In Showan v. Pressdee, Case No. 17-15547 (decided April 29, 2019), the United States Court of Appeals for the Eleventh Circuit held that litigants in federal court cases governed by Georgia law could invoke a Georgia statute that provides a remedy for frivolous litigation.

O.C.G.A. § 9-11-68 includes provisions creating a procedure for a party to make an offer of judgment. If a party makes such an offer and the outcome of the case is not as favorable to the other party as accepting the offer of judgment would have been (the statute defines the thresholds), the offering party can recover certain attorney fees.

O.C.G.A. § 9-11-68(e) provides an additional, different procedure. A prevailing party, when a verdict or judgment is entered, can ask that the fact finder determine whether the losing party had presented a frivolous claim or defense. In Showan, the plaintiff who had prevailed at trial invoked the statute and asked the trial court to have the jury consider whether the defendant had presented a frivolous defense. Opinion, pp. 20-22. But, the trial court rejected the request and ruled that the defense was not frivolous. Opinion, p. 22.

The Eleventh Circuit held that the Georgia statutory remedy was available in a federal court case governed by Georgia substantive law. Opinion, p. 32. The Court also held that the plain language of the statute required a hearing before the same fact finder if the prevailing party requested one. Opinion, pp. 32-33. Only the finder of fact (here the jury) could determine if the defense was frivolous.

This ruling makes available to litigants a new tool to combat frivolous litigation in federal court in cases governed by Georgia law.

The Opinion is available here.