IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

HAROLD KELLY MURPHY, * 

 * 

 Plaintiff, * 

 * 

vs. * CASE NO.: 2:06-cv-618-MEF 

* 

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

 * 

 Defendants. * 

PLAINTIFF’S MOTION TO STRIKE 

REPLY BRIEF IN SUPPORT OF DEFENDANT’S 

MOTION FOR JUDGMENT ON THE PLEADINGS 

Plaintiff, by counsel, hereby files this Motion to Strike Defendant’s Reply Brief in 

Support of Motion for Judgment on the Pleadings. 

Introduction

 Defendant has filed a Reply brief which quotes an unauthenticated letter from a 

HUD official which constitutes inadmissible hearsay. Defendant further misleads this 

Court regarding the Guidroz Court’s statements by failing to note that the Court in fact 

did review the amended complaint to see if it passed preemption muster: “[I’ve read the 

amended complaint]...only in such detail as I thought I might have to deal with Mr. 

Domingue’s [Defense counsel] argument that the amendment would be without benefit, 

and certainly it isn’t that. So I’ve read enough to know that you get past that hurdle 

anyway.” Finally, and most importantly, the Reply and the HUD “letter” are due to be 

stricken because even if true, it does not support preemption. 

Case 2:06-cv-00618-MEF-SRW Document 44 Filed 06/14/2007 Page 1 of 7
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1. Standard of Review

Federal Rule of Civil Procedure Rule 12(f), mandates that this Court can “order 

stricken from any pleading any . . . redundant, immaterial, impertinent, or scandalous 

matter.” Southeast v. Bd. Of Seminole County FL, 778 F.Supp. 518, 519 (M.D.Fla. 

1991); Bram v. Williamson Tobacco Corp., 201 F.2d 819, 822 (6th Cir. 1953); Xerox 

Corp. v. ImaTek, Inc., 220 F.R.D. 241 and 220 F.R.D. 244 (D. Md. 2004) (striking 

immaterial allegations), Hare v. Family Pub. Service, 342 F.Supp. 678, 685 (D. Md. 

1972, n. 2) (if allegations are immaterial and likely to prejudice later litigation, must be 

stricken). These include “statements that do not pertain, and are not necessary, to the 

issues in question.” Id. One test for whether it is material “is whether proof concerning 

it could be received at trial, if it could not, then the matter is immaterial and impertinent.” 

Id. The Federal Appeals Courts have instructed: 

The importance of using the Rules to uncover bogus claims and defense, 

thereby reducing the parties’ dispute to its bare essentials, cannot be 

overemphasized... 

Byrne v. Nezhat, 261 F.3d 1075, 1132-33 (11th Cir. 2001) (emphasis supplied). 

2. Argument

Defendant has misrepresented what the Guidroz Court stated. Indeed the Court in 

Guidroz did at least review the amended complaint to make a preliminary determination 

that he should grant the amendment to ensure that the Court did not still think even the 

amended complaint was preempted: 

And I’m certainly not prejudging it because I really haven’t read with any detail at 

all the amended complaint, only to such – only in such detail as I thought I might 

have to deal with Mr. Domingue’s [Defense counsel] argument that the 

amendment would be without benefit, and certainly it isn’t that. So I’ve read 

enough to know that you get past that hurdle anyway. 

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See Transcript of hearing in Guidroz at p.5-6 attached to Defendant’s Reply Brief 

(emphasis supplied). Defendant stopped literally just short of quoting this portion of the 

hearing transcript. In any event, the ultimate outcome is not controlling in any event to 

this Court but a ruling would be expected soon enough. 

 More troubling is that attached to its Reply is an unauthenticated letter which 

constitutes inadmissible hearsay.1 This letter which apparently was obtained in a back 

room in Washington, DC by Defendant’s trade / lobbying organization purports to be a 

comment by a HUD official who has reviewed some plaintiffs’ complaints (not sure 

whose) wherein he renders opinions without the input of plaintiffs’ counsel which 

directly contradict the Waiver in this case. The Waiver came about by official 

rulemaking and complied with the notice and comment period mandated by federal law. 

This HUD “official” would purport to avert this process by typing a few paragraphs onto 

a piece of paper which renders the entire HUD Code impotent. Plaintiff, at a minimum, 

should have the opportunity to depose this individual and obtain discovery on this 

preferential private meeting with the manufacturer. 

Finally, and most importantly, the Reply and the HUD “letter” are due to be 

stricken because even if true, it does not support preemption (something Defendant is 

either woefully ignorant of or for which they purposefully misleading to this Court). 

Even if Defendant does not have to comply with “accepted engineering practices” 

because they selected one of the options under 3280.504b, they still must comply with the 

other preemptive requirements of the HUD Code which they have been alleged to have 

violated. For example, if a manufacturer chooses to utilize option 1 of 24 CFR 

 

1

 It is troubling that despite ongoing discovery duties by these Defendants, this letter was 

not produced until this Reply brief despite the fact that it is nearly half a year old. 

Case 2:06-cv-00618-MEF-SRW Document 44 Filed 06/14/2007 Page 3 of 7
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3280.504(b) and place a vapor barrier on the ‘living side’ of the exterior walls, it still has 

a duty to take steps to ensure that option 1 is implemented correctly by ensuring the home 

performs in the manner prescribed in, among other things, sections 3280.103(b) 

(ventilation system ‘shall not create a negative air pressure...); 504 (‘Condensation 

control and installation of vapor retarders’); 505 (‘The opaque envelope shall be designed 

and constructed to limit air infiltration to the living area of the home. Any design, 

material, method or combination thereof which accomplishes this goal may be used’). 

If knowingly placing a vapor barrier in the hot and humid climate and knowing 

that it will destroy the home is allowed as the HUD letter suggests (e.g. you do not need 

to comply with accepted engineering practices), the Defendant still must – as Defendant 

tells this Court – meet the prescriptive (e.g. 3280.103(b) ventilation system ‘shall not 

create a negative air pressure) or performance based requirements of the HUD Code (e.g. 

3280.505 ‘The opaque envelope shall be designed and constructed to limit air infiltration 

to the living area of the home. Any design, material, method or combination thereof 

which accomplishes this goal may be used’). The bottom line is that the home is not 

supposed to condensate and these homes do. Any argument that HUD allows or 

mandates that they be built in such a manner that they condensate is smoke and mirror 

defense work. 

It is indisputably wrong and against “accepted engineering practices” to place a 

vapor barrier on the living (inside) of the homes in the hot and humid climates and has 

been known since long before this home was built: 

Department of Housing and Urban Development (HUD) research Grant

1995 - Manufactured Housing Walls That Provide Satisfactory 

Moisture Performance in All Climates.

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“A current-practice manufactured housing wall with an interior vapor 

retarder was shown to provide satisfactory performance in cold climates, but 

poor performance in a hot, humid climate. The use of an interior vapor 

retarder in the wall of an air conditioned building exposed to a hot and 

humid climate can cause high relative humidity at its outside surface, thereby 

providing a conducive environment for mold and mildew growth.”

Manufactured Housing Research Alliance 

1999 - Moisture Problems in Manufactured Homes, 

Understanding Their causes and Finding Solutions

“The interior vapor retarder acts like a dam holding water inside the wall 

board. When the conditions support condensation inside the wall, water will 

begin to condense on the coldest material—in this case, the inner surface of 

the wallboard. If the conditions for drying are poor—the outside humidity is 

high and the vapor retarder blocks diffusion to the inside—moisture will 

begin to accumulate on the surface and saturate the material. If the wall 

board cannot dry out, it will eventually fail completely. 

If Defendant “chooses” to ignore the indisputable evidence (and as they allege 

HUD allows them to do so), they must ensure that the other sections of the Code are 

followed to keep the hot, moist air from destroying the home. Defendant has not denied 

that these other requirements must be met and this Court should focus on the doublespeak Defendant makes when trying to confuse this Court.2

 

 

2

 Interestingly enough, one of Defendant’s Counsel in two of Plaintiff’s Counsel’s other 

cases against a different manufacturer produced discovery responses that states that the 

manufactured homes were built to 3280.504(b)(3) not the (b)(1) standard Defendant is 

arguing is prescriptively preempted in this case. This demonstrates that prior to the 

waiver, the manufactured home industry had at their disposal a viable option to which to 

build the homes in the Gulf Coast region which did not require the placement of a vapor 

barrier on the inside of the home. Also, (b)(3) is not prescriptive and states that: “or (3) 

Wall cavities must be constructed so that ventilation is provided to dissipate any 

condensation occurring in these cavities; or” 24 USC 3280.504(b)(3). There is no 

“prescriptive” requirement here only that “ventilation” be provided to dissipate 

condensation. Since there is no specific manner which must be followed in (b)(3), the 

”performance” nature of the HUD Code is again highlighted. Defendant has been armed 

with a HUD Code that gives them alternative construction methods to “ensure” “durable” 

housing and it is disingenuous for them to argue HUD made them do this. 

 

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 WHEREFORE, Plaintiff respectfully requests that this Court Strike 

Defendant’s entire Reply Brief and grant such other relief as is just and proper. 

 

/s/ C. Lance Gould _ 

 C. LANCE GOULD (ASB-0913-G66C) 

 Attorney for Plaintiff 

OF COUNSEL: 

BEASLEY, ALLEN, CROW, 

METHVIN, PORTIS & MILES, P.C. 

Attorneys at Law 

Post Office Box 4160 

Montgomery, AL 36103-4160 

(334) 269-2343 

(334) 954-7555 (fax) 

Case 2:06-cv-00618-MEF-SRW Document 44 Filed 06/14/2007 Page 6 of 7
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CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the original of the foregoing 

document in this Court and served a copy upon all Defendants of record as listed below

by placing a copy of same in the United States Mail, first class, postage prepaid on this 

the 14th day of June, 2007. 

/s/ C. Lance Gould 

OF COUNSEL 

W. Scott Simpson 

RITCHEY & SIMPSON, PLLC 

3288 Morgan Drive, Suite 100 

Birmingham, Alabama 35216 

Telephone: (205) 822-3422 

Facsimile: (205) 822-3618 

e-mail: wssimpson@bellsouth.net

Lee E. Bains, Jr. 

Thomas W. Thagard, III 

Edward S. Sledge IV 

MAYNARD, COOPER & GALE, P.C. 

1901 Sixth Avenue North 

2400 AmSouth/Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 (Telephone) 

(205) 254-1999 (Facsimile) 

lbains@maynardcooper.com 

tthagard@maynardcooper.com 

sledge@maynardcooper.com 

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