[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12687 ELEVENTH CIRCUIT
Dec. 03, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 08-02999-CV-WSD-1
RICHARD W. DRAKE,
Plaintiff-Appellant,
versus
WILLIAM H. WHALEY,
WEST PACES FERRY MEDICAL CLINIC,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 3, 2009)
Before TJOFLAT, EDMONDSON and COX, Circuit Judges.
PER CURIAM:
In 1993, Delta Air Lines terminated the employment of flight attendant Richard
W. Drake after a random drug test of Drake’s urine came back positive for an
adulterant. Defendant William H. Whaley was Delta’s Medical Review Officer and
oversaw its drug testing program. Drake alleges that, in 1993, Whaley negligently
performed his duties related to the drug test. (R.1-17 at 3.) Drake also alleges that,
from 1994 through 2000, Whaley fraudulently concealed his involvement in handling
the drug test and conspired with Delta to withhold from Drake documents related to
the test. (Id. at 13.)
In 1994, Drake filed the first of several lawsuits against Delta related to his
termination and alleged irregularities with the drug test in the Eastern District of New
York; ultimately, all were dismissed. In 2001, Drake first filed suit against the
defendants in this case, Whaley and the West Paces Ferry Medical Clinic,1 in the
Eastern District of New York. He asserted claims arising out of the drug test and
termination that occurred eight years prior to the filing of the lawsuit. In September
2008, the court dismissed the suit against Whaley and the Clinic, without prejudice,
for lack of personal jurisdiction. Drake v. Laboratory Corp. of America Holdings,
No. 02-CV-1924, 2008 WL 4239844 (E.D.N.Y. Sept. 11, 2008).
Two weeks later, Drake filed a complaint in the Northern District of Georgia
against the same defendants asserting claims for negligence, tortious interference with
1
Plaintiff does not make specific allegations against West Paces Ferry Medical Clinic except
that Whaley was the owner of the clinic and used it to perform Medical Review Officer functions
for Delta.
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economic relations, misrepresentation, negligent infliction of emotional distress,
spoliation of evidence, and conspiracy arising out of the 1993 drug test and
termination. That court held Drake’s claims were all time barred by the statute of
limitations and dismissed the case. Drake appeals, arguing (1) the court erred in
concluding collateral estoppel did not bar the Defendants from re-litigating the issue
of equitable tolling; and (2) the district court erred in finding the doctrine of equitable
tolling did not apply to toll the limitations period.2
I. Collateral Estoppel
Prior to dismissing Drake’s suit against Whaley and the Clinic for lack of
personal jurisdiction, the United States District Court for the Eastern District of New
York denied the defendants’ motions to dismiss the case based on the statute of
limitations, finding Drake’s allegations were sufficient to state a claim for equitable
tolling and that the issue would be left to be decided at trial. Drake, 2007 WL
776818, at *8. Drake argues that collateral estoppel attaches to this interim ruling to
bar the Defendants from re-litigating the statute of limitations issue in the suit filed
in the Northern District of Georgia.
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Drake also argues the court erred in allowing the Defendants to introduce for the first time
in their reply brief the argument that collateral estoppel did not apply to toll the limitations period.
This argument is wholly without merit.
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“Under collateral estoppel, once an issue is actually and necessarily determined
by a court of competent jurisdiction, that determination is conclusive in subsequent
suits . . . involving a party to the prior litigation.” Montana v. United States, 440
U.S. 147, 153, 99 S. Ct. 970, 973 (1979) (citation omitted). The district court
properly held collateral estoppel does not apply to this case for two reasons. First,
because it lacked personal jurisdiction over the Defendants, the District Court for the
Eastern District of New York was not a competent court of jurisdiction; it could not
decide the issue of equitable estoppel. Second, even if jurisdiction were proper, the
court’s ruling was not a critical and necessary part of a final judgment. It denied a
motion to dismiss but left the issue to be decided at trial. Therefore, the District
Court for the Northern District of Georgia did not err when it held collateral estoppel
did not apply to prevent the Defendants from asserting Drake’s claims were barred
by the statute of limitations.
II. Equitable Estoppel
A cause of action accrues when a plaintiff, in exercising reasonable diligence,
should have discovered that he was injured and that the injury “may have been caused
by defendant’s conduct.” Harrison v. Digital Equip. Corp., 465 S.E.2d 494, 495 (Ga.
App. 1995) (citation omitted). Unless equitably tolled, Drake’s claims accrued when
Delta terminated his employment in December 1993. He first filed suit against
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Whaley and the Clinic in 2001, several years after the statute of limitations for his
causes of action expired. (R.1-17 at 9.) He contends equitable estoppel extends the
limitations periods on his claims so they are not time barred.
Under Georgia law, if the defendant is “guilty of a fraud by which the plaintiff
has been debarred or deterred from bringing an action, the period of limitation shall
run only from the time of the plaintiff’s discovery of the fraud.” O.C.G.A. § 9-3-96.
Generally, “[c]oncealment of the cause of action must be by positive affirmative act
and not by mere silence.” Fed. Ins. Co. v. Westside Supply Co., 590 S.E.2d 224, 229
(Ga. App. 2003) (quotation and citation omitted). “In the absence of a fiduciary
relation, even fraud will not prevent a suit from being barred, where the plaintiff has
failed to exercise reasonable diligence to detect such fraud.” Bates v. Metro. Transit
Sys., 197 S.E.2d 781, 782 (Ga. App. 1973) (citations omitted).
Drake claims that, from 1994 to 2000, he repeatedly requested from Delta all
records relating to his drug test, but Delta and Whaley ignored his requests until they
were compelled by the Federal Aviation Authority to produce documents in February
2000. (R.1-17 at 13.) He argues that even though he never personally asked Whaley
for information, Whaley nonetheless perpetrated a “fraud by silence” by withholding
information and documents that would have allowed Drake to prosecute his claims
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in a timely manner. (Id.) He also alleges Whaley fraudulently concealed his role in
handling Drake’s drug test. (Id.)
It is undisputed that, in 1994, Drake knew that Whaley was Delta’s Medical
Review Officer and that Whaley had received a report from a drug testing lab
indicating Drake’s urine sample was unsuitable for testing. (R.1-17 at 18.) It is also
undisputed that, in November 1993, Whaley telephoned Drake and told him there was
a problem with his drug test. (Id.) Approximately six weeks after the telephone
conversation, Delta terminated Drake’s employment because of the results of the test.
(Id. at 3-4.) Thus, seven years prior to filing suit against Whaley and the Clinic,
Drake knew he had suffered an injury concerning a test of his urine and that Whaley
was involved in the testing process. Further, as discussed on pages sixteen through
nineteen of the district court’s order (R.1-17 at 16-19), Drake does not present
sufficient evidence of fraudulent concealment to apply the doctrine of equitable
tolling.
Finding that Drake’s cause of action accrued in 1994, and finding insufficient
evidence of fraud to toll the statute of limitations, we do not consider whether Drake
exercised reasonable diligence to discover the cause of action. The district court did
not err in holding Drake’s claims are barred by the statute of limitations and that the
limitations periods are not equitably tolled.
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III. CONCLUSION
For the foregoing reasons, we affirm the judgment.
AFFIRMED.
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