     Case: 18-50932   Document: 00515155074     Page: 1   Date Filed: 10/10/2019




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

                                 No. 18-50932                      FILED
                                                            October 10, 2019
                                                              Lyle W. Cayce
ELENA SAMMONS; MICHAEL SAMMONS,                                    Clerk

             Plaintiffs - Appellants

v.

GEORGE ECONOMOU, Chairman of the Board and CEO for Dryships,
Incorporated; DRYSHIPS, INCORPORATED, A Corporation Incorporated,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Western District of Texas


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      This case involves the appeal of two district court orders. The first
requires that appellant Michael Sammons pay $26,726 in costs under Federal
Rule of Civil Procedure 41(d), 1 and the second administratively closes the case
pending such payment. Because these orders are not final judgments, they do
not fall within any exception to the final judgment rule, and mandamus relief
is inappropriate in this case, we DISMISS for lack of jurisdiction.




      1Specifically, Mr. Sammons was ordered to pay $18,537.18 to Appellee George
Economou and $8,188.81 to Appellee Dryships, Inc.
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                                        No. 18-50932
                                                I
      On July 3, 2017, appellant Michael Sammons filed a complaint in the
High Court of the Republic of the Marshall Islands (RMI court) asserting direct
claims against appellees for breach of fiduciary duties, fraud, and unjust
enrichment, as well as a derivative claim on behalf of DryShips, Inc. against
George Economou. On February 2, 2018, the RMI court stated that “it was
inclined to grant [appellees’] motions to dismiss.” Before the motions were
granted, however, Mr. Sammons filed “Plaintiff’s Motion for Voluntary Dissal
(sic) Without Prejudice,” which amounted to a Federal Rule of Civil Procedure
41(a)(1)(A) notice of dismissal without prejudice. The RMI court acknowledged
the dismissal but found that Mr. Sammons engaged in “gamesmanship” and
“wasted the Court’s time and resources.” Appellants then filed this action in
the Western District of Texas on February 27, 2018 based on similar
allegations. On March 14, 2018, Mr. Economou and DryShips, Inc. moved for
reimbursement of costs incurred in the action before the RMI court pursuant
to Fed. R. Civ. P. 41(d) and a stay of the case pending payment. 2 The district
court granted the costs motion in part and administratively closed the case
pending payment, prompting this appeal.
                                               II
      Appellants urge three separate grounds for jurisdiction. First, that this
is a direct appeal from a final judgment; second, that the collateral order
doctrine should apply; and third, that a writ of mandamus is appropriate. We
address each in turn.



      2   Under Fed. R. Civ. P. 41(d):
              If a plaintiff who previously dismissed an action in any court files an
              action based on or including the same claim against the same
              defendant, the court: (1) may order the plaintiff to pay all of part of the
              costs of [a] previous action; and (2) may stay the proceedings until the
              plaintiff has complied.
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                                  No. 18-50932
                  Direct Appeal from a Final Judgment
      The appellants first allege that this is a direct appeal from a final
judgment because “[a] case which has been ‘administratively closed’ . . .
pending occurrence of an event which will never occur . . . is the functional
equivalent of a dismissal over which an appellate court can exercise review.”
Under 28 U.S.C. § 1291, “a final judgment is normally deemed not to have
occurred until there has been a decision by the District Court that ends the
litigation on the merits and leaves nothing for the court to do but execute the
judgment.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th
Cir. 2009) (cleaned up). “We have held that . . . an administrative closure is the
functional equivalent of a stay and a stay will not support appellate jurisdiction
under 28 U.S.C. § 1291.” Int’l Ass’n of Machinists & Aerospace Workers Local
Lodge 2121 AFL-CIO v. Goodrich Corp., 410 F.3d 204, 209 (5th Cir. 2005)
(citing Mire v. Full Spectrum Lending, Inc., 389 F.3d 163, 167 (5th Cir. 2004)).
Since the district court has yet to address the merits of appellants’ claims, the
orders below do not amount to a final judgment in the case.
                         Collateral Order Doctrine
      Appellants also invoke the collateral order doctrine as a basis for
jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the
collateral order doctrine when an order: (1) “conclusively determine[s] the
disputed question;” (2) “resolve[s] an important issue completely separate from
the merits of the action;” and (3) is “effectively unreviewable on appeal from a
final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The
orders at issue in this case fail to meet the third requirement.
      We have previously held that other, similar interim fee orders are not
effectively unreviewable following a final judgment. See, e.g., Netsphere, Inc. v.
Baron, 799 F.3d 327, 335 (5th Cir. 2015) (receiver fees); Campanioni v. Barr,
962 F.2d 461, 463 (5th Cir. 1992) (Criminal Justice Act fees); Ruiz v. Estelle,
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                                       No. 18-50932
609 F.2d 118, 119 (5th Cir. 1980) (attorneys’ fees). This is so because the
recipients of the fees can pay them back if the appellants win their appeal
following a final judgment. See Netsphere, Inc., 799 F.3d at 336 (“[T]here are
no allegations—and certainly no proof—that the receiver or its counsel would
be unable to pay back the awards if [appellant] prevails.”). 3
       There are at least two exceptions to this pre-final judgment fee rule.
First, a pre-final judgment fee award is reviewable if “mere payment of the fees
would make them unrecoverable.” Netsphere, Inc., 799 F.3d at 335–36; see
S.E.C. v. Forex Asset Mgmt. L.L.C., 242 F.3d 325, 330 (5th Cir. 2001). For
example, in Forex Asset Mgmt. L.L.C., we found that a decision by the district
court to approve a receiver’s distribution plan was reviewable because “the
assets from the receivership [would] be distributed, and likely unrecoverable,
long before the action . . . [would be] subject to appellate review.” 242 F.3d at
330. Here, there is no allegation that the costs awarded will be unrecoverable
upon successful appeal of a final judgment. There is no indication that
appellees or their attorneys are judgment-proof, and only a few interested
parties will receive payment in this case.
       Second, pre-final judgment fee awards are reviewable when “it is
unlikely that there will ever be a ‘final judgement’ for this court to review.”
Walker v. U.S. Dept. of Housing and Urban Dev., 99 F.3d 761, 766–67 (5th Cir.
1996). For example, in Walker, an award of attorneys’ fees was reviewable
because of the “ongoing and possibly permanent nature of monitoring and



       3 To support their contention that this court has jurisdiction under the collateral order
doctrine, appellants cite to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) and
Atlantic Fertilizer & Chemical Corp. v. Italmare, S.p.A., 117 F.3d 266 (5th Cir. 1997). Both
of these cases involve appeals of orders denying security, which are distinct from pre-final
judgment fee awards precisely because they may be effectively unreviewable on appeal from
a final judgment. See Cohen, 337 U.S. at 546 (“When [a final judgment] comes, it will be too
late effectively to review the present order and the rights conferred by the statute, if it is
applicable, will have been lost, probably irreparably.”).
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                                         No. 18-50932
preventing further changes to” an ongoing desegregation consent decree. Id. at
765–66. Although appellants claim that their case has been effectively
dismissed based on the administrative closure, this results entirely from their
objection to, and consequent unwillingness to pay, the ordered costs. Refusal
to comply, without more, is not an adequate basis for avoiding the general rule
that pre-final judgment fee awards are not reviewable under the collateral
order doctrine. See E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144, 148
(5th Cir. 1983) (finding no jurisdiction to consider the appeal of a stay pending
compliance with a discovery order). Since there is no indication that the
ordered costs could not be paid and later recovered upon a successful appeal of
a final judgment, the collateral order doctrine is not an adequate basis for
jurisdiction in this case. 4
                                     Mandamus Relief
       Finally, appellants seek a writ of mandamus. “To be entitled to the
extraordinary remedy of mandamus, [appellants have] to satisfy three
requirements.” In re Am. Lebanese Syrian Associated Charities, Inc., 815 F.3d
204, 206 (5th Cir. 2016). First, there must be “no other adequate means to



       4  We note that, in an unpublished opinion several decades ago, the Ninth Circuit
stated that a stay pursuant to Fed. R. Civ. P. 41(d) “is appealable under 28 U.S.C. § 1291
since it could put [appellants] ‘effectively out of court.’” Chien v. Hathaway, 17 F.3d 393, *1
(9th Cir. 1994) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10
(1983)). For this proposition, the Ninth Circuit relied on a series of cases in which appellants’
federal actions were stayed pending either state or administrative proceedings. Because the
results of those collateral proceedings would have restricted review in federal court, the
appellants were effectively put out of court. See Moses H. Cone Mem’l Hosp., 460 U.S. at 10;
United States v. General Dynamics Corp., 828 F.2d 1356, 1360 (9th Cir. 1987); Silberkleit v.
Kantrowitz, 713 F.2d 433, 434 (9th Cir. 1983). We do not find stays ordered pursuant to Fed.
R. Civ. P. 41(d) analogous. In fact, relying on the same Supreme Court precedent, we have
previously stated that “[a] case in which ‘the plaintiff himself may choose not to proceed’ is
simply not the same as one in which ‘the district court refuses to allow’ the plaintiff to litigate
in federal court.” Neches Butane Prods. Co., 704 F.2d at 150–51 (quoting Moses H. Cone Mem’l
Hosp., 460 U.S. at 10 n.11). Appellants can pay the ordered costs, litigate their case to a final
judgment, and then appeal. They are not effectively out of court.
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                                 No. 18-50932
attain the relief [desired].” Id. (cleaned up). Second, they must show “a clear
and indisputable right to the writ.” Id. (cleaned up). “And third, the court must
be satisfied that the writ is appropriate under the circumstances.” Id. (cleaned
up). Appellants fall short of the first requirement.
       “Where an interest can be vindicated through direct appeal after a final
judgment, this court will ordinarily not grant a writ of mandamus.”
Campanioni, 962 F.2d at 464. In Gregory v. Dimock, the Second Circuit granted
a writ of mandamus to set aside a Fed. R. Civ. P. 41(d) stay that acted as an
absolute bar to an indigent plaintiff’s case. 286 F.2d 717, 718 (2d Cir. 1961).
Unlike that case, appellants here do not allege that they are unable to pay.
Unwillingness to pay based on disagreement with the district court’s decision
is insufficient. Appellants can obtain relief through direct appeal after a final
judgment. Therefore, we decline to issue a writ of mandamus.
                                       III
      For the foregoing reasons, the case is DISMISSED for lack of
jurisdiction.




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