                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                             No. 09-15149                  MAR 30, 2010
                         Non-Argument Calendar              JOHN LEY
                       ________________________               CLERK


                 D. C. Docket No. 08-03745-CV-1-WBH

GLENN HENDERSON,

                                                           Plaintiff-Appellant,

                                  versus

BOB REID,
SUE REID,

                                                                  Defendants,

JAVIER DOMINGUEZ,
UNITED STATES GOVERNMENT,
3 JOHN OR JANE DOES,

                                                        Defendants-Appellees.

                       ________________________

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

                             (March 30, 2010)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:

         Glenn Henderson appeals the dismissal of his pro se civil rights complaint

against the United States, Javier Dominguez, a postal inspector, and Bob and Sue

Reid, two former neighbors, pursuant to Federal Rule of Civil Procedure 12(b)(6).

On appeal, Henderson: (1) reasserts his request for declaratory relief regarding

whether it was permissible for him to write and mail letters about Bob Reid, and

asserts several claims against the various defendants, including intentional

infliction of emotional distress, violation of a California anti-harassment statute,

and violation of the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. §§ 1962-1964;1 and (2) argues that the statute of limitations

should have been tolled because Dominguez threatened him with arrest.                   After

thorough review, we affirm.

         We review a district court’s ruling on Rule 12(b)(6) motion de novo. Hill v.

White, 321 F.3d 1334, 1335 (11th Cir. 2003). We also review our subject matter

jurisdiction de novo. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.

2005).



         1
         Henderson also appears to be asserting a claim under the Freedom of Information Act
requesting access to any information the USPS has on him, and a due process violation on the
grounds that Dominguez’s alleged threat amounted to a restraining order imposed without a
hearing. However, because these claims are raised for the first time on appeal, we will not
address them. Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000).

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      First, we are unpersuaded that the district court erred in dismissing the

claims in Henderson’s complaint. A district court may dismiss a complaint under

Rule 12(b)(6) if the facts as pled do not state a claim for relief that is plausible on

its face. Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1950 (2009). In ruling

on a Rule 12(b)(6) motion to dismiss, the court views the complaint in the light

most favorable to the plaintiff, and all of the plaintiff’s well-pleaded facts are

accepted as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th

Cir. 2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

“Factual allegations must be enough to raise a right to relief above the speculative

level.” Id.

      Here, Henderson has failed to concretely and plausibly allege any claims that

show that he is entitled to relief. First, because he did not argue in the district court

that California law should apply to his claims, he is precluded from arguing for

California law as a statutory basis to support his harassment claims. See Daewoo

Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1256-57 (11th Cir. 2006)



                                            3
(holding that choice-of-law arguments, if not properly presented to the district

court, are waived). Second, the alleged behavior of neither Dominguez nor the

Reids even comes close to the level of extreme and outrageous behavior necessary

to state a claim for intentional infliction of emotional distress.               See Higdon v.

Jackson, 393 F.3d 1211, 1222 (11th Cir. 2004) (noting that under Georgia law,

“[l]iability has been found only where the defendant’s conduct was ‘so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized society’”). Moreover, Henderson

has not alleged a pattern of racketeering activity that would plausibly state a claim

under RICO.       Finally, his request for declaratory relief related to events that

occurred almost ten years ago is both stale and factually implausible. By his own

admission, Dominguez merely asked him to stop sending letters, and failed to

continue the dialogue when Henderson sought to pursue it. Therefore, we have no

basis on which to grant Henderson’s request for declaratory relief.

       We likewise reject Henderson’s claim that the statute of limitations should

have been tolled because Dominguez threatened him with arrest.2                        “Equitable

       2
          While we recognize that we would not have jurisdiction over an appeal if the appellant
does not file a timely notice of appeal, Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d
1262, 1272 (11th Cir. 2001), we do have jurisdiction over Henderson’s tolling argument. Federal
Rule of Civil Procedure 54 provides that

       [w]hen an action presents more than one claim for relief . . . or when multiple
       parties are involved, the court may direct entry of a final judgment as to one or

                                                4
tolling is appropriate when a movant untimely files because of extraordinary

circumstances that are both beyond his control and unavoidable even with

diligence.”    Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).

Therefore, the “interests of justice side with the defendant when the plaintiff does

not file [his] action in a timely fashion despite knowing or being in a position

reasonably to know that the limitations period is running.”                     Justice v. United

States, 6 F.3d 1474, 1479 (11th Cir. 1993).

       In this case, the longest statute of limitations applicable to any of the claims

is five years, but Henderson waited almost ten years before filing his complaint in

the district court. As a result, in the absence of equitable tolling, his claims against




       more, but fewer than all, claims or parties only if the court expressly determines
       that there is no just reason for delay. Otherwise, any order . . . that adjudicates
       fewer than all the claims or the rights and liabilities of fewer than all the parties
       does not end the action as to any of the claims or parties.

Fed.R.Civ.P. 54(b).

        Here, Henderson’s claims against the Reids were dismissed as time-barred, and he did
not immediately appeal the entry of judgment against him on those claims or specify in his
notice of appeal that he was appealing the order granting dismissal of those claims. Nonetheless,
because an appeal from the final judgment in a case brings up for review all preceding non-final
orders, if the order granting the Reids’ motion to dismiss was a non-final order, then Henderson
timely appealed that order. See Kirkland v. Nat’l Mortgage Network, Inc., 884 F.2d 1367, 1369-
70 (11th Cir. 1989). Although the district court directed the clerk to enter judgment in favor of
the Reids, the court did not make an express determination that there was no just reason for
delay as required by Rule 54(b). In the absence of such an express determination by the district
court, Henderson could not appeal the order granting summary judgment in favor of the Reids
until the district court entered final judgment in the case. Therefore, we have jurisdiction to
consider Henderson’s appeal of that order.

                                                  5
the Reids are stale. However, Henderson has failed to plausibly allege any facts

showing that he is entitled to equitable tolling. See Iqbal, 129 S.Ct. at 1950.

While he argues that he should be entitled to such tolling because Dominguez

threatened him, Henderson’s complaint, when taken as true, does not support that

argument because in his complaint, he states only that Dominguez asked him to

stop sending the letters. Therefore, Henderson’s claims against the Reids are time-

barred.

      Moreover, Henderson’s claims against the government and Dominguez are

also time-barred, and equitable tolling would not apply to those claims for the same

reasons that it would not apply to the claims against the Reids.      Although the

district court did not dismiss Henderson’s claims against the government and

Dominguez based on the expiration of the statute of limitations, we affirm the

dismissal on this ground. See Glatter v. Mroz, 65 F.3d 1567, 1574 (11th Cir. 1995)

(noting that even if the lower court relied on a wrong ground or wrong reason, if

the decision it reached is correct, it must be affirmed).

      Accordingly, all of Henderson’s claims are time-barred, and we affirm the

district court’s orders dismissing them.

      AFFIRMED.




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