Does Rule 60(b) allow relief from a Rule 41 voluntary dismissal?

Plaintiff voluntarily dismissed a Texas suit under Rule 41, refiled in New York, and then voluntarily dismissed that action as well.  Because the second dismissal was with prejudice under the Federal Rules, Plaintiff sought relief under Rule 60(b) to allow reinstatement of the original case.  Yesh Music v. Lakewood Church, No. 12-20520 (August 14, 2013). Defendant argued that a voluntary dismissal is not a “final proceeding” for Rule 60 purposes.  The Fifth Circuit affirmed the grant of 60(b) relief.  The Court acknowledged Harvey Specialty & Supply, Inc. v. Anson Flowline Equipment, Inc., 434 F.3d 320 (5th Cir. 2005), which found no preclusive effect for a Rule 41 voluntary dismissal, but concluded that one was still a “final . . . proceeding” within Rule 60 because of its practical effect.  The Court noted that the weight of authority from other Circuits agreed with this conclusion.

FDIC’s successor has standing

The issue in FDIC v. SLE, Inc. was whether a party could assert rights under a prior judgment in favor of the FDIC, where evidence established that it was the FDIC’s successor-in-interest and assignee, but the party did not substitute in as plaintiff in the case under Fed. R. Civ. P. 25.  No. 12-30539 (July 2, 2013, unpublished).  The Fifth Circuit affirmed the denial of Rule 60(b)(4) relief, noting that the plain language of Rule 25(c) and (a)(3) is permissive, not mandatory, and distinguishing two cases on the issue.

Unreviewable remand order after joinder

In Fontenot v. Watson Pharmaceuticals, a long-running products liability and medical malpractice case about a transdermal pain patch, plaintiffs sought to add nondiverse health care providers to the case after removal.  No. 12-30711 (June 10, 2013).  The district court remanded pursuant to 28 U.S.C. § 1447(e).  The Fifth Circuit dismissed for lack of appellate jurisdiction, concluding that a remand for lack of subject jurisdiction was unreviewable under Thermtron just like a jurisdictional remand under 1447(c), and noting that all other circuits facing the issue reached the same conclusion.  The Court also found that the joinder ruling that led to the jurisdictional issue was unreviewable as a collateral order.

Blimp dispute grounded for lack of jurisdiction.

A dispute about guaranty obligations related to the purchase of a blimp was removed to federal court.  The district court granted a motion to compel arbitration, stayed the case, and administratively closed it.  McCardell v. Regent Private Capital LLC, No. 12-31089 (June 7, 2013, unpublished).  The Fifth Circuit reminded that administrative closure does not create a final judgment, and thus dismissed for lack of appellate jurisdiction over the interlocutory appeal.

Rule 60(b)(5) and a co-defendant’s appeal

Lowry Development LLC v. Groves & Assocs. Insurance involved a real estate developer who sued its insurer about coverage for wind damage, and alternatively, its insurance agent for negligence.  No. 11-60670 (Aug. 3, 2012).  The district court granted summary judgment for the developer against the insurer (thereby mooting the claim against the agent), which the Fifth Circuit reversed.  Id. at 3.   The developer then sought to reinstate its claim against the agent.  The Court found that the agent’s dismissal was “based on an earlier judgment that has been reversed or vacated” and thus came within Fed. R. Civ. P. 60(b)(5).  The agent argued that the insurer should have taken a protective appeal at the time of the original dismissal, but the Court, “[a]cknowledging that [plaintiff’s Rule 60(b) motion looks like the protective appeal it failed to file,” found no abuse of discretion in the district court’s decision to grant the motion.  Id. at 10.

Law of the case doctrine allows vacating of earlier findings

In Stoffels v. SBC Communications, the Court addressed issues about whether a “retiree concession” program involving long-distance discounts should be regulated as a retirement plan under ERISA.  No. 11-50148 (April 16, 2012).  In the court below, a district judge held a trial and made fact findings, after which he recused himself.  The second judge vacated those findings in light of a new and related Fifth Circuit opinion, Boos v. AT&T, 643 F.2d 127 (5th Cir. 2011).   The Court found that Fed. R. Civ. P. 54 gave the judge authority to do so, that the “law of the case” doctrine did not constrain his authority, and that this case was not materiall different on the merits from Boos.  Op. at 8-9.

Magistrate dismissal not final

The Court released a revised opinion in Barber v. Shinseki, in which the appellant sought review of a magistrate’s electronic order dismissing his case.  The Court first observed that the appellant did not appear to have consented to final disposition of his case by a magistrate as opposed to the district judge.  Op. at 3-4.  The Court went on to note that “[t]he electronic order entered by the magistrate judge . . . does not appear on any document–electronic or otherwise–other than as merely a separate entry on the docket sheet,” and thus did not comply with the requirement of Fed. R. Civ. P. 58 that “every judgment shall be set forth on a separate document.”  Op. at 4.  The Court noted that certain exceptions to Rule 58 were not applicable.  Op. at 4 n.2.  (The opinion was revised to “remove language indicating that all judgments must be set forth on paper documents” and to note that an appropriate document “may be electronic.”  Op. at 1.