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 OR, IN THE 

ALTERNATIVE, OPPOSITION TO DEFENDANT’S SUR-REPLY 

Plaintiff, by counsel, hereby files this Motion to Strike or, in the Alternative, 

Opposition to Defendant’s Sur-Reply in Support of Motion for Judgment on the 

Pleadings. 

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). 

 Defendant has filed a “Sur-Reply” which other than continuing to misrepresent 

Murphy’s Complaint adds nothing new to the arguments before this Court. The SurReply should be stricken. 

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2. Argument

Defendant misrepresents two material facts in this case.1 First, Defendant states 

that “the same plaintiffs’ counsel, in association with Louisiana counsel, had previously 

filed a class action complaint...” Defendant’s Sur-Reply at p.1 ¶2. Indeed, the 

undersigned did not draft nor did they have any involvement in the class action complaint 

that was filed by the counsel in the Guidroz case originally. The undersigned indeed 

assisted in drafting the amended complaint which was held not to be subject to 

preemption and which is in accord with the original (and only) complaint pending in this 

case. 

Second, and more importantly, the Defendant’s attempt to mislead this Court 

when it states that Plaintiff in this case alleged a “specific defect in the design of the 

wallboards in the manufactured home.” Defendant’s Sur-Reply at p.1 ¶1. The reason the 

original Guidroz complaint was found to be preempted was because of how the complaint 

was framed e.g. it specifically singled out 3280.504(b)1 as the only claim (as the court 

understood it). This complaint (and the amended complaint in Guidroz) do not and never 

have been framed in this manner. The only mention in the pending complaint in this case 

of the defect is found in paragraph 4: “The manufactured homes designed and 

manufactured by Defendant, including the manufactured home purchased by Plaintiff, 

have an improper design and construction of exterior walls.” In Guidroz, the court found 

that as originally framed in the first complaint, the plaintiffs simply sought to hold 

defendants liable for exercising an option under 3280.504(b)1 – the use of a vapor barrier 

 

1

 In addition to the two material facts addressed above, Defendant also misstates the court's ruling in 

Guidroz in footnote 2 of their Sur-Reply in stating that the court "refused" to allow "any class discovery 

going forward" (not that it would have any impact on preemption even if true). 

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on the living side of the walls. Defendant cannot point to any such allegation in the 

complaint in this case because it does not exist. 

Implicit in the Defendant’s attempts to misstate the complaint is the 

understanding by Defendant that – properly plead – preemption is baseless.2

 Thus, 

Defendant’s only chance at preemption is to mislead this Court about the complaint. This 

is because if a manufacturer chooses to utilize option 1 of 24 CFR 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’). 

Defendant knows that “any” design under 505 may be used and thus preemption 

has no place as they cannot argue the federal government made or allowed them to build 

the home a certain way as there is there is no “way” specified. The performance based 

section of 505 is the only requirement: “The opaque envelope shall be designed and 

constructed to limit air infiltration to the living area of the home. Any design...may be 

used.” 

Further, the only prescriptive standard in this case is 3280.103(b) which states that 

the ventilation system shall not create a negative air pressure or performance based 

requirements of the HUD Code. Defendant cannot argue preemption here because 

 

2

 Defendant understands that a HUD built home is not supposed to have walls that 

condensate. 

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Plaintiff is accusing Defendant of actually violating this prescriptive standard which they 

must follow (you do not want a negative air pressure in the gulf coast region because 

simply put you do not want to suck the hot, moist air into the walls where it will get stuck 

if a vapor barrier is used and no proper limitation of air infiltration to the living area of 

the home is achieved). 

The bottom line is that regardless of the standard to which a manufacturer builds a 

home under 3280.504(b), a HUD built home is not supposed to condensate and Plaintiff 

has alleged that this home does. Defendant cannot disagree with this statement and must 

attempt to shoe-horn Plaintiff’s complaint into their preemption theory by misleading this 

Court as to it’s allegations. 

WHEREFORE, Plaintiff respectfully requests that this Court Strike Defendant’s 

Sur-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) 

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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 16th day of August, 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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