Abdul Jones v. General Motors, LLC, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11102
Non-Argument Calendar
____________________
ABDUL JONES,
Plaintiff-Appellant,
versus
GENERAL MOTORS, LLC,
f.k.a. General Motors Company,
MAGNA CORPORATION,
MAGNA INTERNATIONAL, INC.,
MAGNA MIRRORS OF AMERICA, INC.,
MAGNA SERVICES OF AMERICA, INC., et al.,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-11102
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-03460-VMC
____________________
Before NEWSOM , L AGOA , and ANDERSON, Circuit Judges.
PER CURIAM:
Abdul Jones appeals from the district court’s dismissal of his
complaint against General Motors and several entities related to
Magna Corporation1 (collectively, “Defendants”) on statute of
limitations grounds. Jones contends that the district court erred in
its dismissal because it misapplied Georgia’s discovery tolling rule.
Jones also asks us to decide that Georgia § 9-3-99 tolls the statute of
limitations in tort cases where (like here) a related criminal
prosecution is possible but has not commenced. For the following
reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
In the early morning hours of May 5, 2017, Jones was driving
his 2005 Cadillac De Ville home from work in Atlanta, Georgia.
1 The defendants below were General Motors, Magna Corporation, Magna
International Inc., Magna Mirrors of America Inc., Magna Services of America,
Inc., Magna Mirrors Systems Inc., Cosma International of America, Inc.,
Magna Donnelly Corporation, and ABC, Inc.
2 Because the procedural posture of this case involves a Federal Rule of Civil
Procedure 12(b)(6) motion, we must accept the allegations of the plaintiff's
complaint as true. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir.
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23-11102 Opinion of the Court 3
That car was manufactured and distributed by General Motors.
Jones’s driver’s-side window was rolled down as he drove. When
Jones was just about a mile from home, he was struck by another
car rounding a curve on Martin Luther King, Jr., Drive. The other
driver swerved out of his or her lane and into Jones’s lane,
sideswiping Jones’s car and knocking off his driver’s-side rearview
mirror. The offending driver then fled the scene. The impact
shattered the rearview mirror, sending shards flying through the
open window and into Jones’s left eye, causing permanent damage
to his cornea, pupil, lens, and retina.
More than four years later, on July 17, 2021, Jones sued
Defendants in Georgia state court. He alleged that General Motors
installed the glass in the rearview mirror knowing that it was
dangerously defective because it was “not manufactured,
fabricated or treated to substantially prevent the glass shattering
and flying when broken.” General Motors’s decision to install this
dangerous glass, Jones alleged, was the sole proximate cause of the
injury to his eye. As to the Magna Defendants, Jones alleged that
they—as the manufacturers, suppliers, and distributors of the
mirror—were likewise liable for Jones’s injuries because they knew
or should have known that they were putting a dangerously
defective product out into the market. As support for his claims,
Jones recounted how “[t]he problems with the . . . rear view
mirrors were known within the automotive industry for years,” yet
2012). The facts set forth in this section of the opinion, therefore, are taken
from the complaint and construed in the light most favorable to the plaintiff.
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4 Opinion of the Court 23-11102
General Motors and the Magna Defendants continued to use
subpar glass rather than laminated or tempered options.
A few days after filing in state court, Jones amended his
complaint. Defendants then removed the action to federal court
and moved to dismiss the amended complaint as untimely and for
failure to state a claim. In response, Jones amended his complaint
for a second time, and Defendants renewed their motion to
dismiss.3 While the motion to dismiss was pending, Jones moved
for leave to file third amended complaint.
The district court resolved the motion to dismiss and the
motion for leave to amend together in a single order. In that order,
the district court dismissed Jones’s complaint with prejudice,
denying his requested leave to file a third amended complaint. The
court found that Georgia’s discovery rule for the tolling of the
statute of limitations—here, two years as a case involving personal
injuries, see O.C.G.A. § 9-3-33—was not applicable, particularly
because Jones was aware that he was injured on the date of his
accident. The district court also rejected Jones’s argument that the
limitations period was tolled based on alleged fraud by Defendants
in concealing and suppressing material facts, and making material
omissions, about the allegedly defect mirrors, noting that Jones had
only made conclusory allegations and that, in any event,
3 More precisely, General Motors filed the motion to dismiss, and the Magna
Defendants moved to join in that motion. The district court granted the mo-
tion to join in an omnibus order together with the motion to dismiss and sev-
eral other matters.
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23-11102 Opinion of the Court 5
concealment of a cause action must be by a positive affirmative act,
not by mere silence.
This appeal ensued.
II. STANDARD OF REVIEW
“We review de novo the district court’s grant of a Rule
12(b)(6) motion to dismiss for failure to state a claim, accepting the
complaint’s allegations as true and construing them in the light
most favorable to the plaintiff.” Chaparro v. Carnival Corp., 693 F.3d
1333, 1335 (11th Cir. 2012) (quoting Cinotto v. Delta Air Lines Inc.,
674 F.3d 1285, 1291 (11th Cir. 2012)). Dismissal under Federal Rule
of Civil Procedure 12(b)(6) on statute of limitations grounds “is
appropriate only if it is apparent from the face of the complaint that
the claim is time-barred.” Garcia v. Chiquita Brands Int’l, Inc., 48
F.4th 1202, 1220 (11th Cir. 2022) (quoting La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)).
Generally, we review a district court’s decision to grant or
deny leave to amend for abuse of discretion. Forbus v. Sears Roebuck
& Co., 30 F.3d 1402, 1404 (11th Cir. 1994). “However, when the
district court denies the plaintiff leave to amend due to futility, we
review the denial de novo because it is concluding that as a matter
of law an amended complaint ‘would necessarily fail.’” Fla.
Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d 1036,
1040 (11th Cir. 2006) (quoting Freeman v. First Union Nat’l, 329 F.3d
1231, 1234 (11th Cir. 2003)).
III. ANALYSIS
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6 Opinion of the Court 23-11102
Jones’s claims are barred by the applicable statute of
limitations. Under Georgia law, “actions for injuries to the person
shall be brought within two years after the right of action accrues.”
O.C.G.A. § 9-3-33. And in an action for personal injuries under
Georgia law, “the statute of limitations commences at the time the
damage or injury is actually sustained.” Everhart v. Rich’s, Inc., 194
S.E.2d 425, 428 (Ga. 1972). Thus, because Jones was injured on
May 5, 2017, his window to file suit arising from those injuries,
absent any tolling, closed on May 5, 2019. But he did not sue
Defendants until July 17, 2021. That is simply far too late, and his
suit is barred by the statute of limitations.
None of Jones’s proffered arguments for tolling can save his
case. First, Georgia’s discovery rule does not extend to claims
alleging injuries like Jones’s. As we have previously recognized,
“the Georgia Supreme Court has explicitly limited the discovery
rule’s application ‘to cases of bodily injury which develop only over
an extended period of time.’” M.H.D. v. Westminster Sch., 172 F.3d
797, 804 (11th Cir. 1999) (quoting Corp. of Mercer Univ. v. Nat’l
Gypsum Co., 368 S.E.2d 732, 733 (Ga. 1988)). In other words, in
Georgia, “the discovery rule only applies to cases involving
‘continuing torts,’ where the plaintiff’s injury developed from
prolonged exposure to the defendant’s tortious conduct.’” Id. at
804–05 (quoting Bitterman v. Emory Univ., 333 S.E.2d 378, 379 (Ga.
Ct. App. 1985)). But when a plaintiff’s injury was “occasioned by
violent external means,” the statute of limitations begins to run “on
the day his injury was actually sustained.” Bitterman, 333 S.E.2d at
379 (quoting Everhart, 194 S.E.2d at 801). Here, Jones’s injury was
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23-11102 Opinion of the Court 7
“occasioned by violent external means”—the car accident that
shattered the rearview mirror, sending shards into his eye—such
that the statute of limitations began to run on the day of the
accident. We thus reject this argument.
Second, under Georgia law, a statute of limitations may be
tolled “[i]f the defendant or those under whom he claims are guilty
of a fraud by which the plaintiff has been debarred or deterred from
bringing an action.” O.C.G.A. § 9-3-96. A plaintiff who seeks to
invoke tolling under section 9-3-96 must make three showings: (1)
“the defendant committed actual fraud”; (2) “the fraud concealed
the cause of action from the plaintiff, such that the plaintiff was
debarred or deterred from bringing an action”; and (3) “the plaintiff
exercised reasonable diligence to discover his cause of action
despite his failure to do so within the statute of limitation.” Doe v.
Saint Joseph's Cath. Church, 870 S.E.2d 365, (Ga. 2022) (quoting
Daniel v. Amicalola Elec. Membership Corp., 711 S.E.2d 709, 716 (Ga.
2011)); see also Therrell v. Ga. Marble Holdings Corp., 960 F.2d 1555,
1562 (11th Cir. 1992) (“Under Georgia law, for fraud to toll the
statute of limitations, it must involve moral turpitude and must
have been designed to deter or debar the plaintiff from filing suit.”).
Jones’s failure at the first step is dispositive. Federal Rule of
Civil Procedure 9(b) requires the plaintiff to set forth: (1) “precisely
what statements were made in what documents or oral
representations or what omissions were made”; (2) “the time and
place of each such statement and the person responsible for making
. . . same”; (3) “the content of such statements and the manner in
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8 Opinion of the Court 23-11102
which they misled the plaintiff”; and (4) what the defendants
obtained as a consequence of the fraud.” Mizzaro v. Home Depot,
Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) (quoting Tello v. Dean
Witter Reynolds, Inc., 494 F.3d 956, 972 (11th Cir. 2007)).
But in his complaint, Jones proffers only threadbare
allegations of fraudulent concealment—the very type of “recitals of
the elements of a cause of action, supported by mere conclusory
statements” that Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), prohibits.
For example, he alleges that “GM knowingly concealed that the
driver’s side rear-view mirror, when hit[,] shatters into shards of
class and can cause severe and serious injuries,” that “GM
concealed and suppressed material facts concerning the Defective
exterior rear-view mirror,” and that Defendants “made material
omissions and affirmative misrepresentations regarding [the]
exterior rear-view mirror.” But these unadorned legal conclusions
will not suffice because Jones has failed to allege “the who, what,
when, where, and how” that we require to satisfy fraud pleading
under Rule 9(b).4 See Mizzaro, 544 F.3d at 1237. Therefore, we
reject Jones’s argument for tolling under section 9-3-96.
4 Jones contends on appeal that “[t]he application of the federal plausibility
standard violates the terms of the Rules Enabling Act because it conflicts with
the more lenient notice pleading standard in Georgia.” Jones did not raise this
theory to the district court–—nor does he even articulate how the Georgia no-
tice pleading standard applies to his case—so we decline to entertain it for the
first time on appeal. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355,
360 (11th Cir. 1984); Sappupo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014) (“We have long held that an appellant abandons a claim when he
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23-11102 Opinion of the Court 9
Third, Jones raises—for the first time on appeal—the crime
victim’s tolling provision in O.C.G.A. § 9-3-99. Because Jones did
not raise this separate theory in the district court, we will not
consider it here. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d
355, 360 (11th Cir. 1984) (“Except for questions concerning the
power of the court to order relief, an appellate court generally will
not consider a legal issue or theory unless it was presented to the
trial court.” (footnote omitted)). Jones insists that our refusal to
consider this tolling provision would “result in a miscarriage of
justice,” but, even if that were true—which we do not here
conclude—it would not be sufficient to make us change course
because Jones has not presented us with a pure question of law. See
Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689
F.2d 982, 990 (11th Cir. 1982) (“[W]e will consider an issue not
raised in the district court if it involves a pure question of law, and
if refusal to consider it would result in a miscarriage of justice.”
(emphasis added)).
For all these reasons, we find no error in the district court’s
dismissal of Jones’s complaint on statute-of-limitations grounds.
And, for the same reasons, we affirm the district court’s denial of
leave to amend. Because Jones’s claims are time-barred, any
further amendment would indeed be futile. See Cockrell v. Sparks,
510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a complaint
is futile when the complaint as amended would still be properly
either makes only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”
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10 Opinion of the Court 23-11102
dismissed or be immediately subject to summary judgment for the
defendant.”); Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853,
874 (11th Cir. 2017) (“We find that Boyd’s claims asserted in . . . his
proposed second amended complaint are barred by the statute of
limitations and, therefore, affirm the district court’s determination
that amending them would be futile.”).
IV. CONCLUSION
For all of these reasons, we affirm.
AFFIRMED.
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