Sentinel Insurance Company, Ltd. v. Tropical Smoothie Cafe, Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ,or in the alternative, for a More Definite Statement with Brief In Support

N.D. Ga.May 9, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SENTINEL INSURANCE COMPANY, LTD, Plaintiff, v. TROPICAL SMOOTHIE CAFE, LLC; and TSC-GA, LLC, Defendants/Third-Party Plaintiffs, v. MCGRIFF, SEIBELS & WILLIAMS OF GEORGIA, INC., Third-Party Defendant. Civil Action File No.: 1:16-cv-04162-ODE THIRD-PARTY DEFENDANT’S PARTIAL MOTION TO DISMISS OR FOR A MORE DEFINITE STATEMENT Third-Party Defendant McGriff, Seibels & Williams of Georgia, Inc. (“McGriff”) moves to dismiss count five (contribution) and moves to dismiss or, in the alternative, for a more definite statement on counts one (indemnity), four (breach of contract), and six (attorneys’ fees) of Defendants and Third-Party Plaintiffs’ Third-Party Complaint. As explained more fully in McGriff’s Case 1:16-cv-04162-ODE Document 22 Filed 05/09/17 Page 1 of 4 supporting brief, the majority of the claims in the Third-Party Complaint are deficient, warranting dismissal. Specifically, the Third-Party Complaint fails to allege a basis for indemnity under Georgia law, and the claims for breach of contract and attorneys’ fees contain few, if any, factual allegations. Further, contribution has been abrogated by statute in Georgia, and, in any event, the allegations negate a claim for contribution as a matter of law. In support of this motion, McGriff relies on its supporting brief submitted herewith. Respectfully submitted, this 9th day of May 2017, KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 Telephone (404) 815-6500 Facsimile (404) 815-6555 jlierly@kilpatricktownsend.com jjett@kilpatricktownsend.com aconger@kilpatricktownsend.com /s/Ava J. Conger Julie A. Lierly Georgia Bar No. 452081 John P. Jett Georgia Bar No. 827033 Ava J. Conger Georgia Bar No. 676247 Counsel for Third-Party Defendant Case 1:16-cv-04162-ODE Document 22 Filed 05/09/17 Page 2 of 4 LOCAL RULE 7.1 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing pleading filed with the Clerk of Court has been prepared in 14 point Times New Roman font in accordance with Local Rule 5.1(C). Dated: May 9, 2017. /s/ Ava J. Conger Ava J. Conger Case 1:16-cv-04162-ODE Document 22 Filed 05/09/17 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that on May 9, 2017, I electronically filed the foregoing THIRD-PARTY DEFENDANT’S PARTIAL MOTION TO DISMISS OR FOR A MORE DEFINITE STATEMENT with the Clerk of Court using the CM/ECF system, which will automatically send email documentation of such filing to the following attorneys of record: Michael H. Schroder mike.schroder@swiftcurrie.com Christy M. Maple christy.maple@swiftcurrie.com Lee H. Ogburn, Esq. logburn@kg-law.com Ezra S. Gollogly, Esq. egollogly@kg-law.com Henry D. Fellows, Esq. hfellows@fellab.com Shattuck Ely, Esq. tely@fellab.com Michael Gretchen, Esq. mgretchen@fellab.com KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 (404) 815-6500 (404) 815-6555 (facsimile) jlierly@kilpatricktownsend.com jjett@kilpatrickstockton.com aconger@kilpatricktownsend.com /s/ Ava J. Conger Julie A. Lierly Georgia Bar No. 452081 John P. Jett Georgia Bar No. 827033 Ava J. Conger Georgia Bar No. 676247 Counsel for Third-Party Defendant Case 1:16-cv-04162-ODE Document 22 Filed 05/09/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SENTINEL INSURANCE COMPANY, LTD, Plaintiff, v. TROPICAL SMOOTHIE CAFE, LLC; and TSC-GA, LLC, Defendants/Third-Party Plaintiffs, v. MCGRIFF, SEIBELS & WILLIAMS OF GEORGIA, INC., Third-Party Defendant. Civil Action File No.: 1:16-cv-04162-ODE BRIEF IN SUPPORT OF THIRD-PARTY DEFENDANT’S PARTIAL MOTION TO DISMISS OR FOR A MORE DEFINITE STATEMENT Third-Party Defendant McGriff, Seibels & Williams of Georgia, Inc. (“McGriff”) moves to dismiss count five (contribution) and moves to dismiss or, in the alternative, for a more definite statement on counts one (indemnity), four (breach of contract), and six (attorneys’ fees) of Defendants and Third-Party Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 1 of 18 -2- Plaintiffs Tropical Smoothie Café, LLC and TSC-GA, LLC’s (collectively “Tropical Smoothie”) Third-Party Complaint, and respectfully show the Court as follows: INTRODUCTION Beginning in 2016, Tropical Smoothie has been sued in multiple lawsuits by people alleging that they were injured by exposure to Hepatitis A contained in food purchased from Tropical Smoothie stores. Tropical Smoothie tendered the defense of these lawsuits to its insurance carrier of several years, Plaintiff Sentinel Insurance Company, Ltd., a Hartford subsidiary.1 Although Hartford has agreed to defend these lawsuits under a reservation of rights, it also filed the present lawsuit to rescind certain insurance policies initially issued in 2014 to Tropical Smoothie and to seek reimbursement of defense costs it has paid and will pay in the underlying lawsuits until the policies are rescinded. In support of its complaint against Tropical Smoothie, Hartford alleges that it relied on material misrepresentations in Tropical Smoothie’s application for insurance coverage in 2014. Notwithstanding that Hartford already was Tropical Smoothie’s insurance carrier for several of its corporate locations prior to the 2014 1 Sentinel Insurance Company, Ltd. and Hartford are both referred to herein as “Hartford.” Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 2 of 18 -3- insurance application, Hartford alleges that it issued the pertinent policies because it erroneously believed based on the 2014 application that it was insuring a Tropical Smoothie franchisee instead of the nationally-recognized franchisor. In response to Hartford’s lawsuit, Tropical Smoothie impleaded its insurance broker McGriff, who completed the application for the policies in 2014 pursuant to Hartford’s detailed instructions. Moreover, Tropical Smoothie’s CEO reviewed and specifically approved by signature the information in this application. Although Tropical Smoothie asserts several theories of liability against McGriff in its Third-Party Complaint, the majority of these claims are supported by few, if any, factual allegations. Tropical Smoothie has also improperly asserted a claim for contribution, which has been abrogated by Georgia law. For these reasons and as explained below, McGriff moves to dismiss Tropical Smoothie’s contribution claim and moves to dismiss or, in the alternative, for a more definite statement on Tropical Smoothie’s indemnity, breach of contract, and attorneys’ fees claims. Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 3 of 18 -4- FACTUAL ALLEGATIONS2 As described above, Hartford seeks to rescind certain policies issued to Tropical Smoothie in August 2014, along with two subsequent policies, based on alleged material misrepresentations in the 2014 insurance application that Harford claims led it to believe it was insuring a single franchise operation instead of a franchisor. Third-Party Complaint, ¶ 1. Hartford also seeks reimbursement of sums Hartford has paid and continues to pay to defend Tropical Smoothie in underlying lawsuits alleging that Tropical Smoothie customers suffered injuries based on exposure to Hepatitis A. Id. I. Tropical Smoothie and McGriff’s Relationship. According to Tropical Smoothie, it “entrusted” its insurance broker McGriff to “procur[e], renew[ ], and maintain[ ]” the pertinent policies such that if Hartford is successful on its rescission and reimbursement claims against Tropical Smoothie, then Tropical Smoothie is “entitled to recover damages from McGriff.” Id., ¶¶ 2-3. Tropical Smoothie claims it “relied on McGriff’s expertise” to make sure it had adequate coverage for its “business activities” and alleges McGriff held itself out as a “sophisticated insurance broker in multiple lines of coverage” and as 2 McGriff treats the allegations in the Third-Party Complaint as true for purposes of this motion only. Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 4 of 18 -5- an “expert in the field of insurance procurement and risk management.” Id., ¶¶ 10- 13. Additionally, Tropical Smoothie alleges McGriff was “intimately familiar” with Tropical Smoothie’s business operations based on “a number of meetings,” “numerous communications,” and its serving as Tropical Smoothie’s broker for other insurance policies. Id., ¶ 14. II. The Hartford Application and Policies at Issue. Tropical Smoothie asserts that McGriff had “exclusive access” to the 2014 insurance application at issue in this lawsuit because the application was an electronic form requiring “Hartford’s permission and a unique password” to access. Id., ¶¶ 16-17. Tropical Smoothie also claims that McGriff had “exclusive access” to “Hartford’s underwriting manual and code classifications” used to complete the electronic application. Id., ¶ 17 (emphasis added). Tropical Smoothie further alleges that it did not have access to “Hartford’s website or Hartford’s underwriting manual or classification codes” and that “[a]ll of the representations alleged in Paragraph 13 of [Hartford’s] Complaint were made by McGriff in consultation with Hartford’s underwriters.” Id., ¶¶ 17-18. Tropical Smoothie claims that it only selected coverage through Hartford on McGriff’s recommendation after McGriff “canvassed the market” with Tropical Smoothie’s insurance needs in mind. Id., ¶ 19. Tropical Smoothie alleges that it Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 5 of 18 -6- had no direct communication with Hartford regarding the policies at issue in this lawsuit and never “reviewed, approved, or even had access to” the electronic policy application. Id., ¶¶ 21-22. Thus, according to Tropical Smoothie, “any material misrepresentations or omissions” contained in the application for the policies at issue “were made solely and exclusively by McGriff.” Id., ¶ 23. III. Tropical Smoothie’s Claims against McGriff. Tropical Smoothie has asserted claims of (1) indemnity, (2) negligence, (3) breach of fiduciary duty, (4) breach of contract, (5) contribution, and (6) attorneys’ fees and expenses under O.C.G.A. § 13-6-11 based on McGriff’s alleged liability in the event that Hartford succeeds on its claims against Tropical Smoothie. But the allegations for several of these claims are deficient, warranting dismissal: • Tropical Smoothie has failed to allege a basis for indemnity under Georgia law; • The Third-Party Complaint contains almost no factual allegations regarding the terms of any contract between the parties to support Tropical Smoothie’s breach of contract claim; Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 6 of 18 -7- • Contribution has been abrogated by statute in Georgia, and, in any event, the allegations in the Third-Party Complaint negate a claim for contribution as a matter of law; and • The Third-Party Complaint contains only conclusory allegations of the legal elements of a claim under O.C.G.A. § 13-6-11 without any supporting alleged facts. Tropical Smoothie’s claims for indemnity, breach of contract, contribution, and attorneys’ fees should be dismissed. Alternatively, McGriff requests that the Court dismiss Tropical Smoothie’s contribution claim and order Tropical Smoothie to submit a more definite statement on its indemnity, breach of contract, and attorneys’ fees claims. ARGUMENT AND CITATION TO AUTHORITY As a third-party defendant, McGriff must “assert any defense against [Tropical Smoothie’s claims] under Rule 12.” Fed. R. Civ. P. 14(a)(2). Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. Similarly, Rule 12(e) permits a party to “move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). See Cobb Cty. Sch. Dist. v. C.A., No. 1:15-CV- Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 7 of 18 -8- 1858-WSD, 2016 WL 234849, at *4 (N.D. Ga. Jan. 19, 2016) (granting motion for a more definite statement because, although there was only one claim for relief, it was unclear which facts plaintiff was relying on to support its claim). I. Claims for Contribution have been Largely Abrogated by Statute. In Burton v. City of Adairsville, Judge Murphy held that a third-party plaintiff could not, as a matter of law, assert a claim for contribution because “the plain language of O.C.G.A. § 51-12-33(b) bars contribution claims.” No. 4:14- CV-0099-HLM, 2014 WL 12543885, at *5 (N.D. Ga. Sept. 22, 2014) (citing O.C.G.A. § 51-12-33(b)). Specifically, § 51-12-33(b) provides for damages to be apportioned by the trier of fact “among the persons who are liable according to the percentage of fault of each person” and specifies that such damages “shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.” (emphasis added). Judge Murphy followed both Georgia Supreme Court and Georgia Court of Appeals precedent interpreting the effect of Georgia’s apportionment statute, determined that Georgia has abrogated claims for contribution, and dismissed a third-party claim for contribution as a matter of law. Id. (citing McReynolds v. Krebs, 290 Ga. 850, 852, 725 S.E.2d 584, 587 (2012) and District Owners Ass’n Inc. v. AMEC Envtl. & Infrastructure. Inc., 322 Ga. App. 713, 715, 747 S.E.2d 10, Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 8 of 18 -9- 12 (2013)); see also Fed. Deposit Ins. Corp. v. Hutchins, No. 1:11-CV-1622-AT, 2013 WL 12109446, at *7 (N.D. Ga. Oct. 25, 2013). The same result should follow in this case wherein Tropical Smoothie has similarly alleged a third-party claim for contribution against McGriff, which claim has been abrogated by O.C.G.A. § 51-12-33. Even if Georgia’s apportionment statute does not bar Tropical Smoothie’s claim for contribution, this claim is also subject to dismissal because Tropical Smoothie’s allegations negate the elements of a contribution claim. A necessary element of a claim for contribution is that Tropical Smoothie is a joint tortfeasor— that is, to seek contribution from McGriff, Tropical Smoothie must be liable to Hartford based at least in part on its own conduct. City of Albany v. Pippin, 269 Ga. App. 22, 25, 602 S.E.2d 911, 913-14 (2004) (“The common liability rule also means that one tortfeasor can obtain contribution from the other only if both were legally liable to the plaintiff, so that a tortfeasor seeking contribution must prove his own liability where that liability has not been established by a judgment.” (emphasis in original) (internal quotation marks and citation omitted)). Cf. Gold Cross EMS, Inc. v. Children’s Hosp. of Alabama, 79 F. Supp. 3d 1316, 1323 (S.D. Ga.), reconsideration denied, 108 F. Supp. 3d 1376 (S.D. Ga. 2015), and aff’d, 648 Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 9 of 18 -10- F. App’x 976 (11th Cir. 2016), and aff’d, 648 F. App’x 976 (11th Cir. 2016) (distinguishing between vicarious liability and joint tortfeasors). Tropical Smoothie repeatedly alleges that it is not responsible for any alleged misrepresentations contained in the application for the Hartford policies at issue—contending instead that McGriff bears sole responsibility. See, e.g., Third- Party Complaint, ¶¶ 23 (“To the extent any ‘application’ for insurance submitted to Hartford contained any material misrepresentations or omissions—which [Tropical Smoothie] expressly den[ies]—those misrepresentations or omissions were made solely and exclusively by McGriff.” (emphasis added)), 30 (“[S]uch alleged misrepresentations or omis[s]ions resulted solely from McGriff’s breach of its duty to exercise ordinary and reasonable care in the procurement, renewal, and maintenance of the Policies.” (emphasis added)), 36 (“[S]uch alleged misrepresentations or omissions resulted solely from McGriff’s breach of its fiduciary duties to Third Party Plaintiffs.” (emphasis added)). Because these allegations negate an essential element of Tropical Smoothie’s claim for contribution, Tropical Smoothie’s claim is also subject to dismissal on this ground. Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 10 of 18 -11- II. Tropical Smoothie Does Not Sufficiently Allege a Basis for Indemnity Against McGriff. After the enactment of the apportionment statute (cited above), the only two bases for indemnity remaining under Georgia law are indemnity based on contract and indemnity based on vicarious liability. Dist. Owners Ass’n, 322 Ga. App. at 715, 747 S.E.2d at 13; see also Burton, 2014 WL 12543885, at *7 (explaining that indemnity must be based on “contractual liability or vicarious liability based on any agent-principal or employer-employee relationship” (internal quotation marks and citation omitted)). Tropical Smoothie does not allege either basis. Although Tropical Smoothie alleges the existence of a contract between the parties (see Third-Party Complaint, ¶ 35), Tropical Smoothie does not allege that McGriff owed a contractual duty to indemnify Tropical Smoothie (and indeed it could not because there is no written agreement between the parties). Nor does Tropical Smoothie allege that McGriff was acting as its agent such that any alleged misconduct could be imputed to Tropical Smoothie. Because Tropical Smoothie fails to allege a basis for its indemnity claim, that claim should be dismissed. See Dist. Owners Ass’n, 322 Ga. App. at 716, 747 S.E.2d at 13 (upholding dismissal of third-party indemnity claim for failing to allege contractual indemnity or vicarious liability). Alternatively, McGriff Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 11 of 18 -12- requests that the Court order Tropical Smoothie to submit a more definite statement of its indemnity claim. III. The Terms of the Alleged Contract Are Too Indefinite to be Enforced. In order to recover on its breach of contract claim, Tropical Smoothie must first show the existence of a valid and enforceable contract between the parties. See, e.g., In re Salvador, 456 B.R. 610, 617 (Bankr. M.D. Ga. 2011). The entirety of Tropical Smoothie’s allegations regarding the existence and terms of the parties’ contract are as follows: • “McGriff entered into a contract with [Tropical Smoothie] whereby McGriff agreed to identify [Tropical Smoothie’s] insurance coverage needs, recommend changes when appropriate, and properly place coverage with appropriate insurers.” Third-Party Complaint, ¶ 41. • “In consideration for McGriff’s agreement to provide these services, [Tropical Smoothie] agreed to allow McGriff to place the [Tropical Smoothie’s] insurance coverage, thereby allowing McGriff to earn a commission on the coverage placed.” Id., ¶ 42. • “McGriff’s agreement with [Tropical Smoothie] is valid, binding, enforceable, and was for an indefinite term.” Id., ¶ 43. Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 12 of 18 -13- Regarding an alleged breach of contract, Tropical Smoothie alleges simply that any “misrepresentations or omissions,” to the extent they are found to be “material misrepresentations” resulting in rescission of the relevant policies, “resulted from McGriff’s breach of its contractual duties to [Tropical Smoothie].” Id., ¶ 45. These sparse allegations contain no specificity as to McGriff’s obligations under the agreement, let alone how McGriff allegedly breached the agreement.3 See O.C.G.A. § 13-3-1 (“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” (emphasis added)); Gill v. B & R Int’l, Inc., 234 Ga. App. 528, 531, 507 S.E.2d 477, 480 (1998) (“The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where time and place are essential.”); Jackson v. Williams, 209 Ga. App. 640, 642, 434 S.E.2d 98, 100 (1993) (“In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it.” (internal 3 Although there is no written agreement between the parties (and Tropical Smoothie does not allege there is), “[l]ike written contracts, oral contracts must be certain and definite in their terms.” Goldstein v. Kellwood Co., 933 F. Supp. 1082, 1087 (N.D. Ga. 1996) (internal quotation marks and citations omitted). Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 13 of 18 -14- quotation marks and citation omitted)). For example, Tropical Smoothie alleges McGriff was to recommend and place “appropriate” insurance coverage without explaining or defining what the parties considered to be “appropriate.” These allegations are also insufficient to show breach of contract as a matter of law because Tropical Smoothie “does not identify any actual contractual provision that was breached.” Am. Casual Dining, L.P. v. Moe’s Sw. Grill, L.L.C., 426 F. Supp. 2d 1356, 1368 (N.D. Ga. 2006). Tropical Smoothie instead contends that, should it be determined there were “material misrepresentations” in its application to Hartford, such misrepresentations will constitute a breach of McGriff’s general obligations under the alleged contract between the parties. See Third-Party Complaint, ¶ 45. These allegations are insufficient as a matter of law. See Davis v. City of Atlanta, No. 1:16-CV-2037-TWT-JKL, 2017 WL 1376856, at *11 (N.D. Ga. Mar. 2, 2017), report and recommendation adopted, No. 1:16-CV- 2037-TWT, 2017 WL 1354848 (N.D. Ga. Apr. 13, 2017) (granting motion to dismiss breach of contract claim because plaintiff failed to identify specific terms that were breached). For these reasons, Tropical Smoothie’s breach of contract claim fails to state a claim upon which relief can be granted and should be dismissed. Alternatively, McGriff requests that the Court order Tropical Smoothie to submit a Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 14 of 18 -15- more definite statement of this claim to allege the particular terms of the agreement and how Tropical Smoothie contends they were breached. IV. Tropical Smoothie Alleges No Facts to Support its Attorneys’ Fees Claim. Under O.C.G.A. § 13-6-11, a plaintiff may recover expenses of litigation, including attorneys’ fees, if a defendant has “acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” Tropical Smoothie’s claim for attorneys’ fees under this section contains no supporting facts and instead simply pleads the requirements of the statute. See Third-Party Complaint, ¶¶ 53-54. Tropical Smoothie has therefore failed to state a claim upon which relief can be granted, and the Court should dismiss this claim. Alternatively, McGriff requests that the Court order Tropical Smoothie to submit a more definite statement of this claim to allege how McGriff has allegedly violated this statute. CONCLUSION For the foregoing reasons, McGriff requests that the Court grant its motion and dismiss Tropical Smoothie’s indemnity, breach of contract, contribution, and attorneys’ fees claims for failure to state a claim upon which relief can be granted, Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 15 of 18 -16- or, alternatively, order Tropical Smoothie to submit a more definite statement on its indemnity, breach of contract, and attorneys’ fees claims. Respectfully submitted, this 9th day of May 2017, KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 Telephone (404) 815-6500 Facsimile (404) 815-6555 jlierly@kilpatricktownsend.com jjett@kilpatricktownsend.com aconger@kilpatricktownsend.com /s/Ava J. Conger Julie A. Lierly Georgia Bar No. 452081 John P. Jett Georgia Bar No. 827033 Ava J. Conger Georgia Bar No. 676247 Counsel for Third-Party Defendant Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 16 of 18 -17- LOCAL RULE 7.1 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing pleading filed with the Clerk of Court has been prepared in 14 point Times New Roman font in accordance with Local Rule 5.1(C). Dated: May 9, 2017. /s/ Ava J. Conger Ava J. Conger Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 17 of 18 -18- CERTIFICATE OF SERVICE I hereby certify that on May 9, 2017, I electronically filed the foregoing BRIEF IN SUPPORT OF THIRD-PARTY DEFENDANT’S PARTIAL MOTION TO DISMISS OR FOR A MORE DEFINITE STATEMENT with the Clerk of Court using the CM/ECF system, which will automatically send email documentation of such filing to the following attorneys of record: Michael H. Schroder mike.schroder@swiftcurrie.com Christy M. Maple christy.maple@swiftcurrie.com Lee H. Ogburn, Esq. logburn@kg-law.com Ezra S. Gollogly, Esq. egollogly@kg-law.com Henry D. Fellows, Esq. hfellows@fellab.com Shattuck Ely, Esq. tely@fellab.com Michael Gretchen, Esq. mgretchen@fellab.com KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 (404) 815-6500 (404) 815-6555 (facsimile) jlierly@kilpatricktownsend.com jjett@kilpatrickstockton.com aconger@kilpatricktownsend.com /s/ Ava J. Conger Julie A. Lierly Georgia Bar No. 452081 John P. Jett Georgia Bar No. 827033 Ava J. Conger Georgia Bar No. 676247 Counsel for Third-Party Defendant Case 1:16-cv-04162-ODE Document 22-1 Filed 05/09/17 Page 18 of 18