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

                                                                            FILED
                                                                            April 1, 2008

                                     No. 07-40640                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ANTHONY J. BALISTRERI,

                                                  Plaintiff–Appellant,
v.

METROPOLITAN LIFE INSURANCE COMPANY,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:06-CV-129


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Anthony Balistreri appeals from the district court’s order
granting his motion for a voluntary dismissal without prejudice under Fed. R.
Civ. P. 41(a)(2) and requiring him to pay defendant’s and his costs. We hold
that, under a limited review to determine whether Balistreri suffered “legal
prejudice,” the order does not constitute legal prejudice and therefore dismiss the
appeal.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40640

                                            I
      Balistreri sued the Metropolitan Life Insurance Company (MetLife) in
Texas state court.          MetLife removed to federal court based on diversity
jurisdiction. Approximately fifteen months later, Balistreri moved for voluntary
dismissal without prejudice. The United States Magistrate Judge recommended
the dismissal conditioned on Balistreri’s payment of his and MetLife’s court
costs. The district court adopted the magistrate’s recommendations and entered
final judgment dismissing the suit without prejudice and ordering Balistreri to
pay $672.12, representing both parties’ costs. Balistreri did not attempt to
reinstate his claims rather than comply with the condition. He timely filed this
appeal challenging the district court’s order.
                                           II
      Rule 41(a)(2) provides district courts with the discretion to grant a
plaintiff’s motion for voluntary dismissal, which allows the plaintiff “to withdraw
his action from the court without prejudice to future litigation.”1 The rule also
grants to district courts the discretion to attach conditions tailored to prevent
unfair prejudice to a defendant.2
      While the grant of a plaintiff’s dismissal without prejudice is a final
judgment for purposes of appeal, a plaintiff is generally foreclosed from
appealing the dismissal because it is not an involuntary adverse judgment for
the plaintiff.3 In other words, a plaintiff received what he wanted and is left “as
if he had never brought the first suit.”4 However, if the conditions of the
dismissal involve “legal prejudice,” the plaintiff may appeal the district court’s

      1
         Yoffee v. Keller Indus., Inc., 580 F.2d 126, 129 (5th Cir. 1978) (quotation marks
omitted).
      2
          Id.
      3
          Id.
      4
          Id. (citations omitted).

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                                        No. 07-40640

grant of the plaintiff’s own motion.5 We have previously noted that most
dismissals are conditioned on the plaintiff’s payment of costs and attorneys’
fees.6 Generally, conditions requiring the payment of money do not involve legal
prejudice, which occurs when the “plaintiff is severely circumscribed in his
freedom to bring a later suit.”7
       In this case, the district court conditioned Balistreri’s voluntary dismissal
on his payment of $672.12, representing both parties’ costs. That condition does
not circumscribe his freedom to bring a later suit. While we have noted in dicta
that a hypothetical case involving an exorbitant sum might constitute legal
prejudice,8 this court and other circuits have dismissed appeals contesting far
larger sums of money than that at issue here.9 Since the award of costs does not
constitute legal prejudice, Balistreri cannot appeal the order and we must
dismiss his appeal.10 Moreover, because Balistreri cannot appeal from this
order, we do not address his arguments regarding alleged errors occurring before
the voluntary motion to dismiss.

       5
         Id. at 130 (noting that whether plaintiff may appeal its own voluntary dismissal
without prejudice is determined under a bipartite analysis: first, was the plaintiff legally
prejudiced, and, second, did the plaintiff acquiesce to those conditions).
       6
           Id. at 129.
       7
           LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976).
       8
         Yoffee, 580 F.2d at 131 (“We do not intend to draw the distinction between appealable
and nonappealable Rule 41(a)(2) conditions on a strict line between ‘mere’ requirements to pay
money and other requirements that have res judicata consequences. There will be cases in
which the amount of money set as the price of a voluntary dismissal without prejudice is so
clearly unreasonable as to amount to appealable ‘legal prejudice’ . . . .).
       9
          Id. (holding that $44,523.20 fee award did not constitute legal prejudice); see also
Mortgage Guar. Ins. Corp. v. Richard Carlyon Co., 904 F.2d 298, 300-01 (5th Cir. 1990)
(rejecting as unreasonable in light of Yoffee argument that $7,300.25 fee award constitutes
legal prejudice); Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548 (9th Cir. 1986) (holding
that $165,000 fee award did not constitute legal prejudice), abrogated on other grounds by
Townsend v. Holman Consulting Corp., 929 F.2d 1358 (9th Cir. 1990) (en banc).
       10
            Yoffee, 580 F.2d at 131.

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                        No. 07-40640

                    *        *         *
APPEAL DISMISSED.




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