United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                        REVISED JANUARY 10, 2006
                                                               December 20, 2005
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               Charles R. Fulbruge III
                                                                     Clerk

                              No. 05-30187



HARVEY SPECIALTY & SUPPLY, INC

                                                Plaintiff - Appellant
versus


ANSON FLOWLINE EQUIPMENT INC; ANSON LTD

                                               Defendants - Appellees


              Appeal from the United States District Court
                  for the Eastern District of Louisiana



Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     Defendant-Appellees Anson, Ltd. and Anson Flowline Equipment

International sought an injunction from the district court to

prevent Plaintiff-Appellant Harvey Specialty & Supply (“HSS”) from

re-litigating, in currently pending state court litigation, the

validity of the forum selection clause in their contract.               The

district court granted the injunction; HSS appeals; we vacate that

injunction.

                       I.   FACTS AND PROCEEDINGS

     HSS distributes oilfield equipment.         Since 1991, HSS has

purchased     and   distributed   Anson’s    Scottish-made      products.
Initially, HSS was Anson’s sole distributor in this country, but in

1998 Anson created its own United States subsidiary corporation,

Anson Flowline Equipment (“AFE”), to distribute its products in

Texas.    In January 2000, HSS and AFE entered into a “Sales Agent

Agreement” (the “Agreement”) establishing HSS as Anson’s exclusive

distributor in Louisiana. The Agreement expired at the end of 2001,

and the parties neither renewed it nor entered into another written

contract.

       In late 2003, HSS discovered that AFE was distributing Anson

products directly to Louisiana customers.         The following April, HSS

sued   Anson   and   AFE    (collectively,   “Anson”)   in    state      court,

petitioning for, inter alia, a preliminary and permanent injunction.

Anson removed the action to the Eastern District of Louisiana, and

sought dismissal on two grounds: (1) Venue, pursuant to the forum

selection clause in the Agreement, which designated Houston, Texas

as the proper forum; and (2) lack of personal jurisdiction.

       The district court upheld the forum selection clause and held

that venue in the Eastern District of Louisiana was improper.               The

district court denied Anson’s motion to dismiss, however, and

instead exercised its discretion to transfer the action to the

Southern District of Texas.      After the transfer, HSS filed a motion

to   dismiss   the   suit   voluntarily   under   Federal    Rule   of    Civil

Procedure 41(a)(1) (“Rule 41(a)(1)”).

       After voluntarily dismissing the initial suit against Anson,

HSS sued Anson again, but in a different Louisiana state court. HSS

                                     2
advanced substantially the same claims as it had in the first

lawsuit.    This time, however, HSS added a nondiverse Anson employee

as a defendant to prevent removal.          As a result, Anson asked the

district court for the Eastern District of Louisiana to reopen the

original case and enjoin HSS from relitigating the validity of the

forum selection clause in the new state court proceedings.

     The district court granted the injunction, which prohibited HSS

from prosecuting the suit in state court.            HSS timely filed its

notice of appeal.     We have appellate jurisdiction under 28 U.S.C.

§ 1292(a)(1), which permits interlocutory appeal of, inter alia, a

district court order granting an injunction.

                             II.     ANALYSIS

A.   Standard of Review

     We review de novo the application of the relitigation exception

to the     Anti-Injunction   Act.1     We   review   the   district   court’s

ultimate decision whether to issue an injunction for abuse of

discretion.2

B.   Applicable Law

     With certain exceptions, the Anti-Injunction Act prohibits

federal courts from enjoining proceedings in state courts.3                At


     1
      28 U.S.C. § 2283; see Newby v. Enron Corp., 

,
301 (5th Cir. 2002); Regions Bank v. Rivet, 

, 488
(5th Cir. 2000).
     2
      

; 

.
     3
      28 U.S.C. § 2283.

                                      3
issue here is the relitigation exception, which permits a federal

court to enjoin state court proceedings “where necessary... to

protect or effectuate its judgments.”4           The relitigation exception

“prevent[s]    state     litigation   of   an   issue   that    was   previously

presented to and decided by the federal court. It is founded in the

well-recognized concepts of res judicata and collateral estoppel.”5

As HSS dismissed the initial action as a matter of right without

prejudice, principles of collateral estoppel, and not res judicata,

are relevant.

     Collateral estoppel applies when, in the initial litigation,

(1) the issue at stake in the pending litigation is the same, (2)

the issue was actually litigated, and (3) the determination of the

issue in the initial litigation was a necessary part of the

judgment.6    As the third element of collateral estoppel indicates,

“[f]inality    is   an   essential    component    of   the    concept[]   of...

collateral estoppel.”7 Therefore, “[b]ecause finality is central to

the concept[] of... collateral estoppel, which animate[s] the Anti-

Injunction Act,... a lack of finality is also fatal to a request for




     4
      

Cam Choo v. Exxon Corp., 

, 147 (1988).
     6
      Next Level Commc’ns LP v. DSC Commc’ns Corp., 

,
250 (5th Cir. 1999).
     7
      J.R. Clearwater, Inc. v. Ashland Chem. Co., 

,
179 (5th Cir. 1996).

                                       4
an injunction under the Act.”8     In other words, an order that “is

not a final judgment, and therefore is not appealable as a matter

of right... lacks sufficient finality to be entitled to preclusive

effect” under the relitigation exception.9 If there is any question

as to the propriety of an injunction, we must resolve it in favor

of permitting the state court action to proceed.10

C.   Merits

     Neither party disputes that the issues in the pending state

court case and the issues in the initial litigation are the same;

neither do they dispute that the validity of the forum selection

clause was “actually litigated.”       The determinative issue is thus

whether the district court’s order transferring the case to the

Southern District of Texas is a final judgment for purposes of the

relitigation    exception,   thereby   giving   that    judgment’s      forum

selection     clause   determination   preclusive      effect   under     the

relitigation exception. We conclude that the transfer order was not

a final judgment and thus not preclusive.

         Under Rule 41(a)(1), the plaintiff has the right to file a

notice of dismissal at any time before the defendant has filed


     8
      

The court explained that, in this circuit, the
availability of appellate review is “a significant factor in
determining whether an otherwise nonfinal order should be given
preclusive effect.” 

n.2.
     10
      Id.; see also Royal Ins. Co. of Am. v. Quinn-L Capital
Corp., 

, 1294 (5th Cir. 1992).

                                   5
either an answer or a motion for for summary judgment; and “[u]nless

otherwise stated in the notice of dismissal... the dismissal is

without prejudice.” The plaintiff has an “absolute right” to a Rule

41(a)(1)       dismissal,11   and   “[t]he     effect   of   [a   Rule   41(a)(1)]

dismissal is to put the plaintiff in a legal position as if he had

never    brought     the   first    suit.”12     The    plaintiff   “suffers   no

impairment beyond his fee for filing.”13                Stated differently, the

plaintiff is free to return to the dismissing court or other courts

at a later date with the same claim.14            Ultimately, a Rule 41(a)(1)

dismissal is not a “final judgment.”15


        11
             Carter v. U.S., 

, 258-59 (5th Cir. 1977).
        12
      LeCompte v. Mr. Chip, Inc., 

, 603 (5th Cir.
1976. See also Ford v. Sharp, 

, 1023-24 (5th Cir.
1985) (explaining that “[i]f a plaintiff voluntarily dismisses an
action without prejudice, it is considered that the suit had
never been filed”).
        13
             Am. Cyanamid Co. v. McGhee, 

, 297 (5th Cir.
1963).
        14
      Semtek Int’l Inc. v. Lockheed Martin Corp., 

,
505-06 (2001) (explaining the meaning of “dismissal without
prejudice” under Rule 41(a)).
        15
      We note that plaintiffs in removed cases frequently use
the rule to re-file an action in state court to secure their
preferred forum by, inter alia, adding non-diverse parties. 9
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, § 2623. See also Wilson v. City of San Jose, 

, 694 (9th Cir. 1997) (noting that Rule 41(a)(1) essentially
permits forum shopping); Int’l Commc’ns, Inc. v. Rates Tech,
Inc., No. CV 88-0377, 

(E.D.N.Y. May 10. 1988)
(rejecting the defendants’ argument that the interests of justice
prevented voluntary dismissal under Rule 41(a)(1) when the
parties had litigated venue for one and a half years and the case
was ultimately transferred). While this may seem distasteful to
opposing parties, we have “consistently held that Rule 41(a)(1)

                                         6
     As noted, a final judgment is an absolute prerequisite to the

securing of an injunction under the relitigation exception to the

Anti-Injunction Act.        Accordingly, the district court erred in

granting    the    injunction.   This   is   because   “[t]he    element   of

finality, essential to application of collateral estoppel, is

plainly lacking in a judgment upon a Rule 41(a)(1) dismissal.”16



     To support the district court’s injunction, Anson attempts to

characterize the transfer order in the initial action as a final

judgment.     First, Anson argues that the district court’s transfer

order was, in effect, a dismissal for improper venue.           The district

court likewise characterized its transfer order as a dismissal for

improper venue when, long after its transfer, it granted the

injunction.       But labeling an order a final judgment, particularly

post hoc, does not necessarily make it one.       In determining whether

the district court issued a final judgment for the purposes of the

relitigation exception we must look to what actually happened in the

initial proceedings, and not to the retrospective characterization

of what happened.17      Although the court could have dismissed the


means what it says... [and] [d]efendants who desire to prevent
plaintiffs from invoking their unfettered right to dismiss
actions under Rule 41(a)(1) may do so by taking the simple step
of filing an answer.” 

.
     16
      In re Piper Aircraft Sys. Antitrust Lit, 

, 220
(8th Cir. 1977).
     17
      Royal 

(“In determining which issues
have been “actually decided,” the emphasis is on the record and

                                    7
action for improper venue, the court explicitly denied the motion

to dismiss and just as explicitly transferred the action to the

Southern District of Texas in an admirable effort to save HSS the

cost of having to re-file the action there.                Yet, the court’s

decision to transfer, however well-intentioned, is not the legal

equivalent of a final judgment, because it was not appealable.18

And, again, an order that is not a final judgment, and is thus not

appealable as of right, lacks the finality necessary to endow it

with preclusive effect under the relitigation exception.

      Anson and the district court also characterized the transfer

order as an effective denial of HSS’s motion for a preliminary

injunction.     Thus, reasoned the district court, the transfer order

was   sufficiently     final   for   the   purposes   of   the   relitigation

exception because it was immediately appealable under § 1291.              As

noted,     however,   interlocutory    appeals   of   transfer    orders   are

generally not immediately appealable.

      The sole exception to this general rule is a narrow one,

applicable only in cases in which a motion for injunctive relief is

pending.     In such an instance, a party may appeal a transfer order

despite the district court’s failure to consider directly the merits



on what the earlier federal court actually said, not on the
court’s post hoc judgment as to what the previous judgment was
intended to say.”) (emphasis in original).
      18
      In re Lieb, 

, 184 (5th Cir. 1990) (noting that
a transfer order is not a final judgment and is not immediately
appealable).

                                       8
of a pending motion for injunctive relief only when the merits of

the venue determination are inseparable from the merits of the

motion for injunctive relief.19       For example, if the requested

injunction is to prevent the opposing party from litigating in a

particular forum, an order transferring the action to that forum is

immediately appealable because it has the effect of denying the

injunction.20   In contrast, if the motion for injunctive relief

addresses anti-competitive practices, a district court’s order

transferring the action is not immediately appealable because the

transfer order does not affect the substantive relief sought in the

injunction.21   Thus, “the motion for injunction and the order to

transfer [must be] inextricably bound up with each other” to permit

interlocutory appeal.22


      19
      Midwest Motor Express, Inc. v. Cent. States Southeast, 

, 1016(8th Cir. 1995). Cf. Jones v. Diamond, 

, 1095 (5th Cir. 1975) (explaining that interlocutory appeal
of a denial of class certification is permissible only when it
effectively denies the injunction).
      20
      Midwest Motor 

(asserting
jurisdiction over an appeal of an order transferring an action in
a case with a pending motion for a preliminary injunction because
“the injunction would have prevented [the defendant] from
proceeding in the Northern District of Illinois, and the
[transfer] order in fact sent the case to that district”).
      21
      Ukiah Adventist Hosp. v. F.T.C., 

, 548 (D.C.
Cir. 1992) (no appellate review of transfer order when motion for
injunctive relief was under section 6 of the Clayton Act).
      22
      

v. InfoCure Corp., 

, 537 (7th
Cir. 2002) (declining to assert pendent appellate jurisdiction to
review a transfer order because “the preliminary injunction is
not sufficiently closely related to the transfer order to warrant
the exercise of pendent appellate jurisdiction... The two issues

                                  9
     In its claim for injunctive relief in the initial litigation,

HSS requested that the district court enjoin Anson from terminating

distributorship of Anson products or refusing to renew it (acts that

would substantially change the competitive circumstances material

to HSS’s distributorship) or from taking any action to destroy or

diminish the value of HSS’s distributorship.           The district court’s

order transferring the action to the Southern District of Texas only

identified the proper forum; it did not have the effect of denying

HSS’s motion for injunctive relief, much less expressly do so.

Thus, HSS’s motion for preliminary injunctive relief was completely

separate from the transfer order.23            Consequently, the transfer

order    was   not   appealable   under   §   1291,   and   the   relitigation

exception does not apply on this ground.

     Anson also insists that the injunction was proper because this

circuit has affirmed injunctions under the relitigation exception

in other cases in which the dismissal was “without prejudice.” This

argument misses the mark for two reasons.

     First and foremost, in none of the cases on which Anson relies

were the dismissals voluntary dismissals under Rule 41(a)(1).              As

we have explained, to apply preclusive effect to anything that


can be resolved without reference to each other.”
        23
      

(“[T]he transfer order reflects
nothing more than an identification of the proper court... to
hear the claim for injunctive relief. The claim for injunctive
relief, however, implicates the scope of section 7 of the Clayton
Act. These two questions are wholly unrelated... [and] no appeal
lies from the District Court’s order transferring this case.”).

                                     10
precedes a Rule 41(a)(1) dismissal would deny the plaintiff’s

absolute right under the rule to a dismissal that puts him in the

same legal position he would have been in had he never filed the

suit.

      Second, the cases are critically distinguishable.             At least,

in   this      circuit,   the   availability   of   appellate   review   is   “a

significant factor in determining whether an otherwise nonfinal

order should be given preclusive effect.”24              Significantly, the

cases relied on by Anson include court-ordered dismissals for lack

of personal jurisdiction, improper venue, or forum non conveniens.25

Although these dismissals were without prejudice, they were subject

to appellate review.        Thus, Anson’s reliance on them is misplaced.

                                 III. CONCLUSION

      As the relitigation exception to the Anti-Injunction Act does

not apply, the district court erred in granting Anson’s motion for

an injunction.        Accordingly, the injunction is

VACATED.



        24
             J.R. 

n.2.
        25
      See, e.g. Vasquez v. Bridgestone/Firestone, Inc., 

(5th Cir. 2003) (dismissal on grounds of forum non
conveniens); Great Earth Cos., Inc. v. Simons, 

(6th
Cir. 2002) (dismissal to enforce arbitration clause); Offshore
Sportswear, Inc. v. Vuarnet Int’l, B.V., 

(9th Cir.
1997) (dismissal to enforce forum selection clause); Quintero v.
Klaveness Ship Lines, 

(5th Cir. 1990) (dismissal on
grounds of forum non conveniens); Carey v. Sub Sea Int’l, Inc.,

(E.D. Tex. 2000) (dismissal for lack of
personal jurisdiction and on grounds of forum non conveniens).

                                       11