IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

HAROLD KELLY MURPHY, * 

 * 

 Plaintiff, * 

 * 

v. * Case No. 06-CV-618-MEF 

 * 

SOUTHERN ENERGY HOMES, INC. * 

 * 

 Defendant. * 

MOTION FOR LEAVE TO AMEND

COMES NOW, Plaintiff, by and through counsel of record, and moves this 

Honorable Court to enter an order allowing Plaintiff leave to amend his Opposition to 

Defendant’s Motion for Judgment on the Pleadings and in support thereof states as 

follows: 

1. Pursuant to this Court’s Order dated May 11, 2007 (Doc. #34), Plaintiff 

was given until May 24, 2007 to file a response to Defendant’s Motion for Judgment on 

the Pleadings (Doc. #32). 

2. On August 1, 2007, the United State District Court for the Western 

District of Louisiana in the case captioned Guidroz v. Champion Enterprises, Inc., Civil 

No. 05-1148 entered an order denying Defendants’ Motion to Dismiss because the 

plaintiff’s claims were not barred by federal preemption. 

3. Defendant herein has filed a Motion for Judgment on the Pleadings relying 

on the prior ruling in Guidroz and a letter dated January 19, 2007 from an individual at 

HUD that Plaintiff’s claims were barred by federal preemption. That motion has been 

briefed and is pending before this Court. 

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4. The arguments advanced by defendants in Guidroz on preemption were 

nearly identical to those advanced by the Defendant in this case, and the Defendant 

gleefully argued this point itself to this Court that Guidroz was persuasive authority that 

should be followed. (Defendant’s Brief in Support of Motion for Judgment on the 

Pleadings, p. 2 (Doc. #33) and Defendant’s Reply Brief, p. 3 (Doc. #39)) 

5. On August 1, 2007, the court in Guidroz denied Defendants’ Rule 12(b)(6) 

Motion to Dismiss Amended Complaint based on federal preemption. See attached 

Exhibit A (Order of United States Magistrate Judge C. Michael Hill dated August 1, 

2007). 

6. The court considered the HUD letter which was filed as an exhibit and 

relied upon by the defendants but agreed with plaintiffs that the Complaint, as amended, 

was not preempted and thus necessarily that the HUD letter does not stand for what 

defendants were trying to argue it did. 

7. As the Defendant argued here, Plaintiff’s claims herein are substantially 

similar and are likewise not barred by preemption because a HUD Code manufactured 

home is not performing in compliance with the HUD Code if water is condensing in the 

walls. 

8. Additionally, another court has denied the identical defense argument 

based on federal preemption. On June 25, 2007, Judge William Shashy of the Circuit 

Court for Montgomery County, Alabama denied identical arguments in Defendants’ 

Motion to Dismiss in the case of Shannon Killough v. Fleetwood Enterprises, Inc., et al. 

Case No. 03-cv-2006-001539. See attached Exhibit B. 

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9. Thus, the only two courts’ to rule on this issue to date have denied 

Defendant’s preemption based arguments (not counting every single reported opinion to 

date relating to the HUD Code and manufacturing housing which has denied any 

preemption based arguments). 

WHEREFORE, premises considered, Plaintiff prays this Honorable Court will 

grant its motion for leave to amend its Response to Defendant’s Motion for Judgment on 

the Pleadings and further deny Defendant’s Motion for Judgment on the Pleadings based 

upon federal preemption and grant such other relief as is just. 

/s/ C. Lance Gould 

C. Lance Gould (ASB-0913-G66C) 

Attorney for Plaintiff 

OF COUNSEL: 

BEASLEY, ALLEN, CROW, 

METHVIN, PORTIS & MILES, P.C.

Post Office Box 4160 

Montgomery, AL 36103 

(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 7th 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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