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 IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

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

submits the following Brief in Support of its Motion for Judgment on the Pleadings. 

I. Introduction

This law suit is one among dozens of individual and class action cases pending in 

federal courts, state courts and private arbitrations in Alabama and Louisiana. In these 

actions, plaintiffs claim that manufactured homes produced by most major manufactured 

housing companies, and sold into certain coastal and inland regions from Texas to North 

Carolina,1

 are defective because the exterior walls of such homes are constructed with 

interior vapor barriers. This theory of recovery overlooks the fact that walls with interior 

vapor barriers conform to the federal building code for manufactured homes. 24 C.F.R. § 

 

1

 These areas are known as the “humid and fringe zone climates.” The counties included 

in these regions were identified in the Federal Register at 67 F.R. 20402-20403 (April 24, 

2002), and are now listed in 24 C.F.R. § 3290.504(b)(4). 

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3280.504(b)(1).2

 Accordingly, Southern is due judgment on the pleadings because 

Plaintiff’s claims are preempted by federal law. 

Southern is not aware of any other Alabama court that has decided the issue of federal 

preemption in the context of a manufactured home wallboard claim. This issue appears 

to be one of first impression in the Eleventh Circuit. However, on January 26, 2007, the 

United States District Court for the Western District of Louisiana, in Russell J. Guidroz, 

Jr. v. Champion Enterprises, Inc., Civil Number 05-1148 (referred to hereafter as 

“Guidroz”), dismissed a class action complaint with nearly identical claims based on the 

defense of federal preemption, among other reasons. (See Guidroz Opinion, attached 

hereto as Exhibit A)3

 

Based on Guidroz,

4

 and other authorities cited herein, Southern respectfully requests 

that this Court: (1) hold that the Plaintiff’s claims are preempted by federal law; and (2) 

enter an order granting Southern judgment on the pleadings, pursuant to Fed.R.Civ.P. 

12(c). 

II. Motion for Judgment on the Pleadings Standard 

“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 

 

2 Manufactured homes are regulated by the Manufactured Home Construction and Safety 

Standards Act, 42 U.S.C. § 5401 et seq. (“MHCSSA”). 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. 

3

 Plaintiffs have moved the court for leave to amend their complaint and allege a claim 

that is not preempted. 

4

 Pursuant to Fed.R.Civ.P. 10(c), Southern incorporated each of the arguments and 

authorities discussed in Guidroz, as if fully set forth herein. 

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(11th Cir. 1998); Fed.R.Civ.P. 12(c). A court accepts 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, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 

(1957)). 

III. Factual Background 

 In December, 2003, the plaintiff, Harold Kelly Murphy (“Murphy”), purchased a 

new Southern double-wide manufactured home for $45,639.90. (Complaint, ¶ 7)5

 

Murphy alleges that “[t]he manufactured homes designed and manufactured by 

[Southern], including the manufactured home purchased by [Murphy], have an improper 

design and construction of exterior walls.” (Complaint, ¶ 4) It is undisputed that 

Southern constructed the exterior walls of Murphy’s home with an interior vapor barrier, 

which is expressly permitted under the HUD Code. 24 C.F.R. § 3280.504(b)(1). 

 Murphy alleges the following claims: (1) violation of the Magnuson Moss Act; 

(2) breach of express warranty; (3) breach of the implied warranty of merchantability; 

(4) breach of the implied warranty of fitness for a particular purpose; (5) breach of the 

implied warranty of habitability; (6) negligence; (7) wantonness; (8) unjust enrichment; 

(9) fraudulent concealment; (10) negligent/wanton fraudulent concealment; and (11) 

violation of Alabama’s extended manufacturer’s liability doctrine. (Complaint, pp. 4-11) 

All such claims arise out of the factual allegation that the exterior walls of the home are 

 

5

 The Complaint is located at Exhibit C to Southern’s Notice of Removal. 

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designed with interior vapor barriers. Murphy seeks compensatory damages, attorney’s 

fees, costs and punitive damages, or alternatively, that Southern disgorge all monies 

received in the transaction because the home is “worthless.” (Complaint, pp. 4-11). 

 Southern pled “federal preemption” as an affirmative defense in its Answer. 

(Answer, ¶ 57) 

IV. Argument

A. The Applicable HUD Code Provisions

 Exterior wall design in manufactured homes is governed by 24 Code of Federal 

Regulations, Section 3280.504(b). In the 2003 time period (when Murphy purchased his 

home) the HUD Code set forth three different exterior wall design options: 

(1) Exterior walls; 

(2) Exterior walls must have a vapor retarder6

 with a permeance no greater 

than 1 perm (dry cup method) installed on the living space side of the 

wall; 

(3) Unventilated wall cavities must have an external covering and/or 

sheathing that forms the pressure envelope. The covering and/or sheathing 

must have a combined permeance of not less than 5.0 perms. In the 

absence of test data, combined permeance is permitted to be computed 

using the following formula: P total = (1/[(1/P[1]) + (1/P[2])]), where P[1] 

and P[2] are the permeance values of the exterior covering and sheathing 

in perms. Formed exterior siding applied in sections with joints not 

 

6

 The terms “vapor retarder” and “vapor barrier” are interchangeable. 

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caulked or sealed, are not considered to restrict water vapor transmission; 

or 

(4) All cavities must be constructed so that ventilation is provided to 

dissipate any condensation occurring in these cavities. 

24 C.F.R. § 3280.504(b).7

 Additionally, on April 24, 2002, HUD issued a “waiver,” outside the HUD 

Code, which gave manufacturers a fourth option. Under the waiver, 

manufacturers had the option of constructing exterior walls with exterior vapor 

barriers in the humid and fringe climate zones. (67 F.R. 20400–20403 (April 24, 

2002)). “Waiver” is a term of art under the HUD Code: “[w]here a waiver has 

been issued, the requirements of the Federal Standard to which the waiver relates 

may be met either by meeting the specifications set out in the Standard or by 

meeting the requirements of the waiver published in the Federal Register.” 24 

C.F.R. § 3280.8. Thus, Southern could have selected from any of four different 

wall designs in the Murphy home: (1) walls with interior vapor barriers (Section 

504(b)(1)); or (2) walls with unventilated exterior walls and no vapor barrier 

(Section 504(b)(2)); or (3) ventilated exterior walls (Section 504(b)(3)); or (4) 

walls with exterior vapor barriers under the waiver (67 F.R. 20400–20403 (April 

24, 2002)). 

 

7

 Section 3280.504(b) now sets forth a fourth option at Section 504(b)(4); 

however, that option did not become available until May 30, 2006. The Murphy’s 

home was sold in 2003; therefore, Section 504(b)(4) did not apply. 

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Importantly, HUD never placed a geographical limitation on the location 

of homes constructed with interior vapor barriers under Section 504(b)(1) (as in 

the Murphy home). The HUD Code has expressly permitted the use of interior 

vapor barriers in homes throughout the country since the inception of the HUD 

Code itself in 1975. 40 F.R. 58752 (December 18, 1975).8

 

Murphy’s claims are preempted because the exterior walls of his home 

comply with the HUD Code. As discussed fully in the next section, the HUD 

Code, and its implementing statutes, set forth preemption provisions that preclude 

the application of standards of care that are not “identical to” the HUD Code. 

Thus, private litigants cannot maintain suits against manufacturers based on a 

manufacturer’s compliance with federal law.

B. Federal Preemption Standards

The preemption doctrine is based on the Supremacy Clause of Article VI of the 

U.S. Constitution, and provides that federal legislation enacted pursuant to Congress’ 

constitutionally delegated authority can nullify conflicting state or local actions. U.S. 

Const. Art VI, § 2. Federal administrative regulations have the same preemptive effect as 

federal statutes. Fidelity Federal Savings & Loan Assoc. v. de la Cuesta, 458 U.S. 141, 

153-54 (1982); Turner v. PFS Corp., 674 So. 2d 60, n.1 (Ala. 1995)(recognizing this 

principle in a HUD Code case). Furthermore, federal preemption displaces not only state 

statutory and administrative laws, but also judicial decisions based on tort law. San 

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959). 

 

8

 By contrast, homes with exterior vapor barriers built under the waiver may not 

be sold outside of the humid and fringe zone climates. 67 F.R. 20401 (April 24, 

2002); 24 C.F.R. § 3280.504(b)(4). 

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Federal law may preempt state or local law in any of three ways: (1) expressly; 

(2) impliedly where Congress occupies an entire field of regulation; and (3) impliedly 

where a local law conflicts with federal law. Michigan Canners and Freezers Assoc., 

Inc. v. Agricultural Marketing and Bargaining Bd., 467 U.S. 461, 470 (1984). Express 

preemptive language may be found on the face of a statute, in its legislative history and in 

regulations promulgated pursuant to law. Howard v. Uniroyal, Inc., 719 F.2d 1552, 1556 

(11th Cir. 1983). The preemptive reach of federal regulations is a question of 

departmental intent, and the opinion of the agency is entitled to some weight. Geier v. 

American Motor Honda Co., Inc., 529 U.S. 861, 883 (2000). In the absence of express 

pre-emptive language, Congress may indicate an intent to occupy an entire field of 

regulation; in which case, the states must leave all regulatory activity in that area to the 

federal government. E.g., Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 

U.S. 141, 153 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 

Additionally, if Congress has not displaced state regulation entirely, it may nonetheless 

pre-empt state law to the extent that the state law actually conflicts with federal law. 

English v. General Electric Co., 496 U.S. 72, 79 (1990). This is known as conflict 

preemption. Such a conflict arises when compliance with both state and federal law is 

impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 

(1963), or when the state law "stands as an obstacle to the accomplishment and execution 

of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 

(1941). Federal law preempts Murphy’s claims both expressly and impliedly.9 Express 

 

9

 Southern does not argue that the HUD Code gives rise to a field preemption argument. 

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preemptive language is found both in the MHCSSA, and the HUD Code. 42 U.S.C. § 

5403(d); 24 C.F.R. § 3282.11. 

In 1974, Congress enacted the MHCSSA in order to regulate construction 

standards in the manufactured housing industry. The purposes of the MHCSSA are: (1) 

to protect the quality, durability, safety and affordability of manufactured homes; (2) to 

facilitate the availability of affordable manufactured homes and to increase 

homeownership; (3) to provide for the establishment of practical, uniform, and, to the 

extent possible, performance-based Federal construction standards for manufactured 

homes; (4) to encourage innovative and cost-effective construction techniques for 

manufactured homes; (5) to protect residents of manufactured homes with respect to 

personal injuries and property damage in manufactured housing, consistent with the other 

purposes of the Act; (6) to establish a balanced consensus process for the development, 

revision, and interpretation of Federal construction and safety standards for manufactured 

homes and related regulations for the enforcement of such standards; (7) to ensure 

uniform and effective enforcement of Federal construction and safety standards for 

manufactured homes; and (8) to ensure that the public interest in, and need for, affordable 

manufactured housing is duly considered in all determinations relating to the Federal 

standards and their enforcement. 42 U.S.C. § 5401. 

The MHCSSA sets forth an express preemption provision that displaces any local 

standard that is not “identical to” the federal standard: 

(d) Supremacy of Federal standards. Whenever a Federal manufactured 

home construction and safety standard established under this title [42 

USCS §§ 5401 et seq.] is in effect, no State or political subdivision of a 

State shall have any authority either to establish, or to continue in effect, 

with respect to any manufactured home covered, any standard regarding 

construction or safety applicable to the same aspect of performance of 

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such manufactured home which is not identical to the Federal 

manufactured home construction and safety standard. 

42 U.S.C. § 5403. 

 HUD promulgated a regulation that implemented the preemption policy of 

Congress. HUD echoed congressional intent through a regulation that expressly 

preempts any local standard that is not “identical to” the federal construction standard: 

§ 3282.11 Preemption and reciprocity. 

(a) No State manufactured home standard regarding manufactured home 

construction and safety which covers aspects of the manufactured home 

governed by the Federal standards shall be established or continue in 

effect with respect to manufactured homes subject to the Federal standards 

and these regulations unless it is identical to the Federal standards. . . 

24 C.F.R § 3282.11(a). 

In late December 2000, Congress amended and expanded the scope of the 

MHCSSA’s preemption clause to provide that federal preemption is to be broadly and 

liberally construed: 

Federal preemption under this subsection shall be broadly and liberally 

construed to ensure that disparate State or local requirements or standards 

do not affect the uniformity and comprehensiveness of the standards 

promulgated under this section nor the Federal superintendence of the 

manufactured housing industry as established by this title. 

42 U.S.C. § 5403(d); Burton v. City of Alexander, No. 99-D-1233-E, 2001 U.S. Dist. 

LEXIS, 6651, *26 (M.D. Ala. March 20, 2001). 

 Not all local standards are preempted under the HUD Code. The MHCSSA sets 

forth a savings clause, which provides that “[c]ompliance with any Federal manufactured 

home construction or safety standard . . . does not exempt any person from any liability 

under common law. 42 U.S.C. § 5409(c). 

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 Furthermore, the MHCSSA also sets forth a state court jurisdiction provision, 

which provides: 

Nothing in this chapter shall prevent any State agency or court from 

asserting jurisdiction under State law over any manufactured home 

construction or safety issue with respect to which no Federal manufactured 

home construction and safety standard has been established pursuant to the 

provisions of section 5403 of this title. 

42 U.S.C. § 5422(a). 

In 1997, HUD published a guideline, clarifying its position on HUD Code 

preemption. There, HUD confirmed that federal preemption doctrine precludes 

state laws from interfering with specific aspects of federal performance standards 

in the HUD Code: 

Additional questions arise in situations in which the state or 

locality attempts to apply its own building or safety code to the 

manufactured home. Under § 604 of the Act, State law is 

preempted whenever there is a state performance standard 

regarding construction and safety that is not identical to an 

established federal standard. On the other hand, § 623 of the Act 

provides that Federal law does not preempt State construction or 

safety standards for which a Federal standard has not been 

established. Thus, for there to be Federal preemption, there must 

be a specific aspect of a Federal performance standard which 

duplicates a local standard. 

Federal preemption cannot be based upon a general purpose of the 

Act, or the need for national uniformity in the manufactured 

housing industry. The courts have applied this “aspect of 

performance” standard in analogous situations by focusing not on 

the purpose or scope of the Act, but, rather, on the specific 

requirements of an established Federal standard. If the Federal 

standard is encompassed or impacted by the State requirement, the 

State law is preempted. 

62 F.R. 3456 (Jan. 23, 1997). 

 

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1. Express Preemption

The leading case on HUD Code preemption in this Circuit is Scurlock v. City of 

Lynn Haven, Florida, 858 F.2d 1521 (11th Cir. 1988). In Scurlock, the Eleventh Circuit 

Court of Appeals held that Section 5403(d) of Title 42 expressly preempted a local 

zoning ordinance that imposed greater safety requirements for manufactured homes than 

those mandated by federal law. Scurlock, 858 F.2d at 1522-24. According to the court, 

local standards “that differ in any respect” from the standards developed by HUD are 

expressly preempted. Id. 

The HUD Code also preempts common law claims that seek to impose standards 

of care that differ from the HUD Code. In Turner v. PFS Corp., 674 So. 2d 60 (Ala. 

1995), the Alabama Supreme Court held that common law claims that apply the HUD 

Code standard of care are not preempted; whereas common law claims that seek to 

impose a “non-identical” state standard of care are preempted. Id. at 63; see also 

Woolridge v. Redman Homes, Inc., 792 F. Supp. 1469 (N.D. Tex. 1991). 

Murphy’s claims are expressly preempted here because he seeks to impose a nonidentical state standard of care in this case. Murphy would have this court retroactively 

re-write the HUD Code to eliminates Section 3280.504(b)(1) altogether in the humid and 

fringe zone climates, and then hold Southern liable for violating the new “Murphy” 

standard. Federal law does not permit such a result because Murphy seeks to impose a 

local standard that differs from the HUD Code. Accordingly, Southern respectfully 

requests that this court grant Southern judgment on the pleadings based on the express 

preemption doctrine.

2. Implied Preemption

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 In Guidroz, the federal court for the Western District of Louisiana held that state 

law claims based on a manufacturer’s use of interior vapor barriers in the humid and 

fringe zone climates were impliedly preempted under conflict preemption principles. 

Guidroz, at Exhibit A, pp. 22-29. In so holding, the court relied extensively on a United 

States Supreme Court decision, Geier v. American Honda Motor Co., Inc., 529 U.S. 861 

(2000). 

 In Geier, the plaintiff filed suit to recover money damages arising out of an 

automobile accident. Plaintiff’s car was equipped with a seat belt, but not a driver’s-side 

airbag. At the time of the Geier suit, federal law permitted manufacturers to design cars 

either with seat belts or airbags. Id. at 864-65. Like the MHCSSA, the federal law at 

issue in Geier, the National Traffic and Motor Vehicle Safety Act of 1966, set forth both 

an express preemption provision and a savings clause that is nearly identical the same 

provisions in the MHCSSA. Guidroz, at Exhibit A, p. 18. The United States Supreme 

Court held that the plaintiff’s claims were impliedly preempted because the rule of state 

tort law advocated by the plaintiff would have stood as an obstacle to the accomplishment 

of federal objectives. Geier, 529 U.S. at 881. If the plaintiff’s claims were allowed to 

proceed, then a state rule of law would effectively eliminate one of the chosen federal 

methods of design. Federal preemption law does not permit such a result. Id; Alessi v. 

Raybestos-Manhattan, Inc., 451 U.S. 504, 524 (1981) (holding that the Employee 

Retirement Income Security Act of 1974 preempted state law which "eliminates one 

method for calculating pension benefits-- integration -- that is permitted by federal law"); 

Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 155 (1982)(a 

state common law rule cannot take away the flexibility provided by a federal regulation, 

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and cannot prohibit the exercise of a federally granted option); Griffith v. General Motor 

Corp., 303 F.3d 1276, 1280-82 (11th Cir. 2002)(same); Hurley v. Motor Coach Industries, 

Inc., 222 F.3d 377, 381-82 (7th Cir. 2000)(same); Irving v. Mazda Motor Corp., 136 F.3d 

764, 769 (11th Cir. 1998)( “a state cannot impose common law damages on individuals 

for doing what a federal act or regulation ‘authorized them to do.’”)(quoting Chicago & 

N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318-320 (1981)). 

 The same concerns are raised by Murphy’s claims. Murphy seeks to eliminate 

one of the federally mandated choices for exterior wall design – interior vapor barriers 

under Section 3280.504(b)(1). Such a result would not only re-write the HUD Code 

retroactively, but also second-guess HUD’s decision not to limit the use of interior vapor 

barriers throughout the United States. Guidroz, at Exhibit A, pp 28-29. Murphy should 

not be permitted to impose a local tort standard that conflicts with HUD’s rule-making 

authority and eliminates federally-approved construction design choices. 

V. Conclusion

 Southern respectfully urges this court to grant Southern judgment on the 

pleadings, pursuant to Fed.R.CivP. 12(c), because federal law expressly and/or impliedly 

preempts Murphy’s claims. 

 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) 822-3422 

Facsimile: (205) 822-3618 

Email: wssimpson@bellsouth.net

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CERTIFICATE OF SERVICE

 I hereby certify that on 9th of May, 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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