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Gazzara v. Pulte Home Corp.

United States District Court, M.D. Florida, Orlando Division

April 11, 2017

SHAUN PARKER GAZZARA, ANA PAULA GAZZARA, HARRY JAMES WHITMAN and MARCIA FAYE WHITMAN, Plaintiffs,
v.
PULTE HOME CORPORATION, Defendant.

          ORDER

          GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.

          This matter comes before the Court after a February 28, 2017 hearing on the Motion to Certify Class (Doc. 143) filed by the Plaintiffs, as well as the response in opposition (Doc. 161) filed by the Defendant, Pulte Home Corporation[1] (“Pulte”), and the reply (Doc. 168) filed by the Plaintiffs.

         According to the allegations of the Second Amended Complaint (Doc. 107) (henceforth, “SAC”), the named plaintiffs in this case are two couples who own homes in Orange County, Florida, built by Pulte. The Plaintiffs contend that their homes, and thousands of others built by Pulte in the past ten years, had the stucco siding applied improperly, leading to cracking. By way of the instant motion, the Plaintiffs seek to certify a class of similarly situated homeowners.

         I. Background

         The Plaintiffs filed this case on April 18, 2016. In their first amended complaint (Doc. 11), which was filed eleven days later, the Plaintiffs asserted claims for negligence, intentional construction of defective siding, and violations of a statute - Florida Statute § 553.84 - which provides a cause of action for anyone damaged due to violations of the Florida Building Code (henceforth, the “Code”). On September 8, 2016, the Court granted Pulte's motion to dismiss that pleading. (Doc. 97).

         The Second Amended Complaint (Doc. 107) was filed on September 23, 2016. In it, the Plaintiffs purported to raise two claims under Section 553.84: one for violations of the Code, and one for intentional violations of the Code. The claim for intentional violations was subsequently dismissed with prejudice. (Doc. 160 at 7).

         On November 21, 2016, the Plaintiffs filed the instant motion. In December 2016, Pulte moved to exclude the testimony of Jeffrey Randazzo, a contractor who had provided the Plaintiffs with a “firm price commitment” to replace all of the affected stucco in the class members' homes. (Doc. 166). Pulte also moved to exclude the testimony of Thomas Miller, the Plaintiffs' stucco expert. (Doc. 167). The Court subsequently granted both motions, leaving the Plaintiffs without any expert testimony in support of their allegations. (Doc. 202, 207).[2]

         II. Legal Standards

         A. Class Actions

         Class actions are governed by Federal Rule of Civil Procedure 23. Rule 23 provides, in pertinent part, that one or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(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 or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a).

The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. To come within the exception, a party seeking to maintain a class action must affirmatively demonstrate his compliance with Rule 23. The Rule does not set forth a mere pleading standard. Rather, a party must not only be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a). The party must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).

Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (internal citations and quotations omitted). In the instant case, the Plaintiffs seek to proceed pursuant to Rule 23(b)(3), which applies if

the court finds that the 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. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class ...

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