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McGaffin v. Cementos Argos S.A.

United States District Court, S.D. Georgia, Savannah Division

August 30, 2019

BECKY MCGAFFIN; JIM MCGAFFIN; NATHAN LAVOIE; DANIEL NUNN; STEFANIE NUNN; and RACHALE LAVOIE, Plaintiffs,
v.
CEMENTOS ARGOS, S.A.; ARGOS USA CORP.; ARGOS CEMENT, LLC; and ARGOS READY MIX LLC, Defendants.

          ORDER

          R. STAN BAKER UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA

         This matter comes before the Court on Defendants' Motion to Strike Plaintiffs' Motion for Class Certification. (Doc. 84.) For the reasons outlined below and detailed in Defendants' pleadings, the Court GRANTS Defendants' Motion. While Plaintiffs' Motion for Class Certification will remain on the docket, Plaintiffs cannot broaden the scope of their proposed class to include claims regarding homes located outside the state of Georgia.[1]

         BACKGROUND

         The facts and procedural background of this case are laid out in detail in the parties' numerous pleadings, and the Court need not fully restate them in order to rule on Plaintiffs' Motion to Strike. Plaintiffs claim that the concrete that Defendants supplied to their residential properties contains a common defect inherent to the mixture of the concrete. (See generally doc. 23, pp. 7-19.) They contend that this common defect has caused a tremendous amount of concrete dust to infiltrate their homes. (Id.) Plaintiffs, all individuals who own homes within Georgia, filed this lawsuit on May 6, 2016. (Doc. 1.) They directly asserted numerous claims and proposed to assert the same claims on behalf of a class of similarly situated individuals defined as follows:

All persons who own a home in the State of Georgia, purchased during the period May 6, 2013 to and including May 6, 2016, where and when Argos designed and manufactured concrete not properly proportioned in that it contained insufficient cement and/or excessive fly ash and/or the wrong type of fly ash and when said concrete was used in foundations, footings, driveways, walkways, garages, patios, slabs and other areas of the person's house and property.

(Id. p. 19.) Plaintiffs amended their Complaint on July 21, 2016. (Doc. 23.) That amendment contained a slightly revised definition of the proposed class:

All persons who own a lot and a dwelling in the State of Georgia, purchased during the period May 6, 2013 to and including May 6, 2016, for which Argos supplied defective concrete not properly proportioned in that it contained insufficient cement and/or excessive fly ash and/or the wrong type of fly ash and when said concrete was used in slab applications for the person's dwelling and property.

(Id. at p. 32.)

         Defendants then moved to dismiss Plaintiffs' Amended Complaint for failure to state a claim. (Doc. 28.) The parties fully briefed that motion. (Docs. 28, 37, 41.) On January 13, 2017, the Court granted the Motion to Dismiss in part and denied the motion in part. (Doc. 44.) The parties' briefs on the Motion to Dismiss only relied on Georgia law, and the Court analyzed the sufficiency of Plaintiffs' claims only under Georgia law. Following the ruling on the Motion to Dismiss, the parties engaged in substantial discovery pursuant to the Court's Scheduling Orders. (See docs. 53, 65.)

         On January 29, 2018, Plaintiffs filed their Motion to Certify Class. (Doc. 66.) That motion contained the following definition of the proposed class:

All current owners of residential properties where Argos 30RAF868 concrete was used in flatwork applications, i.e., poured as slabs on grade, including the slab on which the home is built, driveways, walkways, patios, and/or garage floors, between April 10, 2013 and October 21, 2013.

(Id. at p. 1.) On February 28, 2018, Defendants filed the instant Motion to Strike Plaintiffs' Motion to Certify. (Doc. 84.) Defendants argued that Plaintiffs' Motion for Class Certification and supporting materials “made clear for the first time that [Plaintiffs] intend to broaden their class to include homeowners in South Carolina.” (Id. at p. 3.) They maintained that Plaintiffs should not be allowed to amend their Complaint through their Motion for Class Certification. (Id. at pp. 3-5.) Defendants further contended that they had litigated the Motion to Dismiss and engaged in discovery without notice that they would have to defend against South Carolina claims. (Id.)

         Plaintiffs filed a response in opposition to Defendants' Motion to Strike. (Doc. 98.) Plaintiffs argued that the pleadings and correspondence between the parties gave Defendants fair notice that the case would include claims regarding South Carolina properties. (Id. at pp. 3-6.) Plaintiffs contended that only through class discovery were they able to ascertain that Defendants' defective concrete was also supplied to a significant number of residences in South Carolina. (Id. at p. 6.) Plaintiffs further reasoned that the Federal Rules of Civil Procedure and precedent from the Eleventh Circuit Court of Appeals “reflect the inherent flexibility of class definitions.” (Doc. 98, p. 7.)

         Defendants filed a reply to Plaintiffs' Response. Defendants reiterated their argument that inserting claims arising under South Carolina law would deprive the parties and the Court of the “threshold” Rule 12(b)(6) assessment of these claims. (Doc. 104, pp. 4-5.) Defendants also highlighted variations between Georgia law and South Carolina law applicable to Plaintiffs' claims. (Id. at pp. 4-8.) Defendants further contended that because the named Plaintiffs are all residents of Georgia, they cannot represent South Carolina homeowners; that Plaintiffs may ...


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