FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15699

Non-Argument Calendar

________________________

D. C. Docket No. 06-00107-CV-CDL-3

DWAIN LEE KIRKLAND,

Plaintiff-Appellant,

versus

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(August 19, 2009)

Before BIRCH, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:
Dwain Lee Kirkland, pro se, appeals the grant of summary judgment to The

Guardian Life Insurance Company of America (Guardian) in his private civil

action alleging negligence, fraud, and breach of contract under state law. Kirkland

alleges he entered into a private disability insurance policy (the Policy) with

Guardian in the 1980s. He further alleges he became disabled under the terms of

the Policy in 1993, but he did not realize that he was disabled until 2003, when he

first filed a disability claim with Guardian. Guardian accepted his claim, with a

disability onset date of March 2003, but denied his claim for back benefits from

1993 through 2003. Kirkland filed suit in Georgia state court, and Guardian

removed the case to the district court based on diversity jurisdiction. The district

court ultimately granted summary judgment to Guardian on all claims, and this

appeal followed.

I.

As an initial matter, Guardian argues the only order properly before us on

appeal is the final order issued by the district court on July 11, 2008, (the Final

Order), in which the court addressed only a single claim. Kirkland argues his

notice of appeal indicated his intent to appeal all of the underlying orders from the

district court.

Although Kirkland specifically stated he was appealing the Final Order, it is

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apparent from the face of the notice of appeal that he intended to appeal all of the

underlying orders. In particular, he asked that the district court clerk omit nothing

from the record on appeal. Moreover, all of the issues that Kirkland raises on

appeal are interrelated, and Guardian has not argued that it was prejudiced by

Kirkland’s failure to more specifically identify the orders that he wanted to appeal.

See Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1313 (11th Cir. 2004); see

also Aaro, Inc. v. Daewoo Int’l (Am.) Corp., 755 F.2d 1398, 1400 (11th Cir. 1985).

Accordingly, we conclude that the notice of appeal was effective to appeal all the

non-final orders issued prior to the Final Order. See Osterneck v. E.T. Barwick,

Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987).

II.

Kirkland argues the resolution of his claims on summary judgment violated

his right to a jury trial under both the United States Constitution and the Georgia

Constitution.

We review questions of constitutional law de novo. Loyd v. Ala. Dep’t of

Corrs., 176 F.3d 1336, 1339 (11th Cir. 1999). Generally, we will not consider an

issue not raised before the district court. Access Now, Inc. v. Southwest Airlines

Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Moreover, issues not briefed on appeal

are deemed abandoned. Id. at 1330. An issue also may be deemed abandoned

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where a party only mentions it in passing without providing substantive argument

in support. APA Excelsior III L.P. v. Premiere Techs., Inc., 476 F.3d 1261, 1270

n.4 (11th Cir. 2007).

The Seventh Amendment provides that, in suits at common law, where the

value in controversy exceeds $20, “the right of trial by jury shall be preserved[.]”

U.S. Const. amend. VII. Nevertheless, where there are no genuine issues of fact,

“summary judgment decides only questions of law and does not deprive the losing

party of its jury trial right.” Itel Capital Corp. v. Cups Coal Co., Inc.,

707 F.2d 1253, 1261 (11th Cir. 1983).

As discussed below, there were no genuine issues of material fact in this

case. Thus, the district court did not violate Kirkland’s right to a jury trial under

the Seventh Amendment. Moreover, because Kirkland did not argue before the

district court that a jury trial was required under the Georgia Constitution, we do

not address that claim on appeal. Similarly, we note that Kirkland refers on appeal

to the Fifth and Fourteenth Amendments, but he does not make any substantive

argument that the grant of summary judgment denied him due process.

Accordingly, he has abandoned any such argument.

III.

Next, Kirkland contends that the district court improperly found that

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Guardian was entitled to void a portion of the Policy which entitled him to residual

disability benefits.

As noted above, we generally will not consider an issue not raised in the

district court. Access Now, 385 F.3d at 1331. Whether Kirkland was entitled to

residual disability benefits was never raised as an issue or argued before the district

court. Accordingly, the court did not make any findings in this regard. Because

the issue residual disability benefits was never raised before the district court, we

will not address this issue on appeal.

IV.

Kirkland also argues that the district court erred in finding that Florida law,

rather than Georgia law, applied in this case pursuant to the doctrine of lex loci

contractus.

We review a district court’s choice-of-law determination de novo.

Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assoc., Inc., 468 F.3d 1322,

1325 (11th Cir. 2006).

The parties here had a substantial relationship with Florida because Kirkland

lived in Florida until November 2002, which was a few months before he first filed

his notice of claim with Guardian, and because the Policy was delivered in Florida.

See Johnson v. Occidental Fire & Cas. Co. of N.C., 954 F.2d 1581, 1583-84 (11th

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Cir. 1992). Both Florida and Georgia law require notice within a reasonable period

of time, unless compliance is impossible or unreasonable, compare Reliance Life

Ins. Co. of Pittsburgh, Pa., v. Lynch, 197 So. 723, 724-25 (Fla. 1940), with N. Am.

Ins. Co. v. Watson, 64 S.E. 693, 695 (Ga. App. 1909), thus Florida law does not

contravene Georgia public policy, see Convergys Corp. v. Keener, 582 S.E.2d 84,

85 (Ga. 2003). Thus, the district court correctly concluded Florida law applied in

this case.

V.

Kirkland argues that the district court erred by allowing Guardian to file its

answer to his complaint one day after the filing deadline.

We review “the district court’s determination of excusable neglect for abuse

of discretion.” Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997

(11th Cir. 1997).

After removal, a defendant who did not answer a complaint before removal

must answer, as relevant here, five days after the notice of removal is filed. Fed. R.

Civ. P. 81(c)(2)(C). However, when an act must be done within a specified time,

the district court may extend the time for good cause “if the party failed to act

because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). In analyzing excusable

neglect, the court should look at (1) the danger of prejudice to the non-movant,

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(2) the length of the delay and its possible impact on the judicial proceedings,

(3) the reason for the delay, and (4) whether the movant acted in good faith.

Advanced Estimating Sys., 130 F.3d at 997-98. The Supreme Court has explained

that excusable neglect can include an “inadvertent or negligent omission.” Pioneer

Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 113 S. Ct. 1489, 1498 (1993)

(construing a Bankruptcy Rule).

Here, Guardian’s counsel filed the answer one day after the deadline because

he inadvertently forgot to change the deadline date on his calendar after filing the

notice of removal one day earlier than expected. Guardian’s counsel initially had

planned on filing the notice of removal on December 8, 2006. Thus, the answer

would have been due five days later, on December 15, 2006. However, Guardian’s

counsel actually filed the notice of removal one day earlier than planned, moving

the due date for the answer up one day as well. Kirkland has not explained how he

was prejudiced, in any way, by the one-day delay. Moreover, the delay was short

and had no apparent impact on the proceedings. Kirkland also has not alleged that

Guardian intentionally filed its answer late or otherwise acted in bad faith.

Accordingly, the district court did not abuse its discretion by permitting Guardian

to file the answer one day late.

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VI.

Next, Kirkland argues that, because he verified his complaint, Guardian was

required, under Georgia law, to verify its answer.

Whether federal or state law applies in a diversity action is a question of law,

which we review de novo. Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1306

(11th Cir. 2002).

In a diversity action, the federal court must apply state substantive law and

federal procedural law. Id. In deciding whether state or federal law should apply

to an issue, the court first looks to see whether the state and federal law conflict as

to the disputed issue. Id. at 1306-07. Here, the state and federal laws conflict.

Compare O.C.G.A. § 9-10-111, with Fed. R. Civ. P. 11(a). If the laws conflict, the

court should determine “whether a congressional statute or Federal Rule of Civil

Procedure covers the disputed issue.” Esfeld, 289 F.3d at 1307. Here Rule 11(a),

Fed. R. Civ. P., covers the disputed issue. Thus, the district court correctly found

that federal law governed, see Esfeld, 289 F.3d at 1307, and Guardian was not

required to verify its answer.

VII.

Kirkland also contends the district court should have granted his motion for

recusal.

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We review a district judge’s decision on whether to recuse himself for an

abuse of discretion. Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1319-

20 (11th Cir. 2002). A judge must recuse himself when a party to a district court

proceeding “files a timely and sufficient affidavit that the judge before whom the

matter is pending has a personal bias or prejudice either against him or in favor of

an adverse party.” 28 U.S.C. § 144. Generally, “bias sufficient to disqualify a

judge must stem from extrajudicial sources, and must be focused against a party to

the proceeding.” Hamm v. Members of Bd. of Regents of State of Fla.,

708 F.2d 647, 651 (11th Cir. 1983) (citations omitted). “An exception to that rule

is made when a judge’s remarks in a judicial context demonstrate such pervasive

bias and prejudice that it constitutes bias against a party.” Id. However, adverse

rulings do not constitute pervasive bias. Id.

In his motion for recusal, Kirkland only identified adverse rulings in support

of his allegations of bias. He did not allege any extrajudicial sources of bias or

refer to any remarks that demonstrated bias. Thus, the district court did not abuse

its discretion by denying the motion for recusal.

VIII.

Kirkland next submits that the district court erred by denying him leave to

amend his complaint to add violations of state and federal Racketeer Influenced

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and Corrupt Organizations (“RICO”) laws.

We review “the denial of a motion to amend a complaint for an abuse of

discretion.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co.,

341 F.3d 1292, 1300 (11th Cir. 2003). “[W]here a party’s motion to amend is filed

after the deadline for such motions, as delineated in the court’s scheduling order,

the party must show good cause why leave to amend the complaint should be

granted.” Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1366 (11th Cir.

2007); see also Fed. R. Civ. P. 15(a).

Kirkland filed his motion for leave to amend the complaint four months after

the deadline set by the district court’s scheduling order. Moreover, he failed to

show good cause for allowing the amendment. Thus, the district court did not

abuse its discretion by denying the motion.

IX.

Kirkland contends that the district court erred by striking his proposed

expert witness for failure to comply with Rule 26, Fed. R. Civ. P., but not striking

Guardian’s expert witnesses for the same reason.

A district court’s discovery decisions are reviewed for an abuse of

discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).

The Federal Rules of Civil Procedure require the parties in a case to provide one

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another with the identities of expert witnesses who may be used at trial to present

evidence. Fed. R. Civ. P. 26(a)(2)(A). These disclosures must be made “at the

times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(C). “At

every stage of the proceeding, the court must disregard all errors and defects that

do not affect any party’s substantial rights.” Fed. R. Civ. P. 61.

Here, Kirkland did not disclose his witness until three months after the

disclosure was due. Moreover, he failed to provide a reason for his late filing,

except to say that he had realized he was going to have to litigate his case pro se.

However, Kirkland had been litigating his case pro se from the time he filed his

complaint, and he did not explain how his pro se status prevented him from filing a

timely disclosure. Thus, the district court did not abuse its discretion by striking

Kirkland’s proposed expert witness. Moreover, assuming, arguendo, that the

district court erred by not striking Guardian’s proposed expert witnesses, the error

in no way affected Kirkland’s substantial rights because Guardian did not submit

any evidence from its expert witnesses in support of its summary-judgment

motion.

X.

Kirkland further argues the district court erred by finding that Guardian’s

response to his summary judgment motion was timely. He asserts that he filed his

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motion on July 30, 2007, and his brief in support on August 13, 2007, and he

argues that Guardian was required to respond within 20 days after he filed the

motion, rather than within 20 days after he filed the brief.

Under the Local Rules of the Middle District of Georgia, a party wishing to

file a response to a motion must do so within 20 days “after service of movant’s

motion and brief.” M.D. Ga. L. R. 7.2 (emphasis added).

Within 20 days after Kirkland filed his brief in support of his motion for

summary judgment, Guardian received an extension of time to file its response by

September 14, 2007. Guardian then filed its response before the expiration of the

extended deadline. Accordingly, the district court correctly concluded that

Guardian’s response was timely and did not err in declining to strike it.

XI.

Finally, Kirkland argues the district court erred by granting summary

judgment to Guardian and by denying him summary judgment. Kirkland submits

that he asserted three theories of recovery: breach of contract, fraud, and violations

of RICO laws. However, he does not discuss the fraud or RICO claims on appeal,

but, instead, only refers to documents filed in the district court. Thus, he has

abandoned these claims. See Four Seasons Hotels & Resorts, B.V. v. Consorcio

Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004) (holding that a party may not

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incorporate by reference arguments presented to the district court, but must

specifically and clearly identify the issues presented for review, with citations to

the authorities and portions of the record on which the party relies).

We review a district court’s grant of summary judgment de novo, applying

the same standards that were to be applied in the district court. Rojas v. Florida,

285 F.3d 1339, 1341 (11th Cir. 2002). Issues not briefed on appeal are deemed

abandoned. Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002).

Under Florida law, a party’s failure to comply with the notice requirements

of an insurance policy may be excused where the party’s circumstances make

compliance impossible or unreasonable and the insured has acted with due

diligence. Reliance, 197 So. at 724. In Reliance, the court found that the

policyholder’s failure to give timely notice was excused where he was stricken

with a disease that confined him to his bed and caused him to be delirious most of

the time. Id. at 723.

“When notice of a possible claim is not given to an insurance company,

prejudice is presumed, but recovery is not precluded if the insured can demonstrate

lack of actual prejudice.” Nat’l Gypsum Co. v. Traveler’s Indem. Co., 417 So.

2d 254, 256 (Fla. 1982). An insured may show a lack of prejudice to an insurer by

demonstrating, for example, that another insurer or other competent person

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investigated the matter and turned the results over to the current insurer. Collura,

163 So. 2d at 792.

Kirkland failed to provide Guardian with a timely notice of claim, as

required by the Policy. There were no genuine issues that Kirkland knew that he

was suffering from a number of physical symptoms, that he was unable to work

between 1993 and 2003, or that he waited over 10 years before notifying Guardian

of his inability to work. Thus, the district court did not err in finding, as a matter

of law, that Kirkland failed to give notice of his disability within a reasonable

time. Kirkland also did not overcome the presumption of prejudice that arose in

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Guardian’s favor upon his failing to give timely notice of his claims. Guardian

was, thus, entitled to summary judgment on the breach-of-contract claim.

Moreover, Kirkland has waived all other relevant issues by failing to discuss them

on appeal.

Upon review of the record and consideration of the parties’ briefs, we

affirm.

AFFIRMED.

 Kirkland also contends on appeal that the district court erred by finding that he was

1

required to give proof of loss within 90 days after the end of the first 30-day period for which he

claimed that Guardian was liable under the Policy. It appears that the district court correctly

construed the Policy as to this requirement. In any event, even if there was a genuine issue as to

whether Kirkland’s proof of loss was timely, there was no genuine issue as to his failure to

provide a timely notice of claim, which precluded his recovery under the Policy.

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