[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 18, 2004
No. 04-13654
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01202-CV-MHS-1
VERSA PRODUCTS, INC.,
a Wisconsin Corporation,
G & L PRODUCTS, INC.,
an Iowa Corporation, and the respective
shareholders of Versa and G&L including
but not limited to David Lambert, Sr.,
David Lambert, Jr. and Richard Lambart,
Plaintiffs-Appellants,
versus
HOME DEPOT, USA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 18, 2004)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
The issue presented is whether an order granting a voluntary dismissal of a
complaint without prejudice can be appealed when the dismissal was on the
condition that, upon any refiling, the plaintiff must pay the attorneys’ fees and
costs of the defendant and file the complaint in the same venue to which the action
had been transferred. Because these conditions on the voluntary dismissal protect
the defendant from unfairness and do not constitute legal prejudice to the plaintiff,
we conclude that the district court did not abuse its discretion and accordingly
dismiss this appeal.
I. BACKGROUND
Versa Products, Inc. (Versa) filed a complaint in the Eastern District of
Missouri against Home Depot, USA, Inc. (Home Depot) and asserted claims of
fraud, deceptive trade practices, violations of the federal RICO statute, and other
wrongs. Home Depot obtained, under 28 U.S.C. section 1404(a), a transfer of the
action, for forum non conveniens, to the Northern District of Georgia. Versa then
moved for a voluntary dismissal without prejudice. Home Depot did not object to
that dismissal, but requested that the district court place conditions on the refiling
of a complaint by Versa. Versa objected to the conditions requested by Home
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Depot. The district court granted the voluntary dismissal on the condition that, if
Versa refiles its complaint, Versa must pay the costs and fees incurred by Home
Depot and file the new complaint in the Northern District of Georgia.
Versa then filed this appeal. In response to jurisdictional questions from this
Court, Versa conceded that the order transferring this action from the district court
in Missouri to the district court in Georgia is unreviewable because “we ‘lack
appellate jurisdiction to review the decision of a district court in another circuit.’”
Murray v. Scott, 253 F.3d 1308, 1314 (11th Cir. 2001) (citing Roofing & Sheet
Metal Serv., Inc. v. La Quinta Motor Inns, 689 F.2d 982, 986 (11th Cir.1982)).
We now turn to the remaining issue of the conditions placed on the voluntary
dismissal of this action.
II. STANDARD OF REVIEW
We review, for abuse of discretion, the conditions placed by the district
court on the voluntary dismissal of this action. Ortega Trujillo v. Banco Central
Del Ecuador, 379 F.3d 1298, 1301 (11th Cir. 2004); LeCompte v. Mr. Chip, Inc.,
528 F.2d 601, 605 (5th Cir. 1976). So long as the district court granted the
voluntary dismissal without imposing conditions of legal prejudice to the plaintiff,
the order of dismissal is not appealable.
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III. DISCUSSION
Federal Rule of Civil Procedure 41(a)(2) provides that “an action shall not
be dismissed at the plaintiff’s instance save upon order of the court and upon such
terms and conditions as the court deems proper. ... Unless otherwise specified in
the order, a dismissal under this paragraph is without prejudice.” Fed. R. Civ. P.
41(a)(2). “The basic purpose of Rule 41(a)(2) is to freely permit the plaintiff, with
court approval, to voluntarily dismiss an action so long as no other party will be
prejudiced.” LeCompte, 528 F.2d at 604.
To determine whether we have jurisdiction to review this voluntary
dismissal, we consider two matters. We first review the standard of legal prejudice
for the review of a voluntary dismissal under Rule 41(a)(2). We then apply that
standard to this appeal.
A. The Standard for Legal Prejudice Under Rule 41(a)(2)
Ordinarily a plaintiff cannot appeal an order granting a voluntary dismissal
without prejudice under Rule 41(a)(2). A voluntary dismissal without prejudice
“does not qualify as an involuntary adverse judgment so far as the plaintiff is
concerned.” Id. at 603 (quoting 5 James Wm. Moore, et al., Moore’s Federal
Practice ¶ 41.05(3) at 1068 (2d ed. 1975)). “This can easily be understood since
the plaintiff has acquired that which he sought, the dismissal of his action and the
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right to bring a later suit on the same cause of action, without adjudication of the
merits.” Id.
A dismissal without prejudice, which is not appealable, is distinguished from
a dismissal with prejudice, which is appealable. “There the dismissal actually goes
to the merits of the case and is considered a final appealable order so that the
plaintiff may appeal therefrom.” Id. In LeCompte, the former Fifth Circuit held
that a voluntary dismissal purportedly without prejudice but containing a condition
that amounted to “legal prejudice” to the plaintiff was appealable like a dismissal
with prejudice, because “the order had that effect.” Id.
The LeCompte court explained that the critical issue in determining whether
the conditions placed on a voluntary dismissal amount to legal prejudice is whether
the conditions are “designed to reduce inconvenience to the defendant.” Id. The
LeCompte court acknowledged that, at least practically, any condition placed on
the dismissal prejudices the plaintiff, but practical prejudice is to be distinguished
from legal prejudice:
In one sense, any requirement imposed upon a plaintiff as a
condition for allowing him a voluntary dismissal amounts to some
degree of prejudice to his action, as a practical matter. Our research
indicates, however, that generally the conditions imposed do not
create prejudice in a legal sense to the bringing of another suit.
Rather, the usual conditions attached to a voluntary dismissal involve
prejudice only in a practical sense (e.g., paying costs or expenses,
producing documents, producing witnesses). The imposition of this
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type [of] condition does not amount to the type of “legal prejudice”
which would entitle a plaintiff to appeal the grant of the dismissal he
obtains.
Id.
In LeCompte, the dismissal amounted to legal prejudice because the plaintiff
was “severely circumscribed in his freedom to bring a later suit.” Id. at 604. The
district court conditioned the dismissal on the plaintiff having to “come before the
same court and affirmatively demonstrate that the case should be reopened and that
he possesses a valid cause of action” in the event that the plaintiff refiled his
complaint. Id. The LeCompte court held that this condition constituted legal
prejudice, because it was “uncertain, as a matter of future court decision, whether
[the plaintiff would] be allowed to bring the second suit.” Id.
B. The Conditions of Versa’s Voluntary Dismissal
Versa argues that the conditions imposed on the voluntary dismissal of this
action amount to legal prejudice under LeCompte. We disagree. Both conditions
are designed to protect Home Depot from unfairness and do not prejudice Versa in
its right to renew this litigation.
The first condition–that Versa, upon refiling, pay the fees and costs incurred
by Home Depot in defending this case–is plainly intended to protect Home Depot
from the unfairness of duplicative litigation. In Ortega Trujillo, for example, we
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upheld a voluntary dismissal on the condition that the plaintiff pay the defendant
approximately $700,000 in costs and fees. 379 F.3d at 1300, 1303. In Yoffe v.
Keller Industries, Inc., the former Fifth Circuit upheld a condition that the plaintiff
pay the defendant $44,000 in costs and fees, which in 2004 dollars would be a six-
figure sum. 580 F.2d 126, 129-30 (5th Cir. 1978). The condition that Versa pay
the fees only upon refiling is less severe than the conditions of immediate payment
in Ortega Trujillo and Yoffe; it does not amount to legal prejudice to the plaintiff
because the plaintiff’s right to renew the litigation is certain. Cf. Potenberg v.
Boston Scientific Corp., 252 F.3d 1253, 1258 (11th Cir. 2001) (no abuse of
discretion in granting voluntary dismissal on condition of paying costs of
defendant upon refiling).
The second condition–the venue restriction–was imposed by the district
court in LeCompte, but the Fifth Circuit did not determine whether that condition
amounted to legal prejudice to the defendant. LeCompte, 528 F.2d at 602. The
only court of appeals to have addressed a similar issue did so forty years ago. In
Scholl v. Felmont Oil Corp., the Sixth Circuit held that a district court properly
conditioned a voluntary dismissal on the refiling of the complaint in the federal
district court to which the action had been removed from a state court. 327 F.2d
697, 699-700 (6th Cir. 1964).
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The condition that Versa refile a future complaint in the Northern District of
Georgia does not constitute legal prejudice to Versa. This venue restriction
protects Home Depot from the unfairness of having to relitigate the issue of the
more convenient forum for this dispute, but the venue restriction maintains the
right of Versa to file a new complaint. The venue restriction also promotes judicial
economy because the transfer from the Eastern District of Missouri maintains its
legal force. The condition does nothing more than preserve, upon refiling, the
status quo ante.
IV. CONCLUSION
Because the district court did not abuse its discretion in placing conditions
on the voluntary dismissal of this action that protect Home Depot from unfairness
and do not constitute legal prejudice to Versa, this appeal is
DISMISSED.
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