Ricardo Garcia v. Intl Construction Equip, Inc. ( 2019 )

Case: 18-20710 Document: 00514926417 Page: 1 Date Filed: 04/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20710 FILED
Summary Calendar April 23, 2019
Lyle W. Cayce
Clerk
RICARDO G. GARCIA,
Plaintiff–Appellant
v.
INTERNATIONAL CONSTRUCTION EQUIPMENT, INCORPORATED,
Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-3575
Before DAVIS, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
In the instant case (“Garcia I”), Plaintiff Ricardo Garcia filed a notice of
dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). The district
court, the Honorable Lynn Hughes presiding, issued an order of dismissal
which included a condition that “[i]f refiled in or removed to the Southern
District of Texas, the case will be assigned to Judge Hughes.” On the next day,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20710 Document: 00514926417 Page: 2 Date Filed: 04/23/2019
No. 18-20710
Plaintiff re-filed his complaint in Texas state court, alleging largely the same
set of facts and legal claims. Defendants then removed the case to the
Southern District of Texas; the case (“Garcia II”) was randomly allotted to the
Honorable Sim Lake. Later, by “[a]greement between judges,” Judge Lake
transferred Garcia II to Judge Hughes. Plaintiff now appeals the district
court’s order of dismissal in Garcia I, arguing that the re-filing condition is
impermissible under Rule 41(a)(1)(i).
Regardless of the merits on appeal, we recognize that this case is now
moot. “A claim becomes moot when the issues presented are no longer live or
the parties lack a legally cognizable interest in the outcome.” Piggly Wiggly
Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177 F.3d 380, 383 (5th Cir. 1999). In
this case, Judge Lake transferred Garcia II to Judge Hughes after Plaintiff
filed his notice of appeal in Garcia I. Judge Lake’s transfer order was not
compelled by Judge Hughes’ order of dismissal, but by “[a]greement between
the judges.” Regardless of a district court’s jurisdiction in a case after a
plaintiff files a Rule 41(a)(1)(A) voluntary dismissal, we permit intra-district
case transfers to prevent judge-shopping: “Any district court . . . is free . . . to
require that a re-filed action be assigned to the original judge, or to require
that if a re-filed case is assigned to a different judge, that judge shall transfer
the case to the original judge.” Int’l Driver Training Inc. v. J-BJRD Inc., 202
F. App’x 714, 716 (5th Cir. 2006). 1 Moreover, under Rule 41(a)(1)(B), commonly
referred to as the two-dismissal rule, “a notice of dismissal [in the second case]
operates as an adjudication on the merits.” Cabot Golf CL-PP 1, LLC v. Nixon
Peabody, LLP, 575 F. App’x 216, 218 (5th Cir. 2014). Plaintiff therefore cannot
1 While our unpublished opinions are not controlling precedent, they may be
persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citation
omitted).
2
Case: 18-20710 Document: 00514926417 Page: 3 Date Filed: 04/23/2019
No. 18-20710
voluntarily dismiss Garcia II and re-file his case for a third time without
having final judgment issued against him—notwithstanding which judge he
then draws. Accordingly, we find that the contested condition in Judge
Hughes’ order of dismissal, in Garcia I, can no longer affect Plaintiff’s claims,
and this appeal must be dismissed as moot.
DISMISSED AS MOOT.
3