YAZZIE v. GLAXOSMITHKLINE LLC
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LEGROME D. DAVIS ON 8/5/13. 8/6/13 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
formerly known as
AND NOW, this 5th day of August, 2013, upon consideration of Plaintiff’s Motion for
Voluntary Dismissal Without Prejudice (Doc. No. 33) and the Parties’ responses and replies
thereto (Doc. Nos. 36, 39), it is hereby ORDERED that the Motion is GRANTED. It is further
ORDERED that Defendant’s Motion to Transfer (Doc. No. 29) is DENIED as moot. The Clerk
of Court shall close this action statistically.
On January 27, 2012, Plaintiff, a citizen of New Mexico, initiated this case as part of a
consolidated action pending in the Pennsylvania Court of Common Pleas Mass Torts Program.
The Complaint alleges that Plaintiff’s mother’s use of Paxil—a prescription drug manufactured
by Defendant, GlaxoSmithKline—caused Plaintiff to be born with congenital birth defects.
Defendant removed this action to the United States District Court for the Eastern District
of Pennsylvania on February 27, 2012. (Doc. No. 1). Plaintiff promptly filed a Motion to Remand
(Doc. No. 15), asserting that GlaxoSmithKline is a citizen of Pennsylvania and therefore not
entitled to remove an action that was filed in Pennsylvania state court. See 28 U.S.C. § 1441(b).
On April 12, 2012, we placed this action in civil suspense, pending the resolution of an appeal
before the Third Circuit Court of Appeals, regarding the citizenship of GlaxoSmithKline. (Doc.
No. 24). On June 7, 2013, the Third Circuit Court of Appeals held that, for the purposes of
assessing diversity of citizenship, Defendant GlaxoSmithKline is a citizen of the state of
Delaware. Johnson v. SmithKline BeechamCorp., Nos. 12-2561/2562/2563/2564/2565, 2013
U.S. App. LEXIS 11501 (3d Cir. June 7, 2013); see also Lucier v. SmithKline Beecham Corp.,
No. 12-2561, 2013 WL 2456043, --- F.3d --- (3d Cir. June 7, 2013).
Pursuant the Third Circuit’s decision in Johnson, on June 19, 2013, we returned this case
to our active civil docket and denied Plaintiff’s Motion to Remand. (Doc. No. 27). Before a
scheduling order was issued, Defendant filed a Motion to Transfer Venue (Doc. No. 29), and
Plaintiff filed a Motion for Voluntary Dismissal Without Prejudice. (Doc. No. 33). We now
GRANT Plaintiff’s Motion and DENY Defendant’s Motion as moot.
Once an answer or motion for summary judgment is filed in a case, a party who seeks
dismissal of the case without prejudice must obtain an order from the district court. Fed. R.Civ P.
41(a)(2). In granting a motion under 41(a)(2), the district court is authorized to impose such
terms and conditions as it deems proper.
Rule 41(a)(2)’s primary purpose is to thwart voluntary dismissals by plaintiffs that would
result in clear legal prejudice to defendants. The decision as to whether to grant such a motion is
within the district court's sound discretion. In re Diet Drugs (Phentermine/Fenfluramine/
Dexfenfluram ine) Prods. Litig., 85 F. App'x 845, 847 (3d Cir. 2004), (citing Ferguson v. Eakle,
492 F.2d 26, 28 (3d Cir.1974)); see also Kean v. Adler, 65 F. App'x 408, 415 (3d Cir. 2003) (a
district court’s order granting voluntary dismissal without prejudice is a “mere procedural ruling[
]” and not a “final judgment[ ] on the merits” fit for review”); Westinghouse Elec. Corp. v.
United Elec. Radio and Machine Workers of Am., 194 F.2d 770 (3d Cir. 1952) (“An order of
dismissal entered pursuant to [Rule 41(a)(2)] . . . should not be disturbed on appeal of the
defendant except for arbitrary action which has subjected the defendant to plain prejudice beyond
the prospect of subsequent litigation.”).
The Third Circuit adopts the same liberal policy for motions brought under Fed. R. Civ.
P. 41(a)(2) that it utilizes in resolving motions to amend under Fed. R. Civ. P. 15(a). In re Paoli
R.R. Yard PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990). As a general matter, a district court
considering a plaintiff's motion for voluntarily dismissal must first “decide the presence or extent
of any prejudice to the defendant” that may result from dismissing plaintiff’s complaint. In re
Diet Drugs Prods. Litig., 85 F. App'x at 847 (3d Cir. 2004) (quoting Ferguson 492 F.2d at 29).
Unless the court determines that “defendant will suffer some prejudice other than the mere
prospect of a second lawsuit,” the district court should grant plaintiff’s motion. Paoli, 916 F.2d at
863 (citing 5 J. Moore, Moore's Federal Practice ¶ 41.05, at 41–62 (1988)). Voluntary motions
to dismiss are generally found prejudicial where a plaintiff seeks to start its litigation anew in the
advanced stages of a lawsuit, after discovery has closed and the parties have filed dispositive
motions or prepared for trial. See e.g. In re Diet Drugs Prods. Litig., 85 F. App’x at 847;
Ferguson, 492 F.2d at 28. Nonetheless, plain legal prejudice does not result just because the
defendant faces the prospect of a second lawsuit on the same issues in a forum that may prove
more favorable to the plaintiff. Paoli, 916 F.2d at 863.
In this Court’s sound discretion, we cannot find “plain legal prejudice” to Defendant
sufficient to deny Plaintiff’s Motion for Voluntary Dismissal. Plain legal prejudice does not
result solely because Defendant faces the prospect that Plaintiff may re-institute this case in
another forum. Id. Although Plaintiff filed this action more than eighteen (18) months ago, this
case remains in its initial stages. The parties have not begun factual or expert discovery, and this
Court has not even issued a Rule 16 scheduling order. The parties have not filed any substantive
motions with this court, and a trial date has not been set.
Despite this action’s early stage, GlaxoSmithKline argues that a voluntary dismissal will
cause it prejudice because such action could potentially: (1) deny Defendant its purported “right”
to a federal forum; (2) subject Defendant to less favorable case law in an alternate forum; or (3)
subject Defendant to a collective action. We find each of these arguments speculative and
Plaintiff, a New Mexico resident, filed this action in the Pennsylvania Court of Common
Pleas, in order to take part in a collective product liability action against Defendant. Defendant
removed most, if not all, of these individual actions to federal court, where no such collective
action is currently pending. Defendant now speculates that, were we to grant Plaintiff’s Motion
for Voluntary Dismissal, Plaintiff will re-file this action in a state court in which Defendant has
no right to seek removal.1 Defendant further fears that, in doing so, Plaintiff may join another
Defendant suggests that Plaintiff may re-file in state court and deny Defendant its right of removal by improperly
joining additional defendants. At this stage, Defendants concern is grounded in mere speculation, and it is best
addressed before an appropriate court if and when such a situation materializes.
collective action, and that, if this case proceeds to trial, plaintiff’s selected forum may have
evidentiary standards less favorable to Defendant than this Court’s.2
We cannot find that Defendant’s concerns amount to “plain legal prejudice.” As an initial
matter, we reiterate that the prospect of a second lawsuit in an alternate forum more favorable to
Plaintiff does not establish prejudice, as Defendant carries no absolute right to litigate claims not
arising under federal law in federal court. Additionally, at this stage, any arguments regarding
Plaintiff’s plans to re-file are wholly speculative. Defendant has not elaborated upon the basis of
any alleged prejudice beyond mere contention, and we cannot state with certainty: (1) that
Plaintiff will, in fact, re-file this action; (2) where Plaintiff may choose to re-file; (3) what
evidentiary standards may apply in Plaintiff’s forum of choice; and (4) whether Plaintiff will
successfully join a collective action. Without a factual basis for Defendant’s arguments, we
cannot find that our granting Plaintiff’s Motion will result in plain legal prejudice to Defendant.
For the reasons set forth above, it is hereby ORDERED that Plaintiff’s Motion for
Voluntary Dismissal (Doc. No. 33) is GRANTED3 and Defendant’s Motion to Transfer (Doc.
No. 29) is DENIED as moot.
BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.
Defendant specifically asserts that Plaintiff may select a forum that has a more lenient standard for the admissibility
of expert evidence, than the standard set out in the Federal Rules of Evidence and elaborated upon in Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
Although the district court, upon granting a voluntary dismissal under Rule 41(a)(2), is authorized to impose such
terms and conditions at it seems proper, we decline to impose any such terms or conditions in this case.
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