Stephen Avdeef v. Rockline Industries, Inc., et al

Filing

UNPUBLISHED OPINION FILED. [13-10512 Affirmed] Judge: PEH , Judge: JLD , Judge: JEG. Mandate pull date is 02/28/2014; denying motion for damages Rule 38 filed by Appellees Mr. Patrick William Powers and Mr. Peyton Jameson Healey [7453701-2], denying motion for damages Rule 38 filed by Appellees Mr. Gary Dale Elliston, Ms. Pamela Jean Neale Williams and Ms. Courtney Gene Bowline [7449547-2] [13-10512]

Case: 13-10512

Document: 00512526643

Page: 1

Date Filed: 02/07/2014

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

No. 13-10512
Summary Calendar

FILED
February 7, 2014
Lyle W. Cayce
Clerk

STEPHEN M. AVDEEF,
Plaintiff - Appellant

v.

ROCKLINE INDUSTRIES, INCORPORATED; SAM’S EAST INC, doing
business as Sam’s Club; WALMART STORES, INCORPORATED; PATRICK
W. POWERS, Individually and as a former partner of Cash, Klemchuk,
Powers, Taylor, L.L.P., also known as Powers, Taylor, L.L.P.; PEYTON J.
HEALEY, Individually and as a member of Powers, Taylor, L.L.P.; GARY D.
ELLISTON, Individually and as Partner of the Law Firm of Dehay &
Elliston, L.L.P.; PAMELA J. WILLIAMS, Individually and as Partner of the
Law Firm of Dehay & Elliston, L.L.P.; COURTNEY G. BOWLINE,
Individually and former Member of the Law Firm of Dehay & Elliston, L.L.P.;
ALAN PERLMAN, Individually and in his Capacity as Technical Director of
Rockline Industries,
Defendants - Appellees

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CV-879
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Date Filed: 02/07/2014

No. 13-10512
Stephen M. Avdeef, proceeding pro se, appeals the district court’s
granting of motions to dismiss in favor of the appellees and denial of his motion
for reconsideration.
In 2008, Avdeef (along with two other plaintiffs) filed a lawsuit in federal
district court in his individual capacity and as next friend of his minor
daughter, A.A., against three of the appellees: Rockline Industries, Inc.
(“Rockline”), Sam’s East, Inc, d/b/a Sam’s Club (“Sam’s Club”), and Wal-Mart
Stores Texas, LLC. 1 The claims arose from the purchase of baby wipes from
Sam’s Club; the plaintiffs contended that the wipes were contaminated with
B. Cepacia bacteria, and that their use had led to the plaintiffs and A.A.
becoming “increasingly ill, suffering cold and flu-like symptoms, urinary tract
infections, severe upper respiratory infections, and digestive illnesses.” 2 The
district court concluded that since the plaintiffs were proceeding pro se, they
had no standing to bring any claims on A.A.’s behalf and dismissed those
claims without prejudice. 3 As to the other plaintiffs, the district court granted
the defendants summary judgment on all claims. 4 On appeal, in Avdeef v.
Rockline Industries, Inc. (Avdeef I), 5 we affirmed the district court because the
defendants had offered evidence the wipes were not contaminated and evidence
that the wipes the plaintiffs were complaining of were not included in a recall
by the manufacturer. 6

See Avdeef v. Rockline Indus., Inc., No. 3:08-CV-2157, 2010 WL 343484 (N.D. Tex.
Jan. 29, 2010). The plaintiffs had brought their original complaint against Walmart Stores,
Incorporated (“Walmart”) just as in this case, but the district court had corrected the name
at the defendant’s behest. Id. at *1 n.2.
2 Id. at *1.
3 Id. (noting that since A.A. was a minor, her claims would be tolled and could be
reasserted by an appointed or retained attorney or when she reaches majority).
4 Id. at *7.
5 404 F. App’x 844 (5th Cir. 2010).
6 Id. at 844–45.
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No. 13-10512
Subsequently, in 2012, Avdeef brought a Texas state court action against
one of the other appellees, Patrick W. Powers, his former attorney in Avdeef I. 7
Avdeef contended that Powers violated the Texas Disciplinary Rules of
Professional Conduct and the Texas Civil Practice and Remedies Code § 41.001
et. seq. and was thus entitled to recover exemplary damages. 8 The trial court
granted Powers’s motion for summary judgment and the Texas court of appeals
affirmed in Avdeef v. Powers (Avdeef II). 9
Next, Avdeef brought the present lawsuit against several defendants. As
relevant to this appeal, the following defendants were named in the complaint:
First, the original defendants from Avdeef I, Rockline, Sam’s Club, and
Walmart. Second, Alan Perlman, Rockline’s former Technical Director. Third,
Gary D. Elliston, Pamela J. Williams, and Courtney G. Bowline, who
represented the Avdeef I defendants (“the DeHay defendants”). Fourth, Powers
and Peyton J. Healey, who represented Powers in Avdeef II. The district court
granted the defendants’ motions to dismiss and denied Avdeef’s motion for
reconsideration.
Upon careful consideration of the parties’ briefs and the record, we find
no error in the district court’s granting of motions to dismiss and denial of the
motion for reconsideration. Therefore, we affirm the district court’s judgment.
Similarly, upon review of the pending motions for damages under Federal Rule
of Appellate Procedure 38, we deny these motions.
*

*

*

IT IS ORDERED that the judgment of the district court is AFFIRMED.

See Avdeef v. Powers, No. 05-11-01369-CV, 2012 WL 3115067 (Tex. App.—Dallas
July 11, 2012).
8 Id. at *1.
9 No. 05-11-01369-CV, 2012 WL 3115067 (Tex. App.—Dallas July 11, 2012).
7

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Date Filed: 02/07/2014

No. 13-10512
IT IS ORDERED that the opposed motion of appellees Courtney Gene
Bowline, Gary Dale Elliston and Pamela Jean Neale Williams for damages
under Rule 38 is DENIED.
IT IS FURTHER ORDERED that the opposed motion of appellees
Peyton Jameson Healey and Patrick William Powers for damages under
Rule 38 is DENIED.

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