JONATHAN NIEBERDING and FREDERICK ALOYSIUS NIEBERDING, Plaintiffs,
BARRETTE OUTDOOR LIVING, INC. and HOME DEPOT USA, INC., Defendants.
MEMORANDUM AND ORDER
Daniel D. Crabtree United States District Judge
Plaintiff Frederick Aloysius Nieberding filed this motion for class certification (Doc. 130), seeking to represent a class of purchasers of outdoor railing products designed and sold by defendants Barrette Outdoor Living, Inc. and Home Depot USA, Inc. Plaintiff alleges that the railing products included defective plastic brackets which harmed all members of the proposed class by causing them to pay more for the products than they were worth. For the reasons explained below, the Court grants plaintiff’s motion in part and denies it in part.
I. Factual Background
Defendant Barrette designs prefabricated vinyl guardrails for outdoor use, and Home Depot sells the Barrette railing products to consumers. The railing is sold in sections of varying lengths and consists of a series of vertical balusters or bars held in place by horizontal rails at the top and bottom. Each railing product typically includes small brackets made out of PVC that are used to connect the horizontal rails at the top and bottom of the product to the structure on which the railing is installed. For the railing products at issue here, the top bracket is shaped like a bread loaf and the bottom bracket is shaped like a rectangle.
This lawsuit was triggered by an injury to plaintiff Jonathan Nieberding. Jonathan, the son of plaintiff Frederick Nieberding, seeks to recover on certain claims in plaintiffs’ Third Amended Complaint, but not on those claims on which plaintiff Frederick Nieberding seeks class certification. For purposes of this motion, the Court will refer to Frederick Nieberding as “plaintiff” and Jonathan Nieberding as “Jonathan.” Plaintiff purchased the Barrette railing product at Home Depot and installed it, using the allegedly defective brackets, on a second-story deck at his home. According to plaintiff and Jonathan, on June 9, 2011, Jonathan fell into the railing and the railing broke, causing Jonathan to fall two stories to the ground and suffer an injury. Jonathan alleges that the top, bread loaf-shaped bracket broke, which caused his injury.
On behalf of the putative class, plaintiff asserts that the top, bread loaf-shaped bracket that connects the railing to a permanent structure is inherently defective in a way that is common to all class members. Specifically, plaintiff alleges that (1) the PVC used to create the bracket is defectively brittle; (2) the dimensions and shape of the bracket are inadequate to withstand reasonably anticipated forces; and (3) the screws used to secure the bracket to the railing and the structure to which the railing is connected are inadequate to withstand reasonably anticipated forces. Plaintiff seeks to recover damages based on the difference between the railing products as warranted and their value with the defective brackets.
II. Legal Standard
The class action is an exception to the usual rule that litigation is conducted by and on behalf of individual named parties only. Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011). When making class certification decisions, the Court has considerable discretion. Tabor v. Hilti, Inc., 703 F.3d 1206, 1227 (10th Cir. 2013) (because class certification involves “intensely practical considerations, ” decision lies within discretion of trial court); see also Bateman v. Am. Multi–Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010) (district courts in best position to consider most fair and efficient procedure for litigation); Johns v. Bayer Corp., 280 F.R.D. 551, 555 (S.D. Cal. 2012) (quoting Ballard v. Equifax Check Serv., Inc., 186 F.R.D. 589, 600 (E.D. Cal. 1999)) (class action certifications to promote compliance with consumer protection laws “desirable and should be encouraged”). A district court must conduct, however, a “rigorous analysis” to determine whether the putative class satisfies the requirements of Rule 23. Comcast v. Behrend, 133 S.Ct. 1426, 1432 (2013); Dukes, 131 S.Ct. at 2551. The elements of class certification are (1) numerosity, (2) commonality, (3) typicality, and (4) adequate representation, plus one of the requirements of Rule 23(b)(1) through (3). Fed.R.Civ.P. 23.
Plaintiff seeks certification under Rule 23(b)(3). Rule 23(b)(3) requires plaintiff to show that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”
Rule 23 does not set forth a mere pleading standard. Comcast, 133 S.Ct. at 1432 (quoting Dukes, 131 S.Ct. at 2551). As the party requesting class certification, plaintiff bears the burden of “affirmatively demonstrat[ing]” compliance with these requirements. Id. (quoting Dukes, 131 S.Ct. at 2551). Plaintiff “must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 131 S.Ct. at 2551. In determining whether plaintiff has met his burden, the Court “must accept the substantive allegations of the complaint as true, ” but it does not “blindly rely on conclusory allegations which parrot Rule 23.” Shook v. El Paso Cnty., 386 F.3d 963, 968 (10th Cir. 2004) (quoting J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999)). The Court is not limited to the pleadings but may “probe behind the pleadings” and examine the facts and evidence in the case. Tabor, 703 F.3d at 1227-28 (quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982)); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (rigorous analysis requires judgments about the persuasiveness of evidence). Actual, not presumed, conformance with Rule 23(a) is required. Dukes, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 160).
This “rigorous analysis” will “[f]requently . . . entail some overlap with the merits of the plaintiff’s underlying claim.” Id. But the Court should not conduct a mini-trial to determine if the class could actually prevail on the merits of their claims. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1194-95, 1201 (2013); Dukes, 131 S.Ct. at 2552 n.6.
A. Preliminary Matters
Plaintiff seeks certification of three claims in his Third Amended Complaint. Specifically, plaintiff alleges that defendants (1) breached the implied warranty of merchantability under K.S.A. § 84-2-314; (2) willfully omitted a material fact about the railing products in violation of the Kansas Consumer Protection Act (“KCPA”) under K.S.A. § 50-626; and (3) committed unconscionable acts in violation of the KCPA under K.S.A. § 50-627. Plaintiff alleges that all putative class members have suffered the same injury—economic damages resulting from the difference between the railing products as warranted and their value in light of the allegedly defective brackets.
Defendants have filed separate motions for summary judgment (Docs. 145, 148) against all three of plaintiff’s class claims. Plaintiff argues that these motions are premature, because the parties agreed to conduct discovery only on issues related to class certification, leaving discovery on the merits until after the Court rules on certification. Plaintiff argues that he cannot adequately respond to defendants’ motions until after full discovery and requests that defendants’ motions be “summarily denied.” (Doc. 147 at viii) Fed.R.Civ.P. 56(b) provides that “[u]nless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” Thus, defendants’ motions are not “premature” such that dismissal is automatically warranted. However, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery . . . .” Fed.R.Civ.P. 56(d).
The Court wishes to make clear that it has yet to decide whether plaintiff has “specified reasons” why he cannot present facts essential to justify his opposition to defendants’ motions; nor has it concluded whether defendants are entitled to summary judgment on plaintiff’s class claims. The parties should recognize that this Order does not address the pending motions for summary judgment.
With his Reply to Home Depot’s Opposition to Motion for Class Certification (Doc. 137), plaintiff attached, for the first time, an affidavit from his expert, James Stoffer. Defendants filed separate motions to strike the Stoffer affidavit or, in the alternative, motions for leave to file a surreply (Docs. 138, 141). Defendants argue that the affidavit is improper because it was presented for the first time in plaintiff’s reply and because plaintiff did not identify Stoffer in his initial disclosures or in response to discovery requests asking plaintiff to identify his experts.
The Court finds the requested relief unnecessary. In the affidavit, Stoffer states that he believes the plastic brackets at issue are defective. As explained below, whether the brackets are defective is a strictly merits-based inquiry that is not relevant to the class certification analysis.
As a result, the Court disregards the Stoffer affidavit in ruling on plaintiff’s motion. The Court denies defendants’ motions (Docs. 138, 141) as moot, without prejudice to defendants’ ability to reassert a similar challenge during the merits phase of this case.
B. Class Definition
Plaintiff proposes the following class definition:
All individual persons, corporations, partnerships, associations and other entities who, during the period from June 5, 2008, to the present, purchased in the State of Kansas directly from Home Depot, U.S.A., Inc., one or more guardrail products supplied by Barrette Outdoor Living, Inc., that included the plastic brackets (defined below). The plastic brackets are the breadloaf style 1291 (white) and 1292 (wicker) upper guardrail brackets pictured below.
Excluded from the Class are those persons who have lawsuits pending against, or who have settled their claims against, any one or more of the defendants for the same or similar claims as set forth herein, members of the Kansas state judiciary, Defendants, Defendants’ employees, any entities in which either Defendants have a controlling interest, and the parents, subsidiaries, affiliates, and their officers and directors of Defendants and the members of their immediate families. Also excluded from the class are those individual persons, corporations, partnerships, associations and other entities who, after purchasing one or more products that included the plastic brackets, subsequently sold or otherwise relinquished possession of the product(s).
Defining the class is critically important because it identifies who is (1) entitled to relief, (2) bound by a final judgment, and (3) entitled under Rule 23(c)(2) to the best notice practicable in an action certified under Rule 23(b)(3). Bennett v. Sprint Nextel Corp., 298 F.R.D. 498, 504 (D. Kan. 2014). Therefore, the definition must be precise, objective, and presently ascertainable. Id. That is, one must be able to apply the class definition to determine who is and who is not a member of the class.
Some circuit courts (although not the Tenth Circuit) have required courts to find that the proposed class can be “ascertained in an economical and administratively feasible manner.” Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d. Cir. 2013). This means that “a trial court should ensure that class members can be identified without extensive and individualized fact-finding or mini-trials, a determination which must be made at the class certification stage.” Id. (internal quotations omitted).
In this case, defendants argue that the class is not ascertainable because “there is no way to identify the in-store purchasers of the Railing System based on Home Depot’s business records.” (Doc. 135 at 24) Defendants claim that because Home Depot does not keep records of the identities of customers who bought products with the defective brackets, “[o]n that basis alone, the Court should deny class certification.” (Doc. 135 at 24)
Essentially, then, defendants argue that a retailer who sells defective products could immunize itself from class certification by merely choosing not to keep records of the people who bought the defective product.
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.
Myriam Gilles, Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions, 59 DePaul L. Rev. 305, 305 (2010). In a consumer class action where the potential recovery for each class member is relatively small, a class action is the only realistic option for recovery. Because sellers of the products like the brackets here are unlikely to keep perfect records of every individual who purchased the product in question, alternative methods to identify class members must be permitted.
Here, plaintiff proposes a feasible way to determine class membership: “simply requiring that all class members complete a claim form with proof of purchase (i.e., receipt, photos, etc.), which is required by Barrette’s Warranty program and is almost universally done in class action cases.” (Doc. 137 at 17). The Court finds that plaintiff’s proposed method of ascertaining the class is reasonable; it will not require the individualized mini-trials that defendants claim. The putative class includes only those purchasers who still possess products that include the allegedly defective brackets. Determining whether each potential claimant still possesses the brackets would be a relatively simple procedure.
For similar reasons, the Court rejects Home Depot’s second argument that the class is not ascertainable. Plaintiff asserts claims for breach of the implied warranty of merchantability and for violations of the KCPA. The class definition includes “individual persons” but also “corporations, partnerships, associations, and other entities . . . .” While any entity can sue for breach of the implied warranty, only “consumers” may recover under the KCPA. See K.S.A. § 50-624(b). KCPA “consumers” do not include “corporations, partnerships, associations, and other entities.” Id. Because determining which class members are consumers who may recover for KCPA violations potentially requires individualized fact finding, Home Depot argues that the class is not ascertainable. However, like the fact finding required to determine whether each putative class member still possesses one of the subject products, determining whether the purchaser was an individual or business entity also would be a relatively simple endeavor.
As a result, the Court finds that the class definition is sufficiently ascertainable. The Court also finds that the class definition is precise and objective. Thus, the Court next proceeds to evaluate whether a class action is proper under the Rule 23 requirements.
C. Rule 23(a) Requirements
The party requesting class certification must demonstrate that:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims and defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative party will fairly and adequately protect the ...