Appendix — Dagi v. Chris Motors Corp.
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e Supreme Court, U.8.
i FILED
961696 APR 2 21997
N@fFiCE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1996
LINDA DAGI,
Petitioner,
¥.
CHRIS MOTORS CORPORATION,
BAYERISCHE MOTOREN WERKE, A.G.,
and BMW OF NORTH AMERICA, INC.,
Respondents.
On Petition For Wnit of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
THOMAS ALLAN RICE, ESQ.
Counsel of Record
for Petitioner Linda Dagi
YEHUDA SMOLAR, ESQ.
G. GRANT BRANTLEY, ESQ.
SMOLAR, ROSEMAN,
BRANTLEY & SEIFTER
101 Marietta Tower
Suite 3410
Atlanta, Ga. 30303
(404) 525-3900
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1996
LINDA DAGI,
Petitioner,
V.
CHRIS MOTORS CORPORATION,
BAYERISCHE MOTOREN WERKE, A.G.,
and BMW OF NORTH AMERICA, INC.,
Respondents.
On Petition For Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
APPENDIX TO PETITION
FOR WRIT OF CERTIORARI
INTRODUCTION
In view of the number of Exhibits and number of pages
to be included in the Appendix to Petition for Writ of
Certiorari, the Appendix is contained in a separate volume from
the volume containing this Petition for Writ of Certiorari, as
provided by Supreme Court Rule 14 (i), which provides: "If the
material required by this subparagraph is voluminous, it may be
presented in a separate volume or volumes with appropriate
covers."
-2a-
Attached hereto are Exhibits 1 through 5, Decisions,
Judgments and Orders in Linda Dagi, Plaintiff/Appellant vs.
Bayerische Motoren Werke. A W_of ic
Inc. and Chris Motors Corporation, Case Numbers 95-9501 and
96-8025 in the United States Court of Appeals for the Eleventh
Circuit; Exhibits 6 through 15, Decisions, Judgments and
Orders in Linda Dagi, Plaintiff vs. Bayerische Motoren Werke,
A.G., BMW_of North America, Inc. and Chris Motors
Corporation, Defendants, Civil Action File No. 1-94-CV-2135
- JEC in the United States District Court for the Northern
District of Georgia, Atlanta Division; Exhibits 16 through 33,
Significant Exhibits which appear in the record before the
United States District Court and the record before the United
States Court of Appeals for the Eleventh Circuit.
This 22 day of April, 1997.
THOMAS ALLAN RICE, ESQ.
Counsel of Record for Petitioner
Linda Dagi
YEHUDA SMOLAR, ESQ.
G. GRANT BRANTLEY, ESQ.
SMOLAR, ROSEMAN,
BRANTLEY & SEIFTER
101 Marietta Tower
Suite 3410
Atlanta, Ga. 30303
(404) 525-3900
-3a-
APPENDIX TO PETITION
FOR ERTIORARI
TABLE OF CONTENTS
Attached hereto are the following Exhibits that are
included in the Appendix to Petition for Writ of Certiorari:
Exhibits 1 through 5, Decisions, Judgments and Orders
in Lin intiff/ VS. rische
M W. j W of erica
and Chris Motors Corporation, Case Number 95-9501
and 96-8025 in the United States Court of Appeals for
the Eleventh Circuit; Exhibits 6 through 15, Decisions,
Judgments, and Orders in Linda Dagi, Plaintiff v.
erisc toren Werke, A.G.. BMW_of North
Ameri c. and i ration
Defendants, Civil Action File No. 1-94-CV-2135-JEC
in the United States District Court for the Northern
District of Georgia, Atlanta Division; and Exhibits 16
through 33, Significant Exhibits which appear in the
record before the United States District Court and
appear in the record before the United States Court of
Appeals for the Eleventh Circuit.
Note: Record References in parentheses following
Description of Documents for Exhibits 6 through 22
[e.g., R 1-1-129 for Exhibit Number 6] refer to Record
References for the Record on Appeal in Case Numbers
95-9501 and 96-8025.
EXHIBITS: DECISIONS, JUDGMENTS AND ORDERS
IN THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
EXHIBIT
NUMBER
]
-4a-
DESCRIPTION OF
DOCUMENTS
November 21, 1996 Decision
of the United States Court of
Appeals for the Eleventh
Circuit, affirming the District
Court's denial of Plaintiff
Linda Dagi's Motion to
Remand to State Court
pursuant to 28 United States
Code §1447 (c); affirming the
District Court's grant of the
Appellees’ respective Motions
for Summary Judgment;
affirming other Orders of the
District Court; and denying
Appellant's Request for Oral
Argument.
November 21, 1996 Judgment
entered by the Clerk of the
Eleventh Circuit Court of
Appeals
APPENDIX
PAGES
13a-l5a
16a-17a
-Sa-
DESCRIPTION OF
DOCUMENTS
January 22, 1997 Order of the
United States Court of Appeals
for the Eleventh Circuit denying
Appellant Linda Dagi's Petition
for Panel Rehearing and
Suggestion of Rehearing En
Banc.
February 11, 1997 Order denying
Appellant's Motion for Stay of
Mandate.
March 5, 1997 Order denying
Appellant's Motion for Correction
of Clerical Error, Recall of
Mandate, and Stay of Mandate.
EXHIBITS:
DECISIONS, JUDGMENTS,
AND ORDERS IN_~ THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF GEORGIA,
ATLANTA DIVISION
July 14, 1993 District Court
Order Adding Bayerische
Motoren Werke, A.G. as a
Defendant
(R 1-1-129)
APPENDIX
PAGES
18a-19a
20a-21a
22a-23a
24a
10
-6a-
DESCRIPTION OF
DOCUMENTS
October 24, 1994 District Court
Order Denying Motion to
Remand to State Court Pursuant
to 28 United States Code
§1447(c)
(R 3-5-1)
July 31, 1995 District Court
Order granting summary
judgment in favor of Chris
Motors Corporation and ruling on
objections to portions of Johnson
and Sweeny Affidavits.
(R 8-54-1)
July 31, 1995 District Court
Order regarding discovery
matters.
(R 8-55-i)
July 31, 1995 District Court
Protective Order regarding
confidentiality of Bayerische
Motoren Werke, A.G. documents.
(R 8-56-1)
APPENDIX
PAGES
25a
26a-44a
45a-47a
58a-62a
EXHIBIT
NUMBER
1]
12
13
14
-Ja-
DESCRIPTION OF
DOCUMENTS
November 2, 1995 District Court
Judgment entered in favor of
Chris Motors Corporation against
Plaintiff Linda Dagi granting
Motion for Summary Judgment.
(R 9-77-1)
November 9, 1995 District Court
order directing BMW, AG to file
supplementary affidavit.
(R 9-78-1)
November 22, 1995 District
Court Order directing BMW, AG
to produce documents
(R 9-83-1)
November 30, 1995 District
Court Order denying Plaintiff's
Motion to Amend Complaint,
granting summary judgment in
favor of BMW, AG and BMW,
NA: and granting in part and
denying in part Defendants’
Motions to Strike portions of
Affidavits.
(R 9-84-1)
APPENDIX
PAGES
63a
64a-65a
66a-67a
68a-90a
-8a-
EXHIBIT DESCRIPTION OF
NUMBER DOCUMENTS
15
16
December 1, 1995 District Court
Judgment entered in favor of
BMW, AG and BMW, NA
against Plaintiff Linda Dagi, on
Order granting Defendants’
Motions for Summary Judgment.
(R 9-85-1)
EXHIBITS:
SIGNIFICANT EXHIBITS
WHICH APPEAR IN THE
RECORD BEFORE THE
UNITED STATES DISTRICT
COURT AND WHICH APPEAR
IN THE RECORD BEFORE
THIS UNITED STATES COURT
OF APPEALS FOR’ THE
ELEVENTH CIRCUIT
March 19, 1993 Initial Compliant
for Damages in Linda _ Dagi,
Plaintiff BMW _ of Nort
) a a 1 Chris M
Corporation, Defendants, in the
State Court of Fulton County,
Georgia.
(R 1-1-6)
APPENDIX
PAGES
9la
92a-102a
EXHIBIT
NUMBER
17
18
19
-9a-
DESCRIPTION OF
DOCUMENTS
August 12, 1994 Petition for
Removal in Civil Action No. 1-
94-CV-2135-JEC in the United
States District Court (attachments
omitted).
(R 1-1-1 through 253)
August 12, 1994 Notice of
Removal in Civil Action File No.
1-94-CV-2135-JEC in the United
States District Court (attachments
omitted)
(R 1-1-254)
September 12, 1994 Plaintiff's
Motion to Remand to the State
Court of Fulton County [Note: the
Thirtieth day after service of
Defendants’ Petition to Remand
and Notice to Remand fell on
Sunday, September 11, 1994;
therefore, Plaintiff Linda Dagi's
Motion to Remand was timely
when it was filed on Monday,
September 12, 1994].
(R 3-5-1 through 367)
APPENDIX
PAGES
103a-107a
108a-110a
llla-llSa
EXHIBIT
NUMBER
N
>)
Nm
WN
-10a-
DESCRIPTION OF
DOCUMENTS
September 12, 1994 Brief in
Support of Plaintiffs Motion to
Remand.
(R 3-5-1 through 367)
September 12, 1994 Notice of
Motion to Remand Removed
Action.
(R 3-5-1 through 367)
October 13, 1994 Reply Brief in
Support of Plaintiff's Motion to
Remand.
(R 4-9-1)
January 25, 1995 copy of
unreported decision in Harmon v.
MW_of Nort erica, Inc..,
case no. A94A21003 in the Court
of Appeals of Georgia.
April 2, 1992 Retail Buyer's
Order,
Plaintiff's Exhibit 1
(two pages)
April 2, 1992 Buyer's Guide.
APPENDIX
PAGES
116a-127a
128a-130a
131la-140a
141a-142a
143a-144a
145a
a Se a ee
-lla-
EXHIBIT DESCRIPTION OF APPENDIX
NUMBER DOCUMENTS PAGES
26 Apnl 2, 1992 Odometer
Disclosure Statement,
Plaintiff's Exhibit 2 146a
27 April 2, 1992 Title Application
Plaintiff's Exhibit 3 147a
28 April 2, 1992 Transfer of Title,
Plaintiff's Exhibit 4 148a
29 Title and Tag Application,
Plaintiffs Exhibit 5 149a
30 Photograph of tire on BMW
automobile,
Plaintiff's Exhibit 86-7 150a
31 Photograph of tire on BMW
automobile
Plaintiff's Exhibit 86-9 1Sla
32 November 13, 1992 Document
pertaining to recalls of throttle
housing unit on 1991 BMW 535
automobiles,
Plaintiff's Exhibit 62 152a
-12a-
EXHIBIT DESCRIPTION OF APPENDIX
NUMBER DOCUMENTS PAGES
33 Straight bill of lading with
notation of acid rain damage to
the subject BMW automobile,
Plaintiff's Exhibit 85 153A
13a
EXHIBIT 1
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-9501
Non-Argument Calendar
D. C. Docket No. 1:94-CV-2135-JEC
LINDA DAGI,
Plaintiff-Appellant,
versus
BAYERISCHE MOTOREN WERKE, A.G..,
Defendant-cross-defendant-Appellee,
BMW OF NORTH AMERICA, INC.,
Defendant,
CHRIS MOTORS CORPORATION,
Defendant-cross-claimant-Appellee.
[stamp—DO NOT PUBLISH]
[stamp—Filed, U.S. Court of Appeals, Eleventh Circuit,
NOV 21 1996, Miguel J. Cortez, Clerk]
No. 96-8025
Non-Argument Calendar
D. C. Docket No. 1:94-cv-2135-JEC
LINDA DAGI,
Plaintiff-Appellant,
versus
BAYERISCHE MOTOREN WERKE, A.G..,
Defendant-cross-defendant-Appellee,
i
l4a
BMW OF NORTH AMERICA, INC.,
Defendant-Appellee,
CHRIS MOTORS CORPORATION,
Defendant-cross-claimant.
Appeals from the United States District Court
for the Northern District of Georgia
(November 21, 1996)
Before HATCHETT, Chief Judge, TJOFLAT and KRA-
VITCH, Circuit Judges.
PER CURIAM:
Appellant Dagi appeals the district court’s orders denying
Dagi’s Motion to Remand, to Compel Discovery and for
Leave to File a Fourth Amended Complaint, excluding
Dagi’s belatedly disclosed expert witness and granting appel-
lees’ respective Motions for Summary Judgment on all
claims. We affirm.
Dagi filed this motion against appellees alleging they
committed various fraud and product-liability torts in their
respective roles as manufacturer, distributor and seller of a
1991 BMW 535i demonstrator vehicle. Dagi damaged the
vehicle when she rear-ended another motorist on a rain-
soaked street.
As a preliminary matter, Dagi contends the district court
erred in denying her Motion to Remand the case to state
court. Appellees did not remove the case to federal court
until Dagi added a federal odometer fraud claim, 49 U.S.C.
§§ 32701-32711. Dagi asserts this removal was untimely
under 28 U.S.C. § 1446(b) because appellees’ thirty-day
ee ee
15a
removal window ran from the filing of the original com-
plaint. She insists the fraud claims stated in the initial plead-
ing, while not so stated, were in substance federal claims.
This argument lacks merit. Dagi’s initial pleadings omitted
some of the elements of a federal odometer claim and thus,
appellees had no prior basis to remove the case. See Cater-
pillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (ruling
that federal jurisdiction exists for removal only when it
appears on the face of a well-pleaded complaint). '
The remainder of Dagi’s assertions of error are rejected
for the reasons set forth in the district court’s thorough and
thoughtful orders dated July 31, 1995 and November 30,
1995.
AFFIRMED. The parties’ request for oral argument is
DENIED.
' Dagi mistakenly relies upon cases in which defendants failed to
discern from the face of a well-pleaded complaint that federal law
preempted state-law claims or that diversity existed. This case presents
no such circumstances.
iiiieiaiiaiiddiaiaeiiaiaareeeeaiiaall
16a
EXHIBIT 2
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-9501
Non-Argument Caleadar
D. C. Docket No. 1:94-CV-2135
LINDA DAGI,
Plaintiff-Appellant,
versus
BAYERISCHE MOTOREN WERKE, A.G.,
Defendant-cross-defendant-Appellee,
BMW OF NORTH AMERICA, INC.,
Defendant,
CHRIS MOTORS CORPORATION,
Defendant-cross-claimant-Appellee.
[stamp—Filed, U.S. Court of Appeals, Eleventh Circuit,
NOV 21 1996, Miguel J. Cortez, Clerk]
No. 96-8025
Non-Argument Calendar
D. C. Docket No. 1:94-cv-2135
LINDA DAGI,
Plaintiff-Appellant,
versus
BAYERISCHE MOTOREN WERKE, A.G.,
Defendant-cross-defendant-Appellee,
17a
BMW OF NORTH AMERICA, INC.,
Defendant-Appellee,
CHRIS MOTORS CORPORATION,
Defendant-cross-claimant.
Appeals from the United States District Court
for the Northern District of Georgia
Before HATCHETT, Chief Judge, TJOFLAT and KRA-
VITCH, Circuit Judges.
JUDGMENT
These causes came on to be heard on the transcript of the
record from the United States District Court for the North-
ern District of Georgia, and were taken under submission by
the Court upon the record and briefs on file, pursuant to
Eleventh Circuit Rule 34-3;
UPON CONSIDERATION WHEREOF, it is hereby
ordered and adjudged by this Court that the orders of the
said District Court appealed from in these causes be and the
same are hereby AFFIRMED;
It is further ordered that plaintiff-appellant pay defend-
ants-appellees the costs on appeal to be taxed by the Clerk of
this Court.
Entered: November 21, 1996
For the Court: Miguel J. Cortez, Clerk
By: /s/ Matt Davidson
Deputy Clerk
ISSUED AS MANDATE: 2/12/97
:
18a
EXHIBIT 3
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-9501
96-8025
LINDA DAGI,
Plaintiff-Appeliant,
versus
BAYERISCHE MOTOREN WERKE, A.G.,
BMW OF NORTH AMERICA, INC.,
CHRIS MOTORS CORPORATION,
Defendants-Appellees.
[stamp—Filed, U.S. Court of Appeals, Eleventh Circuit,
JAN 22 1996, Miguel J. Cortez, Clerk]
On Appeal from the United States District Court for the
Northern District of Georgia
ON PETITION(S) FOR REHEARING AND
SUGGESTION(S) OF REHEARING EN BANC
(Opinion , lim Ce, 19, F.2d )
Before: HATCHETT, Chief Judge, TJOFLAT and KRA-
VITCH, Circuit Judges.
PER CURIAM:
The Petition(s) for Rehearing are DENIED and no member
of this panel nor other Judge in regular service on the Court
ee ee ee
19a
having requested that the Court be polled on rehearing en
banc (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5). the Suggestion(s) of Rehearing
En Banc are DENIED.
ENTERED FOR THE COURT:
/s/ Joseph W. Hatchett
UNITED STATES CIRCUIT JUDGE
20a
EXHIBIT 4
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 95-9501 and 96-8025
LINDA DAGI,
Plaintiff-Appellant,
versus
BAYERISCHE NOTOREN WERKE, A.G.,
Defendant-Cross-Defendant, Appellee,
BMW OF NORTH AMERICA, INC.,
Defendant,
CHRIS MOTORS CORPORATION,
Defendant-Cross-Claimant-Appellee.
[stamp—Filed, U.S. Court of Appeals, Eleventh Circuit,
FEB 11 1997, Miguel J. Cortez, Clerk]
Appeal from the United States District Court for the
Northern District of Georgia
ORDER
( X ) The Motion of LINDA DAGI for (X) stay (__) recall
and stay of the issuance of the mandate pending peti-
tion for writ of certiorari is DENIED.
( ) The motion of LINDA DAGI for (X) stay ( _ ) recall
and stay of the issuance of the mandate pending peti-
tion for writ of certiorari is GRANTED to and includ-
ing APRIL 22, 1997, the stay to continue in force until
the final disposition of the case by the Supreme Court,
(
(
)
)
2la
provided that within the period above mentioned there
shall be filed with the Clerk of this Court the certifi-
cate of the Clerk of the Supreme Court that the certio-
rari petition has been filed. The Clerk shall issue the
mandate upon the filing of a copy of an order of the
Supreme Court denying the writ, or upon expiration of
the stay granted herein, unless the above mentioned
certificate shall be filed with the Clerk of this Court
within that time.
The motion of for a further stay of the
issuance of the mandate is GRANTED to and including
, under the same conditions as set forth in
the preceding paragraph.
IT IS ORDERED that the motion of for
the further stay of the issuance of the mandate is
DENIED.
/s/ Joseph W. Hatchett
CHIEF JUDGE
22a
EXHIBIT 5
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-9501
LINDA DAGI,
Plaintiff-Appellant,
versus
BAYERISCHE MOTOREN WERKE, A.G.,
Defendant-Cross-Defendant-Appellee,
BMW OF NORTH AMERICA, INC.,
Defendant,
CHRIS MOTORS CORPORATION,
Defendant-Cross-Claimant-Appellee.
{stamp—Filed, U.S. Court of Appeals, Eleventh Circuit,
FEB 11 1997, Miguel J. Cortez, Clerk]
No. 96-8025
LINDA DAGI,
Plaintiff-Appellant,
versus
BAYERISCHE MOTOREN WERKE, A.G.,
Defendant-Cross-Defendant-Appellee,
BMW OF NORTH AMERICA, INC.,
Defendant-Appellee,
CHRIS MOTORS CORPORATION,
Defendant-Cross-Claimant.
23a
Appeal from the United States District Court for the
Northern District of Georgia
ORDER
Appellant’s motion for correction of clerical error is
DENIED. This court’s 2/11/97 order denied Appellant’s
motion to stay this court’s mandate pending resolution of her
petition for a writ of certiorari.
Appellant’s motions to recall this court’s mandate and to
stay this court’s mandate are DENIED AS MOOT.
/s/ Joseph W. Hatchett
CHIEF JUDGE
24a
EXHIBIT 6
IN THE STATE COURT OF FULTON COUNTY
STATE OF GEORGIA
CIVIL ACTION
FILE NO. 93VS70409-F
LINDA DAGI,
Plaintiff,
2
BMW OF NORTH AMERICA, INC.
and CHRIS MOTORS CORPORATION,
Defendants.
ORDER
The above-styled case is before the Court on Plaintiff's
Motion for Leave to Amend Plaintiff's Complaint to Add
Bayerische Motoren Werke, A.G. as a Party Defendant. No
response to the motion was filed by Defendants.
Having considered the matter, Plaintiff's motion is
GRANTED. IT IS HEREBY ORDERED that Bayerische
Motoren Werke, A.G. be made a degendant in this action
and that the summons and amended complaint br served
upon said party.
SO ORDERED, this 13th day of July, 1993.
/s/ Melvin K. Westmoreland
MELVIN K. WESTMORELAND, JUDGE
STATE COURT OF FULTON COUNTY
{stamp—Filed (illegible), 14 July 93, (illegible), Deputy Clerk]
25a
EXHIBIT 7
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NO. 1:94-cv-2135A-JEC
LINDA DAGI
Plaintiff,
VS.
BAYERISCHE MOTOREN WERKE, A.G. ET AL.
Defendant.
ORDER
The above entitled action is presently before the Court on
Plaintiff's Motion To Remand [5] and defendant’s brief in
opposition [7].
. IT IS HEREBY ORDERED that Plaintiff's Motion To
Remand [5] is DENIED.
: SO ORDERED, this 24th day of OCTOBER, 1994.
/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE
[stamp—Filed in Chambers, 10/24/94, Luther D. Thomas, Clerk,
By: /s/ L. Bates, Deputy Clerk]
i [stamp—Entered on Docket, OCT 25 1994,
L.D.T., Clerk, By Deputy Clerk]
ener ere
26a
EXHIBIT 8
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL NO. 1:94-cv-2135-JEC
LINDA DAGI,
Plaintiff,
VS.
BAYERISCHE MOTOREN WERKE, A.G.;
BMW OF NORTH AMERICA, INC.;
and
CHRIS MOTORS CORPORATION,
Defendants.
[stamp—Filed in Chambers, 7/31/95, Luther D. Thomas, Clerk,
By: /s/ L. Bates, Deputy Clerk]
ORDER
This case is presently before the Court on defendant Chris
Motors Corporation’s (‘“Chris Motors’’) Motion for
Summary Judgment [27-1], plaintiff's Motion to Strike
Johnson Affidavit [35-1] and plaintiff's Motion to Strike
Sweeney Affidavit [36-1]. The Court has reviewed the
record and the arguments of the parties and, for the reasons
set out below, concludes that Chris Motors’ Motion for
Summary Judgment should be granted and that plaintiff’s
motions to strike should be granted in part and denied in
part.
27a
BACKGROUND
This case was originally filed in the State Court of Fulton
County, Georgia, on March 19, 1993. The case arises out of
an automobile accident in which plaintiff drove her recently
purchased BMW 535i into another motorist. It was raining
at the time of the accident and the plaintiff was cited for
following too closely by the police officer who responded to
the scene. Thereafter, plaintiff's insurer settled with the
person plaintiff drove into and plaintiff initiated this lawsuit
on her own behalf.'
Plaintiff asserts claims for property damage arising from
alleged defects in the design and manufacture of her BMW,
as well as claims for alleged common law fraud and statu-
tory odometer fraud. Plaintiff asserts no claim for any
personal injury arising from the accident. The pleadings
reveal that the only damage plaintiff suffered as a result of
the accident was damage to her car. Subsequent to the acci-
dent, plaintiff declined to accept payment from her insurer
intended to repair the damage to her car caused by th acci-
dent. The subject car has not been repaired and is being
stored by the plaintiff. *
Plaintiff has amended her Complaint on three separate
occasions. On the most recent occasion, plaintiff amended
her Complaint to state a federal odometer fraud claim
against defendant Chris Motors in Count V. Immediately
upon the most recent amendment, defendants removed the
case to this Court on August 12, 1994. The Complaint
further alleges claims for negligent inspection, negligent
failure to warn and negligent maintenance of the vehicle in
' Interestingly, plaintiff's insurer chose not to subrogate any claim
plaintiff may have had against these defendants and pursue it on her
behalf.
? Plaintiff apparently does not require the use of the vehicle, as she has
use of at least four other luxury automobiles.
28a
Count III and common law fraud with respect to allegedly
fraudulent misrepresentations of the true mileage on the car
at the time of the purchase in Count IV.
DISCUSSION
I. Introduction
Defendant Chris Motors has moved the Court for sum-
mary judgment with respect to all of plaintiff's claims
against it. Specifically, Chris Motors asserts that there is a
complete lack of evidence to support any of plaintiff’s
claims with respect to this defendant. In response, plaintiff
makes a variety of arguments in her attempt to avoid
summary judgment. In making these arguments, plaintiff
appears to attempt to assert new claims or new bases for her
original claims.? Upon complete review of the record and
the arguments of the parties, the Court concludes that de-
fendant Chris Motors’ Motion for Summary Judgment
should be granted.
3 Specifically, plaintiff appears to assert a claim for negligent misrep-
resentations plaintiff now asserts were made prior to her purchase of the
car in question. This is plaintiffs first mention of any such claim. The
Complaint contains no such allegations. Accordingly, the Court will
disregard any such arguments, as they are irrelevant to the claims plain-
tiff has stated in her Complaint. Also for the first time in her response,
plaintiff alleges a host of allegedly fraudulent misrepresentations that
were made prior to her purchase of her car. None of these alleged mis-
representations are mentioned in the fraud count of the Complaint. In
fact, the only misrepresentation mentioned in the Complaint has to do
with an alleged misrepresentation regarding the mileage on the car at the
time of the purchase. In light of the Federal Rules’ requirement that
fraud be pled with particularly, FED. R. CIV. P. 9(b), the Court con-
cludes that none of these newly alleged misrepresentations are relevant to
the lone fraud allegation before the Court and, thus, will not be consid-
ered.
sana
29a
Il. The Summary Judgment Standard.
Summary judgment is not properly viewed as a device that
the trial court may, in its discretion, implement in lieu of a
trial on the merits. Instead, Rule 56 of the Federal Rules of
Civil Procedure mandates the entry of summary judgment
against a party who fails to make a showing sufficient to
establish the existence of every element essential to that
party’s case on which that party will bear the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In such a situation, there can be no genuine issue as
to any material fact, as a complete failure of proof concern-
ing an essential element of the non-moving party’s case
necessarily renders all other facts immaterial. Jd. at 322-23.
The movant bears the initial responsibility of asserting the
basis for his motion. Jd. at 323; Apcoa, Inc. v. Fidelity Nat’!
Bank, 906 F.2d 610, 611 (11th Cir. 1990). However, the
movant is not required to negate his opponent’s claim. The
movant may discharge his burden by merely ‘‘ ‘showing’ —
that is, pointing out to the district court — that there is an
absence of evidence to support the non-moving party’s
case.”’ Celotex, 477 U.S. at 325. After the movant has
carried his burden, the non-moving party is then required to
‘“go beyond the pleadings’’and present competent evidence‘
designating ‘*’specific facts showing that there is a genuine
issue for trial.’ ’’ Jd. at 324 (quoting FED. R. CIV. P. 56
(e)). While the court is to view all evidence and factual
inferences in a light most favorable to the non-moving party,
Samples v. City of Atlanta, 846 F.d 1328, 1330 (11th Cir.
1988), ‘‘the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
Supported motion for summary judgment; the require-ment
is that there be no genuine issue of material fact.’’ Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 274-48 (1986).
* The non-moving party may meet its burden through affidavit and
deposition testimony, answers to interrogatories, and the like. Celotex,
477 U.S. at 324.
30a
A fact is material when it is identified as such by the con-
trolling substantive law. Jd. at 248. An issue is genuine
when the evidence is such that a reasonable jury could return
a verdict for the nonmovant. Jd. at 249-50. The nonmovant
‘‘must do more than simply show that there is some meta-
physical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no ‘genuine
issue for trial.” ’’ Matsushita Electric Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-587 (1986) (citations
omitted). An issue is not genuine if it is unsupported by
evidence, or if it is created by evidence that is ‘‘merely
colorable’’ or is ‘‘not significantly probative.’’ Anderson,
477 U.S. at 249-50. Thus, to survive a motion for summary
judgment, the non-moving party must come forward with
specific evidence of every element material to that party’s
Case SO as to create a genuine issue for trial.
Ill. The Negligence Claim.
In her Complaint, the plaintiff alleges that defendant Chris
Motors was negligent in its inspection of the car due to the
failure to discover the car’s defective condition, in its failure
to warn her of the car’s defective and dangerous condition
and in its maintenance of the car while in its possession. In
its Motion for Summary Judgment, Chris Motors makes a
three-pronged attack on plaintiff's negligence claim. First,
Chris Motors argues that plaintiff has failed to adduce any
evidence that the car is in fact defective or improperly
maintained.* Chris Motors further argues that it was under
no duty to inspect the vehicle to discover any latent defect
that may have existed. Lastly, Chris Motors argues that
plaintiff's negligence claim is absolutely barred by Georgia’s
> Plaintiff has not directed the Court’s attention to any evidence sug-
gesting that Chris Motors failed to exercise due care in the maintenance
of the car in question, other than the alleged failure to discover the al-
leged ‘‘defects’’ in the car.
3la
economic loss rule.* Each of defendant’s alternative grounds
for summary judgment on this count of the Complaint are
discussed below.
A. Lack of evidence with respect to product defect.
Chris Motor’s primary argument in support of its Motion
for Summary Judgment is that plaintiff has failed to direct
the Court’s attention to any ‘‘defect’’ in the car at the time
of the accident. As defendant’s argument goes, it cannot be
liable for a defect that does not exist, even if it was negli-
gent in its inspection and maintenance of the car. As defend-
ant notes, the negligence claim itself is premised upon the
existence of a defective and dangerous condition that de-
fendant failed to discover and warn plaintiff about.
Although plaintiff's Complaint makes no reference to any
specific dangerous condition Chris Motors failed to discover
and warn about, she now argues that there are three such
‘‘defects’’ in the car. Plaintiff alleges defects with respect to
the brakes, the throttle housing unit and the floormats in the
car at issue. Defendant Chris Motors asserts that plaintiff has
failed to adduce any evidence in support of her claims of
dangerous defects in her car. Upon complete review of the
record and the arguments of the parties, the Court has seri-
ous doubts that plaintiff has created any issue of fact with
respect to the existence of any defect in this car.
First, with respect to no plaintiff’s claims about defects in
the brakes, there is not one scintilla of evidence to support
her claims. The car was examined by two persons highly
familiar with the subject model following the accident, Jim
Blair who is a BMW Regional Technical Specialist with
* As the Court concludes that Chris Motors is entitled to Summary
Judgment because it had no duty to inspect the subject vehicle for latent
defects, it need not reach defendant’s arguments with respect to Geor-
gia’s economic loss rule.
32a
twenty-two years of automotive training and experience and
Stanley Zangel who was the service department manager at
Chris Motors. Mr. Blair examined plaintiff's car in July of
1992 and Mr. Zangel examined plaintiff's car in August of
1993. Neither inspection rendered any indication of any
defect with respect to the breaking system of plaintiff's car.
In fact, Blair’s inspection and testing of plaintiff's car indi-
cated that it performed up to specifications, even in its
unrepaired state. Plaintiff's uncorroborated belief that the
brakes did not work properly and, thus, caused her accident
simply does not create a dispute of material fact with respect
to any defect in her car’s braking system. See Blackson v.
Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482
(11th Cir. 1985).’
Plaintiff fares even worse with respect to her claims of a
defect in the throttle housing unit. In her responsive brief,
plaintiff asserts that her car was the subject of a recall notice
for problems in the throttle housing unit and that she was not
notified of this recall. Plaintiff refers the Court to the depo-
sition of Ed Wagner, Chris Motors’ shop foreman, in sup-
port of this allegation. Contrary to plaintiff's assertions, the
cited testimony does not support her allegation. In his depo-
sition, Wagner testified that one or possibly two other
models of 1991 BMW’s were recalled for problems with the
throttle housing unit but expressively testified that her car
was not one of the model’s recalled.* Accordingly, there is
no evidence, not even plaintiff's suspicion, indicating any
defect in the car’s throttle housing unit.
7 **All reasonable inferences arising from the undisputed facts should
be made in favor of the nonmovant, but an inference based on specula-
tion and conjecture is not reasonable.’’ Blackston, 764 F.2d at 1482
(citations omitted).
§ Plaintiff inaccurately recites the facts when she states that Ed.
Wagner ‘‘testified that there was a recall for the throttle housing unit on
‘RRR ia ee en
33a
With respect to the floor mats, plaintiff directs the Court’s
attention to testimony by James Blair which indicates that
the floor mats in her car were not BMW-supplied accesso-
ries. (Blair Dep. at 54-65.) Apparently, the floor mats in
plaintiff's car were supplied to Chris Motors, who installed
. the mats, by some other after-market vendor.® In his testi-
mony, Blair indicates that BMW floormats would have
anchoring eyelets to secure the mats to the floor, thus,
preventing them from shifting around due to movement of a
driver’s feet. (/d.) Blair indicates that the floor mats in
plaintiff's car lack these anchoring eyelets and then opines
that such a lack of anchoring eyelets could result in the
floormats shifting around such that the driver’s floor mat
might impede the proper operation of the accelerator, brake
and/or clutch pedals. (/d.) Blair further testifies, however,
that he does not know what position the driver’s floor mat
was in at the time of the accident.
Oe NR ee et ree
the 1991 BMW 535 model .. . . ’’ (PI.’s Resp. to Mot. for Summ. J. at
' 19.) The exact testimony is as follows:
Q Now, on these model vehicles, have you been aware of any kind
of recall or campaign involving the throttle housing unit?
A This is a 535, ’91 535. I don’t believe there has [sic] been recalls
on the ’91 535 throttle housing.
Q Now, has there been a recall on the throttle housing unit of simi-
lar designed or other models of the 91 BMWs?
A I believe there has been one on the 525. There has [sic] been on
the 91 318s for different reasons.
a NC etre tae 2 DY atl ENT
(Wagner Dep. at 38.)
® Defendant Chris Motors argues that plaintiff is barred from arguing
| that the floor mats are not BMW floor mats because of portions of her
own testimony. Upon complete review of the subject testimony, howev-
er, the Court cannot reach the conclusion Chris Motors urges. Although
plaintiff does indicate that the floor mats were BMW floor mats, taken in
context, plaintiff's testimony is that she believed the floor mats to be
BMW floor mats because they were installed by Chris Motors and were
in the vehicle when she purchased it. (Dep. of L. Dagi at 84.)
eee a
re St Aaa Posen EAD a Pre oat So ~ nat
34a
Interestingly, plaintiff does not direct the Court’s attention
to any of plaintiff's testimony indicating that the floormats
had any connection to the subject accident. Plaintiff directs
the Court’s attention to Blair’s testimony regarding the
floormats and then asserts that an issue of fact exists with
respect to a ‘‘defect’’ in plaintiff's car because the floormats
were not BMW-approved floormats. Significantly, plaintiff
directs the Court’s attention to no expert testimony or prece-
dent supporting her theory that floormats without anchoring
eyelets are ‘‘defective’’ or any evidence linking the floor-
mats to the subject accident. Although, the Court has serious
doubts with respect to the existence of a dispute of material
fact regarding any dangerous defect in plaintiff's car at the
time of the accident, it need not decide the issue because it
concludes that defendant Chris Motors is entitled to sum-
mary judgment at least one of its other two alternative
grounds.
B. Duty to Inspect.
Defendant Chris Motors argues that any defect that may
exist in plaintiff's car is, at most, a latent defect. In fact,
Chris Motors points out that plaintiff herself still cannot
direct the Court’s attention to any defect in the vehicle with
any degree of specificity. Thus, Chris Motors argues that it
is entitled to summary judgment on plaintiff's negligence
claim, regardless of whether her car is ‘‘defective.’’ See
Ryals v. Billy Poppeil, Inc., 192 Ga. App. 787, 788, 386
S.E.2d 513 (1989). In response, plaintiff argues that “‘this is
not like the usual case where a new car dealer has not had an
opportunity to inspect a vehicle and discover defects. In this
case, the subject vehicle was in the possession of Chris
Motors for thirteen months.’’ (Pl.’s Resp. to Mot. for
Summ. J. at 20.)
Plaintiff's argument misses the mark. It is not whether
Chris Motors had the ‘‘opportunity’’ to inspect the car to
oOo
35a
locate latent defects that governs the Court’s determination.
Rather, it is whether Chris Motors had any duty to inspect in
the first instance. Billy Poppell, 192 Ga. App. at 788. The
law in Georgia is clear and longstanding on the duty issue:
‘*{I]t is the general rule that a vendor or dealer who is
not the manufacturer is under no obligation to test an
article purchased and sold by him for the purpose of
discovering latent or concealed defects, but that when
he purchases and sells an article in common and general
use, in the usual course of trade, without knowledge of
its dangerous quality, and with nothing tending reason-
ably to call his attention thereto, he is not negligent in
failing to exercise care to determine whether it is
dangerous or not. In such a case, he may assume that
the manufacturer has done his duty in properly con-
structing the article and in not placing upon the market
a commodity which is defective and likely to inflict
injury.”’
Harison-Gulley Chevrolet, Inc. v. Carr, 134 Ga. App. 449,
452, 214 S.E.2d 712 (1975) (emphasis added) (quoting King
Hardware Co. v. Ennis, 39 Ga. App. 355, 360 (1928)).
Thus, absent an indication that Chris Motors was on notice
of some patent safety defect in the car, plaintiff's negligence
claim fails as a matter of law. As plaintiff has not directed
the Court’s attention to any evidence indicating any such
patent defect existed in her car during the time it was in
Chris Motors’ possession, the Court concludes that it should
grant defendant Chris Motors’ Motion for Summary Judg-
ment with respect to plaintiff's negligence claim. '°®
10 Interestingly, plaintiff drove the car for approximately six weeks
and two thousand miles prior to the accident and she failed to discover
any such ‘‘defeci’’ in the car. Given the undisputed record in this case,
there can be little argument that Chris Motors failed to discover and
warn plaintiff of some patent dangerous condition in the car.
RO me eee Pee
36a
IV. The State Law Fraud Claim.
In its Motion for Summary Judgment, defendant Chris
Motors argues that plaintiff has failed to produce any evi-
dence to support her fraud claim. Additionally, Chris
Motors argues that plaintiff's state law fraud claim is barred.
because she failed to repudiate the underlying contract after
learning of the alleged fraud. See Owens v. Union City
Chrysler-Plymouth, Inc., 210 Ga. App. 378, 379, 436
S.E.2d 94 (1993). Upon complete review of the record and
the arguments of the parties, the Court concludes that Chris
Motors’ Motion for Summary Judgment should be granted
due to plaintiff's failure to rescind the contract that governed
the purchase of plaintiff's car. Thus, the Court need not
reach any of the issues raised with respect to the allegedly
fraudulent representation about the car’s mileage.
The undisputed record before the Court indicates that the
purchase contract plaintiff signed when she purchased her
car from Chris Motors contained a merger clause providing
that ‘‘this Agreement cancels and supersedes any prior
Agreement and as the date hereof comprises the complete
and exclusive statement of the terms of the Agreement relat-
ing to the subject matters covered hereby. The Agreement
cannot be modified except by express written Agreement of
the parties.’’ (Def. Chris Motors’ Mot. for Summ. J. at Ex.
A, p. 1 (emphasis added).) ‘‘Accordingly, unless [plaintiff]
effectively rescinded the sales contract by promptly return-
ing or Offering to return the used automobile '' she pur-
chased from [Chris Motors] after discovering the alleged
fraud, she has no viable claim for the alleged misrepresenta-
'' The car plaintiff purchased in this case was a demonstrator with
approximately 5,300 miles showing on the odometer. Additionally, the
car was sold ‘‘AS IS’’ with an express disclaimer of any warranties by
the dealer. (Def. Chris Motors’ Mot. for Summ. J. at Ex. B.)
6h 0 cl RR NR =:
eS Te OT re ree one lee
37a
tion.’’ Owens, 210 Ga. App. at 379. ‘‘The presence of a
merger clause in the underlying contract is determinative if
the defrauded party has not rescinded but has elected to
affirm the contract.’’ Jd. (quoting Nexus Services v. Man-
ning Tronics, 201 Ga. App. 255, 410 S.E.2d 810 (1991)).
The undisputed facts in this case establish that plaintiff
never made any attempt to rescind the contract and return
the car to Chris Motors. Rather, plaintiff continues to retain
ownership of the vehicle these many months after learning
of the allegedly fraudulent representations regarding the
mileage on the car at the time of the purchase. Accordingly,
the Court concludes that it should grant defendant Chris
Motors’ Motion for Summary Judgment with respect to
plaintiff’s state law fraud claim.
V. The Federal Odometer Fraud Claim.
Plaintiff's Complaint states a claim for alleged violations
of the Federal Odometer Fraud Act, 49 U.S.C. §§ 32701-
32711.'? ‘*To recover under the Act, one must show a
violation of the Act, coupled with an intent to defraud while
committing the violation.’’ Shore v. J. C. Phillips Motor
Co., 567 F.2d 1364, 1365 (Sth Cir. 1978).'3 All that is
required to establish a violation, ‘‘is that a change in the
odometer reading has occurred and that the seller has failed
'2 In her Complaint, plaintiff refers to 15 U.S.C. §§ 1981-1988 as the
place that the Odometer Fraud Act is codified. The Act was previously
codified at 15 U.S.C. §§ 1981-1991. Prior to plaintiff's amendment that
added this claim, however, the Act was renumbered and the Act is cur-
rently codified at 49 U.S.C. 4 32701-32711.
'3 In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit Court of Appeals adopted as bind-
ing precedent all of the decisions of the former Fifth Circuit Court of
Appeals handed down prior to the close of business on September 30,
1981.
38a
to disclose the change.’’'* Delay v. Hearn Ford, 373 F.
Supp. 791, 796 (D.S.C. 1974). An intent to defraud cannot
be presumed but may be inferred from proof of a violation
‘*in the absence of an explanation of the odometer change.”’
Bryant v. Thomas, 461 F. Supp. 613, 616-17 (D. Neb.
1978) (quoting Delay, 373 F. Supp. at 796).
In its Motion for Summary Judgment, Chris Motors
argues that plaintiff has failed to adduce any evidence to
support her odometer fraud claim.'> Specifically, Chris
Motors argues that plaintiff cannot direct the Court’s
attention to any direct or probative circumstantial evidence
to support her claim. In response, plaintiff appears to
concede that there is no direct evidentiary support for her
claim and then argues that the record does contain probative
circumstantial evidence of odometer tampering. Specifically,
plaintiff directs the Court’s attention to various testimony
indicating that the car’s odometer can be disabled by
removing a fuse and that two of the tires on plaintiff's car
showed excessive wear at the time of the accident. Upon
complete review of the record and the arguments of the
parties, the Court concludes that it should grant defendant
Chris Motors’ Motion for Summary Judgment.
Plaintiff's reliance on evidence indicating the ability of a
dealer to disable an odometer is misplaced. Such evidence
would exist with respect to any automobile sold by any
dealer. Plaintiff emphasizes, however, that the design of her
'* Driving a vehicle while the odometer is disconnected constitutes a
““change’’ in the reading that is prohibited by the Act. 49 U.S.C. §
32703(2).
'S Chris Motors also argues that plaintiff's claim is barred by the
applicable statute of limitations for such claims. The Court need not
decide this sticky procedural issue, however, as it concludes that defend-
ant is entitled to judgment on the merits.
Ce nt See ein
or.
39a
car’s odometer made it easy for the odometer to be
disabled.'® Specifically, plaintiff appears to argue that this
odometer was so easy to disable that an inference necessarily
arises that it was in fact disabled.
Plaintiff's arguments in this regard are problematic for a
number of reasons. First, the undisputed testimony by ‘ose
who examined the car indicates that there is no evidence v1
any tampering with the memory chip that stores the car’s
mileage. (Zangel Dep. at 82; Blair Dep. at 109.) Further,
there is no evidence to suggest that any Chris Motors
employee ever disabled any odometer, much less plaintiff’s.
(Zangel Dep. at 109; Sweeney Aff. at ¢ 8!7; Mihyar Dep. at
61; J. Christman Dep. at 49-50; N. Christman Dep. at 39-
40.) In the face of the uniform sworn denials of every
person familiar with the vehicle and policies of Chris
Motors, plaintiff cannot rest upon the ease with which the
odometer could be disabled.
‘6 The odometer in plaintiff's car is electronic, rather than mechanical.
Thus, the odometer display is blank when power is not supplied to the
instrument cluster. Although, it is not entirely clear from the testimony,
it appears that the odometer can be disabled simply by removing a fuse
in the fuse box. The same fuse that powers the odometer also powers all
the other instruments in the dash of the car. In support of the odometer
fraud claim, plaintiff theorizes that some unidentified person at Chris
Motors disabled this fuse and then drove the car some undetermined
number of miles without any idea of their rate of speed, their distance
traveled or the level of fuel in the tank.
'7 Plaintiff has moved to ‘‘strike’’ portions of the Sweeney Affidavit.
Although procedurally incorrect, plaintiff essentially objects to the
admissibility of portions of his testimony. Plaintiff objects to Sweeney’s
testimony to the extent he reports that he experienced no problems with
the operation of the car during the period that he drove it. Contrary to
plaintiff's arguments, as the primary operator of the car for more than
5,000 miles, Sweeney’s testimony regarding his own observations are
perfectly proper. Plaintiff makes a similar objection to Sweeney’s testi-
40a
Plaintiff's evidence with respect to tire wear is also prob-
lematic.'® At the outset, plaintiff's arguments with respect to
the level of tire wear presume that any excessive wear
indicated at the time of her accident necessarily indicates
excessive wear at the time she took delivery of the car.
Plaintiff totally ignores the fact that she and her husband
drove the vehicle for approximately six weeks and two
thousand miles after the purchase. Additionally, the defense
witness testimony upon which plaintiff relies does not
warrant denial of Chris Motors’ meritorious Motion for
Summary Judgment.
Plaintiff relies, in part, on the testimony of witnesses who
are affiliated with Chris Motors or BMW NA. Specifically,
plaintiff directs the Court’s attention to testimony by Stanley
Zangel, the service manager at Chris Motors, and John
DeMartini, a manager in the Customer Relations Department
mony regarding his inspection of the car prior to delivery to plaintiff.
Here again, plaintiff's objection is without merit. Sweeney may properly
testify with respect to his personal observations of the condition of the
car at the time of delivery. Plaintiff further objects to Sweeney’s testi-
mony to the effect that neither he nor any other Chris Motors employee
has ever tampered with the odometer in plaintiff's car. To the extent that
Sweeney's statement is based on hearsay rather than his personal obser-
vations and knowledge of his own conduct, plaintiff's objection is sus-
tained. Thus, the challenged testimony will not be considered to the
extent it purports to describe events of which Sweeney has no personal
knowledge. Accordingly, plaintiff's Motion to Strike Sweeney Affidavit
is granted in part and denied in part.
'§ In opposing Chris Motors’ Motion for Summary Judgment, plaintiff
relies, in part, on the testimony of a tire expert she retained, William
Hudson. For the reasons stated in the Court’s order regarding plaintiff's
refusal to seasonably identify her expert witnesses, the Court will disre-
gard Hudson’s affidavit testimony. Additionally, the Court notes, that
Hudson’s testimony addresses the condition of the tires after the acci-
dent.
eros shalady aye GR
onan ec eam el a 8 aca Sa
AR Re WIE Brihan
Peers
4la
for BMW NA. Plaintiff cites the portions of these witnesses
testimony which, if read in isolation, appear to support her
claim of odometer fraud. Plaintiff, however, ignores other
portions of these witnesses’ testimony that is less favorable,
as well as the testimony of others that is adverse to her
claim.
Plaintiff directs the Court’s attention to testimony by
Stanley Zangel that indicates that the rear tires on plaintiff’s
car exhibit excessive wear for tires with only 7,100 miles on
them. (Zangel Dep. at 82.) Plaintiff also cites other testimo-
ny indicating that the tire wear on the rear tires was ap-
proaching the “‘wear indicators’’, thus, indicating that the
tires would need to be replaced in the near future. (/d.)
According to other testimony from Mr. Zangel, tires of the
type on plaintiff's car should last ‘‘between 16 to 22,000
miles’’, under normal driving conditions. (/d. at 83.) Plain-
tiff completely disregards other portions of Zangel’s testi-
mony, however, indicating that the tires on plaintiff's car
had worn substantially more in the center, indicating that the
tires had been driven while over-inflated. (Jd. at 82-83.)!°
Moreover, Zangel testified that two of plaintiff’s tires ‘‘had
good tread left on it [sic], I believe it was 332, which is
19 Zangel’s testimony with respect to the amount of wear on the rear
tires is as follows:
Q Which two [tires] had more wear?
A The tires — I believe they were the tires on the rear.
Q How much was the wear on the tires in the rear?
A The tires on the rear were almost to the wear indicator in the
center of the tire.
Q When it’s almost to the wear indicator, what does that tell you?
A That it’s almost due for replacement. And also, the wear was in
the center of the tire, indicating an over inflation. If you were to
over inflate your tires, they wear in the center.
(Zangel Dep. at 82-83.)
42a
almost like a new tire, would indicate that this car was
probably driven very hard with the tires on the back. i.¢.,
[sic] wheel spinning and stuff like that.’’ (Id. at 83-84. )2°
The only testimony before the Court regarding the condi-
tion of the tires when plaintiff bought the car indicates that
the tires did not show excessive wear prior to the car being
delivered to plaintiff. Plaintiff and her husband both testified
that they did not notice any excessive wear on the tires or
anything else that would indicate the car had been driven
more than 5,300 miles at the time of the purchase. (L. Dagi
Dep. at 35-36; F. Dagi Dep. at 45-46.)2! The sales manager
who had been the primary driver of the car prior to plain-
tiff’s purchase likewise testified that he inspected the vehicle
immediately before it was delivered and noted no unusual
wear on the tires or any other aspect of the car. (Sweeny
Aff. at { 10.) More importantly, the service technician who
serviced the car a few days before it was delivered to plain-
tiff testified that he noted no excessive wear on the tires at
20 The testimony uniformly indicates that the sports type tires on plain-
tiff’s car are especially susceptible to excessive wear when driven aggres-
sively. (Zangel Dep. at 84; Blair Dep. at 97-98: DeMartini Dep. at 62-
65.) :
*! According to plaintiff's and her husband’s own testimony, they did
not notice anything out of the ordinary when they test drove the vehicle
or when it was delivered. This is so, even though plaintiff and her
husband test drove the vehicle more than once and even took it home
over night so that they could look it over prior to the decision to buy it.
The pieces of testimony plaintiff now seeks to rely upon indicate that the
rear tires were quite noticably worn at the time of the accident. This
combination of facts leads to an argument fraught with inconsistency.
The theory plaintiff advances in this litigation is that the tires must have
been almost worn out at the time she purchased the car, yet she never
explains her failure to discover this fact during her, and her husband’s,
extensive examination of the car prior to deciding to buy it.
Cn eee
43a
the time he worked on the car. (Johnson Aff. at 4{ 5-7.)??
{ This testimony by the only person to visually inspect the
tires at close range stands completely unrefuted in the re-
cord.?
; Plaintiff's citations to the record indicate no more than
that the tires on her car exhibited excessive wear on the date
of the accident. The record is silent with respect to any such
excessive wear on the day she took delivery of the car. In
fact, the only evidence before the Court indicates that there
22 As with the Sweeney Affidavit, plaintiff has moved to ‘‘strike’’
portions of the Johnson Affidavit. Plaintiff's motion will be treated as
evidentiary objections. Plaintiff objects to Johnson’s testimony regarding
his inspection of plaintiff's tires when he worked on plaintiff's car and
his knowledge of Chris Motors’ custom and practice with respect to the
discovery of safety hazards. The Court concludes that plaintiff's
objections to this testimony are without merit. As the person who
actually worked on plaintiff’s tires, Johnson may testify to his observa-
tions about those tires. Further, as an employee of Chris Motors, John-
son may testify as to his understanding of his employer’s custom and
practice with respect to handling potential safety hazards, such as
excessively or abnormally worn tires. Plaintiff further objects to
Johnson’s testimony to the effect that Chris Motors had only received
two recall notices with respect to the 535i model, neither of which
involved the brakes or throttle housing unit. To the extent Johnson’s
testimony purports to speak for Chris Motors, rather than himself, the
Court will sustain plaintiff's objection. Defendant laid no foundation for
Johnson to testify with respect to what Chris Motors did or did not
receive. Accordingly, plaintiff's Motion to Strike Johnson Affidavit is
granted in part and denied in part.
?3 Significantly, Johnson balanced and rotated the tires as part of the
pre-delivery service he performed on the car. At the time he performed
the service, he inspected the tires for ‘‘abnormal wear or other safety
concerns.”’ (Johnson Aff. at ¢ 6.) He further testified that ‘‘[i]f the tires
had reflected abnormal or excessive wear, I, as a matter of custom and
practice, would not have gone forward with the rotation and balance
procedure.’’ (/d.)
Rice RAIN lc AR a lk en sg Se ao nc eg it al
4t4a
was no indication of excessive wear on the day of delivery.
Further, the record contains testimony to the effect that
aggressive driving, improper inflation and improper align-
ment could all contribute to substantially accelerated wearing
of the type of tires installed on plaintiff's car. Moreover,
there is no indication in the record that any agent of Chris
Motors has ever tampered with any odometer, let alone th
odometer in plaintiff's car. |
Plaintiff essentially asks this Court to submit this case to
a jury on suspicion and innuendo, when there is no real
dispute with respect to any material fact. Such a result is
neither required nor permitted by the law. Accordingly, the
Court concludes that defendant Chris Motors is entitled to
summary judgment with respect to plaintiff's federal odome-
ter fraud claim.
CONCLUSION
For the foregoing reasons, defendant Chris Motors Corpo-
ration’s Motion for Summary Judgment [27-1] is GRANT-
ED, plaintiff's Motion to Strike Johnson Affidavit [35-1] is
GRANTED in part and DENIED in part and plaintiff's
Motion to Strike Sweeney Affidavit [36-1] is GRANTED in
part and DENIED in part.
SO ORDERED, this 31 day of July, 1995.
/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE
ne
45a
EXHIBIT 9
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
eae
CIVIL NO. 1:94-cv-2135-JEC
LINDA DAGI,
Plaintiff,
vs.
BAYERISCHE MOTOREN WERKE, A.G-.:
BMW OF NORTH AMERICA, INC.:
and
CHRIS MOTORS CORPORATION,
Defendants.
[stamp—Copies served By Courtroom Deputy]
{stamp—Filed in Chambers, 7/31/95, Luther D. Thomas, Clerk,
By: /s/ L. Bates, Deputy Clerk]
ORDER
ci alr ia ISR LE BD Nth 2A BS EN IS A AE Paton ee Ps mae Wiis Ta alt
This case is presently before the Court on plaintiff's
Motion to Compel [16-1], plaintiff's Motion to Extend
Discovery [18-1], defendant Chris Motors Corporation’s
(‘Chris Motors’’) Motion to Preclude Witness Testimony
[20-1], defendants Bayerische Motoren Werke, A.G.’s
(“BMW AG’’) and BMW of North America, Inc.’s
(““BMW NA’’) Motion to Extend Time to File Motion for
Summary Judgment [23-1], defendants BMW AG’s and
BMW NA’s Motion to Preclude Plaintiff's Expert Witness
Testimony [24-1] and defendant BMW AG’s Motion for
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BELLO FIA SIN ALES! OE EROLREAG eSBTD UE 0 he
pent,
46a
Protective Order [26-1]. The Court has reviewed the record
and the arguments of the parties and, for the reasons set out
below, concludes that plaintiff's Motion to Compel should
be denied without prejudice, that plaintiff's Motion to
Extend Discovery should be denied, that defendant BMW
AG’s Motion for Protective Order should be granted and
that defendants’ motions to preclude expert witness testi-
mony should be granted.
BACKGROUND
This case was originally filed in the State Court of Fulton
County, Georgia, on March 19, 1993. The case arises out of
an automobile accident in which plaintiff drove her recently
purchased BMW 535i into another motorist. It was raining
at the time of the accident and plaintiff was cited for follow-
ing too closely by the police officer who responded to the
scene. Thereafter, plaintiff’s insurer settled with the person
plaintiff drove into and plaintiff initiated this lawsuit on her
own behalf. !
Plaintiff asserts claims for property damage arising from
alleged defects in the design and manufacture of her BMW,
as well as claims for alleged common law fraud and statu-
tory odometer fraud. Plaintiff asserts no claim for any
personal injury arising from the accident. The pleadings
reveal that the only damage plaintiff suffered as a result of
the accident was damage to her car. Subsequent to the acci-
dent, plaintiff declined to accept payment from her insurer
intended to repair the damage to her car caused by the acci-
dent. The subject car has not been repaired and is being
stored by plaintiff. 2
' Plaintiff's insurer chose not to subrogate any claim plaintiff may
have had against these defendants and pursue it on her behalf.
* Plaintiff apparently does not require the use of the vehicle, as she has
use of at least four other luxury automobiles.
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47a
Plaintiff has amended her Complaint on three separate
occasions. On the most recent occasion, plaintiff amended
her Complaint to state a federal odometer fraud claim.
Immediately upon the most recent amendment, defendants
removed the case to this Court on August 12, 1994. Pursu-
ant to the local rules, the Court established that discovery
would expire on January 12, 1995, in an order issued on
September 15, 1994.
Due to the various amendments to the Complaint, the
addition of parties and the removal of this case to federal
court, the discovery period in this case lasted almost two
years. During that time, plaintiff has conducted extensive
discovery in this case.? Notwithstanding the foregoing
chronology, plaintiff's counsel identified three expert wit-
nesses they assert support plaintiff's case and moved for an
additional ninety (90) days of discovery after 4:00 p.m.* on
January 12, 1995, the day that discovery was set to expire.‘
> Accor¢ing to defendant Chris Motors, plaintiff has propounded two
sets of interrogatories (totalling 35 in number), six sets of requests for
production of documents (totalling 46), and eleven requests for admis-
sions. Additionally, plaintiff's counsel has requested ‘‘literally dozens”’
of supplements to responses. (Def. Chris Motor’s Resp. in Opp’n to
Pl.’s Mot. to Extend Disc. at p.4.) In response to these discovery re-
quests, “‘the Defendants have furnished documents, diagrams, schemat-
ics, and photographs sufficient to comprise more than one hundred
twenty (120) deposition exhibits.’’ (/d.) Plaintiff has further ‘‘explored”’
each document produced in ‘‘more than six hundred (600) pages of
deposition testimony, taken from eight (8) witnesses.’’ (/d.) Plaintiff
does not dispute any of defendant Chris motors’ depiction of the discov-
ery conducted thus far.
* Defendant Chris Motors asserts, and plaintiff has not disputed, that it
received a facsimile transmission of plaintiff's first identification of
expert witnesses and motion to extend discovery at approximately 4:20
p.m. on January 20, 1995.
* Additionally, plaintiff moved to compel responses to various discov-
ery requests from defendant BMW AG on the eve of the expiration of
discovery, January 11, 1995.
48a
DISCUSSION
I. Motions to Compel and for Protective Order.
Plaintiff has moved to compel the production of a variety
of highly technical documents from defendant BMW AG.
Defendant BMW AG objected to the requests to produce at
the time they were propounded in the summer of 1994 and
continues to resist producing them to this date. Defendant
BMW AG asserts that the documents sought in the motion to
compel are overly broad, harassing and outside the scope of
any reasonable discovery in this case. BMW AG has,
however, consented to producing the documents at issue and
has agreed to waive its objections to producing same upon
entry of what it considers to be a reasonable protective
order. Plaintiff resists entry of the protective order suggested
by BMW AG and argues that a less restrictive protective
order be entered in its place. Upon complete review of the
record and the arguments of the parties, the Court concludes
that defendant BMW AG’s Motion for Protective Order
Should be granted and that plaintiff's Motion to Compel
should be denied, without prejudice, at this time.®
The parties have agreed to all of the terms of a proposed
protective order but one. Specifically, the parties cannot
agree on the level of confidentiality plaintiff must maintain
with respect to certain engineering and manufacturing speci-
fications, documents and drawings. Plaintiff seeks the entry
* Upon receipt of this order, the parties are directed to make good faith
efforts to resolve their differences with respect to any remaining dispute
over the production of documents sought in plaintiff's Motion to Com-
pel. Should the parties fail to resolve any remaining issues, plaintiff may
renew her motion to compel, but only with respect to documents sought
in the original motion that are not provided by BMW AG. Plaintiff will
have thirty (30) days from the date of this order to renew any such
motion. NO EXTENSION TO THE TIME FOR FILING ANY
RENEWED MOTION TO COMPEL WILL BE GRANTED.
oi sate aps
49a
of a limited protective order that would allow plaintiff’s
counsel to freely share the documents with other plaintiffs,
and their counsel, who might have some other claim against
BMW AG. BMW AG seeks entry of a more restrictive
protective order requiring that plaintiff only disclose the
information to those working on her case? and that she
return all such documents upon termination of this litigation.
Plaintiff asserts that the entry of BMW AG’s proposed
protective order would run counter to the general rule that
all discovery be conducted in the open. Plaintiff further
argues that her counsel should have the right to share any
information gathered with any and all persons who may sue
BMW now or in the future. In support of entry of the order,
BMW AG argues that plaintiff's discovery requests seek
disclosure of highly proprietary engineering and rmanufactur-
ing information not readily available to anyone outside
BMW. BMW AG further argues that protection of such
highly proprietary information is appropriate, especially
given the expansive nature of the discovery requests at issue.
Plaintiff's main objection to the entry of the proposed pro-
tective order is that entry of the order would impede her
ability to share the documents with persons unrelated to this
litigation.* Plaintiff opines that entry of the proposed order
7 Entry of this order would require all persons who receive access to
the documents to sign an agreement acknowledging the terms of the
protective order.
* The Court notes that all the present litigation with respect to plain-
tiff's Motion to Compel and BMW AG’s motion for protective order
could have been avoided by entry of a consent protective order. Rather
than agreeing to the confidentiality BMW sought with respect to admit-
tedly proprietary information, plaintiff's counsel pursued a strategy that
may have been inconsistent with their client’s best interest. The ex-
pressed desire of plaintiff's counsel to share these documents with other
50a
would place the burden of proof on plaintiff to show that
any given document is not properiy the subject of a confi-
dentiality order, should she desire to share such information
with others.? Contrary to plaintiff’s assertions, the proposed
protective order expressly provides that it is BMW AG who
has ‘‘[t]he burden of proving that a Protected Document
contains confidential technical information’, if plaintiff
challenges BMW AG’s designation of a document as such. !°
(Proposed Protective Order at 2.) Accordingly, the Court
concludes that BMW AG’s Motion for Protective Order
should be granted and the Court will issue the proposed
protective order concurrently with this order.
plaintiffs and their counsel appears to have outweighed the desire to
litigate this case on the merits in an expeditious manner. BMW AG has
articulated legitimate business concerns it seeks to serve by protecting
the confidentiality of its proprietary information through the entry of the
proposed protective order. What is not clear is what interest is served on
plaintiff's part by insisting that plaintiff's counsel have the right to freely
share such information among other current or potential plaintiffs and
their counsel.
® Plaintiff argues that only information amounting to trade secrets is
properly protected by a restrictive protective order such as the one
proposed by BMW AG. While BMW AG does not dispute plainiiff’s
assertions, it makes common sense arguments that much of the proprie-
tary information sought by plaintiff is properly the subject of such an
order. Specifically, the documents sought to be protected are engineering
and manufacturing specifications, drawings and associated documents
that are not available to persons outside of BMW.
'© Although the proposed protective order anticipates that plaintiff may
challenge BMW AG’s designation of documents as ‘‘Protected Docu-
ments’’, the Court will not tolerate unnecessary satellite litigation regard-
ing such documents. The parties are again urged to resolve any differ-
ences they may have on this issue without further intervention by the
Court. The parties are hereby on notice that monetary sanctions against
counsel and parties may issue upon a finding of fault with respect to
unnecessary wrangling over the confidentiality of the documents pro-
duced subject to the protective order.
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II. Motion to Extend Discevery.
Plaintiff has moved the Court to extend discovery in this
case for an additional ninety (90) days. In so moving, plain-
tiff recognizes the difficulty she faces in light of the Court’s
September 15, 1994, scheduling order [6] which states in
pertinent part that:
. . . this case in on a four month discovery track.
Accordingly, discovery expires on THURSDAY,
JANUARY 12, 1995. No extension of this date will be
granted except in exceptional cases where the circum-
stances on which the request is based did not exist or
could not have been anticipated by counsel at the time
the preliminary statement was filed. See LR 225-1(b).
Plaintiff's motion comes after almost two years of exhaus-
tive discovery in a Case arising out of an automobile accident
in which there were no physical injuries to any person."!
Additionally, plaintiff's assertions that the discovery
dispute between herself and BMW AG constitutes a circum-
stance that justifies extending discovery are unpersuasive. As
the undisputed record indicates, plaintiff had propounded the
discovery at issue, defendant BMW AG had provided the
challenged responses and plaintiff had threatened a motion to
compel prior to the case even being removed to this court.
In light of these facts, plaintiff cannot seriously argue that
her discovery dispute with BMW AG constitutes a circum-
stance that could not have been anticipated at the time of the
filing of the preliminary statement and proposed scheduling
order. Accordingly, the Court concludes that plaintiff’s
Motion to Extend Discovery should be denied.
'! As noted supra, while driving in the rain, plaintiff rearended the car
in front of her and received a citation for following too closely.
52a
Ill. Defendants’ Motions to Preclude Expert Witnesses.
All defendants have moved the Court to preclude plaintiff
from using any testimony offered by three expert witnesses,
who were first identified by plaintiff at approximately 4:20
p.m. on the final day of a discovery period that had lasted
almost two years.'? Defendants object to any testimony by
these three experts because plaintiff failed to identify them at
any time prior to the final hours of an extremely long dis-
covery period. Defendants’ principal argument for exclusion
of expert testimony by these witnesses is that, without the
Opportunity to retain their own experts to rebut plaintiffs’
expert testimony, defendants would be prejudiced by the
admission of this testimony. Defendants further argue that
any reopening of discovery to relieve the prejudice caused
by plaintiff's late identification of these witnesses would
further delay the final resolution of this already old case, as
well as dramatically drive up the cost of defending the case.
Plaintiff argues that exclusion of her expert is not war-
ranted in this case and is not permissible under applicable
binding precedent. See Murphy v. Magnolia Elec. Power
Ass'n, 639 F.2d 232, 235 (Sth Cir. 1981).!3 Plaintiff further
argues that any neglect in timely identification of experts is
harmless and excusable in light of the discovery dispute
between plaintiff and BMW AG. Contrary to plaintiff’s
arguments, the Court concludes that exclusion of her ex-
'? Plaintiff identified William Hudson of Detroit, Michigan as a tire
expert, Rick Matysiak of Atlanta, Georgia as an odometer expert and
Steve Syson of Santa Barbara, California as an automotive engineering
expert.
'S In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit Court of Appeals adopted as bind-
ing precedent all of the decisions of the former Fifth Circuit Court of
Appeals handed down prior to the close of business on September 30,
1981.
Vani i ahr EMAL TN DD en SRDS la its os ts
53a
pert’s testimony is very nearly compelled by the applicable
federal rules and the cited authorities.'* Moreover, plain-
tiff’s arguments fly directly in the face of the Local Rules of
this Court, which are quite explicit in their requirement that
experts be designated early in the discovery process:
(c) Expert Witnesses. Any party who desires to use the
testimony of an expert witness shall designate the expert
sufficiently early in the discovery period to permit the
Opposing party the opportunity to depose the expert
and, if desired, to name its own expert witness suffi-
ciently in advance of the close of discovery so that a
similar discovery deposition of the second expert might
also be conducted prior to the close of discovery.
Any party who does not comply with the provisions of
the foregoing paragraph shall not be permitted to offer
the testimony of the party’s expert, unless expressly
authorized by Court order based upon a showing that
the failure to comply was justified.
LR 225-1(c), NDGa. (Emphasis added).
Pursuant to the express provisions of Rule 26 of the
Federal Rules of Civil Procedure, all litigants are obligated
to respond to, and seasonably update responses to, discovery
requests regarding anticipated expert witness testimony. As
an enforcement mechanism, the Federal Rules permit district
courts to exclude testimony of any witnesses whose identities
are not seasonably identified. FED. R. CIV. P. 37(c) (1).'5
'* As defendants have noted in their briefs, much of the cited authority
is either not on point with respect to the position plaintiff is now taking
or is hostile to her position.
'S Additionally, Rule 16(f) provides that a trial court may exclude
proffered evidence or testimony as a sanction for a party’s failure to
comply with a scheduling or pretrial order. This rule comes into play in
this case because plaintiff, through her actions, seeks to avoid the effects
54a
**Among the factors which the court should take into consid-
eration in determining whether to exclude evidence are ‘the
explanation, if any, for the failure to name the witness, the
importance of the testimony of the witness, the need for time
to prepare to meet the testimony, and the possibility of a
continuance.’’’ Murphy, 639 F.2d at 235 (quoting 8
CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2050 at 327 (1970)). Plain-
tiff makes a variety of arguments in her attempt to bring her
Clearly inappropriate discovery tactics within the range of
acceptable litigation conduct. Upon complete review of the
record and the arguments of the parties, the Court is unper-
suaded by plaintiff's varied and inconsistent arguments.
Plaintiff first argues that her dispute with BMW AG over
requested discovery materials constitutes a sufficient reason
and explanation for her failure to seasonably identify her
expert witnesses. Plaintiff essentially argues that she did not
know the proper response to the defendants’ interrogatories
regarding expert witnesses due to her lack of access to the
technical information sought from BMW AG. As defendants
have pointed out, however, plaintiff had no more informa-
tion available to her on the day she did identify her experts
than she had previously because BMW AG has yet to turn
over the documents in question.'® Additionally, defendant
of the Court’s scheduling order that established January 12, 1995, as the
last day of discovery. By springing these expert witnesses out of no-
where in the final hour of almost two years of discovery, plaintiff, in
effect, seeks to unilaterally extend the discovery period even further in
order to cure her own dilatory conduct of failing to timely disclose her
experts. If rules governing the conduct of discovery are to have any
teeth, such conduct cannot be tolerated.
' Also, the description of plaintiff's experts’ testimony indicates that
it is based upon their examination of plaintiff's car, as well as their
general familiarity with the make and model in question. The undisputed
ee
55a
Chris Motors had provided plaintiff with information similar
to that requested from BMW AG in its responses to plain-
tiff's discovery requests.'? Moreover, testimony by plaintiff
and her husband at their depositions, in August and Novem-
ber of 1994 respectively, makes it clear that plaintiffs had
retained experts long before they were disclosed and were
unwilling to reveal any information regarding these
experts.'* Rather than truthfully respond to defendants’
proper interrogatories and deposition questions seeking
information about expert witnesses, plaintiff consistently
maintained that she had no such witnesses.
Plaintiff next argues that these experts’ testimony is too
important to her case for the Court to exclude their testimo-
ny. In essence, plaintiff argues that exclusion of these wit-
nesses’ testimony is too harsh a sanction. Plaintiff's asser-
tions with regard to the importance of these expert witnesses
to her case are belied by her own conduct during this litiga-
tion. As defendants have noted, this litigation had been
record establishes that plaintiff has had custody and control of the car
since the time of the accident giving rise to this litigation. Accordingly,
it is not at all clear what relationship, if any, defendant BMW AG’s
dispute with plaintiff over discovery responses has to plaintiff's failure to
timely identify expert witnesses whose anticipated testimony does not
appear to be related to the material sought from BMW AG.
'7 Specifically, defendant Chris Motors refers to over one hundred
(120) such documents, as well as the extensive deposition testimony
regarding such documents. Chris Motors had also agreed to make the
shop manual for plaintiff's car available for reproduction, but plaintiff
declined to take advantage of the offer due to the expense of copying the
manual.
'§ At their depositions, plaintiff and her husband referred to ‘‘investi-
gations’’ with respect to plaintiff's claims conducted on her behalf by her
attorney. When asked to reveal expert witness information, however.
plaintiff and her husband, upon instruction from counsel, refused to
answer.
56a
going on for almost two years, during which plaintiff had
repeated declined to identify any expert witnesses, when
plaintiff suddenly identified expert witnesses who she now
asserts are “‘crucial’’ to her case. While expert testimony is
obviously important to proving a product liability claim,
plaintiff's neglect in identifying any such witnesses until the
final few minutes of an exceedingly lengthy discovery period
is sharply inconsistent with her present assertion that the
testimony is ‘‘crucial’’ to proving her case; that is, where
were these ‘‘crucial’’ witnesses during the first two years of
this case?
Plaintiff also argues that defendants will have adequate
time to prepare to meet the testimony of these experts and
that any prejudice to defendants by the late identification can
be cured by a reopening of discovery. Plaintiff's arguments
in this respect disregard the fact that plaintiff has failed to
provide any legitimate justification to reopen discovery other
than her own dilatory conduct. Plaintiff's arguments also
ignore the prejudice that would inure to defendants by
reopening discovery in a case that is already more than two
years old and in which a motion for summary judgment has
already been filed by defendant Chris Motors. As defendants
have noted, reopening discovery to depose these witnesses,
two of whom reside in distant locations, would be costly,
time consuming, and could lead to the need for defendants to
retain their own experts and incur the expense of securing
their opinions and testimony.
Additionally, plaintiff's arguments ignore the effect her
conduct in this litigation would have on this Court’s ability
to maintain its own schedule. As noted previously, plaintiff,
in effect, seeks to unilaterally reopen discovery due to her
own dilatory conduct. Plaintiff now argues that she should
be rewarded for her improper tactics by the reopening of
discovery in a case that has already had almost two years of
discovery. It would be inappropriate to sanction such con-
57a
duct. Accordingly, the Court concludes that defendants’
motions to preclude testimony by plaintiff's expert witnesses
should be granted. The Court will not admit any evidence
proffered by plaintiff with respect to these witnesses.
CONCLUSION
For the foregoing reasons, plaintiff's Motion to Compel
[16-1] is DENIED without prejudice to being refiled within
thirty (30) days of this order, plaintiff's Motion to Extend
Discovery is DENIED [18-1], defendant Chris Motors’
Motion to Preclude Witness Testimony [20-1] is GRANT-
ED, defendants BMW AG’s and BMW NA’s Motion to
Extend Time to File Motion for Summary Judgment [23-1]
is GRANTED, defendants BMW AG’s and BMW NA’s
Motion to Preclude Plaintiff's Expert Witness Testimony
[24-1] is GRANTED and defendant BMW AG’s Motion for
Protective Order [26-1] is GRANTED.
It is further ordered that plaintiff and defendant BMW AG
endeavor in earnest to resolve any remaining issues with
respect to the production of documents referenced in plain-
tiff's Motion to Compel. Defendants BMW AG and BMW
NA must file any motion for summary judgment they intend
to file within twenty (20) days of this order.
SO ORDERED, this 31 day of July, 1995.
/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE
58a
EXHIBIT 10
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL ACTION FILE
NO. 1:94-CV-2135-JEC
LINDA DAGI,
Plaintiff
VS.
BAYERISCHE MOTOREN WERKE, A.G.,
BMW OF NORTH AMERICA, INC.
and CHRIS MOTORS CORPORATION,
Defendants
[stamp—Copies served By Courtroom Deputy]
[stamp—Filed in Chambers, 7/31/95, Luther D. Thomas, Clerk,
By: /s/ L. Bates, Deputy Clerk]
PROTECTIVE ORDER
In order to preserve and maintain the confidentiality of
certain documents to be produced by BMW of North Ameri-
ca, Inc. and Bayerische Werke, A.G. (“‘Defendants’’) in
this action, it is ordered that:
1.
Documents to be produced by BMW of North America,
Inc. and Bayerische Werke, A.G. (‘‘Defendants’’) to Plain-
tiff, Linda Dagi, during discovery in this litigation which
contain confidential technical information shall hereafter be
referred to as ‘‘Protected Documents.’’ When used in this
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59a
Order, the word ‘‘documents’’ means all written material,
video tapes and all other tangible items. Except as otherwise
indicated below, documents designated by Defendants as
**Confidential’’ that are produced or delivered by Defend-
ants to Plaintiff or her attorneys, consultants, agents or
experts in this action shall be Protected Documents and
given confidential treatment as described below.
2.
The burden of proving that a Protected Document contains
confidential technical information is on said Defendants.
Prior to designating any material as ‘‘Confidential,’’ De-
fendants must make a bona fide determination that the mate-
rial is, in fact, a trade secret or other confidential informa-
tion, the dissemination of which would significantly damage
Defendants’ competitive position. If Plaintiff disagrees with
the ‘‘confidential’’ designation of any document, Plaintiff
will so notify Defendants in writing. Said Defendants will
timely apply to the Court to set a hearing for the purpose of
establishing that said document is confidential. Plaintiff will
consider any document so marked as confidential while said
Defendants seek the Court’s protection on the disputed
documents.
2,
Both the Protected Documents and the information con-
tained therein shall be treated as confidential. Except upon
the prior written consent of said Defendants or upon further
order of this Court, the Protected Documents or information
contained therein may be shown, disseminated, or disclosed
only to the following persons:
(a) Plaintiff's counsel of record int his case, including
other members of counsel’s law firm and any other counsel
associated to assist in the preparation or trial of this case;
60a
(b) Employees of Plaintiff's counsel or of associated
counsel, who assist in the preparation or trial of this case;
(c) Experts and consultants retained by the Plaintiff for
the preparation or trial of this case, provided that no disclo-
sure shall be made to any expert or consultant who is
employed by a competitor of the Defendants; and
(d) The Court, the Court’s staff, witnesses, and the jury in
this case.
4.
Before receiving access to any of the Protected Docu-
ments of the information contained therein, each person
described in Paragraph 3(c) above shall be advised of the
terms of this Order, shall be given a copy of this Order, and
shall agree in writing, in the form attached hereto as Exhibit
‘“A,”’ to be bound by its terms and to suvmit to the jurisdic-
tion of the Court.
5.
Plaintiffs counsel shall be required to return the Protected
Documents after the conclusion of this case.
6.
To the extent that Protected Documents or information
contained therein is used in the taking of depositions, such
documents or information shall remain subject to the provi-
sions of this Order.
5
Any confidential or Protected Document filed with the
Clerk before any trial of this matter shall be filed under seal.
This Protective Order shall not apply to the disclosure of
Protected Documents or the information contained therein at
the time of trial, through the receipt of Protected Documents
into evidence or through the testimony of witnesses. The
un Sec ere
6la
closure of trial proceedings and sealing of the record of a
trial involve considerations not presently before the Court.
These issues may be taken up as a separate matter upon the
motion of any of the parties at the threshold of the trial. The
Protected Documents and information shall remain subject to
the terms of the Protective Order if the material is declared
by the Court to be admissible as evidence at trial.
8.
Affidavits produced by said Defendants (for in-camera
inspection by this Court) in support of a showing of confi-
dentiality or in support of a response to a Motion to Compel
Discovery are found not to constitute a waiver by said
Defendants of its claim of attorney-client and/or work
product privilege as to the underlying documents.
9.
This Order shall be binding upon the parties hereto, upon
their attorneys, and upon the parties’ and their attorneys’
successors, executors, person representatives, administra-
tors, heirs, legal representatives, assignees, subsidiaries,
divisions, employees, agents, independent contractors, or
other persons or organizations over which they have control.
IT IS SO ORDERED this 31 day of July, 1995.
/s/ Julie E. Carnes
Julie Carnes, Judge, United States
District Court, Northern District,
Atlanta Division
62a
**Exhibit A”’
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL ACTION FILE
NO. 1:94-CV-2135-JEC
LINDA DAGI,
Plaintiff
vs.
BAYERISCHE MOTOREN WERKE, A.G.,
BMW OF NORTH AMERICA, INC.
and CHRIS MOTORS CORPORATION,
Defendants
AFFIDAVIT OF
Personally appeared before the undersigning officer, duly
authorized by law to administer oaths, , who,
being duly sworn, deposes and says that the within statements are
true and correct:
l.
I hereby agree that I have read the Protective Order at-
tached hereto and that I understand its terms and meanings.
Z.
I further agree that my signature below submits me to the
jurisdiction of this Court and binds me to the provisions of
this Protective Order.
FURTHER AFFIANT SAYETH NOT.
Sworn to and subscribed before me, this
day of , 1995.
Notary Public
My Commission Expires:
63a
EXHIBIT 11
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL NO. 1:94-cv-2135-JEC
Linda Dagi
Plaintiffs,
VS.
Bayerische Motoren Werke et al
Defendants.
JUDGMENT
This action having come before the court, Honorable Julie
E. Carnes, United States District Judge, for consideration of
defendant Chris Motor Corporation motion for summary
judgment, and the court having granted motion, it is
Ordered and Adjudged that the plaintiff, Linda Dagi, take
nothing, that the action be dismissed, and that the defendant,
Chris Motors Corporation, recover from the plaintiff the
costs of this action.
Dated at Atlanta, Georgia, this 2nd day of November,
1995.
Luther D. Thomas, Clerk
By: /s/ Dail S. Howard
Dail S. Howard
Deputy Clerk
Prepared, Filed, and Entered
in the Clerk’s Office
November 2, 1995
By: /s/ D. Howard
D. Howard
Deputy Clerk
64a
EXHIBIT 12
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL NO. 1:94-CV-2135-JEC
LINDA DAGI
Plaintiff,
V.
BAYERISCHE MOTOREN WERKE, A.G.;
BMW OF NORTH AMERICA, INC.;
and
CHRIS MOTORS CORPORATION,
Defendants.
{stamp—Filed in Chambers, 11/9/95, Luther D. Thomas, Clerk,
By: /s/ L. Bates, Deputy Clerk]
ORDER
This case is presently before the Court on plaintiff Linda
Dagi’s Motion for Order Requiring Substitution of English
Language Documents for German Language Documents
[66].
At 4:00 p.m. on August 28, 1995, defendant Bayerische
Motoren Werke, A.G. (hereinafter ‘BMW AG’’) produced
to plaintiff 741 pages of drawings, specifications, and
documents, 735 of which were written in German. (Aff. of
Thomas Allan Rice at 2.) The following day, counsel for
plaintiff asked counsel for defendant BMW AG whether
there were any English versions of the documents. (/d. at 2-
Me ta
65a
3.) Counsel for defendant’s answer was nonresponsive. (Id.
at 3.) On September 8, 1995, plaintiff therefore filed this
motion requesting that defendants substitute English docu-
ments, if any exist, for the German documents. Defendant’s
response, filed September 19, 1995, denied the existence of
any English versions of these documents, noting further that
plaintiff's vehicle was not manufactured in the United
States. (Def.’s Resp. [70] at 1.) Defendant’s response,
however, failed to attach any affidavits, or other competent
evidence, supporting these assertions.
In her reply, plaintiff argues that this assertion in the brief
has no probative value and cannot be considered as evi-
dence. See Lynch v. Georgia Power Co., 180 Ga. App. 178,
348 S.E. 2d 719 (1986) (holding that brief in support of
motion for summary judgment is not proper evidence upon
which summary judgment can be granted). As defendant’s
assertions are contained solely within its brief and are not
supported by any evidence, the Court will permit defendants
to file a supplemental pleading on this issue. This pleading
should contain the assertion of the lack of English versions
in the proper form, namely an affidavit or declaration.
Accordingly, the Court orders defendant to file this pleading
with the Court within three (3) days of the filing of this
order.
SO ORDERED, this 9 day of November, 1995.
/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE
66a
EXHIBIT 13
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL NO. 1:94-CV-2135-JEC
LINDA DAGI,
Plaintiff,
VS.
BAYERISCHE MOTOREN WERKE, A.G-.;
BMW OF NORTH AMERICA, INC.;
and
CHRIS MOTORS CORPORATION,
Defendants
{stamp—Filed in Chambers, 11/22/95, Luther D. Thomas, Clerk,
By: /s/ L. Bates, Deputy Clerk]
This case is presently before the Court on plaintiff’s
Motion for Order Requiring Substitution of English Lan-
guage Documents for German Language Documents [66].
At 4:00 p.m. on August 28, 1995, defendant BMW AG
produced to plaintiff 741 pages of drawings, specifications,
and documents, 735 of which were written in German. (Aff.
of Thomas Allan Rice at 2.) The following day, counsel for
plaintiff asked counsel for defendant BMW AG whether
there were any English versions of the documents. (Id. at 2-
3.) Counsel for defendant’s answer was nonresponsive. (Id.
at 3.) On September 8, 1995, plaintiff therefore filed this
motion requesting that defendants substitute English
documents, if any exist, for the German documents.
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DEES A AE eas RR SRR ae FAR CR ARES oe ta LEM BR
67a
Defendants response, filed September 19, 1995, denied the
existence of any English versions of these documents, noting
further that plaintiff's vehicle was not manufactured in the
United States. (Def.’s Resp. [70] at 1.) Defendant’s re-
sponse, however, failed to attach any affidavits, or other
competent evidence, supporting these assertions.
On November 9, 1995, the Court ordered defendants to
file a supplemental pleading on this issue [78]. As directed
by the Court’s Order, defendants submitted a supplemental
response to plaintiff's motion [81], which included the affi-
davits of Dr. Jost J. Schmitt and Mr. David Cordero. Mr.
Cordero, an attorney for BMW NA, states in his affidavit
that BMW NA is “‘not in possession of any English
translations of any of the German language documents
produced on August 28, 1995.’ (Aff. of Cordero at 2.) Dr.
Schmitt, an attorney for BMW AG, states that ‘BMW AG
is in possession of English translations of fifteen (15)
documents produced in the original format and language on
August 28, 1995.’’ (Aff. of Schmitt at 1.)
To the extent that BMW AG is in possession of any
English translations of the requested documents which have
not yet been produced to plaintiff, the Court orders
defendant BMW AG to produce the documents to plaintiff
within ten (10) days of the filing of this order.
SO ORDERED, this 22 day of November, 1995.
/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE
68a
EXHIBIT 14
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL NO. 1:94-CV-2135-JEC
LINDA DAGI,
Plaintiff,
Vv.
BAYERISCHE MOTOREN WERKE, A.G.;
BMW OF NORTH AMERICA, INC-.;
and
CHRIS MOTORS CORPORATION,
Defendants
[stamp—Copies served By Courtroom Deputy]
{stamp—Filed in Chambers, 11/30/95, Luther D. Thomas, Clerk,
By: /s/ L. Bates, Deputy Clerk]
ORDER
This case is presently before the Court on plaintiff Linda
Dagi’s (hereinafter ‘‘plaintiff’’) Motion for Leave to Amend
Her Complaint to Conform to the Evidence [65], defendants
Bayerische Motoren Werke, A.G. (hereinafter ‘‘BMW
AG’’) and BMW cf North America, Inc.’s (hereinafter
‘“‘BMW NA’’) Motion for Summary Judgment [61], and
defendants’ Motion to Strike Portions of the Second Affida-
vits of Linda Dagi and T. Forcht Dagi [68]. The Court has
reviewed the record and the arguments of the parties and,
for the reasons set out below, concludes that plaintiff's
MAI EI al ie OE ER OAR SF
Fide Ge ME Oa Bi yef
Se LPR AW RMS eT NS HEE A fr it
69a
Motion for Leave to Amend should be denied, that defend-
ants’ Motion for Summary Judgment should be granted, and
that defendants’ Motion to Strike should be granted in part
and denied in part.
BACKGROUND!
This case was originally filed in the State Court of Fulton
County, Georgia, on March 19, 1993. The case arises out of
an automobile accident in which plaintiff drove her recently
purchased BMW 535i into another motorist. It was raining
at the time of the accident and plaintiff was cited for
following too closely by the police officer who responded to
the scene. Thereafter, plaintiff's insurer settled with the
person plaintiff drove into and plaintiff initiated this lawsuit
on her own behalf.”
Plaintiff asserts claims for property damage arising from
alleged defects in the design and manufacture of her BMW,
as well as claims for alleged common law fraud and
Statutory odometer fraud. Plaintiff asserts no claim for any
personal injury arising from the accident. The pleadings
reveal that the only damage plaintiff suffered as a result of
the accident was damage to her car. Subsequent to the acci-
dent, plaintiff declined to accept payment from her insurer
intended to repair the damage to her car caused by the
accident. The subject car has not been repaired and is being
stored by plaintiff.
' This section is nearly identical to the background section found in the
Court’s Order on defendant Chris Motors’ Motion for Summary Judg-
ment, filed on July 31, 1995.
? Plaintiff's insurer chose not to subrogate any claim plaintiff may
have had against these defendants and pursue it on her behalf.
> Plaintiff does not require the use of the vehicle, as she has use of at
least four other luxury automobiles.
70a
Plaintiff has amended her Complaint on three separate
occasions. On the most recent occasion, plaintiff amended
her Complaint to state a federal odometer fraud claim
against defendant Chris Motors Corporation (hereinafter
‘‘Chris Motors’’) in Count V. Immediately upon the most
recent amendment, defendants removed the case to this
Court on August 12, 1994. The Complaint further alleges
claims for negligent inspection, negligent failure to warn and
negligent maintenance of the vehicle in Count III and
common law fraud with respect to allegedly fraudulent
misrepresentations of the true mileage on the car at the time
of the purchase in Count IV.
The discovery period ended January 12, 1995.
On July 31, 1995, the Court granted defendant Chris
Motors’ Motion for Summary Judgment. The remaining
defendants, BMW AG and BMW NA, moved for summary
judgment on August 16, 1995. On September 8, 1995, plain-
tiff moved the Court to amend her complaint for the fourth
time.
DISCUSSION
I. Motion to Amend Complaint
Plaintiff wishes to amend Count II of her Third Amended
Complaint by replacing her claim for strict liability against
BMW NA with a negligence-based claim for failure to warn
of alleged manufacture and design defects in her automobile.
Plaintiff also wishes to add a new Count VI which alleges
deceit in failing to disclose that her automobile had been
damaged by acid rain and subsequently repainted.
The Federal Rules of Civil Procedure provide that leave
to amend a complaint should be ‘‘freely given when justice
so requires.”” FED. R. CIV. P. 15(a). “‘Courts have inter-
preted [amendment] provisions liberally, in line with the
)
Tla
Federal Rules’ overall goal of resolving disputes, insofar as
possible, on the merits and in a single judicial proceeding.’’
Spartan Grain & Mill Co. v. Ayers, 517 F.2d 214, 220 (Sth
Cir. 1975).4 Leave to amend, however, is ‘‘by no means
automatic.’’ Addington v. Farmer’s Elevator Mut. Ins. Co.,
650 F.2d 663, 666 (Sth Cir. 1981), cert. denied, 454 U.S.
1098 (1981). Instead, the decision to grant or deny the
motion lies within the ‘‘sound discretion of the trial
court.’’ > Jd.
In determining whether the Court should grant leave to
amend, it may consider such factors as (1) undue delay, bad
faith, or dilatory motive on the part of the movant, (2)
repeated failure to cure deficiencies by amendments previ-
ously allowed, (3) undue prejudice to the opposing party by
virtue of allowance of the amendment, and (4) futility of the
* In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit Court of Appeals adopted as bind-
ing precedent all of the decisions of the former Fifth Circuit Court of
Appeals handed down prior to the close of business on September 30,
1981.
> Plaintiff cites Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (Sth
Cir. 1981), for the proposition that the ‘‘policy of Rule 15(a) . . . cir-
cumscribes the exercise of the [Court’s] discretion... .’’ (Pl.’s. Mot. to
Amend [65] at 1). This, however, is an inaccurate presentation of this
case. In Dussouy, the Fifth Circuit criticized the trial court’s failure to
provide any explanation for denying plaintiff's motion to amend, and
stated that in the absence of any such explanation, the reasons for the
denial must be ‘‘readily apparent’’ to withstand challenge. Dussouy, 660
F.2d at 597. See also, Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148,
1153-1154 (Sth Cir. 1981) (holding that district court’s denial of plain-
tiff's motion for leave to file amended complaint without stated reasons
is ‘‘unfortunate but not fatal to affirmance,’’ and record provided ample
grounds for denying motion). Therefore, the policy of Rule 15(a) does
not circumscribe a trial court’s discretion to deny a motion to amend.
Instead, case law interpreting this provision has stated a preference that a
trial court give an adequate explanation in denying a motion to amend.
72a
amendment. Nolin v. Douglas County, 903 F.2d 1546, 1550
(11th Cir. 1990); Foman v. Davis, 371 U.S. 178, 182
(1962). The Eleventh Circuit has determined that evidence
of all four factors need not be shown to deny a motion for
leave to amend a complaint. See Paschal v. Florida Pub.
Employees Relations Comm’n, 666 F.2d 1381, 1384 (11th
Cir. 1982) (holding that evidence of unjustified delay and
prejudice to defense is sufficient to justify lower court’s
ruling, despite lack of evidence of bad faith or dilatory
motive). The Court finds several such reasons that justify
denial of plaintiff’s motion.
First, plaintiff's motion to amend appears to be a dilatory
attempt to unduly delay an already lengthy and tedious
litigation and, thus, appears to be made in bad faith. It is
true that the mere passage of time, in and of itself, would
not be enough to satisfy the requirement of undue delay.
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th
Cir. 1981). Instead, the delay must be shown to be ‘“‘undue’’
to deny amendment. Jd. The Court concludes that the delay
is undue.
This case commenced on March 19, 1993, roughly two-
and-a-half years prior to plaintiff’s filing of this motion.
Since then, plaintiff has amended her complaint no less than
three times. Plaintiff's initial Complaint, filed in the State
Court of Fulton County on March 19, 1993, alleged four
counts against defendants BMW NA and Chris Motors.
Count I of the Complaint stated a claim for strict liability
against BMW NA, alleging manufacture and design defects
in plaintiff's automobile. The Complaint further alleged
claims against Chris Motors for negligent inspection,
negligent failure to warn and negligent maintenance of the
vehicle in Count II and common law fraud in connection
with allegedly fraudulent misrepresentations of the true
mileage on the car at the time of the purchase in Count III.
Count IV averred entitlement to punitive damages against
icine
73a
Chris Motors based on its allegedly fraudulent conduct.
Plaintiff's First Amended Complaint added a third defend-
ant, BMW AG, and asserted against it a claim of strict liabil-
ity. While plaintiff prayed for punitive damages at the
conclusion of her First Amended Complaint, she dropped
Count IV of her initial Complaint.* Plaintiff's Third
Amended Complaint stated a claim for federal odometer
fraud in Count V.
Plaintiff's claim that her motion is an attempt to amend
her complaint ‘‘to conform to the evidence in this case’’ is
untenable. The discovery period concluded nearly one year
ago and plaintiff has been cognizant of the facts which gave
rise to this motion during this time. Still, she has neglected
to amend her complaint until the zero hour of this
proceeding. At best, her conduct demonstrates a lack of
diligence; at worst, it shows bad faith.
Such dilatory conduct also causes the burden to shift to
the movant to prove that the delay was due to excusable
neglect. Chitimacha Tribe of Louisiana v. Harry L. Laws
Co., Inc., 690 F.2d 1157, 1163 (Sth Cir. 1982), reh’g
denied, 697 F.2d 1092 (1983), and cert. denied, 464 U.S.
814 (1983). Here, plaintiff offers no excuse as to her un-
timeliness in filing her motion. Plaintiff merely states that
She desires to amend her complaint to conform to the evi-
dence in the case—evidence that she has been aware of for
over eight months prior to filing this motion.
Furthermore, the timing of plaintiff's fourth motion to
amend appears pretextual as well. Plaintiff's motion asks the
Court to drop her strict liability allegations against defendant
BMW NA and allege negligence-based claims against de-
fendant for failure to warn of alleged defects and/or alleged
® The Court can discern no difference between plaintiff's First Amend-
ed Complaint and Second Amended Complaint.
74a
defective design’ as well as a separate count entitled *‘De-
ceit.’’ Plaintiff chose to file this motion on September 8,
1995, after the Court granted defendant Chris Motors’
motion for summary judgment on July 31, 1995 and the two
remaining defendants followed suit by filing for summary
judgment on August 16, 1995. That plaintiff now seeks to
amend her complaint is rather disingenuous and appears to
be nothing more than a thinly-veiled effort to elude an
adverse summary judgment ruling as to the remaining
defendants. This dilatory maneuvering justifies the Court’s
denial of plaintiff's motion to amend her pleading.
Additionally, allowing an amendment at such an advanced
stage of the case would undermine all notions of judicial
economy and would prejudice defendants. A Court should
not al'~w an amendment when the non-moving party would
be prejudiced in the sense that it would be put to added
expense or subject to the burden of a more complicated or
lengthy trial. Stone Mountain Game Ranch, Inc. v. Hunt,
570 F.Supp. 238, 241 (N.D. Ga. 1983), aff'd, 746 F.2d
761 (11th Cir. 1984). In this case, plaintiff merely seeks to
recast her allegations in a manner that would hopefully keep
her sinking claims afloat for the time being and avoid
summary judgment. Plaintiff does not aver the existence of
any newly-discovered evidence that would provide support
for the new claims sought in the amendment, nor does she
allege circumstances which have prevented her from moving
to amend her complaint until nearly one year after the close
of discovery. See Nolin, 903 F.2d at 1551 (‘‘Requesting an
amendment at such a late stage of the proceedings and in the
absence of unusual circumstances . . . frustrates any attempt
at judicial economy’’).
7 The Court finds it perplexing that plaintiff would even seek leave to
amend its complaint to allege negligence-based claims against defendant
BMW NA. The Court disposed of these same claims against defendant
Chris Motors.
!
i
4
75a
Also, permitting such an amendment would require
defendants to familiarize themselves with an entirely new
area of Georgia law. See Sun Bank, N.A. v. E.F. Hutton &
Co., 926 F.2d 1030 (11th Cir. 1991) (stating that amend-
ment, filed nineteen months after case began and without
any justification, would require party to learn Massachusetts
Statute of Frauds law and Florida’s choice of law rules).
Specifically, plaintiff wishes to add a claim for ‘‘deceit’’
against BMW NA for failing to disclose that plaintiff’s
automobile was damaged by acid rain and subsequently
repainted. Over eight months have passed since the close of
discovery, yet this is the first time plaintiff has raised allega-
tions of acid rain damage to her vehicle. Requiring defend-
ants to respond to a new, substantive claim at such a late
stage in the litigation would be highly prejudicial, thrusting
them into a situation in which they would have to become
suddenly familiar with an entirely new area of the law. The
Court refused to further complicate an already complicated
case by placing defendants in that position.
To the extent that plaintiff has sought amendment merely
to thwart defendants’ well-briefed and persuasive motion,
and in light of plaintiff's failure to aver any unusual circum-
stances which would justify an amendment, plaintiff has not
earned the sympathy of the Court. Indeed, the Court’s
review of relevant case law highlights various instances in
which parties with arguably more sympathetic and compel-
ling claims than the instant plaintiff were denied leave to
amend. In Addington v. Farmer’s Elevatory Mut. Ins. Co.,
650 F.2d 663, 667 (Sth Cir. 1981), the Fifth Circuit held
that the district court did not abuse its discretion when it
refused to approve an amendment filed more than a year
after the case began, after the termination of discovery, and
after defendant’s motion for summary judgment. Jd. As in
the instant case, plaintiff filed the motion to amend prior to
the district court’s ruling on the summary judgment motion.
76a
Id. at 665. The court criticized plaintiff for failing to justify
his delay of more than a year in proffering the amendment,
and stated that defendant would have been prejudiced by the
granting of the motion. Jd. at 667. Similarly, in Paschal v.
Florida Public Employees Relations Commission, 666 F.2d
1381, 1384 (11th Cir. 1982), the fact that the proposed
amendment was filed after the case was more than a year old
and discovery had ended, and plaintiff offered no excuse for
the delay, weighed against the movant. Jd. In Local 472, v.
Georgia Power Co., 684 F.2d 721, 724 (11th Cir. 1982),
plaintiff's motion to amend was filed two years after the
action began, after completion of discovery, and after
defendants had filed summary judgment motions but before
the district court’s ruling on those motions. The Eleventh
Circuit upheld the lower court’s denial of plaintiff’s motion.
Id.
Here, plaintiff filed her fourth motion to amend over two-
and-a-half years after the action began, nearly one year after
the close of discovery, and only after defendants had filed
for summary judgment. Additionally, she failed to offer any
excuse as to why the delay occurred. The Court finds that
plaintiff sought leave to amend with dilatory motive to
unduly delay the proceeding. Furthermore, allowing her to
amend her complaint at this late stage would only serve to
prejudice defendants. Accordingly, the Court denies plain-
tiff’s motion for leave to amend her complaint.
II. Motion for Summary Judgment
In her Complaint, plaintiff alleges that defendant BMW
AG should be held strictly liable for damages sustained to
her vehicle due to the vehicle’s various alleged manufactur-
ing and design defects and that defendant BMW NA should
be held strictly liable for failing to warn plaintiff of the
vehicle’s defective and dangerous condition which directly
eran
|
|
77a
and proximately caused her accident.* Plaintiff further al-
leges that BMW AG defectively designed the vehicle’s
odometer which has also caused her damage. In its Motion
for Summary Judgment, defendants argue that plaintiff has
failed to adduce any direct evidence that the automobile was
in fact defective. Moreover, they claim that, in light of their
direct expert evidence of the nonexistence of any defects and
plaintiff's failure to produce any expert testimony in rebut-
tal, summary judgment in favor of defendants is required.
Defendants further argue that BMW NA is not a manufac-
turer and therefore may not be held strictly liable for
damages occasioned as a result of any alleged defects.
A. The Summary Judgment Standard
Summary judgment is not properly viewed as a device that
the trial court may, in its discretion, implement in lieu of a
trial on the merits. Instead, Rule 56 of the Federal Rules of
Civil Procedure mandates the entry of summary judgment
against a party who fails to make a showing sufficient to
establish the existence of every element essential to that
party’s case on which that party will bear the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In such a situation, there can be no genuine issue as
to any material fact, as a complete failure of proof concern-
ing an essential element of the non-moving party’s case
necessarily renders all other facts immaterial. Jd. at 322-23.
® Plaintiff's claim against’ BMW NA appears to seek recovery solely
for the damage to her vehicle stemming from defendant’s failure to warn
plaintiff of the automobile’s defective condition. (P1.’s Compl. at 8.) Her
responsive brief, however, appears to assert a claim against BMW NA
for failure to warn plaintiff of the defective design of the vehicle’s
odometer. (Pl.’s Resp. to Mot. for Summ. J. [64] at 22-23.) The Court
is unclear how her vehicle’s odometer directly and proximately caused
plaintiff's accident. Nevertheless, as the Court finds, infra, that there is
no evidence of the odometer’s defective design, this issue is moot.
78a
The movant bears the initial responsibility of asserting the
basis for his motion. Id. at 323; Apcoa, Inc. v. Fidelity Nat’l
Bank, 906 F.2d 610, 611 (11th Cir. 1990). However, the
movant is not required to negate his opponent’s claim. The
movant may discharge his burden by merely ‘‘ ‘showing’ —
that is, pointing out to the district court — that there is an
absence of evidence to support the non-moving party’s
case.’’ Celotex, 477 1J.S. at 325. After the movant has
carried his burden, the non-moving party is then required to
‘‘go beyond the pleadings’’ and present competent evidence?
designating ‘‘ ‘specific facts showing that there is a genuine
issue for irial.”’’ Jd. at 324 (quoting FED. R. CIV. P.
56(e)). While the court is to view all evidence and factual
inferences in a light most favorable to the non-moving party,
Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.
1988), ‘‘the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported moticn for summary judgment; the requirement is
that there be no genuine issue of material fact.’’ Anderson. v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A fact is material when it is identified as such by the
controlling substantive law. Jd. at 248. An issue is genuine
when the evidence is such that a reasonable jury could return
a verdict for the nonmovant. Jd. at 249-50. The nonmovant
“must do more than simply show that there is some meta-
physical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘ genuine issue
for trial.’ ’’ Matsushita Electric Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). An
issue is not genuine if it is unsupported by evidence, or if it
® The non-moving party may meet its burden through affidavit and
deposition testimony, answers to interrogatories, and the like. Celotex,
477 U.S. at 324.
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79a
is created by evidence that is ‘‘merely colorable’’ or is ‘‘not
significantly probative.’’ Anderson, 477 U.S. at 249-50.
Thus, to survive a motion for summary judgment, the non-
moving party must come forward with specific evidence of
every element material to that party’s case so as to create a
genuine issue for trial.
B. Lack of Direct Evidence of Manufacturing Defects
Plaintiff’s strict liability claims are based in large part on
her belief that various defects in her automobile caused her
damages, and that defendant BMW NA failed to warn
plaintiff of the defects. Defendants assert however, and the
record confirms, that throughout the roughly two-and-a-half
years of litigating this action, plaintiff has failed to adduce
any competent evidence of any defect in the manufacture of
her vehicle. In a product liability action involving strict
liability claims, it is essential that plaintiff prove the product
was ‘‘not merchantable and reasonably suited to the use
intended.’’ OCGA § 51-1-11(b)(1). This means that plaintiff
must show that the manufacturer’s product was defective
when sold to plaintiff. Center Chemical Co. v. Parzini, 234
Ga. 868, 869, 218 S.E. 2d 580 (1975). In a strict liability
claim, the existence of a defect is ‘‘crucial,’’ as a
manufacturer is not an insurer against all risks associated
with the product. Giordano v. Ford Motor Co., 165 Ga.
App. 644, 299 S.E.2d 897 (1983). Plaintiff has failed to
carry this burden.
Although plaintiff's Complaint makes no reference to any
specific defects which ultimately caused damage to her
vehicle, she now argues that there are three such defects.
Plaintiff alleges defects with respect to the brakes, the throt-
tle housing unit and the floormats in the car at issue.'°
10 Defendants have moved to ‘‘strike’’ portions of plaintiff's second
affidavit. Defendants essentially object to the admissibility of portions of
80a
Defendants assert that plaintiff has failed to adduce any
evidence in support of her claims of dangerous defects in her
car. Upon complete review of the record, the arguments of
the parties, and the relevant and abundant case law, the
Court finds that plaintiff has failed to create any issue of fact
with respect to the existence of any defect in this car.
First, with respect to plaintiff's claims about defects in the
brakes, plaintiff does not support her claim with evidence.
Plaintiff admits that neither she nor her husband experienced
brake problems with this vehicle prior to the collision. (Dagi
depo. at 44, 47.) Following the accident, the car was exam-
ined by two persons highly familiar with the subject model:
Jim Blair who is a BMW Regional Technical Specialist with
twenty-two years of automotive training and experience and
Stanley Zangel who was the service department manager at
Chris Motors. (Blair depo. at 39-42, 106.) Mr. Blair exam-
ined plaintiff’s car in July of 1992 and Mr. Zangel examined
plaintiff's car in August of 1993. Neither inspection ren-
dered any indication of any defect with respect to the vehi-
her testimony. Specifically, defendants object to plaintiff's testimony to
the extent she states that she was unable to stop her car ‘‘because of
defects in the mechanical system of said vehicle.’’ (Dagi Aff. at { 10.)
To the extent plaintiff's testimony addresses details of the accident
within her own personal knowledge, defendants’ motion is denied. For
example, plaintiff was aware of the road’s wet surface as well as her
inability to stop her vehicle on the wet road. Accordingly, her testimony
as to such details is proper. To the extent plaintiff's testimony is based
on matters which are beyond the realm of her experience and requires
special skill and knowledge, however, defendants’ objection is sustained.
The Court will therefore disregard plaintiff's opinion as to whether the
vehicle was ‘‘defective’’ as she introduced no concrete facts to substanti-
ate her knowledge or familiarity with her vehicle’s mechanical system.
See, e.g. Randoiph v. Collectramatic, Inc., 590 F.2d 844, 848 (10th
Cir. 1979) (holding that lower court properly excluded plaintiff's testi-
mony that in plaintiff's opinion pressure cooker was defectively de-
signed).
Lint Soe ete 6 a CNE A-WRSTaaOM
iii cri ees
8la
cle’s braking system. In fact, Blair’s inspection indicated
that the vehicle performed up to specifications, even in its
State of disrepair. (Blair depo. at 51-53.) Plaintiff’s uncor-
roborated belief that the brakes did not work properly, thus
causing her accident, simply does not create a dispute of
material fact with respect to any defect in her car’s braking
system. See Blackston v. Shook & Fletcher Insulation Co.,
764 F.2d 1480, 1482 (11th Cir. 1986).!!
Likewise, plaintiff's claims of a defect in the throttle
housing unit are unsupported by evidence. In her responsive
brief, plaintiff asserts that her car was the subject of a recall
notice for problems in the throttle housing unit and that she
was not notified of this recall. Plaintiff refers the Court to
the deposition of Ed Wager, Chris Motors’ shop foreman, in
support of this allegation. (Pl.’s Resp. to Mot. for Summ. J.
[64] at 17.) Contrary to plaintiff's assertions, the cited
testimony does not support her allegation. In his deposition,
Wagner testified that one or possibly two other models of
199] BMW’s were recalled for problems with the throttle
housing unit but expressly testified that her car was not one
of the models recalled.'? Accordingly, there is no evidence
indicating any defect in the car’s throttle housing unit.
With respect to the floormats, plaintiff directs the Court’s
attention to testimony by James Blair which indicates that
the floormats in her car were not BMW-supplied acces-
sories. (Blair Dep. at 58) In his testimony, Blair indicates
that BMW floormats would have anchoring eyelets to secure
'! **All reasonable inferences arising from the undisputed facts should
be made in favor of the nonmovant, but an inference based on specula-
tion and conjecture is not reasonable.’’ Blackston, 764 F.2d at 1482
(citations omitted).
'2 Plaintiff inaccurately recites the facts when she states that Ed
Wagner testified ‘‘that there was a recall for the throttle housing unit on
82a
the mats to the floor, thus, preventing them from shifting
around due to movement of a driver’s feet. (/d.) Blair indi-
cates that the floormats in plaintiff's car lack these anchoring
eyelets and then opines that such a lack of anchoring eyelets
could result in the floormats shifting around such that the
driver's floormat might impede the proper operation of the
accelerator, brake and/or clutch pedals. (/d. at 60.) Blair
further testifies, however, that he does not know what posi-
tion the driver’s floor mat was in at the time of the accident.
(Id. at 55.)
Interestingly, plaintiff does not direct the Court’s attention
to any of plaintiff's testimony indicating that the floormats
had any connection to the subject accident. Instead, plaintiff
directs the Court’s attention to Blair’s testimony regarding
the floormats and then asserts that an issue of fact exists with
respect to a ‘‘defect’’ in plaintiff’s car because the floormats
were not BMW-approved floormats. (P1.’s Resp. to Mot. for
Summ. J. at 17.) Significantly, plaintiff offers no expert
testimony or precedent supporting her theory that floormats
without anchoring eyelets are ‘‘defective’’ or evidence link-
ing the floormats to the subject accident.
the 1991 BMW 535i model which involved a bushing that was too tight
and would not let the throttle return all the way and Causing it to take
longer for the vehicle to stop... . *’ (Pl.’s Resp. to Mot. for Summ. J.
at 19.) The exact testimony is as follows:
Q Now, on these model vehicles, have you been aware of any kind
of recall or campaign involving the throttle housing unit?
A This is a 535, °91 535. I don’t believe there has [sic] been recalls
on the *91 535 throttle housing.
Q Now, has there been a recall on the throttle housing unit of simi-
lar designed or other models of the "91 BMWs?
A I believe there has been one on the 525. There has [sic] been on
the 91 318s for different reasons.
(Wagner Dep. at 38.)
Lhe vale) UREL de
83a
Plaintiff's failure to proffer any evidence of manufacture
defects in her vehicle is reminiscent of the factual setting
present in Collins v. Byrd, 204 Ga. App. 893, 420 S.E.2d
785 (1992). In Collins, plaintiff claimed that defendant
General Motors had been negligent in the design and manu-
facture of one of its vehicles and she challenged the lower
court’s grant of summary judgment for defendant. Jd. at
894. The George Court of Appeals affirmed the trial court
and held that plaintiff's failure to provide any evidence of
defect in design, manufacture, or operation during three
years’ of litigation authorized the lower court to conclude
that defendant had not negligently manufactured or designed
plaintiff's vehicle, and that no material issue of fact re-
mained to be tried. /d. Similarly, throughout the roughly
two-and-a-half years of this proceeding, plaintiff has failed
to offer any evidence of her vehicle’s defective condition.
Additionally, this situation is analogous to the one
presented in Michelin Tire Corp. v. Irving, 185 Ga. App.
783, 366 S.E.2d 156 (1988). In Irving, plaintiff sued de-
fendant tire manufacturer alleging strict liability for
defective manufacture after plaintiff's vehicle rear-ended an
eighteen-wheeled truck. Plaintiff offered only circumstantial
evidence in the form of his own testimony to support his
claim. Plaintiff alleged that immediately preceding the
accident he heard a loud noise which, in his experience,
sounded like a tire blowout. In support of its summary
judgment motion, defendant offered deposition testimony
from the driver of the other vehicle, who had rescued plain-
tiff from his burning vehicle. He testified that the tire in
question was inflated at the time of the rescue, and that it
exploded only as a result of the fire. Jd. at 784. The Irving
court noted that if the witness’ testimony had solely ad-
dressed the explosive noises, a jury issue would exist as to
when the blowout occurred. Jd. Instead, his testimony
84a
provided direct evidence that the tire was intact after the
collision. Jd. The court stated:
Where direct and positive testimony is presented on an
issue, the opposing party must show some other fact
which contradicts the testimony. ‘‘[I]f this other fact is
direct evidence, that is sufficient to allow the case to go
to the jury; if the other fact is circumstantial evidence,
it must be inconsistent with the defendant’s evidence, or
if consistent, it must demand a finding of fact on the
issue in favor of the plaintiff.’’
Id. (citations omitted). Accordingly, the court held that
summary judgment should have been granted to defendant as
plaintiff's circumstantial evidence simply created an ‘‘incon-
clusive inference’’ which failed to overcome the witness’
direct testimony. /rving, 185 Ga. App. at 784. The court
further concluded that plaintiff's circumstantial evidence was
not inconsistent with the witness’ direct testimony because a
loud noise could have resulted from something other than
the tire. Jd. at 785.
Similarly, plaintiff relies exclusively on her own
circumstantial evidence to support her claim, yet fails to
proffer any direct evidence that her vehicle was defective.
As in Irving, plaintiff's thin circumstantial evidence merely
Creates an inconclusive inference, and does not create a
material issue of fact to be tried. Furthermore, her testimony
is not inconsistent with defendants’ compelling direct expert
testimony which proves that plaintiff’s vehicle was not, and
is not, defective. Indeed, it is entirely possible, and quite
likely, that plaintiff's accident was nothing more than a
simple collision on a rain-slicked road.'3 It is further
'® Interestingly, plaintiff's response to defendants’ summary judgment
motion asserts that the collision occurred after her vehicle ‘‘slid’’ into
the vehicle in front of her. (PI.’s Resp. to Mot. for Summ. J. [64] at 16.)
:
4
3
85a
possible that plaintiff was driving too fast and/or too close
under the wet driving conditions.'* In this light, plaintiff's
testimony does not illuminate any defects in her vehicle but,
rather, explains why her accident occurred.
Additionally, plaintiff has failed to describe the purported
defects with any reasonable precision. Her difficulty in
describing the defects upon which her cause of action is
based is reminiscent of Humphreys v. General Motors
Corp., 839 F.Supp. 822 (N.D.Fla. 1993), aff'd without op.,
47 F.3d 430 (11th Cir. 1995). In Humphreys, plaintiffs
waited until nearly the end of the discovery period before
even hinting at the nature of the alleged product defect,
namely the failure of the vehicle’s driver seat back locking
device, and offered no direct evidence to substantiate their
claim. Jd. at 826. Instead, plaintiffs relied on their testimony
to establish a defect, yet presented no expert evidence that
the seat back was defective. Jd.
In granting defendant’s motion for summary judgment,
the Humphreys court noted that this was not a case where
the vehicle’s alleged defect was patent. Jd. Rather, it found
that evaluating the sophisticated relationship between the
dynamics of the accident and the vehicle’s mechanical
function ‘‘is beyond the capacity of lay persons and requires
expert testimony.’’ Jd. at 827. See also Brooks v. Colonial
Chevrolet-Buick, 579 So.2d 1328, 1333 (Ala. 1991)
(concluding that plaintiffs’ own testimony as to alleged
defectiveness of brakes was mere speculation, and jury could
not understand complexities of vehicle’s brake system
without assistance of expert testimony). As in Humphreys,
plaintiff relies entirely on her own recollection of the acci-
dent and has failed to present any expert’s affidavit to
bolster her claim of product defect. In the absence of such a
'* Plaintiff was cited for following too closely by the police officer
who responded to the scene.
86a
Showing, defendant’s extensive evidence that plaintiff’s
vehicle was not defective remains unrefuted. Accordingly,
the Court finds that summary judgment is appropriate.
Plaintiff's claim against BMW NA for its failure to
disclose or warn plaintiff of the automobile’s various defects
is also devoid of evidence. In failure to warn cases, the duty
to warn arises whenever the manufacturer knows or reasona-
bly should know of the danger associated with the use of its
product. Talley v. City Tank Corp., 158 Ga. App. 130, 137,
279 S.E.2d 264 (1981). As stated above, plaintiff has failed
to adduce any evidence that her automobile was defective or
dangerous either before or after her accident. Thus, BMW
NA had no duty to warn since there was no danger associat-
ed with the use of the vehicle. Accordingly, the Court grants
defendants’ motion on plaintiff's failure to warn claim
against BMW NA.!5
C. Lack of Evidence of Design Defect
Plaintiff further alleges that her vehicle’s odometer was
defectively designed,'® and that said defect caused her
'S Plaintiff's response brief asserts that there are genuine issues to be
tried as to whether BMW AG is strictly liable for failing to warn plain-
tiff about defects in the brakes, throttle housing unit, and floor mats.
(Pl.’s Resp. to Mot. for Summ. J. at 19.) Similarly, she attempts to
assert a new claim against BMW AG for failure to warn plaintiff about
design defects in the odometer. (/d. at 22.) Had these issues been proper-
ly asserted in her Complaint, they would have failed for the reasons
stated in Part II of the Court’s Order. As this is the first instance that
plaintiff has raised these issues vefore the Court, however, the Court
declines to rule on these matters.
‘© Defendants object to portions of plaintiff's second affidavit, as well
as portions of her husband’s second affidavit, which opine that the
odometer was “‘defective’’ as it could be easily disabled. (Dagi Aff. at
{{ 15, 16; T. Dagi Aff. at pars. 14, 15.) For the reasons stated in note
9, the Court sustains defendants’ objection to the extent the testimony
refers to the odometer as ‘‘defective.”’
ivletcel
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87a
damages.'? Unlike her manufacturing defect claims, in
which it is assumed that the vehicle’s design is safe and
damages stem from defendant’s failure to manufacture the
product in accordance with the design, her design defect
claim questions defendant BMW AG’s design of its entire
product line of automobiles. Banks v. IC] Ams., 264 Ga.
732, 733-34, 450 S.E.2d 671 (1994). Thus, a design defect
cannot be detected merely by comparing the item to a prop-
erly designed one from the same product line, as is the case
with a manufacturing defect. Jd. Accordingly, plaintiff’s
design defect claim requires a separate analysis from her
manufacturing defect claims. Jd.
The Georgia Supreme Court recently adopted the risk-
utility analysis in deciding design defect cases. Jd. at 735.
This analysis balances the risks inherent in a product design
against the product’s utility. Jd. In assessing a product’s
design’s utility, the primary factor to be considered is the
feasibility of safer and more efficacious alternative designs
which would have mitigated the product’s foreseeable risks
of harm and reduced defendant’s justification for using the
challenged design. Banks, 264 Ga. at 735-36.'8
17 Defendants object to the admissibility of the plaintiff's and her
husband’s testimony to the extent they offer their opinions as to the value
of plaintiff's automobile. (See Dagi Aff. at ¢ 17; T. Dagi Aff. at ¢ 16.)
Plaintiff and her husband state these opinions as lay witnesses, not ex-
perts. Lay witnesses may give opinion testimony as to the value of motor
vehicles and other personal property. Meredith v. Hardy, 554 F.2d 764,
765 (Sth Cir. 1977). Therefore, plaintiff's and her husband’s testimony
as to the value of plaintiff's automobile is permissible, and defendants’
motion to strike is denied in part.
18 The Banks court stated that the following nonexhaustive list of
factors may be helpful in determining whether a manufacturer’s decision-
making process was reasonable:
{T]he usefulness of the product; the gravity and severity of the
danger posed by the design; the likelihood of that danger; the
avoidability of the danger, ie., the user’s knowledge of the product,
88a
Here, plaintiff claims that the vehicle’s odometer was
defectively designed as it could be disabled merely by pull-
ing the fuse which controls the instrument cluster, thereby
allowing it to be driven without recording any mileage.!9
Her reliance on evidence indicating the ability of a dealer to
disable the odometer is misplaced. Such evidence would
exist with respect to any automobile sold by any dealer.?°
She provides no evidence, however, that defendant BMW
AG could have or should have employed a more feasible
alternative design. In essence, plaintiff asks the Court to find
that her vehicle is per se defective solely because defendant
could have manipulated or tampered with it prior to its
delivery to her. The Court refuses to apply such a broad
reading of Georgia law.?!
publicity surrounding the danger, or the efficacy of warnings, as
well as common knowledge and the expectation of danger; the
user’s ability to avoid danger; the state of the art at the time the
product is manufactured; the ability to eliminate danger without
impairing the usefulness of the product or making it too expensive;
and the feasibility of spreading the loss in the setting of the
product’s price or by purchasing insurance.
Banks, 264 Ga. at 736-37 n.6.
'9 The odometer in plaintiff's car is electronic, rather than mechanical.
Thus, the odometer display is blank when power is not supplied to the
instrument cluster, as the same fuse that powers the odometer also
powers all the other instruments in the dash of the car.
7° Indeed, plaintiff could disable the odometer as easily as the dealer.
*! Nor does the Court find that plaintiff suffered any discernible injury
related to the alleged defect. Plaintiff claims that, had she been aware
that the vehicle’s odometer could be disabled so easily, she would never
have purchased the car in the first place. (Pl.’s Resp. to Mot. for Summ.
J. [64] at 3-4.) Additionally, she claims that the alleged defective design
diminished the vehicle’s value as the mileage on the vehicle was greater
than it appeared. Nevertheless, plaintiff is unable to direct the Court’s
attention to any evidence that defendants ever tampered with her vehi-
cle’s odometer. Indeed, the Court has already granted summary judgment
89a
D. BMW NA Not a Manufacturer
The Court also grants summary judgment for BMW NA
on the alternative ground that it is not a manufacturer, and
therefore not liable under a theory of strict liability in tort.
The Georgia Code clearly states that ‘‘[f]or purposes of a
product liability action based in whole or in part on the
doctrine of strict liability in tort, a product seller is not a
manufacturer as provided in Code Section 51-1-11 and is not
liable as such.”” OCGA 51-1-11.1(b). Subsection (a) defines
a ‘‘product seller’’ as ‘‘a person who, in the course of a
business conducted for the purpose leases or seils and dis-
tributes . . . or is otherwise involved in placing a product in
the stream of commerce.’” OCGA 51-1-11.1(a). This rule
has been generally accepted and widely applied by the
courts. See Hatcher v. Allied Products Corp., 796 F.2d
1427, 1428 (11th Cir. 1986) (holding that district court
properly rejected plaintiff's strict liability claim again de-
fendant distributor as Georgia law imposes strict liability
upon manufacturers only); Freeman v. United Cities Pro-
pane Gas, Inc., 807 F.Supp. 1533, 1539 (M.D.Ga. 1992)
(reading OCGA 51-1-11.1 as legislative attempt to limit
strict liability to those entities having active role in the
production, design, or assembly of products); Hester v.
Human, 211 Ga. App. 351, 353, 439 S.E.2d 50 (1993)
(holding that defendant was merely retailer who sold the
equipment involved in the same condition in which he re-
in favor of Chris Motors on plaintiff's odometer fraud claim. The Court
concluded that plaintiff failed to adduce any direct or probative circum-
stantial evidence supporting her claim that Chris Motors tampered with
her odometer. Similarly, plaintiff offers no evidence that either of the
remaining defendants manipulated the vehicle’s odometer.
90a
ceived it and is not strictly liable), cert. denied, No.
A93A1000, 1994 LEXIS 365 (Ga. Feb. 3, 1994). Here,
there is no dispute that BMW NA is merely a distributor. 2?
Furthermore, there is no evidence in the record that BMW
NA is at all involved in the production, design, or assembly
of BMW automobiles. Thus, the Court grants summary
judgment to BMW NA on this alternative ground.
CONCLUSION
For the foregoing reasons, plaintiff's Motion for Leave to
Amend Her Complaint to Conform to the Evidence [65] is
DENIED, defendants’ Motion for Summary Judgment [61]
is GRANTED, and defendants’ Motion to Strike Portions of
the Second Affidavits of Linda Dagi and T. Forcht Dagi
[68] is GRANTED in part and DENIED in part.
SO ORDERED, this 30 day of November, 1995.
/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE
*? Plaintiff's responsive brief, for example, repeatedly and admittedly
refers to BMW NA as the product’s ‘‘exclusive importer/distributor’’
and that it placed plaintiff's vehicle in ‘‘the stream of commerce.’’ (Pl’s
Resp. to Mot. for Summ. J. [64] at 20, 22-23). Plaintiff seeks to avoid
this flaw in her strict liability claims against defendant BMW NA by
responding to defendants’ motion for summary judgment as if she had
asserted negligence-based claims instead. As decided earlier, however,
the Court has denied plaintiff's motion to amend her complaint to assert
negligence-based claims against BMW NA.
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EXHIBIT 15
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CIVIL NO. 1:94-cv-2135-JEC
Linda Dagi
Plaintiffs,
VS.
Bayerische Motoren Werke, A.G., et. al.,
Defendants.
JUDGMENT
This action having come before the court, Honorable Julie
E. Carnes, United States District Judge, for consideration of
defendants motion for summary judgment, and the court
having granted motion, it is
Ordered and Adjudged that the plaintiff, Linda Dagi, take
nothing, that the action be dismissed, and that the defendants
Bayerische Motoren Werke, A.G., BMW of North America,
Inc., recover from the plaintiff the costs of this action.
Dated at Atlanta, Georgia, this Ist day of December,
1995.
Luther D. Thomas, Clerk
By: /s/ Dail S. Howard
Dail S. Howard
Deputy Clerk
Prepared, Filed, and Entered
in the Clerk’s Office
December 1, 1995
By: /s/ D. Howard
D. Howard
Deputy Clerk
92a
EXHIBIT 16
IN THE STATE COURT OF FULTON COUNTY
STATE OF GEORGIA
CIVIL ACTION
FILE NO.
JURY TRIAL DEMANDED
LINDA DAGI,
Plaintiff,
VS.
BMW OF NORTH AMERICA, INC.
and CHRIS MOTORS CORPORATION,
Defendants.
State Court of Fulten County, Georgia]
COMPLAINT FOR DAMAGES
COMES NOW Linda Dagi Plaintiff in the above-styled
action and hereby brings this her Complaint for Damages by
showing the Court as follows:
PARTIES
1.
Plaintiff Linda Dagi (hereinafter referred to as ‘*Dagi’’) is
and at all times material to this action, was a resident of the
State of Georgia.
-
Defendant BMW of North America, Inc., (hereinafter
referred to as ‘‘BMW’’) is a foreign corporation engaged in
the business of manufacturing motor vehicles.
93a
3.
At all times relevant hereto, Defendant BMW transacted
business in the State of Georgia.
4
Defendant BMW may be served through its registered
agent, to-wit: C. T. Corporation System, 1201 Peachtree
Street, N.E., Atlanta, Fulton County, Georgia 10361.
3
Defendant BMW is subject to both the jurisdiction and
venue of this Court.
6.
Defendant Chris Motors Corporation (hereinafter referred
to as “Chris Motors’’) is a Georgia Corporation engaged in
the business of the retail sale of BMW and other motor
vehicle products.
*
At all times material hereto, Defendant Chris Motors
transacted business in the State of Georgia.
8
Defendant Chris Motors may be served through its
registered agent, to-wit: Neal Christman, 1606 Church
Street, Decatur, DeKalb County, Georgia 30030.
9.
Defendant Chris Motors is subject to both the jurisdiction
and venue of this Court.
FACTUAL ALLEGATIONS
10.
On or about May 13, 1992, at approximately 9:05 a.m.,
Plaintiff was operating a 1991 BMW 535i model automobile
in a southerly direction on Briarcliff Road, at or near its
intersection with Sheffield Drive, in the City of Atlanta,
DeKalb County, Georgia.
94a
11.
At said time and place, James Scott (hereinafter referred
to as ‘‘Scott’’) was operating a 1984 Dodge Ram 350 vehi-
cle, also in a southerly direction on Briarcliff Road, in the
City of Atlanta, DeKalb County, Georgia.
12.
At said time and place, Plaintiff Dagi was traveling at a
safe and reasonable distance behind Scott’s vehicle.
13.
At said time and place, Scott was stopped at the
intersection of Briarcliff and Sheffield Drive, attempting to
make a left hand turn onto Sheffield Drive, when Plaintiff
attempted to safely brake her BMW automobile with
sufficient distance between her vehicle and Scott’s vehicle to
allow her to stop, under the speed and conditions existing at
the time, but her vehicle would not decelerate or stop be-
cause of defects in the mechanical system in said vehicle,
causing her vehicle to violently collide into the rear of
Scott’s vehicle.
14.
As a direct and proximate result of said collision, caused
by the mechanical defects in Plaintiff's BMW automobile,
Plaintiff's BMW sustained extensive damage.
5.
On or about April 2, 1992, Plaintiff purchased said 1991
BMW automobile from Defendant Chris Motors.
16.
Defendant Chris Motors represented, attested and certified
to Plaintiff via an Odometer Disclosure Statement that there
were only 5,391 miles driven on the subject BMW 535i
automobile at the time she purchased said vehicle.
17.
The Odometer Disclosure Statement certifying that there
were only 5,391 miles on said BMW 535i automobile was
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95a
signed and executed by E. W. Sweeney, III, the Sales
Manager for Defendant Chris Motors.
18.
The VIN number for the subject BMW 535i automobile is
WBAHD1315MBF11537.
19.
The purchase price for the subject BMW 535i automobile
was approximately $38,022.14.
20.
From the time that Plaintiff purchased the subject BMW
535i automobile until the time of the subject May 13, 1992
incident, Plaintiff did not in any way change, alter or
modify the subject BMW automobile.
COUNT I
STRICT LIABILITY
(BMW)
21.
The allegations in Paragraphs 1 - 20 of Plaintiff's
Complaint are hereby incorporated by reference and made a
part hereof, as if each such allegation was fully set forth
herein.
22.
The subject BMW 535i automobile purchased by Plaintiff
from Defendant Chris Motors was originally designed and
manufactured by Defendant BMW in a defective condition
unreasonably dangerous to the users and consumers of same,
which included Plaintiff Dagi.
23.
The subject BMW 535i automobile was defective and
unreasonably dangerous at the time it was placed into the
Stream of commerce by Defendant BMW and sold to the
Plaintiff and said BMW automobile was not changed, altered
96a
or modified in any way by Plaintiff at the time of the subject
May 13, 1992 incident.
24.
The subject BMW 535i automobile was defective and
unreasonably dangerous at the time of the subject May 13,
1992 incident.
25.
As a direct and proximate result of the defectively
designed and unreasonably dangerous condition of the
subject BMW 535i automobile, Plaintiff was involved in
said collision causing her vehicle to sustain extensive
damage.
26.
By reason of the foregoing, Plaintiff Dagi is entitled to
recover from Defendant BMW damages in such an amount
as may be shown by the evidence and determined by the jury
in their enlightened conscience.
COUNT Il
NEGLIGENCE
(CHRIS MOTORS)
27.
The allegations in Paragraphs 1 - 26 of Plaintiff's
Complaint are hereby incorporated by reference and made a
part hereof, as if each such allegation was fully set forth
herein.
28.
Defendant Chris Motors sells BMW products, and
specifically, 535i model automobiles throughout the State of
Georgia and holds out to the public that said automobiles it
Sells are safe, are of merchantable quality and are fit for the
use and purposes intended.
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aero esha w leis Nk Bash dill. ae RRA
97a
29.
Defendant Chris Motors’ negligence, which constituted
the direct and proximate cause of the subject incident de-
scribed hereinabove, resulting in the damages ciaimed by
Plaintiff, consisted of, among other things:
a) Failing to exercise reasonable care in the inspection and
testing of said BMW 535i automobile for mechanical de-
fects;
b) Distributing and selling said BMW 535i vehicle to the
public, knowing or should have knowing that said
automobile was not reasonably and adequately safe for usage
by the public on the roads and highways;
c) Failing to warn purchasers of said automobile, and
specifically, Plaintiff Dagi of the automobile’s dangerous
condition and failing to warn Plaintiff Dagi that said
automobile was not reasonably and adequately safe for usage
by the public on the roads and highways; and
d) Failing to exercise reasonable care in the maintenance
of said BMW 535i automobile.
30.
As a direct and proximate result of Defendant Chris
Motors’ negligence, Plaintiff was involved in said collision
causing her vehicle to sustain extensive damage.
31.
By reason of the foregoing, Plaintiff Dagi is entitled to
recover from Defendant Chris Motors damages in such an
amount as may be shown by the evidence and determined by
the jury in their enlightened conscience.
COUNT Ill
FRAUD
(CHRIS MOTORS)
32.
The allegations in Paragraphs 1 - 31 of Plaintiff's
Complaint are hereby incorporated by reference and made a
98a
part hereof, as if each such allegation was fully set forth
herein.
=
Defendant Chris Motors represented and certified to
Plaintiff Dagi that the subject BMW 535i automobile had
been driven only 5,391 miles via an Odometer Disclosure
Statement.
34.
At the time in which Defendant Chris Motors represented
and certified to Plaintiff Dagi that the subject BMW 535i
automobile had only 5,391 miles through said Odometer
Disclosure Statement, Defendant Chris Motors knew that
such representation to Plaintiff Dagi as to the mileage of said
vehicle was false.
35.
Defendant Chris Motors made such _ representation
regarding the mileage of said BMW 535i vehicle with the
intention and purpose of deceiving Plaintiff Dagi.
36.
Plaintiff Dagi reasonably relied upon Defendant Chris
Motors’ representation and certification as to the mileage of
the subject BMW 535i automobile.
af.
As a result of Defendant Chris Motors fraudulent repre-
sentation with respect to the mileage of the subject BMW
535i automobile, Plaintiff Dagi sustained damages.
38.
By reason of the foregoing, Plaintiff Dagi is entitled to
recover from Defendant Chris Motors damages in such an
amount as may be shown by the evidence and determined by
the jury in their enlightened conscience.
99a
COUNT IV
PUNITIVE DAMAGES
(CHRIS MOTORS)
».
The allegations in Paragraphs 1 - 38 of Plaintiff's
Complaint are hereby incorporated by reference and made a
part hereof, as if each such allegation was fully set forth
herein.
40.
Defendant Chris Motors’ actions and conduct in knowling-
ly misrepresenting the condition of the subject BMW 535i
automobile to Plaintiff Dagi was fraudulent, willful and
wanton, evincing an entire want of care, which would raise
the presumption of a conscious indifference to the
consequences to the members of the general public and to
Plaintiff Dagi in particular, who would reasonably be
expected to be affected by the actions and conduct of De-
fendant Chris Motors.
41.
By reason of the foregoing, Plaintiff Dagi is entitled to
recover from Defendant Chris Motors punitive damages in
an amount to be determined by the jury in their enlightened
conscience in order to deter Defendant Chris Motors from
engaging in similar misconduct in the future.
WHEREFORE, Plaintiff Linda Dagi prays and respectful-
ly demands verdict and judgment as follows:
a) That summons and process issue and that each
Defendant be served with a copy of this Complaint as re-
quired by law and that each Defendant be required to appear
and answer;
b) That Plaintiff be awarded damages from the
Defendants, jointly and severally, for the destruction of
Plaintiff's BMW 535i automobile, in such an amount as may
be shown by the evidence and determined in the enlightened
conscience of the jury;
100a
c) That Plaintiff be awarded punitive damages against
Defendant Chris Motors, in such an amount as may be
shown by the evidence and as may be determined in the
enlightened conscience of the jury in order to deter said
Defendant from engaging in similar misconduct in the fu-
ture;
d) That Defendants be charged with all court costs
attributable to this action and such other costs reasonably
incurred in the prosecution and trial of this case;
e) That Plaintiff be granted a trial by jury; and
f) That Plaintiff be granted such other and further relief as
may be shown by the evidence and authorized by law.
SMOLAR, ROSEMAN, BRANTLEY
& SEIFTER
/s/ Yehuda Smolar [By JIS ???]
YEHUDA SMOLAR
Ga. State Bar No. 665150
/s/ James I. Seifter
JAMES I. SEIFTER
Ga. State Bar No. 636584
Attorneys for Plaintiff
Linda Dagi
101 Marietta Tower
Suite 3410
Atlanta, Georgia 30303
(404) 525-3900
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GEORGIA FULTON COUNTY
STATE COURT OF FULTON COUNTY
(Civil Division)
Case No. 93VS0070409F
LINDA DAGI,
(Plaintiff's Name and Address)
VS.
CHRIS MOTORS CORPORATION by and
through its registered agent,
to-wit: Neal Christman, 2020
Cobb Parkway, Marietta, GA
(Defendant’s Name and Address)
TYPE OF SUIT kx Tort
SUMMONS
TO THE ABOVE NAMED-DEFENDANT:
You are hereby required to file with the Clerk of said
court and to serve a copy on the Plaintiff's Attorney, or on
Plaintiff if no Attorney, to-wit:
James I. Seifter, Esquire
SMOLAR, ROSEMAN, BRANTLEY & SEIFTER
101 Marietta Tower, Suite 3410
Atlanta, Georgia 30303
(404) 525-3900
an answer to the complaint which is herewith served on you,
within (30) days after service on you, exclusive of the day of
service. If you fail to do so, judgment by default will be
taken against you for the relief demanded in the complaint,
plus cost of this action.
» * - * * » *
DEFENSE MAY BE MADE, AND JURY TRIAL DE-
MANDED, if desired, in the Clerk’s Office at 102 State
102a
Court of Fulton County Building. (Corner of Pryor and
Mitchell Streets), S.W., Atlanta, Georgia 30303.
If the sum claimed in the suit, or value of the property
sued for, is $300.00 or more Principal, the defendant must
admit or deny the paragraphs of plaintiff’s petition by
making written Answer. Such paragraphs undenied will be
taken as true. If the plaintiff’s petition is sworn to, or if suit
is based on an unconditional contract in writing, then the
DEFENDANT’S ANSWER MUST BE SWORN TO.
If the principal sum claimed in the suit, or value of the
property sued for, is less than $300.00 and is on a note,
unconditional contract, account sworn to, or the petition
sworn to, defense must be made by filing a sworn Answer
setting up the facts relied on as a defense; other cases may
be defended by filing an Appearance Card which may be ob-
tained from the Clerk.
SERVED: This 07 day of APR , 1993.
/s/ D.C. McKenzie 235
DEPUTY MARSHAL
STATE COURT OF FULTON COUNTY
103a
EXHIBIT 17
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
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CIVIL ACTION
FILE NO. 1 94-CV-2135-JEC
SNR EES RR ai aA
LINDA DAGI,
Plaintiff,
V.
3 BAYERISCHE MOTOREN WERKE, A.G.,
BMW OF NORTH AMERICA, INC.,
and CHRIS MOTORS CORPORATION,
: Defendants.
{stamp—Filed in Clerk’s Office, U.S.D.C.-Atlanta, AUG 12 1994,
Luther D. Thomas, Clerk, By: /s/ (illegible), Deputy Clerk]
2A Sih gh SRE. teh Li
[stamp (at bottom)—Consent form to proceed before a
U.S. Magistrate and pretrial instructions received. /s/ RS]
PETITION FOR REMOVAL
TO: The Judges of the United States District Court
The Northern District of Georgia
Atlanta Division
The Petition of Defendants CHRIS MOTORS CORPO-
RATION, BAYERISCHE MOTOREN WERKE, A.G. and
BMW of NORTH AMERICA, INC. respectfully shows the
Court as follows:
1.
A civil action has been brought against the Petitioners in
the State Court of Fulton County, State of Georgia, by the
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104a
above-named Plaintiff, said action being designated as Civil
Action No. 93VS0070409F, in which Plaintiff, in a Third
Amended Complaint, has sought to recover from the
Petitioners under numerous theories, including, but not
limited to, a claim pursuant to the Motor Vehicle Informa-
tion and Cost Savings Act, 15 U.S.C. §1981 et seq.
Y
By virtue of the Plaintiff's newly amended claim under
the Motor Vehicle Information and Cost Savings Act, this
Court has jurisdiction over the case pursuant to 15 U.S.C.
$1989 and 28 U.S.C. §1331.
3.
Defendants attach a copy of the Summons and Complaint
filed in the State Court of Fulton County, Georgia, marked
Exhibit ‘‘A’’, a copy of Plaintiff’s First Interrogatories to
Defendant Chris Motors Corporation, marked as Exhibit
‘‘B’’, a copy of Plaintiff’s First Request for Production of
Documents to Defendant Chris Motors Corporation, marked
as Exhibit ‘‘C’’, a copy of Plaintiff’s First Request for
Admissions to Defendant Chris Motors Corporation, marked
as Exhibit ‘‘D’’, a copy of Plaintiff's March 19, 1993
Notice to Take Deposition (of Chris Motors Corporation’s
service manager), marked as Exhibit ‘‘E’’, a copy of Plain-
tiffs March 19, 1993 Notice to Take Deposition (of E. W.
Sweeney), marked as Exhibit ‘‘F’’, a copy of Plaintiff's
March 19, 1993 Notice to Take Deposition (of Sam
Mihyar), marked as Exhibit ‘‘G’’, a copy of the Answer of
Defendant BMW of North America, Inc. and Demand for
Jury of Twelve Persons, marked as Exhibit ‘‘H’’, a copy of
the Answer of Chris Motors Corporation, marked as Exhibit
‘Tl’, a copy of Defendant Chris Motors Corporation’s
Answers to Plaintiff's First Request for Admissions, marked
as Exhibit ‘‘J’’, a copy of Plaintiff's May 6, 1993 Notice to
tek aad ae es Re eee ee
Othe ate Hee
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105a
Take Deposition (of Sam Mihyar), marked as Exhibit ‘‘K’’,
a copy of Plaintiff's May 6, 1993 Notice to Take Deposition
(of Chris Motors Corporation’s service manager), marked as
Exhibit “‘L’’, a copy of Plaintiff's May 6, 1993 Notice to
Take Deposition (of E. W. Sweeney), marked as Exhibit
‘‘M’’, a copy of Defendant Chris Motors Corporation’s
Notice of Deposition (of T. Forcht Dagi), marked as Exhibit
‘““N’’, a copy of Defendant Chris Motors Corporation’s
Notice of Deposition (of Linda R. Dagi), marked as Exhibit
‘‘O’’, a copy of Defendant BMW of North America’s May
24, 1993 Certificate of Service of Discovery Materials,
marked as Exhibit ‘‘P’’, a copy of Defendant BMW of
North America’s May 25, 1993 Certificate of Service of
Discovery Materials, marked as Exhibit ‘‘Q’’, a copy of
Motion for Leave to Amend Plaintiff's Complaint to Add
Bayerische Motoren Werke, A.G. as a Party Defendant,
marked as Exhibit *‘R’’, a copy of Brief in Support of
Motion for Leave to Amend Plaintiff's Complaint to Add
Bayerische Motoren Werke, A.G. as a Party Defendant,
marked as Exhibit ‘‘S’’, a copy of Stipulation Extending
Time for Plaintiff Linda Dagi to Respond to Defendant
BMW of North America, Inc.’s First Interrogatories, First
Request for Production of Documents and Request for
Admissions pursuant to Official Code of Georgia, O.C.G.A.
§9-11-6(b), marked as Exhibit ‘‘T’’, a copy of Yehuda
Smolar’s Application for Leave of Absence, marked as
Exhibit “‘U’’, a copy of Application of Ben L. Weinberg,
Jr. for Leave of Absence, marked as Exhibit ‘‘V’’, a copy
of Order Granting Application of Ben L. Weinberg, Jr.’s for
Leave of Absence, marked as Exhibit ‘‘W’’, a copy of
Order Granting Leave to Add Bayerische Motoren Werke,
A.G. as Party Defendant, marked as Exhibit ‘‘X’’, a copy
of Plaintiff's Amended Complaint for Damages, marked as
Exhibit “‘Y’’, a copy of Plaintiff's August 19, 1993 Notice
to Take Deposition (of Stan Zangle), marked as Exhibit
106a
‘“Z’", a copy of Plaintiff’s August 19, 1993 Notice to Take
Deposition (of E. W. Sweeney, III), marked as Exhibit
‘““AA’’, a copy of Amended Answer of BMW of North
America, Inc., marked as Exhibit ‘‘BB’’, a copy of Applica-
tion of Ben L. Weinberg, Jr. for Leave of Absence, marked
as Exhibit ‘‘CC’’, a copy of Order Granting Application of
Ben L. Weinberg, Jr. for Leave of Absence, marked as
Exhibit ‘‘DD’’, a copy of Second Amended Complaint for
Damages, marked as Exhibit ‘“‘EE’’, a copy of Amended
Answer of Chris Motors Corporation, marked as Exhibit
‘“FF’’, a copy of Application of Ben L. Weinberg, Jr. for
Leave of Absence, ma
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