United States District Court, S.D. New York
November 5, 2004.
MICHAEL RUTH, Plaintiff,
THE PURDUE PHARMA CO., et al., Defendants.
The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
OPINION AND ORDER
Plaintiff filed this personal injury action seeking damages for
addiction and other disorders allegedly resulting from
consumption of the prescription drug OxyContin. Jurisdiction is
predicated on diversity of citizenship. After an answer had been
filed, plaintiff moved to dismiss his action without prejudice
pursuant to Fed.R. Civ. P. 41(a)(2). Defendants oppose the
motion, at least to the extent of urging that the Court exercise
its discretion under that rule to dismiss "upon such terms and
conditions as the court deems proper." Specifically, the
defendants request that upon dismissal the Court impose a
condition requiring that plaintiff refile his action if he
chooses to refile it at all only in a federal court.
Plaintiff's motion will be granted, and the case dismissed
without prejudice and without further conditions. Absent a stipulation joined by all parties, Fed.R. Civ. P.
41(a)(1)(ii), a federal action may be voluntary dismissed by
plaintiff after an answer has been filed only "upon order of the
court and upon such terms and conditions as the court deems
proper." Fed.R. Civ. P. 41(a)(2). Such dismissals are ordinarily
without prejudice, id., but a dismissal without prejudice "may
be conditioned upon the plaintiff fulfilling whatever terms and
conditions the district court, in its discretion, deems necessary
to offset the possible prejudice that the defendant may otherwise
suffer from the plaintiff dismissing his complaint without
prejudice." Woodzicka v. Artifex Ltd, 25 F. Supp. 2d 930, 934
(E.D. Wis. 1998). Reasonable conditions limiting where a case may
be refiled have been upheld on appeal as within that discretion.
Bowers v. St. Louis Southwestern Ry. Co., 668 F.2d 369, 370
(8th Cir. 1981); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700
(6th Cir. 1964).
Defendants argue that plaintiff's counsel has engaged in
"demonstrated gamesmanship with respect to forum selection in
this and other cases." (D. Mem. 2-3.) It is indisputable that
some process of forum-shopping is involved here. Plaintiff
himself points out that his attorneys represent more than 4,000
plaintiffs with OxyContin-related claims, which apparently have
been or will be filed in various federal and state courts around
the country. (P. Mem. 2.) Plaintiff proudly acknowledges that his
counsel are "exercis[ing] their professional judgment to bring
cases in appropriate fora deemed most likely to advance their
clients' interests." (P. Reply Mem. 2.) Indeed, it is clear that
just as plaintiffs have done what they can to bring cases in
sympathetic fora, defendants have reciprocated, removing cases
from state court or seeking to transfer venue, when they believe
that such is in their interests. (Id.) That, plaintiff
contends, is simply how the game is played. Plaintiff is correct that "our legal system has traditionally
deferred to the plaintiff's choice of forum," Gross v. British
Broadcasting Corporation, 386 F.3d 224, 230 (2d Cir. 2004), and
that choice is often, and properly, dictated by tactical
considerations. At the same time, the Court is sympathetic to
defendants' position that the maneuvering here is perplexing, as
it is hardly clear why this case was ever brought in this
district. The filing and withdrawing of claims for mysterious
tactical reasons smacks of harassment, imposes additional costs
on defendants, and raises suspicions of narrow-gauge judge
shopping. For example, defendants speculate that the filing of
some cases in this district was an effort to have the cases
assigned to Judge Sidney H. Stein, who had issued a ruling
adverse to defendants in a case that in fact had little to do
with this plaintiff's claims, and that the cases are now being
withdrawn because Judge Stein declined to accept the cases as
related. Plaintiffs are entitled to select a forum they perceive
as favorable, but they are not entitled to engage in exploratory
filings to test the waters, force defendants to incur expense,
and then reappear to try again at another location.
Nevertheless, despite the questionable nature of plaintiff's
maneuvers, and despite the risk that by frivolously flip-flopping
about his choice of forum plaintiff has imposed useless expense
on defendants, the Court declines to order the remedy proposed by
defendants, for three reasons. First, the claim that plaintiff's
short stint in this district was inappropriate and abusive is
entirely speculative, and defendants provide no actual evidence
in its support. Six Oxycontin cases have been filed here; only
three have apparently been attempted to be withdrawn.
Second, defendants' assertion that plaintiff is engaged in a
nationwide pattern of abuse is impossible to evaluate in the
context of a single case. The evidence indicates that both sides
in this legal battle are engaged in efforts to locate particular
cases in what are perceived to be favorable fora. There is no reason to believe that attaching
conditions to the dismissal of this particular plaintiff's
lawsuit in this district will have a significant or desirable
impact on the skirmish over appropriate fora being waged in
thousands of cases across the country.
Third, the particular remedy sought by defendants appears
arbitrary. Defendants agree to the dismissal of this case.
Defendants do not argue that the plaintiff should be confined to
this forum, which they agree does not appear ideal for this case.
(D. Mem. 5.) The Court is unable to discern any logical reason
why the proper remedy for any abuse plaintiff may be guilty of is
to confine him to a federal forum rather than to a state court.
Defendants seem to rely on the rationale that doing something
perceived as disadvantageous to plaintiff will deter him and
others from gamesmanship. But the federal courts are not to be
used as a penal colony for disbehaving litigants. Defendants
suggest no logical reason to believe that any federal court in
the country is more suitable forum for this litigation than any
state court. If plaintiff is permitted to withdraw his case
without prejudice to a refiling at another time and place, as
defendants agree he should be permitted to do, there is no
particular reason to limit his choice of forum in the manner
defendants prefer for their own tactical reasons.
No doubt at some point, enough of these maneuvers will have
occurred that some court will be able to detect a pattern,
articulate a rationale for selecting appropriate default fora,
and attach logically-conceived conditions to some future
dismissal, carefully tailored to advance the interests of
justice, and not the tactical advantages of one side or the
other. No such pattern has yet emerged.*fn1 Defendants have
not persuaded this Court that attaching venue limitations on a future refiling to the dismissal of this particular plaintiff's
case, out of all the thousands of similar cases being filed,
withdrawn, removed, or transferred around the country, will serve
the interests of justice.
Accordingly, plaintiff's motion is granted, and this action is
hereby dismissed without prejudice and without further conditions
pursuant to Fed.R. Civ. P. 41(a)(2).