Chesson v. TJR Partnership LTD

Full title: JACQUELYN CAMPBELL CHESSON, et al., v. TJR PARTNERSHIP LTD, et al

Court: United States District Court, S.D. Texas, Houston Division

Date published: Apr 6, 2006

Civil Action No. H-01-315 (S.D. Tex. Apr. 6, 2006)

Opinion

Civil Action No. H-01-315.

April 6, 2006

MEMORANDUM AND ORDER

LEE ROSENTHAL, District Judge

In 2001, approximately 315 individual plaintiffs sued defendants Darrel Hall and entities he controlled. Plaintiffs, purchasers of houses built and sold by defendants in a subdivision developed by defendants, alleged that the houses and the subdivision had many defects and problems. Defendants have now filed a third motion to dismiss certain plaintiffs from this suit. This court grants the motion in part. Specifically, this court orders as follows:

1. Those individuals who were named in the March 2003 Second Amended Complaint and the December 2004 "active plaintiffs list" and who attended the November 2005 hearing, the February 2006 hearing, or provided a letter of intent to proceed in this case, are proper plaintiffs.

2. Individuals who were not named in the March 2003 Second Amended Complaint or the December 2004 active plaintiff list, but who attended the November 2005 hearing, the February 2006 hearing, or provided a letter of intent to proceed with this case, may be parties, but only if they make a specific showing that they timely notified defendants of their claims. No later than April 21, 2006, these individuals must file with the court and provide counsel for defendants written proof showing when and how they previously notified defendants of their specific claims about the condition of their houses and the subdivision.

3. Individuals who were named in the March 2003 Second Amended Complaint and the December 2004 active plaintiff list but have not appeared at the November 2005 hearing, the February 2006 hearing, or notified the court of an intent to proceed, are dismissed from this case.

This order also addresses the status of those individuals who do not fall in one of the three categories identified above. Once the identity of the remaining plaintiffs is settled, mediation will be ordered as to the plaintiffs and the defendants. The reasons for these rulings, and who is included in each category, is explained below.

I. Background

This case was filed in state court and removed to federal court in 2001. The individual plaintiffs alleged that they acquired houses from the defendants built from approximately 1996 through 1999 that were incompletely or poorly constructed, had water and septic systems that functioned poorly, and were in subdivisions with drainage problems and unpaved roads. On March 3, 2003, counsel for plaintiffs, Damon R. Capps, filed a Second Amended Complaint adding a number of plaintiffs to the case. No later amended complaint has been filed. A copy of the March 3, 2003 Second Amended Complaint is attached to this Memorandum and Order as Attachment 1.

On December 15, 2004, in response to a directive from this court, counsel for plaintiffs sent counsel for defendants a list of those plaintiffs who intended to continue with the case, defined as those listed on the Second Amended Complaint who had not affirmatively indicated that they wanted to drop out from the litigation. With few exceptions, this "active plaintiff list" did not add names to those listed on the March 2003 amended complaint. Instead, the December 2004 active plaintiff list deleted some names from the March 2003 Second Amended Complaint. A copy of that December 2004 active plaintiff list is attached as Attachment 2.

On August 26, 2005, the State Bar of Texas notified the Federal District Court for the Southern District of Texas that counsel for plaintiffs, Damon R. Capps, had been disbarred. This court received the notification on September 6, 2005. Shortly before receiving the disbarment notice, this court issued a lengthy opinion granting in part and denying in part motions to dismiss and for summary judgment that defendants had filed after discovery. Counsel for plaintiffs had filed extensive briefs responding to those motions. After receiving the disbarment notice, this court took careful steps to ensure that the individual plaintiffs received a copy of the court's opinion and of notices setting deadlines for the plaintiffs to obtain new counsel or state an intent to proceed pro se.

This court issued an order setting a hearing for November 1, 2005 to address the overall case status. The order setting the hearing was sent to all the plaintiffs named on the March 2003 amended complaint. The order instructed that all the individual plaintiffs had to attend, "either personally or through an attorney you have selected to represent you and who has filed an appearance on your behalf in this case." This court warned that "[f]ailure to attend the hearing, either personally or through an attorney, may lead to a dismissal of your claims." A copy of that Order is attached as Attachment 3. (Docket Entry No. 98). In October 2005, the defendants filed a motion to dismiss those plaintiffs who were named on the Second Amended Complaint filed in March 2003 but not included on the December 2004 active plaintiff list.

At the November 1, 2005 hearing, this court recorded those attending by a sign-in sheet. After that hearing, this court granted additional time for plaintiffs to locate new counsel, issuing an order stating that new counsel had to file an appearance no later than January 6, 2005. The order stated that "[a]ny plaintiff who does not obtain new counsel by January 6, 2005, but who wishes to continue to proceed in this case, must file a written submission with this court no later than January 6, 2005, stating an intent to proceed pro se. Any plaintiff who fails either to file such a written statement or appear through counsel by January 6, 2005 may have their claims dismissed." The order also set a hearing for January 20, 2006. The order stated: "Each plaintiff must appear either in person or through the counsel who filed an appearance by January 6, 2006. Failure to do so may lead to dismissal." This order was sent to all those listed on the March 2003 Second Amended Complaint, as well as to the individuals who had attended the November 2005 hearing. A copy of that Order is attached as Attachment 4. (Docket Entry No. 104).

At the request of a lawyer then considering whether to appear as counsel for some of the plaintiffs, this court issued an order on January 5, 2006 extending the time for counsel to appear or for plaintiffs to notify this court that they intended to proceed pro se. The hearing was reset to February 17, 2006. This court again sent the order to all plaintiffs listed on the March 2003 Second Amended Complaint as well as to individuals who had appeared at the November 2005 hearing. (Docket Entry No. 113). A copy of that Order is attached as Attachment 5.

At the February 17, 2006 hearing, this court used a sign-up sheet and asked those in the courtroom to identify themselves on the record. A number of plaintiffs named in the March 2003 Second Amended Complaint — whose names also appeared on the December 2004 active plaintiffs list — were not present. Some people attending the hearing told this court that some of the individual plaintiffs were unable to attend. This court instructed that those individuals had to inform the court in writing by a specific date that they intended to pursue the litigation. Several letters were received by the deadline.

The defendants now move to dismiss the claims of those individuals whose names did not appear on the March 2003 Second Amended Complaint and active plaintiffs list, as well as those whose names appear but who failed to appear at the November 2005 or February 2006 hearings or send a letter making clear their intent to proceed with this case. (Docket Entry No. 136).

II. The Motion to Dismiss

A. The Previously-Dismissed Plaintiffs

Several individuals included in the March 2003 Second Amended Complaint have settled and had their claims dismissed or have been dismissed for other reasons. These individuals are no longer in this lawsuit. The plaintiffs already dismissed are listed in the following table.

Name Date Dismissed

Tory Barksdale 3/1/06 Roger and Deborah Fountain 1/17/06 George and Linda Glover 11/14/05 Ron and Laurie LeBlanc 8/25/05 James and Cossette McKinney 2/21/06 Donna Tulley 3/6/06

B. The Status of Other Individuals

1. General

The following table lists those named in the March 2003 Second Amended Complaint. As to this group, this table also identifies who was included on the December 2004 active plaintiffs list; who attended the November 2005 hearing, who attended the February 2006 hearing, and who provided a letter stating their intent to proceed. ¹

1 All mail has been returned.

Name On 3/3/03 Second On 12/2004 Attended Attended Letter Amended Complaint Active Plaintiffs 11/05 2/17/06 Received List Hearing Hearing 1 Darrell Abshire YES NO NO NO NO 2 Kristen Abshire YES NO NO NO NO 3 David Ackman YES NO NO NO NO 4 Joseph and Anita Allooh YES YES YES YES NO 5 Waldo Avalos YES YES NO NO NO 6 Alvin Babcock YES YES NO NO NO 7 Lisa Babcock YES YES NO NO NO 8 Theresa Bankert YES YES NO NO NO 9 Jose and Salena Barrios YES YES NO NO NO 10 Robert and Filberta YES NO YES YES NO 11 Sam and Regina Bartley YES YES NO NO NO 12 Steven Baxter and Regina YES YES YES YES NO Fannell 13 Sheldon and Cherrie YES YES NO NO NO easley 14 Sheldon and Shirley YES YES NO YES YES Bennett 2/21/06 15 Joel Bergkvist and YES YES YES YES YES Theresa Bergkvist 1/5/06 16 Shawn and Gidget YES YES YES YES NO Bernard 17 Arthur and Eva Bibbs YES YES NO NO NO 18 Rick Bishop and YES YES YES YES YES Claudette Ferraro 11/1/06 19 Judy Blair YES YES NO NO NO 20 Charles and Janet Bliss YES YES NO NO NO 21 Kevin and Billie Bobbit YES YES YES YES YES 2/14/06 22 Dicky and Sonya Borden YES YES NO NO NO 23 William and Priscilla YES YES YES YES NO Braddock 24 Richard Brandt and Kevin YES YES NO NO NO Brandt 25 Tommy Breedlove YES YES YES YES YES 2/10/06 26 Donald and Patricia YES YES NO NO NO Briggs 27 Hazel Briles YES YES NO NO NO 28 Gloria Briock YES NO NO NO NO 29 Mike Briock YES NO NO NO NO 30 Cameron Brown and YES YES NO NO NO Linda Winters 31 Geraldine Brown YES YES NO NO NO 32 James and Jacqueline YES YES NO NO NO Burnett 33 Ronnie and Stephanie YES YES NO NO NO Burrows 34 Bobbie and Rosita YES YES YES YES NO Campbell 35 Jake and Cherry Carlock YES YES NO NO NO 36 Tanja Carmichael YES YES NO NO NO 37 Ron and Rhonda Carson YES YES NO NO NO 38 Dorothy Carville YES NO NO NO NO 39 Jacquelyn Chesson YES YES YES YES NO 40 Leo and Ernestine YES YES NO NO NO Childress 41 Kenneth D. Clark YES YES NO NO NO 42 Wesley and Michelle YES YES NO NO NO Collins 43 Mathew and Jill Copeland YES YES NO NO NO 44 Eddie and Brandy Cox YES YES NO NO NO 45 Jesse and Michelle Crain YES YES NO NO NO 46 Danny and Heidi YES YES NO NO NO Cromeens 47 James and Roberta Cuplin YES YES NO NO NO 48 Michael and Beth YES YES YES NO NO Davidson 49 Loren Dennard and YES YES NO NO NO Thelma Metzger 50 Clarence and Katrina YES YES YES NO NO DeSha 51 Harold and Sandra YES YES YES YES NO Dodson 52 John and Regina Doty YES YES YES YES YES w/counsel w/counsel 12/3/06 53 Richard and Betty Doyle YES YES NO NO NO 54 Everett and Sandra Eaton YES YES YES YES YES 2/10/06 55 Regina Fanelli YES NO NO NO NO 56 James Farnkoff and YES YES YES YES NO Patricia Jeffcoat 57 Chad and Judina Faulkner YES YES NO NO NO 58 Greg and Sara Faulkner YES YES NO NO NO 59 David and Theresa YES YES NO NO NO Ferguson 60 Ron and Elizabeth YES YES NO NO NO Ferguson 61 Ronald and Tonya Fitch YES YES NO NO NO 62 Markel Fox YES NO NO NO NO 63 Jerry Freeman YES NO NO NO NO 64 Monica Freeman YES NO NO NO NO 65 Scott and Janice Freile YES YES NO NO NO 66 Jackie Gatlin YES YES YES YES NO 67 George and Diane Globus YES NO NO NO NO 68 Patrick and Katherine YES YES NO NO NO 69 Belinda Gorby YES NO NO NO NO 70 William Gorby YES YES NO NO NO 71 Jesse Grandos YES YES NO NO NO 72 Darren and Tamara Griffis YES YES NO NO NO 73 Dewey and Vanesa YES YES YES YES NO Guillor 74 Douglas and Hilda Hagler YES YES NO NO NO 75 Joseph Haley YES YES NO NO NO 76 Michelle Hall YES NO NO NO NO 77 Monika Hall and Edmund YES YES YES YES NO Davis 78 Paul and Juanita Hatch YES YES NO NO NO 79 David Hatfield YES YES NO YES NO 80 Darrell and Andrea Hayes YES YES NO NO NO 81 John Henderson YES NO NO NO NO 82 Rachel Henderson YES NO NO NO NO 83 Johnnie and Cherrie YES YES YES YES YES Hensley 1/5/06 84 Gerald Hensley YES YES YES NO NO 85 Terri Hensley YES NO NO NO NO 86 Joe and Kathryn YES YES NO NO NO Hernandez 87 Noel Hill YES NO NO NO NO 88 Victoria Hill YES NO NO NO NO 89 Thomas and Judy Holmes YES YES NO NO NO 90 Forest and Corine Holy YES YES NO YES NO 91 Duane and Crista Hudson YES YES NO NO NO 92 Jackie Hudson YES YES YES YES YES 2/21/06 93 Melvin and Martha YES YES NO NO NO Hudson 94 Robert and Alice Hughes YES YES NO NO NO 95 Anthony and Tina Hunter YES YES NO NO NO 96 Florence Jackson YES NO NO NO NO 97 Floyd and Majorie Jacobs YES YES NO NO NO 98 Richard and Shawn YES YES NO NO NO Johnson 99 Willie and Johnny Jones YES YES NO NO NO 100 Janet Kaelin YES NO NO NO NO 101 Deanna Killian YES YES NO NO NO 102 Sherry Kirby YES NO NO NO NO 103 William and Paula Knapp YES YES NO YES NO 104 Judith Lazo and Richard YES YES NO NO NO Tillison 105 Vickie Leonard YES NO NO NO NO 106 Joseph and Marjorie YES YES NO NO YES Lewis 3/1/06 107 Glenn and Marilyn Lewis YES YES NO NO NO 108 John and Louise YES YES YES NO NO Leyendecker 109 Timothy and Andrea YES YES NO NO YES Lockhart 110 Elizabeth Lumpkin YES YES NO NO 111 Jack Lyle and Donna YES YES NO NO Brown 112 Robert and Lora Lynch YES YES NO NO 113 Jerry and Tina Manshack YES YES NO NO NO 114 John and Chantel Marker YES YES NO NO NO 115 Johnny and Linda Martin YES YES NO NO NO 116 James Mathes YES YES YES NO NO 117 Jeff and Yvonne Mayfield YES YES NO NO NO 118 Shane and Pamela YES YES NO NO NO 119 Bryant McDonald YES NO NO NO NO 120 Roxanne McKey YES YES NO NO NO 121 James and Sherri Mercer YES YES NO NO NO 122 Norman and Erica Mercer YES YES NO NO NO 123 Jamie and Aimee Meshell YES YES NO NO NO 124 Jason Meshell YES NO NO NO NO 125 Bob Meth and Mary YES YES NO NO NO Bridges 126 Allen and Renee Miller YES YES NO NO NO 127 Elvira Mondlonado YES NO NO NO NO 128 Clifton and Linda YES YES NO NO NO Morphis 129 Joyce Morris YES YES NO NO NO 130 James Mosley YES NO NO NO NO 131 Rhonda Mosley YES NO NO NO NO 132 Ricky and Sharon Mosley YES YES NO YES NO 133 Joseph and Theresa YES YES NO NO NO Mouton 134 Frank and Griselda Ortiz YES YES NO NO NO 135 Charles Parshall YES NO NO NO NO 136 Jennifer Parshall YES NO NO NO NO 137 Richard Poirier and YES YES NO NO NO Regina Lakey 138 Dave and Debra Powell YES YES NO NO NO 139 Edward and Linda Rankin YES YES YES YES NO 140 Theresa Ray YES YES NO NO NO 141 Oscar and Patty Rendon YES YES NO NO NO 142 Belinda Renshaw YES YES NO NO NO 143 Thomas Renshaw YES NO NO NO NO 144 Gary and Darlene Robbins YES YES NO NO NO 145 Charles and Marsha YES YES YES YES YES Rokhol 2/8/06 146 Sherry Roscom YES NO NO NO NO 147 Walter Roscom YES NO NO NO NO 148 Natividad and Alicia Ruiz YES YES YES YES NO 149 Jesse and Margaret YES YES NO NO NO Salazar 150 Steven Saunders YES YES NO NO NO 151 John and Margaret Shelly YES YES YES YES YES 2/21/06 152 David and Carla Shumate YES YES YES NO NO 153 Paul and Rose Silcox YES YES NO NO NO 154 Julina Smith YES NO NO YES NO 155 M.L. Standley YES YES NO NO NO 156 John and Tina Stanley YES YES YES NO NO 157 Steven Stewart YES NO NO NO NO 158 John Swindall YES YES YES NO Letter 3/1/06 159 John Swindle YES NO NO NO NO 160 Jeff and Tammy Terrell YES YES NO NO NO 161 Wesley and Beverly YES YES YES YES NO Thom w/counsel w/counsel 162 Richard Tillson YES YES NO NO NO 163 Glen Tippett YES NO NO NO NO 164 Donna Todriff YES NO NO NO NO 165 Sidney and Sandra Toenniges YES YES NO NO NO 166 James and Darlene Trapp YES YES NO NO NO 167 Kindall and Darlene YES YES YES Letter YES Trapp 2/18/06 2/8/06 168 James and Darlene Tuck YES YES NO NO NO 169 George Vaughn YES NO NO NO NO 170 Misty Vaughn YES YES NO NO NO 171 Edward and Angela YES YES NO NO NO Watkins 172 Jack and Brandy Webb YES YES NO NO NO 173 Joe and Juliana Weems YES YES NO NO NO 174 Robert Werner YES NO NO NO NO 175 Kenneth and Susan YES YES NO NO NO Westbrook 176 C.J. and Denise White YES YES NO NO NO 177 William and Jo Ann YES YES YES YES NO Whitson 178 Dennis and Debra YES YES NO NO NO Wiggins 179 Danny and Belinda YES YES NO NO NO Williams 180 Jerdine Williams YES YES NO NO NO 181 Stacy and Lisa Williams YES YES NO NO NO 182 T.S. and Jennifer YES YES NO NO NO Williamson 183 Arthur and Sandra Wilson YES YES NO NO Letter 2/23/06 184 Bridget Wilson YES YES NO NO NO 185 Thomas and Diane Wilson YES YES NO NO NO 186 Ronnie Wolf YES YES NO NO NO 187 Jim Wolford YES NO NO NO NO 188 Jamie Wooten and Cathy YES YES NO NO NO Kimerer The following table separately lists those whose names were not included in the Second Amended Complaint, who were not on the December 2004 active plaintiffs list, but who attended the November 2005 hearing, the February 2006 hearing, or advised the court in writing of an intent to proceed. Name On 12/2004 Active Attended Attended Letter Plaintiff List 11/05 2/17/06 Hearing Hearing 1 Thomas Akiens NO NO YES NO 2 Kim Bell NO NO YES NO 3 Jason and Tiffany Bender NO YES YES NO 4 Tricia Berry NO YES NO NO 5 Leah Blankinship NO YES YES NO 6 Iva Brown NO YES YES NO 7 Shawn Burnes NO NO YES NO 9 Dorothy Crowd NO NO YES NO 10 Daniel Davis NO YES YES NO 11 Nancy Galynn NO YES NO NO 12 Bradford Hanson NO YES YES NO 13 Richard and Lillie Hill NO YES YES YES 1/6/06 14 Ed Hoffman NO NO YES NO 15 Ronda Huffman NO NO YES NO 16 Roderick and Wanda NO NO YES NO Jefferson 17 Melinda Johnson NO YES NO NO 18 Charles Loveday NO NO YES NO 19 Claude and Nicole McGuire NO YES NO NO 20 Michael McLain NO NO YES NO 21 Karen McNeill NO NO YES NO 22 Rudolpho and Mildred Mena NO NO YES NO 23 Catherine Morris NO YES YES NO 24 Jessie Owens NO NO YES NO 26 Wendy Ritchie NO YES YES YES 1/6/06 27 Debbie Starrett NO YES NO NO 28 Michelle Reyes and Dean NO YES YES NO Stuhr 29 Melissa and Alex Szuch NO YES NO NO The following individuals were not listed on the Second Amended Complaint but were listed on the December 2004 active plaintiffs list and have attended the November 2005 hearing, the February 2006 hearing, or advised the court in writing of an intent to proceed.

NAME On December 2004 Attended Attended Letter Active Plaintiffs List 11/05 12/17/06 Hearing Hearing

1 Rosalynn and Marland Carney YES YES YES NO 2 Robert Remeker YES YES YES NO 3 Misty Trapp and Tom Herrera YES YES NO NO

The following individuals were not listed on the Second Amended Complaint, were listed on the December 2004 active plaintiffs list, but did not attend any hearings or send the court a letter advising of an intent to proceed.

NAME On December 2004 Attended Attended Letter Active Plaintiffs List 11/05 12/17/06 Hearing Hearing

1 Ralph Griffith YES NO NO NO 2 Betty Hughes YES NO NO NO 3 Maurice and Margie Lavoie YES NO NO NO

C. Orders

1. Order Clarifying that Certain Individuals are Plaintiffs in the Case

The following individuals are party plaintiffs. They were named in the 2003 Second Amended Complaint, included in the December 2004 active plaintiff list, and attended the subsequent hearings or timely explained why they failed to do so. Those individuals do not need to make any further showing that they are proper party plaintiffs. They are:

1. Joseph and Anita Allooh

2. Robert and Filberta Barron²

2 Robert and Filberta Barron were named in the Second Amended Complaint but not on the December 2004 active plaintiffs list. Because they were on the Second Amended Complaint and attended the hearings, they are proper plaintiffs.

3. Steven Baxter and Regina Fannell

4. Sheldon and Shirley Bennett

5. Joel Bergkvist and Theresa Bergkvist

6. Shawn and Gidget Bernard

7. Rick Bishop and Claudette Ferraro

8. Kevin and Billie Bobbit

9. William and Priscilla Braddock

10. Tommy Breedlove

11. Bobbie and Rosita Campbell

12. Jacquelyn Chesson

13. Michael and Beth Davidson

14. Clarence and Katrina DeSha

15. Harold and Sandra Dodson

16. John and Regina Doty

17. Everett and Sandra Eaton

18. James Farnkoff and Patricia Jeffcoat

19. Jackie Gatlin

20. Dewey and Vanesa Guillory

21. Monika Hall and Edmund Davis

22. David Hatfield

23. Johnnie and Cherrie Hensley

24. Gerald Hensley

25. Forest and Corine Holy

26. Jackie Hudson

27. William and Paula Knapp

28. Joseph and Marjorie Lewis

29. John and Louise Leyendecker

30. Timothy and Andrea Lockhart

31. James Mathes

32. Ricky and Sharon Mosley

33. Edward and Linda Rankin

34. Charles and Marsha Rokhol

35. Natividad and Alicia Ruiz

36. John and Margaret Shelly

37. David and Carla Shumate

38. Julina Smith

39. John and Tina Stanley

40. John Swindall

41. Wesley and Beverly Thom

42. Kindall and Darlene Trapp

43. William and Jo Ann Whitson

44. Arthur and Sandra Wilson

2. Order that Certain Individuals are Dismissed from this Case

The claims of those individuals who were named in the March 2003 Second Amended Complaint, not named on the December 2004 active plaintiffs list, and who have not appeared at the hearings or notified this court of their intent to proceed with this case as ordered in the November 2, 2005 and January 5, 2006 orders, are DISMISSED for failure to prosecute. FED.R.CIV.P. 41(b); Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962)). The individuals whose claims are dismissed are:

1. Darrell Abshire

2. Kristen Abshire

3. David Ackman

4. Gloria Briock

5. Mike Briock

6. Dorothy Carville

7. Regina Fanelli

8. Markel Fox

9. Jerry Freeman

10. Monica Freeman

11. George and Diane Globus

12. Belinda Gorby

13. Michelle Hall

14. John and Rachel Henderson

15. Terri Hensley

16. Noel Hill

17. Victoria Hill

18. Florence Jackson

19. Janet Kaelin

20. Sherry Kirby

21. Vickie Leonard

22. Bryant McDonald

23. Jason Meshell

24. Elvira Mondlonado

25. James Mosley

26. Rhonda Mosley

27. Charles Parshall

28. Jennifer Parshall

29. Thomas Renshaw

30. Sherry Roscom

31. Walter Roscom

32. Steven Stewart

33. John Swindle

34. Glen Tippett

35. Donna Todriff

36. George Vaughn

37. Robert Werner

38. Jim Wolford

Those individuals named in the March 2003 Second Amended Complaint and on the December 2004 active plaintiffs list, but who have not attended any hearings or filed a letter as ordered by this court in its November 2, 2005 and January 5, 2006 orders, are DISMISSED for failure to prosecute. They are:

1. Waldo Avalos

2. Alvin Babcock

3. Lisa Babcock

4. Theresa Bankert

5. Jose and Salena Barrios

6. Sam and Regina Bartley

7. Arthur and Eva Bibbs

8. Judy Blair

9. Charles and Janet Bliss

10. Dicky and Sonya Borden

11. Richard Brandt and Kevin Brandt

12. Donald and Patricia Briggs

13. Hazel Briles

14. Cameron Brown and Linda Winters

15. Geraldine Brown

16. James and Jacqueline Burnett

17. Ronnie and Stephanie Burrows

18. Jake and Cherry Carlock

19. Tanja Carmichael

20. Ron and Rhonda Carson

21. Leo and Ernestine Childress

22. Kenneth D. Clark

23. Wesley and Michelle Collins

24. Mathew and Jill Copeland

25. Eddie and Brandy Cox

26. Jesse and Michelle Crain

27. Danny and Heidi Cromeens

28. James and Roberta Cuplin

29. Loren Dennard and Thelma Metzger

30. Richard and Betty Doyle

31. Chad and Judina Faulkner

32. Greg and Sara Faulkner

33. David and Theresa Ferguson

34. Ron and Elizabeth Ferguson

35. Ronald and Tonya Fitch

36. Scott and Janice Freile

37. Patrick and Katherine Globus

38. William Gorby

39. Jesse Grandios

40. Darren and Tamara Griffis

41. Douglas and Hilda Hagler

42. Joseph Haley

43. Paul and Juanita Hatch

44. Darrell and Andrea Hayes

45. Joe and Kathryn Hernandez

46. Thomas and Judy Holmes

47. Duane and Crista Hudson

48. Melvin and Martha Hudson

49. Robert and Alice Hughes

50. Anthony and Tina Hunter

51. Floyd and Majorie Jacobs

52. Richard and Shawn Johnson

53. Willie and Johnny Jones

54. Deanna Killian

55. Judith Lazo and Richard Tillison

56. Glenn and Marilyn Lewis

57. Elizabeth Lumpkin

58. Jack Lyle and Donna Brown

59. Robert and Lora Lynch

60. Jerry and Tina Manshack

61. John and Chantel Marker

62. Johnny and Linda Martin

63. Jeff and Yvonne Mayfield

64. Shane and Pamela Mayfield

65. Roxanne McKey

66. James and Sherri Mercer

67. Norman and Erica Mercer

68. Jamie and Aimee Meshell

69. Bob Meth and Mary Bridges

70. Allen and Renee Miller

71. Clifton and Linda Morphis

72. Joyce Morris

73. Joseph and Theresa Mouton

74. Frank and Griselda Ortiz

75. Richard Poirier and Regina Lakey

76. Dave and Debra Powell

77. Theresa Ray

78. Oscar and Patty Rendon

79. Belinda Renshaw

80. Gary and Darlene Robbins

81. Jesse and Margaret Salazar

82. Steven Saunders

83. Paul and Rose Silcox

84. M.L. Standley

85. Jeff and Tammy Terrell

86. Richard Tillson

87. Sidney and Sandra Toenniges

88. James and Darlene Trapp

89. James and Darlene Tuck

90. Misty Vaughn

91. Edward and Angela Watkins

92. Jack and Brandy Webb

93. Joe and Juliana Weems

94. Kenneth and Susan Westbrook

95. C.J. and Denise White

96. Dennis and Debra Wiggins

97. Danny and Belinda Williams

98. Jerdine Williams

99. Stacy and Lisa Williams

100. T.S. and Jennifer Williamson

101. Bridget Wilson

102. Thomas and Diane Wilson

103. Ronnie Wolf

104. Jamie Wooten and Cathy Kimerer

Those individuals who were not named in the March 2003 Second Amended Complaint, were included on the December 2004 active plaintiffs list, but have not attended the hearings or filed a letter of intent to proceed as this court ordered, are DISMISSED for failure to prosecute their claims. These individuals are:

1. Ralph Griffith

2. Betty Hughes

3. Maurice and Margie Lavoie

3. Order that Certain Individuals Make a Showing that They Gave Timely Notice of Their Claims

Certain individuals were not named in the Second Amended Complaint or the active plaintiffs list, but did appear at the November 2005 hearing, the February 2006 hearing, or sent a letter explaining why they could not attend and that they intended to proceed pro se. These individuals were not formally joined to this lawsuit as plaintiffs but their presence at the hearings or letters indicated an intent to be joined. These individuals are:

1. Thomas Akiens

2. Kim Bell

3. Jason and Tiffany Bender

4. Tricia Berry

5. Leah Blankinship

6. Iva Brown

7. Shawn Burnes

8. Dorothy Crowd

9. Daniel Davis

10. Nancy Galynn

11. Bradford Hanson

12. Richard and Lillie Hill

13. Ed Hoffman

14. Ronda Huffman

15. Roderick and Wanda Jefferson

16. Melinda Johnson

17. Charles Loveday

18. Claude and Nicole McGuire

19. Michael McLain

20. Karen McNeill

21. Rudolpho and Mildred Mena

22. Catherine Morris

23. Jessie Owens

24. Wendy Ritchie

25. Debbie Starrett

26. Michelle Reyes and Dean Stuhr

27. Melissa and Alex Szuch

In addition, the following individuals were not named in the March 2003 Second Amended Complaint but were included in the December 2004 active plaintiffs list and have attended subsequent hearings or filed a notice of their intent to proceed. These individuals are:

1. Rosalynn Carney and Marland Carney

2. Robert Remeker

3. Misty Trapp and Tom Herrera

Considering the pro se status of these two groups, this court takes their appearances at the hearings and their letters of intent to proceed as motions to have the complaint amended to include them as party plaintiffs.

This case was filed in state court over five years ago. The statutes of limitation for the claims are two years for some claims and four years for others. See TEX. CIV. PRAC. REM. CODE ANN. §§ 16.003, 16.051 (Vernon 2005) (statute of limitations for both claims is two years and for breach of contract claims four years); Gibson v. Campbell Co., 624 S.W.2d 728, 732 (Tex.App.-Fort Worth 1981) (a claim for a breach of the implied warranty of habitability is governed by a two- or four-year statute of limitations); Whatley v. Nat'l Bank of Commerce, 555 S.W.2d 500 (Tex.App.-Dallas 1977) (a cause of action for negligent construction is governed by a two-year statute of limitations); Walker v. Sears, Roebuck Co., 853 F.2d 355 (5th Cir. 1988) (explaining possible statute of limitations for breach of the implied warranty of good workmanship claim as either two or four years).

An amendment adding a new party plaintiff can "relate back" to the earlier pleading so as to be timely filed only in limited circumstances. Williams v. United States, 405 F.2d 234, 237 (5th Cir. 1968). In Williams, for example, the minor plaintiff's mother had sued on behalf of her son as his next friend and sought to amend the complaint to add herself as a party plaintiff in her own right to assert claims for recovery for loss of services. Id. at 235. The Fifth Circuit found that the amended complaint related back to the original filings and made the mother's claims timely. Id. at 239. The court held that "notice is the critical element involved in Rule 15(c) decisions," and permitted the amendment because the defendant was on notice of, and not materially prejudiced by, the additional claims. Id. at 236

Other courts have applied this rationale to permit amendments adding plaintiffs whose claims would otherwise be barred by the statute of limitations. See, e.g., Raynor Brothers v. American Cyanimid Co., 695 F.2d 382, 384-85 (9th Cir. 1982); Tessier v. Moffatt, 93 F.Supp.2d 729, 736 (E.D. La. 1988); Cunningham v. Quaker Oats Co., 107 F.R.D. 66, 71-72 (W.D.N.Y. 1985). Most of the cases in which an amendment adding or substituting a plaintiff relates back to be within the time deadline are cases in which the plaintiff was already in the lawsuit in some capacity or there is a direct relationship, such as ownership, between the current plaintiffs and the new or substituted plaintiffs. See, e.g., Williams, 405 F.2d at 235 (party in lawsuit in representative capacity allowed to assert her own claims); Raynor Brothers, 695 F.2d at 384-85 (permitted substitution of affiliated partnership for corporate plaintiff); Tessier, 93 F. Supp.2d at 736 (amendment adding limited partnership as plaintiff related back to original complaint filed by the partnership's limited partners); Cunningham, 107 F.R.D. at 71-72 (in suit based on child's choking accident, mother's claims related back to suit filed by father on behalf of himself and minor child). Those circumstances are not present here. Courts have, however, permitted the addition of plaintiffs who are similarly situated even though they are not directly related to the existing plaintiffs. See, e.g., Immigrant Assistance Project of Los Angeles County Fed'n of Labor (AFL-CIO), 306 F.3d 842, 857 (9th Cir. 2002); In re: Integrated Res. Real Estate Ltd. P'ships Secs. Litig.; 815 F. Supp. 620, 642-44 (S.D.N.Y. 1993); Nielsen v. Prof'l Fin. Mgmt., Ltd., 682 F. Supp. 429, 435-36 (D. Minn. 1987); Andujar v. Rogowski, 113 F.R.D. 151, 154-58 (S.D.N.Y. 1986); Stoppelman v. Owens, 580 F. Supp. 944, 946-47 (D.D.C. 1983).

In determining whether a new plaintiff's claims relate back to the original complaint, courts consider whether: "(1) the new plaintiff's claim arose out of the same conduct, transaction or occurrence set forth in the original complaint; (2) the new plaintiff shares an identity of interest with the original plaintiff; (3) the defendants have fair notice of the new plaintiff's claim; and (4) the addition of the new plaintiff causes the defendants prejudice." Olech v. The Village of Willowbrook, 138 F. Supp. 1036, 1044 (N.D. Ill. 2000) (internal citations omitted).

Notice is the "linchpin" of the analysis. Young v. Lepone, 305 F.3d 1, 16-17 (1st Cir. 2002) (quoting Schiavone v. Fortune, 477 U.S. 21, 31 (1986)); see FED. R. CIV. P. 15(c), Advisory Committee Note to the 1966 Amendment. A finding that notice is sufficient frequently depends on "determining whether the party to be added would be prejudiced by allowing relation back under the circumstances of the particular case." 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE PROCEDURE § 1498 (2d ed. 1990); see also Young, 305 F.2d at 17 ("In our view, lack of notice and unfair prejudice go hand in hand.").

The individuals who were not named in the March 2003 Second Amended Complaint or the December 2004 active plaintiffs list, but who later attended the November 2005 hearing, the February 2006 hearing, or sent a letter explaining their absence and intent to proceed, cannot be party plaintiffs unless they can show that they previously notified the defendants of specific claims about the condition of their houses within the two or four year statute of limitations. This information must be filed with the court and sent to counsel for defendants no later than April 21, 2006. Specifically, the information must show: (1) when notice was given to defendants asserting claims based on the condition of the house or subdivision; (2) what was in the notice; (3) how the notice was given to defendants; and (4) to whom the notice was given.

Defendants may respond no later than May 12, 2006. This court will issue a subsequent order as to the status of the individuals in this group and order all party plaintiffs to mediation with the defendants.