Murray v. ILG Technologies, LLC, 010820 FED11, 19-11607
|Opinion Judge:||PER CURIAM:|
|Party Name:||LLOYD DAN MURRAY, JR., Individually and on behalf of all others similarly situated, JENNIFER MCGHAN, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. ILG TECHNOLOGIES, LLC, d.b.a. ILG Information Technologies, BARIS MISMAN, Individually and a Sole Proprietor of ILG Information Technologies, Defendants-...|
|Judge Panel:||Before JORDAN, TJOFLAT and BLACK, Circuit Judges.|
|Case Date:||January 08, 2020|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
DO NOT PUBLISH
Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:18-cv-00110-RSB-BKE
Before JORDAN, TJOFLAT and BLACK, Circuit Judges.
Appellants Lloyd Dan Murray, Jr., and Jennifer McGhan (the Bar Applicants), appeal the district court's order granting summary judgment to Appellees in the Bar Applicants' civil lawsuit. The Bar Applicants filed the underlying civil action in the Superior Court of Bryan County, Georgia after they learned they were erroneously told they had failed the Georgia bar exam.
The Bar Applicants sued Appellees ILG Technologies, LLC, and Baris Misman (the sole owner of ILG), contending ILG was to blame for the issuance of the incorrect results because ILG provided the Georgia Office of Bar Admissions with a software system to aid in the administration of the entire bar-admission process. In an amended complaint, the Bar Applicants alleged claims of negligence, attorney's fees, negligent misrepresentation, breach of contract, strict liability (based on product defect), negligent design, and defamation. The Bar Applicants also sought to represent two classes-one made up of similarly situated applicants who sat for the July 2015 bar exam, and the other of applicants who sat for the February 2016 exam.
Appellees removed the case to the United States District Court for the Southern District of Georgia and, following discovery, moved for summary judgment on all of the Bar Applicants' claims. Appellees contended that, even assuming their software factually caused the grading error that gave rise to the Bar Applicants' claims, the Bar Applicants could not legally recover the damages they sought through any of the asserted claims.
As relevant to the instant appeal, the district court granted Appellees' summary judgment as to the Bar Applicants' claims for ordinary negligence, strict liability, and negligent design after concluding those claims were barred by Georgia's economic loss rule. The district court also granted Appellees' motion as to the Bar Applicants' defamation claim, concluding the Bar Applicants failed to show Appellees "published" the incorrect exam results. On appeal, the Bar Applicants challenge these conclusions, arguing the district court misapplied Georgia law in assessing their claims.1 After review, we affirm.
I. FACTUAL BACKGROUND
A. ILG's Contract with the Office of Bar Admissions
At all times relevant to this case, Appellees had a contract with Georgia's Office of Bar Admissions (OBA) to create and provide a computer program that would facilitate the entire bar admissions process. Specifically, the contract provided that Appellees "promise[d] to provide, and OBA promise[d] to pay for, a complete, customized, turn-key system of enterprise software for digitizing and electronically administering the entire bar admission process," which the contract referred to as the "Solution." The Solution was to contain two principal software components: (1) a "personalized information and communications portal . . . for use by Bar Applicants"; and (2) a "software tool for OBA's management and administration of Applications for Certification of Fitness to Practice Law, Bar Examination Applications and related back-office processes."
The software was used by the OBA to calculate bar exam scores and communicate individual results of the July 2015 and February 2016 bar exams to applicants. The Bar Applicants were not parties to the contract, nor were they ever directly contacted by Appellees.
B. The Grading Errors
The Georgia bar exam-on which an applicant must achieve a passing score to be eligible to practice law in the state of Georgia-is a two-day test administered by the Board of Bar Examiners. The OBA provides administrative support to the Board of Bar Examiners, as well as to the Board to Determine Character and Fitness. The bar exam consists of three components: (1) the Multistate Bar Examination (MBE), a 200-question multiple choice test; (2) the Multistate Performance Test (MPT), which consists of two essay questions; and (3) four Georgia-specific essays. An applicant must receive a minimum score of 270 (out of a possible 400 points) to achieve a "passing score" on the exam.
After the exam, the completed MBE answer sheets are sent to the National Conference of Bar Examiners to be graded by a machine. The MBE scores are then sent to the OBA, and any applicant who does not achieve a score of at least 115 on the MBE component automatically fails the exam, meaning his or her essays are not submitted for grading. The essays from all the applicants with qualifying MBE scores are then submitted for grading by the Board of Bar Examiners, and the completed scores are entered into a database.
If an applicant's total score is within five points below 270-in other words, if an applicant is within five points of achieving a passing score-his or her essays are regraded. Once the essays are regraded, the new score is entered into the database. It was during this "regrading process" that the alleged software error at issue in this case occurred. The software, as designed, was "supposed to check to see if [the applicants] received a higher score on the regrade." "If the original...
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