     Case: 12-60236   Document: 00512063473   Page: 1   Date Filed: 11/26/2012




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

                                                                  FILED
                                                            November 26, 2012

                              No. 12-60236                       Lyle W. Cayce
                            Summary Calendar                          Clerk



LARRY J. WAITES,

                                         Plaintiff - Appellant
v.

LEE COUNTY MISSISSIPPI; CITY OF TUPELO MISSISSIPPI; ED NEELY,
in his official capacity as former Mayor for the City of Tupelo; JACK REED,
in his official capacity as Mayor for the City of Tupelo; JIM JOHNSON, in his
official capacity as Sheriff of Lee County, Mississippi; HAROLD CHAFFIN, in
his official capacity as Chief of Police of the City of Tupelo; LEE COUNTY
BOARD OF SUPERVISORS, in their Official Capacity; OFFICER DOUG
MANSELL, in his official capacity; OFFICER JASON WHITENTON, in his
official capacity; OFFICER TOM CODY, in his official capacity;
LIEUTENANT MIKE OLIVE, in his official capacity; OFFICER FOREMAN,
in his official capacity; OFFICER CHERRY, in his official capacity; JOE
DOES 1-10, Jail Administrators; RICHARD DOES 1-10, Unidentified Officers
of the Tupelo Police Department; JOHN DOES 1-10, Unidentified Officers of
the Lee County Sheriff’s Department,

                                         Defendants - Appellees



                Appeal from the United States District Court
                  for the Northern District of Mississippi
                         USDC No: 1:09-CV-287-MD
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                                       No. 12-60236

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Larry Waites appeals the denial of a motion to vacate an agreed order of
dismissal and reinstate this case to an active docket. For the following reasons,
we AFFIRM.
                           FACTS AND PROCEEDINGS
       Larry Waites was arrested after a traffic stop on November 25, 2006 for
driving under the influence of alcohol and drugs. Three years later Waites filed
the instant suit, alleging that he was subject to unreasonable use of force in the
course of his detainment at the Lee County-Tupelo Adult Jail following his
arrest. He alleged that during the booking process, several Tupelo and Lee
County officers held him down and allowed another officer to assault him.
       On January 18, 2011, over a year after the suit was filed, Defendants
moved for a Protective Order, charging discovery wrongdoing by Waites’s
counsel. The Magistrate Judge granted Defendants’ request, and also agreed to
extend the deadlines in the scheduling order. Waites’s counsel then appealed
the extension of the scheduling order, and moved to prohibit Defendants from
taking the deposition of Waites’s expert pending the appeal. Although the
Magistrate Judge denied Waites’s request to prohibit the depositions from going
forward, neither Waites’s counsel nor his expert appeared for the scheduled
deposition.
       After the failure to appear Defendants moved for sanctions. Waites’s
counsel’s only response was that she had orally agreed with defense counsel’s
paralegal to take the deposition by videoconference. The paralegal submitted an
affidavit, however, stating that she never spoke with Waites’s counsel about


       *
         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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                                  No. 12-60236

taking the deposition by videoconference. The Magistrate Judge then granted
sanctions against Waites’s counsel, and the District Judge affirmed the award.
The Magistrate Judge also ordered Waites to make his expert witness available
for deposition in Tupelo, and the District Judge affirmed the order.
      After the ruling Waites’s counsel moved to withdraw on the basis that her
client had subsequently been arrested for, “among other charges, public
drunkenness and disturbing the peace.”         On the same day the motion to
withdraw was filed, Waites’s counsel, along with his expert witness, once again
failed to appear for a scheduled deposition. Defendants then moved the Court
to dismiss the action with prejudice for failure to obey a court order, pursuant
to Federal Rule of Civil Procedure 37(b)(2)(A)(v). Defendants also noted that
Waites’s counsel should not be allowed to withdraw until the monetary sanctions
were paid.
      On June 20, 2011, the parties entered an Agreed Order of Dismissal,
which stated, in part:
      THIS CAUSE having come on the joint ore tenus motion of the
      parties, Plaintiff requests the Court to dismiss this civil action with
      prejudice, and the Defendants request, therefore, that the Court
      vacate the previous orders with respect to sanctions imposed upon
      Plaintiff’s attorneys. The Court, having considered said Motion is of
      the opinion that the Motion is well taken and should be granted.

After the agreed order was entered, Waites retained new counsel and proceeded
to file a motion to vacate the order and reinstate the case to the active docket.
In support of the motion, Waites alleged that he “was not advised and did not
understand that his cause was being dismissed in exchange for Defendants’
foregoing sanctions against Plainitff’s attorneys.” The district court entered an
order permitting Waites to file evidentiary materials and a brief in support of his
motion, and, later, granted Waites’s motion for an extension of time to file such
materials. The brief filed in support of the motion again alleged that “Waites

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                                  No. 12-60236

never gave his informed consent to the dismissal” and requested a hearing “to
at least decide whether Waites knowingly consented to the dismissal.” In his
reply brief, Waites also stated that his earlier attorneys “had an unmistakable
conflict of interest in advising Waites to dismiss.”
      In response to the motion, Waites’s former attorneys submitted various
affidavits explaining that they had spoken with Waites regarding the agreed
order of dismissal, and had discussed all aspects of the litigation including the
offer of judgment, the fact that sanctions had been issued, and the likelihood of
fee shifting. At the end of the conversation, Waites concluded that it was in his
best interest to dismiss the case, and he advised counsel accordingly.
      After reviewing the affidavits, the District Judge stated:
      In light of [Waites’s counsel’s] affidavit, it seems quite doubtful that
      plaintiff will be able to persuade this court to vacate the dismissal
      of this case and reinstate it to the active docket. However, plaintiff
      has cited authority suggesting that he at least has the right to a
      hearing in this regard, see Greater Kansas City Laborers Pension
      Fund v. Paramount Industries, Inc., 829 F.2d 644 (8th Cir. 1987),
      and this court will, out of an abundance of caution, set this matter
      for hearing so that it can personally evaluate the testimony and
      credibility of relevant witnesses.

During the hearing, Waites acknowledged that he had spoken with his attorneys
and that he had accepted their advice to dismiss the case because his attorneys
told him it could not be successful. Although Waites maintained that his
attorneys never mentioned the words “sanctions” to him, one of Waites’s
attorneys testified at the hearing that she had “told him on more than one
occasion that we had been possibly sanctioned . . . [and that] it was possible we
would almost have to pay about $7,000.”
      Based on this testimony, the District Judge denied the motion to vacate,
stating:



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                                  No. 12-60236

      This court found [Waites’s counsel’s] testimony to be credible, partly
      due to the fact that its own analysis of the case reveals a lawsuit
      which is rife with difficulties. Indeed, plaintiff’s counsel conceded at
      the hearing that his case had “problems,” which is likely an
      understatement. This court might be more willing to give plaintiff
      the benefit of the doubt if it were faced with a seemingly strong case
      which had inexplicably been dismissed, but such is not the case. In
      sum, this court witnessed testimony which, in its view, credibly
      described a conscious and informed decision by plaintiff to dismiss
      a case which likely should have been dismissed. Plaintiff’s motion
      to reinstate this case to the active docket will therefore be denied.

Waites timely appealed.
                          STANDARD OF REVIEW
      Because Waites’s motion was filed within 28 days of the judgment, it is
treated as a Rule 59(e) motion. FED. R. CIV. P. 59(e); see Williams v. Thaler, 602
F.3d 291, 303 n.7 (5th Cir. 2010); Halicki v. Louisiana Casino Cruises, Inc., 151
F.3d 465, 470 (5th Cir. 1998); see also Templet v. HydroChem Inc., 367 F.3d 473,
483 (5th Cir. 2004) (“Rule 59(e) motions provide relief for the movant on grounds
at least as broad as Rule 60 motions.”). The denial of a motion to alter or amend
a judgment under Federal Rule of Civil Procedure 59(e) is reviewed for abuse of
discretion. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir.
1993).
      “[A] motion to alter or amend the judgment under Rule 59(e) ‘must clearly
establish either a manifest error of law or fact or must present newly discovered
evidence,’ and ‘cannot be used to raise arguments which could, and should, have
been made before the judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d
854, 863-64 (5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990)).    “Reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479.




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                                            No. 12-60236

                                          DISCUSSION
        Waites argues on appeal that a conflict of interest existed between himself
and his lawyers because his attorneys had a “direct financial interest in
obtaining . . . dismissal” of the case. Waites further argues that he was never
informed about the conflict, and therefore failed to give informed consent to his
representation and to the finalized judgment.
        In evaluating conflicts of interest, “courts should first look to ‘the local
rules promulgated by the local court itself,’” In re ProEducation Int’l Inc., 587
F.3d 296, 299 (5th Cir. 2009) (citation omitted), which in this case means that
we look to the Mississippi Rules of Professional Conduct. See U.S. Dist. Ct.
Rules D. Miss. R. 83.5 (“An attorney who makes an appearance in any case in
the district court is bound by the provisions of the Mississippi Rules of
Professional Conduct . . .”). Rule 1.7(b) of the Mississippi Rules of Professional
Conduct states that “A lawyer shall not represent a client if the representation
of that client may be materially limited by . . . the lawyer’s own interests, unless
the lawyer reasonably believes: (1) the representation will not be adversely
affected; and (2) the client has given knowing and informed consent after
consultation.”1
        We need not address whether the avoidance of sanctions created a conflict
of interest between Waites and his attorneys. Even if a conflict was present,
Waites nevertheless fails to demonstrate a “manifest error of law or fact” in the
district court’s decision. Rosenzweig, 332 F.3d at 863 (citation and internal
quotation marks omitted). Although the district court did not directly address
whether a conflict of interest was present, it held an evidentiary hearing to
determine whether Waites was adequately informed of the reasons for


        1
          The Fifth Circuit also looks to the ABA Model Rules of Professional Conduct in evaluating
ethical conflicts. In re ProEducation, 587 F.3d at 299. The relevant model rule, however, is substantially
similar to the Mississippi rule. See MODEL RULES OF PROF’L CONDUCT R. 1.7.

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                                  No. 12-60236

dismissing the case, and whether Waites gave knowing and informed consent to
the dismissal. Based on the evidence presented in the affidavits and during the
hearing, the district court, in its fact finding capacity, credited the testimony of
Waites’s attorney, who explained that Waites was fully informed of all the
reasons for the dismissal, including the avoidance of sanctions. This is sufficient
to show that Waites “consent[ed] to representation despite a possible conflict.”
F.D.I.C. v. U.S. Fire Ins. Co., 50 F.3d 1304, 1314 (5th Cir. 1995) (citing MODEL
RULES OF PROF’L CONDUCT 1.7). Accordingly, the district court did not abuse its
discretion in denying Waites’s motion to vacate the agreed order.
                                 CONCLUSION
      For the reasons given above, the district court’s denial of Waites’s motion
to vacate the agreed order is AFFIRMED.




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