United States District Court, D. Oregon, Portland Division
ROBERT TORCH, on behalf of himself and all others similarly situated, Plaintiff,
WINDSOR SURRY COMPANY, d/b/a WINDSORONE; WINDSOR WILLITS COMPANY, d/b/a WINDSOR MILL; and WINDSOR HOLDING COMPANY, Defendants.
OPINION AND ORDER
Aiken United States District Judge.
putative products liability class action, plaintiff Robert
Torch moves for leave to file an amended complaint.
Defendants Windsor Surry Company, Windsor Willits Company,
and Windsor Holding Company (together, "Windsor" or
"defendants") move for an order dismissing all of
the causes of action in the Complaint. In addition,
defendants move for an order striking all of the class
allegations and class claims for relief in the Complaint.
reasons set forth herein, plaintiffs motion to amend is
GRANTED and defendants' motion to dismiss and motion to
strike are DENIED as moot.
a products liability case involving allegedly defective wood
boards used for external trim on houses and other buildings.
Plaintiff and Putative Class Representative Robert Torch
alleges the WindsorONE trim board installed at his house
prematurely rotted and deteriorated, causing significant
damage to his home, On behalf of himself and a class of
similarly situated persons, plaintiff seeks damages and
12, 2017, plaintiff filed this action against defendants,
asserting seven claims for relief: (1) strict products
liability, (2) negligence, (3) breach of express warranty,
(4) breach of implied warranty of merchantability under Or.
Rev. Stat. § 72.3140, (5) breach of implied warranty of
fitness for particular purpose under Or. Rev. Stat. §
72.3150, (6) breach of manufacturer's implied warranty of
merchantability under Or. Rev. Stat. § 72.8020, and (7)
declaratory relief. Plaintiff seeks to bring this case as a
class action under Federal Rule of Civil Procedure 23. The
proposed class is: "All persons and entities in the
State of Oregon who own or owned homes, apartments, office
buildings, or other structures in which WindsorONE trim board
is or was installed on the exterior[.]" Compl. ¶
August 11, 2017, defendants filed a motion to dismiss and,
alternatively, a motion to strike the class allegations,
arguing plaintiffs claims are barred by the statutes of
limitations, implied warranties do not apply because of the
terms of the express warranty, and plaintiff did not rely on
any statements about WindsorONE trim board in deciding to
purchase his house.. Defendants also contend that plaintiffs
complaint is defective because the proposed class is
overbroad, includes putative members who lack standing, and
is insufficiently numerous and because Plaintiff Robert Torch
is an atypical and inadequate class representative.
Additionally, defendants aver that individual issues will
predominate and that individual actions would be a superior
method of adjudicating the controversy. On September 22,
2017, plaintiff filed a motion for leave to amend the
complaint. I will first address the motion to amend.
Federal Rule of Civil Procedure 15(a), "[f]he court
should freely give leave [to amend] when justice so
requires." Fed. R. Civ, P. 15(a)(2); see also Sonoma
Cty. Ass'n of RetiredEmps. v. Sonoma Cty., 708 F.3d
1109, 1117 (9th Cir. 2013) ("In general, a court should
liberally allow a party to amend its pleading."). The
Ninth Circuit has cautioned that a court "may decline to
grant leave to amend only if there is strong evidence of
'undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or]
futility of amendment, etc.'" Id.
(alteration in original) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)).
argue that amendment would be futile and that plaintiffs
motion for leave to amend should therefore be denied.
Plaintiffs proposed amendment adds a plaintiff, Jesus
"Jesse" Gomez. Defendants argue that plaintiffs
proposed amendment is futile because Gomez's claims are
barred by the applicable statutes of limitations. In
addition, defendants argue that plaintiffs have not alleged
any tolling of the statute of limitations. Finally,
defendants argue that the the proposed amendment is futile
because it adds a plaintiff, Gomez, who is not a typical or
adequate class representative.
alone is enough to deny a motion for leave to amend.
Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.
2004). However, a proposed amendment is futile only if
"no set of facts can be proved under the amendment to
the pleadings that would constitute a valid and sufficient
claim." Miller v. Rykoff-Sexton, Inc. t
U.S. F.2d 209, 214 (9th Cir. 1988). Additionally, a
proposed amendment is futile if it "either duplicative
of existing claims or patently frivolous, or both."
Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir. 1995).
The party opposing the amended complaint bears the burden of
showing futility, Nunes, 375 F.3d at 808, Plaintiff,
in the initial complaint and the proposed amended complaint,
asserts equitable estoppel. Plaintiff alleges that
"[d]ue to Defendants' fraudulent concealment of the
defects associated with its trim board, Defendants are
estopped from asserting statute of limitations defenses to
any of the claims alleged herein." Compl. ¶¶
149; Proposed Amend. Compl. ¶¶ 184. In addition,
plaintiff, in response to defendants' motion to dismiss,
asserts equitable tolling of the statute of limitations.
Plaintiff alleges that he "was a putative class member
in an action pending in the United States District Court for
the Northern District of California" which
"alleg[ed] essentially the same facts and claims as the
instant action." Pl's Mem. Opp. Defs.' Mot
Dismiss 10 (doc. 42). Plaintiff asserts that "'the
California action tolled the statute of limitations for Mr.
Torch and the putative class."
tolling and equitable estoppel are doctrines which may apply
to extend the limitations period or preclude a defendant from
asserting that defense. Lukovsky v. City & Cty. of
San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008).
Equitable estoppel, which is sometimes referred to as
"fraudulent concealment, " focuses primarily on
actions taken by the defendant to prevent a plaintiff from
filing suit. Id. Conversely, equitable tolling
focuses on "whether there was excusable delay by the
plaintiff: If a reasonable plaintiff would not have known of
the existence of a possible claim within the limitations
period, then equitable tolling will serve to extend the
statute of limitations for filing suit until the plaintiff
can gather what information he needs." Id.
(quoting Johnson v. Henderson, 314 F.3d 409, 414
(9th Cir. 2002)).
of whether the statute of limitations has actually been
tolled or whether defendants are equitably estopped from
asserting statute of limitations defenses is not appropriate
at this stage of the litigation, as I am simply looking to
whether there is a set of facts that, if proven, would
constitute a valid and sufficient claim. Given what is
alleged in plaintiffs proposed amended complaint, including
but not ...