Houston v. El Paso Production Co. , 179 F. App'x 213 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 27, 2006
Charles R. Fulbruge III
No. 05-30968 Clerk
Summary Calendar
MICHAEL HOUSTON; STEVE HOUSTON,
Plaintiffs-Appellants,
v.
EL PASO PRODUCTION CO.
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(5:05-CV-00033-TS-MLH)
Before KING, WIENER, and DEMOSS, Circuit Judges.
PER CURIAM:*
The plaintiff-appellants, Michael and Steve Houston (“the
Houstons”), proceeding pro se, sued defendant-appellee El Paso
Production Company (“El Paso”) for rent and royalties under a
mineral lease in which their deceased father, Mack Houston, had an
interest. El Paso filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). After reviewing the briefs and the
record, we affirm the dismissal for the reasons stated in the
*
Under 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opinion should not be published and is not precedent except under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.
district court’s judgment and the magistrate judge’s report and recommendation.
We note, however, that the district court did not specify
whether the dismissal was with or without prejudice. Under such
circumstances, the presumption is that the dismissal was with
prejudice.2 Moreover, the Houstons filed a post-judgment motion
which we construe as a Rule 59(e) motion to alter or amend the
judgment. In that motion, the Houstons requested, inter alia, an
amendment to reflect that the judgment was without prejudice so
that they could later re-file if necessary after complying with the
lease. The court denied the motion without discussion. Although
these two circumstances compel us to presume that the dismissal was
with prejudice, the language of the judgment permits the intrusion
of some doubt by indicating that the district court may have
expected the Houstons to later re-file their claim. Specifically,
the court stated:
Because of the status of Louisiana succession law
at the time of Mack Houston’s death in 1994, it
appears that the plaintiffs likely qualify as
forced heirs as their claim suggests. However, it
is clear to the court that any claims the
plaintiffs have as forced heirs cannot be enforced
until the proper steps have been taken in the
succession process. Accordingly, for these
2
See Fed. R. Civ. P. 41(b) (providing that, with limited
exceptions, all dismissals function as adjudications upon the
merits); Callip v. Harris County Child Welfare Dept., 757 F.2d
1513, 1519 (5th Cir. 1985) (observing that an involuntary order
of dismissal is with prejudice unless specifically designated
otherwise); Tuley v. Heyd, 482 F.2d 590, 594 n. 2 (5th Cir. 1973)
(“An involuntary dismissal must be considered to be with
prejudice unless the district court specifies that its order is
entered without prejudice.”).
2
reasons, as well as for the reasons [stated by] the
Magistrate Judge... the motion to dismiss is
GRANTED.
The Houstons contend that it was error for the district court
to deny their motion to amend the judgment to reflect that it was
without prejudice.3 We review Rule 59(e) motions for abuse of
discretion.4 Unlike the district court’s reasons for denying the
rest of the Houstons’ requests in their motion to amend, the
court’s reasons for its decision to deny their request to amend the
judgment to reflect that it be without prejudice are not apparent
from the record. Therefore, we cannot properly review the district
court’s exercise of its discretion to deny the motion on this
particular issue. Accordingly, we remand to the district court for
the limited purpose of clarifying whether the dismissal was, in
fact, with prejudice, and, if so, specifying the reasons for
disposing of the action with prejudice.
AFFIRMED in part; REMANDED in part.
3
Although the Houstons did not artfully raise the issue on
appeal, it is our practice to construe pro se briefs liberally.
Perez v. United States, 312 F.3d 191, 194-95 (5th Cir. 2002).
4
Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005).
3