                                              NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 11-4539
                        ___________

                 JEFFREY P. DATTO, Ph.D.

                             v.

          BRIAN HARRISON; THOMAS LEWIS;
      THOMAS KLEIN, M.D.; MARK GRAHAM, M.D.;
      THOMAS JEFFERSON UNIVERSITY; THOMAS
       JEFFERSON UNIVERSITY HOSPITALS, INC.;
         JOHN DOE 1; JOHN DOE 2; JOHN DOE 3;
               JOHN DOE 4; JOHN DOE 5
                    (2-09-cv-02064)
                    _____________

                 JEFFREY P. DATTO, Ph.D.

                             v.

            THOMAS JEFFERSON UNIVERSITY;
        DR. THOMAS KLEIN; DR. THOMAS NASCA;
         DR. JAMES FINK; DR. ARTHUR FELDMAN;
        DR. MARK GRAHAM; DR. NORA SANFORFI;
       DR. CHARLES POHL; DR. CLARA CALLAHAN;
     DR. GEORGE PEREIRA-OGAN; DR. JOHN CARUSO;
DR. BRIAN HARRISON; DR. ROBERT BARCHI; JOHN DOES 1-5
                     (2-09-cv-02549)

                  Jeffrey P. Datto, Ph.D,
                         Appellant
         ____________________________________

         Appeal from the United States District Court
            for the Eastern District of Pennsylvania
        (D.C. Civ. Nos. 09-cv-02064 and 09-cv-02549)
        District Judge: Honorable Mary A. McLaughlin
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 3, 2012

                Before: RENDELL, FISHER and GARTH, Circuit Judges

                            (Opinion filed: December 7, 2012 )
                                       ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM.

       Jeffrey P. Datto appeals an order of the United States District Court for the Eastern

District of Pennsylvania denying his motion for relief under Federal Rule of Civil

Procedure 60(b). For the reasons that follow, we will affirm.

                                              I.

       Because we write primarily for the benefit of the parties, who in their briefing

have displayed in-depth familiarity with the history of this case, we set forth only a brief

summary of the relevant background. In 2005, appellee Thomas Jefferson University

(“Jefferson”) dismissed Datto from its M.D./Ph.D. program during Datto’s final year of

medical school, which prevented Datto from attaining an M.D. degree. The parties

disputed the reasons why Jefferson dismissed Datto. In 2007, Datto filed three suits

against Jefferson and other defendants in Pennsylvania state court, seeking, among other

things, reinstatement to the M.D. program. Two of Datto’s suits were removed to federal




                                              2
court, ultimately docketed as E.D. Pa. Civ. Nos. 09-cv-02549 and 09-cv-02064, and

consolidated for all purposes.

       The parties agreed to participate in settlement discussions, which were mediated

by Magistrate Judge Elizabeth T. Hey. After lengthy negotiations, the parties reached an

agreement calling for Datto to dismiss his three suits in exchange for a monetary payment

from Jefferson. The agreement did not include any opportunity for Datto to gain

readmission to Jefferson. On June 2, 2010, Datto signed the settlement agreement during

a conference before Judge Hey, acknowledging on the record that he had reviewed the

agreement and intended to be bound by it. Datto voluntarily dismissed with prejudice his

suits against the defendants.

       Thereafter, on November 30, 2010, Datto submitted a letter to the District Court

seeking to vacate the dismissal and reopen his cases. He argued that he had been unable

to appreciate the binding nature of the settlement agreement because he was mentally

impaired at the time of signing and hindered by his inability to discuss the settlement

with his treating psychiatrists. Datto submitted a letter from a psychiatrist, Dr. Thase,

who opined that, “on the basis of [Datto’s] description of the events that occurred on the

day of signing the settlement agreement and the severity of the depression that has

followed, … he was in the midst of an episode of bipolar disorder and had diminished

capacity to understand the binding nature of the settlement agreement.” Datto further

argued that he was unduly pressured to settle due to several factors, including: Judge

Hey’s assurances that the settlement was fair; an allegedly biased mediation process; the

                                             3
District Court’s refusal to appoint counsel and address Datto’s request for preliminary

injunctive relief; defendants’ alleged discovery abuses; and the financial hardship that

Datto allegedly suffered following his dismissal from Jefferson.

       After holding an evidentiary hearing, which included testimony from Judge Hey as

well as from Datto, the District Court rendered factual determinations and denied the

Rule 60(b) motion. Applying Rule 60(b)(3), which affords relief due to fraud,

misrepresentation, or misconduct by an opposing party, the District Court concluded that

defendants did not misrepresent to Datto their position regarding his inability to gain

readmission to Jefferson’s medical school.1 Applying the “catchall” provision of Rule

60(b)(6), the District Court held that Datto’s communications with defendants leading up

to his signing of the settlement, including his proposed amendments to the agreement,

show that Datto understood the agreement’s terms and that the settlement would prevent

him from further association with Jefferson. The District Court also found that Datto was

not subjected to undue influence or pressure to settle, and that no extraordinary


1
 Because Datto does not challenge the denial of Rule 60(b)(3) relief on this appeal, we
deem that issue waived. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202-
03 (3d Cir. 2004) (“[A]n issue is waived unless a party raises it in its opening brief, and
for those purposes a passing reference to an issue will not suffice to bring that issue
before this court.”). In addition, we note that, while the District Court did not specifically
address Datto’s contention that Rule 60(b)(1) provides a basis for relief because Datto
made a “mistake” in accepting the settlement, any such contention is without merit. See
Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 275 (3d Cir. 2002) (holding that, even if
party’s decision to settle “was improvident in hindsight, the decision is made and cannot
be revisited”). Likewise, Datto’s alleged mistaken belief that the law would allow him to
unilaterally revoke the settlement agreement did not warrant Rule 60(b)(1) relief.

                                              4
circumstance warranted reopening the cases. After denying Datto’s motion for

reconsideration (a ruling that Datto does not challenge), Datto timely filed this appeal.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of a

Rule 60(b) motion for abuse of discretion. Budget Blinds, Inc. v. White, 536 F.3d 244,

251 (3d Cir. 2008). Because the District Court held an evidentiary hearing, its “exercise

of discretion in light of supportable findings of fact will not be disturbed unless there was

a clear abuse.” Inmates of Allegheny Cnty. Jail v. Wecht, 754 F.2d 120, 127 (3d Cir.

1985). “An abuse of discretion may be found when the district court’s decision rests

upon a clearly erroneous finding of fact, an errant conclusion of law or an improper

application of law to fact.” Reform Party of Allegheny Cnty. v. Allegheny Cnty. Dep’t

of Elections, 174 F.3d 305, 311 (3d Cir.1999) (quotation marks omitted).

       The District Court considered Datto’s allegations of mental impairment and undue

influence under Rule 60(b)(6), which permits relief from judgment only in “extraordinary

circumstances.” Budget Blinds, 536 F.3d at 255. Extraordinary circumstances “rarely

exist when a party seeks relief from a judgment that resulted from the party’s deliberate

choices.” Id. Furthermore, Rule 60(b)(6) is not a means “to escape the effects of a

bargain [the movant] regretted in hindsight.” Coltec Indus., 280 F.3d at 273.

       After considering the testimony presented at the evidentiary hearing, the parties’

arguments and submissions, and Datto’s emails and other communications leading up to

the settlement agreement, the District Court concluded that Datto was not incompetent,

                                              5
that he was not subjected to undue influence when he agreed to the settlement, and that

he was able to appreciate the binding nature of the agreement. In so holding, the District

Court found it significant that: Judge Hey observed Datto on the day of the signing and

concluded that he was capable of deciding whether to settle; Datto initiated sophisticated

changes to the settlement terms, including on the day he entered into the agreement;

Datto’s communications with defendants show that he understood the consequences of

settling, including that he would be precluded from further association with Jefferson;

Datto testified on the record that he made the decision to settle intending to be bound;

Judge Hey reiterated to Datto throughout the process that he was free to discontinue

negotiations and elect not to settle; and Datto had consulted with his psychiatrist, Dr.

Thase, prior to accepting the settlement terms. 2

       Under Pennsylvania law, which governs the issue of Datto’s capacity to enter into

the settlement agreement, “it is presumed that an adult is competent to execute a release,

and thus, a signed document yields the presumption that it accurately expresses the state

of mind of the signing party.” Taylor v. Avi, 415 A.2d 894, 896 (Pa. Super. Ct. 1979).

The party alleging incompetence has “the burden of showing the invalidity of the

agreement by clear, precise, and indubitable evidence.” Id. at 898. “[M]ere weakness of


2
  Dr. Thase had advised Datto not to enter into the settlement agreement – advice that
Datto elected not to follow. While Datto now claims prejudice in the fact that he was
prohibited from discussing the settlement terms with anyone other than his parents, his
tax advisor, and Dr. Thase, there is no basis in the record to conclude that Datto would
not have signed the agreement had he been permitted to consult others.

                                              6
intellect resulting from sickness or old age is not legal grounds to set aside an executed

contract if sufficient intelligence remains to comprehend the nature and character of the

transaction, and no evidence of fraud, mutual mistake or undue influence is present.” Id.

at 897. In addition, “[t]he testimony of persons who observed the alleged incompetent on

the date in question is generally superior to testimony as to observations made prior to

and subsequent to that date.” Weir v. Estate of Ciao, 556 A.2d 819, 824 (Pa. 1989).

       Applying these standards, we conclude that the record fully supports the

determination that Datto knowingly and voluntarily entered into the settlement

agreement. Although Dr. Thase opined that Datto was suffering from bipolar disorder

and “had diminished capacity to understand the binding nature of the settlement

agreement,” the District Court carefully considered the testimony of individuals who

observed Datto when he signed the agreement, particularly Judge Hey, as well as Datto’s

communications preceding the settlement. Given the nature of this evidence, Datto’s

capacity to enter into the settlement agreement cannot reasonably be questioned, and we

thus cannot say that the District Court committed a clear abuse of discretion by denying

Rule 60(b) relief.

       Datto raises several contentions on appeal, none of which warrant a different

result. Datto contends that the District Court abused its discretion by not appointing an

attorney to represent him in the proceedings prior to settlement. 3 Datto argues that the


3
 Datto was represented by counsel at various times before the District Court. In 2008,
prior to his counsel filing a motion to withdraw, Datto requested court-appointed counsel
                                              7
District Court should have appointed counsel sua sponte under 28 U.S.C. § 1915(e)(1),

which provides that “[t]he court may request an attorney to represent any person unable

to afford counsel.” (Emphasis added.) Datto never demonstrated an inability to afford

counsel, and there is no evidence that he qualified for counsel under § 1915(e)(1). See

Brightwell v. Lehman, 637 F.3d 187, 191-92 (3d Cir. 2011). Because the District Court

was under no obligation to appoint counsel for Datto, its failure to do so provides no

basis to relieve Datto from his decision to enter into the settlement agreement.

       Datto also argues that the District Court erred by failing promptly to address his

motion for preliminary injunctive relief. 4 Any delay in addressing the preliminary

injunction motion, however, does not amount to an extraordinary circumstance that

would allow Datto to be relieved from his decision to settle and dismiss these cases.

       Finally, Datto argues that the District Court’s evidentiary hearing on the Rule

60(b) motion was improper because he was unprepared to question Judge Hey, he was



under 42 U.S.C. § 2000e-5. The District Court denied the request because Datto was still
represented by counsel, Datto was not entitled to appointed counsel under Title VII, and
no program existed to provide counsel for Datto. Datto’s counsel then withdrew, and
Datto proceeded pro se until February 2010, when he obtained new counsel. After that
lawyer was granted leave to withdraw, Datto again elected to proceed pro se. Datto did
not request appointed counsel any time thereafter, and he does not argue that the District
Court should have appointed counsel in connection with the Rule 60(b) proceeding.
4
 In June 2009, Datto moved for a preliminary injunction, requesting that the District
Court order Jefferson to reinstate him immediately to the M.D. program. The District
Court scheduled an evidentiary hearing on that motion for January 2010, but due to
scheduling issues, the parties’ desire for prehearing discovery, and the need for
supplemental briefing, the preliminary injunction hearing was rescheduled several times.
Ultimately, the parties settled before a hearing was held.
                                              8
not permitted to review Judge Hey’s personal notes, and he did not have an opportunity

to present testimony from other witnesses, including Judge Hey’s law clerk and court

reporter. A district court has discretion to set parameters on the conduct of proceedings,

and this Court “will not interfere ... except upon the clearest showing that the procedures

have resulted in actual and substantial prejudice to the complaining litigant.” In re Fine

Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982) (quotation marks omitted). Datto

has made no showing of actual and substantial prejudice. He plainly had no entitlement

to review Judge Hey’s personal notes, and he has demonstrated no prejudice from failing

to present the law clerk or court reporter. Our review of the record reveals no reversible

error in the District Court’s conduct of the evidentiary hearing.

                                            III.

       We have carefully considered Datto’s remaining arguments, but we conclude that

those arguments are without merit and warrant no separate discussion. We will affirm

the District Court’s order denying the Rule 60(b) motion. Datto’s motion for

reconsideration of the Clerk’s order granting appellees’ request to file a supplemental

appendix is denied.




                                             9
