Grismore v. Bayer Corporation et al

Filing 17

ORDER granting 15 Motion to Dismiss voluntarily without prejudice. Signed by Chief Judge David R. Herndon on 12/21/2011. (mtm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
_________________________________________
)
IN RE YASMIN AND YAZ (DROSPIRENONE))
3:09-md-02100-DRH-PMF
MARKETING, SALES PRACTICES AND
)
PRODUCTS LIABILITY LITIGATION
)
MDL No. 2100
_________________________________________
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ORDER GRANTING
VOLUNTARY DISMISSAL
This Document Relates to: Amy Grismore v. Bayer Corp., et al., No. 10-cv-12850
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for voluntary dismissal
without prejudice (Doc. 16).

On or about September 30, 2010, plaintiff Amy

Grismore, filed this action alleging personal injuries (Doc. 2).

Defendants

answered plaintiff’s complaint (Doc. 9), and shortly after submitting a Plaintiff
Fact Sheet, plaintiff decided to dismiss her case.
Pursuant to the motion to dismiss, plaintiff’s counsel notified defendants
that plaintiff Amy Grismore had decided to dismiss her case and requested that
defense counsel agree to a dismissal without prejudice and without costs.
However, defendants have refused to stipulate to a dismissal without prejudice.
Plaintiff now moves this Court pursuant to FEDERAL RULE
41(a)(2) for a dismissal without prejudice and costs.

OF

CIVIL PROCEDURE

Plaintiff’s motion for

voluntary dismissal was filed on August 30, 2011 (Doc. 15). To date, defendants
have not responded to the motion.

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I.
A.

ANALYSIS

Right to Voluntary Dismissal Under Rule 41(a)(1)(i)
Rule 41(a)(1)(i) authorizes a plaintiff to dismiss an action on his or her own

without seeking a court order “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)(i). Rule 41(a)(1)(i) is to be read literally and thus, service of either an
answer or a motion for summary judgment terminates the plaintiff’s right to walk
away from the case at its discretion. See Marlow v. Winston & Strawn, 19 F.3d
300 (7th Cir. 1994); Winterland Concessions Co. v. Smith, 706 F.2d 793, 795
(7th Cir. 1983).
Generally, a voluntary dismissal without prejudice should be allowed
unless the opposing party will suffer “plain legal prejudice.”

Stern v. Barnett,

452 F.2d 211(7th Cir. 1971). Four factors are used to guide the determination of
whether a defendant will suffer plain legal prejudice: "[1] the defendant's effort
and expense of preparation for trial, [2] excessive delay and lack of diligence on
the plaintiff in prosecuting the action, [3] insufficient explanation for the need to
take a dismissal, and [4] the fact that a motion for summary judgment has been
filed by the defendant." Outboard Marine, 789 F.2d at 502 (quoting Pace v. S.
Express Co., 409 F.2d 331, 334 (7th Cir.1969).
The Seventh Circuit has held that the mere prospect of a second lawsuit in
state court does not constitute plain legal prejudice and is therefore not grounds
for denying a motion for voluntary dismissal under Rule 41(a)(2).

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See e.g.

Quad/Graphics, Inc. v. Fass,724 F.2d 1230, 1233 (7th Cir.1983) ("the prospect of
a second lawsuit or the creation of a tactical advantage is insufficient to justify
denying the plaintiff's motion to dismiss."); Stern v. Barnett, 452 F.2d 211 (7th
Cir. 1971) (“In exercising its discretion the court follows the traditional principle
that dismissal should be allowed unless the defendant will suffer some plain legal
prejudice other than the mere prospect of a second lawsuit.”); Grivas v. Parmelee
Transp. Co., 207 F.2d 334, 337-38 (7th Cir.1953) (removal of a case to federal
court does not preclude a plaintiff from seeking voluntary dismissal in order to
re-file his or her claims in state court). Plain legal prejudice, however, is present
where dismissal without prejudice would strip defendant of an absolute defense.
See Rosenthal v. Bridgestone/Firestone, Inc., 217 Fed.Appx. 498, 500 (7th Cir.
2007).
In the instant case, the member action seeking voluntary dismissal is in the
relatively early stages of litigation and there has not been a lack of diligence on the
part of plaintiff. Further, there is no indication that dismissal would deprive the
defendants of an absolute defense. In addition, defendants have failed to respond
to plaintiff’s motion and have not filed a motion for summary judgment.
Accordingly, the Court grants plaintiff’s motion for voluntary dismissal without
prejudice under Rule 41(a)(2).

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III.

CONCLUSION

For the foregoing reasons, the Court GRANTS plaintiff’s motion for
voluntary dismissal without prejudice (Doc. 15).
IT IS SO ORDERED.
Signed this 21st day of December, 2011.

David R. Herndon
2011.12.21 13:45:30
-06'00'
Chief Judge
United States District Court

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