Eric Drake v. Navistar International Corp., et al

Filing

UNPUBLISHED OPINION FILED. [14-51240 Affirmed ] Judge: EGJ , Judge: ECP , Judge: CH Mandate pull date is 08/27/2015 [14-51240]

Case: 14-51240

Document: 00513144199

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Date Filed: 08/06/2015

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 14-51240
Summary Calendar

August 6, 2015
Lyle W. Cayce
Clerk

ERIC DRAKE,
Plaintiff - Appellant
v.
NAVISTAR INTERNATIONAL CORPORATION; INTERNATIONAL
TRUCK ; ENGINE CORPORATION; NATIONAL SEATING
CORPORATION,
Defendants - Appellees

Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:14-CV-139
Before JOLLY, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Eric Drake, pro se, appeals the district court’s dismissal of his complaint
against Navistar International. We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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I.
The suit that is the subject of this appeal is one of four lawsuits that
Drake has filed for injuries allegedly sustained in an incident that occurred on
August 1, 2009. The complaint in this case was filed on April 28, 2014. Drake
asserted claims for negligence, breach of warranty, deceptive trade practices,
and product liability. He alleged that on or about August 1, 2009, he leased
from Penske Truck Leasing an International truck manufactured by Navistar
and that, when he drove over a small bump in a paved residential street, the
driver’s seat violently threw him in a downward motion, causing severe
injuries to his lumbar and cervical spine. In the complaint, Drake stated that
he “was able to locate photographs taken on the date of the accident” which
identified the subject truck.
The district court adopted the magistrate judge’s recommendation and
dismissed Drake’s complaint on the ground that all of his claims are barred by
the statutes of limitation and there is no basis for equitable tolling. The court
rejected Drake’s argument that the limitations period should be tolled because
the Penske lease contract incorrectly identified the truck he rented as a
Freightliner, manufactured by Daimler, and he did not discover the correct
manufacturer of the truck until November 2013. The court pointed out that
the discovery rule applies to the discovery of the nature of the plaintiff’s
injuries, not to the discovery of parties the plaintiff wishes to sue, and that
through the exercise of reasonable care and diligence, Drake could have
discovered the correct manufacturer of the truck within the limitations period.
II.
On appeal, Drake argues that (1) equitable tolling should apply because
Penske misled him into believing that he rented a Freightliner truck (made by
Daimler) when in fact he rented an International truck (made by Navistar); (2)
the district court abused its discretion when it denied leave to file an amended
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complaint to add Penske as a defendant; (3) the district court erred by striking
his Amended Complaint and awarding costs to Navistar; and (4) the district
court erred by revoking his in forma pauperis (IFP) status and entering prefiling sanctions against him. 1
The district court did not err by holding that there is no basis for
equitable tolling. Drake understood the nature of the alleged defect and his
injuries, as well as the manner in which those injuries allegedly occurred, on
the date of the alleged incident. Drake’s allegation that Penske misled him
about the manufacturer of the truck is irrelevant, because he does not allege
that Navistar had anything to do with Penske’s conduct. Through the exercise
of reasonable diligence, Drake could have discovered the correct manufacturer
of the truck within the limitations period.
The district court did not abuse its discretion in denying leave to amend.
As the magistrate judge pointed out, Drake has filed substantially similar
suits, in both Texas state court and multiple federal courts, from as early as
2011. Those suits were either dismissed by the courts or abandoned by Drake.
He had ample opportunities to cure any deficiencies in his previous suits, but
failed to do so. Furthermore, he sought leave to amend in order to allege facts
that were previously available to him through the exercise of due diligence.
The district court did not abuse its discretion in striking Drake’s
Amended Complaint because it was filed improperly, without leave of court or
the consent of the defendants. Drake has failed to provide any supporting
argument for his conclusory assertion that the district court erred by awarding
costs to Navistar.

Drake’s argument that the United States District Court for the Eastern District of
Texas abused its discretion by striking his pleadings is not properly before us in this appeal
from a judgment entered by the District Court for the Western District of Texas.
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Finally, the district court did not abuse its discretion by revoking Drake’s
IFP status and imposing pre-filing sanctions based on Drake’s abusive filing
history, consisting of multiple lawsuits in state and federal courts arising from
the same series of events.
The judgment of the district court is, therefore,
AFFIRMED.

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