IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10169

Summary Calendar

STEPHEN M. AVDEEF, Individually and

as next friends of A.A., a minor;

MELISSA A. AVDEEF, Individually and

as next friends of A.A., a minor;

SHIRLEY A. AVDEEF

Plaintiffs-Appellants

v.

ROCKLINE INDUSTRIES, INC.;

SAM’S EAST INC., doing business as

Sam’s Club; WAL-MART STORES TEXAS LLC

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:08-cv-2157

Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.

PER CURIAM:

*

United States Court of Appeals

Fifth Circuit

F I L E D

December 8, 2010

Lyle W. Cayce

Clerk

 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.

Case: 10-10169 Document: 00511316382 Page: 1 Date Filed: 12/08/2010
No. 10-10169

Stephen M. Avdeef, Melissa A. Avdeef, and Shirley A. Avdeef

(“Appellants”), proceeding pro se, appeal the district court’s grant of summary

judgment in favor of defendants Rockline Industries, Inc., Sam’s East, Inc. d/b/a

Sam’s Club, and Wal-Mart Stores Texas, LLC (“Appellees”). At the district

court, Appellants alleged a series of claims for injuries suffered after being

exposed to baby wipes allegedly contaminated with B. cepacia bacteria.

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Appellees–who designed, manufactured, packaged, marketed, distributed, and

sold the wipes–moved for summary judgment on Appellants’ claims. The district

court granted Appellees’ motion for summary judgment and dismissed

Appellants’ claims with prejudice. This appeal followed.

Appellants claim to raise three issues on appeal, all of which are without

merit. The first two issues essentially amount to a claim of judicial bias, the

appropriate remedy for which would be recusal. Appellants did not, however,

seek recusal at the district court, and thus we decline to entertain this argument

on appeal. Appellants have not shown good cause for not filing an affidavit

requesting the trial judge to recuse himself pursuant to 28 U.S.C. § 144, nor

exceptional circumstances why we should consider this issue for the first time

now. See Clay v. Allen, 242 F.3d 679, 681 (5th Cir. 2001). Thus, this issue is

waived.

The third issue relates to the district court’s grant of summary judgment

against Appellants’ claims. This court reviews grants of summary judgment de

novo, applying the same standards as the district court. Chieftain Int’l (U.S.),

Inc. v. Se. Offshore, Inc., 553 F.3d 817, 819 (5th Cir. 2008). The applicable

The claims alleged were: product liability, negligence and gross negligence, common

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law fraud, breach of contract, violation of the Texas Deceptive Trade Practices Act (“DTPA”),

breach of express warranty, breach of implied warranty of merchantability, and breach of the

implied warranty of fitness. Appellees were originally suing on behalf of their daughter, but

the district court properly dismissed their “next friend” status when they became pro se

plaintiffs. This dismissal is not appealed. 

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Case: 10-10169 Document: 00511316382 Page: 2 Date Filed: 12/08/2010
No. 10-10169

standard indicates that summary judgment is appropriate against a party who

“fails to make a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear the burden of

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552

(1986). Here, an essential element of all Appellants’ claims required proof that

the wipes in question were contaminated.

In moving for summary judgment, Appellees offered evidence that the

wipes were not contaminated. They submitted lab results from Accutrace

Testing–which disclosed no evidence of bacteria on the wipes that Appellants

had turned over for testing–and two letters regarding the recall and an affidavit

suggesting that the baby wipes complained of by Appellants were not included

within the recall by the manufacturer. Once Appellees offered this evidence, the

burden shifted to Appellants to provide competent summary judgment evidence

establishing the existence of a genuine fact issue. See Matsushita Elec. Indus.

Co. v. Zenith Radio, 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356 (1986). Despite

this burden, Appellants offered no affirmative evidence admissible in court and

tending to show the wipes were contaminated. Appellants instead rely upon

bald assertions that the district court should not have trusted the credibility of

the author of the affidavit, Alan Perlman, and that the Accutrace Testing results

were unreliable. However, conclusory allegations that a witness lacks credibility

cannot defeat a motion for summary judgment. Thomas v. Great Atl. & Pac. Tea

Co., Inc., 233 F.3d 326, 331 (5th Cir. 2000). And, since Appellants fail to provide

any evidence showing that the Accutrace Testing results were incorrect or that

the wipes were contaminated, they fail to raise any issue of material fact.

We thus AFFIRM the district court’s grant of summary judgment.

AFFIRMED.

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Case: 10-10169 Document: 00511316382 Page: 3 Date Filed: 12/08/2010