NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11-4539

___________ JEFFREY P. DATTO, Ph.D.

v. BRIAN HARRISON; THOMAS LEWIS; THOMAS KLEIN, M.D.; MARK GRAHAM, M.D.; THOMAS JEFFERSON UN IVERSITY; THOMAS

JEFFERSON UNIVERSIT Y HOSPITALS, INC.; JOHN DOE 1; JOHN DO E 2; JOHN DOE 3; JOHN DOE 4; JOHN DOE 5 (2-09-cv-02064)

_____________ JEFFREY P. DATTO, Ph.D.

v. THOMAS JEFFERSON UNIVERSITY; DR. THOMAS KLEIN; DR. THOMAS NASCA; DR. JAMES FINK; DR. ARTHUR FELDMAN; DR. MARK GRAHAM; DR. NORA SANFORFI; DR. CHARLES POHL; DR. CLARA CALLAHAN; DR. GEORGE PEREIRA-OGAN; DR. JOHN CARUSO; DR. BRIAN HARRISON; DR. ROBE RT BARCHI; JOHN DOES 1-5 (2-09-cv-02549) Jeffrey P. Datto, Ph.D, Appellant

___________________ _________________ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. Nos. 09-cv- 02064 and 09-cv-02549) District Judge: Honorable Mary A. McLaughlin2 ___________________ _________________ Submitted Pursuant to Third Circuit LAR 34.1(a) December 3, 2012 Before: RENDELL, FISHER and GARTH, Circuit Judges (Opinion filed: December 7, 2012 )

___________ OPINION OF THE COURT

___________ PER CURIAM. Jeffrey P. Datto appeals an order of th e United States District Court for the Eastern District of Pennsylvania denying his motion for relief under Federal Rule of Civil Procedure 60(b). For the reasons that follow, we will affirm.
I. Because we write primarily for the benefit of the parties, who in their briefing have displayed in-depth familiarity with the history of this case, we set forth only a brief summary of the relevant background. In 2005, appellee Thomas Jefferson University (“Jefferson”) dismissed Datto from its M.D./ Ph.D. program during Datto’s final year of medical school, which preven ted Datto from attaining an M. D. degree. The parties disputed the reasons why Jefferson dismissed D atto. In 2007, Datto filed three suits against Jefferson and other def endants in Pennsylvan ia state court, seeking, among other things, reinstatement to the M.D. program. Two of Datto’s suits were removed to federal3 court, ultimately docketed as E.D. Pa. Civ. Nos. 09-cv-02549 and 09-cv-02064, and consolidated for all purposes. The parties agreed to participate in settlement discussio ns, which were mediated by Magistrate Judge Elizabeth T. Hey. After lengthy negotiations, the parties reached an agreement calling for Datto to di smiss his three suits in exch ange for a monetary payment from Jefferson. The agreement did not in clude any opportunity for Datto to gain readmission to Jefferson. On June 2, 2010, Datto signed th e settlement agreement during a conference before Judge Hey, acknowledging on the record that he had reviewed the agreement and intended to be bound by it. Datto voluntaril y dismissed with prejudice his suits against the defendants. Thereafter, on November 30, 2010, Datto submitted a letter to the District Court seeking to vacate the d ismissal and reopen his cases. He argued that he had been unable to appreciate the binding nature of the settlement agreemen t because he was mentally impaired at the time of si gning and hindered by his inab ility to discuss the settlement with his treating psychiatrists. Datto subm itted a letter from a psychiatrist, Dr. Thase, who opined that, “on the basis of [Datto’s] description of the events that occu rred on the day of signing the settlement agreement a nd the severity of the depression that has followed, ... he was in the mi dst of an episode of bipolar disorder and had diminished capacity to understand the bind ing nature of the settlement ag reement.” Datto further argued that he was unduly pr essured to settle due to several factors, including: Judge Hey’s assurances that the settlement was fair; an allegedly biased me diation process; the4 District Court’s refusal to appoint counsel an d address Datto’s request for preliminary injunctive relief; defendants’ alleged discovery abuses; and th e financial hardship that Datto allegedly suffered following his dismissal from Jefferson. After holding an evidentiary hearing, which included testimony from Judge Hey as well as from Datto, the District Court rendered factual determinations and denied the Rule 60(b) motion. Applying Rule 60(b) (3), which affords relief due to fraud, misrepresentation, or misconduct by an opposi ng party, the District Court concluded that defendants did not misrepresent to Datto their position rega rding his inab ility to gain readmission to Jefferson’s medical school. 1

1 Because Datto does not chal lenge the denial of Rule 60(b )(3) relief on this appeal, we deem that issue waived. See Skretvedt v. E.I. DuPont De Nemours , 372 F.3d 193, 202- 03 (3d Cir. 2004) (“[A]n issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue will not suffice to bring that issue before this court.”). In addition, we note that, while the District C ourt did not specifically address Datto’s contention that Rule 60(b)(1 ) provides a basis for relief because Datto made a “mistake” in accepting the settlement, any su ch contention is with out merit. See Coltec Indus., Inc. v. Hobgood , 280 F.3d 262, 275 (3d Cir. 20 02) (holding that, even if party’s decision to settle “was improvident in hindsight, the decision is made and cannot be revisited”). Likewise, Datto ’s alleged mistaken belief that the law would allow him to unilaterally revoke the settlement agreement did not warrant Rule 60(b)(1) relief. Applying the “catchall” provision of Rule 60(b)(6), the District Court held that Datto’s communications w ith defendants leading up to his signing of the settlement, including his proposed amendments to the agreement, show that Datto understood the agreement’s terms and that the settlement would prevent him from further association with Jefferson. The District Court also found that Datto was not subjected to undue influence or pr essure to settle, and th at no extraordinary5 circumstance warranted reopening the cases. After denying Datto’s motion for reconsideration (a ruling th at Datto does not challenge), Datto timely filed this appeal.
II. We have jurisdiction pursuant to 28 U. S.C. § 1291. We review the denial of a Rule 60(b) motion for abu se of discretion. Budg et Blinds, Inc. v. White , 536 F.3d 244, 251 (3d Cir. 2008). Because the District C ourt held an evidentiary hearing, its “exercise of discretion in light of supportable findings of fact will not be d isturbed unless there was a clear abuse.” Inmates of Allegheny Cnty. Jail v. Wecht , 754 F.2d 120, 127 (3d Cir. 1985). “An abuse of discretion may be fo und when the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Reform Party of Allegheny Cnty. v. Allegheny Cnty. Dep’t of Elections , 174 F.3d 305, 311 (3d Cir.19 99) (quotation marks omitted). The District Court considered Datto’s allegations of men tal impairment and undue influence under Rule 60(b)(6), which permits relief from judgment only in “extraordinary circumstances.” Budget Blinds , 536 F.3d at 255. Extrao rdinary circumstances “rarely exist when a party seeks relief from a judgmen t that resulted from th e party’s deliberate choices.” Id. Furthermore, Rule 60(b)(6) is not a means “to escape the effects of a bargain [the movant] regretted in hindsight.” Coltec Indus. , 280 F.3d at 273. After considering the testimony presented at the evidentiary hearing, the parties’ arguments and submissions, and Datto’s emails and other communications leading up to the settlement agreement, the District Court concluded that Datto was not incompetent,6 that he was not subjected to un due influence when he agreed to the settlement, and that he was able to appreciate the bi nding nature of the agreement. In so holding, the District Court found it significant that : Judge Hey observed Datto on the day of the signing and concluded that he was capab le of deciding whether to settle; Datto initiated sophisticated changes to the settlement term s, including on the day he en tered into the agreement; Datto’s communications with de fendants show that he unde rstood the consequences of settling, including that he would be preclude d from further association with Jefferson; Datto testified on the record th at he made the decision to settle intending to be bound; Judge Hey reiterated to D atto throughout the process that he was free to discontinue negotiations and elect not to settle; and Datto had consulted w ith his psychiatrist, Dr. Thase, prior to accepti ng the settlement terms. 2 Under Pennsylvania law, which governs th e issue of Datto’s cap acity to enter into the settlement agreement, “it is presumed that an adult is co mpetent to execu te a release, and thus, a signed document yields the pr esumption that it accur ately expresses the state of mind of the signing pa rty.” Taylor v. Avi , 415 A.2d 894, 896 (P a. Super. Ct. 1979). The party alleging incompetence has “the bu rden of showing th e invalidity of the agreement by clear, precise, and indubitable evid ence.” Id. at 898. “[M]ere weakness of

2 Dr. Thase had advised Datto not to enter into the settlem ent agreement – advice that Datto elected not to follow. While Datto now claims prejud ice in the fact that he was prohibited from discussing the settlement terms with anyone ot her than his parents, his tax advisor, and Dr. Thase, th ere is no basis in the record to conclude that Datto would not have signed the agreemen t had he been permitted to consult others.7 intellect resulting from sickness or old age is not legal grounds to set aside an executed contract if sufficient intelligence remains to compreh end the nature and character of the transaction, and no evidence of fr aud, mutual mistake or undu e influence is present.” Id. at 897. In addition, “[t]he testimony of persons who obser ved the alleged incompetent on the date in question is generally superior to testimony as to observations made prior to and subsequent to that date.” Weir v. Estate of Ciao , 556 A.2d 819, 824 (Pa. 1989). Applying these standards, we conclude that the record fully supports the determination that Datto knowingly and voluntarily enter ed into the settlement agreement. Although Dr. Th ase opined that Datto was su ffering from bipolar disorder and “had diminished capacity to understand the bindi ng nature of the settlement agreement,” the District C ourt carefully considered the testimony of individuals who observed Datto when he signed the agreement, particularly Judge Hey, as well as Datto’s communications preceding the settlement. Give n the nature of th is evidence, Datto’s capacity to enter into the settlement agreement cannot reas onably be questioned, and we thus cannot say that the District Court comm itted a clear abuse of discretion by denying Rule 60(b) relief. Datto raises several content ions on appeal, none of which warrant a different result. Datto contends that the District Court abused its discretion by not appointing an attorney to represent him in the proceeding s prior to settlement. 3

3 Datto was represented by counsel at various tim es before the District Court. In 2008, prior to his counsel f iling a motion to withdraw, Datto requested court-ap pointed counsel Datto argues that the8 District Court should have appointed counsel sua sponte under 28 U.S.C. § 1915(e)(1), which provides that “[t]he court may request an attorney to represent any person unable to afford counsel .” (Emphasis added.) Datto never de monstrated an in ability to afford counsel, and there is no eviden ce that he qualified for coun sel under § 1915(e)(1). See Brightwell v. Lehman , 637 F.3d 187, 191- 92 (3d Cir. 2011). Because the District Court was under no obligation to ap point counsel for Datto, its f ailure to do so provides no basis to relieve Datto from his decision to enter into the settlement agreement. Datto also argues that the District Court erred by failing promptly to address his motion for preliminary injunctive relief. 4

Finally, Datto argues that the District Court’s evidenti ary hearing on the Rule 60(b) motion was improper because he was unpr epared to question Judge Hey, he was Any delay in addressing the preliminary injunction motion, however, does not amount to an extraordin ary circumstance that would allow Datto to be relieved from h is decision to settle and d ismiss these cases.

under 42 U.S.C. § 2000e-5. The District C ourt denied the request because Datto was still represented by counsel, Datto was not entitled to appointed counsel under Title VII, and no program existed to provide counsel for Datto. Datto’s counsel then withdrew, and Datto proceeded pro se until Fe bruary 2010, when he obtained new coun sel. After that lawyer was granted leave to withdraw, Datto ag ain elected to proceed pro se. Datto did not request appointed counsel a ny time thereafter, and he do es not argue that the District Court should have appointed counsel in connection with the Rule 60(b) proceeding.

4 In June 2009, Datto move d for a preliminary injunction , requesting that the District Court order Jefferson to reinstate him immed iately to the M.D. program. The District Court scheduled an evidentiary hearing on th at motion for January 2010, but due to scheduling issues, the parties’ desire fo r prehearing discovery, and the need for supplemental briefing, the prelimin ary injunction hearing was r escheduled several times. Ultimately, the parties settled be fore a hearing was held.9 not permitted to review Judg e Hey’s personal notes, and he did not have an opportunity to present testimony from other witnesses, inclu ding Judge Hey’s law clerk and court reporter. A district court has discretion to set parameters on the conduct of proceedings, and this Court “will not interfere ... except upon the clearest showing that the procedures have resulted in actual and substantial prejudice to the complaining litigant.” In re Fine Paper Antitrust Litig. , 685 F.2d 810, 817 (3d Cir. 1982) (quotation marks omitted). Datto has made no showing of actual and substantial pr ejudice. He plainly had no entitlement to review Judge Hey’s personal notes, a nd he has demonstrated no prejudice from failing to present the law clerk or court reporter. Our review of the record reveals no reversible error in the District Court’s co nduct of the evidentiary hearing.
III. We have carefully considered Datto’s re maining arguments, but we conclude that those arguments are without merit and warrant no separate discussion. We will affirm the District Court’s order denying the Ru le 60(b) motion. Datto’s motion for reconsideration of the Clerk’s order gran ting appellees’ request to file a supplemental appendix is denied.