Case S20G1368 Filed 02/22/2021 Page 1 of 32

IN THE OF THE STATE OF

CASE NO. S20G1368

COOPER TIRE & RUBBER COMPANY,

Appellant,

v.

TYRANCE MCCALL,

Appellee.

BRIEF OF APPELLANT

Christopher S. Anulewicz Georgia Bar No. 020914 BALCH & BINGHAM LLP 30 Ivan Allen Jr. Boulevard, Suite 700 Atlanta, Georgia 30308 Telephone: (404) 261-6020 Facsimile: (404) 261-3656

Eric D. Ruben Pro Hac To Be Applied For Douglas E. Horelick Pro Hac To Be Applied For CLYDE & CO US LLP 1221 Brickell Ave. Suite 1600 Miami, Florida 33141 Telephone: (305) 446-2646 Facsimile: (305) 441-2374

Attorneys for Appellant

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Appellant Cooper Tire & Rubber Company (“Cooper”) requests this Court to reverse the Georgia Court of Appeals’ decision in McCall v. Cooper Tire & Rubber

Company, 355 Ga. App. 273 (2020) (the “Opinion”), and overrule its own decision in Allstate Ins. Co. v. Klein, 262 Ga. 599 (1992).

I. INTRODUCTION Twenty-nine years ago, in the shadow of the United States Supreme Court’s prior personal jurisdiction jurisprudence, this Court in Allstate Ins. Co. v. Klein, 262

Ga. 599 (1992), held Georgia courts can exercise general1 personal jurisdiction over foreign corporations solely because those corporations registered to do business here. Klein was based on a flawed statutory interpretation of Georgia’s specific jurisdiction long arm statutes, O.C.G.A. §§ 9-10-90 and 9-10-91. Klein recognized that personal jurisdiction must also comport with the Due Process Clause of the U.S.

Constitution. In dicta, Klein surmised the exercise of general personal jurisdiction based solely on business registration complied with due process. Klein was wrongly decided and its holding violates the Due Process Clause. Klein should be overruled.

Since Klein, the U.S. Supreme Court has adopted a new, bright-line due process standard that permits states to exercise general personal jurisdiction only

1 “General personal jurisdiction” is interchangeable with “all-purpose personal jurisdiction.” See Daimler AG v. Bauman, 571 U.S. 117, 121 (2017). This Brief refers to “general personal jurisdiction.”

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when a foreign defendant is “at home” in the state.2 See Goodyear Dunlop Tires

Operation, S.A. v. Brown, 564 U.S. 915 (2011); Daimler AG v. Bauman, 571 U.S.

117 (2014); BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549 (2017); Bristol-Myers

Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773

(2017). In Goodyear, Daimler, BNSF, and Bristol-Myers, the U.S. Supreme Court held a foreign corporation is subject to general jurisdiction consistent with due process only (1) in the state of its incorporation, (2) in the state of its principal place of business, and (3) in an “exceptional case” where its operations are so substantial and of such a nature as to render the corporation “at home” in a state. Since Daimler, due process prohibits states from extending general jurisdiction over foreign corporations beyond these “at home” criteria.

Cooper is a corporation with its principal place of business in Ohio.

Appellee Tyrance McCall is a Florida resident who was involved in an automobile accident in Florida. McCall alleges a tire on the accident vehicle was defectively designed (in Ohio) and manufactured (in Arkansas) by Cooper. McCall did not sue

Cooper in Delaware, Ohio, Florida, or Arkansas. Instead, McCall, relying on Klein, sued Cooper in Georgia solely on the basis that Cooper is registered to do business here. The trial court dismissed McCall’s complaint against Cooper for lack of

2 This new standard eliminated the prior standard’s focus on the magnitude of a defendant’s in-state contacts.

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jurisdiction because Cooper is not “at home” in Georgia.3 The Georgia Court of

Appeals reversed, finding it was bound by Klein to conclude that, because Cooper is registered to do business in Georgia, Cooper is a resident corporation that may be sued in Georgia to the same extent as a domestic corporation. See McCall, 355 Ga.

App. at 274-75. The Court of Appeals’ Opinion violates Cooper’s due process rights.

Every state supreme court and federal to have considered this issue since Daimler has held mere compliance with a state’s corporate registration statute cannot subject a foreign corporation to that state’s general jurisdiction and still comport with due process.4 Georgia should overturn Klein and bring its jurisprudence in line with Goodyear, Daimler, BNSF, Bristol-Myers, and the uniform chorus of case decisions extending therefrom.

II. STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to Ga. Const., Art. VI, § 6, ¶ 5.

3 The trial court determined it did not have general or specific personal jurisdiction over Cooper. [V3:392] McCall did not challenge the trial court’s specific personal jurisdiction finding on appeal. 4 “After Daimler, there is ‘little room’ to argue that compliance with a state’s ‘bureaucratic measures’ render [sic] a corporation at home in a state.” Waite v. All Acquisition Corp., 901 F.3d 1307, 1318 (11th Cir. 2018) (quoting Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2nd Cir. 2016)). If this were not true, “[g]iven the number of states that subject foreign corporations to domestication requirements, foreign corporations would likely be subject to general jurisdiction in every state where they operate – a result directly at odds with the views expressed by the Court in Daimler.” Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 136 (4th Cir. 2020).

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III. STATEMENT OF THE CASE

A. Relevant Facts McCall is a resident of Florida. [V3:327] On April 24, 2016, McCall was a passenger in a vehicle owned and operated by Karla Gould5 in Florida when the left rear tire experienced a tread separation. [V3:330, 331] Gould failed to control the vehicle, which left the roadway and rolled over. [V3:332, 333] McCall was ejected from the vehicle and sustained non-life threatening injuries. [V3:332]6 The tire at issue is a Dakota H/T Definity M+S brand P265/70R17 passenger tire, bearing

Department of Transportation number UTT6PA74612, indicating it was manufactured at Cooper’s Texarkana, Arkansas, plant in 2012. [V2:148; V3:330]

McCall’s complaint claims Cooper is liable in strict liability and negligence and seeks punitive damages for the injuries he sustained in the Florida accident.

[V3:333-46] As to jurisdiction, the complaint alleges:

Defendant Cooper Tire & Rubber Company (“Cooper Tire”) is a foreign entity with its principal place of business in Findlay, Ohio. On April 14, 2016, at the time Plaintiff McCall’s cause of action arose as set forth in the First Amended Complaint, Cooper Tire was authorized to do or to transact business in the State of Georgia and has remained so authorized at all times pertinent to this First Amended Complaint.

5 Gould is a Georgia resident who bought the car used and with the subject used tire already mounted on it from Defendant Pars Car Sales, Inc. in Duluth, Georgia in 2016. [V3:329, 331] The claims against these Georgia defendants are pending in the trial court. 6 McCall chose to file his complaint in Georgia because he was not wearing a seatbelt at the time of the accident. Florida recognizes the “seatbelt defense” in personal injury actions, whereas Georgia does not.

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Cooper Tire, therefore, is a “resident” of the State of Georgia for purposes of personal jurisdiction over it in this action pursuant to O.C.G.A. §§ 9-10-90, 9-10-91, and other applicable authority.

[V3:327-28]

As the complaint acknowledges, Cooper is a Delaware corporation with its principal place of business in Ohio. [V2:147; V3:327] Cooper does not maintain any bank accounts or corporate records, own any property, conduct any corporate meetings of officers or directors, maintain any research and development divisions, maintain any testing or manufacturing facilities, or employ any chemists, engineers, or any other employees involved in the design and/or manufacture of tires in

Georgia, and it never directly targeted Georgia for any marketing campaign including for the sale of the type of tire in this accident. [V2:148] Between 2013 and 2017 an average of only 3.7% of Cooper’s worldwide sales were made in

Georgia, and an average of only 4.1% of its nationwide sales were made in Georgia.

[V2:148; V3:466] Thus, 96.3% of Cooper’s worldwide sales and 95.9% of its nationwide sales were not in Georgia.

B. Proceedings Below Cooper expressly raised in the trial court the question of the constitutionality of the Klein Court’s interpretation of Georgia’s long arm and business registration statutes, and Cooper argued Klein had been invalidated by Daimler and could not stand in the face of Daimler. [V3:359-61, 412-13, 415, 416, 417; T:17] On

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December 7, 2018, the trial court, citing BNSF, granted Cooper’s motion to dismiss for lack of personal jurisdiction, finding Cooper “showed it is not at home in

Georgia, for the purposes of general personal jurisdiction.” [V3:392] On March 12,

2019, the trial court denied McCall’s motion for reconsideration of its order, rejecting, including on constitutional grounds, the arguments made by McCall and rebutted by Cooper that Georgia statutes subjected Cooper to general jurisdiction via

“residency.” [V2:12] The trial court stated:

For the reasons set forth in ... Cooper’s response to the Plaintiff’s motion, the Court sees no reason to modify or abrogate its order dismissing Cooper for lack of personal jurisdiction. See Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty. 137 S. Ct. 1773 (2017); BSNF Ry. v. Tyrell, 137 S. Ct. 1549 (2017). See also Ga Const. Art. 1, § 2, ¶ V (“Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.”); Carpenter v. McMann, 304 Ga. 209 (2019) (where the court reiterated the rule that, “constitutional provisions take supremacy over legislative enactments when the two are in irreconcilable conflict and that the judiciary has an independent, constitutionally-mandated role to ensure that the constitution is enforced when it is in conflict with legislative enactment”).

[V2:12] The trial court further held it could not interpret Georgia statutes to confer jurisdiction in a manner inconsistent with the U.S. Constitution or the Georgia

Constitution. [V2:12]

In the Court of Appeals, Cooper again argued Klein’s interpretation of

O.C.G.A. §§ 9-10-90 and 9-10-91 as subjecting a foreign corporation to general jurisdiction in Georgia merely by virtue of its registering to do business here violates

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the Due Process Clause and cannot stand in light of the controlling U.S. Supreme

Court opinions in Goodyear, Daimler, BNSF, and Bristol-Myers. See Brief of

Appellee at, e.g., 4, 10, 12-16, 21, 25.

On June 1, 2020, the Court of Appeals reversed the trial court’s dismissal, finding “binding precedent establishes that Cooper Tire is a resident corporation subject to suit in Georgia.” McCall, 355 Ga. App. at 274. The Court of Appeals held it could not “ignore or alter Klein’s” holding “that a foreign corporation

‘authorized to do or transact business in this state at the time a claim arises is a

“resident” for purposes of personal jurisdiction over that corporation in an action filed in the courts of this state’” such that it “‘may sue or be sued to the same extent as a domestic corporation.’” Id. (quoting Klein, 262 Ga. at 601); see also Ward v.

Marriott Int’l., 352 Ga. App. 488 (2019).

On February 1, 2021, this Court granted Cooper’s Petition for Writ of

Certiorari with respect to the following questions: (1) is Klein’s holding that “the courts of this State have jurisdiction over ‘a corporation which is “authorized to do or transact business in this state at the time a claim” arises’ … based on statutory construction, federal or state constitutional law, common law, something else, or some combination thereof”; (2) should Klein be overruled “in light of recent [U.S.]

Supreme Court decisions on personal jurisdiction under the Due Process Clause”;

(3) to what extent does stare decisis counsel against overruling Klein; (4) was the

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argument that Klein’s holding should be reconsidered properly raised below; and (5) is Cooper subject to this suit in Georgia? Those questions are addressed below.

III. ENUMERATION OF ERROR The Court of Appeals erred in reversing the dismissal of McCall’s complaint against Cooper based on its ruling that Georgia courts can exercise general personal jurisdiction over Cooper merely because it is registered to do business in Georgia.

IV. ARGUMENT AND CITATION TO AUTHORITY

A. Standard of Review This Court reviews de novo a motion to dismiss for lack of personal jurisdiction decided on written submissions, and not oral testimony. See American

College Connection, Inc. v. Berkowitz, 332 Ga. App. 867, 868 (2015).

B. The Personal Jurisdiction Holding in Klein Is Based on Statutory Interpretation and Erroneous Constitutional Assumptions Klein’s general personal jurisdiction holding was based on an incorrect statutory interpretation of Georgia’s specific jurisdiction long arm statutes,

O.C.G.A. §§ 9-10-90 and 9-10-91. See Klein, 262 Ga. at 600-01. Klein incorrectly held that since the definition of “nonresident” in O.C.G.A. § 9-10-90 excludes foreign corporations registered to do business in this state, any foreign corporation so registered must be a “resident” for personal jurisdiction purposes. See id. at 601.

Klein also erred in assuming its decision was constitutional. Klein recognized its statutory interpretation was bound by procedural due process. See id. at 601 n.3.

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In dicta, Klein stated it “appears that the definition [of nonresident in O.C.G.A. § 9-

10-90] does not run afoul of the ‘minimum contacts’ requirement of procedural due process.” Id. But Klein’s dicta regarding constitutionality applied a pre-Daimler standard that Goodyear, Daimler, BNSF, and Bristol-Myers superseded.7

Klein’s interpretation O.C.G.A. §§ 9-10-90 and 9-10-91 is unconstitutional under Daimler’s mandatory “at home” due process standard. Klein also erred in interpreting Georgia’s long arm statutes to infer that the established residency, and thus general personal jurisdiction, for foreign corporations registered to do business in Georgia.

The long arm statute provides in relevant part, “[a] court of this state may exercise personal jurisdiction over any nonresident ... as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this

Code section ....” O.C.G.A. § 9-10-91 (emphasis added). This language tracks the specific jurisdiction requirement that the cause of action must “arise out of or relate to the defendant’s contacts with the forum.” Bristol-Myers, 137 S. Ct. at 1780

7 Even under the pre-Daimler standard, the constitutionality of Klein’s holding was dubious at best. In International Shoe Co. v. State of Wash., 326 U.S. 310 (1945), the U.S. Supreme Court acknowledged, “it has been generally recognized that the casual presence of the corporate agent ... [is] not enough to subject it to suit on causes of action unconnected with the activities there” as it would “lay too great and unreasonable a burden on the corporation to comport with due process.” 326 U.S. at 317 (emphasis added).

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(internal quotes and emphasis omitted). In other words, the long arm statute provides a means for holding foreign corporations accountable for their Georgia activities. The language of section 9-10-91, however, is in sharp contrast to the rule that general jurisdiction, allowing adjudication of “any claim” against a defendant arising out of its activities anywhere in the world, is proper only in a state where “the corporation is fairly regarded as at home.” Id. (emphasis in original). The plain language of O.C.G.A. § 9-10-91 provides for exercising specific jurisdiction over foreign defendants; it has no applicability to the exercise of general jurisdiction.

Overlooking this distinction, Klein held, if O.C.G.A. § 9-10-91 only applies to “nonresidents,” and “nonresident” is defined in O.C.G.A. § 9-10-90 as “a corporation which is not organized or existing under the laws of this state and is not authorized to do or transact business in this state,” then “a [foreign] corporation which is authorized to do or transact business in this state … is a ‘resident’ for purposes of personal jurisdiction [and] may sue or be sued to the same extent as a domestic corporation.” Klein, 262 Ga. at 601 (emphasis in original). Based on this reading, Klein erroneously concluded that plaintiffs wishing to sue registered corporations are “not restricted by the [specific-jurisdiction long arm statute’s] requirement that a cause of action arise out of a defendant’s activities within the state.” Id. This is wrong.

O.C.G.A. § 9-10-90 simply defines “nonresident” for purposes of “this

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article,”8 meaning for purposes of specific, long arm jurisdiction. Nothing in the long arm statute says an entity not defined as a “nonresident” is a resident for general jurisdiction purposes.9 Nor could it do so constitutionally. The plain language of

O.C.G.A. §§ 9-10-90 and 9-10-91 does not confer “resident” status or “general jurisdiction,” and it is “questionable ... to assume that when a foreign corporation does not meet the definition of nonresident, it must ipso-facto be deemed a resident foreign corporation ....” Van Detta & Kapoor, “Extraterritorial Personal Jurisdiction for the Twenty-First Century,” 3 SETON HALL CIRCUIT REV. 339, 350, n.19 (2007)

(addressing Klein’s interpretation of Georgia long arm statute and acknowledging,

“[t]he arising from language [in O.C.G.A. § 9-10-91], of course, limits the statute to specific personal jurisdiction”) (cited with approval in Huggins v. Boyd, 304 Ga.

App. 563, 567 (2010) (Barnes, J., concurring)); see also BNSF, 137 S. Ct. at 1558

(defining the types of personal jurisdiction and finding, where cause of action does not arise out of or relate to defendant’s in-state activities, “only the propriety of general jurisdiction is at issue”).

In a footnote, Klein also states its holding “is consistent with the statutory

8 “[T]his article” means Article 4 of Chapter 10 of Title 9, which deals only with specific long arm jurisdiction, venue, and service over nonresidents. Article 4 does not confer “general jurisdiction” over nonresidents, nor could it constitutionally extend general jurisdiction over nonresidents that are not at home in Georgia. 9 See Pratt & Whitney Canada, Inc. v. Sanders, 218 Ga. App. 1, 2 (1995) (recognizing type of jurisdiction Klein purported to confer is “general jurisdiction”).

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effect of” Georgia’s business registration statute, O.C.G.A. § 14-2-1505(b), which provides a registered foreign corporation “is subject to the same duties, restrictions, penalties, and liabilities” as a domestic corporation. Klein, 262 Ga. at 601 n.2

(quoting O.C.G.A. § 14-2-1505(b)). Nothing in Georgia’s registration statute even suggests “residency” or “general personal jurisdiction” is conferred by corporate registration,10 and nothing in it warns foreign businesses that they relinquish their due process rights and submit to Georgia’s general jurisdiction upon registration.11

Numerous courts construing registration statutes nearly identical to section

14-2-1505(b) have found those statutes do not, and cannot, confer residency or impose general personal jurisdiction upon foreign registrants. For example,

O.C.G.A. § 14-2-1505(b) is materially identical to Wisconsin’s registration statute,

10 Business registration statutes were enacted to provide a means for in-state service on registered agents of foreign corporations to subject them “to the jurisdiction of local courts in controversies growing out of transactions within the state.” Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 408-09 (1929) (emphasis added); see also DeLeon v. BNSF Railway Co., 392 Mont. 446, 452 (2018) (“registration statutes were designed to allow states to confer specific jurisdiction over foreign corporations”); Brown, 814 F.3d at 632 (same). 11 Other portions of the corporations code are inconsistent with Klein’s reasoning. See O.C.G.A. § 14-2-1131(3) (defining “resident domestic corporation” as one “organized under the laws of this state”); O.C.G.A. § 14-2-140 (defining “foreign corporation” as a corporation “incorporated under a law other than the law of this state”); see also Connex v. Freight Systems, Inc. v. Georgia Ins. Insolvency Pool, 245 Ga. App. 92, 95 (2002) (“Many corporations ... are authorized to do business and operate facilities in multiple states. Allowing a corporation to establish residency under the Act by simply transacting business in the state would lead to numerous states of residency, undermining the single residency requirement”).

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Wisc. Stat. § 180.1505(2). The Wisconsin Supreme Court, in a post-Daimler opinion, rejected the plaintiff’s argument that the statute placed registered foreign corporations “on equal footing with domestic companies,” because it “offers no warning that exposure to suits in Wisconsin for claims arising elsewhere is a consequence of registration.” Segregated Account of Ambac Assurance Corp. v.

Countrywide Home Loans, Inc., 376 Wis. 2d 528, 547-48 (2017). Registration alone could not provide for general jurisdiction, as it would extend “general jurisdiction beyond the tapered limits [of Daimler] ... [and] reflect the ‘sprawling view of general jurisdiction’ rejected by the Supreme Court in Goodyear.” Id. at 548, 552;12 see also

Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 138 (4th Cir. 2020) (South Carolina statute with language materially identical to Georgia’s “does not make consent to general jurisdiction a consequence of obtaining a certificate of authority to transact business”; “due process require[s] more than mere compliance with a state’s domestication statute”); Waite v. All Acquisition Corp., 901 F.3d 1307, 1318 (11th

Cir. 2018) (reviewing Florida statute with language materially identical to Georgia’s

12 The Wisconsin court also cautioned against the “perverse incentive” for companies not to register in the state to avoid general jurisdiction since “foreign corporations that comply with our laws would be penalized for doing so.” Id. at 546 n.16; see also AstraZaneca AB v. Mylan Pharm., Inc., 72 F. Supp. 3d 549, 557 (D. Del. 2014) (if compliance with registration statute were enough for general jurisdiction, it “would lead to perverse incentives: foreign companies that comply with the statute in order to conduct business lawfully are disadvantaged, whereas those who do not register and do business in Delaware illegally are immune”).

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and holding “[n]othing in these provisions would alert a corporation that its compliance would be construed as consent to answer in Florida’s courts for any purpose”); Lanham v. BNSF Ry. Co., 305 Neb. 124, 134 (2020) (reviewing statute nearly identical to Georgia’s and holding “treating BNSF’s registration to do business in Nebraska as implied consent to personal jurisdiction would exceed the due process limits prescribed in Goodyear … and Daimler”); Aspen Am. Ins. Co. v.

Interstate Warehousing, Inc., 90 N.E.3d 440, 447 (Ill. 2017) (holding statute with language materially identical to Georgia’s “makes no mention of personal jurisdiction at all”; “the fact that a foreign corporation registered to do business in

Illinois is subject to the same duties as a domestic one in no way suggests that the foreign corporation has consented to general jurisdiction”).

Neither Georgia’s long arm statute nor its registration statute establishes residency or general jurisdiction.13 The Klein Court erred by reading into the long arm statute and the registration statute the imposition of general personal jurisdiction over every foreign registered company, where such status was not imposed by the

General Assembly. See, e.g., DeLeon v. BNSF Railway Co., 392 Mont. 446, 454

(2018) (rejecting argument that in-state business plus compliance with state

13 In the 26 years between the long arm statute’s enactment and Klein, there is no suggestion that a foreign business registered to do business here is “resident” for purposes of general jurisdiction by under that statute. See Laws 1966, p. 343, § 1.

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registration statute—neither of which was enough to satisfy “at home” due process standard on its own—could combine to confer general jurisdiction, because “[z]ero plus zero is still zero”).

Thus, Klein’s statutory construction is wrong, as is its supposition on the constitutionality of that construction. Even if Klein’s statutory construction was correct, that construction clearly fails in light of the due process constraints recognized in Goodyear, Daimler, BNSF, Bristol-Myers, Segregated Account,

Fidrych, Waite, Lanham, Aspen, and the multitude of cases discussed below.

C. This Court Should Overrule Klein’s Personal Jurisdiction Holding in Light of Bristol-Myers, BNSF, Daimler, and Goodyear 1. U.S. Supreme Court Precedent, and Not Klein, Controls on U.S. Constitutional Questions

This Court “is ‘bound by the Constitution of the United States as its provisions are construed and applied by the Supreme Court of the United States.’” Collier v.

State, 307 Ga. 363, 367 n.2 (2019) (quoting Coley v. State, 231 Ga. 829, 832 (1974)); see also O’Neal Steel, Inc. v. Smith, 120 Ga. App. 106, 111 (1969) (whether exercise of jurisdiction over foreign corporation violates Due Process Clause “is a federal question and, of course, the state authorities are not controlling”).

Since Klein was decided in 1992, the U.S. Supreme Court has repeatedly held states are constitutionally barred from exercising general jurisdiction over any corporation not “at home” in the state. Pursuant to Goodyear, Daimler, BNSF, and

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Bristol-Myers, general jurisdiction over a corporation may only be exercised without running afoul of due process (1) in the state of its incorporation, (2) in the state of its principal place of business, and (3) in an “exceptional case”14 where the corporation’s operations “may be so substantial and of such a nature as to render the corporation ‘at home’ in that State.” That is it.

A state, through statute or case law, may not extend general jurisdiction over a foreign corporation beyond these clearly articulated grounds without violating due process. For example, in BNSF, the U.S. Supreme Court reviewed a

Supreme Court decision that approved personal jurisdiction over a foreign defendant based on the plain language of the state’s long arm statute, which provided for jurisdiction over defendants “found within ... Montana.” BNSF, 137 S. Ct. at 1553.

The U.S. Supreme Court found that since BNSF operated 2,000 miles of railroad track and employed more than 2,000 workers in Montana, it certainly “fit that bill.”

Id. at 1554. However, the Court held exercising personal jurisdiction over a foreign corporation based entirely on its compliance with the long arm statute’s plain language would violate due process. See id. Citing Daimler, the BNSF Court held,

14 Exceptional cases are limited to those unique instances where the forum acts as a “surrogate for the place of incorporation or head office.” Daimler 571 U.S. at 137, 139 n.19; see also BNSF, 137 S. Ct. at 1560 (Sotomayor, J., concurring in part, dissenting in part) (“it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation”).

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“[o]ur precedent ... explains that the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when the corporation is not ‘at home’ in the State and the episode-in-suit occurred elsewhere.”

Id.; see also Goodyear, 564 U.S. at 918-23 (“a state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, and is therefore subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause ... [which] sets the outer boundaries of a state tribunal’s authority to proceed against a defendant”). Just as the Montana Supreme Court erred in BNSF, the Klein Court erred in extending general jurisdiction over a foreign corporation based on a long arm statute. Here, Georgia courts may not constitutionally exercise general personal jurisdiction over Cooper because Cooper is not “at home” in Georgia.

BNSF foreclosed any notion that states could sidestep the “at home” due process standard via statute. “The Fourteenth Amendment due process constraint described in Daimler … applies to all state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary with the type of claim asserted or business enterprise sued.” BNSF, 137 S. Ct. at 1558-59 (emphasis added).

Although in dicta, Klein cited to Perkins v. Benguet Consol. Mining Co., 342

U.S. 437 (1952), for its supposition that it “appears” general jurisdiction by virtue of corporate registration “does not run afoul of the ‘minimum contacts’ requirement of procedural due process” (Klein, 262 Ga. at 601 n.3), the 69-year-old Perkins

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decision does not govern personal jurisdiction over foreign corporations after

Daimler. First, 20 years after Klein, the U.S. Supreme Court expressly abandoned the “minimum contacts” test for general jurisdiction in favor of the “at home” test, thereby overruling the constitutional standard on which Klein’s “due process” dicta was based. See Daimler, 571 U.S. at 131 (finding a defendant’s minimum contacts in a state no longer “warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant”) (emphasis in original).

Second, Daimler cited Perkins to show how extreme circumstances must be to qualify as an “exceptional case” where a corporation is “at home” somewhere other than its state of incorporation or principal place of business. Perkins involved a Filipino mining company that, during the Japanese occupation in World War II, temporarily moved its principal place of business to Ohio, where it was later sued.

See Daimler, 571 U.S. at 129-30. The U.S. Supreme Court found general jurisdiction was appropriate because “Ohio was the corporation’s principal, if temporary, place of business ... [and acted as a] surrogate for the place of incorporation or head office.” Id. at 117, 130 n.8. In other words, under Daimler’s due process standard, the corporate defendant in Perkins was subject to general jurisdiction in Ohio not merely because it had a representative physically present in

Ohio, but because its president moved the company to Ohio, ran its principal place of business there, and the corporation was therefore “at home” in Ohio. See BNSF,

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137 S. Ct. at 1558. Post-Daimler, Perkins does not support an argument that a foreign corporation is subject to general jurisdiction in Georgia merely by registering to do business here.

Georgia courts have always acknowledged the limits of personal jurisdiction over foreign defendants are constrained by the Due Process Clause. See

Amerireach.com LLC v. Walker, 290 Ga. 261, 266 (2011); Innovative Clinical &

Consulting Servs., LLC v. First Nat. Bank of Ames, 279 Ga. 672, 675-76 (2005); see also Bristol-Myers, 137 S. Ct. at 1780 (due process restrictions on state adjudicative power are “a consequence of territorial limitations on the power of the respective

States” and “[t]he sovereignty of each State ... implies a limitation on the sovereignty of all its sister States” such that jurisdiction is limited to those states deemed to have

“legitimate interest in the claims in question”). The Due Process Clause, as interpreted by the U.S. Supreme Court, prohibits Georgia’s exercise of personal jurisdiction over Cooper here.

2. Post-Daimler Cases Show Foreign Corporations Are Not Subject to General Jurisdiction Solely by Registering to Do Business in the Forum

Every state in the country and the District of Columbia has corporate registration requirements. See Brown v. Lockheed Martin Corp., 814 F.3d 619, 640

(2nd Cir. 2016). If registering to do business in a state can, as Klein holds, confer

“residency” status upon a foreign corporation and subject it to the state’s general

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jurisdiction, then any corporation can be sued in any state for anything, and Daimler would be rendered meaningless. See id. at 638 (if registration statutes could override

“at home” due process test, “Daimler’s ruling would be robbed of meaning by a back-door thief”). This absurdity has been rejected by Goodyear, Daimler, BNSF, and Bristol-Myers and, post-Daimler, by the highest court of every state and by every federal circuit to have addressed the question presented here. See BNSF, 137

S. Ct. at 1559 (“in-state business, we clarified in Daimler and Goodyear, does not suffice to permit the assertion of general jurisdiction over claims ... unrelated to any activity occurring in [the forum]”).

A Georgia federal district court applying Georgia law post-Daimler has expressly held corporate registration does not confer general jurisdiction. In Orafol

Americas, Inc. v. DBi Servs., LLC, No. 1:16-CV-3516-SCJ, 2017 WL 3473217

(N.D. Ga. July 20, 2017), the court rejected the plaintiff’s argument that Georgia had general jurisdiction over the foreign defendant DBi by virtue of its corporate registration, noting that Georgia’s long arm statute “must be construed to comport with the requirements of procedural due process” and holding it could only exercise general jurisdiction over DBi without running afoul of due process if it was “at home” in Georgia. Id. at *1-2. Although DBi had conducted two highway maintenance projects, maintained a project office, generated 3.3% of its revenue, and employed 46 persons in Georgia:

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these contacts are woefully insufficient to render DBi “at home” in Georgia. Every company that does any business in Georgia must register with the State and maintain a registered agent. Just because a company does some small amount of business in Georgia does not mean that due process will allow that company to be sued in Georgia for acts that occurred outside the State.

Id. *3; see also Hinkle v. Cirrus Design Corp., 775 Fed. Appx. 545, 550-51 (11th

Cir. 2019) (no general jurisdiction over foreign corporation registered to do business and with registered agent and sales representative in Florida); Cook v. Montanez,

No. CV 619-109, 2020 WL 2449346, *1-3 (S.D. Ga. May 15, 2020) (no general jurisdiction over foreign corporation registered to do business and with registered agent in Georgia); U.S. Securities Assocs., Inc. v. Lumby, No. 1:18-CV-5331-TWT,

2019 WL 8277263 at *5-6 (N.D. Ga. Sept. 25, 2019) (“due process requires more than registering to do business in the form and maintaining a registered agent”);

Brown v. Ford Motor Co., No. 3:18-CV-127-TCB, 2018 WL 5858123, *2 (N.D. Ga.

Nov. 9, 2018) (foreign corporation was not “at home” in Georgia; “[n]ormal in-state business does not suffice to convey general jurisdiction”).

Orafol, Hinkle, Cook, Lumby, and Brown comport with the decisions of the eight state supreme courts and four federal appellate courts that have considered this issue since Daimler, all of which have held a foreign corporation’s compliance with a state’s corporate registration requirements does not subject the corporation to general jurisdiction post-Daimler. See, e.g., Chufen Chen v. Dunkin’ Brands, Inc.,

954 F.3d 492, 499 (2nd Cir. 2020) (finding “little trouble” concluding mere

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registration insufficient to confer general jurisdiction, as it is “consistent with the

U.S. Constitution and the evolving law surrounding general personal jurisdiction”);

Fidrych, 952 F.3d at 134-36; Gulf Coast Bank & Trust Co. v. Designed Conveyor

Systms., LLC, 717 Fed. App’x 394, (5th Cir. 2017); AM Trust v. UBS AG, 681 Fed.

Appx. 587, 588-89 (9th Cir. 2017); Waite, 901 F.3d at 1318 (“after Daimler, there is ‘little room’ to argue that compliance with a state’s ‘bureaucratic measures’ render a corporation at home in a state”); Brown, 814 F.3d at 638-40 (if registering to do business in a state ended personal jurisdiction analysis, “[it] could justify the exercise of general jurisdiction over a corporation in a state in which the corporation had done no business at all”); Reynolds v. Turning Point Holding Co., LLC, No.

2:19-CV-01935, 2020 WL 953279, *4-5 (E.D. Pa. Feb. 26, 2020); Howe v. Samsung

Elec. Am., Inc., No. 1:16CV386, 2018 WL 2212982, *5 (N.D. Fla. Jan, 5, 2018);

Display Works, LLC v. Bartley, 182 F. Supp. 3d 166, 179 (D.N.J. 2016); U.S. ex rel.

Imco General Constr., Inc. v. Insur. Co. of Penn., No. C14-0752RSL, 2014 WL

4364854, *3 (W.D. Wash. Sept. 3, 2014); Lanham, 305 Neb. at 134; Facebook, Inc. v. K.G.S., 294 So. 3d 122, 134 (Ala. 2019), cert. denied, 140 S. Ct. 2739 (2020);

DeLeon, 392 Mont. at 454; Aspen Am. Ins. Co., 90 N.E.3d at 446-48; State ex rel.

Bayer Corp. v. Moriarty, 536 S.W.3d 227, 232-33 (Mo. 2017); State ex rel. Norfolk

S. Ry. Co. v. Dolan, 512 S.W.3d 41, 51 (Mo. 2017); Genuine Parts Co. v. Cepec,

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137 A.3d 123, 127 (Del. 2016);15 Bristol-Myers Squibb Co. v. Super. Ct., 377 P.3d

874, 884 (Cal. 2016); Segregated Account, 376 Wis. 2d at 546; Dutch Run-

MaysDraft, LLC v. Wolf Block, LLP, 164 A.3d 435, 438 (N.J. Super. App. Div.

2017); see also Tanya J. Monestier, “Registration Statutes, General Jurisdiction, and the Fallacy of Consent,” 36 CARDOZO L. REV. 1343, 1357-58 (2015) (“Goodyear and Daimler sound the death knell for doing business as a basis for general jurisdiction”).

This Court should overturn Klein and likewise rule that compliance with

Georgia’s corporate registration statute cannot be used as an end-run around the Due

Process Clause. If it does not, Georgia will be an outlier and “stand out like a sore thumb” (B. Watt and A. Smith, “‘At Home’ in Georgia: The Hidden Danger of

Registering to Do Business in Georgia,” 36 GA. ST. U. L. REV. ONLINE 1 (2019)), defying the U.S. Supreme Court and the overwhelming trend of state and federal courts analyzing this issue.

15 In Cepec, the Delaware Supreme Court reversed its 1988 pre-Daimler and Klein-like decision interpreting its state statutes as allowing general jurisdiction over foreign businesses that had registered to do business in Delaware because it “collide[d] directly with ... Daimler.” 137 A.3d at 130 (“[I]t is one thing for every state to be able to exercise personal jurisdiction in situations when corporations face causes of action arising out of specific contacts in those states; it is another for every major corporation to be subject to the general jurisdiction of all fifty states”).

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D. Principles of Stare Decisis Do Not Counsel Against Overruling Klein’s Personal Jurisdiction Holding Stare decisis does not counsel against this Court’s overruling Klein in light of the recent U.S. Supreme Court cases discussed above.

Under the doctrine of stare decisis, courts generally stand by their prior decisions, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Stare decisis, however, is not an inexorable command. In reconsidering our prior decisions, we must balance the importance of having the question decided against the importance of having it decided right. To that end, we have developed a test that considers the age of the precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.

SRM Group, Inc. v. Travelers Prop. Cas. Co. of America, 308 Ga. 404, 409 (2020)

(emphases in original) (overruling prior decision due to “unsoundness of [its] reasoning …, as it finds no support in either statutory text or reasoned precedent”).

Klein’s general jurisdiction holding is fundamentally unsound because there is no support for it in the language of the statutes; thus, Klein was not “decided right.”

Klein’s interpretation of the long arm statute as subjecting foreign corporations to general jurisdiction simply by registering to do business also is unsound because it violates due process, and it is directly contrary to the U.S. Supreme Court’s general jurisdiction holdings in Goodyear, Daimler, BNSF, and Bristol-Myers.16 While

16 For these reasons, Klein is not a statutory interpretation precedent to which this Court should apply stare decisis “with special force.” Frett v. State Farm

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Klein stated in dicta that its decision “appears” to “not run afoul of the ‘minimum contacts’ requirement of procedural due process,” stare decisis does not bind this

Court to dicta. See Coon v. Medical Center, Inc., 300 Ga. 722, 732 (2017).

Stare decisis actually counsels in favor of overruling Klein in light of the U.S.

Supreme Court’s precedent that renders Klein unconstitutional. The principle of

“vertical stare decisis” obligates this Court to follow precedent from the U.S.

Supreme Court. See Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n.5 (2020)

(Kavanaugh, J. concurring); Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477, 484 (1989); Abercrombie v. State, 343 Ga. App. 774, 791 n.77

(2017); George v. Hercules Real Estate Servs., Inc., 339 Ga. App. 843, 854 n.3

(2016) (Peterson, J., concurring) (vertical stare decisis “articulat[es] the command – foundational to the rule of law – that we must follow the decisions of the Supreme

Court of the United States”). There is no room for Klein’s general-jurisdiction-by- registration rule in a post-Daimler world. Recognition of the U.S. Supreme Court’s supremacy requires this Court to overrule Klein or acknowledge Klein was effectively overruled by Goodyear, Daimler, BNSF, and Bristol-Myers.

E. Cooper Properly Preserved Below the Argument that Klein’s Personal Jurisdiction Holding Should Be Overruled At every step of this litigation, McCall has argued that Klein, and Klein alone,

Employee Workers Comp., 309 Ga. 44, 62 (2020) (Peterson, J., dissenting). To the contrary, as explained above, “compelling reasons” require it to be overruled. Id.

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supports Georgia’s exercise of general jurisdiction over Cooper. At every step of this litigation, Cooper has countered that Klein was wrongly decided and is no longer good law. In its Reply in Support of its Special Appearance Motion to Dismiss for

Lack of Personal Jurisdiction [V3:349-90], Cooper argued:

the holding in Klein [interpreting the definition of “nonresident” in Georgia’s long arm statute to mean every corporation authorized to transact business in Georgia is a “resident” of Georgia and finding its interpretation “satisfied due process”] is no longer valid and its reasoning has been disapproved by both the [U.S.] Supreme Court and unfollowed in post-Daimler Georgia case law.

[V3:359-61] During oral argument on Cooper’s motion to dismiss, counsel for

Cooper argued:

[I]f Allstate v. Klein applied still, in the way in which the plaintiff wants it to apply, you could have jurisdiction over [a] defendant [that was registered but did little business in Georgia] the same as you could have it over a defendant that has massive business in the state. That just can’t be the rule. It flies in the face of Daimler. … Daimler said that this is what’s required for due process [and] it would be unconstitutional to say that registration equals jurisdiction ….

[T:17] The trial court, citing BNSF, granted Cooper’s motion to dismiss for lack of personal jurisdiction, finding Cooper “showed it is not at home in Georgia, for the purposes of general personal jurisdiction.” [V3:392] McCall moved for reconsideration of the trial court’s order. [V3:394-405]

In its Special Appearance Response in Opposition to Plaintiff’s Motion for

Reconsideration [V3:411-67], Cooper argued:

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[T]he Klein court based its decision … on a since overruled and now defunct due process standard. Post-Daimler, courts are limited by the newly established “at home” due process standard …. [O]n its face, the Klein decision directly conflicts with Daimler ….

[V3:412-13]

[T]he Klein ruling occurred in a very different pre-Daimler world under a very different and much broader due process standard. … While the Klein decision may have stayed within confines of the “minimum contacts” due process limitations of the day, that standard no longer has any applicability in a post-Daimler general jurisdiction analysis. … Daimler makes it expressly clear … that the entire basis on which Klein found general jurisdiction (minimum contacts) is no longer valid.

[V3:415]

[T]he Klein court also found its registration standard passed due process constitutional muster because “if any authorized representative of a foreign corporation [is] physically present in the state,” then that comports with “fair play and substantial justice.” Klein at [601] n.3. This type of “territorial thinking,” however, which concerns itself with a corporation’s “presence,” is similarly invalid post-Daimler.

[V3:416] Cooper argued repeatedly that the entire basis for the Klein decision was

“invalidated,” “obsolete,” and “unconstitutional” in light of Daimler. [V3:413, 416,

417]

In the Court of Appeals, Cooper again argued Klein’s interpretation of

O.C.G.A. §§ 9-10-90 and 9-10-91 as subjecting a foreign corporation to general jurisdiction in Georgia merely by virtue of its registering to do business here violates the Due Process Clause and cannot stand in light of the controlling U.S. Supreme

Court opinions in Goodyear, Daimler, BNSF, and Bristol-Myers. See Brief of

Appellee at, e.g., 4, 10, 12-16, 21, 25.

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F. Cooper Is Not Subject to Personal Jurisdiction in Georgia in this Action As stated throughout this Brief, under Goodyear, Daimler, BNSF, and Bristol-

Myers, a corporation is subject to general jurisdiction only in the state (1) of its incorporation, (2) of its principal place of business, and (3) in an “exceptional case” where its operations are so substantial and of such a nature as to render the corporation “at home” in that state. Cooper is a foreign Delaware corporation with its principal place of business in Ohio, and this is not an “exceptional case” where

Cooper’s operations are so substantial and of such a nature as to render Cooper “at home” here. McCall acknowledges this by arguing Cooper is subject to jurisdiction solely because Cooper is registered to do business here. For all the reasons set forth above, Georgia cannot exercise personal jurisdiction over Cooper.

It bears mentioning that Cooper is registered to do business in 39 states.

[V3:423] This fact alone shows there is nothing exceptional about Cooper’s operations in Georgia, for “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” Daimler, 571 U.S. at 139 n.20. “Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests framed before specific jurisdiction evolved in the United States.” Id.

Cooper does not maintain any bank accounts or corporate records, own any property, conduct any corporate meetings of officers or directors, maintain any research and development divisions, maintain any testing or manufacturing

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facilities, or employ any chemists, engineers, or any other employees involved in the design and/or manufacture of tires in Georgia, and Cooper has never directly targeted Georgia for any marketing campaign including for the sale of the type of tire in this accident. Between 2013 and 2017, an average of only 3.7% of Cooper’s worldwide sales were made in Georgia, and an average of only 4.1% of its nationwide sales were made in Georgia. Thus, 96.3% of Cooper’s worldwide sales and 95.9% of its nationwide sales were not in Georgia. See Daimler, 571 U.S. at

139 n.20 (“[T]he general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts. General jurisdiction instead calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide.”)

(punctuation and citation omitted). Case law addressing foreign corporations’ contacts that are much more significant than Cooper’s here overwhelmingly demonstrates Cooper’s operations in Georgia are not so substantial and of such a nature as to render Cooper “at home” in Georgia such that it is subject to general jurisdiction here. See Daimler, 571 U.S. at 130 n.8, 137, 139 n.19; BNSF, 137 S.

Ct. at 1554; Goodyear, 564 U.S. at 919; Waite, 901 F.3d at 1318; Orafol, 2017 WL

3473217 at *3; Ritchie Capital Mgmt., LLC v. Costco Wholesale Corp., No. 14-CV-

4819, 2015 WL 13019620, *4-5 (S.D.N.Y. Sept. 21, 2015); Lanham, 305 Neb. at

137-38; Wal-Mart Stores, Inc. v. LeMarie, 395 P.3d 1116, 1122 (Ariz. App. 2017).

In light of the extremely high bar for finding general jurisdiction outside of

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“the ‘paradigm’ forums [of] … the corporation’s place of incorporation and its principal place of business” (BNSF, 137 S. Ct. at 1558), there is nothing exceptional about Cooper’s operations here, and Cooper is therefore not subject to the suit at issue in a court of this state.

V. CONCLUSION For the foregoing reasons, Cooper respectfully requests the Court to overrule

Klein and reverse the Court of Appeals Opinion in its entirety.

Respectfully submitted this 22nd day of February, 2021.

/s/ Christopher S. Anulewicz Christopher S. Anulewicz Georgia Bar No. 020914 BALCH & BINGHAM LLP 30 Ivan Allen Jr. Blvd. N.W., Suite 700 Atlanta, Georgia 30308 Telephone: (404) 261-6020 Facsimile: (404) 261-3656

Eric D. Ruben Pro Hac To Be Applied For Douglas E. Horelick Pro Hac To Be Applied For CLYDE & CO US LLP 1221 Brickell Ave., Suite 1600 Miami, Florida 33141 Telephone: (305) 446-2646 Facsimile: (305) 441-2374

Attorneys for Appellant

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Brief of Appellant has been served upon the following by email and U.S. Mail prior to filing with this Court to the addresses listed below on this 22nd day of February, 2021.

Cale H. Conley Scott A. Farrow William K. Owens, Jr. CONLEY GRIGGS PARTIN LLP 4200 Northside Parkway, N.W. Building One, Suite 300 Atlanta, Georgia 30327-3007

/s/ Christopher S. Anulewicz Christopher S. Anulewicz Georgia Bar No. 020914

31 9715398.5