                                                            [DO NOT PUBLISH]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.




       2
          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.

                                                   3
      “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

                                           4
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



                                          5
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.

                                          6
                       III. CONCLUSION

For the foregoing reasons, we affirm the judgment.

AFFIRMED.




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