United States District Court, D. South Carolina, Charleston Division
JOHN ROMIG, JR., on behalf of himself and all others similarly situated, Plaintiff,
PELLA CORPORATION, Defendant.
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff John Romig’s
(“plaintiff") motion for class certification. For
the reasons set forth below, the court denies
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.
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
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
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.
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.
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. 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. Pl.’s Mot. 20-21. Thus, plaintiff
concludes, the repair and replace remedies available under
the limited warranty fail of their essential purpose.
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
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.
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)).
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. 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.
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-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. 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.
court analyzes plaintiff’s proposed class under each
Rule 23 requirement in turn.
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
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. 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.").
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
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,  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
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)).
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).
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.
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.
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
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. 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.
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 ...