UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF ILLINOIS
November 25, 2008
DONNA MYLER, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED. PLAINTIFF,
PFIZER, INC., DEFENDANT.
The opinion of the court was delivered by: Reagan, District Judge
On August 8, 2008, Donna Myler commenced a class action against Defendant Pfizer, Inc., alleging that Pfizer conspired to conceal facts and evidence regarding the dangerous side effects of the prescription drug Chantix. On November 21, 2008, Plaintiff filed a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure (Doc. 23). Although attorneys have appeared on Pfizer's behalf, no answer or motion for summary judgment has been filed to date.
Rule 23 of the Federal Rules of Civil Procedure provides that "[t]he court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class." FED.R.CIV.P. 23(e)(1)(A). "[T]he 2003 amendments make clear that Rule 23 ... only applies to the 'claims, issues, or defenses of a certified class.' Thus, settlements or voluntary dismissals that occur before class certification are outside the scope of [Rule 23]." 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1797 (3d ed. 1998 & Supp. 2006) (footnote omitted); see Buller v. Owner Operator Independent Driver Risk Retention Group, Inc., 461 F.Supp.2d 757, 764 (S.D.Ill. 2006). Because no class has been certified in the case at bar, voluntary dismissal in this instance is governed not by Rule 23 but by Rule 41 of the Federal Rules of Civil Procedure.
Rule 41 provides, in pertinent part, "an action may be dismissed by the plaintiff without order of court ... by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." FED.R.CIV.P. 41(a)(1)(i). "Unless otherwise stated in the notice of dismissal ..., the dismissal is without prejudice." Id. Because Pfizer has filed no answer or motion for summary judgment, voluntary dismissal of this action is permitted under Rule 41(a).
Accordingly, the Court DISMISSES this case, pursuant to FEDERAL RULE OF CIVIL PROCEDURE 41(a). Dismissal shall be without prejudice. The Clerk of Court is DIRECTED to close the file in this case.
IT IS SO ORDERED.
MICHAEL J. REAGAN United States District Judge
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