United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
action is before the Court on the motion to dismiss Count
Five of the complaint under Federal Rule of Civil Procedure
12(b)(6) (Doc. 36) filed by Defendant Weather Shield Mfg.,
Inc. (“WSM”). The Court has referred the motion
(Doc. 36) to the undersigned Magistrate Judge for appropriate
action under 28 U.S.C. § 636(a)-(b), Federal Rule of
Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala.
GenLR 72(b); (11/13/2017 electronic references). Plaintiff
Jerry Silverstein has timely filed a response (Doc. 48) in
opposition to the motion. WSM has not filed any reply to the
response, the deadline to do so has passed, and the motion is
now under submission. (See Doc. 40). Upon
consideration, and pursuant to § 636(b)(1)(B)-(C) and
Federal Rule 72(b)(1), the undersigned
RECOMMENDS that the motion to dismiss be
well-pleaded factual allegations in the complaint (Doc. 1),
or about January 20, 2000, Silverstein was building a custom
luxury home in Mobile, Alabama, when he purchased 70 matching
windows and doors manufactured by WSM, along with a lifetime
warranty on same, and installed them in the home. However,
since being installed, the windows and doors have
deteriorated due to water infiltration, causing the wood
structural material to rot and deteriorate. In 2006, and
again in 2014, Silverstein noticed this deterioration and
notified WSM. WSM performed an inspection after being
notified in 2006, but denied the rot and offered a paint-only
solution. After being notified in 2014, WSM had several
inspections performed, with two of the inspectors
recommending the windows and doors be replaced. Again,
however, WSM did not replace the windows, instead only
offering to paint over the rotten wood. In October 2016,
Silverstein informed WSM of additional deterioration, but WSM
again refused to repair or replace the windows and doors.
on the foregoing allegations, Silverstein initiated this
action by filing a five-count complaint with the Court (Doc.
1). The first four counts allege state law causes of action
for breach of contract and breach of warranty. Count Five
alleges a cause of action under the federal Magnuson-Moss
Warranty Act of 1975, 15 U.S.C. § 2301, et seq.
(“MMWA, ” or “the
MMWA “imposes specific duties and liabilities on
suppliers who offer written warranties on consumer
products.” 16 C.F.R. § 700.3; Marlborough
Holdings Grp., Ltd. v. Azimut-Benetti, Spa, Platinum Yacht
Collection No. Two, Inc., 505 F. App'x 899, 904
(11th Cir. 2013) (per curiam) (unpublished). For purposes of
the Act, “[t]he term ‘consumer product' means
any tangible personal property which is distributed in
commerce and which is normally used for personal, family, or
household purposes (including any such property intended to
be attached to or installed in any real property without
regard to whether it is so attached or installed).” 15
U.S.C. § 2301(1).
argues that Count Five is due to be dismissed for failure to
state a claim because the windows and doors at issue do not
qualify as “consumer products, ” based on the
following Federal Trade Commission interpretive
The coverage of building materials which are not separate
items of equipment is based on the nature of the purchase
transaction. An analysis of the transaction will determine
whether the goods are real or personal property. The numerous
products which go into the construction of a consumer
dwelling are all consumer products when sold “over the
counter, ” as by hardware and building supply
retailers. This is also true where a consumer contracts for
the purchase of such materials in connection with the
improvement, repair, or modification of a home (for example,
paneling, dropped ceilings, siding, roofing, storm windows,
remodeling). However, where such products are at the time of
sale integrated into the structure of a dwelling they are not
consumer products as they cannot be practically distinguished
from realty. Thus, for example, the beams, wallboard, wiring,
plumbing, windows, roofing, and other structural components
of a dwelling are not consumer products when they are sold as
part of real estate covered by a written warranty.
In the case where a consumer contracts with a builder to
construct a home, a substantial addition to a home, or other
realty (such as a garage or an in-ground swimming pool) the
building materials to be used are not consumer products.
Although the materials are separately identifiable at the
time the contract is made, it is the intention of the parties
to contract for the construction of realty which will
integrate the component materials. Of course, as noted above,
any separate items of equipment to be attached to such realty
are consumer products under the Act.
16 C.F.R. § 700.1(e)-(f) (section markers omitted).
argues that, because Silverstein purchased the subject
windows and doors “for installation into the
construction of a new, custom-built luxury home and not for
the purpose of improvements, repairs, or modifications of an
existing home[, ]” the windows and doors “became
part of the realty” and are thus not “consumer
products” as defined by § 700.1. (Doc. 36 at 4).
In support, WSM cites Miller v. Herman, 600 F.3d 726
(7th Cir. 2010). However, WSM's substantive application
of that case is flawed for at least two reasons.
WSM claims that Miller
“held, ‘When products
are purchased to add to an existing dwelling, then they are
consumer products, but when purchased as part of a larger
real estate sales contract, they are not.' ” (Doc.
36 at 4 (emphasis added)). While this quotation does appear
in Miller, it is not a holding of the Seventh
Circuit. Rather, it was included as part of a parenthetical
quotation of a California state court decision, Atkinson
v. Elk Corp. of Texas, 142 Cal.App.4th 212, 48
Cal.Rptr.3d 247, 255 (2006), which was itself included in a
string citation comparing cases to show that “there is
arguably some ambiguity in the case law interpreting
subsections (e) and (f)…” Miller, 600
F.3d at 737.
WSM is incorrect that the “purchase and intended use of
the windows by the Plaintiff in this case mirrors that of the
claimant in Miller.” (Doc. 36 at 4). In that
case, plaintiff Miller contracted with builder Herman and his
company to construct a new, custom-built home.
Miller, 600 F.3d at 728. In the course of building
the home, Herman purchased and installed windows and doors
that were warranted by the manufacturer, Pella Products.
Id. After the windows and doors leaked, causing mold
damage to the home, Miller filed suit against Herman,
Herman's company, and Pella, alleging claims under MMWA,
among others. See Id. at 729. All defendants moved
for judgment in their ...