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Kennedy Funding, Inc. v. City of Brunswick

United States District Court, S.D. Georgia, Brunswick Division

February 12, 2015


For Kennedy Funding, Inc., Plaintiff: Austin E. Catts, Todd C. Brooks, LEAD ATTORNEYS, Catts & Brooks, LLC, Brunswick, GA.

For City of Brunswick, Georgia, Bryan Thompson, Jonathan Williams, Cornell Harvey, Mark Spaulding, Roosevelt Harris, Jr., Lynn Frye, Defendants: Steven G. Blackerby, LEAD ATTORNEY, Bradley J. Watkins, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, LLP, Brunswick, GA; Emily Rose Hancock, Brown, Readdick & Bumgartner, Brunswick, GA.

Page 1300



Plaintiff Kennedy Funding, Inc. (" KFI" ) brought this action against Defendants, the City of Brunswick and several of its officers, agents, and employees (" the City" ), based on alleged misrepresentations made in connection with a planned development project in Brunswick, Georgia. The Court issued an Order on September 29, 2014 which granted Defendant's motion in part but reserved ruling on the claims of fraud and conspiracy against the City and its agents in their official capacities. See Dkt. No. 72. The Court relies on the factual background set forth in that previous Order to avoid redundancy. Before the Court are KFI's Motion for Partial Summary Judgment, Dkt. No. 24, and the City's Motion for Summary Judgment, Dkt. No. 27. As explained below, the City has not waived sovereign immunity. Accordingly, the City's Motion for Summary Judgment is GRANTED, and KFI's Motion for Partial Summary Judgment is DENIED.


As set forth in the Court's previous order, summary judgment is required where " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is " material" if it " might affect the outcome of the suit under the governing law[,]" and a dispute regarding such a fact is " genuine" if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." FindWhat Investor Grp, v., 658 F.3d 1282, 1307

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(11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In making this determination, the court views all of the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 256-57.

When, as here, the parties have both filed motions for summary judgment, the applicable Rule 56 standard is not affected. See Gerling Global Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th Cir. 2001). " [T]he facts are viewed in the light most favorable to the non-moving party on each motion." Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012).


Throughout this case, the City has asserted its entitlement to sovereign immunity and argued that KFI's claims are barred based on that entitlement. In response, KFI maintains that the City waived its sovereign immunity by purchasing liability insurance that would cover its claims. Whereas the Court previously lacked sufficient information to assess these arguments, now it must consider whether KFI's claims are barred by sovereign immunity.

In Georgia, " municipal sovereign immunity may be waived only by the purchase of liability insurance if the 'policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.'" CSX Transp., Inc. v. City of Garden City,277 Ga. 248, 588 S.E.2d 688, 690 (Ga. 2003) (quoting O.C.G.A. § 36-33-1(a)). The party seeking to benefit from a waiver of sovereign immunity bears the burden of showing that a municipality has waived its sovereign immunity. Ga. Dep't of Human Res. v. Poss,263 Ga. 347, 434 S.E.2d 488, 489 (Ga. 1993) (" immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver" ), overruled on other grounds byHedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,272 Ga. 209, 528 S.E.2d 508, 510 (Ga. 2000); Albertson v. City of Jesup,312 Ga.App. 246, 718 S.E.2d 4, ...

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