HIGHTOWER v GOLDBERG, et al.
Filing
59
ORDER denying 49 Motion exclude expert testimony; denying in part and granting in part 50 Motion for Summary Judgment; denying 52 Motion to Strike. Ordered by US DISTRICT JUDGE CLAY D. LAND on 1/4/2018 (tlf).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ERMA HIGHTOWER,
*
Plaintiff,
*
vs.
*
GEORGE GOLDBERG and GOLDBERG &
DOHAN, L.L.P.,
*
CASE NO. 4:17-CV-7 (CDL)
*
Defendants.
*
O R D E R
Defendants represented Plaintiff in a case arising from a
car wreck.
After they filed a lawsuit against the at-fault
driver on Plaintiff’s behalf, Defendants failed to respond to a
discovery related motion.
The trial judge dismissed the action
with prejudice and assessed attorney’s fees and costs against
Plaintiff.
Plaintiff then brought a legal malpractice action
against Defendants in state court, which Defendants subsequently
removed
to
this
Court
based
on
diversity
Defendants now move for summary judgment.
motion,
they
expert.
Defendants’
As
seek
to
exclude
explained
motion
to
in
exclude
the
the
(ECF
of
In support of that
testimony
remainder
No.
citizenship.
49)
of
Plaintiff’s
of
this
is
denied.
Order,
And
because genuine factual disputes exist to be tried, Defendants’
motion for summary judgment (ECF No. 50) is also denied except
as to Plaintiff’s breach of fiduciary duty claim.1
MOTION TO EXCLUDE PLAINTIFF’S EXPERT OPINION EVIDENCE
Defendants
expert
seek
because
scheduling
26(a)(2),
exclude
Plaintiff
order
and
to
in
and
failed
with
the
the
testimony
to
comply
Federal
alternative,
Rule
of
with
of
because
Plaintiff’s
this
Civil
the
Court’s
Procedure
testimony
is
inadmissible under Federal Rule of Evidence 702 as interpreted
by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) and its progeny.
I.
The Court rejects both arguments.
Compliance with the Federal Rules of Civil Procedure
The
scheduling
Plaintiff
to
Defendants
with
order
designate
their
entered
any
in
expert
reports
no
this
witnesses
later
than
Scheduling/Discovery Order 3–4, ECF No. 12.
case
required
and
May
provide
23,
2017.
Defendants did not
receive any materials styled as Plaintiff’s expert disclosure
until Plaintiff belatedly responded to their motion to exclude
expert testimony.
See Pl.’s Resp. to Defs.’ Mot. to Exclude Ex.
A, R. Beauchamp Expert Report, ECF No. 51-1.2
1
But when Plaintiff
After the case was removed, Plaintiff added claims against Defendants
for breach of fiduciary duty and fraud.
Am Compl., ECF No. 21.
Plaintiff has since conceded her fraud claim, and the Court finds that
Plaintiff’s breach of fiduciary duty claim is duplicative of her legal
malpractice claim and thus cannot proceed to trial.
2
Although Plaintiff inexplicably failed to timely respond to
Defendants’ motion to exclude expert testimony, the Court will
exercise
its
discretion
and
allow
Plaintiff’s
late
filing.
Consequently, Defendants’ motion to strike Plaintiff’s response is
2
initially filed this action in state court, Plaintiff attached
to her Complaint an affidavit from her expert.
See Notice of
Removal Ex. 1, Compl. Ex. A, R. Beauchamp Aff., ECF No. 1-1 at
10–17.
Because
that
affidavit
did
not
include
all
of
the
information Rule 26(a)(2)(B) requires, and because Plaintiff did
not
disclose
a
complete
expert
report
before
the
Court’s
deadline expired, Plaintiff failed to comply with her disclosure
obligations
under
Rule
26.
See
OFS
Fitel,
LLC
v.
Epstein,
Becker and Green, P.C., 549 F.3d 1344, 1362 (11th Cir. 2008)
(finding plaintiff violated Rule 26 where plaintiff disclosed
its expert report after the close of discovery and plaintiff’s
filing
affidavit
did
not
include
the
information
Rule
26(a)(2)(B) required).
District
courts
are
authorized
“to
exclude
an
expert’s
testimony where a party has failed to comply with Rule 26(a)
unless the failure is substantially justified or is harmless.”
Id.
at
1363
(citing
Fed.
R.
Civ.
P.
37(c)).
The
expert
affidavit Plaintiff filed with her Complaint included everything
a
Rule
26
expert
report
requires
except
a
statement
of
Mr.
Beauchamp’s compensation, a list of publications he has authored
within the last ten years, and a list of court proceedings in
which he has testified as an expert in the last four years.
denied. The Court admonishes Plaintiff’s counsel to follow the rules
of this Court going forward. The slackness of Plaintiff’s counsel is
particularly ironic given that Plaintiff is pursuing a claim for legal
malpractice.
3
But,
as
it
turns
out,
Mr.
Beauchamp
has
not
authored
any
publications within the last ten years or testified as an expert
in any proceedings in the last four years.
Beauchamp’s
compensation,
the
Plaintiff’s
Except for Mr.
filing
affidavit,
therefore, contained the essential information that would have
been included in her expert report pursuant to Rule 26.
Although
Plaintiff
failed
to
comply
with
Rule
26,
Defendants had available to them information that substantially
complied with the expert disclosure requirements of Rule 26.
And Defendants demonstrated no prejudice caused by Plaintiff’s
non-compliance.
their
own
The
Court
notes
to
rebut
Mr.
expert
that
Defendants
Beauchamp’s
designated
opinions
despite
Plaintiff’s belated disclosure, and there is no evidence in the
record
that
Defendants
were
unable
before the close of discovery.
to
depose
Mr.
Beauchamp
Consequently, the Court finds
that Plaintiff’s failure to timely disclose her expert report is
harmless,
and
the
Court
will
not
exclude
Mr.
Beauchamp’s
opinions on this ground.
II.
Compliance with the Federal Rules of Evidence
Under Federal Rule of Evidence 702, the Court must serve as
the
“gatekeeper
testimony.”
to
keep
out
irrelevant
or
unreliable
expert
United States v. Ala. Power Co., 730 F.3d 1278,
1282 (11th Cir. 2013) (citing Kumho Tire Co. v. Carmichael, 526
U.S.
137,
145
(1999)
and
Daubert,
4
509
U.S.
at
596).
In
evaluating the admissibility of expert testimony under Rule 702,
the Court must consider whether “(1) the expert is qualified to
testify competently regarding the matters he intends to address;
(2) the methodology by which the expert reaches his conclusions
is sufficiently reliable . . .; and (3) the testimony assists
the
trier
of
fact
. . .
to
determine a fact in issue.”
1244,
1260
(11th
Cir.
understand
the
evidence
or
to
United States v. Frazier, 387 F.3d
2004)
(en
banc)
(quoting
City
of
Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.
1998)).
contest
At this stage of the proceedings, Defendants do not
Mr.
Beauchamp’s
qualifications,
relevance of his opinions.
unreliable
because
Mr.
methodology,
or
the
They argue that his opinions are
Beauchamp
failed
to
consider
certain
facts that were revealed later in discovery.
Mr. Beauchamp stated the facts and documents he relied on
and
explained
that
he
used
his
background,
training,
and
experience as an attorney licensed in Georgia with experience
representing
opinions.
personal
injury
claimants
to
formulate
his
Applying that methodology, Mr. Beauchamp opined that
Defendants breached the applicable standard of care, that their
breach caused Plaintiff’s state court case to be dismissed, and
that,
absent
Defendants’
prevailed in state court.
51-1 at 4–11.
breach,
Plaintiff
likely
would
have
R. Beauchamp Expert Report, ECF No.
The Court finds that Mr. Beauchamp is qualified
5
to give the opinions contained in his expert report, that his
methodology is sufficiently reliable, and that those opinions
would assist the trier of fact in this case.
His opinions are
thus admissible.
Defendants’ objections go to the weight and credibility of
Mr.
Beauchamp’s
Beauchamp
opinions,
failed
to
not
consider
their
reliability.
certain
facts
in
If
Mr.
forming
his
opinions, Defendants will be able to vigorously cross examine
him, present their own expert testimony, and tell the jury why
they believe his opinion should not be believed.
Accordingly,
Defendants’
opinions
motion
to
exclude
Mr.
Beauchamp’s
is
denied.
MOTION FOR SUMMARY JUDGMENT
Plaintiff asserts claims for legal malpractice and breach
of fiduciary duty.
as
well
as
She seeks compensatory and punitive damages
litigation
expenses,
including
attorney’s
fees.
Defendants move for summary judgment as to all of Plaintiff’s
claims.
They maintain that no reasonable juror could conclude
that they breached the applicable duty of care that they owed to
Plaintiff; they also argue that a litigant cannot pursue both a
claim for legal malpractice and breach of fiduciary duty under
Georgia law.
exists
on
And to the extent that a genuine factual dispute
Plaintiff’s
legal
malpractice
6
claim,
Defendants
contend that no evidence exists supporting an award of punitive
damages or litigation expenses.
I.
Summary Judgment Standard
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
In determining whether a genuine dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit under the substantive
law the Court is applying.
Id. at 248; Chapman v. AI Transp.,
229 F.3d 1012, 1023 (11th Cir. 2000).
A factual dispute is
genuine if the evidence would allow a reasonable jury to return
a verdict for the nonmoving party.
Liberty Lobby, Inc., 477
U.S. at 248.
II.
Factual Background
Viewed in the light most favorable to Plaintiff, the record
reveals the following facts.3
3
Consistent with his approach to this case, see supra note 2,
Plaintiff’s counsel failed to specifically respond to Defendants’
statement of undisputed material facts and, thus, failed to comply
with this Court’s Local Rule 56.
See M.D. Ga. L.R. 56 (requiring
respondent to a motion for summary judgment to “attach to the response
7
After Plaintiff was involved in a car wreck in 2013, she
retained Defendants to represent her in a personal injury action
against the other driver.
Defendants’ staff determined that the
only insurance coverage available to her was a $25,000 bodily
injury policy issued by State Farm.
G. Goldberg Decl. ¶ 4, ECF
No. 50-12 [hereinafter “Goldberg Decl.”].
to settle the case.
Defendants attempted
The settlement process eventually broke
down, and, on March 31, 2014, Katherine Franke, an attorney with
Defendants,
behalf
filed
against
Muscogee County.
a
the
personal
at-fault
injury
driver
lawsuit
in
the
on
State
Plaintiff’s
Court
of
Goldberg Decl. ¶ 8; see generally Pl.’s State
Court Complaint, ECF No. 50-3.
In September of 2014, counsel for the defendant in the
state
court
action
sought
discovery
from
Plaintiff.
See
generally Letter from C. Case to K. Franke (Sept. 3, 2014), ECF
No. 50-4.
next.
assistance
A genuine factual dispute exists as to what happened
Defendants
in
contend
responding
that
to
they
the
sought
discovery
Plaintiff’s
requests.
a separate and concise statement of material facts . . . to which the
respondent contends there exists a genuine dispute to be tried”).
Regardless of a party’s compliance with this rule, the Court still
must determine whether the movant’s motion and supporting papers
establish the absence of a genuine issue of material fact.
United
States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101–02 (11th Cir. 2004);
see also M.D. Ga. L.R. 56 (stating that all material facts not
specifically disputed shall be “deemed to have been admitted, unless
otherwise inappropriate” (emphasis added)).
In this case, the Court
finds that the materials submitted in support of Defendants’ motion
for summary judgment, in fact, establish the presence of factual
disputes that must be resolved by a jury.
8
See Goldberg Decl. ¶¶ 11–12; see also Letter from G. Goldberg to
Plaintiff (Sept. 11, 2014), ECF No. 50-5; Letter from K. Franke
to Plaintiff (Sept. 24, 2014), ECF No. 50-6.
Defendants also
maintain that Plaintiff never responded to their requests for
her
assistance
and
that
Plaintiff,
eventually,
contacted
Defendant Goldberg directly and directed him to take no further
action on her case as she was in the process of retaining new
counsel.
Goldberg Decl. ¶ 13.
Plaintiff disputes these facts.
She testified that she only spoke to Franke once, when Franke
communicated a settlement offer to Plaintiff.
15, ECF No. 50-14.
Pl. Dep. 26:13–
Plaintiff further testified that no one else
from Defendants’ firm reached out to her while it was handling
her claim and that she attempted to contact the firm on multiple
occasions with little success.
Pl. Dep. 25:18–27:18, 42:3–4.
Plaintiff described her predicament as feeling as if Defendants
had “just disappeared.”
Id. at 46:11–12.
She also disputes
Defendants’ version of how she terminated them.
Id. at 45:23–
25, 48:7–10.
In October of 2014, unable to reach Defendants and feeling
abandoned, Plaintiff visited the website of Foy & Associates,
P.C. (“Foy & Associates”), the self-proclaimed Strong Arm, and
told
a
representative
accident.
Id. at
of
the
46:11–20,
firm
47:1–4.
that
she
After
had
been
speaking
in
an
with
a
representative from Foy & Associates on the phone, she hired the
9
firm to represent her.
By letter dated October 14, 2014, John
Foy notified Defendants that Plaintiff was no longer in need of
their services and requested that Defendants forward a complete
copy of her file to his office.
Enclosed with his letter was a
Letter of Termination signed by Plaintiff.
Letter from J. Foy
to Defs. (Oct. 14, 2014), ECF No. 50-7.
A
factual
dispute
Defendants
provided
Plaintiff’s
case.
letter
dated
exists
Foy
regarding
&
Associates
Defendants
October
22,
the
contend
2014
that
discovery obligations and asked
extent
to
information
that
they
informed
about
sent
Foy
of
which
Foy
a
pending
him to execute and submit a
notice of substitution of counsel in the state court action.
Goldberg
Decl.
¶
15;
Letter
from
Goldberg
to
Foy
(Oct.
2014), ECF No. 50-8 [hereinafter “October 22 Letter”].
22,
Foy
testified that his firm never received the October 22 Letter
from Defendants and that his firm never received a complete file
from Defendants.
13.
J. Foy. Dep. 10:13–16, 63:12–21, ECF No. 50-
Foy also testified that, despite repeated phone calls and
opportunities, Defendants failed to ever tell his firm of any
pending lawsuit in Plaintiff’s case.
61:9.
Id. at 60:13–16, 60:23–
Because Defendants refused to cooperate, Foy maintains
that his firm had no idea that Plaintiff had a pending lawsuit
that had been filed by Defendants.
10
Id. at 61:18.
On October 20, 2014, the defendant in Plaintiff’s state
court suit filed a motion to compel related to the outstanding
discovery requests.
Goldberg Decl. ¶ 17.
It is undisputed
that, although Defendants were counsel of record for Plaintiff
in the state court action, they never responded to the pending
motion to compel or sought an extension; they never filed a
notice
of
permission
substitution
from
the
counsel.
Id. ¶ 16.
motion.
On
of
state
counsel,
court
and
to
they
withdraw
never
as
sought
Plaintiff’s
Foy’s firm also failed to respond to the
November
25,
2014,
the
state
court
dismissed
Plaintiff’s personal injury action with prejudice for “willfully
fail[ing] to respond” to the state court defendant’s discovery
requests
Plaintiff.
and
9.
assessed
attorney’s
fees
and
costs
against
State Court Order Dismissing Pl.’s Suit, ECF No. 50-
Almost two years later, Plaintiff brought the present case
against Defendants.
III. Discussion
A.
Legal Malpractice
Plaintiff
claims
that
Defendants
committed
legal
malpractice by failing to respond to the state court defendant’s
motion to compel, which sought dismissal of Plaintiff’s case as
a sanction for failing to respond to discovery.
It is axiomatic
that “allowing a lawsuit to go into default by failing to file
any defensive pleadings or securing an extension of time would
11
be
a
clear
and
palpable
case
of
legal
malpractice.”
Hill
Aircraft & Leasing Corp. v. Tyler, 291 S.E.2d 6, 11 (Ga. Ct.
App. 1982).
Likewise, failure to respond to a motion that seeks
dismissal of a client’s claim with prejudice would provide a
clear claim of malpractice, absent extenuating circumstances.
“In a legal malpractice action, the client has the burden of
establishing
three
elements:
(1)
employment
of
the
defendant
attorney, (2) failure of the attorney to exercise ordinary care,
skill
and
proximate
diligence,
cause
of
and
(3)
damage
to
that
the
such
negligence
plaintiff.”
was
the
Oehlerich
v.
Llewellyn, 647 S.E.2d 399, 401 (Ga. Ct. App. 2007) (quoting
Szurovy
v.
2000)).
Olderman,
530
S.E.2d
783,
785-86
(Ga.
Ct.
app.
Defendants do not presently dispute that an attorney
client relationship existed between Plaintiff and Defendants or
that a genuine factual dispute exists as to whether Defendants
failed to exercise the requisite degree of care.
Defendants
argue that they are entitled to summary judgment based on a lack
of causation.
Defendants first contend that Foy & Associates’ failure to
respond to the motion to compel is a superseding cause of the
dismissal
of
Plaintiff’s
chain of causation.
state
court
case,
which
breaks
the
“[W]hether substitution of new counsel who
negligently fails to cure the results of the first counsel’s
negligence cuts off the first counsel’s liability[]. . . depends
12
on the foreseeability of the intervening negligence.”
Meiners
v. Fortson & White, 436 S.E.2d 780, 781 (Ga. Ct. App. 1993)
(holding that second attorney’s failure to perfect service was
unforeseeable
as
a
matter
of
law
where
first
attorney
specifically advised second attorney that a party needed to be
served).
In this case, there is a genuine factual dispute as to
whether it was foreseeable that Foy & Associates would fail to
respond
to
the
motion
pending
in
state
court.
Although
Defendants contend they fully informed Foy & Associates about
the
pending
evidence
litigation
from
Defendants
which
did
not
a
and
discovery
jury
tell
could
Foy
&
obligations,
reasonably
Associates
there
conclude
of
any
is
that
pending
litigation and that Defendants were aware or should have been
aware that Foy & Associates would not discover the state court
action in time to respond to the pending motion.
could
reasonably
conclude
that,
as
the
That same jury
response
deadline
approached, it was foreseeable that Foy & Associates was not
going
to
respond
to
the
motion
and,
thus,
that
Defendants’
failure to respond to the motion or to seek an extension of time
was
a
proximate
cause
of
the
dismissal
of
the
state
court
action.
Defendants further contend that Plaintiff cannot show that
their failure to respond to the motion proximately caused her
any damages.
“A claim for legal malpractice is sui generis
13
insofar as the plaintiff’s proof of damages effectively requires
proof
that
[s]he
litigation.”
Crews,
406
would
Oehlerich,
S.E.2d
566,
have
647
567
prevailed
S.E.2d
(Ga.
at
Ct.
in
401
App.
the
original
(quoting
1991)).
Nix
v.
Because
Plaintiff claims that the car wreck aggravated a pre-existing
back condition, Defendants argue that Plaintiff must put forth
expert testimony on causation to prove a causal relationship
between the car wreck and her injuries.
The Court disagrees.
“A back injury resulting from a car accident does not raise a
medical
question
requiring
expert
testimony
on
causation.”
Safeway Ins. Co. v. Hanks, 747 S.E.2d 890, 891–92 (Ga. Ct. App.
2013) (holding that the plaintiff was not required to present
expert testimony on whether the car wreck caused his back injury
or aggravated his
pre-existing back injury).
In this
case,
Defendants appear to concede that Plaintiff had a back injury
before
the
car
wreck.
Goldberg
Decl.
¶
5.
And
there
is
evidence in the record that Plaintiff immediately experienced
pain and immobility after the wreck and that she sought medical
treatment
to
relieve
her
symptoms.
Thus,
a
jury
could
reasonably conclude that the car wreck aggravated Plaintiff’s
pre-existing back condition.
exist
regarding
causation,
Because genuine factual disputes
Defendants’
motion
for
summary
judgment on Plaintiff’s claim for legal malpractice is denied.4
4
At this stage of the proceedings, the Court rejects Defendants’
14
B.
Breach of Fiduciary Duty
Defendants are entitled to summary judgment on Plaintiff’s
breach of fiduciary duty claim.
A “claim for legal malpractice
is based on the establishment of a fiduciary attorney-client
relationship
that
[the
former
client]
Oehlerich, 647 S.E.2d at 402.
claims
was
breached.”
Where a claim for breach of
fiduciary duty merely duplicates a claim for legal malpractice,
it cannot survive summary judgment.
Griffin v. Fowler, 579
S.E.2d 848, 850 (Ga. Ct. App. 2003) (affirming summary judgment
on plaintiff’s breach of fiduciary duty claim where it was based
on same allegations as plaintiff’s legal malpractice claim).
In
this case, Plaintiff alleges identical facts about Defendants’
misconduct in support of her legal malpractice and breach of
fiduciary duty claims.
(incorporating
by
See Compl. ¶¶ 1–33; Am. Compl. ¶ III
reference
paragraphs
1–33
of
Plaintiff’s
Complaint in support of her breach of fiduciary duty claim).
Further, Plaintiff has not pointed the Court to any evidence of
separate
conduct
or
damages
that
would
support
a
breach
of
fiduciary duty claim apart from her legal malpractice claim.
argument that Plaintiff cannot recover emotional distress damages.
The Court knows of no reason why she could not recover the same
elements of damage that she could have recovered in the underlying
case.
Thus, if she puts up evidence at trial showing emotional
distress caused by her physical injuries from the car wreck, it
appears that she should be able to recover those damages.
If
Defendants can point to contrary authority under Georgia law, the
Court will reconsider this issue prior to trial.
15
Accordingly, Defendants’ motion for summary judgment is granted
as to Plaintiff’s breach of fiduciary duty claim.
C.
Punitive Damages
Defendants seek summary judgment on Plaintiff’s claim for
punitive damages, contending that the evidence shows, at most,
that Defendants were negligent.
malpractice
damages.”
.
.
.
may
The Court disagrees.
warrant
the
imposition
of
“Legal
punitive
Home Ins. Co. v. Wynn, 493 S.E.2d 622, 628 (Ga. Ct.
App. 1997).
As in other contexts, punitive damages are only
available if “it is proven by clear and convincing evidence that
the
defendant’s
actions
showed
willful
misconduct,
malice,
fraud, wantonness, oppression, or that entire want of care which
would
raise
the
consequences.”
‘conscious
presumption
O.C.G.A.
indifference
of
conscious
§
51-12-5.1(b).
to
consequences’
indifference
“The
to
expression
‘relates
to
an
intentional disregard of the rights of another, knowingly or
willfully disregarding such rights.”
Home Ins. Co., 493 S.E.2d
at 628 (quoting Read v. Benedict, 406 S.E.2d 488, 491 (Ga. Ct.
App. 1991)).
In this case, there is evidence from which a
reasonable jury could conclude Defendants knew a motion had been
filed in state court seeking the dismissal of Plaintiff’s case
and that
Plaintiff’s new counsel was unaware of the pending
motion.
Nonetheless, Defendants allowed the response deadline
to pass without responding, seeking an extension of time, filing
16
a motion to withdraw as counsel, or informing Foy & Associates
of
the
motion.
reasonably
Based
conclude
on
that
these
circumstances,
Defendants
abandoned
a
jury
could
Plaintiff
and
their professional obligations as lawyers and chose to ignore
the
pending
dismissed
motion,
as
a
knowing
result.
that
A
Plaintiff’s
better
claim
example
of
indifference to consequences would be hard to find.
would
be
conscious
Of course,
the jury may not accept Plaintiff’s version of the facts, but at
this
stage
version.
of
the
proceedings,
this
Court
must
accept
that
Defendants’ motion for summary judgment on Plaintiff’s
claim for punitive damages is denied.
D.
Recovery of Litigation Expenses
Defendants move for summary judgment on Plaintiff’s claim
for
litigation
pursuant
to
expenses.
O.C.G.A.
Plaintiff
§ 13-6-11
which
seeks
those
allows
expenses
expenses
of
litigation to be awarded as part of damages “where the defendant
has acted in bad faith, has been stubbornly litigious, or has
caused the plaintiff unnecessary trouble and expense”.
“The bad
faith referred to [in O.C.G.A. § 13-6-11], in actions sounding
in tort, means bad faith in the transaction out of which the
cause of action arose.”
Brown v. Baker, 398 S.E.2d 797, 799
(Ga. Ct. App. 1990) (alteration
in original).
“‘Bad faith’
. . . imports a dishonest purpose or some moral obliquity, and
implies conscious doing of wrong, and means breach of [a] known
17
duty through some motive of interest or ill will.”
Motte, 137 S.E.2d 77, 80 (Ga. Ct. App. 1964).
Vickers v.
At this stage of
the proceedings and based on the present record, the Court finds
that a genuine factual dispute exists as to whether Plaintiff is
entitled
to
Accordingly,
her
litigation
Defendants’
expenses
motion
for
pursuant
summary
to
§ 13-6-11.
judgment
on
this
claim is denied.
CONCLUSION
Defendants’ motions to exclude the testimony of Plaintiff’s
legal expert and to strike Plaintiff’s belated response to that
motion (ECF Nos. 49 & 52) are denied.
summary
judgment
(ECF
No.
50)
is
Defendants’ motion for
also
denied
except
as
to
Plaintiff’s breach of fiduciary duty claim.
IT IS SO ORDERED, this 4th day of January, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
18
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