from the United States District Court for the Western
District of Texas
DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE:
case involves the appeal of two district court orders. The
first requires that appellant Michael Sammons pay $26, 726 in
costs under Federal Rule of Civil Procedure 41(d),
the second administratively closes the case pending such
payment. Because these orders are not final judgments, they
do not fall within any exception to the final judgment rule,
and mandamus relief is inappropriate in this case, we DISMISS
for lack of jurisdiction.
3, 2017, appellant Michael Sammons filed a complaint in the
High Court of the Republic of the Marshall Islands (RMI
court) asserting direct claims against appellees for breach
of fiduciary duties, fraud, and unjust enrichment, as well as
a derivative claim on behalf of DryShips, Inc. against George
Economou. On February 2, 2018, the RMI court stated that
"it was inclined to grant [appellees'] motions to
dismiss." Before the motions were granted, however, Mr.
Sammons filed "Plaintiff's Motion for Voluntary
Dissal (sic) Without Prejudice," which amounted to a
Federal Rule of Civil Procedure 41(a)(1)(A) notice of
dismissal without prejudice. The RMI court acknowledged the
dismissal but found that Mr. Sammons engaged in
"gamesmanship" and "wasted the Court's
time and resources." Appellants then filed this action
in the Western District of Texas on February 27, 2018 based
on similar allegations. On March 14, 2018, Mr. Economou and
DryShips, Inc. moved for reimbursement of costs incurred in
the action before the RMI court pursuant to Fed.R.Civ.P.
41(d) and a stay of the case pending payment. The district
court granted the costs motion in part and administratively
closed the case pending payment, prompting this appeal.
urge three separate grounds for jurisdiction. First, that
this is a direct appeal from a final judgment; second, that
the collateral order doctrine should apply; and third, that a
writ of mandamus is appropriate. We address each in turn.
Appeal from a Final Judgment
appellants first allege that this is a direct appeal from a
final judgment because "[a] case which has been
'administratively closed' . . . pending occurrence of
an event which will never occur . . . is the functional
equivalent of a dismissal over which an appellate court can
exercise review." Under 28 U.S.C. § 1291, "a
final judgment is normally deemed not to have occurred until
there has been a decision by the District Court that ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment." Henry v. Lake Charles
Am. Press, L.L.C., 566 F.3d 164, 171 (5th Cir. 2009)
(cleaned up). "We have held that . . . an administrative
closure is the functional equivalent of a stay and a stay
will not support appellate jurisdiction under 28 U.S.C.
§ 1291." Int'l Ass'n of Machinists
& Aerospace Workers Local Lodge 2121 AFL-CIO v. Goodrich
Corp., 410 F.3d 204, 209 (5th Cir. 2005) (citing
Mire v. Full Spectrum Lending, Inc., 389 F.3d 163,
167 (5th Cir. 2004)). Since the district court has yet to
address the merits of appellants' claims, the orders
below do not amount to a final judgment in the case.
also invoke the collateral order doctrine as a basis for
jurisdiction. We have jurisdiction under 28 U.S.C. §
1291 pursuant to the collateral order doctrine when an order:
(1) "conclusively determine[s] the disputed
question;" (2) "resolve[s] an important issue
completely separate from the merits of the action;" and
(3) is "effectively unreviewable on appeal from a final
judgment." Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978). The orders at issue in this case
fail to meet the third requirement.
previously held that other, similar interim fee orders are
not effectively unreviewable following a final judgment.
See, e.g., Netsphere, Inc. v. Baron, 799 F.3d 327,
335 (5th Cir. 2015) (receiver fees); Campanioni v.
Barr, 962 F.2d 461, 463 (5th Cir. 1992) (Criminal
Justice Act fees); Ruiz v. Estelle, 609 F.2d 118,
119 (5th Cir. 1980) (attorneys' fees). This is so because
the recipients of the fees can pay them back if the
appellants win their appeal following a final judgment.
See Netsphere, Inc., 799 F.3d at 336 ("[T]here
are no allegations-and certainly no proof-that the receiver
or its counsel would be unable to pay back the awards if
are at least two exceptions to this pre-final judgment fee
rule. First, a pre-final judgment fee award is reviewable if
"mere payment of the fees would make them
unrecoverable." Netsphere, Inc., 799 F.3d at
335-36; see S.E.C. v. Forex Asset Mgmt. L.L.C., 242
F.3d 325, 330 (5th Cir. 2001). For example, in Forex
Asset Mgmt. L.L.C., we found that a decision by the
district court to approve a receiver's distribution plan
was reviewable because "the assets from the receivership
[would] be distributed, and likely unrecoverable, long before
the action . . . [would be] subject to appellate
review." 242 F.3d at 330. Here, there is no allegation
that the costs awarded will be unrecoverable upon successful