Devito v. Biomet, Inc. et al

Filing 35

ORDER granting 25 Motion to Dismiss; denying as moot 16 Motion to Dismiss for Failure to State a Claim; denying as moot 19 Motion for Judgment on the Pleadings. Signed by District Judge Terrence W. Boyle on 3/25/2024. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:23-CV-00185-BO

THOMAS DEVITO,
Plaintiff,
V.

)
)
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BIOMET, INC. ; BIOMET OTHOPEDICS, )
LLC; BIOMET U.S. RECONSTRUCTION, )
LLC; BIOMET MANUFACTURING, LLC;)
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ZIMMER HOLDINGS, INC.; ZIMMER,
INC. ; ZIMMER BIOMET HOLDINGS ,
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INC.; ROBERT VAVRINA ; and NORTH )
CAROLINA DISTRIBUTORS,
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Def endants.
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ORDER

This matter is before the Court on plaintiff Thomas DeVito' s motion for a court order
dismissing defendant Robert Vavrina. [DE 25]. Although not required by the text of Rule 42(a)(2),
all parties that have appeared in the case have agreed that DeVito may dismiss his claims against
Vavrina from this action without prejudice. See [DE 25].
Although Rule 41 refers to the voluntary dismissal of an "action" not voluntary dismissal
of parties or causes of action, see Fed. R. Civ. P. 4 l(a), the "weight of judicial authority" indicates
that it permits voluntary dismissal of all claims against a defendant. See 9 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2362 (4th Ed. 2023). At its core, " [t]he
purpose of Rule 41 (a)(2) is free ly to allow voluntary dismissal unless the parties will be unfairly
prejudiced." Davis v. USXCorp., 819 F.2d 1270, 1273 (4th Cir. 1987).The Fourth Circuit instructs
district courts faced with a motion to dismiss without prejudice under Rule 41 (a) to "consider

factors such as the opposing party ' s effort and expense in preparing for trial , excessive delay and
lack of diligence on the part of the movant, and insufficient explanation of the need fo r a voluntary
dismissal, as well as the present stage of litigation." Ho ward v. !nova Health Care Services, 302
F.App' x 166, 178-79 (4th Cir. 2008).
After considering those factors, Vavrina's motion, Rule 41(a)(2), and all relevant matters,
the Court concludes that DeVito has established that dismissal without prej ud ice is appropriate
and there is no risk of prejud ice to Vavrina or the remaining parties. Accordingly, the Court, in the
exercise of its discretion, GRANTS DeVito's motion. Plaintiffs claims against Vavrina are
dismissed without prejudice. In light of the dismissal ofDevito ' s claims against Vavrina, the Court
finds that Vavrina ' s pending motion to dismiss and for judgment on the pleadings are moot.
For all these reasons, the Court GRANTS DeVito's motion [DE 25] and ORDERS as
follows:
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De Vito ' s claims against Vavrina are DISMISSED without prejudice.

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Vavrina's motion to dismiss for fa ilure to state a claim [DE 16] is DENIED as moot.

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Vavrina' s motion for judgment on the pleadings [DE 19] is DENIED as moot.

SO ORDERED, this ¥ctay of March 2024.

UNITED STATES DISTRICT JUDGE

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