Cadence Pharmaceuticals, Inc. et al v. Exela Pharma Sciences, LLC et al
ORDER granting 3 Motion to Dismiss Without Prejudice. Signed by District Judge Richard Voorhees on 1/17/12. (smj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CASE NO. 5:11-CV-00116-RLV-DSC
CADENCE PHARMACEUTICALS, INC., )
and SCR PHARMATOP,
EXELA PHARMA SCIENCES, LLC,
EXELA PHARMSCI, INC., and
EXELA HOLDINGS, INC.,
THIS MATTER is before the Court on Plaintiffs’ Motion for Dismissal Without
Prejudice, filed January 13, 2012. (Doc. 3.)
I. PROCEDURAL HISTORY
Plaintiffs Cadence Pharmaceuticals, Inc., and SCR Pharmatop filed Complaints against
Defendants Exela Pharma Sciences, LLC, Exela Pharmsci, Inc., and Exela Holdings, Inc., for
patent infringement in the United States District Court for the District of Delaware and,
subsequently, in the United States District Court for the Western District of North Carolina. In
the instant case, the Complaint has not been served upon Defendants, nor have Defendants
answered or otherwise made an appearance. Defendants have, however, filed responsive
pleadings in the first-filed action before the United States District Court for the District of
Delaware. Plaintiffs, unopposed, now move to dismiss the instant case pursuant to Federal Rule
of Civil Procedure 41(a)(2).
II. APPLICABLE STANDARD AND DISCUSSION
Federal Rule of Civil Procedure 41 describes the circumstances under which an action
may be dismissed. The purpose of Rule 41(a)(2) is “freely to allow voluntary dismissals unless
the parties will be unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.
1987); see also Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986) (noting that absent
“substantial prejudice” to the defendant, the plaintiff’s motion for voluntary dismissal without
prejudice should be granted). Although Plaintiffs move to dismiss pursuant to Rule 41(a)(2), a
plaintiff “may dismiss an action without a court order (i) by filing a notice of dismissal before
the opposing party serves either an answer or a motion for summary judgment . . . .” Fed. R. Civ.
P. 41(a)(1). Therefore, the plaintiffs are entitled to a voluntary dismissal without prejudice under
the provisions of Rule 41(a)(1).
Even if the Court were not to treat Plaintiffs’ motion as one sought pursuant to Rule
41(a)(1), the Court would grant the motion pursuant to the provisions of Rule 41(a)(2). This rule
enables the Court to impose conditions on voluntary dismissal in order to ensure no such
prejudice will occur. In crafting a ruling on such motions, the Court is to consider
(1) the opposing party’s effort and expense in preparing for trial; (2) excessive delay or
lack of diligence on the part of the movant; (3) insufficient explanation of the need for a
dismissal; and (4) the present stage of the litigation, i.e., whether a motion for summary
judgment is pending. These factors are not exclusive, however, and any other relevant
factors should be considered by the district court depending on the circumstances of the
Gross v. Spies, 133 F.3d 914, 1998 WL 8006, at *5 (4th Cir. 1998) (unpublished disposition)
(internal citations omitted).
Here, the action is near five months old, no responsive pleading has been filed, and
Defendants appear not to oppose Plaintiffs’ Motion to Dismiss. Thus, it is highly doubtful that
Defendants would suffer prejudice from the granting of a Rule 41(a)(2) motion.
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Dismissal Without
Prejudice (Doc. 3) be GRANTED.
Signed: January 17, 2012
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