Sharon Fisher v. Boehringer Ingelheim International GMBH et al

Filing 40

ORDER DISMISSING CASE. Signed by Judge Trina L. Thompson on 2/5/2024. (rfm, COURT USER) (Filed on 2/6/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHARON FISHER,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 24-cv-00057-TLT
ORDER DISMISSING CASE

v.

Re: Dkt. No. 30
BOEHRINGER INGELHEIM
INTERNATIONAL GMBH, et al.,
Defendants.

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Before the Court is Plaintiff’s Motion to Dismiss (“Motion”), ECF No. 30. Plaintiff filed

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this suit in state court in early 2023—alleging that Defendants’ product gave her breast cancer—

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and Defendants GlaxoSmithKline LLC, Boehringer Ingelheim Pharmaceuticals, Inc., and Pfizer

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Inc. (collectively, “Brand Defendants”) removed to this Court in early 2024. See Notice of

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Removal ¶ 3, ECF No. 1; id. Ex. A, ¶ 13, ECF No. 1-2. Days later, a conditional transfer order

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was entered in MDL No. 2924, which Plaintiff opposed. See In re Zantac (Ranitidine)Prods.

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Liab. Litig., MDL No. 2924, ECF Nos. 1375, 1378. Plaintiff now moves to dismiss without

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prejudice under Federal Rule of Procedure 41(a)(2), citing her poor health and the burdens of

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litigation. Mot. 1.

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Under Rule 41(a)(2), “an action may be dismissed at the plaintiff’s request only by court

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order, on terms that the court considers proper.” “Pursuant to the rule, the Court must make three

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separate determinations: (1) whether to allow dismissal; (2) whether the dismissal should be with

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or without prejudice; and (3) what terms and conditions, if any, should be imposed.” Williams v.

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Peralta Cmty. Coll. Dist., 227 F.R.D. 538, 539 (N.D. Cal. 2005) (quoting Burnette v. Godshall,

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828 F.Supp. 1439, 1443 (N.D. Cal. 1993)).

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“The Ninth Circuit has instructed that ‘[a] district court should grant a motion for

United States District Court
Northern District of California

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voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain

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legal prejudice as a result.’” Id. (quoting Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001)).

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Legal prejudice includes prejudice to a legal argument; it does not include “uncertainty because a

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dispute remains unresolved or because the threat of future litigation causes uncertainty.” Id.

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(quoting Smith, 263 F.3d at 976 (cleaned up)). Nor does prejudice involve the defendant’s

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“inconvenience[] by having to defend in another forum or where a plaintiff would gain a tactical

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advantage by that dismissal.” Id. (quoting Smith, 263 F.3d at 976). Likewise, “the expense

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incurred in defending against a lawsuit” does not qualify. Id. (quoting Westlands Water Dist. v.

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United States, 100 F.3d 94, 97 (9th Cir. 1996)).

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To show prejudice, Brand Defendants point to their expenses in this litigation and the risk

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of future litigation in state court. See Opp’n 5–6, ECF No. 38. But expenses in current litigation

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and the risk of future litigation do not constitute prejudice. See Williams 227 F.R.D. at 539.

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Brand Defendants also point out that a conditional transfer order has been entered in the MDL,

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and that the MDL panel has entered a pre-trial order governing voluntary dismissals. See Opp’n 3.

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But “[t]he Conditional Transfer Order [] is just that, conditional, and thus this Court retains

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jurisdiction over the instant action.” Collum v. Astrazeneca Pharms., L.P., No. C-06-0662 SC,

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2006 WL 2504919, at *1 (N.D. Cal. Aug. 29, 2006). And the pre-trial order in the MDL litigation

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merely instructs that plaintiffs must dismiss under Rule 41(a)(2)—as Plaintiff is doing here—and,

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in any case, it seems to apply to plaintiffs whose cases were already transferred. See MDL Pretrial

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Order # 78, In re Zantac (Ranitidine)Prods. Liab. Litig., MDL No. 2924 (May 12, 2022).

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Dismissal is thus proper. See Williams 227 F.R.D. at 539.

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Brand Defendants request that if the Court dismiss, it do so with prejudice. Opp’n 6.

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“The Ninth Circuit has indicated that, if a plaintiff fails to specify whether the request is for

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dismissal with or without prejudice, the matter is left to the discretion of the lower court.” Id.

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(citing Hargis v. Foster, 282 F.3d 1154, amended by 312 F.3d 404, 406 (9th Cir. 2002)).

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Similarly, “[i]f the plaintiff [ ] moves for dismissal without prejudice . . . , the matter is left to the

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discretion of the court.” Hargis 312 F.3d at 407 (quoting 9 Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 2367 (2d ed. 1994)). “Factors that may be considered in
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determining whether a dismissal should be with or without prejudice include: (1) the defendant's

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effort and expense in preparing for trial, (2) excessive delay and lack of diligence on the part of

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the plaintiff in prosecuting the action, and (3) insufficient explanation of the need to take a

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dismissal.” Williams, 227 F.R.D. at 540 (cleaned up). Plaintiff has not delayed the case,

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Defendants have not filed any dispositive motions in this action, and Plaintiff would like to

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dismiss because of her health—the very reason she brought this lawsuit in the first place. The

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Court thus finds that dismissal without prejudice is proper.

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United States District Court
Northern District of California

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In the alternative, Brand Defendants ask that the Court dismiss with the condition that
Plaintiff only be able to refile in federal court. Opp’n 6. Under the relevant law, however,

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Defendants would not be prejudiced by litigating this case in state court. See Williams, 227 F.R.D.

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at 539. This cuts against their request. To be sure, this case might properly be part of the MDL

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and so might properly belong in federal court; however, that determination has not been made yet,

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and it is not for this Court to make.

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Accordingly, Plaintiff’s Motion is GRANTED. This case is dismissed without prejudice.

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IT IS SO ORDERED.

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Dated: February 5, 2024

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TRINA L. THOMPSON
United States District Judge

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