              Case: 13-11153    Date Filed: 05/22/2014   Page: 1 of 9


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11153
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:11-cv-03450-RDP



SANDRA JOHNSON GARDNER,

                                                               Plaintiff-Appellant,

                                         versus

ALOHA INSURANCE SERVICES, et al.,

                                                                        Defendants,

WALMART STORES EAST LP,
ALOHA HOUSEWARES INC.,
insured by Liberty International Underwriters,

                                                            Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                 (May 22, 2014)
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Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Sandra Johnson Gardner Womack (“Gardner”), proceeding pro se, appeals

from several adverse rulings, including the grant of summary judgment, in her state

products-liability suit against Aloha Housewares, Inc. (“Aloha”) and Walmart

Stores East, LP (“Walmart”), arising out of a fire that began in a ceiling fan

Gardner had purchased. The district court granted summary judgment in favor of

both defendants on the ground that Gardner failed to show the ceiling fan was

defective at the time she bought it, and further concluded that Walmart was

protected from suit as a distributor under Alabama Code § 6-5-521. On appeal,

Gardner argues that: (1) the district court abused its discretion in denying (a) her

motion for default judgment against Aloha, which she filed based on Aloha’s delay

in answering her original complaint, and (b) her untimely motion seeking the

production of the fan from Aloha; (2) the court erred in striking the affidavit and

excluding the proffered testimony of her electrical engineering expert, who

interpreted the fire department’s incident report to mean that the department

determined that the Aloha fan caused the house fire, and independently concluded

the same; and (3) the court erred in granting summary judgment in favor of both

Aloha and Walmart based on its conclusion that she failed to show the ceiling fan

was defective at the time she bought it. After careful review, we affirm.


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      We review the denial of a motion for a default judgment for abuse of

discretion. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316

(11th Cir. 2002). Likewise, we review for abuse of discretion the denial of a

motion to compel discovery. Holloman v. Mail-Well Corp., 443 F.3d 832, 837

(11th Cir. 2006). With respect to the denial of a motion to compel discovery, we

recognize that district courts have broad discretion in managing their cases, and we

“will not second-guess [a] district court’s actions unless they reflect a ‘clear error

of judgment.’” Id.; see Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,

1269 (11th Cir. 2001) (“[W]e accord district courts broad discretion over the

management of pre-trial activities, including discovery and scheduling.”); Hinson

v. Clinch County, Ga., Bd. of Educ., 231 F.3d 821, 826 (11th Cir. 2000)

(concluding that the district court did not abuse its discretion in denying motion to

compel production where plaintiff did not file the motion to compel until after the

parties had briefed their dispositive motions).       We review a district court’s

evidentiary rulings, including the admission of expert evidence, for an abuse of

discretion, and give “considerable leeway” to a district court’s evaluation of the

reliability of expert testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291

(11th Cir. 2005) (citation omitted). We review a district court’s grant of summary

judgment de novo, viewing the evidence in the light most favorable to the

nonmoving party. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 785 (11th


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Cir. 2005).   To obtain reversal of a district court judgment that is based on

multiple, independent grounds, however, an appellant must show that every stated

ground for the adverse judgment is incorrect; otherwise she is deemed to have

abandoned any challenge of that ground, and “the judgment is due to be affirmed.”

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). While

we liberally construe briefs filed by pro se litigants, we will not consider issues not

briefed on appeal by a pro se litigant or issues raised for the first time in a pro se

appellant’s reply brief. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

      First, we are unpersuaded by Gardner’s claim that the district court abused

its discretion in denying her motion for default judgment and her motion for

production of the fan. The Federal Rules of Civil Procedure require a response by

a party against whom judgment for relief is sought within 21 days of service of the

summons and complaint. Fed.R.Civ.P. 12(a)(1)(A)(i). When a civil defendant

fails to plead or otherwise defend in response to a complaint, as shown by affidavit

or other means, the clerk must enter the party’s default, and the plaintiff may also

apply to the court for entry of default judgment. Fed.R.Civ.P. 55(a), (b). Entry of

default judgment is a “drastic remedy,” and should be used “only in extreme

situations.” Mitchell, 294 F.3d at 1316-17 (quotation omitted) (holding that a

defendant’s failure to file a timely answer to a plaintiff’s complaint did not warrant

default judgment where the defendant took part in the removal of the action to


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federal court; filed a notice of appearance before the plaintiff filed the motion for

default; and filed a motion to dismiss shortly after the deadline for responsive

pleadings, all of which showed that the plaintiff failed to show that he was

prejudiced by the failure to respond).

      Here, the district court did not abuse its discretion with respect to either of

the Aloha-specific rulings that Gardner challenges on appeal.      First, the district

court did not err in denying the motion for default, which was based on Aloha’s

delay in responding to the original complaint, because Gardner filed an amended

complaint that became the operative pleading, and Aloha answered that pleading in

a sufficiently timely fashion. See Pintando v. Miami-Dade Hous. Agency, 501

F.3d 1241, 1243 (11th Cir. 2007) (holding that an amended pleading becomes the

operative document and supersedes the original pleading, which is deemed

abandoned). Indeed, Gardner does not challenge the adequacy of Aloha’s answer

to her amended complaint, or even address it.

      Second, the district court did not abuse its discretion in declining to grant

Gardner’s motion for production of the fan. She filed the motion two weeks after

the June discovery deadline, and after both defendants had filed their motions for

summary judgment and the parties had fully briefed the same. See Hinson, 231

F.3d at 826. Moreover, although Gardner submitted documentation showing that

she was in speech therapy in May and underwent surgery in June, she failed to


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explain how these issues prevented her from requesting the fan at any point during

the six months prior to May, starting from the entry of the scheduling order in

November 2011. Thus, the court did not err in concluding that she failed to show

good cause to grant her untimely motion or in denying the same.

      We also reject Gardner’s claim that the district court erred in refusing to

consider the proffered testimony of her electrical engineering expert. The Federal

Rules of Evidence provide a three-part test governing the admissibility of expert

testimony, which requires that (1) the testimony is based upon sufficient facts or

data, (2) the expert’s methodology underlying his or her conclusion is sufficiently

reliable under Daubert,1 and (3) the expert applied the principles and methods

reliably to the facts of the case, such that the testimony will be helpful to the trier

of fact. Fed.R.Evid. 702; Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194

(11th Cir. 2010); see Daubert, 509 U.S. at 593-94 (providing factors that courts

should consider in determining the reliability of expert testimony, all of which

concern an assessment of the methodology underlying the expert’s conclusions).

The party offering the expert has the burden of showing each of these three

elements by a preponderance of the evidence. Hendrix, 609 F.3d at 1194.

      In this case, the district court did not abuse its discretion in excluding the

testimony of Gardner’s proposed electrical engineering expert, based on its


1
      Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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conclusion that the testimony was not sufficiently reliable. The witness gave no

indication as to what methodology he employed in concluding that the fire

department’s notation “Incident type[:] 440 -- Electrical wiring/equipment

problem, other” meant that the fire department attributed the fire to a defect in the

ceiling fan, or in independently concluding that the fan caused the fire. Because

the witness’s affidavit and proposed testimony consisted of bare conclusions

without any underlying support, and given that he never inspected the fan itself, the

court did not err in concluding that his opinion was too unreliable to be admitted.

      Finally, we reject Gardner’s claim that the district court erred in granting

summary judgment in favor of the defendants. Summary judgment is appropriate

if the record evidence shows that there is no genuine issue as to any material fact

and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P.

56(a). In assessing a district court’s grant of summary judgment, we view all

evidence and reasonable factual inferences in the light most favorable to the

nonmoving party. Castleberry, 408 F.3d at 785.

      In Alabama, courts assess products-liability claims under the Alabama

Extended Manufacturer Liability Doctrine (“AEMLD”). McMahon v. Yamaha

Motor Corp., 95 So. 3d 769, 772 (Ala. 2012). To state a claim under the AEMLD,

a plaintiff must prove that the product at issue was defective at the time it was sold.

Tanksley v. ProSoft Automation, Inc., 982 So. 2d 1046, 1051 (Ala. 2007). A


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plaintiff does not have to show the specific defect that caused her injury, only that

the product was unreasonably dangerous. Goree v. Winnebago Indus., Inc., 958

F.2d 1537, 1541 (11th Cir. 1992). Mere proof of an accident with ensuing injuries

is insufficient to establish AEMLD fault; rather, “the plaintiff must affirmatively

show that the product was sold with a defect or in a defective condition.’” Jordan

v. Gen. Motors Corp., 581 So. 2d 835, 836-37 (Ala. 1991). Thus, “[w]ithout

evidence to support the conclusion that the product was defective and/or

unreasonably dangerous when it left the hands of the seller, the burden is not

sustained,” and summary judgment is appropriate. Tanksley, 982 So. 2d at 1051

(quotation omitted). Although expert testimony will usually be necessary to show

a defect where the product is technically complex, the introduction of expert

testimony is not an absolute requirement. Goree, 958 F.2d at 1541 (discussing

Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328 (Ala. 1991)).

       As the record shows, the district court properly granted summary judgment

on the merits in favor of both Walmart and Aloha, based on its conclusion that

Gardner failed to show that the ceiling fan was defective at the time she bought it. 2

Notably, the record does not contain any evidence as to the condition of the fan in

2007 or 2008 when Gardner bought it. Rather, the evidence shows only that

2
        In addition, because Gardner failed to challenge the district court’s alternative,
independent ground for granting summary judgment in favor of Walmart -- its status as a
distributor under § 6-5-521 -- we affirm the grant of summary judgment in favor of Walmart on
this procedural basis. Sapuppo, 739 F.3d at 680.
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Gardner suffered injuries from an accident involving the ceiling fan in 2009. This

evidence is insufficient. Tanksley, 982 So. 2d at 1051. Moreover, although

Gardner asserts, for the first time in her reply brief, that the existence of similar

suits involving the same Aloha fan shows that the fan was defective, the record is

devoid of this evidence and we need not address the argument in any event because

she failed to raise it in her initial brief. Timson, 518 F.3d at 874.

      AFFIRMED.




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