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                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-15712
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:07-cv-01429-MSS-EAJ



FRANKLIN J. BURR,
Individually and as personal representative of the estate of Bernadeen L. Burr,

                                                                Plaintiff-Appellant,

                                      versus

PHILIP MORRIS USA INC.,

                                                               Defendant-Appellee.

                           ________________________

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

                                 (March 31, 2014)

Before HULL, MARCUS, and MARTIN, Circuit Judges.

PER CURIAM:
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       Franklin J. Burr (Burr), as personal representative of the estate of Bernadeen

L. Burr, appeals the district court’s grant of summary judgment to Philip Morris

USA Inc. (Philip Morris). On appeal Burr raises three issues. First is whether the

district court judge should have been recused because of a purported conflict.

Second is whether the district court erred in granting Philip Morris’s summary

judgment motion. And third is whether the district court should have remanded

this case back to Florida state court. Because Burr’s notice of appeal refers only to

the summary judgment order, the recusal issue is not properly before this Court.

With respect to the other two issues, we affirm the district court’s summary

judgment order and reject Burr’s argument regarding remand.

                                               I.

       In the fall of 1989 Burr’s wife, Bernadeen Burr, began to experience pain in

her right hip. When she sought a second opinion at the Mayo Clinic, she was

diagnosed with advanced lung cancer and told it was due to years of smoking

cigarettes. Bernadeen Burr died on September 8, 1990. Nearly seventeen years

later, on August 13, 2007, Burr individually and as the personal representative of

the estate of Bernadeen Burr filed a seven-count complaint against Philip Morris

and R.J. Reynolds Tobacco Company. 1



1
 Burr never properly served R.J. Reynolds, and in its summary judgment order the district court
dismissed the company with prejudice. Burr does not challenge this on appeal.
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      In between Bernadeen Burr’s death and the filing of this suit, a nationwide

class action of smokers and their survivors was certified in Florida. See Engle v.

Liggett Group, Inc., 

, 1256 (Fla. 2006). The class was eventually

altered to include only Florida smokers and their survivors. 

litigation” is “one of the most uniquely structured and

extraordinarily adjudicated cases in the state’s history.” Soffer v. R.J. Reynolds

Tobacco Co., 

, 459, 460 (Fla. 1st DCA 2012). The plan to manage

the Engle litigation involved a trifurcated trial plan. Phase one took place and

involved a year-long trial ending on July 7, 1999 that resulted in a verdict for the

class on all counts. 

–57. Phase two took place and

determined both compensatory damages for three representative class members as

well as eventually-vacated punitive damages for the entire class. 

1276.

Later the Florida Supreme Court found that “the cut-off date for class membership

is November 21, 1996,” and as a result barred all judgments in favor of one of the

representative class members because his claims were barred on statute of

limitations grounds. 

      The Florida Supreme Court determined that the planned phase three, in

which new juries would decide individual liability and compensatory damages

claims for the approximately 700,000 class members, was “not feasible,” and

ordered the class decertified on remand. 

Instead, the Florida Supreme


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Court held that class members could proceed individually with certain findings

given res judicata effect provided any action was filed by January 11, 2008. See

jury findings include that the defendants “concealed or omitted

material information not otherwise known or available knowing that the material

was false or misleading or failed to disclose a material fact concerning the health

effects or addictive nature of smoking cigarettes or both”; and “agreed to conceal

or omit information regarding the health effects of cigarettes or their addictive

nature with the intention that smokers and the public would rely on this

information to their detriment.” 

.

      The parties dispute whether Burr and his wife were part of the class certified

in Engle. Philip Morris argues that Burr and his wife were not class members

because their action accrued on the date of Bernadeen Burr’s death and the statute

of limitations expired two years later, on September 8, 1992. Burr argues that his

wife was a class member in Engle because the statute of limitations was tolled on

statutory and equitable grounds.

      The district court granted summary judgment for Philip Morris. Burr argued

that the statute of limitations should be tolled under both the doctrine of fraudulent

concealment and the delayed discovery doctrine. The district court rejected both

arguments.

                                           II.


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      Summary judgment is proper where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). This Court will “review a District Court’s

grant of summary judgment de novo, considering the evidence in the light most

favorable to the nonmoving party.” Lindley v. FDIC, 

, 1050 (11th

Cir. 2013). The moving party bears the burden of demonstrating an absence of a

genuine dispute over any material facts and that it is entitled to judgment as a

matter of law. Avenue CLO Fund, Ltd. v. Bank of Am., NA, 

,

1293–94 (11th Cir. 2013). If it meets that burden, the burden shifts to the non-

moving party to present evidence on the essential elements of its claim so a

reasonable jury could rule in its favor. To meet this burden the non-moving party

must “go beyond the pleadings and . . . designate specific facts showing that there

is a genuine issue for trial.” Celotex Corp. v. Catrett, 

, 324, 

, 2553 (1986) (quotation marks omitted).

      We review an abstention decision only for an abuse of discretion. Boyes v.

Shell Oil Products Co., 

, 1265 (11th Cir. 2000).

                                         III.

                                         A.

      We first consider whether the district court correctly held that Burr’s claim

is barred by the statute of limitations. Under Florida law, an action for wrongful


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death accrues on the date of death and a plaintiff has two years to bring the action.

Fulton Cnty. Adm’r v. Sullivan, 

, 552 (Fla. 1999); Fla. Stat.

§ 95.11(4)(d). Because Bernadeen Burr died on September 8, 1990, Burr had until

September 8, 1992 to commence his wrongful death action—unless tolling applied.

Burr offers two reasons why his claim is not time barred, but both fail to persuade.

      First, Burr seeks to rely on the delayed discovery doctrine. See Fla. Stat.

§ 95.031(2)(a). “The ‘delayed discovery’ doctrine generally provides that a cause

of action does not accrue until the plaintiff either knows or reasonably should

know of the tortious act giving rise to the cause of action.” Hearndon v. Graham,

, 1184 (Fla. 2000). “[I]t does not toll the applicable statute of

limitations once the cause of action has accrued and the statute of limitations has

begun to run.” Raie v. Cheminova, Inc., 

, 1280 (11th Cir. 2003).

We held in Raie that Fla. Stat. § 95.031(2)(b) does not extend the delayed

discovery doctrine to wrongful death actions because there is no language

explicitly doing so. 

Because there is also no language extending the

delayed discovery doctrine to wrongful death actions under Fla. Stat.

§ 95.031(2)(a), the same logic applies here, and we therefore reject Burr’s

argument for tolling the statute of limitations based on the delayed discovery

doctrine.




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      Burr also seeks to rely on the doctrine of fraudulent concealment.

“Fraudulent concealment can toll the running of a statute of limitations when the

fraud perpetrated upon the injured party places him in ignorance of his right to

sue.” Wirt v. Central Life Assur., Co., 

, 479 (Fla. 2d DCA 1992)

(citing Nardone v. Reynolds, 

(Fla. 1976)). “Fraudulent concealment

requires the defendants to engage in the willful concealment of the cause of action

using fraudulent means to achieve that concealment.” 

n.1.

      Burr failed to allege any facts to suggest any misrepresentation or

concealment by Philip Morris, and even acknowledged he “sparsely pled the

fraudulent concealment count.” Instead, Burr relied on the jury findings from

Engle noted above as a basis for tolling the statute of limitations. But we have

rejected this argument before. See Taylor v. R.J. Reynolds Tobacco Co., 441 F.

App’x 664, 665 (11th Cir. 2011) (finding, in a case where Taylor argued that the

Engle findings “tolled the statute of limitations until the discovery of the fraudulent

concealment of the dangers of smoking,” that “[t]he district court did not err in

dismissing Taylor’s complaint because his wrongful-death claim was barred by

Fla. Stat. [§] 95.11(4)(d)”). Burr never explained what Philip Morris did to prevent

him from knowing his wife had sustained an injury caused by smoking cigarettes




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and being able to pursue a claim. Therefore, he has not preserved a tolling claim

under fraudulent concealment.2 See 

n.1.

                                             B.

       We do not have jurisdiction to consider Burr’s disqualification motion. The

district court granted summary judgment on September 28, 2012. Burr filed his

notice of appeal on October 26, 2012. Then, on November 14, 2012, Burr filed a

motion to disqualify Judge Scriven pursuant to 28 U.S.C. § 455(a) and (b). The

motion to disqualify was denied two days later. Federal Rule of Appellate

Procedure 3(c)(1)(B) states that a notice of appeal “must designate the judgment,

order, or part thereof being appealed.” Burr’s notice of appeal does not make any

reference to the order denying his motion to disqualify. Therefore, we lack

jurisdiction to consider the argument. See KH Outdoor, LLC v. City of Trussville,

, 1260 (11th Cir. 2006) (noting this Court may allow parties to make

a mistake in their notice of appeal “at least where the order that was not designated

was entered prior to or contemporaneously with the order(s) properly designated in

the notice of appeal”); See also Whetstone Candy Co. v. Kraft Foods, Inc., 

, 1079–80 (11th Cir. 2003) (“Where an appellant notices the appeal of a

specified judgment only . . . this court has no jurisdiction to review other



2
 We need not and do not decide whether fraudulent concealment is available in a wrongful death
action under Florida law.
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judgments or issues which are not expressly referred to and which are not

impliedly intended for appeal.” (quotation marks omitted)).

                                               C.

       Burr argues that the district court erred in not remanding this case to state

court because it should “be determined by the state court system and not by the

federal court system. . . . The application of the doctrine set forth by the Florida

Supreme Court in the Engle case should be determined by the Florida state courts

and not by the federal court system.” This argument, unsupported by authority,

runs counter to precedent finding the exact opposite. Barring limited exceptions,

federal courts are “to exercise the jurisdiction given [to] them.” Ambrosia Coal &

Const. Co. v. Pagés Morales, 

, 1328 (11th Cir. 2004) (quotation

marks omitted). The district court committed no error in denying Burr’s request

for remand.

                                              IV.

       The district court’s order is AFFIRMED. 3




3
  Philip Morris’s Motion to Strike is denied as moot. The arguments raised by Burr for the first
time in his Reply plainly came too late and will not be considered. See, e.g., Big Top Koolers,
Inc. v. Circus-Man Snacks, Inc., 

, 844 (11th Cir. 2008).
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