Rawls, et al v. Associated Materials, LLC et al
MEMORANDUM OPINION AND ORDER: The Court GRANTS Defendant Associated Materials, LLC's 46 MOTION for Summary Judgment as to Counts VII and VIII, and DENIES said motion in all other respects. The Court notes that Plaintiffs previously voluntarily withdrew Counts IX and XI in their response in opposition to Associated Materials, LLC's motion to dismiss and therefore the Court need not address these counts and DISMISSES them accordingly. The Court DENIES Plaintiffs' 48 MOTION for P artial Summary Judgment; DENIES Defendant Associated Materials, LLC's 52 MOTION to Strike Plaintiffs' 51 Response in Opposition and DENIES as moot Plaintiffs' 53 MOTION to File Out of Time Their 51 Response in Opposition. Signe d by Senior Judge David A. Faber on 9/5/2012. (cc: counsel of record and any unrepresented party) (arb) Modified on 9/5/2012 to edit text for clarity with respect to the ruling on Plaintiffs' 53 MOTION to File Out of Time as well as added cc: any unrepresented party (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
LOUISE C. RAWLS, et al.,
CIVIL ACTION NO.: 1:10-cv-01272
ASSOCIATED MATERIALS, LLC, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court are the following motions:
Defendant’s Motion for Summary Judgment filed by Associated
Materials, LLC, d/b/a Alside (“Associated Materials”) (Doc. No.
46); (2) Plaintiffs’ Motion for Partial Summary Judgment (Doc.
No. 48); (3) Associated Materials’ Motion to Strike Plaintiffs’
Response in Opposition (Doc. No. 52);1 and (4) Plaintiffs’ Motion
to Extend Time to File (Doc. No. 53).
Defendant moved to strike Plaintiffs’ response in opposition
because it was filed 16 hours late, because it mentions
“inadmissible purported evidence and declarations regarding
inadmissible matters,” and because it argues the submission
violates Rule 56(h) of the Federal Rules of Civil Procedure.
(Doc. No. 52, p.1). Under the Federal Rules of Civil Procedure,
the court may strike a document within its discretion or on
motion of a party. Fed. R. Civ. P. 12(f). In this case, the
court, in its discretion under Rule 12(f), finds the benefit of
reviewing Plaintiffs’ response weighs more heavily than the
countervailing concerns mentioned in Associated Materials’
motion to strike. Accordingly, the court DENIES the defendant’s
motion to strike.
I. Factual and Procedural History
A. Factual History
Plaintiffs purchased Pelican Bay siding and accompanying
installation services from a third party contractor for their
home in Patrick County, Virginia.
Plaintiffs paid $6,702.00 for
both the siding and its installation.
Plaintiffs alleged in
their original complaint that Defendants:
sold and installed vinyl siding that did not
conform to express warranties [. . .] and
did not honor their express warranties by
ignoring requests [by Plaintiffs] [. . .]
and otherwise committing willful and/or
negligent acts to Plaintiff’s detriment.
Doc. No. 1, Ex. A, p. 4, ¶2.
Specifically, Plaintiffs contend
that spotting has formed on the siding and the spotting spreads
Plaintiffs claim they purchased Pelican Bay siding in 2005
after viewing Associated Materials’ website and speaking with
friends who had previously purchased siding from Associated
Plaintiffs further claim that they consequently
called Associated Materials’ supply center in Dunbar, West
Virginia, which recommended that Plaintiffs contact John Melvin
(“Melvin”), a licensed Bluefield, West Virginia-based home
Atlantis Plastics, Inc. (“Atlantis”)
manufactured the Pelican Bay siding that Plaintiffs bought.
Plaintiffs dismissed American Original Building Products, LLC
(“AOBP”), a current manufacturer of Pelican Bay One-brand
siding, as a defendant.
Doc. No. 43; See Doc. No. 47 at p. 3, ¶
Atlantis expressly warranted Pelican Bay siding.
Id. at p.
Atlantis filed for chapter 11 bankruptcy in 2008, which the
bankruptcy court subsequently converted the filing to a chapter
7 bankruptcy proceeding.
Cf. id. at p. 4.
In July 2005, according to his deposition, Melvin purchased
Pelican Bay siding directly from Associated Materials’ supply
center in Dunbar, West Virginia, loaded the siding from the
supply center, and transported the siding to the job site—
Plaintiffs’ home in Virginia.
Doc. No. 47 at p. 5.
installed the siding in July 2005 for $6,702.00. Id.
B. Procedural History
On October 1, 2010, Plaintiffs Louise and Merrill Rawls
(collectively “Plaintiffs”) sued Associated Materials, AOBP, and
Melvin (collectively “Defendants”) in the Circuit Court of
Mercer County, West Virginia.
Plaintiffs pled eleven counts and
asked for numerous forms of relief.
(Doc. No. 47 at 5-15).
On November 1, 2010, Defendants removed the case to this
court, asserting federal question jurisdiction in their Notice
Doc. No. 1., p. 2.
On November 8, 2010, Defendants
Defendants’ motion for summary judgment wrongly asserts
diversity jurisdiction; rather, 28 U.S.C. § 1331, or federal
question jurisdiction, originally provided proper grounds for
filed several pre-answer motions pursuant to Rule 12 of the
Federal Rules of Civil Procedure.
Doc. Nos. 4, 5.
later withdrew Counts IX and XI—breach of a duty of good faith
and negligent recommendation respectively.
Doc. No. 8, p. 9.
On August 1, 2011, this court dismissed Plaintiffs’ breach
of implied warranty claims (Counts II and III) and Plaintiffs’
breach of implied warranty claims under 15 U.S.C. § 2301 et seq.
(Magnuson-Moss Warranty Act (“Magnuson-Moss”)) with prejudice,
as barred by the applicable statute of limitations.
24, p. 9.
However, this court did not completely dismiss Count
VI as it found Plaintiffs timely filed the breach of express
warranty claim under Magnuson-Moss.
Doc. No. 24, p. 9.
court also dismissed, without prejudice, plaintiffs’
unconscionability claim (Count X) for failure to sufficiently
plead the claim under common law.
Doc. No. 24, p. 13.
Plaintiffs’ remaining claims are:
Count I—breach of
express warranties; Count IV—cancellation of contract by
rejection; Count V—cancellation of contract by revocation of
acceptance; Count VI-breach of express warranty pursuant to
Magnuson-Moss; Count VII—unfair and deceptive acts or practices;
and Count VIII—common law fraud and misrepresentation.
this court’s subject matter jurisdiction and continues to
provide proper jurisdiction today.
A. Applicable Law – Motion for Summary Judgment
In evaluating summary judgment motions, Rule 56(a) of the
Federal Rules of Civil Procedure provides:
The court shall grant summary judgment if the movant
shows that there is no genuine issue as to any
material fact and that the movant is entitled to
judgment as a matter of law. The court should state
on the record the reasons for granting or denying the
Fed. R. Civ. P. 56(a)(emphasis added).
Material facts are those necessary to establish the
elements of a party’s cause of action.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine issue of
material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in the light most
favorable to the non-moving party, a reasonable juror could
return a verdict for the non-moving party.
Even if there is no dispute as to the evidentiary facts,
summary judgment is not appropriate when the parties dispute
ultimate factual conclusions.
Overstreet v. Kentucky Cent. Life
Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991)(emphasis added).
the moving party meets its burden under Rule 56(a), then the
non-moving party must set forth specific facts that would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial.
Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
B. Discussion – Summary Judgment applied to remaining counts
1. Breach of Express Warranty under West Virginia law and
The Uniform Commercial Code, as adopted by West Virginia,
defines express warranties, in relevant part, as:
(a) Any affirmation of fact or promise made by the
seller to the buyer which relates to the goods and
becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the
affirmation or promise.
(b) Any description of the goods which is made part of
the basis of the bargain creates an express warranty
that the goods shall conform to the description.
W. Va. Code § 46-2-313(1).
Magnuson-Moss labels the type of express warranty at issue
here as a “written warranty” and defines it as:
(A) any written affirmation of fact or written promise made
in connection with the sale of a consumer product by a
supplier to a buyer which relates to the nature of the
material or workmanship and affirms or promises that such
material or workmanship is defect free or will meet a
specified level of performance over a specified period of
(B) any undertaking in writing in connection with the sale
by a supplier of a consumer product to refund, repair,
replace, or take other remedial action with respect to such
product in the event that such product fails to meet the
specifications set forth in the undertaking, which written
affirmation, promise, or undertaking becomes part of the
basis of the bargain between a supplier and a buyer for
purposes other than resale of such product.
15 U.S.C. § 2301(6).
Count I is a West Virginia state law breach of express
warranty claim against Defendants.
Count VI is a related
federal law claim, asserting that Associated Materials failed to
honor the terms of a written warranty as required under
The parties agree that Atlantis Plastics expressly
warranted Pelican Bay siding that it manufactured when it was
still in business.
However, only Plaintiffs assert that
Associated Materials, the remaining Defendant in this case, also
expressly warranted the siding via written advertising
materials, a claim that Associate Materials denies.
No. 47, p. 7.
Further, Plaintiffs assert that this alleged
express warranty “formed the basis of the bargain” between
Associated Materials and Plaintiffs.
Doc. No. 51, p. 5.
Both parties agree that the only express warranty that
Louise Rawls saw before buying the siding was an express written
warranty contained within a Pelican Bay siding brochure, which
Ms. Rawls viewed on Associated Materials’ website.
parties’ claims differ as to whose express warranty Louise Rawls
saw when she viewed the brochure on her computer.
See Doc. No.
46, Ex. 1, p. 19-20(Lifetime Limited Transferable Warranty for
Pelican Bay siding, directing manufacturing defect notifications
to be sent to Atlantis).
Associated Materials maintains that Louise Rawls only saw
the brochure that created an express, written warranty by
Doc. No. 47, p. 7, ¶20; see Doc. No. 46, Ex. 1, p.
Moreover, Associated Materials claims that Plaintiffs
agree with this as they attached that very document to
Plaintiffs’ response to Associated Materials’ motion to dismiss
in this case.
Doc. No. 47 at p. 7, ¶ 20.
only part of the story.
However, this tells
In her deposition, Louise Rawls claimed
that she “looked [the express warranty] up online,” that the
warranty was made by Associated Materials, and that she
“wouldn’t purchase a product if it didn’t have a warranty.”
Louise Rawls Depo., pg. 62, ln. 12—23.
Ms. Rawls’ claim that she saw Associated Materials as the
warrantor on the Pelican Bay brochure found on Associated
Materials’ own website creates a genuine issue of material fact.
That the Pelican Bay brochure currently reads that Atlantis
warrants Pelican Bay siding is irrelevant, given a reasonable
juror could find that Ms. Rawls saw Associated Materials, not
Atlantis, as warrantor at the time she viewed the Pelican Bay
The fact that Associated Materials posted the
warranty brochure on its website supports this possibility, even
if Associated Materials now denies ever expressly warranting
Pelican Bay siding or adopting Atlantis’ express warranty for
Pelican Bay siding.
This fact is material since, if believed by
a jury, it would place the brochure squarely under West Virginia
law’s definition of “express warranty” as well as Magnuson-Moss’
definition of “written warranty,” both of which are excerpted
The brochure outlines the express warranty’s coverage
parameters and Ms. Rawls’ deposition shows that the warranty
formed part of the basis of her bargain—she “wouldn’t purchase a
product if it didn’t have a warranty.”
brochure would qualify both as an “express warranty” for
purposes of the UCC as adopted by West Virginia and as a
“written warranty” for purposes of Magnuson-Moss.
Further, the deposition of Associated Materials’ general
counsel, David Campbell, muddies the meaning of the pronoun
“our” as it appears in the Pelican Bay limited lifetime warranty
See Doc. No. 51, p. 3.
Mr. Campbell’s statements
dodge and parry Plaintiffs’ counsel’s questions regarding the
meaning of “our”—whether it refers to an Associated Materials
warranty or an Atlantis warranty.
The nature of Mr. Campbell’s
answers in his deposition further supports the conclusion that a
genuine issue of material fact exists regarding who warranted
Pelican Bay siding at the time the Rawls’ purchased it.
Accordingly, Associated Materials’ motion for summary
judgment is DENIED as to Count I and Count VI.
3. Contract Cancellation by Rejection of Goods and Contract
Cancellation by Revocation of Acceptance of Goods
Whether an agency relationship exists is a factual
question. Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 155,
706 S.E.2d 63, 76 (2010).
Where an agency relationship exists,
the agent acts as the principal’s representative when entering
See Cole v. Fairchild, 198 W. Va. 736, 746, 482
S.E.2d 913, 923 (1996); Teter v. Old Colony Co., 190 W. Va. 711,
719, 441 S.E.2d 728, 736 (1994); State ex rel. Key v. Bond, 94
W. Va. 255, 118 S.E. 276, 279 (1923).
Article 2 of the UCC, as adopted by West Virginia, allows a
buyer to reject all or part of the goods under a sale of goods
contract where those goods fail to conform to the contract in
See W. Va. Code § 46-2-601.
However, a buyer may only
reject goods within a “reasonable time” after their delivery or
tender. See W. Va. Code § 46-2-602.
A buyer may no longer
reject goods after accepting them.
Rather, after accepting
goods, the buyer may only revoke acceptance of the goods.
A buyer may revoke acceptance of goods “within a reasonable
time after the buyer discovers or should have discovered the
ground for” revocation of acceptance.
W. Va. Code § 46-2-
However, any ground for revocation of acceptance must,
at a minimum, show that the goods’ nonconformity “substantially
impairs [the goods’] value” to the buyer.
logically that the “reasonable time” within which a buyer must
reject goods is a shorter time period than the “reasonable time”
within which a buyer must revoke acceptance of the goods, since
rejection of goods occurs, if at all, before acceptance of
goods, and revocation of acceptance of goods occurs, if at all
after acceptance of goods.
In all cases, West Virginia has adopted the UCC’s standard
definition for reasonable as found in Article 1.
“[w]hether a time for taking an action required by [the UCC as
adopted by West Virginia] is reasonable depends on the nature,
purpose, and circumstances of the action.”
W. Va. Code. § 46-1-
Accordingly, the West Virginia Supreme Court has ruled
that determining whether a party provided notice to reject or
revoke acceptance of goods within a “reasonable time” is a
question of fact for the jury to decide.
City Nat. Bank of
Charleston v. Wells, 181 W. Va. 763, 770, 384 S.E.2d 374, 381
Claim IV is a contract cancellation claim based on
rejection of goods and Claim V is a contract cancellation claim
based on revocation of acceptance of goods.
The parties dispute that an agency relationship existed
between Associated Materials and Melvin when Plaintiffs bought
the Pelican Bay siding for their home.
12 with Doc. No. 51, p. 6-8.
Compare Doc. No. 47, p.
Even though rejection or
revocation of acceptance of goods may only be made against a
seller of those goods, sellers of goods under the UCC are still
subject to the law of agency.
Since Associated Materials could
be liable on any contracts Melvin entered into with the
Plaintiffs while Melvin was purportedly an agent of Associated
Materials, whether an agency relationship existed between Melvin
and Associated Materials is a material fact.
jury should first decide whether an agency relationship existed
between Melvin and Associated Materials.
Assuming a jury found an agency relationship between Melvin
and Associated Materials, a jury would then have to find whether
Plaintiffs timely rejected the siding or revoked acceptance of
the siding under the UCC as adopted by West Virginia.
questions of West Virginia state law, this court is bound by the
acts of the West Virginia legislature, regulations of West
Virginia administrative agencies, and, most importantly for this
case, decisions of West Virginia state courts.
In Wells, the West Virginia Supreme Court explicitly ruled
that the question of what “reasonable time” means for revocation
of acceptance of goods is a factual question for the jury.
Again, the parties in this case dispute whether Plaintiffs
timely notified Associated Materials of Plaintiffs’ rejection of
the siding or, alternatively, Plaintiffs’ revocation of
acceptance of the siding.
Compare Doc. No. 47, p. 13-14 with
Doc. No. 51, p. 9-10.
The timeliness of rejection of goods or
revocation of acceptance of goods is a material fact because if
either is untimely, the buyer loses its right to contract
remedies based on rejection or revocation of acceptance grounds.
See W. Va. Code § 602, 608(2).
Thus, the jury should decide
whether Plaintiffs timely rejected the siding or timely revoked
acceptance of the siding.
Accordingly, Associated Materials’ motion for summary
judgment is DENIED as to Count IV and Count V.
4. Unfair and Deceptive Acts or Practices (West Virginia
Consumer Credit and Protection Act)
To assert a legal interest that is protected by the West
Virginia Consumer Credit and Protection Act (“WVCCPA”), a
consumer must first inform a seller in writing and by certified
mail of the alleged violation of the WVCCPA.
W. Va. Code § 46A-
The Fourth Circuit has recently held that this
required notice must specifically assert a violation of the
Stanley v. Huntington Nat. Bank, 12-1145, 2012 WL
3570805 (4th Cir. Aug. 21, 2012)(holding that letters requesting
status updates on claims filed under a debt cancellation product
were not written notice as required by the WVCCPA).
Count VII is an unfair and deceptive trade practices claim
under the WVCCPA.
Here, Plaintiffs again erroneously assert that it is the
jury’s job to determine whether notice is adequate to trigger a
legal interest protected by the WVCCPA.
Doc. No. 51, p. 11.
Rather, whether a party has a protected legal interest under a
given statute is a question of law.
See, e.g., Bilal v. N.
Carolina, 287 F. App'x 241, 244 (4th Cir. 2008)(reviewing de
novo “the legal question of whether [Petitioner] was afforded
adequate notice” under 28 U.S.C. § 2254).
party disputes that Plaintiffs sent a letter to AOBP, not
Associated Materials, seeking a status update on Plaintiffs’
warranty inquiries with AOBP.
Doc. No. 48, Ex. G.
no genuine issue of material fact exists as to whether
Associated Materials received notice for purposes of the WVCCPA—
it did not.
As to the legal question in this count, Plaintiffs’ letter
only sought to “discuss proceeding with [Plaintiffs’] warranty
Only in the last sentence of the letter do
Plaintiffs mention suing under the WVCCPA.
In the absence
of West Virginia law on what precisely is enough notice to
trigger a legal interest that the WVCCPA will protect, this
court will follow the Fourth Circuit’s decision in Stanley v.
Huntington Nat. Bank.3
In that case, sending two letters asking
Stanley v. Huntington Nat. Bank, 12-1145, 2012 WL 3570805 (4th
Cir. Aug. 21, 2012) is an unpublished opinion and thus not
for an update on a claim for a debt cancellation product is
directly analogous to these Plaintiffs’ letter to AOBP asking
for an update on a warranty claim.
Such notice in that case was
not sufficient to trigger the WVCCPA’s protections and neither
is Plaintiffs’ alleged notice in this case.
In essence, simply
checking the status of a separate right under the law—a warranty
claim—does not equate to giving notice of another right under
the law—that Associated Materials acted unfairly or deceptively
according to the WVCCPA.
Simply tacking on a threat to proceed
with legal action under the WVCCPA does not provide notice to
Associated Materials as to what they may have done to violate
the WVCCPA, especially if Associated Materials did not receive
the letter sent to AOBP as they claim.
notice, then, Plaintiffs have no protected legal interest under
the WVCCPA and Associated Materials is entitled to a judgment as
a matter of law.
Accordingly, Associated Materials’ motion for summary
judgment is GRANTED as to Count VII and Plaintiffs’ motion for
partial summary judgment is DENIED as to Count VII.
5. West Virginia common law fraud and misrepresentation
The required elements of a common law claim for fraud or
misrepresentation in West Virginia are:
binding within the Fourth Circuit. Nonetheless, this Court
defers to the holding in that case as it is directly on point in
1) Defendant committed or induced an act;
2) Defendant’s act was material and false;
3) Plaintiff justifiably relied on the Defendant’s act
under the circumstances; and
4) Plaintiff suffered damages from relying on the
See Lengyel v. Lint, 167 W. Va. 272, 276 (1981).
Count VIII is a common law claim for fraud and
Associated Materials moved for summary judgment as to Count
However, Plaintiffs did not properly address Associated
Materials’ summary judgment motion as to that count as required
under Rule 56(e) of the Federal Rules of Civil Procedure.
Accordingly, this court considers facts that Associated
Materials asserts in its summary judgment motion as undisputed
facts, insofar as those facts relate to Count VIII.
Nevertheless, Associated Materials still has the burden to
show there is no genuine dispute as to any material fact and
that it is entitled to judgment as a matter of law. See Adickes
v. S. H. Kress & Company, 398 U.S. 144, 90 S.Ct. 1598, 26
L.Ed.2d 142 (1970).
Associated Materials has met this burden.
Taking the facts in Associated Materials summary judgment motion
as undisputed as to Count VIII, the fact that Ms. Rawls clearly
responded in her deposition that no Associated Materials
representative made any false statement precludes a prima facie
common law case for fraud and misrepresentation.
prima facie case against it, Associated Materials is entitled to
judgment as a matter of law.
Accordingly, Associated Materials’ motion for summary
judgment is GRANTED as to Count VIII.
For the reasons stated above, this court hereby ORDERS as
1) The Motion for Summary Judgment filed by Defendant
Associated Materials, LLC, d/b/a Alside (Doc. No. 46) is
GRANTED as to Counts VII, and VIII and DENIED in all
2) The Motion for Partial Summary Judgment filed by
Plaintiffs (Doc. No. 48) is DENIED;
3) The Motion to Strike Plaintiffs’ Response in Opposition
(Doc. No. 52) is DENIED; and
4) The Motion to Extend Time to File by Plaintiffs (Doc. No.
53) is DENIED AS MOOT since the court denied Defendants’
Motion to Strike Plaintiffs’ Response in Opposition.
The Court notes that Plaintiffs previously voluntarily withdrew
Counts IX and XI in their response in opposition to Associated
Materials’ motion to dismiss. See Doc. No. 8, p. 9.
Accordingly, despite the fact that Associated Materials briefed
these Counts IX and XI in its summary judgment motion, the Court
need not address these counts and DISMISSES them accordingly.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED on this 5th day of September, 2012.
David A. Faber
Senior United States District Judge
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