Albano v. Shea Homes Ltd. P'ship
| Decision Date | 03 February 2011 |
| Docket Number | No. 09–15808.,09–15808. |
| Citation | 634 F.3d 524 |
| Parties | Alfred ALBANO, an unmarried man; Monica Lewis, an unmarried woman; Samantha Baker, an individual; Ariel Barr, an unmarried man; Phillip Barr, a single man; Keith Bodie, husband; Stacy Bodie, wife; Jon L. Bruce, an individual; Craig Burke, husband; Linda Burke, wife; Dawn R. Cain, an individual; Christina Carlson, an individual; Charles Chen, husband; Lisa Chen, wife; Christopher Cordasco, an individual; Paul Crandell, husband; Jennifer Crandell, wife; Kent Ellsworth, husband; Lauree Ellsworth, wife; Ronald Filipski, husband; Laura Filipski, wife; Angelica Harvey, an individual; Dirk Howard, husband; Nancy Howard, wife; George Hulecki, husband; Jeanne Hulecki, wife; Candace Hurtt, wife; James Craig, husband; Robert Kegerreis, Trustee of the Kegerreis Family Trust u/a/d June 15, 2005; Cynthia Kegerreis, Trustee of the Kegerreis Family trust u/a/d June 15, 2005; John R. Letteer, husband; Judith Letteer, wife; Kelly J. Mallory, an individual; Charles McGoldrick, husband; Maureen McGick, wife; Robert L. Mitchell, a single man; Beatrice M. Linne, an unmarried woman; Richard Navarro, an individual; Scott A. Olmstead, husband; Amber S. Olmstead, wife; Donald W. Roberts, husband; Julia A. Roberts, wife; Linda S. Rodela, an individual; Jack E. Rose, Jr., husband; Shawna R. Rose, wife; Mark B. Samford, husband; Rebecca L. Samford, wife; Jane D. Schmaltz, an individual; Richard Scott, husband; Sharon Scott, wife; Dennis Simpson, an individual; Blake Slaughter, husband; Chantell Slaughter, wife; Bruce Tarman, husband; Janelle Tarman, wife; Michael L. Tomaino, II, an individual; Eric T. Valimaki, husband; Cristi D. Valimaki, wife; David A. Wenman, husband as Trustee of the Wenman Family Trust dated July 9, 1999; Jacqueline Diane Wenman, wife, as Trustee of the Wenman Family Trust dated July 9, 1999; Seth Wheeler, husband, on his own behalf and on behalf of all others similarly situated; Jacqueline Wheeler, wife, on her own behalf and on behalf of all others similarly situated; Phillis J. Simpson, an individual, Plaintiffs–Appellants,v.SHEA HOMES LIMITED PARTNERSHIP, an Arizona limited partnership; J.F. Shea Co., Inc., a Nevada corporation, dba Shea Homes, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Robert H. Willis, Burdman & Shore, Phoenix, AZ, for the plaintiffs-appellants.Gary L. Birbaum and Barry R. Sanders, Mariscal Weeks McIntyre & Friedlander, Phoenix, AZ, for defendants-appellees.D.C. Nos. 2:07–cv–02359–SMM, 2:08–cv–00505–SMM.Before: KENNETH F. RIPPLE, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.*
The Appellants' petition for panel rehearing is premature because there has been no judgment. See Fed. R.App. P. 40(a)(1). Appellants' petition for panel rehearing is construed as a motion to amend the certification order, and is GRANTED in part and DENIED in part.
The certification order of this court issued on January 3, 2011, is amended as follows: At slip opinion page 39, in the first full paragraph, the words “the motion to certify in” should be stricken from the sentence that begins, “The plaintiffs conclude....” The corrected sentence should read: “The plaintiffs conclude that the district court therefore erred in failing to toll the statute of repose during the entire pendency of the Hoffman litigation.”
No further amendments shall be entertained.
Alfred Albano and two other homeowners in a Gilbert, Arizona subdivision seek review of the district court's judgment holding that their defective construction claims against the developer, Shea Homes Limited Partnership, are barred by the Arizona state statute of repose. The district court held that Arizona, as a matter of state law, would apply the tolling rule of American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), as expanded by Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). It further held, however, that under the circumstances of this case, the rule did not save the plaintiffs' claims.
The Supreme Court of Arizona never has determined whether the rule of American Pipe and its progeny applies to state class actions filed in its courts and, more specifically, to state class actions subject to a statute of repose. Because we do not know how the Supreme Court of Arizona would apply American Pipe tolling to the circumstances before us and because these questions of law present important matters of public policy for the State of Arizona, we conclude that the most prudent course is to certify these matters to the Supreme Court of Arizona.
In June 2003, a number of homeowners in the Carriage Lane subdivision, located in Gilbert, Arizona, filed an action against the developer, Shea Homes Limited Partnership, in Superior Court in Arizona. The case, captioned Mark Hoffman, et al. v. Shea Homes Limited Partnership, et al., CV2003–011388, was filed as a class action and sought damages for various defects in the construction of the owners' homes; the plaintiffs in the present action were members of the putative class.1
As of May 2005, no motion for class certification had been filed. Accordingly, the Superior Court informed the parties that it would “treat the case as one involving only three homeowners.” Later, the Superior Court issued an order that, “[i]f Plaintiffs intend to file a motion for class certification in this case, that motion must be filed and served on all parties not later than noon on Friday, October 28, 2005.” However, it also stated: “The Court's order permitting the filing of the motion for class certification is without waiver on the part of any defendant or third-party defendant to raise an issue as to the timeliness of the motion.”
The plaintiffs filed their motion for class certification on November 2, 2005. The Superior Court denied the motion as untimely and also because the class did not meet the requirements for certification under Arizona Rule of Civil Procedure 23. The Superior Court stated:
Rule 23(c)(1) requires the Court to determine whether a class action may be maintained “[a]s soon as practicable after the commencement of an action brought as a class action....” Here, Plaintiffs' motion was brought 28 months after its [sic] complaint was filed.
.... Plaintiffs' only explanation for their delay is that, for approximately 24 months, Shea “stonewalled” Plaintiffs' discovery requests. The Court has reviewed the supplemental briefing on this issue and finds Plaintiffs' explanation unpersuasive and, essentially, undocumented. The Court also notes that, except for the usual requests to “tweak” the Court's scheduling orders, no discovery disputes of any significance were brought by Plaintiffs to the Court's attention until the briefing on the instant motion.
Turning to the merits, the Superior Court further held that the plaintiffs had not “carried their burden here to show that there is sufficient ‘typicality’ and ‘commonality’ to warrant granting the motion for class certification.”
In the same order, the Superior Court denied the plaintiffs' motion to amend the complaint to add eighty-six new plaintiffs. It appeared to the court that plaintiffs' counsel had “ ‘warehoused’ the proposed, new plaintiffs.” Additionally, Shea and the third-party defendants would suffer “significant prejudice” as a result of the delay. After these rulings by the Superior Court, the three named plaintiffs in Hoffman settled their claims.
In 2006, the plaintiffs—individuals who owned homes in Carriage Lane but who were not allowed to intervene in Hoffman—served a Notice and Opportunity to Repair (“NOR”) on Shea Homes Limited Partnership identifying alleged defects in the construction of their homes. Plaintiffs filed a new action in Superior Court, Albano, et al. v. Shea Homes Limited Partnership, CV2006–00812 (“ Albano I ”).2 This action was dismissed because the plaintiffs had failed to comply with the Arizona Purchaser Dwelling Act, Ariz.Rev.Stat. Ann. § 12–1361 et seq. ; specifically, they had not responded to the defendants' offers to repair.
After receiving the court's ruling in Albano I, the plaintiffs sent additional NORs to Shea Homes Limited Partnership. On November 5, 2007, the plaintiffs filed a third action in Superior Court, Albano, et al. v. Shea Homes Limited Partnership, CV2007–020525 (“ Albano II ”).3 The defendants removed this diversity action to federal court and subsequently moved to strike parts of the complaint. They also moved for summary judgment on the ground that the action was brought outside the applicable eight-year statute of repose set forth in Arizona Revised Statutes § 12–552(A), which provides:
Notwithstanding any other statute, no action or arbitration based in contract may be instituted or maintained against a person who develops or develops and sells real property, or performs or furnishes the design, specifications, surveying, planning, supervision, testing, construction or observation of construction of an improvement to real property more than eight years after substantial completion of the improvement to real property.For their part, the plaintiffs moved to remand to Superior Court.
Plaintiffs did not respond to the motion for summary judgment, and the defendants moved for summary disposition. The plaintiffs misinterpreted the motion as an entry of judgment and therefore filed a motion to set aside the judgment. The district court issued an order clarifying that a judgment had not been entered, denying the motion to set aside judgment as moot and granting the plaintiffs thirty days to respond to the motion for summary judgment.
Before the response deadline had passed, the plaintiffs filed another action in Superior Court; this action, Albano et al. v. Shea Homes Arizona Limited...
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