                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 19-1144
                                  _____________

                                  CHRIS JUDAY;
                                   PAT JUDAY,
                                         Appellants

                                          v.

                         MERCK & CO INC;
              MERCK SHARP & DOHME CORP; ANN REDFIELD

                 On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                         District Court No. 2-16-cv-01547
                 District Judge: The Honorable Harvey Bartle, III

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                March 6, 2020

    Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

                              (Filed: March 26, 2020)
                             _____________________

                                    OPINION ∗
                             _____________________



SMITH, Chief Judge.


∗
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
      Chris and Pat Juday sought compensation for certain injuries allegedly caused

by Zostavax, a shingles vaccine. However, by the time they sued drug maker

Merck, 1 the applicable statutes of limitations had run—absent proper tolling.

      As part of its tolling inquiry, the District Court assessed the Judays’ purported

evidence of Merck’s fraudulent concealment of certain information about Zostavax.

Finding no evidence of wrongdoing, the Court granted summary judgment to Merck.

We affirmed. Juday v. Merck & Co Inc, 730 F. App’x 107 (3d Cir. 2018).

      The Judays sought post-judgment relief based in part on Federal Rule of Civil

Procedure 60(b)(6), which accounts for “any other reason that justifies relief.” 2 They

flagged their prior counsel’s “failure to request any discovery,” despite the

production in other litigation of evidence allegedly demonstrating fraudulent

concealment.    App. 072.    But prior counsel had otherwise participated in the

litigation—via briefing and oral argument—so the District Court surmised that

counsel “made a deliberate, maybe improvident” choice not to pursue discovery in

this litigation. App. 18. The Court denied vacatur because counsel’s behavior fell

short of the “‘extraordinary circumstances’ justifying the reopening of a final



1
  Defendant-Appellees are Merck & Co., Inc. and Merck Sharp & Dohme Corp.
(collectively, “Merck”). Claims against Defendant Ann Redfield were dismissed
prior to summary judgment and are not at issue.
2
 The Judays also sought relief under Rule 60(b)(5). On appeal, however, they do
not challenge the Rule 60(b)(5) aspect of the District Court’s decision.
                                          2
judgment.” App. 014, 016, 018 (quoting Gonzalez v. Crosby, 545 U.S. 524, 535

(2005)) (internal quotation marks omitted).

      The Judays timely appealed.3 Our review of the District Court’s Rule 60(b)(6)

decision is “limited and deferential.” Gonzalez, 545 U.S. at 535. We merely

consider whether the Court abused its discretion. Cox v. Horn, 757 F.3d 113, 118

(3d Cir. 2014). 4

      The Court was justified in determining that prior counsel’s conduct did not

fall to a level warranting Rule 60(b)(6) relief. In this litigation, refraining from

discovery was not “neglect so gross that it is inexcusable.” Boughner v. Sec’y of

Health, Educ. & Welfare, 572 F.2d 976, 977–78 (3d Cir. 1978) (relief warranted for

failure to file summary judgment opposition in this case and over fifty others while

campaigning for judicial office and facing other docket control issues). 5 Moreover,


3
  The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction over this appeal under 28 U.S.C. § 1291.
4
  We grant Merck’s Motion to Take Judicial Notice and for Leave to File Second
Supplemental Appendix. We notice a complaint and dispositive opinions in certain
other litigation by the Judays. See Fed. R. Evid. 201; S. Cross Overseas Agencies,
Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (permitting
“judicial notice of another court’s opinion—not for the truth of the facts recited
therein, but for the existence of the opinion”). While we discern no “exceptional
circumstances” to justify supplementing the appellate record, Acumed LLC v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 225–27 (3d Cir. 2009), we do so
anyway to reflect our judicial notice and absent any opposition.
5
  Like the District Court, we focus on prior counsel’s failure to take discovery, but
the Judays also fault their prior counsel for failing to pursue certain tolling
arguments. To the extent this issue is preserved, it does not help to show that prior
                                         3
we are unpersuaded that this is a situation in which, “without [Rule 60(b)(6)] relief,

an extreme and unexpected hardship would occur.” Cox, 757 F.3d at 115 (quoting

Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)) (internal quotation

marks omitted). As the Judays concede, their complaint was filed late. It therefore

suffered the appropriate consequence of dismissal.

      Because we observe no abuse of discretion in the District Court’s Rule

60(b)(6) decision, 6 we will affirm.




counsel’s conduct was akin to the “wholesale abandonment” in Boughner. In re
Fine Paper Antitrust Litig., 840 F.2d 188, 195 (3d Cir. 1988).
6
  Apparently hedging, the District Court also observed that the Judays’ “Rule
60(b)(6) motion seems to rely at least in part . . . on fraudulent concealment or
misconduct by an opposing party, a basis for relief under Rule 60(b)(3).” App. 015.
“To th[at] extent,” id., the motion fell afoul of the one-year limit on Rule 60(b)(3)
motions. Fed. R. Civ. P. 60(c)(1). But the Court seemingly conflated the Judays’
fraudulent concealment grounds for tolling with a fraud argument for reopening the
case under Rule 60(b)(3). We need not rely on this tentative Rule 60(b)(3) ruling.
The Judays filed a Rule 60(b)(6) motion that faltered on Rule 60(b)(6) grounds.
                                          4
