BLD-021 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-1735 ___________

TED A. MCCRACKEN; GORETTI S. MCCRACKEN,

Appellants

v.

R.J. REYNOLDS TOBACCO; DEBRA CREW, President/Chief Executive Officer, R.J. Reynolds Tobacco Company, Successor; ITG BRANDS LLC; DAVID H. TAYLOR, President/Chief Executive Officer, ITG Brands, LLC, Successor; REPUBLIC TOBACCO, INC.; DONALD LEVIN, President/Chief Executive Officer, Republic Tobacco Inc., Successor ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civ. No. 2:17-cv-04495) District Judge: Honorable Mark A. Kearney ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 29, 2020

Before: AMBRO, SHWARTZ and PORTER, Circuit Judges

(Opinion filed: January 14, 2021) _________

OPINION* _________

PER CURIAM

Ted McCracken appeals pro se from the District Court’s order denying his motion

filed pursuant to Federal Rule of Civil Procedure 60(b).1 For the reasons that follow, we

will summarily affirm that order.

I.

McCracken was a heavy smoker for decades. In 2015, he was diagnosed with

chronic obstructive pulmonary disease, emphysema, and chronic bronchitis. Two years

later, he brought this civil action, raising design-defect, failure-to-warn, and other claims

against three tobacco companies and their respective chief executive officers. The

District Court dismissed some of McCracken’s claims. Later, in February 2019, the

District Court granted summary judgment against McCracken with respect to his

remaining claims and directed the District Court Clerk to close the case.

McCracken timely appealed, challenging the District Court’s dismissal of some of

his claims and its grant of summary judgment as to the remaining claims. That appeal

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 McCracken’s wife, Goretti McCracken, is also listed as an appellant. However, she did not sign the notice of appeal or submit any filings in this appeal, and her husband cannot represent her here. See Murray ex rel. Purnell v. City of Philadelphia,

(3d Cir. 2018) (“Although an individual may represent herself or himself pro se, a non- attorney may not represent other parties in federal court.”). Accordingly, we will dismiss this appeal as to Goretti McCracken.

2 was docketed at C.A. No. 19-1461. A few days after filing that appeal, McCracken

moved the District Court for “reargument” of its summary-judgment decision pursuant to

Federal Rule of Civil Procedure 59(e). In March 2019, the District Court entered an

order that (1) granted reargument to clarify certain findings it had made at the summary-

judgment stage, and (2) concluded that these clarified findings did not affect its decision

to grant summary judgment against McCracken. Thereafter, McCracken did not amend

his original notice of appeal or file a new notice of appeal challenging the District Court’s

March 2019 order.

In February 2020, at which point McCracken’s appeal in C.A. No. 19-1461 was

still pending, he moved the District Court to “dismiss” its summary-judgment decision

pursuant to Federal Rule of Civil Procedure 60(b). In support of that motion, McCracken

claimed that the summary-judgment decision was obtained via fraud because Dr.

Bhushan Agharkar, who was retained by the defendants as an expert witness, had not

physically examined McCracken. On March 2, 2020, the District Court entered an order

denying, for lack of jurisdiction, McCracken’s Rule 60(b) motion due to the pendency of

his appeal in C.A. No. 19-1461. McCracken then timely filed a notice of appeal

challenging that order. This new appeal was docketed at C.A. No. 20-1735.

In July 2020, we issued our decision in C.A. No. 19-1461, affirming the District

Court’s judgment. See McCracken v. R.J. Reynolds Tobacco,

, 124 (3d

Cir. 2020) (per curiam). McCracken’s appeal in C.A. No. 20-1735 is now before us.

3 II.

We have jurisdiction over this appeal pursuant to

. “We review

the denial of Rule 60(b) relief for an abuse of discretion.” Coltec Indus., Inc. v.

Hobgood,

(3d Cir. 2002). We may affirm a district court’s decision on

any basis supported by the record, see Murray v. Bledsoe,

(3d Cir.

2011) (per curiam), and we may take summary action if the appeal fails to present a

substantial question, see 3d Cir. I.O.P. 10.6.

The District Court denied McCracken’s Rule 60(b) motion based on its

determination that it lacked jurisdiction over that motion due to the pendency of his

appeal in C.A. No. 19-1461. It is true that, “[a]s a general rule, the timely filing of a

notice of appeal is an event of jurisdictional significance, immediately conferring

jurisdiction on a Court of Appeals and divesting a district court of its control over those

aspects of the case involved in the appeal.” Venen v. Sweet,

(3d Cir.

1985). But when, as here, a district court is presented with a Rule 60(b) motion that is

filed more than 28 days after the entry of the judgment being challenged on appeal, that

general rule does not prevent a district court from either denying the motion or indicating

that it would grant the motion if the case were remanded. See

.2

Notwithstanding the above, we see no reason to disturb the District Court’s denial

2 By contrast, when a Rule 60(b) motion is filed within 28 days after the entry of the district court’s judgment, the district court has full authority to adjudicate that motion, and an appeal from that court’s judgment does not become effective until after the court adjudicates the motion. See Fed. R. App. P. 4(a)(4)(A)(vi), (B)(i).

4 of McCracken’s Rule 60(b) motion. Recall that the basis for this motion was

McCracken’s argument that he was not physically examined by Dr. Agharkar. But we

rejected this very argument in our opinion in C.A. No. 19-1461, see McCracken, 821 F.

App’x at 125 n.2 (“[T]he record reflects that this expert completed a physical

examination of McCracken after several court orders were required to assure

McCracken’s attendance.”), and, in any event, no district judge could reasonably

conclude that McCracken is entitled to relief under Rule 60(b). McCracken purported to

rely on subsections (2) and (3) of Rule 60(b), but he failed to put forth any newly

discovered evidence, see Fed. R. Civ. P. 60(b)(2), or establish that the District Court’s

summary-judgment decision was the product of “fraud . . ., misrepresentation, or

misconduct by an opposing party,” Fed. R. Civ. P. 60(b)(3). Furthermore, the District

Court’s decision to grant summary judgment against McCracken did not hinge on

whether he was physically examined by Dr. Agharkar. Indeed, the District Court

explained in its March 2019 opinion addressing McCracken’s Rule 59(e) motion that,

“[e]ven if we disregarded Dr. Agharkar’s opinion, Mr. McCracken’s argument fails

because he has still failed to present causation evidence.” (Dist. Ct. Mem. entered Mar.

21, 2019, at 8.)

Because this appeal does not present a substantial question, we will summarily

affirm the District Court’s March 2, 2020 order denying McCracken’s Rule 60(b) motion.

5