Pagliaroni v. Mastic Home Exteriors, Inc., Civil Action No. 12–10164–DJC

• Decision Date: 15 February 2018
• Docket Number: Civil Action No. 12–10164–DJC
• Citation: 310 F.Supp.3d 274
• Parties: Anthony PAGLIARONI, Vicki O'Brien, John Costello and Catherine Lynch on behalf of themselves and others similarly situated, Plaintiffs, v. MASTIC HOME EXTERIORS, INC. and Deceuninck North America, LLC, Defendants.
• Court: U.S. District Court — District of Massachusetts

310 F.Supp.3d 274

Anthony PAGLIARONI, Vicki O'Brien, John Costello and Catherine Lynch on behalf of themselves and others similarly situated, Plaintiffs,
v.
MASTIC HOME EXTERIORS, INC. and Deceuninck North America, LLC, Defendants.

Civil Action No. 12–10164–DJC

United States District Court, D. Massachusetts.

Signed February 15, 2018

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Bonnie Prober, Cuneo Gilbert and LaDuca, Bethesda, MD, Brendan Thompson, Katherine Van Dyck, Matthew Evan Miller, William H. Anderson, Cuneo Gilber & LaDuca, LLP, Washington, DC, Charles E. Schaffer, Levin Sedran & Berman, Philadelphia, PA, Clayton D. Halunen, Halunen & Associates, Melissa S. Weiner, Halunen Law, Robert Kinney Shelquist, Scott A. Moriarity, Lockridge Grindel & Nauen PLLP, Shawn J. Wanta, Baillon Thome Jozwiak & Wanta LLP, Minneapolis, MN, Michael J. Flannery, Cuneo Gilbert & LaDuca, LLP, St. Louis, MO, Kate R. Isley, Attorney General's Office, Boston, MA, for Plaintiffs.

Katherine S. Kayatta, Gavin G. McCarthy, Pierce Atwood LLP, Portland, ME, Nicholas Paul Brown, Donald R. Frederico, Pierce Atwood LLP, Kate R. Isley, Attorney General's Office, Boston, MA, Brian A. Troyer, Matthew D. Ridings, William J. Hubbard, Thompson Hine LLP, Cleveland, OH, David A. Wilson, Thompson Hine LLP, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

Denise J. Casper, United States District Judge

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I. Introduction

Anthony Pagliaroni ("Pagliaroni"), Vicki O'Brien ("O'Brien"), Catherine Lynch ("Lynch") and John Costello ("Costello") (collectively, "Plaintiffs") seek damages as well as declaratory and injunctive relief from Defendants Mastic Home Exteriors ("Mastic") and Deceuninck North America ("DNA") arising from damage to their decks allegedly caused by a design defect in the Oasis decking formula. Plaintiffs assert claims for breach of warranty, negligence, negligent misrepresentation and unjust enrichment and violation of certain state consumer protection laws. D. 53. Mastic and DNA have both filed for summary judgment. D. 266 (Mastic), 270, 272, 274, 276 (DNA). For the reasons stated below, the Court ALLOWS IN PART AND DENIES IN PART Mastic's motion, D. 266, and ALLOWS DNA's motions for summary judgment, D. 270, 272, 274, 276.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) ). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000) ; see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010). "As a general rule, that requires the production of evidence that is ‘significant[ly] probative.’ " Id. (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ) (alteration in original). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

Both Mastic and DNA submitted statements of material fact. See D. 269; D. 271 at 2–6; D. 273 at 2–4; D. 275 at 2–3; D. 277 at 2–3. Plaintiffs, however, did not respond to Defendants' statements of material facts in a manner that indicates what, if any, material facts they dispute. Where there has been no such response to the material facts as presented by movants, they may be deemed admitted. Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003) (quoting D. Mass. L.R. 56.1); see Kirtz v. Wells Fargo Bank N.A., No. CIV.A. 12-10690-DJC, 2014 WL 3869997, at *1, *1 n.1 (D. Mass. Aug. 5, 2014). Nearly two weeks after the Court heard the parties' arguments on the motions for summary judgment and over a month after Plaintiffs had filed their oppositions to the motions for summary judgment, Plaintiffs moved for leave to file an amended statement of material facts to cure this deficiency, raised by defense counsel at the motion hearing. D. 302. While deeming facts to which a nonmovant does not respond admitted

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for purposes of a motion for summary judgment is a matter of discretion, see Butters v. Wells Fargo Advisors, LLC, No. 10-cv-10072-MLW, 2012 WL 5959986, at *2 (D. Mass. Nov. 27, 2012), it is the nonmovant's responsibility "to focus the district court's attention on what is, and what is not, genuinely controverted," Mariani–Colon v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007) (citations omitted); see Zimmerman v. Puccio, 613 F.3d 60, 62–63 (1st Cir. 2010), and to do so in a timely fashion. Accordingly, Plaintiff's late filed motion to amend their statement of facts, D. 302, is DENIED. Plaintiffs' operative statement of material facts itself, D. 284; D. 288, fails to dispute the material facts at issue in this case. To the extent, however, Plaintiffs rely in their opposition upon admissible evidence in the record to dispute material facts in this case, the Court has considered such evidence.

DNA designed and manufactured Oasis decking ("Oasis"), a deck product made of wood–polymer composite. D. 269, ¶ 1; D. 271 at 2; D. 273 at 2; D. 275 at 2; D. 277 at 2. Mastic, formerly known as Alcoa Home Exteriors, Inc., and owned by Ply Gem Industries, Inc. ("Ply Gem"), marketed and distributed Oasis. D. 269, ¶ 2. Mastic sold Oasis to wholesalers and distributors, who would in turn resell Oasis to other distributors, contractors and retailers, who in turn would sell Oasis to end-users or consumers. D. 271 at 2; D. 273 at 2; D. 275 at 2; D. 277 at 2. Mastic offered an express warranty that Oasis "would be free from defects in material and worksmanship for twenty-five years" (the "Limited Warranty"). D. 269, ¶ 4. The Limited Warranty included a disclaimer that limited the remedies for a warranty claim to replacement of defective Oasis decking or refund of the value of the defective product. D. 269, ¶ 5. The Limited Warranty also provided that Mastic was not responsible for consequential, special or incidental damages arising out of the purchase of Oasis and that it was the exclusive warranty for Oasis. D. 269, ¶¶ 6–7.

Pagliaroni lived in Swansea, Massachusetts. D. 269, ¶ 10; D. 271 at 2. Prior to purchasing Oasis, a contractor recommended it to Pagliaroni and gave him a brochure and sample. D. 271 at 2–3. The brochure referred to the Limited Warranty. D. 271 at 3. Pagliaroni built his Oasis deck in the summer of 2006. D. 269, ¶ 11. D. 271 at 3. Pagliaroni noticed cracks in his Oasis deck for the first time in August 2007, approximately one year after it had been constructed and installed. D. 269, ¶ 16; D. 271 at 3. In addition to cracking, Pagliaroni also saw mold growth and swelling and warping of the Oasis deck boards, which concerned him. D. 269, ¶¶ 17–18; D. 271 at 3–4. As the cracking continued to worsen, Pagliaroni's contractor inspected the deck in 2007 and concluded that the problems related to the product rather than the installation. D. 269, ¶¶ 19–20; D. 271 at 4. Pagliaroni then attempted to contact Mastic about the issues with his Oasis deck later in 2007, but did not speak to anyone. D. 269, ¶ 21; D. 271 at 4. In early 2010, Pagliaroni or his wife contacted Mastic again, and in April 2010, Mastic sent Pagliaroni a letter informing him of the warranty process and enclosing a warranty claim form. D. 269, ¶¶ 22–23; D. 271 at 4. Pagliaroni submitted a warranty claim in April 2011. D. 269, ¶ 24; D. 271 at 4. Mastic approved Pagliaroni's warranty claim and offered reimbursement for the purchase price of his Oasis deck, but Pagliaroni rejected the offer. D. 269, ¶¶ 25–26; D. 271 at 5.

Lynch lives in Harpersfield, New York. D. 269, ¶ 28; D. 275 at 2. Lynch constructed her Oasis deck in or about September 2007. D. 269, ¶ 29; D. 275 at 2. Lynch reviewed the Limited Warranty prior to purchasing her Oasis deck and understood

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that it excluded labor. D. 269, ¶¶ 35–36. Lynch noticed cracking in her Oasis deck in April 2009, D. 275 at 3, and noticed cupping and warping in October 2011, D. 269, ¶ 39; D. 275 at 3, and submitted a warranty claim to Mastic on March 6, 2012, D. 269, ¶¶ 38–42; D. 275 at 3. Mastic approved Lynch's warranty claim and offered reimbursement for the purchase price of her Oasis deck, but Lynch rejected the offer. D. 269, ¶¶ 43–44; D. 275 at 3.

Costello lives in Portland,...