FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 3, 2010

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13472

________________________

D. C. Docket No. 08-00810-CV-JOF-1

RONALD J. CAMPBELL, JR., 

KRISTIE CAMPBELL, 

Plaintiffs-Appellants, 

GEORGIA POWER COMPANY, 

Intervenor-PlaintiffAppellant, 

versus

ALTEC INDUSTRIES, INC., 

TEXAS HYDRAULICS, INC., 

JOHN DOE CORPORATION #1, 

JOHN DOE CORPORATION #2, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(May 3, 2010)
Before TJOFLAT, WILSON and EBEL, Circuit Judges.

*

PER CURIAM:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA

PURSUANT TO O.C.G.A. § 15-2-9.

TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE

JUSTICES:

This case involves a question of Georgia law that is determinative of this

appeal but not clearly settled by controlling precedent of the Supreme Court of

Georgia. We therefore certify the question for resolution by the Supreme Court. 

Ronald J. Campbell, Jr., a Georgia Power Company employee, was injured

while operating an A77-T bucket truck when the lower boom lift cylinder failed

on June 30, 2006. Altec Industries, Inc. (“Altec”) manufactured and sold the

bucket truck to Georgia Power Company; Texas Hydraulics, Inc. (“THI”)

manufactured the defective lift cylinder, which was developed jointly by Altec and

THI for use in the bucket truck. On February 4, 2008, Ronald J. Campbell, Jr. and

his wife, Kristie Campbell (collectively, “Campbell”) brought this action against

 Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by *

designation.

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Altec and THI on theories of defective design, manufacturing, and assembly of the

bucket truck under principles of strict liability and negligence. 

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O.C.G.A. § 51-1-11 provides a cause of action in tort for a person injured by

 Campbell also sued Altec and THI for failure to warn of the dangerous propensity of 1

the bucket truck. Following the district court’s grant of summary judgment on Campbell’s

product liability claims, Campbell moved the district court pursuant to Fed. R. Civ. P.

15(a)(2)—which permits a party to “amend its pleading only with the opposing party’s written

consent or the court’s leave”—to withdraw the only remaining claim, the failure to warn claim. 

Campbell asserted that the grant of this motion would make the district court’s judgment final

and appealable. Campbell also stated on the record that he would not renew the failure to warn

claim after it was withdrawn from the case. 

The jurisdictional issue of whether the district court’s judgment was final and appealable

pursuant to 28 U.S.C. § 1291 was carried with this appeal. A preliminary issue was raised as to

whether amendment pursuant to Rule 15(a) was the correct way to handle the dismissal of the

failure to warn claim, or the dismissal should have been pursuant to Federal Rule of Civil

Procedure 41, which provides for the dismissal of actions. Pursuant to subsection 41(a)(2), if the

requirements of subsection 41(a)(1) are not satisfied (as would be the case here), “an action may

be dismissed at the plaintiff’s request only by court order, on terms that the court considers

proper.” Our circuit precedent dictates that 

Rule 41 allows a plaintiff to dismiss all of his claims against a particular

defendant; its text does not permit plaintiffs to pick and choose, dismissing only

particular claims within an action. “A plaintiff wishing to eliminate particular

claims or issues from the action should amend the complaint under Rule 15(a)

rather than dismiss under Rule 41(a).” 

Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (quoting 8 Moore’s

Federal Practice § 41.21[2], at 41–32).

Rule 15, therefore, was the correct way to dismiss this claim. That does not address,

however, the finality of the dismissal. “Unless the plaintiff’s motion or the district court’s order

stipulates otherwise, a claim dropped through a Rule 15 amendment—or, for that matter, an

action dropped pursuant to Rule 41(a)—is dismissed without prejudice.” Id. at 1107. While the

district court’s order does not state that the dismissal was with prejudice, the grant of the Rule

15(a) motion, coupled with the announcement on the record that Campbell would not renew his

failure to warn claim, operated as the functional equivalent of a dismissal with prejudice of this

claim—turning the district court’s summary judgment order into a final judgment. We therefore

have jurisdiction under 28 U.S.C. § 1291, which provides that “courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the district courts of the United States.”

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personal property against the property’s manufacturer if the condition in which the

property was sold is the proximate cause of the injury sustained. O.C.G.A. § 51-1-

11(b)(1). The statute, however, imposes a time limit on bringing an action under

subsection (b)(1); the action must commence within “ten years from the date of the

first sale for use or consumption of the personal property causing or otherwise

bringing about the injury.” Id. § 51-1-11(b)(2). Altec and THI moved the court

for summary judgment on all of Campbell’s product liability claims based on this

provision, known as the statute of repose.

The district court granted Campbell’s motion, finding that the statute of

repose began to run on January 14, 1998, more than ten years before Campbell’s

February 4, 2008 lawsuit. On January 14, 1998, Altec placed the assembled lift

cylinder, which caused Campbell’s injury, on a test chassis and operated it. The

final assembly of the lift cylinder and placement onto the bucket truck, however,

did not occur until sometime in March 1998. The initial delivery to the ultimate

purchaser, Georgia Power Company, then occurred in April 1998. 

In a case where injury arose from a metal plate put in a patient’s back, the

Georgia Supreme Court held that the statute of repose did not begin to run when

the hospital purchased the plate, but rather when the plate was removed from

inventory and sold to the plaintiff “for its actual intended purpose of placement in

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his back.” Pafford v. Biomet, 448 S.E. 2d 347, 349 (Ga. 1994). On the other

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hand, the Georgia Court of Appeals later held, in the case of an alleged problem

with a car switch, that the statute of repose began to run when the car company

installed the switch in the car and the car became operable, not when the car was

sold. Johnson v. Ford Motor Co., 637 S.E.2d 202, 206 (Ga. Ct. App. 2006).3

Neither decision seems to definitively resolve the issue of which of the following

constitutes the “first sale for use or consumption of the personal property causing

or otherwise bringing about the injury”: the completion or test of the lift cylinder,

the completed assembly of the bucket truck, or the delivery of the finished bucket

truck to the initial purchaser. Because resolution of this question would determine

whether Campbell can pursue his cause of action and, thus, determines this

appeal, and “no clear controlling precedent” exists, see § O.C.G.A. 15-2-9, we 4

 In so holding, the court “recognize[d] a distinction between the individual who initially 2

purchased a manufactured product for mere static retention in his inventory and that individual

whose actual employment of the product was ultimately intended.” Pafford, 448 S.E.2d at 348. 

It found that the relevant “first ‘use or consumption’” would be by the individual who ultimately

intended to use the product. This distinction does not apply here.

 If a conflict exists between these decisions, Pafford would control because it is a ruling 3

by the Georgia Supreme Court. The Georgia Supreme Court has not addressed whether the

intermediate court’s ruling in Johnson conflicted with Pafford. 

 As noted, if the time when the lift cylinder was tested commenced the statute of repose 4

period, as the district court held, Campbell’s suit would be untimely. If the statute was not

triggered until either the bucket truck’s assembly, or the bucket truck’s delivery to the initial

purchaser, Campbell brought suit within ten years of those events, so the suit would be timely.

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certify the following question to the Supreme Court of Georgia:

IN A STRICT LIABILITY OR NEGLIGENCE ACTION, DOES THE STATUTE

OF REPOSE IN O.C.G.A. § 51-1-11 BEGIN RUNNING WHEN (1) A

COMPONENT PART CAUSING AN INJURY IS ASSEMBLED OR TESTED,

(2) A FINISHED PRODUCT, WHICH INCLUDES AN INJURING

COMPONENT PART, IS ASSEMBLED, OR (3) A FINISHED PRODUCT,

WHICH INCLUDES AN INJURING COMPONENT PART, IS DELIVERED TO

ITS INITIAL PURCHASER?

We do not intend the particular phrasing of this question to limit the court in

its consideration of the problems posed by this case, or even to constrain its choice

of the triggering event to these three options. In order to assist the court’s

consideration of the question, we are providing the court with the entire record and

the parties’ briefs on appeal. 

IT IS SO ORDERED.

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