Haley v. Kolbe & Kolbe Millwork Co.
| Decision Date | 18 December 2015 |
| Docket Number | 14-cv-99-bbc |
| Parties | MARY HALEY and MICHAEL HALEY, LESLIE BANKS and JAMES HAL BANKS, ANNIE BUINEWICZ and BRIAN BUINEWICZ, TERRANCE McIVER and JEAN ANN McIVER, SUSAN SENYK and CHRISTIAN SENYK, MATTHEW DELLER and RENEE DELLER, PATRICIA GROOME, GARY SAMUELS and MARIE LOHR, on behalf of themselves and others similarly situated, Plaintiffs, v. KOLBE & KOLBE MILLWORK CO., INC., Defendant, and FIREMAN'S FUND INSURANCE COMPANY and UNITED STATES FIRE INSURANCE COMPANY, Intervenor Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Plaintiffs have brought this action under Wisconsin law on behalf of themselves and similarly situated individuals, alleging that defendant Kolbe & Kolbe Millwork Co., Inc. breached express and implied warranties under state law related to allegedly defective windows installed in their homes. Before the court is plaintiffs' motion to certify (1) four national subclasses under Fed. R. Civ. P. 23(b)(3) for monetary damages on behalf of consumers with windows that have exhibited rot; and (2) a similar Rule 23(b)(2) class seeking declaratory and injunctive relief on behalf of consumers with windows that have not yet manifested the alleged defects. Dkt. #284. Defendant opposes certification on the grounds that the proposed classes and subclasses are neither well defined nor manageable and the breach of warranty claims require the resolution of too many individual questions of law and fact. The parties also disagree about the scope of plaintiffs' claims. In particular, they dispute whether plaintiffs have any claims related to (1) express warranties that defendant's windows meet certain manufacturing and building standards and (2) an implied warranty of the windows' fitness for a particular purpose. Jurisdiction is present under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).
I am denying plaintiffs' motion for class certification because plaintiffs have failed to satisfy the requirements of Rule 23(a) (prerequisites) and (b) (types of actions). I conclude that plaintiffs have waived their claims related to an express warranty that defendant's windows met certain standards and building codes and that they have failed to plead and waived any claims for breach of the implied warranty of fitness for a particular purpose.
Plaintiffs have proposed overly broad and confusing class definitions and have not provided sufficient information from which the court can conclude that their claims are subject to class-wide proof or fit for resolution on a class-wide basis under either Rule 23(b)(2) or (3). With respect to the Rule 23(b)(3) class, the parties' submissions show that the predominant questions would be those affecting only individuals, at least as to severalaspects of this case, including questions related to choice of law, notice of breach, privity, accrual, tolling, equitable estoppel, warranty conditions, causation and damages. Plaintiffs' proposed Rule 23(b)(2) class faces similar problems because the individual inquiries about defendant's actions and refusals to act that are necessary to determine whether the class is entitled to the requested declaratory and injunctive relief make the class unmanageable as it has been proposed. Further, plaintiffs have failed to demonstrate that a single declaratory judgment or injunction would provide final relief to each member of the class.
Plaintiffs note correctly that the Court of Appeals for the Seventh Circuit has made it clear in several recent cases that "the fact that the plaintiffs might require individualized relief or not share all questions in common does not preclude certification of a class" under either Rule 23(b)(2) or (3). Bell v. PNC Bank, National Association, 800 F.3d 360, 379 (7th Cir. 2015) (citing Chicago Teachers Union Local No. 1 v. Board of Education of City of Chicago, 797 F.3d 426, 442 (7th Cir. 2015); In re IKO Roofing Shingle Products Liability Litigation, 757 F.3d 599, 602 (7th Cir. 2014); Pella Corp. v. Saltzman (Pella II), 606 F.3d 391, 394 (7th Cir. 2010); Arreola v. Godinez, 546 F.3d 788, 801 (7th Cir. 2008); Allen v. International Truck and Engine Corp., 358 F.3d 469, 471-72 (7th Cir. 2004)). Rule 23(c)(4) provides that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues." A court may limit the class action to questions of liability and hold separate hearings to determine the damages of individual class members or homogeneous groups of class members. McMahon v. LVNV Funding, LLC, ___ F.3d ___, 2015 WL 8119786, at *3 (7th Cir. Dec. 8, 2015) () (quoting Mullins v. Direct Digital, LLC, 795 F.3d 654, 671 (7th Cir. 2015)); Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir. 2013) (); Carnegie v. Household International, Inc., 376 F.3d 656, 661 (7th Cir. 2004) ().
In this case, however, plaintiffs have not asked for "issue" certification, have not explained how any question could be resolved for all class members with common proof and have not shown that individual proceedings with respect to issues involving multiple state laws, fact-specific inquiries, causation and timeliness would be manageable. Marshall v. H & R Block Tax Services Inc., 270 F.R.D. 400, 407 (S.D. Ill. 2010) (). In lieu of a full discussion of the Rule 23 requirements, plaintiffs make vague and conclusory statements and point to cases in which other federal courts have certified "similar" class actions. For example, they rely heavily on a case in which the District Court for the Northern District of Illinois certified Rule 23(b)(2) and (3) classes of window buyers who alleged that defendants fraudulently concealed an inherent product defect that resulted in rot of the windows' wood components. Saltzman v. Pella Corp. (Pella I), 257 F.R.D. 471 (N.D. Ill. 2009), aff'd 606 F.3d 391. Although Pella is instructive in some respects, it cannot serve as a substitute for a Rule 23 analysis, particularly because of the significant differencesbetween the facts in this case and those in Pella, which involved only one fraud claim in six states and a single defect in a specific type of window. Id. at 474.
Although class certification of all of the issues in this case would be unmanageable under Rule 23(b)(2) or (3), it may be possible for plaintiffs to propose a class for which limited issues of liability may be determined. Accordingly, I will give them a final opportunity to file a renewed request for certification of a limited issue class or classes that addresses the concerns outlined in this opinion. Along with that motion, plaintiffs must submit a proposed trial plan that describes in detail the issues likely to be presented at trial, discusses whether and how those are susceptible to class-wide proof and explains how individual inquiries could be handled.
The decision to give plaintiffs a second chance makes the February 1, 2016 trial date unworkable. Accordingly, I am striking the trial date and denying the parties' motions in limine without prejudice. After I resolve plaintiffs' renewed motion for class certification, I will set a new schedule for the remainder of the case.
In determining whether the proposed classes and subclasses should be certified, I have considered the allegations in the second amended complaint and the affidavits and depositions that the parties have submitted. Sharpe v. APAC Customer Services, Inc., 2010 WL 135168, *1 (W.D. Wis. Jan. 11, 2010); Sjoblom v. Charter Communications, LLC, 571 F. Supp. 2d 961, 964 (W.D. Wis. 2008).
The named plaintiffs live in various states across the country and own homes in which defendant's windows have been installed at different times since 1997. Sum. Jmt. Ord., dkt. #233 at 3-10. All of them experienced one or more problems with some of defendant's windows, including leaking, rot or cracking or peeling paint. Id. Defendant's responses to plaintiffs' complaints varied, ranging from doing nothing to replacing a limited number of window sashes. Id. For a variety of reasons, all of the plaintiffs eventually concluded that defendant would not honor its written warranty on the windows. Id.
Since 1997, defendant has issued at least seven different versions of a written window warranty. Window warranties, dkt. #314, exh. 1. Every version of the window warranty includes the following information:
The window warranties differ in the following respects:
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