consolidated with Wright because he seeks certification of a class of California
owners, while Wright seeks certification of a nationwide class. This court already concluded that
judicial economy was not served by excising the California and Texas class members from the
Wright case, and that those owners would not be prejudiced by remaining members of the
purported class in Wright. (13-0936, ECF No. 42-1 at 4-6.) In denying Wright’s motion for
leave to file a Fourth Amended Complaint, the court further indicated that any potential class
member could pursue individual litigation in his home-state, or status as a representative of a
state-specific sub-class, should this court ultimately refuse to certify a nationwide class. (Id. at
12-13.) These conclusions dispense with Boehm’s contention that this court cannot consolidate
the Wright case and the Boehm case because the latter is limited to California owners. Although
counsel did not extend these arguments in opposition to consolidating Gonzalez with Wright, the
identical analysis would apply to the Texas owners represented in that action.
The court now turns to Boehm’s allegation that his case cannot be consolidated
with Wright because his complaint asserts violations of three California statutes, while Wright’s
complaint does not. Boehm is correct that his complaint accuses Owens Corning of violating
California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act
and Wright’s complaint does not. (13-0936, ECF No. 42-2 at 18-20.) However, Wright’s
complaint does accuse Owens Corning of violating Pennsylvania’s Unfair Trade Practices and
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Consumer Protection Law. (09-1567, ECF No. 119 at 21-23.) The allegations made by Wright
and by Boehm as to how Owens Corning violated those state statutes are substantially similar.
In short, both complaints accuse Owens Corning of violating state statutory law by making false
or misleading statements to consumers regarding the quality and characteristics of its shingles,
and failing to notify consumers of defects in the shingles. (13-0936, ECF No. 42-2 ¶¶ 67, 75, 80,
87-88; 09-1567, ECF No. 119 ¶¶ 72, 76-78.) While the exact statutory language being violated
could lead to a different analysis at summary judgment, or could require separate jury
instructions at trial, the court does not consider these possibilities to raise the specter of
confusion or complication such that consolidation would be improper.
To this exact point, Boehm’s own pleadings in the California district court
acknowledge that California’s consumer protection statutes are essentially interchangeable with
other state’s consumer protection statutes. Although Boehm’s original California complaint
alleged violations of three California statutes, because Boehm was seeking certification of a
nationwide class at the time, after citing the allegedly violated California statute, he included the
following language: “or substantially similar Consumer Fraud and Deceptive Trade Practices
Acts of the homes states of Class members.” (Boehm, et al. v. Owens Corning, et al., No. 13-355
(C.D. Cal.), ECF No. 1 ¶¶ 71, 79, 94.) This language demonstrates that Boehm recognized that
each state’s consumer fraud and deceptive trade practices statutes are substantively
interchangeable. Due to an apparent drafting error, this language was not removed when Boehm
filed his first amended complaint in California, even though, at that point, he was seeking to
assert claims only on behalf of California residents. (13-0936, ECF No. 42-2 ¶¶ 70, 78, 93.) As
such, Boehm’s own pleadings in California undercut the argument he makes before this court
that consolidation is improper because his California statutory claims are “unique.”

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Again, although counsel did not specifically extend these arguments in opposition
to also consolidating Gonzalez with Wright, the identical analysis would apply.

Gonzalez

includes a count accusing Owens Corning of violating Texas’ Deceptive Trade Practices Act.
(13-1378, ECF No. 23 at 26-27.) That count is likewise based on Owens Corning’s alleged
misrepresentations regarding the quality of its Oakridge shingles, and thus, does not present any
“unique” issues that would bar consolidation.
Finally, the court cannot conceive of how any differences in the precise language
used in a particular state’s consumer protection statutes would lead to different discovery on the
issues of class certification or liability. For its part, Boehm failed to identify any factual issue
that is unique to his California claims or to explain how his California claims will involve
discovery that is not contemplated by the complaint in Wright. Counsel was unable to make a
comparable showing on behalf of Gonzalez regarding his claims under Texas law during the
September 23rd hearing. Because the claims in Gonzalez and Boehm and Wright are all based
upon the same facts and legal theories it is unlikely that litigation of the claims made in Boehm
or Gonzalez will require any “unique” discovery. This conclusion is particularly true because
Boehm, and the California owners that he seeks to represent, and Gonzalez and the Texas owners
that he seeks to represent are, and always have been, members of the class being proposed in
Wright. As such, the class representatives in the Wright case are litigating on Boehm’s and
Gonzalez’s behalf, including pursuing discovery on all relevant matters.
Nevertheless, in order to avoid any possible prejudice, the court provided counsel
for Boehm/Gonzalez with an chance to identify any discovery issues that are “unique” to the
Boehm or Gonzalez actions, and, after meeting and conferring with counsel for Owens Corning,
petition the court for an appropriate extension of the class certification discovery period, which is
currently set to expire on October 31, 2013. If specialized discovery proves to be required, the
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court expects that it will be limited in scope and duration. Thus, even if an extension of the
discovery period becomes necessary, the resulting delay in the proceedings would be justified to
serve the greater interest in avoiding duplicative effort and conflicting outcomes. The foregoing
procedure dispenses entirely with Boehm’s and Gonzalez’s argument that they, and the statespecific classes they seek to represent, would be prejudiced if forced to adhere to the schedule
currently in place in Wright.

IV. CONCLUSION
For all of the foregoing reasons, Boehm, et al. v. Owens Corning, et al., No. 130936, and Wright, et al. v. Owens Corning, et al., No. 09-1567 will be consolidated with
Gonzalez, et al. v. Owens Corning, et al., No. 13-1378. An appropriate order will be docketed.

Dated: September 27, 2013

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

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