Byrd et al v. Drive Electric, LLC et al

Filing 75

ORDER granting Byrds' 52 Motion for Entry of Default. Default judgment is entered jointly and severally against Defendants in the amount of $1,099,007.60. The Clerk is DIRECTED to enter the appropriate judgment and mail a copy of this Or der to Defendants Drive Electric, LLC,; Drive Electric USA, LLC; Zone Electric Car USA, LLC; Western Golf Car Sales Co., Inc.; Western Golf Car Manufacturing, Inc.; and Lido Motors USA, Inc. The Byrds are DIRECTED to file any supplemental evidence and argument as to GUDTPA, fees, and costs within 10 days of today's Order. Signed by Judge Lisa G. Wood on 5/16/2017. (ca)

mntteH States! Bii^etrtct Conit

for tfie ^oittliem Biiettnct of 4^eorgta
^alianna]^ Bibtotott

FILED
Scott L. Poff, Clerk
United States District Court

By casbell at 4:33 pm, May 16, 2017

RICHARD BYRD and AMANDA
BYRD,

Plaintiffs,
4:15-CV-120
V.

DRIVE ELECTRIC, LLC; DRIVE
ELECTRIC USA, LLC; ZONE
ELECTRIC CAR USA, LLC;
WESTERN GOLF CAR SALES CO.,

INC.; WESTERN GOLF CAR
MANUFACTURING, INC.; LIDO
MOTORS USA, INC.; and
SUZHOU EAGLE ELECTRIC
VEHICLE MANUFACTURING CO.,
LTD.;
Defendants.
ORDER

Plaintiffs Richard and Amanda Byrd move for entry of

default judgment against Defendants Drive Electric, LLC and
Drive Electric USA, LLC (collectively, ''Drive Electric"); Zone

Electric Car USA, LLC ("Zone Electric"); and Western Golf Car

Sales Co., Inc.; Western Golf Car Manufacturing, Inc.; and
Lido

Motors

USA,

Inc.^

together, "Defendants").

(collectively, "Western/Lido")

Dkt. No. 52.

(all

The Motion will be

GRANTED.

^ Suzhou Eagle Electric Vehicle Manufacturing Co., Ltd. is excluded from
this Order.
A0 72A

[Rev. 8/82)

See Dkt. No. 52-1 at 2 n.l.

BACKGROUND

The Court deems the Byrds' well-pled factual allegations
admitted

by

Defendants'

default.

See

United

States

v.

Elliott, No. 1:15-CV-106, 2016 WL 4083738, at *1 (S.D. Ga.

Aug. 1, 2016).

The Byrds are a married couple who lived in

Savannah, Georgia.

Dkt. No. 1 SI 1.^

Around December 22,

2009, they bought a Neighborhood Electrical Vehicle

C'NEV")

sold, designed, assembled, inspected, and manufactured by, and
equipped with components from. Defendants.

Id. SISI 13-14.

The

NEV s electrical-power junction, through which energy passed
to charge the NEV, was too small.

Id. SISI 15-16.

This caused

a May 9, 2011 electrical fire that destroyed the NEV and the
Byrds' SUV, and spread into their home.
The

Byrds

generally id.
2015.

Dkt.

filed

this

lawsuit

Id. SI 17.

on

May

6,

2015.

See

Service of process was perfected on November 4,
Nos.

14-16,

18-19,

38-39.

Defendants

did

not

answer, and the Clerk entered defaults on August 9 and October

11, 2016.

Dkt. Nos. 44, 50.

The Byrds moved for entry of

default judgment on December 6, 2016.

heard
appear

Dkt. No. 52.

The Court

oral argument on March 24, 2017; Defendants did not
or

respond.

See

Dkt.

No.

68.

The

supplemented their briefing on April 7, 2017.

Byrds

timely

Dkt. No. 70.

^ The Court cites to the original complaint for all facts unfavorable to
Defendants, as these are what they admitted to through their default and
none materially differ in the amended complaint.

LEGAL STAEDABD

Given an adequate basis in the pleadings, the Court has
discretion to enter default judgment.

Fed. R. Civ. P. 55(b);

United States v. Elliott, No. 1:15-CV-106, 2016 WL 4083738, at

*1 (S.D. Ga. Aug. 1, 2016); Am. Contractors Indemnity Co. v.
Energy Smart Insulation Co., No. 6:15-CV-66, 2016 WL 3395546,
at *1 (S.D. Ga. June 15, 2016) (citing Nishimatsu Constr. Co.
V. Houston Nat^l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
DISCUSSION

The

Byrds

are

entitled

to

entry

of

default

judgment

because Defendants are in default, the Court has jurisdiction,

there

is

an

adequate

basis

for finding

liability, and

the

Byrds adequately proved damages.
I. DEFENDANTS ABE IN DEFAULT.

Defendants are in default.

Dkt. Nos. 44, 50.

This is so

even though the Byrds filed an amended complaint after entry

of default, as they "did not assert any new claims."

Saint-

Gobain Autover USA, Inc. v. Fuyao Glass Indus. Grp. Co., No.

05-71079, 2005 WL 3454402, at *1 (E.D. Mich. Dec. 16, 2005)

(finding

no

defaulting

obligation

defendant);

to

see

serve

also

amended

Varnes

v.

complaint
Loc.

91,

on

Glass

Bottle Blowers Ass^n of U.S. & Can., 674 F.2d 1365, 1369 (11th
Cir. 1982).

II. THE COURT HAS JURISDICTION.

The

Court

has jurisdiction.

matter jurisdiction.

It has diversity subject

The Byrds were Arkansas residents when

they filed this lawsuit. Defendants were not, and the amount
in controversy exceeds $75,000.
The

Defendant

Court

also

compliant

has

Dkt. No. 1 SISI 1-8, 10.

personal

with

Georgia's

federal constitutional due process.

jurisdiction

long-arm

over

statute

each

and

The plaintiff bears the

burden of proving that both requirements are satisfied.

See,

e.g., RMS Titanic, Inc. v. Kinqsmen Creatives, Ltd., 579 F.

App'x 779, 783 {11th Cir. 2014) (per curiam).

The Byrds have

carried that burden here.

A. Personal Jurisdiction Satisfies Georgia Law.

Personal jurisdiction over Drive Electric, Zone Electric,
and Western/Lido satisfies the Georgia long-arm statute.

i. The Court has long-arm jurisdiction over Drive
Electric.

Georgia's long-arm statute gives the Court jurisdiction
over Drive Electric.

over

any

State."

That law extends ^'personal jurisdiction

nonresident

who

transacts

any

business

in

this

Innovative Clinical & Consulting Serv., LLC v. First

Nat'l Bank of Ames, 620 S.E.2d 352, 355 (Ga. 2005) (citing
O..C.G.A. § 9-10-91(1)).

enter Georgia.

The nonresident need not physically

Diamond Crystal Brands, Inc. v. Food Movers

Int^l, Inc., 593 F.3d 1249, 1264 (11th Cir. 2010) (discussing

nonresident's mail, telephone calls, and other ^intangible'
acts").

Drive

Electric

came

within

reach

of

the

long-arm

statute by selling the Byrds an NEV through its website and
shipping it to them in Georgia.

See Dkt. No. 4 9 at 1-2, 3 SI

1.

ii. The Court has long-arm jurisdiction over Zone
Electric.

Zone Electric also comes within reach of Georgia's long-

arm

statute.

their

NEV

The

to

Byrds evidenced

order,

and

that

that

Zone

Zone

Electric made

Electric

transferred

ownership of the as-yet-unmanufactured NEV to Drive Electric
as soon as they placed their order.

Dkt. Nos. 70-2, 70-3.

This is enough to satisfy Georgia's long-arm statute, as is
clear from two

cases.^

In

Vibratech,

Inc.

v.

Frost, 661

S.E.2d 185, 187 (Ga. Ct. App. 2008), the New York defendant
manufactured

engine.

an

company

^

These

defective

part

of

an

airplane

The part was shipped to an Alabama company, which

installed the
bought

allegedly

the

had

cases

part into the engine.

engine

the

from

a

Alabama

establish

that

Texas

The

company.

company

Zone

Id.

ship

Electric

is

plaintiffs

Id.

the

The

part

subject

Texas

to

to

the

long-arm

jurisdiction because it both "
[t]ransact[ed] any business within" Georgia,
and "
[c]ommit[ted]

a

tortious

act

in

this

state

caused

by

an

act

or

omission outside this state" while "regularly do[ing] or solicit[ing]
business, or engag[ing] in any other persistent course of conduct, or

deriv[ing] substantial revenue from goods used or consumed or services
rendered in this state."

O.C.G.A. §§ 9-10-91(1), (3).

plaintiffs in Georgia.

Id.

The Georgia Court of Appeals

found that the New York defendant had transacted business in

Georgia,

because

the

New

York

defendant

and

the

Alabama

company ^'had a longstanding business relationship" to make
parts for use in engines across America.

Id. at 190.

Thus,

'"although [the New York defendant] did not conduct any sales
activities in Georgia itself, its business ha[d] been directly

affected by sales transactions occurring here," and so Georgia
courts had long-arm jurisdiction.

quotation marks omitted).
position.

Id. (citation and internal

Zone Electric is in

a similar

It has a longstanding business relationship with

Drive Electric to manufacture products to be sold throughout
America, and "its business has been directly affected by sales

transactions" in Georgia.

See Dkt. Nos. 70-16 (boasting of

seven Drive Electric NEV sales in Georgia, beyond the one to

the

Byrds);

70-17

(describing

Drive

Electric

Denko

K.K.

as

a

Zone

Electric authorized dealer).

Also

instructive

is

Showa

S.E.2d 658 (Ga. Ct. App. 1991).

v.

Pangle,

414

There, the Japanese defendant

manufactured raw materials that non-Georgia entities used to

make food supplements.

Id. at 659.

materials to "twenty-three
Id. at 660.

"As a

The defendant sold the

[manufacturers] in

nine

states."

Some of those ran nationwide retail chains.

result, [materials]

produced

by [the

defendant

Id.

were]

placed in the stream of coimnerce in virtually all 50 states."
Id.

The Georgia Court of Appeals held that the defendant's

''sale of goods in another state, knowing that they [would] be
resold" in

Georgia,

triggered

long-arm

jurisdiction.

Id.

Zone Electric even more neatly fits under this rule than did
the

Showa

Denko

K.K.

defendant—it

including for the Byrds in Georgia.

made

NEVs

to

order,

See Dkt. Nos. 70-2, 70-3.

Thus, Georgia's long-arm statute reaches it.
iii.

The Court has
Western/Lido.

long-arm

jurisdiction

over

Long-arm jurisdiction over Western/Lido exists for the
same reasons.
the

This

Western/Lido supposedly assemble and inspect

NEVs that

means

Drive

that

relationship

Electric sells.

they,

with

Drive

too,

have

Electric

Dkt.

a
to

No. 70 at

longstanding
put

NEVs

onto

16-17.

business
streets

nationwide, knowingly send NEVs into the nationwide stream of
commerce,

and

are

directly

affected

by

sales

in

Georgia.

Long-arm jurisdiction thus exists over Western/Lido.
B. Personal Jurisdiction Satisfies the U.S. Constitution.

Personal jurisdiction over Drive Electric, Zone Electric,
and Western/Lido is also compatible with federal due process.
The

U.S.

Constitution

historical
jurisdiction

and
of

limits

philosophical
courts

to

personal

reasons.

render

jurisdiction

for

"Historically

the

judgment

in

personam

is

grounded on their de facto power over the defendant's person."
Int'l

Shoe

Co.

Compensation

v.

&

State

of

Placement,

Wash.,

326

Office

U.S.

Unemp't

316

310,

of

(1945).

Philosophically, the defendant has a right to ''adequate notice
of the

U.S.

suit."

286, 291

World-Wide

(1980).

Volkswagen

Thus,

when

Corp.

the

v.

Woodson,

defendant is

444

not

a

resident, a court cannot exercise personal jurisdiction unless
the

defendant

has

"minimal

contacts"

with

the

Hanson v. Denckla, 357 U.S. 235, 251 (1958).

forum

state.

The Court asks:

(1) whether the plaintiff's claims "arise out of or
relate to" at least one of the defendant's contacts

with

the

forum;

(2)

whether

the

nonresident

defendant "purposefully availed" himself of the
privilege of conducting activities within the forum
state,

thus

state's

invoking

laws;

and

the

(3)

benefit

whether

of

the

the

forum

exercise

of

personal
jurisdiction
comports
with "traditional
notions of fair play and substantial justice."
Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355

(11th Cir. 2013) (quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472-73 (1985)).

The first and third elements are clearly met here.

The

Byrds' claims all relate to an NEV Defendants made, assembled,

inspected,

shipped, and sold for

use in

Georgia.

And the

third element is presumed to be satisfied once the plaintiff
makes out a prima facie case, unless the defendant rebuts it
"compelling[ly]."

Louis Vuitton Malletier, S.A., 736 F.3d at

1355 (citation omitted).

Here, the defaulting Defendants have

obviously failed to do any such thing.

Purposeful availment is a closer call.

How to apply that

element in the context of modern commerce is hotly debated.

See J. Mclntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011)

(4-2-3 split decision); Asahi Metal Indus. Co. v. Super. Ct.
of

Cal.,

Solano

decision).

Cty.,

480

U.S.

102

(1987)

(4-4-3

split

But precedent does easily establish that Drive

Electric and Zone Electric purposefully availed themselves of

Georgia.

As to Western/Lido, the

Court

reaches the

same

destination, albeit by a more winding path.

i. Drive Electric purposefully availed itself.

Drive Electric purposefully availed itself of Georgia.
J]urisdiction is usually proper" in a state to which the
defendant

sells

things

online.

Integrated

Glob. Concepts, Inc.,

Catch

Curve,

Inc.

No. 1:06-CV-2199, 2007

v.

WL

9612268, at *5 (N.D. Ga. Sept. 20, 2007) (citing Zippo Mfg.
Co. V. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa.

1997)).

The defendant only needs to have conducted multiple

such sales.

Supp.

3d

Sarvint Techs., Inc. v. Omsiqnal, Inc., 161 F.

1250,

1262-63 (N.D.

Ga.

2015)

(finding

personal

jurisdiction where only 0.5% of defendant's sales and 0.35% of
its total revenue came from Georgia).

Drive Electric boasts

of selling multiple NEVs to Georgians on its website.

See

Dkt. No. 70-16.

The Court can exercise personal jurisdiction

over it.

ii. Zone Electric purposefully availed itself.

Zone

Georgia.
its

Electric

also

purposefully

availed

itself

of

A manufacturer does so when it ''specifically [sells]

products

to

[another]

for

distribution

in" the

forum

state, especially when that distributor is "clearly not . . .
an end-user."

King v. Gen. Mot. Corp., No. 5:ll-CV-2269, 2012

WL 1340066, at *7 {N.D. Ala. Apr. 18, 2012).

Similarly, a

manufacturer purposefully avails itself of a state if it makes

products to order for a third party knowing they will be sold
there.

Brown v. Bottling Grp., LLC, 159 F. Supp. 3d 1308,

1313, 1315 (M.D. Fla. 2016).
order for Drive Electric.

Here, Zone Electric made NEVs to

Dkt. Nos. 70-2, 70-3, 70-4.

This

is enough for constitutional personal jurisdiction.
iii. Western/Lido purposefully availed themselves.

Western/Lido's purposeful availment is a harder question,
as it relies on a theory that has repeatedly fractured the

U.S.

Supreme

debate,

the

Court:

the

precedents

stream
show

of

that

commerce.
this

Court

Despite
can

the

exercise

personal jurisdiction over Western/Lido.
The

Byrds

point to Western/Lido's

deriving substantial

revenue from inspecting and assembling NEVs sold in Georgia,
and

their "deliver[ing] [NEVs] into

10

the

stream

of commerce

with

the

expectation

that

they

[would]

consumers in the State of Georgia."

This

take

history.

on

purposeful

availment

be

purchased

by

Dkt. No. 70 at 16-17.

has

a

highly

contested

The earliest binding precedent on point holds that a

court can

constitutionally ^^assert[ ] personal jurisdiction

over a corporation that delivers its products into the stream
of commerce with the expectation that they will be purchased
by consumers in the forum State."

World-Wide Volkswagen Corp.

V. Woodson, 444 U.S. 286, 298 (1980).

Under this holding,

Western/Lido purposefully availed themselves of Georgia:
inspected

and

assembled

NEVs

made-to-order

customers on a fairly regular basis.

for

They

Georgia

See Ruiz de Molina v.

Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1357 (11th

Cir. 2000); Smith v. Poly Expert, Inc., 186 F. Supp. 3d 1297,
1305 (N.D. Fla. 2016) ('MA]t least five members of the current

Supreme

Court

would

a high-volume seller
commerce
state,

forum

knowing

even

put

those

if that

state."

probably
its

had

and

minimum

products

products

seller

(footnote

find

would
no

into
end

other

emphasis

contacts
the

up

stream

in

the

contacts

omitted)

where

forum

with

(in

of

the

obiter

dicta)); Johnson v. Chrysler Can., Inc., 24 F. Supp. 3d 1118,
1139 (N.D. Ala. 2014) (applying ''a broad stream of commerce

approach," even while noting that ^^the parameters of the socalled

^test'

from

World-Wide

11

Volkswagen

have

never

been

clear."); Hatton v. Chrysler Can., Inc., 937 F. Supp. 2d 1356,
1365-66

(M.D.

Fla.

Sports,

Inc.,

908

(same);

Pitts ex

Supp.

2d

1353,

2013)

F.

(same); Simmons

Supp.

rel.

2d

Pitts

1357

1224,

Big

No.

1229 (N.D.

v. Seneca

(S.D. . Ga.

v.

Sports,

2004)

Ala.

Inc.,

(^^The

1

Mot.

2012)
321

F.

defendant]

distributed its [products] nationally and thus is chargeable

with knowledge that some would ultimately be sold by Georgia
. . . stores.
over

That supports the Court's personal jurisdiction

[it]." (internal

citation

omitted));

but

see

Askue

v.

Aurora Corp. of Am., No. 1:lO-CV-0948, 2012 WL 843939, at *6
(N.D. Ga. Mar. 12, 2012) (Carnes, J.) (noting confusion as to
what test Eleventh Circuit would apply).

The rub is that the stream-of-commerce theory has long

been debated, including in two fragmented U.S. Supreme Court
decisions.

In Asahi Metal Industry Co. v. Superior Court of

California, Solano County, 480 U.S. 102, 112 (1987) (op. of
O'Connor,

J.),

four

justices

would

have

held

that 'Mt]he

placement of a product into the stream of commerce, without
more" is not purposeful availment.

Four would have held that

it can be, if the products' washing ashore in the forum state

is ^^regular and anticipated," not ^^unpredictable."

(op. of Brennan, J.).
the

question

Id. at 117

Another, concurring, would have avoided

altogether, finding that World-Wide

Co. dictated the outcome by itself.
12

Volkswagen

Id. at 121-22 (Stevens,

J.,

concurring).

'MA]ssuming

that

the

test

[had]

to

be

formulated," he would have weighed "the volume, the value, and

the hazardous character" of the goods.
"would

[have]

be[en]

inclined

to

Id.

conclude

For instance, he
that

a

regular

course of dealing that results in deliveries of over 100,000
units annually over a period of several years would constitute

'purposeful availment' even though the item delivered to the
forum

State

was

a

standard

world."

Id.

personal

jurisdiction

product marketed throughout the

Asahi Metal Industry Co. thus left the law of

"unsettled."

Vermeulen

v.

Renault,

U.S.A., Inc., 985 F.2d 1534, 1548 (11th Cir. 1993).'*
But there are two ways to distill a binding holding from
Asahi

Metal

Industry

Co.,

both

of

jurisdiction over Western/Lido here.

which

support

personal

One is to take Justice

Stevens' opinion as controlling because it is the narrowest
concurrence—after all, he would have sidestepped the question

that split the Court.

Marks v. United States, 430 U.S. 188,

193 (1977) ("When a fragmented Court decides a case and no

single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments

The Court thinks this characterization, plus J. Mclntyre Machinery, Ltd.,
means

the

Eleventh

Circuit

does

not

consider

Justice

O'Connor's

Asahi

Metal Industry Co. opinion binding. But see Morris v. SSE, Inc., 843 F.2d
489, 493 n.5 (11th Cir. 1988) (relying on that opinion "[f]or the limited
purpose of resolving this case").
13

on

the

citation

narrowest

grounds

omitted)).

. . .

Looking

{quotation

solely

at

marks

Justice

Stevens'

opinion, World-Wide Volkswagen Co. goes undisturbed.
Metal

Indus.

Co.,

480

U.S.

at

121-22

(stating

and

Asahi

World-Wide

Volkswagen Co. ''requires reversal," so no need to go further);
cf. AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1363

(Fed. Cir. 2012) (per curiam) (holding, in similar case, that
"the

law

remains

the

same"

because

"the

crux

of

[the

narrowest] concurrence was that the Supreme Court's framework

applying

the

changed").

stream-of-commerce

theory

.

.

.

had

not

Under this reading, jurisdiction over Western/Lido

here is permissible under Asahi Metal Industry Co. because
World-Wide Volkswagen Co. permits it.

Another reading of Asahi Metal Industry Co. would be to
treat Justice Stevens' test as binding because it garnered a

combined

majority,^

as

Justice

Brennan's

test

would

necessarily be satisfied in any case where Justice Stevens'
is,®

and

the

two

together

netted

five

votes.

Thus,

jurisdiction would be determined by weighing "the volume, the
value, and the hazardous character" of the products sent to
the

forum

state.

Id.

at

122.

Doing

so

would

show

^ See Rapanos v. United States, 547 U.S. 715, 810 (2006) (Stevens, J.,

dissenting) ("Given that all four Justices who have joined this opinion
would uphold the Corps' jurisdiction . . . in all . . . cases in which
either the plurality's or Justice KENNEDY'S test is satisfied[,] on remand
each of the judgments should be reinstated if either . . . is met.").
®

Justices

opinions.

White

and

Blackmun

apparently

See id. at 116, 121.
14

thought

so—they

joined

both

jurisdiction

to

be

proper

(alleging—and

so

could

electrical

start

here.

eliciting

See

constructive

fires);

Dkt.

Dkt.

No.

1

admission—that
No.

70-1

SI

26

NEVs

(showing

$7,629.53 as cost of Byrds' NEV); Dkt. No. 70-16 (boasting of

Georgia sales on website).

Therefore, either reading of Asahi

Metal Industry Co. allows for jurisdiction here.

So does the U.S. Supreme Court's most recent tussle over
the stream-of-commerce

test,

J.

Mclntyre

Nicastro, 564 U.S. 873 (2011).

reached.

v.

Once again, no majority was

Four justices would have held that the defendant

must ^^have targeted the forum."
J.).

Machinery, Ltd.

Id. at 882 (op. of Kennedy,

Three would have held that a foreigner that engages in

nationwide marketing purposefully avails itself of every state

where products go.

Id. at 893 (op. of Ginsburg, J.).

Two

concurring justices would have narrowly resolved the dispute

by ''adhering to . . . precedents" foreclosing jurisdiction
because the defendant only made "a single isolated sale" into
the forum state.

Id. at 888, 890 (op. of Breyer, J.); see
I

also id. at 890 ("I would not go further.").

Justice Breyer's concurrence
left prior precedent undisturbed.

was the

narrowest and it

In re Chinese-Mfd. Drywall

Prods. Liab. Litiq., 753 F.3d 521, 541 (5th Cir. 2014); AFTG-

TG, LLC, 689 F.3d at 1363; cf. Williams v. Romarm, SA, 756
F.3d

777,

784-85

(D.C.

Cir.
15

2014).

Thus,

J.

Mclntyre

Machinery, Ltd. does not change the analysis above.
debate

over

the

stream-of-commerce

test,

Despite

jurisdiction

is

proper as to Western/Lido, and to all Defendants.
III. DEFENDANTS AEE LIABLE.

There is a basis for holding each Defendant liable.
A. Drive Electric Is Liable.

Drive Electric is liable for failure to

warn and

under

Georgia's Fair Business Practices Act C'GFBPA"), but not under
Georgia's Uniform Deceptive Trade Practices Act (^^GUDTPA")
i. Drive Electric is liable for failure to warn.

There is a basis for finding Drive Electric liable for

failure to warn.

A chattel supplier like Drive Electric "is

subject to liability 'for physical harm'" when it
(a) knows or should realize that the chattel is or

is likely to be "dangerous for the use for which it
is supplied," (b) has no reason to believe that the
user

of

the

chattel

will

realize

its

"dangerous

condition," and (c) fails to exercise reasonable
care to inform them of its "dangerous condition" or
of the facts which make it likely to be so.

Fluidmaster, Inc. v. Severinsen, 520 S.E.2d 253, 255 {Ga. Ct.

App. 1999).

By defaulting.

Drive Electric admitted every

^ The Byrds also raise negligence and breach of implied warranty. Dkt. No.
1 II 30-36.
Most of their negligence allegations, which are raised

against all defendants together, go to manufacture and design.
Drive Electric was just a retailer.

Dkt. No. 49 II 2-3.

See id.

Thus, most of

the Byrds' negligence allegations against Drive Electric fit better into
their other claims. The sole exception might be failure to inspect. Dkt.
No. II 38. The Court need not address this allegation, given its finding
of other reasons why Drive Electric is liable.

Nor will the Court analyze the Byrds' breach of implied warranty
claim.

This claim is dubious, given that the Byrds' contract appears to

conspicuously waive that warranty.
16

Dkt. No. 49-2 I 10.

element.

It admitted that the Byrds suffered physical harm,

as fire destroyed their SUV and spread to their home.

Dkt.

No. 1 SI 17; see also Johnson v. Ford Mot. Co., 637 S.E.2d 202,

207

{Ga.

Campbell

Ct.
v.

App.

2006),

abrogated

Altec Indus.,

Inc.,

707

on

other

S.E.2d

(deeming property damage ^^physical harm").
it ''knew

or

should

have

known" that "the

dangerous electrical fires."

48

(Ga.

by

2011)

It admitted that
NEV

[could] cause

Dkt. No. 1 SI 26.

reason to think the Byrds could

grounds

There is no

have foreseen this risk.

Lastly, Drive Electric admitted that it "failed to warn the

public" of the risk.

Id. SI 40.

That is an adequate basis for

finding Drive Electric liable for failure to warn.
ii. Drive Electric is liable under 6FBPA.

Drive

elements

injury.
17

Electric is also liable

of

GFBPA

are

a

GFBPA

under

GFBPA.

violation,

The three

causation,

and

Tiismann v. Linda Martin Homes Corp., 637 S.E.2d 14,

(Ga.

2006).

Here,

the

violations

alleged-and

constructively admitted—are that Drive Electric sold an NEV
"that in order to operate, must be charged using electricity,

yet . . . cannot be charged without the risk of an electrical
fire," and misrepresented the qualities and quality of the

Byrds' NEV.

Dkt. No. 1 SISI 49-50; see also O.C.G.A. §§ 10-1-

393(a), (b)(5),
self-evident.

(b)(7),

(b)(9).

Causation

and

GFBPA makes Drive Electric liable.

17

injury are

ill. Drive Electric is not liable under 6UDTPA.

However, Drive Electric cannot yet be held liable under

GUDTPA.

The Byrds seek to enjoin Drive Electric's ^^failing to

disclose and concealing the NEV[']s defect."
58, 60; Dkt. No. 49 SISI 59, 61.

Dkt. No. 1 SISI

This pleading is ''incomplete,"

as it does not specify what the Byrds want enjoined.
DeKalb County, 235 S.E.2d 528, 529 (Ga. 1977).

Drew v.

The Court will

entertain a renewed motion within ten days of today's Order.®
B. Zone Electric Is Liable.

Zone

Electric

is

liable

for

failure

to

warn

and

under

GFBPA, and not liable under GUDTPA, for the same reasons as

Drive

Electric.

It

is

also

liable

for

negligence.

The

elements of negligence in Georgia are:

(1) [a] legal duty to conform to a standard of
conduct raised by the law for the protection of
others against unreasonable risks of harm; (2) a
breach of this standard; {3} a legally attributable
causal

connection

resulting injury;
flowing
to
the
interest as
legal duty.

a

between

the

conduct

and, (4) some loss
plaintiff's
legally

result

and

the

or damage
protected

of the alleged breach of

the

® As "injunctive relief is the only remedy permitted by the [G]UDTPA," the
Court cannot yet award attorneys' fees on this claim.
O.C.G.A. § 10-1373(b) (limiting attorneys' fees under GUDTPA to "prevailing party");
Catrett v. Landmark Dodge, Inc., 560 S.E.2d 101, 106 (Ga. Ct. App. 2002);

Dkt. No. 70 at 21 (seeking attorneys' fees under GUDTPA).
Nor do the
attorneys' affidavits, dkt. nos. 71-74, provide adequate detail regarding
the time spent on various aspects of this case to support an award.
Likewise, the Byrds' documentation of the costs they seek under
GUDTPA is too summary.
See Dkt. No. 52-4; Reis v. Thierry's, Inc., No.
08-20992-CIV, 2010 WL 1249076, at *3 (S.D. Fla. Mar. 25, 2010) (requiring
"sufficient detail and documentation" to allow "meaningful review by the
Court.").

18

Fletcher v. Water Applications Distrib. Grp., Inc., 773 S.E.2d

859, 862-63 (Ga. Ct. App. 2015) (citing Bradley Ctr., Inc. v.
Wessner, 296 S.E.2d 693, 695 (Ga. 1982) (citation omitted)).
A

manufacturer

like

Zone

Electric

has

a

duty

^'to

exercise

reasonable care in manufacturing its products so as to make

products that are reasonably safe for intended or foreseeable
uses."

Chrysler Corp. v. Batten, 450 S.E.2d 208, 211 (Ga.

1994).

Zone Electric constructively admitted that the other

three elements are met, so it is liable.

Dkt. No. 1 SISI 32-36.

C. Western/Lido Are Liable.
Western/Lido can be held liable for failure to warn and

under GFBPA, and not under GUDTPA, for the reasons above.

As

for negligence, an assembler's duty to avoid negligence is
just a variety of a manufacturer's, and an inspector owes

duties against negligence.

Cf. Wilcher v. Redding Swainsboro

Ford Lincoln Mercury, Inc., 743 S.E.2d 27, 30 (Ga. Ct. App.

2013) ('MW]here the retailer makes . . . an inspection, it
incurs a duty to conduct such . . . non-negligently.").

As

was the case with Zone Electric, Western/Lido's default means

they admitted the other negligence elements.
32-36.

Dkt. No. 1

Western/Lido are liable.

IV. THE BYBDS PROVED DAMAGES.

The
damages.

Byrds

adequately

proved

$219,801.52

Dkt. Nos. 52-2, 52-3, 66, 66-1, 66-2.
19

in

actual

They are also entitled to punitive damages.

An award of

punitive damages is authorized ^^in such tort actions in which
it

is

proven

by

clear

and

convincing

evidence

that

the

defendant's actions showed willful misconduct, malice, fraud,

wantonness, oppression, or that entire
would

raise

the

consequences."

presumption

of

want of care

conscious

O.C.G.A. § 51-12-5.1(b).

which

indifference

to

^^Punitive damages

are generally regarded as having three purposes:

To punish

the person doing the wrongful act, to discourage him from
similar conduct in the future, and to discourage others from

such conduct."

812

(Ga.

punitive

Nat'l Gypsum Co. v. Wammock, 353 S.E.2d 809,

1987).

Due

damages

take

reprehensibility

of

process

into

the

requires

account

defendant's

that any

^Ml)

of

degree

the

award

of

(2)

the

misconduct;

disparity between the actual or potential harm suffered by the

plaintiff

and

the

punitive

damages

award;

and

(3)

the

difference between the punitive damages awarded by the jury
and the civil penalties authorized or imposed in comparable
cases."

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.

408, 418 (2003).

In particular, ''an award of more than four

times the amount of compensatory damages might be close to the
line of constitutional impropriety."

§

51-12-5.1(e)

liability

(placing

actions).

no

Georgia
20

limit

law

Id. at 425; cf. O.C.G.A.

on

award

requires

in

courts

products

to

also

consider "the public nature of the harm" and "the corporate
defendant . . . involved."

S.E.2d

302,

312 (Ga. Ct.

Gen. Mot. Corp. v. Moseley, 447

App. 1994), abrogated

in

part on

other grounds by Webster v. Boyett, 496 S.E.2d 459 {Ga. 1998).

Taking into account these standards, and the evidence the

Byrds

presented

of

Defendants'

slipshod

manufacturing,

assembly, and inspection of at least two NEVs, dkt. no. 67, a

punitive award of four times the Byrds' actual damages is
appropriate.

This comes out to $879,206.08.

Therefore,

Defendants are jointly and

severally liable

for a total of $1,099,007.60.
CONCLUSION

The Byrds' Motion for Entry of Default Judgment (Dkt. No.
52)

is

GRANTED.

Default

judgment

is

entered

jointly

and

severally against Defendants in the amount of $1,099,007.60.
The

Clerk

of

Court

is

DIRECTED

to

enter

the

appropriate

judgment and mail a copy of this Order to Defendants Drive
Electric, LLC; Drive Electric USA, LLC; Zone Electric Car USA,
LLC;

Western

Golf

Car

Sales

Co.,

Inc.;

Western

Manufacturing, Inc.; and Lido Motors USA, Inc.

Golf

Car

The Byrds are

DIRECTED to file any supplemental evidence and argument as to
GUDTPA, fees, and costs within 10 days of today's Order.

21

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

LIS9^ GODBEY WOdD, DISTRICT JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

A0 72A

(Rev. 8/82)

22

DISTRICT OF GEORGIA