Circuit Judge James E. Graves | Wikipedia
On August 15, the U.S. Court of Appeals for the Fifth Circuit pointed to a lack of jurisdiction when it dismissed a case in which a man sued after contracting mesothelioma from exposure to asbestos.
The appeals court determined that a lack of jurisdiction wasn’t settled by a Rule 54(b) judgment that came before. Three defendants were already voluntarily dismissed via Rule 41(a), so the case was no longer pending, and no more actions were appropriate.
Frank Williams Jr., now deceased, initially filed the lawsuit against Taylor Seidenbach, Inc., claiming he worked near asbestos during his days at a Louisiana NASA facility.
Williams’ case was removed to the Eastern District of Louisiana, and it was transferred to the Eastern District of Pennsylvania’s multi-district asbestos litigation (MDL). That court ruled there wasn’t enough evidence and gave summary judgment to each of the defendants Williams sued, including Taylor, sending the case back to the Louisiana District court in June 2014.
More than two years later, the plaintiff voluntarily dismissed all four of the defendants; one was dismissed with prejudice, but Williams' estate failed to explain whether the other three were being dismissed with or without prejudice. Still, the plaintiff then made an appeal to the current court, asking it to evaluate the MDL’s summary judgment. The court dismissed it for a lack of jurisdiction.
“We applied the settle rule that ‘appellate jurisdiction over a non-final order cannot be created by dismissing the remaining claims without prejudice,” the court said.
Since the plaintiff didn’t establish a final appealable judgment by filing a Rule 45(b) certification with the court, the appeals court determined the without-prejudice dismissal wasn’t a final one, and it didn’t create appellate jurisdiction.
The plaintiff went back to the lower court and said the defendants that were previously dismissed without prejudice should be dismissed with prejudice. The district court agreed to dismiss the case with prejudice, but only “to the extent any claims might still exist and are not time barred,” said the court. That’s when the appeal was filed.
Circuit Judge Stuart Kyle Duncan wrote the opinion. Circuit Judge James E. Graves concurred.
Circuit Judge Catharina Haynes concurred in her own opinion. She said the precedent is a little murky “at best,” but at worst it simply doesn’t make any sense. She wrote, “I understand the basic underpinning of the original rule: We do not want parties to circumvent the rules that limit interlocutory appeals by ‘creating’ finality where there is none.” But she added that ruling a voluntary dismissal without prejudice as inconclusive is a bit shady as it is.