     Case: 14-31355      Document: 00513216904         Page: 1    Date Filed: 10/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                Fifth Circuit

                                                                               FILED
                                    No. 14-31355                           October 2, 2015
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 14-31355
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 Chinese-
Manufactured 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,


       1From 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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                                      No. 14-31355
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.



       2The 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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                                  No. 14-31355
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-by-
property 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 late-
filed 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.




       4Furthermore, 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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