Estate of Wayne Jones v. City of Martinsburg, No. 14-2135 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2135 ESTATE OF WAYNE A. JONES BY ROBERT L. JONES AND BRUCE A. JONES, Administrators of the Estate of Wayne A. Jones, Plaintiff - Appellant, v. CITY OF MARTINSBURG, WEST VIRGINIA; PFC. ERIK HERB; PFC. DANIEL NORTH; PTLM. WILLIAM STAUBS; PTLM. PAUL LEHMAN; PFC. ERIC NEELY, Defendants – Appellees, and MARTINSBURG POLICE DEPARTMENT; DOES 1 TO 25, Defendants. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Croh, Chief District Judge. (3:13-cv-00068-GMG-JES) Argued: March 22, 2016 Decided: July 6, 2016 Before GREGORY and DUNCAN, Circuit Judges, and Richard L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation. Remanded by unpublished order. Judge Gregory directed entry of the order with the concurrence of Judge Duncan. Judge Voorhees wrote a dissent from the order of remand. ARGUED: Christopher Edwin Brown, BROWN FIRM, PLLC, Alexandria, Virginia, for Appellant. Philip W. Savrin, FREEMAN MATHIS & GARY, LLP, Atlanta, Georgia, for Appellees. ON BRIEF: Rocco J. DeLeonardis, CONSUMER LAW, PLLC, Reston, Virginia, for Appellant. ORDER GREGORY, Circuit Judge: In the unique circumstances presented, because the facts admitted as a result of the requests for admission, which formed the basis of the underlying motion to deem requests for admissions admitted, constructively resolved all of the material issues in dispute, giving the motion a dispositive effect, and because this Court is unable to determine the extent of the district court’s reliance on the admissions, this Court remands the matter to the district court for consideration of the discretionary factors in Rule 36(b) in determining whether to allow the withdrawal of the admissions. This order in no way opines on the merits of such consideration. REMANDED 2 VOORHEES, District Judge, dissenting: I respectfully dissent from the order entered in this case. My disagreement with the majority’s action extends to the form, as recognized by the substantial variance in length between the majority’s order and my dissent, as well as the substance of the disposition reached in this case. In late December of 2013, the City of Martinsburg and the related individual defendants (collectively, the requests for admission (RFAs) upon the Estate. City) served On the day the responses were due, the City filed a “Motion to Deem Requests for Admissions to Plaintiffs Admitted.” J.A. 48. This motion was referred to the magistrate judge who ultimately denied the motion because it was premature. J.A. 99. During oral argument before the magistrate judge, counsel for the City explicitly mentioned that “[i]f a party wants to have his admissions withdrawn, then he should file a motion under [Federal Rule of Civil Procedure] 36(b).” J.A. 86:21-23. The plain language of Rule 36(b) states that “[a] matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” On appeal, neither party seriously contests the fact that the plain meaning of Rule 36 posits that it is self-executing: “A matter is admitted, unless, within 30 days after being served, the party to whom the 3 request is directed serves on the requesting party a written answer.” Fed. R. Civ. P. 36(a)(3). Nevertheless, the City filed a “Second Motion Requests for Admissions to Plaintiffs Admitted.” to J.A. 100. Deem The Estate responded by asserting incorrect arguments regarding the time period it had to respond to the requests. J.A. 122-23. However, the Estate also argued that “there is sufficient evidence to contradict any purported admissions” and that it would not serve the purpose of Rule 36 to deem the RFAs admitted because the Estate could dispute the facts contained therein. J.A. 124. The Estate also attached its responses to the RFAs. J.A. 128-131. At no point, however, did the Estate mention Rule 36(b) or the word “withdraw” until it filed its appeal with this court. The Estate asked this panel to cobble together these two filings and construe them motion under Rule 36(b). as the functional equivalent of a Prior unpublished decisions of this court have not strictly interpreted the motion requirement under Rule 36(b) and have allowed late responses or a motion for extension of time to serve as the functional equivalent of a motion under Rule 36(b). Bailey v. Christian Broad. Network, No. 11-2348, 483 F. App'x 808, 810 (4th Cir. June 15, 2012) (filing a motion for extension of time “was, in essence, a motion to withdraw deemed admissions”); Metpath, Inc. v. Modern 4 Med., No. 90-2234, 934 F.2d 319, 1991 WL 87534, at *2 (4th Cir. May 29, 1991) (per curiam) (late response). These decisions are based in part upon the reasoning by the Supreme Court that “if a litigant files variance with papers the in letter a fashion of a that procedural is technically rule, a court at may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.” 316-17 (1988). Torres v. Oakland Scavenger Co., 487 U.S. 312, Rule 36(b) is the pertinent rule and states that the required motion or “functional equivalent” thereof should contain a discussion of whether withdrawal “would promote the presentation of the merits” or prejudice the opposing party. Fed. R. Civ. P. 36(b). Under Torres and the prior unpublished decisions of this court, it is appropriate to treat the related filings responding to the second motion to deem the RFAs admitted as the functional equivalent of a motion to withdraw under Rule 36(b). The magistrate judge in the underlying case considered the second motion filed by the City, the Estate’s response to the motion, and the attached response to the RFAs. J.A. 161-64. The magistrate judge granted the underlying motion in an order without However, explicitly as considering explained infra, the Rule the result 5 36(b) of factors. the Id. magistrate judge’s actions was to deny implicitly any constructive motion to withdraw. At no point in this litigation did the Estate object to the form or substance of the magistrate judge’s disposition of the motion. Ultimately, the City moved for and received summary judgment. Specifically, the district court found that “[m]any material facts in this case are undisputed because a magistrate court order deemed admitted requests for admission” and “the evidence in admitted.” the record independently supports the facts J.A. 552. The Estate timely appealed the grant of summary judgment. In the “Issues Presented for Review” it stated that this panel should consider (1) whether the district judge, as opposed to the magistrate judge, erred in granting the second motion to deem RFAs admitted without consideration of the Rule 36(b) factors; and (2) whether the district court properly granted summary judgment based on the deemed admissions. Initial Br., at 1). the magistrate (Appellant’s Later in the brief, the Estate argued that judge’s failure constituted an abuse of discretion. to consider Rule 36(b) (Id. at 21-22, 25). Much, if not all, of the discussion contained in the initial brief argued that the actions of the district court magistrate judge were functionally indistinguishable. 6 judge and On appeal, the City argued that the Estate failed to preserve the Rule 36(b) issue for appellate review by failing to object to the magistrate judge’s order. Only in its reply did the Estate argue that the magistrate judge was required to issue a report and recommendation (R&R) and that the ruling “on these clearly dispositive matters without providing a [R&R] should be subject to review by this Court.” (Appellant’s Reply Br., at 3). On March 22, 2016, this court heard oral arguments from counsel. Around six weeks later, on May 4, 2016, the panel ordered supplemental briefing on the following: (1) Whether, under 28 U.S.C. § 636, the City of Martinsburg’s “second motion to deem requests for admissions to plaintiffs admitted” should be characterized as dispositive or non-dispositive of plaintiffs’ claims?; (2) Whether, under 28 U.S.C. § 636, the magistrate judge had authority to “hear and determine” the City of Martinsburg’s motion?; and (3) Whether there is an exception to the general rule of waiver when a magistrate judge issues an order beyond his statutory authority in 28 U.S.C. § 636? A. The First Level of Waiver Today the panel has remanded by way of an order because the magistrate judge’s order and the motion itself were “dispositive in effect.” To reach this issue, the panel necessarily had to 7 find that it was appropriate to advanced argument in its reply. consider the Estate’s newly However, “it is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned.” A Helping Hand, LLC v. Baltimore County, MD, 515 F.3d 356, 369 (4th Cir. 2008) (quoting United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)). “[I]n rare circumstances, appellate courts, in their discretion, may overlook this rule and others like it if they determine that a ‘miscarriage Perhaps the of justice’ majority found would that otherwise the result.” supplemental ordered obviated any prejudice to the City. Id. briefing See Brown v. Nucor Corp., 785 F.3d 895, 921 (4th Cir. 2015) (stating the purpose of this doctrine minimize to avoid ‘risk the “is of an unfairness improvident or to an appellee ill-advised and opinion being issued on an unbriefed issue.’”) (quoting United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006)). Nevertheless, as explained below, this is but one instance of the Estate’s failure to fully judicial body. present its arguments to the appropriate Accordingly, I would find that this is not the rare exception to this rule of waiver. B. Assuming The Second Level of Waiver the panel found the requisite miscarriage of justice, it would still have to determine that a second and separate rule of waiver is inapplicable to remand this matter to 8 the district court. As early as 1997, this court has stated, “[o]ur cases are replete with warnings that the consequences of failing to file objections is waiver of the right to appeal.” Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th Cir. 1997). The text of Federal Rule of Civil Procedure 72 warns parties of the failure to object. may not objected Regarding nondispositive matters, “[a] party assign as error to.” Fed. R. a defect Civ. in 72(a). the order Regarding not timely dispositive matters, to which the magistrate judge must file a R&R, the aggrieved party must file objections within fourteen days and “[t]he district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” has Fed. R. Civ. P. 72(b)(2)-(3) (emphasis added). extended the waiver dispositive matters. rule to both dispositive This court and non- Solis v. Malkani, 638 F.3d 269, 274 (4th Cir. 2011) (Gregory, J.). The order entered by the majority appears to indicate that it considered the order entered by the magistrate judge to be dispositive and, for that reason, remand was warranted. are two types of referrals under 28 U.S.C. § There 636(b)(1). Specifically, under § 636(b)(1)(A) a magistrate judge may “hear and determine” any pending pretrial matter and issue an order, so long as the matter does not involve a set of listed motions. Under § 636(b)(1)(B), a magistrate 9 judge may consider the motions listed in § 636(b)(1)(A) but has to issue a R&R instead of an order. Several unpublished decisions of this court have indicated that a motion that is the functional equivalent of a listed motion under § 636(b)(1)(A) is deemed dispositive and that a district court should apply a de novo standard of review instead of a clearly objections. erroneous standard of review to timely filed See, e.g., Reddick v. White, No. 08-2286, 456 F. App'x 191, 193-94 (4th Cir. Dec. 1, 2011); see also Gomez v. United States, 490 U.S. 858, 868 (1989) (classifying the listed motions as “dispositive”). Federal Rule of Civil Procedure 72, a corollary to § 636, makes the distinction between (A) and (B) referrals by reference to dispositive or nondispositive. whether a particular matter is Fed. R. Civ. P. 72. To the knowledge of the undersigned, no case in this court has addressed directly the situation posed in this appeal: what happens when a magistrate judge enters an order on a matter that is deemed functionally objected to? dispositive and said order is never Should the court refuse to apply the general rule of waiver because the magistrate judge was supposed to enter a R&R? The Solis case is actually instructive on this point. In Solis, the district court judge referred a request for fees to the magistrate judge without specifying whether the magistrate 10 judge should issue a R&R or an order. magistrate judge ultimately issued entitled “order of the Court.” Id. 638 F.3d at 272. findings on a The document In Solis, neither party objected to the magistrate judge’s order within the required period. Id. Instead, the aggrieved litigant appealed directly to the Fourth Circuit. The Fourth Circuit dismissed this first appeal for lack of jurisdiction. 1 On remand, the district court judge held that § 636(b)(1)’s list of motions was not exhaustive and instead extended to all dispositive motions. Chao v. Malkani, mem. op., No. 8:00-cv-03491, at *4 (D. Md. Feb. 25, 2009). It then held that the 1 motion requesting fees was The panel reasoned that “[i]t is unclear from the record whether the district court’s referral to the magistrate judge was pursuant to § 636(c) or § 636(b).” Chao v. Malkani, No. 071828, at *2 (4th Cir. June 5, 2008) (unpublished order). Given the ambiguity, the court found that it was without jurisdiction because a party may not directly appeal a R&R or a magistrate judge’s order because of the application of the final judgment rule. See id. (such an order “cannot be directly appealed to this Court”) (citing Reynaga v. Cammissa, 972 F.2d 414, 416-18 (9th Cir. 1992) (discussing the final judgment rule and deciding to issue a writ of mandamus to avoid determining whether appellate jurisdiction existed)). If the magistrate judge’s order was under § 636(c), consent was not evident from the record. Id. Given the uncertainty of whether a final judgment was present, the panel remanded the matter to the district court and did “not address the issue of whether appellants have waived their right to appeal, as that is not before us at this time.” Id. Here, it is abundantly clear that the court has jurisdiction over the final judgment entered by the district court in its grant of summary judgment. Moreover, the waiver issue is directly before this court. 11 dispositive under § 636. The district court judge then considered whether the parties waived the right to object to the magistrate judge’s filing denominated as an “order.” The district court judge stated that the only way the magistrate judge could have heard the motion was under § 636(b)(1)(B). at 7. 2 Accordingly, the district court recharacterized Id. the “order” as a R&R and determined that the parties waived the right to appeal the matter to him. Id. Finally, the district judge “adopted the report without further review.” Id. at 8. On appeal, the Solis panel decided de novo whether the aggrieved party “waived its rights to challenge the findings of the magistrate judge by failing to file objections with the district court.” 638 F.3d at 273. The court held that it was immaterial that the magistrate judge entered an order as opposed to a R&R: “Counsel should have known that their failure to act waived the right of their clients to district court review of recommendations, and that, thereafter, the court would be free to adopt the recommendations wholesale.” Id. at 274. no reason not to apply Solis to the instant case. 2 There is Assuming The district court judge also held that the defendants knew of the distinction because they objected to the referral of the matter to the magistrate judge on the dispositive/nondispositive distinction. Chao, mem. op., No. 8:00-cv-03491, at *7. However, the panel did not cite this evidence as a basis for upholding the district court’s decision. 12 arguendo that the matters decided by the magistrate judge can be declared dispositive as stated by the majority, a clear line of precedent from this court indicates that filing objections is imperative level. to preserving review even at the district court Moreover, Solis posits that waiver applies no matter how the magistrate judge denominates his order. Perhaps Solis and the general rule of waiver can be distinguished in the instant case, but that task has not been undertaken by the majority. application of this second waived by failing to The level include arguments of them waiver in the distinguishing were themselves initial brief. Assuming the majority has declined to apply the first level of waiver, it could perhaps have considered second level of waiver discussed above. distinguishing the In Thomas v. Arn, the Supreme Court expressly approved of the use of waiver when a party fails to object to a magistrate judge’s R&R. 140, 146-47 (1985). This rule derives from the 474 U.S. courts of appeals’ supervisory powers and serves (1) to focus the district court judge’s attention on disputed matters; and (2) to promote judicial economy. Id. Without the rule of waiver, an aggrieved litigant could sandbag the district court judge by raising its objections on appeal. Id. at 147-48. As a consequence, either district court judges would have to consider carefully every single unobjected-to matter before their magistrate judges to 13 ensure that no error is present or appellate panels would have to perform this duty. Id. at 148. This court has suggested that an opportunistic litigant might even attempt to “bypass the district court entirely, even though Congress had lodged the primary responsibility for supervision of federal magistrates’ functions with that judicial body.” United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). The Supreme Court held that this enormous waste of the parties’ and the judicial system’s resources can properly be avoided by utilizing the appellate courts’ supervisory powers. Arn, 106 U.S. at 47. However, the Supreme Court cautioned that these supervisory powers could not be applied if they “conflict with constitutional or statutory provisions.” Ninth Circuit magistrate holds judge that issues waiver an order is on Id. at 148. inappropriate a dispositive The when a motion as opposed to a R&R because it implicates structural principles of Article III. Cir. 2015) Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th (“The nondispositive line Congress motions was drew not a between result dispositive of and happenstance. Rather, it reflects the very real concern that, at least absent consent, delegating the final disposition of cases to magistrate judges Circuit would did run not afoul rest of its the Constitution.”). holding on Article III The but Ninth rather determined that the Magistrates Act amounted to a “statutory 14 provision that embodies a strong policy concerning the proper administration of judicial business.” Bastidas, 791 F.3d at 1160 (quoting Nguyen v. United States, 539 U.S. 69, 78 (2003)). Following Nguyen, the Ninth Circuit stated that “the importance of policing the proper designation of judicial officers in Article III courts convinces us that review is warranted despite [the] failure to object.” Id. at 1160. implies applies that this determination rule explicit in order If the majority’s order here, to it avoid should the make time that consuming process that occurred in the instant case. Moreover, before this adopting exhaustively court its examine should carefully reasoning. the Bastidas I will opinion, examine not but Bastidas attempt I will to pose several issues that deserve further examination before it is applied in this court. First, Nguyen concerned the improper assignment of a nonArticle III judge to a panel in clear violation of 28 U.S.C. § 292. 539 U.S. at 79-80. clear. The violation of § 636 is not so It relies upon a construction of § 636 that is more restrictive of the magistrate judge’s powers than supplied in the text Congress enacted. by the magistrate judge In this case, the motion ruled upon is not 636(b)(1)(A). 15 a listed motion under § Secondly, the majority’s order states that the magistrate judge’s order itself was dispositive of the matter, but, the question then arises, district court judge when or was it dispositive? magistrate judge to How is a determine when particular discovery matters are dispositive of a claim? The answer to this question would seem to not be after an appellate panel returns these matters for further review. Third, Nguyen concerned entry of a final ruling in a case by an improperly formed panel. judge’s order never amounted appealable to this court. the grant of summary without merit. However, here the magistrate to a final ruling that was Rather, the final order on appeal is judgment. This is not a distinction The magistrate judge never purported to be the final arbiter of the viability of the claims advanced by the Estate and the district court always retained its supervisory role to hear any objections. Congress provided a mechanism for ensuring that aggrieved litigants receive Article III review of a magistrate judge’s disposition of particular matters. Congress envisioned a system where the district court judge is the primary supplies supervisor dissatisfied of the parties an magistrate avenue desired amount of supervision is available. F.2d at 94. position to judge and ensure See § 636 that the Schronce, 727 Any inclination here to adopt the Ninth Circuit’s without seriously examining 16 Congress’ other strong policy favoring district court review of magistrate judge matters is inappropriate. C. There is Not a Putative Rule 36(b) Motion Pending Before the District Court Finally, the majority’s order appears to aver that the district court judge failed to rule upon an otherwise ripe Rule 36(b) motion. However, as stated above, the magistrate judge considered the entirety of the filings before him, including (1) the Estate’s response to the motion to deem the RFAs admitted, and (2) its response to the RFAs. The essence of the majority’s ruling implies comfort with conjuring an implicit motion but discomfort with allowing an implicit denial. When the magistrate judge entered the order deeming the RFAs admitted, pending motions he implicitly attending denied the any Estate’s implied response. purported Ruling otherwise would require a district court judge to comb through the materials presented to a magistrate judge to determine if some implicit matter was raised but not directly addressed in the magistrate judge’s order or R&R. stands as a check on such an effect. Our adversarial system Moreover, a contrary holding would run afoul of the Magistrates Act’s purposes as articulated by this court in numerous decisions as well as by the Supreme Court in Arn. 17 Unpublished precedent indicates that putative, upon motions do not exist in this type of situation. un-ruled By way of example, in Bailey, the magistrate judge was presented with a request for extension of time to answer requests for admission. 483 F. App’x 808, 809-10. The magistrate judge erroneously believed that he was constrained by Rule 36(a) and did not treat the motion for extension of time as the functional equivalent of a motion under Rule 36(b). objected to this motion. denied the objection. Bailey panel district that See id. court Id. Id. intimate after appeal. Id. at 810. itself Critically, Bailey The district court summarily Nowhere in the opinion does the the motion remained pending even Rather, the panel concluded that the erred by summarily rejecting objections to the magistrate judge’s disposition. Id. the If the motion remained pending, the Bailey panel would not have needed to hold that the district court judge erred and would have instead, like the majority in this case, remanded the matter to the district court judge. Moreover, the rule that a judge necessarily and implicitly denies all presented relief to him requested without other judicial officers. when granting he disposes said relief of is the matters applied to See Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 411 (4th Cir. 2015) (affirming the district court’s “implicit denial of” litigant’s 18 Rule 56(d) motion); Varghese v. Honeywell Intern., Inc., 424 F.3d 411, 415 n.6 (4th Cir. 2005) (district court’s rulings “stand[] as an implicit rejection of [litigant’s] summary judgment argument”); United States v. Benenhaley, No. 06-6117, 240 F. App’x 581, 582 & n.* (4th Cir. July 10, 2007) (“affirm[ing] the district court’s implicit denial” of a claim it admittedly did not address: “[b]y omitting this claim from its opinion, the district court implicitly rejected it.”); Marcellin v. Kupferer, No. 02-2157, 60 F. App'x 513, 514 (4th Cir. Apr. 15, 2003) (“We conclude the district court’s summary judgment order implicitly denied Marcellin’s request to have its requests for admissions deemed admitted under Rule 36(a).”). The majority’s order is example of this doctrine applied in the appellate context. not addressing the arguments advanced by the City, it an By has rejected them, albeit without providing sustaining rationale. Finally, the Estate’s response to the City’s motion for summary judgment cannot be considered the functional equivalent of a motion under Rule 36(b). Attempting to dispute admitted facts at summary judgment cannot be considered the functional equivalent of a motion under Rule eviscerating the motion requirement. 36(b) without entirely Moreover, such a ruling would necessarily excise a portion of Rule 56 itself. See Fed. R. Civ. P. 56(c)(1)(A) (indicating that a party can show an absence of a dispute regarding 19 factual matters by citing admissions). Unpublished precedent from this court supports the proposition that a party’s attempt to dispute admitted facts at summary judgment does not constitute the functional equivalent of a motion under Rule 36(b). Adventis, Inc. v. Consol. Prop. Holdings, Inc., Nos. 04-1405, 05-1411, 124 F. App'x 169, 173 (4th Cir. Mar. 2, 2005) (“Rule 36 admissions are conclusive for purposes of the litigation and are sufficient to support summary judgment.”) (quoting Langer v. Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992)); Foxworth v. World Book Encyclopedia, Inc., No. 87-2128, 838 F.2d 466, 1988 WL 6814, at *1 (4th Cir. Jan. 27, 1988) (failing to give pro se litigant Roseboro notice prior to entering summary judgment for defendant was harmless error RFAs). because the litigant had failed to timely respond to Published and persuasive precedent from other Circuits hold likewise. Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Karras v. Karras, 16 F.3d 245, 247 (8th Cir. 1994). Finally, such a motion would necessarily be filed well outside the discovery period. J.A. 39, 239. In conclusion, I do not believe that the facts presented in this case are so exceptional as to fall outside the general rule that a party waives arguments not advanced in its initial brief. Moreover, I do not believe the facts presented in this case justify deviating from well-settled precedent from this court that prohibits an aggrieved litigant from raising arguments on 20 appeal when he or she district court judge. has ever before required a a magistrate fails to raise the same before the Finally, I do not believe our precedent district judge court to judge determine to review if an filings unruled-upon implicit motion is buried in the docket. The majority’s restriction on a position necessarily magistrate judge’s results ability in to an undue effectively perform his delegated tasks and imposes additional duties upon a delegating district court judge. Arn, it has addressed by required the Consequently, as envisioned by the panel to address district court judge substantial waste of judicial resources. Magistrates “reduce Act was increasingly F.2d at 93. to assist the unmanageable and matters has never caused a The purpose of the judiciary caseloads.” as a whole Schronce, to 727 The Supreme Court has recognized that the judicial system would “grind nearly to a halt” without the presence of magistrate judges at the trial court level. Wellness Intern. Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1939 (2015). The majority’s order in this case necessarily traverses several layers of waiver to conclude that remand of this matter to the district court is appropriate. The majority’s opinion in In re Carney best explains why affirming the grant of summary judgment is the correct result: 21 For our litigation system to work effectively, litigants must comply with the Federal Rules of Civil Procedure. [The Estate’s] plight in this case exemplifies how repeated failures to do so ultimately preclude a party from presenting the merits of his case. In re Carney, 258 F.3d 415, 422 (5th Cir. 2001). Given the aforementioned reasons, I must respectfully dissent. 22

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