     Case: 17-51103      Document: 00514511780         Page: 1    Date Filed: 06/13/2018




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

                                    No. 17-51103
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         June 13, 2018
                                                                          Lyle W. Cayce
ADAM HERNANDEZ,                                                                Clerk


              Plaintiff - Appellant

v.

SIEMENS CORPORATION; SIEMENS MEDICAL SOLUTIONS USA,
INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CV-539


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Adam Hernandez was treated at the Metropolitan Methodist Hospital in
San Antonio in 2014, where he underwent an MRI exam. He claims the MRI
machine was “manufactured, designed, and/or marketed” by Siemens
Corporation and/or Siemens Medical Solutions USA (collectively, “Siemens”)
and was defective, resulting in personal injuries. Hernandez filed a Texas


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-51103
state court action against Siemens in 2016. Siemens removed the case to
federal court and moved to dismiss the complaint for failure to state a claim.
The district court granted the motion, but permitted Hernandez to amend his
complaint. Hernandez filed an amended complaint, and Siemens again moved
to dismiss the complaint on the same grounds. Hernandez did not file a
response.   Several months later, Hernandez filed a motion that the court
construed as a motion for continuance to either amend the pleadings or
respond to Siemens’s motion to dismiss. Because the motion was signed by an
attorney who was not authorized to appear before the court, Siemens moved to
strike the motion as an unsigned pleading pursuant to Rule 11(a). Hernandez
again failed to respond. Around the same time, Hernandez also filed a motion
to compel the hospital to produce documents related to the MRI machine.
      The district court decided all pending motions together.          It struck
Hernandez’s motion for continuance on the basis that it was untimely,
contained misrepresentations, and was not signed by an attorney authorized
to practice before the court. The district court further granted the motion to
dismiss with prejudice and denied all other pending motions, including the
motion to compel, as moot. Hernandez then moved for a new trial under Rule
59(a). Concluding that Rule 59(a) was inapplicable because no trial had been
held, the court construed Hernandez’s motion as a Rule 59(e) motion to alter
or amend the judgment, and denied it on the grounds that Hernandez
impermissibly sought to use the motion to obtain additional evidence and to
raise constitutional claims for the first time. This appeal followed.
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      Hernandez first challenges the district court’s order striking his motion
for continuance. The district court struck the motion on the basis that it was
“extremely untimely,” misrepresented that Siemens had made a settlement
offer, and was signed by an attorney not authorized to practice before the court.
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                                    No. 17-51103
In concluding that the motion for continuance was untimely, the district court
applied local rule 7(e), which requires that “[a] response to a dispositive motion
shall be filed not later than 14 days after the filing of the motion.” See W.D.
TEX. CIV. R. 7(e); see also W.D. TEX. CIV. R. 7(c) (a motion to dismiss is a
dispositive motion). Given that district courts have “considerable latitude in
applying their own rules,” see McLeod, Alexander, Powel & Apfel, P.C. v.
Quaries, 894 F.2d 1482, 1488 (5th Cir. 1990), the district court did not abuse
its discretion by finding the motion for continuance untimely, see United States
v. Rios-Espinoza, 591 F.3d 758, 760–61 (5th Cir. 2009) (“We review a district
court’s ‘administrative handling of a case, including its enforcement of the local
rules ... for abuse of discretion.’”).
      Furthermore, Rule 11 requires that “every pleading, written motion, and
other paper must be signed by at least one attorney of record in the attorney’s
name.” FED. R. CIV. P. 11(a). Courts “must strike an unsigned paper unless
the omission is promptly corrected” after the attorney is notified. Id. Because
Hernandez’s counsel did not respond to Siemens’s Rule 11 motion regarding
the deficiency in his motion for continuance, or take any action to correct the
deficiency despite ample opportunity to do so, we affirm the district court’s
decision to strike the motion for continuance on this basis. See Fletcher v.
United States, 452 F. App’x 547, 553 (5th Cir. 2011) (affirming the district
court’s decision to “unfile” unsigned motions pursuant to Rule 11(a) where the
moving party was given notice and an opportunity to correct the defects).
      Hernandez next challenges the district court’s dismissal of his second
amended complaint.        We review the dismissal of a complaint under Rule
12(b)(6) de novo. See St. Germain v. Howard, 556 F.3d 261, 262 (5th Cir. 2009).
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). To survive a Rule
12(b)(6) motion, the complaint must contain “more than labels and
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conclusions,” or “a formulaic recitation of the elements of a cause of action.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must state a facially
plausible claim that allows for reasonable inferences to be drawn regarding the
defendant’s liability for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Hernandez’s amended complaint alleges only that “[b]ecause
Siemens’ MRI machine was defectively designed, manufactured and/or
marketed, it severely burned and otherwise injured the Plaintiff, causing the
severe burns, permanent, painful, and disabling personal injuries resulting in
damages sought in this lawsuit.” Because Hernandez’s factual allegations are
scant and conclusory, they do not state a facially plausible claim allowing for
reasonable inferences to be drawn regarding Siemens’s liability for
Hernandez’s alleged injuries. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S.
at 678. Hernandez has therefore failed to state a claim upon which relief could
be granted, and the district court properly dismissed his complaint. See FED.
R. CIV. P. 12(b)(6); Iqbal, 556 U.S. at 678 (“The tenet that a court must accept
a complaint’s allegations as true is inapplicable to threadbare recitals of a
cause of action’s elements, supported by mere conclusory statements.”).
      Additionally, to the extent Hernandez seeks to challenge the court’s Rule
59 rulings, we agree with the district court that Rule 59(a) does not apply
where no trial has taken place, see FED. R. CIV. P. 59(a) (“the court may grant
a new trial . . . after a jury trial . . . or after a nonjury trial”), and Rule 59(e) is
not the proper vehicle to seek new evidence or challenge the constitutionality
of the Federal Rules of Civil Procedure, see Templet v. HydroChem Inc., 367
F.3d 473, 479 (5th Cir. 2004) (Rule 59(e) is an “extraordinary remedy” that
“serve[s] the narrow purpose of allowing a party to correct manifest errors of
law or fact or to present newly discovered evidence.”).
      For these reasons, we AFFIRM.


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