### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20520

YESH MUSIC, RICHARD CUPOLO, & JOHN EMANUELE, Plaintiffs-Appellees

v. LAKEWOOD CHURCH, JOEL OSTEEN & VICTORIA OSTEEN, Defendants-Appellants

Appeal from the United States District Court for the Southern District of Texas

Before JOLLY, DAVIS, and PRADO, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: Plaintiff-Ap p e l l ee filed a copyright infringement complaint against Defendant-Appellant, which it later voluntarily dismissed without prej udice. Plaintiff-Appellee s ubsequently filed a motion to vacate its voluntary dismissal under Rule 60(b), which the district c o urt granted. B ecause we find that a voluntary dismissal without prejudice i s a “ f i n a l p roceeding” under Rule 60(b) and t h e district c ourt did not abuse its discretion i n dismissing this case, we AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 14, 2013 Ly l e W . Cay ce Clerk Case: 12-20520 Document: 00512341666 Page: 1 Date Filed: 08/14/2013No. 12-20520 I. Plaintiff-Appellee Yesh Music is a general partnership comprised of Appellees Richard Cupolo and John Emanuel e , two musicians who write, record, and perform a mbient music. D efendant-Appellant Lakewood Church ( “Lakewood”), pastored by Joel and Victoria Osteen, is a Houston-based nondenominational c hurch and one of the largest churches in the United S tates. In February 2010, Yesh Music granted Lakewood a l i m i t ed license to use a song entitled “Signaling Through the Flames” (“th e T r a c k”) i n c o n n e c t i o n wi t h various marketing media. When Lakewood u s e d th e T r a c k i n a t e l evi s e d p r o m otional broadcast, Yesh Music a s s e r t e d that the limited license did not permit use of the Track on television and t hat in any case, the term of the l icense h a d e x pired. Unable to resolve their dispute, Yesh M u s i c filed a copyright infringement suit against Lakewood in the district court in August 2011. On February 20, 2012, Yesh Music v oluntarily dismissed the suit un d e r Federal Rule of Civil Procedure 41(a)(1)(A)(i). The next day, Yesh Music re-filed the same suit against Lakewood in New York f ederal court. In response, Lakewood asked the New York court to stay the action s o that Lakewood could seek reimbursement o f expenses incurred in the Texas a ction. In a hearing o n its motion f o r c o sts in Texas district court, Yesh Music indicated that it had re-filed the action i n N ew York in part because it wished to substitute a newly-formed Yesh Music LLC as the party in in t e r est. In response, Lakewood asserted that Yes h M usic’s actions were mere legal posturing and that a New York venue would be burdensome on the parties. After voicing their respective concerns, the parties s tipulated on the record before the Texas court as follows: THE COURT: Okay. Then what have we a greed to here ? W e’ve agreed that t he individu a l claimants will remain as p l aintiffs. W e’ve

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agreed that the case will proceed here and not in New York.

. . . Is everybody okay with that? [Parties agree]
On April 4, 2012, Yes h M usic voluntarily di smissed its New York s uit, again under Federal Rule 41(a)(1)(A)(i). Under R ule 41(a)(1)(B), the two successive v olun t a r y dismissals of the lawsuit had the effect of rendering the second dismissal as one with prejudice. As a result, to reinstate its claim in the Texas district court, Yesh Music filed a motion for reli e f f

r o m a f inal judgment under Federal Rule 60(b). Specifically, the moti o n r e quested that the court vacate Yesh M usic’s first v oluntary dismissal and r e instate Yesh Music’s original T exas lawsuit. H owever, Lakewood contested the motion, contending that Rule 60(b) only provides for relief from final j udgments, and that an initial voluntary dismissal under Rule 41(a) is not a final judgment. Accordingly, Lakewood argued, t he Texas district court did not have subject m atter jurisdiction and could not vacate Yesh Music’s first di smissal. Regardless, Lakewood a rgued that even if the district court could vacate the first dismissal, it would be an abuse of discretion to do so. In its corresponding order, the district court rejected both of Lakewood’s

a rguments. Recognizing the broad equitable power granted to district courts under Rule 6 0(b), it determined that district courts retain jurisdiction to vacate volunt a r y d ismissals without prejudice. Moreover, because the parties had agreed to dismiss the New York action and reinstate the T e xas action, t he court found it would be unjust to deny Yesh Music’s m otion. Lakewood n ow appeals. I I. We review a dist rict court’s grant of a R u le 60(b) motion f or abuse of discretion. Fr aza r v . L add , 457 F.3d 432, 435 (5th Cir. 2006). However, we review de n ovo any questions of law underlying t he district court’s decision. I d

.

3 Case: 12-20520 Document: 00512341666 Page: 3 Date Filed: 08/14/2013No. 12-20520 III. A. Lakewood’s primary argument on appeal i s that the district c ourt lacked jurisdiction to vacate Yesh Music’s voluntary dismissal without prejudice. In reinstati n g Y e s h Music’s claim, the district court purported to grant relief from a judgment under R ule 60(b)(6). R ule 60(b) p r ovides, in relevant part:

On motion and just terms, the court may r e lieve a party

. . . f rom a final judgment, order, or proceeding for the following reasons:

. . . . (6) any other reason that justifies relief. Specifically, the “f

inal judgment, order, o r proceeding” that the district court vacated in the instant case was Yesh Music’s Rule 41 volu n t a ry dismissal. Under Rule 41(a)(1)(A),
[T]he plaintiff may dismiss an action without a c ourt order by filing: (i) a notice of dismissal before the opp o s i n g p arty serves either an answer or a motion for summary judgment; or (ii) a stipulatio n o f dismissal signed by a ll parties who have appeared.
Rule 4 1(a)(1) “on its face grants a plaintiff a n unconditional r ight to dismiss his complaint by notice a n d without order of the court a t any time prior to the defendant’s servic e o f a n answer or motion for summary judgment.” Pilot Freight Carriers, Inc. v. Int’l Bhd. of Teamsters , 5 0 6 F

. 2 d 914, 915 (5th Cir. 1975). Moreover, the first time a p l a i n tiff v oluntary dismisses his claim, it is without prejudice

. See Rule 4 1(a)(1)(B). “[T]he effect of a R ule 41(a)(1) dismissal is to put the plain t i f

f in a legal position as if he had never brought the first suit. The plaintiff suffers no impairment beyond his fee for f iling. Stated di fferently, the plaintiff is free to return to the dismissing court or other courts at a later date

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with the same claim.” Harvey Specialty & Supply, Inc. v. A n son Flowline Equip. Inc ., 434 F.3d 320, 3 24 (5th Cir. 2005). 1 Relying on this r e asoning, Lakewood argues that a Rule 41(a)(1)(a)(i) voluntary dismissal without prejudice is not a “final j udgment, o r der, or p roceeding”; and because R ule 60(b) only empowers a district court t o v a c a t e f i n a l dispositions, the district court is without j urisdiction to vacate a Rule 41(a)(1)(A)(i) voluntary dismissal without prejudice. When interpreting R ules 41(a)(1) and 6 0(b), we are to “‘give the Federal Rules of Civil Procedure their plain meaning.’ As with a statute, our inquiry is complete if w e find t h e text o f t h e R u le[s] t o be clear and unambiguous.” 2 We need look no f

u rther than the text of Rule 60(b), L akewood contends, because it only permits vacatur of a “final judgment, order, or p roceeding;” moreover, Rule 41(a)(1)(B) deems first voluntary dismissals to be without prejudice. However, reading these rules together does not necessarily lead to Lakewood’s proffered conclusion. What the rules do n o t i ndicate and what we must determine is whether a voluntary dismissal without p rejudice c an be a “ final judgment, order, or proceeding” within the meaning of Rule 60(b). To provide this missing lin k , L akewood r elies on our decision in Harvey Spec i a l ty & Supply v. A nson . 434 F.3d 320. In that case, t he court considered whether a Rule 41(a)(1) voluntary dismissal without prejudice w as a “final judgment” for purposes of collatera l e s t o p pel. 3 Id

. at 323–24. Recognizing that

a p laintiff has an “ab s o l u t e r i ght” to a first voluntary dismissal and is free to

1 (internal citations , brack ets , and quotes om itted )

.
2 Busi ness Gui des, Inc. v . Chrom a ti c Com m uni ca ti ons Enterp ri ses, Inc

. , 498 U

. S. 533, 540–41 ( 1991) ( quoting Pa v el i c & LeFl ore v . M a rv el Enterta i nm ent G roup , 493 U

. S. 120, 123 ( 1989) )

.

3 To be clear, the Ha rv ey court was actually concerned w ith the relitigation excep tion t o t h e Anti- I njunction Act, which p erm its a f ed eral court to enjoin s tate court p roceed ings
w here neces s ary to protect or ef f ectuate th e f

e d eral court’s jud gm ents

. Id

. at 323. H ow ever, as the court recognized , collateral es top p el p rincip les are relevant becaus e it is on thos e p rincip les that the relitigation excep tion is f ound ed

. Id

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r e t u rn to court with the same claim, the court concluded that “[u]ltimately, a Rule 41(a)(1) dismissal is not a ‘final judgment.’” Id . at 324. However, the question bef o r e the Harvey court—whether a v oluntary dismissal w i t hout p rejudice deserves preclusive effect—is a f undamentally different question than the question before us—whether a voluntary dismissal without p rejudice is a “final judgment, order, o r proceeding” s ubject to vacatur. Specifically, the requirement that a disposition be final does n ot neces s arily mandate that it have been irrevocably j udicially resolved. 4 Unlike t h e technical interpretation offered by Lakewood, a plain reading of “final” supports defining it as something which is prac t i cally “finished,” “closed,” or “completed.” See Gillespie v. U.S. Steel Corp ., 379 U.S. 148, 152 (1964) (“[T]he r equ i r e m e n t of finality is to be given a ‘practical rather than a technical construction.’”). Unless

a plainti f

f a c t s to r e-file her claim in the future, a Rule 41(a)(1)(A) v oluntary dismissal terminates, c loses, and e nds her c a use of action, and it can rightly be considered “final.” 5 That determination does n o t e n d o ur i nquiry, however, as we must also determine whether a voluntary dismissal without p r ej u dice is a “judgment, order, or proceeding.” While judgments and orders might imply the involvement of a judicial action, a“proceeding” does not necessarily require any such action. Rather, “[t]he term ‘proceeding’ is indeterminate,” and may be used to describe

4 See B e l l v . N

ew Jersey , 461 U

. S. 773, 779 ( 1983) (f ind ing that f

or p urp os es of ap p ealability, the p os s ibility of f urther j u d icial involvem ent d oes not neces s arily m ean an ord er is not f

inal)

.
5 See D ev i no v . D unca n , 215 F. Sup p . 2d 4 1 4 , 417 ( S. D

. N

. Y

. 2002) ( “‘Although a voluntary d is m is s al w ithout p rejud ice

. . . d oes not have p reclus ive ef f ect on later claim s , s uch a d is mis s al is a f

inal ju d gm ent in the s ens e that it end s the p end ing action. ’”) ( citation om itted )

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the entire course of a cause of a ction or any a ct or step take n i n t h e c a u se by either party. See Reid v. Angelone , 369 F.3d 363, 368 (4th Cir. 2004). 6 Although we h av e n o t p r e vi o u s ly c o n sidered the question, the weight of the caselaw f

r o m o t her circuits supports the conclusion t hat a dismissal without prejudice can be considered a final proceeding. In Williams v. Frey , 551 F.2d 932, 934–35 (3d Cir. 1 977), 7 the Third Circuit was faced with t h e same question presented by the instant case. Upholding the district court’s grant of R ule 60(b) relief from a R ule 41(a)(1) voluntary dismissal, the Third Circui t e x p lained: “[Rule] 60(b) speaks of relief from a final ‘ proceeding’ as well as a final ‘ judgment’

or ‘order’. The dismissal o f the s uit was, in our view, a proceeding, and it was clearly final. In sum, the court had the power to reopen the dismissed suit.” In Nelso n v . Napolitano , the Seventh C ircuit also c onsidered t h e same question. 657 F.3d 5 86, 589 (7th Cir. 2011). The Nels o n c o u r t reasoned that although a voluntary dismissal generally leaves t h e parties in the same position

as i f the suit had never been brought, t h at generalization h as limits. Id

. at 588–89. For i nstance, it i s well-settled t hat certain r elated and ancillary matters remain subject to the court’s jurisdiction despite the plaintiff’s dismissal. Id

. 8 The Seventh Circuit t hen c oncluded that Rule 60(b) vacaturs are also w ithin the realm of p owers retained by a district court following a v oluntary dismissal: “We agree that there may be instances where a district court m ay grant relief under rule 60(b) to a plaintiff who has voluntarily dismissed the action.” Id

. at 589.

6 citing B L

A C K’ S LA

W D I C TI O NARY 1 2 04 ( 6th ed

. 1990) ; B L A C K’ S LA

W D I C T I ON

AR Y 1221 ( 7th ed

. 1999) ( d ef

ining “p roceed ing” alternatively as “[ a] n act or s tep that is part of a larger action”) ; a ccord O X F ORD E N GL I SH D I C T I ON AR Y

.
7 a broga ted i n pa rt on other grounds by Torres v. O a kl a nd Sca v enger Co. , 487 U

. S. 312 ( 1988)

.
8 See Cooter & G el l v. H a rtm a rx Corp

. , 496 U

. S. 384, 395–96 ( 1990) (hold ing that Rule 41( a) ( 1) d is m is sal d oes not d ives t court of juris d iction to ad j u d i c a te m atters s uch as court cos ts , attorney’s f

ees , contem p t charges , and Rule 11 sanctions )

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Without distinguishing between vol u n tary dismissals with and without prejudice, the Ninth Circuit and Tenth Circuit have also broadly found that a voluntary dismissal “is a judgment, order, o r proceeding from which Rule 60(b) relief can be granted.” In re Hunter , 66 F.3d 1002, 1004–05 (9th Cir. 1995); see also Smith v. Phillips , 8 81 F.2d 902, 904 (10th Cir. 1989) (“‘[a]n unconditional dismissal terminates f ederal jurisdiction exce p t for the limited purpose of reopening and s etting aside the judgment of dismissal within the scope allowed by [Fed.R.Civ.P.] 60(b).’” (citation omitted)). 9 In addition, t he Fourth Circuit, Sixth Circuit, and Supreme Court have all found that when a claim is voluntarily dismissed pursua n t to a Rule 41(a)(1)(A)( ii) s t i pulate d d i s m i ssal, the court retains t h e ability to vacate the stipulated dismissal under Rule 6 0(b)(6). See Kokkonen v . Guardian Life Ins. Co. of Am., 511 U.S. 3 75, 381–82 (1994); 1 0 Fairfax Countywi d e C i t i zens Ass’n v. Fairfax C

ounty, Va. , 5 71 F.2d 1299, 1302–03 (4th Cir. 1978); Aro Corp. v. Allied Witan Co. , 531 F.2d 1 368, 1371 (6th Cir. 1 9 7 6 )

. 1 1 Stipulated dismissals under Rule 4 1(a)(1)(A)(ii), like unilateral dismissals under Rule 4 1(a)(1)(A)(i), require

no j udicial action or approval and are effective automatically upon filing. 1 2

9 See a lso M

cCa ll

- Bey v . Fra nz en , 777 F. 2d 1178, 1190 (7th Cir. 1985) ; 8 JA M E S M OOR E E T AL , M O O RE ’ S F E DE R AL P R A C T I C E § 41. 34[ 6] [ i] , at 41–128 (3d ed

. 2012) ( “The court retains juris d iction to vacate a s tip ulation of d is m is s al und er Rule 60(b) , enabling it to reop en the cas e. ”) ; O’C ON N OR’ S F E DE R AL R UL E S * C IVI L T R IAL S 2006 § 4. 3, at 457 (M

. Sm ith ed

. , 2006)

.
1 0 ( “Even w hen, as occurred here, the d is m is s al is p urs uant to Rule 41( a) ( 1) (ii) ( w hich d oes not by its term s em p ow er a d is trict court to attach cond itions to the p arties ’ s tip ulation of dis mis s al) w e think the court is autho r i z e d to em bod y the s ettlem ent contract in its d is m is s al ord er ( or, w hat has the s am e ef f ect, retain juris d iction over the s ettlem ent contract) if the p arties agree. ”) ; see a lso Keel i ng v . Sheet M eta l Workers Int’l A ss’n, Loca l U ni on 162 , 937 F

. 2d 408, 410 ( 9th Cir. 1991) (“Rep ud iation of a s ettlem ent agreem ent that t e r m i n a t e d litigation p end i n g b e f o r e a court cons titutes an extraord inary circum s tance, and it jus tif ies vacating the court’s p rior d is m is s al ord er. ”)

.

1 1 a broga ted i n p a rt on other grounds by Kokkonen, 511 U. S. 375 ( 1994)

.
1 2 See U ni ted Sta tes v. Ci t

y of M i a m i , Fl a . , 614 F. 2d 1322, 1330 ( 5th Cir. 1980) (f ind ing that the court has “no role” w hen p arties enter a Rule 41( a) ( 1) (A ) (ii) s tip ulated d is m is s al) ; In 8 Case: 12-20520 Document: 00512341666 Page: 8 Date Filed: 08/14/2013No. 12-20520

Moreover, stipulated dismissals are also presumptively without prejudice, 1 3 and

so these courts have impliedly determined that a voluntary dismissal without prejudice i s a final proceeding subject t o vacatur under Rule 60(b). Because stipulated dismissals are no more “final” than unilateral di smissals, nor do they require any more judicial intervention, it would be anomalous to c a ll the former a “final proceeding” while insisting that the latter is not. In contrast, t he only circuit authority Lakewood has offered to support its contrary view is Ajiwoju v. Cottrell , a n unpublished decision f r om the Eighth Circuit. 1 4 245 F. App’x 563, 564 ( 8 t h C ir. 2007) (unpublished). In Ajiwoju , the court considered w hether a plaintiff could use Rule 60(b) to vacate h is previously filed Rule 41(a)(1) notice of voluntary dismissal with prejudice

. Reasoning only that a voluntary dismissal under Rule 4 1 does not require judicial a pproval or
a court order, the court concluded: “‘there is no final order or j u d g m e nt from which a party may seek relief under Rule 60(b),’ and t he district court thus lacks jurisdiction to grant a Rule 6 0(b) m otion.” Id

. at 565. 1 5 This holding does not take

re Wol f , 842 F. 2d 464, 466 ( D

. C. Cir. 1988) ( “‘Cas elaw concerning s tip ulated d is m is s als und er Rule 41( a) ( 1) (ii) is clear that the entry of s uch a s tip ulation of d is m is s al is e f f e c t i ve autom atically and d oes not require jud icial ap p roval. ’” (quoting G ardi ner v . A. H

. Robi ns C

o. , Inc

. , 747 F. 2d 1180, 1189 ( 8th Cir. 1984) ) )

.

1 3 Rule 41( a) ( 1) ( B) provid es that unles s a s tip ulation of d is m is s al or f irs t notice of d is m is s al s tates otherw is e, the d is m is s al is w ithout p rejud ice.

1 4 Lak ew ood actually cites s everal ad d itional circuit d ecis ions to s up p ort its claim that “num erous other courts in oth e r c i r c uits have ind icated that a d is trict court d oes not have juris d iction to vacate a Rule 41( a) ( 1) (A) (i) d is m is s al w ithout p rejud ice. ” H ow ever, each of them is inap p os ite to the ins tant cas e. Sp ecif ically, Netw i

g v . G eorgi a Pa cif

i c C orp . , 375 F. 3d 1009, 1010 ( 10th Cir. 2004) , and M a rex Ti ta ni c, Inc. v . Wrecked a nd A ba ndoned V essel , 2 F. 3d 544, 5 4 5 ( 4th Cir. 1993) , interp reted Rule 41( a) ( 1) and held only that a nother p a rty can n o t intervene or us e Rule 60(b) to interf ere w ith a p laintif

f ’s uncond itional right to d is m is s . Thorp
v . Sca rne , 599 F. 2d 1169 , 1 1 7 6 ( 2d Cir. 1979) , is als o d is tinguis hable becaus e it s tand s only f or t h e p r o p os ition that a plaintif f enjoys an abs olute right to voluntarily d is m is s his action und er Rule 41( a) ( 1) until the d ef end ant has s erved a f orm al ans wer or motion f or s um m ary jud gm ent.

1 5 ( quoting Scher v. A shcrof t , 960 F

. 2d 1053, 1053 ( 8th Cir. 1992) ( unp ublis hed) )

.

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into account whether a voluntary dismissal c ould be a “proceeding” a nd is in conflict with every other circuit to have considered the same question. 1 6 In light of the extensive circuit cases discussed above, we are satisfied that

a Rule 4 1(a)(1)(A) voluntary dismissal without prejudice qualifies as a “final proceeding.” Accordingly, Yesh Music’s voluntary dismissal is s ubject to vacatur under Rule 60(b). B. Lakewood next argues that even if the district court did have j urisdiction to v acate Yesh Music’s dismissal under Rule 6 0 (b ) , the district court nevertheless abused its discretion. The district court vacated Yesh Music’s d i s m i s s al under R ule 60(b)(6). While Rule 60(b)(1–5) e m p o w e r s the district c ourt to grant relief because of a

m istake, surprise, n ewly discovered evidence, f raud, or a void or discharged judgment, 60(b)(6) perm i t s v a c a t u r f o r “ a ny other reason that justifies relief.” We have stated that “Rule 60(b)(6) i s a g r a nd reservoir of equitable p ower to d o j ustice in a particular case.” Batts v. Tow-Motor Forklift Co. , 66 F. 3 d 7 4 3 , 7 4 7 ( 5 t h Cir. 1995) (citation omitted). However, “we have also narrowly circumscribed i ts availability, holding t hat Rule 60(b)(6) relief ‘will be granted

o n ly if extraordinary circumstances are present.’” Id

. (citation omitted). Accordingly, Rule 60(b)(6) requires a showing of “ manifest injustice” and will not be u sed to relieve a party from the “free, calculated, and deliberate choices h e has made.” Edward H. Bohlin Co., Inc. v . Banning Co., Inc ., 6 F.3d 3 50 (5th Cir. 1993).

1 6 Sp ecif

ically, at leas t three circuits have f ound t h at v oluntary d is m is s als w ith p rejud ice are f

inal p roceed ings f

or p urp os es of R ule 60(b)

. See Ra nda l l v . M erri l l Lynch , 820 F. 2d 1317, 1320 ( D .C. Cir. 1987) ; Wa rf i el d v . A l l i edSigna l TBS H ol di ngs, Inc. , 267 F. 3d 538, 541–42 (6th Cir. 2001) ; Schm i er v . M cD ona l d’s LLC, 569 F. 3d 1240, 1242 ( 10th Cir. 2009)

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Lakewood asserts that the only purpose of Yesh Music’s R ule 60(b) motion is t o seek relief from its two s t rategic choices to voluntarily dismiss its complaint, once i n Texas a nd once in New York. As Lakewood points out, the well-known legal consequence of two v oluntary di smissals i s a n inability to refile the complaint. See R ule 41(a)(1)(B). Therefore, it is an abuse of discretion to

use Rule 60(b)(6) to allow Yesh M u s i c t o a v oid the consequences o f its actions and reactivate its claim. While Lakewood is correct that Rule 60(b)(6) should not b e used to undo the d a mage done by a poor strategic decision, it ignores the primary reason the district court granted Yesh Music’s motion: t he p arties reached an agreement in
open court, on the record, that the action would be dismissed in New York and reinstated in Texas. As the district court explained, Plaintiffs o perated w ith the u nderstanding t h a t this c a se would proceed in the Southern District of Texas. Surely, Plaintiffs’ choice to dismiss the o riginal lawsuit w as voluntary, af f i r m a t ive, and tactical. Plaintiffs’ dilemma is u nique, however, in that the parties concluded t hat the a ction would proceed in Texas, a lbeit without determining t he p recise procedural mechanism for doing so. As t h e parties had come to this agreement, it is appropriate to vacate the voluntary dismissal p ursuant to Ru l e 60(b)(6), as failing to do so would cause a manifest injustice.
The district c ourt did not abuse its discretion i n concluding that it would have been unfair t o permit Lakewood to ag r ee to reinstatement of the case in Texas, and t h en a llow it to renege on its agreement because of the procedural path taken. While L akewood insists that Ye sh Music’s voluntary dismissal was a hasty attempt to avoid an award of duplicative action a ttorneys’ fees in New York, t his contention is u npersuasive in light of the w el l

- s e t t l e d law that voluntary dismissals d o not deprive courts of the jurisdiction to award a ttorneys’

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fees. 1 7 Moreover, the Texas c ourt has allayed any s u c h concerns by a warding Lakewood attorneys’ f ees f or the duplication of efforts resulting from Yesh Music’s consecutive suits. Lakewood has therefore o ffered n o substantial reason for a llowing it t o escape its court-sanctioned a greement, and the district court did not abuse its discretion by granting Yesh Music’s Rule 60(b) motion. IV. For the r e a sons stated above, the judgment o f t he district court is AFFIRMED.

1 7 See, e. g. , Cooter & G el l v . H a rtm a rkx Corp

. , 496 U. S. 384 (1990) ( d is trict court m ay aw ard Rule 11 attorneys ’ f ees even if the p laintif f voluntarily d is mis ses the action und er Rule 41)

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E. GRADY JOLLY, Circuit Judge, dissenting: The majority preserves this litigation i n spite of Yesh Music’s v oluntary and tactical d e c i s i o n m a ki n g

—f i r s t filed in Texas, dismissed, refiled in New York, dismissed, and then back to Texas, reopened, a nd then this appeal from the first Texas voluntary dismissal. The case was dismissed w ith prejudice in N ew York. In o rder to preserve the l itigation, the majority is forced to adopt a distorted interpretation of Federal Rule o f Civil Procedure 60(b) and its jurisd i c t ional
scope. The majority is f urther forced to acknowledge t h a t t h e first Rule 41(a)(1)(A)(i) notice of v oluntary dismissal—importantly, t he on l y n o tice of dismissal at issue in this appeal—was not a f inal appealable judgment o r order. The majority is not deterred, however. It seizes on the most enigmatic of Rule 60(b) “final” categories—“ p roceeding”—and c oncludes that a p roceeding can
occur when nothing occurred, and calls it “f inal” when the same claim is filed the

v e r y next day in the New York c ourt. Some proceeding. Some finality. I t i s legal legerdemain at i ts most twisted to define the unilateral placing o f a sheet of p a per in a court f ile, without any proceeding ever occurring, without permission o r knowledge o f the court, without notice to the o t h e r p arties, without a stated reason to any o n e , and without formality of a ny kind, a s a judicial “proceeding.” N or d oes it s eem to matter to the majority t hat c oncerns of equity in the instant c ase do not justify adopting such a protean interpretation of Rule 6 0(b); i n s h ort, Yesh Music’s conduct does not warrant the extraordinary remedy of Rule 60(b)(6). I respectfully dissent. I. A proper analysis of this appeal begins w i t h the indisputable premise: This case arose only after the plaintiff, Yesh Music, unilaterally and voluntarily filed a s econd notice of dismissal of this case in the N ew York court pursuant to Rule 41(a)(1)(A)(i), resulting in the ent ire lawsuit’s dismissal with prejudice

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under Rule 41(a)(1)(B). 1 No other c a se has addr e s s e d a s imilar factual circumstance: a p laintiff voluntarily dismisses its case with prejudice, but then attempts to overcome this legal consequence by r eopening the same c a se, earlier voluntaril y d ismissed, but in a different federal district court f rom the court where the prejudicial dismissal occurred. None of the cases cited by the majority

are r emotely comparable to the situation we have before us. Yet the majority applies an “equitable” remedy by shifting the consequences of Yesh M usic’s legal blunder to Lakewood’s shoulders. This appeal falls within the appli c a t ion of t h e rule established by the Supreme Court in 1950 that, “ The broad power granted by [Rule 60(b)](6) is not for the purpose of r elieving a party from free, calculated, a nd deliberate choices he has made.” In re Pettle , 410 F.3d 189, 192 (5th Cir. 2 005) (alter a t i o n in original) (emphasis added) (quoting Edward H. Bohlin Co . v . B anning , 6 F.3d 350, 356-57 (5th C ir. 1993)); see a lso A ckermann v . U nited States , 340 U.S. 193, 198 (1950). Or, stated differently, “Where a party makes a considered choice

. . . he ‘cannot be relieved of s uch a choice [under Rule 60(b)] b ecause hindsight

seems to indicate to him’ that, as it turns out his decision was ‘probably wrong.’” In re Pettle , 410 F.3d at 193 (alteration in o r i g i nal) (quoting Paul Revere V a r i a b le Annuity Ins. C o. v. Zang , 248 F.3d 1, 6 ( 1st Cir. 2 001) (quotin g Ackermann)). Rule 6 0(b)(6) “is considered an extraordinary remedy,” applied “to do justice in a p articu l a r c a s e . ” Id. at 191; Batts v. Tow-Motor F orklift Co. , 66 F.3d 743, 747 (5th Cir. 1995) (citation omitted). Consistent with this rule, “[a] party remains under a duty to t ake legal steps t o prot e c t h i s own interests.” Edward H. Bohlin , 6 F .3d at 357

. And,

1 N otably, a d is m is s al wi th p rejudi ce is an ad jud i c a t ion on the m erits op erating as a f i na l judgm ent

. Whether the s econd voluntary notice of d is m is s al res ulted in a f inal jud gm ent bef ore the N ew York f

e d e r a l d i s t r ict court is not bef ore us . But there clearly is no f inal jud gm ent or ord er as s oc iated w ith Y es h M us ic’s f irs t Rule 41( a) ( 1) (A

) (i) d is m is s al w ithout p rejud ice. 14 Case: 12-20520 Document: 00512341666 Page: 14 Date Filed: 08/14/2013No. 12-20520

experiencing a moment o f judgment, Yesh Music did indeed file a letter in New York district court a sking the proper m ethod for restart i n g its case—for what would effectively be the t hird time—in t h e T exas district court pursuant to the agreement made before Judge Ellison i n Texas. Yesh Music’s letter stated,

“ P l a i ntiff seeks guidance from the Court on whether simply voluntarily di s m i s s i n g this matter pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i) is the preferred
way for this Court to p r o c e e d

. ” 2 Yesh Music, however, was unwilling to await t h e New York court’s response. Yesh Music made an uninformed quick decision—a “free, calculated, and deliberate choice[]”—to file its s e c o nd Rule 41(a)(1)(A)(i) notice of dismissal in the New York civil action. 3 T h e New York

case was thus voluntarily di s m i s s e d w ith prejudice , through operation of Rule 41(a)(1)(B). Edward H. Bohlin , 6 F.3d at 357. And—as the Texas district court n oted in its order granting Rule 60(b)(6) relief—immediately after Yesh Music’s voluntary dismissal in New York, Lakewood “wrote a [ second] letter to [the Texas district cou r t ] accusing [Yesh Music] o f dis m i s s i n g the New York Action in order to prevent [the New York court] f rom awarding atto r n e y s ’ fees.” The district court itself described Yesh Music’s actions as “ an [apparent] attempt to dodge an award of a ttorneys’ fees,” and noted that Yesh Music “voluntarily dismissed the New York Action without consulting either court on the correct procedure for proceeding with this case in the Southern District of Texas.” Furthermore, the district c ourt e xpressly stated

2 It is notew orthy that Y e s h M us ic m is rep res ented the s ettlem ent to the N ew York d is trict court by s tating one of the term s as , “The p arties w ill, of cours e, bear their ow n f ees i n t h e T e xa s action. ” Lak ew ood then s ubm itted a letter to the N ew York d is trict court t w o d ays later noting that, “D ef end ants ’ couns e l i n t h e T exas Action

. . . has ad vis ed that [ Plaintif f s ’ letter’s ] recitation of the Ap ril 2 hearing in Texas is s om ew hat inaccurate. ”

3 The tim ing of the second notic e o f d is m is s al als o d em ons trates the s trategy und erlying Y es h M us ic’s acti o n s ; the notice of d is m is sal w as filed on the sa m e da y that Lak ew ood
s ubm itted its letter to the N ew Yor k court, calling attention to Y es h M us ic’s
m is characterization of the p arties ’ agreem ent.

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that, “Plaintiffs’ choice to dismiss the original lawsuit [the Texas complaint] was voluntary, affirmative, a nd t actical,” and that Yesh M usic “failed to hold up their part of the bargain [made in o pen court] w ith [ Lakewood]: s pecifically, to permit the New York court to rule on the issue of attorneys’ fees.” Opting to act before t he New York district court respond e d t o i ts letter; failing to ask t he Texas district court the proper procedure for transferring the

case back to Texas; and failing to res e a rch t he p reclusive effect that a second Rule 41(a)(1)(A)(i) voluntary dismissal would h ave on its case t hrough operation of Rule 41(a)(1)(B), Yesh M u s i c a ffirmatively and d eliberately caused its own harm. The question then is, how does this c ase present “unique circumstances that cry out for” e quitable relief. Edward H. Bohlin , 6 F .3d at 357. The majority largely ignores the unclean hands of Yesh Music. I I. I n ext turn to the e rror of the majority in forcing a nd squeezing this case into R ule 60(b)’s jurisdictional scope. The text of Rule 60(b) restricts j urisdiction expressly t o relief f

rom a “final judgment, order, or proceeding.” Because Yesh Music’s f

irst voluntary notice of dismissal—the only dismissal before us in this appeal—satisfies none o f the limited j urisdictional bases, the district court acted in the absence of jurisdiction in granting Rule 60(b)(6) relief. As an initial m a tter, we expressly s t a ted in Harvey Specialty & Supply, Inc. v. A nson Flowlin e Equipment Inc. , 434 F.3d 320 (5th Cir. 2 005), that, “Ultimately, a Rule 4 1(a)(1) dismissal is not a ‘final judgment.’” I d. at 324. And, because district courts a re not permitted to take any action after the filing of the f i r s t n o t i ce of voluntary dismissal under Rule 41(a)(1)(A)(i), see Quresh i v . U n i t e d States , 600 F.3d 523, 5 25 (5th Cir. 2010), such a filing a ls o c a n n o t b e a “final order.” Thus with respect to whether we are presented with a “final judgment” or “final order,” I am in agreement with the majority—we are not.

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All t h a t n o w r e m ains of Rule 60(b) to examine is the phrase “final proceeding.” First, a voluntary dismissal filed b y one party, before an answer is filed, which does not operate in any c a pacity as an ad j u d i cation on t he merits, cannot b e a “final” proceeding w hen the same c a se m ay be f iled again at any time the p laintiff wishes. See 12 JA M E S M O O R E E T A L , M O O R E ’ S F E D E R A L P RA C T I C E § 60.23, at 60–82 ( 3d ed. 2012) (noting that “final” is g enerally defined in terms of whether the judgment was sufficiently final so as to be appealable, with certain exceptions for c onsent decrees and Rule 68 judgments); see also 11 WR I G H T , M I L L E R & K A N E , F E D E R A L P R A C T I C E & P R O C E D U R E §§ 2851-2852, at 285–99, § 2 864, a t 485–86 (3d ed. 2012). Following the first Rule 41(a)(1)(A)(i) voluntary dismissal w ithout prejudice, “the plaintiff is free to r e t u r n t o the dismissing c ourt or other courts at a later date with the sam e claim.” Harvey , 434 F.3d at 324. Yesh Music’s o n l y r e c ourse for a second attempt to stay in court was to refile its civil action. Yesh Music immediately did so in N ew York district court and thus exhaus t e d its o n ly recourse for “reopening” this dismissal of its complaint. As s uch, our reasoning in Harvey a pplies with equal force in this

case. Id. “Finality” for purposes of Rule 60(b) occurs when a case is resolved in some fashion on the merits through, for example, a dismissal with prejudice, a final judgment, or a settlement agreement. See A D I C T I O N A R Y O F M O D E R N L E G A L U S A G E 358 (2d e d. 1995) (although “final” is open to varying construct i o n s , “in almost all situations it is entirely clear, e ither from the nature o f the order or from a crystalli z e d b ody of decisions, that a particular order is or is not final” (citation omitted)). A second Rule 41(a)(1)(A)(i) voluntary dismissal therefore is entirely distinguishable from a first voluntary dismis s a l ; Rule 41(a)(1)(B) renders the second dismissal an a djudication o n the merits. This appeal however, appeals o nly the f irst voluntary dismissal, and there is thus no need to express an o pinion a s to whether the New Yor k district court might well

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retain jurisdiction to reopen the second dismissal t h a t o p e rates as a final judgment. Filing a sheet of paper may c onstitute a judgment or order under Rule 60(b), but a piece of paper i s not a proceeding in t he federal district court. And no distortion of the word can make it so. Second, the cases cited b y the majority t hat have attempted to extend Rule 60(b) to find j urisdiction do not attempt to explain how unilaterally f iling a paper is a “proceeding”, much less a “final” one. There is, as I continue to point out, by definition no proceeding or judicial con s equence attending the filing of a first Rule 41(a)(1)(A)(i) voluntary dismissal. Am. Cyanamid Co. v. McGhee , 317 F.2d 295 (5th Cir. 1 963); see also Qureshi , 600 F.3 d a t 5 2 5 (quoting American C y anamid on Rule 41(a)(1)(A)(i), and stating that “in the normal course, t h e district court i s d i v e sted of jurisdiction over the case by the filing o f the notice of dismissal itself”). T o s ay the plaintiff “filed a proceeding” makes s ense to no
one except, apparently, the majority. To conclude that the first Rule 41(a)(1)(A)(i) filing is a “proceeding,” is to seize upon the m ore indefinite term of Rule 60(b), to reshape a nd mold i t for clearly unintended purposes, and thus to override and avoid the other Rule 60(b) a pplicable categories of “judgment” and “order.” I f placing a single sheet of paper i n a c ourt file satisfies the “proceeding” requirement, then Rule 60 (b ) jurisdiction may well b e created to fit various filings that could be distorted as a final proceeding—such as a pleading, motion, etc., that purports to c onclude finally an issue or segment o f a case. Of course, such an application of Rule 60(b) is untethered t o l egal or c ommon sense reasoning. Although t he d ebate here primarily focuses on t he word “ proceeding,” we cannot i gnore that the legal term at issue i s “ final pr o c e eding.” Both i n terms of language and s pirit, it should b e clear that Rule 60(b) a llows courts to reopen
cases only following an action that has resulted in finality. Rule 60(b)(6) exists

as a discretionary equitable avenue for occasions when there is no o ther remedy

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from finality of c ourt action. That i s n ot the case here. Indeed, what more evidence would one demand for a showing of non-finality here than the fact that Yesh M u sic filed a nearly identical case in New York district c ourt the next day. Consequently, the Texas distric t c ourt had no jurisdiction, under any rule, statute, or case to reopen this case under R ule 60(b) based, as it is, on the nonfinal Texas voluntary dismissal. III. It is now time to address the most significant cases cited by the majority in support of its h o lding. First, n one o f t h e c ases primarily r elied on are from this circuit. Second, only two of the cases actually involve a Rule 41(a)(1)(A)(i) voluntary dismissal. And third, with respect to those two c ases, the courts’ appl i c a t i on of Rule 60(b) relief is perfunctory and, c onsequently, entirely unpersuasive. Both t he Third Circuit, in Williams v. Frey , 5 5 1 F

. 2 d 932 (3d Cir. 1977), and t he Seventh Circuit, in Nelson v. Napolitano , 657 F.3d 586 (7th Cir. 2011), disregard the text of Rule 60(b), resorting i nstead t o conclusory statements without reasoned analysis. Williams contains no discussion of “final proceeding,” stating only, a nd without further explanation, that, “The dismissal of the suit was, in our view, a proceeding, and it was clearly final.” 551 F.2d at 935. N elson a ddresses jurisdiction over collateral issues f o l l o w ing a Rule 41(a)(1) dismissal, b ut the court makes no mention of “ f i n a l p r oceeding.” 657 F

. 3d at 588-89. Because t he government conceded Rule 60(b) jurisd i c t i o n , Nelson ’s conclusion was merely that the co u r t “ a g r ee[d] that there may be instances where a district court may grant relief under Rule 6 0(b) to a plaintiff who has voluntarily dismissed the action.” Id. at 5 8 9. Nelson thus offers no interpretation of Rule 60(b)’s jurisdictional scope, in particular given the court’s apparently m istaken view that there was an appealable final judgme n t before it w ith respect to a first Rule 41(a)(1)(A)(i) v o l u n t a ry dismissal without

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prejudice. See id. Our precedent, however, prevents us from making the same mistake. See American Cyanamid , 317 F.2d at 297. Moreover, bot h W

illiams and Nelson were guided b y t heir c i rcuits’ prior precedent—and the desire t o do equity

. I n Williams , the inmates and prison officials had entered a judicially approved “Stipulation” o n visitation privileges, effectively settling the case on the merits and dismissing it “(p)ursuant to Rule 41(a)(1).” 551 F.2d at 933. To the point, t here was judicial action in Williams , at least giving more meaning to the term “ proceeding.” L ater, the court became further involved. P rison officials petitioned the c o urt to modify the Stipulation, citing severe a dministrative problems, and the parties agreed to have the court treat the Stipulation as a c onsent decree. Id. The district c ourt refused to do so because i t was concerned about its jurisdiction since the underlying lawsuit had been dismissed u nder Rule 41(a)(1). T h e Third Circuit, however, “ conclude[d] that t he [district] court had the power to c onsider the petition to modify the agreement to dismi s s t he suit.” Id. a t 934 (emphasis added). In short, the dismissal was done through the agreement reached by the p a rties. U n l i k e Williams , Yesh Music unilaterally, a nd without either Lakewood’s o r the court’s agreement, or consent, dismissed the T exas civil action—the o nly dismissal that is at issue in this appeal. Again, we are not p r e sented with whether t he New York distri c t court would have jurisdiction to reopen its case (or whether it would be equitable for that court to do so in the light of the facts presented). Furthermore, N

elson provides no authority or analysis for what the majority seeks to do here. Both the Seventh Circuit and t he g o v e r n m e nt concluded that they were bound by prior precedent. 657 F.3d a t 589. In McCallBey v. Franzen , the c ou r t had previously stated that, “An unconditional dismissal terminates f ederal ju r isdiction except for the limited purpose of reopening and setting aside the judgment of dismissal within the scope allowed by R ule 60(b).” 777 F .2d 1178, 1190 (7th Cir. 1985) (emphasis added). Based on
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McCall-Bey , the government expressl y conceded “that a district court retains jurisdiction t o consider a Rule 60(b) m o t i o n following a voluntary dismissal.” Nelson , 657 F.3d at 589. As support for i ts c oncession o f Rule 60(b) jurisdiction, the government posited the situation where “a defendant fak[ed] his own death

w i t h a fraudulent death certificate in order to induce a plaintiff to v oluntar i l y dismiss.” Id. Thus, i n Nelson , t h e i s s u e o f Rule 60(b) jurisdiction was uncontested. We are certainly not presented w ith a similar situation in the instant case: Lakewood has not conceded the issue, we have n e ver held that jurisdiction exists for reopening a voluntary dismissal without prejud i ce, and equity does not favor Yesh Music as it does i n t h e N e lson hypothetical—a hypothetical based on fraud in the inducement to file a voluntary dismissal. 4 IV. In closing, there is no l egal analysis that supports a fit between this case and Rule 60(b)(6). In t h e f i r s t instance, the district c ourt simply had no jurisdiction t o e n t e r Rule 60(b) relief without a “final judgment, order, or proceeding,” operating a s a n a djudication o n t he merits. Moreover, i f w e assume that jurisdiction existed, the district court abused its discretion in granting Rule 6 0 (b )(6) r elief—a form of equity—to forum-manipulating plaintiffs whose selfinduced error was failing to r ead the Federal R ules of Civil Procedure. There are
no equity concerns here. Indeed, the district court expressly acknowledged Yesh Music’s attempted manipulation. The facts underlying this case do not present the “extraordinary c ircumstances” warranting equitable relief pursuant to Rule 6 0 (b )(6). Based on an unsupportable interpretation of Rule 60(b ) jurisdiction—an d d e s p i te the undisputed fact that this case is before us solely

4 The rem aining cas es cited by the m ajority are all f actually and p roced urally d is tinguis hable f

rom the ins tant cas e. T he ad d itional cas es generall y e i t h e r : ( 1) involve
s tip ulated d is m is sals , s e e S m i th v. Phi l l i p s , 881 F. 2d 902 ( 10th Cir. 1989) ; or ( 2) ad d res s voluntary d is m is s als that op erated as an ad jud ication on the m erits , see In re Hunter , 66 F

. 3d 1002 ( 9th Cir. 1995)

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because of Yesh Music’s bungled l itigation strategy—the majority p rovides Yesh Music its third ef

f o r t t o launch the same case off the ground, and d oes so with no underlying legal or equitable bases. I respectfully dissent.

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