GJ&L, Inc. v. CNH Industrial America, LLC
Filing
53
ORDER denying 51 Motion for Certificate of Appealability of Summary Judgment Order. Signed by Judge Dudley H. Bowen on 08/06/2018. (jlh)
FILED
U.S. OlBTRiCT COURT
.^LIG'J-.TA n^V.
IN THE UNITED STATES DISTRICT COURT FOR
SOUTHERN DISTRICT OF GEORGIA
THE'
jnififtng-g PH 3:56
AUGUSTA DIVISION
GJ&L, INC.,
CLERK
H
SO.OiSi.CF'GA.
Plaintiff,
CV 117-179
V.
CNH INDUSTRIAL AMERICA, LLC,
Defendant.
ORDER
Before the Court is Plaintiff's Motion for Certificate
for Interlocutory Appeal, or, Alternatively, Certification to
the Georgia Supreme Court.
(Doc. No. 51.)
For the following
reasons. Plaintiff's motion is DENIED.
Plaintiff GJ&L, Inc., is a heavy equipment dealership
that sells backhoe loaders, skid steer loaders, bulldozers,
crawler dozers, excavators, and wheel dozers.
Plaintiff
initiated this action to challenge the Dealership Agreement it
entered into with
Defendant CNH Industrial America, LLC, a
heavy equipment manufacturer.
Plaintiff alleges that because
the products it sells are used for agricultural purposes, the
Dealership Agreement is subject to Georgia's Regulation of
Agricultural
Equipment
Manufacturers,
Distributors,
and
Dealers (the "Agriculture Act"), O.C.G.A. § 13-8-11, et seq.
The
Agriculture
Act
imposes
restrictions
on
franchise
agreements that involve the sale of equipment, which is
defined under the act to include ''tractors, farm equipment, or
equipment primarily designed for or used in agriculture,
horticulture, irrigation for agriculture or horticulture, and
other such equipment which is considered tax exempt and sold
by the franchised equipment dealer."
On
O.C.G.A. § 13-8-12(6).
February 19, 2018, Plaintiff filed a
Motion for
Partial Summary Judgement asking the Court to decide, inter
alia,
whether
the
Agriculture Act.
because
the
Dealership
Agreement
(Doc. No. 17.)
equipment it sells
fell
under
the
Plaintiff insisted that
is
either
(1) "used
in
agriculture" or (2) "other such equipment which is considered
tax
exempt,"
Agriculture
the
Act.
Dealership
On
July
Agreement
9,
2018,
falls
the
under
Court
the
denied
Plaintiff s Motion for Partial Summary Judgment on the grounds
that whether Plaintiff sold equipment, as defined by O.C.G.A.
§ 13-8-12(6), involved
"Order").
a
(Doc. No. 50.)
disputed
question
of fact
(the
Plaintiff insists that the Court's
interpretation of O.C.G.A. § 13-8-12(6) is mistaken and on
July 17, 2018, Plaintiff filed a motion asking the Court to
certify this issue for interlocutory review by the Eleventh
Circuit, or, alternatively, to issue a certified question to
the Georgia Supreme Court.
Although the Order sufficiently supported its analysis
with respect to deciding whether the equipment Plaintiff sells
is "primarily designed for or used in agriculture," further
clarification is in order to explain why "other such equipment
which is considered tax exempt" involves a question of fact
that cannot be answered through summary judgment.
A.
Other Such Equipment Which is Considered Tax Exempt
Plaintiff insists that O.C.G.A. § 13-8-12(6) creates four
categories of equipment that are regulated by the Agriculture
Act:
(1) tractors,
(2) farm equipment, or (3) equipment
primarily designed for or used in agriculture, horticulture,
irrigation for agriculture or horticulture, and (4) other such
equipment which is considered tax exempt and sold by the
franchised equipment dealer.
Plaintiff's
separating
interpretation
"farm
As
explained in the Order,
ignores
equipment"
and
the
conjunction
"equipment
"or"
primarily
designed," and the absence of such a conjunction between
"horticulture" and "irrigation."
"such," which
appears to create
It also ignores the word
a
subset
of "equipment
primarily designed for or used in agriculture, horticulture,
irrigation for agriculture or horticulture."
Nevertheless, even accepting Plaintiff's interpretation.
Plaintiff would still need to prove that its equipment is
considered tax exempt. Pursuant to Georgia's agricultural tax
exemption, O.C.G.A. § 48-8-3.3, whether a piece of equipment
is tax exempt depends on how that equipment is used. To
support its Motion for Partial Summary Judgment, Plaintiff
3
cited to the testimony of Brett Arrowood, who is a manager at
GJ&L, Inc.
(Arrowood Aff., Doc. No. 17-2.)
testified
that
customers
who
(''GATE") card.
seventy-two
use
a
percent
Georgia
of
its
Agricultural
Mr. Arrowood
sales
Tax
are
to
Exemption
While this evidence is persuasive, it does not
conclusively establish that the equipment Plaintiff sells is
used for an exempt purpose and therefore is considered tax
exempt.
Although it seems unlikely that seventy-two percent of
Plaintiff s customers are using their GATE cards for non-
exempt purposes, Defendant put forward evidence showing just
that.
Defendant's Electronic Settlement System shows that
over ninety-eight percent of the equipment Plaintiff sold was
used by customers for non-agricultural purposes and therefore
not considered tax exempt pursuant to O.C.G.A. § 48-8-3.3.
(Doc.
No.
19-1, If
14-16.)
Because
both
parties
have
supported their opposing claims with evidence, the Court
cannot find that
Planitiff's equipment is considered
tax
exempt without engaging in a credibility determination, which
is not appropriate for summary judgment.
Anderson v. Liberty
Lobbv. Inc., 477 U.S. 242, 249-50 (1986).
B.
Interlocutory Review Under 28 U.S.C. § 1292(b)
Turning to the pending motion, pursuant to 28 U.S.C. §
1292(b),
a
district
court
may
certify
an
issue
for
interlocutory review when that issue deals with ^Ml) pure
questions of law, (2) which are controlling of at least a
substantial part of the case, (3) and which are specified by
the district court in its order, (4) and about which there are
substantial grounds for difference of opinion, (5) and whose
resolution
may
well
substantially
reduce
the
amount
of
litigation necessary on remand." McFarlin v. Conseco Servs.,
LLC. 381 F.3d 1251, 1264 (11th Cir. 2004).
Yet, even when
these conditions have been met, interlocutory review is the
^^rare exception."
Id.
Indeed, the Supreme Court discussed
the danger of abusing interlocutory appeal in Johnson v.
Jones. 515 U.S. 304 (1995), where it remarked
that:
The statute recognizes that rules that permit too
many interlocutory appeals can cause harm. An
interlocutory appeal can make it more difficult for
trial judges to do their basic job-supervising
trial
proceedings.
It
can
threaten
those
proceedings
with
delay,
adding
costs
and
diminishing coherence. It also risks additional,
and unnecessary, appellate court work either when
it presents appellate courts with less developed
records or when it brings them appeals that, had
the trial simply proceeded, would have turned out
to be unnecessary.
Id. at 309.
Plaintiff
provides
no
cases that
deal
with
similar
language or grammatical rules of construction that support its
interpretation. Instead, Plaintiff puts forward arguments the
Court has already considered and contends that the lack of
prior case law justifies interlocutory review.
^'Neither the
mere lack of authority on the issue nor the claim that the
district court's ruling is incorrect constitutes a substantial
ground for difference of opinion." Flint Riverkeeoer, Inc. v.
S. Mills. Inc.. 261 F. Supp. 3d 1345, 1347 (M.D. Ga. 2017);
Great
N.
Ins.
Co.
v.
Honduras
Outreach,
10670918, at *1 {N.D. Ga. Feb. 12, 2009).
Inc.,
2009
WL
Because Plaintiff
has failed to demonstrate that there is substantial ground for
a
difference
of
opinion,
interlocutory
review
is
inappropriate.
B.
Certification to the Georgia Supreme Court
In the alternative. Plaintiff asks the Court to certify
this question to the Georgia Supreme Court.
Federal courts
may certify ^^novel, unsettled questions of state law" to a
state's highest court for resolution. Arizonans for Official
English v. Arizona, 520 U.S. 43, 76-77 (1997).
Georgia law
provides such a mechanism if ^^there are no clear controlling
precedents
in
the
decisions[.]"
O.C.G.A.
§
15-2-9.
Certification is not mandatory, however, and 'Mi]ts use in a
given case rests in the sound discretion of the federal
court." Lehman Bros, v. Schein, 416 U.S. 386, 390-91 (1974).
Indeed, the Eleventh Circuit has instructed courts to refrain
from certification unless it is necessary "to avoid making
unnecessary state law guesses." Foraione v. Dennis Pirtle
Aaencv. Inc.. 93 F.3d 758, 761 (11th Cir. 1996).
Although the
language in the Agriculture Act is not entirely clear and
there is no Georgia case on point, the Order relies on
traditional
rules
of
grammar,
which
is
a
principle
construction adopted by the Georgia Supreme Court.
Coleman, 751 S.E.2d 337, 341 (Ga. 2013).
of
Deal v.
Accordingly, the
Order does not amount to a ^'state law guess[]
Certification
pursuant to O.C.G.A. § 15-2-9 is therefore inappropriate.
Upon
due
consideration.
Plaintiff's
Motion
for
Interlocutory Appeal, or. Alternatively, Certification to the
Georgia Supreme Court (doc. no. 51) is DENIED.
ORDER ENTERED at Augusta, G^rgia, this
^
^ day of
August, 2018.
UNITED STATES
TRICT JUDGE
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