* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50045

VIRDA BELL BULLARD; JOHN G. ALEXANDER; ELNORA BELL;

PAULLETTE BLAYLOCK; CHARLES H. BOOKER; ET AL.,

Plaintiffs–Appellants–Cross-Appellees

v.

BURLINGTON NORTHERN SANTA FE RAILWAY CO.; KOPPERS

INDUSTRIES INC.; MONSANTO CO.; DOW CHEMICAL CO.; VULCAN

MATERIALS CO.,

Defendants–Appellees–Cross-Appellants

Appeals from the United States District Court 

for the Western District of Texas

USDC No. 1:08-cv-00724-SS

Before CLEMENT, PRADO, and ELROD, Circuit Judges.

PER CURIAM:*

Virda Bell Bullard, et al. (the “Bullard Plaintiffs”) appeal the district

court’s sua sponte dismissal of their claims against Burlington Northern Santa

Fe Railway Company, et al. (the “Defendants”). This is the fifth action against

Defendants for personal injuries or property damage relating to Defendants’

operation of a railroad tie treatment facility in Somerville, Texas. The district

United States Court of Appeals

Fifth Circuit

F I L E D

March 5, 2010

Charles R. Fulbruge III

Clerk
No. 09-50045

2

court dismissed the Bullard Plaintiffs’ claims without prejudice under Federal

Rule of Civil Procedure 8 for failure to adequately plead their group litigation.

On appeal, the Bullard Plaintiffs argue that the district court’s dismissal

without prejudice operates as a dismissal with prejudice because the statute of

limitations has run on some oftheir claims. The Bullard Plaintiffs contend that,

because they have neither acted contumaciously nor engaged in dilatory tactics,

we should find that the district court abused its discretion by dismissing their

claims. Because the district court made no express findings as to whether the

Bullard Plaintiffs acted with the requisite contumaciousness to warrant a de

facto dismissal with prejudice, we vacate the district court’s dismissal and

remand with instructions to conduct further findings.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

The Bullard Plaintiffs are 144 current or former residents of Somerville,

Texas. At one time, Somerville housed the largest railroad tie plant in the

United States. The Somerville facility began production in 1906, and the

surrounding town developed in conjunction with its success. The Bullard

Plaintiffs allege that while operating the Somerville facility, Defendants treated

the wood used in production of the railroad ties with toxic chemicals that

emanated from the plant and caused them to develop cancer.

Defendants are five separate companies involved in the ownership and

operation of the Somerville facility. Defendant Koppers, Inc. (“Koppers”)

currently operates the facility. Prior to Koppers’s operation, the Atchison,

Topeka and Santa Fe Railway—the predecessor to Defendant Burlington

Northern Santa Fe Railway Company (“BNSF”)—ran the plant. The Bullard

Plaintiffs allege that Defendants Monsanto Company, The Dow Chemical

Company, and Vulcan Materials Company supplied the chemicals to the

Somerville facility that caused their cancers. 
No. 09-50045

3

B. Prior Litigation Against Defendants

1. The “Davis Action”

In June 2005, a group of Somerville residents (the “Davis Plaintiffs”) filed

a putative class action lawsuit in the United States District Court for the

Western District of Texas against Defendants. The Davis Plaintiffs pled claims

based on nuisance, trespass, strict products liability, negligence, and gross

negligence, and sought compensation to finance periodic health monitoring and

medical examinations. The Davis Plaintiffs attempted to certify a class

consisting of all Somerville residents who had suffered from the chemicals

allegedly emanating from the Somerville facility.

The district court denied class certification in December 2005. The Davis

Plaintiffs subsequently amended their complaint and joined 602 individuals in

a “mass action.” After determining that “Plaintiffs’ complaint was . . . so

vague . . .that[Defendants] cannot reasonably be required to frame a responsive

pleading,” the district court ordered the Davis Plaintiffs to provide a more

definite statement and answers to eight interrogatories to compensate for the

DavisPlaintiffs’failure “to include sufficient details regarding the nature of each

individual’s alleged exposure and injury.” The DavisPlaintiffs complied, butthe

district court found it “beyond argument that their responses to the

interrogatories were grossly inadequate.” The district court, however, remained

“unconvinced that Plaintiffs responded in bad faith.” 

The district court ordered each Davis Plaintiff either to file an individual

complaint or dismiss his or her claim within thirty days, stating:

This case is not a class action. This case is not a mass tort action.

After sixteen months and three tries at creating some form of group

litigation, Plaintiffs have made clear to this Court that the only

efficient and equitable means of trying their claims is in individual

lawsuits.
No. 09-50045

4

In November 2006, the Davis Plaintiffs voluntarily dismissed their claims

without prejudice.

2. The “Batts Action”

In October 2007, a group of Somerville residents (the “Batts Plaintiffs”)

filed a putative class action complaintin the United States District Courtfor the

Western District of Pennsylvania. The Batts Plaintiffs sued Defendant Koppers

for damages arising from the same set of facts as those giving rise to the Davis

Action. In November 2007, the Batts Plaintiffs voluntarily dismissed their

claims. 

3. The “Brinston Action”

Also in October 2007, another group of Somerville residents (the “Brinston

Plaintiffs”) brought a putative class action alleging only property damage

against Defendant BNSF in Texas state court based on the same facts alleged

in the Davis and Batts Actions. BNSF removed the putative class action under

the “mass action” provision of 28 U.S.C. §§ 1332(d)(11) and 1453, as amended by

the Class Action Fairness Act of 2005 (“CAFA”), and the district courtjudge who

heard the Davis Action received the assignment. The district court dismissed

the Brinston Action without prejudice for lack of subject matter jurisdiction,

holding that the Brinston Plaintiffs failed to establish standing and failed to

bring suit within the applicable limitations period.

4. The “Hamilton Actions”

In December 2007, a total of 544 Somerville residents (the “Hamilton

Plaintiffs”) filed six separate mass action complaints, each with less than one

hundred named plaintiffs, against Defendants BNSFand Koppers in Texas state

court. According to Defendants, “these filings ‘literally lifted the caption from

the Davis mass action [and] divided it six ways alphabetically.’” The district

court opined that the Hamilton Plaintiffs deliberately filed each complaint with
No. 09-50045

5

fewer than one hundred plaintiffs in an attempt to avoid CAFA’s mass action

removal provision. 

The Hamilton Plaintiffs alleged that BNSF and Koppers’s liability arose

from the same set of facts as alleged in the three previous complaints against

Defendants, and asserted claims based on negligence, nuisance, trespass, gross

negligence, and intentional infliction of emotional distress. Defendants BNSF

and Koppers removed all six cases under the mass action provision of 28 U.S.C.

§§ 1332(d)(11) and 1453, and the district court judge who heard both the Davis

and Brinston Actions again received the assignment. After consolidating all six

complaints, the district court denied the Hamilton Plaintiffs’ motion to remand

after Defendants BNSF and Koppers implored the court to reject the Hamilton

Plaintiffs’ attempt to plead around CAFA. In reaching this conclusion, the

district court analogized the Hamilton Plaintiffs’ actions to those seen in cases

of fraudulent joinder and bad faith pleading.

In June 2008, the district court granted Defendants BNSF and Koppers’s

motion to instruct the Hamilton Plaintiffs to sever and file individual claims.

Noting that the consolidated cases were “essentially identical” to the Davis

Action and that the same pleading problems giving rise to the severance order

in the Davis Action continued to exist, the district court allowed the Hamilton

Plaintiffs thirty days to sever their claims. The district court also warned the

Hamilton Plaintiffs that it would dismiss without prejudice any claims not

severed in the given time frame. The Hamilton Plaintiffs took no action, and the

district court dismissed the consolidated Hamilton Action in its entirety without

prejudice.

C. The “Bullard Action”

1. State Court Proceedings

On October 31, 2007, the Bullard Plaintiffs filed a single mass action

complaintin Illinois state court asserting personal injury claims nearly identical
No. 09-50045

6

to the Davis and Hamilton Actions. Although they did not attempt to certify a

class,they based their claims on the same factual allegations against Defendants

as in the other four actions and claimed that the chemicals used in operating the

Somerville facility caused every Bullard Plaintiff to develop cancer. Defendants

removed the Bullard Action to the United States District Court for the Northern

District of Illinois under the mass action provision of 28 U.S.C. §§ 1332(d)(11)

and 1453. 

2. Proceedings in the Northern District of Illinois

Once in federal court, Defendants moved to transfer the case to the

Western District of Texas, while the Bullard Plaintiffs moved to voluntarily

dismiss fifty-three plaintiffs and to remand the case back to state court. The

Illinois district court denied the Bullard Plaintiffs’ motion to remand. The

Bullard Plaintiffs appealed the denial, and the Seventh Circuit affirmed. See

Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759 (7th Cir. 2008).

On September 25, 2008, the Illinois district court granted Defendants’

motion to transfer to the Western District of Texas. In the same order, the

Illinois district court denied the Bullard Plaintiffs’ motion for voluntary

dismissal, finding that allowing the Bullard Plaintiffs to do so would not only

subject Defendants to prejudice by forcing them to litigate suits based on the

same claims in both state and federal court, but would also defeat the purposes

of CAFA. The Illinois district court did, however, deny the Bullard Plaintiffs’

voluntary dismissal motion without prejudice so that they could renew their

motion in the Western District of Texas.

3. Proceedings in the Western District of Texas

After the transfer, the same district judge who heard the Davis, Brinston,

and Hamilton Actions again received the assignment for the case against

Defendants. Approximately a month after the transfer, the district court sua

sponte dismissed without prejudice the entire Bullard Action for failure to meet
No. 09-50045

7

the basic pleading requirements of Federal Rule of Civil Procedure 8.

Specifically, the district court reiterated that the residents of Somerville could

not style a group litigation against Defendants. Noting that the “Plaintiffs have

made it abundantly clear through several separate cases” that they “either

cannot or will not bring individual claims on their own behalf,” the district court

declined to enter another severance order, finding thatthe Somerville residents’

failure to sever and file individually in the previous cases indicated that any

such order would be futile.

The BullardPlaintiffs filed a motion for reconsideration, arguing that their

case differed significantly from the four previous complaints, and that they

anticipated that if the dismissal without prejudice remained in its current form,

Defendants would argue that the statute of limitations barred refiling. They

also renewed their motion for voluntary dismissal that the Illinois district court

had rejected, arguing that voluntary dismissal of 116 of the 144 total plaintiffs

would toll the statute of limitations under Illinois law, while involuntary

dismissal, even without prejudice, would not. The Bullard Plaintiffs admitted

that upon a grant of their motion to voluntarily dismiss, they intended to refile

their complaints in a manner that would avoid federal subject matter

jurisdiction. In the alternative, the Bullard Plaintiffs asked the district court to

enter the same severance order it had entered in the previous actions, and

promised to sever and file individually if given the opportunity.

The district court denied the motion for reconsideration and scolded the

Bullard Plaintiffs for their “abuse of the judicial system.” Construing the

Bullard Plaintiffs’ motion for reconsideration as “yet another attempt by the

Plaintiffs to circumvent the rulings of this and other courts,” the district court

stated that if the Bullard Plaintiffs wished to avoid the Illinois statute of

limitations on their claims and file individually, they had previously been

provided ample opportunity to do so, starting with the Davis Action. The district
No. 09-50045

8

court also chided the Bullard Plaintiffs for their renewed motion for voluntary

dismissal, describing it as an attempt to circumvent the clear ruling of the

Illinois district court. The district court concluded its order with a warning that

sanctions would follow any further refiling against Defendants based on the

same facts that resulted in another dismissal. The Bullard Plaintiffs appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. The district court had

jurisdiction under the mass action provision of 28 U.S.C. §§ 1332(d)(11) and

1453. “[W]e review the district court’s decision to grant a motion to dismiss with

or without prejudice only for abuse of discretion.” Club Retro, LLC v. Hilton, 568

F.3d 181, 215 n.34 (5th Cir. 2009).

We have, however, “limited the district court’s discretion in dismissing

cases with prejudice.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th

Cir. 1992). Specifically, we will only affirm dismissals with prejudice given “‘a

clear record of delay or contumacious conduct by the plaintiff,’ . . . and where

lesser sanctions would not serve the best interests of justice.” Rogers v. Kroger

Co., 669 F.2d 317, 320 (5th Cir. 1982) (quoting Pond v. Braniff Airways, Inc., 453

F.2d 347, 349 (5th Cir. 1972)) (internal quotation marks omitted) (alteration in

original). “Where further litigation [of a] claim will be time-barred, a dismissal

without prejudice is no less severe a sanction than a dismissal with prejudice,

and the same standard of review is used.” McGowan v. Faulkner Concrete Pipe

Co., 659 F.2d 554, 556 (5th Cir. 1981). 

III. DISCUSSION

A. Waiver

In response to the Bullard Plaintiffs’ statute of limitations argument,

Defendants contend that the Bullard Plaintiffs failed to properly raise the issue

before the district court. Additionally, Defendants argue that the Bullard

Plaintiffs have provided no record basis to support their claim that the statute
No. 09-50045

1 See also Campbell v. Dretke, 261 F. App’x 702, 703 (5th Cir. 2008) (per curiam)

(unpublished)(“Althoughthe district court’s dismissal of[the plaintiff’s] complaintwaswithout

prejudice, a re-filed complaint would probably be barred by the applicable two-year statute of

limitations, and, thus, the standard of review is the same as is used when reviewing a

dismissal with prejudice.”) (emphasis added) (citation omitted).

9

of limitations will bar refiling. Based on these contentions, Defendants ask us

to find that the Bullard Plaintiffs waived this argument. 

The Supreme Court has stated that although “[i]t is indeed the general

rule that issues must be raised in lower courts in order to be preserved as

potential grounds of decision in higher courts[,] . . . this principle does not

demand the incantation of particular words.” Nelson v. Adams USA, Inc., 529

U.S. 460, 469 (2000) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174–75

(1988)). Instead, this principle only “requires that the lower court be fairly put

on notice as to the substance of the issue.” Id. In the Bullard Plaintiffs’ motion

for reconsideration—their earliest opportunity to do so—they requested thatthe

district court consider the statute of limitations and accompanying tolling

provisions. Our law does not require any more to prevent waiver.

Additionally, we have not required litigants to prove definitively that the

statute of limitations would bar refiling of claims before treating a dismissal

without prejudice as one with prejudice. In Boazman v. Economics Laboratory,

Inc., we stated, “[w]here . . . the statute of limitations prevents or arguably may

prevent a party from refiling his case after it has been dismissed, we fail to see

how a dismissal without prejudice is any less severe a sanction than a dismissal

with prejudice.” 537 F.2d 210, 213 (5th Cir. 1976) (emphasis added).1

Illinois has a two-year statute of limitations for all personal injury claims,

and the Bullard Plaintiffs brought this to the attention of the district court in

their motion for reconsideration. See 735 ILL. COMP. STAT. 5/13-202. Because

the Bullard Plaintiffs filed their state court complaint more than two years ago,

the applicable limitations statute, at the very least, “arguably may prevent”
No. 09-50045

10

them from refiling if the district court’s dismissal stands. See Boazman, 537

F.2d at 213. We conclude that the Bullard Plaintiffs’ statute of limitations

argument is properly before us, and we should thus treat the district court’s

dismissal as one with prejudice.

B. Substantial Similarity of Prior Litigations

As a threshold matter, the Bullard Plaintiffs argue that the district court

erred by considering every previous litigation against Defendants arising from

the same factual allegations. Although the record reflects that all of the prior

lawsuits filed against Defendants alleged substantially the same facts, involved

substantially the same attorneys and law firms, and sought similar relief based

on substantially similar injuries, there remain several unanswered questions.

Specifically, the record does not reflect the extent to which the prior

actions against Defendants named the Bullard Plaintiffs or sought to represent

their interests through the vehicle of a purported class action. For instance,

although the Davis Action sought to certify a class that would encompass every

current or former resident of Somerville—which would arguably include every

Bullard Plaintiff—the district court denied certification. Although the 602

individual Davis Plaintiffs who subsequently proceeded against Defendants

failed “to include sufficient details regarding the nature of each individual’s

alleged exposure and injury” and made “grossly inadequate” responses to the

district court’s interrogatories, the same cannot be said of the entire purported

class. 

Additionally, the plaintiffs in the Brinston Action sought certification of

a substantially narrower class than that sought in the Davis Action. The

Brinston Plaintiffs purported to represent only “persons who own property or

lease property within [one] mile” of the Somerville plant and who “have had

their person and/or property contaminated with . . . toxins released from the

Somerville plant.” Brinston v. Koppers Indus., 538 F. Supp. 2d 969, 972–73
No. 09-50045

11

(W.D. Tex. 2008) (internal quotation marks omitted). Furthermore, while most

ofthe lawsuits against Defendants have sought damages for personal injury,the

Brinston Action only sought compensation for property damage. Given this

particular class definition and the current record—which does not suggest that

the Brinston Action included any of the Bullard Plaintiffs—we cannot say with

any certainty that the Brinston Action fairly represented those with an interest

in the Bullard Action. 

Simply put, we cannot determine from the record whether the district

court was warranted in considering the totality of litigation against Defendants

before it entered its dismissal. Without a clear finding of culpability as to each

Bullard Plaintiff, we are unwilling “to affirm the harsh sanction of dismissal

with prejudice”in a case where some of the plaintiffs may not have actually been

blameworthy. Rogers, 669 F.2d at 323 (citing Blois v. Friday, 612 F.2d 938, 940

(5th Cir. 1980)). Accordingly, we must remand to the district court for an

explicit determination of whether the prior lawsuits against Defendants

adequately represented the interests of the individual Bullard Plaintiffs as to

warrant holding the Bullard Plaintiffs accountable for the deficiencies of the

prior actions.

C. Clear Record of Delay or Contumacious Conduct

We have held that “dismissals with prejudice will be affirmed only upon

a showing of ‘a clear record of delay or contumacious conduct by the

plaintiff, . . . and where lesser sanctions would not serve the best interests of

justice.’” Rogers, 669 F.2d at 320 (quoting Pond, 453 F.2d at 349) (alteration in

original). In most cases affirming dismissals with prejudice, we have also “found

at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff

himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay

caused by intentional conduct.’” Berry, 975 F.2d at 1191 (quoting Price v.

McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)).
No. 09-50045

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We have “recognized that ‘delay which warrants dismissal with prejudice

must be longer than just a few months; instead, the delay must be characterized

by significant periods of total inactivity.’” Millan v. USAA Gen. Indem. Co., 546

F.3d 321, 326–27 (5th Cir. 2008) (quoting McNeal v. Papasan, 842 F.2d 787, 791

(5th Cir. 1988)) (internal quotation marks omitted). Nothing in the record

suggests that such a substantial delay occurred. We cannot affirm the district

court’s de facto dismissal with prejudice on the grounds of a clear record of delay.

Whether the Bullard Plaintiffs acted with the requisite degree of

contumaciousness to warrant a dismissal with prejudice is a much closer

question. We define contumacious conduct as a “‘stubborn resistance to

authority.’” McNeal, 842 F.2d at 792 (quoting John v. Louisiana, 828 F.2d 1129,

1132 (5th Cir. 1987)). We have also “recognized that ‘it is not a party’s

negligence—regardless of how careless, inconsiderate, or understandably

exasperating—that makes conduct contumacious.’” Millan, 546 F.3d at 327

(quoting McNeal, 842 F.2d at 792). 

Considering this case in isolation, we cannot say, based on the record

before us,thatthe BullardPlaintiffs’ actions amounted to contumacious conduct.

A review of the record reveals that nothing more than numerous entries of

appearance on behalf of counsel and motions for admission pro hac vice occurred

between the transfer of this case to the Western District of Texas and the

dismissal. If we limit our review to Bullard Action in isolation, the Bullard

Plaintiffs clearly had little chance to act with the “stubborn resistance to

authority” that would warrant a dismissal with prejudice. McNeal, 842 F.2d at

792 (quoting John, 828 F.2d at 1132).

If, however, we consider the actions of the Bullard Plaintiffs in

combination with the actions of the Davis, Batts, Brinston, and Hamilton

Plaintiffs, the record as a whole suggests that the Bullard Plaintiffs may have

stretched the bounds of acceptable litigation conduct to the point where we
No. 09-50045

13

should allow the district court to invoke “such a severe sanction that . . . is to be

used only in extreme circumstances.” Boazman, 537 F.2d at 212 (citation

omitted). The plaintiffs in the Davis and Hamilton Actions—many of whom also

appear in the Bullard Action—failed to comply with the district court’s orders

to file a more definite statement, to adequately answer interrogatories, and to

sever their cases into individual claims. Although an isolated failure may

warrant excuse, we sympathize with the district court as it received its fourth

assignment in two years of nearly identical group litigations with similar

pleading problems. 

Even this conclusion, however, is less than clear given the record before

us. Despite the district court’s frustration, it acknowledged that the Bullard

Plaintiffs’ counsel had put forth a “Herculean effort” in attempting to bring a

group litigation. Because the actions filed against Defendants involved “so many

plaintiffs, time periods, and possible causes of action at issue,” the district court

likened the task to “herding . . . [a] beast.” This language suggests that the

exceeding complexity of the case—and not contumaciousness—resulted in the

pleading problems lamented by the district court. 

Additionally, the dates that the residents of Somerville filed the five

actions caution against finding contumaciousness. Although the Davis Plaintiffs

filed their complaintin 2005,the Batts, Brinston, Bullard, and Hamilton Actions

were all filed over the course of three months in 2007, and the separate actions

essentially made their way through the litigation process simultaneously. The

Hamilton Plaintiffs actually filed their complaint two months after the Bullard

Action. This temporal proximity suggests that we should not fault the Bullard

Plaintiffs for failing to correct repetitive pleading deficiencies when they had

little time to do so. 

Because dismissal with prejudice is “an extreme sanction that deprives a

litigant of the opportunity to pursue his claim,” Gonzalez v. Firestone Tire &
No. 09-50045

14

Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980), our caselaw has emphasized the

need for clear factual findings from the district court. See McNeal, 842 F.2d at

792 (“[W]e must review the specific facts which, in each case, led to [dismissal].”)

(emphasis added)); Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th

Cir. 1984) (“[F]indings of fact are essential for our consideration ofthe inevitable

argument that the dismissal was an abuse of . . . discretion.”). The district court

has, in no uncertain terms, documented its frustration with the string of

litigation against Defendants. It has not, however, made any specific finding of

contumaciousness or weighed the existence of any aggravating factors.

In light of our reluctance to permanently deprive a litigant of his or her

claim, we will not affirm the district court’s de facto dismissal with prejudice in

this case unless it expressly determines that lesser sanctions would not suffice.

See Berry, 975 F.2d at 1191. Therefore, we vacate the dismissal and remand for

further findings by the district court on contumaciousness, aggravating

circumstances, and whether lesser sanctions would better serve the interests of

justice. See id. at 1191–92. 

In making these additional findings, the district court shall specifically

consider the degree of similarity of the prior litigations to the instant case. In

addition, the district court shall specifically determine the degree of similarity

of the individual Bullard Plaintiffs to the Davis, Batts, Brinston, and Hamilton

Plaintiffs to determine whether the prior lawsuits fairly represented the Bullard

Plaintiffs. We trust that the district court, which is abundantly familiar with

these litigants, can make this express and explicit determination better than we

can.

IV. CONCLUSION

The Bullard Plaintiffs have tested the patience of the district court, and

we are not unsympathetic with its frustration. We therefore task the district

court with determining whether the Bullard Plaintiffs’ conduct warrants
No. 09-50045

15

dismissal with prejudice upon express findings as to whether the Bullard

Plaintiffs should be held accountable for the deficiencies in the prior lawsuits

and as to contumacious conduct.

VACATED and REMANDED.