Greer v. Lancet

Case: 23-20538 Document: 52-1 Page: 1 Date Filed: 02/16/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit ____________ FILED

February 16, 2024 No. 23-20538 Lyle W. Cayce Summary Calendar Clerk

____________

Steven E. Greer,

Plaintiff—Appellant, versus

The Lancet; Dan Erkes; Elsevier; RELX plc,

Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:23-CV-3761

______________________________

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: *

Steven Greer appeals from the district court’s dismissal with prejudice of his action against The Lancet, Dan Erkes, Elsevier, and RELX PLC (“Defendants”). Greer filed his complaint on October 5, 2023. Fourteen days later—before Defendants filed either an answer or a motion for summary judgment, see Fed. R. Civ. P. 41(a)(1)(A)(i)—Greer filed a Case: 23-20538 Document: 52-1 Page: 2 Date Filed: 02/16/2024

No. 23-20538 notice of voluntary dismissal, “giv[ing] notice that the [] action is voluntarily dismissed without prejudice against the defendants.”

The following day, the district court purported to dismiss the case “with prejudice as to all Defendants pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).” The court’s order provided no further reasoning. Under Rule 41(a)(1)(B), however, “dismissal is without prejudice,” unless “the plaintiff previously dismissed any federal- or state-court action based on or including the same claim.” Fed. R. Civ. P. 41(a)(1)(B) (emphasis added); see Welsh v. Correct Care, L.L.C., 915 F.3d 341, 342-44 (5th Cir. 2019).

Accordingly, we VACATE and REMAND to the district court to explain whether Greer has previously dismissed any action based on the same claim or, in the alternative, to DISMISS WITHOUT PREJUDICE Greer’s action. 1