Plaintiff also names a number of fictitious defendants. Federal courts do not allow 1

fictitious party practice. New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th

Cir.1997) (“[F]ictitious party practice is not permitted in federal court.”). Therefore, the

fictitious defendants are due to be dismissed. See, e.g., Wiggins v. Risk Enterprise Mgmt. Ltd.,

14 F. Supp. 2d 1279, 1279 n.1 (M. D. Ala. 1998) (DeMent, J.) (dismissing sua sponte fictitious

defendants).

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

HAROLD KELLY MURPHY, )

)

Plaintiff, )

)

v. ) Case No. 2:06-cv-618-MEF

) (WO - Do not publish) 

SOUTHERN ENERGY HOMES, INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This cause is before the Court on Defendant Southern Energy Homes, Inc.’s1

Motion for Judgment on the Pleadings (Doc. # 32). For the reasons stated herein, the

motion is due to be GRANTED. 

JURISDICTION AND VENUE

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 because

the Plaintiff’s claims arise under a law of the United States, specifically the MagnusonMoss Warranty Federal Trade Commission Improvement Act, 15 U.S.C. § 2310, et seq.,

and the National Manufactured Housing Construction and Safety Standards Act, 42

U.S.C. § 5401, et seq. The parties do not contest personal jurisdiction or venue, and the

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Court finds adequate allegations in support of both.

STANDARD OF REVIEW

“Judgment on the pleadings is appropriate when there are no material facts in

dispute, and judgment may be rendered by considering the substance of the pleadings and

any judicially noticed facts.” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370

(11th Cir. 1998); Fed. R. Civ. P. 12(c). The Court must accept facts in a complaint as true

and views them in a light most favorable to the nonmoving party. Ortega v. Christian, 85

F.3d 1521, 1524 (11th Cir. 1996). The complaint may not be dismissed “unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Slagle v. ITT Hartford, 102 F.3d 494, 497 (11th Cir.

1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

FACTS AND PROCEDURAL BACKGROUND

The pleadings, when viewed in the light most favorable to the nonmoving party,

establish the following facts:

Plaintiff purchased a manufactured home from Defendant on or about December

26, 2003. Complaint (Doc. # 1-2, ¶ 7). The purchase price was $45,639. (Id.). It is

undisputed that Defendant constructed the exterior walls of Plaintiff’s home with interior

vapor barriers, which is expressly permitted under the HUD Code. 24 C.F.R. §

3280.504(b)(1). 

On June 14, 2006, Plaintiff filed an eleven-count complaint in the Circuit Court of

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Montgomery County, Alabama. (Doc. # 1-2). Plaintiff alleges that “[t]he manufactured

homes designed and manufactured by Defendant, including the manufactured home

purchased by Plaintiff, have an improper design and construction of exterior walls.” (Id. ¶

4). On July 14, 2006, Defendant removed the case to this Court. Notice of Removal

(Doc. # 1). 

DISCUSSION

Defendants contend that Plaintiff’s state law claims are preempted by the

Manufactured Housing Act. “Congress’s intent to preempt state law may be explicitly

stated in the language of a federal statute or implicitly contained in the structure and

purpose of the statute.” Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1122 (11th

Cir. 2004). There are three types of preemption: (1) express preemption; (2) field

preemption; and (3) conflict preemption. Id.

In this case, the Court finds that Plaintiff’s claims are due to be dismissed because

of conflict preemption. “Conflict preemption exists where state law actually conflicts

with federal law, making it impossible to comply with both, or where the state law stands

as an obstacle to the accomplishment and execution of the full purposes and objectives of

Congress.” Irving v. Mazda Motor Corp., 136 F.3d 764, 768 (11th Cir. 1998) (internal

quotation marks and citation omitted). The Manufactured Housing Act’s implementing

regulations specify that the test for determining whether the state law stands as an

obstacle to the accomplishment and execution of the full purposes and objectives of

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Congress is “whether the State rule can be enforced or the action taken without impairing

the Federal superintendence of the manufactured home industry as established by the

Act.” 24 C.F.R. § 3282.11(d).

Plaintiff’s claims are based on Defendants’ construction of the exterior walls of

Plaintiff’s home with interior vapor barriers, which is expressly permitted under the HUD

Code. 24 C.F.R. § 3280.504(b)(1). Section 3280.504(b) provides for a range of

authorized options for exterior wall construction. See § 3280.504(b). The regulations lay

out “the requirements for condensation control, air infiltration, thermal insulation and

certification for heating and comfort cooling.” 24 C.F.R. § 3280.501. The language does

not suggest that the regulation sets forth minimum standards, and Courts have suggested

that regulations providing a range of options do not set forth minimum standards. See

Stone ex rel. Estate of Stone v. Frontier Airlines, Inc., 256 F. Supp. 2d 28, 44 (D. Mass.

2002). 

In a recent case, this Court held that similar claims were barred by conflict

preemption because they would penalize the manufacturer for choosing a federally

authorized option. See Perry v. Fleetwood Enterprises, Inc., 2007 WL 2893410 (M.D.

Ala. Sept. 28, 2008); see also Guidroz v. Champion Enters., Inc., No. 05-1148 (W.D. La.

January 26, 2007). The Court agrees and concludes that Plaintiff may not penalize

Defendant for choosing an option permitted by § 3280.504(b).

Plaintiff argues, looking both to case law and the structure of the regulations

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themselves, that the regulations at issue set forth are performance-based. Response (Doc.

# 36, § A.2). In other words, the manufacturer is given several options to meet a

performance-based requirement. Therefore, Plaintiff argues, the regulations set forth

minimum standards. The Court disagrees. The regulation at issue in Geier v. American

Honda Motor Co. also set a performance requirement. 529 U.S. 861, 878 (2000) (“[The

regulation at issue] set[] a performance requirement for passive restraint devices and

allow[ed] manufacturers to choose among different passive restraint mechanisms, such as

airbags, automatic belts, or other passive restraint technologies to satisfy that

requirement.”). 

The Geier Court noted that the manufacturers were required to meet a performance

requirement by choosing from a range of options. See id. at 878-79. Nonetheless, the

plaintiff’s claims were preempted because they penalized the manufacturer for choosing

an option provided by the regulations. See id. at 881. Even if the regulations set forth

performance requirements or a performance standard, the Court cannot agree that the

regulations provide a minimum standard. Maintenance of Plaintiff’s state court claims

would “impair[] the Federal superintendence of the manufactured home industry as

established by the Act.” 24 C.F.R. § 3282.11(d). Therefore, Defendants’ motion is due

to be GRANTED.

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CONCLUSION

It is hereby ORDERED as follows:

(1) Defendant’s Motion for Judgment on the Pleadings (Doc. # 32) is GRANTED.

(2) Plaintiff’s claims in this case are DISMISSED WITH PREJUDICE.

(3) Defendant’s Motion to Exclude Testimony and Opinions of Plaintiff’s Expert

Robert Kondner and Request for In Limine Heading (Doc. # 69), Motion to Exclude

Testimony and Opinions of Plaintiff’s Expert Bobby Parks and Request for In Limine

Heading (Doc. # 70), and Motion for Summary Judgment (Doc. # 71) are DENIED as

moot.

(4) All claims against the fictitious defendants are DISMISSED. 

(5) The Court will enter a separate final judgment taxing costs.

Done on this the 6 day of March, 2008. th

 /s/ Mark E. Fuller 

CHIEF UNITED STATES DISTRICT JUDGE

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