Electrolux Home Prod v. Whitesell Corp
Filing
1433
ORDER granting 1308 Motion for Summary Judgment as to Plaintiff Whitesell's claim for expenses of litigation under O.C.G.A. § 13-6-11. Signed by Chief Judge J. Randal Hall on 12/11/2020. (pts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
WHITESELL CORPORATION,
*
*
Plaintiff,
*
*
V.
*
CV 103-050
5
ELECTROLUX HOME PRODUCTS, INC.,
*
HUSQVARNA, A.B., and HUSQVARNA
*
OUTDOOR PRODUCTS, INC.,
*
*
Defendants.
ORDER
Defendants Electrolux Home Products, Inc., Husqvarna A.B.,
and
Husqvarna
Outdoor
Products,
Inc.
have
moved
for
summary-
judgment on Plaintiff Whitesell Corporation's claim for expenses
of litigation under O.C.G.A. § 13-6-11.
For the following reasons,
the motion is granted.^
In
Count VIII of
the Second Amended
Complaint,
Whitesell
alleges that Defendants have "acted in bad faith and have been
stubbornly litigious in the positions they have taken with respect
to their dealings with Whitesell, and [Defendants] have caused
^ The Clerk gave Plaintiff notice of the summary judgment motion
and the summary judgment rules, of the right to file affidavits or
other materials in opposition, and of the consequences of default.
(Doc. No. 1313.) Therefore, the notice requirements of Griffith
V. Wainwright, 772 F.2d 822, 825 (ll*^^ Cir. 1985) (per curiam), are
satisfied.
The time for filing materials in opposition has
expired, and the motion is ripe for consideration.
Whitesell unnecessary trouble and expense." (Doc. No. 568, H 210.)
Accordingly, Plaintiff seeks expenses of litigation to include
attorneys' fees.
(Id. f 211.)
O.C.G.A. § 13-6-11 "'permits a jury to award attorney fees
[and other litigation expenses] where the defendant has acted in
bad
faith,
has
been
stubbornly
litigious,
plaintiff unnecessary trouble and expense.'"
or
has
caused
the
Koncul Enters., Inc.
V. Nationscredit Fin. Servs. Corp., 2001 WL 34052996, at *7 (S.D.
Ga. Aug. 13, 2001) (quoting Physician Specialists in Anesthesia,
PC V. MacNeill, 539 S.E.2d 216, 224 (Ga. Ct. App. 2000)).
To
recover such fees and expenses, the plaintiff must "'prove the
actual
costs
incurred
and
the
reasonableness
of
those
costs.'"
Id. at *8 (quoting Davis v. S. Exposition Mgmt. Co., 503 S.E.2d
649, 652 (Ga. Ct. App. 1998)).
Moreover, the reasonableness and
necessity of incurred expenses and fees are matters for expert
opinion.
Am. Med. Transp. Grp., Inc. v. Glo-An, Inc., 509 S.E.2d
738, 741 (Ga. Ct. App. 1998) ("[Q]uestions of reasonableness and
necessity of the expenses of litigation and attorney fees are
matters for expert opinion."); U-Haul Co. of W. Ga. v. Ford, 320
S.E.2d 868, 872 (Ga. Ct. App. 1984) (stating that expert testimony
must be presented on the issue of reasonableness); Cockfield v.
United States, 2013 WL 12157589, at *1 (S.D. Ga. Dec. 2, 2013);
Trade AM Int'l, Inc. v. Cincinnati Ins. Co., 2010 WL 11512189, at
*2
(N.D.
Ga.
Oct.
25,
2010)
(granting
2
defendant's
motion for
judgment as a matter of law on litigation expenses claim because
"without an expert witness to testify as to the reasonableness of
the expenses, . . . Plaintiff could not make out a prima facie
case for an award of fees and expenses in any amount").
In this case, Whitesell did not disclose the identify of any
expert witness who may present evidence on the necessity and
reasonableness of its attorneys' fees and litigation expenses as
required
under
Moreover,
under
Federal
Rule
Rule
of
Civil
26(a)(2)(B),
Procedure
such
26(a)(2)(A).
disclosure
must
be
accompanied by a written expert report, which Whitesell failed to
provide.
The time to disclose its experts and furnish expert
reports concluded on April 15, 2019.
(Doc. No. 1173.)
Thus, on
December 13, 2019, Defendants moved for summary judgment on the
basis that without expert testimony, Whitesell will be unable to
present evidence necessary to support its claim under O.C.G.A. §
13-6-11.
Cf. Cascade Crossing II, LLC v. RadioShack Corp., 2009
WL 10696700, at *3 (N.D. Ga. Apr. 28, 2009)
(finding summary
judgment appropriate on a claim under O.C.G.A. § 13-6-11 where the
plaintiff failed to demonstrate a triable issue of fact regarding
questions of bad faith, stubborn litigiousness and unnecessary
expense).
In response to Defendants' motion, Whitesell simply disputed
that expert testimony is required despite established case law on
the point.
(See cases cited, supra.)
3
Whitesell also contends
that it has the option to call its own counsel to testify as to
both the amount and the reasonableness of attorneys' fees and
costs.
However, even if Whitesell intends to call its own former
and present attorneys to testify, it must still disclose them as
experts in the case and furnish an expert report.
See Tindall v.
H&S Homes, LLC, 2012 WL 3637745, at *1 (M.D. Ga. Aug. 22, 2012)
("Counsels' intent to testify at trial should have accordingly
been disclosed pursuant to Rule 26, and an expert report should
have been filed."), quoted in Cockfield, 2013 WL 12157589, at *1
(granting the defendant's motion in limine to exclude plaintiff's
attorneys' testimony because the attorneys were not disclosed as
experts); Trade AM Int'1, Inc., 2010 WL 11512189 (excluding the
plaintiff's attorney's testimony on its O.C.G.A. § 13-6-11 claim
because the attorney had not been timely disclosed as an expert
and then granting the defendant's motion for judgment as a matter
of law).
That said, the Court retains wide discretion to admit expert
testimony even though there has been a failure to comply with Rule
26.
Tindall,
2012
WL
3637745,
at
*1
(cited
source
omitted).
However, the transgressing party must show that its failure to
disclose is substantially justified or is harmless.
Fed.
R.
Civ. P.
37(c)(1)).
In
this
case,
Id. (quoting
Whitesell does not
attempt to justify its failure to disclose other than to maintain
that disclosure is not required.
4
The Court, however, disagrees
and therefore finds no justification in Whitesell's failure.
With
respect
that
to
prejudice
to
Defendants,
Whitesell
contends
because there has been no trial date set, Defendants will have
ample opportunity to depose the identified testifying attorneys,
review their fees and costs invoices and other documentation, and
offer appropriate challenges.
(Pl.'s Sur-Reply, Doc. No. 1372, at
8.)
A similar situation arose in a fairly recent Northern District
of Georgia case - Dunham v. Heartland Express Inc. of Iowa, 2018
WL 4855415 (N.D. Ga. Jan. 18, 2018).
In the case, the district
judge allowed the plaintiffs to cure their pleadings at the summary
judgment stage to include a claim under O.C.G.A. § 13-6-11.
at *1.
Id.
Nevertheless, the plaintiffs failed to identify an expert
witness or file an expert report on the issue until six business
days before trial.
defendant,
the
Id.
district
In analyzing the prejudice to the
court
pointed
out
that
even
if
the
defendant could depose the plaintiffs' witnesses before trial, it
would
have
no
time
to
secure
a
rebuttal
witness.
Id.
at
*2,
Moreover, the district court noted that the proposed litigation
expenses
were
not
straightforward
or
simple
to
understand.
Accordingly, the district court would not allow the expert witness
testimony and dismissed the O.C.G.A. § 13-6-11 claim.
Id.
So too are the attorneys' fees and expenses of litigation in
this case far from straightforward or simple to understand.
One
needs only to look at the docket sheet spanning seventeen years
with 31 attorneys on Whitesell's side (by Defendants' count) to
recognize the complexity of the matter.
It would not be readily
apparent to Defendants which of those 31 attorneys would be called
to testify, which is complicated by the fact that the attorneys
practice
in varying
locations
such
as
New
York
and
Florida.
Certainly, the depositions of any identified attorney would have
to be taken, and Defendants would want an opportunity to retain
rebuttal witnesses.
Finally, with a case of this longevity and
litigiousness, it is fair to say that the
vast majority of
attorneys' fees and expenses have already been incurred, and the
parties could have been exploring issues arising therefrom during
the expert discovery period. Notably, a plaintiff may only recover
fees and expenses under O.C.G.A. § 13-6-11 attributable solely to
a prevailing claim, see Roberts v. JP Morgan Chase Bank, Nat'l
Ass'n, 802 S.E.2d 880, 887 (Ga. Ct. App. 2017); certainly the
parties will dispute whether any given fee or expense was solely
attributable to Whitesell's remaining claims.
Allowing expert
disclosure, expert reports, and inevitably related discovery now,
when as the Court described recently "there is light at the end of
the pre-trial tunnel" (doc. no. 1411, at 2), would dim the prospect
of conducting a trial as expediently as the present circumstances
of
the
COVID-19 pandemic
would
permit.
In short,
the
Court
concludes that allowing Plaintiff to identify experts on the issue
of litigation expenses pursuant to O.C.G.A. § 13-6-11 at this late
date would not be harmless to Defendants or the desired progress
of the case.
Upon the foregoing, the Court GRANTS Defendants' motion for
summary judgment as to Plaintiff Whitesell's claim for expenses of
litigation under O.C.G.A. § 13-6-11 (doc. no. 1308) because without
expert testimony on the issue, Plaintiff Whitesell would not be
able to establish said claim as a matter of law.
ORDER ENTERED at Augusta, Georgia, this 11^ day of December,
2020 .
JUDGE
UNIT^ STATES DISTRICT COURT
llERN DISTRICT OF GEORGIA
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