     Case: 16-20667      Document: 00514023132         Page: 1    Date Filed: 06/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                      No. 16-20667
                                                                               Fifth Circuit

                                                                             FILED
                                                                          June 7, 2017

TIMOTHY J. HAGAN,                                                       Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellant

v.

MAZDA MOTOR COMPANY OF AMERICA, INCORPORATED, doing
business as Mazda North America Operations,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-3222


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Timothy J. Hagan sued Mazda Motor Company of America, d/b/a Mazda
North America Operations (MNAO) for injuries he sustained when the airbags
in his Mazda vehicle spontaneously deployed. MNAO moved for summary
judgment on the basis that Hagan’s claims were time-barred by the Texas




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   No. 16-20667
statute of repose. The district court granted summary judgment and dismissed
the claims. We affirm.
         “We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Stahl v. Novartis Pharm.
Corp., 283 F.3d 254, 263 (5th Cir. 2002).
         Under Texas law, a defendant moving for summary judgment on an
affirmative defense must irrefutably establish its elements.          KPMG Peat
Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
The Texas statute of repose provides that a claimant must bring a products
liability action for personal injury “against a manufacturer or seller of a
product before the end of 15 years after the date of the sale of the product by
the defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 16.012.
         MNAO conclusively proved the elements of its statute of repose defense.
First, it is undisputed that this is a products liability action for personal injury
and that MNAO is a manufacturer or seller. Next, MNAO produced sufficient
proof that the vehicle at issue was first sold at retail on December 11, 1999.
Hagan disputes this proof, yet does not present controverting evidence. Then,
after establishing when the vehicle at issue was first sold, MNAO determined
that the deadline to file any products liability action was December 11, 2014.
Finally, MNAO established that while Hagan’s incident occurred on
November 21, 2014 (prior to the expiration of the statute of repose), he filed
the lawsuit on November 2, 2015 – almost one year too late. So, MNAO met
its burden, and then the burden shifted to Hagan to raise a fact issue. See
Fiengo v. Gen. Motors Corp., 225 S.W.3d 858, 861 (Tex. App.—Dallas 2007, no
pet.).
         On appeal Hagan contends that Mazda is to blame for the late filing, but
he fails to prove the existence of a genuine issue of material fact. He attempts
to save his claim by making an equitable estoppel argument. However, the
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                                      No. 16-20667
Supreme Court has opined that statutes of repose, generally, may not be tolled,
“even in cases of extraordinary circumstances beyond a plaintiff’s control.”
CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014). 1
       Additionally, Hagan argues, for the first time on appeal that, pursuant
to a California insurance regulation, MNAO had a duty to notify him of the
statute of repose deadline. However, Hagan does not effectively show why a
California regulation should govern this matter when both the initial sale of
the vehicle and the incident occurred in Texas, and the cause of action was
brought in a Texas court. See Burdett v. Remington Arms Co., 854 F.3d 733,
735 (5th Cir. 2017) (“A federal court sitting in diversity jurisdiction must apply
the choice of law rules of the forum state when a conflict of law exists.”).
Nonetheless, based on Fifth Circuit precedent this argument is waived. See
LeMaire v. Louisiana Dept. of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007)
(“arguments not raised before the district court are waived and cannot be
raised for the first time on appeal”).
       AFFIRMED.




       1 Assuming arguendo that, immediately upon the sending of the December 1, 2014
letter Mazda had a duty to warn of the December 11, 2014 deadline, that gives Hagan, at
most, 10 days of tolling. Since he filed suit more than 10 days after he was clearly told in
September of 2015 that his claim was barred, any equitable tolling does not help him.
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