United States District Court, N.D. Georgia, Atlanta Division
IN RE ATLAS ROOFING CORPORATION CHALET SHINGLE PRODUCTS LIABILITY LITIGATION.
ATLAS ROOFING CORPORATION, Defendant. PENNY SEABERG on behalf of herself and all others similarly situated, Plaintiff, No. 1:13-md-2495-TWT Civil Action No. 1:14-CV-3179-TWT
OPINION AND ORDER
THOMAS W. THRASH, Jr., District Judge.
This is a multi-district action arising out of the marketing and sale of allegedly defective roofing shingles. It is before the Court on the Defendant Atlas Roofing Corporation's Motion to Dismiss [Doc. 173] Count III, Count IV, Count V, Count VI, Count VII, and Count VIII of the Plaintiff Penny Seaberg's Complaint. For the reasons set forth below, the Defendant Atlas Roofing Corporation's Motion to Dismiss [Doc. 173] is GRANTED in part and DENIED in part.
The Plaintiff Penny Seaberg is a purchaser of the Atlas Chalet Shingles ("Shingles"), which are designed, manufactured, and sold by the Defendant Atlas Roofing Corporation ("Atlas"). Atlas represented and continues to represent - in marketing material and on the Shingles packaging - that the Shingles meet applicable building codes and industry standards. Atlas also provides a limited thirty-year warranty against manufacturing defects.
The Plaintiff claims that the Shingles are defective due to a flaw in the manufacturing process. This process - which allegedly does not conform to applicable building codes and industry standards - "permits moisture to intrude into the Shingle which creates a gas bubble that expands when the Shingles are exposed to the sun resulting in cracking and blistering of the Shingles." The Plaintiff filed suit in the U.S. District Court for the Southern District of Florida,  asserting claims for: violation of the Florida Deceptive and Unfair Trade Practices Act (Count I), breach of express warranty (Count II), strict products liability (Count III), negligent design (Count IV), fraudulent concealment (Count V), negligent misrepresentation (Count VI), and unjust enrichment (Count VII). The Plaintiff seeks damages, litigation expenses, and equitable relief. The Defendant moves to dismiss Counts III, IV, V, VI, VII, and the Plaintiff's request for equitable relief.
II. Legal Standard A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief. A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely "remote and unlikely." In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Generally, notice pleading is all that is required for a valid complaint. Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests.
A. Injunctive and Declaratory Relief
The Plaintiff requests that the Court issue an injunction mandating that the Defendant:
1. "[N]otify owners of the defect, "
2. "[R]eassess all prior warranty claims and pay the full costs of repairs, " and
3. "[P]ay the costs of inspection to determine whether any Class member's Shingles needs replacement."
The Plaintiff also requests that the Court issue a ...