HIGHTOWER v GOLDBERG, et al.
ORDER granting 37 Motion to Dismiss Complaint; granting 40 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE CLAY D. LAND on 8/7/2017 (tlf).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
GEORGE GOLDBERG and GOLDBERG &
CASE NO. 4:17-CV-7 (CDL)
JOHN M. FOY and FOY &
O R D E R
Plaintiff Erma Hightower suffered injuries in a car wreck,
Goldberg, a lawyer, solicited her personal injury claim, filed
neglected Hightower’s case such that the state court eventually
offered to settle her claim, Hightower received nothing except a
bill for the at-fault driver’s attorney’s fees and costs.
Hightower brings this action against Goldberg and his law firm,
punitive damages, and attorney’s fees.
Goldberg tells a different story.
Goldberg alleges that
Hightower was dissatisfied with his services and fired him while
her personal injury claim was still pending.
contends that he received a letter from Hightower’s new counsel,
“Strong-Arm”), terminating Goldberg as Hightower’s lawyer.
contribution (ECF No. 39). 1
Goldberg claims that Foy is actually
personal injury claim to be dismissed or, at least, that Foy is
a joint tortfeasor with Goldberg.
Foy moves to dismiss the
third-party complaint, arguing that Georgia law does not provide
Goldberg with a cause of action for contribution under these
The Court agrees.
Accordingly, the Court grants
Foy’s motion to dismiss (ECF Nos. 37 & 40).
Defendants’ first third-party complaint also asserted claims against
Hightower’s current lawyer, Mark Casto, and his affiliated firms.
Defendants dropped these claims from their First Amended Third-Party
Complaint and Second Amended Third-Party Complaint.
those claims are no longer part of this action, and Casto and his
affiliated firms are no longer named parties to this action.
Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir.
2007) (per curiam) (stating that an amended complaint supersedes the
Although Goldberg’s claimed right to contribution from Foy
proper claim under Federal Rule of Civil Procedure 14, Georgia’s
apportionment statute, O.C.G.A. § 51-12-33, bars a contribution
claim under these circumstances.
Cf. Travelers Ins. Co. v. Busy
Elec. Co., 294 F.2d 139, 146 (5th Cir. 1961) (recognizing that a
substantive right to derivative liability must exist under the
diversity action). 2
The Georgia Supreme Court has explained that
“[t]he purpose of the apportionment statute is to have the jury
plaintiff together, so their respective responsibilities for the
harm can be determined.”
Couch v. Red Roof Inns, Inc., 729
S.E.2d 378, 383 (Ga. 2012).
To that end, the statute allows a
jury to “apportion its award of damages among the persons who
are liable according to the percentage of fault of each person,”
O.C.G.A. § 51-12-33(b), whether those persons are parties to the
Second Amended Answer makes it clear that he intends to ask the
See Affirmative Defenses ¶ 5, in Answer to Am. Compl.,
ECF No. 39 (“Defendants hereby give notice to Plaintiff of their
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.
and/or Mark Casto as responsible parties to be included on the
The apportionment statute could not be clearer
about its effect on contribution claims: “Damages apportioned by
the trier of fact as provided in this Code section shall be the
liability of each person against whom they are awarded, shall
not be a joint liability among the persons liable, and shall not
be subject to any right of contribution.”
33(b) (emphasis added).
O.C.G.A. § 51-12-
Consequently, Goldberg’s contribution
claim fails as a matter of law. 3
For the reasons explained in this Order, the Court grants
Foy’s motion to dismiss (ECF Nos. 37 & 40).
party complaint (ECF No. 39) is dismissed in its entirety.
IT IS SO ORDERED, this 7th day of August, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
The Court is aware that in Murray v. Patel the Georgia Court of
Appeals allowed a third-party claim for contribution to go forward
despite the enactment of the apportionment statute.
See Murray v.
Patel, 696 S.E.2d 97, 99 (Ga. Ct. App. 2010). More recently, however,
the Court of Appeals has expressed skepticism about the vitality of
Murray in light of the “circumstances and legal landscape forged by”
the Georgia Supreme Court’s subsequent holdings that the apportionment
statute abrogated claims for contribution and apportionment when fault
is apportioned between tortfeasors.
See Dist. Owners Ass’n v. AMEC
Envtl. & Infrastructure, Inc., 747 S.E.2d 10, 14 (Ga. Ct. App. 2013)
(referring to the “continuing precedential value” of Murray as
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