IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31355

Summary Calendar

IN RE: CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY 

LITIGATION

_________________________________________________________________

RALPH MANGIARELLI, JR., 

 Plaintiff - Appellee

v.

SIXTY-FIFTH AND ONE, L.L.C.; BANNER SUPPLY COMPANY 

POMPANO, L.L.C., 

 Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:09-MD-2047

Before JOLLY, PRADO, and ELROD, Circuit Judges.

PER CURIAM:*

Sixty Fifth and One, LLC (“Sixty Fifth”) and Banner Supply Company 

Pompano, LLC (“Banner”) appeal the district court’s denial of their motions to 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 2, 2015

Lyle W. Cayce

Clerk

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enjoin Plaintiff Ralph Mangiarelli’s class-action claims, which are currently 

pending in Florida state court. Sixty Fifth and Banner contend that the 

settlement agreements reached in previous federal class actions cover 

Mangiarelli’s current claims. Because the district court properly concluded 

that Mangiarelli’s claims do not fall within the scope of the previous settlement 

agreements, we affirm.

I.

This appeal concerns Chinese-manufactured drywall (“Chinese 

Drywall”),1 which has long been a subject of litigation in the Fifth Circuit. In 

2009, the Judicial Panel on Multi-District Litigation transferred all federal 

actions alleging damages resulting from Chinese Drywall to the United States 

District Court for the Eastern District of Louisiana. See In re ChineseManufactured Drywall Prods. Liab. Litig., 2:09-MD-2047-EEF-JCW (E.D. La. 

2009). Both Banner and Sixty Fifth were defendants in class actions 

consolidated by the Multi-District Litigation Panel, and both defendants 

ultimately settled the class-action claims against them. Sixty Fifth’s and 

Banner’s separate settlement agreements received final approval from the 

district court in 2013. These settlement agreements are referred to by the 

parties here as the “Global” and “Banner” settlement agreements. The 

question before us is whether the Global and Banner settlement agreements 

cover Mangiarelli’s current class-action claims, which, as we have noted, are 

pending in Florida state courts. 

Mangiarelli owns a condominium unit at Lauderdale One Condominium 

Complex in Fort Lauderdale, Florida. Sixty Fifth developed Lauderdale One, 

 

1 From 2005–2008, Chinese Drywall was imported into the United States and used in 

the construction of thousands of buildings. Those who inhabited buildings containing 

Chinese Drywall began to notice corrosion of metal building components, failure of electrical

wiring and appliances, and, at least in some cases, physical ailments, including skin irritation 

and respiratory problems.

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and Banner supplied the drywall used to construct the complex. Lauderdale 

One includes two separate condominium buildings, referred to as “Building 

One” and “Building Two.” Only Building One was constructed using Chinese 

Drywall. Mangiarelli owns a condo unit in Building Two, which has never 

contained any Chinese Drywall. Nevertheless, Mangiarelli and other Building 

Two residents filed a class action complaint in Florida state court. Mangiarelli, 

the putative class representative, asserts that his condominium has lost 

market value as a result of the stigma of being associated with Building One.

Invoking the district court’s continuing jurisdiction over matters related 

to the settlement agreements, Sixty Fifth and Banner asked the district court 

to enjoin Mangiarelli’s loss of market value claims, or “stigma” claims. They 

urged that the claims were covered by the Global and Banner settlement 

agreements. They further argued that Mangiarelli could not bring the claims 

individually because he did not opt out of the Global and Banner settlement 

agreements. The district court, however, rejected these arguments and found 

that Mangiarelli’s claims did not fall within the scope of the settlement 

agreements. Accordingly, it denied Sixty Fifth and Banner’s motions to enjoin

the Florida proceeding.2 Sixty Fifth and Banner moved to reconsider, which 

the district court also denied. Sixty Fifth and Banner bring this appeal.

II.

Although the Court usually reviews a district court’s denial of injunctive 

relief under the abuse of discretion standard, we review de novo the district 

court’s interpretation of a class action settlement agreement. See In re 

Deepwater Horizon, 732 F.3d 326, 332 (5th Cir. 2013) (citing Waterfowl LLC v. 

 

2 The district court initially granted Banner’s motion to enjoin, as the motion was not 

opposed. The district court, however, rescinded its prior grant of Banner’s motion to enjoin 

when ruling on Sixty Fifth’s motion, asserting that the reasons for denying Sixty Fifth’s 

motion “appl[ied] with equal force” to Banner. 

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United States, 473 F.3d 135, 141 (5th Cir. 2006)). Pursuant to the district 

court’s order approving the settlement agreements, Louisiana law governs 

interpretation of the Global settlement agreement, and Florida law governs 

interpretation of the Banner settlement agreement. The parties agree, 

however, that there are no important distinctions between those states’ laws 

as relates to this appeal. 

III.

Sixty Fifth and Banner urge that the district court erred in denying their 

motions to enjoin the state court proceedings, contending that Mangiarelli’s 

stigma claims fall within the scope of the Global and Banner settlement 

agreements. Sixty Fifth and Banner point to the broad class definition in each 

settlement agreement. The Global agreement defines the settlement class as 

consisting of “[a]ll persons or entities . . . with claims, known or unknown, 

arising from or related to actual or alleged Chinese Drywall purchased, 

imported, supplied, distributed, marketed, installed, used, sold or in any way 

alleged to be within the legal responsibility of [Sixty Fifth].” The Banner 

settlement agreement contains a similar class definition provision, defining 

the class as “[a]ll persons or entities with claims, known and unknown, against 

[Banner] arising from, or otherwise related to, Chinese Drywall purchased 

from, supplied, distributed, marketed, used, sold and/or delivered by Banner.”

The district court acknowledged that the settlement agreements contain

broad class definitions. The district court noted, however, that language 

elsewhere in the settlement agreements required that a class member have a 

significant connection to an “Affected Property.” Banner and Sixty Fifth 

concede that Mangiarelli’s building, Building Two, is not an “Affected 

Property” because it is not alleged to contain Chinese Drywall. Still, the 

appellants contend that the settlement agreements’ class definitions are 

distinct from any provision concerning “Affected Property”; thus an individual

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does not need to own, inhabit, or otherwise have a close tie to an Affected 

Property to be considered a class member under the agreements. We disagree. 

When deciding whether Mangiarelli’s stigma claims are within the scope 

of the Global and Banner settlement agreements, the “Class Member” 

definitions are not considered in isolation; instead they are to be considered in 

the context of the agreements as a whole. See Sw. Eng’g Co. v. Cajun Elec. 

Power Co-op., Inc., 915 F.2d 972, 980 (5th Cir. 1990) (stating that, under 

Louisiana law, a court must interpret “each provision in a contract . . . in the 

light of other provisions so that each is given the meaning suggested by the 

contract as a whole” (citing La. Civ. Code art. 2050)); see also Khosrow Maleki, 

P.A. v. M.A. Hajianpour, M.D., P.A., 771 So. 2d 628, 631 (Fla. 4th Dist. Ct. App. 

2000) (“In construing a contract, the legal effect of its provisions should be 

determined from the words of the entire contract.”).

Although the class definitions in the Global and Banner agreements 

purport to include all persons with claims arising from or related to Chinese 

Drywall, language elsewhere in the agreements limits these broad definitions.

As the district court pointed out, Section 4.3 of the Global agreement requires 

that “Class Members agree . . . to apply the settlement proceeds they 

receive . . . to assist in the remediation of their Affected Property allegedly 

damaged by Chinese Drywall.” In addition, the Global agreement’s opt-out 

provisions contemplate only those plaintiffs seeking damages to an “Affected 

Property.” Section 5.6.2 states that “in the event a Class Member opts out from 

this Settlement, all Parties reserve all claims, defenses and coverage 

positions . . . against any person or entity alleged to have any liability related 

to the Chinese Drywall in the Affected Property of that opt-out Class Member.” 

See also Global Agreement § 8.1.1 (stating that “Class Members with claims 

involving more than one Affected Property may opt-out on a property-byproperty basis.”). The claimant registration form, approved by the district 

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court as part of the settlement, requires that a claimant submit information 

regarding his or her “Affected Property.”3

More importantly, both the Global and the Banner settlement 

agreements apportion funds based on each “Affected Property.” Thus, with the 

exception of personal injury claimants, the settlement agreements limit 

recovery to those individuals who own, lease, or otherwise have a close tie to a 

property containing Chinese Drywall. The appellants acknowledge that the

terms of the Global and Banner agreements do not provide compensation for

stigma claims like those at issue here. It spurns simple reasoning to require 

individuals to opt out of a settlement agreement under which they were never

entitled to compensation.

Sixty Fifth and Banner argue that it is common for individuals to be 

“class members” under a settlement agreement, yet to be barred from recovery 

under the terms of that agreement. The cases the appellants cite in support of 

this position are, however, easily distinguishable; they all involve individual 

class members who, through their own actions, lost an opportunity to claim a 

portion of a limited settlement fund. See, e.g., In re Oxford Health Plans, Inc., 

383 F. App’x 43 (2d Cir. 2010) (upholding the district court’s denial of a latefiled claim for compensation under a settlement agreement). In contrast, 

Mangiarelli was never entitled to a benefit under the Global and Banner 

agreements in exchange for releasing his stigma claims. As the district court 

said, it would be “nonsensical” to find that Mangiarelli was nevertheless a 

“Class Member” under the Global and Banner settlement agreements.

 

3 As the district court noted, the Banner agreement contains similar language linking 

the definition of “Class Member” to those individuals owning or residing in an “Affected 

Property.” Furthermore, Banner does not argue that its settlement agreement is materially 

different from the Global agreement. Instead, Banner, like Sixty Fifth, argues only that the 

broad definition of “Class Member” set forth in its settlement agreement is controlling.

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Finally, Sixty Fifth and Banner argue for the first time on appeal that, 

under Florida law, Mangiarelli has a shared ownership interest in the common 

area of Building One. See Fla. Stat. §§ 718.106(2)(a), 718.103(8). The 

appellants contend that Mangiarelli thus possesses a sufficient connection to 

an “Affected Property” to make him a class member under the Banner and 

Global settlement agreements. This Court need not address this argument

since, contrary to Sixty Fifth and Banner’s assertions, they had ample 

opportunity to make this argument to the district court. See XL Specialty Ins. 

Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008) (“An 

argument not raised before the district court cannot be asserted for the first 

time on appeal.” (citing Stokes v. Emerson Elec. Co., 217 F.3d 353, 358 n.19 

(5th Cir. 2000))).4

IV.

We conclude that the district court did not err in deciding that, for the 

purposes of his loss of market value claims, Mangiarelli is not a “Class 

Member” under the Global and Banner settlement agreements. Accordingly, 

the district court’s denial of the appellants’ motions to enjoin is

AFFIRMED.

 

4 Furthermore, even if the Court were to consider the appellants’ new argument, it is 

misguided. Mangiarelli is not suing for damages to the common area of Building One (i.e., 

the potential “Affected Property”). Instead, he is suing for loss of market value to his own

condo unit, which is located in Building Two. Building Two contains no Chinese Drywall, 

and Banner and Sixty Fifth have never contended that it is an “Affected Property” under the 

settlement agreements. At least for the purposes of his stigma claims, it is irrelevant that 

Mangiarelli may have an interest in the common areas of the “Affected Property” that caused 

his own condo unit to lose market value.

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