United States District Court, S.D. Illinois
AMBER GRIFFIN, individually, and as parent and natural Guardian of J.G., a minor, Plaintiffs,
ABBOTT LABORATORIES and ABBVIE, INC., Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
before the Court is Plaintiffs' motion to dismiss filed
on January 27, 2017. (Doc. 11). On March 2, 2017, Defendants
filed a response asserting that the dismissal should be with
prejudice or subject to certain conditions if Plaintiffs seek
to refile their claims. (Doc. 12). For the reasons set forth
below, the dismissal is granted, without prejudice but
subject to the conditions set forth below.
claims asserted in this case are part of a mass action
involving more than 600 claims on behalf of minor Plaintiffs
who allege they suffered serious birth defects as a direct
result of exposure to Depakote, an anticonvulsant drug
marketed and sold by Defendants. The original claims were
filed in various Illinois state courts starting in late 2010.
Soon thereafter, Defendants removed the cases to federal
court pursuant to the Class Action Fairness Act in both the
Southern and Northern Districts of Illinois, a move that
Plaintiffs unsuccessfully challenged before the Seventh
Circuit. In re Abbott Labs., Inc., 698 F.3d 568 (7th
19, 2014, the mass tort was reassigned to the undersigned
District Judge from the docket of Judge David Herndon.
See (Case No. 12-CV-52, Doc. 288). The Court has
attempted to advance the prospects of settlement through,
among other things, the appointment of a dedicated mediator
and the bellwether trial approach. (Docs. 485; 439). After
almost two years of the bellwether trial process, including
multiple attempts to facilitate settlement, the Court issued
an Order noting the failure of the bellwether approach and
setting the litigation on a path towards the next phase in
the mass action. (Case No. 12-CV-52, Doc. 485). To gain a
better understanding of the docket, the Court began ordering
depositions of the key prescribing physicians in a number of
cases. (Case No. 12-CV-52, Doc. 485, p. 3). Given the
significant amount of information gained from each
deposition, the Court issued a second round of prescriber
depositions on October 31, 2016. (Case. No. 12-CV-52, Doc.
653). This case was among those selected for a key prescriber
deposition in the October 31, 2016 Order. (Case. No.
12-CV-52, Doc. 653-1. p.1).
seek a dismissal without prejudice based upon a lack of
“dispositive motions filed or burdensome discovery
undertaken in this action….” (Doc. 11, p. 3).
Defendants respond that dismissal should “be with
prejudice, or, at a minimum, be subject to appropriate
conditions…” (Doc. 12, p. 1).
plaintiff can voluntarily dismiss an action without a court
order if the defendant has not served an answer or motion for
summary judgment, or by the stipulation of both parties.
Fed.R.Civ.P. 41(a)(1). If the requirements of Rule 41(a)(1)
are not met, “an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court consider proper.” Fed.R.Civ.P. 41(a)(2).
dismissal without prejudice should be granted “unless
the defendant will suffer plain legal prejudice other than
the mere prospect of a second law suit.” Stern v.
Barnett, 452 F.2d 211, 213 (7th Cir. 1971) (internal
citation omitted). The Seventh Circuit has identified four
factors to aid a court in determining if the defendant will
suffer legal prejudice. The factors include: “the
defendant's effort and expense of preparation for trial,
excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action, insufficient explanation
for the need to take a dismissal, and the fact that a motion
for summary judgment has been filed by the defendant.”
Pace v. S. Exp. Co. 409 F.2d 331, 334 (7th Cir.
1969). The factors are not “a mandate that each and
every such factor be resolved in favor of the moving party
before dismissal is appropriate. It is rather simply a guide
for the trial judge, in whom the discretion ultimately
rests.” Tyco Labs., Inc. v. Koppers Co., Inc.,
627 F.2d 54, 56 (7th Cir. 1980).
dismissing an action without prejudice and imposing terms and
conditions in accordance with Rule 41(a)(2), “the terms
and conditions must be for the defendant's benefit. They
are the quid for the quo of allowing the plaintiff to dismiss
his suit without being prevented by the doctrine of res
judicata from bringing the same suit again.”
McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir.
1985). If a court imposes terms and conditions in accordance
with Rule 41(a)(2), a plaintiff seeking dismissal without
prejudice is not required to accept those conditions and
instead has “the option of withdrawing his
motion…and proceeding instead to trial on the
merits.” Marlow v. Winston & Strawn, 19
F.3d 300, 304 (7th Cir. 1994). If the terms and conditions
imposed by a court are accepted, and a claim is dismissed
without prejudice, a subsequent violation of those terms will
“convert [the] dismissal without prejudice into a
dismissal with prejudice.” McCall-Bey, 777
F.2d at 1184.
the Pace factors, it is clear that Defendants would
suffer prejudice if an unconditional dismissal without
prejudice were ordered. Plaintiffs assert that
Defendants' “efforts and expense in preparation for
the trial are minimal, if any” because “no
depositions or written discovery has been completed in this
case [and] no trial date has been set.” (Doc. 11, p.
2). Plaintiffs' narrow view may be technically correct in
that no specific discovery has been completed and a trial
date has not been issued, however, such an assertion fails to
appreciate the collective effort, resources, and time spent
in advancing the Depakote mass action.
have been required to litigate a variety of issues in the
name of advancing the mass action litigation. While
Plaintiffs' brief might attempt to paint a picture that
nothing has occurred in this case, the following is a
non-exclusive list of actions taken that have advanced the
claims in this case (along with every other case in the
Depakote mass action):
1) Establishment of docketing and filing procedure. (Case No.
12-CV-52, Doc. 560).
2) Over 40 discovery hearings and status conferences before
Magistrate Judge Williams where the Court, among other
things, established policy and procedures to manage
reoccurring discovery issues in the mass action. See
e.g., (Case No. 12-CV-52, Docs. 912; 827; 764; 726; 710;
684; 664; 637; 554; 536; 515; 491; 481; 462; 449; 441; 434;
431; 428; 423; 414; 396; 390; 378; 372; 369; 357; 343; 340;
325; 314; 312; 270; 262; 255; 248; 242; 238; 227; 223; 209;
199; 189; 180; 172).
3) Briefing and argument on global issues including choice of
law, subject matter jurisdiction, and the ...