McDonald Georgia Commerce Center 400, LLC v. F & C Logistics, Inc. et al

Filing 12

ORDER dismissing 10 Motion for Writ; dismissing 10 Motion; granting 10 Motion to Deposit Funds. Signed by Judge B. Avant Edenfield on 1/2/13. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
McDONALD GEORGIA COMMERCE
CENTER 400, LLC,
Plaintiff,
4:12-cv-299

V.

F & C LOGISTICS, INC., and NESOR,
INC.,
Defendants.
ORDER
I. INTRODUCTION
Before the Court is Plaintiff McDonald
Georgia Commerce's ("McDonald")
Expedited Motion To Obtain Order On
Dispossessory Action Pursuant to Georgia
Law Or Alternative Order Requiring
Payment Of Rent Or An Expedited Hearing
To Determine Plaintiffs Right To Same.
ECF No. 10. McDonald requests the Court
order F & C Logistics, Inc. ("F&C") and
Nesor, Inc. ("Nesor") to relinquish
possession of certain commercial property to
McDonald, or in the alternative, pay to the
Court past due rent and rent as it becomes
due and the Court pay the same to
McDonald until the Court can decide the
possession issue. See Id. at 3. The Court
cannot determine the possession issue in the
timeframe McDonald requests. McDonald
is, however, entitled to the alternative relief
requested. For the following reasons, the
Court therefore GRANTS McDonald's
motion requiring payment of rent by F&C
and Nesor to the Court.

II. BACKGROUND
McDonald and F&C signed a lease in
2007 for a piece of commercial property in
Chatham County, Georgia. See ECF 10-1 at
7. Nesor, as parent company of F&C,
agreed to guaranty the complete payment
and performance of F&C on the lease. See
Id at 29. The lease commenced around
January 15, 2008 and is set to expire May
31, 2013. Id. at 34. McDonald alleges that
F&C breached the lease by not paying rent
for November and December of 2012. See
ECF No. 10 at 6.
Per the lease, the monthly rent for those
two months is $103,509 in base rent; "plus
additional rent . . . in the form of [F&C's]
proportionate share of. . . property taxes,
common area operating and maintenance fee
("CAM"), and [McDonald's] insurance
relating to the Premises." Id. at 4; ECF No.
10-1 at 8-10. For November 2012,
McDonald avers F&C's additional rent
came to "approximately $19,082." ECF No.
10 at 6. F&C's December "proportionate
share" allegedly came to $26,065. Id
McDonald originally brought suit in
Chatham County State Court. See ECF No.
1-1 at 5. F&C and Nesor subsequently
removed to this Court. ECF No. 1.
Removal is proper under 28 U.S.C. 1441(b)
and this Court has subject matter jurisdiction
under 28 U.S.C. § 1332(a).
III. ANALYSIS
When a tenant "fails to pay the rent when
it becomes due," an owner may "demand the
possession of the property so rented."

O.C.G.A. § 44-7-50.' "If the tenant refuses
• . . to deliver possession," the owner may
go before a judge of any court with
jurisdiction over the subject matter and seek
the return of the property. Id When an
owner brings such a suit, "[e]very effort
should be made by the trial court to expedite
the trial of the issues." id. at § 53(b). But if
"the issue of the right of possession cannot
be finally determined within two weeks from
the date of service . . . the tenant shall be
required to pay into the registry of the trial
court: (2) All rent and utility payments
which are the responsibility of the tenant
payable to the landlord under terms of the
lease allegedly owed prior to the issuance of
the dispossessory warrant." Id. at § 54(a).

court any written rental contract for the
purpose of establishing the amount of rent to
be paid into the registry of the court."
O.C.G.A. § 44-7-54(a).
The lease here provides for $103,509 in
base rent for the months of November and
December of 2012. See ECF No. 10-1 at 8.
And it defines additional rent as the tenant's
"proportionate share" of property taxes,
CAM fees, and insurance related to the
property. Id, at 9-11. McDonald has
submitted a report detailing F&C's alleged
proportionate share of insurance
reimbursement, property tax reimbursement,
and CAM fees for November and December,
2012. See ECF No. 10-1 at 42. For
November 2012, those amounts total
$26,064.55. Id. For December 2012, they
total $19,082. Id

More than two weeks have already
passed since the date of service in this case.
See ECF No. 1 (filing date for notice of
removal of November 26, 2012). And the
Court has not decided yet the right of
possession issue, nor can it at this juncture.
O.C.G.A. § 44-7-54(a) therefore requires
F&C and Nesor to pay to this Court "[a]ll
rent and utility payments . . . payable to
[McDonald] under terms of the lease
allegedly owed prior to the issuance of the
dispossessory warrant." F&C and Nesor,
moreover, consent to such payments. See
ECF Nos. 3 at 17; 11 at 17. The only
question remaining pertains to the amount
F&C and Nesor must pay to the Court.

IV. CONCLUSION

Accordingly, the Court ORDERS F&C
and Nestor to pay into the Court the sums of
$129,573.55 for November, 2012, and
$122,591.00 for December, 2012. And until
the Court decides the right of possession
issue, F&C and Nestor are ORDERED to
pay into the Court by the first of each month
$103,509.00 in base rent. F&C and Nesor
shall pay rent for January 2013 into the
Court no later than January 12. As the
amount of additional rent due monthly
appears to vary, the Court cannot calculate
with reasonable specificity that amount for
months beyond November and December,
2012.

"In the event that the amount of rent is in
controversy," the parties "may submit to the

The Court DECLINES, however, to
order payment to McDonald of any of the
sums received from F&C and Nestor.
O.C.G.A. § 44-7-54(c) requires "[t]hat part

'"As a federal court sitting in diversity jurisdiction,"
this Court must "apply the substantive law of the
forum state, in this case [Georgia], alongside federal
procedural law." Horowitch v. Diamond Aircraft
Indus., Inc., 645 F.3d 1254, 1257 (11th Cir. 2011).

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of the funds which is a matter of
controversy" to "remain in the registry of
the court until a determination of the issues."
And all of the sums McDonald requests are
in controversy. F&C and Nestor assert
counterclaims for breach of contract and
fraud against McDonald for allegedly failing
to deliver on promises of railroad access for
the property in question. See, e.g., ECF No.
3 at 19-23. As a result of the alleged breach,
they deny that they owe McDonald rent for
November and December of 2012. See id. at
10-11; ECF No. 11 at 10-11. The money
F&C and Nestor must pay therefore will
remain with the Court until it addresses the
right of possession issue.

This Way of January 2013.

B. AV(NT EDENFIELD, JUD
UNITED STATES DISTRICT 'OURT
SOUTHERN DISTRICT OF O1ORGIA

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