Davis Lopez, as next Friend of PRESTON LOPEZ v. Ross Stores, Inc.

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41777
DAVIS LOPEZ, as next Friend of
PRESTON LOPEZ,
Plaintiff-Appellant
v.
ROSS STORES, INC.,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
(1:06-CV-7)
Before JOLLY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant David Lopez, as next friend of the minor, Preston
Lopez, filed this slip-and-fall suit for injuries sustained by Preston on the
premises of Defendant-Appellee Ross Stores, Inc., alleging causation in the form
of some shrink-bubble wrap on the floor in the store. In January 2006, Ross
Stores removed the action to federal district court on diversity jurisdiction. After
intermittent but protracted pretrial activities over many months, Lopez, with
the agreement of Ross Stores, sought an extension of expert designation
deadlines, which the district court denied for lack of a showing of good cause by
United States Court of Appeals
Fifth Circuit
F I L E D
October 12, 2007
Charles R. Fulbruge III
Clerk

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No. 06-41777
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Lopez. Thereafter, Lopez filed a notice of involuntary dismissal pursuant to
Federal Rule of Civil Procedure 41(a)(1). Three days later, however, Lopez filed
motions to set aside his notice to dismiss under Rule 41(a)(1), seeking instead to
dismiss his suit voluntarily or, alternatively, to amend the scheduling order
without extending the trial date. A few days later, Ross Stores filed a response
to Lopez’s motion to amend the scheduling order coupled with a motion to strike
two of Lopez’s expert witnesses. Roughly two weeks later, the court entered its
opinion and order, granting Lopez’s request to set aside his notice of dismissal,
denying his request to extend the scheduling order deadlines, granting Ross
Stores’s motion to strike two of Lopez’s named experts for failure to file their
reports, and granting Lopez’s motion to dismiss the suit voluntarily. Although
the motion to dismiss voluntarily was granted without prejudice, it was made
subject to two conditions: (1) Any discovery previously undertaken could be used
in any further proceeding regarding the same matters, and (2) if Lopez should
refile the case or one substantially similar, he could designate only the same
three experts who had already been designated in this action and not stricken
for failure to file their reports, but he could not designate any additional or
different experts.
The court gave Lopez two weeks to file a notice whether he agreed to the
dismissal as conditioned, advising Lopez that (1) if he objected to the conditions,
the motion would be denied, but (2) if he failed to object or affirmatively accept
the conditions, his motion to dismiss without prejudice would be granted subject
to those conditions. Lopez failed to respond within the two weeks allowed by the
court; and, approximately one week later, the district court entered final
judgment dismissing the action without prejudice but subject to the stated
conditions. Shortly thereafter, Lopez filed notice of objections to the final
judgment and a notice of appeal. The next day, the district court entered its
opinion and order striking the notice of Lopez’s objections to the final judgment.

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No. 06-41777
1 See Mortgage Guaranty Ins. Corp. v. Richard Carlyon Co., 904 F.2d 298,
300 (5th Cir. 1990)(citing Yoffe v. Keller Industries Inc., 580 F.2d 126 (5th Cir.
1978)); Coliseum Square Ass’n., Inc. v. Jackson, 465 F.3d 215, 249 (5th Cir.
2006).
2 Mortgage Guaranty, 904 F.2d at 300.
3 Id.; Coliseum Square Ass’n, 465 F.3d at 249.
3
On appeal, Lopez takes issue only with conditions imposed by the court with
regards to striking of designated expert witnesses.
Preliminarily, we must determine whether we have appellate jurisdiction
to consider the appeal of the voluntary dismissal without prejudice, aware that
we generally do not have jurisdiction in such cases, as the Plaintiff is presumed
to have received precisely the relief he is requesting.1 An exception exists,
however, when the dismissing court has imposed conditions on a voluntary
dismissal,2 if the plaintiff is “legally prejudiced” by the conditions on the grant
of dismissal and has not agreed to or legally acquiesced in those conditions.3
Although we would be hard pressed to conclude that the conditions imposed in
granting Lopez’s motion are clearly unreasonable and thus amount to legal
prejudice, and would be equally hard pressed to conclude that Lopez did not
agree to or at least acquiesce in the conditions as a matter of law, the way that
the matter is couched by Lopez in his appellate brief and oral argument to this
court casts sufficient doubt that we shall treat the matter as constituting
prejudice and non-acquiescence, and proceed to hear this appeal.
When we do so, however, we are convinced beyond cavil that the district
court committed absolutely no error, much less reversible error. The district
correctly found that it would be inappropriate merely to dismiss this case
without prejudice based on the late stage of the proceedings, Lopez’s inability to
sufficiently explain the need for dismissal, and the efforts that had been spent
by the defendant. The court crafted conditions designed to prevent any prejudice
to the defendant arising from the dismissal and did not, in so doing, abuse its

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No. 06-41777
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discretion. To the extent that Lopez suffered prejudice, the harm must be laid
squarely at the feet of his counsel.
The rulings of the district court from which Lopez appeals are, in all
respects,
AFFIRMED.

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