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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
SUD’S CLUB, LLC,
Plaintiff,
v. Civil Action File No.
22CV8928
PIEDMONT WATER COMPANY,
Defendant.
PLAINTIFF SUD’S CLUB, LLC’S OBJECTION TO AND MOTION TO
STRIKE DEFENDANT’S SECOND MOTION TO TRANSFER VENUE
AND UNTIMELY AFFIDAVIT
I. Introduction and Background
Defendant Piedmont Water Company (hereinafter “PWC”) did not
request leave, as it was required to do, to supplement its prior Motion to
Transfer, whether to add an affidavit or to submit additional argument. Its
May 5 Second Motion to Transfer (the “Second Motion”) therefore
contravenes the Civil Practice Act and should be stricken and disregarded.
Additionally, it does not change PWC’s failure to carry its burden on
a motion to transfer. Apart from an irrelevant narrative from a PWC
executive about his views on the private water industry, the main support
1
for PWC’s motion is actually: that PWC has violated yet another set of
procedural requirements. That is, PWC filed a new lawsuit in Putnam
County, including Sud’s Club, LLC (hereinafter “Suds Club”) and seeking
to force payment of the Surprise Fee, in violation of the abatement statutes
and of the Civil Practice Act’s requirement that any counterclaims have been
asserted in this action.
Suds Club requests that its motion to strike be granted, that the
untimely Second Motion and accompanying affidavit be disregarded, and
that the request by PWC to transfer venue be denied.
II. Argument and Citation to Authority
A. The Court should strike and disregard the improper and untimely
Second Motion and the accompanying Shaifer Affidavit.
PWC filed its motion to transfer on January 27, 2023, which Suds Club
opposed, showing that DeKalb is PWC’s home county and that it failed to
carry its statutory burden. That means any support for the motion should
have been included with that January motion, a requirement set out in the
Civil Practice Act: See § 9-11-6 (d) (“When a motion is supported by affidavit,
the affidavit shall be served with the motion” (emphasis added).).
2
This Civil Practice Act requirement is echoed by the Uniform Rules,
which add that a motion should contain a citation to authority on which it
relies:
In civil actions every motion made prior to trial, except those
consented to by all parties, when filed shall include or be
accompanied by citations of supporting authorities and, where
allegations of unstipulated fact are relied upon, supporting
affidavits, or citations to evidentiary materials of record.
USCR 6.1 (Motions in Civil Actions, emphasis added.)
Yet, months after the original motion, PWC has submitted the Second
Motion, with a lengthy new affidavit from one of its executives, Jerry Shaifer.
Apart from its lengthy and irrelevant discussion of what the affiant believes
is customary in the water industry, 1 the Shaifer Affidavit could have been
submitted January 27 with the original motion.
1
Unqualified as an expert, Mr. Shaifer, who indicates that is himself an
attorney, shares recollections about starting the company along with a
grab-bag of legal conclusions and personal views about why PWC should
be able to charge certain fees, in essence, because they have always done
so. He also submits hearsay statements from sources like the “American
Water Works Association,” none of them germane to the validity of the
Surprise Fee, none of them germane to PWC’s motion to transfer, and all of
which – even apart from their late and prejudicial nature – lack evidentiary
value.
3
It was not, and to submit it as a new affidavit, PWC was required to
seek leave of Court and to show excusable neglect. See O.C.G.A. § 9-11-6 (b)
(trial court may, “upon motion made after the expiration of the specified
period, permit the act to be done where the failure to act was the result of
excusable neglect”). See also Hershiser v. Yorkshire Condominium Ass'n, Inc.,
410 S.E.2d 455, 456, 201 Ga.App. 185, 185 (1991) (“…the party seeking to file
affidavits late must make a motion and obtain an extension from the court”).
PWC did not request leave of Court to submit any additional motion,
authority, or affidavit as the Civil Practice Act would have required. Suds
Club therefore objects to the late submission, respectfully requesting that the
Court strike and, as is required absent a proper motion for leave, disregard
the motion and affidavit. Hershiser, 410 S.E.2d 455, 457, 201 Ga. App. at 186
(reversing state court for failure to grant motion to strike and considering
untimely supplemental affidavits).
B. The second-filed Putnam Action is improper and should have no
bearing on the Motion to Transfer, which should be denied.
The only new information PWC shares with the Court in its Second
Motion is that PWC has again – before the Court has ruled on its first motion
to transfer and again before the Court has ruled on Suds Club’s pending
4
motion for summary judgment concerning the Surprise Fee – has decided to
go ahead and file in Putnam County, including Suds Club as a Defendant
and seeking to force payment of the Surprise Fee.
As the Court is aware from counsel’s update email, PWC filed a
complaint and requested an ex parte TRO in Putnam County, including Suds
Club as a defendant, and raising the very same issue (opening of the
adjoining and separate car detailing business, F-5 Services, Inc.) that PWC
previously argued, before this Court, was a basis for service disconnection.
This Court noted at hearing that the issue was premature, separating
the F-5 business from the question of Suds Club’s operation and the Surprise
Fee. Rather than waiting, however, – on that issue or for the Court to address
its motion to transfer to Putnam County – PWC again took unilateral action
and even obtained an ex parte TRO. 2
2
After a Zoom hearing that Suds Club’s counsel was permitted to
attend and observe, and a colloquy about the speculative nature of PWC’s
allegations, the Putnam Court initially denied the requested TRO. Suds
Club continues to dispute the allegations and as necessary, Suds Club will
also move to dissolve this TRO. In the meantime, should the Court
determine that Suds Club’s motion for summary judgment should be
granted, it would at least in part help to reduce the additional unnecessary
work PWC has already created for Suds Club, in seeking to relitigate issues
pertaining to the Surprise Fee in Putnam County. See O.C.G.A. § 9-11-1
5
That this second filing is not permitted by Georgia statute, certainly as
to Suds Club, seems clear. Suds Club has therefore filed a plea in abatement
and motion to dismiss all claims against it in the Putnam Action. For the
Court’s reference, a copy of that motion and brief (without its voluminous
exhibits, multiple of which are filings in this Court) is attached as Exhibit A.
PWC suggests that this second-filed action against Suds Club, which never
should have been filed, has somehow enhanced the “local interest” of
Putnam County. It has not not. PWC’s failure to await this Court’s rulings,
and violation of procedural rules should not be rewarded.
Further, as Suds Club pointed out previously, the case before the Court
“is a commercial dispute, related only to whether or not billing by PWC of
the Surprise Fee to Sud’s Club is valid. … And PWC’s [now dismissed]
counterclaims confirm as much: they contend that they are owed the
Surprise Fee, not based upon any statute or regulation, but under garden-
variety commercial theories (open account, unjust enrichment, promissory
estoppel).” (Resp. to Mot. to Transfer filed 3-10-23 at 6-7.)
(Civil Practice Act to be “construed to secure the just, speedy, and
inexpensive determination of every action.”)
6
Finally, even putting the best construction on PWC’s behavior and the
second-filed Putnam Action, the other O.C.G.A. § 9–10–31.1(a) factors, taken
together, continue to weigh against PWC. It simply cannot carry its required
burden to justify transferring this case from its own home county, and its
motion to transfer should be denied. See R.J. Taylor Mem. Hosp., Inc. v. Beck,
631 S.E.2d 684, 686, 280 Ga. 660, 662 (Ga. 2006) (discussing movant’s burden
and affirming denial of motion to transfer venue).
III. Conclusion and Request for Relief
The Second Motion and its accompanying Shaifer Affidavit should be
stricken and disregarded, and PWC’s motion to transfer should be denied.
Considering the factors in OCGA § 9–10–31.1(a), PWC has not and cannot
carry its heavy burden of changing venue on forum non conveniens grounds
and thus should not be allowed to upset Plaintiff’s choice of a proper venue.
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Dated: May 25, 2023.
Respectfully submitted by
THE FLAKE LAW FIRM, LLC
/s/Andrew B. Flake
Andrew B. Flake
Georgia Bar No. 262425
1778 Century Blvd. NE, Suite A
Atlanta, Georgia 30345
Telephone: 678-528-1688
E: andrew.flake@flakelaw.com
Counsel for Sud’s Club, LLC
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EXHIBIT A
9
CLERK OF SUPERIOR COURT
PUTNAM COUNTY, GEORGIA
2023-SU-CV-0084
THE SUPERIOR COURT OF PUTNAM COUNTY MAY 24, 2023 05:34 PM
STATE OF GEORGIA
PIEDMONT WATER COMPANY, and )
OCONEE CROSSING WRF, LLC, )
)
Plaintiffs, ) CIVIL ACTION NO.
) 2023-SU-CV-0084
v. )
)
JACOB FRIED, SUD’S CLUB, LLC, )
and F-5 SERVICES, INC., )
)
Defendants. )
DEFENDANT SUD’S CLUB, LLC’S PLEA IN ABATEMENT
AND MOTION TO DISMISS WITH BRIEF IN SUPPORT THEREOF
1. Under OCGA §§ 9–2–5(a) and 9–2–44(a), Defendant Sud’s Club, LLC
(hereinafter “Suds Club”) moves this Court to dismiss the above-styled action
due to duplication and overlap with claims and issues in a pending action. The
presence of a prior pending action in DeKalb County (the “DeKalb Action”)
between Suds Club and Plaintiff Piedmont Water Company (“PWC”) acts as
a bar to the assertion of any claims against Suds Club in this second action,
much less the very same claim and assertions about the very same issue, a
disputed “capacity fee.”
2. Indeed, given PWC’s prior dismissal of claims in the DeKalb action, PWC’s
only means of asserting any claim arising from its billing to Suds Club is by
requesting and obtaining leave in the DeKalb Action. At present, however, in
this action, Georgia statute precludes any action with respect to Suds Club
other than dismissal of any and all of PWC’s claims.
BACKGROUND FACTS
3. This case is duplicative of a currently pending action, Suds Club v. Piedmont
Water Company, Civil Action File 22CV8928 (in the Superior Court of
Dekalb County, filed Oct. 14, 2022).
4. The DeKalb Action concerns an improper surprise fee charged to Suds Club
by PWC (the “Surprise Fee”), and PWC’s related effort to seek disconnection
of Suds Club’s water service. Suds Club incorporates by reference its Verified
Complaint in the DeKalb Action, as well as the Answer and Counterclaims
filed Dec. 16, 2022 by PWC, true and correct copies of which are attached
hereto as Exhibits 1 and 2, respectively.
5. In the DeKalb Action, PWC was enjoined based upon the same effort to
disconnect Suds Club it references in its Complaint in this proceeding, most
recently by Order entered March 9, 2023. A true and correct copy of that Order
is attached hereto at Exhibit 3.
6. Specifically, one basis on which PWC has previously sought to disconnect
Sud’s Club was PWC’s allegations concerning the neighboring F-5 Services,
Inc. business. Mar. 3, 2023 Motion for Interlocutory Injunction, Ex. A (Letter
2
dated Mar. 2, 2023 to Suds Club from PWC); a true and correct copy of that
Motion is attached at Exhibit 4.
7. Prior to the DeKalb Court’s entry of the injunction order restraining PWC, the
same issues were argued. See Suds’ Club’s Mar. 6, 2023 Supplement to its
Motion for Interlocutory Injunction, a true and correct copy of that Motion is
attached at Exhibit 5.
8. Now, it is clear that PWC is raising the Surprise Fee issue, and making the
same allegations and requests concerning disconnection, that it has in the
DeKalb Action:
• PWC alleges Suds Club seeks “to have other customers subsidize their
substantial usages by an unwarranted refusal to pay amounts due…”
and that PWC “may be required to disconnect Defendants’ services …”
(PWC Ver. Compl. ¶ 1.)
• PWC asserts a claim for “attorney fees for their stubborn litigiousness
and bad faith refusal to pay the amounts owed to Plaintiffs for water
and sewer services.” (PWC Ver. Compl. ¶ 1.) 1
• Paragraph 43-71 of the Verified Complaint directly re-alleges
contentions concerning the Surprise Fee, including allegations that
1
While the Complaint largely lumps all “Defendants” together, these
allegations can only refer to Suds Club, since F-5 has not yet established service.
3
Suds Club was required to accurately estimate its water usage and did
not do so. (PWC Ver. Compl. ¶¶ 43-71.)
• Even the requested relief is the same; PWC threatens to disconnect Suds
Club’s service based on the Surprise Fee and/or based on allegations
concerning F-5. (See PWC Ver. Compl. ¶ 127 (“Plaintiffs have at their
disposal the available remedy of disconnecting services at the Suds
Club location….Plaintiffs will have no choice other than to
disconnect services.”); (PWC Ver. Compl. ¶ 134 “Such injunction
should continue until such time as (a) Defendants pay the balance of
the capacity fee which has remained unpaid since they fraudulently or
recklessly misrepresented Suds Club’s estimated water and sewer
usages so significantly”).
9. On January 19, 2023, Suds Club filed a motion for summary judgment
concerning the validity of the Surprise Fee. A true and correct copy of that
Motion and the Memorandum of Law in Support are attached as Exhibit 6.
This motion for summary judgment includes a request for summary judgment
on PWC’s counterclaims, its sole support for the Surprise Fee. In response,
PWC dismissed those claims without prejudice.
10.The summary judgment motion has been fully argued and awaits decision by
the DeKalb Superior Court.
4
11.With respect to Suds Club, then, this case is not only a second-filed action,
with the limited allegations substantially similar to those presented in the
present action, but it also raises legal issues currently awaiting decision by
another Superior Court.
12.Suds Club therefore seeks dismissal of any and all of the claims against it, and
dismissal of this action.
ARGUMENT AND CITATION TO AUTHORITY
A. Any and all Claims Against Suds Club Should Have Been Asserted
in the DeKalb Action as Compulsory Counterclaims, Cannot Now
Be Asserted Here, and Must Be Dismissed.
13.The claims against Suds Club are compulsory counterclaims and unless PWC
makes the required showing and receives leave from the DeKalb Superior
Court to add them, they have been waived and cannot be asserted here. Smith
v. Tronitec, Inc., 586 S.E.2d 661, 662, 277 Ga. 210, 211 (2003) (“When a
claim should be raised as a compulsory counterclaim, a party may not raise
the claim in a separate action.”); Blount v. Kicklighter, 186 S.E.2d 543, 545,
125 Ga.App. 159, 161 (1971) (“Before a delayed filing of a counterclaim is
allowed, court should require the submission of evidence and make a finding
therefrom as to whether the delay was occasioned by oversight, inadvertence
or excusable neglect.”).
5
14.PWC asserts three claims against Suds Club, all of which should be dismissed,
as all of them could have been asserted in the DeKalb Action. Count I
(“Restraining Order and Injunction”) contains no substantive claim, but seeks
injunctive relief against Suds Club based on non-payment of the Surprise Fee.
Counts II (“Fraud”) and III (“Alternative Count for Misrepresentation”) is
predicated entirely on PWC’s contention, repeated from the DeKalb Action,
that Suds Club intentionally or recklessly estimated its monthly usage. Counts
IV and V are also not substantive, but seek relief (exemplary damages and
attorney’s fees) predicated on the other claims.
15.Each and every discernable claim PWC asserts in these counts against Suds
Club, its other lack of merit aside, meets the definition of a compulsory
counterclaim, i.e., a claim that (1) arises out of the same transaction or
occurrence as the main claim; and (2) has matured at the time the answer is
filed. See O.C.G.A. § 9-11-13(a); see also Idowu v. Lester, 337 S.E.2d 386,
387, 176 Ga. App. 713, 714 (1985) (the term “transaction or occurrence” has
been given “a broad and realistic interpretation” and “[a]ny claim that is
logically related to another claim that is being sued on is properly the basis
for a compulsory counterclaim”).
16.Because they are compulsory, raising them here – or any other claims arising
out of the same transaction or occurrence, and in particular, the Surprise Fee
6
– are barred. “It seems clear that a party may not raise issues arising out of the
same transaction which should have been plead as a compulsory counterclaim
in another separate suit.” Harbin Lumber Co., Inc. v. Fowler, 222 S.E.2d 878,
880, 137 Ga.App. 90, 92 (1975) (reversing for failure to dismiss claim that
should have been asserted in first-filed action as counterclaim). See also
Idowu v. Lester, 337 S.E.2d 386, 387, 176 Ga.App. 713, 714 (1985)
(“…breach of contract claim is directly related to and was a compulsory
counterclaim and party “could not decline to litigate and seek to bring a
separate action…”
17. Further, it is irrelevant that PWC dismissed its prior counterclaims based on
the Surprise Fee, as the “effect of the plea or defense cannot be avoided even
by a dismissal of the first suit.” Id., 222 S.E.2d 878, 880, 137 Ga. App. 90, 91
(Ga.App. 1975).
B. Because of the Pendency of the DeKalb Action, Suds Club has a
Statutory Defense in Abatement, Such That Claims Against It, and
This Action, Must Be Dismissed.
18.Two statutes speak directly to, and prohibit, PWC’s effort to bring claims
against Suds Club here and to circumvent a prior pending action. The first is
O.C.G.A.§ 9-2-5:
No plaintiff may prosecute two actions in the courts at the same
time for the same cause of action and against the same party. If
7
two such actions are commenced simultaneously, the defendant
may require the plaintiff to elect which he will prosecute. If two
such actions are commenced at different times, the pendency of
the former shall be a good defense to the latter.
19.The second is O.C.G.A. § 9-2-44:
A former recovery or the pendency of a former action for the
same cause of action between the same parties in the same or any
other court having jurisdiction shall be a good cause of
abatement. However, if the first action is so defective that no
recovery can possibly be had, the pendency of a former action
shall not abate the latter.
20.The purpose of the prior action pending doctrines reflected in both of these
statutes is “to ensure judicial economy, to avoid inconsistent judgments, and
to prevent harassment of the parties through multiple proceedings.” Jenkins v.
Crea, 656 S.E.2d 849, 851, 289 Ga.App. 174, 176 (2008)
21.The remedy for this duplication, and the requirement, is clear: all claims
against Suds Club must be dismissed and the action as a whole abated. See
Premium Funding Solutions, LLC v. Metro Atlanta Task Force For Homeless,
Inc., 776 S.E.2d 504, 506–07, 333 Ga.App. 718, 720–22 (015) (pendency of
a related action was good cause for abatement because the related action and
the case in question both involve rights to the same subject matter).
22.The Court in Premium Funding Solutions found that "when there are two
lawsuits involving the same cause of action and the same parties that were
filed at different times but that both remain pending in Georgia courts, the
8
later-filed suit must be dismissed." Premium Funding Solutions, 776 S.E.2d
at 507.
23.These statutory bars sweep even in instances in which the second suit involves
different claims:
[a] plea in abatement has been held good even where the causes
of action are, technically speaking, legally disparate and rest in
opposite parties, if they arise out of the same transaction and if
the second suit would resolve the same issues as the first pending
suit and would therefore be unnecessary, and consequently
oppressive.
Premium Funding Solutions, 776 S.E.2d at 507, 333 Ga.App. at 721 (Ga.App.,
2015) (quoting Schoen v. Home Federal S & L Assn., 154 Ga.App. 68, 69, 267
S.E.2d 466 (1980).)
24.In the present case, of course, both the Dekalb County Action and this action
involve the same parties and the same subject matter. Indeed, PWC places the
very legal issue before the DeKalb Superior Court – the validity of the
Surprise Fee – at issue here: It seeks an injunction to pressure Suds Club to
pay the Surprise Fee. (See PWC Ver. Compl. ¶¶ 43-71 (making same
allegations); PWC Ver. Compl. ¶ 135 (asking that “a restraining order should
issue to prevent Defendants from opening the F-5 business until such time as
Defendants fully comply with all requirements, as set forth herein.”). See also
id, Request for Relief at 31 requesting that (“Defendants be restrained … open
the business in the new building at F-5’s new location on Old Phoenix Road
9
(Tax Parcel 103A073) and enjoined until such time as (i) Defendants pay the
balance of the capacity fee …”).
25.As such, following the precedent set in Premium Funding Solutions and the
other authority cited in this brief, this case should be dismissed due to the
pendency of the Dekalb County action. If PWC believes it has counterclaims
against Suds Club (apart from the ones it previously asserted there), it must
seek leave from the DeKalb Superior Court to do so.
WHEREFORE, Defendant respectfully request that the Court (a) grant Suds
Club’s plea in abatement and dismiss all claims against it; and (b) grant such other
and further relief as the Court deems just and proper.
10
Respectfully submitted this 24th day of May, 2023.
/s/Andrew B. Flake
Andrew B. Flake
Georgia Bar No. 262425
The Flake Law Firm, LLC
1778 Century Blvd. NE, Suite A
Atlanta, Georgia 30345
Telephone: 678-528-1688
E: andrew.flake@flakelaw.com
Counsel for Sud’s Club, LLC
/s/Christopher D. Huskins
Christopher D. Huskins
Georgia Bar No. 380148
Huskins Law Firm, LLC
114 ½ West Marion Street
Eatonton, GA 31024
Telephone: 706-485-2411
E: chris@huskinslawfirm.com
Counsel for Sud’s Club, LLC
11
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the within and foregoing
Acknowledgment of Service on the following via Peachcourt:
Robert S. Huestis, Esq.
Counsel for Plaintiffs
rhuestis@bbga.com
This 24th day of May, 2023.
THE FLAKE LAW FIRM, LLC
/s/ Andrew B. Flake
Andrew B. Flake
1778 Century Blvd NE, Ste A Georgia Bar No. 262425
Atlanta, Georgia 30345 Counsel for Sud’s Club, LLC
(678) 528-1688
andrew.flake@flakelaw.com
CERTIFICATE OF SERVICE
The attorney whose name appears on this Certificate of Service
certifies that he has this day caused to be served all counsel of record in this
action with the foregoing by Odyssey e-filing.
This 25th day of May, 2023.
/s/Andrew B. Flake
Andrew B. Flake
THE FLAKE LAW FIRM, LLC
1778 Century Blvd. NE, Suite A
Atlanta, Georgia 30345
T: 678-528-1688
E: andrew.flake@flakelaw.com
10
Preview
IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA SUD’S CLUB, LLC, Plaintiff, v. Civil Action File No. 22CV8928 PIEDMONT WATER COMPANY, Defendant. PLAINTIFF SUD’S CLUB, LLC’S OBJECTION TO AND MOTION TO STRIKE DEFENDANT’S SECOND MOTION TO TRANSFER VENUE AND UNTIMELY AFFIDAVIT I. Introduction and Background Defendant Piedmont Water Company (hereinafter “PWC”) did not request leave, as it was required to do, to supplement its prior Motion to Transfer, whether to add an affidavit or to submit additional argument. Its May 5 Second Motion to Transfer (the “Second Motion”) therefore contravenes the Civil Practice Act and should be stricken and disregarded. Additionally, it does not change PWC’s failure to carry its burden on a motion to transfer. Apart from an irrelevant narrative from a PWC executive about his views on the private water industry, the main support 1 for PWC’s motion is actually: that PWC has violated yet another set of procedural requirements. That is, PWC filed a new lawsuit in Putnam County, including Sud’s Club, LLC (hereinafter “Suds Club”) and seeking to force payment of the Surprise Fee, in violation of the abatement statutes and of the Civil Practice Act’s requirement that any counterclaims have been asserted in this action. Suds Club requests that its motion to strike be granted, that the untimely Second Motion and accompanying affidavit be disregarded, and that the request by PWC to transfer venue be denied. II. Argument and Citation to Authority A. The Court should strike and disregard the improper and untimely Second Motion and the accompanying Shaifer Affidavit. PWC filed its motion to transfer on January 27, 2023, which Suds Club opposed, showing that DeKalb is PWC’s home county and that it failed to carry its statutory burden. That means any support for the motion should have been included with that January motion, a requirement set out in the Civil Practice Act: See § 9-11-6 (d) (“When a motion is supported by affidavit, the affidavit shall be served with the motion” (emphasis added).). 2 This Civil Practice Act requirement is echoed by the Uniform Rules, which add that a motion should contain a citation to authority on which it relies: In civil actions every motion made prior to trial, except those consented to by all parties, when filed shall include or be accompanied by citations of supporting authorities and, where allegations of unstipulated fact are relied upon, supporting affidavits, or citations to evidentiary materials of record. USCR 6.1 (Motions in Civil Actions, emphasis added.) Yet, months after the original motion, PWC has submitted the Second Motion, with a lengthy new affidavit from one of its executives, Jerry Shaifer. Apart from its lengthy and irrelevant discussion of what the affiant believes is customary in the water industry, 1 the Shaifer Affidavit could have been submitted January 27 with the original motion. 1 Unqualified as an expert, Mr. Shaifer, who indicates that is himself an attorney, shares recollections about starting the company along with a grab-bag of legal conclusions and personal views about why PWC should be able to charge certain fees, in essence, because they have always done so. He also submits hearsay statements from sources like the “American Water Works Association,” none of them germane to the validity of the Surprise Fee, none of them germane to PWC’s motion to transfer, and all of which – even apart from their late and prejudicial nature – lack evidentiary value. 3 It was not, and to submit it as a new affidavit, PWC was required to seek leave of Court and to show excusable neglect. See O.C.G.A. § 9-11-6 (b) (trial court may, “upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect”). See also Hershiser v. Yorkshire Condominium Ass'n, Inc., 410 S.E.2d 455, 456, 201 Ga.App. 185, 185 (1991) (“…the party seeking to file affidavits late must make a motion and obtain an extension from the court”). PWC did not request leave of Court to submit any additional motion, authority, or affidavit as the Civil Practice Act would have required. Suds Club therefore objects to the late submission, respectfully requesting that the Court strike and, as is required absent a proper motion for leave, disregard the motion and affidavit. Hershiser, 410 S.E.2d 455, 457, 201 Ga. App. at 186 (reversing state court for failure to grant motion to strike and considering untimely supplemental affidavits). B. The second-filed Putnam Action is improper and should have no bearing on the Motion to Transfer, which should be denied. The only new information PWC shares with the Court in its Second Motion is that PWC has again – before the Court has ruled on its first motion to transfer and again before the Court has ruled on Suds Club’s pending 4 motion for summary judgment concerning the Surprise Fee – has decided to go ahead and file in Putnam County, including Suds Club as a Defendant and seeking to force payment of the Surprise Fee. As the Court is aware from counsel’s update email, PWC filed a complaint and requested an ex parte TRO in Putnam County, including Suds Club as a defendant, and raising the very same issue (opening of the adjoining and separate car detailing business, F-5 Services, Inc.) that PWC previously argued, before this Court, was a basis for service disconnection. This Court noted at hearing that the issue was premature, separating the F-5 business from the question of Suds Club’s operation and the Surprise Fee. Rather than waiting, however, – on that issue or for the Court to address its motion to transfer to Putnam County – PWC again took unilateral action and even obtained an ex parte TRO. 2 2 After a Zoom hearing that Suds Club’s counsel was permitted to attend and observe, and a colloquy about the speculative nature of PWC’s allegations, the Putnam Court initially denied the requested TRO. Suds Club continues to dispute the allegations and as necessary, Suds Club will also move to dissolve this TRO. In the meantime, should the Court determine that Suds Club’s motion for summary judgment should be granted, it would at least in part help to reduce the additional unnecessary work PWC has already created for Suds Club, in seeking to relitigate issues pertaining to the Surprise Fee in Putnam County. See O.C.G.A. § 9-11-1 5 That this second filing is not permitted by Georgia statute, certainly as to Suds Club, seems clear. Suds Club has therefore filed a plea in abatement and motion to dismiss all claims against it in the Putnam Action. For the Court’s reference, a copy of that motion and brief (without its voluminous exhibits, multiple of which are filings in this Court) is attached as Exhibit A. PWC suggests that this second-filed action against Suds Club, which never should have been filed, has somehow enhanced the “local interest” of Putnam County. It has not not. PWC’s failure to await this Court’s rulings, and violation of procedural rules should not be rewarded. Further, as Suds Club pointed out previously, the case before the Court “is a commercial dispute, related only to whether or not billing by PWC of the Surprise Fee to Sud’s Club is valid. … And PWC’s [now dismissed] counterclaims confirm as much: they contend that they are owed the Surprise Fee, not based upon any statute or regulation, but under garden- variety commercial theories (open account, unjust enrichment, promissory estoppel).” (Resp. to Mot. to Transfer filed 3-10-23 at 6-7.) (Civil Practice Act to be “construed to secure the just, speedy, and inexpensive determination of every action.”) 6 Finally, even putting the best construction on PWC’s behavior and the second-filed Putnam Action, the other O.C.G.A. § 9–10–31.1(a) factors, taken together, continue to weigh against PWC. It simply cannot carry its required burden to justify transferring this case from its own home county, and its motion to transfer should be denied. See R.J. Taylor Mem. Hosp., Inc. v. Beck, 631 S.E.2d 684, 686, 280 Ga. 660, 662 (Ga. 2006) (discussing movant’s burden and affirming denial of motion to transfer venue). III. Conclusion and Request for Relief The Second Motion and its accompanying Shaifer Affidavit should be stricken and disregarded, and PWC’s motion to transfer should be denied. Considering the factors in OCGA § 9–10–31.1(a), PWC has not and cannot carry its heavy burden of changing venue on forum non conveniens grounds and thus should not be allowed to upset Plaintiff’s choice of a proper venue. 7 Dated: May 25, 2023. Respectfully submitted by THE FLAKE LAW FIRM, LLC /s/Andrew B. Flake Andrew B. Flake Georgia Bar No. 262425 1778 Century Blvd. NE, Suite A Atlanta, Georgia 30345 Telephone: 678-528-1688 E: andrew.flake@flakelaw.com Counsel for Sud’s Club, LLC 8 EXHIBIT A 9 CLERK OF SUPERIOR COURT PUTNAM COUNTY, GEORGIA 2023-SU-CV-0084 THE SUPERIOR COURT OF PUTNAM COUNTY MAY 24, 2023 05:34 PM STATE OF GEORGIA PIEDMONT WATER COMPANY, and ) OCONEE CROSSING WRF, LLC, ) ) Plaintiffs, ) CIVIL ACTION NO. ) 2023-SU-CV-0084 v. ) ) JACOB FRIED, SUD’S CLUB, LLC, ) and F-5 SERVICES, INC., ) ) Defendants. ) DEFENDANT SUD’S CLUB, LLC’S PLEA IN ABATEMENT AND MOTION TO DISMISS WITH BRIEF IN SUPPORT THEREOF 1. Under OCGA §§ 9–2–5(a) and 9–2–44(a), Defendant Sud’s Club, LLC (hereinafter “Suds Club”) moves this Court to dismiss the above-styled action due to duplication and overlap with claims and issues in a pending action. The presence of a prior pending action in DeKalb County (the “DeKalb Action”) between Suds Club and Plaintiff Piedmont Water Company (“PWC”) acts as a bar to the assertion of any claims against Suds Club in this second action, much less the very same claim and assertions about the very same issue, a disputed “capacity fee.” 2. Indeed, given PWC’s prior dismissal of claims in the DeKalb action, PWC’s only means of asserting any claim arising from its billing to Suds Club is by requesting and obtaining leave in the DeKalb Action. At present, however, in this action, Georgia statute precludes any action with respect to Suds Club other than dismissal of any and all of PWC’s claims. BACKGROUND FACTS 3. This case is duplicative of a currently pending action, Suds Club v. Piedmont Water Company, Civil Action File 22CV8928 (in the Superior Court of Dekalb County, filed Oct. 14, 2022). 4. The DeKalb Action concerns an improper surprise fee charged to Suds Club by PWC (the “Surprise Fee”), and PWC’s related effort to seek disconnection of Suds Club’s water service. Suds Club incorporates by reference its Verified Complaint in the DeKalb Action, as well as the Answer and Counterclaims filed Dec. 16, 2022 by PWC, true and correct copies of which are attached hereto as Exhibits 1 and 2, respectively. 5. In the DeKalb Action, PWC was enjoined based upon the same effort to disconnect Suds Club it references in its Complaint in this proceeding, most recently by Order entered March 9, 2023. A true and correct copy of that Order is attached hereto at Exhibit 3. 6. Specifically, one basis on which PWC has previously sought to disconnect Sud’s Club was PWC’s allegations concerning the neighboring F-5 Services, Inc. business. Mar. 3, 2023 Motion for Interlocutory Injunction, Ex. A (Letter 2 dated Mar. 2, 2023 to Suds Club from PWC); a true and correct copy of that Motion is attached at Exhibit 4. 7. Prior to the DeKalb Court’s entry of the injunction order restraining PWC, the same issues were argued. See Suds’ Club’s Mar. 6, 2023 Supplement to its Motion for Interlocutory Injunction, a true and correct copy of that Motion is attached at Exhibit 5. 8. Now, it is clear that PWC is raising the Surprise Fee issue, and making the same allegations and requests concerning disconnection, that it has in the DeKalb Action: • PWC alleges Suds Club seeks “to have other customers subsidize their substantial usages by an unwarranted refusal to pay amounts due…” and that PWC “may be required to disconnect Defendants’ services …” (PWC Ver. Compl. ¶ 1.) • PWC asserts a claim for “attorney fees for their stubborn litigiousness and bad faith refusal to pay the amounts owed to Plaintiffs for water and sewer services.” (PWC Ver. Compl. ¶ 1.) 1 • Paragraph 43-71 of the Verified Complaint directly re-alleges contentions concerning the Surprise Fee, including allegations that 1 While the Complaint largely lumps all “Defendants” together, these allegations can only refer to Suds Club, since F-5 has not yet established service. 3 Suds Club was required to accurately estimate its water usage and did not do so. (PWC Ver. Compl. ¶¶ 43-71.) • Even the requested relief is the same; PWC threatens to disconnect Suds Club’s service based on the Surprise Fee and/or based on allegations concerning F-5. (See PWC Ver. Compl. ¶ 127 (“Plaintiffs have at their disposal the available remedy of disconnecting services at the Suds Club location….Plaintiffs will have no choice other than to disconnect services.”); (PWC Ver. Compl. ¶ 134 “Such injunction should continue until such time as (a) Defendants pay the balance of the capacity fee which has remained unpaid since they fraudulently or recklessly misrepresented Suds Club’s estimated water and sewer usages so significantly”). 9. On January 19, 2023, Suds Club filed a motion for summary judgment concerning the validity of the Surprise Fee. A true and correct copy of that Motion and the Memorandum of Law in Support are attached as Exhibit 6. This motion for summary judgment includes a request for summary judgment on PWC’s counterclaims, its sole support for the Surprise Fee. In response, PWC dismissed those claims without prejudice. 10.The summary judgment motion has been fully argued and awaits decision by the DeKalb Superior Court. 4 11.With respect to Suds Club, then, this case is not only a second-filed action, with the limited allegations substantially similar to those presented in the present action, but it also raises legal issues currently awaiting decision by another Superior Court. 12.Suds Club therefore seeks dismissal of any and all of the claims against it, and dismissal of this action. ARGUMENT AND CITATION TO AUTHORITY A. Any and all Claims Against Suds Club Should Have Been Asserted in the DeKalb Action as Compulsory Counterclaims, Cannot Now Be Asserted Here, and Must Be Dismissed. 13.The claims against Suds Club are compulsory counterclaims and unless PWC makes the required showing and receives leave from the DeKalb Superior Court to add them, they have been waived and cannot be asserted here. Smith v. Tronitec, Inc., 586 S.E.2d 661, 662, 277 Ga. 210, 211 (2003) (“When a claim should be raised as a compulsory counterclaim, a party may not raise the claim in a separate action.”); Blount v. Kicklighter, 186 S.E.2d 543, 545, 125 Ga.App. 159, 161 (1971) (“Before a delayed filing of a counterclaim is allowed, court should require the submission of evidence and make a finding therefrom as to whether the delay was occasioned by oversight, inadvertence or excusable neglect.”). 5 14.PWC asserts three claims against Suds Club, all of which should be dismissed, as all of them could have been asserted in the DeKalb Action. Count I (“Restraining Order and Injunction”) contains no substantive claim, but seeks injunctive relief against Suds Club based on non-payment of the Surprise Fee. Counts II (“Fraud”) and III (“Alternative Count for Misrepresentation”) is predicated entirely on PWC’s contention, repeated from the DeKalb Action, that Suds Club intentionally or recklessly estimated its monthly usage. Counts IV and V are also not substantive, but seek relief (exemplary damages and attorney’s fees) predicated on the other claims. 15.Each and every discernable claim PWC asserts in these counts against Suds Club, its other lack of merit aside, meets the definition of a compulsory counterclaim, i.e., a claim that (1) arises out of the same transaction or occurrence as the main claim; and (2) has matured at the time the answer is filed. See O.C.G.A. § 9-11-13(a); see also Idowu v. Lester, 337 S.E.2d 386, 387, 176 Ga. App. 713, 714 (1985) (the term “transaction or occurrence” has been given “a broad and realistic interpretation” and “[a]ny claim that is logically related to another claim that is being sued on is properly the basis for a compulsory counterclaim”). 16.Because they are compulsory, raising them here – or any other claims arising out of the same transaction or occurrence, and in particular, the Surprise Fee 6 – are barred. “It seems clear that a party may not raise issues arising out of the same transaction which should have been plead as a compulsory counterclaim in another separate suit.” Harbin Lumber Co., Inc. v. Fowler, 222 S.E.2d 878, 880, 137 Ga.App. 90, 92 (1975) (reversing for failure to dismiss claim that should have been asserted in first-filed action as counterclaim). See also Idowu v. Lester, 337 S.E.2d 386, 387, 176 Ga.App. 713, 714 (1985) (“…breach of contract claim is directly related to and was a compulsory counterclaim and party “could not decline to litigate and seek to bring a separate action…” 17. Further, it is irrelevant that PWC dismissed its prior counterclaims based on the Surprise Fee, as the “effect of the plea or defense cannot be avoided even by a dismissal of the first suit.” Id., 222 S.E.2d 878, 880, 137 Ga. App. 90, 91 (Ga.App. 1975). B. Because of the Pendency of the DeKalb Action, Suds Club has a Statutory Defense in Abatement, Such That Claims Against It, and This Action, Must Be Dismissed. 18.Two statutes speak directly to, and prohibit, PWC’s effort to bring claims against Suds Club here and to circumvent a prior pending action. The first is O.C.G.A.§ 9-2-5: No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If 7 two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter. 19.The second is O.C.G.A. § 9-2-44: A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter. 20.The purpose of the prior action pending doctrines reflected in both of these statutes is “to ensure judicial economy, to avoid inconsistent judgments, and to prevent harassment of the parties through multiple proceedings.” Jenkins v. Crea, 656 S.E.2d 849, 851, 289 Ga.App. 174, 176 (2008) 21.The remedy for this duplication, and the requirement, is clear: all claims against Suds Club must be dismissed and the action as a whole abated. See Premium Funding Solutions, LLC v. Metro Atlanta Task Force For Homeless, Inc., 776 S.E.2d 504, 506–07, 333 Ga.App. 718, 720–22 (015) (pendency of a related action was good cause for abatement because the related action and the case in question both involve rights to the same subject matter). 22.The Court in Premium Funding Solutions found that "when there are two lawsuits involving the same cause of action and the same parties that were filed at different times but that both remain pending in Georgia courts, the 8 later-filed suit must be dismissed." Premium Funding Solutions, 776 S.E.2d at 507. 23.These statutory bars sweep even in instances in which the second suit involves different claims: [a] plea in abatement has been held good even where the causes of action are, technically speaking, legally disparate and rest in opposite parties, if they arise out of the same transaction and if the second suit would resolve the same issues as the first pending suit and would therefore be unnecessary, and consequently oppressive. Premium Funding Solutions, 776 S.E.2d at 507, 333 Ga.App. at 721 (Ga.App., 2015) (quoting Schoen v. Home Federal S & L Assn., 154 Ga.App. 68, 69, 267 S.E.2d 466 (1980).) 24.In the present case, of course, both the Dekalb County Action and this action involve the same parties and the same subject matter. Indeed, PWC places the very legal issue before the DeKalb Superior Court – the validity of the Surprise Fee – at issue here: It seeks an injunction to pressure Suds Club to pay the Surprise Fee. (See PWC Ver. Compl. ¶¶ 43-71 (making same allegations); PWC Ver. Compl. ¶ 135 (asking that “a restraining order should issue to prevent Defendants from opening the F-5 business until such time as Defendants fully comply with all requirements, as set forth herein.”). See also id, Request for Relief at 31 requesting that (“Defendants be restrained … open the business in the new building at F-5’s new location on Old Phoenix Road 9 (Tax Parcel 103A073) and enjoined until such time as (i) Defendants pay the balance of the capacity fee …”). 25.As such, following the precedent set in Premium Funding Solutions and the other authority cited in this brief, this case should be dismissed due to the pendency of the Dekalb County action. If PWC believes it has counterclaims against Suds Club (apart from the ones it previously asserted there), it must seek leave from the DeKalb Superior Court to do so. WHEREFORE, Defendant respectfully request that the Court (a) grant Suds Club’s plea in abatement and dismiss all claims against it; and (b) grant such other and further relief as the Court deems just and proper. 10 Respectfully submitted this 24th day of May, 2023. /s/Andrew B. Flake Andrew B. Flake Georgia Bar No. 262425 The Flake Law Firm, LLC 1778 Century Blvd. NE, Suite A Atlanta, Georgia 30345 Telephone: 678-528-1688 E: andrew.flake@flakelaw.com Counsel for Sud’s Club, LLC /s/Christopher D. Huskins Christopher D. Huskins Georgia Bar No. 380148 Huskins Law Firm, LLC 114 ½ West Marion Street Eatonton, GA 31024 Telephone: 706-485-2411 E: chris@huskinslawfirm.com Counsel for Sud’s Club, LLC 11 CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the within and foregoing Acknowledgment of Service on the following via Peachcourt: Robert S. Huestis, Esq. Counsel for Plaintiffs rhuestis@bbga.com This 24th day of May, 2023. THE FLAKE LAW FIRM, LLC /s/ Andrew B. Flake Andrew B. Flake 1778 Century Blvd NE, Ste A Georgia Bar No. 262425 Atlanta, Georgia 30345 Counsel for Sud’s Club, LLC (678) 528-1688 andrew.flake@flakelaw.com CERTIFICATE OF SERVICE The attorney whose name appears on this Certificate of Service certifies that he has this day caused to be served all counsel of record in this action with the foregoing by Odyssey e-filing. This 25th day of May, 2023. /s/Andrew B. Flake Andrew B. Flake THE FLAKE LAW FIRM, LLC 1778 Century Blvd. NE, Suite A Atlanta, Georgia 30345 T: 678-528-1688 E: andrew.flake@flakelaw.com 10