When a plaintiff seeks to voluntarily dismiss her claim against a defendant, the initial reaction by the defendant may be to simply permit such a dismissal and let the parties go their respective ways. But a recent decision in the Depakote class action shows that plaintiffs and defendants alike may want to give serious consideration to the timing and manner of dismissals.
In re Depakote is a class action pending in the Southern District of Illinois, wherein nearly 600 plaintiffs have alleged that use of the neurological medication Depakote caused severe birth defects. In 2010, the plaintiffs began filing their state-court claims; thereafter, the cases were removed to federal court and the class was certified. The Depakote court established a bellwether trial process, ordered depositions of key witnesses, and identified cases for full discovery work-up in preparation for trial. After discovery proceeded for several years, the court began slotting cases for trial on 2018 dockets. Just months before the trials were set to begin, the plaintiffs sought to dismiss without prejudice five of the trial-set cases.
Although the court had granted other plaintiffs' dismissals without prejudice, it refused to do so here, noting that with respect to these five plaintiffs, granting dismissals without prejudice would result in severe prejudice to the defendants. Mem. and Order, In re Depakote, No. 12-CV-52-NJR-SCW (S. Dist. Ill. Oct. 10, 2017). The court gave the plaintiffs two options: dismiss the claims with prejudice or try their cases. Otherwise, remaining class members would get full advantage of the time and costs expended by the defendants and the court in facilitating the discovery process. Id. at pp. 7–8.
The court used the Pace factors as guidance in determining if the defendants would be prejudiced by the dismissals. The Pace factors are: (1) the effort and expense incurred by the defendant in preparation for trial; (2) the plaintiff's delay or lack of diligence in prosecuting her claim; (3) whether there is a sufficient explanation for dismissing the claim; and (4) whether the defendant has filed summary judgment motions. Pace v. Express Co., 409 F.2d 331, 334 (7th Cir. 1969).