IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60236

Summary Calendar

LARRY J. WAITES,

Plaintiff - Appellant

v.

LEE COUNTY MISSISSIPPI; CITY OF TUPELO MISSISSIPPI; ED NEELY,

in his official capacity as former Mayor for the City of Tupelo; JACK REED,

in his official capacity as Mayor for the City of Tupelo; JIM JOHNSON, in his

official capacity as Sheriff of Lee County, Mississippi; HAROLD CHAFFIN, in

his official capacity as Chief of Police of the City of Tupelo; LEE COUNTY

BOARD OF SUPERVISORS, in their Official Capacity; OFFICER DOUG

MANSELL, in his official capacity; OFFICER JASON WHITENTON, in his

official capacity; OFFICER TOM CODY, in his official capacity;

LIEUTENANT MIKE OLIVE, in his official capacity; OFFICER FOREMAN,

in his official capacity; OFFICER CHERRY, in his official capacity; JOE

DOES 1-10, Jail Administrators; RICHARD DOES 1-10, Unidentified Officers

of the Tupelo Police Department; JOHN DOES 1-10, Unidentified Officers of

the Lee County Sheriff’s Department,

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No: 1:09-CV-287-MD

United States Court of Appeals

Fifth Circuit

F I L E D

November 26, 2012

Lyle W. Cayce

Clerk

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Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Larry Waites appeals the denial of a motion to vacate an agreed order of

dismissal and reinstate this case to an active docket. For the following reasons,

we AFFIRM. 

FACTS AND PROCEEDINGS

Larry Waites was arrested after a traffic stop on November 25, 2006 for

driving under the influence of alcohol and drugs. Three years later Waites filed

the instant suit, alleging that he was subject to unreasonable use of force in the

course of his detainment at the Lee County-Tupelo Adult Jail following his

arrest. He alleged that during the booking process, several Tupelo and Lee

County officers held him down and allowed another officer to assault him.

On January 18, 2011, over a year after the suit was filed, Defendants

moved for a Protective Order, charging discovery wrongdoing by Waites’s

counsel. The Magistrate Judge granted Defendants’ request, and also agreed to

extend the deadlines in the scheduling order. Waites’s counsel then appealed

the extension of the scheduling order, and moved to prohibit Defendants from

taking the deposition of Waites’s expert pending the appeal. Although the

Magistrate Judge denied Waites’s request to prohibit the depositions from going

forward, neither Waites’s counsel nor his expert appeared for the scheduled

deposition. 

After the failure to appear Defendants moved for sanctions. Waites’s

counsel’s only response was that she had orally agreed with defense counsel’s

paralegal to take the deposition by videoconference. The paralegal submitted an

affidavit, however, stating that she never spoke with Waites’s counsel about

 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.

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taking the deposition by videoconference. The Magistrate Judge then granted

sanctions against Waites’s counsel, and the District Judge affirmed the award. 

The Magistrate Judge also ordered Waites to make his expert witness available

for deposition in Tupelo, and the District Judge affirmed the order.

After the ruling Waites’s counsel moved to withdraw on the basis that her

client had subsequently been arrested for, “among other charges, public

drunkenness and disturbing the peace.” On the same day the motion to

withdraw was filed, Waites’s counsel, along with his expert witness, once again

failed to appear for a scheduled deposition. Defendants then moved the Court

to dismiss the action with prejudice for failure to obey a court order, pursuant

to Federal Rule of Civil Procedure 37(b)(2)(A)(v). Defendants also noted that

Waites’s counsel should not be allowed to withdraw until the monetary sanctions

were paid.

On June 20, 2011, the parties entered an Agreed Order of Dismissal,

which stated, in part:

THIS CAUSE having come on the joint ore tenus motion of the

parties, Plaintiff requests the Court to dismiss this civil action with

prejudice, and the Defendants request, therefore, that the Court

vacate the previous orders with respect to sanctions imposed upon

Plaintiff’s attorneys. The Court, having considered said Motion is of

the opinion that the Motion is well taken and should be granted.

After the agreed order was entered, Waites retained new counsel and proceeded

to file a motion to vacate the order and reinstate the case to the active docket.

In support of the motion, Waites alleged that he “was not advised and did not

understand that his cause was being dismissed in exchange for Defendants’

foregoing sanctions against Plainitff’s attorneys.” The district court entered an

order permitting Waites to file evidentiary materials and a brief in support of his

motion, and, later, granted Waites’s motion for an extension of time to file such

materials. The brief filed in support of the motion again alleged that “Waites

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never gave his informed consent to the dismissal” and requested a hearing “to

at least decide whether Waites knowingly consented to the dismissal.” In his

reply brief, Waites also stated that his earlier attorneys “had an unmistakable

conflict of interest in advising Waites to dismiss.” 

In response to the motion, Waites’s former attorneys submitted various

affidavits explaining that they had spoken with Waites regarding the agreed

order of dismissal, and had discussed all aspects of the litigation including the

offer of judgment, the fact that sanctions had been issued, and the likelihood of

fee shifting. At the end of the conversation, Waites concluded that it was in his

best interest to dismiss the case, and he advised counsel accordingly.

After reviewing the affidavits, the District Judge stated:

In light of [Waites’s counsel’s] affidavit, it seems quite doubtful that

plaintiff will be able to persuade this court to vacate the dismissal

of this case and reinstate it to the active docket. However, plaintiff

has cited authority suggesting that he at least has the right to a

hearing in this regard, see Greater Kansas City Laborers Pension

Fund v. Paramount Industries, Inc., 829 F.2d 644 (8th Cir. 1987),

and this court will, out of an abundance of caution, set this matter

for hearing so that it can personally evaluate the testimony and

credibility of relevant witnesses.

During the hearing, Waites acknowledged that he had spoken with his attorneys 

and that he had accepted their advice to dismiss the case because his attorneys

told him it could not be successful. Although Waites maintained that his

attorneys never mentioned the words “sanctions” to him, one of Waites’s

attorneys testified at the hearing that she had “told him on more than one

occasion that we had been possibly sanctioned . . . [and that] it was possible we

would almost have to pay about $7,000.” 

Based on this testimony, the District Judge denied the motion to vacate,

stating:

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This court found [Waites’s counsel’s] testimony to be credible, partly

due to the fact that its own analysis of the case reveals a lawsuit

which is rife with difficulties. Indeed, plaintiff’s counsel conceded at

the hearing that his case had “problems,” which is likely an

understatement. This court might be more willing to give plaintiff

the benefit of the doubt if it were faced with a seemingly strong case

which had inexplicably been dismissed, but such is not the case. In

sum, this court witnessed testimony which, in its view, credibly

described a conscious and informed decision by plaintiff to dismiss

a case which likely should have been dismissed. Plaintiff’s motion

to reinstate this case to the active docket will therefore be denied.

Waites timely appealed. 

STANDARD OF REVIEW

Because Waites’s motion was filed within 28 days of the judgment, it is

treated as a Rule 59(e) motion. FED. R. CIV. P. 59(e); see Williams v. Thaler, 602

F.3d 291, 303 n.7 (5th Cir. 2010); Halicki v. Louisiana Casino Cruises, Inc., 151

F.3d 465, 470 (5th Cir. 1998); see also Templet v. HydroChem Inc., 367 F.3d 473,

483 (5th Cir. 2004) (“Rule 59(e) motions provide relief for the movant on grounds

at least as broad as Rule 60 motions.”). The denial of a motion to alter or amend

a judgment under Federal Rule of Civil Procedure 59(e) is reviewed for abuse of

discretion. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir.

1993).

“[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.’” Rosenzweig v. Azurix Corp., 332 F.3d

854, 863-64 (5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159

(5th Cir. 1990)). “Reconsideration of a judgment after its entry is an

extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479. 

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DISCUSSION

Waites argues on appeal that a conflict of interest existed between himself

and his lawyers because his attorneys had a “direct financial interest in

obtaining . . . dismissal” of the case. Waites further argues that he was never

informed about the conflict, and therefore failed to give informed consent to his

representation and to the finalized judgment. 

In evaluating conflicts of interest, “courts should first look to ‘the local

rules promulgated by the local court itself,’” In re ProEducation Int’l Inc., 587

F.3d 296, 299 (5th Cir. 2009) (citation omitted), which in this case means that

we look to the Mississippi Rules of Professional Conduct. See U.S. Dist. Ct.

Rules D. Miss. R. 83.5 (“An attorney who makes an appearance in any case in

the district court is bound by the provisions of the Mississippi Rules of

Professional Conduct . . .”). Rule 1.7(b) of the Mississippi Rules of Professional

Conduct states that “A lawyer shall not represent a client if the representation

of that client may be materially limited by . . . the lawyer’s own interests, unless

the lawyer reasonably believes: (1) the representation will not be adversely

affected; and (2) the client has given knowing and informed consent after

consultation.”1

We need not address whether the avoidance of sanctions created a conflict

of interest between Waites and his attorneys. Even if a conflict was present,

Waites nevertheless fails to demonstrate a “manifest error of law or fact” in the

district court’s decision. Rosenzweig, 332 F.3d at 863 (citation and internal

quotation marks omitted). Although the district court did not directly address

whether a conflict of interest was present, it held an evidentiary hearing to

determine whether Waites was adequately informed of the reasons for

The Fifth Circuit also looks to the ABA Model Rules of Professional Conduct in evaluating 1

ethical conflicts. In re ProEducation, 587 F.3d at 299. The relevant model rule, however, is substantially

similar to the Mississippi rule. See MODEL RULES OF PROF’L CONDUCT R. 1.7. 

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dismissing the case, and whether Waites gave knowing and informed consent to

the dismissal. Based on the evidence presented in the affidavits and during the

hearing, the district court, in its fact finding capacity, credited the testimony of

Waites’s attorney, who explained that Waites was fully informed of all the

reasons for the dismissal, including the avoidance of sanctions. This is sufficient

to show that Waites “consent[ed] to representation despite a possible conflict.” 

F.D.I.C. v. U.S. Fire Ins. Co., 50 F.3d 1304, 1314 (5th Cir. 1995) (citing MODEL

RULES OF PROF’L CONDUCT 1.7). Accordingly, the district court did not abuse its

discretion in denying Waites’s motion to vacate the agreed order.

CONCLUSION

For the reasons given above, the district court’s denial of Waites’s motion

to vacate the agreed order is AFFIRMED. 

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