IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60450 Summary Calendar

NEW SOUTH FEDERAL SAVINGS BANK,

Plaintiff-Appellant,

versus

DENISE MURPHREE; PHILLIP TEMPLE; SARAH MAXCY; ANGELO HARRIS; ANNA M. GINES, MARGIE M. WASHINGTON; JAMES W. MAXEY, JR.; JAMES W. GILMER; KATHERINE GILMER; SUZANNE TEMPLE; TROY BOND; FRAN BOND,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:01-CV-882-LN -------------------- December 20, 2002 Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

New South Federal Savings Bank (“New South”) appeals the

dismissal for lack of subject matter jurisdiction of its

complaint seeking declaratory relief in connection with

prospective claims that the defendants indicated they would make

in state court. New South argues only that the dismissal should

be without, instead of with, prejudice.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-60450 -2-

This court reviews dismissals for lack of subject matter

jurisdiction de novo. John Corp. v. City of Houston,

(5th Cir. 2000). A dismissal for lack of jurisdiction

is not a decision on the merits and should be without prejudice.

FED. R. CIV. P. 41(b); Warnock v. Pecos County,

(5th Cir. 1996). For this reason, the judgment dismissing the

case should have indicated that the dismissal was without

prejudice. Accordingly, we vacate the dismissal with prejudice

and remand for the district court to enter judgment dismissing

the action without prejudice.

VACATED AND REMANDED WITH INSTRUCTIONS.