                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                     REVISED AUGUST 23, 2004
                                                             August 04, 2004
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                 Clerk

                          No. 03-61067
                       (Summary Calendar)



MERLEAN MARSHALL, INDIVIDUALLY AND
ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF LUCY R. SHEPARD, DECEASED;
ALPHONZO MARSHALL, INDIVIDUALLY AND
ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF LUCY R. SHEPARD, DECEASED;
ERIC SHEPARD, INDIVIDUALLY AND
ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF LUCY R. SHEPARD, DECEASED;

                                              Plaintiffs-Appellants,

versus

KANSAS CITY SOUTHERN RAILWAY COMPANY;
ERIC W. ROBINSON; ROBERT E. EVERETT;
C. L. DUETT; JOHN DOES, 1 THRU 10;

                                               Defendants-Appellees.


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




Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:

     On appeal, Plaintiffs-Appellants identified in the caption of

this case (“Plaintiffs”) challenge the district court’s denial of

their motion for remand to state court.     The district court had


                                1
ruled that the non-diverse defendants were fraudulently joined and

refused to certify an interlocutory appeal of that ruling to us.

After one unsuccessful attempt to appeal that decision to our

court, Plaintiffs continued their efforts to gain an expedited

appeal    on   this   issue     by    attempting   to    manufacture        appellate

jurisdiction by voluntarily seeking dismissal of their claims

against    the   diverse      Defendant-Appellee,        Kansas      City    Southern

Railway Company (“KCS”).             In so doing, Plaintiffs have forfeited

their right to appeal —— presumably inadvertently —— because we

must   also    dismiss   this        second   appeal    for   lack    of    appellate

jurisdiction.

                           I.    FACTS & PROCEEDINGS

       This case arises out of a fatal railroad crossing accident

that occurred in Scott County, Mississippi.               The accident occurred

when a van, driven by Lucy R. Shepard, collided with a KCS train.

Shepard was killed, and her passenger, Phyllis B. McKee, was

injured.       Plaintiffs, as representatives of Shepard’s wrongful

death beneficiaries, filed this action in Mississippi state court

asserting, inter alia, claims under that state’s wrongful death

statute.       McKee filed a separate negligence action (the “McKee




                                          2
case”).1 In addition to KCS,2 three members of the train crew, C.L.

Duett, Eric Robinson, and Robert Everett (collectively the “train

crew”),   were    named    as   defendants   in   both   actions   for    their

allegedly negligent operation of the train.              While this suit was

pending   in     state    court,   Defendants     propounded   requests       for

admissions asking Plaintiffs to admit that there was no basis for

joining the train crew defendants in this action.                  Plaintiffs

failed to respond timely to Defendants’ requests for admissions.

Arguing   that    Plaintiffs’      failure   to   respond   resulted     in   the

conclusive admission that no viable cause of action existed against

the train crew,3 Defendants removed the action to federal court on

the assertion that the train crew defendants, who are Mississippi

residents, were fraudulently joined solely to defeat diversity

jurisdiction.

     Plaintiffs filed a motion in district court seeking remand to

state court.      In support of this motion, Plaintiffs submitted a

sworn statement by Officer Jeff Pitts, a witness to the collision



     1
       See McKee v. Kansas City S. Ry. Co., 358 F.3d 329 (5th
Cir. 2004). As with this action, the McKee case was also removed
to federal court, where it was presided over by the same district
judge who handled this case.
     2
       KCS is a Missouri corporation with its home office and
principal place of business in Kansas City.
     3
       The requests for admissions were issued pursuant to Miss.
R. Civ. P. 36. The parties sharply contest whether the district
court could properly treat Plaintiffs’ failure to respond timely
to the requests as a conclusive admission. That dispute,
however, does not affect our decision today.

                                       3
between KCS’s train and Shepard’s van.       The district court ordered

that a remand deposition of Officer Pitts be taken and that the

parties submit a transcript of his deposition to the court.

     After reviewing Officer Pitts’ deposition, the district court

denied Plaintiffs’ motion for remand.         The court concluded that

Officer Pitts’ deposition “work[ed] against the plaintiffs” and

that they could not establish any cause of action against the train

crew.    The district court consequently dismissed the train crew

defendants    from   the    action.   Plaintiffs      filed   a   motion   for

reconsideration to which they appended additional evidence and

documentation to demonstrate the train crew’s potential liability.

The district court denied this motion, too.

     Plaintiffs then appealed the district court’s denial of their

motion for remand and dismissal of the train crew defendants to

this court.     As the district court’s remand decision was not

certified for interlocutory appellate review under 28 U.S.C. §

1292(b) or Federal Rule of Civil Procedure 54(b), we dismissed that

effort   to   obtain   an    interlocutory   review    because    we   lacked

appellate jurisdiction.4

     4
       Marshall v. Kansas City S. Ry. Co., 45 Fed. Appx. 322 (5th
Cir. 2002) (“Marshall I”). After filing their notice of appeal
in Marshall I, Plaintiffs filed a Rule 54 motion in the district
court to have a final judgment entered in favor of the train crew
defendants. But because Plaintiffs had already filed their
notice of appeal, the district court never ruled on that Rule 54
motion. See Texas Comptroller of Pub. Accounts v. Transtexas Gas
Corp. (In re Transtexas Gas Corp.), 303 F.3d 571, 578-79 (5th
Cir. 2002). In other words, Plaintiffs put the cart before the
horse by filing their notice of appeal before submitting their

                                      4
     Next,     the   district   court   entered    a   scheduling   order

establishing a discovery completion deadline and setting the case

for trial.    Meanwhile, the McKee case had proceeded to trial, and

a jury had rendered a verdict in favor of KCS.5           On learning of

that verdict, Plaintiffs filed a pleading styled Motion for Entry

of Final Judgment in Favor of Defendant (the “Motion for Final

Judgment”).    This motion, which professed to rely on Federal Rule

of Civil Procedure 54, stated that this case and the McKee case

involved the same defendant (KCS) and identical issues.         In their

motion, Plaintiffs asserted that, “[s]ince the Court and [KCS] have

previously opined that the jury’s verdict in McKee and the final

judgment entered pursuant to that verdict are binding upon the

Plaintiff and [KCS] herein, there is no just reason to delay the

entry of a final judgment in this action.”        Plaintiffs, therefore,

asked the district court to “direct the entry of a final judgment

against the Plaintiff and in favor of the Defendant in this

action.”     Importantly, the Motion for Final Judgment said nothing

about whether Plaintiffs were seeking dismissal with or without

prejudice.

     KCS filed a response in which it stated that Plaintiffs had

miscited Rule 54 as the governing rule.       Instead, explained KCS,



Rule 54 motion.
     5
       In the McKee case, the district court had also dismissed
the train crew defendants after concluding that they had been
fraudulently joined. 358 F.3d at 332.

                                    5
“[t]he proper rule under which the Plaintiff should be proceeding

is Rule 41(a)(2).”    KCS made the following representation:

     Defendant [KCS] has no objection to Plaintiff’s request
     for dismissal of her claims against this Defendant and
     for entry of final judgment with prejudice in this
     Defendant’s favor.    It is apparent from Plaintiffs’
     Motion, and from representations by her counsel to this
     Defendant and the Court, that Plaintiff wishes to
     terminate proceedings before this Court and appeal to the
     Fifth Circuit Court of Appeals this Court’s rulings
     denying the Plaintiffs’ Motion to Remand and Motion to
     Reconsider Order Denying Remand. Defendant would agree
     to entry of an order dismissing Plaintiffs’ claims with
     prejudice and expressly reserving the Plaintiffs’ right
     to challenge this Court’s subject matter jurisdiction
     over this action on appeal to the Fifth Circuit.(6)

Before the district court ruled on the Motion for Final Judgment,

though, Plaintiffs filed yet another motion for reconsideration of

the district court’s initial order denying remand.   This time they

cited evidence from the McKee trial to demonstrate the viability of

their claims against the train crew defendants.

     In ruling on Plaintiffs’ two pending motions, the district

court first acknowledged that Plaintiffs had predicated their

Motion for Final Judgement on Rule 54(b), but agreed with KCS and

construed Plaintiffs’ motion as one for voluntary dismissal under

Rule 41(a)(2). The district court then granted Plaintiffs’ motion,

stating:

     There is no counterclaim in the instant case and the
     defendants do not object to the plaintiffs’ motion.
     Therefore, the above styled and numbered cause is hereby
     dismissed in accordance with Rule 41(a)(2). As a special
     condition of this dismissal, the plaintiffs’ motion for

     6
         Emphasis added.

                                  6
     this court to enter a final judgment in favor of the
     defendants ... is hereby granted.    This court hereby
     grants final judgment in favor of the defendants.

In the same order, the district court went on to deny Plaintiffs’

renewed motion for reconsideration of the remand issue. Plaintiffs

timely filed their notice of appeal, designating this order as the

decision from which they were appealing.

                              II.   ANALYSIS

     Plaintiffs appeal the district court’s denial of their motion

for remand.    In support, Plaintiffs advance arguments essentially

identical to those advanced in McKee’s appeal to this court,

contesting the district court’s denial of her motion for remand.7

By attempting to manufacture appellate jurisdiction through the

voluntarily dismissal of the remainder of their action against KCS,

however, Plaintiffs have unwittingly stepped into the so-called

“finality trap,”8 thereby forfeiting altogether their right to

appeal the district court’s remand decision.

A.   MANUFACTURING APPELLATE JURISDICTION   TO   OBTAIN   A   QUASI-
     INTERLOCUTORY APPEAL

     The starting point of our analysis is 28 U.S.C. § 1291, the

jurisdictional statute on which Plaintiffs now rely in seeking

appellate relief from us.       Generally, all claims and issues in a

case must be adjudicated in the district court, and a final


     7
         See McKee, 358 F.3d at 333-37.
     8
       Terry W. Schackmann & Barry L. Pickens, The Finality Trap:
Accidentally Losing Your Right to Appeal, 58 J. MO. B. 78 (2002).

                                      7
judgment or order must be issued, before our jurisdiction can be

invoked     under   §   1291.9      This       “final    judgment    rule”     creates

appellate      jurisdiction      only   after     a     decision    that    “ends    the

litigation on the merits and leaves nothing for the court to do but

execute the judgment.”10           Here, the district court refused to

certify     its   denial   of    Plaintiffs’       motion    for    remand     for    an

interlocutory appeal under 28 U.S.C. § 1292(b).                     Neither did the

court enter a final judgment pursuant to Rule 54(b) in favor of the

dismissed train crew defendants.11

      All parties agree that the McKee case and this action involved

the     same   defendant      (KSC),    identical         operative        facts,    and

substantially overlapping legal claims.                  Additionally, both cases

proceeded before the same district judge.                 Consequently, after the

jury rendered a verdict for KCS in the McKee case, the Plaintiff

(and possibly the district court as well) apparently expected KCS

to raise the defense of res judicata or issue preclusion in this

case.      Critically, though, nothing in the record reflects any



      9
       This provision provides, in pertinent part, that “[t]he
courts of appeals ... shall have jurisdiction of appeals from all
final decisions of the district courts of the United States ...
except where a direct review may be had in the Supreme Court.” 28
U.S.C. § 1291 (emphasis added).
      10
       Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
373, 101 S. Ct. 669, 673 (1981) (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 2457 (1978)). For
now, we disregard the narrow exception to the final judgment rule
embodied in the collateral order doctrine.
      11
           See supra note 4.

                                           8
assertion       of   these   defenses   by   KCS.12     Instead,      Plaintiffs

preemptively filed their Motion for Final Judgment, asking the

district court to “direct the entry of a final judgment against the

Plaintiff[s] and in favor of the Defendant in this action.”                  In

effect, Plaintiffs sought to manufacture a final judgment —— and

through    it    appellate    jurisdiction    ——   to   obtain   an   immediate

appellate ruling on the question of fraudulent joinder.

     The Plaintiffs’ problem with the strategy they employed is

that it runs headlong into the “settled rule in the Fifth Circuit

that appellate jurisdiction over a non-final order cannot be

created by dismissing the remaining claims without prejudice.”13

And, a Rule 41(a) dismissal without prejudice is not deemed to be

a “final decision” for the purposes of § 1291.              This rule can be

traced back to our decision in Ryan v. Occidental Petroleum Corp.14

In Ryan, we explained that when a district court grants a party’s

request for a voluntary dismissal, he “gets what he seeks, i.e., a

dismissal without an adjudication on the merits, and he is entitled



     12
       In their Motion for Final Judgment, Plaintiffs stated
that the district court and KCS had “previously opined that the
jury’s verdict in McKee and the final judgment entered pursuant
to that verdict [were] binding upon the Plaintiff and [KCS]
herein,” but the record is devoid of any ruling, opinion, or
statement by the district judge to this effect. KCS never filed
any supplemental pleading asserting the affirmative defense of
res judicata or issue preclusion. See FED. R. CIV. P. 8(c).
     13
       Swope v. Columbian Chems. Co., 281 F.3d 185, 192 (5th
Cir. 2002) (emphasis added).
     14
          577 F.2d 298 (5th Cir. 1978).

                                        9
to bring a later suit on the same cause of action.”15                Therefore,

a party cannot use voluntary dismissal without prejudice as an end-

run around the final judgment rule to convert an otherwise non-

final —— and thus non-appealable —— ruling into a final decision

appealable under § 1291.16

     Typically, the Ryan rule operates when a plaintiff has filed

multiple    claims    against   a    single   party,   or   against   multiple

parties, and the district court has dismissed some but not all of

the claims.     Then, in an effort to preserve his remaining claims

while simultaneously appealing the adverse dismissal, the plaintiff

implores the district court to dismiss his remaining claims without

prejudice and enter a final judgment.17           Ryan eschews this practice

of manufacturing § 1291 appellate jurisdiction and disallows the

manipulative plaintiff from having his cake (the ability to refile

the claims voluntarily dismissed) and eating it too (getting an

early     appellate     bite    at    reversing     the     claims    dismissed

involuntarily).18     This prohibition of quasi-interlocutory appeals

applies equally to a plaintiff’s attempt to use a Rule 41(a)



     15
          Id. at 302.
     16
          See id.
     17
          See Schackmann & Pickens, supra note 8, at 78-80.
     18
       See generally Swope, 281 F.3d at 192-94; State Treasurer
of Michigan v. Barry, 168 F.3d 8, 14-16 (11th Cir. 1999). See
also Rebecca A. Cochran, Gaining Appellate Review by
“Manufacturing” A Final Judgment Through Voluntary Dismissal of
Peripheral Claims, 48 MERCER L. REV. 979 (1997).

                                       10
voluntary dismissal to construct the jurisdictional basis for

appealing a district court’s denial of a motion for remand.19

     In contrast, when a plaintiff agrees to have his remaining

claims dismissed with prejudice, Ryan’s rule is not implicated

because the plaintiff is precluded from refiling the same action

elsewhere.    “[I]f the plaintiff is unsuccessful in challenging the

district    court’s   action,   then   the   dismissal   operates   as   an

adjudication on the merits and the litigation is terminated.”20

Thus, the policy against permitting interlocutory appeals in all

but those limited circumstances that are specifically prescribed in

the Federal Rules and the Judicial Code is furthered because when

“the appellant voluntarily dismisses his action with prejudice and

loses on appeal, the district court is saved the time and effort of

conducting extended trial proceedings and there is in addition no

possibility of piecemeal appeals.”21

     The determinative question for the issue here presented, then,

is whether the district court’s dismissal of this action was with

or without prejudice.




     19
       See, e.g., Martin v. Franklin Capital Corp., 251 F.3d
1284, 1288-89 (10th Cir. 2001); Concha v. London, 62 F.3d 1493,
1506-08 (9th Cir. 1995).
     20
          Martin, 251 F.3d at 1289 (quoting Concha, 62 F.3d at
1507).
     21
       Id. (quoting Concha, 62 F.3d at 1508 n.8).         See also
Cochran, supra note 18.

                                   11
B.   DISMISSAL WITH   OR   WITHOUT PREJUDICE?

     Because the district court’s order granting Plaintiff’s Motion

for Final Judgment is silent on the question of prejudice, it is

reasonably susceptible to two contradictory readings.                  On the one

hand, the order states that the court is dismissing the action “in

accordance    with    Rule        41(a)(2),”    which    expressly   states   that

dismissals    under        that    rule   are   without    prejudice    “[u]nless

otherwise specified in the order.”22                    On the other hand, the

district court’s order purports to engraft a “special condition” on

the dismissal by granting Plaintiffs’ Motion for Final Judgment and

entering “a final judgment in favor of the defendants.”                       And,

earlier in its order, the district court remarked that Plaintiffs’

Motion for Final Judgment was “mov[ing] for a final judgment with

prejudice pursuant to Rule 54(b).”23             As noted previously, though,

Plaintiffs’ motion does not state whether the dismissal being

sought was to be with or without prejudice.

     In their reply brief on appeal, Plaintiffs vigorously assert

that their motion “requested entry of final judgment, but not with

prejudice.”    Absent this assertion, we could conceivably interpret

     22
        FED. R. CIV. P. 41(a)(2). See Plumberman, Inc. v. Urban
Sys. Dev. Corp., 605 F.2d 161, 161 (5th Cir. 1979) (holding that
if a Rule 41(a)(2) dismissal order fails to specify whether the
dismissal is with or without prejudice, the dismissal is treated
as one without prejudice). See also 9 CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2367, at 318-19 (2d ed. 1995)
(“If the court’s order is silent on this point, the dismissal is
without prejudice.”).
     23
          Emphasis added.

                                          12
the district court’s order either way; and if we were to construe

it   as    a    dismissal     with   prejudice,    we   would   have   appellate

jurisdiction and could proceed to resolve Plaintiffs’ challenge to

the district court’s denial of their motion for remand.24                    But,

given (1) Plaintiffs’ most recent insistence that the dismissal at

issue was without prejudice and (2) the express language in Rule

41(a)(2) that a dismissal under that rule is without prejudice

“[u]nless otherwise specified in the order” (which it is not), we

are constrained to conclude that the dismissal was, in fact,

without        prejudice.25     Therefore,   the    Ryan   rule   controls   our

decision, and we must dismiss this appeal for lack of appellate

jurisdiction.

                                III.   CONCLUSION

      For the foregoing reasons, Plaintiffs’ appeal is dismissed for

lack of jurisdiction.


      24
       For their part, the Defendants rely on two Eleventh
Circuit decisions that have gone far beyond Ryan’s scope to hold
that appellate jurisdiction is lacking even if the plaintiff has
his underlying action dismissed with prejudice. Druhan v.
American Mut. Life, 166 F.3d 1324, 1325-27 (11th Cir. 1999);
Woodard v. STP Corp., 170 F.3d 1043, 1044 (11th Cir. 1999). The
Eleventh Circuit’s reasoning in these decisions seems to conflict
with the rationale underlying Ryan. See Swope, 281 F.3d at 192-
94; Barry, 168 F.3d at 14-16; Cochran, supra note 18. We need
not wrestle with this question today because Druhan and Woodard
are not binding on us, and they would not affect the ultimate
outcome of this appeal.
      25
       See Cochran, supra note 18, at 1017 (“Litigants have the
responsibility to obtain dismissal orders of peripheral claims
that state they are dismissed with prejudice and to account for
the resolution of all pieces of the district court litigation.”).

                                        13
DISMISSED.




             14
