# Appendix — Dagi v. Chris Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0633%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1997 - **Citation:** 521 U.S. 1120 ## Text 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 eae. oe ene Le) 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. Re ec A Meike, a SNS PPE IER Ss PNG ED ARI GR ce Lg DB oes 8 gen SR AEN AS Tap bre crise 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. Sibts atbO Ra Asc ts wes Datiad wen er. PRE BEA ERIE RRR AEN ES OS CT j j r 5la 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 hah cided aS gl ahs te Roilint D6, CLA eh Sas A A A i ME LY RE ECL ATED Lp ELAR PN iE A so aS 8 sa Soe hing al Raia Geet Ti BI AEA SM Aagaees Sie OL Ys, ‘Pet et he ant a 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. Pe ee ih he SPREE DAE NP 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. ie BINS Cod here Kes oh ek i nee SI + eat Se BAIS BAS 6 eS Rats Re Pt Ie Beg Pe CAFO ALAS Ras eee 2. 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 rec [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0633%3A2. Public record. Not legal advice.