Anderson v. Sara Lee Corporation , 383 F. App'x 279 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1777
DAVID C. ANDERSON; SAMUEL PULLEN, on behalf of themselves
and all others similarly situated,
Plaintiffs - Appellants,
v.
SARA LEE CORPORATION,
Defendant - Appellee,
and
DOES 1-100, Inclusive,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:03-cv-00031-H)
Argued: May 11, 2010 Decided: June 15, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit
Judges.
Vacated and remanded with instructions by unpublished opinion.
Judge Niemeyer wrote the opinion, in which Chief Judge Traxler
and Judge Agee joined.
ARGUED: Alvin Leonard Pittman, Los Angeles, California, for
Appellants. Alfred Burgess Robinson, Jr., OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, PC, Washington, D.C., for Appellee. ON
BRIEF: W. R. Loftis, Jr., Robin E. Shea, CONSTANGY, BROOKS &
SMITH, LLC, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
In Anderson v. Sara Lee Corp., 508 F.3d 181, 195 (4th Cir.
2007), we vacated that portion of the district court’s judgment
which dismissed with prejudice plaintiffs’ fraud claim and which
granted Sara Lee summary judgment on breach of contract and
negligence claims, and we remanded those claims “for dismissal
without prejudice as preempted by the FLSA.” (Emphasis added).
We explained, “This will give the Class Members an opportunity
to pursue any FLSA claims they may possess.” Id. Our mandate
thus remanded those claims “with instructions to dismiss without
prejudice those three claims as preempted by the FLSA.” Id.On remand, the district court entered an order precisely as
we instructed. Having dismissed those claims, the court then
dismissed as moot plaintiffs’ motion to file an amended
complaint to assert FLSA claims on the ground that such a
disposition was required by our mandate to dismiss the claims.
Plaintiffs now claim in this second appeal that the
district court abused its discretion, especially because the
dismissal order on remand would require them to file a new
action that might well be barred by the applicable statute of
limitations. Sara Lee moved to dismiss this second appeal,
arguing that the district court’s dismissal without prejudice
was not a final judgment under Domino Sugar Corp. v. Sugar
Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993)
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(holding that a plaintiff may not appeal an order dismissing a
complaint without prejudice on a ground that could be cured by
amendment of the complaint). Of course, if Sara Lee is correct,
the district court’s order was interlocutory, leaving open the
possibility of further proceedings.
The source of the problems presented in this case lies in
the lack of clarity of our earlier mandate, which was intended
to imply that the vacated claims be dismissed without prejudice
and with leave to allow the plaintiffs to file an amended
complaint that would purport to state claims under the FLSA.
Accordingly, we now vacate the district court’s judgment and
remand the three claims for breach of contract, negligence, and
fraud with instructions to dismiss those claims without
prejudice and with leave to file an amended complaint within a
reasonable time to assert any claims that plaintiffs may possess
under the FLSA.
VACATED AND REMANDED WITH INSTRUCTIONS
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