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Green v. Big Lots Stores Inc.

United States District Court, M.D. Georgia, Macon Division

January 4, 2019

LLOYD GREEN, Plaintiff,
v.
BIG LOTS STORES, INC., d/b/a BIG LOTS, INC., STORE #1778; et al., Defendants.

          ORDER DENYING DEFENDANT'S MOTION FOR ATTORNEY'S FEES AND COSTS

          TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT

         The Court previously entered judgment in favor of Defendant Big Lots Stores, Inc., who now seeks an award of attorney's fees and costs under Ga. Code Ann. § 9-11-68 and Federal Rule of Civil Procedure 68. Plaintiff did not respond to Defendant's motion; however, for the following reasons, the motion is DENIED.

         FACTUAL BACKGROUND

         Plaintiff claimed in his complaint that he slipped and fell at one of Defendant's stores as a result of Defendant's negligent maintenance of the premises. See generally [Doc. 1-2, pp. 4-15]. The Court granted summary judgment to Defendant, determining as a matter of law that Defendant had adequate inspection procedures in place and that it did not have superior knowledge of the hazard that allegedly caused Plaintiff to fall. [Doc. 36]. The Court subsequently entered judgment in Defendant's favor [Doc. 37], and Plaintiff appealed [Doc. 40]. After the entry of judgment but before Plaintiff filed his notice of appeal, Defendant filed the instant motion for attorney's fees. [Doc. 38]. On January 2, 2019, the Court of Appeals for the Eleventh Circuit dismissed Plaintiff's appeal for want of prosecution. [Doc. 45]. As such, Defendant's motion for attorney's fees is now ripe for review. See Ga. Code Ann. § 9-11-68(d)(1) (“[I]f an appeal is taken from [a] judgment, the court shall order payment of [ ] attorney's fees and expenses of litigation only upon remittitur affirming such judgment.”); see also Houston Cty. v. Harrell, 2d 29');">695 S.E.2d 29, 31 (Ga. 2010) (quoting West v. Standard Accident Ins. Co., 168 S.E. 766');">168 S.E. 766, 767 (Ga. 1933)) (holding that the dismissal of a direct appeal results in “the usual consequence that the rulings of the lower court, by operation of law, stood as if affirmed.”).

         DISCUSSION

         A. Standard of Review

         As an initial matter, motions for attorney's fees in cases, like this one, that are before the Court on the basis of diversity jurisdiction are governed by state law. See McMahan v. Toto, 256 F.3d 1120');">256 F.3d 1120, 1132 (11th Cir. 2001) amended on other grounds by 11 F.3d 1077');">311 F.3d 1077 (11th Cir. 2002); see also American Family Life Assurance Co. of Columbus v. United States Fire Co., 2d 826');">885 F.2d 826, 832 (11th Cir. 1989) (“[A] federal court sitting in diversity should give effect to the forum state's rule regarding attorney's fees.”). Accordingly, the Court considers whether Defendant is entitled to attorney's fees under Ga. Code Ann. § 9-11-68, which provides in relevant part:

If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

Ga. Code Ann. § 9-11-68(b)(1).

         To be entitled to attorney's fees under this provision, Defendant must have made an offer of settlement more than 30 days after it was served with a summons and complaint but not less than 30 days before trial. Ga. Code Ann. § 9-11-68(a). Defendant must have also

1. Made the offer in writing and stated in the offer that it was made in accordance with Ga. Code Ann. § 9-11-68;
2. Identified the party making the offer and to whom the offer was made;
3. Identified the claim(s) to be resolved by ...

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