Selim v. Fortay Roofing & Construction L L C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

NIAZY SELIM ET AL CASE NO. 2:23-CV-00524

VERSUS JUDGE JAMES D. CAIN, JR.

FORTAY ROOFING & CONSTRUCTION MAGISTRATE JUDGE KAY

LLC ET AL

MEMORANDUM RULING

Before the Court is Rule 12(b)(6) Motion to Dismiss (Doc. 11) filed by Defendant

CertainTeed LLC (“CertainTeed”). Plaintiffs Niazy Selim and Khedidja Beldjilali oppose

the motion. Doc. 17. Defendant has replied. Doc. 18.

I. BACKGROUND

This lawsuit arises from a contractual dispute over work performed by Fortay

Roofing & Construction, LLC (“Fortay”) on Plaintiffs’ residence located at 2223 W. Sale

Rd, Lake Charles, Louisiana, following damage caused by Hurricanes Laura and Delta.1

Plaintiffs allege that they were in need of post-hurricane repairs, and Fortay, by holding

itself out as very experienced, highly qualified in roofing, and associated with construction

work, induced Plaintiffs into a contract for repairs to their home.2 Plaintiffs allege that

Fortay claimed certification from the shingles manufacturer CertainTeed.3 Plaintiffs claim

that the November 9, 2020 contract between Plaintiffs and Fortay identified the details of

the work to be performed as follows: “remove and replace roof, remove all materials,

1 Doc. 1-1, p. 6,

2 Id. at 6–7.

3 Id. at 7.

synthetic felt, ice and water shield, same as on house currently (CertainTeed)” and payment

was stated only as “insurance proceeds,” without reduction for any deductibles.4 Plaintiffs

allege that IES Claim Services, LLC estimated the total cost to correctly perform and

complete the contract with Fortay as $174,945.55.5 Plaintiffs claim that payments were

made on February 1, 2021, in the amount of $87,086.78 for repair and roofing; and on

February 10, 2021, in the amounts of $8,7500.00 for ice and water shield, and $12,219.00

for copper pan in front of home.6 Plaintiffs claim that Fortay did not complete the work as

agreed to in the November 9, 2020 contract because of its failure to provide adequately

skilled labor, unsatisfactory workmanship, violations of ordinances and codes, and failure

to follow the detailed manual provided by CertainTeed to Fortay.7 Due to these alleged

acts of breach of contract, Plaintiffs estimate the cost to re-repair the unsatisfactory work

done to their home is $199,547.09 and to compensate for the interior damage caused by

the unsatisfactory work performed is $265,000.00, totaling $464,547.09.8 On February 16,

2023, Plaintiffs filed suit in the 14th Judicial District Court, Parish of Calcasieu, Louisiana,

against Defendants Fortay and CertainTeed for $500,000.00 in damages for breach of

contract, the petition’s first cause of action.9 In the petition’s second cause of action, the

Plaintiff allege causes of action against CertainTeed for breach of warranty and implied

legal duty created by the CertainTeed Shingle Applicator’s Manual that Fortay would

4 Id. at ¶¶11, 12.

5 Id. at 9, ¶19.

6 Id. at 8, ¶15.

7 Id.

8 Id. at ¶18.

9 Id. at 5–9.

correctly install its products and those products would not be defective.10 Moreover,

Plaintiffs’ petition states that when Fortay failed to perform, CertainTeed became “guilty

of ‘false advertising’” because CertainTeed guaranteed the performance of Fortay to

Plaintiffs.11 The third cause of action alleges that CertainTeed violated the Louisiana

Unfair Trade Practices and Consumer Protection Law (“LUTPA”), Louisiana Revised

Statutes sections 51:1401 et seq.12

II. LEGAL STANDARD

Rule 12(b)(6) allows for dismissal when a plaintiff “fail[s] to state a claim upon

which relief can be granted.” When reviewing such a motion, the court should focus on the

complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). The

Court can also consider documents attached to a motion to dismiss that are “referred to in

the plaintiff's complaint and are central to the plaintiff's claim” only if “the plaintiff[] d[oes]

not object to . . . consideration of those documents.” Scanlan v. Texas A&M Univ., 343

F.3d 533, 536 (5th Cir. 2003). Courts “may also consider matters of which [it] may take

judicial notice.” Hall v. Hodgkins, 305 Fed. App’x 224, 227 (5th Cir. 2008) (internal

citation omitted) (quoting Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017–18 (5th

Cir.1996) (unpublished opinion)).

Such motions are reviewed with the court “accepting all well-pleaded facts as true

and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club,

Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough facts

10 Id. at 11, ¶¶27, 28.

11 Id. at ¶¶29, 30.

12 Id. at 12.

‘to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches Litig.,

495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Accordingly, the court’s task is not to evaluate the plaintiff’s likelihood of success

but instead to determine whether the claim is both legally cognizable and plausible. Lone

Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

III. LAW & ANALYSIS

A. Plaintiffs’ “Second Cause of Action”

CertainTeed argues that Plaintiffs have failed to allege facts sufficient to establish

any contract, implied or express, existed between Plaintiffs and CertainTeed, whereby

CertainTeed offered to guarantee or warrant Fortay’s performance and Plaintiffs accepted

such offer. Plaintiffs counter arguing that CertainTeed’s Shingle Applicator’s Manual

creates a legally enforceable warranty on behalf of the manufacturer and its guaranteed

installer, Fortay, to Plaintiffs that Fortay would correctly install and perform and that the

products would not be defective.

In review of the Plaintiffs’ petition, it is unclear to the Court what Plaintiffs are

alleging as the legally recoverable theory against CertainTeed; that is, is it a breach of

contract between Plaintiffs and CertainTeed,13 a breach of warranty against redhibitory

defects under Louisiana Civil Code articles 2520–48,14 or a breach of express warranty

13 Louisiana Civil Code article 2529 provides: “When the thing the seller has delivered, though in itself free from

redhibitory defects, is not of the kind or quality specified in the contract or represented by the seller, the rights of the

buyer are governed by other rules of sale and conventional obligations.”

14 Louisiana Civil Code article 2520 provides: “The seller warrants the buyer against redhibitory defects, or vices, in

the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be

presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect

gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing

claim under the Louisiana Products Liability Act (“LPLA”), Louisiana Revised Statutes

sections 9:2800.51 et seq.15 First, the Court finds no sufficiently plead contract between

CertainTeed and Plaintiffs. Plaintiffs’ petition intimates that a contract between

CertainTeed and Plaintiffs came about from CertainTeed’s website and broadcasting

advertisements promoting the use of its roofing products. Louisiana Civil Code article 1927

provides:

A contract is formed by the consent of the parties established through offer

and acceptance. Unless the law prescribes a certain formality for the intended

contract, offer and acceptance may be made orally, in writing, or by action

or inaction that under the circumstances is clearly indicative of consent.

Unless otherwise specified in the offer, there need not be conformity between

the manner in which the offer is made and the manner in which the

acceptance is made.

“In Louisiana and elsewhere a newspaper advertisement may constitute an offer,

acceptance of which will consummate a contract and create an obligation in the offerer to

perform according to terms of the published offer.” Johnson v. Cap. City Ford Co., 85 So.

2d 75, 79 (La. Ct. App. 1st 1955). However, the advertisement must be “certain and definite

enough to constitute a legal offer.” Id. Here, Plaintiffs have plead that CertainTeed

encouraged use of its construction products, declared itself a “leading manufacturer,” used

a website to refer the general public to professionals in his or her area, and held itself out

totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought

it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.”

15 The LPLA “establishes the exclusive theories of liability for manufacturers for damage caused by their products.”

La. R.S. §2800.52 (2023); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir.1995); see also Touro

Infirmary v. Sizeler Architects, 947 So. 2d 740, 744. (La. Ct. App. 4th Cir. 2006) (“[T]he breach of express warranty

is encompassed by the LPLA and is no longer viable as an independent theory of recovery against a manufacturer.”);

Jefferson v. Lead Indus. Ass'n, Inc., 930 F. Supp. 241, 244–45 (E.D. La. 1996), aff'd, 106 F.3d 1245 (5th Cir. 1997)

(“A plaintiff may not recover from a manufacturer for damage caused by a product on the basis of any theory of

liability not set forth in the LPLA.”).

.

as being founded in 1904. These factual allegations are insufficient to permit a reasonable

inference that CertainTeed’s advertisements were certain and definite offers to Plaintiffs

by which their acceptance formed a contract.

If Plaintiffs are attempting to establish liability against CertainTeed for breach of

warranty against redhibitory defects, then the factual allegations must set out the cause of

action between the CertainTeed as the seller and Plaintiffs as the buyer. Here, the facts

plead are insufficient to establish that Plaintiffs purchased the products directly from

CertainTeed.

Without a contractual relationship between themselves as buyer and CertainTeed as

seller, the LPLA provides a source for claims against CertainTeed as the manufacturer. See

La. R.S. §2800.52 (2023). Under the LPLA, a claimant has the option to assert a claim

based on a manufacturing defect, a design defect, an inadequate warning, or nonconformity

to express warranty. Id. §§2800.55–58. Plaintiffs’ petition claims that CertainTeed’s

Shingle Applicator’s Manual warrantied CertainTeed’s products and Fortay’s performance

in installing the products (shingles).16 Also, Plaintiffs petition generally asserts that the

shingles are defective.17 In all, Plaintiffs claims under the LPLA are vague; thus, the Court

will give Plaintiffs leave to amend in order to clarify their claims.

B. LUTPA Claims

Claims under the LUTPA, Sections 51:1401 et seq., “shall be subject to a liberative

prescription of one year running from the time of the transaction or act which gave rise to

16 Doc. 1-1, p. 11, ¶28.

17 Id.

this right of action.” Plaintiff alleges that the contract giving rise to claims under the

LUTPA was signed on November 9, 2020. Plaintiffs’ estimate was performed on January

11, 2021. Plaintiffs’ invoices for alleged unsatisfactory performed work occurred on

February 1 and 10, 2021. Plaintiffs filed their petition in state court on February 16, 2023.

On the face of the petition, Plaintiffs’ LUTPA claims are time barred.

IV. CONCLUSION

For the reasons stated above, IT IS ORDRED that the Motion to Dismiss (Doc. 11)

will be GRANTED IN PART as to Plaintiffs’ claims under Louisiana Revised Statutes

sections 51:1404 et seg, which will be DISMISSED WITH PREJUDICE, and DENIED

IN PART as to other claims against CertainTeed in order to allow Plaintiffs the opportunity

to amend their complaint within fourteen (14) days of this order. Thereafter, CertainTeed

may reassert its motion to dismiss if warranted. Failure to amend will result in an automatic

dismissal of these remaining claims.

THUS DONE AND SIGNED in Chambers on this 29th day of June 2023.

HLL

JAMES D. CAIN, JR.

UNITED STATES DISTRICT JUDGE

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