Vernon Thompson, Jr. v. Janssen Pharmaceuticals, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2019
• Docket: 17-56769
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VERNON A. THOMPSON, JR. and No. 17-56769 FLORIA M. GRIFFIN, D.C. No. Plaintiffs-Appellants, 2:16-cv-02628-PSG-AGR

v. MEMORANDUM* JANSSEN PHARMACEUTICALS, INC. a/k/a ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC., and JOHNSON & JOHNSON, INC.

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Phillip S. Gutierrez, District Judge, Presiding

Submitted March 5, 2019** Pasadena, California

Before: FERNANDEZ and OWENS, Circuit Judges, and DONATO,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. Plaintiffs Vernon A. Thompson, Jr. and his mother, Floria M. Griffin,

(together, “Thompson”) appeal from the district court’s order denying their motion

for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2). The

district court also granted summary judgment in favor of defendants Janssen

Pharmaceuticals, Inc. and Johnson & Johnson (together, “Janssen”), but Thompson

does not appeal the summary judgment order. We have jurisdiction pursuant to 28

U.S.C. § 1291. We affirm.

We have “long held that the decision to grant a voluntary dismissal under

Rule 41(a)(2) is addressed to the sound discretion of the District Court, and its

order will not be reversed unless the District Court has abused its discretion.”

Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982).

When ruling on a motion for voluntary dismissal without prejudice, the district

court “must determine whether the defendant will suffer some plain legal prejudice

as a result of the dismissal.” Westlands Water Dist. v. United States, 100 F.3d 94,

96 (9th Cir. 1996) (citations omitted). Legal prejudice is “prejudice to some legal

interest, some legal claim, [or] some legal argument.” Id. at 97. A district court

may consider whether the plaintiff has asked for a voluntary dismissal to avoid a

likely adverse ruling. Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988).

Here, the district court considered permissible factors in evaluating prejudice

and denying the Rule 41(a)(2) motion. The district court found that granting the

2 motion might require Janssen to face litigation on this claim in state court although

it had already engaged in substantial discovery and reached the summary judgment

stage in federal court. The district court noted that Thompson had offered no

expert disclosures or expert reports to support his product liability claims against

Janssen, and filed the Rule 41(a)(2) motion only after becoming aware that Janssen

would seek summary judgment. The district court also found that Thompson had

not adequately explained why he delayed so long in requesting a voluntary

dismissal to refile in a similar state court proceeding that he had known about for

many months. Because the district court’s determinations were not based on an

erroneous view of the law or a clearly erroneous assessment of the facts, it did not

abuse its discretion.

AFFIRMED.