                                                                  [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             AUGUST 18, 2000
                                                            THOMAS K. KAHN
                                No. 99-8310                      CLERK



                   D.C. Docket No. 96-02356-1-CV-WBH


DWAYNE JAMES, JEWEL A. JAMES, et al.,


                                                          Plaintiffs-Appellants,

     versus


MAZDA MOTOR CORPORATION, POPE CHEVROLET, INC., et al.,


                                                         Defendants-Appellees.



                 Appeal from the United States District Court
                    for the Northern District of Georgia


                             (August 18, 2000)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.


TJOFLAT, Circuit Judge:
       The sole issue presented in this appeal is whether the Supreme Court’s

decision in Geier v. American Honda Motor Co., Inc., __ U.S. __, 120 S. Ct. 1913,

__ L. Ed. 2d __ (2000), casts doubt on the viability of this circuit’s decision in

Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir.), cert denied, 525 U.S. 1018,

119 S. Ct. 544, 142 L. Ed. 2d 452, (1998). We hold that Irving is still good law.



                                                I.

                                               A.

       Plaintiffs’ decedent, Rosa J. Owolabi, was killed on February 16, 1995,

when the car she was driving was forced off Interstate 75 in Atlanta, Georgia, by

an unidentified driver,1 and crashed into the freeway median. Owolabi’s car was a

1994 Mazda Protegé, manufactured by defendant Mazda Motor Corporation, and

distributed in the United States by defendant Mazda Motor of America

(collectively “Mazda”).2 The 1994 Protegé employed a passive (automatic) two-




  1
    Plaintiffs named the unidentified driver, “John Doe,” as a defendant and asserted a negligence
claim against “him.” John Doe has never been identified, has never been served with process, and
has not made an appearance in this lawsuit.
   2
    Plaintiffs also named as defendant Tokai Rica Co., which manufactured the seat belt system
used in the 1994 Protegé. For simplicity, we include Tokai Rica within the term “Mazda.”

                                                2
point shoulder belt, and a manual lap belt.3 Owolabi was not wearing her lap belt

at the time of the accident.



                                                  B.

           This wrongful death action began in the Superior Court of Fulton County,

Georgia;4 Mazda removed it to the district court following the service of process.

The plaintiffs’ complaint contained five counts. Each count alleged that the 1994

Protegé’s manual lap belt had been defectively designed and that Mazda had

negligently failed to warn consumers that the Protegé was dangerous unless the

manual lap belt was worn, and sought compensatory and punitive damages on a

different theory of recovery.5 Count one was based on strict tort liability; count

two on negligence; count three on breach of an express warranty; count four on




   3
       The 1994 Protegé did not have an airbag.
       4
      See Ga. Code Ann. § 51-4-2(a) (1999) (“The surviving spouse or, if there is no surviving
spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or
parent the full value of the life of the decedent, as shown by the evidence.”); id § 51-4-5(b) (“[T]he
personal representative of the deceased person shall be entitled to recover for the funeral, medical,
and other necessary expenses resulting from the injury and death of the deceased person.”). The
plaintiffs are Owolabi’s children, Dwayne and Jewel James, and the administratrix of Owolabi’s
estate, Louise Carter.
       5
     The complaint also presented a sixth “count,” for punitive damages. That count did not,
however, assert a separate theory of liability; it simply incorporated the first five counts of the
complaint.

                                                  3
breach of an implied warranty of fitness; and count five, a second negligence

theory, on breach of a duty to notify consumers of the Protegé’s defect.

       After the parties joined issue, Mazda moved for summary judgment,

claiming that plaintiffs’ common law actions were preempted by Federal Motor

Vehicle Safety Standard (“FMVSS”) 208, 49 C.F.R. § 571.208 (1999) (enacted

under the authority of the National Traffic and Motor Vehicle Safety Act of 1966,

originally 15 U.S.C. § 1381 et seq. (1988 ed.), now codified as amended at 49

U.S.C. §§ 30101-30169 (1994 & Supp. II 1998)). The district court granted

Mazda’s motion.6 We affirm.



                                                  II.

                                                  A.




   6
      In its order granting Mazda summary judgment, the district court did not specifically discuss
the pending negligence claim against John Doe, see supra n.1, nor had the court previously
dismissed John Doe pursuant to Fed. R. Civ. P. 4(m) (“If service . . . is not made upon a defendant
within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after
notice to the plaintiff, shall dismiss the action without prejudice as to that defendant . . . .). Since
it is clear that John Doe was never in any sense “before the court,” we do not consider his claim still
pending for purposes of the final judgment rule, 28 U.S.C. § 1291 (1994); we construe the court’s
order granting defendants summary judgment to have disposed of plaintiffs’ claim against him
without prejudice.

                                                   4
      In Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir. 1998), we

encountered the theories of recovery the complaint presents in this case. The facts

in Irving were that

             [p]laintiff Juliette Irving filed suit against Defendant Mazda
      Motor Corporation on behalf of her daughter, Bonita Irving. Bonita
      was killed in a single-car accident while driving a 1990 Mazda MX-6.
      After her daughter’s death, Plaintiff filed this suit claiming that the
      seat belts in the MX-6 were defectively designed and that Mazda
      failed to warn consumers adequately of the risks of not utilizing all
      portions – particularly the manual lap belt portion – of the safety belt
      system.
             The safety belt system used in the Mazda MX-6 included a two-
      point passive shoulder restraint (automatic shoulder belt) with a
      manual lap belt. This kind of restraint system was one of three
      options provided to car manufacturers by FMVSS 208. Plaintiff
      contends the design represented by this option was defective.

We concluded under those facts that (1) Irving’s common law “defective-design

claim is not expressly preempted by [FMVSS 208],” id. at 768; (2) Irving’s “suit

against Defendants for their exercise of an option provided to Defendants by

FMVSS 208 conflicts with federal law and, thus, is [impliedly] preempted,” id. at

769; and (3) Irving’s “failure-to-warn claim – which is, in this case, dependent on

the preempted defective-design claim – was properly dismissed [because it is also

preempted],” id. at 770.

      In this case, the district court concluded, in its order granting Mazda

summary judgment, that the passive two-point shoulder belt and manual lap belt in


                                          5
the 1994 Protegé (which was a similar system to the one used in the 1990 Mazda

MX-6) complied with FMVSS 208. As a result, the court found the present case

“virtually indistinguishable” from Irving, and on that basis granted Mazda

summary judgment.

        As an initial matter, we find no error in the court’s conclusion that the

passive two-point shoulder belt and manual lap belt complied with FMVSS 208.7

Moreover, we agree with the district court that this case is on all fours with Irving.8

If Irving is still good law, plaintiffs’ appeal fails. Our only task on appeal,

therefore, is to determine if Irving is good law. We conclude that it is.



                                                    B.

        First, plaintiffs argue that Irving was not good law when it was decided,

because it conflicted with prior circuit precedent, namely Myrick v. Freuhauf

Corp., 13 F.3d 1516 (11th Cir. 1994), aff’d 514 U.S. 280, 115 S. Ct. 1483, 131 L.

Ed. 2d 385 (1995), and Doyle v. Volkswagenwerk Aktiengelellschaft, 114 F.3d


  7
    Referring to the plaintiffs’ negligent failure to warn claim, the district court, in its order granting
Mazda’s motion for summary judgment, said this: “Plaintiffs do not allege that the Protegé failed
to comply with federal law requirements for warning label placement regarding proper seat belt
use.”
  8
    The district court held that all of the claims contained in the five counts of plaintiffs’ complaint
stand or fall on proof that the Protegé’s safety belt system was defective in the first instance. We
agree: if plaintiffs’ defective design claim is preempted, so too are these claims.

                                                    6
1134 (11th Cir. 1997) (Doyle II). See Cohen v. Office Depot, Inc., 204 F.3d 1069,

1072 (11th Cir. 2000) (“[W]here two prior panel decisions conflict we are bound to

follow the oldest one.”). Second, plaintiffs argue that the Supreme Court’s

decision in Geier, __ U.S. __, 120 S. Ct. 1913, abrogates Irving’s implied

preemption analysis. We consider these two arguments in order.



                                           1.

      Plaintiffs argue that the Irving court’s analysis of implied preemption was

incorrect because it conflicted with Myrick v. Freuhauf Corp., 13 F.3d 1516. In

Myrick, 13 F.3d at 1518, we concluded that “a common law tort for failure to

install anti-lock brakes in a tractor-trailer is [not] pre-empted by the National

Traffic and Motor Vehicle Safety Act.” In doing so we held that “where . . . there

is an express pre-emption provision, which constitutes a reliable indicium of

congressional intent, implied pre-emption analysis has no place.” Id. at 1523. On

writ of certiorari, the Supreme Court affirmed the judgment, but disagreed with the

reasoning; it found our implied preemption analysis “without merit.” Freightliner

Corp. v. Myrick, 514 U.S. at 287, 115 S. Ct. at 1487. The Irving court recognized

this; in its discussion of implied preemption it noted that when “the Supreme Court

reviewed Myrick on appeal . . .[it] affirm[ed] the outcome, [but] stressed that


                                           7
implied preemption is possible despite the presence of an express preemption

clause.” Irving, 136 F.3d at 767 n.1. In other words, the Irving court engaged in

the correct preemption analysis.

         As a second argument, plaintiffs contend that Doyle II, 114 F.3d 1134,

conflicts with Irving. This is not correct. In Doyle II, plaintiff was injured while

driving a 1989 Volkswagen Jetta, which had a passive shoulder belt but no lap belt.

The district court granted defendant Volkswagenwerk Aktiengelellschaft (which

manufactured the 1989 Jetta) summary judgment on the ground that the Jetta

“complied with the applicable federal standards, notwithstanding the absence of a

lap belt” and that “Georgia law . . . does not hold automobile manufacturers to a

higher standard than federal requirements.” Id. at 1135. The only question on

appeal, therefore, was whether this was a correct statement of Georgia law (based

on a certified question to the Georgia Supreme Court, see Doyle v.

Volkswagenwerk Aktiengelellschaft, 81 F.3d 139 (11th Cir. 1996) (Doyle I), we

concluded that it was not). Since “the district court found it unnecessary to reach

the preemption issue,” we did not consider preemption. Doyle II, 114 F.3d at

1135.9 Doyle II, therefore, left open the question that we decided in Irving.

     9
       On remand, the district court found that Doyle’s claims were preempted. Doyle v.
Volkswagenwerk Aktiengesellschaft, No. 91-CV-1296A-JEC (N.D. Ga. Sept 29, 1999). The parties
appealed to this court, and on June 30, 2000, we granted the parties’ joint motion to dismiss the
appeal with prejudice. Doyle v. Volkswagenwerk Aktiengesellschaft, No. 98-9453 (11th Cir. June

                                               8
                                         2.

       Since the district court’s grant of summary judgment, the Supreme Court has

decided Geier v. American Honda Motor Co., __ U.S. __, 120 S. Ct. 1913, __ L.

Ed. 2d __ (2000). Geier is a so-called “no airbag case” in which the plaintiff sued

an automobile manufacturer for failure to install an airbag. The Supreme Court

held that this claim is not expressly preempted by FMVSS 208, but is impliedly

preempted by FMVSS 208 because a common law action based on the failure to

install an airbag “actually conflicts with FMVSS 208.” Id. at __, 120 S. Ct. at

1922. In supplemental briefing to this court, plaintiffs argue that “Geier

substantially undermines the holding in Irving . . . on issues of preemption.”

       We are not sure that plaintiffs have read the same Geier opinion that we have

read. The Supreme Court made clear that, despite a savings clause in the National

Traffic and Motor Safety Act, 15 U.S.C. § 1397(k) (1988 ed.) (now codified at 49

U.S.C. § 30103(e) (1994)), courts should apply normal implied preemption

principles to determine if a state common law action “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.”

Id. at __, 120 S. Ct. at 1921 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.




30, 2000) (unpublished).

                                          9
Ct. 499, 404, 85 L. Ed. 581 (1941)). This is exactly the analysis used by the Irving

court:

                The existence of an express preemption clause does not
         necessarily preclude the presence of implied preemption. Freightliner
         Corp. v. Myrick, 514 U.S. 280, 286-90, 115 S. Ct. 1483, 1487-88, 131
         L. Ed. 2d 385 (1995). Thus, if Plaintiff’s state law claim conflicts
         with FMVSS 208 or if her claim would hinder Congress’s objectives
         in passing the Act, the state law will be preempted.

Irving, 136 F.3d at 768. Since Irving is not in conflict with Geier, or any of our

previous decisions, we are bound to follow it. The district court, therefore,

correctly granted Mazda summary judgment.



                                          III.

         For the foregoing reasons, the judgment of the district court is AFFIRMED.




                                          10
