In re Fema Trailer Formaldehyde Products Liability, MDL NO. 07-1873.

• Decision Date: 29 May 2009
• Docket Number: MDL NO. 07-1873.
• Citation: 620 F.Supp.2d 755
• Parties: In Re: FEMA TRAILER FORMALDEHYDE PRODUCTS LIABILITY LITIGATION. This Document Relates to All Cases.
• Court: U.S. District Court — Eastern District of Louisiana

Page 755

620 F.Supp.2d 755

In Re: FEMA TRAILER FORMALDEHYDE PRODUCTS LIABILITY LITIGATION This Document Relates to All Cases.

MDL NO. 07-1873.

United States District Court, E.D. Louisiana.

May 29, 2009.

Gerald Edward Meunier, Justin I. Woods, Gainsburgh, Benjamin, David, Meunier & Warshauer, Frank Jacob D'Amico, Jr., Law Offices of Frank J. D'Amico, Jr., New Orleans, LA, for Plaintiffs.

Andrew D. Weinstock, Duplass, Zwain, Bourgeois, Morton, Pfister & Weinstock, Metairie, LA, Henry Thomas Miller, John Adam Bain, Adam Michael Dinnell, Michelle George Boyle, U.S. Department of Justice, Washington, DC, Michael David Kurtz, Baker Donelson Bearman Caldwell & Berkowitz, New Orleans, LA, for Defendants.

Jeffery N. Luthi, One Columbus Circle, Washington, DC, pro se.

Shalla Santos, Matthew B. Cano, Allensworth & Porter, LLP, Austin, TX, for Movant.

ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Before the Court is the Manufacturing Housing Defendants' Joint Rule 12(b)(6) Motion to Dismiss Based on Federal Preemption (Rec. Doc. 1192). After reviewing the complaints, the memoranda of the parties, and the applicable law, the Court rules as set forth herein.

I. BACKGROUND

In this multi-district litigation ("the MDL"); referred to as "In Re: FEMA Trailer Formldehyde Products Liability Litigation," Plaintiffs are individuals who resided in emergency housing units ("EHUs")¹ provided by the Federal Emergency. Management Agency ("FEMA") after Hurricanes Katrina and Rita. Plaintiffs claim to have been exposed to purportedly high levels of formaldehyde contained in these EHUs, and to have suffered damages as a result of these unsafe levels of formaldehyde and/or the absence of adequate warnings about the same.² Plaintiffs have sued the manufacturers of these EHUs, the United States Government, and in some cases, the government contractors who delivered and set up these EHUs.

The instant motion to dismiss is filed by the manufacturers of these particular mobile homes; travel trailers and park models are not at issue.³ The Defendants-movants note that the construction of these mobile homes is governed and regulated by the Manufactured Home Construction and Safety Standards Act, 42 U.S.C. § 5401 et seq., ("the MHA") and the standards and regulations promulgated by the United States Department of Housing and Urban Development ("HUD"), pursuant to 24 C.F.R. § 3280 and § 3282 ("the HUD Code")⁴. Accordingly, the Movants assert that the federal statutes and regulation in the MHA and the HUD Code explicitly and impliedly preempt Plaintiffs' claims against them in accordance with the Supremacy Clause of Article VI, Section 2 of the United States Constitution. Plaintiffs, on the other hand, contend that the MHA neither expressly nor implicitly preempts their state tort law-based claims against the Movants.

II. DISCUSSION

A. Legal Standard

In considering a motion to dismiss under Rule 12(b)(6), a court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). To avoid dismissal, however, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 127 S.Ct. at 1965 (quotation marks, citations, and footnote omitted).

B. Applicable Regulations in MHA and HUD Code

The United States Code states the purposes of the MHA:

(1) to protect the quality, durability, safety, and affordability of manufactured homes;

(2) to facilitate the availability of affordable manufactured homes and to increase homeownership for all Americans;

(3) to provide for the establishment of practical, uniform, and, to the extent possible, performance-based Federal construction standards for manufactured homes;

(4) to encourage innovative and cost-effective construction techniques for manufactured homes;

(5) to protect residents of manufactured homes with respect to personal injuries and the amount of insurance costs and property damages in manufactured housing, consistent with the other purposes of this section;

(6) to establish a balanced consensus process for the development, revision and interpretation of Federal construction and safety standards for manufactured homes and related regulations for the enforcement of such standards;

(7) to ensure uniform and effective enforcement of Federal construction and safety standards for manufactured homes; and

(8) to ensure that the public interest in, and need for, affordable manufactured housing is duly considered in all determinations relating to the Federal standards and their enforcement.

42 U.S.C. § 5401(b). To accomplish these objectives, the MHA grants the Secretary of HUD authority to establish appropriate Federal construction and safety standards for manufactured homes. 42 U.S.C.A. § 5403(a). According to the MHA, these standards⁵ shall be "performance-based" and "reasonable and practical", and must also meet "high standards of protection." Id. The MHA also requires that the mobile home construction and safety standards established by the Secretary of HUD include:

preemptive energy conservation standards ... [which] shall be cost-effective energy conservation performance standards designed to ensure the lowest total of construction and operating costs ... [and] shall take into consideration the design and factory construction techniques of manufactured homes and shall provide for alternative practices that result in net estimated energy consumption equal to or less than the specified standards.

42 U.S.C. § 5403(g).

Specific to preemption, the MHA provides:

Whenever a Federal manufactured home construction and safety standard established under this chapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any manufactured home covered, any standard regarding the construction or safety applicable to the same aspect of performance of such manufactured home which is not identical to the Federal manufactured home construction and safety standard.

42 U.S.C.A. § 5403(d) (emphasis added). This provision further states:

Federal preemption under this subsection shall be broadly and liberally construed to ensure that disparate State or local requirements or standards do not affect the uniformity and comprehensiveness of the standards promulgated under this section nor the Federal superintendence of the manufactured housing industry as established by this chapter. Subject to section 5404 of this title, there is reserved to each State the right to establish standards for the stabilizing and support systems of manufactured homes sited within that State, and for the foundations on which manufactured homes sited within that State are installed, and the right to enforce compliance with such standards, except that such standards shall be consistent with the purposes of this chapter and shall be consistent with the design of the manufacturer.

Id. (emphasis added). The HUD Code sets out the preemptive reach of § 5403(d) of the MHA. The regulation states, in pertinent part:

(a) No State manufactured home standard regarding manufactured home construction and safety which covers aspects of the manufactured home governed by the Federal standards shall be established or continue in effect with respect to manufactured homes subject to the Federal standards and these regulations unless it is identical to the Federal standards.

...

(c) States may participate in the enforcement of the Federal standards enforcement program under these regulations either as SAAs or PIAs or both. These regulations establish the exclusive system for enforcement of the Federal standards. No State may establish or keep in effect through a building code enforcement system or otherwise, procedures or requirements which constitute systems for enforcement of the Federal standards or of identical State standards which are outside the system established in these regulations or which go beyond this system to require remedial actions which are not required by the Act and these regulations. A State may establish or continue in force consumer protections, such as warranty or warranty performance requirements, which respond to individual consumer complaints and so do not constitute systems of enforcement of the Federal standards, regardless of whether the State qualifies as an SAA or PIA.

(d) No State or locality may establish or enforce any rule or regulation or take any action that stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The test of whether a State rule or action is valid or must give way is whether the State rule can be enforced or the action taken without impairing the Federal superintendence of the manufactured home industry as established by the Act.

24 C.F.R. § 3282.11. Further, when HUD announced the formaldehyde regulations, it explained, "[i]t is HUD's intention that these standards preempt State and local formaldehyde standards in accordance with the Act (42 U.S.C. 5403(d))." 49 Fed. Reg. at 31997.

The MHA also contains a "savings clause" which states that "[c]ompliance with any Federal manufactured home construction or safety standard ... does not exempt any person from any liability under common law."⁶ 42 U.S.C. § 5409(c). Additionally, the MHA contains a provision that sets forth state court jurisdiction under state law:

Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any manufactured home construction or...