United States Court of Appeals

for the Fifth Circuit

No. 21-30626

Summary Calendar

Sam Celino, Sr.; Sam Celino, Jr.; Christian Celino; 

Colin Celino, 

Plaintiffs—Appellants,

versus

Biotronik, Incorporated, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:20-CV-2298

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

After the district court granted Defendant-Appellant Biotronik’s 

unopposed motion for summary judgment, Plaintiffs-Appellants (Plaintiffs) 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 9, 2022

Lyle W. Cayce

Clerk

Case: 21-30626 Document: 00516311034 Page: 1 Date Filed: 05/09/2022
No. 21-30626

2

filed a motion for reconsideration, which the district court denied. Plaintiffs 

appeal the denial of that motion. We AFFIRM.

I.

In June 2020, Plaintiffs, the survivors of Barbara Celino, sued 

Biotronik in Louisiana state court. Plaintiffs alleged that Celino had received 

a cardioverter defibrillator that was defectively manufactured and designed 

by Biotronik, and they asserted claims for products liability, unfair trade 

practices, breach of contract, and wrongful death.

Biotronik removed the case to federal court and filed a motion to 

dismiss. The district court granted the motion in part, dismissing with 

prejudice all of Plaintiffs’ claims except for their design defect claim. The 

court explained that while Plaintiffs had not stated a sufficient design defect

claim, it would allow them “one more opportunity to amend this claim.”

After Plaintiffs filed an amended complaint, Biotronik filed another 

motion to dismiss. The district court then held a telephone conference with 

the parties in which it explained that while it was denying Biotronik’s motion 

to dismiss, “it would entertain a motion for summary judgment.” The court 

ordered that Biotronik could file a summary judgment motion no later than 

July 6, 2021 and that Plaintiffs “shall file their opposition, if any, no later than 

Tuesday, July 13, 2021.” Plaintiffs did not object.

Biotronik timely filed its motion for summary judgment. Plaintiffs 

neither filed an opposition nor requested an extension of time. Accordingly, 

the district court treated “the motion as unopposed,” and it dismissed 

Plaintiffs’ design defect claim with prejudice. The court entered judgment 

against Plaintiffs on July 15, 2021.

Twenty-eight days later, Plaintiffs filed a motion for reconsideration, 

asking the district court to vacate its summary judgment order. Plaintiffs 

Case: 21-30626 Document: 00516311034 Page: 2 Date Filed: 05/09/2022
No. 21-30626

3

stated in the motion that “plaintiffs [sic] counsel did not have sufficient time 

to comply with the deadline” to file a response to Biotronik’s summary 

judgment motion and that “plaintiffs [sic] counsel was ill.” The district court 

denied the motion, concluding that “the extraordinary form of relief 

requested by plaintiffs is not warranted by fact or law in this case.” The court

noted in its order that Plaintiffs had not objected to the court’s summary 

judgment deadlines and did not inform the court that their counsel was ill 

until they filed their motion for reconsideration.

Plaintiffs then filed this appeal, which challenges the district court’s 

order denying their motion for reconsideration.

II.

“This court reviews the denial of a motion for reconsideration for an 

abuse of discretion.” In re Life Partners Holdings, Inc., 926 F.3d 103, 128 (5th 

Cir. 2019). “Under this standard, the district court’s decision need only be 

reasonable.” Id. Because Plaintiffs filed their motion for reconsideration 

within 28 days of final judgment, we will construe it as a Federal Rule of Civil 

Procedure 59(e) motion to alter or amend the district court’s judgment. See 

id. (“This court construes a motion for reconsideration filed within 28 days 

of final judgment as a Federal Rule of Civil Procedure 59(e) motion to alter 

or amend the district court’s judgment.”). “A motion to alter or amend the 

judgment under Rule 59(e) must clearly establish either a manifest error of 

law or fact or must present newly discovered evidence and cannot be used to 

raise arguments which could, and should, have been made before the 

judgment issued.” Id. “Reconsideration of a judgment after its entry is an 

extraordinary remedy that should be used sparingly.” Templet v. HydroChem 

Inc., 367 F.3d 473, 479 (5th Cir. 2004).

Plaintiffs’ Rule 59(e) motion simply recited the legal standard 

applicable to motions to reconsider and stated that Plaintiffs had not been 

Case: 21-30626 Document: 00516311034 Page: 3 Date Filed: 05/09/2022
No. 21-30626

4

given enough time to file an opposition to Biotronik’s summary judgment 

motion, especially since their counsel had been ill. Plaintiffs reiterate these 

arguments on appeal, stating that “[c]ounsel being ill and sustaining an injury 

during the week of the deadline is grounds for cause to permit the Motion for 

Reconsideration.” However, Plaintiffs never objected to the district court’s 

summary judgment deadlines, and they did not inform the district court that 

their counsel was ill until they filed their motion for reconsideration. A 

district court does not manifestly err by granting an unopposed motion for 

summary judgment in such circumstances. See Templet, 367 F.3d at 475, 479

(affirming the denial of a motion for reconsideration of a grant of summary 

judgment where the plaintiffs not only failed to respond to the summary 

judgment motion but also “did not request a continuance of the motion or a 

rescheduling of the deadlines”).

Plaintiffs’ motion for reconsideration neither established that the 

district court committed any manifest errors nor presented any newly 

discovered evidence. Accordingly, the district court did not abuse its 

discretion by denying the motion.

III.

Plaintiffs briefly suggest that the district court judge was 

impermissibly biased against them, stating that “the Court did not act neutral 

nor impartial” because it invited Biotronik to file a motion for summary 

judgment. Plaintiffs cite 28 U.S.C. § 455(a), which provides that “[a]ny 

justice, judge, or magistrate judge of the United States shall disqualify 

himself in any proceeding in which his impartiality might reasonably be 

questioned.”

Plaintiffs never filed a motion to recuse in the district court, and they 

did not suggest anywhere in their motion for reconsideration that the district 

judge had exhibited any appearance of bias. “This court will not consider 

Case: 21-30626 Document: 00516311034 Page: 4 Date Filed: 05/09/2022
No. 21-30626

5

arguments first raised on appeal.” Olivarez v. T-Mobile USA, Inc., 997 F.3d 

595, 602 n.1 (5th Cir. 2021) (citation omitted). Accordingly, Plaintiffs have 

forfeited this argument. See id.1

IV.

For the foregoing reasons, the district court’s order denying 

Plaintiffs’ motion for reconsideration is AFFIRMED.

1 We nonetheless note that, having examined the record, we do not perceive that 

the district judge displayed any impermissible bias against Plaintiffs. “Courts have 

interpreted [§ 455(a)] to require recusal if a reasonable person, knowing all of the facts, 

would harbor doubts concerning the judge’s impartiality.” Sensley v. Albritton, 385 F.3d 

591, 599 (5th Cir. 2004). A reasonable person would not harbor such doubts just because a

district judge informs the parties that the court will entertain a motion for summary 

judgment, as long as the judge objectively considers both the motion and any response. See

Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218 (5th Cir. 1998) (“The district 

court possesses the inherent power to control its docket. This power includes the authority 

to decide the order in which to hear and decide pending issues.” (footnote omitted)).

Case: 21-30626 Document: 00516311034 Page: 5 Date Filed: 05/09/2022