01529059.1

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. )

DEFENDANT SOUTHERN ENERGY HOMES, INC.’S

SUR-REPLY IN SUPPORT OF

MOTION FOR JUDGMENT THE PLEADINGS

COMES NOW Defendant Southern Energy Homes, Inc. (“Southern Energy”) and hereby

files this Sur-Reply in Support of its Motion for Judgment on the Pleadings in this case:

1. The Plaintiff in this case filed a Complaint, alleging a specific defect in the design

of the wallboards in his manufactured home. (Murphy doc. 1) The specific nature and character

of Plaintiff’s defect theory is very clearly explained in his Memorandum in Opposition to

Defendants’ Motion for Judgment on the Pleadings. (Murphy doc. 36)

2. The same plaintiffs’ counsel, in association with Louisiana counsel, had

previously filed a class action complaint in the Western District of Louisiana styled, Russell J.

Guidroz, Jr., et al. v. Champion Enterprises, Inc. and Redman Homes, Inc., Civil Action No.

6:05CV1148 (the “Guidroz” case),

1

alleging the same defect on a class basis. (Guidroz doc. 1)

3. The Defendants in the Guidroz case filed a Rule 12(b) Motions to Dismiss on

federal preemption grounds which the Guidroz Court granted by way of a well reasoned,

1

In order to reduce supporting paperwork, the pleadings and orders in the Guidroz case referenced herein will cite

to the Pacer document number instead of attaching those documents as exhibits. Copies of these pleadings and

orders can be provided to the Court if it would prefer.

Case 2:06-cv-00618-MEF-SRW Document 59-3 Filed 08/15/2007 Page 1 of 5
01529059.1 2

carefully researched and extensively analyzed Judgment of Dismissal. (Guidroz docs. 8, 9, 30

and 31)

4. Southern Energy then filed a Motion for Judgment on the Pleadings with this

Honorable Court, asserting the same preemption arguments that were presented to the Guidroz

Court. (Murphy docs. 32 and 33)

5. Approximately 10 days after the Guidroz Court dismissed the original Guidroz

class action complaint on preemption grounds, the Guidroz plaintiff moved to amend his

complaint to recast his defect allegations in an attempt to circumvent preemption. (Guidroz doc.

32)

6. The Guidroz Court permitted this amendment of the Complaint. (Guidroz doc.

36) Defendants in the Guidroz case then moved to dismiss the amended complaint. (Guidroz

doc. 38)

7. Following suit, Plaintiff’s counsel in the Murphy case filed a similar Motion for

Leave to File Amended Complaint in this Court, similarly seeking to recast his defect allegations

in an attempt to circumvent preemption. (Murphy doc. 38)

8. Importantly, this Honorable Court summarily denied Mr. Murphy’s Motion to

Amend Complaint on procedural grounds. (Murphy doc. 52)

9. Subsequently, the Guidroz Court in its August 1, 2007 Minutes of Hearing and

Order denied Defendants’ motion to dismiss the Guidroz plaintiff’s Amended Complaint.

2

(Guidroz doc. 47)

10. Of critical note for this Court, the Court in Guidroz specifically and expressly

did NOT in any way set aside or withdraw its prior Order, dismissing the original class action

2 However, in demonstrating the Court’s doubt as to whether the amended allegations will ultimately circumvent

the preemption defense, the Guidroz Court, sua sponte, refused to allow any class discovery going forward, and in

fact, limits any and all discovery to the specific design defects on the named Plaintiff’s manufactured home.

Case 2:06-cv-00618-MEF-SRW Document 59-3 Filed 08/15/2007 Page 2 of 5
01529059.1 3

complaint on the preemption grounds. Instead, the Court steadfastly stood by that preemption

order. In its Minutes and Order of May 17, 2007 (Guidroz doc. 36), the Court stated:

This court’s January 26, 2007 Judgment of Dismissal is amended

to a Partial Judgment of Dismissal, granting the Motions to

Dismiss filed on behalf of Redman Homes, Inc. and Champion

Enterprises, Inc, and thereby dismissing all claims asserted in

the plaintiffs’ Original Class Action Complaint. The Claims

asserted in the Amending complaint allowed to be filed this date

are not affected by this ruling. (emphasis added)

11. At Paragraph No. 2 of Mr. Murphy’s recent Motion for Leave to Amend (Murphy

doc. 57), Mr. Murphy argues that this Court should deny the Motion for Judgment on the

Pleadings on grounds that the Guidroz Court recently “entered an order denying Defendants’

Motion to Dismiss because the plaintiff’s claims were not barred by federal preemption.”

12. Based upon the above, it is abundantly clear that this characterization of the

Guidroz August 1, 2007 Minutes of Hearing and Order is inaccurate.

13. As shown above, the original Guidroz class action complaint, the theories of

which are identical to Mr. Murphy’s current complaint before this Court, was fully and

completely dismissed on federal preemption grounds. That complaint and the claims therein

remain dismissed.

14. At Paragraph No. 9 of his Motion for Leave to Amend, Mr. Murphy goes on to

state that: “Thus, the only two courts to rule on this issue to date have denied Defendants’

preemption based arguments....”

15. This statement is also inaccurate. As shown above, the Guidroz court has

affirmed and readopted its preemption order dismissing the Guidroz Plaintiff’s original class

action complaint. Since the Guidroz Plaintiff’s original complaint asserts the same claims and

theories as Mr. Murphy’s current complaint, the Guidroz Judgment of Dismissal still stands as

Case 2:06-cv-00618-MEF-SRW Document 59-3 Filed 08/15/2007 Page 3 of 5
01529059.1 4

articulate, well analyzed and thoroughly researched, persuasive precedent to this Court, clearly

showing that the claims presented by Mr. Murphy in this case are barred by federal preemption.

WHEREFORE, premises considered, Defendant Southern Energy Homes, Inc. hereby

respectfully requests that this Honorable Court grant its Motion for Judgment on the Pleadings.

_s/Thomas W. Thagard III ______________

Lee E. Bains, Jr. (BAI005)

Thomas W. Thagard, III (THA006)

Edward S. Sledge IV (SLE008)

Attorneys for Southern Energy Homes, Inc.

OF COUNSEL:

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

W. Scott Simpson

RITCHEY & SIMPSON, PLLC

3288 Morgan Drive, Suite 100

Birmingham, Alabama 35216-3084

205.876.1600 (Telephone)

205.876.1616 (Facsimile)

wssimpson@ritcheysimpson.com

Case 2:06-cv-00618-MEF-SRW Document 59-3 Filed 08/15/2007 Page 4 of 5
01529059.1 5

CERTIFICATE OF SERVICE

I hereby certify that on August 15th, 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, Esq.

s/Thomas W. Thagard III

Of Counsel

Case 2:06-cv-00618-MEF-SRW Document 59-3 Filed 08/15/2007 Page 5 of 5