                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-1777


DAVID C. ANDERSON; SAMUEL PULLEN, on behalf of themselves
and all others similarly situated,

                 Plaintiffs - Appellants,

           v.

SARA LEE CORPORATION,

                 Defendant - Appellee,

           and

DOES 1-100, Inclusive,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:03-cv-00031-H)


Argued:   May 11, 2010                        Decided:     June 15, 2010


Before TRAXLER,    Chief   Judge,   and   NIEMEYER   and   AGEE,   Circuit
Judges.


Vacated and remanded with instructions by unpublished opinion.
Judge Niemeyer wrote the opinion, in which Chief Judge Traxler
and Judge Agee joined.


ARGUED:   Alvin Leonard Pittman, Los Angeles, California, for
Appellants.   Alfred Burgess Robinson, Jr., OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, PC, Washington, D.C., for Appellee.  ON
BRIEF:   W. R. Loftis, Jr., Robin E. Shea, CONSTANGY, BROOKS &
SMITH, LLC, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
NIEMEYER, Circuit Judge:

      In Anderson v. Sara Lee Corp., 508 F.3d 181, 195 (4th Cir.

2007), we vacated that portion of the district court’s judgment

which dismissed with prejudice plaintiffs’ fraud claim and which

granted Sara          Lee    summary         judgment     on     breach      of    contract       and

negligence claims, and we remanded those claims “for dismissal

without prejudice as preempted by the FLSA.”                              (Emphasis added).

We explained, “This will give the Class Members an opportunity

to pursue any FLSA claims they may possess.”                                 Id.    Our mandate

thus remanded those claims “with instructions to dismiss without

prejudice those three claims as preempted by the FLSA.”                                   Id.

      On remand, the district court entered an order precisely as

we instructed.              Having dismissed those claims, the court then

dismissed       as     moot      plaintiffs’            motion       to   file      an     amended

complaint       to    assert      FLSA       claims      on    the    ground       that    such     a

disposition          was required by our mandate to dismiss the claims.

      Plaintiffs         now      claim       in       this    second     appeal         that     the

district    court       abused         its    discretion,        especially        because        the

dismissal       order       on   remand       would      require      them    to    file      a   new

action that might well be barred by the applicable statute of

limitations.           Sara      Lee    moved      to    dismiss      this     second      appeal,

arguing that the district court’s dismissal without prejudice

was   not   a    final       judgment        under      Domino       Sugar    Corp.      v.     Sugar

Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993)

                                                   3
(holding that a plaintiff may not appeal an order dismissing a

complaint without prejudice on a ground that could be cured by

amendment of the complaint).            Of course, if Sara Lee is correct,

the district court’s order was interlocutory, leaving open the

possibility of further proceedings.

        The source of the problems presented in this case lies in

the lack of clarity of our earlier mandate, which was intended

to imply that the vacated claims be dismissed without prejudice

and   with   leave   to   allow   the     plaintiffs   to   file   an   amended

complaint that would purport to state claims under the FLSA.

Accordingly, we now vacate the district court’s judgment and

remand the three claims for breach of contract, negligence, and

fraud     with   instructions      to     dismiss   those    claims     without

prejudice and with leave to file an amended complaint within a

reasonable time to assert any claims that plaintiffs may possess

under the FLSA.

                                  VACATED AND REMANDED WITH INSTRUCTIONS




                                         4
