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
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