Byrd et al v. Drive Electric, LLC et al, No. 4:2015cv00120 - Document 75 (S.D. Ga. 2017)

Court Description: 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)

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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. See Dkt. No. 52-1 at 2 n.l. A0 72A [Rev. 8/82) Dockets.Justi 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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