Appellate Decisions

En Banc Argument in the Fifth Circuit’s Zombie Action

The court heard argument on its “finality trap”—the rule that precludes appeals when plaintiffs voluntarily dismiss some claims without prejudice.

January 23, 2020

By Bryan Lammon

Update: For my full post on the argument in Williams, see The Fifth Circuit & the Finality Trap.

The en banc Fifth Circuit heard argument this morning in Williams v. Taylor Seidenbach, Inc. The case addresses the finality and appealability of an action when some claims have been decided on the merits but others have been voluntarily dismissed without prejudice.

Williams has involved multiple trips to the Fifth Circuit. In Williams I, a panel held that plaintiffs who voluntarily dismissed their outstanding claims could not appeal the claims that they had lost on the merits; the voluntary dismissal without prejudice precluded the district court’s decision from being final. And in Williams II, when the plaintiffs tried to fix this by returning to the district court and changing their dismissal to be one with prejudice, a second panel held that the district court could not do so because district court proceedings were done. So the case was over and unchangeable in the district court but not final for purposes of appeal.

For more on the litigation and the underlying problem in Williams, see my post from last summer: The Fifth Circuit Creates a Zombie Action.

Williams I: Williams v. Taylor-Seidenbach, Inc., 748 F. App’x 584 (5th Cir. 2018), available at Google Scholar and Westlaw.

Williams II: Williams v. Taylor-Seidenbach, Inc., 935 F.3d 358 (5th Cir. 2019), available at Google Scholar and Westlaw.

Oral Argument Recording, Williams v. Taylor Seidenbach, Inc., No. 18-31159 (consolidated with 18-31161).

recent posts

No Perlman Appeals When the Same Issues Could Be Raised via Contempt
The Eleventh Circuit held that a privilege claimant cannot take a Perlman appeal when the claimant could have raised the same issues via its own contempt appeal.
A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule
The Fifth Circuit held that when an imprisoned appellant mistakenly mails a notice of appeal to the court of appeals, the notice is deemed filed when deposited in the prison mail system.
The Month in Federal Appellate Jurisdiction: September 2024
Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.
Serving, Filing, and Equitable Exceptions to Rule 4(a)(4)
The Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the appeal clock. The court added that Rule 4(a)(4) does not allow for equitable exceptions and addressed an order-designation issue, too.
Yet Another Split Rejection of Pure Bivens Appeals
The Ninth Circuit joined the Third and Tenth Circuits in rejecting pure Bivens appeals. But like those courts, the Ninth’s decision was split.

related posts

New Essay on Appeals After Dismissals Without Prejudice
In a new essay, I argue that there is no helpful general rule about the appealability of dismissals without prejudice. Courts would do well to ignore the without-prejudice designation when determining appellate jurisdiction.
New Article on Appeals After Voluntary Dismissals
Voluntary dismissals after adverse interlocutory orders don’t create a jurisdictional problem. They instead implicate waiver.
More on Rule 41 Dismissals of Actions and Claims
The Eleventh Circuit held that plaintiffs can voluntarily dismiss only entire actions, regardless of whether they use Rule 41(a)(1) or (2).
Finality After Rule 41 Dismissals of Claims & Actions
The Eleventh Circuit held that a Rule 41(a)(1)(A) dismissal—which purported to dismiss all unresolved claims—was ineffective and thus did not produce a final, appealable decision.
New Essay on the Finality Trap
The courts of appeals have created an asinine finality trap that they need to get rid of. The trap also makes me wonder whether we need to rethink finality.