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 

 ) 

SOUTHERN ENERGY HOMES, INC., ) 

et al., ) 

 ) 

 Defendants. ) 

BRIEF OF SOUTHERN ENERGY HOMES, INC. IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT

Defendant, Southern Energy Homes, Inc. (“Southern”), respectfully submits the 

following brief in opposition to plaintiff’s motion for leave to amend complaint (Pacer 

Doc. 38) that was filed seven (7) months after the deadline established by this Court’s 

August 22, 2006 scheduling order. (Pacer Doc. 11, p. 2, § 4) 

FACTS AND PROCEDURAL POSTURE 

The plaintiff, Harold Kelly Murphy (“Murphy”), filed his original Complaint with 

the Circuit Court of Montgomery County, Alabama on June 14, 2006. (Pacer Doc. 1: 

Part 2) Southern removed the case to this Court on June 14, 2006. (Pacer Doc. 1) 

In the Complaint, Murphy vaguely claimed that his manufactured home is 

defective because of an unspecified defect in the home’s exterior walls. (Pacer Doc. 1, 

Part 2, p. 2, ¶ 4) Southern propounded Interrogatories on September 27, 2006, to seek 

clarification of Murphy’s claims. 

On August 22, 2006, this Court entered a scheduling order in this case, pursuant 

to Fed.R.Civ.P. 16(b). (Pacer Doc. 11) This Court set a deadline of November 6, 2006 as 

Case 2:06-cv-00618-MEF-SRW Document 43 Filed 06/13/2007 Page 1 of 15
the cut-off date for Murphy to join additional parties and to amend his pleadings. (See

Pacer Doc. 11, p. 2, § 4) 

On September 1, 2006, Murphy provided Southern with his expert reports. From 

these reports, Southern learned that the vague wall defect claim alleged by Murphy in his 

original complaint was predicated on the presence of an interior vapor barrier in the home 

(i.e., vinyl wallpaper). 

On March 15, 2007, Southern filed a Motion to Modify the Scheduling Order so 

that the parties could explore settlement through mediation. (Pacer Doc. 25) Murphy did 

not oppose the motion. Neither Southern nor Murphy sought leave to extend the 

deadlines for the amendment of pleadings. This Court granted the motion, and entered an 

Amended Scheduling Order on April 4, 2007. (Pacer Doc. 30) The Amended Scheduling 

Order provided that the time for any motions to amend the pleadings and to add parties 

had expired. (Pacer Doc. 30, p. 2, § 4) 

On May 9, 2007, Southern filed a Motion for Judgment on the Pleadings. (Pacer 

Doc. 32) Murphy opposed the motion (Pacer Docs. 36 and 37), and Southern filed a 

reply brief. (Pacer Doc. 39) Southern relied in part, on a decision from the Federal 

District Court for the Western District of Louisiana, Guidroz v. Champion Enterprises, 

Inc., et al.,1

 where the court dismissed a nearly identical class action complaint based on 

the doctrine of federal preemption. The Guidroz court held that a claim of product defect 

based on the presence of interior vapor barriers was preempted because the HUD Code2

 

1

 Southern supplied this Court with a copy of the Guidroz decision at Pacer Doc. 33. 

2

 Manufactured homes are regulated by the Manufactured Home Construction and Safety 

Standards Act, 42 U.S.C. § 5401 et seq. The manufactured home building code is 

promulgated by the United States Department of Housing and Urban Development 

(“HUD”). The “HUD Code,” as it is commonly referred, is located at 24 C.F.R. § 3280. 

2

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expressly permits the use of interior vapor barriers in wall designs. Guidroz, at p. 24-25; 

24 C.F.R. § 3280.504(b)(1). The Guidroz court granted plaintiffs leave to file an 

amended complaint on May 17, 2007; however, the court emphasized the correctness of 

its first decision. The court held that any amended claim that alleged a defect based on 

the presence of an interior vapor barrier was preempted. (See court order, attached hereto 

as Exhibit A; and hearing transcript, attached hereto as Exhibit B, p. 4: 10-16). The 

defendants in Guidroz recently filed a motion to dismiss the amended complaint on 

preemption grounds. The Guidroz court has scheduled a hearing on that motion for July 

18, 2007. (Exhibit C) 

Murphy filed a motion to amend the complaint on May 25, 2007. (Pacer Doc. 38). 

Murphy’s proposed amended complaint is almost identical to the amended complaint in 

Guidroz.

3

 Murphy admits that his motion is necessary to address the Guidroz decision in 

the context of Southern’s motion for judgment on the pleadings. (Pacer Doc. 38, p. 2, ¶¶ 

5 and 7) He contends that this Court should grant his motion so that he can “clarify” his 

facts and try to overcome the preemption defense. (Pacer Doc. 38, p. 2, ¶ 7) Murphy 

relies solely on Rule 15 of the Federal Rules of Civil Procedure, maintaining that leave 

should be “freely” given in the “interest of justice.” (Pacer Doc. 38, p. 2, ¶ 6) Murphy 

overlooks the fact that he must first satisfy Rule 16(b) because his amended complaint is 

seven (7) months too late. 

Murphy argues that Southern will not suffer prejudice because no depositions 

have been taken. (Pacer Doc. 38, p. 3, ¶ 9) Southern disagrees. The parties have 

 

3

 Not coincidentally, Murphy’s lawyers also represent the Guidroz plaintiffs. 

3

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scheduled all depositions in the case in July and early August.4

 Time is of the essence 

with respect to scheduling, as Southern’s expert reports must be provided by August 17, 

pursuant to this Court’s latest scheduling order. (Pacer Doc. 30, p. 2, § 8) An “eleventh 

hour” shift in Murphy’s theory will disrupt the scheduling and prejudice Southern’s 

defense of this case. 

Predictably, Murphy may argue that his amended allegations are “new” and 

“different than” the preempted claims he originally pleaded. If Murphy takes this 

position, then his motion to amend should be denied under Rule 16(b) because of a lack 

of diligence. Murphy’s tactics are a textbook example of pleading seriatim in order to 

overcome a dispositive motion, which is not permitted by law. 

Alternatively, Murphy may contend that his proposed amended complaint offers 

nothing new, since he argues that such allegations simply “clarify” the facts previously 

pleaded, and that he “fully” explained these facts in his responses to Southern’s 

interrogatories, served December 21, 2006. (Pacer Doc. 38, ¶¶ 7 and 8; a copy of 

Murphy’s interrogatory answers are attached hereto as Exhibit D) If Murphy takes this 

alternate position, then this Court should deny his motion under the futility doctrine 

because a wallboard claim, camouflaged in other facts, is still preempted. Hall v. United 

Ins. Co. of America, 367 F.3d 1255, 1263 (11th Cir. 2004)(a district court’s denial of 

leave to amend under the futility doctrine is justified where the complaint, as amended, is 

still subject to dismissal); Fed.R.Civ.P. 15(a). 

 

4

 Murphy’s deposition is set for the week of July 9; Southern’s corporate representative 

deposition will be taken the following day. Murphy’s experts are scheduled to be 

deposed July 18. Murphy is scheduled to make his home available for inspection at the 

end of July. Southern’s experts are due to be deposed soon thereafter. 

4

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For the reasons discussed below, this Court should deny Murphy’s motion to 

amend, or alternatively, grant Southern’s motion for judgment on the pleadings, which 

would render Murphy’s motion moot. 

ARGUMENT

Because Murphy seeks leave to amend his Complaint after the amendment 

deadline set forth in this Court’s scheduling order, Murphy must satisfy Federal Rules of 

Civil Procedure 16 and 15. Sosa v. Airprint Sys., 133 F.3d 1417, 1418 n.2 (11th Cir. 

1998)(“When a motion to amend is filed after a scheduling order deadline, Rule 16 is the 

proper guide for determining whether a party’s delay may be excused.”). “It is only after 

the court addresses whether the proposed amendment may be granted under Rule 16 that 

the court is to determine whether it is proper under Rule 15.” Nobles v. Rural Comm. Ins. 

Serv., 303 F.Supp.2d 1279, 1283 (M.D. 2004)(citing Sosa, 133 F.3d at 1419); see also

Heslin-Kim v. CIGNA Group Ins., No. 9:04-23197-23, 2005 U.S. Dist. LEXIS 18830, at 

*7 (D. S.C. July 14, 2005)(holding that Rule 16 standard is more rigorous than the Rule 

15 standard). 

I. If Murphy Claims That His Proposed Amended Allegations Are New 

And Different, Then His Motion Should Be Denied Under Rule 16(b) 

For Lack Of Good Cause. 

Rule 16 requires a district court to enter a scheduling order that dictates deadlines 

for the amendment of pleadings, among other things. Wasdin v. Cheetah Transportation, 

L.L.C., No. 5:05-cv-340 (DF), 2006 U.S. Dist. LEXIS 88728, at *4 (M.D. Ga. December 

7, 2006); Fed,R,Civ.P. 16(b)(1). “A schedule [entered by the court] shall not be modified 

except upon a showing of good cause and by leave of the district judge. . .” Fed.R.Civ.P. 

16(b)(emphasis added). “This good cause standard precludes modification unless the 

5

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schedule cannot ‘be met despite the diligence of the party seeking the extension.’” Sosa, 

133 F.3d at 1418 (citing Fed.R.Civ.P. 16 advisory committee’s note); O'Connell v. Hyatt 

Hotels, 357 F.3d 152, 155 (1st Cir. 2004) (“unlike Rule 15(a)'s 'freely given' standard, 

which focuses mostly on the bad faith of the moving party and the prejudice to the 

opposing party . . . Rule 16(b)'s 'good cause' standard emphasizes the diligence of the 

party seeking the amendment”) (citation omitted). A plaintiff seeking leave to amend a 

complaint after a scheduling deadline has passed must satisfy Rule 16 because 

“[o]therwise, scheduling order deadlines would be ‘meaningless’ and the good cause 

requirement articulated by Rule 16(b) would effectively be read out of the Federal Rules 

of Civil Procedure.” Anderson v. Jefferson, 78 F. Supp.2d 1266, 1269 (S.D. Ala. 

1999)(citing Sosa, 133 F.3d at 1419); The Homebingo Network, Inc. v. Cadillac Jack, 

Inc., No. 05-0701-WS-B, 2006 U.S. Dist. LEXIS 87502, at *5 (S.D. Ala. November 29, 

2006)(holding that scheduling orders are firm settings that must be taken seriously). 

Sosa teaches that a court’s inquiry into a plaintiff’s “diligence” should focus on 

the plaintiff’s failure to ascertain information before filing suit; the plaintiff’s disregard of 

available information; and any delays occasioned by the plaintiff’s failure to act on 

information obtained in discovery. Sosa, 133 F. 3d at 1418. These factors are not 

exhaustive, as a showing of diligence must turn on the particular facts of the case. 

Although the existence or degree of prejudice to the party opposing the modification 

might supply additional reasons to deny a motion, “the focus of the inquiry is upon the 

moving party's reasons for seeking modification.” Johnson v. Mammoth Recreations, 

Inc., 975 F.2d 604, 609 (9th Cir. 1992). If that party was not diligent, the inquiry should 

6

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end. Id. at 609; Lord v. Fairway Elec. Corp., 223 F. Supp.2d 1270, 1277 (M.D. Fla. 

2002). 

A court should consider other relevant criteria as well. For example, a long delay 

between the amendment deadline and the plaintiff’s motion to amend is a valid 

consideration. See Stephens v. Georgia Dept. of Trans., No. 04-14222, 2005 U.S. App. 

LEXIS 10295, at *3-4 (11th Cir. 2005 May 31, 2005)(unpublished)(holding that a delay 

of six months was untimely under the Rule 16(b) “good cause” standard); Marco Island 

Cable, Inc. v. Comcast Cablevision of the South, Inc., No. 2:04-cv-26-FtM-29DNF, 2006 

U.S. Dist. LEXIS 41527, at *3 (M.D. Fla. June 21, 2006)(five month delay held untimely 

under Rule 16(b)). Likewise, “[i]f the facts have not changed since the filing of the 

original complaint, a court should conclude that a party was not diligent under Rule 

16(b).” See Anderson, 78 F. Supp.2d at 1269. 

A district court's decision to enforce its pre-trial order will not be disturbed on 

appeal absent an abuse of discretion. Santiago v. Lykes Bros. Steamship Co., 986 F.2d 

423, 427 (11th Cir.1993). 

One of the two possible positions Murphy will take is that the proposed 

amendment does substantively alter his original complaint by alleging three (3) new 

defect allegations. Murphy may try to take this position to distance himself from the 

preemptive reach of the HUD Code, as discussed in the Guidroz decision. Murphy’s new 

allegations parrot his original theory, that the “home uses a design that incorporates a 

vapor barrier on the ‘living side’ of the wall structures.” However, in addition to the 

vapor barrier allegation, Murphy may argue that the home is defective because Southern 

combined the internal vapor barrier design with one or more of the following additional

7

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“defective” designs: (1) “wall cavities”; (2) “and external coverings or sheathing”; 

“and/or” (3) “ventilation systems that causes moisture to accumulate and remain in the 

wall cavities of the manufactured home.” (Pacer Doc. 38, p. 2, ¶ 6)5 

Murphy’s motivation to amend does not satisfy the Rule 16 “diligence” 

requirement. Factually speaking, nothing has changed. The timing of Murphy’s motion 

is not based on “newly discovered evidence,” that was unavailable to Murphy despite 

diligent inquiry (as required by Rule 16). Instead, Murphy waited seven months to 

recast his defect theories – on the eve of Southern’s expert report deadline – in order to 

dodge the motion for judgment on the pleadings. Murphy’s actions demonstrate lack of 

diligence, as the amendment rules were not designed to be used as a ploy to bolster 

pleadings in the face of a dispositive motion.6

 Gregory v. Mitchell, 634 F.2d 199, 203 

(5th Cir. 1981)(upholding order denying motion to amend complaint when summary 

judgment motion was filed and taken under submission by the court). Helus v. Equitable 

Life Assur. Soc'y of the United States, 309 F. Supp. 2d 1170, 1176-77 (N.D. Cal. 

2004)(denying motion to amend when summary judgment motion was pending); MEDX 

Inc., of Fla. v. Ranger, No. 92-3099, 1993 U.S. Dist. LEXIS 3775, at *8-9 (E.D. La. 

March 19, 1993)(same); Gaylord Shops, Inc. v. South Hills Shoppers’ City, Inc., 33 

F.R.D. 303 (W.D. Pa. 1963)(same); Eisenmann v. Gould-National Batteries, Inc., 169 F. 

 

5

 Murphy does not tell us how these additional features are defective as required by the 

Rules of Civil Procedure. See Old Time Enterprises, Inc. v. International Coffee 

Corporation, 862 F.2d 1213, 1219 (5th Cir. 1989) (unclarified generalities and 

conclusory allegations, together with alternative “and/or” allegations, are the type of 

pleading tactics that can result in a complaint failing to comply with Fed.R.Civ.P. 8(a) 

and (e)). 

6

Assuming, arguendo, that Murphy satisfies the Rule 16 good cause requirement, 

Murphy’s actions still run afoul of Rule 15. Permitting Murphy to allege a new theory on 

the eve of every important deposition in the case and approximately 60 days before 

Southern’s expert reports are due to be filed is prejudicial to Southern. 

8

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Supp. 862, 864 (E.D. Pa. 1958)(same); AmerisourceBergen Corp. v. Dialysis West, Inc., 

445 F.3d 1132, 1136-37 (9th Cir. 2006) (court denied motion to amend while a motion 

for judgment on the pleadings was pending); Thompson v. Illinois Dept. of Prof. Reg., 

300 F.3d 750, 758 (7th Cir. 2002) (district court did not abuse its discretion in denying 

leave to amend complaint and curtailing “cat and mouse game of motions to dismiss 

followed by a motion to amend.”). The federal courts should not be used a forum for 

testing alternate legal theories seriatim. Fla. Evergreen Foliage v. E.I. Dupont De 

Nemours & Co., 470 F.3d 1036, 1042 (11th Cir. 2006) (citing Freeman v. Continental 

Gin Co., 381 F.2d 459, 469-70 (5th Cir. 1967) and 6 Wright & Miller, Federal Practice 

and Procedure § 1489 (2d ed. 1987)). 

Murphy’s inability to prove good cause is fatal to his motion to amend. 

Accordingly, this Court should deny Murphy’s motion.

II. If Murphy Claims That His Proposed Amended Allegations Are 

Simply A Clarification Of Prior Allegations, Then Murphy’s Motion 

Should Also Be Denied Based The Futility Doctrine Of Rule 15(a). 

The United States Supreme Court has held that a court should consider the 

following non-exhaustive list of factors when deciding whether to grant a motion to 

amend a complaint under Rule 15: “undue delay, bad faith or dilatory motive on the part 

of the movant, repeated failure to cure deficiencies by amendments previously allowed, 

undue prejudice to the opposing party by virtue of allowance of the amendment, futility 

of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). A district court’s denial 

of leave to amend under the futility doctrine is justified where the complaint, as amended, 

is still subject to dismissal. Hall v. United Ins. Co. of America, 367 F.3d 1255, 1263 

(11th Cir. 2004). 

9

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If Murphy claims that his proposed amended complaint does not substantively 

change his allegations, then this Court should deny his motion under the futility doctrine 

because his claims are still preempted. Simply camouflaging the internal vapor barrier 

claim with other vague allegations (as Murphy attempts to do), is a futile act that does not 

justify the grant of his motion under Rule 15.7

 See Wakeen v. Hoffman House, Inc., 724 

F.2d 1238, 1244 (7th Cir. 1983) (holding under Rule 15 that it is proper to refuse a 

request to amend where the party seeking the amendment merely restates the same facts 

using different language). 

In Guidroz, the court held that a claim of product defect based on a 

manufacturer’s use of internal vapor barriers was impliedly conflict preempted because 

the plaintiffs sought to outlaw the use of HUD's interior vapor barrier wall design 

regulation (Section 3280.504(b)(1)) in the humid and fringe zone climates. The Court 

correctly reasoned that if plaintiffs were permitted to proceed with this theory, then 

manufacturers would be precluded from utilizing a federally prescribed method of 

construction. Such a result would frustrate HUD's policy to provide manufacturers with 

an unfettered range of approved wall design options. Thus, a claim of product defect 

based on the presence of an interior vapor barrier – by itself – is preempted by federal 

 

7

 Murphy’s choice of “alternative” defects further demonstrates that he is seeking to repackage his original preempted theory. For example, the new allegations proposed by 

Murphy include unspecified problems with “external covering and sheathing.” This term 

is referenced in Sections 3280.504(b)(2) and (4) of the HUD Code. Murphy’s original 

argument was that Southern erred by not choosing a better design, i.e., a “(b)(2)” wall or 

a “(b)(4)” wall. His new argument is a furtive attempt to say the same thing, albeit with 

different terminology. Instead of claiming that Southern erred by not selecting a “b2” 

wall for example, he claims that Southern erred by constructing the wall assembly with 

improper “external covering and sheathing,” which is discussed in that section. Either 

way, Murphy argues the same point – Southern had a duty to pick the “best” wall design 

available, which is contrary to the HUD Code. 

10

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law. Murphy’s new allegations would still be preempted because he attempts to outlaw 

the use of internal vapor barriers when such a design is combined with other features 

determined by Murphy to be problematic. 

Although Murphy has left us to guess what specific design options are defective, 

we are told that his home is "defective" because it employs a design that incorporates a 

vapor barrier on the living-space side of the wall, combined with certain wall cavities, 

external sheathing "and/or" ventilation systems. The vagueness of his allegations 

demonstrates that Murphy is more concerned with running from the preemption defense, 

rather than running to any viable theory of recovery. 

When HUD promulgated the exterior wall regulation, 24 C.F.R. § 3280.504(b), it 

gave manufacturers a range of three choices (now four) from which to select. HUD did 

not condition the selection of any one wall design choice on a manufacturer's 

incorporation of a certain wall cavity design, sheathing product or ventilation system. 

Had it been HUD's wish to link wall design options to other construction features, then 

HUD certainly would have made that intention clear. One reads the HUD Code in vain 

for any support for Murphy’s new theory because HUD never intended to limit or 

condition the selection of a wall design option on the use of any other construction 

feature. 

If this Court permits plaintiff's amended theory to go forward, then two rules of 

law will emerge with respect to wall designs under the HUD Code. In every state but 

Alabama, manufacturers will be permitted to design walls in conformity with Section 

3280(b)(1) in unfettered fashion, as HUD intended. By contrast, Alabama homes will be 

required to satisfy a unique and purely local standard of care that conditions the selection 

11

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of the interior vapor barrier design on a range of other features that may include a 

specialized wall cavity, a particular type of external sheathing or a locally designated 

ventilation system - depending on the outcome of this case. This is precisely the type of 

outcome that conflict preemption doctrine was designed to prevent - the emergence of 

local standards of care that interfere with federally approved options. 

The law provides that a theory of recovery is conflict preempted when it seeks to 

modify a federal standard by the inclusion of additional, local requirements that are 

inconsistent with federal policy. There are numerous examples in decisional law where 

courts have struck down local standards that improperly supplant federal statutes and 

regulations, with local regulations which seek to improperly "augment" federal law. 

California v. Federal Energy Regulatory Commission, 495 U.S. 490, 506, 110 S.Ct. 

2024, 109 L.Ed.2d 474 (1990) (finding conflict preemption when a California regulation 

attempted to impose stricter minimum flow requirements on a hydroelectric project than 

those required by the Federal Energy Regulatory Commission); Perez v. Campbell, 402 

U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) (superseded by statute)(finding conflict 

preemption of a state statute which required drivers unable to pay accident expenses to 

forfeit their licenses because it conflicted with the federal bankruptcy code); Hines v. 

Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1940) (finding conflict preemption 

of a state statute which required aliens to register and carry identifications cards which 

was more than required by federal law, and it interfered with federal purpose); Securities 

Industry Association v. Connolly, 883 F.2d 1114 (1st Cir. 1989) (finding conflict 

preemption of state regulation that was designed to prevent a party from enforcing an 

arbitration contract by “visiting a penalty” on that party because it was “at odds with the 

12

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policy which infuses the [Federal Arbitration Act]” – resolving all issues in favor of 

arbitration); Darling v. Mobil Oil Corp., 864 F.2d 981 (2nd Cir.1989)(finding conflict 

preemption of state regulation that added five elements limiting reasonable grounds for 

termination when the federal statute only requires a term that is “both reasonable and of 

material significance” for franchisor to terminate a franchise agreement. In rejecting the 

franchisee’s argument that the Connecticut statute supplements rather than supplants the 

federal scheme, the court pointed to the potential for conflict between these two 

statutes.); Humboldt Oil Co. v. Exxon Co., U.S.A., 822 F.2d 373 (9th Cir. 1987), cert. 

denied, 485 U.S 1021 (finding preemption of state regulation that authorized treble 

damages for refusal to accept assignment of a petroleum franchise under notice of 

termination because it was an obstacle to the accomplishment of Congress’ interest in a 

uniform policy for petroleum franchise termination); Hawaii Newspaper Agency 

Ltd.Ptshp v. Bronster, No. 95-00635, 1996 U.S. Dist. LEXIS 1082 (D. Haw. Jan. 3, 1996) 

(finding conflict preemption of state regulation that imposed additional reporting 

requirements to maintain antitrust immunity for newspaper Joint Operating Agreements 

which were not contemplated by Congress in enacting the federal reporting 

requirements). 

Murphy’s motion to amend should be denied because the proposed amendment 

would be futile; it alleges claims that seek to impose local standards that supersede 

federally prescribed options under 24 C.F.R. § 3280.504(b).8

 

8

 Southern incorporates by reference its motion for judgment on the pleading and its reply 

brief in connection with the futility argument. Fed.R.Civ.P. 10(c). 

13

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CONCLUSION 

Murphy’s motion to amend the complaint should be denied by this Court. If this 

Court interprets Murphy’s proposed amended allegations as substantive changes, then his 

motion lacks good cause under Rule 16, and is prejudicial under Rule 15. Fed.R.Civ.P. 

15 and 16. If this Court finds that Murphy’s amended pleadings do not present 

substantive changes, then his motion is due to be denied under the futility doctrine of 

Rule 15. 

 Respectfully submitted, 

/s W. Scott Simpson__ 

W. Scott Simpson, Attorney for Defendant 

Southern Energy Homes, Inc. 

OF COUNSEL: 

RITCHEY & SIMPSON, PLLC 

3288 Morgan Drive, Suite 100 

Birmingham, Alabama 35216 

Telephone: (205) 876-1600 

Facsimile: (205) 876-1616 

Email: wssimpson@ritcheysimpson.com 

Lee E. Bains, Jr. 

Thomas W. Thagard, III 

Edward S. Sledge, IV 

MAYNARD, COOPER & GALES, P.C. 

1901 6th Avenue North, Suite 2400 

AmSouth/Harbert Plaza 

Birmingham, Alabama 35203-2618 

Telephone: (205) 254-1000 

Facsimile: (205) 254-1999 

14

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15

CERTIFICATE OF SERVICE

 I hereby certify that on the 13th day of June, 2007, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following: 

• Charles Lance Gould

lance.gould@beasleyallen.com holly.stroh@beasleyallen.com 

• Carter Gibson Vance

gibson.vance@beasleyallen.com heidi.bowers@beasleyallen.com 

 /s W. Scott Simpson 

 Of Counsel 

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