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Pelino v. Ward Manufacturing, LLC

United States District Court, D. Maryland

July 27, 2015

CHAD PELINO et al., Plaintiffs,


RICHARD D. BENNETT, District Judge.

This class action suit arises out of the presence of allegedly dangerous "Wardflex®" piping in residential and commercial structures in the State of Maryland. Plaintiffs, Chad Pelino and Tina Pelino ("the "Pelinos"), on behalf of themselves and the alleged class, [1] (collectively, "Plaintiffs") filed a four-count Class Action Complaint (ECF No. 2) against Defendant Ward Manufacturing, LLC ("Defendant" or "Ward Manufacturing"), asserting strict liability pursuant to § 402A of the Restatement (Second) of Torts (Count I), negligence due to a design defect (Count II), negligence due to a failure to warn (Count III), and breach of implied warranty (Count IV). Their Complaint is essentially identical to two class action lawsuits previously dismissed by this Court.[2] Currently pending before this Court are Defendant Ward Manufacturing's Motion to Dismiss (ECF No. 16) and Plaintiffs' Motion for Leave to File a Supplemental Brief in Opposition to Defendant's Motion to Dismiss (ECF No. 25). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Plaintiffs' Motion to File a Supplemental Brief in Opposition is GRANTED, [3] and the Defendant's Motion to Dismiss is GRANTED.


In a ruling on a motion to dismiss, this Court accepts the facts alleged in the plaintiffs' complaint as true. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Ward Manufacturing is the manufacturer of Wardflex® corrugated stainless steel tubing ("CSST"), a type of ultrathin, flexible piping used to transport natural gas within residential and commercial structures. Compl. ¶¶ 1-2. CSST was originally created as an inexpensive, easy-to-install alternative to thicker, more cumbersome black iron pipe that predated CSST by a century. Id. ¶ 31. Because the material used in CSST is thinner than the black iron pipe, Plaintiffs allege that it is more susceptible to damage and leaking, especially when the surrounding structure is struck by lightning. Id. ¶ 3. In Plaintiffs' words, CSST is "susceptible to perforation by an electrical arc generated by an indirect lightning strike, which can cause fires, damage to and destruction of residential structures, and creates a substantial and unreasonable risk of death or personal injury." Id. ¶ 5.

The Pelinos originally had Wardflex® CSST installed in their home in Cecil County, Maryland. They allege that during a storm on August 13, 2013, they heard a series of popping noises and observed "multiple arcs of electricity"-essentially orange, blue and white beams of energy-emanating from the Wardflex® CSST piping running to their hot water heater. Id. ¶ 8. After the storm, plaintiffs smelled natural gas in the house and called their gas company. Id. A technician came to inspect the house and found that the Wardflex® CSST had been "perforated in two locations by electrical energy." Id. Plaintiffs then paid $11, 700 to replace all Wardflex® CSST in their home with black iron pipe. Id. ¶ 9. Plaintiffs, on behalf of themselves and the Class, argue that Wardflex® CSST "is defective, should never have been sold, and needs to be removed and replaced from all structures." Id. ¶ 18.

The present action follows two virtually identical class action lawsuits dismissed by this Court last year. In Hasley v. Ward Mfg., LLC, Civ. A. No. RDB-13-1607, 2014 WL 3368050 (D. Md. July 8, 2014), this Court dismissed with prejudice the plaintiffs' class action claims, concluding that Maryland's economic loss rule barred standing for both named and unnamed plaintiffs. Id. at 1. Next, in Roy v. Ward Mfg., LLC, Civ. A. No. RDB-13-3878, 2014 WL 4215614, at *1 (D. Md. Aug. 22, 2014), a different named plaintiff filed a complaint identical to that in Hasley, but with the addition of a second defendant-manufacturer of CSST.[4] Id. This Court denied the claims on the same grounds as Hasley. Id. The only distinction between Hasley and Roy and the subject action is that the Pelinos claim that they incurred an actual injury, and they add a breach of warranty claim. Compl. ¶ 131. Based on these claims, Plaintiffs argue that they, as well as all members of the class, have suffered damages.

Plaintiffs filed the subject suit on June 30, 2014 in the Circuit Court for Cecil County, Maryland. Ward Manufacturing then removed the case to this Court pursuant to 28 U.S.C. § 1332(d), also known as the Class Action Fairness Act ("CAFA").[5] Notice of Removal, ECF No. 1. Defendant subsequently filed the pending Motion to Dismiss (ECF No. 16) pursuant to Rule 23(d)(1)(D. the Federal Rules of Civil Procedure, seeking an order striking the class action certification; and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.


I. Rule 23 of the Federal Rules of Civil Procedure

Rule 23 of the Federal Rules of Civil Procedure allows one or more members of a class to sue on behalf of all members only if "there are questions of law or fact common to the class" and "representative parties are typical of the claims or defenses of the class..." Fed.R.Civ.P. 23(a)(2)-(3). The first prerequisite, commonality, "requires the plaintiff to demonstrate that the class members have suffered the same injury..." Ealy v. Pinkerton Gov't Servs., Inc., 514 F.Appx. 299, 304 (4th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2556 (2011)). Next, typicality demands a consideration of "the representative parties' ability to represent a class..." Ealy, 514 F.Appx. at 304 (quoting Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006)). A district court must conduct a rigorous analysis into whether the requirements of Rule 23(a) are met. Ealy, 514 F.Appx. at 308.

II. Rule 12(b)(6) of the Federal Rules of Civil Procedure

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

The Supreme Court's recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), "require that complaints in civil actions be alleged with greater specificity than previously was required." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated "[t]wo working principles" that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Id. (stating that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to plead a claim); see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) ("Although we are constrained to take the facts in the light most favorable to the plaintiff, we need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments." (internal quotation marks omitted)).

Second, a complaint must be dismissed if it does not allege "a plausible claim for relief." Iqbal, 556 U.S. at 679. Although a "plaintiff need not plead the evidentiary standard for proving" her claim, she may no longer rely on the mere possibility that she could later establish her claim. McCleary-Evans v. Maryland Department of Transportation, State Highway Administration, ___ F.3d ___, 2015 WL 1088931, *11-12 (4th Cir. 2015) (emphasis omitted) (discussing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) in light of Twombly and Iqbal ). Under the plausibility standard, a complaint must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. While the plausibility requirement does not impose a "probability requirement, " id. at 556, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see also Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) ("A complaint need not make a case against a defendant or forecast evidence sufficient to prove an element of the claim. It need only allege facts sufficient to state elements of the claim." (emphasis in original) (internal quotation marks and citation omitted)). In making this ...

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