     Case: 14-20314      Document: 00512824153         Page: 1    Date Filed: 11/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                  ___________________                United States Court of Appeals
                                                                              Fifth Circuit

                                     No. 14-20314                           FILED
                                  Summary Calendar                   November 3, 2014
                                  ___________________                  Lyle W. Cayce
                                                                            Clerk
TONY CHENG,

              Plaintiff - Appellant

v.

SCHLUMBERGER,

              Defendant - Appellee

                               _______________________

                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:13-CV-3229
                             _______________________

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Tony Cheng appeals from the dismissal without prejudice of his Title VII
claims against Defendant Schlumberger, his former employer. During the pre-
discovery proceedings, Cheng agreed to voluntarily dismiss his claims, and the
district court thereafter entered an order dismissing his claims without




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 14-20314

prejudice. For the reasons that follow, we conclude that we lack appellate
jurisdiction and DISMISS the appeal.
      On June 10, 2013, Cheng commenced an employment discrimination
action against Schlumberger in the United States District Court for the
Northern District of California.    Schlumberger filed a motion to dismiss
pursuant to FED R. CIV. P. 12(b)(6) but, because of a request from Cheng to
transfer the case to Texas, the Northern District of California denied the
motion to dismiss without prejudice, and transferred the matter to the
Southern District of Texas.
      On April 28, 2014, the magistrate judge in the Southern District of Texas
conducted a telephonic scheduling conference with Cheng (who is proceeding
pro se) and counsel for Schlumberger. During that conference, the magistrate
judge informed Cheng that he would have to pay for any discovery that he
chose to conduct. When Cheng stated that he would be unable to pay for these
costs, the magistrate judge gave Cheng the option to dismiss the case. In
response, Cheng stated, “Let’s do that. I move Motion for Dismissal [sic]
immediately.” The judge asked Cheng twice if he was sure that he wanted to
dismiss the case, and clearly informed Cheng that by voluntarily dismissing
his case, he would be unable to refile or appeal it.     Cheng confirmed his
understanding of the dismissal by stating, “Then if you’ll grant it, please
dismiss [the case].” The district court judge, on recommendation from the
magistrate judge, issued a final judgment on May 12, 2014, dismissing the case
without prejudice pursuant to Federal Rule of Civil Procedure 41(a). See FED.
R. CIV. P. 41(a)(2). (“[A]n action may be dismissed at the plaintiff’s request
only by court order. . . . Unless the order states otherwise, a dismissal under
this paragraph (2) is without prejudice.”). Cheng now appeals this voluntary
dismissal of his claims.

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                                      No. 14-20314

       “A rule 41(a)(2) dismissal is ordinarily not appealable.”               Briseno v.
Ashcroft, 291 F.3d 377, 379 (5th Cir. 2002). “Where the trial court allows the
plaintiff to dismiss his action without prejudice, the judgment . . . qualifies as
a final judgment for purposes of appeal. Ordinarily, though, plaintiff cannot
appeal therefrom, since it does not qualify as an involuntary adverse judgment
so far as the plaintiff is concerned.” LeCompte v. Mr. Chip, 528 F.2d 601, 602
(5th Cir. 1976) (emphasis added).            There is an exception to this rule in
situations where the district court imposes restrictions upon the plaintiff such
that the plaintiff is “severely circumscribed in his freedom to bring a later suit.”
Id. at 604. In LeCompte, the district court “dismissed without prejudice,” but
imposed requirements that “1) any subsequent suit must be filed in the same
court; 2) that plaintiff must show extraordinary circumstances to justify
reopening the case; and 3) that plaintiff must make an affirmative
demonstration to the court’s satisfaction that a valid cause of action can be
maintained against defendants.” Id. at 602. Here, the district court imposed
no additional conditions upon Cheng in granting the voluntary dismissal
without prejudice. 1 As such, the dismissal was purely voluntary, and the
appeal must be dismissed for lack of jurisdiction. Briseno, 291 F.3d at 379.
       For the foregoing reasons, the appeal is DISMISSED for lack of appellate
jurisdiction.




       1
          Despite mentioning Cheng’s inability to refile in the telephonic conference, the
district court’s final order dismissing the case did not mention this condition, nor did the
district court’s order restrict Cheng’s ability to refile the claim in any way.
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