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Romig v. Pella Corp.

United States District Court, D. South Carolina, Charleston Division

June 3, 2016

JOHN ROMIG, JR., on behalf of himself and all others similarly situated, Plaintiff,



         This matter is before the court on plaintiff John Romig’s (“plaintiff") motion for class certification. For the reasons set forth below, the court denies plaintiff’s motion.

         I. BACKGROUND[1]

         Plaintiff began construction of his Cazenovia, New York home in 1999. Plaintiff purchased defendant Pella Corporation’s (“Pella") Architect Series windows for the home while it was being built. Shortly after plaintiff took occupancy of the home, he began observing window leaks and contacted Pella. Pella inspected the home and attempted to repair the leaks, but plaintiff continued to experience problems with his windows.

         In 2002, plaintiff purchased additional Architect Series windows for installation in a separate area of the home. Plaintiff eventually noticed leaks in these windows. Pella inspected the issue in 2004 and determined the leaks were caused by faulty installation, but nevertheless agreed to provide replacement windows.

         In 2006, plaintiff again contacted Pella regarding continued issues with his windows, particularly wood deterioration. Pella’s representative visited the home and determined that the deterioration was partially attributable to a defect in the windows. Pella again replaced the windows.[2]

         In 2008, plaintiff noticed leaks in the 2006 replacements. In 2011, plaintiff contacted his insurance company, who retained an engineering firm to inspect the windows. This engineering firm, as well as plaintiff’s contractor, determined that the damage to the 2006 replacement windows was attributable to a defect in the windows.

         On July 18, 2013, plaintiff filed this action in the United States District Court for the Northern District of New York, bringing claims for: (1) unfair and deceptive trade practices in violation of New York General Business Law § 349; (2) negligence; (3) breach of implied warranty of merchantability; (4) breach of implied warranty of fitness for a particular purpose; (5) breach of express warranty; (6) fraudulent misrepresentation; (7) fraudulent concealment; (8) unjust enrichment; (9) violation of the Magnuson-Moss Warranty Act (“MMWA"); and (10) declaratory relief. Compl. ¶¶ 49- 157. Plaintiff filed an amended complaint on September 30, 2013, alleging the same causes of action. Am. Compl. ¶¶ 49-157. On February 19, 2014, the United States Panel on Multidistrict Litigation transferred the case to this court as part of the consolidated multidistrict litigation. On December 18, 2014, the court granted Pella’s motion to dismiss as to all claims except plaintiff’s claim for breach of express warranty with respect to Pella’s failure to repair or replace his windows under the limited warranty. ECF No. 65.

         Plaintiff contends that Pella’s Architect Series and Designer Series aluminum-clad casement windows (the “Windows") manufactured from 1997-2007 suffer from a common defect-an “inadequate water management system"-and that this defect is exacerbated by inadequate application of wood preservative to the Windows. See ECF No. 38-1 in Case No. 2:14-cv-3307, Dilly Mot. to Certify Class 2.[3] During this period, Pella Windows were sold with a limited warranty, which obligated Pella to repair or replace defective Windows-or refund the purchase price-if notified of the defect within ten (10) years of sale. Pl.’s Mot. Ex. 17. Plaintiff argues that because all Windows manufactured during the class period inherently contain the aforementioned defect, any attempt to repair such Windows or replace such Windows with other Windows manufactured during the class period was meaningless, because it invariable left the warranty claimant with defective Windows.[4] Pl.’s Mot. 20-21. Thus, plaintiff concludes, the repair and replace remedies available under the limited warranty fail of their essential purpose. Id.

         Plaintiff filed the instant motion for class certification on November 9, 2015. Pella filed its response on December 15, 2015. Plaintiff replied on January 19, 2016, and Pella filed a sur-reply on February 9, 2016. The motion is now ripe for the court’s review.

         II. STANDARD

         Class certification is governed by Federal Rule of Civil Procedure 23. Rule 23(a) provides that one or more members of a class may sue or be sued as representative parties on behalf of all only if: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." In addition to the requirements of Rule 23(a), a class must also satisfy the requirements set forth in one of the three sub-parts of Rule 23(b), as follows: (1) individual actions would risk inconsistent adjudications, or adjudications dispositive of non-parties; (2) class-wide injunctive or declaratory relief is sought and appropriate; or (3) legal or factual questions, common to the proposed class members, predominate over questions affecting individual members. See Gunnells v. Healthplan Servs., 348 F.3d 417, 423 (4th Cir. 2003). In addition to these explicit requirements, “Rule 23 contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable, ’" often referred to as the “ascertainability" requirement. EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014).

         The plaintiff carries the burden of establishing that each of the requirements for class certification is satisfied. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004) (“The plaintiffs who propose to represent the class bear the burden of demonstrating that the requirements of Rule 23 are satisfied."); Windham v. Am. Brands, Inc., 565 F.2d 59, 65 n.6 (4th Cir. 1977) (en banc) (“It is well settled in this jurisdiction that the proponent of a class certification has the burden of establishing the right to such certification under Rule 23."). Though class certification should not be “conditioned on the merits of the case, " the court may “look beyond the pleadings to the extent necessary to understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues." Clark v. Experian Info. Sols., Inc., 2001 WL 1946329, at *1 (D.S.C. Mar. 19, 2001). Ultimately, the court “has broad discretion in deciding whether to certify a class, but that discretion must be exercised within the framework of Rule 23." Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (quoting In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)).


         Plaintiff seeks certification of the following class:

All persons or entities who, as of the Notice Date, are current or former owners of structures in New York with Pella Architect Series or Pella Designer Series, aluminum-clad casement windows (the “Windows") manufactured from the beginning of 1997 through the end of 2007, and who made a claim under Pella’s Limited Warranty. The Windows include fixed and operating casements but exclude awnings, shapes, direct set and specialty products.

Pl.’s Reply 3.[5] Plaintiff seeks to certify the proposed class solely for the purposes of determining whether the Windows are defective. Id. 3-4. Following this determination, plaintiff envisions a “second phase whereby individual issues of causation and damages will be litigated on behalf of all class members that submit sufficient documentation." Id. at 4. Under this “trial plan, " plaintiff contends that certification is appropriate under Rule 23(b)(3), because the existence of a product defect predominates over all other individual issues. Id. at 15.

         At the class trial, plaintiff plans to prove that the Windows are “uniformly defective" since they all have “an inadequate water management design and inadequate wood preservative." Id. at 3-4. Specifically, plaintiff alleges that, for all Windows: (i) the glazing pocket-i.e. where the glass panel fits into the sash[6]-is not properly sealed due to a lack of sealant adhesion and excessive saturation; (ii) the frame corners have insufficient sealant; and (iii) the gasket between the sash and frame does not adequately prevent water intrusion due to the gasket’s excessive compression set-i.e. the permanent deformation in the gasket that remains when a force is removed. Id. at 4; Def.’s Resp. Ex. 14, SGH Report 67-72, 83-85.[7] As to the wood preservative treatment, plaintiff contends both that the treatment chemicals used and the treatment processes applied were insufficient for extended and repeated saturation. Pl.’s Reply 4; SGH Report 79-81, 83.

         The court analyzes plaintiff’s proposed class under each Rule 23 requirement in turn.

         A. Ascertainability

         The implicit requirement of ascertainability demands that the members of the proposed class be readily identifiable by reference to objective criteria. EQT Prod. Co., 764 F.3d at 358. “To be ascertainable, a class must be ‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’" Solo v. Bausch & Lomb Inc., No. 2:06-cv-02716-DCN, 2009 WL 4287706, at *4 (D.S.C. Sept. 25, 2009) (quoting Cuming v. S.C. Lottery Comm’n, No. 3:05-cv 03608, 2008 WL 906705, at *1 (D.S.C. Mar. 31, 2008)). “[I]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials, ’ then a class action is inappropriate." Id. (quoting Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012)).

         The parties first dispute the usefulness of Pella’s warranty claims database in locating putative class members. Plaintiff contends that this database would contain the bulk of information necessary to determine class membership, Pl.’s Reply 26, while Pella argues that its database does not provide a way of distinguishing between claims related to plaintiff’s proposed defect and unrelated claims. Def.’s Sur-Reply Ex. 1, Saraf Supp. Dec. ¶¶ 4-7. However, it is not at all clear why this is relevant, because the proposed class definition includes all warranty claimants, no matter the underlying cause of the warranty claim.[8] Hr’g Tr. 72:23-73:1 (“THE COURT: Does your proposed class include every person who made a warranty claim regardless of their - the cause of their warranty claim? MR. LUCEY: Yes, sir.").[9]

         Once one recognizes the scope of the proposed class, the role of the database information becomes clear. Plaintiff would utilize the database to identify owners of Windows manufactured between 1997 and 2007 who made any sort of warranty claim. Because the database leaves out denied claims, plaintiff proposes to locate additional class members by subpoenaing authorized dealer records-which might contain information on denials-and through publication. Hr’g Tr. 71:20-72:1. Plaintiff suggests that potential class members who are not identified through Pella’s database and dealer records could be confirmed by examining records retained by the class members themselves, or, as a last resort, through examination of the windows. Pl.’s Reply 27-28.

         While the breadth of the class definition underpinning this methodology may present its own issues, ascertainability is not one of them. Every warranty claimant identified by the database would necessarily be included in the class. This inquiry is straightforward enough. Problems may certainly arise in locating certain denied claimants, [10] but these problems can be mitigated by the use of the dealer records and publication of notice. The court approved of this basic approach in the Saltzman v. Pella Corp. case dealing with Pella’s ProLine windows. 257 F.R.D. 471, 476 (N.D. Ill. 2009), aff’d, 606 F.3d 391 (7th Cir. 2010) (“Where Pella’s records may be insufficient, provision of notice can supplement class identification efforts."). Such alternative measures are likely to operate both objectively and manageably, as both effectively seek to find alternative sources of documentation evincing an individual’s class membership. Only in very specific circumstances would the court be faced with anything resembling a “mini-trial." For instance, if a purported class member were denied warranty coverage, and both Pella and the authorized dealer discarded any relevant documentation, and the purported class member discarded their own documentation, then it may be necessary to conduct an examination of the actual windows at issue. Notably, even in these circumstances, the manufacturer and likely vintage of the windows can be determined by looking at a sticker on the IGU. Pl.’s Mot. Ex. 11. This leaves the design of the window and the existence of a warranty claim as the only issues even susceptible to the risk of a “mini-trial." Given the number of contingencies required to realize that risk, the court finds that it does not present a true threat to the proposed class’s ascertainability.[11]

         B. Numerosity

         To satisfy the “numerosity" requirement, a plaintiff must show that “the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). “No specific number of claimants is necessary . . ., and there is no mechanical test that the [c]ourt can use when determining whether numerosity exists." Ganesh, L.L.C. v. Computer Learning Centers, Inc., 183 F.R.D. 487, 489 (E.D. Va. 1998) (citing Cypress v. Newport News Gen. and Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967); Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35 (4th Cir. 1978)).

         Again, the breadth of plaintiff’s proposed class, incongruous as it may be to plaintiff’s claim, easily satisfies the numerosity requirement. Courts have found the numerosity requirement satisfied with as few as 40 persons. See Ganesh, L.L.C., 183 F.R.D. at 489 (citing Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972)). Here, Pella’s claims database indicates that 3, 058 warranty claims were filed in New York for Windows manufactured between 1997 and 2007. Pl.’s Reply Ex. 8, Branda Dec. ¶ 6a. That number is likely to grow since the database does not account for denied claimants. Therefore, the court has little difficulty finding that the proposed class “is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1).

         C. Commonality

         Federal Rule of Civil Procedure 23(a)(2) requires plaintiffs seeking to represent a class to show that “there are questions of law or fact common to the class." A showing of commonality does not simply entail raising common questions but a showing that “the class members ‘have suffered the same injury.’" Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). “Th[e] language [of Rule 23(a)(2)] is easy to misread, since [a]ny competently crafted class complaint literally raises common ‘questions.’" Id. (internal citations omitted). The class members claims “must depend upon a common contention[, ]" which “must be of such a nature that is capable of classwide resolution." Id. This requires that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. The commonality test is “qualitative" not “quantitative." See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 429 (4th Cir. 2003) (citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996)). “Quantitatively, almost by definition there will always be more individual [] issues than common liability issues . . . . Qualitatively, however, . . . liability issues . . . [may] . . . far exceed in complexity the more mundane individual [] issues." Id. at 429 (quoting In re Honda Motor Co., 979 F.Supp. 365, 367 (D. Md. 1997)).

         Here, an essential element of plaintiff’s breach of warranty theory is that the Windows manufactured during the class period were defective. Pl.’s Mot. 12; Pl.’s Reply 2. Plaintiff argues this defect issue can be resolved through common proof that the Windows “suffer from an inadequate water management system and [an] inadequate wood preservation system." Pl.’s Mot. 12. Pella argues that the question of whether the “water management system" was defective cannot be answered through common proof, because: (i) the Windows do not even share a common design; and (ii) this “system, " as alleged by plaintiff’s experts, does not constitute a single defect but a number of different defects. Def.’s Resp. 24-31.

         Pella disputes plaintiff’s contention that the Windows share a common design by outlining the numerous design changes made during the class period. See id. at 5-8. When these changes are considered, Pella argues, the Windows manufactured during the class period actually span fifteen unique designs. Id. In response, plaintiff cites In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 847 (6th Cir. 2013), for the proposition that design differences do not defeat commonality if they have no material effect on the alleged defect. Pl.’s Reply 12-13. The plaintiffs in Whirlpool brought class claims based on an alleged defect in washing machines manufactured by the defendant. In re Whirlpool Corp., 722 F.3d at 854. The defendant argued that class certification was inappropriate because the allegations involved two different washing machine designs, both of which were altered over the years, resulting in over twenty-one variations. Id. The Sixth Circuit determined that these variations had no effect on the issue of commonality, because the plaintiffs had presented evidence that “the two [designs] are nearly identical, the design issues concerned various models, and most of the differences in models were related to aesthetics, not design." Id.; see also Barden v. Hurd Millwork Co., Inc., 249 F.R.D. 316, 321 (E.D. Wis. 2008) (finding that class certification was warranted, despite the fact that the class implicated over seventy types of glass products, where the court recognized the products were “similar" and plaintiff alleged that all such products failed in the same way).

         Thus, the true question is not whether the class definition includes different Window designs, but rather, whether these design variations had any impact on the Window’s vulnerability to water intrusion. As set forth below, the court ultimately finds that class certification is inappropriate in this case, regardless of how this question is answered. Therefore, the resolution of this dispute must await another day.[12] At this point, it is sufficient to assume that any design variations do not bar certification, because the alleged deficiencies were common to all Windows manufactured during the class period.

         Turning to Pella’s second objection, plaintiff’s expert identified three “failure paths" in the Windows that lead to water intrusion, and consequently, wood deterioration: (i) water penetrating the glazing pocket; (ii) water penetrating the frame corners; and (iii) water penetrating the frame gasket. Dilly Mot. to Certify Class 2-3. Each failure path was caused by a different deficiency in the Windows’ design. Id. at 3; SGH Report 67. In fact, it appears that water penetration in the frame corners is attributable to two separate deficiencies, a failure to inject butyl sealant into certain areas of the frame and the use of incompatible sealants. SGH Report 72. Moreover, plaintiff attributes water penetration in the glazing pocket to deficiencies in a different sealant. See SGH Report at 81 (referring to “glazing seals"); Def.’s Resp. Ex. 2 at 5 (showing different sealants used for sash and frame). Plaintiff also contends that Pella placed too much reliance on the use of wood preservatives to ...

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