Case: 15-20219         Document: 00513385149          Page: 1     Date Filed: 02/17/2016




                         REVISED February 17, 2016

          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                       No. 15-20219                        February 16, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk


STEPHAN BECHUCK,

                                                   Plaintiff–Appellant,

versus

HOME DEPOT U.S.A., INCORPORATED;
ADVANTAGE SALES & MARKETING, L.L.C.,
 Doing Business as Advantage CMN, L.L.C.,

                                                   Defendants-Appellees.




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




Before JONES and SMITH, Circuit Judges, and BOYLE, District Judge.*
JERRY E. SMITH, Circuit Judge:




     *   District Judge of the Northern District of Texas, sitting by designation.
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                                 No. 15-20219
      Stephan Bechuck appeals an order dismissing, without prejudice, Home
Depot U.S.A., Inc. (“Home Depot”), and Advantage Sales & Marketing, L.L.C.
(“ASM”) and requiring that any suits that Bechuck refiles against those parties
be brought in the same court. Bechuck contends that the district court lacked
jurisdiction to attach the refiling restriction with respect to ASM because
Bechuck had already voluntarily dismissed ASM under Federal Rule of Civil
Procedure 41(a)(1)(A)(i). Bechuck further claims that the dismissal of Home
Depot was in error and that the refiling restriction with respect to Home Depot
was improper. We agree that the district court lacked jurisdiction to impose
the refiling restriction on ASM. We also agree that the court erred in dis-
missing Home Depot, but the error, being without prejudice, was harmless.
Finally, we agree that the imposition of the refiling restriction with respect to
Home Depot was an abuse of discretion, so we affirm the judgment as modified
to omit that condition.

                                       I.
      In July 2014, Bechuck allegedly sustained injuries from a fall caused by
a defective chair that was located in the common area of a Home Depot. Two
months later, Bechuck sued Home Depot and Ambrose Witkowski, the general
manager of the store, in state court. A month after that, Home Depot removed
to federal court on the basis of diversity jurisdiction, contending that Witkow-
ski had been fraudulently joined.      With leave of court, Bechuck filed an
amended complaint in November 2014, omitting Witkowski and adding Sales
Managers Inc., doing business as Advantage Sales & Marketing, Inc. (“SMI”),
as a defendant. Bechuck alleged that SMI was negligent in failing adequately
to assemble and inspect the chair before its distribution. After serving SMI,
Bechuck learned that ASM, not SMI, was the distributor of the chair; Bechuck
therefore filed a second amended complaint with leave of court on January 14,

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                                      No. 15-20219
2015, replacing SMI with ASM as a defendant. ASM was served on January
29, 2015, and its response was due February 19, 2015.

       On February 2, the district court held a pretrial conference at which
counsel for Bechuck and Home Depot, but not ASM, appeared; the district
court announced, without warning, 1 that it was going to dismiss the claim
against Home Depot, noting that “Home Depot wouldn’t have put [the chair]
out there if they had known there was a defect,” that “the defect arose because
of the preparation of these other folks,” and that “[y]ou don’t sue somebody and
then figure out if you have a claim.”

       Shortly after the pretrial conference, the court issued a “Partial Dis-
missal” that stated that “[b]ecause he cannot explain what it did wrong, Ste-
phan Bechuck’s claims against Home Depot U.S.A., Inc., are dismissed with
prejudice.” A few hours later, Bechuck filed a notice of voluntary dismissal
without prejudice against ASM pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i), noting that ASM had not yet filed an answer or motion for sum-
mary judgment. Thereafter, the same day, the district court issued a “Final
Dismissal” that stated,

    1. On his motion, Stephan Bechuck’s claims against Advantage Sales
    & Marketing LLC are dismissed without prejudice.
    2. Because he cannot explain what it did wrong, Stephan Bechuck’s
    claims against Home Depot are dismissed with prejudice.
    3. If Bechuck sues Advantage for the same cause of action, he must do
    so before this court.




       1  Although the court provided no notice that it was planning to dismiss Home Depot
for failure to state a claim, it had provided notice, in a management order dated December 8,
that if Bechuck failed to produce certain documents for Home Depot by December 12, the
case could be dismissed. The record does not indicate whether Bechuck ever produced those
documents.
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                                        No. 15-20219
      On February 24, 2015, Bechuck filed a “Motion to Alter, Amend or Vacate
the Judgment” under Federal Rule of Civil Procedure 59(e), urging that the
district court had erred in sua sponte dismissing his claims against Home
Depot with prejudice and in imposing a refiling restriction on his dismissal
without prejudice of his claims against ASM.                   In response, Home Depot
deferred to the court’s “determination of the merits of Plaintiff’s Motion” but
advised the court that it was “unopposed to the Court amending the order of
dismissal from ‘with prejudice’ to ‘without prejudice.’”

      On March 18, 2015 the district court entered an order entitled “Corrected
Final Dismissal” that stated,
   1. On his motion, Stephan Bechuck’s claims against Advantage Sales
   & Marketing LLC and Home Depot U.S.A., Inc. are dismissed without
   prejudice.

   2. If Bechuck sues Advantage or Home Depot again for the same cause
   of action, he must do so before this court.

Thus, the corrected order did not affect the dismissal of ASM, but it modified
the dismissal of Home Depot from with prejudice to without prejudice, and it
extended the refiling restriction to Home Depot as well. The court offered no
explanation or opinion with the revised final dismissal.

                                               II.
      Bechuck contends that the district court lacked jurisdiction to impose the
filing restriction on his voluntary dismissal of the claims against ASM under
Rule 41(a)(1)(A)(i), and he requests that that condition be vacated.                     ASM
responds that the court retained inherent supervisory authority to place the
restriction on the dismissal to prevent forum-shopping. Jurisdictional issues
related to a Rule 41(a)(1)(A)(i) dismissal are reviewed de novo. 2


      2   See Bailey v. Shell W. E&P, Inc., 

, 718 (5th Cir. 2010); Qureshi v. United
                                               4
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                                       No. 15-20219
                                             A.
       Rule 41(a)(1)(A)(i) provides that “the plaintiff may dismiss an action
without a court order by filing . . . a notice of dismissal before the opposing
party serves either an answer or a motion for summary judgment.” “Unless
the notice or stipulation states otherwise, the dismissal is without prejudice.”
FED. R. CIV. P. 41(a)(1)(B). “The notice of dismissal is self-effectuating and
terminates the case in and of itself; no order or other action of the district court
is required.” In re Amerijet Int’l, Inc., 

, 973 (5th Cir. 2015) (per
curiam). Indeed,

        Rule 41(a)(1) is the shortest and surest route to abort a complaint
    when it is applicable. So long as plaintiff has not been served with his
    adversary’s answer or motion for summary judgment he need do no
    more than file a notice of dismissal with the Clerk. That document itself
    closes the file. There is nothing the defendant can do to fan the ashes
    of that action into life and the court has no role to play. This is a matter
    of right running to the plaintiff and may not be extinguished or circum-
    scribed by adversary or court. There is not even a perfunctory order of
    court closing the file. Its alpha and omega was the doing of the plaintiff
    alone. He suffers no impairment beyond his fee for filing.

Am. Cyanamid Co. v. McGhee, 

, 297 (5th Cir. 1963); see also

(affirming Am. Cyanamid).

       Thus, once a plaintiff has moved to dismiss under Rule 41(a)(1)(A)(i),
“the case [i]s effectively terminated.”           Williams v. Ezell, 

,
1263−64 (5th Cir. 1976). “The court ha[s] no power or discretion to deny plain-
tiffs’ right to dismiss or to attach any condition or burden to that right.” 

district court may not attach any conditions to the dismissal.”

.




States, 

, 524 (5th Cir. 2010).
                                             5
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                                  No. 15-20219
      Nevertheless, “[t]hat the court loses jurisdiction over the litigation does
not, however, deprive the district court of its inherent supervisory powers.”

. “It is well established that a federal court may con-
sider collateral issues after an action is no longer pending,” Cooter & Gell v.
Hartmarx Corp., 

, 395 (1990), including “the imposition of costs,
attorney’s fees, and contempt sanctions, [and] the imposition of a Rule 11
sanction,” 

We have added pre-filing injunctions to the list of permis-
sible collateral issues. 

. “[T]he reason that these
actions survive dismissal is that each ‘requires the determination of a collat-
eral issue: whether the attorney has abused the judicial process, and, if so,
what sanction would be appropriate.’” 

(quoting Cooter & 

).

                                       B.
      There is no dispute that Bechuck terminated the litigation against ASM
by filing the Rule 41(a)(1)(A)(i) notice of dismissal. The issue is whether the
district court’s inherent supervisory power included the ability to impose the
refiling condition. Thus, we must decide whether a condition requiring the
plaintiff to refile in the same federal district court is in the same class as the
imposition of sanctions, costs, attorney’s fees, contempt proceedings, and pre-
filing injunctions.

      On in its face, the imposition of a pre-filing injunction might be a close
analogue to the refiling condition imposed here. Nevertheless, in 

, we explained that a pre-filing injunction fit into the class of
permissible collateral issues because it “serves the same purpose” as sanctions,
costs, attorney’s fees, and contempt proceedings, “namely, a sanction against
abuse of the judicial process.” Notably, all of the collateral issues that the
Supreme Court has permitted to be considered are related to the past—seeking

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                                       No. 15-20219
to remedy wrongs that have already been committed. Likewise, the test for
pre-filing injunctions does not focus on whether the plaintiff will file a
vexatious suit but whether he has filed such suits. 3

       In contrast, Bechuck has not displayed a pattern of past vexatious
behavior. This is his first suit against ASM and his first voluntary dismissal.
ASM maintains that the refiling restriction was necessary to prevent Bechuck
from engaging in future forum-shopping. Yet, because this is his first suit,
Bechuck has not yet engaged in any forum-shopping, so is there no history of
abuse that renders such a condition appropriate. 4

       Proper collateral issues “are ‘independent proceeding[s] supplemental to
the original proceeding and not a request for a modification of the original
decree.’”   Cooter & 

(alteration in original) (quoting
Sprague v. Ticonic Nat’l Bank, 

, 170 (1939)). Court-ordered sanc-
tions should be neither “a consequence” of a voluntary dismissal without pre-
judice nor a “condition” placed upon such dismissal. 

Absent
Bechuck’s dismissal of ASM, it is unlikely that the court would have had an




       3 “In determining whether it should impose a pre-filing injunction . . . a court must
weigh all the relevant circumstances, including the following four factors: ‘(1) the party’s
history of litigation, in particular whether he has filed vexatious, harassing, or duplicative
lawsuits; (2) whether the party had a good faith basis for pursuing the litigation, or simply
intended to harass; (3) the extent of the burden on the courts and other parties resulting from
the party’s filings; and (4) the adequacy of alternative sanctions.’” 

n.2 (alteration in original) (quoting Baum v. Blue Moon Ventures, LLC, 

,
189 (5th Cir. 2008)).
       4 Nevertheless, in his brief Bechuck worries that “the district court has pre-judged the
outcome of any subsequent suit by Plaintiff against Home Depot,” making it appear as though
he would like to engage in future forum-shopping. Yet, he has not yet done so, and he did
not make that claim in the district court, so there was no basis in the record for the district
court to impose such a condition.
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                                      No. 15-20219
independent reason to sanction him. Therefore, because there was no behavior
to sanction, 5 the refiling limitation appears to be an impermissible condition.

       Although forum-shopping is not a trivial concern, “Rule 41(a)(1)
essentially permits forum shopping.” Harvey Specialty & Supply, Inc. v. Anson
Flowline Equip. Inc., 

, 324 n.15 (5th Cir. 2005) (discussing Wilson
v. City of San Jose, 

, 694 (9th Cir. 1997)). It is not uncommon for
plaintiffs to use voluntary dismissal to “secure their preferred forum,” such as
when they seek to undo removal and return to state court. 

may
seem distasteful to opposing parties, we have ‘consistently held that Rule
41(a)(1) means what it says . . . [and] [d]efendants who desire to prevent plain-
tiffs 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.’’ 

original) (quoting Carter v. United States, 

, 259 (5th Cir. 1977)).

       “[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.” Yesh Music v. Lakewood
Church, 

, 359 (5th Cir. 2013) (alteration in original) (quoting Har-
vey Specialty & Supply, 

). Therefore, “the plaintiff is free
to return to the dismissing court or other courts at a later date with the same
claim.” 

him back into the situation as though he had never
brought suit, Rule 41(a)(1)(A)(i) necessarily allows him to choose his forum
anew. Upholding the refiling restriction would not return Bechuck to the same




       5 Although the transcript of the pretrial conference suggests that the district court
was frustrated with Bechuck’s delay in serving ASM, and the record indicates that he further
delayed (or failed) to produce certain documents, the court did not provide any reasons for
imposing the refiling restriction or indicate in any way that Bechuck’s delays were connected
to that condition. Likewise, ASM does not contend that Bechuck’s delays were the basis for
the restriction.
                                             8
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                                         No. 15-20219
legal position that he occupied before suit. 6

       Such a holding does not mean that there can be no mechanisms to
prevent forum-shopping. 7 Additionally, by requiring that a second voluntary
dismissal under Rule 41(a)(1) operate as an adjudication on the merits, the
federal rules already limit a plaintiff’s ability to engage in forum-shopping. See
FED. R. CIV. P. 41(a)(1)(B). 8            Therefore, notwithstanding ASM’s forum-
shopping concerns, once Bechuck filed his Rule 41(a)(1)(A)(i) motion, the
district court lacked jurisdiction to attach any refiling restrictions.

                                               III.
       Bechuck contends that the district court erred by sua sponte dismissing
Home Depot as well as by attaching a condition requiring Bechuck to file any
other suits against Home Depot in the same court. The order is difficult to
understand. In its first order of final dismissal, the district court stated that
“[b]ecause he cannot explain what it did wrong, Stephan Bechuck’s claims
against Home Depot U.S.A., Inc., are dismissed with prejudice.” That order



       6   Indeed, in an unpublished opinion we rejected a similar refiling restriction notwith-
standing the possibility of forum-shopping. See Int’l Driver Training Inc. v. J-BJRD Inc.,
202 F. App’x 714, 716 (5th Cir. 2006) (per curiam). There, after the plaintiff had filed a Rule
41(a)(1)(A)(i) notice, the district court attached a condition requiring the plaintiff to refile any
subsequent suit in its courtroom (not just the same district court). 

We noted that
the plaintiff’s objection to the condition might be because it was hoping to draw a different
(more favorable) judge if it refiled. 

Nevertheless, we vacated the condition, observ-
ing that “[o]nce the order of dismissal was filed, the case effectively ceased.” 

court lacked “jurisdiction to take further action,” including placing limitations on the plain-
tiff’s “right to file in the future.” 

district courts are free to adopt a rule “requir[ing] that a re-filed action be

assigned to the original judge.” Int’l Driver Training Inc., 202 F. App’x at 716. Such a rule
must be imposed at the wholesale level, however, and may not be attached individually as a
condition on voluntary dismissals under Rule 41(a)(1).
       8In contrast to other forms of dismissal, a Rule 41(a)(1)(A)(i) dismissal must be made
quite early in the litigation—before the defendant files an answer—so any concerns about
having the same court adjudicate a refiling because of its past expertise with the parties are
diminished.
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                                       No. 15-20219
sounds much like a motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Nevertheless, after Bechuck moved the court,
under Rule 59(e) to “alter, amend, or vacate” its judgment, the court entered a
corrected final dismissal stating, “On his motion, Stephan Bechuck’s claims
against Advantage Sales & Marketing LLC and Home Depot U.S.A., Inc., are
dismissed without prejudice.” Considering that Bechuck’s voluntary dismissal
of ASM was made under Rule 41(a)(1)(A)(i) and that the dismissal of both
Home Depot and ASM occurred in the same pen stroke, it appears that the
court likewise was dismissing Home Depot under a related provision—Rule
41(a)(1)(A) or (2).

       It is entirely possible (and even likely) that the court actually meant to
dismiss Bechuck’s claims against Home Depot under Rule 12(b)(6) for failure
to state a claim. Nevertheless, this is not what the corrected final dismissal
said, and it is that order that binds Bechuck. 9                 According to the order,
“Bechuck’s claims against . . . Home Depot” were dismissed “[o]n his motion.”
It is conceivable that Bechuck could have made a request to dismiss his claims
against Home Depot without prejudice, but a motion to dismiss for failure to
state a claim is an affirmative defense. There is no way that Bechcuck could
have (or would have) moved to dismiss Home Depot for his own failure to state
a claim. Therefore, we cannot construe the revised order as a dismissal for
failure to state a claim; instead, we interpret it as falling under



       9 Even if the corrected final dismissal had not replaced the first dismissal, our juris-
diction would be limited to the order appealed. See FED. R. APP. P. 3(c)(1)(B) (“The notice of
appeal must . . . designate the judgment, order, or part thereof being appealed . . . .”); Fiess
v. State Farm Lloyds, 

, 806 (5th Cir. 2004) (explaining that an issue “cannot be
considered by this court unless the judgment or order disposing of it is properly noticed for
appeal”). We also mention that both sides appear to have treated the dismissal as a sua
sponte dismissal under Rule 12(b)(6) and therefore briefed the merits, but we do not address
the sufficiency of the complaint.
                                              10
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                                      No. 15-20219
Rule 41(a)(1)(A)(ii) or (2). 10

       The glaring problem with a dismissal under Rule 41(a)(1)(A)(ii) or (2) is
that Bechuck never asked the court to dismiss his claims against Home Depot.
See FED. R. CIV. P. 41(a) (covering plaintiff-requested dismissals). To the con-
trary, after the sua sponte first order of dismissal, Bechuck contended that
dismissing of Home Depot “was unfair and prejudicial” and asked the court to
“vacate its order of dismissal with prejudice.” Although the order, no doubt,
was mistaken, it still binds the parties, so we must consider its effect.

                                             A.
       Rule 41(a)(1)(A)(ii) allows a plaintiff to “dismiss an action without a court
order by filing . . . a stipulation signed by all parties who have appeared.” In
its response to Bechuck’s Rule 59(e) motion asking the court to vacate its first
order of dismissal, Home Depot “advise[d] the Court that it [wa]s unopposed to
the Court amending the order of dismissal from ‘with prejudice’ to ‘without
prejudice.’” It is possible that the court construed that as acquiescence in a
motion for voluntary dismissal under Rule 41(a)(1)(A)(ii). 11 If the court dis-
missed Bechuck’s claims against Home Depot under Rule 41(a)(1)(A)(ii), then
the analysis regarding the refiling condition would be the same as the analysis
with respect to the refiling condition against ASM outlined in Part II above. 12
Once the parties agreed to a voluntary dismissal, the court was deprived of
jurisdiction to add a refiling restriction.



       10 Such a dismissal could not be under Rule 41(a)(1)(A)(i) because Home Depot had
already filed an answer.
       11 Again, the patent difficulty with this reading is that Bechuck never requested dis-

missal of Home Depot.
       12If the order was made under Rule 41(a)(1)(A)(ii), its merits—the dismissal of Home
Depot—were in error, but any error was harmless because it was explicitly without prejudice.
See infra Part III.B.
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                                 No. 15-20219
                                       B.
      Nevertheless, it is not obvious that this is what the district court was
doing; possibly it was trying to dismiss Bechuck’s claim against Home Depot
under Rule 41(a)(2), which allows an action to “be dismissed at the plaintiff's
request only by court order, on terms that the court considers proper.” Thus,
we also must evaluate the result if the order was made under Rule 41(a)(2),
given that we cannot tell which prong of Rule 41(a) the court was using.

                                       1.
      “Generally, an order of voluntary dismissal without prejudice entered at
the plaintiff’s request is not an involuntary adverse judgment.” Mortg. Guar.
Ins. Corp. v. Richard Carlyon Co., 

, 300 (5th Cir. 1990). Thus, in
the normal course, if a voluntary dismissal was entered under Rule 41(a)(2),
the plaintiff would be barred from appealing. “This can easily be understood
since the plaintiff has acquired that which he sought, the dismissal of his
action and the right to bring a later suit on the same cause of action, without
adjudication of the merits.” LeCompte v. Mr. Chip, Inc., 

, 603 (5th
Cir. 1976). “An appeal may sometimes be allowed, however, where the court
imposes conditions upon a voluntary dismissal.” Mortg. 

.
Indeed, we “will permit an appeal if (1) the plaintiff is ‘legally prejudiced’ by
the conditions accompanying the grant of dismissal; and (2) the plaintiff has
not agreed to or legally acquiesced in those conditions.” 

v.
Keller Indus., Inc., 

, 130 (5th Cir. 1978)).

                                       a.
      “Although the district court’s order in this case is labeled a ‘dismissal
without prejudice,’ at least with respect to determining appealability, we do
not believe the order had that effect” because the district court conditioned
dismissal on refiling before it. 

. In LeCompte, the
                                       12
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                                       No. 15-20219
district court distinguished between conditions attached to dismissal that work
“practical” prejudice, such as “paying costs or expenses, producing documents,
producing witnesses,” 13 and conditions that work “legal prejudice,” by “severely
circumscrib[ing] . . . freedom to bring a later suit.” 

Conditions
that create practical prejudice are not appealable, but those that cause legal
prejudice are. 

imposed in LeCompte were of the second variety. The
court granted the plaintiff’s motion for voluntary dismissal without prejudice
under Rule 41(a)(2) but required: “(1) that any subsequent suit must be filed
in the same court; (2) that plaintiff must show extraordinary circumstances to
justify reopening the case; and (3) that plaintiff must make an affirmative
demonstration to the court’s satisfaction that a valid cause of action can be
maintained against defendants.” 

Although we said the plaintiff
was “not totally precluded from bringing a second suit,” because he “must, nev-
ertheless, prove his case preliminarily to the district court before being allowed
the right to relitigate,” we held that he was legally prejudiced. 

       Obviously, the refiling restriction here is identical to the first condition
in LeCompte, creating a strong inference that such a condition is legally preju-
dicial. We have not had occasion to consider whether a forum-filing restriction
by itself is sufficient to constitute prejudice. The only court to do so determined
that a filing limitation was not prejudicial, but that case is easily distinguish-
able. In Versa Prods., Inc. v. Home Depot, USA, Inc., 

(11th Cir.
2004) (per curiam), the district court conditioned a Rule 41(a)(2) dismissal on
a requirement that the plaintiff file any subsequent suit in the Northern Dis-




       13 These types of restrictions are often designed to reduce “prejudice” and “inconveni-
ence” for the defendant. 

–05.
                                             13
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                                      No. 15-20219
trict of Georgia, where the first suit had been dismissed. 

Never-
theless, at the time of dismissal the defendant had already obtained a forum
non conveniens (“FNC”) transfer between districts. Thus, conditioning the vol-
untary dismissal on refiling in the new district was necessary to “protect[]
Home Depot from the unfairness of having to relitigate the issue of the more
convenient forum for this dispute.” 

The condition also promoted
“judicial economy” by ensuring that a future court would not have to adjudicate
another FNC request. 

granting a Rule 41(a)(2) dismissal is discretionary and
that courts may be hesitant to dismiss if the defendant will be prejudiced, the
Eleventh Circuit’s decision to uphold the conditions is not surprising. 14 In
contrast, there is no FNC motion here, so there is no need to protect Home
Depot by imposing a refiling restriction. Likewise, this case is still in its early
stages, so there is no need to impose a refiling restriction to promote judicial
economy.

       As with the plaintiff in LeCompte, to refile Bechuck will have to “come
before the same court and affirmatively demonstrate that the case should be
reopened.” 

. Though there is no explicit require-
ment, in the dismissal order, that Bechuck convince the court of the worthiness
of reopening his case, that is what he will be doing by being required to submit
his claims before the same court. The dismissal of Home Depot does not “put
the plaintiff in a legal position as if he had never brought the first suit.” 

Instead, his ability to refile is “severely circumscribed”; any subsequent



       14  See Davis v. Huskipower Outdoor Equip. Corp., 

, 199 (5th Cir. 1991)
(explaining that dismissal under Rule 41(a)(2) is discretionary and should be granted only if
it will not “prejudice” the defendant); In re FEMA Trailer Formaldahyde Prods. Liab. Litig.,

, 162 (5th Cir. 2010) (explaining that prejudice “occur[s] when a party proposes
to dismiss the case at a late stage of pretrial proceedings”).
                                             14
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                                      No. 15-20219
suit must be in the Southern District of Texas. Therefore, because the condi-
tion attached to Home Depot’s dismissal is of the same type as the prohibited
conditions in LeCompte, 15 and because there is no need for a refiling restriction
to protect an FNC transfer, the dismissal of Home Depot, conditioned on
Bechuck’s refiling in the same court, was legally prejudicial.

                                             b.
       There is no question that Bechuck meets the second prong of the appeal-
ability test. See Mortg. 

. He failed to acquiesce in the
refiling restriction; instead, he has actively opposed it. He objected to a similar
restriction on ASM in the first order of final dismissal and sought appeal after
the sua sponte imposition of that condition in the revised final dismissal.
Therefore, because the restriction was prejudicial, and because Bechuck has
not agreed to it, the dismissal of Bechuck’s claims against Home Depot without
prejudice is an appealable order.

                                             2.
       We review a dismissal without prejudice under Rule 41(a)(2) for abuse of
discretion. 

; 

. The district
court abused its discretion by sua sponte dismissing Home Depot and claiming



       15 Nevertheless, applying LeCompte may be somewhat in tension with dictum in Sem-
tek International Inc. v. Lockheed Martin Corp., 

, 505 (2001), that stated,
       The primary meaning of “dismissal without prejudice,” we think, is dismissal without
       barring the plaintiff from returning later, to the same court, with the same underlying
       claim. That will also ordinarily (though not always) have the consequence of not bar-
       ring the claim from other courts, but its primary meaning relates to the dismissing
       court itself.
Thus, if dismissal without prejudice merely means that a plaintiff can return to the same
court with the same claim, perhaps a plaintiff also could be limited to returning to the same
court. However, the dictum is not in direct conflict with LeCompte, and we lack the authority
to overrule the decision of a prior panel barring intervening authority that is binding. See
Barber v. Johnson, 

, 237 (5th Cir. 1998).
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                                       No. 15-20219
that it was at Bechuck’s request 16 and by not giving Bechuck an opportunity
to acquiesce in (or alternatively reject) the refiling condition and dismissal
without prejudice. 17

       Nevertheless, we conclude that any error that resulted from the
Rule 41(a)(2) dismissal itself is harmless because it was without prejudice. As
discussed, in cases in which no conditions are imposed on the Rule 41(a)(2)
dismissal without prejudice, the plaintiff cannot seek review on appeal because
the dismissal “does not qualify as an involuntary adverse judgment.”

. As this reasoning demonstrates, any error from a
Rule 41(a)(2) dismissal without prejudice (to which no conditions are attached)
is negligible: The plaintiff is put “in a legal position as if he had never brought
the first suit” and can refile to avoid any harm. 

in the context of
failure to state a claim under Rule 12(b)(6), when a court sua sponte dismisses
a complaint, “if the dismissal was without prejudice,” any error is “amelior-
ated.” Bazrowx v. Scott, 

, 1054 (5th Cir. 1998) (per curiam).
Likewise, the error in sua sponte ordering the Rule 41(a)(2) dismissal of Home




       16Even if, in theory, a court could sua sponte dismiss a claim without prejudice under
Rule 41(a)(2), its sua sponte dismissal here, which was incorrectly described as based on
Bechuck’s motion, was improper. We express no opinion on whether sua sponte dismissal
under Rule 41(a)(2) is ever proper. The Eleventh Circuit has held that sua sponte dismissal
without prejudice is available when it is necessary to prevent prejudice to the plaintiffs who
otherwise would have faced a directed verdict on the merits. Kotzen v. Levine, 

,
140 n.3 (11th Cir. 1982).
       17 See Elbaor v. Tripath Imaging, Inc., 

, 320 (5th Cir. 2002) (quoting
Mortg. 

) (“Ordinarily, the plaintiff has the option to refuse a
Rule 41(a)(2) voluntary dismissal and to proceed with its case if the conditions imposed by
the court are too onerous.”); Mortg. 

(collecting cases).
       18  Similarly, for additional indication that dismissals without prejudice generally
cause minimal harm, see Boazman v. Econ. Lab., Inc., 

, 212–13 (5th Cir. 1976)
(stating, in the context of a Rule 41(b) dismissal, that “[o]rdinarily, we would apply a less
stringent standard of review to a District Court’s dismissal of a suit without prejudice,
because the plaintiff would be able to file his suit again”).
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                                        No. 15-20219
Depot was harmless because it was without prejudice. 19

                                               C.
       We must resolve whether the district court abused its discretion by
attaching the refiling restriction to its dismissal of Bechuck’s claims against
Home Depot. “By its very language 41(a)(2) gives the court power to grant or
deny a motion made under the rule and ‘upon such terms and conditions as the
court deems proper.’” 20 “[We] follow the traditional principle that dismissal
should be allowed unless the defendant will suffer some plain prejudice other
than the mere prospect of a second lawsuit.” 21 Thus, “[t]he purpose of author-
izing the court to place conditions on a voluntary dismissal is to prevent unfair
prejudice to the other side in the case.” 22

       “In ruling on motions for voluntary dismissals, the district court should
impose only those conditions which will alleviate the harm caused to the defen-
dant.” 

–05. Typical examples of permissible condi-
tions include payment of costs and attorney’s fees. 

Other conditions
could include “making available to defendant at second suit certain records,
producing certain witnesses at trial, and paying one-half cost of defendant
bringing in other witnesses.” 

holding of Stevenson v. United


       19  Indeed, in cases in which an appeal is proper because the district court placed condi-
tions on a Rule 41(a)(2) dismissal that was made without prejudice, a court ordinarily can
presume that any error from the underlying grant of dismissal itself is harmless and there-
fore can proceed directly to analyze whether the conditions attached to the dismissal were an
abuse of discretion. We separate the inquiries here to make it obvious that they are analyti-
cally distinct.
        20 Am. 

(quoting previous version of FED. R. CIV. P. 41(a)(2));

see also FED. R. CIV. P. 41(a)(2) (permitting voluntary dismissal “on terms that the court con-
siders proper”).
       21 

(alteration in original) (quoting Holiday Queen Land
Corp. v. Baker, 

, 1032 (5th Cir. 1974)).
       22FEMA 

; see also Am. Nat’l Bank & Trust Co. of Sapulpa v.
Bic Corp., 

, 1412 (10th Cir. 1991).
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                                        No. 15-20219
States, 

(M.D. Tenn. 1961)). 23

       In contrast, a condition limiting the plaintiff’s right to refile to the orig-
inal forum is “not the type usually found in Rule 41(a)(2) dismissals.” 

of concerns about cost or reproducing discovery, the “only alleged pre-
judice in this case, upon refiling,” absent the forum limitation imposed by the
district court, is that “plaintiffs may gain a tactical advantage.” Am. 

. Yet, “[i]t is no bar to dismissal that plaintiff may obtain some
tactical advantage thereby.” 

(quoting Holiday

). Indeed, the “fact that a plaintiff may gain a tactical
advantage by dismissing its suit without prejudice and refiling in another
forum is not sufficient legal prejudice to justify denying a motion for voluntary
dismissal.” 25



       23  See also 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2366 (3d ed. 2008) (explaining that in addition to requiring the payment of
costs, a court can condition voluntary dismissal on “the plaintiff[’s] produc[ing] documents or
agree[ing] to allow any discovery in the dismissed action to be used in the subsequent action
or otherwise reduce the inconvenience to the defendant caused by the dismissed case”).
       24 Indeed, this type of limitation is rare, a fact that lends further support to our con-
clusion that it is an impermissible aberration. Except for LeCompte and Versa, we know of
few cases in which courts have imposed a condition limiting the plaintiff’s right to refile to
the original forum. See 

–27; 

; Scholl v.
Felmont Oil Corp., 

, 699–700 (6th Cir. 1964) (holding that because the plaintiff
acquiesced in the dismissal without prejudice with conditions, there was no involuntary
adverse judgment to appeal); Nw. Envtl. Def. Ctr. v. Allen, No. CIV. 05-1279-AA, 

, at *3 (D. Or. June 13, 2007). Cf. Ahler v. City of N.Y., No. 93 CIV. 0056 (SS), 

, at *2 (S.D.N.Y. Sept. 13, 1993) (conditioning Rule 41(a)(2) dismissal without
prejudice on bar preventing plaintiff “from refiling the same action in federal court” to pre-
vent vexatious “vacillation over forum” when plaintiff already had an “identical action” in
state court). In contrast, at least one circuit has held that a “district court did not abuse its
discretion in failing to impose a refiling condition.” Am. 

. The district
court there decided “that it did not have authority or discretion to impose a condition that
plaintiffs’ subsequent refiling of the case be in federal district court,” and the Tenth Circuit
affirmed. 

v. Spies, 

(4th Cir. 1998); see also Rosenthal v. Bridge-
stone/Firestone, Inc., 217 F. App’x 498, 502 (6th Cir. 2007) (stating that a voluntary dismissal
to gain a tactical advantage “does not necessarily constitute plain legal prejudice”); but see
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                                       No. 15-20219
       If the possibility of tactical advantage does not justify the denial of a
voluntary dismissal, likewise the possibility of tactical advantage should not
justify the imposition of a refiling condition. In sum, the potential for forum-
shopping does not count as legal prejudice. Therefore, any advantage Bechuck
might receive from refiling in another forum cannot constitute legal prejudice
to Home Depot.

       That does not mean that a condition limiting subsequent suit to the
original forum is never appropriate. In a situation such as the one in Versa,
where a defendant has already been granted an FNC venue transfer, where a
plaintiff has a repeated history of vexatious forum-shopping causing signifi-
cant inconvenience to the defendant, perhaps a refiling restriction would be
called for. 26 We need not resolve such questions today.

        Apart from forum-shopping, Home Depot has failed to allege any preju-
dice it will suffer without the refiling restriction. The district court’s order of
dismissal similarly did not show any justifications for its refiling condition.
Absent evidence of legal prejudice to Home Depot from a Rule 41(a)(2) dis-
missal that contains no conditions, we cannot sustain the refiling restriction.
To rule otherwise would unnecessarily prevent Bechuck from returning to the
legal position he had before the suit. The court abused its discretion in attach-
ing the filing condition to its Rule 41(a)(2) dismissal.

       The judgment with respect to the dismissal without prejudice of Home
Depot and ASM is AFFIRMED, and the judgment with regard to imposition of




Thatcher v. Hanover Ins. Grp., Inc., 

, 1214 (8th Cir. 2011) (“[I]t is inappropriate
for a plaintiff to use voluntary dismissal as an avenue for seeking a more favorable forum.”).
        26 We are also mindful of our earlier discussion noting other avenues that can mini-

mize forum-shopping, including a court-wide rule that a subsequent suit will be assigned to
the original judge. See Part II.B.
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                                 No. 15-20219
conditions restricting refiling against these parties to the Southern District of
Texas is AFFIRMED AS MODIFIED to remove those conditions.




                                       20