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Electronically Filed Erica L, Woodford, Cler Bibb County Supotior Cour Docket Date: 8112017 11:34:13 AK Raven Alston IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON and JACQUELYN * JOHNSON Plaintit CIVIL ACTION v. FILE NO. 2017-CV-067039 BRANDON BELL, etal., Defendants. eee REE RODNEY BRYAN, AMY BRASWELL, STEVE TURNER, DR. MARYANNE GAFFNEY-KRAFT, WES HORNE, AND LINDSAY MARCHANT’S MOTION TO DISMISS AND BRIEF IN SUPPORT THEREOF COME NOW Rodney Bryan, Amy Braswell, Steve Turner, Dr. Maryanne Gaflhey-Kraft, Wes Hore, and Lindsay Marchant (hereafter collectively referred to as “State Defendants”), Defendants in the above-styled action, and, pursuant to O.C.G.A. $§ 9-11-4, 12 (b)(1) and (2) and (j), file this Motion to Dismiss and Brief in Support Thereof.’ As set forth below, the State Defendants base this Motion on a lack of personal jurisdiction and subject matter jurisdiction. Specifically, with iffs failed the exception of Rodney Bryan and Dr. Maryanne Gaffney-Kraft, Plai + These Defendants are filing this Motion contemporaneously with the filing of their answer and, therefore, pursuant to O.C.G.A. § 9-11-12{)), “discovery shall be stayed for 90 days afer the filing of such motion.” Accordingly, the discovery Plaintiffs served with their Complaint, including requests for production of documents and interrogatories, are premature to serve process upon the State Defendants and, therefore, personal jurisdiction is lacking, as to four of the six State Defendants. Even if Plaintiffs had served process on all of the State Defendants, Plaintiffs’ action against them is a tort claim against state employees or officers acting within the scope of their official duties or employment and, therefore, each of the State Defendants is immune from suit under the Georgia Tort Claims Act (GTCA"). Although the GICA allows for substitution of the state government entity, in this case the Georgia Bureau of Investigation “GBI,” for the individually named state employees, substitution would be futile because Plaintiffs are unable to demonstrate that they met the pre-suit ante litem notice obligations necessary to waive the State’s sovereign immunity (0.C.G.A. § 50-21-26) and are now time- barred from doing so; and Plaintiffs failed to follow the GTCA’s mandatory service requirements (O.C.G.A. § 50-21-35)? Since Plaintiffs have not complied * The State Defendants reserve the right to raise additional sovercign imeunity definses Specifically, pursuant to O.C.G.A, § 50-21-24, the State has not waived its sovereign immunily for losses resulting from: (1) An act or omission by a state officer or cmployee exercising due care in the execution of a statute, regulation, rule, or ordinance, whether or not such statute, regulation, rule, or ordinance is valid: (2) the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused Plainlifls” losses pursuant to O.C.G.A. 50-21 24 (1), (2), (6) and (7); (©) Civil distrbance, riot, insurection, or rcbellion or the failure to provide, er the method of providing, law enforcement, police, or fize protection: with the prerequisites necessary to eflect a waiver of the State’s sovereign immunity, this Court (and any other court) does not have subject matter jurisdiction over Plaintiffs’ claims against the State Defendants. Additionally, under the GTCA, venue is proper only where the alleged tort giving rise to the loss occurred or where the Plaintiffs’ decedent died, which in this case is Lowndes County. See O.C.G.A 50-21-28, Although the Superior Court rules allow this Court to transfer on the basis of venue, transfer is futile because of the lack of subject matler jurisdiction by any court. Accordingly, Plaintiffs’ Complaint should be dismissed as a matter of law as against these Defendants. I STATEMENT OF FACTS This is the Third Action brought against the State Defendants by Kenneth and Jacquelyn Johnson, Kenneth Johnson, et al, v. Brandon Bell, et al. is currently pending in the Superior Court of Lowndes County, Civil Action Number 2015- CV-706 before Judge Richard Porter. Plaintiffs’ allegations against the State Defendants stem from the Georgia Bureau of Investigation’s (“GBT's") investigation of the death of their son, Kendrick Johnson, in 2013. (Complaint, Preliminary Statement), The State Defendants were (and are) GBI officers or employees. (Complaint, { 9). Specifically, Agent Horne was a Special Agent assigned as a Crime Seene Specialist; Dr. Gafthey-Kraft was a medical examiner for the GBI; Agent Rodney Bryan was a Death Investigator Specialist; and the remaining three State Defendants were GBI Special Agents. (Complaint, 4¥{ 16, 18, 19, 21, 23 and 41; Affidavit of Wesley Hore (“Home Aff”), attached as Exhibit 1, Jl; Affidavit of Amy Braswell (“Braswell Aff”), attached as Exhibit 2, 1; Affidavit of Steve Tumer (“Tumer Aff”), attached as Exhibit 3,4 1; Afiidavit of Lindsay Marchant (“Marchant Afi”), attached as Exhibit 4, 4 1; Affidavit of Marianne Gaffney-Kraft (“Gaffhey-Kraft Aff"), attached as Exhibit 5, 4 1; Affidavit of Rodney Bryan (“Bryan Af”), attached ay Fxhibit 6, § 1. Plaintiffs have yel to serve Special Agents Braswell, Tumer, Horne and Marchant with this Complaint. Additionally, Plaintiffs failed to attach to their Complaint a copy of a notice of elaim (ante litem notice), a proof of delivery of a notice of claim to the Risk Management Division (“RMD”) of the Department of Administrative Services (“DOAS”), and a certificate demonstrating that they mailed a copy of their Complaint to the Attomey General. Tl. ARGUMENT AND CITATION TO AUTHORITY As an initial matter, Plaintiffs did not serve process on four of the six GBL Agents (Agents Braswell, Tumer, Home and Marchant), and, on that ground alone, those State Defendants should be dismissed. However, even if Plaintiffs were to cure their service of process deficiencies, the State Defendants were, at all relevant times, state officers or employces acting within the scope of their official duties or employment for the GBI, Therefore, in reality, Plaintiffs are seeking to bring an action against the State. A state law civil action based upon alleged tortious wrongdoing by a state officer or cmployce acting within the scope of his or her official duties or employment must be brought under the Georgia Tort Claims Act (“GTCA”). The GTCA is the exclusive, self-contained expression of the General Assembly's limited waiver of the State’s sovereign immunity for alleged torts of state officers and employees. O.C.G.A. § 50-21-1 et seg. Therefore, this Court must make the threshold determination of whether it has venuc over the matter. Additionally, the Court must make also determine whether subject matter jurisdiction over Plaintiffs’ claims exists using the applicable standard of review under the GTCA. Since the facts indisputably establish that the State Defendants were state officers or employees acting within the scope of their official duties or employment at the time of the alleged torts, they are immune from suit. Although the GTCA mandates that the state government entity, which in this case would be the GBI, be substituted as the defendant in such a case, substituting the state government entity in this case would be fotile because no court would have subject matter jurisdiction over Plaintiffs’ claims. Specifically, even after substitution, this Court does not have subject matter jurisdiction over Plaintifis’ claims against the State for the following reasons: (1) Plaintiffs failed to demonstrate that they complied with the GICA's ante litem notice requirements contained in O.C.G.A. § 50-21-26; and (2) Plaintitts failed to demonstrate that they complied with the GICA's service and notice mandates contained in O.C.G.A. § 50-21-35. Accordingly, given the lack of subject matter jurisdiction and personal jurisdiction by any court, this Court should dismiss Plaintiffs’ Complaint against the State Defendants. A. Plaintiff Did Not Properly Serve Process on Agents Braswell, ‘Turner, Horne and Marchant. Notwithstanding the unequivocal prohibition against naming individual state employees, Plaintiffs failed to serve process upon Special Agents Braswell, Tumer, Horne and Marchant, 0.C,.G.A. § 50-21-25(b). Pursuant to O.C.G.A. § 9-11-4(cX7), a plaintiff! may serve a defendant either personally or in. the following manner: [Bly leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Tn this case, Plaintiffs have neither personally served these Defendants nor delivered a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process for them. (Braswell Aff, | 5; Turner Aff, 4 5; Tome Aff, ¢ 6; Marchant Aff, | 5). Accordingly, om this ground alone, Special Agents Braswell, Tuer, Horne and Marchant should be dismissed from Plaintiffs” lawsuit. B. This Case Should be Evaluated Under the G’ 1. Overview of the Georgia Tort Claims Act Even if they had properly served process on all of the Slate Defendants, to the extent that Plaintiffs seek to bring an action based on the alleged torts of state ollicers or employees, they must comply with the GICA, Under the GTCA, the General Assembly “declared [it] to be the public policy of this state that the state shall only be liable in tort actions within the limitations of this article [the GTCA] and in accordance with the fair and uniform principles established in this article [the GTCA].” O.C.G.A. § 50-21-21(a); see also O.C.G.A. § 50-21-23 In passing the GTCA, the legislature recognized the “inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.” O.C.G.A. § 0-21-21 (a). However, it also recognized that given the unique nature of government, “[tJhe exposure of the state treasury to tort liability must therefore be limited.” .C.G.A. § 50-21-21(a). 2 Standard of Review for Subject Matter Jurisdiction Defense Raised Under the GTCA. The sovereign immunity of the State is not an affirmative defense that addresses the merits of the case; rather, it raises the threshold issue of the trial court's subject matter jurisdiction to try the case. Department of Transp. v. In Georgia, “[a] waiver of sovereign immunity is a mere privilege. not a right, and the extension of that privilege is solely a matter of legislative grace." Woodard v. Laurens Cnty., 265 Ga. 404, 406 (1995); Riddle v. Ashe, 269 Ga. 65 (1998). Dupree, 256 Ga. App. 668, 671 (2002); see also Hill v. Kaminsky, 160 Ga. App. 630 (1981) Gurisdiction of the subject matter means jurisdiction of the class of cases), Even if the State raises the issue of sovereign immunity in a motion to dismiss, it is the party seeking to benefit from the waiver of sovereign immunity who bears the sole burden of proving that the State intended to waive its sovereign immunity. Sherin v. Department of Human Res., 229 Ga. App. 621, 625 (1997); Dupree, 256 Ga. App. at 671; and Board of Regents of the Univ. Sys. Of Georgia v. Daniels, 264 Ga. 328 (1994). Unless a plaintiff establishes that there has been a waiver of sovereign immunity, the court has no subject matter jurisdiction to hear a tort claim against the State. The determination of whether 2 defendant is a state officer or employee acting within the scope of his official duties or employment at the time of the alleged negligence goes to the contt’s subject matter jurisdiction. Ferrell v. Young, 323 Ga, App. 338, 344 (2013) (“Because the allegations of the complaint establish that Ferrell is entitled to immunity from the suit, the Superior Court lacked subject matter jurisdiction.”); Feist v. Dirr, 271 Ga. App. 169, 172-73 (2004) (“Where the trial court must determine an issue in abatement, ie., subject matter jurisdiction, the determination of such disputed factual issue [whether an employce was a State employee acting within the scope of his employment] is not a determination on the merits, because the merits of the case are never tested.”), Morcover, since the issue of lack of subject matter jurisdiction is a matter in abatement, it does not test the merits of the claim and, therefore, is properly raised in a motion to dismiss. Deberry v. Johnson 323 Ga. App. 726, 727 (2013) (“The defenses enumerated in O.C.G.A. § 9-11-12(b) of the Civil Practice Act, except [subsection] (6), failure to state a claim upon which relief can be granted, are matters in abatement which are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement.”), Georgia Ports Auth. v. Harris, 243 Ga. App. 508 (2000); Dupree, 256 Ga. App. at 671; O.C.G.A. § 9-11-12()(1); see also Pryor v. Douglas Shopper, 236 Ga. App. 854, 856 (1999); Manufacturers Nat'l Bank of Defroit_v, Tri-State Glass, Inc., 201 Ga. App. 253 (1991); and Derbyshire v. United Builders Supplies, Inc., 194 Ga. App. 840 (1990). In this case, Plaintiffs’ failure to comply with the mandatory notice and service requirements of the GICA deprives any court of subject matter jurisdiction over their claims against the State. C. The State Defendants Were Acting within the Scope of Their Official Duties or Employment, and, therefore, Are Immune from Suit. Under the GTCA, “[a] state officer or employee who commits a tort while acting within the scope of his or her official dutics or cmployment is not subject to lawsuit or liability therefor.” O.C.G.A. § 50-21-25(a}. This code section requires that a plaintiff “name as a party defendant only the state government entity for which the state officer or employee was acting and shal] not ame the state officer or employce individually.” O.C.G.A. § S0-21-25(b). Further, if a state officer or employee is sued for a tort committed while acting within the scope of his official duties or employment, “the state government entity for which the state officer or employee was acting must be substituted as the party defendant.” O.C.G.A. § 50- 21-25(b). The term “State officer or employee” has been defined within the GTCA as follows: “State officer or employee” means an officer or employee of the state, elected or appointed officials, Jaw enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation... O.C.G.A. § 50-21-22(7) (emphasis added). “The exemption from tort liability provided by the GTCA applies to actions against state employees in their official and individual capacities — merely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which he might otherwise be entitled for his official acts under the GTCA.” Ferrell, 323 Ga. App. at 343 (citation and punctuation omitted). In determining whether an individual defendant is entitled to immunity under the GICA, the Court of Appeals uses a three-part test, Hardin v. Phillips, 249 Ga. App. 541 (2001). Specifically, the Court considers: (1) whether the GICA applies to the action; (2) whether the defendant was a state employee; and if so, (3) whether the defendant’s actions were committed within 10 the scope of his employment. Hardin, 249 Ga. App. at $43. “What constitutes actions taken within the scope of official duties or employment under the GTCA is [] broadly construed.” Ferrell, 323 Ga. App. at 343; sec, e.g., Romano v. Georgia Dep’t of Corr., 303 Ga. App. 347, 350-51 (2010), Ridley v. Johns, 274 Ga. 241. 242-43 (2001); Davis v. Standifer, 275 Ga. App. 769 (2005); Tootle v. Cartee, 280 Ga. App. 428, 430-31 (2006); Wang v. Moore, 247 Ga. App. 666, 667-70 (2001); and Coultas v. Dunbar, 220 Ga. App. 54, 57-58 (1996). Indeed, the “scope of employment” is so broad that an alleged sexual assault by a state trooper during a traffic stop was held to be within the scope of the trooper’s official duties or employment, and an alleged sexual assault during an atrest by an oflicer employed by the Georgia World Congress Center Authority was also found to be within the officer's scope of employment. Davis v. Standifer, 275 Ga. App. 769 (2005); Ferrell, 323 Ga. App. at 338, As a result, in both cases, the officers were held to be immune ftom the plaintifls’ claims. Here, each of the six State Defendants squarely meets the three-part test set forth in Hardin. The first two prongs are indisputable: the alleged acts in Plaintiffs’ Complaint occurred after the 1992 effective date of the GICA; and cach of the State Defendants was state officer or employee at all relevant times, Likewise, the fact contentions of Plaintiffs’ Complaint, along with the attached affidavits, conclusively establish that the Stete Defendants were acting within the course and scope of their official duties and employment with the GBI. GBI agents are “peace officers with the duty to assist and cooperate in the prevention and detection of violations of the laws of this state,” aud the statutory dutics of GBI agents specifically include participating in investigations and assisting other law enforcement agencies. Haley v. State, 289 Ga. 515, $29 (2011) (citations and quotations omitted); O.C.G-A. §§ 35-3-4, 35-3-8.1. Here, at the request of another law enforcement agency, the Lowndes County Sherill’s Oflice, Special Agents Home, Marchant, and Braswell reported to the scene of Kendrick Johnson's death on January 11, 2013, and, in differing degrees, assisted other law enforcement personnel who also were on the scene, (Home ACL, 7/2, 3; Marchant ALE, 2; Braswell Aff, [ 2; Tumor Aff, 72). Helping other law enforcement is within the’seope of duties of a GBI agent, and each bas testified that their actions in this case that “in any way related to the investigation of the death of Kendrick Jobnson, or that in any way relate to Kendrick Johnson or the Plaintiffs in this ease, occurred within the course of [his or her] official duties or employment for GBI.” (Home Aff, 99 4, 5; Marchant Aff, 413, 4; Braswell Aff, $93, 4; Turner Aff, 47 3, 4). Thus, these Special Agents were acting within the scope of their official duties or employment for the GBI during the acts alleged in Plaintiffs’ Complaint. As a result, they are immune from suit and should be dismissed from this lawsuit, Similarly, the GBI is authorized to appoint medical examiners and conduct death investigations, including autopsies. O.C.G.A. §§ 35-3-15; 45-16-22, Thus, the statements that Plaintif¥s allege Agent Bryan made relating to the autopsy of Kendrick Johnson were made as part of his official duties and were within the scope of his employment with the GBI! (Complaint, § 96; Bryan Aff, JJ 3, 4). Accordingly, Agent Bryan is immune from suit from Plaintiffs’ allegations, and he should be dismissed from this action. Finally, Plaintiffs’ allegations against Dr. Gafiney-Krafi relate to her autopsy of Kendrick Johnson, and conducting an autopsy was part of her official duties as a medical examiner for GB. (Complaint, {¥ 85, 93; Gaffney-Kraft Aff, 73.4). ‘Thus, Dr. Gafiney-Krafl is immune from suit from Plaintiffs’ allegations, and she should be dismissed from this action. Since all of the State Defendants were acting within the scope of their official duties or employment for the GBI at the time of Plaintitis’ allegations, under O.C.G.A.§ 50-21-25(b), they are immune from suit and must be dismissed as named defendants. Although O.C,G.A. § 50-21-25(b) mandates that the GBI should be substituted as the named Defendant, as explained gra, such substitution is futile’ Accordingly, Plaintiffs’ case should be dismissed. « Agent Bryan denies that he made such statements, but this denial is not material to the threshold issue on which the State’s Motion is based. (Answer, { 96). 13 D. — The State has not waived its sovereign immunity for Plaintiffs’ claims. As the parties attempting to benefit from the State’s limited waiver of sovercign immunity, Plaintiffs must demonstrate that they complied with the strict mandates of the GTCA necessary for conferring subject matter jurisdiction in any court. Plaintiffs are unable to do this, however, because, in addition to other deficiencies discussed infra, they have failed to comply with the GTCA's requirements regarding ante litem notice, Prior to filing an action against a state goverament entity, the GICA requires a claimant to provide the Risk Management Division (“RMD”) of the Department of Administrative Services (DOAS”) with an ante litem notice of claim within 12 months of the date the loss was discovered or should have been discovered, and to send a copy to the stale government entity against whom the claim is being made. See O.C.G.A. § 50-21-26(a\{1) and (2) (setting forth requirements of ante litem notice), The GTCA clearly states that no court has jurisdiction until an ante lifem notice has been timely presented: No action against the state under this article shall be commenced and courts shall have no jurisdiction thereof unless and unti] a written notice of claim has been timely presented to the state as provided in this subsection, O.C.G.A. § 50-21-26{a\(3). Courts have repeatedly dismissed claims for lack of jurisdiction when the plaintiff has failed to comply with the ante litem notice requirements. See ¢.g., Howard v. State of Georgia, 226 Ga. App. 543, 544-45 14 (1997) (Failure to comply with this ante litem notice provision prevents any court from oblaining jurisdiction over the subject matter of the action.”); see also Johnson v. E.A. Mann & Company, 273 Ga. App. 716, 722 (2005) and Shelnutt v. Georgia Dept. of ‘Iransp., 272 Ga. App. 109 (2005) (both di ing. claims for lack of subject mattcr jurisdiction when plaintiff failed to comply with ante litem notice provision.). Tn order to demonstrate that a plaintiff complied with the ante litem notice requirements, the GICA requires a plaintiff to attach as exhibits to the Complaint a copy of the notice of claim presented to DOAS, along with a copy of the certified mail or statutory overnight delivery receipt or receipt for other delivery. O.C.G.A. § 50-21-26(a)(4). Where a complaint is filed without the requisite ante litem notice attachments, as here, the plaintiff has 30 days after the State raises such issue by motion to cure this deficiency. Id. If the deficiency is not cured within 30 days, “then the complaint shall be dismissed without prejudice.” Id. Georgia courts have repeatedly affirmed that “strict compliance with the notice provisions is a prerequisite to filing suit under the GTCA, and substantial compliance therewith is insufficient.” Cummings v. Dep't of Juvenile Justice, 282 Ga. 822 (2007); see also Baskin v. Georgia Dep’t of Corrections, 272 Ga. App. 355, 358 (2005) (holding that the plaintiff's failure to amend her complaint within 30 days to include the required copies of letters and receipts resulted in dismissal of the complaint}. Here, Plaintiffs have failed to attach to their Complaint the requited copy of their ante Titem notice as well as proof of service of the ate lifem notice. Until Plaintitts demonstrate that they have met all the requirements of O.C.G.A. § 50-21-26, no court has subject matter jurisdiction over their claims against the State? EB. Pursuant to O.C.G.A. § 50-21-35, This Court Lacks Personal Jurisdiction of a State Government Entity Under the GICA. In addition to failing to give ante litem notice, Plaintiffs also failed to effect service of process properly on the State pursuant to 0.C.G.A. § 50-21-35, and to comply with the mailing provisions to the Attorney General pursuant to O.C.G.A. § 50-21-35. Specifically, O.C.G.A. § 50-21-35 requires claimants to: (1) cause process to be served upon the chief executive officer of the state government entity involved; and (2) cause process to be served upon the director of the RMD-DOAS. Tn addition, claimants must mail a copy of the complaint to the Attorney General in a specified manner, and attach a certificate to the complaint that this requirement has been met. The Georgia Supreme Court has confirmed that the requirements of O.C.G.A, § 50-21-35 are mandatory. Camp v. Coweta Cnty., 280 Ga, 199, 203-04 (2006), Although, in certain circumstances, a plaintiff's failure to comply with the * The State reserves the right to asscrt additional defenses should Plaintiffs provide a purported ante litem notice. provisions concerning the Attomey General may be an amendable defect, the requirements of service of process upon the chief executive officer of the State government office and the director, of RMD of DOAS are necessary to perfect service upon the State, Camp, 280 Ga, at 203-04. Georgia appellate courts have, therefore, repeatedly dismissed cases when a plaintiff fails to properly effet service of process upon the State as required by the GTCA. See e.g., Green v. Central State Hosp. 275 Ga. App. 569, 571 (2005) (affirming dismissal of tort claim against the Department of Corrections based on fuilure to serve the RMD Director of DOAS, noting that [t]he procedural strictures of the [GTCA], like its other terms, are strictly construed"); Sylvester v. Georgia Dep't of Transp., 252 Ga. App. 31, 32-33 (2001) (affirming dismissal of re-filed tort action where plaintiff had failed in prior action to serve process upon the director of RMD of DOAS); Henderson v. Deparunent of Transp., 267 Ga. 90, 90-91 (1996) (ial court’s dismissal of action affirmed where there was no service of process on the RMD Director of DOAS and no mailing of the Complaint to the Attomey General); and Backensto v. Georgia Dep't of Transp., 291 Ga. App. 293 (2008) (affirming trial court’s dismissal of Complaint for failure to comply with Attorney General mailing requirement). In this case, Plaintifts have not served process on the chief executive officer of the GBI, have not served process on the Director of the DOAS RMD and have not mailed a copy of the Complaint to the Attorney General in a statutorily authorized manner and attached a certificate of fulfillment of this requirement to their Complaint. Accordingly, Plaintiffs have failed both to perfect service of process upon the State and to provide the mandatory notice to the Attomey General and, therefore, their Complaint should be dismissed. F. Venue is not proper in this Court. ‘One of the limitations of the GTCA is the venue provision, which provides, in pertinent part, that “[alll tort actions against the state under this article [the GTCA] shall be brought in the state or superior court of the county wherein the tort giving rise to the loss occurred, provided, however, that wrongful death actions may be brought in the county wherein the tort giving rise to the loss occurred or the county wherein the decedent died.” O.C.G.A. § 50-21-28, (Emphasis added), The Georgia Supreme Court has clarified that venue in tort actions against state government entities under the GICA lies only where placed pursuant to O.C.G.A. § 50-21-28, regardless of whether a state government entity is the sole defendant or an alleged joint tortfeasor who is sued along with other defendants. See Dean v. Tabsum, 272 Ga. 831 (2000); Department of Transportation v. Evans, 269 Ga. 400 (1998); Doe #102 v. Department of Corrections, 268 Ga. 582 (1997); Campbell v. Department of Corrections, 268 Ga. 408 (1997). In the instant action, the alleged tort on which Plaintitfs seek to recover did not occur in Bibb County, but rather in Lowndes County. Also, the Plaintiffs’ decedent died in Lowndes County. Therefore, venue lies in Lowndes County and not in Bibb County. Pursuant to Uniform Superior Court Rule 19.1, to transfer a case to another venue, “[he moving party shall specify the couri(s) having jurisdiction and in which venue properly would lie.” Ga. Unif. Super. Ct, 19.1, Emphasis added). As discussed supra, the State Defendants have raised sovereign immunity as a defense to Plaintiffs’ claims. A sovereign iromunity defense is a threshold issue addressing the court’s subject matter jurisdiction to hear a case and, therefore, the sovereign immunity issues the State Defendants have raised would be the same for any and every court. Sadler v. Department of Transp., 311 Ga, App. 601 (2013). Therefore, Plaintiffs cannot demonstrate that the State’s sovereign immunity has been waived for this action in any court such that there is no “court having jurisdiction” within the meaning of Ga. Unif. Super. Ct. R. 19.1 to which this Court can transfer this case. Accordingly, transferring this case would be futile. Instead, the claims against the State Defendants should be dismissed. G. Plaintiffs’ RICO Claims are Barred by Sovereign Immunity Plaintiff is also attempting to bring claims against the State Defendants under the RICO Act; however, “[iJhe State is not bound by the passage of a law * Although these Defendants would prefer that this Court dismiss them for the reasons set forth in this brief, they will not contest a Motion to Transfer to Lowndes County filed by any Co- Defendant. unless it is named therein or the words of the law are so plain, clear, and unmistakable as to leave na doubt as to the intention of the General Assembly.” O.C.G.A. § 1-3-8. Further, the Georgia Constitution expressly preserves. the State's sovereign immunity and makes clear that it “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is waived and the extent of such waiver.” Ga. Const. of 1983, Art. L, Sec. IL, Par. This issue was recently decided by the Court of Appeals in ‘Tricoli v. Watts, 336 Ga. App. 837 (2016). “The Georgia RICO Act does not express any waiver of sovereign immunity. [} OCGA § 50-21-25 (a) clearly states that the GTCA is the exclusive remedy for any torts committed by state officers and employees. Because the GTCA is the exclusive remedy, the Georgia RICO Act cannot be invoked as an alternate remedy or waiver of sovereign immunity for tortious conduct of state officers and employees.” Tricoli v. Watts, 336 Ga. App. at 840. (Emphasis added). As a result, the Plaintiffs RICO claims against the State Defendants should be dismissed. H. Plaintiffs’ Claim for Injunctive Relief is Barred by Sovereign Immunity In their Fourth Cause of Action, Plaintiffs seck injunctive relief against Defendant Maryanne Gafiney-Kraft, (Complaint, 132-139). Specifically, Plaintif¥s request that this Court order Dr. Gaffiney-Kraft, a GBl-employed physician, “to make arrangements for the examination of the tissue specimens. 20 collected by Dr. William Anderson [a private physician bired by Plaintiffs] and upon doing so, give proper consideration to such evidence as dictated by her honest and professional judgment.” (Complaint, § 139). Plaintifls* claim for injunctive relief is barred by sovereign immunity. The Georgia Supreme Court has unequivocally held that, in the absence of a specific statutory waiver of sovereign immunity, the State's sovereign immunity bars claims for injunctive relief, Georgia Dep’t of Natural Resources v. Center for a Sustainable Coast, Inc. (“Center”), 294 Ga. 593 (2014). In Center, the Court explicitly overruled precedent allowing claims for injunctive relief to proceed against the State and its officers under statutes that do not include an explicit waiver of sovereign immunity. Center for Sustainable Coast, Inc., 294 Ga. at $96. Instead, the Court reaffirmed the principle that only the General Assembly can waive sovereign immunity and, unless the statute under which a plaintiff is seeking injunctive relief specifically provides for a waiver of sovereign immunity, injunctive relief under that statute is barred under both common law principles and as a matter of statutory construction, Id. at 597. In Center, not only did sovereign immunity under common law bar the plaintiff's equitable claim against the State and its officers, but also “there [was] no waiver of sovereign immunity [for injunetive relief] found in [the statute under which the ptaintiff sought injunctive telief].” Id. at 602. While Center is not the most recent case addressing the state’s 21 sovercign immunity in the context of a civil action seeking injunctive relief, itis the most on point. The recent decision in Lathrop v. Deal addresses “elaims for injunctive or declaratory relief that rest upon constitutional grounds.” Lathrop v. Deal, 2017 Ga, Lexis 529, at *1($17A0196 June 19, 2017). The present case seeks injunctive relief, but not on constitutional grounds, The Plaintiffs have also attempted to bring this action against the State Defendants in their “individual” capacity. However, Lathrop also explains that the Georgia Constitution bars suits, even in a so called “individual” capacity, against state officers for monetary damages and other retrospective relief, While Lathrop discusses the potential for actions against state employees in the their “individual” capacities sceking prospective injunetive retief to prevent the enforcement an unconstitutional statute, no such claim is made in this case. Here, Plaintiffs bear the burden of demonstrating that the State has waived its sovereign immunity for the type of relief they seek. Sadler v. Depurlment of ‘Trangp., 311 Ga, App. 601, 603 (2011) (Citations omitted); Steele v. Georgia Dep't of Transp., 271 Ga. App. 374, 376 (2005). The GTCA provides a waiver of the State's sovereign immunity for claims against the state “for money only on account of loss caused by the tort of any state officer or employee committed while acting within the scope of his or her official duties or employment.” O.C.G.A. §§ 50-21- 22(1); 26(a). Just like the statute at issue in Center, the GTCA docs not contain a 22 waiver of the State’s sovereign immunity for injunctive relief. Therefore, there is 10 “equitable and injunctive relief .... authorized by the facts and law" of this case and, Plaintiffs’ claims for injunctive relief against the State Defendants should be dismissed. 1 Plaintiffs’ Claims are Barred by O.C.G.A. § 9-2-5 Plaintiff's claims are barred, because a cause of action for the same claims asserted here is still pending in an action filed by Plaintiff in the Superior Court of Lowndes County, Civil Action Number 2015-CV-706, and the pendency of the former action is a defense to this action. OCGA § 9-2-5 (a) provides that no plaintiff may prosecute two actions in the courts at the same time for the same cause of action against the same party, and if two such actions are commenced at different times, “the pendency of the former shall be a good defense to the latter.” OCGA § 9-12-40 provides that the judgment of a court of competent jurisdiction “shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might haye been put in issue in the cause wherein the judgment was rendered.” “Thus, one must assert all claims for relief conceming the same subject matter in one lawsuit and any claims for relief concerning that same subject matier which are not raised will be res judicata.” Id., quoting Fowler v. Vineyard, 261 Ga. 454, 458 (3y¢b) C1991) 23 Thus, Plaintiff was required to assert all claims for relief concerning the same subject matter in one lawsuit, and any claims for relief concerning that same subject matter which were not saised will be res judicata, and minor differences between the complaints, including the addition of new defendants, will not penmit the second action to go forward where it involves the exact same subject matter, Adams v. Tricard, LLC, 299 Ga, App. 310 (2009). IM. CONCLUSION For the foregoing reasons, the State Defendants respectfully request that Plaintiffs’ action against them be dismissed. Respectfully submitted, CHRISTOPHER M. CARR. $51540 Attorney General KATHLEEN M. PACIOUS, 558555 Deputy Attomey General LORETTA L. PINKSTON-POPE — 580385 Senior Assistant Attomey General Js! RON BOYTER RON BOYTER 073553 Assistant Attorney General PLEASE ADDRESS ALL. COMMUNICATIONS TO: RON BOYTER Assistant Attorney General 40 Capitol Square, SW Atlanta, Georgia 30334-1300 Telephone: (404) 656-3370 rboyter@law.ga.gov 24 CERTIFICATE OF SERVICE 1 do hereby certify that I have this day filed a copy of the foregoing RODNEY BRYAN, AMY BRASWELL, STEVE TURNER, DR. MARYANNE GAFFNEY-KRAFT, WES HORNE, AND LINDSAY MARCHANT’S MOTION TO DISMISS AND BRIEF IN SUPPORT THEREOF using the Odyssey F-File Georgia system which will autornatically send email notification of such filing to all Judges and opposing counsel of record listed in the case; and by depositing a copy thereof, postage prepaid, in the United States Mail properly addressed upon the following: CHEVENE B. KING, JR. THE CB KING LAWFIRM PO BOX 3468 ALBANY GA 31706-3468 obkingx9 16(@a01.com Attorney for Plaintiffs, Kenneth Johnson and Jacquelyn Fobnson PATRICK O'CONNOR OLIVER MANER LLP PO BOX LOI86 SAVANNAH GA 31412-0386 pto@olivermancr.com Attorney for Defendants, Brandon Beli, Brian Bell, Rick Bell GEORGE T TALLEY COLBMAN TALLBY LLP POBOX 5437 VALDOSTA GA 31603-5437 george.talley@eolemantalley.com Attorney for Defendants, City of Valdosta, Georgia, a muaticipal corporation; Frank Simmons; Larry Hanson; Shannon Salters, Ray McGraw 25 BRICE LADSON LADSON LAW FIRM PC PO BOX 2819 RICHMOND HIEL GA 31324-2819 mbrice@ladsonlaw. com Attorney for Defendams, Brandon Bell, Brian Belt, Rick Bell PAUL THRELKELD OLIVER MANER LLP PO BOX 10186 SAVANNAH GA 31412-0386 pat@olivermaner.com Attorney for Defendants, Brandon Beli, Brian Bell, Rick Bell TIMOTHY M TANNER COLIMAN TALLEY LLP PO BOX 5437 VALDOSTA GA 31603-5437 fim tanner@colemantalley.com Attorney for Deferddants, City of Valdosta, Georgia, a municipal corporation; Evank Simmons; Larry Hanson, Sharon Salters; Ray McGraw L WARREN TURNER JR WAYNE S MELNICK, PO BOX 157 FREEMAN MATHIS & GARY LLP VALDOSTA GA 31603-0157 100 GALLFRIA PKWY SE STE 1600 warren@jlwiurnerlaw.com ATLANTA GA 30339-5948 wnelnick@finglaw.com Attorney for Defendant, Wes Taylor Attorney for Defendant, Wes Taylor JAMES ELLIOTT ELLIOTT, BLACKBURN & GOODING, P.C, 3016 N PATTERSON ST VALDOSTA GEORGTA 31602-1711 jellio@ebbglaw.com Aliorney for Defendants, James D. Thornton; Investigator Jack Winningham: Cpe, Wanda Fadwards; Lt. Stryde Jones; Sgt. Aaron Pritchett, Maj. Logan Henderson; Dep, Randy Lightsey; Dep. Michael dams; Investigator Jack Priddy; Dep. Kerty Quinn: Dep. Christ! Griffin: Dep. Bruce Whitener; Dep. Christopher Burke; Det. Troy Black, Det. Howard Fisher; Det. Murk Maskule; Det. Roy Hart; Det. Jakn Marion This 11" day of August, 2017. is! RON BOYTER RON BOYTER 073553 Assistant Attorney General 26 IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON and JACQUELYN: JOHNSON Plaintiffs, : ¥. {CIVIL ACTION FILE 2NQ. 2017-CV-067039 BRANDON BELL, et al., : Defendants. County of Bibb State of Georgia AFFIDAVIT OF WESLEY C. HORNE COMES NOW Wesley C. Horne who, after being first duly sworn, states that he is over the age of majority, has no disabilities, and has personal knowledge of the following facts: 1, My name is Wesley Horne, and I am currently employed by the Georgia Bureau of Investigations (“GBI”). During the relevant time period I was assigned assigned as a Crime Scene Specialist in Region 9 (Thomasville). 2. On or about January 11, 2013, at the request of the Lowndes County Sheriff's Office, 1 roported to the scene of the death of Kendrick Johnson, st Lowndes County High School. T assisted Investigator James Thornton, an investigator with the Valdosta Crime Lab, with examining the scene. 4. Assisting other law enforcement agencies is part of my official duties and employment as a GBI Special Agent. 5. All actions taken by me with regard to the scene examination or in any way related to the investigation of the death of Kendrick Johnson, or that in any way relate to Kendrick Johnson or the Plaintiffs in this case, occured within the course of my official duties or employment for GBI. 6. To date, T have not been personally served with the Summons and Complaint in the above-captioned lawsuit, and I have not appointed or otherwise authorized anyone to receive service of process for me in civil actions. Fucther affiant sayeth naught, Wesley C. Horne , GBI Special Agent Sworn to and subscribed Before me this _¥ day 2017 NOTARY PU My commission expires: ~ Notary Publlo, Laisar County, iy Commtseton Soph December 0: e019 IN THE SUPERTOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON and JACQUELYN: JOHNSON Plaintiffs, ve :CIVIL ACTION FILE 1O. 2017-CV-067039 BRANDON BELL, et al, Defendants. County of Bibb State of Georgia AFFIDAVIT OF AMY BRASWELL COMES NOW Amy Braswell, who, after being first duly sworn, states that she is over the age of majority, has no disabilities, and has personal knowledge of the following facts: 1, My name is Amy Braswell, and I am currently employed by the Georgia Bureau of Investigations (“GBI”) as a Special Agent in Region 9 (Thomasville). 2. On or about January 11, 2013, I assisted the Lowndes County Sheriffs Office in the death investigation of Kendrick Johnson at Lowndes County High School. 3. Assisting other law enforcement agencies is part of my official duties and employment as a GBI Special Agent. 4, All actions taken by me with regard to the investigation of the death of Kendrick Johnson, or that in any way relate (o Kendrick Johnson or the Plaintiffs in this case, occurred within the course of my official duties or employment for GBI. 5. To date, 1 have not been personally served with the Summons and Complaint in the above-captioned lawsuit, and I have not appointed or otherwise authorized anyone to receive service of process for me in civil actions. Further affiant sayeth naught. § Btbael Amy Braswell GBI Special Agent Sworn to and subscribed Before me this $?day OTE si PIRES 32017 GEORGIA & - FEB UARY © 202, Pesos "OX co! IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON and JACQUELYN: JOHNSON z Plaintiffs, ve :CIVIL ACTION FILE ). 2017-C V-067039 BRANDON BELL, et al., Defendants. County of Bibb State of Georgia AEFIDAVIT OF STEVE IER COMES NOW Steve Turner, who, after being first duly sworn, states that he is over the age of majority, has no disabilities, and has personal knowledge of the following facts: 1 My name is Steve Turner, and 1 was employed by the Georgia Bureau of Investigations (“GBI) as a Special Agent in Region 9 (Thomasville) from 01/06/1988 to 08/31/2015 2. On or about January 11, 2013, I assisted the Lowndes County Sheriff's Office in the death investigation of Kendrick Johnson at Lowndes County High School. 3. Assisting other law enforcement agencies was part of my official duties and employment as a GBI Special Agent. 4. All actions taken by me with regard to the investigation of the death of Kendrick Johnson, or that in any way relate to Kendrick Johnson or the Plaintiffs in this case, occurred within the course of my official duties or employment for GBI. Be To date, I have not been personally served with the Summons and Complaint in the above-captioned lawsuit, and [ have not appointed or otherwise authorized anyone to receive service of process for me in civil actions. Further affiant sayeth naught. Sage Go Steve Tuner GBI Special Agent Sworn to and subscribed Before me this tay IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON and JACQUELYN: JOHNSON Plaintiffs, v {CIVIL ACTION FILE :NO. 2017-CV-067039 BRANDON BELL, et al., 7 Defendants, County of Bibb State of Georgia AFFIDAVIT OF LINDSAY MARCHANT COMES NOW Lindsay Marchant, who, after being first duly sworn, states that she is over the age of majority, has no disabilities, and has personel knowledge of the following facts: 1, My name is Lindsay Marchant, and I am currently employed by the Georgia Bureau of Investigations (“GBI”) as an Assistant Special Agent in Charge at the Child Exploitation and Computer Crimes Unit. 2, On or about January 11, 2013, I assisted the Lowndes County Sheriff's Office in the death investigation of Kendrick Johnson at Lowndes County High School. 3 Assisting other law enforcement agencies is part of my official duties and employment as a GBI Special Agent. 4. All actions taken by me related to the investigation of the death of Kendrick Johnson, or any other action I took that in any way related to Kendrick Johnson or the Plaintiffs in this case, occurred within the course of my official duties or employment for GBI. 5. To date, I have not been personally served with the Summons and Complaint in the above-captioned lawsuit, and I have not appointed or otherwise authorized anyone to receive service of process for me in civil actions. Further affiant sayeth naught Sworn to and subscribed Before me this & day of, August > 2017 ns Mathis NOTARY PUBLIC ‘9 ara My commission expires: 8/27/2018 Sous IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON and JACQUELYN: JOHNSON Plaintiffs, IVIL ACTION FILE (O. 2017-CV-067039 ve BRANDON BELL, et al, Defendants. County of Bibb State of Georgia AFFIDAVIT OF DR. MARYANNE GAFFNEY-KRAFT COMES NOW Dr. Maryanne Gaffney-Kratt, who, after being first duly swom, states that she is over the age of majority, has no disabilities, and has personal knowledge of the following facts: 1 My name is Maryanne Gafiney-Kraft, and I am a physician curently employed by the Georgia Burean of Investigations (“GBI”) as a Regional Medical Examiner in the Division of Forensic Sciences, Central Regional Lab. 2, On or about January 14, 2013, 1 performed an autopsy on the body of Kendrick Johnson, Subsequently, on or about May 2, 2013, T completed an “Official Report” detailing the findings I made during the autopsy. 3. Conducting autopsies and authoring official reports are part of my official duties and employment as « GBI Regional Medical Examiner. 4, All actions taken by me with regard to the autopsy of Kendrick Johnson, or that in any way relate to Kendrick Johnson or the Plaintiffs in this case, occurred within the course of my official duties or employment for GBL. Ss L have not appointed or otherwise authorized anyone to receive service of process for me in civil actions. Further affiant sayeth naught. ‘Dr. Maryanne Gaffney-Khat@ Regional Medical Examiner ~ Sworn to and subscribed Before me this ¢*"day Of Atequsk NOTARY PUBLIC ‘My commission expires: #f.5 {2 IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON and JACQUELYN: JOHNSON 2 Plaintiffs, ve :CIVIL ACTION FILE 2NO.2017-CV-067039 BRANDON BELL, et al., : Defendants. : County of Bibb State of Georgia AFFIDAVIT OF RODNEY BRYAN COMES NOW Rodney Bryan, who, after being first duly swom, states that he is over the age of majority, has no disabilities, and has personal knowledge of the following facts: I My name is Rodney Bryan, and I am currently employed by the Georgia Bureau of Investigations (“GBI”) as a Death Investigation Specialist in the Division of Forensic Sciences, Central Regional Lab. 2, In or about January of 2013, [ assisted in the investigation of the death of Kendrick Johnson. nN 3. Assisting in death investigations is part of my official duties and employment as 2 GBI Death Investigation Specialist 4. All actions taken by me related to the investigation of the death of Kendrick Johnson, or any other action 1 took that in any way related to Kendrick Johnson or the Plaintiffs in this case, occurred within the course of my official duties or employment for GBI. 5. I have not appointed or otherwise authorized anyone to teceive service of process for me in civil actions, Further affiant sayeth naught. Rodney Bry Death Investigation Specialist Sworn to and subscribed Before me this $4 day 2017 NORE SOS My cqeimiimettirese Hach 27, 2-019 zz,