### 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 motion s to

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 2, 2015

Lyle W. Cayce Clerk Case: 14-31355 Document: 00513216904 Page: 1 Date Filed: 10/02/2015No. 14

- 31355

2 enjoin Plaintiff Ralph Mangiarelli’s class

- action claims, which are currently pending in Florida state court

. Sixty F ifth 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 a ppeal concerns Chinese

- manufactured d r ywall (“ Chinese
D rywall”) , 1 which has long been a subject of litigat ion in the Fifth Circuit

. In 2009, the Judicial Panel on Multi

- District Litigation transferred all federal actions alleging damages resulting from Chinese D rywall to the United States District Court for the Eastern District of Louisiana. See In re Chin e s e
Manufactured Drywall Prods. Liab. Litig. , 2:09

- MD

- 2047

- EEF

- JCW (E.D. La. 2009). Both Banner and Sixty F ifth were defendants in class actions consolidated by the Multi

- District Litigation Panel , and both d efendants ultimately settled the class

- action cla ims against them. Sixty Fifth’s and Banner’s separate settlement agreements received final approval from the district court in 2 013. These settlement agreements are referred to by the parties here as the “Global” and “Banne r” 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 C o mplex in Fort Lauderdale, Florida. Sixty Fifth developed Lauderdale One,

1 From 2005

– 2008, Chin e se 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 , includin g skin irritation and respiratory problems. Case: 14-31355 Document: 00513216904 Page: 2 Date Filed: 10/02/2015No. 14

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3 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 Bu ilding One was constructed using Chinese
D rywall. Mangiarelli owns a condo unit in Building Two, which has never contained any Chinese D rywall. Nevertheless, Mangiarelli and other Building Two residents filed a class action complaint in Florida state cou rt . 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 agreement s , 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 th at 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 o f th e 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

. Alt hough the Court usually reviews a district court’s den ial 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 Horiz on , 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 m otion, asserting that the reasons for denying Sixty Fifth’s motion “appl[ied] with equal force” to Banner. Case: 14-31355 Document: 00513216904 Page: 3 Date Filed: 10/02/2015No. 14

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4 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 agree ment, 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 distri ct court erred in denying their motion s 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. Th e 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, distr ibuted, 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 th e 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 all eged to contain Chinese D rywall. Still, the

a ppellants contend that the settlement agreements’ class definitions are distinct from any provision concerni ng “Affected Prop erty ” ; thus an individual Case: 14-31355 Document: 00513216904 Page: 4 Date Filed: 10/02/2015No. 14

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5 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 consider ed 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 b y 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. 2 d 628, 631 (Fla. 4th Dist. Ct. App. 2000) (“In construing a contract, the legal effect of its provisions should be determin ed from the words of the entire contract.”)

. Alt hough the class definition s in the Global and Banner agreements purport to include all persons with claims arising from or related to Chinese
D rywall, language elsewhere in the agreements limit s t hese broad definition s

. 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 “i n the event a Class Member opts out from this Settlement , all P arties 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 .” S ee also Global Agreement § 8.1.1 ( stating t hat “Class Members with claims involving more than one Affected Property may opt

- out on a property

- by

property basis .”)

. T he claimant registration form , approved by the district Case: 14-31355 Document: 00513216904 Page: 5 Date Filed: 10/02/2015No. 14

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6 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 s ettlement agreement s apportion funds based on each “Affected Property .” Thus, with the exception of personal injury claimants , the settlement agreements limit

re covery to those individuals who own, lease, or otherwise have a close tie to a property containing Chinese Drywall. T he a ppellants acknowledge that the terms of the Global and Banner agreements do not provide compensation for stigma claim s 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” u nder a settlement agreement, yet to be barred from recovery under the terms of that agreement. The cases the a ppellants cite in support of this position ar e, 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 late

filed claim for compensation under a settlement agre ement). 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, t he 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 fort h in its settlement agreement is controlling

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7 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

a ppellants 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. , 5 13 F.3d 146, 153 (5th Cir. 2008) (“An argument not raised before t he 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
I V. We conclude that the district court did not err in deciding that, for the purposes of his loss of marke t value claims, Mangiarelli is not a “Class Member” under the Global and Banner settlement agreements. Accordingly, the district court’s denial of the a ppellants ’ motion s to enjoin is AFFIRMED.

4 Furthermore, even if the Court were to consider the appellant s’ 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 Dr ywall, 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 in terest in the common areas of the “Af fected P roperty ” that caused his own condo unit to lose market value. Case: 14-31355 Document: 00513216904 Page: 7 Date Filed: 10/02/2015