United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
behalf of themselves and a putative class of fellow
homebuyers in the Tall Pines development in Plainfield,
Illinois, Paul and Deborah Smith allege that NVR, Inc.
violated the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505/1 et seq.
(“ICFA”), and committed breach of contract by
selling them a home with features different than NVR
promised. Doc. 46. The court dismissed some of the
Smiths' claims but allowed others- including their
putative class claims that NVR violated the ICFA as to the
home's cabinetry and shingles-to proceed. Docs. 44-45
(reported at 2018 WL 2718038 (N.D. Ill. June 6, 2018)); Docs.
73-74 (reported at 2018 WL 6335051 (N.D. Ill. Dec. 5, 2018)).
The Smiths now move under Civil Rule 23 to certify a class of
Tall Pines homebuyers on those ICFA claims. Doc. 84. The
motion is denied.
a motion under Federal Rule of Civil Procedure 12(b)(6), a
motion to certify a class under Rule 23(c) is not one for
which the court may simply assume the truth of the matters as
asserted by the plaintiff[s]. Instead, if there are material
factual disputes, the court must receive evidence and resolve
the disputes before deciding whether to certify the
class.” Priddy v. Health Care Serv. Corp., 870
F.3d 657, 660 (7th Cir. 2017) (citation, alterations, and
internal quotation marks omitted). Still, “[i]n
conducting this analysis, the court should not turn the class
certification proceedings into a dress rehearsal for the
trial on the merits.” Bell v. PNC Bank, N.A.,
800 F.3d 360, 376 (7th Cir. 2015) (internal quotation marks
court's prior opinions describe the factual backdrop of
this case, so only the pertinent details are set forth here.
On April 28, 2016, the Smiths agreed to purchase from NVR a
home in the Tall Pines development. Doc. 46 at ¶ 8; Doc.
58-1 at 2. NVR's sales representatives provided the
Smiths with advertising and sales materials, including a
brochure titled “Tall Pines at Grande Park Included
Features.” Doc. 46 at ¶¶ 10-11; Doc. 85-2.
Paul Smith avers that the Included Features document was
“one of the factors [the Smiths] considered when
deciding to purchase [their] new home.” Doc. 84-3 at
¶ 6. The document indicated that the home would have
TAMKO 30-year shingles, TIMBERLAKE honey oak or maple kitchen
cabinets, and TIMBERLAKE natural oak vanity cabinets in the
bathroom. Doc. 46 at ¶ 12; Doc. 85-2 at 2. The Smiths
received instead 25-year shingles and cabinets with an
artificial non-wood wrap. Doc. 46 at ¶¶ 13-14.
Smith further avers that he saw “that some of
[his] neighbors have the same Included Features sale
document, ” Doc. 84-3 at ¶ 7 (emphasis added);
that said, he has personal knowledge only that seven other
homes have or had the document, Doc. 105 at ¶ 5, and he
does not say one way or the other whether any of his
neighbors did not receive it. Four of the Smiths'
neighbors aver that they received a copy of the Included
Features document. Doc. 101 at p. 3, ¶ 6; Doc. 102 at p.
3, ¶ 7; Doc. 103 at p. 2, ¶ 7; Doc. 104 at ¶
7. An NVR division manager avers that the document was
discontinued “while [Tall Pines] homes were still being
constructed and sold in the Subdivision.” Doc. 92-1 at
pp. 4-5, ¶ 18.
Smiths and NVR agree that 22 of the 46 Tall Pines homes
received 25-year shingles. Doc. 92 at 6; Doc. 99 at 6. An NVR
sales representative avers that “as part of the sales
process, [a] sales and marketing representative reviewed the
features of the home with prospective purchasers, including
the fact that (at the pertinent time) purchasers would
receive a 25-year shingle.” Doc. 92 at 13 (citing Doc.
92-3 at ¶¶ 17-18). The sales representative further
avers that purchasers were again advised of the use of the
25-year shingle during the pre-construction meeting, when
they reviewed the Selection Acknowledgment Report with an NVR
representative. Doc. 92-3 at ¶ 19. Paul Smith counters
that he and his wife were not told they would be receiving
25-year shingles. Doc. 84-3 at ¶ 10. The four
aforementioned affiants likewise aver that their NVR sales
representative “did not advise or point out …
that a 25-year shingle would be used at [their] home[s] as
opposed to the 30-year shingle promised in the
‘Included Features' sales sheet.” Doc. 101 at
p. 3, ¶ 9; Doc. 102 at p. 3, ¶ 10; Doc. 103 at p.
2, ¶ 10; Doc. 104 at ¶ 10. Neither those affiants
nor the Smiths describe what the other Tall Pines homeowners
who received 25-year shingles were told by their NVR sales
representative. An NVR division manager avers that NVR's
practice was to review with purchasers the use of 25-year
shingles. Doc. 92-1 at p. 4, ¶¶ 13-14. Indeed, the
Smiths' own Pre-Construction Selection Acknowledgment
Report, which they reviewed in advance of construction, had a
“handwritten checkmark by the notation ‘roof
shingles 25 year, '” which the division manager
avers “reflect[s] that the shingle was discussed by a
… representative with the Smiths at the
Preconstruction Meeting held on July 8, 2016.”
Id. at pp. 3-4, ¶¶ 9, 16-17; see also
id. at p. 16.
Smiths discussed cabinetry options with NVR sales
representatives prior to purchasing their home and decided to
upgrade their cabinets to “Sonoma Maple
Espresso.” Doc. 84-1 at 3; Doc. 84-3 at ¶¶
8-9. The Smiths saw a sample Sonoma Maple Espresso cabinet
door at the model home at the time they signed their contract
with NVR, Doc. 92 at 15; Doc. 92-4 at 20 (71:20-24), but the
parties dispute whether the sample was labeled with
specifications about its composition, Doc. 92 at 15-16; Doc.
99 at 3. NVR's sales representative and division manager
aver that the cabinet door samples at the model home and the
design center had labels with information about the cabinets,
including whether they utilized veneer or medium density
fiberboard. Doc. 92-3 at ¶¶ 9-11; Doc. 92-1 at
¶¶ 38-40; Doc. 92-2 at ¶ 7. The Smiths and
their four affiants looked at the cabinet doors at the
“sales center, ” which they aver were not labeled
with composition information. Doc. 84-3 at ¶ 19; Doc.
101 at p. 2, ¶ 5; Doc. 102 at p. 2, ¶ 5; Doc. 103
at p. 2, at ¶ 5; Doc. 104 at ¶ 5. NVR's sales
representative and division manager also aver that
Specification Sheets providing information about the cabinet
options were available at the model home, Doc. 92-3 at ¶
13; Doc. 92-1 at pp. 8-9, ¶¶ 41-42; Doc. 92-2 at
¶ 7, but the Smiths did not see those sheets, Doc. 84-3
at ¶ 20, and three affiants report that they were not
provided with them, Doc. 102 at p. 3, ¶ 6; Doc. 103 at
p. 2, ¶ 6; Doc. 104 at ¶ 6.
cabinets the Smiths received are not made of solid wood;
rather, the cabinet boxes are particle board, the drawer
boxes are fiberboard, and the shelves are particle board.
Doc. 84-1 at 3; Doc. 84-3 at ¶ 9. No. putative class
member received solid wood cabinets. Doc. 84-1 at 3-4. Paul
Smith avers that the Smiths “would not have upgraded
[their] cabinets and paid the additional cost for upgraded
cabinets if [they] had known” that they would not be
solid wood. Doc. 84-3 at ¶ 8. He acknowledges, however,
that in selecting cabinets, he “had a choice of
different architectural styles, some of which appealed to
some purchasers and others which appealed to others.”
Doc. 92-4 at 20 (70:3-6). NVR's division manager avers
that half of the homebuyers chose to have painted cabinets,
which use non-wood material “in order to achieve a
superior uniform finish.” Doc. 92-1 at p. 13, ¶
Smiths allege that NVR violated the ICFA as to the cabinets
and shingles. They seek to certify under Rule 23(b)(1) or
(b)(3) an ICFA class of the “new home purchasers in
Tall Pines, ” reasoning that “they all purchased
new homes from [NVR] and none of them received the wood
cabinets [NVR] represented it would include as a standard
feature, and without an upgrade[, and] … thirty-five
of those 74 class members did not receive the 30-year
shingles Defendant promised … .” Doc. 99 at 1.
court's analysis of class certification “is not
free-form, but rather has been carefully scripted by the
Federal Rules of Civil Procedure.” Chi. Teachers
Union, Local No. 1. v. Bd. of Educ. of Chicago, 797 F.3d
426, 433 (7th Cir. 2015). To be certified, a proposed class
must satisfy the four requirements of Rule 23(a): “(1)
the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common
to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a); see Bell, 800 F.3d at 373. If
Rule 23(a) is satisfied, the proposed class must fall within
one of the three categories in Rule 23(b), which the Seventh
Circuit has described as: “(1) a mandatory class action
(either because of the risk of incompatible standards for the
party opposing the class or because of the risk that the
class adjudication would, as a practical matter, either
dispose of the claims of non-parties or substantially impair
their interests), (2) an action seeking final injunctive or
declaratory relief, or (3) a case in which the common
questions predominate and class treatment is superior.”
Spano v. The Boeing Co., 633 F.3d 574, 583 (7th Cir.
2011); see also Bell, 800 F.3d at 373. Finally, the
class must be “identifiable as a class, ” meaning
that the “class definitions must be definite enough
that the class can be ascertained.” Oshana v.
Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006);
see also Mullins v. Direct Dig., LLC, 795 F.3d 654,
659-61 (7th Cir. 2015).
Smiths bear the burden of showing by a preponderance of the
evidence that each class certification requirement is
satisfied. See Priddy, 870 F.3d at 660; Chi.
Teachers Union, 797 F.3d at 433; Messner v.
Northshore Univ. HealthSys., 669 F.3d 802, 811 (7th Cir.
2012). As the Seventh Circuit has explained, “a
district court must make whatever factual and legal inquiries
are necessary to ensure that requirements for class
certification are satisfied before deciding whether a class
should be certified, even if those considerations overlap the
merits of the case.” Am. Honda Motor Co. v.
Allen, 600 F.3d 813, 815 (7th Cir. 2010); see also
Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883,
889-90 & n.6 (7th Cir. 2011). The Seventh Circuit has
instructed district courts to exercise “caution”
before certifying a class. Thorogood v. Sears, Roebuck
& Co., 547 F.3d 742, 746 (7th Cir. 2008).
noted, the Smiths seek to certify under Rule 23(b)(1) or
(b)(3) an ICFA class of “all persons who purchased
homes from [NVR] in the Tall Pines neighborhood.” Doc.
46 at ¶ 28; Doc. 84-1 at 1. NVR contends that Rule
23(b)(1) certification is inappropriate because the putative
class seeks damages and there is no limited fund that must be
distributed ratably. Doc. 92 at 32-33. The Smiths do not
respond to this argument, thereby forfeiting the point.
See Gomez v. St. Vincent Health, Inc., 649 F.3d 583,
593 (7th Cir. 2011) (holding that the plaintiff
“forfeited” an argument in support of class
certification “by waiting until his motion to
reconsider the certification denial to argue it”);
Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 559
n.4 (7th Cir. 2003) (holding that the plaintiff forfeited an
argument in support of class certification by
“fail[ing] to present [it] to the district
court”); see generally Ennin v. CNH Indus. Am.,
LLC, 878 F.3d 590, 595 (7th Cir. 2017) (“Failure
to respond to an argument generally results in waiver
… .”). In any event, NVR is correct that Rule
23(b)(1) certification is inappropriate where, as here, the
case is a damages actions that does not involve a limited
fund. See Crawford v. Equifax Payment Servs., Inc.,
201 F.3d 877, 882 (7th Cir. 2000) (“Rule 23 itself
limits no-opt-out classes to the situations ...