      Case: 12-30586          Document: 00512138089              Page: 1      Date Filed: 02/07/2013




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

                                                                                        FILED
                                                                                     February 7, 2013
                                          No. 12-30586
                                        Summary Calendar                              Lyle W. Cayce
                                                                                           Clerk

IN RE: VIOXX PRODUCTS LIABILITY LITIGATION

------------------------------------------------------------------------------------------------------------

GENE WEEKS,

                                                          Plaintiff,


RONALD R. BENJAMIN,

                                                          Appellant,

v.

MERCK AND COMPANY, INCORPORATED,

                                                          Defendant,

v.

MARIA D. TEJEDOR,

                                                          Appellee.



                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:05-MD-1657
                                USDC No. 2:05-CV-4578
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                                       No. 12-30586

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
         Gene Weeks settled his Vioxx-related claims against Merck & Company
for $285,000. Appellant Ronald Benjamin and Appellee Maria Tejedor both
claimed to represent Weeks in connection with his settlement. Each argued that
he or she deserved the resulting $67,500 in attorney’s fees. The district court
adopted a special master’s report and recommendation awarding the fees to
Tejedor. We AFFIRM. We also DENY Tejedor’s motion for attorney’s fees and
costs.
1. Facts and Proceedings
         Gene Weeks suffered a heart attack in March 2004 after taking Vioxx for
years. Weeks signed an agreement in September 2005 giving attorney Maria
Tejedor the authority to represent him in claims against Merck & Company, the
manufacturer of Vioxx. Tejedor proceeded to file a products liability lawsuit
against Merck on behalf of Weeks in September 2005.
         Tejedor sent Weeks a letter in November 2007 informing him of Merck’s
settlement program and “strongly reccomend[ing]” that he participate. Weeks,
representing that he had read the settlement information provided by Tejedor,
signed an agreement to participate in the program. Weeks then signed in
January 2008 a release of all his claims against Vioxx in exchange for his
participation in the program.          Tejedor signed an accompanying document
representing that Weeks “has at all relevant times been represented the
undersigned counsel.”
         Tejedor informed Weeks in a letter dated May 5, 2009 that she had
obtained from the Vioxx claims administrator a notice that he was eligible for a


         *
         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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settlement award. Tejedor then informed Weeks in a letter dated May 12, 2009
that he had received an award of about $230,000. The letter provided that
Weeks would have until May 23, 2009 to appeal the award. It also indicated
that the Vioxx claims administrator had reduced the amount of Weeks’ award
because of his high cholesterol.
       Weeks informed Tejedor in a signed, three-sentence letter dated May 14,
2009 that “I no longer require your representation in this case.”                      Weeks
continued: “Any actions by your firm concerning my case shall be deemed
unauthorized by me. I am currently being represented by another firm.” There
were no attachments or enclosures to the letter.
       Tejedor nonetheless appealed the amount of the initial award to the Vioxx
claims administrator, writing in a letter dated May 20, 2009 that she believed
the reduction for high cholesterol was in error.1 The claims administrator
agreed, and increased Weeks’ award to $285,000 in a notice dated May 27, 2009.
       On April 22, 2009—after Weeks had signed the release of his claims, but
before Weeks had received his award—attorney Ronald Benjamin filed a motion
to vacate and rescind Weeks’ participation in the settlement.2 Benjamin argued
that Weeks’ participation in the settlement was not voluntary, but the result of
Tejedor’s “repeatedly cajol[ing] him into signing onto the settlement program.”3
Benjamin stated in the motion that he was representing Weeks.



       1
         Tejedor explains that she appealed the initial award despite Weeks’ letter because she
was still counsel of record, and the deadline to appeal was approaching. She adds that she
tried to contact Weeks, but that he did not respond.
       2
       Tejedor states that she did not learn about Benjamin’s motions until after the claims
administrator sent notice of the final award.
       3
          The record is not clear as to why or when Weeks decided to hire Benjamin. The
district court observed: “While his claim was being reviewed by the Claims Administrator, Mr.
Weeks apparently believed that his claim had been conclusively rejected and decided to hire
Ronald Benjamin to represent him instead of Ms. Tejedor.”

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       The district court denied the motion to rescind, finding that Weeks
voluntarily enrolled in the settlement program, and that his decision to do so
was irrevocable. Relevant to this case, the district court found that “Ms. Tejedor
was Mr. Weeks[’] attorney at the time of [his] decision” to sign the release. The
court also found, however, that “it is clear that the attorney-client relationship
between Mr. Weeks and Ms. Tejedor was terminated on or before May 14,
2009”—the date of Weeks’ letter informing Tejedor that he “no longer require[d]
[her] representation.” The court explained that “[i]f Ms. Tejedor feels that she
is entitled to fees for the work that she completed on Mr. Weeks[’] case, the
appropriate remedy is to assert a lien.” The court declined to impose sanctions
on either party.
       Weeks proceeded to accept, through Tejedor, the settlement.                    After
deducting her own costs and attorney’s fees—twenty-four percent of the
settlement, or about $67,500—Tejedor sent to Weeks about $185,000. Weeks
signed a “closing statement” in March 2010 confirming that he did not oppose
the deductions.
       Tejedor put her costs and fees in a trust account, and then filed a lien for
the amount with the district court. The district court in March 2010 referred
Tejedor’s claim to a special master appointed to evaluate disputed attorney’s fees
and costs related to the Vioxx settlement program.4




       4
         After the district court referred the lien to the special master, Benjamin filed in
August 2010 a motion for summary judgment with the district court seeking dismissal of
Tejedor’s claim for attorney’s fees. The district court, in turn, referred the motion to the
special master. Benjamin then filed a motion on October 6, 2010—thirteen days before the
special master’s scheduled final hearing—to stay or adjourn the hearing pending the summary
judgment motion. The district court denied the motion to stay or adjourn on October 14,
2010—five days before the hearing—finding that there was no reason to interfere with the
special master’s handling of the attorney’s fee dispute. The special master denied Benjamin’s
motion for summary judgment in his report and recommendation deciding the dispute on the
merits.

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      The special master notified the parties that they had to attend an in-
person meeting on September 13, 2010. Benjamin did not attend the meeting.
The special master also issued a scheduling order requiring the parties to
provide certain documents, including an initial memorandum and evidence
binder, and to attend an in-person final hearing on October 19, 2010. Benjamin
did not provide the requested documents, and did not attend the final hearing.
      The special master awarded Tejedor the entire attorney’s fee award. He
found that Tejedor represented Weeks during the settlement process, and that
her efforts culminated in the settlement award. He also found that “[t]here is
no evidence whatsoever that any involvement or effort by Ronald Benjamin
assisted in the obtaining of the award for Mr. Weeks.” The special master
imposed sanctions on Benjamin, finding a “flagrant abuse and disregard of the
judicial process.”
      The district court, reviewing under FED. R. CIV. P. 53(f) the special
master’s findings of fact and law de novo, and the procedure used by the special
master for abuse of discretion, adopted the special master’s recommendation
awarding the attorney’s fees to Tejedor. The district court found that Benjamin’s
“account of the underlying handling of Mr. Weeks’ claim is entirely speculative
and not supported by evidence or testimony adduced at the Special Master’s
hearing.” However, the district court declined to uphold the special master’s
imposition of sanctions, finding that “although Mr. Benjamin’s conduct was
unwarranted and inappropriate, it is sufficient to award the entirety of the
disputed lien to Ms. Tejedor.”
      Benjamin appeals the district court’s order, challenging the decision to
award attorney’s fees to Tejedor, along with the procedure used by the special
master to reach that decision.




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                                  No. 12-30586

2. Standard of Review
      This court reviews an award of attorney’s fees for abuse of discretion,
reviewing factual findings for clear error and legal conclusions de novo.
Dearmore v. City of Garland, 519 F.3d 517, 520 (5th Cir. 2008).
3. The Attorney’s Fee Award
      The district court did not err in awarding attorney’s fees to Tejedor
because Tejedor’s work on behalf of Weeks culminated in his settlement award.
The representation contract provided that, if Weeks discharged Tejedor for “any
reason,” Tejedor would “be entitled to a fee based on . . . any offer of settlement
outstanding, or if no offer of settlement is outstanding, a reasonable fee based
on the amount of time my attorney(s) spent on my case plus all costs and
interest.” Tejedor informed Weeks that he had received a settlement award in
a letter dated May 12, 2009—two days before Weeks sent his own letter to
Tejedor stating that he “no longer require[d] [her] representation in” the case.
To the extent that the proposed settlement award was not an “offer of settlement
outstanding,” the $67,500 attorney’s fee award was a “reasonable fee” based on
the amount of time Tejedor spent on the case. The special master received
evidence showing that Tejedor: entered into a written agreement to represent
Weeks in his claims against Merck; filed a products liability lawsuit against
Merck on his behalf; advised Weeks when he signed a release of his claims;
secured Weeks’ eligibility for a settlement award; obtained an increase in the
amount of the award; and disbursed the award to Weeks.               By contrast,
Benjamin’s work on behalf of Weeks—filing a motion to vacate and rescind
Weeks’ participation in the settlement—focused on opposing settlement efforts.
      Benjamin argues that the special master and, correspondingly the district
court, erred by failing to consider his motion for summary judgment, other than




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                                        No. 12-30586

to deny it in the adopted report and recommendation.5 He also contends that
Tejedor’s failure to oppose the motion “should have resulted in summary
judgment being entered in Benjamin’s favor based on the undisputed facts that
would properly be admitted and were dispositive.” He maintains that, had the
special master considered his motion, there would have been no need for the
final hearing.
       The scheduling order did not, however, allow for motion practice. The
order made clear the parties’ arguments were to be set forth in memorandum
submitted with their evidence binders. We cannot say, in the context of multi-
district litigation, that the special master abused his discretion in making
procedural decisions to streamline the process for awarding attorney’s fees. See
FED. R. CIV. P. 53(f)(5). To the extent, then, that we consider Benjamin’s
argument that Tejedor did not respond to his summary judgment motion, the
record shows that Tejedor did in fact respond in a filing titled “Response to
Ronald Benjamin’s Memorandum of Law,” and an accompanying affidavit.
Further, to the extent that we consider his argument that there would have been
no need for the final hearing, the record is clear that there is a “genuine dispute
as to any material fact,” see FED. R. CIV. P. 56(a), as to Benjamin’s claim to the
attorney’s fee award for the reasons discussed above.
       Benjamin also argues that he did not receive sufficient notice that the
special master would accept evidence at the October 19 hearing. He observes
that the scheduling order specified that “all testimony and evidence being
submitted must be received by the Special Master no later than September


       5
         To the extent that Benjamin frames his appeal as a challenge to the district court’s
independent denial of his motion for summary judgment, we “decline to review the district
court’s denial of motions for summary judgment when the case comes to us on the movant’s
appeal following adverse judgment” after a decision on the merits. Black v. J.I. Case Co., 22
F.3d 568, 572 (5th Cir. 1994); see also Becker v. Tidewater, Inc., 586 F.3d 358, 365 n.4 (5th Cir.
2009).

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20, 2010” and that “[p]arties will not be allowed to submit any additional
evidence or testimony at the hearing.” However, the scheduling order, which
made clear that Benjamin’s “personal appearance” was “mandatory,” also
provided that the special master “reserves the right to pose any questions to any
of the participants at the hearing.” The transcript of the October 19 hearing is
clear that the special master acted within the confines of the order by asking
Tejedor questions.    Although Tejedor did testify during the hearing, her
statements did not constitute “additional evidence or testimony” because they
merely summarized the contents of her evidence binder, which she had already
submitted to the special master, along with her communications with Benjamin
related to the hearing. The transcript also is clear that the special master did
not, by admitting into evidence orders by the district judge, the scheduling order,
communications relating to the scheduling order, and documents required by the
scheduling order, admit “additional evidence” because the documents in question
already were before him.
      Benjamin argues in substance that he deserves the attorney’s fee award
because Tejedor “abandon[ed]” Weeks as a client in January 2009. Specifically,
Benjamin contends: that Tejedor told Weeks in a January 7 meeting that she
would no longer represent him; that Tejedor sent Weeks a letter dated January
16 stating that “you have elected to allow us to withdraw as your counsel and
you have elected to seek alternative counsel to file your lawsuit”; and that Weeks
sent Tejedor an e-mail on January 23 stating “my new [counsel] recommends
that there will be no more actions from your firm on my behalf.” However,
Benjamin has not demonstrated that he properly submitted this evidence to the
special master. To the extent, then, that we consider his evidence, which was
included in exhibits to Benjamin’s motion to vacate or rescind Weeks’
participation in the settlement program, it shows at best that there was
uncertainty as to Tejedor’s relationship with Weeks in January 2009. It does not

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show that his work contributed in any way to Weeks’ settlement award. It also
does not rebut the evidence before the special master, discussed above, showing
that Tejedor’s efforts—many of which were undertaken before January
2009—culminated in the award. Further, Tejedor presented to the special
master evidence showing that she did not withdraw from representing Weeks in
January 2009, but instead explained to Weeks that, if he wanted to pursue a tort
action against Merck, he would have to obtain a different lawyer. Tejedor also
presented evidence that, after receiving the settlement award, Weeks told
Tejedor that she had “earned [her] fee.” Therefore, we cannot say that the
special master’s recommendation to award the attorney’s fees to Tejedor, and the
district court’s adoption of this recommendation, was in error.
      In sum, the district court did not err in awarding the attorney’s fee award
to Tejedor because her efforts, and not Benjamin’s, culminated in Weeks’
settlement award.
4. Tejedor’s Motion for Appellate Attorney’s Fees and Costs
      “If a court of appeals determines that an appeal is frivolous, it may, after
a separately filed motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs to the appellee.” FED. R.
APP. P. 38. An appeal is frivolous if it “involves legal points not arguable on their
merits.” Hagerty v. Succession of Clement, 749 F.2d 217, 222 (5th Cir. 1984); see
also Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
      We deny Tejedor’s motion for appellate attorney’s fees and costs because
at least some of Benjamin’s arguments are not “frivolous” under FED. R. APP. P.
38. For example, Benjamin’s evidence showing uncertainty as to the status of
Tejedor’s relationship with Weeks, while not persuasive or properly submitted,
raises questions about her claim to the attorney’s fee award that are at least
“arguable on their merits.” See Hagerty, 749 F.2d at 222. As the district court
observed in declining to impose sanctions on Benjamin, “although [his] conduct

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                                 No. 12-30586

was unwarranted and inappropriate, it is sufficient to award the entirety of the
disputed lien to Ms. Tejedor.”
      In sum, we deny Tejedor’s motion for appellate attorney’s fees and costs
because at least some of Benjamin’s argument are not frivolous.
5. Conclusion
      Accordingly, we AFFIRM the district court’s award of attorney’s fees to
Tejedor. We also DENY Tejedor’s motion for appellate attorney’s fees and costs.




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