Wendell F. Gilley v. Monsanto Company, Inc. ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 3, 2009
No. 08-13646
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00562 CV-4-CLS
WENDELL F. GILLEY, an individual and
as class representative,
Plaintiff-Appellant,
versus
MONSANTO COMPANY, INC., a corporation,
MONSANTO COMPANY SALARIED EMPLOYEES’
PENSION PLAN, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 3, 2009)
Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
After oral argument and careful consideration, we conclude that the
judgment of the district court is due to be affirmed. We conclude that plaintiff
cannot circumvent the law of the case established in Gilley v. Monsanto Co., Inc.,
490 F.3d 848 (11thCir. 2007). Therefore, plaintiff’s claims in Count I and V are
foreclosed. With respect to his claim based upon new evidence, we conclude that
the evidence is not new, and that plaintiff had ample opportunity to present that
evidence in the hearing before the district court prior to the first appeal. Nor is
there any other meritorious exception to the law of the case. With respect to
plaintiff’s claims in Counts II, III and IV, plaintiff’s initial brief on appeal failed to
preserve the claims, and in any event the claims are without merit.
AFFIRMED.
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