West Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc.

287 F. App'x 81
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 24, 2008
Docket07-13421
StatusUnpublished
Cited by71 cases

This text of 287 F. App'x 81 (West Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App'x 81 (11th Cir. 2008).

Opinion

PER CURIAM:

Plaintiff West Coast Roofing & Waterproofing, Inc. (“West Coast Roofing”) filed a ten count class action complaint against defendants Johns Manville, Inc. (“Johns Manville”), Bridgestone Americas Holdings, Inc., d/b/a Firestone Tire & Rubber Company (“Firestone”), and GAF Materials Corporation (“GAF”), alleging several fraud-related causes of action, violations of state building codes, and conspiracy. The District Court dismissed the eight counts it characterized as “fraud-based claims” for failure to state a claim under Fed. R.Civ.P. 9(b), including a RICO claim that was the sole federal claim asserted. The Court ruled that the complaint stated a claim against all three defendants for violations of Florida’s Building Code and conspiracy to violate Florida’s Building Code, but it declined to exercise further supplemental jurisdiction over those counts.

*84 I. Background

Plaintiff West Coast Roofing is a roofing contractor that purchases and installs “built-up bituminous roofing systems” for commercial and other construction projects. These roofing systems incorporate “tapered perlite,” a rigid board insulation. Defendants Firestone and GAF manufacture and sell bituminous roofing systems and system components to contractors such as plaintiff. Their roofing systems incorporate tapered perlite material, including tapered perlite procured from defendant Johns Manville. Plaintiff avers that it has purchased bituminous roofing systems from defendants since the 1980s.

Plaintiffs roofing systems must meet state and local building code regulations. Those regulations require that plaintiffs roofs are able to withstand minimum levels of “wind uplift pressures” so that the roofs do not fail in hurricanes or other windstorms. Plaintiff is required to certify that the roofs it installs satisfy the code’s requirements. Plaintiff avers that, in so doing, it must rely on representations of the designers, manufacturers and suppliers of the roofing systems, including defendants. Plaintiff further alleges that it purchased roofing systems from defendants Firestone and GAF in reliance upon representations made by those companies regarding the wind uplift capacities of their roofs.

In 2005, plaintiff purchased from Firestone and installed a built-up bituminous roofing system, which included tapered perlite insulation sold by Johns Manville, for a construction project called the Riva Del Lago (“Riva”) project in Fort Myers, Florida. Plaintiff avers that its client, the owner of the building, subsequently conducted independent testing of the Riva roofs uplift capacity to determine whether it complied with the Florida Building Code, and the roof failed the wind uplift test by “huge margins, because the tapered perlite insulation literally tore apart, causing the roof system to separate from the building.” Second Amended Complaint at 13 1130. Plaintiff avers that it was required “by its contractual commitments to the owner and contractor and the building code, to install concrete pavers over the built-up roofing system to remediate the problem, at a cost in excess of $260,000.” Second Amended Complaint at 15 H 35.

Plaintiff further alleges that the Riva project was not an isolated incident; plaintiff alleges that defendants have made “continuous fraudulent representations” regarding the wind uplift capacities of their roofing systems for more than a decade, and that “[t]he built-up roofing systems sold and recommended by Defendants Firestone and GAF do not meet their stated uplift capacities because the tapered perlite manufactured and sold by Johns Manville fails, tearing apart at a fraction of the capacity represented by Johns Manville and well below building code requirements.” Second Amended Complaint at 12 1128. Plaintiff avers that “[flurther investigation revealed that Defendants knew or should have known that all of their perlite roofing systems cannot withstand applicable wind uplift requirements .... ” Second Amended Complaint at 13 ¶ 31.

II. Proceedings

Plaintiff voluntarily amended its initial pleading in a First Amended Complaint, and each of the defendants moved to dismiss. The District Court granted in part and denied in part all three motions. The Court characterized several of plaintiffs claims as “fraud-based claims” and granted defendants’ motions to dismiss them, without prejudice, finding that the complaint failed to plead fraud with adequate *85 particularity under Fed.R.Civ.P. 9(b). The Court, however, found that under Fed. R.Civ.P. 8(a)’s notice pleading standard, the complaint stated a claim for violations of the Florida Building Code and conspiracy to violate the Florida Building Code.

Plaintiff next filed a ten count Second Amended Complaint (“Complaint”). 1 Plaintiff attached to this pleading seven exhibits, totaling roughly 245 pages, which plaintiff alleged are “examples” of defendants’ misrepresentations regarding the wind uplift capacities of their roofing systems. 2

Each of the three named defendants again moved to dismiss, and the District Court again granted the motions in part and denied them in part. The Court found Fed.R.Civ.P. 9(b) applicable to eight of the claims (counts 1-5, 7-8 and 10) and analyzed those jointly to determine whether the allegations satisfied Rule 9’s particularity requirement. The Court dismissed those claims, this time with prejudice, on the grounds that plaintiff again failed to plead fraud with particularity. The Court also dismissed the conspiracy claim, Count 9, insofar as it was predicated on those counts. While reiterating its view that the allegations regarding the Florida Building Code and conspiracy to violate that Code stated a claim, the Court dismissed those claims without prejudice. It found that the Second Amended Complaint had failed to satisfy the requirements for diversity jurisdiction, and that further exercise of supplemental jurisdiction was inappropriate because it had dismissed the RICO claim in Count 10, the only claim over which it had federal question jurisdiction. The Court entered final judgment, and these appeals followed. 3

III. Analysis

In its appeal, plaintiff West Coast Roofing argues (1) that the District Court erred when it ruled that the Second Amended Complaint failed to plead fraud with particularity; that (2) the District Court abused its discretion by dismissing the fraud-based claims with prejudice; and that (3) the District Court erred when it concluded that plaintiff had failed to establish the requirements for diversity jurisdiction.

Defendants GAF and Johns Manville cross-appealed the District Court’s denial of their motion to dismiss with prejudice plaintiffs claims for violations of the Florida Building Code and conspiracy to violate the Building Code. Firestone has not cross-appealed.

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Bluebook (online)
287 F. App'x 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-coast-roofing-waterproofing-inc-v-johns-manville-inc-ca11-2008.