Shadwick v. Bayer AG et al

Filing 7

ORDER granting 4 Motion to Dismiss Without Prejudice. Signed by Chief Judge David R. Herndon on 9/27/2011. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
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IN RE YASMIN AND YAZ (DROSPIRENONE)
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3:09-md-02100-DRH-PMF
MARKETING, SALES PRACTICES AND
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PRODUCTS LIABILITY LITIGATION
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MDL No. 2100
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This Document Relates to:
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Charese Shadwick v. Bayer A.G., et al. No. 3:11-cv-12605-DRH-PMF
______________________________________________________________________________

ORDER
INTRODUCTION
On or about July 11, 2011, plaintiff filed a complaint in the Circuit
Court of Madison County, Illinois asserting personal injury claims relating to the
prescription pharmaceutical product YAZ (Doc. 2-2). Plaintiff’s claims are
directed against several Bayer entities (collectively Bayer) and the sole non-diverse
defendant Walgreen Co. (Both plaintiff and Walgreen Co. are citizens of Illinois).
Id. The properly served Bayer defendants removed the action on August 12, 2011
arguing that defendant Walgreen had been fraudulently joined (Doc. 2). On
August 15, 2011, Bayer HealthCare Pharmaceuticals Inc. answered the complaint
(Doc. 3). Two days later, plaintiff, without explanation, filed a motion to dismiss
her action without prejudice pursuant to Federal Rule of Civil Procedure 41.

Bayer opposes plaintiff’s motion for voluntary dismissal. Bayer
contends that plaintiff is attempting to frustrate diversity jurisdiction1 and that
Bayer will suffer “plain legal prejudice” if plaintiff’s motion to dismiss is granted
Specifically, Bayer contends that plaintiff is only seeking a dismissal in order to
re-file her action in state court, thereby obtaining a second opportunity to plead
around federal jurisdiction. Bayer also contends that a dismissal would deprive
Bayer of a ruling on the issue of fraudulent joinder.
Plaintiff responds, arguing that, given the infancy of this case and the
absence of excessive delay or lack of diligence on the part of the plaintiff,
dismissal will not legally prejudice Bayer. In addition, plaintiff argues that less
extreme measures – such as the imposition of taxable costs – would adequately
address any arguable prejudice.

ANALYSIS
When sought after a defendant has filed an answer, voluntary
dismissal may be obtained only “upon order of the court and upon such terms
and conditions as the court deems proper.” FED. R. CIV. P. 41(a)(2). “[T]he
allowance of a motion to dismiss under Rule 41(a)(2) is not a matter of right, but
is discretionary with the District Court both as to whether a dismissal shall be

1

Specifically, Bayer contends that plaintiff is attempting to frustrate federal
jurisdiction by fraudulently joining a pharmacy defendant and attempting to plead
around the amount in controversy requirement. Bayer also notes that counsel for
plaintiff previously attempted the same maneuver in a different case in this MDL.
See Walton v. Bayer, 643 F.3d 994 (7th Cir. 2011).

allowed as well as to the terms and conditions to be imposed if allowed.” Adney v.
Miss. Lime Co. of Mo., 241 F.2d 43, 45-46 (7th Cir.1957).
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).
Here, the plaintiff’s case is in the relatively early stages of litigation,
there has not been a lack of diligence on the part of the Plaintiff, and a summary
judgment motion has not been filed. Thus, the first, second, and fourth factors
favor the plaintiff. Plaintiff, however, has not offered an explanation for the need
to take a dismissal which tends to support the contention that the plaintiff is
attempting to manipulate the federal forum. Accordingly, the third factor favors
defendants.
Bayer also raises an argument with regard to the prejudice that will
allegedly result if this action is simply re-filed in state court. 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). 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).2
Considering the above, the Court concludes that the prospect of
plaintiff re-filing the instant action in state court will not result in plain legal
prejudice to Bayer. In addition, on balance, the factors outlined in Pace, favor
dismissal of the action and do not support a finding of plain legal prejudice.

CONCLUSION
The Court’s authority to set terms and conditions for voluntary
dismissal is commensurate with its duty to protect defendant from unfair legal
prejudice through the unfair use of voluntary dismissal. Such prejudice is not
present under the circumstances of this case and accordingly, the Court will grant
2

Plain legal prejudice 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). Here, there is no indication that
dismissal would deprive Bayer of an absolute defense.

plaintiff’s motion for voluntary dismissal without prejudice under Rule 41(a)(2).
However, Bayer’s argument with regard to the alleged manipulation of federal
jurisdiction has not gone unnoticed. Should this action subsequently appear in
this litigation, the Court will consider whether remedial action – such as the
imposition of costs – is warranted.
For the foregoing reasons, the Court GRANTS plaintiff’s motion for
voluntary dismissal without prejudice.
IT IS SO ORDERED
Digitally signed by David
R. Herndon
Date: 2011.09.27 14:21:47
-05'00'
Chief Judge
United States District Court

DATE: September 27, 2001