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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

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)
Fifteen plaintiffs*fn1 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 Page 2 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.

  SO ORDERED.


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