En Banc Argument in the Fifth Circuit’s Zombie Action
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).
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
Federal courts of appeals have spent a lot of energy determining whether litigants can appeal after a dismissal without prejudice. Some courts have declared that these dismissals are final decisions and thus generally appealable. And some courts—sometimes the same courts, albeit in different opinions—announce the opposite rule: that dismissals without prejudice are not generally appealable. […]
Continue reading....
I have a new article on appeals from voluntary dismissals after an adverse interlocutory decision.
Continue reading....
Earlier this year, the Eleventh Circuit reiterated its rule that litigants cannot voluntarily dismiss individual claims under Federal Rule of Civil Procedure 41(a)(1). That portion of the rule permits plaintiffs to voluntarily dismiss “an action without a court order.” So plaintiffs can dismiss only entire actions under Rule 41(a)(1), and attempts to dismiss individual claims […]
Continue reading....
In In re Esteva, the Eleventh Circuit dismissed an appeal after concluding that a Rule 41(a)(1)(A) voluntary dismissal was ineffective. The stipulated dismissal purported to dismiss all unresolved claims. But according to the Eleventh Circuit, that’s not allowed—Rule 41(a)(1)(A) permits the voluntary dismissal of only entire actions, not individual claims. With the voluntary dismissal ineffective, […]
Continue reading....
I’ve written a lot on this site about the finality trap in the last few years. Now I’ve published an essay on the trap in the New York University Law Review Online. I argue that the trap is asinine. And there’s an easy fix to it: let litigants disclaim the right to refile voluntarily dismissed […]
Continue reading....Recent Posts
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Continue reading....
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel. Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after […]
Continue reading....
I’m thrilled to announce the creation of Final Decisions PLLC, an appellate boutique and consultancy focused on appellate jurisdiction. Through it, I hope to partner with lawyers facing complex appellate-jurisdiction issues. Almost six years ago, I started the Final Decisions blog as a way to keep on top of developments in the world of appellate […]
Continue reading....
In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under […]
Continue reading....
In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.
Continue reading....