### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-30586 Summary Calendar

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 U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Februa ry 7, 201 3 Lyle W . Cayce Clerk Case: 12-30586 Document: 00512138089 Page: 1 Date Filed: 02/07/2013No. 12-30586

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Gene Weeks settled his Vioxx-related c l a i m s against Merck & Company for $285,000. Appellant Ronald Be nj a m i n 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 adopt e d 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 Vio xx . T ej e dor 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 aga i n s t Vi o xx in exchange for his participation in t h e p r ogram. Tejedor signed an accompanying document representing that Weeks “has at all relevant times been represen t e d the undersigned counsel.” Tejedor informed Weeks in a letter dated May 5, 2009 tha t she had obtained from the Vioxx claims administrator a notice that he was eligible for a

Pur sua nt to 5 T H C IR . R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 2 Case: 12-30586 Document: 00512138089 Page: 2 Date Filed: 02/07/2013No. 12-30586

settlement award. Tejedor then informed Weeks in a letter dated May 12, 2009 that he had received an award of about $ 2 3 0 , 0 0 0

. The letter provided that Weeks would have until May 23, 2009 to appeal the award. It al s o i n di c a t e d that the Vioxx claims administrator had reduced the amou n t o f 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 rep r e s e n tation in this case.” Weeks continued: “Any actions by your firm concerning my ca s e 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. The claims administrator 1 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. Benjamin argued 2 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.

Tejed or expla ins that she app ealed the init ial aw ard des pit e Week s’ letter beca use she 1
wa s st ill couns el of rec ord , and the dea dli ne to app eal wa s app roac hing. She add s tha t s he tri ed to cont actWe ek s, butt hat he didno t res pond

. Tejed or st ates that she did not lear n about Benjam in’s mo tio ns until aft er the clai ms 2 adm inis tra tors ent noti ce of the fina l a wa rd

. The rec ord is not clea r as to wh y or wh e n W e e k s d e c i d ed to hire Benjam in. The 3 dis tri ct cour t obs erved : “Whi le his clai m wa s being revie we d by the Claim s Adm inis tra tor , Mr

. Week s app aren tly belie ved that his claimhad been conc lus ively rejec tedand dec ide d to hir e RonaldBenjami n t o r epr es ent himin st eadof M s. Teje dor .” 3 Case: 12-30586 Document: 00512138089 Page: 3 Date Filed: 02/07/2013No. 12-30586

The district court denied the motion to rescind, findi n g t h a t Weeks voluntarily enrolled in the settlemen t 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. Week s a n d 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 t h e 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 acc e p t , 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 W eeks about $185,000. Weeks signed a “ c l o s ing 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 wi t h t h e di s trict court. The district court in March 2010 referred Tejedor’s claim to a special master appointed to evalu at e di s puted attorney’s fees and costs related to the Vioxx settlement program. 4

Aft e r t h e d i s t r ict cour t ref err ed the lien to the sp ecia l mas ter , Benjam in fil ed in 4 August 2010 a mo tio n for sum mary judgm ent wi th the dis tri ct cour t se ek ing dis mi ss al of Tejed or’ s clai m for att orne y’s fee s. The dis tri ct cour t, in tur n, ref e r r e d t h e m o t ion to the sp ecia l mas ter

. Benjam in then fil ed a mo tion on Oc tobe r 6, 2010—thir tee n days bef ore the sp ecia l mas ter ’s sc hedu led fina l hearing—t o st ay or adjou rn the hearing pend ing the sum mary judgm ent m oti on. The dis tri ct cour t deni ed the mo tio n to st ay or adjou rn on Oc tobe r 14, 2010—five days bef

ore the hearing—f

indi ng that ther e wa s no reas on to inte rf ere wi th the sp ecia l mas ter ’s handl ing of the att orne y’s fee dis put e. The sp ecia l mas ter deni ed Benjam in’s mo tio n for sum mary judgm ent in his rep ort and rec om me ndat ion dec idi ng the dis put e on the me rit s. 4 Case: 12-30586 Document: 00512138089 Page: 4 Date Filed: 02/07/2013No. 12-30586

The special master notified the parties that they had to attend an i n 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 a n d 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 s e t t l e m e nt award. He also found that “[t]here is

no evidence whatsoever that any involvement or effort by Ronald Benjamin assis t e d i n t he 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 F E D
. R. C I V
. 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 Benja min’s “account of the underlying handling of Mr. Weeks’ claim is entirely speculative

a n d n o t supported by evidence or testimony adduced at the Special Master’s hearing.” H o w ever, the district court declined to uphold the special master’s imposition of san c t i o n s , finding that “although Mr. Benjamin’s conduct was

u n w arranted and inappropriate, it is sufficient to award the entirety o f th e disputed lien to Ms. Tejedor.” Benjamin appeals t h e 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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2. Standard of Review This court reviews an award o f a ttorney’s fees for abuse of discretion, reviewing factual findings for clea r error and legal conclusions de novo . Dearmore v. City of Garland , 519 F.3d 517, 520 (5th Cir. 200 8). 3. The Attorney’s Fee Award The district court di d 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 s e t t l e m e nt 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 s e n t his own letter to Teje d o r s t ating 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 m a s t e r r eceived evidence showing that Tejedor: entered into a written agreement to represent Weeks in his claims against Merck; fil e d 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; o b t a i n e d an increase in the amount of the award; a n d di sbursed the award to Weeks. By contrast, Benjamin’s work on behalf of Weeks—filing a m o tion 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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to deny it in the adopted report a n d r e c o m m e ndation. He also contends that 5 Tejedor’s failure to oppose t h e 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

s pecial master considered his motion, there would have been no need for the final hearing. The scheduling order did not, however , al l o w for motion practice. The order made clear t h e p a rties’ arguments were to be set forth in memorandum submitted with their evidence binders. We cannot say, in the context of multidistrict litigation, that t h e s p ecial master abused his discretion in making procedural decisions to streamline the process for awarding attorney’s fees. See F E D
. R

. C I V
. 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 “Resp onse to Ronald Benjamin’s Memora n d u m 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 F E D
. R. C IV
. 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 no t r eceive sufficient notice that the special master would accept evi d e n c e at the October 19 hearing. He observes that the scheduling order specified that “all testimony and evid e n c e being submitted must be received by the Special Master no later than September

To the extent that Benjam in fr ame s his ap peal a s a c hallen ge to the dis tri ct cour t’s 5 inde pend ent deni al of his m o t i o n f o r sum mary judgm ent, we “d ecli ne to revie w the dis tri ct cour t’s deni al of mo tio ns for sum mary jud gmen t wh en the cas e com es to us on the mo vant’s app eal fol low ing advers e jud gmen t” aft er a d ecis ion on the me rit s. Bla ck v. J. I. CaseCo. , 22 F.3d 568, 572 (5t h Cir. 1994) ; see also Becke r v. Ti dew ater, Inc. , 586 F.3d 358, 365 n.4 (5t h Cir. 2009)

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20, 2010 ” and that “[p]arties will not be allowed to submit any additional

e vi d e n c e or testimony at the hearing.” However, the scheduling order, whic h made clear that Benjamin’s “perso n a l a ppearance” 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 a c t e d w ithin the confines of the order by asking Tejedor questions. Although Tejedor di d t estify during the hearing, her statements did not constitute “additional evidence or testimon y” b e cause 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 document s r e quir e d b y the

s ch e duling order, admit “additional evidence” bec au s e th e docu m e nt s in qu e s tio n 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 Tej e d o r 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 [counse l] r ecommends that there will be no more action s f r o m yo ur firm on my behalf.” However, Benjamin has not demonstrated that he properly submitted this evidence to the special master. To the extent, then, that w e consider his evidence, which was included in exhibits t o B enjamin’s motion to vacate or rescind Weeks’ participation in the s e t t l e m ent 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 settlem e n t a w ard, Weeks told Tejedor that she had “ea r n e d [h e r] fee.” Therefore, we cannot say that the special master’s recommendatio n to aw ard 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 , c u l minated 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.” F E D
. R. AP P
. 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. 198 3). We deny Tejedor’s motion for appellate attorney’s fees and costs because at least some of Benjamin’s arguments are not “frivolous” under F E D
. R. AP P
. P. 38. F o r example, Benjamin’s evidence showing uncertainty as to the status of Tejedor’s relationship with Weeks, while not persuasive or properly submitted, rais e s qu e s t i o n s about her claim to the attorney’s fee award that are at least “arguable on their merits.” See Hagerty , 7 4 9 F.2d at 222. As the district court observed in declining to impose sanctions on Benjamin, “although [his] conduct

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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 t h e 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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