United States District Court, D. South Carolina, Charleston Division
TED NAPARALA, SR., 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 Ted Naparala,
Sr.’s (“plaintiff") motion for class
certification. For the reasons set forth below, the court
denies plaintiff’s motion.
began construction of his Princeton, Wisconsin home in
September 2005. Plaintiff purchased defendant Pella
Corporation’s (“Pella") ProLine and
Architect Series windows from a retail store in Wisconsin
and, with his son’s help, personally installed the
windows into his home in November 2005. Pl.’s Mot. Ex.
1, Naparala Depo. 19:24-25, 34:14-16. Plaintiff’s
windows came with a limited warranty, which required Pella to
repair or replace-or refund the purchase price of-any
defective windows, if notified of a defect within ten years
of the date of sale. Pl.’s Mot. Ex. 20.
2006, plaintiff allegedly began observing moisture problems
with the windows and contacted Pella. Id. at
61:4-12. Plaintiff made a claim under the window’s
limited warranty, and on March 23, 2006, an independent
distributor of Pella products, VerHalen, Inc., sent a service
technician to investigate this claim. Id. at
62:16-20. The technician determined that the windows were not
sealing properly and adjusted the cranks so that the windows
would crank tighter. Id. Plaintiff was not charged
for this service visit or any associated labor. Id.
contends that his windows continued to experience moisture
problems in the years following his 2006 warranty claim, but
plaintiff did not submit a subsequent claim until December
2013. Id. at 63:10-14. On January 27, 2014, a
service technician from VerHalen, Inc. again visited
plaintiff’s home and concluded that the windows were
experiencing interior condensation caused by excess humidity,
which fell outside of the warranty. Pl.’s Mot. Ex. 2,
Gerdes Expert Disclosure 17. As such, plaintiff was denied
warranty coverage. Id.
filed this action in the United States District Court for the
Eastern District of Wisconsin on May 20, 2014, bringing
claims for: (1) violation of the Wisconsin Deceptive Trade
Practices Act; (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 concealment; (7) unjust enrichment; (8) violation
of the Magnuson-Moss Warranty Act (“MMWA"); and
(9) declaratory relief. On August 15, 2014, the United States
Panel on Multidistrict Litigation transferred the case to
this court as part of the consolidated multidistrict
litigation. On May 19, 2015, the court granted in part and
denied in part Pella’s motion to dismiss, and on
December 22, 2015, the court granted Pella’s motion for
partial summary judgment. As a result of the court’s
rulings on motions, plaintiff’s only remaining claims
are for breach of express warranty with respect to the
limited warranty and violation of the MMWA.
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. 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 invariably left the warranty claimant with defective
Windows. Pl.’s Mot. 19-20. 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 court held a hearing on
the matter on February 22, 2016. The motion is now ripe for
the court’s review.
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 Wisconsin 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
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. If the finder of
fact determines that such a defect exists, 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. On the other hand, if plaintiff fails to
prove that the Windows are defective, plaintiff contends that
the matter would be fully resolved. Id. Under this
“trial plan, " plaintiff argues that certification
is appropriate under Rule 23(b)(3), because the existence of
a product defect predominates over all other individual
issues. Id. at 12.
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. 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.; 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 3-4; 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 23, 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. 13. 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 1, 934
warranty claims were filed in Wisconsin for Windows
manufactured between 1997 and 2007. Pl.’s Reply Ex. 4,
Branda Dec. ¶ 6b. 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. 11; 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. 11-12. 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
disputes plaintiff’s contention that the Windows share
a common design by outlining the numerous design changes made
during the class period. See id. Ex. 2. 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 9-10. 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 ...