IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10512

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

February 7, 2014

Lyle W. Cayce

Clerk

 

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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

1 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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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.

7 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).

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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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