United States District Court, M.D. Florida, Orlando Division
SHAUN PARKER GAZZARA, ANA PAULA GAZZARA, HARRY JAMES WHITMAN and MARCIA FAYE WHITMAN, Plaintiffs,
PULTE HOME CORPORATION, Defendant.
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
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 (“Pulte”), and the reply (Doc.
168) filed by the Plaintiffs.
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.
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).
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).
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).
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
(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.
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
(A) the class members' interests in
individually controlling the prosecution or defense of
(B) the extent and nature of any litigation
concerning the controversy already begun by or against class
(C) the desirability or undesirability of
concentrating the litigation of the claims in the particular
(D) the likely difficulties in managing a