Murray v. Ilg Techs., LLC

• Decision Date: 28 March 2019
• Docket Number: CIVIL ACTION NO.: 4:18-cv-110
• Citation: 378 F.Supp.3d 1227
• Parties: Lloyd Dan MURRAY, Jr. and Jennifer McGhan, Individually and on behalf of all others similarly situated, Plaintiffs, v. ILG TECHNOLOGIES, LLC, d/b/a ILG Information Technologies, and Baris Misman, Individually and as Sole Proprietor of ILG Information Technologies, Defendants.
• Court: U.S. District Court — Southern District of Georgia

378 F.Supp.3d 1227

Lloyd Dan MURRAY, Jr. and Jennifer McGhan, Individually and on behalf of all others similarly situated, Plaintiffs,

v.ILG TECHNOLOGIES, LLC, d/b/a ILG Information Technologies, and Baris Misman, Individually and as Sole Proprietor of ILG Information Technologies, Defendants.

CIVIL ACTION NO.: 4:18-cv-110

United States District Court, S.D. Georgia, Savannah Division.

Signed March 28, 2019

ORDER

R. STAN BAKER, UNITED STATES DISTRICT JUDGE

This matter is before the Court on a number of motions including Defendants' Motion for Summary Judgment, (doc. 10), Plaintiffs' Motion for Class Certification, (doc. 55); Defendants' Supplemental Motion for Summary Judgment, (doc. 65); Plaintiffs' Motion for Partial Summary Judgment, (doc. 94); and Plaintiffs' Request for Oral Argument on All Pending Motions, (doc. 101). Plaintiffs Lloyd Murray, Jr. ("Mr. Murray") and Jennifer McGhan ("Ms. McGhan") filed this putative class action against Defendants ILG Technologies, LLC ("ILG") and Baris Misman ("Mr. Misman"), based on allegations that a software created by Defendants incorrectly calculated Plaintiffs' bar exam scores. (Doc. 1-3.) Plaintiffs originally filed this suit in the Superior Court of Bryan County, (id. ), and Defendants subsequently removed to this Court, (doc. 1). After Defendants filed their first Motion for Summary Judgment, (doc. 10), Plaintiffs filed a Response, (doc. 38), and Defendants filed a Reply. (Doc. 44.) Plaintiffs subsequently filed an Amended Complaint, (doc. 63).¹ Defendants filed a Supplemental Motion for Summary Judgment addressing the additional causes of action, (doc. 65), to which Plaintiffs responded, (doc. 77), and Defendants replied, (doc. 79).

This case arises out of a cruel twist of events. Plaintiffs were originally told that they had failed the exam to gain admission to the State Bar of Georgia only to find out months later that they had actually passed the exam. Plaintiffs contend that Defendants are to blame for their agonizing and costly journey because ILG, a company solely owned by Mr. Misman, provided a software system to aid in the administration of the entire bar admission process. ILG provided this system pursuant to a contract with the Georgia Office of Bar Admissions. In their initial Complaint, Plaintiffs levy claims of Breach of Contract, Negligence, and Negligent Misrepresentation. (Doc. 1-3.) Plaintiffs also assert a claim for the Regrading of Bar Exams. (Id. at p. 10.) In their Amended Complaint, Plaintiffs reassert their original claims (with the exception of their request for a regrade) and allege additional claims of Defamation, Negligent Design, and Strict Liability. (Doc. 63.) Factually, the parties dispute whether the disastrous glitch in grading Plaintiffs' exams was caused by errors in Defendants' software or errors elsewhere in the examination, grading, and communication process. Regardless, in their Motions for Summary Judgment, Defendants contend that even if their software factually caused the grading error, Plaintiffs cannot legally recover the damages they seek through any of the asserted claims.

Defendants' Motions call for this Court to resolve the parties' arguments based on the substantive law of Georgia as set forth by the Georgia General Assembly and the state's appellate courts. After a thorough review of that law and its application to the facts of this case, the Court finds that it must grant Defendants' Motions. As explained below, Plaintiffs cannot recover for breach of contract because they are not in privity of contract with Defendants and are not third-party beneficiaries of Defendant ILG's contract with the Office of Bar Admissions. Moreover, Georgia's economic loss rule bars Plaintiffs' general negligence, strict liability, and negligent design claims, and the undisputed evidence thwarts Plaintiffs' claims of negligent misrepresentation and defamation. The Court is mindful that this result may seem like another hapless turn in Plaintiffs' harrowing saga. However, this Court's obligation is to say what the law is, not what it should be. Having fulfilled that responsibility and applied that law to the facts of this case, the Court GRANTS Defendants' Motions for Summary Judgment, (docs. 10, 65) and DENIES as moot all other pending motions in this case.

BACKGROUND²

The incidents giving rise to this action came to light on September 6, 2016. (Doc. 10-2, p. 1.) On that day, the Georgia Board of Bar Examiners announced that ninety people who took the July 2015 and February 2016 Georgia bar exams—forty-five from each exam—were incorrectly assigned failing scores. (Id. ) In fact, these ninety individuals had passed their respective exams. (Id. ) Plaintiffs Murray and McGhan were two such persons. (Doc. 1-3, p. 2.) Plaintiffs filed this putative class action against Defendants on behalf of all ninety test takers. (Id. at pp. 3, 6.)

I. The Bar Admission Process and Exam Scoring

A person who wishes to practice law in the state of Georgia must first be admitted pursuant to the Rules promulgated by the Supreme Court of Georgia. (Doc. 10-3, p. 5.) This process is handled by two boards—the Board to Determine Character and Fitness, and the Board of Bar Examiners. (Doc. 38, p. 3.) The Office of Bar Admissions ("OBA") provides administrative support to both Boards. (Id. ) Prior to sitting for the Georgia Bar Exam, applicants' credentials are reviewed by the Board to Determine Character and Fitness. (Doc. 37-12, p. 9.) Applicants who pass this stage are then permitted to take the bar exam. (Id. )

The bar exam itself is a two-day test that is written and administered by the Board of Bar Examiners. (Doc. 38, p. 3.) The exam consists of a multiple-choice component known as the "MBE" and two separate writing components—two essays collectively called the "MPT" and four Georgia-specific essays. (Id. ) After the exam, the completed MBE answer sheets are sent to the National Conference of Bar Examiners to be graded by a machine. (Doc. 37-12, p. 33.) The scores are sent to the OBA, and any individual who does not score at least a 115 on the MBE portion of the exam is deemed an "automatic fail," meaning the applicant's essays are not submitted for grading. (Doc. 38, p. 7.) The essays that are submitted for grading are then graded by the Board of Bar Examiners, and the completed scores are entered into a database. (Id. at p. 5.) A score of 270 or higher qualifies as a "passing score." (Id. ) Before the scores are finalized, the essays of individuals who received an initial score within five points below 270—or 265 to 269—are regraded. (Id. ) Once the regrades are complete, the new scores are entered into the database. (Id. ) Applicants are then notified of the results electronically. (Doc. 10-2, p. 4.)

II. The Software Program and Underlying Contract

Defendant ILG is a technology company that creates custom software, and Mr. Misman is ILG's sole proprietor. (Doc. 37-9, p. 16; doc. 38, p. 3.) At all times relevant to this action, Defendants had a contract with the OBA to create and provide a computer program that would facilitate the entire bar admission process (hereinafter "the Contract"). (Doc. 38, p. 3; doc. 38-1.) It is undisputed that Plaintiffs were not parties to the contract between Defendants and the OBA. (Doc. 10-1, p. 2; doc. 38-6, p. 2.) The Contract states that Defendants "promise[d] to provide, and OBA promise[d] to pay for, a complete, customized, turn-key system of enterprise for digitizing and electronically administering the entire bar admission process." (Doc. 38-1, p. 3.) The system was intended to be a "user-friendly" way for the OBA to organize "the data that is received from the fitness application and the data that's received from the [ ] bar examination process." (Doc. 38, p. 3.) It was also intended to efficiently and effectively communicate the relevant data to bar applicants. (Id. )

The software designed by Defendants was used by the OBA and the Boards to calculate the scores and communicate the results of the July 2015 and February 2016 bar exams. (Doc. 10-1, pp. 2–3; doc. 38-6, pp. 2–3.) All communications through the software came from the OBA and the Board of Bar Examiners; Plaintiffs were never contacted by Defendants. (Doc. 38-6, p. 2.)

III. Overview of Claims

In this lawsuit, Plaintiffs request relief for: (1) the cost of taking additional bar exams; (2) the cost of additional study materials; (3) loss of income; (4) injury to their property right in the employment of the legal profession; and (5) injury to their reputations. (Doc. 63, pp. 8–9.) To seek these damages, Plaintiffs assert six theories of liability. First, Plaintiffs allege that Defendants committed acts of negligence by "failing to accurately calculate, record, and/or report Plaintiffs' and the class members', Bar Exam Grades." (Id. at p. 8.) Plaintiffs also argue that Defendants breached their contract with the OBA, and that Plaintiffs were third-party beneficiaries to that contract. (Id. at pp. 11–12.) Further, Plaintiffs claim that because they relied on the incorrect results to their detriment, Defendants are liable to them for negligent misrepresentation. (Id. at p. 10.) Plaintiffs also allege Defendants breached their duties to exercise reasonable care in designing a software free of unreasonable risks and to provide a merchantable product, meaning Plaintiffs are entitled to damages in strict products liability and for negligent design. (Id. at pp. 12–13.) Additionally, Plaintiffs argue that the software's incorrect results constitute false publications and that Defendants are thus liable for defamation. (Id. at 13.)

Plaintiffs initially requested a regrade of July 2015 and February 2016 bar exams scoring between 259 and 264. (Id. ) However, Plaintiffs "withdrew" this claim in their Response to Defendants' Motion for Summary Judgment, (doc. 38, p. 26), and indicate the claim as "withdrawn" in their Amended Complaint, (doc. 63, p. 10). Finally, Plaintiffs...