In re Uponor, Inc., F1807 Plumbing Fittings Prods. Liab. Litig.

• Decision Date: 19 June 2012
• Docket Number: Court File No. 11-MD-2247 ADM/JJK
• Parties: In re: Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation This Order Relates to all Actions
• Court: U.S. District Court — District of Minnesota

In re: Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation This Order Relates to all Actions

Court File No. 11-MD-2247 ADM/JJK

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: June 19, 2012

MEMORANDUM OPINIONAND ORDER

Shawn M. Raiter, Esq., Larson King, LLP, St. Paul, MN, on behalf of Plaintiffs.

Chad R. Felstul, Esq., Pemberton, Sorlie, Rufer & Kershner, PLLP, Fergus Falls, MN; and Kenneth S. Kasdan, Esq., Michael D. Turner, Esq., and Michael James White, Esq., Kasdan Simonds Weber & Vaughan LLP, Irvine, CA, and Phoenix, AZ, on behalf of MovantOscar Ortega.

Bradley D. Fisher, Esq., Fisher Bren & Sheridan LLP, Minneapolis, MN; and Howard L. Lieber, Esq., John R. Schleiter, Esq., and Lindsay E. Dansdill, Esq., Grotefeld Hoffman Schleiter Gordon & Ochoa, LLP, Chicago, IL; and Joshua P. Haid, Esq., Fisher Kannaris, PC, Chicago, IL, on behalf of Defendants

I.INTRODUCTION

This matter is before the undersigned United States District Court Judge for a ruling on Plaintiff-Intervenor Oscar Ortega's ("Ortega")Motion to Intervene [DocketNo. 15], Motion for Protective Order [DocketNo. 24], andMotion to Decertify Class [DocketNo. 28].For the reasons set forth below, Ortega's motions are denied.

II.BACKGROUND

On January 18, 2012, this Court issued an Order Granting the Motion to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement and Form and Dissemination of Notice to the Class [DocketNo. 12]("Class Certification Order").Two settlement classes were preliminarily approved, one class for individuals whose Uponor F1807Systems had already leaked¹ and one for those whose systems had not.²

This multi-district litigation ("MDL") case began with the filing of the first putative class action suit against Radiant Technology, Inc.("RTI") and Uponor, Inc.("Uponor"), McGregor v.Uponor, Inc., on May 15, 2009.SeeMcGregor Compl. [McGregor DocketNo. 1].³That case asserted a number of claims regarding Plumb-PEX plumbing systems the Defendants sold under standard ASTM F1807("F1807").Defendants Uponor and RTI moved to dismiss the claims of the named class representatives in McGregor, arguing there was no damage and no standing for individuals whose F1807 systems had not leaked.In successfully defending that motion, the McGregorplaintiffs cited several California decisions and maintained that breach of warranty occurs at the time of delivery of nonconforming goods, not at the time those nonconforming goods cause additional injury.Pls.'Mem. in Opp'n to Mot. [McGregor DocketNo. 32] 6-7.

In January 2011, two putative class actions were brought in California against Defendants RTI and Uponor.SeeFielstra v. Uponor, 11-cv-1683(ADM/JJK);Roth v. Uponor, 11-cv-1684(ADM/JJK).The Fielstraplaintiffs contended that all class members had claims, regardless of whether their systems had previously leaked — "Defendants have refused the requests [ ] of property owners to replumb their home to replace the fittings Defendants themselves have admitted are defective, unreasonably dangerous and not merchantable."First Am. Compl. [Fielstra Docket No. 25]¶ 47.Similarly, the Rothplaintiffs alleged that the defective fittings needing to be proactively replaced because "[t]hese failures have and will in the future cause leaks . . . and must be removed and replaced."First Am. Compl. [Roth Docket No. 14]¶ 18.

The proposed settlement specifies two classes.Those class members whose F1807 systems have leaked are entitled to the full repair and replacement cost.Raiter Aff. [DocketNo. 41] Ex.A ("Settlement Agreement.")¶¶ 32, 103-06.Class members who have not experienced at least one leak but are able to demonstrate "by way of a flow test that a differential in water flow . . . of more than 50% [exists] between the hot and cold lines . . . .," are entitled to the cost of repairs and where this is insufficient, replacement.Id.¶¶ 95, 108.

Ortega purchased his home in January 2010 and has not yet filed any claim related to his plumbing system.Ortega Decl [Docket No. 18]¶¶ 1-3.In July 2010, Ortega's California attorneys filed a suit concerning plumbing systems entitled Sweidan v. Wirsbo Co.See Raiter Aff. Ex. B ("Sweidan v. Wirsbo Co., CaseNo. RIC 10014729 (Cal. Sup. Ct. 2010)").In August 2010, the SweidanDefendants moved to dismiss because the claims were identical to those asserted in McGregor.Raiter Aff. Ex. C. Ortega's attorneys, therefore, knew about the McGregor case by at least August 2010, although Ortega states that he was ignorant of the McGregor suit until May 12, 2012.SeeOrtegaDecl. ¶ 3.

III.DISCUSSION

A.Motion to Intervene

Ortega's Motion to Intervene as a matter of right under Federal Rule of Civil Procedure 24(a)(2) is premised on the argument that the present class representatives have not attempted to assert a claim under California Civil Code § 896, or California's Right of Repair Act ("RORA")⁴and that, as a result, the settlement fails to provide him and others similarly situated the damages available under California law should their F1807 systems never leak.Ortega's Mem. in Supp. of Mot. to Intervene [DocketNo. 17] 1.The settlement class opposes Ortega's Motion to Intervene arguing it is untimely and procedurally flawed, and that the claims Ortega asserts are virtually identical to those asserted by the class representatives.

1.Timeliness

Courts must allow intervention if that party claims an interest relating to the property or transaction which is the subject of current litigation if that party is "so situated that disposing of the action may . . . impair or impede the movant's ability to protect its interest."Fed. R. Civ. P. 24(a)(2).Even so, the Court need not permit intervention of right when existing parties adequately represent the intervenor's interest.Id.

A party seeking intervention, however, must move to intervene in a timely manner."The issue of the timeliness of a motion to intervene is a threshold issue."United States v. Ritchie Special Credit Inv., Ltd., 620 F.3d 824, 832(8th Cir.2010).In considering the timeliness of a motion to intervene, a court must consider the totality of the circumstances.Jenkins by Jenkins v. State of Mo., 78 F.3d 1270, 1273-74(8th Cir.1996).Four factors are relevant to thetimeliness determination of a motion to intervene: (1) the progress of the litigation; (2) the prospective intervenor's prior knowledge of the action; (3) the reason for delay in seeking intervention; and (4) the likelihood of prejudice to all parties.Ritchie Special Credit Inv., Ltd., 620 F.3d at 832(citation omitted).

Except for his assertion that he did not know of the settlement prior to May 2012, Ortega utterly fails to argue the timeliness of his present Motion to Intervene.The timeliness factors here militate against permitting intervention.Given the advanced stage of the litigation, combined with the substantial time and resources expended by all parties to this settlement, permitting a full-scale intervention would be extremely prejudicial to many parties' interests.AccordSnell v. Allianz Life Ins. Co. of North Am., No. Civ. 97-2784, 2000 WL 1336640, at *9(D. Minn.Sept. 8, 2000)(citing numerous cases from other jurisdictions denying intervention after significant resources have been expended and time has elapsed).Ortega's motion to intervene comes three years after McGregor was first filed and four months after the Class Certification Order was issued, and this ninth-inning-with-two-outs intervention motion comes after the preliminary approval of an arms-length settlement agreed upon as the result of lengthy negotiations.

The timing of Ortega's prior knowledge of the MDL action raises questions.While Ortega asserts that he did not know of this litigation until May 2012, seeOrtegaDecl. ¶ 3, his attorneys did know of the McGregor litigation as early as August 2010.See Raiter Aff. Ex. C.As a general rule, an attorney's knowledge is imputed to his client.SeeCal. Ins. Guar. Ass'n v. Workers' Comp. Appeals Bd., 77 Cal. Rptr. 3d 868, 875(Cal. Ct. App.2008);Lundin v. Stratmoen, 85 N.W.2d 828, 831(Minn.1957)("[T]he knowledge of an attorney is imputed to hisclient . . . .").However, this imputation of knowledge applies to the attorney-client relationship, and therefore does not antedate the start of that relationship.Cf.Armstrong v. Ashley, 204 U.S. 272, 283(1907)("The knowledge of the attorney . . . in regard to a matter coming within the sphere of their duty, and acquired while acting in regard to the same . . . must be imputed to the [client].");Freeman v. Superior Court, San Diego Cnty., 282 P.2d 857, 860(Cal.1955)("The general rule of agency, that notice to or knowledge possessed by an agent is imputable to the principal, applies for certain purposes in the relation of attorney and client.").As there is no evidence of record as to when Ortega first met with and established his relationship with his attorneys, it is impossible at this time to determine when his attorneys' knowledge should be imputed to Ortega.As such, this factor is inconclusive here.Additionally, since it is unknown when Ortega gained knowledge of the action, it is similarly impossible to calculate the delay in seeking intervention.Therefore, neither the prior knowledge nor the delay factor are probative on the timeliness of intervention here.

The prejudice to the parties, however, weighs strongly in favor of denying intervention.Ortega has failed to argue how his interests would be significantly prejudiced by a denial of intervention.Ortega had the option to opt out of the class.The settlement parties, however, would be prejudiced by an expensive, time-consuming delay, additional discovery, and by restarting or revisiting settlement negotiations.Based on the prejudice to the settlement parties, as well as the advanced progress of the litigation, Ortega's Motion to Intervene is untimely.

2.Adequacy...