United States District Court, S.D. New York
January 16, 2004.
In re: REZULIN PRODUCTS LIABILITY LITIGATION, This Document Relates to: 00 Civ. 7052, 00 Civ. 8078, 01 Civ. 0052, 01 Civ. 0053, 01 Civ. 0054, 01 Civ. 0056, 01 Civ. 0057, 01 Civ. 1715
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
PRETRIAL ORDER NO. 222
(Motions for Voluntary Dismissal)
move under Rule 41 to dismiss their actions
without prejudice. The applications assign no factual or legal grounds
for the relief sought save that "[t]here is no pending Motion for Summary
Judgment filed by the defendant."*fn2
Defendants oppose these
applications as ploys to avoid discovery in this MDL, more specifically
the plaintiffs' depositions, which are scheduled to begin next week. The
motions are denied.
These actions were filed in 2000 over three years ago
in the District of Puerto Rico on behalf of 158 plaintiffs and thence
transferred to this Court. Issue was joined in all the actions before the
transfers. Discovery has been ongoing and the plaintiffs' depositions are
scheduled to begin next week.
That no summary judgment motions have been filed, while true, is
besides the point. Significant here is that all fifteen plaintiffs are
scheduled to be deposed starting next week and that
these applications materialized promptly after defendants served
the deposition notices.*fn3
In the circumstances it seems perfectly clear that these plaintiffs
have decided to abandon their federal actions because they doubt that
their evidence will withstand the scrutiny of the discovery process,
while leaving open the possibility the applications seek
dismissal without prejudice of pressing their claims in state
court. Consistent with its prior rulings on similar motions, (e.g., PTO
77, PTO 214), the Court finds no reason why it should indulge such
impulses to avoid litigation on the merits after so much effort has been
expended, or to circumvent the MDL process.
These applications are inexcusably defective in other respects.
Plaintiffs' counsel appears not to have applied for admission pro hac
vice to this Court. Second, plaintiffs' counsel sent originals of
the 15 applications to Chambers instead of filing them with the Clerk of
the Court, as required by the Federal Rules of Civil Procedure and the
Court's prior orders (PTO 158), while failing to furnish two courtesy
copies to Chambers. While the Court does not rely on these factors in
denying the relief sought here, counsel is strongly advised to adhere to
the Court's prior orders and applicable laws in the future.
The motions are denied. The Court again reiterates its prior warning
(PTO 96) that it will be alert to any sanctionable behavior that is
revealed by such applications.