IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-31159

TARSIA WILLIAMS; BRECK WILLIAMS, 

 Plaintiffs - Appellants

v.

TAYLOR SEIDENBACH, INCORPORATED, 

 Defendant - Appellee

Consolidated for argument with 18-31161

TARSIA WILLIAMS; BRECK WILLIAMS, 

 Plaintiffs - Appellants

v.

MCCARTY CORPORATION, 

 Defendant - Appellee

Appeals from the United States District Court

for the Eastern District of Louisiana

Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2019

Lyle W. Cayce

Clerk

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For the second time, we address whether we have appellate jurisdiction 

in this case. We previously recounted the case’s convoluted history, see

Williams v. Taylor-Seidenbach, Inc., 748 F. App’x 584 (5th Cir. 2018) (per 

curiam) (“Williams I”), and here provide only the relevant details. This case 

arises from a 2008 state court suit by Frank Williams, Jr.,1 alleging he contracted 

mesothelioma from asbestos while working at a NASA facility in Louisiana. He 

sued multiple defendants, including Appellees Taylor-Seidenbach and McCarty. 

The case was removed to the Eastern District of Louisiana and later transferred 

to the Eastern District of Pennsylvania’s multi-district asbestos litigation

(“MDL”). In June 2014, the MDL court granted summary judgment to several 

defendants including Appellees—based on insufficient evidence of causation—

and subsequently remanded the entire case back to the Eastern District of 

Louisiana.

In November 2016, Williams moved to voluntarily dismiss the four 

remaining defendants. As to one defendant, Williams moved to dismiss with 

prejudice; as to the three others, Williams did not specify whether dismissal 

was with or without prejudice. Accordingly, the district court dismissed one 

defendant with prejudice and the other three without specifying either way. 

Williams then appealed to this court, seeking review of the MDL court’s 

summary judgment grants and other orders.

We dismissed the appeal for lack of jurisdiction. Williams I, 748 F. App’x 

584. We applied the “settled rule that ‘appellate jurisdiction over a non-final 

order cannot be created by dismissing the remaining claims without prejudice[.]’”

748 F. App’x at 587 (quoting Swope v. Columbian Chemicals Co., 281 F.3d 185, 

192 (5th Cir. 2002)). The district court’s order dismissing three of the remaining 

 

1 Frank Williams passed away during the litigation, and his children, Tarsia and 

Breck Williams, were substituted for him. We refer to the plaintiffs collectively as “Williams.”

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defendants did not specify whether the dismissal was with or without prejudice

and so it was presumed to be without prejudice. Id. (citing Fed. R. Civ. P. 41(a); 

Marshall v. Kan. City S. Ry. Co., 378 F.3d 495, 501 (5th Cir. 2004)). We explained 

that, in those circumstances, Williams could have created a final appealable 

judgment under 28 U.S.C. § 1291 only by “fil[ing] for a Rule 54(b) certification 

with the trial court.” Id. Lacking that, we held the without-prejudice dismissal 

“was not a ‘final decision’ under § 1291 and did not create appellate jurisdiction.” 

Id.2 In other words, Williams had “stepped into the so-called ‘finality trap.’” 

Marshall, 378 F.3d at 499; see, e.g., 84 Lumber Co. v. Continental Cas. Co., 914 

F.3d 329, 332–33 (5th Cir. 2019) (“[A] party cannot use voluntary dismissal 

without prejudice as an end-run around the final judgment rule to convert an 

otherwise non-final—and thus non-appealable—ruling into a final decision 

appealable under § 1291.”) (quoting Marshall, 378 F.3d at 500) (cleaned up); 

see also generally Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 301–03

(5th Cir. 1978) (explaining genesis of rule).

That brings us to the present appeal. Attempting to cure the 

jurisdictional defect identified in Williams I, Williams returned to the district 

court and moved, pursuant to Rule 54(b), that the defendants previously 

dismissed without prejudice should now be dismissed with prejudice. As to 

those defendants, the district court then “direct[ed] entry of a final judgment 

under Rule 54(b) WITH PREJUDICE AND AGAINST 

PLAINTIFFS . . . but only to the extent any claims might still exist and are 

 

2 We also explained that “the [district court’s] grant of [Williams’] Rule 58 motion for 

entry of judgment similarly did not create appellate jurisdiction, as such order did not alter 

the district court’s dismissal of multiple defendants without prejudice.” Id. As we pointed out, 

“Rule 58(b)(1)(C) only directs the clerk to ‘promptly prepare, sign, and enter the judgment 

when . . . the court denies all relief’” and, moreover, “specifically states that it is subject to 

Rule 54(b).” Id.

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not time barred” (bold and underlining in original). The court added that the 

matter “appear[ed] ripe for appeal provided appellate rights, if any, still exist 

and are still timely for presentment” (underlining in original). Armed with this 

new judgment, Williams again appeals. In response, Appellees argue we still 

lack appellate jurisdiction for the same reasons explained in Williams I. We 

agree.

Contrary to Williams’ argument, the jurisdictional defect identified in 

Williams I was not cured by the subsequent Rule 54(b) judgment. The three 

remaining defendants had already been voluntarily dismissed under Rule 

41(a), and, after that, the case against them “no longer [wa]s pending in the 

district court and no further proceedings in the action [we]re proper.” 

9 WRIGHT & MILLER, FED. PRAC. & PROC. § 2367 (discussing effects of Rule 

41(a) voluntary dismissal); cf., e.g., Nat’l City Golf Fin. v. Commercial Capital 

Co., 899 F.3d 412, 415–416 (5th Cir. 2018) (explaining “[a] stipulation of 

dismissal under [Rule 41(a)(1)(A)(ii)] ordinarily—and automatically—strips 

the district court of subject-matter jurisdiction”). As a result, the subsequent 

Rule 54(b) judgment could have had no effect. Cf., e.g., SmallBizPros, Inc. v. 

MacDonald, 618 F.3d 458, 463 (5th. Cir 2010) (explaining that any district 

court action following the filing of a Rule 41(a)(1)(A)(ii) stipulation of dismissal 

“can have no force or effect”). Furthermore, as we pointed out in Williams I, 

the fact that the district court labeled its Rule 54(b) “judgment final does not 

necessarily make it so.” 748 F. App’x at 587 (citing Witherspoon v. White, 111 

F.3d 399, 401 (5th Cir. 1997)). Thus, the Rule 54(b) judgment did not 

retroactively transform the prior without-prejudice dismissals into withprejudice dismissals. We therefore conclude that the finality trap, which was 

found to bar appellate jurisdiction in Williams I, remains shut.

The appeal is DISMISSED for lack of jurisdiction.

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HAYNES, Circuit Judge, concurring:

I concur in the judgment of the court only because it faithfully applies 

our precedent as we are bound to do. I write separately, however, because our 

precedent at best is muddled, and at worst is simply wrong and illogical. I 

understand the basic underpinning of the original rule: we do not want parties 

to circumvent the rules that limit interlocutory appeals by “creating” finality 

where there is none. See Ryan v. Occidental Petroleum Corp., 577 F.3d 298, 

301–03 (5th Cir. 1978). The determination that a voluntary dismissal without 

prejudice is not “final” is itself suspect, though, given that, when a case is 

dismissed in full without prejudice, there is nothing left for the district court 

to do. Absent something else happening, like an appellate decision, a Rule 

60(b) motion, or a new lawsuit, the district court will not see those parties in 

that case again. Cases dismissed with prejudice are no different: an appellate 

court may reverse, a party can file a Rule 60(b) motion, and a party can file the 

exact same lawsuit again (although it may be subject to a res judicata defense, 

the lawsuit can be refiled)—all instances where the case returns to the district 

court. 

But we need not revisit Ryan and its progeny to correct the disturbing 

outcome here. Even assuming arguendo the validity of the precedent applied

during the first appeal of this case (finding the dismissal was “not final”), see 

Williams v. Taylor-Seidenbach, Inc., 748 F. App’x 584 (5th Cir. 2018) (per 

curiam) (“Williams I”), our precedent under the “finality trap” does not follow 

logically. 

For one thing, to the extent that this inability to appeal is meant as a 

sanction for the “misconduct” of voluntarily dismissing without prejudice, we 

require much more (rightly so) for litigation-ending or “death penalty 

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sanctions” in other contexts. See, e.g., Smith v. Legg, 24 F.3d 650, 654 (5th Cir. 

1994). Nothing suggests such a sanction is appropriate here.

Furthermore, we have the core of the problem: either the district court 

decision is final, or it is not. If it was not final, then the district court’s 

subsequent order granting Rule 54(b) relief should allow us to exercise 

appellate jurisdiction here. If it was final, then the panel in Williams I should 

have asserted jurisdiction. But somehow, applying the “finality trap,” both are 

true, and neither is true: in this case, the exact same judgment is both final 

and not final. In the John Minor Wisdom Courthouse (housing the Fifth 

Circuit), this decision was “not final.” But as the case traipses along the 

courtyard of fewer than 100 feet to the Hale Boggs Federal Building (housing 

this district court), it suddenly becomes final again. How does that make any

sense? 

New Orleans tourists often revel in the numerous ghost tours available 

throughout the city. But, as courts, we should not allow ghostly magic to 

transform a decision from not final to final and vice-versa merely because it 

crosses (virtually) a courtyard between a district court building and circuit

court building. 

Indeed, the very fact of a “trap” should “tip us off that [the finality trap] 

rests on a mistaken view” of the law. See Knick v. Town of Scott, 139 S. Ct. 

2162, 2167 (2019) (addressing “trap” created by rule that party must first seek 

state relief but then is usually barred by state’s denial of relief in seeking 

compensation for takings in violation of the Fifth Amendment). We should 

take this case en banc to correct this egregious mess and make it clear that 

when we have deemed a case “not final” for purposes of appeal because of a 

dismissal without prejudice, then the district court regains jurisdiction to “fix” 

the lack of finality either by granting a Rule 54(b) motion or revising the 

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dismissal “without prejudice” to render it “with prejudice.”1 Thus, while I 

concur in the majority opinion under current precedent, I strongly disagree 

with the underlying rationale.2

 

1 The solution to this problem is not earth-shattering. The en banc court would 

merely have to slightly alter current precedent that “any action by the district court 

after the filing of such [Rule 41(a)(1)(A)(ii)] a stipulation can have no force or effect 

because the matter has already been dismissed by the parties themselves without 

any court action” by allowing the district court to grant Rule 54(b) relief or enter a 

dismissal with prejudice with the consent of the plaintiff. SmallBizPros, Inc. v. 

MacDonald, 618 F.3d 458, 663 (5th Cir. 2010) (emphasis added).

2 Some of our sister circuits have found more logical solutions with respect to

the “finality trap.” For example, the Ninth Circuit applies a case-by-case analysis,

allowing for appeals after dismissals without prejudice, if “the record reveals no 

evidence of intent to manipulate [] appellate jurisdiction.” James v. Price Stern 

Sloan, Inc., 283 F.3d 1064, 1069–70 (9th Cir. 2002) (rejecting the Ryan rule and 

stating agreement with the Sixth, Seventh, and Eighth Circuits). The Seventh and 

Fourth Circuits look to the state of the litigation when the appeal is taken. See, e.g., 

Sims v. EGA Prod., Inc., 475 F.3d 865, 867 (7th Cir. 2007) (“In evaluating ‘finality,’ 

we [have held that] it is essential to look at the whole picture, including claims that 

have been put on the back burner through a dismissal-with-leave-to-reinstate 

procedure.”); GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 176 (4th Cir. 2007) 

(“What makes [dismissal without prejudice] final or nonfinal is not the speculative 

possibility of a new lawsuit, but that they ‘end the litigation on the merits and leave 

nothing for the court to do but execute the judgment.’” (quotation omitted). The First 

and Third Circuits allow the court to rely on the litigants’ consent or declarations. 

See Scanlon v. M.V. SUPER SERVANT 3, 429 F.3d 6, 8 (1st Cir. 2005) (“[I]t is possible 

for a party to consent to a judgment and still preserve [its] right to appeal a previous 

ruling on a contested matter in the case, as long as it reserve[s] that right 

unequivocally.”); Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991) (finding that 

plaintiffs cured the appellate jurisdictional defect by “renounce[ing], through letter 

briefs, any intention to take further action against the [defendants]”).

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