United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. Following multiple rounds of briefing, a hearing,
additional depositions and a variety of motions to strike and
supplement, on July 24, 2019, the Magistrate Judge held a
final hearing (the “Hearing”) on
Plaintiff’s Second Motion for Class Certification and
Incorporated Memorandum in Support (Dkt. #194). On September
4, 2019, the Magistrate Judge entered proposed findings of
fact and recommendations (the “Report”) (Dkt.
#247) that Plaintiff’s Second Motion for Class
Certification and Incorporated Memorandum in Support (Dkt.
#194) be granted in part and denied in part. Defendant timely
filed objections to the Report (Dkt. #249).
who files timely written objections to a magistrate
judge’s report and recommendation is entitled to a de
novo review of those findings or recommendations to which the
party specifically objects. 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(2)-(3). Objections to a report must
specifically identify portions of the report and the basis
for those objections. Fed.R.Civ.P. 72(b); see also Battle
v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir.
1987) (explaining that if the party fails to properly object
because the objections lack the requisite specificity, then
de novo review by the court is not required). In other words,
a party objecting to a magistrate judge’s report must
specifically identify those findings to which he or she
first objects that Defendant’s counsel did not concede
there is a question common to the "Proposed
Class" (Dkt. #249 at 1). The relevant inquiry for
class certification is whether “there are questions of
law or fact common to the class.” Fed.R.Civ.P.
23(a)(2). “The threshold of ‘commonality’
is not high.” Jenkins v. Raymark Indus., Inc.,
782 F.2d 468, 472 (5th Cir. 1986). Commonality requires
“only that resolution of the common questions affect
all or a substantial number of the class members.”
Id., 782 F.2d at 472; see also Lightbourn v.
County of El Paso, Tex., 118 F.3d 421, 426 (5th Cir.
1997) (“The commonality test is met when there is at
least one issue, the resolution of which will affect all or a
significant number of the putative class members.”).
The Magistrate Judge considered proposed questions of fact
and law presented by Plaintiffs and found that Plaintiffs
identified questions common to the Proposed Class. The
Magistrate Judge identified the following common questions:
1. whether Defendant was on notice that tanks identified in
the Proposed Class were produced outside of industry
specifications for ceramic sanitaryware;
2. whether tanks identified in the Proposed Class were
produced subject to manufacturing process errors;
3. whether tanks identified in the Proposed Class are
eligible for warranty relief;
4. whether Defendant may decline claims for warranty relief
after the litigation concludes; and
5. whether the warranty provision includes both replacement
(Dkt. #247 at 8). The Court agrees with the Magistrate Judge
that Plaintiffs have identified questions common to the
Proposed Class, regardless of Defendant’s position on
the issue. Therefore, this objection is
also objects that the Magistrate Judge did not sufficiently
consider the evidence as required by Fed.R.Civ.P. 23, when
making a finding on whether the members of the Proposed Class
were harmed in essentially the same way (Dkt. #249 at 2).
Defendant objects to the finding in the Report but
does not identify a basis for a challenge to what the
Magistrate Judge considered. The Magistrate Judge
noted in the Report that it held “multiple hearings on
this matter, has reviewed the extensive, shifting briefing by
the parties in detail, and has worked toward a process which
will address and settle issues in a manner that is
advantageous to both sides of this dispute.” (Dkt.
#247). The Report and the transcripts of the hearings
evidence that the Magistrate Judge engaged heavily with
multiple rounds of briefing and specifically worked with the
parties to clarify what variables might functionally impact
manufacturing differences at Defendant’s plants (Dkt.
#246 at 31-37). The Court finds no error in the Magistrate
Judge’s determination and this objection is
requests an opportunity for reconsideration and
supplementation in light of the modified class definition
(Dkt. #249 at 3). Defendant contends the Proposed Class was
only narrowed when the Hearing was almost completed; however,
narrowing the class was a main subject of the entire Hearing.
See, e.g. Dkt. #246 at 11–12 (discussing
modification of certification to only include tanks
manufactured at the Benito Juarez plant). Further, the scope
of the Proposed Class was not broadened, such that
supplementation might be appropriate. The Proposed Class was,
rather, substantially narrowed. Taking into full
consideration the briefing and hearings on this matter, the
Court finds additional supplementation is unwarranted.
objects that the merits of Plaintiffs’ manufacturing
defect claim must be addressed prior to certification (Dkt.
#249 at 5). Defendant presents no case law or rule for this
proposition. Defendant cites a number of cases relevant to
its argument that each tank will eventually need to be
inspected to demonstrate causation and that individual
inquiries into causation may preclude class certification
(Dkt. #249 at 4–5). Defendant cites cases where courts
identified different barriers to certification, but no case
in which it was found that the merits of a manufacturing
defect claim must be addressed prior to certification.
Magistrate Judge noted in the Report, although the court
should “perform a ‘rigorous analysis’ to
determine whether to certify a class, it may not require a
plaintiff to establish his claims at the class certification
stage.” See Booth v. Galveston Cty., No.
3:18–cv–00104, 2019 WL 1129492, at *1-2 (S.D.
Tex. March 12, 2019) (quoting Wal–Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 351 (2011)); see alsoAmgen Inc. v. Conn. Ret. Plans and Trust Funds, 568
U.S. 455, 466 (2013) (“Rule 23 grants courts no license
to engage in free–ranging merits inquiries at the
certification stage. Merit questions may be considered to the
extent-but only to the extent-that they are relevant to
determining whether the Rule 23 prerequisites for class