                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 09-15395                  AUGUST 4, 2010
                        ________________________              JOHN LEY
                                                               CLERK
                   D. C. Docket No. 04-01338-CV-RWS-1

ACMG OF LOUISIANA, INC.,
ACMG, INC.,


                                                          Plaintiffs-Appellants,

                                   versus

TOWERS PERRIN INC.,

                                                           Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (August 4, 2010)

Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

     ACMG of Louisiana, Inc. and ACMG, Inc. (“ACMG”) appeal the district
court’s order granting defendant Towers Perrin, Inc. (“Towers Perrin”) summary

judgment on their breach of contract, indemnification, and contribution claims and

taxing against them the costs of the litigation. Towers Perrin prevailed on its

motion for summary judgment by arguing that ACMG’s breach of contract claim

was untimely and that the contribution and indemnity claims were legally deficient.

After reviewing the record, reading the parties’ briefs, and having the benefit of

oral argument, we affirm the district court’s grant of summary judgment and its

order awarding costs to Towers Perrin.

                                 I. BACKGROUND

      This dispute involves three primary entities: Vantage Health Plan of

Louisiana, Inc. (“Vantage”), a health insurance plan; ACMG, the administrator of

the insurance plan; and Towers Perrin, the consulting firm that provided ACMG

with the rate model used in calculating premiums for the plan. Amidst alleged

poor plan performance, Vantage terminated ACMG’s management agreement and

sued ACMG for breach of contract in Louisiana. ACMG settled the case by

relinquishing claims to future payment under the contract and surrendering

Vantage stock. In turn, Vantage assigned to ACMG its claims against Towers

Perrin for breach of contract.

      ACMG sued Towers Perrin via a third party complaint in the Louisiana



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litigation. ACMG moved to amend the complaint on May 3, 2004, to add claims

against Towers Perrin, a motion the court granted on August 9, 2004. ACMG

never served Towers Perrin with the third party complaint, however, but

voluntarily dismissed the action immediately after filing the amended complaint on

August 9. Meanwhile, on May 13, 2004, ACMG commenced this action against

Towers Perrin in the Northern District of Georgia. ACMG asserted the breach of

contract claims assigned to it by Vantage as well as direct contribution and

indemnification claims against Towers Perrin, claiming that it was forced to settle

the Vantage suit because of Towers Perrin’s mistakes. After granting summary

judgment in favor of Towers Perrin, the district court ordered ACMG to pay

Towers Perrin’s litigation costs under 28 U.S.C. § 1920 (2006).

                          II. STANDARD OF REVIEW

      We review a grant of summary judgment de novo. Fanin v. U.S. Dep’t of

Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009). We review a district court’s

award of costs to the prevailing party for abuse of discretion. Chapman v. AI

Transp., 229 F.3d 1012, 1039 (11th Cir. 2000).

                                 III. DISCUSSION

      ACMG first objects to the district court’s determination that the Georgia

renewal statute did not save its time-barred breach of contract action because

ACMG did not serve Towers Perrin in the Louisiana suit before dismissal.
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Georgia law allows the recommencement of an otherwise untimely claim if it was

timely brought elsewhere:

      When any case has been commenced in either a state or federal court
      within the applicable statute of limitations and the plaintiff
      discontinues or dismisses the same, it may be recommenced in a court
      of this state or in a federal court either within the original applicable
      period of limitations or within six months after the discontinuance or
      dismissal, whichever is later . . . .

Ga. Code Ann. § 9-2-61(a) (2007).

      ACMG contends that Georgia courts would interpret the statutory term

“commenced” with reference to the law of the state where the action was brought.

Cf. Walker v. Armco Steel Corp., 446 U.S. 740, 752–53, 100 S. Ct. 1978, 1986

(1980) (holding that a federal court in a diversity action must look to the law of the

forum state to determine when the action is commenced). We have no indication

that Georgia courts, however, would look outside the law of Georgia to determine

when an action is “commenced” under the renewal statute. E.g., Collins v. W. Am.

Ins. Co., 368 S.E.2d 772, 773 (Ga. Ct. App. 1988) (citing Georgia case law for the

proposition that an out of state action dismissed for lack of subject matter

jurisdiction was void and therefore had not been commenced). As a result,

ACMG’s unserved Louisiana lawsuit is ineligible for renewal because it was never

commenced. See Hobbs v. Arthur, 444 S.E.2d 322, 323 (Ga. 1994) (holding that a




                                           4
lawsuit “is void if service was never perfected”). We conclude from the record that

the district court correctly determined that the Georgia statute of limitations barred

the breach of contract claim asserted here.

      ACMG next asserts error in the district court’s conclusion that it failed to

state a claim for either indemnity or contribution in the complaint. A claim for

indemnity arises only when a party pays damages on behalf of another. See

Restatement (Third) of Torts: Apportionment of Liability § 22 cmt. b (2000)

(“[A]n indemnitee must extinguish the liability of the indemnitor to collect

indemnity. The indemnitee may do so either by a settlement . . . or by satisfaction

of judgment that by operation of law discharges the indemnitor from liability.”);

see also Carr v. Nodvin, 342 S.E.2d 698, 702 (Ga. Ct. App. 1986) (noting that an

indemnitor “is entitled to restitution from the other for expenditures properly made

in the discharge of such liability” (internal quotation marks omitted)). The same is

true of contribution—a responsible party must pay some portion on behalf of

another before he has a right to recover that portion. Tenneco Oil Co. v. Templin,

410 S.E.2d 154, 159 (Ga. Ct. App. 1991) (noting that contribution is available only

when one tortfeasor has paid more than his fair share of the damages). Because

ACMG did not extinguish or mitigate Towers Perrin’s liability in its settlement

with Vantage, but rather received assignment of claims against Towers Perrin, no



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right of indemnity or contribution exists. We conclude therefore that the district

court correctly granted summary judgment on these claims.

         ACMG finally raises a number of other objections to the costs taxed against

it, primarily arguing that the charges for data copying, duplication, transcripts, and

depositions were unreasonable. Its argument, however, raises no facts from which

we find an abuse of discretion on the part of the district court in awarding these

costs.

                                 IV. CONCLUSION

         We conclude that ACMG’s belated breach of contract claim is not saved by

Georgia’s renewal statute. Moreover, the district court correctly granted summary

judgment in favor of Towers Perrin on ACMG’s contribution and indemnity

claims. We also find no abuse of discretion in the district court’s award of costs.

         AFFIRMED.




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