     Case: 12-30311       Document: 00512130826         Page: 1     Date Filed: 01/31/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 31, 2013

                                     No. 12-30311                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



In re: VIOXX PRODUCTS LIABILITY LITIGATION


EMMANUAL IWOBI,

                                                  Plaintiff - Appellant
v.

MERCK AND COMPANY, INCORPORATED,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-MD-1657
                             USDC No. 2:08-CV-1422


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Emmanual Iwobi appeals from the district court’s
denial of his motion for reconsideration of a final order dismissing his action
against Defendant-Appellee Merck Sharp & Dohme Corp. (Merck). Because


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Iwobi’s arguments either do not satisfy the standard for relief under Rule 60(b),
or are not properly before this court, we AFFIRM the district court’s order.
                                    I. BACKGROUND
       In 2007, before Iwobi filed suit, Merck reached a Master Settlement
Agreement (MSA) with negotiating counsel for plaintiffs in the multidistrict
litigation (MDL) over Vioxx, a non-steroidal anti-inflammatory drug that was
withdrawn from the market in 2004, and is alleged to cause heart attacks and
other maladies. On the day the MSA was announced, the district court entered
pretrial order (PTO) 29, which applied to all plaintiffs whose claims were
transferred into the MDL on or after November 9, 2007. PTO 29, a Lone Pine
order,1 imposed certain discovery requirements on such plaintiffs, including
production of pharmacy and medical records, expert reports, and answers to
Merck’s interrogatories. The productions required under PTO 29 are due within
forty-five days of arrival in the MDL proceedings. A failure to produce within
forty-five days could be cured within an additional thirty-day period after
receiving a notice of deficiency from Merck. Failure to comply with the
requirements after the cure period “shall lead to the dismissal of the claim with
prejudice” absent showing of good cause.
       Iwobi’s case was governed by PTO 29 because it arrived in the MDL after
November 9, 2007. Iwobi filed suit against Merck in Texas state court on
January 15, 2008, alleging that he was injured from ingesting Vioxx. Merck
removed the case to federal court, and then the case was transferred to the
Eastern District as part of the MDL proceeding occurring therein.2


       1
         As we have explained, Lone Pine orders are “named for Lore v. Lone Pine Corp.,” and
“are designed to handle the complex issues and potential burdens on defendants and the court
in mass tort litigation.” In re Vioxx Prods. Liab. Litig. (Dier v. Merck & Co.), 388 F. App’x 391,
393 n.1 (5th Cir. 2010) (internal quotation marks and citation omitted).
       2
         The multidistrict proceedings were established in the district court in 2005. See
generally Dier, 388 F. App’x at 393. In the instant case, the transfer to the Eastern District

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                                     No. 12-30311

       Eight months later, after Iwobi had failed to comply with the discovery
requirements of PTO 29, Merck filed a motion for order to show cause why his
case should not be dismissed. The motion explained that: (1) Iwobi had not
satisfied the requirements of PTO 29, and that (2) Merck had notified Iwobi’s
counsel of the deficiency, but Iwobi had not cured it in the thirty-day period
following receipt. Accordingly, Merck asked the court to dismiss Iwobi’s claims
with prejudice. Iwobi did not reply to the motion, and on Feburary 3, 2009, the
court dismissed his case with prejudice for failure to comply with the Lone Pine
requirements of PTO 29.
       On March 29, 2010, Iwobi submitted a letter to the district court. Iwobi
claimed that his attorney had told him that his case was on the right course,
that he had been unable to contact his attorney for over a year, and that he
recently learned that his action had been dismissed and that his attorney had
been disbarred in February 2010. Accordingly, Iwobi asked the district court to
reopen the case. The court ordered Merck to respond.
       After receiving Merck’s response and Iwobi’s reply, the district court
denied Iwobi’s motion for reconsideration. The court reaffirmed the basis for
dismissing Iwobi’s claims: “[d]espite several notices, no materials required by
Pretrial Order 29 were ever produced in connection with Mr. Iwobi’s case,
including no Lone Pine report.” The court then noted that Iwobi’s motion for
reconsideration was filed more than a year after his case was dismissed, and
therefore was governed by Federal Rule of Civil Procedure 60(b)(4)-(6). The
district court further observed that Iwobi “was represented by counsel at all
times prior to the dismissal of his case,” and that his attorney was not disbarred
until more than a year after his case was dismissed. The court reasoned that,
“[u]nder these circumstances, post-dismissal disciplinary action against a party’s



was made pursuant to orders issued by the Judicial Panel on Multidistrict Litigation.

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attorney is not sufficient grounds to revisit the dismissal under Rule 60.” The
court concluded by “express[ing] no opinion regarding Mr. Iwobi’s possible
remedy against his former attorney.” Iwobi timely appealed.
                         II. STANDARD OF REVIEW
      We review the denial of a Rule 60(b) motion for abuse of discretion. Bailey
v. Cain, 609 F.3d 763, 767 (5th Cir. 2010). “‘A district court abuses its discretion
if it bases its decision on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.’” Hesling v. CSX Transp., Inc., 396 F.3d 632, 638
(5th Cir. 2005) (quoting Kennedy v. Tex. Utils., 179 F.3d 258, 265 (5th Cir.
1999)). “It is not enough that the granting of relief might have been permissible,
or even warranted—denial must have been so unwarranted as to constitute an
abuse of discretion.” Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1082 (5th
Cir. 1984). Our review is focused on the motion for reconsideration, and an
appeal from the denial of such a motion “does not bring up the underlying
judgment for review.” Bailey, 609 F.3d at 767.
                               III. DISCUSSION
      Iwobi makes two arguments on appeal: (1) that the district court abused
its discretion in denying his motion to reconsider, and (2) that dismissal with
prejudice was an improperly harsh sanction for failure to comply with the
district court’s Lone Pine orders. Iwobi’s first argument does not satisfy the
“exceptional circumstances” standard justifying relief under Rule 60(b). His
second argument is not properly before this court because it concerns the
underlying judgment. Therefore, we find neither argument persuasive. We
address each of these arguments in turn.
A.    Denial of the Motion to Reconsider
      Iwobi’s principal argument is that the district court abused its discretion
in denying his motion to reconsider. Iwobi argues that dismissal of his case
resulted from his counsel’s unresponsiveness and noncompliance with court

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orders, and that he should not bear the consequences of his counsel’s alleged
incompetence. In particular, Iwobi claims that he did not have notice that his
case was facing dismissal because his attorney did not tell him so, and that he
was unaware of the alleged misconduct and sanction of his attorney. Based on
these grounds, Iwobi argues that dismissal was inappropriate. This argument
fails because attorney malpractice is not grounds for reopening a judgment
under Rule 60(b).
      Rule 60(b) provides six grounds that authorize a court, “[o]n motion and
just terms,” to “relieve a party . . . from a final judgment, order, or proceeding.”
The first three grounds apply only to motions filed within a year of judgment,
which is not the case here, so they are inapplicable. See Fed. R. Civ. P. 60(b)(1)-
(3) & (c)(1). Two of the remaining three grounds—that the “judgment is void,”
and that the “judgment has been satisfied, released, or discharged”—are also not
applicable here. See id. 60(b)(4)-(5).
      Thus, to prevail on his Rule 60(b) motion, Iwobi had to satisfy the final,
catch-all provision. Id. 60(b)(6) (authorizing reopening of a case for “any other
reason that justifies relief”). We have determined that a party moving for relief
under Rule 60(b)(6) “must show the initial judgment to have been manifestly
unjust,” as this clause “is a residual or catch-all provision to cover unforeseen
contingencies—a means to accomplish justice under exceptional circumstances.”
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993) (citation
and internal quotations omitted).
      Iwobi has not shown that the initial judgment was manifestly unjust or
that his case involves the sort of exceptional circumstances that would entitle
him to relief. Iwobi’s argument rests on his contention that he did not discover
until too late that his attorney was incompetent. Yet, “the mistakes of counsel,
who is the legal agent of the client, are chargeable to the client.” Pryor v. U.S.
Postal Serv., 769 F.3d 281, 288 (5th Cir. 1985) (holding that district court did not

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                                      No. 12-30311

abuse its discretion in denying Rule 60 motion). In Pryor, this court found that
“mistakes and omissions of an indifferent counsel” that lead to dismissal are not
a basis for reopening a judgment, and that “this is especially true where the
timeliness of postjudgment filings is concerned.” Id.
       Iwobi cannot “avoid the consequences of the acts or omissions” of his
attorney, who was “his freely selected agent.” Link v. Wabash R.R. Co., 370 U.S.
626, 633-34 (1962); see also Pryor, 769 F.3d at 288 (finding that the attorney is
the legal agent of her client, and that the client is therefore responsible for her
mistakes). Although such a rule may breed some unfairness, the necessity of
finality demands that we abide by it. See Pryor, 769 F.3d at 288-89 (“Were [we]
to make an exception to finality of judgment each time a hardship was visited
upon the unfortunate client of a negligent or inadvertent attorney . . .
meaningful finality of judgment would largely disappear.”). In addition, the
rationales in Link and Pryor extend to the discovery phase. We have previously
found that dismissal due to noncompliance with discovery orders is not an abuse
of discretion, and therefore is not subject to relief under Rule 60(b). See, e.g.,
James v. Rice Univ., 80 F. App’x 907, 911 (5th Cir. 2003) (finding that the
argument that plaintiff “should be excused [under Rule 60(b)] from her complete
lack of compliance with the district court's pretrial orders” because of her
counsel’s incompetence was unavailing) (citing Pryor, 769 F.3d at 286-89). All of
Iwobi’s arguments to the contrary are unpersuasive.3
B.     Appropriateness of Dismissal
       Iwobi also argues that dismissal with prejudice was an improperly harsh
sanction for his failure to comply with the district court’s Lone Pine orders.
However, the time to challenge the sanction of dismissal was at final judgment,


       3
        For example, Iwobi’s arguments that he is entitled to relief because his counsel was
disbarred a year after the dismissal of his case, and because Merck was obligated to keep
Iwobi informed of the status of his action, are meritless.

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                                No. 12-30311

not in an appeal from a motion to reconsider brought more than a year after
final judgment. See Bailey, 609 F.3d at 767 (appeal from the denial of a Rule
60(b) motion “does not bring up the underlying judgment for review”). Indeed,
“we have frequently upheld district court decisions denying [such] motions,”
where those motions raise grounds for reversal that could have been raised in
a timely appeal. Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1203 (5th
Cir. 1993) (per curiam). Thus, this argument is meritless too.
                             IV. CONCLUSION
      For the reasons given, we AFFIRM the order of the district court.




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