Douglas Moore, et al v. Bayer Corporation, et al

Filing

Opinion issued by court as to Appellants Douglas Moore and Ute K. Nielsen. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 11-14546

Date Filed: 08/14/2012

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-14546
Non-Argument Calendar
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D.C. Docket No. 1:08-md-01928-DMM

DOUGLAS MOORE,
UTE NIELSON,
Plaintiffs-Appellants,

versus
BAYER CORPORATION,
BAYER HEALTHCARE PHARMACEUTICALS, INC.,
As Successor in Interest of Bayer Pharmaceuticals Corporation,
BAYER HEALTHCARE A.G.,
Defendants-Appellees.

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Appeal from the United States District Court
for the Southern District of Florida
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(August 14, 2012)

Case: 11-14546

Date Filed: 08/14/2012

Page: 2 of 3

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellants Douglas Moore and Ute Nielson appeal the order of the District
Court dismissing their complaints without prejudice for failing to perfect service
of process on Bayer Corp. and its co-defendants. Order Dismissing Cases under
PTO 31 Order to Show Cause, 2011 WL 5419068 (S.D. Fla.). Appellants present
two arguments for reversal: (1) “Bayer waived the defense of lack of personal
jurisdiction and Moore and Nielson were entitled to rely on the requirements of
pretrial order Nos. 4 and 11 in proving sufficiency of service of process,” and (2)
“the District Court abused its discretion in dismissing the claims and should have
extended time for service upon a finding of defective service because Moore and
Nielson have good cause why relief is justified: the applicable statutes of
limitation would bar the re-filing of both cases.” Appellants’ Br. at i.
Both sides agree that the standard of review is abuse of discretion. An
abuse of discretion occurs when the decision of the district court is based on a
clearly erroneous finding of fact, an errant conclusion of law, or an improper
application of law to fact. Fidelity Interior Const., Inc. v. Southeastern Carpenters
Regional, 675 F.3d 1250, 1258 (11th Cir. 2012). We find no abuse of discretion
and accordingly affirm. We reject the waiver assertion in appellants’ first
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Case: 11-14546

Date Filed: 08/14/2012

Page: 3 of 3

argument because appellants did not present it to the District Court. It is “[a]
general principle of appellate review . . . that an appellate court will not consider
issues not presented to the trial court.” McGinnis v. Ingram Equip. Co., 918 F.2d
1491, 1495 (11th Cir.1990) (en banc). As for the remainder of the first argument,
we find no merit.
As for appellants’ second argument, here is what the District Court said:
Plaintiffs have not shown good cause that would require an extension
of time to serve. They do not identify any outside factor preventing service,
reliance on faulty advice, or evasion of service that would establish good
cause.
Nor have Plaintiffs shown a basis for a discretionary extension
of time to serve. Over a year has passed since these cases were filed,
and Plaintiffs have been notified on multiple occasions of their
obligation to demonstrate service on defendants. Yet Plaintiffs have
not established that the defendants were served, and have not moved
for an extension of time to serve or provided any basis for granting
one. Additionally, I have considered here and in my prior Show
Cause Order whether the statute of limitations would bar these
actions, if re-filed. Plaintiffs make no attempt to address this issue in
their Response, and I also note that a statute of limitations bar would
not require me to provide a discretionary extension of time.
Lepone–Dempsey [v. Carroll Cnty. Com’rs, 476 F.3d 1277, 1282
(11th Cir. 2007)]. I find that the circumstances presented do not
warrant an extension of time to serve under Rule 4(m) [of the Federal
Rules of Civil Procedure].
Order etc.. 2011 WL 5419068 at 5. We find no abuse of discretion in the District
Court’s denial of an extension of time to serve.
AFFIRMED.
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