Kirkland v. Guardian Life Insurance Co. of America , 352 F. App'x 293 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 19, 2009
No. 08-15699 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00107-CV-CDL-3
DWAIN LEE KIRKLAND,
Plaintiff-Appellant,
versus
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 19, 2009)
Before BIRCH, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Dwain Lee Kirkland, pro se, appeals the grant of summary judgment to The
Guardian Life Insurance Company of America (Guardian) in his private civil
action alleging negligence, fraud, and breach of contract under state law. Kirkland
alleges he entered into a private disability insurance policy (the Policy) with
Guardian in the 1980s. He further alleges he became disabled under the terms of
the Policy in 1993, but he did not realize that he was disabled until 2003, when he
first filed a disability claim with Guardian. Guardian accepted his claim, with a
disability onset date of March 2003, but denied his claim for back benefits from
1993 through 2003. Kirkland filed suit in Georgia state court, and Guardian
removed the case to the district court based on diversity jurisdiction. The district
court ultimately granted summary judgment to Guardian on all claims, and this
appeal followed.
I.
As an initial matter, Guardian argues the only order properly before us on
appeal is the final order issued by the district court on July 11, 2008, (the Final
Order), in which the court addressed only a single claim. Kirkland argues his
notice of appeal indicated his intent to appeal all of the underlying orders from the
district court.
Although Kirkland specifically stated he was appealing the Final Order, it is
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apparent from the face of the notice of appeal that he intended to appeal all of the
underlying orders. In particular, he asked that the district court clerk omit nothing
from the record on appeal. Moreover, all of the issues that Kirkland raises on
appeal are interrelated, and Guardian has not argued that it was prejudiced by
Kirkland’s failure to more specifically identify the orders that he wanted to appeal.
See Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1313 (11th Cir. 2004); see
also Aaro, Inc. v. Daewoo Int’l (Am.) Corp., 755 F.2d 1398, 1400 (11th Cir. 1985).
Accordingly, we conclude that the notice of appeal was effective to appeal all the
non-final orders issued prior to the Final Order. See Osterneck v. E.T. Barwick,
Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987).
II.
Kirkland argues the resolution of his claims on summary judgment violated
his right to a jury trial under both the United States Constitution and the Georgia
Constitution.
We review questions of constitutional law de novo. Loyd v. Ala. Dep’t of
Corrs., 176 F.3d 1336, 1339 (11th Cir. 1999). Generally, we will not consider an
issue not raised before the district court. Access Now, Inc. v. Southwest Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Moreover, issues not briefed on appeal
are deemed abandoned. Id. at 1330. An issue also may be deemed abandoned
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where a party only mentions it in passing without providing substantive argument
in support. APA Excelsior III L.P. v. Premiere Techs., Inc., 476 F.3d 1261, 1270
n.4 (11th Cir. 2007).
The Seventh Amendment provides that, in suits at common law, where the
value in controversy exceeds $20, “the right of trial by jury shall be preserved[.]”
U.S. Const. amend. VII. Nevertheless, where there are no genuine issues of fact,
“summary judgment decides only questions of law and does not deprive the losing
party of its jury trial right.” Itel Capital Corp. v. Cups Coal Co., Inc.,
707 F.2d 1253, 1261 (11th Cir. 1983).
As discussed below, there were no genuine issues of material fact in this
case. Thus, the district court did not violate Kirkland’s right to a jury trial under
the Seventh Amendment. Moreover, because Kirkland did not argue before the
district court that a jury trial was required under the Georgia Constitution, we do
not address that claim on appeal. Similarly, we note that Kirkland refers on appeal
to the Fifth and Fourteenth Amendments, but he does not make any substantive
argument that the grant of summary judgment denied him due process.
Accordingly, he has abandoned any such argument.
III.
Next, Kirkland contends that the district court improperly found that
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Guardian was entitled to void a portion of the Policy which entitled him to residual
disability benefits.
As noted above, we generally will not consider an issue not raised in the
district court. Access Now, 385 F.3d at 1331. Whether Kirkland was entitled to
residual disability benefits was never raised as an issue or argued before the district
court. Accordingly, the court did not make any findings in this regard. Because
the issue residual disability benefits was never raised before the district court, we
will not address this issue on appeal.
IV.
Kirkland also argues that the district court erred in finding that Florida law,
rather than Georgia law, applied in this case pursuant to the doctrine of lex loci
contractus.
We review a district court’s choice-of-law determination de novo.
Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assoc., Inc., 468 F.3d 1322,
1325 (11th Cir. 2006).
The parties here had a substantial relationship with Florida because Kirkland
lived in Florida until November 2002, which was a few months before he first filed
his notice of claim with Guardian, and because the Policy was delivered in Florida.
See Johnson v. Occidental Fire & Cas. Co. of N.C., 954 F.2d 1581, 1583-84 (11th
5
Cir. 1992). Both Florida and Georgia law require notice within a reasonable period
of time, unless compliance is impossible or unreasonable, compare Reliance Life
Ins. Co. of Pittsburgh, Pa., v. Lynch, 197 So. 723, 724-25 (Fla. 1940), with N. Am.
Ins. Co. v. Watson, 64 S.E. 693, 695 (Ga. App. 1909), thus Florida law does not
contravene Georgia public policy, see Convergys Corp. v. Keener, 582 S.E.2d 84,
85 (Ga. 2003). Thus, the district court correctly concluded Florida law applied in
this case.
V.
Kirkland argues that the district court erred by allowing Guardian to file its
answer to his complaint one day after the filing deadline.
We review “the district court’s determination of excusable neglect for abuse
of discretion.” Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997
(11th Cir. 1997).
After removal, a defendant who did not answer a complaint before removal
must answer, as relevant here, five days after the notice of removal is filed. Fed. R.
Civ. P. 81(c)(2)(C). However, when an act must be done within a specified time,
the district court may extend the time for good cause “if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). In analyzing excusable
neglect, the court should look at (1) the danger of prejudice to the non-movant,
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(2) the length of the delay and its possible impact on the judicial proceedings,
(3) the reason for the delay, and (4) whether the movant acted in good faith.
Advanced Estimating Sys., 130 F.3d at 997-98. The Supreme Court has explained
that excusable neglect can include an “inadvertent or negligent omission.” Pioneer
Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 113 S. Ct. 1489, 1498 (1993)
(construing a Bankruptcy Rule).
Here, Guardian’s counsel filed the answer one day after the deadline because
he inadvertently forgot to change the deadline date on his calendar after filing the
notice of removal one day earlier than expected. Guardian’s counsel initially had
planned on filing the notice of removal on December 8, 2006. Thus, the answer
would have been due five days later, on December 15, 2006. However, Guardian’s
counsel actually filed the notice of removal one day earlier than planned, moving
the due date for the answer up one day as well. Kirkland has not explained how he
was prejudiced, in any way, by the one-day delay. Moreover, the delay was short
and had no apparent impact on the proceedings. Kirkland also has not alleged that
Guardian intentionally filed its answer late or otherwise acted in bad faith.
Accordingly, the district court did not abuse its discretion by permitting Guardian
to file the answer one day late.
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VI.
Next, Kirkland argues that, because he verified his complaint, Guardian was
required, under Georgia law, to verify its answer.
Whether federal or state law applies in a diversity action is a question of law,
which we review de novo. Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1306
(11th Cir. 2002).
In a diversity action, the federal court must apply state substantive law and
federal procedural law. Id. In deciding whether state or federal law should apply
to an issue, the court first looks to see whether the state and federal law conflict as
to the disputed issue. Id. at 1306-07. Here, the state and federal laws conflict.
Compare O.C.G.A. § 9-10-111, with Fed. R. Civ. P. 11(a). If the laws conflict, the
court should determine “whether a congressional statute or Federal Rule of Civil
Procedure covers the disputed issue.” Esfeld, 289 F.3d at 1307. Here Rule 11(a),
Fed. R. Civ. P., covers the disputed issue. Thus, the district court correctly found
that federal law governed, see Esfeld, 289 F.3d at 1307, and Guardian was not
required to verify its answer.
VII.
Kirkland also contends the district court should have granted his motion for
recusal.
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We review a district judge’s decision on whether to recuse himself for an
abuse of discretion. Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1319-
20 (11th Cir. 2002). A judge must recuse himself when a party to a district court
proceeding “files a timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against him or in favor of
an adverse party.” 28 U.S.C. § 144. Generally, “bias sufficient to disqualify a
judge must stem from extrajudicial sources, and must be focused against a party to
the proceeding.” Hamm v. Members of Bd. of Regents of State of Fla.,
708 F.2d 647, 651 (11th Cir. 1983) (citations omitted). “An exception to that rule
is made when a judge’s remarks in a judicial context demonstrate such pervasive
bias and prejudice that it constitutes bias against a party.” Id. However, adverse
rulings do not constitute pervasive bias. Id.
In his motion for recusal, Kirkland only identified adverse rulings in support
of his allegations of bias. He did not allege any extrajudicial sources of bias or
refer to any remarks that demonstrated bias. Thus, the district court did not abuse
its discretion by denying the motion for recusal.
VIII.
Kirkland next submits that the district court erred by denying him leave to
amend his complaint to add violations of state and federal Racketeer Influenced
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and Corrupt Organizations (“RICO”) laws.
We review “the denial of a motion to amend a complaint for an abuse of
discretion.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co.,
341 F.3d 1292, 1300 (11th Cir. 2003). “[W]here a party’s motion to amend is filed
after the deadline for such motions, as delineated in the court’s scheduling order,
the party must show good cause why leave to amend the complaint should be
granted.” Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1366 (11th Cir.
2007); see also Fed. R. Civ. P. 15(a).
Kirkland filed his motion for leave to amend the complaint four months after
the deadline set by the district court’s scheduling order. Moreover, he failed to
show good cause for allowing the amendment. Thus, the district court did not
abuse its discretion by denying the motion.
IX.
Kirkland contends that the district court erred by striking his proposed
expert witness for failure to comply with Rule 26, Fed. R. Civ. P., but not striking
Guardian’s expert witnesses for the same reason.
A district court’s discovery decisions are reviewed for an abuse of
discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).
The Federal Rules of Civil Procedure require the parties in a case to provide one
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another with the identities of expert witnesses who may be used at trial to present
evidence. Fed. R. Civ. P. 26(a)(2)(A). These disclosures must be made “at the
times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(C). “At
every stage of the proceeding, the court must disregard all errors and defects that
do not affect any party’s substantial rights.” Fed. R. Civ. P. 61.
Here, Kirkland did not disclose his witness until three months after the
disclosure was due. Moreover, he failed to provide a reason for his late filing,
except to say that he had realized he was going to have to litigate his case pro se.
However, Kirkland had been litigating his case pro se from the time he filed his
complaint, and he did not explain how his pro se status prevented him from filing a
timely disclosure. Thus, the district court did not abuse its discretion by striking
Kirkland’s proposed expert witness. Moreover, assuming, arguendo, that the
district court erred by not striking Guardian’s proposed expert witnesses, the error
in no way affected Kirkland’s substantial rights because Guardian did not submit
any evidence from its expert witnesses in support of its summary-judgment
motion.
X.
Kirkland further argues the district court erred by finding that Guardian’s
response to his summary judgment motion was timely. He asserts that he filed his
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motion on July 30, 2007, and his brief in support on August 13, 2007, and he
argues that Guardian was required to respond within 20 days after he filed the
motion, rather than within 20 days after he filed the brief.
Under the Local Rules of the Middle District of Georgia, a party wishing to
file a response to a motion must do so within 20 days “after service of movant’s
motion and brief.” M.D. Ga. L. R. 7.2 (emphasis added).
Within 20 days after Kirkland filed his brief in support of his motion for
summary judgment, Guardian received an extension of time to file its response by
September 14, 2007. Guardian then filed its response before the expiration of the
extended deadline. Accordingly, the district court correctly concluded that
Guardian’s response was timely and did not err in declining to strike it.
XI.
Finally, Kirkland argues the district court erred by granting summary
judgment to Guardian and by denying him summary judgment. Kirkland submits
that he asserted three theories of recovery: breach of contract, fraud, and violations
of RICO laws. However, he does not discuss the fraud or RICO claims on appeal,
but, instead, only refers to documents filed in the district court. Thus, he has
abandoned these claims. See Four Seasons Hotels & Resorts, B.V. v. Consorcio
Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004) (holding that a party may not
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incorporate by reference arguments presented to the district court, but must
specifically and clearly identify the issues presented for review, with citations to
the authorities and portions of the record on which the party relies).
We review a district court’s grant of summary judgment de novo, applying
the same standards that were to be applied in the district court. Rojas v. Florida,
285 F.3d 1339, 1341 (11th Cir. 2002). Issues not briefed on appeal are deemed
abandoned. Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002).
Under Florida law, a party’s failure to comply with the notice requirements
of an insurance policy may be excused where the party’s circumstances make
compliance impossible or unreasonable and the insured has acted with due
diligence. Reliance, 197 So. at 724. In Reliance, the court found that the
policyholder’s failure to give timely notice was excused where he was stricken
with a disease that confined him to his bed and caused him to be delirious most of
the time. Id. at 723.
“When notice of a possible claim is not given to an insurance company,
prejudice is presumed, but recovery is not precluded if the insured can demonstrate
lack of actual prejudice.” Nat’l Gypsum Co. v. Traveler’s Indem. Co., 417 So.
2d 254, 256 (Fla. 1982). An insured may show a lack of prejudice to an insurer by
demonstrating, for example, that another insurer or other competent person
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investigated the matter and turned the results over to the current insurer. Collura,
163 So. 2d at 792.
Kirkland failed to provide Guardian with a timely notice of claim, as
required by the Policy. There were no genuine issues that Kirkland knew that he
was suffering from a number of physical symptoms, that he was unable to work
between 1993 and 2003, or that he waited over 10 years before notifying Guardian
of his inability to work. Thus, the district court did not err in finding, as a matter
of law, that Kirkland failed to give notice of his disability within a reasonable
time.1 Kirkland also did not overcome the presumption of prejudice that arose in
Guardian’s favor upon his failing to give timely notice of his claims. Guardian
was, thus, entitled to summary judgment on the breach-of-contract claim.
Moreover, Kirkland has waived all other relevant issues by failing to discuss them
on appeal.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
1
Kirkland also contends on appeal that the district court erred by finding that he was
required to give proof of loss within 90 days after the end of the first 30-day period for which he
claimed that Guardian was liable under the Policy. It appears that the district court correctly
construed the Policy as to this requirement. In any event, even if there was a genuine issue as to
whether Kirkland’s proof of loss was timely, there was no genuine issue as to his failure to
provide a timely notice of claim, which precluded his recovery under the Policy.
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