Pontenberg v. Boston Scientific Corp.

• Decision Date: 30 May 2001
• Docket Number: No. 00-16656,00-16656
• Citation: 252 F.3d 1253
• Parties: (11th Cir. 2001) BETH B. PONTENBERG, Plaintiff-Appellee, v. BOSTON SCIENTIFIC CORPORATION, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1253

252 F.3d 1253 (11th Cir. 2001)

BETH B. PONTENBERG, Plaintiff-Appellee, v. BOSTON SCIENTIFIC CORPORATION, Defendant-Appellant.

No. 00-16656

Non-Argument Calendar.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

May 30, 2001.

Appeal from the United States District Court for the Middle District of Florida. D. C. Docket No. 99-02516-CV-T-25B

Before ANDERSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Defendant Boston Scientific Corporation ("Boston Scientific") appeals the district court's order permitting the plaintiff Beth Pontenberg to dismiss voluntarily her product liability action. Boston Scientific contends that the district court abused its discretion in dismissing the complaint without prejudice because discovery had expired and Boston Scientific had filed a motion for summary judgment. After review, we affirm.

I. FACTUAL BACKGROUND

On September 27, 1999, Beth Pontenberg filed this product liability action against Boston Scientific in a Florida state court. Boston Scientific is the manufacturer of a implanted medical device, called a ProteGen sling, which is designed to treat female urinary incontinence. This medical device was surgically implanted in Pontenberg and, according to Pontenberg, subsequently caused an infection to develop. Pontenberg alleged that Boston Scientific negligently designed and manufactured the device, breached its implied warranty of fitness, and was strictly liable.

Boston Scientific removed the action to federal court pursuant to 28 U.S.C. §§ 1332 and 1441. On March 15, 2000, the district court entered a case management and scheduling order, which required the parties to make Rule 26 expert witness disclosures simultaneously on September 1, 2000. The district court also designated October 2, 2000 as the expiration of the discovery period, imposed a deadline of November 2, 2000 for filing dispositive motions, and set a trial date of April 30, 2001. On September 1, 2000, Boston Scientific delivered to Pontenberg an expert witness disclosure that fully complied with Rule 26. Pontenberg's expert witness disclosure, on the other hand, was inadequate.

Consequently, on September 13, 2000, Boston Scientific moved to strike Pontenberg's expert witnesses. The district court held a hearing on the motion to strike on October 19, 2000, after which it granted the motion and struck Pontenberg's experts. On November 2, 2000, Boston Scientific moved for summary judgment, arguing that, since Pontenberg's expert witnesses had been struck, she could not establish her prima facie case.

Pontenberg did not respond to the motion. Instead, on November 27, 2000, she filed a notice of voluntary dismissal without prejudice. Over Boston Scientific's objection, the district court entered an order permitting Pontenberg to dismiss her action without prejudice and denying as moot Boston Scientific's summary judgment motion. Boston Scientific appealed.

II. DISCUSSION

On appeal, Boston Scientific argues that the district court abused its discretion when it concluded that Boston Scientific had failed to demonstrate clear legal prejudice and dismissed Pontenberg's action under Federal Rule of Civil Procedure 41(a)(2). Rule 41governs the ability of a plaintiff to dismiss an action voluntarily and without prejudice. Rule 41(a)(1) permits a plaintiff to dismiss voluntarily an action without prejudice without first seeking leave from the court as long as the defendant has not yet filed either an answer or a motion for summary judgment, whichever occurs first. Once an answer or a summary judgment motion has been filed, Rule 41(a)(2) permits a plaintiff to dismiss voluntarily an action 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 a voluntary dismissal upon order of the court is also deemed without prejudice unless otherwise specified by the court.

The district court enjoys broad discretion in determining whether to allow a voluntary dismissal under Rule 41(a)(2). McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir. 1986). "[I]n most cases, a voluntary dismissal should be granted unless the defendant will suffer clear legal prejudice, other then the mere prospect of a subsequent lawsuit, as a result." Id. at 856-57. "The crucial question to be determined is, Would the defendant lose any substantial right by the dismissal." Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967). In exercising its "broad equitable discretion under Rule 41(a)(2)," the district court must "weigh the relevant equities and do justice between the parties in each case, imposing such costs and attaching such conditions to the dismissal as are deemed appropriate." McCants, 781 F.2d at 857. Accordingly, we review a district court's decision to allow a voluntary dismissal without prejudice under Rule 41(a)(2) only for an abuse of discretion. Id.

Pontenberg sought to dismiss her action against Boston Scientific after the discovery period had expired and after her expert reports had been excluded from the record as a result of her attorney's failure to timely comply with the expert disclosure requirements of Rule 26. Boston Scientific objected to a voluntary dismissal without prejudice. Boston Scientific claimed that a dismissal without prejudice was inappropriate at this juncture in the litigation because it had invested considerable resources, financial and otherwise, in defending the action, including by preparing the then pending summary judgment motion. Additionally, Boston Scientific argued that dismissal without prejudice was improper because Pontenberg had failed to diligently prosecute the action.¹

The district court found that Boston Scientific had failed to identify "clear legal prejudice" and granted Pontenberg's request. Although the district court found dismissal appropriate, it ordered that the court "should assess costs against Plaintiff pursuant to Fed. R. Civ. P. 41(d)" if Pontenberg re-files her action against Boston Scientific.²

We find that the district court did not abuse its broad discretion in allowing Pontenberg to dismiss voluntarily her action against Boston Scientific without prejudice under Rule 42(a)(2). Neither the fact that the litigation has proceeded to the summary judgment stage nor the fact that the plaintiff's attorney has been negligent in prosecuting the case, alone or together, conclusively or per se establishes plain legal prejudice requiring the denial of a motion to dismiss. See Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967).

In Durham v. Florida East Coast Railway Co., the plaintiff filed suit under the Federal Employers' Liability Act alleging that the railroad he worked for had been contributorily negligent by failing to provide a safe workplace. When the case was called for trial, however, the plaintiff made an oral motion for leave to amend his complaint to include a claim under the Federal Safety Appliance Act, which permitted recovery without regard to contributory negligence. The plaintiff contended that he had discovered new evidence to support the additional claim. Id. at 367. The district court denied the motion, finding that the evidence was not new evidence but information provided by the plaintiff. Following this ruling, counsel for the plaintiff announced that he could not proceed with trial, and the district court dismissed the action with prejudice.

Our predecessor circuit reversed, holding that the district court had abused its discretion in dismissing the complaint with prejudice. The court recognized that the plaintiff's counsel may have been negligent in failing to discover the evidence sooner, but found it significant that there was no evidence of bad faith on the part of the plaintiff's counsel. Id. at 368; see also McCants v. Ford Motor Company, 781 F.2d 855, 858 (11th Cir. 1986) (discussing Durham and finding no evidence that plaintiff's counsel had acted in bad faith). The court therefore declined to "visit the sins of the lawyer upon his client," and stated that it considered the counsel's negligence "insufficient to justify dismissal of the complaint with prejudice." Id. at 367, 368. The court concluded that the "record does not disclose any prejudice to the defendant, had a voluntary dismissal been granted, other then the annoyance of a second litigation upon the same subject matter." Id. at 369. The Court remanded the action for further proceedings, noting that "[o]n proper motion the complaint may be dismissed without prejudice upon such terms and conditions as the court deems proper." Id.

Boston Scientific attempts to distinguish Durham by arguing that, unlike in the record in Durham, the record here indicates that Pontenberg's counsel acted in bad faith. In support of bad faith, Boston Scientific emphasizes that Pontenberg failed to conduct any timely discovery, failed to disclose properly expert witnesses, and sought voluntary dismissal only after Boston Scientific had moved for summary judgment and she had failed to respond to the summary judgment motion. Contrary to this argument, the district court found that Pontenberg's counsel had not acted in bad faith in failing to make adequate disclosure.³ Indeed, it is clear from the transcript of the hearing on Boston Scientific's motion to strike that the district court attributed Pontenberg's noncompliance with Rule 26 to her attorney's inattention rather than by design. The record in the district court supports this finding.

Furthermore, Boston Scientific's assertion of clear legal prejudice lacks merit. We decline to adopt a per se rule that the pendency of a summary judgment motion precludes a district court from granting a Rule 41(a)(2) voluntary dismissal without prejudice. Rule 41(a) expressly contemplates situations in which the district court may, in its discretion, dismiss an action without prejudice even after the defendant has...