            Case: 16-15732   Date Filed: 08/07/2017   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 16-15732
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:15-cv-22393-JEM



JOHN J. JACOBS, JR.,

                                                             Plaintiff-Appellant,

                                   versus

EMILIO ESTEFAN,

                                                           Defendant-Appellee.

                        ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 7, 2017)

Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant John J. Jacobs, Jr., appeals the dismissal of his fourth

lawsuit concerning a proposed business project that he presented to Estefan

Enterprises, Inc., in 1999. Each of his lawsuits has been a repeat of the prior

lawsuit, with minor alterations. Sometimes the lawsuits have alleged different

damages or different causes of action, but they have always pertained to the same

subject matter and have always named Emilio Estefan, the founder of Estefan

Enterprises, as a defendant.

      After taking judicial notice of the relevant court filings in the three prior

lawsuits, the district court found that the fourth lawsuit is barred by the statute of

limitations and the doctrine of collateral estoppel. 1               The district court also

prohibited Jacobs from filing future lawsuits related to the same subject matter,

with limited exceptions.

      On appeal, Jacobs challenges only the statute-of-limitations finding. He

argues that the district court erred because the applicable statute-of-limitations

period began to run on October 23, 2007, when he received an email from a

representative of Estefan Enterprises. Using that date, he concludes that his first

lawsuit was timely filed on August 12, 2011. But because Jacobs did not meet the




      1
          The district court adopted the findings and recommendations of a magistrate judge.
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statutory deadline for filing his claims in this case, the district court’s ruling is now

ours, too. 2

       “Statutes of limitations serve important purposes in promoting the fair

administration of justice.” Arce v. Garcia, 434 F.3d 1254, 1260 (11th Cir. 2006).

Their primary purpose is to assure fairness to defendants by preventing surprises

and minimizing spoliation of evidence. Id. Statutes of limitations also relieve the

courts of “the burden of trying stale claims when a plaintiff has slept on his rights.”

Id. at 1260–61 (quoting Burnett v. N.Y. Cent. R. Co., 380 U.S. 424, 427 (1965)).

       In this case, the district court dismissed Jacobs’s complaint with prejudice

under Federal Rule of Civil Procedure 12(b)(6) upon a motion to dismiss. We

review the district court’s decision de novo, accepting all of the factual allegations

in the complaint as true. See Foudy v. Indian River Cty. Sheriff’s Office, 845 F.3d

1117, 1122 (11th Cir. 2017); Gonsalvez v. Celebrity Cruises Inc., 750 F.3d 1195,

1197 (11th Cir. 2013). We are also mindful that Jacobs is proceeding pro se, so we

liberally construe his complaint. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.

2007).     Under this standard, Jacobs’s complaint attempts to allege claims for

negligent infliction of emotional distress and libel.




       2
         Apart from the statute-of-limitations issue, we decline to comment on the district court’s
other decisions because they are not properly before us. Nor is addressing them necessary to
resolve this case.
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      “A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate

‘if it is apparent from the face of the complaint that the claim is time-barred.’”

Gonsalvez, 750 F.3d at 1197 (quoting La Grasta v. First Union Sec., Inc., 358 F.3d

840, 845 (11th Cir. 2004)). In diversity actions, such as this one, the court must

follow the statute of limitations determined by state law. Cambridge Mut. Fire Ins.

Co. v. City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983). In Florida, a

claim of negligence must be brought within four years, Fla. Stat. § 95.11(3)(a), and

a claim of libel within two, id. § 95.11(4)(g).

      Coincidentally, Jacobs’s first lawsuit was dismissed on statute-of-limitations

grounds as well. In that case, filed August 12, 2011, Jacobs appeared to allege

claims for breach of an implied oral contract. Based upon the allegations in the

complaint, the district court found that the latest breach of the “implied contract”

occurred in 2005, meaning that under the applicable four-year limitations period,

Jacobs was required to file his complaint in 2009. See id. § 95.11(3)(k). On

appeal, we affirmed the district court’s ruling, stating that “Jacobs should have

filed his complaint by 2009 or 2010,” Jacobs v. Estefan, 531 F. App’x 1004, 1005

(11th Cir. 2013) (unpublished), cert. denied, 134 S. Ct. 2146, reh’g denied, 135 S.

Ct. 19 (2014).

      In the instant case, it is apparent from the face of the complaint that Jacobs’s

claims, though relabeled as negligence and libel claims, are still time-barred. In


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his complaint, Jacobs again alleges injury occurring “in 2005.” No other dates are

referenced in the complaint. In his response to Estefan’s motion to dismiss, Jacobs

adds that October 23, 2007, is the relevant limitations date. But Jacobs filed his

complaint on June 25, 2015—well over four years after his causes of actions

accrued using either date. And as in the first lawsuit, he has failed to allege any

facts that would toll the statute of limitations. See Fla. Stat. § 95.051. So it is clear

that Jacobs’s claims were filed after the applicable limitations period. See id. §

95.11(3)(a), (4)(g).

      Although Jacobs appears to raise some form of relation-back argument in an

attempt to save his claims, we decline to revisit our earlier decision from the first

lawsuit. For statute-of-limitations purposes, the instant claims were commenced

by the filing of the instant complaint, not the first complaint filed in a prior lawsuit.

In a case premised on diversity jurisdiction, state law governs when, for statute-of-

limitation purposes, the action began. See Walker v. Armco Steel Corp., 446 U.S.

740, 753 (1980).       And under Florida law, “an action is ‘commenced’ for

limitations purposes, when a complaint is filed.” Totura & Co. v. Williams, 754

So. 2d 671, 679 (Fla. 2000) (quoting Frew v. Poole & Kent Co., 654 So. 2d 272,

275 (Fla. Dist. Ct. App. 1995)); Szabo v. Essex Chem. Corp., 461 So. 2d 128, 129

(Fla. Dist. Ct. App. 1984) (“Since 1955, an action is commenced in Florida by the

filing of a complaint.”). Finally, even if we were to find that the limitations period


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was tolled while the prior lawsuits were pending, the filing of the instant complaint

would still fall outside the applicable limitations period. Accordingly, we affirm

the district court’s dismissal of the complaint with prejudice.

      AFFIRMED.




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