GILLEY v. MONSANTO COMPANY, INC., 309 Fed.Appx. 362 (11th Cir. 2009)

No. 08-13646.United States Court of Appeals, Eleventh Circuit.
February 3, 2009.

Elisa Smith Rives, Elisa S. Rives, LLC, Guntersville, AL, for Plaintiff-Appellant.

Jeffrey S. Russell, Bryan Cave LLP, Saint Louis, MO, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 04-00562 CV-4-CLS.

Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

After oral argument and careful consideration, we conclude that the judgment of the district court is due to be affirmed. We conclude that plaintiff cannot circumvent the law of the case established in Gilley v. Monsanto Co., Inc., 490 F.3d 848 (11th Cir. 2007). Therefore, plaintiffs claims in Count I and V are foreclosed. With respect to his claim based upon new evidence, we conclude that the evidence is not new, and that plaintiff had ample opportunity to present that evidence in the hearing before the district court prior to the first appeal. Nor is there any other meritorious exception to the law of the case. With respect to plaintiffs claims in Counts II, III and IV, plaintiffs initial brief on appeal failed to preserve the claims, and in any event the claims are without merit.

AFFIRMED.

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