Out of Nowhere et al v. Nolan Transportation Group, LLC et al

Filing 103

OPINION AND ORDER. Summary judgment is denied for Plaintiffs' breach of contract claims and their fraudulent and negligent misrepresentation claims and granted as to all other claims. If the parties are interested in mediating this dispute, inc luding with one of the district's magistrate judges, they should reach out to the Court's courtroom deputy promptly to obtain a stay of this matter. But if the parties wish to proceed with trial, they must submit a consolidated pretrial order by January 31, 2025. It is ORDERED that the Motion for Summary Judgment (Doc. 98) is GRANTED IN PART as to all counts besides Counts IIII, V and VI. Signed by Judge Victoria M. Calvert on 1/3/2025. (jbu)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
OUT OF NOWHERE, a California
Corporation, doing business as
OCEANS WEST; and STEVEN BELL,
an Individual,

Civil Action No.
1:23-cv-00041-VMC

Plaintiffs,
v.
NOLAN TRANSPORTATION
GROUP, LLC, a Delaware Limited
Liability Company; MARK SMITH, an
Individual; LEE WASSERMAN, an
Individual; and, DOES 1-10, inclusive,
Defendants.
OPINION AND ORDER
Before the Court is the Motion of Defendants Nolan Transportation Group,
LLC (“NTG”), Mark Smith, and Lee Wasserman (collectively, “Defendants”) for
Summary Judgment (“Motion,” Doc. 98).
Background
I.

Parties and Governing Agreements
On July 27, 2018, Steven A. Bell, as principal of Plaintiff Out of Nowhere

(“OON”), entered into a Broker Carrier Agreement (“Agreement”) with NTG
related to furnishing contract carrier service for the transportation of goods,

property, freight, or general commodities. (Doc. 102 ¶ 1).1 Mark Smith and Lee
Wasserman are employees of NTG. (Doc. 1 ¶¶ 4, 5).
Through the Agreement, NTG agreed to solicit and arrange for
transportation of freight from clients, and OON agreed to transport the freight.
(Doc. 25-2 at 1). Each shipment under the Agreement is evidenced by a separate
bill of lading containing the job’s terms. (Id. ¶ 5). As a third-party broker, NTG has
no direct control over a job’s terms. (Doc. 102 ¶ 24). Changes and delays are
common in the trucking industry. (Id. ¶ 25).
With respect to billing and payment, Paragraph 2 of the Agreement states:
NTG will collect all Freight Charges from the Client on
all Freight transported by CARRIER. Payment by the
applicable Client to NTG is a condition precedent to
NTG’s payment to CARRIER for Freight Charges. . .
CARRIER will be responsible for all costs and expenses
associated with concessions or credits due to CARRIER’S
actions or negligence and NTG will have the right to
offset any payable owed to CARRIER.
(Id. ¶ 2). With respect to communicating with Clients, the Agreement states:
PROHIBITED
CUSTOMERS.

COMMUNICATIONS

WITH

NTG

1 The following facts are drawn from the parties’ respective Statements of Material

Facts. Citation to the relevant responsive statement without explanation or
clarification indicates the Court has deemed the underlying statement admitted.
For clarity and ease of reading, the Court omits quotation marks from admitted
statements that are reproduced in this Order. Record citations are to the internal
pagination, rather than the ECF header stamps, unless indicated otherwise.
2

During the term of this Agreement and for a period of
two (2) years after its termination for any reason,
CARRIER covenants that, without the express written
consent of and participation with NTG, CARRIER, its
agents, contractors, employees or affiliates, or anyone
directly or indirectly associated with CARRIER, or any
under its control shall not directly, directly or indirectly,
solicit, “back-solicit,” contact, communicate with or
induce, or attempt to solicit, contact, communicate with
or induce, any NTG Client for the purpose of (i)
transporting Freight or traffic or any property, (ii) selling
any product or service competitive or potentially
competitive with NTG, or (iii) terminating or adversely
changing in any way such Client’s relationship with
NTG. If CARRIER breaches this Agreement and solicits,
“back-solicits”, contacts, communicates with, induces or
transports Freight, property, traffic or business from any
NTG Client, then NTG shall be entitled, for a period of
three (3) years from the date of the violation, to a
commission from CARRIER in the amount of fifteen
percent (15%) of the gross charge on any such shipment
for said Client(s).
(Id. ¶ 3).
II.

The August 2021 Incident
On August 2, 2021, Vector Global Logistics (NTG’s client) contacted NTG

and requested assistance in securing a carrier to transport a load to Extra Space
Storage in Las Vegas. (Id. ¶ 4). On August 16, 2021, Vector Global Logistics
(“Vector”) informed NTG that delivery of the load was set for Friday August 20th
at noon. (Id. ¶ 6). Thereafter, Vector provided the pickup date. (Id. ¶ 7). Mr. Bell
responded to a posting on NTG’s website for the subject load, purportedly
weighing 20,000 pounds, and a Carrier Rate Confirmation was issued. (Id. ¶ 8; Doc.
3

100 ¶ 1). At the time, Mr. Bell inquired about the time of delivery, because he
would not book the job unless it provided adequate time to book a load back to
Los Angeles. (Doc. 100 ¶ 2). Mr. Bell, on behalf of OON, booked the job with NTG
from Los Angeles to Las Vegas on the understanding that the time of delivery
would not be in the afternoon because Mr. Bell and OON already had a load
scheduled on August 20, 2021 from Las Vegas to Los Angeles. (Id. ¶ 3).
On August 17, 2021, NTG informed Vector that the load had been assigned
to Mr. Bell/OON. (Doc. 102 ¶ 9). That same day, Vector once again confirmed the
cargo pickup and delivery dates with NTG, reflecting that delivery would be on
“Friday 08/20 @ Noon.” (Id. ¶ 10). However, at 10:45 a.m. Eastern Time,2 NTG
received notice from its client that the delivery time changed to 3:00PM, prior to
Mr. Bell’s truck being loaded at the shipper. (Doc. 98-3 at Def. Prod. 00017).
Meanwhile, Mr. Bell arrived at the shipper around 8:00 a.m. Pacific Time
(11:00 Eastern Time). (Doc. 100 ¶ 5). While Mr. Bell was in the process of picking
up the load on August 19th, he identified a discrepancy between the weight
provided by NTG and the actual weight of the cargo. (Doc. 102 ¶ 11). Specifically,
Mr. Bell noticed the gauge of his truck indicated that the load was much heavier
than 20,000 pounds and emailed an NTG Carrier Sales Representative at 8:09 a.m.

2 The Court assumes that the emails in question are in Eastern Time, as NTG’s

emails are signed with a Charleston, SC address and the Vector emails are signed
with an Atlanta, GA address.
4

Pacific Time (11:09 a.m. Eastern Time) requesting a call due to the weight issue,
stating, “[i]t is not 20000 lbs[,] it’s more like 40000.” (Doc. 100 ¶ 7).
The parties dispute the extent to which Plaintiffs had any other options at
this point but to proceed with the load anyway, but a new Second Carrier Rate
Confirmation was issued which included a $200.00 overweight charge. (Id. ¶¶ 9–
11; Doc. 102 ¶ 12). The Second Carrier Rate Confirmation still indicated a delivery
time of 12:00 p.m. (Doc. 1-3).
While Mr. Bell was in route to Las Vegas, he contacted Vector using a phone
number found on the bill of lading and was told the delivery time was 3:00 pm
Pacific Time. (Id. ¶ 14). When Mr. Bell attempted to deliver the freight in Las Vegas
at approximately 11:00 a.m. Pacific Time on August 20th, the receiving facility was
not ready for him. (Id. ¶ 15). Scott Webb, a third-party who had been retained to
remove the freight from Mr. Bell’s truck using a tow truck, rushed to the receiving
facility and arrived at approximately 12:30 p.m. (Id. ¶ 16). Mr. Webb told Mr. Bell
that he was never scheduled to unload at 12:00 p.m., but at 3:00 p.m. (Doc. 100 ¶
21).
While Mr. Bell and Mr. Webb waited for the tow truck to arrive, Mr. Bell
gave NTG the “ultimatum” of taking the freight back to the shipper. (Doc. 102 ¶
17). Mr. Bell demanded additional compensation from NTG, writing at 3:36 p.m.
Eastern/12:26 p.m. Pacific time, “2500 and I may stay”. (Id. ¶ 18).
5

Multiple NTG employees asked Mr. Bell not to leave while agreeing to
compensate him for his detention (waiting time) at the facility. (Id. ¶ 19).
Ultimately, after much delay, NTG advanced Mr. Bell $1,100 and told to “go cash
the com check and deliver the freight.” (Id. ¶ 20; Doc. 100 ¶ 243).
Following this incident, Mr. Bell repeatedly contacted NTG, Vector, and
Extra Space Storage (the receiver). (Doc. 102 ¶ 21). Mr. Bell delivered the freight
and sent a photo confirming the delivery to NTG Employee Mark Smith. (Doc. 100
¶ 25). Mr. Smith responded, “[t]hanks Steve for working with us. Send the POD
over in email and we will process the other half of the payment.” (Id. ¶ 26). Mr.
Bell attempted to follow up with Mr. Smith regarding his promise to “process the
other half of the payment” but was sent a cease-and-desist letter by Defendant
Wasserman on or about August 23, 2021. (Id. ¶ 27).
On Saturday, August 21, 2024, Mr. Bell emailed NTG about the damage to
his truck as a result of the oversized load. (Id. ¶ 28). On Monday, August 23, 2024
at 8:27 a.m., Mr. Wasserman responded that NTG does not handle “liability
claims” so Plaintiffs should take it up with who damaged the truck and that he
would be filing a FreightGuard report “out of, you know, principal.” (Id. ¶ 29). In

3 Defendants’ objection to Plaintiffs’ Statement of Additional Material Facts ¶ 24 is

overruled. A response to a statement of fact should either admit or deny the fact,
not attempt to expound on or contextualize the fact; that is the purpose of the
party’s own statement of facts.
6

response to Plaintiffs’ attempts to reach out and “take it up with who damaged the
truck,” Lee Wasserman reached out to Plaintiffs again, the same day at 3:36 p.m.,
saying “[i]f you agree to never again contact NTG or any of our customers,
shippers or receivers ever again I will put this report down now and we can all
move on.” (Id. ¶ 30).
On August 24, 2021, at 7:16 a.m., Plaintiffs received an email from Christian
Dutton, NTG senior account manager, stating that “. . . the remaining $1100 will
be paid out within 30 days that is standard.” (Id. ¶ 31).
On August 24, 2021 at 9:04 a.m., Christian Dutton, NTG senior account
manager” sent an invoice to Vector that reflected a 100% “Customer Discount”
and an email stating “Please note that the entire amount of $2400 is being removed
for the many issues our driver cause during and after this delivery…” (Id. ¶ 32).
Citing the Agreement, NTG, in turn, did not submit any further payment to
Plaintiffs. (Doc. 102 ¶ 23).
III.

FreightGuard Posts
Defendants posted two reports on FreightGuard regarding the incident: one

on August 23, 2021, and one on October 7, 2021. (Doc. 1 ¶¶ 29, 34). The August 23,
2021 post stated:
Steve Bell arrived onsite at the receiver and was told the
equipment was not there to get him unloaded. They were
running behind and we paid carrier $800 in detention to
sit and wait about 3 hours. Steve decided he would take
7

the load back to the shipper if we did not pay him for the
load upfront, and his reason was it was ‘out of principle’.
Then Steve began talking to the customer and made the
whole situation worse.
(Doc. 1-15). This post was later taken down after Plaintiffs retained counsel who
sent a cease-and-desist letter. (Doc. 1 ¶¶ 32–33). The October 7, 2021 post stated:
Steve Bell took a load that required a crane to unload.
When carrier arrived at the receiver, the crane was held
up at the first job and the carrier was informed it would
be 3 hours before the crane arrived. He was paid $800 for
3 hours and then he took the freight to a local 7/11 and
held it hostage until we paid him half the line haul
upfront, then he harassed our employers nonstop via
phone, email, and text. All of which we have evidence of.
(Doc. 1-16).
Legal Standard
Federal Rule of Civil Procedure 56(a) provides “[t]he court shall grant
summary judgment 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.” A factual
dispute is genuine if the evidence would allow a reasonable jury to find for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if it is “a legal element of the claim under the applicable substantive
law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997).

8

The moving party bears the initial burden of showing the court, by reference
to materials in the record, that there is no genuine dispute as to any material fact
that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving
party’s burden is discharged merely by “‘showing’—that is, pointing out to the
district court—that there is an absence of evidence to support [an essential element
of] the nonmoving party’s case.” Celotex, 477 U.S. at 325. In determining whether
the moving party has met this burden, the district court must view the evidence
and all factual inferences in the light most favorable to the party opposing the
motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996). Once the moving
party has adequately supported its motion, the non-movant then has the burden
of showing that summary judgment is improper by coming forward with specific
facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). All reasonable doubts should be resolved in the favor of
the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). In
addition, the court must “avoid weighing conflicting evidence or making
credibility determinations.” Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848
(11th Cir. 2000). When the record as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine dispute for trial. Fitzpatrick, 2
F.3d at 1115 (citations omitted).
9

Discussion
Following the Court’s Order of June 5, 2023 (Doc. 80), ten claims from
Plaintiffs’ Complaint remain pending: Breach of Contract (Count I), Account
Stated (Count II), Open Book Account (Count III), Unjust Enrichment (Count IV),
Fraudulent Misrepresentation (Count V), Negligent Misrepresentation (Count VI),
Libel (Count VII), Libel Per Se (Count VIII), Violation of California Business &
Professional Code § 17200 (Count XI), and Violation of 49 USC §14103(b) (Count
XII). Defendants seek summary judgment on all outstanding counts.4
I.

Contract Claims
Counts I to III essentially all seek identical relief: payment of all amounts

allegedly due Plaintiffs from the August 2021 job. Defendants argue that, under
the Agreement, payment to Plaintiffs is contingent on the condition precedent of
payment by Vector, pointing to this portion of Paragraph 2 of the Agreement:
Payment by the applicable Client to NTG is a condition
precedent to NTG’s payment to CARRIER for Freight
Charges. . . CARRIER will be responsible for all costs and
expenses associated with concessions or credits due to
CARRIER’S actions or negligence and NTG will have the
right to offset any payable owed to CARRIER.

4 Plaintiffs did not file a response to Defendants’ arguments regarding Unjust

Enrichment (Count IV) and California Business & Professional Code § 17200
(Count XI). The Court has reviewed Defendants’ brief and finds that judgment on
these claims is appropriate for the reasons Defendants gave on pages 8 and 20–21
of their brief in support of the Motion. (Doc. 98-1).
10

(Doc. 25-2 ¶ 2). Because payment by Vector did not occur, they argue, there is no
obligation under the Agreement to pay Plaintiffs. (Doc. 98-1 at 7–8). In response,
Plaintiffs contend there is a fact dispute about whether payment by Vector to NTG
was caused by NTG’s own actions, rather than the actions of Plaintiffs. (Doc. 99-1
at 10) (“The Defendants waived payment by the applicable Client without record
evidence that Client refused to make payment.”). Plaintiffs are correct.
Under Georgia law, “[i]f the nonperformance of a party to a contract is
caused by the conduct of the opposite party, such conduct shall excuse the other
party from performance.” O.C.G.A. § 13-4-23. Georgia courts have extended this
principle to conditions precedent, noting that a jury question can exist where
“nonsatisfaction of the condition precedent . . . [is] the result of [a party’s] failure
to exercise good faith,” because “[w]here a defendant prevents the performance of
a stipulation of a contract undertaken by the plaintiff, he is estopped from setting
up in his own behalf any injury which may have resulted from the nonperformance of such condition.” Merritt v. State Farm Mut. Auto. Ins. Co., 544 S.E.2d
180, 185 (Ga. Ct. App. 2000) (quoting Oxford Motors Co. v. Niblack, 360 S.E.2d 23
(Ga. Ct. App. 1987)); see also Ga. 20 Props. LLC v. Tanner, 564 S.E.2d 459, 462 (Ga.
Ct. App. 2002) (“A party cannot avoid the obligations of a contract by frustrating
the performance of a condition precedent.”).

11

For example, in Hammond v. Bank of Newnan, 456 S.E.2d 678, 678 (Ga. Ct.
App. 1995), a bank president signed an employment agreement providing for
stock options. The president attempted to exercise the option, and the bank’s board
of directors approved the action, but the shares were not delivered. Id. at 678–79.
When the bank president sued, the bank obtained summary judgment before the
trial court on the grounds that “a condition precedent to . . . [the president’s]
exercise of the option, the approval by the Bank’s shareholders and the State
Department of Banking, had never been fulfilled.” Id. at 679. On appeal, the bank
president contended that if there was a failure of a condition precedent to seek
shareholder and state approval of the options, the “failure was attributable to the
Bank,” and that “because the Bank failed to take the steps necessary to effectuate
the statute’s requirements after promising to do so, it cannot now rely on the
failure of a condition precedent that it caused.” Id. The Georgia Court of Appeals
reversed the grant of summary judgment, holding that “[b]ecause there was
conflicting evidence as to . . . whether it was [the president] or the Bank who
prevented the performance of a condition precedent, . . . issues of fact remain for
the jury.” Id. at 680.
Hammond is analogous to this case. The Agreement here provides that “NTG
will collect all Freight Charges from the Client on all Freight transported by
CARRIER.” (Doc. 25-2 ¶ 2). However, despite this promise to collect freight
12

charges, Plaintiffs argue that the record shows NTG unilaterally waived payment
by Vector, causing the nonperformance of the condition precedent. (Doc. 99-1 at
7). In response, Defendants contend that “record evidence establishes that NTG
did not seek payment from Vector in an effort to preserve its relationship with
Vector following Vector’s frustrations with Plaintiffs’ actions.” (Doc. 101 at 3). But
this only creates a fact dispute as to whether the condition precedent would have
occurred regardless of NTG’s actions.5 Accordingly, summary judgment on these
counts is denied.
II.

Misrepresentation
The Court next considers Plaintiffs’ claims for fraudulent and negligent

misrepresentation together. The Eleventh Circuit has set forth the elements for
each of these claims under Georgia law as follows:
In order to establish these two claims, a plaintiff must
show five elements: (1) that false representations were
made; (2) that the defendant knew they were false; (3)
that the representations were made either intentionally
or negligently; (4) that the plaintiff reasonably relied
5 The

Parties also discuss the Agreement’s provision barring Plaintiffs from
communicating with clients directly, but Defendants do not make any argument
regarding the operation of the provision on any obligation to Plaintiffs in their
opening brief, and the Court will not consider for the first time any argument made
in a reply brief. Carter v. Howard, No. 1:20-CV-1674-TWT-JSA, 2020 WL 10050792,
at *1 (N.D. Ga. Oct. 22, 2020) (citing Herring v. Sec’y, Dep’t of Corrections, 397 F.3d
1338, 1342 (11th Cir. 2005)); (See Doc. 101 at 5) (“Likewise, regardless of whether
Plaintiffs attempted to solicit Vector’s business from NTG, it cannot be reasonably
disputed that Plaintiffs ‘adversely chang[ed] in any way such Client’s relationship
with NTG’ as prohibited by the Communications Clause.”).
13

upon the representations; and (5) that harm proximately
resulted from that reliance.
Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1250 (11th
Cir. 2007) (citing Williams v. Dresser Indus., Inc., 120 F.3d 1163, 1167 (11th Cir. 1997)
(fraud); MacIntyre & Edwards, Inc. v. Rich, 599 S.E.2d 15, 19 n. 14 (Ga. Ct. App. 2004)
(negligent misrepresentation)).
Plaintiffs point to the allegedly false representations that the Vector load
weighed 20,000 lbs. and was scheduled for delivery in Las Vegas, NV, at 12:00 p.m.
Pacific Time when in truth the load weighed a total of 40,000 lbs. and was not
scheduled for delivery until 3:00 p.m. While both of these representations were
false, there is no evidence that at any point prior to the loading that Defendants
knew about the weight of the load. Instead the record appears to show that all
parties learned about that discrepancy at the same time.
On the other hand, there is evidence that Defendants knew that the delivery
time was false when they issued the Second Carrier Confirmation. At 10:45 a.m.
Eastern Time, NTG received notice from its client that the delivery time changed
to 3:00 p.m. (Doc. 98-3 at Def. Prod. 00017). Meanwhile, Mr. Bell emailed an NTG
Carrier Sales Representative at 11:09 a.m. Eastern Time requesting a call due to the
weight issue, more than 20 minutes later. (Doc. 100 ¶ 7). The Second Carrier Rate
Confirmation, issued after NTG learned of the delivery time change, still indicated
a delivery time of 12:00 p.m. (Doc. 1-3). And it is stipulated for the purpose of
14

summary judgment that Mr. Bell would not book the job unless it provided
adequate time to book a load back to Los Angeles, making such misrepresentation
material. (Doc. 100 ¶ 2).
Whether the misrepresentations were made negligently or intentionally is a
jury issue. As to fraudulent intent, Defendants argue that Plaintiffs cannot meet
the “high standard of intent” to claim fraud. (Doc. 101 at 6). To establish intent,
Plaintiffs essentially point to the sequence of events constituting circumstantial
evidence:
Because the Defendants knew of the 3:00PM delivery
time prior to the start of loading for Plaintiffs, and knew
that but-for this misrepresented delivery time the
Plaintiffs would not have accept the load, a reasonable
jury could find that Defendant knowingly and
intentionally conveyed material elements of the contract
in order to induce Plaintiffs to transport the subject load.
(Doc. 99-1 at 12).
Circumstantial evidence is often sufficient to create a fact dispute on
fraudulent intent. O.C.G.A. § 23-2-57 (“Fraud may not be presumed but, being in
itself subtle, slight circumstances may be sufficient to carry conviction of its
existence.”). Indeed, “[p]roof of fraud is seldom if ever susceptible of direct proof,
thus recourse to circumstantial evidence usually is required. Moreover, it is
peculiarly the province of the jury to pass on these circumstances showing fraud.”
Brown v. Mann, 514 S.E.2d 922, 924 (Ga. Ct. App. 1999) (quoting Lloyd v. Kramer,
15

503 S.E.2d 632 (Ga. Ct. App. 1998)). Therefore, Georgia courts routinely hold that
“[e]xcept in plain and indisputable cases, scienter in actions based on fraud is an
issue of fact for jury determination.” Id.
Similarly, a jury question remains on whether the misrepresentation was
negligent:
[O]ne who supplies information during the course of his
business, profession, employment, or in any transaction
in which he has a pecuniary interest has a duty of
reasonable care and competence to parties who rely
upon the information in circumstances in which the
maker was manifestly aware of the use to which the
information was to be put and intended that it be so used.
Robert & Co. Assocs. v. Rhodes-Haverty P’ship, 300 S.E.2d 503, 504 (Ga. 1983). “[T]he
negligence of the defendant and the plaintiff . . . are generally not susceptible of
summary adjudication.” Robinson v. Kroger Co., 493 S.E.2d 403, 414 (Ga. 1997).
Defendants assert summary judgment is required anyway for three reasons.
First, they argue that Plaintiffs cannot show reasonable reliance, because Mr. Bell
learned about the delayed delivery time while en route but still completed the job
(Doc. 102 ¶ 14), and in any case there is no dispute that changes and delays are
common in the trucking industry. (Id. ¶ 25). But the record is unclear at what point
Mr. Bell learned about the changed delivery time and whether not completing the
job was even feasible anymore, and “[i]ssues of justifiable reliance and proper due
diligence are generally for the jury[.]” Saks Mgmt. & Assocs., LLC v. Sung Gen.
16

Contracting, Inc., 849 S.E.2d 19, 27–28 (Ga. Ct. App. 2020) (quoting Nw. Plaza, LLC
v. Ne. Enters., 699 S.E.2d 410 (Ga. Ct. App. 2010)).
Second, Defendants argue that Plaintiffs are improperly seeking to
repackage a contract claim as a tort claim. (Doc. 98-1 at 9 n.10). But “[t]he fact that
[Plaintiffs’] damages sought on [their] fraud, negligent misrepresentation, and
breach-of-contract claims overlap with one another is not fatal to [their] tort claims
at the summary judgment stage of the proceedings.” Wanna v. Navicent Health, Inc.,
850 S.E.2d 191, 206 (Ga. Ct. App. 2020). While “[g]enerally, a mere breach of a valid
contract amounting to no more than a failure to perform in accordance with its
terms does not constitute a tort” outside of a confidential relationship, Thomas v.
Phoenix Mut. Life Ins. Co., 236 S.E.2d 510, 511 (Ga. Ct. App. 1977), Plaintiffs do not
allege a mere breach of contract—they allege an affirmative, written
misrepresentation in the contract. Hill v. Century 21 Max Stancil Realty, Inc., 371
S.E.2d 217, 218 (Ga. Ct. App. 1988) (“[O]ne may justifiably rely upon
representations of even those who are not in fiduciary relationships with them. A
fiduciary relationship is not an element of fraud but merely gives a special basis
for reliance.”) (citing Day v. Randolph, 283 S.E.2d 687 (Ga. Ct. App. 1981)). And the
fact that Plaintiffs are seeking economic damages in tort alongside in contract does
not bar their claims because the misrepresentation exception to the economic loss

17

doctrine applies to claims for fraudulent and negligent misrepresentation.
Holloman v. D.R. Horton, Inc., 524 S.E.2d 790, 796 (Ga. Ct. App. 1999).
Finally, Defendants argue belatedly in a footnote in reply that accord and
satisfaction bars claims for load weight or delivery time, (Doc. 101 at 6 n.2) but
accord and satisfaction is an affirmative defense for which Defendants bear the
burden of showing “(1) a previous valid obligation, (2) the agreement of the parties
to [the] new contract, (3) a mutual intention by the parties to substitute the new
contract for the old one, and (4) the validity of the new contract.” Stewart v. Johnson,
605 S.E.2d 111, 113 (Ga. Ct. App. 2004) (quoting Abrams v. Massell, 586 S.E.2d 435
(Ga. Ct. App. 2003)). As the Court noted above, it will not consider a new argument
raised in reply. Carter v. Howard, No. 1:20-CV-1674-TWT-JSA, 2020 WL 10050792,
at *1 (N.D. Ga. Oct. 22, 2020). Moreover, a party with the burden of proof at trial
cannot discharge its burden on summary judgment with cursory legal citations.
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it ‘must support its
motion with credible evidence . . . that would entitle it to a directed verdict if not
controverted at trial.’” United States v. Four Parcels of Real Prop. in Greene &
Tuscaloosa Cntys. in the State of Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J., dissenting)).

18

Summary judgment is thus inappropriate on the fraudulent and negligent
misrepresentation claims.
III.

Defamation
Next, the Court considers Plaintiffs’ claims for libel arising from the two

FreightGuard posts. “Under Georgia law, a ‘libel is a false defamation of another
and if what is printed is true there is no libel.’” Douglas Asphalt Co. v. QORE, Inc.,
657 F.3d 1146, 1155 (11th Cir. 2011) (quoting Savannah News–Press, Inc. v. Harley,
111 S.E.2d 259, 261 (Ga. Ct. App. 1959) and citing O.C.G.A. § 51–5–1(a)). “A cause
of action for libel will therefore fail if the statements at issue are shown to be
truthful.” Id. (citing McCall v. Couture, 666 S.E.2d 637, 639–40 (Ga. Ct. App. 2008)
and O.C.G.A. § 51–5–6.) “‘[T]ruthfulness is normally a question of fact for the jury,’
. . . but where ‘undisputed evidence of record shows that no genuine issue of
material fact remains as to [the] truth of the allegedly defamatory
communications,’ the question of whether the ‘communications were true and
would, therefore, afford . . . no basis for a recovery’ is one of law for the court to
decide.” Id. (quoting Kersey v. U.S. Shoe Corp., 440 S.E.2d 250, 252 (Ga. Ct. App.
1994); Yandle v. Mitchell Motors, Inc., 404 S.E.2d 313, 315 (Ga. Ct. App. 1991); Jim
Walter Homes v. Strickland, 363 S.E.2d 834, 836 (Ga. Ct. App. 1987)).
To determine whether a material dispute of fact exists as to the truth of the
FreightGuard posts, the Court compares the posts to the undisputed facts as
19

was informed it would be 3 hours before the crane arrived” are each false. These
statements imply that the receiver or lumper was running late when in actuality,
they were never scheduled to arrive despite the terms of the job agreed to.
Plaintiff’s secondary argument is that the statement in the October 2021
FreightGuard Post that Mr. Bell “held [the freight] hostage” falsely implied a
criminal act and moreover ignores the fact that he was unable to deliver the freight
when he arrived.
Defendants argue that any inaccuracies in these statements do not render
the posts as a whole substantially false, arguing that “‘minor factual errors which
do not go to the substance, the gist, the sting of [a] story’ do not render a
communication false for defamation purposes.” (Doc. 101 at 8) (quoting Jaillett v.
Ga. Television Co., 520 S.E.2d 721, 724 (Ga. Ct. App. 1999) (quoting Stange v. Cox
Enters., 440 S.E.2d 503 (Ga. Ct. App. 1994))). As the Georgia Court of Appeals
explained in Jaillett, a failure of a publication to tell the “whole truth” does not
render the publication “substantially false.” 520 S.E.2d at 725. “As long as facts are
not misstated, distorted or arranged so as to convey a false and defamatory
meaning, there is no liability for a somewhat less than complete report of the
truth.” Id. (quoting Blomberg v. Cox Enters., Inc., 491 S.E.2d 430, 432 (Ga. Ct. App.
1997)).

22

The Georgia Court of Appeals considered similar circumstances to this case
in Bird v. Weis Broad. Corp., 388 S.E.2d 710, 711 (Ga. Ct. App. 1989). There, a disc
jockey played a song he wrote about tow trucks which included the following
lyrics:
“[I]t’s like havin’ a license to rob.” “[I]f these guys
weren’t towing cars, they’d be politicans [sic].” “[T]hey
so bad they even make my preacher want to cuss.” “[I]t
really wouldn’t anger me, I wouldn’t have much to say,
if only my car hadn’t been parked in my driveway.” At
the end of the song the singer shouted over the closing
music: “Hey, you can’t do that . . . that’s against the law,
that’s breaking the law.”
Id. at 711. The tow company mentioned in the song admitted that “his business
had towed cars from the locations mentioned in the song and that he charged the
stated amount of money,” and therefore the court upheld judgment against the
tow company “[b]ecause the facts contained in the song were substantially true.”
Id. “The remaining content of the song,” the court held, “was merely an expression
of opinion about the practices and motivation of individuals involved in the
automobile towing business, ‘matters with respect to which reasonable men might
entertain differing opinions’ and is therefore not libelous.” Id. (quoting Bergen v.
Martindale-Hubbell, Inc., 337 S.E.2d 770 (Ga. Ct. App. 1985)).
Here, the substance of the publication is that Mr. Bell communicated directly
with a broker’s customer and threatened to take the load back if not paid up front;
misstatements about whether the receiver was running behind or was in fact never
23

scheduled to be there only go to Mr. Bell’s motivations for taking those actions.
Any statement about holding the load “hostage” was likewise an expression of
opinion about motivation. These do not render the postings substantially false
where Mr. Bell admits to having taken the actions.
To be clear, the Court agrees with Mr. Bell that Defendants’ postings give
the false impression that the receiver just happened to be running late, when
Defendants knew it would be late long before Mr. Bell arrived and neglected to
inform Mr. Bell of that fact. The fact that Defendants minimized their role in
inflaming tensions seems at odds with their attempts in this case to seize the moral
high ground and Mr. Wasserman’s statement that he was acting “out of, you
know, principal[sic].” (Doc. 99-1 at ECF p. 44). But this obfuscation does not render
the postings actionable libel. Summary judgment is therefore appropriate.
IV.

ICC Termination Act of 1995
Lastly, Plaintiffs bring claims against Defendants under Section 103 of the

ICC Termination Act of 1995 (the “Act”), codified as Subtitle IV, Part B of Title 49.
The provision in question states, in relevant part:
(b) Coercion prohibited.--It shall be unlawful to coerce
or attempt to coerce any person providing transportation
of property by motor vehicle for compensation in
interstate commerce (whether or not such transportation
is subject to jurisdiction under subchapter I of chapter
135) to load or unload any part of such property onto or
from such vehicle or to employ or pay one or more
24

persons to load or unload any part of such property onto
or from such vehicle . . . .
49 U.S.C. § 14103(b).
Section 103 of the Act provides for both civil and criminal enforcement of its
provisions, including § 14103(b). Specifically, 49 U.S.C. § 14905(a) provides for a
civil penalty 7 of no more than $10,000 for anyone who “knowingly authorizes,
consents to, or permits a violation of subsection . . . (b) of section 14103,” and 49
U.S.C. § 14905(b) provides for a criminal fine or maximum sentence of 2 years for
any person who “knowingly violates” section 14103(b). The Act also provides for
civil enforcement, specifically providing that a “carrier or broker providing
transportation or service subject to jurisdiction under chapter 135 8 is liable for
damages sustained by a person as a result of an act or omission of that carrier or
broker in violation of this part.” 49 U.S.C. § 14704(a)(2).

7 Under 49 U.S.C.A. § 14914(a), the Surface Transportation Board is responsible for

assessing civil penalties, which are paid to the United States.
8 “The phrase ‘jurisdiction under chapter 135’ generally refers to the jurisdiction of

the Secretary of the Department of Transportation and the Surface Transportation
Board . . . over the interstate transportation by motor carrier and the procurement
of that transportation.” Stehle v. Venture Logistics, LLC, No. 3:19-CV-169, 2020 WL
127707, at *3 (S.D. Ohio Jan. 10, 2020) (quoting Hegemann v. M & M Am., Inc., No.
2:18-cv-00064, 2018 WL 4502181, at *5 (D. Vt. Sept. 20, 2018), and 49 U.S.C. §§
13102(1), (2)).
25

The Eighth Circuit, on several occasions, has extensively reviewed the
legislative history of § 14103. See Jessep v. Jacobson Transp. Co., 350 F.3d 739, 742 (8th
Cir. 2003); Owner-Operator Indep. Drivers Ass’n, Inc. v. Supervalu, Inc., 651 F.3d 857,
865 (8th Cir. 2011). In Jessep, the Eighth Circuit explained that the statute concerns
the division of labor between the carrier and broker as to loading and unloading,
noting that “[t]he plain language of the statute does not prohibit all unloading of
motor vehicles by drivers, only coerced unloading,” and that “[r]elated statutes
clarify that carriers and drivers are expected to enter into contractual agreements
as to who will be responsible for unloading freight.” 350 F.3d at 742 (citing 49
U.S.C. § 14102(b)). “Additionally,” the court explained “the legislative history
indicates section 14103 was meant to prohibit coercive and extortionate practices.”
Id. (citing H.R.Rep. No. 96–1069, at 30–31 (1980)).
Having reviewed those cases, and finding them persuasive, the Court
interprets § 14103(b) to literally apply to the act of loading and unloading. There
is no allegation in this case that Plaintiffs were compelled to personally load or
unload the freight or to employ or pay any person to load or unload the freight.
Instead, Plaintiffs allege that they were “coerced” to transport freight (which was
loaded and unloaded according to the terms of the Agreement) on the false
premises that the load was 20,000 lbs. and that delivery could occur at Friday

26

August, 2021 at noon. So, § 14103(b) is not on point and summary judgment is
appropriate here, too.
Conclusion
For the above reasons, summary judgment is denied for Plaintiffs’ breach of
contract claims and their fraudulent and negligent misrepresentation claims and
granted as to all other claims. If the parties are interested in mediating this dispute,
including with one of the district’s magistrate judges, they should reach out to the
Court’s courtroom deputy promptly to obtain a stay of this matter. But if the
parties wish to proceed with trial, they must submit a consolidated pretrial order
by January 31, 2025.
It is ORDERED that the Motion for Summary Judgment (Doc. 98) is
GRANTED IN PART as to all counts besides Counts I–III, V and VI.
SO ORDERED this 3rd day of January, 2025.

_______________________________
Victoria Marie Calvert
United States District Judge

27