International Auto Logistics, LLC v. Vehicle Processing Center of Fayetteville, Inc. et al

Filing 68

ORDER granting IAL's 44 Motion for Summary Judgment. IAL owes VPCF $59,446.58. IAL shall have 7 days from today's Order to submit documentation and arguments supporting its request for attorneys' fees. VPCF shall have 7 days thereafter to file any opposition therto. Signed by Judge Lisa G. Wood on 5/16/2017. (ca)

States; Btiettntt Court

for tfie ^outfiem IBifiitrict of 4leorgia
PrnnsitDtrk SStbifiiton

FILED
Scott L. Poff, Clerk
United States District Court

By casbell at 3:39 pm, May 16, 2017

INTERNATIONAL AUTO LOGISTICS,
LLC,

Plaintiff,
2:16-CV-10

V.

VEHICLE PROCESSING CENTER OF

FAYETTEVILLE, INC.; BRETT
HARRIS; and BRETT HARRIS
CONSULTING;
Defendants.

ORDER

Plaintiff International Auto Logistics, LLC (^^lAL") was

within

its

rights

when

it

terminated

Defendant

Vehicle

Processing Center of Fayetteville, Inc.'s (^^VPCF") Subcontract
after

VPCF

violated

the

Service

Contract

correctly calculated how much it owed VPCF.

Act,

and

lAL

Summary judgment

will be granted to lAL.
BACKGROUND

lAL Siibcon'tracts wibh VPCF "bo Process and Sbore Vehicles

lAL is a government contractor that transports and stores

the

personal

Dkt. No. 44-3

vehicles
3-4.

of

Department

of

Defense

In early 2013, lAL approached VPCF to

run a vehicle-processing and -storage center.

A0 72A

(Rev. 8/82)

personnel.

Dkt. No. 44-2 S

8; Dkt. No. 44-4 at 26:14-22, 32:9-11.

According to VPCF, lAL

offered to pay it 90-95% of what the government paid lAL for

storing vehicles.

Id. at 38:20-39:16, 42:5-44:24.

VPCF does

not present any documents as a memorial of this other than the
parties' Subcontract.

Id. at 42:5-44:24.

The parties signed that Subcontract on different days:
VPCF on March 28, 2014, and lAL on April 9, 2014.
44-5 at 12.
[t]hereto

Dkt. No.

The Subcontract, ^'including any and all Exhibits

which

[we]re

incorporated

[t]herein

by

reference,

constitute[d] the entire agreement and understanding between
the

Parties."

Id.

SI

24.

Because

the

Subcontract

was

for

government work, it obligated VPCF to adhere to ^'the labor

practices

and

Contract Act."

wage

determinations

Id. at 13.

. . .

[of]

the

Service

More generally, it bound VPCF to

obey all federal laws, dkt. no. 44-5 SI 27, and authorized lAL
to terminate the Subcontract for default if VPCF ^'fail[ed] to

perform any of the . . . provisions of [the Subcontract] or so
fail[ed] to make progress as to endanger performance of the
[underlying government] contract."

Id. SI 16(a)(ii).

VPCF's contractual duty was to ''[p]erform the necessary

functions to establish, staff and operate" the vehicle center.
Dkt. No. 44-5 at 13.

It was burdened with 'Ma]ll necessary

cost to fulfill [its] obligations."

Id. at 15.

Its compensation

was

detailed

in

Exhibit

B, completed

sometime between April 9, 2014 and May 1, 2014.

Id. at 16;

Dkt.

16-17,

No.

44-4

at

42:2-44:24;

Dkt.

No.

45

55

24.

Exhibit B had a page dated April 9, 2014, named '^VPCF Rates."
Dkt. No. 44-5 at 17.

It specified that lAL would pay VPCF

$73.41 per vehicle for storage.

Id.

The next page summarized

VPCF's anticipated ^"costs" as Of April 9, 2014, including 5%
for contingency and $425,000 in profit.
came

out

to

$3,597,484.

Id.

Id. at 18.

Following

that

The total

was

a

page

labeled ''VPCF Rate Calculations," also dated April 9, 2014.

Id. at 19.

Halfway down the

page

was a

breakdown

of how

VPCF's rates were calculated {included in full because of its

significance to the present dispute):
CLINS 200 & 201 (Processed In & Processed Out)

4.5% Storage Processing In/Out

$161,887

Annual Processed Vehicles

3,900

Amount/Vehicle Processed In or Processed Out (Initial

Sub [unclear])

$41.51^

Per Unit Rate (Cost excluding Facilities Lease) $14.70
Per Unit Rate (Contingency)
$0.56
Per Unit Rate (Facilities Lease)*
Per Unit Rate (Profit)
Per Unit Rate Check Total

CLIN 202 (Monthly Rate)
95.5% to Vehicle/Month Rate
Car/Months (3900*12)
Monthly Rate

$21.35
$4.90
$41.51

$3,435,598
46,800
$73.41

Per Unit Rate (Cost excluding Facilities Lease) $25.99
Per Unit Rate (Contingency)
$1.00

^ lAL later adjusted this rate upward to $50.41.
3

Dkt. No. 44-3 2 29 & n.3.

Per Unit Rate (Facilities Lease)*

$37.75^
Per Unit Rate (Profit)

$8.67

Per Unit Rate Check Total

$73.41

Id.

(emphases

(stating

vehicle

guaranteed),
The

added);

Court

Processing

see

estimates

96:15-97:18
notes

also

that

In/Out" is

Dkt.

were

No.

4.5%

meaning

$161,887

of

at

historical

(identifying
the

44-4

beside

VPCF's

95:7-16

and
of

never

''CLINs").

^M.5%

anticipated

Storage

""costs";

likewise, the $3,435,598 for ""95.5% to Vehicle/Month Rate" is
95.5% of the cost-contingency-profit total.
lAL Terminates VPCF's Subcontract for Labor Violations

VPCF started operating the center on May 1, 2014.
No. 45 SI 24; Dkt. No. 51-1 SI 24.

It did not pay its employees

fringe benefits mandated by the Service Contract Act.
No. 44-4 at 107:22-08:12 (attributing this to ignorance).
sent

a

cure

notice

on

October

9,

employees were not being timely paid.
also

Dkt. No. 45 SI 32 n.4

Dkt.

2014,

noting

also

Dkt.
lAL
that

Dkt. No. 44-6 at 2; see

(noting internal concern because

""lAL . . . had paid VPCF $544,934.26 . . . [a]nd

yet VPCF

still was not paying its employees or its vendors.").

VPCF

responded by admitting that July payroll was briefly delayed.

^

This

rate

is

miswritten

as

$37.35

in

one

of

lAL's

declarations;

nevertheless, the declaration's conclusion that $35.66 was the listed perunit rate minus the facilities lease is correct.

See Dkt. No. 44-3 SI 30.

but October 15's was not,^ and conceding its failure to pay
fringe benefits.
lAL

sent

Dkt. No. 44-7 at 2, 4-6.

out

an

auditor.

Dkt.

No.

44-9

at

2.

On

November 4, 2014, lAL expressed continued concern about VPCF's

payroll delays, initial misunderstanding of its fringe-benefit
duties, failure to properly maintain the vehicles in its care,
and possible misuse of funds.

Id. at 2-3; see also Dkt. No.

44-4 at 73:16-75:25 (claiming maintenance was ""impossible" due
to lAL's choice of an inadequate facility), 112:5-6 (calling
wage violations ""an oversight on our part.").

it

was considering terminating the

lAL warned that

Subcontract.

Id. at 4.

VPCF replied on November 14, 2014, claiming to have corrected
its

labor-law

violations.

Dkt.

No.

44-10

said it had made maintenance-related hires.
On

Dkt.

December

No.

personnel

3,

44-11 at 2.

payments

2014,

lAL

terminated

at

2-3.

It

also

Id. at 3-4.^
the

Subcontract.

It identified the causes as improper

and

payroll

delays,

plus

lAL's

""continu[ing] to receive complaints that while checks [were]

being distributed timely, employees [were being] asked to hold
^ VPCF eventually admitted that August payroll had also been late.

Dkt.

No. 44-4 at 117:9-19.

At that time, VPCF complained that lAL had not been paying it.

Id. at 4.

But Exhibit B says that lAL would only pay VPCF "[u]pon successful billing
to [the government] and payment to [lAL]," dkt. no. 44-5 at 16, and lAL
presented undisputed evidence that the government ^*owed lAL approximately
$12 million in past-due invoices" as of November 26, 2014.
Dkt. No. 44-3

5 33 n.5; cf. Dkt. No. 4 4-5 at 16 ("The [government] closes its books
September 30.
It is not unusual for [it] to not pay any invoices for
approximately a 2-3 week period[.] Subcontractor must plan aacordlngly to
manage anticipated cash flow re<ju±rements[.]" (emphasis in original))
.

checks because they [would not] clear and those that refuse[d]
to

do

funds."

so

ha[d]
Id.

had

the

checks

returned

at 4-5; see also Dkt.

No.

for

non-sufficient

44-4

at 121:21-22:8

{admitting to asking employees to hold paychecks and having

paychecks bounce, but blaming lAL for not paying VPCF), 124:924 (admitting lAL had paid VPCF about $545,000).

complained about vehicle maintenance and records.

lAL also

Id. at 5.

lAL and VPCF Disagree as to VPCF's Due

Upon termination, lAL estimated that it would pay VPCF
$130,147.93 for debt owed through November 30, 2014, plus "a

pro rata basis" determined by ^'the monthly rate identified in
. . . Exhibit B" for debt through December 5, 2014.
6.

Id. at 5-

On October 13, 2015, lAL characterized its final amount

due as $56,446.58.

Dkt. No. 44-3 1% 29-37; Dkt. No. 44-12 at

2-74.

since

(It

$59,446.58.

has

adjusted

that

amount

to

Dkt. No. 44-3 1 42; Dkt. No. 45 SI 38.)

VPCF contested this on December 15, 2015.

13.

upward

Dkt. No. 44-

It claimed a storage-compensation rate of ''95.5% of the

total monies that lAL

was to receive for storage" from the

government, based on alleged agreements as of October 25, 2013
and March 28, 2014.

Id. at 2-3.

VPCF claimed lAL wrongly

altered this rate when lAL signed the Subcontract on April 9,
2014.

Id. at 3.

VPCF demanded $3,144,450.70.

Id. at 6.

It

also complained about lAL's facility selection and said its

ability to cure its fringe-benefit violation was hindered by
lAL's withholding a monthly payment.

Id. at 4-6.

The Parties Come to Court

On January 15, 2016, lAL sought declaratory judgment as
to the debt.

Dkt. No. 1 SISI 22-25.

of contract on March 11, 2016.

VPCF counterclaimed breach

Dkt. No. 18 SISI 36-39.

moved for summary judgment on October 31, 2016.
That

motion

disposition.

has

been

fully

briefed

and

is

lAL

Dkt. No. 44.
now

ripe

for

Dkt. Nos. 45-46, 51, 57-58, 62, 66.
LEGAL STANDARD

Summary judgment is required where ^'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).

A fact is ^'material" if it ^'might affect the

outcome of the suit."

658

F.3d

1282,

Fed. R.

1307

FindWhat Inv^r Grp. v.

(11th

Cir.

2011)

FindWhat.com,

(quoting

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

^^genuine" if the

^^evidence is such that a

Anderson

v.

A dispute is

reasonable jury

could return a verdict for the nonmoving party."

Id.

The

court must view the evidence most favorably to the nonmovant
and

draw

Booker

all reasonable inferences in its favor.

T.

Washington

(11th Cir. 2000).

Broad.

Serv.,

Inc., 234

Johnson

F.3d

v.

501, 507

The movant must establish that there is no genuine issue
of material fact by showing that the nonmovant's case lacks

supporting evidence.
323,

325 (1986).

Celotex Corp. v. Catrett/ 477 U.S. 317,

If it does, then

the

nonmovant can

show

'^that the record in fact contains [such] evidence, sufficient
to withstand a directed verdict motion, which was

^overlooked

or ignored' by the [movant], who has thus failed to meet [its]
initial burden."

Anderson, 477 U.S. at 257; Fitzpatrick v.

City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting
Celotex, 477 U.S. at 332 (Brennan, J., dissenting)).

nonmovant

can

withstand

a

present

directed

''additional

verdict

motion

alleged evidentiary deficiency."

If

than

the

a

nonmovant

repetition

district

court

instead

of

must

at

trial

sufficient
based

to

on

the

Id. at 1117.

brings

[its]

enter

evidence

Or, the

forward "nothing

conclusory

summary

more

allegations,

judgment."

the

Peppers

v.

Coates, 887 F.2d 1493, 1498 (11th Cir. 1989).
DISCUSSION

VPCF undisputedly breached the Subcontract and there is
no genuine factual dispute as to lAL's calculations, so lAL is
entitled to summary judgment.

The Court will first partially

disregard^ VPCF's principal Terry Johnson's testimony.

^

A

motion

to

strike

a

declaration

declaration is not a pleading.
strike

and

instead

is

procedurally

improper,

as

a

The Court therefore denies lAL's motion to

"consider[s]

[it]
8

insofar

as

it

is

a

notice

of

I. JOHNSON'S DECLARATION IS PARTIALLY DISREGARDED.

Johnson's declaration will be disregarded insofar as it

raises previously undisclosed expenses.^

^'When a party has

given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact, that party
cannot thereafter create such an issue with an affidavit that

merely

contradicts,

clear testimony."

without
Van

T.

explanation,

Junkins

&

previously

Assocs., Inc.

Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984).

v.

given
U.S.

Johnson's

declaration contradicts his clear deposition testimony.

lAL's

deposition notice informed VPCF that damages would be a topic
for examination.

Following
^'the

a

last

Dkt.

series of

of [his]

No. 57-1 at 26;

calculations,

damages

Dkt.

Johnson

trial."

57-2 at 3.

testified

calculation[s]" was

based on certain compensation-rate formulae.
313:21-314:6.

No.

that

$4,041,433,

Dkt. No. 44-4 at

He concluded, ^'That's what I'll testify [to] in

Id. at 316:14; see also id. at 280:4-7

CMQ^]

[l]f

there's something else you claim you're owed, I want to know
that. . . . A. Okay.").

Contradictory portions of Johnson's

declaration will be disregarded.

objection." Hawk v. Atlanta Peach Movers, Inc., No. 1:lO-CV-0239, 2011 WL
1533024, at *2 (N.D. Ga. Apr. 21, 2011), aff^d, 469 F. App'x 783 (11th
Cir. 2012) (per curiam); see also Zottola v. Anesthesia Consultants of
Savannah, P.O., 169 F. Supp. 3d 1348, 1357 (S.D. Ga. 2013) ("[C]ourts tend
to treat motions to strike as objections . . . .").

® The Court need not reach the portion of the declaration concerning VPCF's
alleged lost profits, given that it is awarding lAL summary judgment as to
VPCF's counterclaim for breach of contract.

VPCF's arguments for considering the new testimony are
unpersuasive.

It first argues that the Court cannot ^^exclude

matters that supposedly contradict the

deposition testimony

when the entire deposition has not been submitted."

Dkt. No.

62

of

at

1.

This

Procedure

32.1,

is

irreconcilable

which

with

ordinarily allows

Local

a

Rule

Civil

party to file

a

partial transcript deposition ^^in connection with any motion."
VPCF then

claims,

without further elaboration, that an

lAL declaration submitted in support of its motion ^^should not
be considered."

Dkt. No. 62 at 2.

But ''a ^litigant who fails

to press a point by supporting it with pertinent authority, or
by

showing

why

it

is

sound

despite

a

lack

of

supporting

authority or in the face of contrary authority, forfeits the
point.

The court will not do his research for him.'"

Perez

V. Bureaus Inv. Grp. No. II, LLC, No. 1:09-CV-20784, 2009 WL

1973476, at *2 {S.D. Fla. July 8, 2009) {quoting Phillips v.
Hillcrest Med. Ctr., 244 F.3d 790, 800 n.lO (10th Cir. 2001)

(quoting Pelfresne v. Vill. of Williams Bay, 917 F.2d 1017,

1023 (7th Cir. 1990) (per Posner, J.) (citations omitted))).^
Lastly, VPCF argues that it is too late for lAL to ask
the Court to disregard Johnson's declaration, as the deadline
for filing motions relating to discovery has passed.
62 at 1.

Dkt. No.

This argument would completely immunize anything

^ VPCF's brief also asserts that VPCF "did disclosures."

This unsupported claim merits no consideration.
10

Dkt. No. 62 at 2.

VPCF filed after the motions deadline from scrutiny, no matter

how

improper.

Such

an

argument

lacks

merit.

Johnson's

declaration is disregarded insofar as it raises undisclosed
expenses.

II. VPCF BREACHED THE SUBCONTRACT.

Turning to the main issues, VPCF undisputedly breached
the Subcontract.

It admits to not paying mandatory fringe

benefits, being late on payroll, and instructing employees not
to cash their checks because it did not have the money to pay

them.

Dkt. No. 44-4 at 107:22-108:12, 112:5-6, 121:21-122:8.

These actions violated the Service Contract Act.

6703(2); 29 C.F.R. §§ 4.6(h), 4.65(b).

Subcontract.

They thus violated the

Dkt. No. 44-5 SI 27 & p. 13.

to terminate for default.

41 U.S.C. §

This authorized lAL

Id. SI 16(a)(ii); see also Dkt. No.

44-4 at 111:25-112:3 (acknowledging awareness of risk VPCF's

actions posed to government contract:

''[W]e . . . went to the

federal unemployment office to self-report . . . because one

of the things that was said to us in our cure notice, [was]
that we will put the contract at jeopardy.").

lAL properly

did so.

VPCF does not effectively contest this.
did not notify it of problems.
gave

VPCF seven

weeks

to

required a fifth as long.

cure,

It claims lAL

Dkt. No. 62-1 at 3.
while

the

But lAL

Subcontract

only

Dkt. Nos. 44-5 SI 16(a)(ii), 44-6,
11

44-11.

VPCF then

contends that

it

fringe benefits that were owed."
while

^'VPCF

had

issued

checks

^'took

steps

to

pay the

Dkt. No. 62-1 at 3.

as

back

pay

for

the

But,
fringe

component . . . several employees were asked to hold their
checks and not negotiate them," and ''[r]egular payroll checks
were also issued with instructions that they be held, and even
then

the

checks

were

often

late."

4 4-3 SI

18; see

also Dkt. No. 44-4 at 121:21-122:8 {admitting this).

VPCF's

^'cure" was as bad as the disease.

Tsar

Ivan

the

Terrible

Dkt.

No.

Compare What Drove Russian

Mad?,

Quirky

Sci.,

http://www.quirkyscience.com/what-drove-ivan-the-terrible-mad/
(accessed Mar. 8, 2017) (describing use of mercury to treat

syphilis);

Matthew

Lively,

^'The

Most

Fatal

of

All

Acute

Diseases:" Pneumonia and the Death of Stonewall Jackson, Civ.

War

Monitor

(May

13,

2013),

http://www.civilwarmonitor.com/

blogs/the-most-fatal-of-al1-acute-diseases-pneumonia-and-thedeath-of-stonewall-jackson

(describing

use

of

purgatives

to

treat pneumonia).

Lastly,® VPCF claims lAL forced the inadequate facility
upon it.

Dkt. No. 51 at 8-11; Dkt. No. 62-1 at 3.

But VPCF

nowhere frames this as a prior breach by lAL, so the Court

will not analyze it as such.

See Resolution Tr. Corp. v.

® VPCF also complains that the vehicles were in such terrible shape upon
Dkt. No. 51 at 9; Dkt.

arrival that adequate maintenance was impossible.

No. 62-1 at 3.
This is irrelevant, given that the Court is basing its
holding on VPCF's Service Contract Act violations.
12

Dunmar Corp., 43 F.Sd 587, 599 {11th Cir. 1995) (^^There is no

burden

upon

the

district

court

to

distill

every

potential

argument that could be made based upon the materials before it
on summary judgment.

Rather, the onus is upon the parties to

formulate arguments . . .

fact that

VPCF only

raises these troubles in the

maintenance context.

the

building

significant

.

.

This decision is guided by the

vehicle-

See, e.g., Dkt. No. 51 at 10 (^^Because

.

problem.

had
.

leaks,

.

.

mold

Because

and
of

mildew
the

was

a

inadequate

ventilation, it was not possible to leave the vehicles idling

in the building . . . .").

VPCF breached the Subcontract.^

III. lAL CORRECTLY CALCULATED WHAT IT OWED VPCF.

lAL's debt calculation was undisputedly proper.

lAL was

correct to use the rate it did and deduct certain expenses.
A. lAL Used the Correct Rate.

lAL's

properly

used

a

fixed

per-vehicle

rate

in

calculating what it owed VPCF, rather than handing over 95.5%
of its

government revenue.

The

first question

is

whether

® Therefore, even before turning to lAL's debt calculation, the Court
GRANTS

summary

contract.

judgment

to

lAL

on

VPCF's

counterclaim

for

breach

of

Dkt. No. 18 15 36-39.

The Court pauses to note briefly VPCF's contention that lAL
unlawfully converted VPCF property and barred VPCF from the facility.
Dkt. No. 51-1 5 35.
VPCF does not identify the property at issue, so
there is nothing the Court can do.
As for lAL's barring VPCF from the
site, the lease was in lAL's name.

Dkt. No. 44-3 5 10.

The Court will

not hold that lAL had to let VPCF continue possession without some sort of
argiiment as to why.
Cf. Dkt. No. 4 4-5 f 16(d) ("[lAL] shall have no
obligations to [VPCF] with respect to [a] terminated part of this
Agreement except as herein provided.").
13

Exhibit B governs, and the second is whether the controlling
rate for vehicle storage is $73.41 per vehicle or 95.5% of

lAL's storage income from the government.

Dkt. No. 44-4 at

38:20-39:16; Dkt. No. 46 at 13-16; Dkt. No. 51 at 6-7, 14-15;

Dkt. No. 62 at 2-3.

There is no genuine issue of material

fact as to either issue.

Exhibit B governs VPCF's compensation.

The Subcontract

identifies ^^all Exhibits hereto which are incorporated herein

by reference" as part of the parties' agreement.
5 5 24.

Dkt. No. 44-

It references Exhibit B as the sole basis for VPCF's

"right to any reimbursement, payment or compensation of any
kind" from lAL.

Id. 5 5.

There is an Exhibit B, entitled

"Compensation".

Id. at 16 et seq.

Most decisively, VPCF

itself relies on Exhibit B as the basis for its compensation.

Dkt.

No.

44-4

at

42:2-44:24

(discussing

exhibit

containing

Bates No. 2005); Dkt. No. 44-5 at 19 (showing Bates No. 2005
to be Exhibit B's rate calculation sheet

For VPCF to claim

Exhibit B was not part of the Subcontract is disingenuous.

Equally unavailing is VPCF's contention that Exhibit B
means it should be paid 95.5% of lAL's storage revenue from

the

government,

rather than $73.41/vehicle/month.

Contract

construction "is a question of law for the court," and in the
For

this

reason,

the

Court

disregards

the

portion

declaration conclusorily denying Exhibit B's validity.

of

Johnson's

See Dkt. No. 51-2

I 9; Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,
657 (llth Cir. 1984).
14

absence of an ambiguity, ^^[t]he construction of a contract is

particularly well suited for disposition by summary judgment."
O.C.G.A.

§

13-2-1;

Tucker

Maters.

(Ga.),

Inc.

v.

Devito

Contracting & Supply, Inc., 535 S.E.2d 858, 859 (Ga-. Ct. App.
2000).

The

first—and

if

satisfied,

only—step

of

contract

construction is to ^Metermine whether the language therein is

clear

and

unambiguous"; ""if

it is,

the

contract

is to

be

enforced according to its clear terms; the contract alone is
looked

to for

its

meaning."

Atlanta

Dev.

Auth.

v.

Clark

Court must take

here.

Atlanta Univ., Inc., 784 S.E.2d 353, 357 (Ga. 2016).

That step is the only one the
Exhibit

B

clearly

and

unambiguously

sets

VPCF's

compensation rate as $73.41/vehicle/month.

storage-

The first sheet,

describing VPCF's ''Rate/Element of Expense," plainly states
$73.41 to be VPCF's ''Per Unit Rate Check Total."
44-5

at

17.

The

next

sheet

then

details

contingency (5%), and profit ($425,000).
third

sheet

relates

the

two,

Dkt. No.

VPCF's

costs,

Id. at 18.

divvying

up

the

costs-

contingency-profit total ($3,597,484) into two blocks.
at

19.

The

one

relating

to

storage

The

mentions "95.5%

Id.
to

Vehicle/Month Rate" in connection with a number that is 95.5%

of

$3,597,484,

while

the

processing

block

mentions "4.5%

Storage Processing In/Out" beside a number equaling 4.5% of
that amount.

Id.

Each of those numbers is then divided by

15

the anticipated number of vehicles per year to arrive at the
""Per Unit Rate Check Total" ($73.41 for storage).
In

short,

a

flat

$73.41/vehicle/month

Id.

rate

is

listed

twice, the first time totally unaccompanied by any suggestion
of 95.5%.

Id. at 17, 19.

As lAL claims, 95.5% is clearly

and unambiguously the percentage of VPCF's total compensation
that it would derive from providing storage, complemented by
4.5% from processing.

See

Dkt. No. 44-3 1 39.

The two

numbers added together equal 100%, and when multiplied by the
number of vehicles in question, the rates add up to 100% of

VPCF's costs-contingency-profit.

95.5%, then, is patently

not a promise that VPCF would receive virtually all of lAL's

government

revenue.

Indeed,

nothing

in

Exhibit

B

even

references lAL's expected take from the government.

lAL's reading of Exhibit B ""is the common sense of the
contract,

and

so,

under

[Georgia]

Subcontract] to be interpreted."
278, 281 (1872).

law,

ought

[the

Booth v. Saffold, 46 Ga.

lAL properly measured VPCF's compensation.

B. lAL Properly Deducted Expenses.
lAL also calculated offsets correctly:

•

VPCF claims nothing in the Subcontract burdened it

with paying for the facility's lease.
This is false.

Dkt. No. 51 at 11.

Dkt. No. 44-5 at 18.

Johnson testified that that amount was in an email, but the email is not

apparent anywhere in the record evidence.
16

Dkt. No. 44-4 at 9-20.

•

VPCF

objects

that

it

responsible for utility costs.
also false.

•

was

Dkt. No. 51 at 11.

This is

VPCF complains that it should not be debited for

costs

or

auto

batteries,

problems were caused by a third party.
the

contractually

Dkt. No. 44-5 at 18, 23.

vehicle-repair

But

not

Subcontract

specifically

as

the

underlying

Dkt. No. 51 at 11-12.

saddled

VPCF

with

^^[a]ll

necessary cost to fulfill [its] obligations," dkt. no. 44-5 at
15, and VPCF acknowledged that one of its obligations was to

keep vehicles in good condition.

Dkt. No. 44-4 at 73:3-75:9.

VPCF's failure to implead whatever party it thinks should be
responsible does not mean lAL has to absorb the cost.
•

VPCF does not want an offset for tree service, as

this '^had

to

be

done

and

was

approved

by

lAL

or

was

the

expense of the landlord," or for pest control, as ^'this was
required."
the

Dkt. No. 51 at 11.

^'necessary

cost

to

These costs were well within

fulfill

[VPCF's]

obligations"

of

[p]erform[ing] the necessary functions to establish . . . and
operate" the facility.
•

Dkt. No. 44-5 at 13, 15.

VPCF claims

it should

not

be

charged

for a

gate

because ^'[t]he landlord was responsible for it" and much of

the fee
marshal.

was for security boxes required
Dkt.

No.

51

at

11-12.

lAL

by the local fire
concedes

that

the

landlord approved fence installation ^^and that cost was paid
17

separately," but presented evidence that VPCF ^^approv[ed] the
installation

electronic

of

an

gate.

unnecessary,"

Dkt.

No.

44-3 f

unapproved,

34(f).

unpaid-for

This

gave

the

contractor ^^the right to assert a lien"—something that would
violate lAL's lease-so lAL paid.

Id.

VPCF does not give the

Court any reason to doubt this, and even appears to concede
the

point by arguing that the amount offset ^'was

difference

between

Dkt. No. 51 at 11.

a

manual

gate

and

an

not the

electronic

gate."

But VPCF does not present any evidence or

even guess as to what cost lAL should have owed, so the Court
will not upset this offset.

•

VPCF

contends

that

it

only

had

to

buy

radios because the facility lacked electricity.

wireless

Id. at 12.

The Court does not see any relevance to this.
•

VPCF claims it improved the site at lAL's request.

But the Subcontract clearly and unambiguously burdened VPCF
with establishing and operating the facility.
12.

Dkt. No. 51 at

As for VPCF's claim that the landlord should have paid,

VPCF did not implead it.
•
offset

for

Lastly,
rent.

VPCF
Id.

Dkt. No. 44-3 f 34(h).
argues
at

that

13.

it
The

never

agreed

parties

had

to

an

first

anticipated the facility lease being in VPCF's name, but it
ended up being in lAL's.

Dkt. No. 44-3 SI 10.

18

As, again, the

Subcontract required VPCF to pay the lease, this deduction was
permissible.

lAL's offsets were proper.
CONCLUSION

For the reasons above, lAL's Motion for Summary Judgment,

dkt. no. 44, is GRANTED.

lAL owes VPCF $59,446.58.

lAL shall

have 7 days from today's Order to submit documentation and
arguments supporting its request for attorneys' fees.

VPCF

shall have 7 days thereafter to file any opposition thereto.

SO ORDERED, this 16th day of May, 2017.

LISA GODBEY WOOD, DISTRICT JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

VPCF may have tried to object to a charge for water service, but it only
managed to say: "With regard to the bill to the City of Chester for Water
Service."

Dkt. No. 51 at 12.

The Court will not disturb this offset.

19