     Case: 15-20204      Document: 00513719206         Page: 1    Date Filed: 10/14/2016




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

                                                                                 FILED
                                                                             October 14, 2016
                                      No. 15-20204
                                                                              Lyle W. Cayce
                                                                                   Clerk
JOANNA MARIE WILSON; ASHLEY RACHEL DELEON; STEVE
VINKLER; SHEILA COLLINS; JEFF SVEHLAK; et al.,

               Plaintiffs–Appellants,

v.

NAVIKA CAPITAL GROUP, L.L.C.; PEARL HOSPITALITY, L.L.C.; RUBY
HOSPITALITY, INCORPORATED; NAVEEN C. SHAH; EMERALD
HOSPITALITY TULSA, INCORPORATED,

               Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 4:10-CV-1569


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       The motion for rehearing is DENIED. The following opinion is
substituted in place of our prior opinion.
       This appeal arises from a collective action brought under the Fair Labor
Standards Act (“FLSA”). A group of hotel employees brought suit against


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 15-20204       Document: 00513719206         Page: 2    Date Filed: 10/14/2016



                                      No. 15-20204
Defendants–Appellees (collectively, “Navika”) seeking overtime pay and
unpaid wages. On March 14, 2015, the district court granted two pending
motions—a motion for reconsideration of a prior equitable tolling ruling and a
motion to dismiss, each involving distinct groups of plaintiffs. 1 Plaintiffs–
Appellants have challenged both rulings on appeal. For the reasons stated
below, we affirm in part and dismiss in part.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In May 2010, Joanna Wilson and Ashley DeLeon filed suit against
Navika under the FLSA to recover overtime pay and unpaid wages “on behalf
of themselves and other similarly situated persons.” The district court
conditionally certified a class of current and former Navika employees, and
approximately 330 individuals joined the class. This appeal involves the
district court’s ruling on two distinct motions: 1) Navika’s Motion for
Reconsideration of Order on Motion for Extension of Time (“Motion for
Reconsideration”) and 2) Navika’s Motion in Limine to Dismiss (“Motion to
Dismiss”).
A.     Motion for Reconsideration
       On June 4, 2014, the district court decertified the class and dismissed
without prejudice the claims of all plaintiffs that had opted to join. In order
“[t]o avoid prejudice to individual opt-in Plaintiffs who have been dismissed,”
the court “invoke[d] its equity powers to toll the applicable statute of
limitations for 30 days,” which gave the decertified plaintiffs the opportunity
to file individual suits.




       1 This appeal involves a complex mix of parties and claims. The plaintiffs purportedly
appealing the motion for reconsideration are referred to as the “Opt-In Plaintiffs.” The
plaintiffs appealing the motion to dismiss are referred to by name, Joanna Wilson and Ashley
DeLeon. When discussing both sets of plaintiffs, we refer to “Plaintiffs–Appellants.”
                                             2
     Case: 15-20204      Document: 00513719206        Page: 3     Date Filed: 10/14/2016



                                     No. 15-20204
       On July 7, 2014, the Opt-In Plaintiffs filed for a seven-day extension of
the district court’s equitable tolling ruling, explaining that it had “dutifully
filed lawsuits in the local jurisdictions where the consenting plaintiffs reside”
but that filing problems in the United States District Court for the Western
District of Missouri prevented them from timely filing suit in that jurisdiction.
Before the district court ruled on this motion, the Opt-In Plaintiffs filed an
amended motion (“Motion to Extend Equitable Tolling”), citing “filing
complications” with several jurisdictions and requesting a fourteen-day
extension. Before Navika filed a response, the district court granted the Motion
to Extend Equitable Tolling. 2
      On July 24, 2014, Navika filed a Motion for Reconsideration of the
district court’s ruling, arguing that the extension should not have been granted
because the Opt-In Plaintiffs failed to diligently file their individual suits. On
March 14, 2015, the district court granted the Motion for Reconsideration and
denied the Opt-In Plaintiffs’ Motion to Extend Equitable Tolling, stating that,
as a result, the equitable tolling deadline actually expired on July 7, 2014—
thirty days after decertification. The Opt-In Plaintiffs now appeal.
B.     Motion to Dismiss
       In January 2014, the district court ordered “that all Plaintiffs who
remain a party to this action . . . are required to provide Defendants with
individual damages computations within twenty (20) days of entry of this
order.” The court further ordered that “Plaintiffs who do not provide an
individual computation of damages will be dismissed without prejudice.” On
March 31, 2014, Navika moved to dismiss any plaintiffs that had failed to
provide an individualized damages computation pursuant to Federal Rules of



      2   Five lawsuits were filed by different groups of Opt-In Plaintiffs, two within the
original thirty-day equitable tolling deadline and three during the fourteen-day extension.
                                            3
     Case: 15-20204   Document: 00513719206     Page: 4   Date Filed: 10/14/2016



                                 No. 15-20204
Civil Procedure 37 and 41(b) and the January 2014 order. On March 14, 2015,
the district court granted Navika’s motion and dismissed all remaining
plaintiffs without prejudice pursuant to Federal Rules of Civil Procedure 37
and 41(b). Two plaintiffs dismissed in that order, Ashley DeLeon and Joanna
Wilson, now appeal.
                              II. DISCUSSION
      The district court had jurisdiction under 28 U.S.C. § 1331. This court has
jurisdiction to review the district court’s final judgment pursuant to 28 U.S.C.
§ 1291.
A.    Notice of Appeal
      As a preliminary matter, Navika contends that the notice of appeal filed
by Plaintiffs–Appellants did not comply with Federal Rule of Appellate
Procedure 3(c)(1). The caption of the notice of appeal states the names of five
individuals: Joanna Marie Wilson, Ashley Rachel DeLeon, Sheila Collins,
Steve Vinkler, and Jeff Svehlack. The body of the notice of appeal provides:
       Notice is hereby given that Plaintiffs Wilson et al. hereby appeal
       to the United States Court of Appeals for the Fifth Circuit from
       the Final Order of Dismissal (Doc. #468) entered March 14, 2015
       and the Opinion and Order (Doc. #467) entered March 14, 2015
       granting Defendants’ Motion in Limine to Dismiss, granting
       Defendants’ Motion for Reconsideration, denying Plaintiffs’
       Motion for Reconsideration and Extension and Plaintiffs’
       Amended Motion for Reconsideration and Extension, the
       revocation of equitable tolling.
      Federal Rule of Appellate Procedure 3(c)(1) “identifies the minimum
prerequisites for a sufficient notice” of appeal. Kinsley v. Lakeview Reg’l Med.
Ctr. LLC, 570 F.3d 586, 589 (5th Cir. 2009). Rule 3(c)(1)(A) states that a notice
of appeal must “specify the party or parties taking the appeal by naming each
one in the caption or body of the notice.” Fed. R. App. P. 3(c)(1)(A). However,
“an attorney representing more than one party may describe those parties with

                                       4
     Case: 15-20204       Document: 00513719206         Page: 5     Date Filed: 10/14/2016



                                       No. 15-20204
such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all
defendants except X.’” Id. Because one attorney represents all potential
plaintiffs in this appeal, Plaintiffs–Appellants argue that the use of “Plaintiffs
Wilson et al.” is sufficient to comply with the requirements of Rule 3(c).
       Although courts should “liberally construe” the requirements of Rule 3,
“[t]his principle of liberal construction does not . . . excuse noncompliance with
the Rule.” Smith v. Barry, 502 U.S. 244, 248 (1992); see also Bailey v. Cain, 609
F.3d 763, 767 (5th Cir. 2010). In this case, Plaintiffs–Appellants’ use of
“Plaintiffs Wilson et al.” does little to “specify the party or parties taking the
appeal,” Fed. R. App. P. 3(c)(1)(A). As explained in the advisory committee
notes to Rule 3(c), “Plaintiffs Wilson et al.” is only a sufficient descriptor if “it
is objectively clear that a party intended to appeal.” Fed. R. App. P. 3(c)
advisory committee’s note to 1993 amendment; cf. Kinsley, 570 F.3d at 589
(“[T]he notice afforded by the document, not litigant’s motivation in filing it,
determines the document’s sufficiency as a notice of appeal.” (quoting Smith,
502 U.S. at 248)). 3
       As evidenced by a review of the district court record, the briefing on
appeal, and the oral argument it is anything but clear which individuals
“Plaintiffs Wilson et al.” encompasses. The lawyers on the appellant side of the
table here (“Appellants’ Side Counsel”) arguably represented 330 opt-in
plaintiffs (people turning in consent forms) at some point in the case. But, by
their own admission, they were not appealing on behalf of all 330 opt-in



       3 While we recognize that our previous opinion in Dodson v. Hillcrest Securities Corp.,
95 F.3d 52, 1996 WL 459770 (5th Cir. 1996) (unpublished), in dicta suggested that a notice
of appeal somewhat similar to the one in this case could be adequate under Rule 3(c), the
holding in Dodson was limited to Rule 3(c) as it existed before the 1993 amendment. See id.
at *2–4 & n.4. The panel in Dodson also did not have the benefit of case law elaborating on
the proper application of Rule 3(c), on which this opinion relies, and did not have the
opportunity to address the advisory committee notes as applied to non-class action cases like
this one. Thus, Dodson does not change the outcome of this case.
                                              5
    Case: 15-20204      Document: 00513719206       Page: 6    Date Filed: 10/14/2016



                                    No. 15-20204
plaintiffs. Thus, “et al.” cannot refer to all 330 “opt-ins,” some of whom had
settled or moved on after dismissal. The district court’s order on the motion for
reconsideration (the order from which the appeal was taken) references 29
plaintiffs who submitted “proper responses” to discovery, 130 who submitted
“untimely . . . responses” some of whom were then dismissed over a year before
the order being appealed, 26 plaintiffs who lost on summary judgment, 14 who
failed to provide verifications, 17 who conceded that they had no damages, and
8 who were “unable to attend trial.” To sum up, then, there is no readily
discernable, coherent list of plaintiffs who are appealing extant at the time of
the notice of appeal, even giving the most liberal construction to the phrase “et
al.” Cf. Vallejo v. Santini-Padilla, 607 F.3d 1, 7 n.3 (1st Cir. 2010) (“As the
plaintiffs on appeal are the same three plaintiffs who have litigated this case
from the outset, this filing [which stated ‘Robert Vallejo and other plaintiffs’]
provided defendants sufficient notice of their opponents on appeal.”).
      Even the Appellants’ Side Counsel do not appear to be certain of the
identity of the parties on appeal. Appellants’ Side Counsel termed the situation
a “kind of a quilt” and explained that who was in and out of the case in the
district court was a “discombobulated list.” The initial brief filed by Appellants’
Side Counsel did not address the parties appealing at all, except to list a
confusing subset of the opt-in plaintiffs (a total of 45 plaintiffs in all) in the
certificate of interested parties. In the reply brief, Appellants’ Side Counsel
attempted to list the parties appealing in response to the Appellees’ argument
that the notice was ineffective as to all but the Properly Named Appellants. 4



      4   The reply brief footnote 1 states: “The Appellants challenging the Order on
Reconsideration are: Theresa Ford, Jamie Franklin, Cynthia Knight, Linda Law, Aundrea
Poellnitz, Jauran Portis, Lakitha Reed, Robbie Williams, Antonio Proctor, Wanda Rivera,
Marisha White, Tyshella Harvey, Glynna Kyle, LaToya Maxwell, Adrianne Mc’Ferrim,
Ashley Welch, Amanda Arnold, Elizabeth Howk, Stephanie Kennedy, Bobby Kenyon,
Victoria Shea Martin, Bobby Smith, Anne Bond, Rosa Joanne Alvarado, Ramario Armstrong,
                                          6
    Case: 15-20204      Document: 00513719206        Page: 7    Date Filed: 10/14/2016



                                    No. 15-20204
That list matches up to absolutely nothing else in the district court record. The
mystery was not even solved at oral argument on this point. Appellants’ Side
Counsel was repeatedly asked how he derived the list provided in footnote 1 of
the reply brief, but none of his answers yielded that precise list; it was more in
the nature of concentric circles with some, but not total, overlap. Indeed,
Appellants’ Side Counsel admitted that who was “in” the case at the time of
the order on the motion for reconsideration was “not as clear as it should have
been.” The explanation was so muddled that a member of this panel ordered
the parties to submit a document identifying by name the exact parties on
appeal, explaining that our judgment needs to be precise. So, here we were, at
oral argument in the Fifth Circuit, some eight months after the notice of appeal
was filed and after full briefing, and we still did not know who the parties
appealing were.
      The supplemental briefing that followed was also of little help.
Appellants’ Side Counsel filed an eight-page letter that included five pages of
tables. Counsel for Appellees, while maintaining the position that the notice of
appeal was inadequate, listed who “was left” at the time of the most recent
district court orders. These contradictory and confusing submissions speak
volumes about why the notice of appeal in this case is completely inadequate
under Rule 3, however liberally construed. Simply put, the provision of the
Rule that allows “et al.” is meant to allow a lawyer who represents a clearly
identifiable group of parties to appeal as to that group without the need to list
each individual. It is not meant to allow a lawyer to file an appeal and decide
later who he still represents and which of those parties are interested in
appealing.


Brandon Batchelor (who has now settled his case), Esmerelda Carrizales, Dany Cruz, Ashley
Foege, Ashton Forbes, Jamilla Garcia, Kaylynn Garcia, Ashley Mars, Eric Nordheim, Nicolas
Pereyra, Shenika Preston, Russell Smith, Matthew Stephenson, and Stephanie Weber.”
                                           7
     Case: 15-20204      Document: 00513719206        Page: 8    Date Filed: 10/14/2016



                                     No. 15-20204
      But the notice of appeal is not deficient as to all Plaintiffs–Appellants.
We hold, and both parties agree, that the parties named in the caption properly
gave notice of their intent to appeal the district court’s ruling on Navika’s
Motion to Dismiss. See Fed. R. App. P. 3(c)(1)(A) (“The notice of appeal must:
specify the party or parties taking the appeal by naming each one in the caption
or body of the notice.” (emphasis added)). Therefore, with the exception of
Ashley DeLeon, Joanna Wilson, Sheila Collins, Steve Vinkler, and Jeff
Svehlack all other Plaintiffs–Appellants are dismissed for want of
jurisdiction. 5 Because DeLeon and Wilson, the only Plaintiffs-Appellants that
have neither been dismissed for want of jurisdiction nor abandoned their
appeal, only challenge the district court’s order on Navika’s Motion to Dismiss,
we need not address any arguments related to Navika’s Motion for
Reconsideration.
B.    Motion to Dismiss
      Named plaintiffs DeLeon and Wilson argue that the district court abused
its discretion in dismissing their claims under Federal Rule of Civil Procedure
37(c)(1). On March 14, 2015, the district court dismissed DeLeon and Wilson
without prejudice “pursuant to Fed. R. Civ. P. 37 and/or 41(b).” But, in their
brief DeLeon and Wilson only contest the district court’s dismissal pursuant to
Rule 37. Because DeLeon and Wilson failed to raise any challenge to the
district court’s dismissal pursuant to Rule 41(b), they have waived the issue on
appeal. See, e.g., Kleibrink v. Kleibrink (In re Kleibrink), 621 F.3d 370, 371 n.1
(5th Cir. 2010). Accordingly, this Court need not reach the parties’ arguments
related to Rule 37.




      5  However, as Plaintiffs–Appellants brief contains no arguments related to Sheila
Collins, Steven Vinkler, and Jeff Svehlack, these individuals have abandoned their appeal.
See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
                                            8
    Case: 15-20204   Document: 00513719206     Page: 9   Date Filed: 10/14/2016



                                No. 15-20204
                            III. CONCLUSION
      For the foregoing reasons, the district court’s dismissal of DeLeon and
Wilson is AFFIRMED, and we dismiss for want of jurisdiction all other
Plaintiffs–Appellants.




                                     9
    Case: 15-20204       Document: 00513719206       Page: 10     Date Filed: 10/14/2016



                                     No. 15-20204
PRISCILLA R. OWEN, Circuit Judge, concurring in part and dissenting in
part:

        I fully join part II(B) of the court’s opinion. But I disagree with the
majority opinion’s conclusion that the notice of appeal was effective only as to
the five plaintiffs named in its caption.           I accordingly dissent from the
dismissal of the appeal for lack of jurisdiction as to certain plaintiffs other than
the named plaintiffs.
        As the majority opinion reflects, the notice of appeal sought review of the
district court’s rulings on two distinct motions filed by the defendants: a motion
to dismiss for failure to provide damage calculations and a motion to reconsider
the extension of an equitable tolling period that permitted certain plaintiffs to
refile individual actions in other jurisdictions. It is undisputed that the motion
to dismiss for failure to provide damage calculations involved only the five
plaintiffs named in the caption of the notice of appeal. 1 There has never been
any confusion about that. The district court’s order granting the motion to
dismiss for failure to furnish damage calculations reflects that the motion to
dismiss, as supplemented, pertained “to Sheila Collins . . . [and] the four other
named plaintiffs.” It is also undisputed that none of the five named plaintiffs
were affected, in any manner, by the extension of the tolling period to permit
refiling in other jurisdictions. Again, there has never been any confusion about
that.       The orders regarding an equitable tolling period pertained only to
unnamed plaintiffs.       The district court ruled on the motion to dismiss,
involving only named plaintiffs, and the motion for reconsideration, involving
only unnamed plaintiffs, in orders that issued March 14, 2015.




        Joanna Marie Wilson, Ashley Rachel Deleon, Steve Vinkler, Sheila Collins, and Jeff
        1

Svehlak.
                                           10
    Case: 15-20204    Document: 00513719206      Page: 11   Date Filed: 10/14/2016



                                  No. 15-20204
      The five plaintiffs named in the caption of the notice of appeal would, of
course, be appealing only the motion to dismiss for failure to provide damage
calculations because the order reconsidering the extension of the tolling period
did not pertain to them. Yet, the notice of appeal expressly listed the order
granting the motion for reconsideration and revoking the extension of the
equitable tolling period as a ruling that was being appealed. The notice said:
            Notice is hereby given that Plaintiffs Wilson et al. hereby
      appeal to the United States Court of Appeals for the Fifth Circuit
      from the Final Order of Dismissal (Doc. #468) entered March 14,
      2015 and the Opinion and Order (Doc. #467) entered March 14,
      2015 granting Defendants’ Motion in Limine to Dismiss, granting
      Defendants’ Motion for Reconsideration, denying Plaintiffs’
      Motion for Reconsideration and Extension and Plaintiffs’ Amended
      Motion for Reconsideration and Extension, the revocation of
      equitable tolling.
      The notice of appeal objectively indicates that someone is appealing from
the grant of the Motion for Reconsideration and the revocation of the equitable
tolling period. All of the parties knew that none of the five plaintiffs were
appealing that ruling, and the district court record is plain that none of the
named plaintiffs were subject to that ruling. So it follows that all of the parties
had to have known that plaintiffs other than the named plaintiffs were
appealing the revocation of the extended equitable tolling period. It is also
objectively ascertainable from the district court’s March 14, 2015 order that
the universe of unnamed plaintiffs who were aggrieved by the revocation of the
extended equitable tolling period was limited to the plaintiffs named in three
lawsuits filed in other jurisdictions that the district court’s order identifies
with specificity. The district court’s March 14, 2015 order recites:
            A current search on PACER Case Locator shows five cases
      filed by 55 (out of 330) individual Plaintiffs against Defendant
      subsequent to the June 4, 2014 decertification order. Doc. 460.



                                        11
    Case: 15-20204    Document: 00513719206       Page: 12   Date Filed: 10/14/2016



                                  No. 15-20204
                   1) Johnson et al v. Navika, LLC et al, No. 4:14-
            cv-144-BAE-GRS (S.D. Ga. July 7, 2014) (four
            plaintiffs)
                   2) Anne Bond, et al. v. Navika Capital Group,
            LLC, et al., No. 1:14-cv-00627-SS (W.D. Tex. July 7,
            2014) (twenty-one plaintiffs)
                   3) Carrier et al v. Navika Capital Group, LLC et
            al, No. 1:14-cv-311-KD-C (S.D. Ala. July 8, 2014)
            (fourteen plaintiffs)
                   4) Cassandra Botello, et al. v. Navika Capital
            Group, LLC, et al., No. 4:14-cv-378 (N.D. Okla. July 9,
            2014) (eleven plaintiffs)
                   5) Chappell et al v. Navika Capital Group, LLC
            et al, No. 2:14-cv-04199-SRB (W.D. Mo. July 28, 2014)
            (five plaintiffs)
      The latter three cases were filed after the original 30-day tolling
      period, which expired July 7, 2014, but within the 14-day
      extension, which expired July 28, 2014. Withdrawing equitable
      tolling in the latter three cases could result in dismissal of the
      claims of thirty plaintiffs in Alabama, Oklahoma, and Missouri.
      This order makes clear that the only plaintiffs who were subject to the
revocation of the extended equitable tolling period were those plaintiffs who
filed the three lawsuits (the “latter three cases”) after July 7, 2014, in the three
jurisdictions listed (Alabama, Oklahoma, and Missouri). So, there is a discrete
number of identifiable plaintiffs who were aggrieved by the order granting the
motion for reconsideration and revoking the extended equitable tolling period.
      The notice of appeal did not identify by name who was appealing the
order revoking the extended equitable tolling period, but it stated that “[n]otice
is hereby given that Plaintiffs Wilson et al. hereby appeal,” and, as discussed,
the notice then identified the order revoking the tolling period with specificity.
This is adequate under Federal Rule of Appellate Procedure 3(c).
      Rule 3(c) states that a notice of appeal must “specify the party or parties
taking the appeal by naming each one in the caption or body of the notice, but
an attorney representing more than one party may describe those parties with
                                        12
    Case: 15-20204      Document: 00513719206        Page: 13     Date Filed: 10/14/2016



                                     No. 15-20204
such terms as . . . ‘the plaintiffs A, B, et al.’” 2 The same attorney represented
all plaintiffs in the district court and in the appeal.            In determining the
sufficiency of the identification of parties, “the test . . . is whether it is
objectively clear that a party intended to appeal.” 3 The Advisory Committee
notes state that “the rule makes it clear that dismissal of an appeal should not
occur when it is otherwise clear from the notice that the party intended to
appeal.” 4 It is “objectively clear” from the notice of appeal and the district
court’s May 14, 2015 Opinion and Order that the plaintiffs who refiled suit in
other jurisdictions after July 7, 2014, intended to appeal the revocation of
equitable tolling.
      The majority opinion’s attempt to distinguish a footnote in the
unpublished decision in Dodson v. Hillcrest Securities Corp., 5 which indicates
that Rule 3(c) would be satisfied in the present appeal, is unconvincing. The
Dodson decision involved a 1992 notice of appeal in the context of a putative
class action that the district court did not certify. 6          Through subsequent
pleadings and dismissals, plaintiffs were added while others withdrew or were
dismissed prior to the filing of the notice of appeal. 7 The caption of the notice
contained the named plaintiffs and “et al.,” and the body referred to “all
plaintiffs,” but it was clear that some of the dismissed plaintiffs were not
appealing. 8 While the court recognized that the phrase “all plaintiffs” could
satisfy the specificity requirement “if [the notice] leaves no room for doubt” as




      2 FED. R. APP. P. 3(c)(1)(A).
      3 FED. R. APP. P. 3(c) advisory committee’s note to 1993 amendment.
      4 Id.
      5 95 F.3d 52, 1996 WL 459770, at *2 n.4 (5th Cir. 1996) (unpublished).
      6 Id. at *2-4.
      7 Id. at *4.
      8 Id. at *4.

                                           13
   Case: 15-20204     Document: 00513719206      Page: 14   Date Filed: 10/14/2016



                                  No. 15-20204
to which plaintiffs intended to appeal, it concluded that it was “impossible to
tell” who the plaintiffs appealing were. 9
      However, the court was applying the version of Rule 3 in effect prior to
its amendment in 1993. In a footnote, the opinion stated that the notice would
have been sufficient under Rule 3(c) as amended in 1993. 10 The majority
opinion in the present case says that Dodson “did not have the opportunity to
address the advisory committee notes as applied to non-class action cases like
this one.” 11 This statement is puzzling for three reasons. First, the advisory
committee notes that are referenced have been in existence since 1993, and
Dodson was decided in 1996. Second, neither Dodson nor the present case
involved a class action by the time that the orders appealed from had issued.
In Dodson, the court was addressing an unwieldy set of individuals, numbering
in the hundreds. 12 The class in the present case had been decertified well
before the orders at issue here were handed down, and the district court was
dealing with individual claims, as in Dodson. Third, JUDGE GARWOOD, who
wrote the opinion in Dodson, was a member of the Rules of Appellate Procedure
Advisory Committee of the Judicial Conference of the United States when he
authored Dodson; 13 it is highly unlikely that he was unaware of the import of
the Advisory Committee’s commentary to Rule 3(c).
      The majority opinion’s statement that Dodson is inapplicable because
the panel in that case “did not have the benefit of case law elaborating on the
proper application of Rule 3(c), on which [the majority] opinion relies” is also




      9Id. at *3-4.
      10Id. at *2 n.4.
     11 Ante at __.
     12 See Dodson, 1996 WL 459770, at *1.
     13 1 PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE BANKRUPTCY FORMS:

REQUEST FOR COMMENTS 57 (1996) (listing JUDGE GARWOOD as a member of the Advisory
Committee on Appellate Rules).
                                       14
    Case: 15-20204      Document: 00513719206         Page: 15    Date Filed: 10/14/2016



                                     No. 15-20204
puzzling. None of the cases cited by the majority opinion shed any light on the
issue presently before us.        The decision in Kinsley v. Lakeview Regional
Medical Center LLC concerned the timeliness of a filing. 14 The opinions in
Smith v. Barry and Bailey v. Cain both concerned inmate notices of appeal with
irregularities as to form or identification of the court. 15         Accordingly, while
Dodson did apply pre-1993 law to decide the notice of appeal was insufficient,
the Dodson decision was unequivocal that the notice satisfied the new 1993
rule. Though Dodson is not binding precedent, its reasoning is persuasive.
       I share the frustration expressed in the majority opinion with the
conflicting statements and representations that counsel for the plaintiffs has
made to this court regarding the identity of the unnamed plaintiffs who
intended to appeal. But the discrepancies that have occurred after the notice
of appeal was filed should not have any impact on the state of the record at the
time the notice was filed. We cannot lose jurisdiction over parties who were
adequately identified in a notice of appeal simply because counsel argues that
other individuals who were not identified in that notice should also be
considered as parties to the appeal.
      I would hold that the notice of appeal was sufficient as to the parties who
filed the three lawsuits the district court identified as potentially affected by
the revocation of equitable tolling, as of March 15, 2014. Accordingly, I would
consider the merits of the arguments concerning the motion for reconsideration
as to those unnamed plaintiffs, and I dissent from the dismissal of those
plaintiffs’ claims for lack of appellate jurisdiction.




      14  570 F.3d. 586, 588-89 (5th Cir. 2009).
      15  Smith v. Barry, 502 U.S. 244, 248-50 (1992); Bailey v. Cain, 609 F.3d 763, 766-67
(5th Cir. 2010).
                                            15
