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).

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