Hiatt et al v. Rebel Auction Company, Inc. et al

Filing 153

ORDER GRANTED IN PART AND DENIED IN PART Defendants' 131 Motion in Limine; 138 DEFENDANT'S Objections to Plaintiff's Request to Charge are OVERRULED IN PART AND SUSTAINED IN PART; Plaintiffs' 143 Motion to Exclude Defendan ts Notice Of Apportionment is DENIED; 146 Plaintiffs' OBJECTIONS to Defendants' Request to Charge are OVERRULED IN PART AND SUSTAINED IN PART. Consequently, any part seeking to object to any portion of this Order must file written objections on or before the close of business on 8/14/15. Additionally, the parties are DIRECTED to file their revised joint jury instructions discussed above before the commencement of trial. Signed by Magistrate Judge R. Stan Baker on 8/13/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

ROBIN HIATT; and CHANDA HIATT,
Plaintiffs,

CIVIL ACTION NO.: 2:13-CV-20

v.
REBEL AUCTION CO., INC.; LARRY
DAVIS;
JOHN
DOES
1-2;
ABC
CORPORATIONS 1-2; & VIRGIL MILLER,
Defendants.
ORDER
This matter came before the Court on August 11, 2015, for a hearing on Defendants’
Motion in Limine (doc. 131), Defendants’ Objections to Plaintiffs’ Request to Charge (doc. 138),
Plaintiffs’ Objections to Defendants’ Request to Charge (doc. 146), and Plaintiffs’ Motion to
Exclude Defendants’ Notice of Apportionment (doc. 143). For the reasons set forth at the
hearing and laid out below, Defendants’ Motion in Limine is GRANTED IN PART AND
DENIED IN PART; Defendants’ Objections to Plaintiffs’ Request to Charge are
OVERRULED IN PART AND SUSTAINED IN PART; Plaintiffs’ Objections to Defendants’
Request to Charge are OVERRULED IN PART AND SUSTAINED IN PART; and Plaintiffs’
Motion to Exclude Defendants’ Notice of Apportionment is DENIED.
BACKGROUND
Plaintiffs filed this personal injury action on February 5, 2013, against Rebel Auction
Company, Inc.; Larry Davis; John Does 1 & 2; and ABC Corporations 1 & 2. (Doc. 1.) Then,
on June 20, 2013, Plaintiffs filed an Amended Complaint adding Defendants Kingstree Auction
Company, LLC; Alton E. Brown, Jr.; and Virgil Miller. (Doc. 27.) Plaintiffs allege that Plaintiff

Robin Hiatt was hit by the bucket of a large excavator while walking outside the facility of
Defendant Rebel Auction Company. (Doc. 1, ¶ 19.) Plaintiffs maintain that Defendant Larry
Davis owns and operates Rebel Auction Company, Inc. and that the facility is on Davis’
property. (Id. at ¶¶ 2–4, 11.) Plaintiffs stipulated to the dismissal of Defendants Kingstree
Auction Company, LLC and Alton E. Brown, Jr. on May 30, 2014. (Docs. 88–89.) However,
Defendant Virgil Miller was never served with the Complaint, and Defendants John Does 1 & 2
and ABC Corporations 1 & 2 were never identified, much less served.
On June 29, 2015, the Court held a pretrial conference and set the case for trial
commencing on August 18, 2015.

(Doc. 137.)

Six days before the pretrial conference,

Defendants filed a Notice of Apportionment indicating that they would seek to apportion fault to
John Does 1 & 2 and ABC Corporations 1 & 2. (Doc. 130.) Defendants and Plaintiffs filed their
Requests to Charge on the date of the pretrial conference. (Docs. 133, 136.) Defendants filed
their Objections to Plaintiffs’ Requests on July 8, 2015, (doc. 138), and Plaintiffs filed their
Objections to Defendants’ Requests on July 27, 2015, (doc. 146). Additionally, Defendants filed
a Motion in Limine on several evidentiary matters on June 23, 2015, (doc. 131), and Plaintiffs
filed a Motion to Exclude Defendants’ Notice of Apportionment on July 13, 2015, (doc. 143).
The Court held a hearing on the parties’ Objections and Motions on August 11, 2015. (Doc.
151.)

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DISCUSSION
I.

Defendants’ Motion in Limine (Doc. 131)
At the hearing, the parties reached agreements regarding several matters raised in

Defendants’ Motion in Limine, and Defendants agreed that several matters of basic evidentiary
law do not require an order of the Court. The Court took other matters under advisement. The
Court addresses each matter raised in Defendants’ Motion in turn.
A. Evidence or Commentary Regarding Defendants’ Liability Insurance
At the hearing, Plaintiffs agreed that they do not intend to offer evidence or make
comments regarding Defendants’ liability insurance. Accordingly, this portion of Defendants’
Motion is DENIED AS MOOT.
B. Evidence of Plaintiffs’ Own Good Character
At the hearing, Plaintiffs agreed that they do not oppose Defendants’ Motion regarding
evidence of Plaintiffs’ good character. Accordingly, this portion of Defendants’ Motion is
GRANTED AS UNOPPOSED. Additionally, at the hearing, the Court gave the following
directions to the parties as to the evidence of Plaintiffs’ adopted children. Plaintiffs may tell the
jury that they have children whom they adopted and the names and ages of their children.
However, they should not offer evidence regarding the circumstances of that adoption. Evidence
regarding the circumstances of the adoption would only be offered to bolster Plaintiffs’ good
character, which the parties agreed is not a proper subject of evidence.
C. Asking Jurors to Put Themselves in Plaintiffs’ Place
Plaintiffs’ counsel agreed at the hearing that they will not make a “golden rule” argument
by asking the jurors to put themselves in Plaintiffs’ place.
Defendants’ Motion is DENIED AS MOOT.

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Accordingly, this portion of

D. Evidence or Commentary Regarding Offers of Compromise
Plaintiffs agreed at the hearing that they will not offer any evidence regarding offers of
compromise. Accordingly, this portion of Defendants’ Motion is DENIED AS MOOT.
E. Criminal Convictions of Plaintiff Robin Hiatt
Defendants seek to introduce two prior criminal convictions obtained against Plaintiff
Robin Hiatt in the Circuit Court of Patrick County, Virginia. On May 20, 2008, Mr. Hiatt was
convicted, through a guilty plea, of two offenses: possession of a vehicle with a serial number
removed or altered in violation of Virginia Code § 46.2-1075, and receiving stolen property in
violation of Virginia Code § 18.2-108. (Doc. 131-2.) The Virginia court sentenced Mr. Hiatt to
three years’ incarceration for each offense, for a total punishment of six years. (Id. at p. 2.) On
July 10, 2009, Mr. Hiatt was convicted of three counts of obtaining money through false
pretenses in violation of Virginia Code § 18.2-178. (Doc. 131-1.) This conviction was as a
result of a plea entered pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The Virginia
court sentenced Mr. Hiatt to two years’ incarceration for each of these offenses, for a total
punishment of six years. (Id. at p. 2.)
Defendants intend to introduce certified copies of Mr. Hiatt’s convictions under Federal
Rule of Evidence 609. (Doc. 131, p. 8.) Rule 609 allows a party to attack a witness’s character
for truthfulness by evidence of a criminal conviction under certain conditions. Fed. R. Evid. 609.
In their response brief and at the hearing, Plaintiffs conceded that the fact that Mr. Hiatt’s 2009
conviction resulted from an Alford plea does not affect the conviction’s admissibility for
purposes of impeachment. (Doc. 139, pp. 3–4 (citing Blohm v. Commissioner, 994 F.2d 1542
(1993)).) However, Plaintiffs maintain that Mr. Hiatt’s convictions may only be introduced
“upon a determination by the Court that the underlying elements of the crime constitute a

4

dishonest act or false statement.” (Id.) Additionally, at the hearing, Plaintiffs argued that the
Court would have to determine if the probative value of the convictions outweighed their
prejudicial effect.
Plaintiffs’ arguments misapprehend Rule 609’s requirements. If less than ten years have
passed since the witness’s conviction or release from confinement, and the crime of conviction
was punishable by imprisonment for more than one year, the conviction must be admitted in a
civil case. Fed. R. Evid. 609(a)(1)(A). The inquiries into whether the elements of the crime
include a dishonest act or false statement only apply to those convictions that are not punishable
by a term of imprisonment for more than one year. Fed. R. Evid. 609(a)(2). Further, the
assessment of whether the probative value of the conviction outweighs it prejudicial effect only
applies when more than ten years have passed since the witness’s conviction or, in criminal
cases, where the witness is the defendant. Fed. R. Evid. 609(a)(1)(B), (b)(1). In this civil case,
Mr. Hiatt’s convictions are all less than ten years old, and he was sentenced to more than one
year imprisonment as to each conviction. 1
For these reasons, Mr. Hiatt’s convictions are admissible for the purposes of
impeachment, and Defendants’ Motion is GRANTED. However, as Defendants agreed at the
hearing, these convictions may not be used to show evidence of Mr. Hiatt’s character in order to
prove that he acted in accordance with that character on a particular occasion. See Fed. R. Evid.

1

It appears that Mr. Hiatt’s terms of imprisonment were suspended. (Doc. 131-1, p. 2; Doc. 131-2, p. 2.)
However, admissibility under Rule 609(a)(1) hinges on whether the crime was “punishable” by a term of
imprisonment for more than one year, not whether the witness actually served such a term. See United
States v. Collins, 552 F.2d 243, 247 (8th Cir. 1977) (upholding introduction of conviction with suspended
sentence for impeachment); GuideOne Mut. Ins. Co. v. Rock, No. 1:06-CV-218-SA-JAD, 2009 WL
2252206, at *12 (N.D. Miss. July 28, 2009) (“When determining the applicability of Rule 609(a)(1), the
Court is to apply the term of imprisonment by which the crime is punishable under state law—not the
term that the witness actually served after part of the sentence was suspended.”).

5

404(a). Defendants also agreed that Plaintiffs may introduce evidence of the circumstances
surrounding his convictions. However, Plaintiffs are forewarned that “a consensus has emerged
among courts that a greater inquiry into the essential facts surrounding the conviction is
permitted where the witness opened the door to additional inquiry by attempting to ‘explain
away’ the conviction or minimize its significance.” Young v. Donald, No. 605CV104, 2007 WL
4224959, at *1 (S.D. Ga. Nov. 28, 2007) (quoting Tri-State Hosp. Supply, Inc. v. U.S., 471
F.Supp.2d 170, 174 (D.D.C. 2007)). “So, if one of the witness’s convictions can be admitted
under the Rule, and he admits his conviction unequivocally, the Court will bar any inquiry into
the circumstances of his conviction. Conversely, quibbling may be costly.” Id.
F. Leading Questions
At the hearing, Defendants agreed to withdraw their Motion to prevent counsel from
asking leading questions. Accordingly, that Motion is DENIED AS MOOT.
G. Redactions to Amended Life Care Plan
In their response brief, and at the hearing, Plaintiffs agreed to redact portions of their
expert’s life care plan for Mr. Hiatt.
Defendants’ objections.

Defendants agreed that these redactions resolved

Accordingly, this portion of Plaintiffs’ Motion is GRANTED AS

UNOPPOSED.
II.

Defendants’ Objections to Plaintiffs’ Requests to Charge (Doc. 138)
Defendants levied several Objections to Plaintiffs’ Requests to Charge. As laid out

below, the parties resolved many of these Objections at the hearing. Herein, the Court issues
rulings on some Objections and reserves others to be determined at trial. Additionally, the Court
provides specific instructions to the parties regarding the revised jury instructions that the parties
represented during the hearing that they would provide to the Court.

6

A. Defendants’ Objection to Plaintiffs’ Request to Charge No. 3
Plaintiffs request the Eleventh Circuit Pattern Jury Instruction on the use of
interrogatories. Defendants object on the grounds that the pattern instruction charges the jury to
consider interrogatory responses as if they were given on the witness stand, while often
interrogatory responses are given years before trial. (Doc. 138, p. 1.) At the hearing, Plaintiffs
responded that this concern should be alleviated by the fact that the parties have a duty to
supplement their discovery responses. The Court OVERRULES Defendants’ Objection to the
pattern charge. Any inconsistencies due to the timing of the interrogatory response can be
explained by witnesses or counsel at trial.
B. Defendants’ Objection to Plaintiffs’ Request to Charge No. 7
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
C. Defendants’ Objection to Plaintiffs’ Request to Charge No. 13
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
D. Defendants’ Objection to Plaintiffs’ Request to Charge No. 14
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
E. Defendants’ Objection to Plaintiffs’ Request to Charge No. 15
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
F. Defendants’ Objection to Plaintiffs’ Request to Charge No. 16

7

This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
G. Defendants’ Objection to Plaintiffs’ Request to Charge No. 17
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
H. Defendants’ Objection to Plaintiffs’ Request to Charge No. 18
The Court reserves ruling on this Objection, as the parties agreed that they will not be
able to ascertain if this requested charge is proper until trial. Defendants must reassert any
objection they have to this requested charge at trial.
I.

Defendants’ Objection to Plaintiffs’ Request to Charge No. 23

This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
J.

Defendants’ Objection to Plaintiffs’ Request to Charge No. 24

This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
K. Defendants’ Objection to Plaintiffs’ Request to Charge No. 28
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
L. Defendants’ Objection to Plaintiffs’ Request to Charge No. 29
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
M. Defendants’ Objection to Plaintiffs’ Request to Charge No. 31

8

This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
N. Defendants’ Objection to Plaintiffs’ Request to Charge No. 32
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
O. Defendants’ Objection to Plaintiffs’ Request to Charge No. 33
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
P. Defendants’ Objection to Plaintiffs’ Request to Charge No. 34
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
Q. Defendants’ Objection to Plaintiffs’ Request to Charge No. 35
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
R. Defendants’ Objection to Plaintiffs’ Request to Charge No. 36
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
S. Defendants’ Objection to Plaintiffs’ Request to Charge No. 37
At the hearing, Plaintiffs agreed to combine Request to Charge No. 37 with Request to
Charge No. 53, as charging both of these charges would be repetitive. Plaintiffs represented that
they will submit a revised charge that inserts those things contained in Request No. 37 that are
not already in Request No. 53. Defendants reserved the right to review the revised charge and

9

assert any objections at trial.

Plaintiffs shall file this revised charge before the

commencement of trial.
T. Defendants’ Objection to Plaintiffs’ Request to Charge No. 38
Plaintiffs’ Request to Charge No. 38 states, “I charge you that the law infers bodily pain
and suffering from personal injury.” (Doc. 136, p. 39.) Defendants object that this proposed
charge is vague and that it will not assist the jury.

(Doc. 138, p. 5.) This Objection is

SUSTAINED. This instruction would likely only confuse the jury, as the terms “personal
injury” and “bodily pain” are not defined in Plaintiffs’ instructions. Furthermore, there is a
danger that the jury would give too much weight to the proposed “inference” if charged in this
manner. Moreover, the issue of damages is sufficiently charged by Plaintiffs’ Requests to
Charge Nos. 51–54.
U. Defendants’ Objection to Plaintiffs’ Request to Charge No. 39
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
V. Defendants’ Objection to Plaintiffs’ Request to Charge No. 40
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge based on Defendants’ request for the Pattern Jury Instruction on preexisting
injury. (Doc. 133, p. 37.)
W. Defendants’ Objection to Plaintiffs’ Request to Charge No. 42
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
X. Defendants’ Objection to Plaintiffs’ Request to Charge No. 45

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This Objection is OVERRULED IN PART, as the parties have stipulated that Plaintiff
was a business invitee of Defendants. However, the parties agreed at the hearing that the charge
should be modified to read, in its entirety, “The parties have stipulated in this case that Mr. Hiatt
was a business invitee of the Defendants.”
Y. Defendants’ Objection to Plaintiffs’ Request to Charge Nos. 44, 46–49
The parties agreed at the hearing to revise their charges on premises liability and to
submit to the Court a joint set of instructions on premises liability tailored to the facts of this
case. Accordingly, the Court OVERRULES AS MOOT Defendants’ Objections to Plaintiffs’
Requested Charges Nos. 44, 46–49. The parties are directed to file their joint proposed
instructions on premises liability before the commencement of trial.
Z. Defendants’ Objection to Plaintiffs’ Request to Charge No. 50
This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
AA.

Defendants’ Objection to Plaintiffs’ Request to Charge No. 51

This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
BB.

Defendants’ Objection to Plaintiffs’ Request to Charge No. 52

This Objection is SUSTAINED, as Plaintiffs agreed at the hearing to withdraw this
requested charge.
III.

Plaintiffs’ Objections to Defendants’ Requests to Charge (Doc. 146)
The Court issues the following rulings on Plaintiffs’ Objections to Defendants’ Requests

to Charge.
A. Plaintiffs’ Objection to Defendants’ Request to Charge Nos. 14–16

11

Plaintiffs’ Objections to these charges are OVERRULED AS MOOT. Defendants’
agreed at the hearing to withdraw this requested charge and include any requested charges on
premises liability in the joint proposed premises liability charges discussed above.
B. Plaintiffs’ Objection to Defendants’ Request to Charge Nos. 18–19
Plaintiffs’ Objections to these charges are OVERRULED AS MOOT. The parties
agreed at the hearing that they would submit revised joint charges on the issues of apportionment
and contributory negligence.

In so doing, the Plaintiffs do not waive their Objections to

Defendants’ Notices of Apportionment or waive any other Objection to apportionment of
damages.

The parties are directed to file their joint charges on apportionment and

contributory negligence before the commencement of trial.
C. Plaintiffs’ Objection to Defendants’ Request to Charge No. 20
The Court reserves ruling on this Objection, as the parties agreed that they will not be
able to ascertain if this requested charge is proper until trial. Plaintiffs must reassert any
Objection they have to this requested charge at trial.
D. Plaintiffs’ Objection to Defendants’ Request to Charge No. 21
Defendants Request to Charge No. 21 is the Georgia Pattern Jury Instruction on imputed
negligence. (Doc. 133, p. 23.) Plaintiffs object to this charge because it does not directly track
the cited statute, O.C.G.A. § 51-2-1(a). This objection is OVERRULED. This proposed charge
is an accurate statement of the law that will be more understandable to the jury than the statute.
E. Plaintiffs’ Objection to Defendants’ Request to Charge No. 22
This Objection is SUSTAINED as Defendants agreed at the hearing to withdraw this
requested charge.

12

F. Plaintiffs’ Objection to Defendants’ Request to Charge No. 25 2
Defendants’ Request to Charge No. 25 instructs on nominal damages. Plaintiffs object to
this charge because Plaintiffs are requesting significant damages and Mr. Hiatt underwent
substantial medical treatment. Though nominal damages do not appear to be at issue in this case
at this time, the Court reserves ruling on this Objection until trial in order that the Court may
have the benefit of the evidence.
G. Plaintiffs’ Objection to Defendants’ Request to Charge No. 30
This objection is SUSTAINED as Defendants agreed at the hearing to withdraw this
requested charge because it is covered by Plaintiffs’ Request to Charge No. 54.
H. Plaintiffs’ Objection to Defendants’ Request to Charge No. 33
This objection is SUSTAINED as Defendants agreed at the hearing to withdraw this
requested charge because it is covered by Plaintiffs’ Request to Charge No. 54.
I. Plaintiffs’ Objection to Defendants’ Request to Charge No. 38
Defendants Request to Charge No. 38 seeks an instruction on the issue of Mr. Hiatt’s
above mentioned 2009 criminal conviction that resulted from an Alford plea. (Doc. 133, p. 40.)
The proposed instruction states that the voluntariness and intelligence of an Alford plea is judged
by the same standards as a routine guilty plea. (Doc. 133, p. 40.) Plaintiffs object to this
proposed instruction because the cases cited in support of the instruction do not involve the use
of an Alford plea to impeach the credibility of a party in a civil case. (Doc. 146, p. 5.) This
objection is SUSTAINED. As laid out above, Mr. Hiatt’s convictions will be admissible.
Moreover, the Plaintiffs have conceded that the conviction resulting from an Alford plea is no

2

Plaintiffs’ counsel stated at the hearing that they mistakenly labeled their objection as going to
Defendants’ Request to Charge No. 27. (Doc. 146, p. 4.) At the hearing, Plaintiffs’ counsel clarified that
Plaintiffs have no Objection to Request to Charge No. 27 and that the Objection should have been levied
to Request to Charge No. 25.

13

different than any other conviction for impeachment purposes, and Plaintiffs have not contested
the voluntariness or intelligence of Mr. Hiatt’s Alford plea.
However, to instruct the jury on the Alford plea, the Court proposes to add the following
language to second paragraph of Plaintiffs’ Request to Charge No. 8, (doc. 136, p. 9): “When
making this consideration, you may treat a conviction resulting from a plea entered pursuant to
Alford v. North Carolina, (commonly called an ‘Alford plea’), the same as any other criminal
conviction.” If the parties have any Objection to this proposal by the Court, they must assert that
Objection.
IV.

Plaintiffs’ Motion to Exclude Defendants’ Notice of Apportionment (Doc. 143)
As laid out above, Plaintiffs originally filed this action against several Defendants. In

addition to Defendants Rebel Auction Company and Larry Davis, Plaintiffs named the fictional
defendants John Does 1&2, and ABC Corporations 1&2, and later added additional defendants.
(Docs. 1, 27.) Plaintiffs alleged that, though they did not know the identity of John Does 1 & 2,
“these Defendants may in some manner be responsible for the acts or omissions alleged herein,
and that they may in some manner be liable to Plaintiffs for injuries and damages resulting from
those acts or omissions.” (Id. at pp. 2–3.) Specifically, Plaintiffs alleged that John Does 1 & 2
negligently operated the excavator and caused the excavator to strike Mr. Hiatt. (Id. at pp. 15–
17.) As to ABC Corporations 1 & 2, Plaintiffs alleged that these unknown Defendants employed
the individuals operating the excavator that struck Mr. Hiatt. Id. Plaintiffs reasserted these
allegations against John Does 1 & 2 and ABC Corporations 1 & 2 in their Amended Complaint
on June 20, 2013. (Doc. 27.) Defendant Virgil Miller was never served with the Complaint and
Defendants John Does 1 & 2 and ABC Corporations 1 & 2 were never identified, much less
served.

14

Plaintiffs stipulated to the dismissal of Defendants Kingstree Auction Company, LLC,
and Alton E. Brown on May 30, 2014. (Docs. 88, 89.) The Court’s June 2, 2014, Order
approving the stipulation of dismissal stated “this action is hereby dismissed with prejudice as to
Defendants Kingstree Auction Company, LLC, and Alton E. Brown, Jr., only, and this matter
will proceed against Defendants Rebel Auction Company, Inc., and Larry Davis.” (Doc. 89.)
On June 23, 2015, Defendants Rebel Auction Company and Larry Davis filed a Notice of
Possible Negligent Non-Parties pursuant to O.C.G.A. § 51-12-33(b). (Doc. 130.) 3 Defendants
noted the allegations made against the John Doe and ABC Corporation Defendants in Plaintiffs’
Amended Complaint and stated that Plaintiffs might voluntarily dismiss these defendants. Id.
Thus, Defendants filed the notice to preserve their right to argue that the John Does and ABC
Corporations were at least partially responsible for Plaintiffs’ damages.

Id.

Defendants

explained that the “jury will be presented with an issue of who, if anyone, was operating the
excavator and the testimony of all witnesses may be a denial that they operated the excavator at
the time Robin Hiatt alleges he was struck. In such circumstances John Doe (1-2) and ABC
Corporation (1-2) would be persons who the jury would have to consider as partially responsible
parties.” (Id. at p. 3.)
On July 13, 2015, Plaintiffs’ filed a Motion to Exclude Defendants’ Notice of
Apportionment or, in the Alternative, to Dismiss the John Doe and ABC Corporation
Defendants. (Doc. 143.) Plaintiffs argue that the fictional defendants were dismissed by the
Court’s June 2, 2014 Order. Id. Thus, Plaintiffs contend, the John Does and ABC Corporations
became non-parties long ago, and Defendants were required to file their Notice of
Apportionment at least120 days before trial under O.C.G.A. § 51-12-33(d)(1). (Doc. 143-1, pp.

3

Defendants also filed a Notice of Apportionment as to Alton Brown and Kingstree Auction on June 24, 2014.
(Doc. 99.) However, Plaintiffs have no objection to that Notice.

15

2–3.) Plaintiffs point out that Defendants did not file their Notice of Apportionment of Fault
until June 23, 2015, far less than 120 days before the August 18, 2015, trial date. In the
alternative, if the fictional defendants were not dismissed by the June 2, 2014 Order, the
Plaintiffs move to dismiss them now. (Id. at p. 3.) Plaintiffs concede that the filing requirement
of O.C.G.A. §51-12-33 only applies to non-parties. Thus, if the fictional defendants are still
parties to this case, Plaintiffs do not object to the timeliness of the Defendants’ Notice. (Id. at p.
4.) 4
In their response in opposition to Plaintiffs’ Motion, Defendants maintain that the John
Does and ABC Corporations have not been dismissed from the case. Defendants state that they
filed the Notice of Apportionment because Plaintiffs indicated during preparations for the pretrial
conference that the fictional defendants would not be a part of the case at trial. (Doc. 145, pp. 3–
4.) Even if the John Does and ABC Corporations have been dismissed, Defendants argue that
they did not need to file a Notice because “once a potential responsible party has been named as
a Defendant in the case no further notice is required[.]”5 (Id.)
Plaintiffs concede that, if the John Doe 1 & 2 and ABC Corporation 1 & 2 are still a party
to this suit, Defendants had no obligation to file a Notice of Apportionment 120 days before trial.
4

In their Motion to Exclude, the Plaintiffs do not contend that Defendants must provide notice of the
exact identity of the John Doe and ABC Corporation Defendants to apportion fault to them. However, at
the hearing, Plaintiffs somewhat disputed that Defendants could apportion fault to an unknown entity. To
the extent that Plaintiffs advance such an argument, it is unavailing. Georgia courts have repeatedly held
that a party need not prove the exact identity of a nonparty to apportion fault to that nonparty. See GFI
Mgmt. Svcs., Inc. v. Medina, 733 S.E.2d 329 (2012) (unknown criminal assailants could be on verdict
form for apportionment of fault); Double View Ventures, LLC v. Polite, 757 S.E.2d 172, 178 (Ga. App.
2014) (defendant need not prove identity of owner of adjacent service station to apportion fault to service
station).
5

Defendants represent that they filed the Notice of Apportionment out of an abundance of caution
because they acknowledge that “there is no appellate court interpretation about whether a notice (of
apportionment) is required when a party is dismissed from the case.” (Doc.145, p. 4.) Given the
Plaintiffs’ concession that no notice is required if the John Does and ABC Corporations are still a party to
the case and the Court’s determination that they are still in the case, the Court need not address the issue
of whether a remaining defendant has to provide a notice to apportion fault as to a dismissed defendant.

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In arguing that the John Does and ABC Corporations are not a party, Plaintiffs solely focus on
this Court’s June 2, 2014 Order. 6 However, that Order cannot provide a basis for dismissal of
the John Does and ABC Corporations as it stated, “this action is hereby dismissed with prejudice
as to Defendants Kingstree Auction Company, LLC, and Alton E. Brown, Jr., only.” (Doc. 89
(emphasis supplied).) Thus, by its explicit terms, the Order only dismissed Kingstree Auction
Company and Alton E. Brown. While the Order went on to state “this matter will proceed
against Defendants Rebel Auction Company, Inc., and Larry Davis”, any implicit meaning that
Plaintiffs subscribe to this phrase cannot override the explicit statement in the preceding
sentence. (Doc. 89.)
Therefore, John Doe 1 & 2 and ABC Corporation 1 & 2 were not dismissed by the
Court’s June 2, 2014, Order.

For this reason, Plaintiffs’ Motion to Strike the Notice of

Apportionment is DENIED. 7
CONCLUSION
For the reasons set forth at the hearing and laid out above, Defendants’ Motion in Limine
is GRANTED IN PART AND DENIED IN PART, Defendants’ Objections to Plaintiffs’
Request to Charge are OVERRULED IN PART AND SUSTAINED IN PART, Plaintiffs’
Objections to Defendants’ Requests to Charge are OVERRULED IN PART AND
6

At the beginning of the Motions hearing on December 17, 2014, the Court and the parties discussed
removing John Does 1 & 2 as well as ABC Corporation 1 & 2 from the caption of the case. (Dec. 17,
2014 hearing at 2:34:35-2:34:42.) As a result of that conversation, the John Does and ABC Corporations,
as well as Defendant Miller, were noted as terminated on the docket. However, the parties never
requested, and the Court never entered, a written Order of dismissal as to John Does 1 & 2, ABC
Corporations 1 & 2., or Miller. Further, Plaintiffs do not argue in their Motion to Strike the Notice of
Apportionment that the Court dismissed those Defendants at the December 17, 2014 hearing. Rather,
Plaintiffs focus solely on the June 2, 2014 Order. Thus, Plaintiffs have waived any argument that
anything said or done at the December 17, 2014, hearing triggered Defendants’ obligation to file a notice
of apportionment.

7

The District Court Judge will rule upon Plaintiffs’ Motion to Dismiss Defendants John Does 1 & 2 and
ABC Corporations 1 & 2. Additionally, Plaintiffs have reserved the right to argue against the merits of
Defendants’ apportionment defense at trial. (Doc. 143-1, p. 4.)

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SUSTAINED IN PART, and Plaintiffs’ Motion to Exclude Defendants’ Notice of
Apportionment is DENIED. Because this case is set for trial on August 18, 2015, an expedited
period for Objections is required. Consequently, any party seeking to object to any portion of
this Order must file written objections on or before the close of business on August 14, 2015.
Additionally, the parties are DIRECTED to file their revised joint jury instructions discussed
above before the commencement of trial.
SO ORDERED, this 13th day of August, 2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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