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

                                                                            FILED
                                                                           March 5, 2010

                                       No. 09-50045                   Charles R. Fulbruge III
                                                                              Clerk

VIRDA BELL BULLARD; JOHN G. ALEXANDER; ELNORA BELL;
PAULLETTE BLAYLOCK; CHARLES H. BOOKER; ET AL.,

                                           Plaintiffs–Appellants–Cross-Appellees
v.

BURLINGTON NORTHERN SANTA FE RAILWAY CO.; KOPPERS
INDUSTRIES INC.; MONSANTO CO.; DOW CHEMICAL CO.; VULCAN
MATERIALS CO.,

                                           Defendants–Appellees–Cross-Appellants



                  Appeals from the United States District Court
                        for the Western District of Texas
                           USDC No. 1:08-cv-00724-SS


Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Virda Bell Bullard, et al. (the “Bullard Plaintiffs”) appeal the district
court’s sua sponte dismissal of their claims against Burlington Northern Santa
Fe Railway Company, et al. (the “Defendants”). This is the fifth action against
Defendants for personal injuries or property damage relating to Defendants’
operation of a railroad tie treatment facility in Somerville, Texas. The district


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 09-50045

court dismissed the Bullard Plaintiffs’ claims without prejudice under Federal
Rule of Civil Procedure 8 for failure to adequately plead their group litigation.
      On appeal, the Bullard Plaintiffs argue that the district court’s dismissal
without prejudice operates as a dismissal with prejudice because the statute of
limitations has run on some of their claims. The Bullard Plaintiffs contend that,
because they have neither acted contumaciously nor engaged in dilatory tactics,
we should find that the district court abused its discretion by dismissing their
claims. Because the district court made no express findings as to whether the
Bullard Plaintiffs acted with the requisite contumaciousness to warrant a de
facto dismissal with prejudice, we vacate the district court’s dismissal and
remand with instructions to conduct further findings.
           I. FACTUAL AND PROCEDURAL BACKGROUND
A.    The Parties
      The Bullard Plaintiffs are 144 current or former residents of Somerville,
Texas. At one time, Somerville housed the largest railroad tie plant in the
United States. The Somerville facility began production in 1906, and the
surrounding town developed in conjunction with its success.         The Bullard
Plaintiffs allege that while operating the Somerville facility, Defendants treated
the wood used in production of the railroad ties with toxic chemicals that
emanated from the plant and caused them to develop cancer.
      Defendants are five separate companies involved in the ownership and
operation of the Somerville facility.       Defendant Koppers, Inc. (“Koppers”)
currently operates the facility. Prior to Koppers’s operation, the Atchison,
Topeka and Santa Fe Railway—the predecessor to Defendant Burlington
Northern Santa Fe Railway Company (“BNSF”)—ran the plant. The Bullard
Plaintiffs allege that Defendants Monsanto Company, The Dow Chemical
Company, and Vulcan Materials Company supplied the chemicals to the
Somerville facility that caused their cancers.

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B.    Prior Litigation Against Defendants
      1.     The “Davis Action”
      In June 2005, a group of Somerville residents (the “Davis Plaintiffs”) filed
a putative class action lawsuit in the United States District Court for the
Western District of Texas against Defendants. The Davis Plaintiffs pled claims
based on nuisance, trespass, strict products liability, negligence, and gross
negligence, and sought compensation to finance periodic health monitoring and
medical examinations.      The Davis Plaintiffs attempted to certify a class
consisting of all Somerville residents who had suffered from the chemicals
allegedly emanating from the Somerville facility.
      The district court denied class certification in December 2005. The Davis
Plaintiffs subsequently amended their complaint and joined 602 individuals in
a “mass action.” After determining that “Plaintiffs’ complaint was . . . so
vague . . . that [Defendants] cannot reasonably be required to frame a responsive
pleading,” the district court ordered the Davis Plaintiffs to provide a more
definite statement and answers to eight interrogatories to compensate for the
Davis Plaintiffs’ failure “to include sufficient details regarding the nature of each
individual’s alleged exposure and injury.” The Davis Plaintiffs complied, but the
district court found it “beyond argument that their responses to the
interrogatories were grossly inadequate.” The district court, however, remained
“unconvinced that Plaintiffs responded in bad faith.”
      The district court ordered each Davis Plaintiff either to file an individual
complaint or dismiss his or her claim within thirty days, stating:
      This case is not a class action. This case is not a mass tort action.
      After sixteen months and three tries at creating some form of group
      litigation, Plaintiffs have made clear to this Court that the only
      efficient and equitable means of trying their claims is in individual
      lawsuits.




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In November 2006, the Davis Plaintiffs voluntarily dismissed their claims
without prejudice.
      2.    The “Batts Action”
      In October 2007, a group of Somerville residents (the “Batts Plaintiffs”)
filed a putative class action complaint in the United States District Court for the
Western District of Pennsylvania. The Batts Plaintiffs sued Defendant Koppers
for damages arising from the same set of facts as those giving rise to the Davis
Action. In November 2007, the Batts Plaintiffs voluntarily dismissed their
claims.
      3.    The “Brinston Action”
      Also in October 2007, another group of Somerville residents (the “Brinston
Plaintiffs”) brought a putative class action alleging only property damage
against Defendant BNSF in Texas state court based on the same facts alleged
in the Davis and Batts Actions. BNSF removed the putative class action under
the “mass action” provision of 28 U.S.C. §§ 1332(d)(11) and 1453, as amended by
the Class Action Fairness Act of 2005 (“CAFA”), and the district court judge who
heard the Davis Action received the assignment. The district court dismissed
the Brinston Action without prejudice for lack of subject matter jurisdiction,
holding that the Brinston Plaintiffs failed to establish standing and failed to
bring suit within the applicable limitations period.
      4.    The “Hamilton Actions”
      In December 2007, a total of 544 Somerville residents (the “Hamilton
Plaintiffs”) filed six separate mass action complaints, each with less than one
hundred named plaintiffs, against Defendants BNSF and Koppers in Texas state
court. According to Defendants, “these filings ‘literally lifted the caption from
the Davis mass action [and] divided it six ways alphabetically.’” The district
court opined that the Hamilton Plaintiffs deliberately filed each complaint with



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fewer than one hundred plaintiffs in an attempt to avoid CAFA’s mass action
removal provision.
      The Hamilton Plaintiffs alleged that BNSF and Koppers’s liability arose
from the same set of facts as alleged in the three previous complaints against
Defendants, and asserted claims based on negligence, nuisance, trespass, gross
negligence, and intentional infliction of emotional distress. Defendants BNSF
and Koppers removed all six cases under the mass action provision of 28 U.S.C.
§§ 1332(d)(11) and 1453, and the district court judge who heard both the Davis
and Brinston Actions again received the assignment. After consolidating all six
complaints, the district court denied the Hamilton Plaintiffs’ motion to remand
after Defendants BNSF and Koppers implored the court to reject the Hamilton
Plaintiffs’ attempt to plead around CAFA. In reaching this conclusion, the
district court analogized the Hamilton Plaintiffs’ actions to those seen in cases
of fraudulent joinder and bad faith pleading.
      In June 2008, the district court granted Defendants BNSF and Koppers’s
motion to instruct the Hamilton Plaintiffs to sever and file individual claims.
Noting that the consolidated cases were “essentially identical” to the Davis
Action and that the same pleading problems giving rise to the severance order
in the Davis Action continued to exist, the district court allowed the Hamilton
Plaintiffs thirty days to sever their claims. The district court also warned the
Hamilton Plaintiffs that it would dismiss without prejudice any claims not
severed in the given time frame. The Hamilton Plaintiffs took no action, and the
district court dismissed the consolidated Hamilton Action in its entirety without
prejudice.
C.    The “Bullard Action”
      1.     State Court Proceedings
      On October 31, 2007, the Bullard Plaintiffs filed a single mass action
complaint in Illinois state court asserting personal injury claims nearly identical


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to the Davis and Hamilton Actions. Although they did not attempt to certify a
class, they based their claims on the same factual allegations against Defendants
as in the other four actions and claimed that the chemicals used in operating the
Somerville facility caused every Bullard Plaintiff to develop cancer. Defendants
removed the Bullard Action to the United States District Court for the Northern
District of Illinois under the mass action provision of 28 U.S.C. §§ 1332(d)(11)
and 1453.
      2.    Proceedings in the Northern District of Illinois
      Once in federal court, Defendants moved to transfer the case to the
Western District of Texas, while the Bullard Plaintiffs moved to voluntarily
dismiss fifty-three plaintiffs and to remand the case back to state court. The
Illinois district court denied the Bullard Plaintiffs’ motion to remand. The
Bullard Plaintiffs appealed the denial, and the Seventh Circuit affirmed. See
Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759 (7th Cir. 2008).
      On September 25, 2008, the Illinois district court granted Defendants’
motion to transfer to the Western District of Texas. In the same order, the
Illinois district court denied the Bullard Plaintiffs’ motion for voluntary
dismissal, finding that allowing the Bullard Plaintiffs to do so would not only
subject Defendants to prejudice by forcing them to litigate suits based on the
same claims in both state and federal court, but would also defeat the purposes
of CAFA. The Illinois district court did, however, deny the Bullard Plaintiffs’
voluntary dismissal motion without prejudice so that they could renew their
motion in the Western District of Texas.
      3.    Proceedings in the Western District of Texas
      After the transfer, the same district judge who heard the Davis, Brinston,
and Hamilton Actions again received the assignment for the case against
Defendants. Approximately a month after the transfer, the district court sua
sponte dismissed without prejudice the entire Bullard Action for failure to meet

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                                  No. 09-50045

the basic pleading requirements of Federal Rule of Civil Procedure 8.
Specifically, the district court reiterated that the residents of Somerville could
not style a group litigation against Defendants. Noting that the “Plaintiffs have
made it abundantly clear through several separate cases” that they “either
cannot or will not bring individual claims on their own behalf,” the district court
declined to enter another severance order, finding that the Somerville residents’
failure to sever and file individually in the previous cases indicated that any
such order would be futile.
      The Bullard Plaintiffs filed a motion for reconsideration, arguing that their
case differed significantly from the four previous complaints, and that they
anticipated that if the dismissal without prejudice remained in its current form,
Defendants would argue that the statute of limitations barred refiling. They
also renewed their motion for voluntary dismissal that the Illinois district court
had rejected, arguing that voluntary dismissal of 116 of the 144 total plaintiffs
would toll the statute of limitations under Illinois law, while involuntary
dismissal, even without prejudice, would not. The Bullard Plaintiffs admitted
that upon a grant of their motion to voluntarily dismiss, they intended to refile
their complaints in a manner that would avoid federal subject matter
jurisdiction. In the alternative, the Bullard Plaintiffs asked the district court to
enter the same severance order it had entered in the previous actions, and
promised to sever and file individually if given the opportunity.
      The district court denied the motion for reconsideration and scolded the
Bullard Plaintiffs for their “abuse of the judicial system.” Construing the
Bullard Plaintiffs’ motion for reconsideration as “yet another attempt by the
Plaintiffs to circumvent the rulings of this and other courts,” the district court
stated that if the Bullard Plaintiffs wished to avoid the Illinois statute of
limitations on their claims and file individually, they had previously been
provided ample opportunity to do so, starting with the Davis Action. The district


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                                  No. 09-50045

court also chided the Bullard Plaintiffs for their renewed motion for voluntary
dismissal, describing it as an attempt to circumvent the clear ruling of the
Illinois district court. The district court concluded its order with a warning that
sanctions would follow any further refiling against Defendants based on the
same facts that resulted in another dismissal. The Bullard Plaintiffs appealed.
           II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction under 28 U.S.C. § 1291. The district court had
jurisdiction under the mass action provision of 28 U.S.C. §§ 1332(d)(11) and
1453. “[W]e review the district court’s decision to grant a motion to dismiss with
or without prejudice only for abuse of discretion.” Club Retro, LLC v. Hilton, 568
F.3d 181, 215 n.34 (5th Cir. 2009).
      We have, however, “limited the district court’s discretion in dismissing
cases with prejudice.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992). Specifically, we will only affirm dismissals with prejudice given “‘a
clear record of delay or contumacious conduct by the plaintiff,’ . . . and where
lesser sanctions would not serve the best interests of justice.” Rogers v. Kroger
Co., 669 F.2d 317, 320 (5th Cir. 1982) (quoting Pond v. Braniff Airways, Inc., 453
F.2d 347, 349 (5th Cir. 1972)) (internal quotation marks omitted) (alteration in
original). “Where further litigation [of a] claim will be time-barred, a dismissal
without prejudice is no less severe a sanction than a dismissal with prejudice,
and the same standard of review is used.” McGowan v. Faulkner Concrete Pipe
Co., 659 F.2d 554, 556 (5th Cir. 1981).
                              III. DISCUSSION
A.    Waiver
      In response to the Bullard Plaintiffs’ statute of limitations argument,
Defendants contend that the Bullard Plaintiffs failed to properly raise the issue
before the district court. Additionally, Defendants argue that the Bullard
Plaintiffs have provided no record basis to support their claim that the statute

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                                        No. 09-50045

of limitations will bar refiling. Based on these contentions, Defendants ask us
to find that the Bullard Plaintiffs waived this argument.
       The Supreme Court has stated that although “[i]t is indeed the general
rule that issues must be raised in lower courts in order to be preserved as
potential grounds of decision in higher courts[,] . . . this principle does not
demand the incantation of particular words.” Nelson v. Adams USA, Inc., 529
U.S. 460, 469 (2000) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174–75
(1988)). Instead, this principle only “requires that the lower court be fairly put
on notice as to the substance of the issue.” Id. In the Bullard Plaintiffs’ motion
for reconsideration—their earliest opportunity to do so—they requested that the
district court consider the statute of limitations and accompanying tolling
provisions. Our law does not require any more to prevent waiver.
       Additionally, we have not required litigants to prove definitively that the
statute of limitations would bar refiling of claims before treating a dismissal
without prejudice as one with prejudice. In Boazman v. Economics Laboratory,
Inc., we stated, “[w]here . . . the statute of limitations prevents or arguably may
prevent a party from refiling his case after it has been dismissed, we fail to see
how a dismissal without prejudice is any less severe a sanction than a dismissal
with prejudice.” 537 F.2d 210, 213 (5th Cir. 1976) (emphasis added).1
       Illinois has a two-year statute of limitations for all personal injury claims,
and the Bullard Plaintiffs brought this to the attention of the district court in
their motion for reconsideration. See 735 ILL. COMP. STAT. 5/13-202. Because
the Bullard Plaintiffs filed their state court complaint more than two years ago,
the applicable limitations statute, at the very least, “arguably may prevent”


       1
         See also Campbell v. Dretke, 261 F. App’x 702, 703 (5th Cir. 2008) (per curiam)
(unpublished) (“Although the district court’s dismissal of [the plaintiff’s] complaint was without
prejudice, a re-filed complaint would probably be barred by the applicable two-year statute of
limitations, and, thus, the standard of review is the same as is used when reviewing a
dismissal with prejudice.”) (emphasis added) (citation omitted).

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                                    No. 09-50045

them from refiling if the district court’s dismissal stands. See Boazman, 537
F.2d at 213. We conclude that the Bullard Plaintiffs’ statute of limitations
argument is properly before us, and we should thus treat the district court’s
dismissal as one with prejudice.
B.       Substantial Similarity of Prior Litigations
         As a threshold matter, the Bullard Plaintiffs argue that the district court
erred by considering every previous litigation against Defendants arising from
the same factual allegations. Although the record reflects that all of the prior
lawsuits filed against Defendants alleged substantially the same facts, involved
substantially the same attorneys and law firms, and sought similar relief based
on substantially similar injuries, there remain several unanswered questions.
         Specifically, the record does not reflect the extent to which the prior
actions against Defendants named the Bullard Plaintiffs or sought to represent
their interests through the vehicle of a purported class action. For instance,
although the Davis Action sought to certify a class that would encompass every
current or former resident of Somerville—which would arguably include every
Bullard Plaintiff—the district court denied certification. Although the 602
individual Davis Plaintiffs who subsequently proceeded against Defendants
failed “to include sufficient details regarding the nature of each individual’s
alleged exposure and injury” and made “grossly inadequate” responses to the
district court’s interrogatories, the same cannot be said of the entire purported
class.
         Additionally, the plaintiffs in the Brinston Action sought certification of
a substantially narrower class than that sought in the Davis Action. The
Brinston Plaintiffs purported to represent only “persons who own property or
lease property within [one] mile” of the Somerville plant and who “have had
their person and/or property contaminated with . . . toxins released from the
Somerville plant.” Brinston v. Koppers Indus., 538 F. Supp. 2d 969, 972–73

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(W.D. Tex. 2008) (internal quotation marks omitted). Furthermore, while most
of the lawsuits against Defendants have sought damages for personal injury, the
Brinston Action only sought compensation for property damage. Given this
particular class definition and the current record—which does not suggest that
the Brinston Action included any of the Bullard Plaintiffs—we cannot say with
any certainty that the Brinston Action fairly represented those with an interest
in the Bullard Action.
      Simply put, we cannot determine from the record whether the district
court was warranted in considering the totality of litigation against Defendants
before it entered its dismissal. Without a clear finding of culpability as to each
Bullard Plaintiff, we are unwilling “to affirm the harsh sanction of dismissal
with prejudice” in a case where some of the plaintiffs may not have actually been
blameworthy. Rogers, 669 F.2d at 323 (citing Blois v. Friday, 612 F.2d 938, 940
(5th Cir. 1980)). Accordingly, we must remand to the district court for an
explicit determination of whether the prior lawsuits against Defendants
adequately represented the interests of the individual Bullard Plaintiffs as to
warrant holding the Bullard Plaintiffs accountable for the deficiencies of the
prior actions.
C.    Clear Record of Delay or Contumacious Conduct
      We have held that “dismissals with prejudice will be affirmed only upon
a showing of ‘a clear record of delay or contumacious conduct by the
plaintiff, . . . and where lesser sanctions would not serve the best interests of
justice.’” Rogers, 669 F.2d at 320 (quoting Pond, 453 F.2d at 349) (alteration in
original). In most cases affirming dismissals with prejudice, we have also “found
at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff
himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay
caused by intentional conduct.’” Berry, 975 F.2d at 1191 (quoting Price v.
McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)).

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                                  No. 09-50045

      We have “recognized that ‘delay which warrants dismissal with prejudice
must be longer than just a few months; instead, the delay must be characterized
by significant periods of total inactivity.’” Millan v. USAA Gen. Indem. Co., 546
F.3d 321, 326–27 (5th Cir. 2008) (quoting McNeal v. Papasan, 842 F.2d 787, 791
(5th Cir. 1988)) (internal quotation marks omitted). Nothing in the record
suggests that such a substantial delay occurred. We cannot affirm the district
court’s de facto dismissal with prejudice on the grounds of a clear record of delay.
      Whether the Bullard Plaintiffs acted with the requisite degree of
contumaciousness to warrant a dismissal with prejudice is a much closer
question.   We define contumacious conduct as a “‘stubborn resistance to
authority.’” McNeal, 842 F.2d at 792 (quoting John v. Louisiana, 828 F.2d 1129,
1132 (5th Cir. 1987)).     We have also “recognized that ‘it is not a party’s
negligence—regardless of how careless, inconsiderate, or understandably
exasperating—that makes conduct contumacious.’” Millan, 546 F.3d at 327
(quoting McNeal, 842 F.2d at 792).
      Considering this case in isolation, we cannot say, based on the record
before us, that the Bullard Plaintiffs’ actions amounted to contumacious conduct.
A review of the record reveals that nothing more than numerous entries of
appearance on behalf of counsel and motions for admission pro hac vice occurred
between the transfer of this case to the Western District of Texas and the
dismissal. If we limit our review to Bullard Action in isolation, the Bullard
Plaintiffs clearly had little chance to act with the “stubborn resistance to
authority” that would warrant a dismissal with prejudice. McNeal, 842 F.2d at
792 (quoting John, 828 F.2d at 1132).
      If, however, we consider the actions of the Bullard Plaintiffs in
combination with the actions of the Davis, Batts, Brinston, and Hamilton
Plaintiffs, the record as a whole suggests that the Bullard Plaintiffs may have
stretched the bounds of acceptable litigation conduct to the point where we

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should allow the district court to invoke “such a severe sanction that . . . is to be
used only in extreme circumstances.” Boazman, 537 F.2d at 212 (citation
omitted). The plaintiffs in the Davis and Hamilton Actions—many of whom also
appear in the Bullard Action—failed to comply with the district court’s orders
to file a more definite statement, to adequately answer interrogatories, and to
sever their cases into individual claims. Although an isolated failure may
warrant excuse, we sympathize with the district court as it received its fourth
assignment in two years of nearly identical group litigations with similar
pleading problems.
      Even this conclusion, however, is less than clear given the record before
us. Despite the district court’s frustration, it acknowledged that the Bullard
Plaintiffs’ counsel had put forth a “Herculean effort” in attempting to bring a
group litigation. Because the actions filed against Defendants involved “so many
plaintiffs, time periods, and possible causes of action at issue,” the district court
likened the task to “herding . . . [a] beast.” This language suggests that the
exceeding complexity of the case—and not contumaciousness—resulted in the
pleading problems lamented by the district court.
      Additionally, the dates that the residents of Somerville filed the five
actions caution against finding contumaciousness. Although the Davis Plaintiffs
filed their complaint in 2005, the Batts, Brinston, Bullard, and Hamilton Actions
were all filed over the course of three months in 2007, and the separate actions
essentially made their way through the litigation process simultaneously. The
Hamilton Plaintiffs actually filed their complaint two months after the Bullard
Action. This temporal proximity suggests that we should not fault the Bullard
Plaintiffs for failing to correct repetitive pleading deficiencies when they had
little time to do so.
      Because dismissal with prejudice is “an extreme sanction that deprives a
litigant of the opportunity to pursue his claim,” Gonzalez v. Firestone Tire &

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Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980), our caselaw has emphasized the
need for clear factual findings from the district court. See McNeal, 842 F.2d at
792 (“[W]e must review the specific facts which, in each case, led to [dismissal].”)
(emphasis added)); Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th
Cir. 1984) (“[F]indings of fact are essential for our consideration of the inevitable
argument that the dismissal was an abuse of . . . discretion.”). The district court
has, in no uncertain terms, documented its frustration with the string of
litigation against Defendants. It has not, however, made any specific finding of
contumaciousness or weighed the existence of any aggravating factors.
       In light of our reluctance to permanently deprive a litigant of his or her
claim, we will not affirm the district court’s de facto dismissal with prejudice in
this case unless it expressly determines that lesser sanctions would not suffice.
See Berry, 975 F.2d at 1191. Therefore, we vacate the dismissal and remand for
further findings by the district court on contumaciousness, aggravating
circumstances, and whether lesser sanctions would better serve the interests of
justice. See id. at 1191–92.
       In making these additional findings, the district court shall specifically
consider the degree of similarity of the prior litigations to the instant case. In
addition, the district court shall specifically determine the degree of similarity
of the individual Bullard Plaintiffs to the Davis, Batts, Brinston, and Hamilton
Plaintiffs to determine whether the prior lawsuits fairly represented the Bullard
Plaintiffs. We trust that the district court, which is abundantly familiar with
these litigants, can make this express and explicit determination better than we
can.
                               IV. CONCLUSION
       The Bullard Plaintiffs have tested the patience of the district court, and
we are not unsympathetic with its frustration. We therefore task the district
court with determining whether the Bullard Plaintiffs’ conduct warrants

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dismissal with prejudice upon express findings as to whether the Bullard
Plaintiffs should be held accountable for the deficiencies in the prior lawsuits
and as to contumacious conduct.
      VACATED and REMANDED.




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