Andrews et al v. Pella Corporation et al

Filing 99

ORDER granting 81 Motion to Dismiss plaintiffs' class claims with prejudice; granting 82 Motion for Leave to File a Second Amended Complaint provided the Second Amended Complaint does not contain class claims or an individual claim for breach of express warranty. Signed by Honorable David C Norton on 10/27/15.(elim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
CHRISTY and GREG ANDREWS and
TANYA and GARY CONLAY, on behalf
of themselves and on behalf of all others
similarly situated,
Plaintiffs,
vs.
PELLA CORPORATION,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)

No. 2:14-mn-00001-DCN
No. 2:14-cv-00539-DCN

ORDER

This matter is before the court on defendant’s motion to dismiss class action
claims, ECF No. 81, and plaintiffs’ motion for leave to file a second amended complaint,
ECF No. 82. For the reasons set forth below, the court grants defendant’s motion to
dismiss class action claims and grants plaintiffs’ motion for leave to file a second
amended complaint.
I. BACKGROUND
Plaintiffs Tanya and Gary Conlay (“the Conlays”) (hereafter “plaintiffs”) filed the
present action in the Eastern District of Louisiana on February 24, 2013 asserting
diversity jurisdiction.1 On May 22, 2013, plaintiffs filed an amended complaint, alleging
the following eleven causes of action: (1) strict liability, (2) negligence, (3) breach of
express warranty, (4) breach of implied warranties, (5) negligent misrepresentation, (6)
fraud,2 (7) breach of express warranty, (8) design defect, (9) construction or composite

1

Christy and Greg Andrews were originally named plaintiffs in this action. However, the court granted the
Andrews’ voluntary motion to dismiss without prejudice on January 13, 2015. Therefore, the Conlays are
the only remaining plaintiffs in this action.
2
“National Class causes of action,” Pl.’s Compl. ¶¶ 58-118.

1

defect, (10) redhibition,3 and (11) declaratory relief.4 Prior to transfer to this court,
plaintiffs voluntarily dismissed their national class claims for strict liability, negligence,
express warranty, implied warranty, negligent misrepresentation, and fraud pursuant to
Rule 41(a)(1)(A). ECF No. 30. The Eastern District of Louisiana subsequently
dismissed plaintiffs’ state law claim for breach of express warranty. ECF No. 37. Thus,
plaintiffs’ only remaining claims are Louisiana state law claims for design defect and
construction defect under the Louisiana Products Liability Act, redhibition, and
declaratory relief. The United States Judicial Panel on Multidistrict Litigation transferred
the plaintiffs’ case to this court on February 27, 2014.
The court was set to hear oral arguments on Pella’s motion to strike class claims
in this matter on November 20, 2014. On November 18, 2014, plaintiffs’ counsel sent
Pella an email stating “[p]laintiffs will dismiss the class claims in the Andrews/Conlay
Complaint and allow Mr. Conlay to proceed individually; and proceed with the Palacios
matter for class claims in Louisiana.” Def.’s Mot. Ex. A. Thus, the court did not hear
oral arguments on Pella’s motion to strike. Pella then sent plaintiffs’ counsel a draft
proposed consent motion to dismiss class action claims. In response, plaintiffs’ counsel
sent Pella an email on December 2, 2014 stating that by agreeing to dismiss the class
action claims in Conlay, plaintiff “did not understand from that that you expected us to
dismiss the class action claims in the Andrew/Conlays case with prejudice to the Conlays
asserting class action claims as named plaintiffs in Palacios or a consolidated amended
complaint which (if leave to file is granted) may assert a Louisiana class.” Def.’s Mot.
Ex. A.

3
4

“Louisiana Sub-Class causes of action,” id. ¶¶ 119-156.
For both the National Class and Louisiana Sub-Class.

2

On December 16, 2014, Pella filed a motion to dismiss the class action claims,
attaching a proposed consent motion to dismiss and the email correspondence outlined
above. On December 17, 2014, the Conlays filed a motion for leave to file a second
amended complaint. The Conlays responded to Pella’s motion to dismiss on January 5,
2014, stating that they did not understand the stipulation of dismissal to “dismiss class
action claims with prejudice to the Conlays asserting class claims as named plaintiffs in
the Palacios matter or in a consolidated amended complaint.” Pl.’s Resp. 3. Pella
responded to the Conlay’s motion for leave to file a second amended complaint on
January 5, 2014. Pella largely did not object to the Conlay’s motion; however, Pella did
object to the Conlay’s claim for breach of express warranty in the amended complaint
because the Conlay’s breach of express warranty claim was dismissed in the Eastern
District of Louisiana prior to transfer to this court. ECF No. 37. The court heard oral
arguments on Pella’s motion to dismiss and the Conlay’s motion for leave to file a second
amended complaint on January 7, 2015.
II. DISCUSSION
It was the court’s understanding that plaintiffs intended to dismiss their class
action claims and move forward with their individual claims in the Conlay matter.
However, plaintiffs now want to bring their class claims as named plaintiffs in Palacios et
al. v. Pella Corp., 2:14-cv-03637-DCN, and agree to “voluntarily dismiss their individual
action against [Pella]” if the court consolidates the plaintiffs’ class claims with Palacios.
Pls.’ Mot. to Consol. 1 n.1.
Plaintiffs concede that they did agree to dismiss the class claims in Conlay;
however, they argue that plaintiffs did not intend the stipulated dismissal to be with

3

prejudice. In support of their argument, plaintiffs cite the language of the email
correspondence with Pella that does not include any representation that the claims would
be dismissed with prejudice. Pls.’ Reply 2 (“Unless the notice or stipulation states
otherwise, the dismissal is without prejudice.”) (quoting Fed. R. Civ. Pro. 41(a)(1)(B)).
Plaintiffs further cite the transcript from the November 20, 2014 hearing in New Orleans,
Louisiana during which neither party addressed whether the class claims in Conlay would
be dismissed with or without prejudice.
Despite the plaintiffs’ claims, it is undeniable that both parties and the court
understood that the intent of plaintiffs’ email, sent the day before the hearing, was to
dismiss the class claims in Conlay entirely and not to consolidate those claims with
Palacios. Essentially, plaintiffs avoided arguing the motion to strike by agreeing to
dismiss their class action claims, but now want to assert those same class action claims in
the Palacios matter, with the Conlays as named plaintiffs. If Pella had any indication that
plaintiffs intended to pursue the class claims in another matter, Pella would surely not
have relinquished its opportunity to argue its motion to strike class claims, a motion that
has been pending in various venues for over a year. Therefore, in accordance with the
original agreement between the parties, the court grants Pella’s motion to dismiss
plaintiffs’ class claims.
The court grants plaintiff’s motion for leave to file a second amended complaint,
provided plaintiffs do not include class claims or a claim for breach of express warranty
in their second amended complaint. Judge Berrigan in the Eastern District of Louisiana
dismissed plaintiffs’ breach of express warranty claim in October 2013, prior to the

4

transfer of the case to this district. Therefore, plaintiffs must omit the breach of express
warranty claim from their amended complaint.
III. CONCLUSION
For the reasons set forth above, the court GRANTS defendant’s motion to
dismiss plaintiffs’ class claims WITH PREJUDICE and GRANTS plaintiffs’ motion
for leave to file a second amended complaint. Plaintiffs are permitted to proceed with
their individual claims.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
October 27, 2015
Charleston, South Carolina

5