United States District Court, S.D. Georgia, Augusta Division
the Court is Plaintiff's Motion for Partial Summary
Judgment. (Doc. No. 17.) The Clerk has given Defendant notice
of the summary judgment motion and the summary judgment
rules, of the right to file affidavits or other materials in
opposition, and the consequences of default. (Doc. No. 18.)
Therefore, the notice requirements of Griffith v.
Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per
curiam), have been satisfied. The motion has been fully
briefed and is ripe for decision.
case arises out of Plaintiff GJ&L, Inc.'s dealership
agreement with Defendant CNH Industrial America, LLC.
Defendant is the manufacturer of four heavy equipment brands:
Case IH Agriculture; Case Construction; New Holland
Agriculture; and New Holland Construction. (Bansen Aff., Doc.
No. 19-1, ¶ 4.) On December 31, 2008, Plaintiff entered
into an agreement with Defendant (“Dealership
Agreement") whereby Plaintiff agreed to open a Case
Construction Equipment dealership. (Doc. No. 5-1, at 13.)
the terms of the Dealership Agreement, Plaintiff was
authorized to operate two dealerships: one in Augusta,
Georgia, and one in Pooler, Georgia. (Doc. No. 5-1, at 14; Bansen
Aff. ¶ 27.) Plaintiff needs Defendant's permission
before opening a new dealership or moving to a different
location. (Bansen Aff. ¶ 4.) Plaintiff must also provide
warranty services on any of Defendant's products,
regardless of where that product was sold. (Id.
¶ 6(g).) Defendant, however, reimburses Plaintiff for
such services. (Id. ¶ 11.)
January 2017, Defendant received notification that Plaintiff
wanted to move its Pooler dealership to Savannah, Georgia.
(Arrowood Supp. Aff., Doc. No. 17-2, ¶ 7.) Yet Defendant
refused to agree until Plaintiff signed an updated dealership
agreement. (Id. ¶ 18) Plaintiff alleges that
the new dealership agreement included terms that gave
Defendant greater control over Plaintiff's dealerships.
(Id. ¶ 19.) Consequently, Plaintiff refused to
sign. (Id.) Nevertheless, Plaintiff opened and
continues to operate its Savannah dealership. (Bansen Aff.
¶ 35.) In November 2017, after learning that Plaintiff
opened its Savannah dealership, Defendant informed Plaintiff
that its actions violated the terms of the Dealership
Agreement. (Id.) Undeterred by Defendant's
notice, Plaintiff continued to operate the Savannah
dealership. (Id. ¶ 36.) Defendant responded by
refusing to reimburse Plaintiff for warranty services
provided on equipment sold at the Savannah dealership.
(Arrowood Supp. Aff. ¶ 25.)
initiated this action on November 16, 2017, in the Superior
Court of Richmond County, Georgia. (Compl., Doc. No. 1-1, at
7-8.) Plaintiff alleges that Defendant's refusal to
approve the Savannah dealership violates Georgia law. (Am.
Compl., Doc. No. 11, ¶ 73.) Defendant removed the case
to this Court on December 27, 2017. (Doc. No. 1.) Plaintiff
now moves for partial summary judgment finding that (1) the
Dealership Agreement is subject to Georgia's Regulation
of Agricultural Equipment Manufacturers, Distributors, and
Dealers (the "Agriculture Act"), O.C.G.A. §
13-8-11, et seq. and that (2) Defendant has violated the
Agriculture Act by refusing to approve Plaintiff's
motion for summary judgment will be granted if there is no
disputed material fact and the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). Facts are material if
they could affect the results of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court
must view facts in the light most favorable to the non-moving
party and draw all inferences in its favor. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The movant initially bears the burden of
proof and must demonstrate the absence of a disputed material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) . The movant must also show that no reasonable jury
could find for the non-moving party on any of the essential
elements. Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).
movant carries its burden, the non-moving party must come
forward with significant, probative evidence showing there is
a material fact in dispute. Id. at 1116. The
non-movant must respond with affidavits or other forms of
evidence provided by Federal Rule of Civil Procedure 56.
Id. at 1116 n.3. The non-movant cannot survive
summary judgment by relying on its pleadings or conclusory
statements. Morris v. Ross, 663 F.2d 1032, 1033-34
(11th Cir. 1981). After the non-movant has met this burden,
summary judgment is granted only if "the combined body
of evidence is still such that the movant would be entitled
to a directed verdict at trial - that is, such that no
reasonable jury could find for the non-movant."
Fitzpatrick, 2 F.3d at 1116.
Agriculture Act was designed to regulate manufacturers and
dealers of agricultural equipment to prevent, inter
alia, unfair business practices and methods of
competition. O.C.G.A. § 13-8-11. To advance those goals,
the Agriculture Act forbids manufacturers from imposing
unreasonable restrictions on dealers and terminating
dealership agreements without due cause. O.C.G.A. §
13-8-15(c)(3)(A)-(8.2). It applies to manufacturers and
dealers of "equipment," which in turn is defined as
"tractors, farm equipment, or equipment primarily
designed for or used in agriculture, horticulture, irrigation
for agriculture or horticulture, and other such equipment
which is considered tax exempt and sold by the franchised
equipment dealer." O.C.G.A. § 13-8-12(6). The
central dispute in this motion is whether Plaintiff sells
"equipment" as defined by the Agriculture Act.
Equipment Primarily Designed for or Used in
argues that the products it sells qualify as
"equipment" under the Agriculture Act because the
products are "primarily designed for or used in
agriculture." Before the Court can decide this issue, it
must determine the proper statutory construction of O.C.G.A.
§ 13-8-12(6). The adverb "primarily" in
"primarily designed for or used in agriculture"
modifies both "designed for" and "used
in." Contrary to Plaintiff's assertion, such a
construction follows the traditional rules of grammar and
does not re-write the statute. See, e.g.,
The Chicago Manual of Style § 5.242 (17th ed. 2017)
(describing parallel construction). Indeed, other courts that
were confronted with similar language have come to the same
conclusion. See, e.g., State v.
Pacelli, 2015 WL 3869744, at *4 (Kan.Ct.App. June 12,
2015) ("Because the adverb was placed before two verbs
used in the disjunctive (or), common sense tells us that this
adverb necessarily modifies the two verbs following
it."); In re Estate of Luoma, 2013 WL 221446,
at *4 (Ohio Ct. App. Jan. 22, 2013) (same). Therefore, to be
within this clause, Plaintiff must show that the products it
sells are equipment primarily designed for or primarily used
in agriculture, horticulture, irrigation for agriculture or
horticulture, and other such equipment.
has raised a genuine factual issue about the primary use of
the products Plaintiff sells. To support its opposition to
Plaintiff's Motion for Summary Judgment, Defendant filed
records from its Electronic Settlement System (the
"System"). (Bansen Aff. ¶¶ 14-16; Doc.
No. 19-1, Ex. 1.) The System allows Defendant to track how
customers use its products. (Bansen Aff. ¶ 15.) After
each sale, Plaintiff must designate how the customer intended
to use Defendant's product by selecting and entering the
appropriate code. (Id.) Records from the System show
that only 1.3% of Plaintiff's sales were designated for
use in agriculture. (Doc. No. 19-1, Ex. 1, at 1, 11, 14-16,
18, 27, 29-31.) Plaintiff responds that the System was poorly
designed and that Plaintiff entered the code "other
construction" for every sale as a way to shirk its
reporting duty. (Arrowood Supp. Aff. ¶¶ 6-10.)
Plaintiff submits records showing that all of its entries in
the System were "other construction" and accuses
Defendant of forging any sale that was designated for use in
agriculture. Plaintiff's records and allegations of
forgery are of little consequence for the purposes of summary
judgment. Accepting Plaintiff's explanation and
disregarding Defendant's evidence would amount to a
credibility determination, ...