             Case: 13-15621    Date Filed: 09/04/2015     Page: 1 of 10


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-15621
                          ________________________

                      D.C. Docket No. 2:01-cv-01407-KOB



ANTONIA TOLBERT,
JOHNNY JONES, SR.,
Executor Administrator for Johnny Jones III (deceased),
ALL PLAINTIFFS,
SARAH E. CLOPTON,
JUDY JONES,


                                                               Plaintiffs - Appellees,


                                     versus


MONSANTO COMPANY,
PHARMACIA CORPORATION,
SOLUTIA, INC.,


                                                            Defendants - Appellants.
              Case: 13-15621    Date Filed: 09/04/2015    Page: 2 of 10


                            _______________________

                                 No. 14-10967
                           ________________________

                       D.C. Docket No. 2:13-cv-01408-KOB


CLARENCE ARMOUR,
ANNIE PEARL BAILEY,
QUINCY P. BARCLAY,
on behalf of themselves individually and all others similarly situated,
BETTY BARKER,
DOROTHY BAUMS,


                                                              Plaintiffs - Appellants,


                                       versus


MONSANTO COMPANY,
PHARMACIA CORPORATION,
SOLUTIA, INC.,


                                                             Defendants - Appellees.




                           ________________________

                   Appeals from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                (September 4, 2015)



                                          2
               Case: 13-15621       Date Filed: 09/04/2015      Page: 3 of 10


Before JORDAN and FAY, Circuit Judges, and WALKER, * District Judge.

PER CURIAM:

       The corporate appellants in the Tolbert litigation, Monsanto Company,

Pharmacia LLC (formerly Pharmacia Corporation), and Solutia, Inc., appeal the

district judge’s November 5, 2013, Order, denying their expedited motion for an

injunction to protect the Final Judgment and Order, entered on September 9, 2003,

pursuant to the settlement agreement in an extensive pollution action. The

individual appellants in the Armour litigation appeal the district judge’s February

3, 2014, Order, dismissing with prejudice their complaint to set aside the 2003

Final Judgment and Order and to relitigate the claims in the Tolbert litigation under

Federal Rule of Civil Procedure 60(d) as a class action. We consolidated these

related appeals; we affirm dismissal in the Armour case and dismiss as moot the

appeal in the Tolbert case.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

       The 2003 Final Judgment and Order, which incorporated the Global

Settlement Agreement and the Settlement Agreement, resolved the claims of

18,000 individual plaintiffs for personal injuries and damage to real property




*
 The Honorable Mark E. Walker, United States District Court Judge for the Northern District of
Florida, sitting by designation.


                                              3
                  Case: 13-15621      Date Filed: 09/04/2015      Page: 4 of 10


resulting from exposure to carcinogenic polychlorinated biphenyls (“PCBs”), 1

produced and discharged by Monsanto at its plant in Anniston, Alabama. The

PCBs polluted portions of Anniston and nearby areas, affecting humans and

wildlife.2

          Under the terms of the Final Judgment and Order, defendants settled

plaintiffs’ claims for $300,000,000, which included healthcare services,

pharmaceutical benefits for up to twenty years, a community health clinic in

Anniston, health screening for plaintiffs, and educational benefits for minor

plaintiffs. A Settlement Administrator oversaw the various settlement payments

for the individual Tolbert plaintiffs. Significantly, the Final Judgment and Order,

dated September 9, 2003, and signed by the district judge handling the case at that

time, unequivocally states: “This Final Judgment and Order shall be binding on all

parties to this action and on the entities that have accepted performance or

payment obligations under the written settlement documents.” Final J. & Order ¶



1
    These PCBs, resulting from industrial use, were banned by Congress in 1979.
2
 In their Consolidated, Amended, and Restated Complaint, filed October 9, 2003, plaintiffs
represent “PCBs cause cancer, neurological deficits, liver disease, adverse skin conditions and
other maladies in humans, as well as disease and death of several species of wildlife (some to the
point of extinction).” Consolidated, Amended, & Restated Compl. ¶11. They further allege
Monsanto disposed of PCBs and acid, containing PCBs, into the sewer system of its Anniston
plant, which discharged into ditches that frequently flooded and carried PCBs onto surrounding
property. Id. ¶ 16. Plaintiffs allege Monsanto also dumped PCBs and PCB-contaminated
substances into crude landfills they failed to maintain. Id. ¶ 17. Consequently, PCBs from the
Monsanto Anniston plant were discharged into the atmosphere, soil, and waterways of Anniston.
Id. ¶ 18.
                                                 4
                Case: 13-15621        Date Filed: 09/04/2015       Page: 5 of 10


11 (emphasis added). It further provides: “The Court shall retain complete

jurisdiction of this action, all parties, and all related matters.” Id. ¶ 13.

       Regarding the binding effect on named plaintiffs, the Final Judgment and

Order instructed plaintiffs to identify and add all persons to the complaint to which

the Tolbert litigation applied. The judge ordered that these individuals be

identified by filing “an amended complaint specifically naming each person

subject to the tolling agreement as an additionally named plaintiff within thirty

(30) days after entry of this Final Judgment and Order.” Id. ¶ 11 (emphasis added).

The individuals added through the Consolidated, Amended, and Restated

Complaint, filed October 9, 2003, were 7,159 people, who were not included in the

September 9, 2003, Final Judgment and Order. The cumulative total of individuals

included in the Final Judgment and Order and the Consolidated, Amended, and

Restated Complaint was 18,000. 3

       The impetus for this case in district court and on appeal was the filing by

271 of the 7,159 added plaintiffs through the 2003 Consolidated, Amended, and

Restated Complaint of a new complaint against the same corporate defendants on

July 30, 2013, which attempted to set aside the 2003 Final Judgment and Order

under Federal Rule of Civil Procedure 60(d) and to relitigate those claims under

       3
         The 18,000 individuals included plaintiffs in both the Tolbert litigation and Oliver v.
Monsanto, No. 02-C-0836-S (N.D. Ala.), which the district judge consolidated. We do not
address the Oliver litigation in this consolidated appeal.


                                                 5
                Case: 13-15621        Date Filed: 09/04/2015       Page: 6 of 10


Federal Rule of Civil Procedure 23 as a class action. 4 Armour v. Monsanto Co.,

No. 2:13-cv-01408-KOB ( N.D. Ala. filed July 30, 2013). The corporate

defendants in the Tolbert litigation responded to the Armour complaint by filing an

expedited motion for an injunction to protect and preserve the Final Judgment and

Order in that case. A different district judge issued an order for the Tolbert

plaintiffs to show cause why defendants’ requested injunction should not be

entered.

       In their response, plaintiffs contend: “The Armour Plaintiffs along with more

than 7,000 other people were nothing but names listed on an exhibit prepared by

lawyers and filed 30 days after the final judgment was entered.” Plaintiffs’

Response to the Court’s Order to Show Cause at 1-2. Because they were not part

of the Tolbert litigation, the Armour plaintiffs maintain the Final Judgment and

Order does not apply to them; consequently, they filed an independent action under

Federal Rule of Civil Procedure 60(b)(4). Significantly, the Tolbert plaintiffs

admit “all of the Armour Plaintiffs were told by their lawyers and treated by the

Tolbert Administrator as though they were bound by the Tolbert settlement


       4
         The Armour complaint states: “The Plaintiffs are 271 of the 7,159 people who were not
before the Court on September 9, 2003 when the Court approved the settlement agreement,
including attorney’s fees, in a final judgment and order but are persons whom the Court
attempted to bind by the judgment and order the 7,159 people who were added to the case by
Exhibits A and B to a ‘Consolidated, Amended and Restated Complaint’ in the Oliver and
Tolbert cases filed by the counsel for the Plaintiffs on October 9, 2003, thirty days after the so-
called ‘Final Judgment and Order’ was entered by the Court said persons had not previously
been listed as Plaintiffs in the Oliver and Tolbert cases.” Armour Compl. ¶ 2.
                                                 6
                Case: 13-15621        Date Filed: 09/04/2015       Page: 7 of 10


agreement, including requiring that they pay the lawyers who claimed to be

representing them in the Tolbert case.” Id. at 2 (emphasis added).

       On November 5, 2013, the district judge entered the order the Tolbert

defendants appeal. She denied defendants’ motion for an injunction to protect the

Final Judgment and Order under the All Writs Act, 28 U.S.C. § 1651,5 and

permitted the Armour plaintiffs to proceed with their independent action under

Rule 60(d). On February 3, 2014, the district judge entered the order the Armour

plaintiffs appeal. She determined they had not countered defendants’ motion to

dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) by failing to

satisfy the standard for an independent action in equity, to state a plausible claim

the Tolbert Final Judgment and Order was void, to show their claims were not


       5
          The district judge denied the Tolbert defendants’ expedited motion for an injunction to
protect the Final Judgment and Order under the All Writs Act, which states: “The Supreme Court
and all courts established by Act of Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §
1651(a); see Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004) (“A court
may grant a writ under this act whenever it is calculated in the court’s sound judgment to achieve
the ends of justice entrusted to it, and not only when it is necessary in the sense that the court
could not otherwise physically discharge its duties.” (citation, internal quotation marks, ellipsis,
and alteration omitted)). The judge invited the Armour plaintiffs to file an independent action
under Rule 60, because she had found the Armour complaint facially to be a valid Rule 60,
independent action. See Battle v. Liberty Nat’l Life Ins. Co., 877 F.2d 877, 883 (11th Cir. 1989)
(“Most significantly, the court explicitly invited the state plaintiffs to make their due process
challenge in federal court pursuant to a Fed. R. Civ. P. 60(b) motion or through an independent
action.” (emphasis added)). “[A] court may not issue an injunction under the All Writs Act if
adequate remedies at law are available. Generally, if a party will have opportunity to raise its
claims in the concurrent federal proceeding sought to be enjoined, that concurrent proceeding is
deemed to provide an adequate remedy at law.” Ala. v. U.S. Army Corps of Eng’rs, 424 F.3d
1117, 1132 (11th Cir. 2005) (citations omitted). It remained for the Armour plaintiffs to
establish their claims, which they attempted to do with multiple amended complaints.


                                                 7
              Case: 13-15621     Date Filed: 09/04/2015    Page: 8 of 10


barred by estoppel principles, to delineate how their allegations satisfied the

requirements of a class action under Federal Rule of Civil Procedure 23, and to

explain why the original district judge lacked jurisdiction to hear the case. The

Tolbert defendants and the Armour plaintiffs timely appealed the district judge’s

respectively applicable November 5, 2013, and February 3, 2014, orders, which we

have consolidated on appeal.

                                     II. DISCUSSION

      On the facts and record in these consolidated appeals, the resolution is

governed by equitable estoppel, a question of law we review de novo. Bailey v.

ERG Enters., LP, 705 F.3d 1311, 1316 (11th Cir. 2013). It is settled law in this

circuit that “‘[w]here one in whose favor a judgment is rendered accepts the

benefits, he is estopped from questioning the validity, of the judgment in any

subsequent litigation.’” Zaklama v. Mount Sinai Med. Ctr., 906 F.2d 645, 650

(11th Cir. 1990) (quoting Livesay Indus., Inc. v. Livesay Window Co., 202 F.2d

378, 382 (5th Cir. 1953)) (emphasis added). “Thus, a plaintiff should not be

permitted to assert formally the existence of one state of facts in a claim against

one party and accept benefits in satisfaction of that claim, and then maintain an

action against another party on the ground that the facts first asserted did not

exist.” DeShong v. Seaboard Coast Line R. Co., 737 F.2d 1520, 1522 (11th Cir.

1984).


                                           8
              Case: 13-15621     Date Filed: 09/04/2015    Page: 9 of 10


      Although the Armour appellants had accepted funds and valuable benefits

pursuant to the 2003 Final Judgment and Order, they sought to reopen the Tolbert

litigation to increase those benefits in 2013. Their proposed remedy does not

require them to return the money they have received for a decade; they conceded at

oral argument that would be a practical impossibility. Consequently, the object of

the Armour litigation is an inequitable remedy that conflicts with our circuit law

under Zaklama. The Armour appellants have received the funds and benefits in the

Final Judgment and Order that settled the Tolbert litigation, in which they were

added plaintiffs, money and valuable benefits they are unable to return.

      In addition, the Armour appellants have failed to respond to the equity and

estoppel arguments raised by the corporate appellees in their motion to dismiss,

which was noted by the district judge in dismissing their case. Since they have not

addressed these arguments on appeal, they have abandoned them. See Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When an

appellant fails to challenge properly on appeal one of the grounds on which the

district court based its judgment, he is deemed to have abandoned any challenge of

that ground, and it follows that the judgment is due to be affirmed.”); Hamilton v.

Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (recognizing

a party abandons an issue “by failing to list or otherwise state it as an issue on

appeal”). Accordingly, we affirm dismissal of the Armour litigation and dismiss as


                                           9
               Case: 13-15621        Date Filed: 09/04/2015       Page: 10 of 10


moot the appeal of the corporate appellants from denial of their motion for an

injunction to preserve the 2003 Final Judgment and Order in the Tolbert litigation.6

       AFFIRMED in part; DISMISSED in part.




       6
          At oral argument, the individual Tolbert appellees and the individual Armour appellants
argued there was a fraud exception to the Zaklama estoppel principle. Zaklama, 906 F.2d at 650.
We directed counsel to address the applicability of a fraud exception in supplemental letter
briefing. In their letter briefs, the claimants provide no precedent showing they were not
estopped or any alternative reason excusing their failure to raise the issue on appeal. Instead,
they present a convoluted argument that there is a fraud exception to estoppel in Tolbert, because
the original district judge lacked subject matter jurisdiction. Because the original district judge
did not know about the additional individual claims presented by the Armour appellants when he
approved the 2003 Final Judgment and Order, they contend there was fraud. But the individual
Tolbert claimants were represented by counsel and made parties to the final Tolbert complaint,
settlement agreement, and Final Judgment and Order by their counsel with their consent. Under
the Final Judgment and Order, the district judge gave the Tolbert plaintiffs a 30-day opportunity
to add plaintiffs. This resulted in the 2003 Consolidated, Amended, and Restated Complaint,
which added 7,159 plaintiffs, who shared in the funds and valuable benefits accorded to the
individual Tolbert claimants under the Final Judgment and Order. Their acceptance of those
funds and benefits estops their challenge to the 2003 Final Judgment and Order ten years later as
well the addition of claimants to accept those funds and benefits through the Armour litigation.
If the Tolbert and Armour claimants have problems with their former counsel, that is a separate
matter and not the fault of these corporate defendants.

                                                10
