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Nieberding v. Barrette Outdoor Living, Inc.

United States District Court, D. Kansas

April 14, 2015

JONATHAN NIEBERDING and FREDERICK ALOYSIUS NIEBERDING, Plaintiffs,
v.
BARRETTE OUTDOOR LIVING, INC. and HOME DEPOT USA, INC., Defendants.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

This matter comes before the Court on class representative Frederick Aloysius Nieberding's unopposed motion for (1) certification of settlement class, (2) preliminary approval of class action settlement, and (3) approval of form and manner of notice (Doc. 181). For the following reasons, the Court grants plaintiff's request to certify a settlement class and to approve the proposed settlement preliminarily. But the Court denies plaintiff's request to approve the form and manner of the proposed notice to class members.

I. Background

Defendant Barrette Outdoor Living, Inc. designs prefabricated vinyl guardrail kits for use on residential decks and porches. The kits at issue in this case include small brackets made out of PVC, which connect the horizontal rails at the top and bottom of the vinyl guardrails to the structure on which the railing is installed. The top bracket is shaped like a bread loaf, and the bottom bracket is rectangular. The operative Complaint alleges that the top, bread loaf-shaped bracket (the "Bracket") is defective because it is not sufficiently robust to withstand its reasonably anticipated use.

Defendant Home Depot sells the Brackets both by themselves and also as part of a guardrail kit. Plaintiff Frederick Nieberding purchased a guardrail kit from Home Depot in 2011. He installed it on a second-story deck at his home using the Brackets included with the kit. Plaintiff alleges that on June 9, 2011, his son Jonathan Nieberding fell into the railing and that one or both of the Brackets broke, causing Jonathan to fall two stories and suffer injuries.

Jonathan Nieberding asserts claims for injuries he suffered in the fall, but he has informed the Court that the parties have settled his claims. See Doc. 182 at 6 n.3. Frederick Nieberding, who purchased the guardrail kit that allegedly caused his son's injuries, brings class action claims on behalf of himself and others. This Memorandum and Order concerns only the class claims, so the Court will refer to Frederick Nieberding as "plaintiff." Plaintiff asserts class claims for breach of warranty, violations of the Kansas Consumer Protection Act, and unjust enrichment.

On July 3, 2013, plaintiff filed a motion for class certification (Doc. 130). The Court granted in part and denied in part plaintiff's motion on September 8, 2014 (Doc. 157). Specifically, the Court declined to certify a damages class but approved the following liability-only class under Fed.R.Civ.P. 23(b)(3):

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).

Doc. 157 at 6.

On September 23, 2014, both defendants filed Rule 23(f) petitions for permission to appeal the Court's certification order (Docs. 159, 160). The Tenth Circuit granted both petitions on October 10, 2014 (Doc. 167). On November 10, 2014, Judge James entered a stay of this case pending the appeals (Doc. 180). After the stay took effect, nothing more happened at the district court level until March 25, 2015, when plaintiff filed this motion. On April 1, 2015, the Tenth Circuit issued an order abating defendants' appeals and directing "a limited remand to the United States District Court for the District of Kansas to allow that court to conduct any and all appropriate proceedings necessary to consider the parties' proposed settlement." Doc. 183 at 2. Neither defendant has filed their initial brief on appeal.

Plaintiff's unopposed motion requests three forms of relief: (1) certification of the settlement class; (2) preliminary approval of the class action settlement; and (3) approval of the form and manner of notice. The Court addresses each request in turn.

II. Certification of the Settlement Class

A. The Proposed Settlement Class

Although the Court has certified a class in this case already, the parties now seek certification of a slightly different class for purposes of settlement:

All individual persons, corporations, partnerships, associations and other entities who, during the period from June 5, 2008 to April 14, 2015, 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 breadloaf style 1291 (white) and/or 1292 (wicker) upper guardrail brackets, including, but not limited to, the following guardrail products:
1. 355602 67.75" TRADITIONAL VINYL RAIL WHITE
2. 515890 4PC VINYL HANDRAIL BRACKET KIT
3. 541400 WILLIAMSBURG PREBUILT HANDRAIL
Excluded from the Settlement Class are those persons who have lawsuits pending against, or who have settled their claims against, any one or more of the Settling Defendants for the same or similar claims as set forth herein, members of the Kansas state judiciary, Settling Defendants, Settling Defendants' employees, any entities in which either Settling Defendants have a controlling interest, and the parents, subsidiaries, affiliates, and their officers and directors of Settling Defendants and the members of their immediate families.

Doc. 182 at 20.

The proposed Settlement Class differs only marginally from the class the Court certified earlier. First, it extends the class period to include purchasers who bought Brackets up to the date of this order. Second, it identifies specifically the three products containing the Brackets. Third, it now includes those purchasers who ...


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