IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20710

Summary Calendar

RICARDO G. GARCIA, 

 Plaintiff–Appellant

v.

INTERNATIONAL CONSTRUCTION EQUIPMENT, INCORPORATED, 

 Defendant–Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-3575

Before DAVIS, GRAVES, and HO, Circuit Judges.

PER CURIAM:*

In the instant case (“Garcia I”), Plaintiff Ricardo Garcia filed a notice of 

dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). The district 

court, the Honorable Lynn Hughes presiding, issued an order of dismissal 

which included a condition that “[i]f refiled in or removed to the Southern 

District of Texas, the case will be assigned to Judge Hughes.” On the next day, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 23, 2019

Lyle W. Cayce

Clerk

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No. 18-20710

2

Plaintiff re-filed his complaint in Texas state court, alleging largely the same 

set of facts and legal claims. Defendants then removed the case to the

Southern District of Texas; the case (“Garcia II”) was randomly allotted to the 

Honorable Sim Lake. Later, by “[a]greement between judges,” Judge Lake 

transferred Garcia II to Judge Hughes. Plaintiff now appeals the district 

court’s order of dismissal in Garcia I, arguing that the re-filing condition is 

impermissible under Rule 41(a)(1)(i). 

Regardless of the merits on appeal, we recognize that this case is now 

moot. “A claim becomes moot when the issues presented are no longer live or 

the parties lack a legally cognizable interest in the outcome.” Piggly Wiggly 

Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177 F.3d 380, 383 (5th Cir. 1999). In 

this case, Judge Lake transferred Garcia II to Judge Hughes after Plaintiff 

filed his notice of appeal in Garcia I. Judge Lake’s transfer order was not 

compelled by Judge Hughes’ order of dismissal, but by “[a]greement between 

the judges.” Regardless of a district court’s jurisdiction in a case after a 

plaintiff files a Rule 41(a)(1)(A) voluntary dismissal, we permit intra-district 

case transfers to prevent judge-shopping: “Any district court . . . is free . . . to 

require that a re-filed action be assigned to the original judge, or to require 

that if a re-filed case is assigned to a different judge, that judge shall transfer 

the case to the original judge.” Int’l Driver Training Inc. v. J-BJRD Inc., 202 

F. App’x 714, 716 (5th Cir. 2006).1 Moreover, under Rule 41(a)(1)(B), commonly

referred to as the two-dismissal rule, “a notice of dismissal [in the second case] 

operates as an adjudication on the merits.” Cabot Golf CL-PP 1, LLC v. Nixon 

Peabody, LLP, 575 F. App’x 216, 218 (5th Cir. 2014). Plaintiff therefore cannot 

 

1 While our unpublished opinions are not controlling precedent, they may be 

persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citation 

omitted). 

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No. 18-20710

3

voluntarily dismiss Garcia II and re-file his case for a third time without 

having final judgment issued against him—notwithstanding which judge he

then draws. Accordingly, we find that the contested condition in Judge 

Hughes’ order of dismissal, in Garcia I, can no longer affect Plaintiff’s claims, 

and this appeal must be dismissed as moot.

DISMISSED AS MOOT.

 Case: 18-20710 Document: 00514926417 Page: 3 Date Filed: 04/23/2019