IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10309

JACQUELINE WILSON, Whose Death Has Been Suggested,

Plaintiff

BILLY BOB WILSON, Substituted on Behalf of Jacqueline Wilson, Deceased; 

CAROLINE JEAN WILSON, Substituted on Behalf of Jacqueline Wilson, 

Deceased,

Appellants

v. 

NOVARTIS PHARMACEUTICALS CORPORATION,

Defendant – Appellee

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CV-684

Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Appellants Billy and Caroline Wilson appeal the district court’s orders 

vacating a prior substitution order, dismissing the case pursuant to Rule 25(a), 

* 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

July 11, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-10309 Document: 00512696156 Page: 1 Date Filed: 07/11/2014
No. 13-10309

and denying Appellants’ Rule 59(e) motion to alter or amend the judgment. 

For the following reasons, we affirm the district court’s orders. 

I.

In January 2006, Jacqueline Wilson filed this products liability suit 

against Appellee Novartis Pharmaceuticals Corporation (“Novartis”). 

Jacqueline died while the case was in multidistrict litigation (“MDL”). On 

February 1, 2008, counsel for Jacqueline’s children, Billy and Caroline, filed a 

suggestion of death in which counsel represented that Billy and Caroline were 

the “personal representatives” of their mother’s estate. On May 7, 2008, 

counsel filed a motion for substitution in which counsel again represented that 

Billy and Caroline were the “personal representatives” of the estate. The MDL 

court granted the motion for substitution in reliance on counsel’s 

representations. In October 2012, after the case was transferred from the MDL 

court to the Northern District of Texas, the district court issued an order 

requiring Billy and Caroline to file proof of their status as personal 

representatives of their mother’s estate. Billy and Caroline filed two motions 

for extensions of time to file proof, which the district court granted. In their 

third motion for an extension of time, Billy and Caroline acknowledged that 

they had never been appointed personal representatives of their mother’s

estate. 

On December 19, 2012, the district court issued an order vacating the 

2008 substitution order pursuant to its inherent authority to sanction abusive 

litigation practices. The district court found that Billy and Caroline, through 

counsel, twice misrepresented to the court that they were the personal 

representatives of their mother’s estate (in the suggestion of death and motion 

for substitution), obtained the 2008 substitution order “through deception” on 

the court, and then litigated the case for five years without legal authority to 

represent the estate. The court further gave the parties one month to file 

2

 Case: 13-10309 Document: 00512696156 Page: 2 Date Filed: 07/11/2014
No. 13-10309

“whatever motion or other document they thought to be appropriate 

considering the rulings made by the court.”

Billy and Caroline filed a motion to vacate the court’s December 19 

sanction order. Novartis filed a motion to dismiss the case under Federal Rule 

of Civil Procedure 25(a). The district court denied Billy and Caroline’s motion 

to vacate the December 19 sanction order. The district court then granted

Novartis’s motion to dismiss under Rule 25(a) on the ground that—five years 

after the suggestion of death—there was no plaintiff in the case and no pending 

motion for substitution. Billy and Caroline subsequently filed a Rule 59(e) 

motion to alter or amend judgment, which the district court denied. Billy and

Caroline timely appealed.1

II.

Appellants contend that the district court abused its discretion in 

sanctioning them by vacating the 2008 substitution order. “A district court has 

the inherent authority to impose sanctions ‘in order to control the litigation 

before it.’” Positive Software Solutions, Inc. v. New Century Mortg. Corp., 619 

F.3d 458, 460 (5th Cir. 2010) (citation omitted); Woodson v. Surgitek, Inc., 57 

F.3d 1406, 1417 (5th Cir. 1995). This inherent authority includes the power to 

sanction “abusive litigation practices.” In re Stone, 986 F.2d 898, 902 (5th Cir. 

1993). “Because of their very potency, inherent powers must be exercised with 

1 As a preliminary matter, Novartis contends that Appellants should be judicially 

estopped from claiming that this case satisfies the amount-in-controversy requirement for 

diversity jurisdiction based on Appellants’ representations in a Texas muniment of title 

application. Assuming that judicial estoppel applies in the subject-matter-jurisdiction 

context, cf. In re Sw. Bell Tel. Co., 535 F.2d 859, 861 (5th Cir. 1976), rev’d on other grounds, 

Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977); Lara v. Trominski, 216 F.3d 487, 495 n.9 

(5th Cir. 2000), we decline to invoke judicial estoppel in this case. The statements in question 

are not “plainly inconsistent,” and any inconsistency appears to have been “inadvertent.” See 

Reed v. City of Arlington, 650 F.3d 571, 574 (5th Cir. 2011) (en banc) (setting forth the 

elements for judicial estoppel); see also Cont’l Cas. Co. v. McAllen Indep. Sch. Dist., 850 F.2d 

1044, 1046 (5th Cir. 1988).

3

 

 Case: 13-10309 Document: 00512696156 Page: 3 Date Filed: 07/11/2014
No. 13-10309

restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). 

Accordingly, “[t]his court has held that such sanctions should be confined to 

instances of ‘bad faith or willful abuse of the judicial process.’” Woodson, 57 

F.3d at 1417.

“We review a court’s imposition of sanctions under its inherent power for 

abuse of discretion.” Chambers, 501 U.S. at 55; Tollett v. City of Kemah, 285 

F.3d 357, 363 (5th Cir. 2002). “An abuse of discretion occurs where the ‘ruling 

is based on an erroneous view of the law or a clearly erroneous assessment of 

the evidence.’” Tollett, 285 F.3d at 363 (citation omitted).

Appellants have not shown that the district court abused its discretion 

in vacating the 2008 substitution order. The MDL court’s Case Management 

Order (“CMO”) set forth detailed procedures for the substitution of parties and 

put counsel on notice that the status of “personal representative” of an estate 

could require “the opening of an estate” and formal “appointment” under 

applicable state law. The CMO required counsel “to initiate or cause to be 

initiated proceedings” for the appointment of a personal representative within 

thirty days of the plaintiff’s death. The CMO further required counsel to file a 

motion for substitution within ninety days of filing the suggestion of death. 

Finally, the CMO warned that failure to comply could result in dismissal in 

accordance with Rule 25(a). Counsel expressed an awareness of the 

requirements of the CMO and Rule 25(a) in the suggestion of death.

Despite this awareness, counsel violated the CMO by failing to initiate 

proceedings for the appointment of a personal representative within thirty 

days of Jacqueline Wilson’s death and by filing a motion for substitution after 

the ninety-day deadline. Counsel further falsely represented to the court that 

Appellants were the “personal representatives” of their mother’s estate in two 

filings—the suggestion of death and motion for substitution. Counsel made 

these representations when in fact Appellants had never been appointed 

4

 Case: 13-10309 Document: 00512696156 Page: 4 Date Filed: 07/11/2014
No. 13-10309

personal representatives of their mother’s estate; nor had counsel initiated 

proceedings for appointment. The MDL court issued its 2008 substitution 

order in reliance on counsel’s false representations. Counsel then litigated the 

case on behalf of Appellants for five years, through discovery and summary 

judgment, without legal authority to represent the estate. On this record, we

cannot say that the district court abused its discretion in vacating the 2008 

substitution order.2

III.

Appellants next contend that the district court erred in dismissing the 

case pursuant to Rule 25(a). We review the district court’s interpretation of 

the Federal Rules of Civil Procedure de novo. See Bellaire Gen. Hosp. v. Blue 

Cross Blue Shield of Mich., 97 F.3d 822, 827 (5th Cir. 1996). Rule 25(a)(1)

provides that “[i]f a party dies and the claim is not extinguished, the court may 

order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). Rule 25(a)(1)

further provides that “[i]f the motion [for substitution] is not made within 90 

days after service of the statement noting the death, the action by or against 

the decedent must be dismissed.” Id.

We conclude that the district court did not err in dismissing the case 

pursuant to Rule 25(a) where there was no plaintiff in the case and no pending 

motion for substitution five years after the suggestion of death. As discussed

above, the district court properly vacated the 2008 substitution order that was 

issued in reliance on counsel’s misrepresentations. Following this ruling, there 

was no plaintiff in the case to continue the litigation. Nor had there been a 

proper plaintiff in the case for the past five years. The court gave Appellants 

2 See, e.g., Johnson v. Hankook Tire Am. Corp., 449 F. App’x 329, 334 (5th Cir. 2011) 

(upholding sanctions imposed for misrepresentations to the court); Crowe v. Smith, 151 F.3d 

217, 239 (5th Cir. 1998) (same); United States v. Reed, 106 F.3d 396 (5th Cir. 1997) (same); 

see also Diehl v. United States, 438 F.2d 705, 709 (5th Cir. 1971) (affirming the vacatur of a 

substitution order obtained through misrepresentations).

5

 

 Case: 13-10309 Document: 00512696156 Page: 5 Date Filed: 07/11/2014
No. 13-10309

one month to file any motions they deemed appropriate. Appellants did not 

file a motion for an extension of the ninety-day deadline to file a legally proper 

motion for substitution. Instead, Appellants filed a motion to vacate the 

December 19 sanction order, challenging the district court’s authority to issue 

the order. As the district court observed, Appellants chose “to stand or fall” on 

the 2008 substitution order, which had been vacated. We perceive no error in 

the district court’s dismissal of the case in these circumstances. 

IV.

Finally, Appellants do not offer any arguments or cite any authority in 

their briefs to challenge the district court’s denial of their Rule 59(e) motion. 

Accordingly, Appellants have abandoned any challenge to this ruling on 

appeal. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994); Yohey v. 

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

V.

For the foregoing reasons, the district court’s judgment is AFFIRMED. 

6

 Case: 13-10309 Document: 00512696156 Page: 6 Date Filed: 07/11/2014