Porcell v. Lincoln Wood Prod.S Inc

• Decision Date: 31 March 2010
• Docket Number: No. CIV-08-0617 MCA/LFG.,CIV-08-0617 MCA/LFG.
• Citation: 713 F.Supp.2d 1305
• Parties: Bruce PORCELL, an individual, and all others similarly situated, Plaintiffs,v.LINCOLN WOOD PRODUCTS, INC., and Does 1 through 10, inclusive, Defendants.
• Court: U.S. District Court — District of New Mexico

713 F.Supp.2d 1305

Bruce PORCELL, an individual, and all others similarly situated, Plaintiffs,v.LINCOLN WOOD PRODUCTS, INC., and Does 1 through 10, inclusive, Defendants.

No. CIV-08-0617 MCA/LFG.

United States District Court D. New Mexico.

March 31, 2010.

COPYRIGHT MATERIAL OMITTED

Brian R. Strange, Gretchen Carpenter, Tamina Madsen, Strange & Carpenter, Los Angeles, CA, Karen S. Mendenhall, Albuquerque, NM, for Plaintiffs.

Gordon Davenport, III, Matthew R. Lynch, Michael D. Leffel, Theresa A. Andre, Foley & Lardner, Madison, WI, Terry Farmer, Moses, Dunn, Farmer & Tuthill, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, District Judge.

This case is before the Court upon Plaintiff, Bruce Porcell's (Porcell's) Motion for Class Certification. [Doc. 104]. The Court has considered the parties' written submissions, the evidence offered in support of and in opposition to the instant motion, the applicable law, and is otherwise fully informed in the premises. For the reasons that follow, the Court denies Porcell's Motion for Class Certification.

BACKGROUND

Defendant, Lincoln Wood Products, Inc. (“Lincoln”), is a manufacturer of insulated glass windows. [Doc. 112 at 1] ¹ Its headquarters are in Merrill, Wisconsin. [ Id.] Lincoln sells its windows throughout the United States. [ Id.] For purposes of this lawsuit, Lincoln windows can be broadly divided into two types. The first type, which the Court will refer to as “low altitude windows,” incorporates two or three panes of glass, each pane separated from the others by a layer of gas, either air or argon. [Doc. 51, ¶ 37] At the customer's request argon gas, which is superior to air as insulation, can be substituted for air as part of a package upgrade that includes Low-E glass. [Doc. 51, ¶¶ 46, 47] In low altitude windows, the space inside the panes of glass is hermetically sealed so that water vapor cannot diffuse into the space, causing fogging on the inside of the glass, [Doc. 51, ¶ ¶ 43, 48, 49] and so that optional argon gas will not diffuse out. [Doc. 51, ¶ ¶ 47, 52] In low altitude windows the air pressure in the space between the panes of glass approximates the atmospheric pressure at the place of manufacture. [Doc. 51, ¶ 43]. Low altitude windows present problems when they are shipped through locations at significantly higher altitudes than the place of manufacture. Because atmospheric pressure generally decreases as altitude increases, the higher relative pressure of the air contained inside low altitude windows will cause the panes of glass to deform when low altitude windows are shipped through or to higher altitudes. [Doc. 51, ¶ 43; Doc. 38-2 at 9] This deformation can cause warping, cracking, distortion, and other damage to the window. [Doc. 51, ¶ 43]

The second type of window, which the Court will refer to as “high altitude windows,” also incorporates two or three panes of glass, each pane separated from the others by a layer of gas. [Doc. 51, ¶ 44] Although high altitude windows are sealed against gross infiltration of external moisture, [Doc. 116-6 at 8] high altitude windows are not hermetically sealed like low altitude windows; instead, .0195? diameter [Doc. 104 at 12] stainless steel tubes known as “breather tubes” inserted in the frames of high altitude windows breach the hermetic seal and allow air to pass back and forth, thereby equalizing the pressure of the gas contained within the panes of glass with the ambient atmospheric pressure. [Doc. 51, ¶ 44] Because of these breather tubes, the glass in high altitude windows does not experience the deformation at higher altitudes associated with Lincoln's low altitude windows. [Doc. 51, ¶ 44] A major disadvantage of breather tubes is that they allow water vapor to diffuse into the spaces between the glass panes of high altitude windows, increasing, by comparison to low altitude windows, high altitude windows' susceptibility to fogging, and decreasing, by comparison to low altitude windows, high altitude windows' expected life. [Doc. 51, ¶ 48] A second disadvantage is that breather tubes preclude the use of argon gas, which must be contained by an air-tight seal. [Doc. 51, ¶¶ 47, 48] Once high altitude windows are installed, they appear identical to low altitude windows to a consumer. [Doc. 51, ¶¶ 45-46]

Porcell alleges that the information Lincoln provided in its sales literature did not clearly explain that (1) Lincoln manufactures both low altitude and high altitude windows and (2) customers in the western United States ordering windows would receive high altitude windows exhibiting inferior resistance to the infiltration of moisture and consequent fogging and decreased life. [Doc. 51, ¶ 50] Porcell also claims that he and other members of a subclass purchased Low-E windows in the belief that they were obtaining the superior insulation afforded by argon gas, when in fact, Lincoln's use of breather tubes in high altitude windows precluded the use of argon gas in its Low-E windows. [Doc. 51, ¶ 35] Porcell's complaint organizes his allegations into two counts: breach of express warranties under the law of each of nine states in which class members reside, and violation of the consumer protection statutes of Arizona, California, Colorado, Idaho, Oregon, Nevada, New Mexico, and Washington. [Doc. 51 at 19, 21]. His breach of express warranties claim may be further divided into (a) breach of the written Limited Warranty-Insulated Glass (“LWIG”) and (b) breach of “other” express warranties created by representations in Lincoln's sales literature.

Porcell seeks certification of the following class:

All persons, proprietorships, corporations, and other business and legal entities in Arizona, California, Colorado, Idaho, Oregon, Montana, Nevada, New Mexico, and Washington whose homes, condominiums, apartment complexes, commercial buildings, and/or other structures contain Lincoln windows and doors that were installed with breathing devices and were purchased in, or after 1992 ... [.]

This class includes a subclass consisting of

all persons, proprietorships, corporations, and other business and legal entities in Arizona, California, Colorado, Idaho, Oregon, Montana, Nevada, New Mexico, and Washington whose homes, condominiums, apartment complexes, commercial buildings, and/or other structures contain Low E Lincoln windows and doors that were installed with breathing devices and were purchased in 1992 through 2005.

[Doc. 104 at 8-9]

DISCUSSIONA. Standard of Review

A party seeking certification pursuant to Fed.R.Civ.P. 23 for a lawsuit to proceed as a class action must satisfy the four requirements of Rule 23(a), numerosity, commonality, typicality, and adequacy, as well as the requirements of at least one of the three categories of class actions described in Rule 23(b). Shook v. El Paso County, 386 F.3d 963, 968 (10th Cir.2004). “[T]he party seeking to certify a class bears the burden of proving that all the requirements of Rule 23 are met.” Id. The district court entertaining a Rule 23 motion to certify a class “must engage in its own ‘rigorous analysis' ” of whether the requirements of Rule 23 are satisfied. Id. (quoting Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). The district court must accept as true the substantive allegations of the complaint. Id.

B. Rule 23(a)

1. Numerosity Rule 23(a)(1) asks whether “the class is so numerous that joinder of all members is impracticable.”

There is no serious dispute that size of the class meets this requirement. [Doc. 111 at 48] (conceding that numerosity is met). Porcell has come forward with evidence that the class will contain around 9,000 members. [Doc. 104 at 16-17] A proposed class numbering in the thousands will almost certainly satisfy the requirement that joinder be impracticable. 1 Newberg on Class Actions 248 (4th ed.2002). Lincoln argues that despite the size of the proposed class numerosity is not met because “there is no way to feasibly identify all current owners of Lincoln products in the nine states at issue.” [Doc. 111 at 49] Lincoln's argument is not persuasive. “[T]he prevailing view is that the plaintiff need not allege the ... identity of class members. A contrary rule would foreclose class litigation because of the impossibility of identifying all class members at the outset....” Newberg on Class Actions at 233-41 The Court finds that the proposed class satisfies the numerosity requirement of Rule 23(a)(1).

2. Commonality Rule 23(a)(2) asks whether there are “questions of law or fact common to the class.” The breach of express warranty (LWIG) claim clearly presents common questions of law or fact: (1) whether the LWIG is susceptible to interpretation as a warranty against seal failure; (2) whether the warranty is breached by the delivery of high altitude windows incorporating breather tubes; and (3) whether the filing a previous law suit constituted adequate notice of other class member's claims, UCC § 2-607(3)(a).² The breach of “other” express warranties claim likewise presents common questions of law or fact: (1) whether statements in Lincoln's sales literature and on its website created express warranties, UCC § 2-313(1)(a)(b); (2) whether Lincoln's delivery of high altitude windows rather than low altitude windows constitutes a material breach of these “other” express warranties; and (3) whether the filing of a previous law suit constituted adequate notice of individual class member's claims, UCC § 2-607(3)(a). Porcell's consumer protection statute count likewise presents common questions of law or fact: (1) whether Lincoln made material misrepresentations in describing its high altitude windows to customers in the western United States and (2) whether Lincoln unlawfully failed to disclose the presence of breather tubes to class members. In view of these common questions of fact or law, the proposed class satisfies the commonality requirement of Rule 23(a)(...