Zhang et al v. Fieldale Farms Corporation et alMOTION to Dismiss Complaint re Third Party Complaint :M.D. Ga.April 18, 2017IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION YANZHUO ZHANG and GUOQIANG, * WU, Individually and as Natural Parents * and Next Friends of Their Minor Child, * * Plaintiffs, * Civil Action * No. 3:16-cv-00055-CDL vs. * * FIELDALE FARMS CORPORATION and * CLIFFORD JAY TUCK, * * Defendants. * __________________________________ * * FIELDALE FARMS CORPORATION, * * Third-Party Plaintiff, * * v. * * BULK FABRICATED PRODUCTS, LLC, * and INDUSTRIAL FABRICATIONS & * DESIGNS, INC., * * Third-Party Defendants. * INDUSTRIAL FABRICATIONS & DESIGNS, LLC’S MOTION TO DISMISS THIRD-PARTY COMPLAINT OF FIELDALE FARMS CORPORATION COMES NOW INDUSTRIAL FABRICATIONS & DESIGNS, LLC (“IFD”), and, pursuant to Fed. R. Civ. P. 12(b)(6), respectfully moves the Court to Case 3:16-cv-00055-CDL Document 31 Filed 04/18/17 Page 1 of 6 [2] dismiss the Third-Party Complaint of Fieldale Farms Corporation for failure to state a claim upon which relief may be granted. This Motion is based upon the following, which are incorporated by reference as if fully set forth herein verbatim: As more fully shown in IFD’s Memorandum of Law and Citation of Authority filed contemporaneously herewith in support of the instant Motion, Defendant and Third-Party Plaintiff Fieldale Farms Corporation (“Fieldale”) alleges third-party claims against IFD for “negligence, breach of contract, and common law indemnification.” (Third-Party Compl., Doc. 26, p. 1, ¶ 1; id. at pp. 4-5, ¶¶ 24-41.) However, Fieldale’s alleged third-party causes of action amount to nothing more than (1) conclusory recitations of the elements of Fieldale’s alleged claims; and (2) an attempted “end run” around O.C.G.A. § 51- 12-33, the Georgia statue that put an end to claims for contribution in the circumstances before the Court. Moreover, Fieldale failed to state a claim against IFD for common-law indemnification in any event. Thus, Fieldale’s Third-Party Complaint must be dismissed for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). CONCLUSION Case 3:16-cv-00055-CDL Document 31 Filed 04/18/17 Page 2 of 6 [3] IFD respectfully moves the Court to Dismiss Fieldale’s Third-Party Complaint for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). This 18th day of April, 2017. 100 Glenridge Point Parkway Suite 500 Atlanta, GA 30342 (404) 688-6633 jhardee@fainmajor.com rroth@fainmajor.com FAIN MAJOR & BRENNAN, P.C. /s/ James W. Hardee__________ JAMES W. HARDEE Georgia Bar No. 324399 ROBYN M. ROTH Georgia Bar No. 153025 Counsel for Industrial Fabrications & Designs, LLC Case 3:16-cv-00055-CDL Document 31 Filed 04/18/17 Page 3 of 6 [4] CERTIFICATION Pursuant to L.R. 7.1(D) N.D.Ga., I certify that this document has been prepared in Times New Roman Font 14 point, as approved by the Court in L.R. 5.1B, N.D.Ga. FAIN MAJOR & BRENNAN, P.C. /s/ James W. Hardee___________ JAMES W. HARDEE, ESQ. Georgia Bar No. 324399 Counsel for Industrial Fabrications & Designs, LLC Case 3:16-cv-00055-CDL Document 31 Filed 04/18/17 Page 4 of 6 [5] IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION YANZHUO ZHANG and GUOQIANG, * WU, Individually and as Natural Parents * and Next Friends of Their Minor Child, * * Plaintiffs, * Civil Action * No. 3:16-cv-00055-CDL vs. * * FIELDALE FARMS CORPORATION and * CLIFFORD JAY TUCK, * * Defendants. * CERTIFICATE OF SERVICE I hereby certify that on this date, I electronically filed the Motion to Dismiss with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record including the following: James B. Matthews, III Lee S. Atkinson Josh B. Wages Andrew J. Hill, III BLASINGAME, BURCH, GARRARD & ASHLEY PC 440 College Avenue Athens, GA 30603 Eric R. Mull Adam J. Beedenbender DREW, ECKL & FARNHAM, LLP 880 W. Peachtree Street Atlanta, GA 30309 Case 3:16-cv-00055-CDL Document 31 Filed 04/18/17 Page 5 of 6 [6] Steven P. Gilliam Clayton D. Franklin R. Brent Hatcher, Jr. SMITH, GILLIAM, WILLIAMS & MILES, P.A. 301 Green Street, NW Gainesville, GA 30501 This 18th day of April, 2017. 100 Glenridge Point Parkway Suite 500 Atlanta, GA 30342 (404) 688-6633 jhardee@fainmajor.com rroth@fainmajor.com FAIN MAJOR & BRENNAN, P.C. __________________________________ JAMES W. HARDEE, ESQ. Georgia Bar No. 324399 ROBYN M. ROTH Georgia Bar No. 153025 Counsel for Industrial Fabrications & Designs, LLC Case 3:16-cv-00055-CDL Document 31 Filed 04/18/17 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION YANZHUO ZHANG and GUOQIANG, * WU, Individually and as Natural Parents * and Next Friends of Their Minor Child, * * Plaintiffs, * Civil Action * No. 3:16-cv-00055-CDL vs. * * FIELDALE FARMS CORPORATION and * CLIFFORD JAY TUCK, * * Defendants. * __________________________________ * * FIELDALE FARMS CORPORATION, * * Third-Party Plaintiff, * * v. * * BULK FABRICATED PRODUCTS, LLC, * and INDUSTRIAL FABRICATIONS & * DESIGNS, INC., * * Third-Party Defendants. * INDUSTRIAL FABRICATIONS & DESIGNS, LLC’S MEMORANDUM OF LAW AND CITATION OF AUTHORITY IN SUPPORT OF MOTION TO DISMISS THIRD-PARTY COMPLAINT OF FIELDALE FARMS CORPORATION COMES NOW INDUSTRIAL FABRICATIONS & DESIGNS, LLC (“IFD”), and, pursuant to Fed. R. Civ. P. 12(b)(6), hereby files this its Memorandum of Law and Citation of Authority in Support of Motion to Dismiss Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 1 of 23 [2] Third-Party Complaint of Fieldale Farms Corporation, respectfully showing the Court the following: I. INTRODUCTION Defendant and Third-Party Plaintiff Fieldale Farms Corporation (“Fieldale”) alleges third-party claims against IFD for “negligence, breach of contract, and common law indemnification.” (Third-Party Compl., Doc. 26, p. 1, ¶ 1; id. at pp. 4-5, ¶¶ 24-41.) However, Fieldale’s alleged third-party causes of action amount to nothing more than (1) conclusory recitations of the elements of Fieldale’s alleged claims; and (2) an attempted “end run” around O.C.G.A. § 51- 12-33, the Georgia statue that put an end to claims for contribution in the circumstances before the Court. Moreover, Fieldale failed to state a claim against IFD for common-law indemnification in any event. Thus, Fieldale’s Third-Party Complaint must be dismissed for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). II. BACKGROUND AND ALLEGATIONS OF PLEADINGS A. Allegations of Plaintiffs’ Complaint and Amended Complaint. Plaintiffs Yanzhuo Zhang and Guoqiang Wu (collectively, “Plaintiffs”) brought the instant action individually and as surviving natural parents of their minor daughter in connection with an incident that occurred on Georgia Highway 106 in Madison County on May 17, 2016. (Compl., Doc. 1, p. 3, ¶ 11.) The Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 2 of 23 [3] Complaint alleges that Plaintiff Yanzhuo Zhang (“Plaintiff Zhang”) was operating a 2004 Chevrolet Silverado pickup truck at the time of the incident in a lawful, non-negligent manner, traveling southbound on Georgia Highway 106 in Madison County, Georgia. (Id. at p. 4, ¶ 17.) Meanwhile, in the northbound lane of Georgia Highway 106, Defendant Clifford Jay Tuck (“Defendant Truck”) was operating a 2008 Mack 700 GU 700 feed trailer truck (“Feed Truck”) that was equipped with a receiving auger arm on the driver’s side of the Feed Truck. (Id. at p. 3, ¶¶ 8-10) The Feed Truck was owned by Defendant Fieldale Farms Corporation (“Fieldale”), a defendant and third-party plaintiff in the instant action, and Defendant Tuck was operating the Feed Truck as an employee of Fieldale while in the course and scope of his employment. (Id.) As the vehicle operated by Plaintiff Zhang and the Feed Truck operated by Defendant Tuck passed each other on Georgia Highway 106, the Feed Truck’s receiving auger arm swung across the center line and impaled the driver’s side of the vehicle operated by Plaintiff Zhang, severely injuring her and killing her unborn child. (Compl., Doc. 1, p. 4, ¶ 18.) As a result, Plaintiffs filed the instant action against Fieldale and its driver, Defendant Tuck, seeking to recover for (1) the wrongful death of Plaintiffs’ daughter; (2) the personal injuries and damages suffered by Plaintiff Yanzhuo Zhang (“Plaintiff Zhang”); and (3) the loss of consortium and martial services accruing to Guoqiang Wu (“Plaintiff Wu”). (Id. at Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 3 of 23 [4] pp. 6-7, ¶ 28.) In particular, the Complaint alleges that Defendant Tuck was negligent in operating the Feed Truck at an unsafe speed or in an unsafe manner, and Fieldale was negligent in its maintenance or alteration of the Feed Truck and in its training and instruction of Defendant Tuck. (Id. at pp. 5-6, ¶¶ 20-24; Amend. Compl., Doc. 6, pp. 1-2, ¶¶ 23-24.) The Amended Complaint further alleges that Defendant Tuck negligently failed to secure the Feed Truck’s receiving auger arm in violation of O.C.G.A. § 40-6-254. (Amend. Compl., Doc. 6, pp. 1-2, ¶¶ 23-24.) Neither the Plaintiffs’ Complaint nor their Amended Complaint named IFD as a party, nor did Plaintiffs allege any negligence against IFD. B. Allegations of Fieldale Farm’s Third-Party Complaint. On February 28, 2017, Fieldale filed a Third-Party Complaint in the above- styled action asserting third-party claims against IFD and Bulk Fabricated Products, LLC (“Bulk”) for “negligence, breach of contract, and common law indemnification.” (Third-Party Compl., Doc. 26, p. 1, ¶ 1.) Critically, however, the Third-Party Complaint wholly fails to provide any factual detail explaining what specific actions or omissions allegedly constituted negligence or a breach of any contract. Instead, the central allegations of the Third-Party Complaint merely assert that unspecified risks, dangers, and defects caused unspecified harms in unspecified ways. (See Id., generally.) Said differently, the allegations of the Third-Party Complaint constitute nothing more than “[t]hreadbare recitals of the Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 4 of 23 [5] elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). In this regard, the Third-Party Complaint initially alleges that Fieldale relied on the skill, judgment and care of IFD to design, engineer, manufacture, service, repair and, when needed, modify Fieldale’s feed bodies such that they were safe for use and free from dangers and defects. (Third-Party Compl., Doc. 26, pp. 2-3, ¶ 14.) Beginning or around August 13, 2007, and over the course of the next 7 years, IFD serviced and made repairs and modifications to the feed body of the Feed Truck that Defendant Tuck was operating, including the installation of new components. (Id., p. 3, ¶¶ 15-16.) IFD performed its work under invoices issued to Fieldale and, in the 12 months leading up to the subject accident, inspected and re-worked the feed truck at least 16 times. (Id.) The Complaint alleges that, by and through its invoices, IFD was obligated to perform its work skillfully and in a workmanlike manner, and further, that IFD had a duty to warn of defects and impliedly warranted that the feed body would be merchantable, fit for its intended purpose, and free from defects. (Id., ¶¶ 17-19). On May 17, 2016, Defendant Tuck drove the feed truck to J&S Jenkins Farms in Comer, Georgia. (Third-Party Compl., Doc. 26, p. 3, ¶ 20.) There, Defendant Tuck used the feed retrieval system’s moveable retrieval augur arm to collect feed from bins on the farm. (Id.) The Third-Party Complaint alleges that Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 5 of 23 [6] Defendant Tuck subsequently returned and secured the movable retrieval augur arm to its saddle, then entered the cab of his Feed Truck, powered the ignition, and drove onto Georgia Highway 106 and toward another poultry farm to deliver the feed he had collected from J&S Jenkins Farms. (Id.) Thereafter, as Defendant Tuck drove northbound on Georgia Highway 106, Plaintiff Zhang drove southbound in a pickup truck. (Id., p. 4, ¶ 21.) As the two vehicles approached each other on the roadway, the feed body’s moveable retrieval augur arm dislodged from its saddle, fell from the Feed Truck, and struck Plaintiff’s pickup truck, injuring Plaintiff Zhang and damaging the Feed Truck and its feed body. (Id.) According to the Third-Party Complaint, the moveable retrieval augur arm dislodged from its saddle because the feed retrieval system, as designed, engineered and manufactured by Bulkliner, with foreseeable repairs and modifications by IFD, was unreasonably dangerous and, therefore, defective- although the Third-Party Complaint makes no effort to provide any factual enhancement alleging why or how the feed retrieval system was dangerous or defective. (Id., ¶ 22.) The Third-Party Complaint further alleges that Bulkliner and IFD failed to warn of these unspecified defects and dangers. (Id., ¶ 23.) Based on the foregoing allegations, Fieldale alleges third-party causes of action against IFD for “negligence, breach of contract, and common law indemnification.” (Third-Party Compl., Doc. 26, p. 1, ¶ 1; id. at pp. 4-5, ¶¶ 24-41.) Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 6 of 23 [7] However, as noted above, Fieldale’s alleged causes of action amount to nothing more than a conclusory recitation of the elements of its alleged claims. Indeed, Fieldale merely alleges that (1) unspecified risks, dangers, and defects caused unspecified harms in unspecified ways; (2) IFD breached the un-recited terms of a written contract in unspecified ways; and (3) such unspecified negligence and beaches require IFD to indemnify Fieldale for unspecified damages. (Id. at pp. 4-5, ¶¶ 24-21.) Not only that, but the Third-Party Complaint also constitutes an impermissible “end run” around Georgia’s 2005 Tort Reform Act, and, in any event, cannot state a claim for common-law indemnity. Thus, the Third-Party Complaint must be dismissed in its entirety for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). III. ARGUMENT AND CITATION OF AUTHORITY A. Legal Standard Governing This Motion. A third-party complaint is a pleading. Fed. R. Civ. P. 7(a)(5). Consequently, the pleading rules set forth in Federal Rule of Civil Procedure 8 apply to a third- party complaint. Fed. R. Civ. P. 8. Further, a third-party defendant “must assert any defense against the third-party plaintiff’s claim under Rule 12.” Fed. R. Civ. P. 14(a)(2)(A). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Under Federal Rule of Civil Procedure 12(b)(6), a claim will be Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 7 of 23 [8] dismissed for failure to state a claim upon which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court has explained this standard as follows: A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). Thus, a claim will survive a motion to dismiss only if the factual allegations in the pleading are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. At the motion to dismiss stage, the court accepts all the well-pleaded facts in the plaintiff's complaint as true, as well as all reasonable inferences drawn from those facts. McGinlev v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004); Lotierzo V. A Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). Not only must the court accept the well-pleaded allegations as true, they must be construed in the light most favorable to the pleader. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). However, the court need not accept legal conclusions, nor must it accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. Thus, the evaluation of a motion to dismiss requires the court to Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 8 of 23 [9] assume the veracity of well-pleaded factual allegations and “determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. B. The Central Allegations of the Third-Party Complaint Are Merely Conclusory and Lack Sufficient Factual Enhancement to State a Claim Upon Which Relief May Be Granted. The Third-Party Complaint should be dismissed because its central allegations are entirely conclusory and lack sufficient factual content to state a claim upon which relief may be granted. In this regard, it is well established that Rule 8’s pleading standard “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Thus, a pleading that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do,” nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. Indeed, it has long been held that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Here, the central allegations of the Third-Party Complaint are entirely conclusory and fail to meet the pleading standard imposed by Rule 8. For example, the Third-Party Complaint’s first cause of action alleges the following against IFD: 26. IFD was the manufacturer of foreseeable modifications and repairs to the feed retrieval system, including the installation of new components. Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 9 of 23 [10] 27. The feed retrieval system was unreasonably dangerous and, therefore, defective, because it was not merchantable or reasonably safe for intended and/or foreseeable uses. 28. The feed retrieval system was defectively designed. 29. Bulkliner and IFD failed to perform their work skillfully, carefully, diligently and in a workmanlike manner. 30. Bulkliner and IFD failed to warn of potential risks, including defects and dangers. 31. As a proximate cause thereof, Fieldale sustained compensatory and other damages in an amount to be proven at trial. (Third-Party Compl., Doc. 26, p. 4, ¶¶ 26-31.) Notably, the Third-Party Complaint fails to provide any factual enhancement alleging how or in what way, specifically, the feed retrieval system was “unreasonably dangerous,” “defectively designed,” or “not merchantable or reasonably safe for intended and/or foreseeable uses.” (Id. at ¶¶ 27-28.) In much the same way, the Third-Party Complaint fails to provide any factual enhancement describing in what ways IFD allegedly “failed to perform [its] work skillfully, carefully, diligently and in a workmanlike manner.” (Id. at ¶ 29.) And though the Third-Party Complaint alleges that IFD “failed to warn of potential risks, including defects and dangers,” the Third-Party Complaint itself wholly fails to specify or describe the alleged risks, defects, or dangers to which these allegations refer. (Id. at ¶ 30.) Accordingly, the Third-Party Complaint’s first cause of action boils down to nothing more than “an unadorned, the-defendant- unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Indeed, Fieldale Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 10 of 23 [11] merely alleges that unspecified risks, dangers, and defects caused unspecified harms in unspecified ways. Such allegations simply cannot meet the Rule 8 pleading standard set forth in cases such as Iqbal and Twombly. Plaintiff’s second cause of action is equally conclusory and lacking in factual detail. Indeed, the Third-Party Complaint’s claim for breach of contract merely provides as follows: 33. Fieldale and Bulkliner, and Fieldale and IFD, entered into written contracts under which Bulkliner and IFD were obligated to perform their work skillfully, carefully, diligently, and in a workmanlike manner. Further, they impliedly warranted that the feed body’s feed retrieval system, including IFD’s foreseeable repairs and modifications, would be merchantable, fit for its intended purpose, and free from defects and dangers. 34. Bulkliner and IFD breached their written contracts. 35. As a proximate cause thereof, Fieldale sustained direct, incidental and consequential damages in an amount to be proven at trial. (Third-Party Compl., Doc. 26, p. 5, ¶¶ 33-35.) Here, then, the Third-Party Complaint makes no attempt whatsoever to recite the terms of any alleged contract or provide even a modicum of factual detail explaining what specific actions or omissions IFD allegedly took (or failed to take) that resulted in an alleged breach of any contract with Fieldale. Instead, the Third-Party simply alleges that “Bulkliner and IFD breached their written contracts.” This, again, is precisely the kind of “unadorned, the-defendant-unlawfully-harmed-me accusation” of which the federal courts have long disapproved. Iqbal, 556 U.S. at 678. Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 11 of 23 [12] Finally, the Third-Party Complaint’s concluding cause of action-a claim for common-law indemnity-is no more factually specific than the rest of Fieldale’s claims. In this regard, Fieldale simply asserts the following: 37. Plaintiffs allege that Fieldale is liable to them for Plaintiffs’ injuries and damages, but Bulkliner and IFD designed, engineered, manufactured, serviced, repaired and modified the feed body’s feed retrieval system and failed to warn of potential risks, including defects and dangers. 38. Fieldale relied on the skill, judgment and care of Bulkliner and IFD, which they breached. 39. The fault, negligence and breaches by Bulkliner and IFD are primary and active. 40. As a proximate cause thereof, Fieldale sustained compensatory and other damages in an amount to be proven at trial. 41. Bulkliner and IFD must indemnify Fieldale from Plaintiffs’ injuries and damages. (Third-Party Compl., Doc. 26, p. 5, ¶¶ 37-41.) Such allegations are a perfect example of “naked assertion[s]” devoid of “further factual enhancement” of the kind that cannot withstand a motion to dismiss. Iqbal, 556 U.S. at 678. Indeed, Fieldale simply asserts that it “relied on the skill, judgment and care of Bulkliner and IFD, which they breached,” and “[t]he fault, negligence and breaches by Bulkliner and IFD are primary and active.” (Third-Party Compl., Doc. 26, p. 5, ¶¶ 38-39.) However, no attempt is made to describe how IFD allegedly breached any duty to Fieldale or what specific actions or omission constituted “fault, negligence, and breaches” on the part of IFD. Accordingly, all three causes of Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 12 of 23 [13] action Fieldale alleged against IFD consist of nothing more than conclusory labels devoid of sufficient factual enhancement to satisfy Rule 8’s pleading standard- and, therefore, the Third-Party Complaint should be dismissed for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). C. The Third-Party Complaint Fails to State a Claim Against IFD, as Each of the Third-Party Plaintiff’s Causes of Action Are Barred by O.C.G.A. § 51-12-33. The Third-Party Complaint fails to state a claim against IFD on grounds that Fieldale’s alleged claims are merely an attempted “end run” around the provisions of O.C.G.A. § 51-12-33-the statute that bars Fieldale from seeking contribution from IFD where, as here, any award of damages must be apportioned by the trier of fact as among the persons who are found liable. Where a personal injury action is brought against more than one person, O.C.G.A. § 51-12-33(b) provides that the trier of fact, in determining the total amount of any damages to be awarded, “shall…apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” Importantly, any damages so apportioned “shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.” O.C.G.A. § 51-12-33(b). Additionally, in assessing percentages of fault, O.C.G.A. § 51-12-33(c) provides that the trier of fact “shall consider the fault of all persons or entities who contributed to the alleged injury or Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 13 of 23 [14] damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” Indeed, “the plain language of O.C.G.A. § 51-12- 33(b) requires that the factfinder apportion liability between the defendant and the third-party defendant, and neither has the right of contribution against the other.” Dist. Owners Ass’n, Inc. v. AMEC Envtl. & Infrastructure, Inc., 322 Ga. App. 713, 718, 747 S.E.2d 10, 14 (2013). In view of the foregoing, O.C.G.A. § 51-12-33 requires that any award of damages be apportioned among Fieldale and any other defendants or third-party defendants found liable by the trier of fact in the instant action-and Fieldale, as a matter of law, would have no right of contribution from any other parties to whom damages are apportioned. Here, Fieldale’s third-party claims against IFD essentially attempt to assert disguised claims for contribution against IFD, even though, as shown above, such claims are no longer cognizable under Georgia law in the instant circumstances. That is, because O.C.G.A. § 51-12-33 requires apportionment of damages as between Fieldale and the other defendants and third-party defendants to this action, Fieldale can attempt to point the finger of fault at IFD and have the trier of fact assign a percentage of fault to IFD, assuming, arguendo, that the trier of fact concludes that IFD was at fault to some degree. In so doing, moreover, any such assignment of a percentage of fault to IFD would inure directly to the benefit of Fieldale. This is because any percentage of fault attributable to IFD would Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 14 of 23 [15] pro tanto reduce the percentage of fault attributable to Fieldale-and, in any event, Fieldale would only be responsible for the negligence the fact finder attributes directly to Fieldale. Thus, regardless of whether Fieldale couches its third-party claims against IFD as sounding in tort, contract, or indemnity, Fieldale is barred as a matter of law from attempting to recover from IFD any damages that Fieldale is forced to pay to Plaintiff. This is because the statutorily required apportionment of damages as between the defendants and third-party defendants to the instant action necessarily extinguishes any right of contribution the parties might otherwise have had against or amongst themselves. See O.C.G.A. § 51-12-33. See also, e.g., McReynolds v. Krebs, 290 Ga. 850, 852, 725 S.E.2d 584, 587 (2012) (“OCGA § 51-12-33(b) flatly states that apportioned damages ‘shall not be subject to any right of contribution.’ And the statute reiterates this point by saying that damages ‘shall not be a joint liability among the persons liable.’”) For the same reasons, each of Fieldale’s third-party causes of action against IFD fail to state a claim upon which relief may be granted, and, therefore, the Third-Party Complaint must be dismissed pursuant to Rule 12(b)(6). D. Fieldale Failed to State a Claim for Indemnification in Any Event. In addition to the reasons set forth above, the Third-Party Complaint fails to state a claim for common-law indemnification on grounds that Fieldale failed to allege that it is entitled to indemnification either by contract or because of imputed Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 15 of 23 [16] liability arising from a principal-agent relationship. It must be acknowledged from the outset that, despite the enactment of O.C.G.A. § 51-12-33, “Georgia law continues to recognize two broad categories of indemnity: as created by contract, as between a surety and a debtor; and under the common law of vicarious liability, as between principals and agents.” Dist. Owners Ass'n, Inc. v. AMEC Envtl. & Infrastructure, Inc., 322 Ga. App. 713, 715-16, 747 S.E.2d 10, 13 (2013). Here, however, the Third-Party Complaint makes no allegation that IFD owes Fieldale any contractual duty of indemnification, nor does it allege that the principals of vicarious liability require IFD to indemnify Fieldale for negligence that was imputed to Fieldale based on any principal/agent relationship. (See, generally, Third-Party Compl., Doc. 26.) Instead, Fieldale simply asserts that it “relied on the skill, judgment and care of Bulkliner and IFD, which they breached,” and “[t]he fault, negligence and breaches by Bulkliner and IFD are primary and active.” (Third-Party Compl., Doc. 26, p. 5, ¶¶ 38-39.) For the reasons set forth below, it is now well established that indemnification claims of the kind set forth in the Third-Party Complaint fail to state a claim upon which relief can be granted. For example, in Dist. Owners Ass'n, Inc., 322 Ga. App. at 716, 747 S.E.2d at 13, the Court noted that common-law indemnity claims of the kind set forth by Fieldale-i.e., claims that are not based in contract or vicarious liability-were Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 16 of 23 [17] “abrogated by OCGA § 51-12-33.” Id. at 322 Ga. 716. Indeed, the court pointed out that where, as here, a third-party plaintiff seeking non-contractual indemnification “has made no allegations of imputed or vicarious liability,” it necessarily follows that such a third-party plaintiff, as a matter of law, “fail[s] to show that it is entitled to common law indemnity.” Id. See also, e.g., Georgia Power Co. v. Sure Flow Equip., Inc., No. 1:13-CV-1375-AT, 2014 WL 4977799, at *3-5 (N.D. Ga. July 22, 2014) (denying defendant leave to file-third party complaint seeking common-law indemnification from proposed third-party plaintiff on grounds that such claims “do not appear to be cognizable under Georgia law,” citing Dist. Owners Ass'n, Inc., 747 S.E.2d at 12-13). See also Burton v. City of Adairsville, No. 4:14-CV-0099-HLM, 2014 WL 12543885, at *7 (N.D. Ga. Sept. 22, 2014) (“[B]ecause no allegations of imputed negligence or vicarious liability have been made in this case, common law indemnity principles do not apply[,]” and, therefore, “Defendants have not set forth a viable indemnity claim with respect to Plaintiffs’ claims arising under Georgia law.”) Much the same result was reached in Hines v. Holland, 334 Ga. App. 292, 296-97, 779 S.E.2d 63, 67-68 (2015). There, a title insurer brought a professional malpractice and indemnification action against an attorney who had been retained as a settlement agent/closing attorney in connection with a loan refinance, and the attorney, Hines, brought a third-party complaint for contribution and indemnity Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 17 of 23 [18] against non-attorneys Hazel A. Holland and Holland Title Limited Liability Company (singularly referred to as “Hazel” and “Holland Title” and collectively referred to as “Holland” in the opinion). Importantly, Hines’s claim for indemnification did not allege that he had been held “vicariously liable for Holland's alleged omissions; rather, [Hines] allege[d] that Holland ha[d] breached a standard of care owed directly to him and that Holland [was] a tortfeasor as to him.” Id., 334 Ga. App. at 296, 779 S.E.2d at 67-68. Accordingly, Hines asserted, in essence, that “Holland's negligence caused him to be professionally negligent and that he has a claim for indemnity against Holland.” Id., 779 S.E.2d at 68. Under such circumstances, the court held that Hines’s “third-party complaint was properly dismissed on the basis that no claim for indemnity had been stated.” Id., 334 Ga. App. at 297, 779 S.E.2d at 68. Not only that, but, “to the extent that Hines is claiming that Holland's negligence was the sole proximate cause of the injury for which recovery is sought, he is in effect seeking impermissibly to tender a substitute defendant.” Id. Fieldale’s ostensible attempt to rely on an alleged distinction between active and passive tortfeasors is likewise unavailing. See, e.g., Georgia Power Co. v. Sure Flow Equip., Inc., No. 1:13-CV-1375-AT, 2014 WL 4977799, at *3-5 (N.D. Ga. July 22, 2014). In Georgia Power Co., for instance, the court rejected a third- party plaintiff’s attempted reliance on the active/passive-tortfeasor distinction, Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 18 of 23 [19] noting that the cases on which the third-party plaintiff relied were decided “before the 2005 enactment of Georgia's Tort Reform Act, which appears to do away with this type of indemnity claim brought against a joint tortfeasor.” Id. at 4, citing Dist. Owners Ass'n, Inc., 747 S.E.2d 10, 12-13 (Ga.Ct.App.2013). This is because, in 2005, Georgia adopted “an apportionment regime requiring a trier of fact to consider ‘the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.’” Id., citing O.C.G.A. § 51-12-33(c). Thus, “even if the trier of fact finds in this case that the proposed third-party defendants, who are not parties to this action, are liable to any degree for the damages to Georgia Power, [the third-party plaintiff’s] own damages will be reduced accordingly.” Id. Thus, the statute “suggests that tortfeasors have no need for a common law claim for indemnification against joint tortfeasors because their own liability already takes into account a reduction for the liability of others.” Id. The court then went on to explain that, “even if Georgia law still recognizes the active/passive theory of indemnification for joint tortfeasors, [the third-party plaintiff’s] proposed allegations do not support a claim based on this theory, as the apportionment statute ensures that the third-party plaintiff would only be held liable for its own active negligence.” Id. at 5. Thus, the court held that the third-party plaintiff’s Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 19 of 23 [20] proposed claims for indemnification based on the distinction between active and passive tortfeasors “do not appear to be cognizable under Georgia law.” Id. Here, as noted above, Fieldale’s claim for indemnification simply asserts that it “relied on the skill, judgment and care of Bulkliner and IFD, which they breached,” and “[t]he fault, negligence and breaches by Bulkliner and IFD are primary and active.” (Third-Party Compl., Doc. 26, p. 5, ¶¶ 38-39.) In view of the authorities cited above-and in the absence of any allegation that a duty of indemnification arose under contract or by means of vicarious liability-Fieldale has failed to state a claim against IFD for indemnification as a matter of law. Accordingly, Fieldale’s third cause of action against IFD should be dismissed for failure to state a claim pursuant to Rule 12(b)(6). IV. CONCLUSION For the foregoing reasons, Fieldale’s Third-Party Complaint must be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). This 18th day of April, 2017. 100 Glenridge Point Parkway Suite 500 Atlanta, GA 30342 (404) 688-6633 jhardee@fainmajor.com rroth@fainmajor.com FAIN MAJOR & BRENNAN, P.C. /s/ James W. Hardee__________________ JAMES W. HARDEE Georgia Bar No. 324399 ROBYN M. ROTH Georgia Bar No. 153025 Counsel for Industrial Fabrications & Designs, LLC Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 20 of 23 [21] CERTIFICATION Pursuant to L.R. 7.1(D) N.D.Ga., I certify that this document has been prepared in Times New Roman Font 14 point, as approved by the Court in L.R. 5.1B, N.D.Ga. FAIN MAJOR & BRENNAN, P.C. /s/ James W. Hardee___________ JAMES W. HARDEE, ESQ. Georgia Bar No. 324399 Counsel for Industrial Fabrications & Designs, LLC Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 21 of 23 [22] IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION YANZHUO ZHANG and GUOQIANG, * WU, Individually and as Natural Parents * and Next Friends of Their Minor Child, * * Plaintiffs, * Civil Action * No. 3:16-cv-00055-CDL vs. * * FIELDALE FARMS CORPORATION and * CLIFFORD JAY TUCK, * * Defendants. * CERTIFICATE OF SERVICE I hereby certify that on this date, I electronically filed the Industrial Fabrications & Designs, LLC’s Brief in Support of Motion to Dismiss Third Party Complaint of Fieldale Farms Corporation with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record including the following: James B. Matthews, III Lee S. Atkinson Josh B. Wages Andrew J. Hill, III BLASINGAME, BURCH, GARRARD & ASHLEY PC 440 College Avenue Athens, GA 30603 Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 22 of 23 [23] Eric R. Mull Adam J. Beedenbender DREW, ECKL & FARNHAM, LLP 880 W. Peachtree Street Atlanta, GA 30309 Steven P. Gilliam Clayton D. Franklin R. Brent Hatcher, Jr. SMITH, GILLIAM, WILLIAMS & MILES, P.A. 301 Green Street, NW Gainesville, GA 30501 This 18th day of April, 2017. 100 Glenridge Point Parkway Suite 500 Atlanta, GA 30342 (404) 688-6633 jhardee@fainmajor.com rroth@fainmajor.com FAIN MAJOR & BRENNAN, P.C. /s/ James W. Hardee______________ JAMES W. HARDEE, ESQ. Georgia Bar No. 324399 ROBYN M. ROTH Georgia Bar No. 153025 Counsel for Industrial Fabrications & Designs, LLC Case 3:16-cv-00055-CDL Document 31-1 Filed 04/18/17 Page 23 of 23
