IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20290

MIKKEL S. AAES; SAFVAN ADAM; OKEEDO ALEXANDER; MOSTAFA 

ALLAMI; JOHN ALLEN; ET AL, 

 Plaintiffs - Appellants

v.

4G COMPANIES; 4G PRIVATE EQUITY, L.L.C.; 4G GLOBAL 

ALTERNATIVES, L.L.C.; 4G NEW GLOBAL ENERGY, L.P.; 

4G ALTERNATIVE ENERGY, L.L.C.; ENERMAX, INCORPORATED; 

SEISMA OIL RESEARCH, L.L.C.; JUSTIN SOLOMON; BRET BOTELER; 

STEVE RACKLEY; BRIAN GUINN; S. LAVON EVANS, JR.; EVANS 

ENERGY, L.L.C.; S. LAVON EVANS, JR. OPERATING COMPANY, 

INCORPORATED; SEISMA ENERGY RESEARCH AVV, also known as 

Seisma Oil Research AVV, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

No. 4:11-CV-975

Before JONES, SMITH, and OWEN, Circuit Judges.

PER CURIAM:*

* 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

March 13, 2014

Lyle W. Cayce

Clerk

 

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No. 13-20290

Appellants are non-U.S. investors in Seisma Oil Research or related 

companies. Appellees (“Appellees”) are Texas, Florida, and Mississippi 

corporations, partnerships, and individuals. Appellants assert a variety of 

causes of action arising from Appellees’ allegedly fraudulent sale of shares in 

Texas oil and gas ventures. The district court dismissed Appellants’ claims 

with prejudice after they failed to respond for a year to the court’s offer to 

replead. We AFFIRM. 

In March 2011, Appellants filed suit in the Southern District of Texas. 

Multiple Appellees moved to dismiss the original complaint for failure to state 

a claim. On March 1, 2012, while the motions to dismiss were pending, 

Appellants filed an amended complaint. The amended complaint included 21 

new plaintiffs, but the alleged facts and causes of action were the same as in 

the original complaint. Several Appellees, who had moved to dismiss the 

original complaint, moved to dismiss the amended complaint on identical 

grounds and as untimely. 

On March 20, 2012, the district court granted Appellees’ original motions 

and dismissed the claims alleged in the initial complaint without prejudice, 

with leave to file an amended complaint. In July 2012, without having taken 

any further action in the case below, Appellants sued Appellees in Texas state 

court. Appellees removed that case on diversity grounds to federal court.1 In 

response, Appellants brought another suit in state court, now also removed,

that named an additional defendant who was allegedly not in diversity with 

plaintiffs.2 

While litigating these other cases, however, Appellants continued to do

1 Mikkel S. Aaes, et al. v. 4G Private Equity, LLC, et al, No. 4:12-cv-03058 (S.D. Tex. 

filed Oct. 12, 2012). 

2 Plaintiffs’ Original Petition, Mikkel S. Aaes, et al. v. 4G Private Equity, LLC, et al., 

No. 4:13-cv-01310 (S.D. Tex. May 6, 2013) ECF No. 1-1 ¶146. 

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nothing in the present one. They did not inform the district court of the state 

court filings. They also failed to amend their complaint or answer the motions 

to dismiss the amended complaint. Ultimately, after a full year without a 

single filing from the parties, the district court dismissed Appellants’ action 

with prejudice, citing Appellants’ prolonged idleness. The effect of the 

dismissal order was to preclude the two removed actions. After the district 

court denied Appellants’ motion to amend the dismissal and/or for relief from 

judgment, this appeal was filed. 

Appellants argue that the final order of dismissal with prejudice was 

incorrect for three reasons, none of which has merit. First, they contend that 

the district court had no authority to enter the March 2013 order because the 

March 2012 order dismissing Appellants’ original complaint was a final 

judgment. This order of dismissal, however, did not “state[ ] expressly or by 

clear indication reflect[ ] the court’s intention to dismiss [Appellants’] entire 

action.” Lousiana v. Litton Mort. Co., 50 F.3d 1298, 1302 (5th Cir. 1995). It 

specifically granted Appellants leave to file an amended complaint and thereby 

clarified that only the original complaint, and not the case itself, had been 

dismissed. And contrary to Appellants’ view, Whitaker v. City of Houston, 

963 F.2d 831 (5th Cir. 1992), does not afford them the right to treat the March 

2012 order as final. As they did below, Appellants cite but misunderstand the 

rule that “a plaintiff whose ‘complaint’ has been dismissed may elect either to 

(1) treat the dismissal as a final appealable order and appeal under Fed. R. 

App. P. 4(a), or (2) ask for leave to amend the original pleading under Fed. R. 

Civ. P. 15(a). Whitaker, 963 F.2d at 832. We concur with the district court 

that this rule does not afford plaintiffs the discretion to determine whether a 

dismissal of a complaint is a final order. Under Whitaker, that decision 

remains with the district court. Id. at 835 (providing that an order dismissing 

a complaint also dismisses the case “when it clearly indicates that no 

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amendment is possible—e.g. when the complaint is dismissed with prejudice 

or with express denial of leave to amend”). 

Second, Appellants argue that the final dismissal was unwarranted 

because they complied with the March 2012 order of dismissal “as closely as 

possible” by filing an amended complaint in Texas state court. As the district 

court explained: “It should go without saying that the leave granted was to file 

an amended complaint in this court, not in state court.” Opinion and Order, 

Mikkel S. Aaes, et al. v. 4G Companies, et al, No. 4:11-cv-00975, (S.D. Tex. 

Apr. 23, 2013) ECF No. 89 at 5 n.2 (emphasis in original). Indeed, the March 

2012 order never granted Appellants leave to drop out of the federal case, nor 

did they avail themselves of the procedures outlined in Fed. R. Civ. P. 41(a) to 

do so. 

Third, Appellants contend the district court abused its discretion to 

dismiss the case. Appellants delayed the proceeding below, however, by failing 

to amend their complaint for at least one year in response to the district court’s 

order dismissing their initial pleading. Appellants had already amended their 

complaint once, and the length of the delay after the district court provided 

them unbridled authority to amend another time was more than sufficient to 

convince the court that Appellants had been “afforded adequate opportunity 

to develop his case to the point where any merit it contains would have become 

apparent.” Goodley v. Reno, 81 F.3d 157 (5th Cir. 1996). We also agree with 

the district court that Appellants’ decision to bring the state court actions while 

the federal proceeding remained open evinces a dilatory motive. The obvious 

inference is that Appellants viewed the federal case as a “placeholder” that 

they could revisit depending on the outcome of their state cases. And 

regardless of Appellants’ intent, their decision to bring two state court actions 

while missing in action from the present case prejudiced Appellees. Appellees 

were forced to defend numerous cases in separate jurisdictions simultaneously, 

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and Appellants’ absenteeism in the case below left Appellees alone to comply 

with the district court’s pre-trial deadlines. In sum, the court’s dismissal 

was not an abuse of discretion. Lewis v. Sherriff’s Dept. Bossier Parish, 

478 Fed. Appx. 809, 816 (5th Cir. 2012) (holding that dismissal with prejudice 

is warranted where case delayed for more than a few months), cert. denied, 

133 S. Ct. 865 (2013), reh’g denied, 133 S. Ct. 1627 (2013); see also Price v. 

Pinnacle Brands, Inc., 138 F.3d 602, 607-08 (5th Cir. 1998) (maintaining that 

dismissal with prejudice is not an abuse of discretion where delay, dilatory 

motive, repeated failure to cure deficiencies, or undue prejudice to the opposing 

party is present). 

Accordingly, we AFFIRM the district court’s dismissal of this case. 

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