Lisk v. Lumber One Wood Preserving, LLC
993 F. Supp. 2d 1376
N.D. Ala.2014Background
- Lisk, a Tennessee resident, sues Lumber One for breach of express warranty and ADTPA violations on behalf of a class; action concerns lumber Lumber One supplied via Capitol Wholesale and installed by Clean Cut Fence Co.
- Contract in July 2010 for 3,248.16 to install a fence using 300 feet of MCA pressure-treated lumber; all materials warranted through their manufacturers.
- Lumber One’s site and labeling stated MCA treatment licensed by Osmose; Osmose claims MCA-treated lumber resists rot for 15–30 years.
- Capitol Wholesale purchased Lumber One’s treated lumber and sold it to Clean Cut, who installed it at Lisk’s property.
- Three years after installation, fence posts were rotten; electrician and Clean Cut confirmed defects and noted Lumber One would not take responsibility.
- Court grants Lumber One’s motion to dismiss express warranty and ADTPA class claims, and orders Lisk to show cause on amount in controversy for federal jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lisk adequately pleads an express warranty | Lisk contends Lumber One’s MCA description constitutes an express warranty benefitting third parties | Lumber One argues no direct written warranty to Lisk and privity blocks claims | Express warranty claim dismissed for insufficient pleading. |
| Whether privity or third-party beneficiary concepts authorize an express warranty claim | Lisk relies on Harris Moran to show third-party beneficiary theory | Lumber One asserts no pleaded intent to benefit end users; Harris Moran not satisfied | Lisk’s third-party beneficiary theory insufficiently pleaded; privity guidance not enough. |
| Whether ADTPA class action is preempted by Rule 23 in federal court | Shady Grove requires Rule 23 to govern class actions; ARAD claims permit class action | ADTPA class-action bar prohibits private ADTPA class actions; not preempted | ADTPA class action barred; class claim dismissed. |
| Whether federal jurisdiction remains after dismissals (diversity/amount in controversy) | Diversity exists; aggregate claims may meet amount in controversy | ADTPA damages cap undermines amount in controversy; jurisdiction doubtful | Causes Lisk to show amount in controversy; ordered to show cause. |
Key Cases Cited
- Harris Moran Seed Co., Inc. v. Phillips, 949 So.2d 916 (Ala. Civ. App. 2006) (third-party beneficiary express warranty rights despite lack of privity)
- Ex parte Exxon Corp., 725 So.2d 930 (Ala. 1998) (public policy prevents applying another state's law when Alabama policy disfavors class actions)
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (S. Ct. 2010) (Rule 23 preempts state restrictions on class actions in federal diversity cases (context))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (pleading requires more than mere conclusory statements)
- Ashcroft v. Iqbal, 556 U.S. 662 (S. Ct. 2009) (pleadings must contain factual content to be plausible)
- Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013) (reiterates pleading standards under Iqbal/Twombly)