Coleman v. Sears Home Improvement Prods., Inc., CIVIL ACTION NO. 16-2537 SECTION: "G"(5)
| Decision Date | 21 March 2017 |
| Docket Number | CIVIL ACTION NO. 16-2537 SECTION: "G"(5) |
| Parties | ANTHONY COLEMAN AND AVA COLEMAN v. SEARS HOME IMPROVEMENT PRODUCTS, INC. |
| Court | U.S. District Court — Eastern District of Louisiana |
In this litigation, Plaintiffs Anthony Coleman and Ava Coleman ("Plaintiffs") allege that Defendant Sears Home Improvement Products, Inc. ("SHIP") failed to ensure that Plaintiffs' roof was properly installed pursuant to their contract and in accordance with applicable building codes and manufacturer specifications.1 Currently pending before the Court are SHIP's "Motion to Dismiss"2 and SHIP's "Motion to Dismiss Second Amended Complaint."3 Because SHIP filed a second motion to dismiss after Plaintiffs filed an amended complaint,4 the Court will deny SHIP's first motion to dismiss as moot. Moreover, having considered the second motion to dismiss, the record, the memoranda in support and in opposition, and the applicable law, the Court will deny the motion without prejudice and grant Plaintiffs leave to amend their complaint to address the deficiencies identified by the Court by April 17, 2017.
Plaintiffs state that on November 24, 2010, they entered into a contract with SHIP for the installation of an "Owens-Corning 3-tab 25-year shingle roof" on their home.5 SHIP then hired an independent contractor, Third-Party Defendant Magnolia Roofing & Exteriors, Inc. ("Magnolia"), to perform the installation.6 SHIP also entered into an agreement with Third-Party Defendant Crawford & Company, D/B/A Strategic Warranty Services ("Crawford") as an independent contractor to perform inspections of roof installations performed by other independent contractors such as Magnolia.7
In their amended complaint, Plaintiffs allege that the roof installation began in December 2011 and was never completed or properly installed pursuant to the applicable building codes and manufacturer's specifications.8 For example, Plaintiffs assert that four nails per shingle were used instead of the required six nails per shingle and that the nails were improperly placed on the shingles.9 Plaintiffs argue that SHIP breached several duties of care and acted negligently and/or fraudulently by, inter alia, allowing a "substandard subcontractor" to install Plaintiffs' roof.10
Plaintiffs filed a petition in Louisiana state court on March 1, 2016.11 On March 29, 2016, SHIP removed the case to this Court pursuant to the Class Action Fairness Act.12 On April 7, 2016, this Court granted SHIP's motion for an extension of time to file responsive pleadings,13 and on April 25, 2016, SHIP filed its first motion to dismiss.14 On May 17, 2016, Plaintiffs filed an opposition.15 With leave of Court, SHIP filed a reply on May 24, 2016.16
On July 1, 2016, Plaintiffs filed an amended complaint asserting the same claims but adding an expanded definition of Plaintiffs' proposed class.17 With leave of Court, SHIP filed a third-party complaint against Crawford and Magnolia on August 10, 2016.18
On July 18, 2016, SHIP filed the second instant motion to dismiss Plaintiffs' amended complaint, which incorporated SHIP's previous arguments from its first motion to dismiss.19 On July 26, 2016, Plaintiffs filed an opposition, which also incorporated Plaintiffs' previousarguments on the first motion to dismiss.20 With leave of Court, SHIP filed a reply on August 16, 2016.21
In its second motion to dismiss, SHIP argues that all of Plaintiffs' claims in the amended complaint should be dismissed pursuant to Rules 10(b) and (12)(b)(6) of the Federal Rules of Civil Procedure.22 Because Plaintiffs' amended complaint is "substantially identical" to the first petition, SHIP avers, SHIP incorporates the arguments it made in its previous motion to dismiss.23 SHIP further asserts that Plaintiffs' first opposition memorandum only opposed dismissal of Plaintiffs' negligence claims, and thus SHIP argues that Plaintiffs had "[e]ffectively, but not technically" withdrawn opposition to the dismissal of the remainder of their claims.24
In the original motion to dismiss, SHIP contends that Plaintiffs' "shotgun complaint" fails the pleading requirements of Rule 8 and Rule 10(b) and should be dismissed in its entirety.25 SHIP points out that Plaintiffs failed to attach the contract with SHIP or the 25-year manufacturer's warranty to the amended complaint or cite to any relevant provisions of either document.26 SHIP avers that Plaintiffs simultaneously allege that the December 2010 roof installation was nevercompleted and that Plaintiffs also did not discover the alleged defects until late January 2015.27 SHIP argues that Plaintiffs allege, without any factual basis, that SHIP knew or had constructive knowledge that its third-party contractor would not properly install the roof.28 SHIP also points out that Plaintiffs failed to identify the specific building codes that SHIP and its contractors allegedly did not follow.29 SHIP argues that Plaintiffs' "shotgun" pleading does not specify what claims the Plaintiffs are bringing or identify the supporting factual allegations for each of Plaintiffs' claims, which makes it "virtually impossible" to know which facts are intended to support which claims for relief.30 For example, SHIP asserts that Plaintiffs list five legal duties that SHIP allegedly failed to meet without identifying supporting facts or the sources of the duties, while at other times Plaintiffs fail to tie their alleged facts to a cause of action.31
SHIP contends that Plaintiffs allege a redhibition cause of action without including important factual information such as when the alleged defects existed or how SHIP knew or should have known about the alleged defects.32 Likewise, SHIP argues that Plaintiffs assert a breach of contract claim in the amended complaint, but do not plead how, when, or by whom the contract was breached.33 SHIP further argues that Rule 9(b) requires allegations of fraud to bestated with particularity, and that Plaintiffs "flatly fail to meet these requirements" with their vague assertions regarding alleged misrepresentations.34
SHIP avers that Plaintiffs request attorneys' fees and costs, but do not state a statutory or contractual basis for their claim.35 SHIP also contends that Plaintiffs' "piecemeal negligence allegations" do not cite to any sources of legal duties allegedly owed to Plaintiffs or how SHIP acted negligently.36 Finally, SHIP asserts that Plaintiffs seek several categories of "non-pecuniary damages," such as emotional and mental suffering and loss of enjoyment of life, but that Plaintiffs failed to state what caused these damages or that SHIP knew such damages would result from the allegedly defective roof.37 SHIP argues that under Louisiana law, non-pecuniary damages are only allowed in contract cases "when (1) it is clear the contract was intended to satisfy a non-pecuniary interest and (2) the allegedly breaching party knew or should have known the breach would cause such loss."38
In their second opposition memorandum, Plaintiffs clarify that they have never withdrawn or conceded that any of their claims should be dismissed, and Plaintiffs incorporate their arguments made in their opposition to SHIP's first motion to dismiss.39 In their first opposition memorandum,Plaintiffs argue that SHIP "knows exactly what [Plaintiffs] are complaining about."40 Plaintiffs contend that SHIP's designated corporate representative testified in Glenn Jones v. Sears Home Improvements, et al., a separate Louisiana state court lawsuit over SHIP's allegedly defective roofs brought by different plaintiffs, and confirmed that SHIP had instructed SHIP's contractors to only use four nails per shingle, while the manufacturer's specifications and local building codes require six nails per shingle and a proper nailing pattern.41 Plaintiffs aver that the 25 year manufacturer warranty is void when the roof is installed inadequately.42 Plaintiffs assert that a "shotgun pleading" is one that lists an excessive number of facts and a number of conclusory legal claims, whereas here Plaintiffs make direct factual allegations regarding the negligent acts or omissions of SHIP.43 Moreover, Plaintiffs argue that the remedy for shotgun pleadings would be to move for a more definite statement under Rule 12(e) and to provide Plaintiffs with an opportunity to amend their complaint.44
Plaintiffs aver that SHIP's "interrogatory style questions" could be reasonably answered in discovery, but "for the sake of judicial efficiency" Plaintiffs answer them in their opposition memorandum.45 For example, Plaintiffs represent that the defects in the roof were not discovereduntil January 2015 because that was the first time anyone went on the roof to count the number of nails under the shingles.46
Likewise, Plaintiffs further allege that SHIP owed Plaintiffs the ordinary duties of a seller and/or contractor to a homeowner to follow the manufacturer's installation requirements, perform their work in a "workmanlike manner," and comply with all applicable codes and laws.47 According to Plaintiffs, the Louisiana legislature adopted the International Building Code of 2009 ("IBC"), which specifically provides that it is unlawful for any person or corporation to "erect, construct, alter, extend, repair, move, remove, demolish, or occupy" a building or structure in violation of the IBC.48 Plaintiffs assert that the IBC and Louisiana law also impose a duty on contractors to safeguard public health, safety, and general welfare, as well as safety to life and property.49 Furthermore, Plaintiffs represent that Louisiana law imposes a duty of care on contractors and inspectors to perform their work in a "good and workmanlike manner," and that a "person who negligently builds something is liable in tort . . . for whatever...
To continue reading
Request your trial