Mentor removed the case to federal court, prompting the plaintiff to move to remand. The district court denied the plaintiff’s motion to remand as to Mentor, dismissed the surgery center, and severed and remanded the extraneous motor vehicle accident claim to state court. Mentor moved to dismiss on preemption because the implants were subject to an investigational device exemption (IDE). The plaintiff alleged in her amended petition and in her opposition briefing that she had not been in a clinical trial when she received her Mentor implants in 2000: “. . . and the implants and plaintiff were not being carefully controlled in any clinical trials for breast implants . . . at the time.” The district court denied the motion to dismiss because it had to credit, on a motion to dismiss, the plaintiff’s allegation that she did not receive her implants through an IDE clinical trial.
Here, things got dicey. Mentor located the plaintiff’s clinical trial patient file—which directly contradicted the allegations in the plaintiff’s amended petition and motion to dismiss opposition—and provided it to the plaintiff’s counsel with a request, under Rule 11, to amend the plaintiff’s petition to remove the false allegations. The plaintiff refused.
In advance of the Rule 16 scheduling conference, Mentor indicated its intent to notify the court that the plaintiff had in fact been enrolled in Mentor’s Adjunct Study and had signed various papers agreeing to participate in the clinical trial, including an extensive informed consent form approved by the Food and Drug Administration. Three days before a joint status report was due to the court, and in which Mentor would inform the court of the plaintiff’s misstatements, the plaintiff filed a perfunctory two-paragraph motion to dismiss, which indicated the plaintiff’s desire to dismiss without prejudice, citing that the case was in its infancy before discovery had been conducted and therefore neither party would be prejudiced by the dismissal.
Sensing that the plaintiff was attempting to escape federal court and the difficult questions that would ultimately arise at the upcoming status conference, Mentor opposed the plaintiff’s motion for voluntary dismissal without prejudice. Mentor argued that, under Eighth Circuit law construing Rule 41, the plaintiff was required to provide a proper explanation for dismissal. Given the timing and that the plaintiff was now on notice that her allegation that she was not in an IDE clinical trial was false, which would remove the one fact preventing dismissal on preemption at the motion to dismiss stage, it could be inferred that the plaintiff’s motive was to escape an inevitable adverse decision in federal court. Mentor expressly requested dismissal with prejudice, given that Mentor would have been entitled to dismissal, absent plaintiff’s the false allegation: “More importantly, Mentor placed Plaintiff on notice that the allegations in her Amended Petition on which the Court based its denial of Mentor’s Motion to Dismiss are demonstrably untrue and her claim against Mentor is subject to dismissal on preemption; i.e., any dismissal should properly be with prejudice.”
In the alternative, Mentor requested that the district court impose terms and conditions that the plaintiff pay a portion of Mentor’s attorney fees and costs incurred thus far if she re-filed. Notably, the same judge imposed similar terms and conditions in a case a decade earlier in which a plaintiff similarly sought to dismiss without prejudice. See Heitert v. Mentor Corp., 2007 WL 4051644 (E.D. Mo. Nov. 15, 2007) (Hamilton, J.). The district court ordered the plaintiff to pay Mentor $8,000 if she re-filed; she never did.
The plaintiff’s one-page reply was little more than a restatement of her conclusory dismissal request and claimed to be complying with Mentor’s desire for dismissal of the case, albeit ignoring Mentor’s request for dismissal with prejudice. The plaintiff provided no explanation why she suddenly wanted to dismiss and provided no credible response to the claim that she was seeking to avoid an inevitable adverse decision in an unfavorable forum. The plaintiff similarly offered no defense to Mentor’s assertion that in fact she had enrolled in Mentor’s Adjunct Study, as evidenced by her patient file and signature on the informed consent to be in a clinical study.
Then, to everyone’s surprise, the district court denied the plaintiff’s voluntary motion to dismiss without prejudice and instead dismissed the case with prejudice. Graham v. Mentor Worldwide LLC, No. 4:19-CV-01637 JCH, 2019 WL 4941012 (E.D. Mo. Oct. 8, 2019). The district court cited a long line of cases holding that voluntary dismissal without prejudice is inappropriate to escape an adverse decision or an unfavorable forum, especially—as here—when the plaintiff provides no explanation. The district court summarized its decision: “Upon weighing the relevant factors in this case—Plaintiff’s lack of proffered reasons for dismissal at this juncture, and Defendant’s concerns regarding prejudice—the Court will dismiss Plaintiff’s case with prejudice.”
Not surprisingly, the plaintiff appealed.
The Eighth Circuit Court of Appeals relied on the same long line of authority as the district court that prohibited a plaintiff from voluntarily dismissing without good cause to escape an adverse decision or seek a more favorable forum. Graham v. Mentor Worldwide LLC, 998 F.3d 800 (8th Cir. 2021). Because the plaintiff failed to give a reason, despite multiple opportunities to do so, Mentor argued that dismissal with prejudice was at issue and that the district court did not abuse its discretion in dismissing the complaint with prejudice. The plaintiff’s glaring omission trumped countervailing factors that the case was newly filed and no discovery had been conducted. Importantly, the Eighth Circuit found that the plaintiff’s failure to stipulate to return to federal court if she chose to continue litigating reinforced the inference that the plaintiff’s motive was to avoid an adverse judgment in an unfavorable forum (which it undoubtedly was).
The plaintiff’s continued failure to dispute, or even to address, Mentor’s arguments that it had confronted her with her patient clinical study file likewise loomed large in the appellate court’s analysis. The plaintiff’s stubborn refusal to acknowledge that fact and her dogged attempts to be in state court rather than federal court—including fraudulently joining the nondiverse surgery center, mis-joining the nondiverse driver of the vehicle that rear-ended her, moving to remand, and moving to dismiss without prejudice—all pointed to one inescapable conclusion: The plaintiff simply wanted to get out of federal court to re-file in St. Louis County Circuit Court. Of course, she could not admit that to the district court. She never addressed it on appeal either.
The district court’s dismissal with prejudice presented an issue of first impression. The Eighth Circuit reversed a dismissal with prejudice in a somewhat similar situation in Jaramillo v. Burkhart, 59 F.3d 78 (8th Cir. 1995), but also recognized that “Rule 41(a)(2) implicitly permits the district court to dismiss an action with prejudice in response to a plaintiff’s motion for dismissal without prejudice.” Id. at 79. There, although the defendant asked for dismissal with prejudice in response to the plaintiff’s motion for dismissal without prejudice, the court held that the plaintiff had not been given notice of the district court’s intent to dismiss with prejudice: “When a plaintiff requests dismissal without prejudice and the district court intends to dismiss with prejudice, however, the district court must give the plaintiff notice of its intention and a chance with withdraw the request and proceed with litigation.” Id. Notably, the Jaramillo district court did not give any reasons for its decision.
The district court in Graham, however, observed that the plaintiff was on notice from Mentor’s opposition that dismissal with prejudice was a possibility. The plaintiff had many opportunities to explain why she should be allowed to dismiss without prejudice but never did—not in her motion, in her reply, in her motion for reconsideration, or even on appeal. In addition, the plaintiff only ever requested that the case be dismissed without prejudice; she never indicated any desire to return to federal court and proceed. These differences distinguished Graham from Jaramillo in the eyes of the Eighth Circuit. See James M. Beck, “Plaintiff Couldn’t Run—Or Hide,” Drug & Device Law Blog, Sept. 13, 2021.
A defendant should not allow a plaintiff with an unmeritorious case to dismiss voluntarily with an untrammeled right to re-file in state court. Oppose the voluntary dismissal vigorously, unmask the plaintiff’s true motive, and ask for dismissal with prejudice as an alternative to simply requesting that the court set terms and conditions of the dismissal to mitigate prejudice. In Graham, the district court clearly saw that the plaintiff was engaging in gamesmanship in a case she knew she should lose, and the court did not like it. Sometimes a defendant simply needs to ask for the relief it believes is warranted.