Douglas Asphalt Co. et al v. Qore, Inc. et al, No. 2:2006cv00229 - Document 179 (S.D. Ga. 2009)
Court Description: ORDER denying 161 Motion for Summary Judgment; granting 165 Motion for Summary Judgment as to the defamation claim. Plaintiffs' motion for consideration or reconsideration is GRANTED. Dkt. No. 110. Because the Court has recognized Plaintiffs' negligence claim, the Court will entertain additional dispositive motions from Defendants related to such claims, but said motions must be filed by March 13, 2009. Signed by Judge Anthony A. Alaimo on 2/13/2009. (csr)
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Douglas Asphalt Co. et al v. Qore, Inc. et al Doc. 179 in the .E1nittb 6tato 01arict Qou t for theouthern itritt of cor 3runck Oihüton DOUGLAS ASPHALT COMPANY, JOEL H. SPIVEY, and KYLE SPIVEY, FEa :•- 3 PH J: :-o L CIVIL ACTION Plaintiffs, V. QORE, INC., APPLIED TECHNICAL SERVICES, INC., Defendants. NO. CV206-229 ORDER Plaintiffs, Douglas Asphalt Company, Joel H. Spivey, and Kyle Spivey, filed the. above-captioned case against Defendants, Qore, Inc., Applied Technical Eervices, Inc. ("ATS"), and several individual Georgia 3epartment of Transportation ('GDOT") officials. Plaintiffs alleged violations of the federal Racketeer Influenced and Corrupt Organizations ('RICO") Act by all Defendants, equal protection and due process claims against the GDOT officials, and related state law tort claims against Qo e and ATS. On August 7, 2007, the Court dismissed P aintiffs' RICO claims as to all Defendants, Plaintiffs' due process claims against the GDOT officials, and Plainti fs' negligent misrepresentation and fraud claims against Qo e and ATS. The AO 72A (Rev. 8/82) Dockets.Justia.com Court allowed Plaintiffs' equal protection cl.air s against the GDOT officials to go forward, and on October 1, 2007, the Court held that the GDOT Defendants were not protected by qualified immunity as to that claim. defamation/false light claims against Qore Plaintiffs' and ATS also remained pending, inasmuch as those claims weii4e not subject to any dispositive motion. The GDOT officials appealed the Court's qualified immunity determination to the Eleventh Circuit.1 On September 2, 2008, the appellate court reversed this Coutt's qualified immunity ruling, and there are no remainingctlaims pending against the GDOT officials. Presently before the Court are Plaintifs' motion for clarification or reconsideration, and Defendantjs' motions for summary judgment. Because Plaintiffs' amended complaint alleges claims based on simple negligence, Plaintiffs's motion will be GRANTED. Because ATS did not rise privilege as a defense in its answer, ATS' motion wilil be DENIED. Because the statute of limitations bars any clim Plaintiffs have for defamation as to Qore, and becau1e Plaintiffs' characterization of the claim as one fr "injurious falsehood" must fail, Qore's motion for summarl judgment will 2 AU 72A (Rev. 8182) be GRANTED as to Count III of the complaint. BACKGROUND GDOT hired Douglas Asphalt to perform a3phalt paving services o two interstate highways in Georgia j The instant case arises out of those projects. In June 2003, GDOT retained Qore to test asphalt samples relating to the Douglas Asphalt projects for the level of lime content in the asphalt. ATS also performed related testing for Qore and GDOT. Qore sent certain test reports regardinc • the asphalt samples to GDOT through November 22, 2004. Dkt No. 165, Ex. 3, Arnold Aff. ¶ 11; Dkt. No. 165, Exs. 4 & 5 • Plaintiffs contend that the tests used to determine lime content levels were known by Defendants to be inaccurate. According to Plaintiffs' complaint, GDOT. relied on the4 false test reports and placed Douglas Asphalt in default On the highway projects on October 4, 2004. On October 10, 006, Douglas Asphalt and the Spiveys filed this suit. DISCUSSION 3 AO 12A (Rev. 8/82) I. Plaintiffs' Motion for Clarification or Rec s ideration Rule 8 (a) (2) of the Federal Rules of Ciiil Procedure requires only that a pleader provide "a shcrt and plain statement of the claim showing that the pleader is entitled to relief [ . ]" Rule 8(e) demands that "[ p ]leaings must be construed so as to do justice." "The Federal Rules reject the approach that pleading is •a game of skill in which one misstep by counsel may be decisive to the outco and accept the principle that the purpose of pleading is o facilitate a proper decision on the merits." Con 355 U.S. 41, 48 (1957), abrogated on other grounds by Corp. v. Twomy, 127 S. Ct. 1955, 1967-69 (2007) Upon reviewing the allegations contained iki Plaintiffs' amended complaint, the Court condiudes that Ithe document contains allegations of simple negligence re ating to the conduct of Qore and ATS. See Dkt. No. 46, ¶9f 3 , 38, 42, 43, 44, 74, 78, 86, 88, and 89. Had Count I of he complaint been titled "Negligence/Negligent Misrepresentaion," instead of "Negligent Misrepresentation," those alle ations would have been clearer. Nonetheless, after the a j dvent of the 1 Qore argues that the Court should not consider Plaintiffs' motion because it was dismissed while the case was on appeal, and was not reasserted in a timely manner under the revised scheduling order. The Court rejects Qore's suggestion for a couple of reasons. First, the 4 AO 72A (Rev. 8/S2) Federal Rules of Civil Procedure in 1938, a mer'e descriptive title in a complaint should not be so consequenial. Because denial of the motion would elevate form ovr substance, Plaintiffs' motion is well-founded. Douglas Aphalt and the Spiveys state a claim for negligence against core and ATS. II. Defendants' Motions for Summary Judgment Federal Rule of Civil Procedure 56(c) rovides for summary judgment "if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) . Facts are "material" if they coud affect the outcome of the suit under the governing subtantive law. Anderson •v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) The Court must view the facts in the light most favorable to the non-moving party, parties already had an opportunity to fully brief the issue when Plaintiffs reasserted the motion on January 22, 2009. kt. No. 173 at 11 n.3. Second, the Court dismissed the motion, pending the appeal, for statistical purposes and its own convenience. Given these considerations, it is inequitable to hold Plaintiffs trictly to the scheduling order. 5 A0 72A (Rev. 8/82) Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (19186), and must draw 'a11 justifiable inferences in his favorl[,]" United States v. Four Parcels of Real Prop., 941 P.d 1428, 1437 (11th Cir. 1991) (en banc) (internal quotation marks omitted) A. ATS's Motion for Summar y Judgment ATS asserts that there was no defamationi in the test reports it provided to Qore and GDOT because i t s statements were privileged by Georgia law, which proides: "The following communications are deemed privilged Statements made in good faith in the performane of a legal or moral private duty[, and] [s]tatements mad with a good faith intent on the part of the speaker to protct his or her interest in a matter in which [he br she] is oncerned[.]" Ga. Code Ann. § 5175-7(2) & (3); see also Davii v. SherwinWilliams Co., 242 Ga. App. 907, 908 (2000). However, in order to avail itself of thisidefense, ATS was obliged to plead it affirmatively in its 4nswer, which it failed to do. "In order to avail herself of the defense that the statement made by her was a privileged ornmunication ., the defendant should have filed a ple setting out such defense or alleged facts in her answer, shoving that the AO 72A (Rev. 8/82) communication was privileged. An answer i n which the allegations of the plaintiff's complaint are simply denied is not sufficient to raise such a defense, wh ch is in the nature of a confession and avoidance." In g rain v. Kendrick, 48 Ga. App. 278, 282 (1934); Fed. R. Civ. P. 8(c); see also McRae v. Boykin, 50 Ga. App. 866, 881-82 (1935), reversed on other cirounds, 182 Ga. 252 (1936) (per curam); Kitchen Hardware v. Kuehne & Nagel, 205 Ga. App. 94, 96 (1992); Johnson v. Wichita Falls Hous. Auth., NO. 2-06-416-CV, 2007 Tex. App. LEXIS 9192, at *5_*6 (Tex. Ct. pp. Nov. 21, 2007) (per curiam) Consequently, ATS is not entitled to j udgment as a matter of law with respect to Count III 0: Plaintiffs' complaint. B. Oore's Motion for Summary Judgment Count III of Plaintiffs.' amended compla. Lnt asserts a claim against Qore and ATS for "defamation/false light." Qore posits that a one year statute of limitations applies to Count III because Plaintiffs' claim is fo an injury to reputation. See Ga. Code Ann. § 9-3-33 7 AO 72A (Rev. 8/82) he last test report that Qore sent GDOT was on Novembelf 22, 2004.2 Because the complaint was filed more than a y ar later, on October 10, 2006, Qore argues it was untimely. Plaintiffs rejoin that their injury as to their property, not their personal reputation. Thu, Plaintiffs insist, the claim is one for "injurious falsehood." Restatement 2d Torts § 623A (1977); Ga. Soc y of Plastic Surgeons, Inc. v. Anderson, 257 Ga. 710, 714 (187) (assuming, without deciding, that an action will lie for trade libel under Georgia law) . Thus, Plaintiffs ass rt that the applicable statute of limitations is four years. See Ga. Code Ann. § 9-3-30 to § 9-3-32; Daniel v. Am. Optical Corfl., 251 Ga. 166, 168 (1983) (the "statute of limitations is determined by the nature of the injury sustain ?d rather than the legal theory underlying the claim for re1ef.") The Court finds that there are insurmountable hurdles to Plaintiffs' attempt to characterize their cl4im as one for injurious falsehood or trade libel. First, ao Judge Dudley H. Bowen, Jr., recognized, it is not clearl that Georgia 2 The Court is aware that, according to Plaintiffs, Q re has performed testing for GDOT's attorneys in related state court litigation after that date. Yet, as Defendants note, such testing is irrelevant here, given that Plaintiffs allege that the false reports or statements that injured them occurred between August 2003 and February 2004. Dkt. No. 46, 9111 44 & 78. 8 AO 72A (Rev. 8/82) Davi recognizes the tort at all. Assocs., P.C., 253 F. Supp. 2d 1370, 1374-75 (S.D. Ga. 2003). Second, if Georgia did recognize the tort, it is not preordained that a longer statute of limitationwould govern because the claim is one for damage to Troperty, as Plaintiffs would have it. See Idaho Norland Couc. v. Caetler Indus., Inc., 509 F. Supp. 1070, 1071 (D. Col. 1981) (citing cases, stating that a majority of courts appi the shorter limitations period for libel and slander to injurious falsehood claims); see also Kin g v. Miller, 35 Ga. App. 427, 427 (1926) (slander to title claim controlled by injury to property statute of limitations) Third, and dispositive here, assuming that these barriers were cleared, Plaintiffs' complaint did not fairly put Defendants on notice that it was assrting a claim for injurious falsehood. Instead, Plaintiffs dscribed Count III as •a claim for defamation/false iight.1 Plaintiffs accused Qore and ATS of publishing false test rports, which constituted 'i slander and/or libel per se." Dkt No. 46 ¶ 99. Plaintiffs also suggested that Defendants' duct exposed them to liability for the tort of invasion f privacy by placing Plaintiffs in a false light in the p ic eye. Id. at ¶ 100. RE AO 72A (Rev. 8/82) Plaintiffs do not mention the tort f injurious falsehood (or any other name that this tort commonly goes by) in their amended complaint. Significantly, the tort of commercial disparagement is only tangentiall related to defamation, and it is more accurately described as a type of intentional interference with economic relati ns. W. Page Keeton et al., Prosser and Keeton on Torts 962-64 (5th ed. 1984) . Prosser and Keeton also teach that a pl intiff cannot generally recover on an injurious falsehood laim without pleading special damages, and Plaintiffs faifed to do so here. Id. at 970-71. Because Plaintiffs' defamation claim was ailed too late to comply with the statute of limitations, and because Plaintiffs' characterization of the claim as one for "injurious falsehood" is not viable, summar judgment is warranted in Qore's favor as to Count III. Qore also, urges the Court to decline to exercise supplemental jurisdiction. The exercise of supplemental jurisdiction is committed to the Court's disor tion. "Among the factors a district court should consider in exercising its discretion are judicial economy, convenience, fairness, and comity." Rowe v. Cit y of Fort Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002) 10 AO 72A (Rev. 8/82) This action has been pending for more than two years, and the parties have engaged in protracted litigation during that time period before this Court and the EleJenth Circuit Court of Appeals. A pretrial conference in tis matter is currently set for May 13, 2009. These consideirations weigh in favor of the Court exercising supplementall jurisdiction over the matter, even though the Court could jec1ine to do so under 28 U.S.C. § 1367(c) (3). The Court wil 1. exercise its discretion to retain jurisdiction over the case. CONCLUSION For the reasons explained above, ATS' motion for summary judgment is DENIED, and Qore's motion is GRANTED as to the defamation claim. Dkt. No. 161 & 165. Plaintiffs' motion for clarification or reconsideration is Dkt. No. 110. Because the Court has recognizei Plaintiffs' negligence claim, the Court will entertain additional dispositive motions from Defendants related t4 such claims, but said motions must be filed by March 13, 209. SO ORDERED, this 13th day of February, 2009. JUDGE, UN SOUTHERN 11 AO 72A (Rev. 8182) STATES D1[STRICT COURT TRICT OF GEORGIA
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