     Case: 17-10569       Document: 00514635355         Page: 1    Date Filed: 09/10/2018




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

                                                                                FILED
                                      No. 17-10569                      September 10, 2018
                                                                           Lyle W. Cayce
WILLIAM O. DALE; A. JAMES STREELMAN,                                            Clerk


               Plaintiffs – Appellants,

v.

EQUINE SPORTS MEDICINE & SURGERY RACE HORSE SERVICE,
P.L.L.C.; DOCTOR BOYD CLEMENT,

               Defendants – Appellees.




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:15-CV-825


Before ELROD, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       This case arises from the death of a racehorse—Rawhide Canyon.
Contentious litigation followed. Plaintiffs William Dale and James Streelman,
who owned Rawhide Canyon and brought this lawsuit relating to the horse’s
veterinary care, raise a number of issues on appeal, including the district
court’s denial of their motion to voluntarily dismiss and their motion to



       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                 No. 17-10569
reconsider that denial. Because the district court abused its discretion in
denying Plaintiffs’ motion for reconsideration of the denial of their motion to
voluntarily dismiss, we VACATE the district court’s judgment and REMAND
with instructions to dismiss the case without prejudice.
                                       I.
      Plaintiffs purchased Rawhide Canyon for $19,000.           During the next
racing season, Rawhide Canyon sustained an injury that created bone chips in
one of her joints. Following a surgery to remove the bone chips, Rawhide
Canyon was transported to New Mexico for rehabilitation. There, Dr. Boyd
Clement, an employee of Equine Sports Medicine and Surgery Race Horse
Service,   PLLC    (“ESMS”),    was   Rawhide       Canyon’s    ongoing    treating
veterinarian.
      A year later, Rawhide Canyon developed an infection in the joint that
had been the subject of the surgery. Dr. Clement, along with other ESMS
employees, continued to treat Rawhide Canyon for that infection.             Later,
Rawhide Canyon was transferred to an ESMS facility in Weatherford, Texas.
By then, Rawhide Canyon’s condition had significantly deteriorated, and she
was eventually euthanized.
      Plaintiffs filed suit in the Northern District of Texas, alleging that Dr.
Clement and ESMS committed veterinary malpractice and seeking damages
for the value of Rawhide Canyon. Plaintiffs later sought to transfer venue to
the District of New Mexico. The district court denied the motion because the
reasons for transfer were unpersuasive and “it appear[ed] that a transfer
would merely shift inconvenience from one side to the other.”
      Plaintiffs then sought to voluntarily dismiss their case in the Northern
District of Texas without prejudice.        The district court denied the motion
because Plaintiffs had not offered to pay Defendants’ attorneys’ fees. Plaintiffs
filed a motion for reconsideration and indicated their willingness to pay
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                                      No. 17-10569
Defendants’ reasonable attorneys’ fees. The motion was again denied. The
case was set for trial.
       Plaintiffs contend that the district court repeatedly erred in its
evidentiary rulings before the trial.            In light of the significant dispute
regarding venue and voluntary dismissal, the parties filed a joint motion to
extend the trial date by 120 days.            The district court denied the motion.
Approaching the close of discovery, Plaintiffs sought mandamus relief from the
district court’s decisions on the motion to transfer venue and the motion to
voluntarily dismiss. We denied both the mandamus petition and Plaintiffs’
motion for reconsideration of that order.
       The trial date arrived, and the district court granted a mistrial soon
thereafter. 1   After the case was set for a new trial, Plaintiffs sought a
continuance due to various conflicts. The district court granted the motion in
part, pushing the trial date back slightly more than a week rather than the
thirty days that Plaintiffs had originally requested. Plaintiffs filed a renewed
motion to continue the trial date, raising new conflicts and citing the potential
availability of new evidence. The district court denied the motion. The next
day, Plaintiffs filed a notice of non-appearance and a motion for a protective
order, stating that a medical condition prohibited Dale from traveling to Texas
for trial. 2


       1At the start of the trial, Plaintiffs’ counsel was ordered not to offer any evidence
concerning settlement negotiations between Plaintiffs and Defendants. Plaintiffs’ counsel
was also not allowed to offer evidence that Defendants were covered by insurance for the
claims made against them. During direct examination, a witness for Plaintiffs testified about
settlement negotiations between the parties. Counsel for Defendants objected, noting that
the answer was in violation of the court’s instructions. Defendants requested a mistrial,
which the district court granted.

       2 Dale claims that he learned during an ENT specialist visit that he had either
recently suffered a stroke or had a tumor in the vicinity of his inner ear that was causing
extensive nerve damage. As a result, Dale’s physician ordered that he not travel or
experience any change in altitude until after performing further medical testing. Because
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                                    No. 17-10569
      The district court immediately requested clarification, asking whether
Plaintiffs really did not intend to appear for trial. Plaintiffs’ counsel informed
the court that he would appear for trial, though without his clients or
witnesses. The district court subsequently issued an order stating that the
failure to appear for trial warranted immediate dismissal but did not dismiss
the action at that time.        The district court later issued a longer order,
recounting the contentious history of the litigation and noting that Plaintiffs’
failure to prosecute warranted dismissal. While the district court concluded
that dismissal was warranted, it decided to hold an evidentiary hearing if
Plaintiffs wished to have one. Plaintiffs informed the district court that the
court had all the evidence necessary, that Dale was still medically prohibited
from appearing, and that there was no need for a hearing.
      The district court dismissed Plaintiffs’ case for failure to prosecute and
entered judgment in Defendants’ favor. Plaintiffs timely appealed: (i) the
order denying Plaintiffs’ motion to transfer the case; (ii) the order denying
Plaintiffs’ motion to voluntarily dismiss without prejudice; (iii) the order
denying reconsideration of the motion to dismiss; (iv) the granting of leave to
designate experts and disclose expert reports out of time and contrary to earlier
court orders; (v) the denial of the joint motion for a continuance; (vi) the setting
of certain deadlines; (vii) the refusal of the court to allow objection or record
development as to evidentiary rulings; (viii) the failure of the court to address
alleged witness intimidation; (ix) the issuance of a mistrial; and (x) the failure
to reset trial due to the unavailability of Plaintiffs’ counsel and Dale’s
subsequent medical emergency.




the testing would not be completed by the new trial date, Plaintiffs argued that Dale was
precluded from attending the trial.
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                                  No. 17-10569
                                       II.
      The issues before us are numerous. First is the Plaintiffs’ motion to
transfer venue. Having heard oral argument and reviewed the parties’ briefs
and the record, we do not believe that the district court abused its discretion
in denying Plaintiffs’ motion to transfer the case to the District of New Mexico.
See Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (“A motion to
transfer venue is addressed to the discretion of the trial court and will not be
reversed on appeal absent an abuse of discretion.”).
      Next, we consider the motion to voluntarily dismiss. Unless the terms
of Federal Rule of Civil Procedure 41(a)(1) are met—allowing a plaintiff to
dismiss his case if no answer or motion for summary judgment has been filed
or if a stipulation of dismissal signed by all parties is filed, neither of which
was the case here—Rule 41(a)(2) requires a court order for an action to be
dismissed. We review a district court’s decision to deny a motion for voluntary
dismissal under Rule 41(a)(2) for abuse of discretion. Hartford Acc. & Indem.
Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990).
“[M]otions for voluntary dismissal should be freely granted unless the non-
moving party will suffer some plain legal prejudice other than the mere
prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314,
317 (5th Cir. 2002). “[T]he potential for forum-shopping does not count as legal
prejudice.” Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 299 (5th Cir.
2016). In ruling on a motion for voluntary dismissal, the district court can
impose certain conditions. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604–05
(5th Cir. 1976).     The district court should impose, however, only those
conditions that will alleviate any harm caused to the defendant. Id.
      Here, the district court held that payment of Defendants’ attorneys’ fees
was a “reasonable condition of dismissal” and denied Plaintiffs’ motion
because, in their briefing, Plaintiffs did not agree to that condition. Defendants
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                                  No. 17-10569
claimed that they had “spent $10,000 responding to Plaintiff’s previously filed
motions, attending mediation and preparing [the] case for trial.” At the time
of the motion, however, no discovery had taken place. Nor had Defendants
identified experts, submitted interrogatories, or requested depositions. Thus,
it appears little had been done to prepare for trial. The district court cited no
other legal prejudice to Defendants.        Nor could the potential for forum
shopping, in light of Plaintiffs’ earlier motion to transfer venue, have been
considered as legal prejudice.
      Nonetheless, assuming arguendo that the district court did not abuse its
discretion in requiring the payment of Defendants’ attorneys’ fees for Plaintiffs
to voluntarily dismiss their case, the district court did abuse its discretion in
refusing to reconsider, without explanation, its order denying the motion once
Plaintiffs agreed to the only issue with the motion the district court identified.
We have recognized that, under Federal Rule of Civil Procedure 54(b), a “trial
court is free to reconsider and reverse [an interlocutory] decision for any reason
it deems sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law.” Austin v. Kroger Tex., L.P.,
864 F.3d 326, 336 (5th Cir. 2017) (quoting Lavespere v. Niagara Mach. & Tool
Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds,
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en banc)).
      In Plaintiffs’ motion for reconsideration pursuant to Rule 54, Plaintiffs
agreed to pay, along with the additional costs they had already agreed to pay,
Defendants’ reasonable attorneys’ fees, as set by the district court. Still, the
district court denied Plaintiffs’ motion without explanation.       Because the
payment of attorneys’ fees was the sole basis for the district court’s denial of
voluntary dismissal and Plaintiffs subsequently made clear that they would
pay these fees, the district court abused its discretion by denying Plaintiffs the
ability to voluntarily dismiss their own case.
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                                       No. 17-10569
                                             III.
       For the foregoing reasons, we VACATE the district court’s judgment
dismissing the case with prejudice and REMAND to the district court with
instructions to dismiss Plaintiffs’ case without prejudice. 3




       3 The district court issued the remainder of the rulings that Plaintiffs appeal after
denying reconsideration of Plaintiffs’ motion to voluntarily dismiss. Because we conclude
that the decision to deny reconsideration of Plaintiffs’ motion to voluntarily dismiss was error
and we remand for dismissal without prejudice, we do not address the other issues on appeal.
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