SACRAMENTO –– The U.S. District Court of Eastern California denied a building company’s request to throw out a class action lawsuit over defective fiberglass roofing shingles.
In the June 29 order, Judge Troy L. Nunley agreed with homeowners that Missouri-based TAMKO Building Products Inc. waived their jurisdiction defense by not filing it in their pending motion.
Martin and Beth Melnick, Jeffrey Snyder, Lia Louthan and Summerfield Gardens Condominium filed the complaint, proposing a class action for anyone who owns or has owned “structures on which fiberglass roofing shingles, sold under the name 'Heritage' and manufactured by Defendant, are or have been installed.”
The complaint claims TAMKO has installed the fiberglass shingles throughout California, Ohio, Illinois and Connecticut. The homeowners allege TAMKO’s website “represented its shingles as durable, reliable and free from defects but the shingles are poorly designed and/or manufactured and end up leaking."
TAMKO moved to dismiss for lack of personal jurisdiction because the homeowners do not live in California. But TAMKO did not assert this argument in their pending motion to dismiss, the homeowners' attorneys argued, and thus waived their right to this defense.
TAMKO said the personal jurisdiction defense was unavailable at the time of filing, arguing that California appellate courts’ interpretation of California’s long-arm statute made it “unclear whether [defendant] could mount a viable challenge to personal jurisdiction.”
Nunley, the judge, disagreed.
“Defendant could have asserted the defense in this court at the time defendant filed," Nunley wrote in the order. "Defendant could have preserved the defense in its responsive pleading or initial motions and alerted the court to the pending decision in Bristol-Myers. Defendant did neither and waived the defense.”
The United States District Court for the Eastern District of California, Case Number 1:15-cv-01892-TLN-KJN