Stephen G. Conafay, an Infant, by His Father and Next Friend Stephen R. Conafay v. Wyeth Laboratories, a Division of American Home Products Corp.
793 F.2d 350
D.C. Cir.
1986
Check Treatment

*2 gist summary ment. The judgment WALD, STARR, Before SCALIA and motion was that Dr. had testified Judges. Circuit deposition his that when he decided to vac- Opinion for by Casey fully the Court filed cinate he was Circuit aware of the Judge STARR. contraindications and attendant risks plaintiffs use of DPT vaccine and thus that Dissenting opinion by Judge filed Circuit inadequate warnings could not show that SCALIA. Wyeth Casey. injury caused the STARR, Judge: Wyeth’s While Stephen son, R. Conafay his infant pending, appellants’ motion was well as as Stephen Conafay (“Casey”), G. suit in filed discovery, further the District 1983, alleg- federal district court March appellants’ Court denied motion to dismiss Casey ing injured as a result the action. No reasons were stated for diptheria-tetanus- action, his vaccination with a nor authorities cited. With the pertussis (“DTP”) litigation by proceed vaccine manufactured thus destined in feder- (1) 41(a) provides, perti- Paragraph requirement judicial approval of Rule and the part, provision court-imposed nent that "an be dismissed action conditions in- (and order without ... at tended to curb the abuses at common law party practice) automatically granting time before service the adverse federal summary judg- anytime an answer of a motion for dismissals before verdict was Paragraph “[ejxcept Barge ment.” states as rendered. See Ockert v. Union Line (3d Cir.1951); provided paragraph an action shall ... 9 C. &A. not be dismissed at instance save Federal Practice and Procedure: Civil Electrotype § order the court and such terms 2363 at 152 American cf. Kerschbaum, proper.” and conditions as the court deems Co. v. Ong, Appellants filed their motion to dismiss court, al re- granted part early stage litigation: relatively at a discovery.2 engage in further quest three months before depositions of discovery, namely the That completion discovery. This deadline 30(b)(6) representatives cry is therefore a far from cases where *3 place in then took designated by Wyeth, completed, discovery e.g., see Fer- parties subsequently 1984. Both April (3d Eakle, 26, guson F.2d 28-29 in connec- supplemental filed submissions Cir.1974) (motion to filed two dismiss Wyeth’s mo- with tion the court’s deadline for com- months after judice remained sub The matter then pletion discovery), or a motion for sum- Court, the District March when until see, pending, mary judgment already was Wyeth’s opinion, granted mo- a written Co., 409 e.g., Express Pace v. Southern summary appeal This judgment. tion for Cir.1969), F.2d 331 the action had or followed. trial, proceeded to Williams consideration, we choose careful After Co., Ford Motor Credit the juncture at merits to resolve this not Cir.1980). Here, contrary, the the to at disposition of the sum- appellants time moved to dis- Instead, we con- mary judgment motion. Wyeth had even filed its miss the case only issue whether the the threshold sider summary much judgment, initial motion within dis- properly acted its District Court supplemental less its submissions.3 appellants’ motion to denying cretion dismiss, moreover, filed motion to was specific In the factual the action. dismiss Casey’s parents reviewed promptly after case, however, setting legal of this and Ong’s testimony Dr. transcript to resolve that issue find ourselves unable determined, reluctantly, their son’s benefit of a statement of rea- without the treating joined as a pediatrician should for its by the decision sons District Thus, party litigation.4 defendant denying the motion. 2. We is well with the cation of waiver view of the demur, voluntary motion to dismiss dence advanced dismiss.” fendant waiver a plaintiff dict motion directed then, Moore’s Federal contrast, tion” of waiver "that the incriminating (Scalia, deny any appellate dismissal litigate contrast United single precedent supporting Moreover, presented. reject supporting established that a rule in States v. J., who chooses to verdict is case until to the appeal waives if a courts for a trial attacking 1985) the dissent's the defendant once Thus, merits. [plaintiffs evidence subject analysis, dissent, from that unanimous court's principles. dissent’s Practice, will Foster, (citing ill-conceived. setting review of final objection plaintiffs case not blind themselves Our research reveals not to the “conventional denial of the motion to respond, introduced & Lucas J. "plaintiff analogy to cases). or sufficiency of directed verdicts is judgment is judgment, obtain re- novel f prosecutor’s] en banc do not consequence To the result the issue. by proceeding this all the to A theory rather than sort may direcled-ver- denial of contrary, understand court). can be of the evi- at evidence entered, proceed the de- Id. that a 41-71 case.” appli- be to fic- re- In to a 4. Affidavit of granting depositions practical example, motion for taken denial of a 217 n. may rule. months after the motion appropriate is ments articulated motion to dismiss. ments though 1984. In that West Wyeth wish to do Nor child. ing nevertheless supplemental affect 41(a)(2) Virginia Pulp Contrary of an are we there (quoting I resisted an action relied effect, I did not wish Rules of Civil Procedures as the 67 S.Ct. plaintiffs summary judgment. the fairness "where the court believes of its action without a bona is a technical failure of what is in the best interest Stephen R. affidavit, to to persuaded by a meritorious claim.” boundless discretion Supreme Report submissions in grant to making part & own officials motion to dismiss support dissent’s Paper Mr. on the Rule Conafay, January Court has dismiss authorize a determination the outcome. Conafay slated: n. motion Proposed Co., a assertions, general support 91 L.Ed. 849 was policy (taken proof there to dismiss fide basis. because to indicated, Court, filed) 30(b)(6) Amend- Cone v. that al- deny waiver a mis- bring- of its argu- five 64). For my a eases). presented By we are not with a situation virtue of the District Court’s provide silence, failed where we cannot tell whether the court explana- District Court a reasonable embracing was view that voluntarily. tion for its motion maneuvering” Wyeth’s “tactical incon- Williams, Compare 627 F.2d at 159-60. of defending venience the lawsuit else- public favoring contrary, policy To the where alone sufficed to warrant the contin- disposition controversy of a whole at jurisdiction ued exercise of federal over recog- one time in one action is well private civilaction. Defendant’s State- 20(a) (permitting nized. ment Points in Opposi- Authorities joinder subject of all defendants to claim tion to Plaintiffs’ at 2 (arguing Motion occurrence); arising out the same C. plaintiffs’ maneuvering” “tactical warrant- & A. Federal Practice & dismiss). ed denial of their motion to (1972). 1652 at 264-266 Procedure: Civil § *4 practice, In federal voluntary dismissals arbitrary by An refusal the District Court sought good ordinarily granted faith are appellants permit dis- only harm by suffered the defendant join Ong miss the order to Dr. action expense is the of preparing responsive unjustifiably compel ap- state court would pleading, since “he can made be whole if pellants separate actions and dismissal is conditioned reimburse- thereby squander judicial limited resources. by Note, plaintiff.” ment Exercise Agent Orange Liability In re Product Cf. Permitting Discretion (E.D.N.Y. Dismissals F.Supp. Litigation, 544 810 Prejudice Without 1982) (in Under Federal exercising Rule its discretion under 41(a), (1954) 54 618 41(a)(2) (citing district court “must consider Col.L.Rev. (citation cases). equities parties”) record, however, all On this omit- we are ted). unable determine whether court even establishing considered whether terms and circumstances, Under these it is obvi- as expressly by conditions authorized applicable ous to ús legal principles Rule, including imposition of costs and that motion to dismiss should attorneys’ fees, (oth- would “alleviate harm assaying have been denied. Without disadvantage) er than tactical that the de- lengths depths and decisional law this fendant suffer if the motion respect adopting general [would] and any [to granted.” McLaughlin Circuit, rule v. simply were] of law for this ob- Cheshire, (D.C.Cir.1982); 676 F.2d 856 generally serve that dismissals have been granted in the federal courts unless the Kern TXO Production cf. (8th Cir.1984) (decision defendant suffer prejudice other F.2d prospect than the of a second lawsuit or 41(a)(2) Court District under Fed.R.Civ.P. disadvantage. some generally tactical must be reversed “when a relevant factor 5 J. Lucas & Moore’s given that should significant have been Federal Practice H at 41-62 considered”).5 weight is not 1985) (citing cases); 9 C. & A. We have Federal Practice and Proce- held in other contexts that (1971) (citing dure: 2364 at Civil promote statements reasons § rea- missal, Ong only finally I decided purposes 8. to sue Dr. we assume its truth of our . analysis my after I consulted with after I wife and transcript Ong’stestimony reviewed Dr. Court, plaintiffs Before District offered to and discussed matter with friends close stipulate discovery that all undertaken in the only study It was counsel. after such federal action could be utilized in subse- I consultation that came to the decision that quent local action the defendants. named. This was Response Plaintiffs’ Memorandum in to Defend- middle of November 1983. Opposition ant’s Points and Filed Authorities Because the District Court made no factual Voluntary to Plaintiffs’ Motion for Dismissal at findings regard good appel with faith Laboratories, Tyco Koppers Inc. Com- Cf. lants’ of their decision seek dis (7th Cir.1980). pany, 627 F.2d SCALIA, Judge, dissenting: district exercise of discretion soned appellate review and facilitate courts present merits would reach the See, Re Pope, In decisions. such appeal. byWe 41(a) Subparagraph of requirement of a per se means erect delimiting period sets forth the line setting of Rule statement during plaintiff in which the federal district 41(a)(2); but, limitedly, per- we are more automatically court can achieve specific circumstanc- that under the suaded dismissal—the of an or of a answer (which readily do not fall presented to us es summary judgment. Once that prior precedents where within crossed, subparagraph line has been denied), been to dismiss have provides dismissal can effected determine, without a state- properly “order of the court such terms reasons, ment of whether proper.” and conditions as deems (state- abused discretion. See id. agree I do not with those decisions in other when the basis of reasons is essential ment circuits which assert the district discretionary determination of the 41(a)(2) grant must dismissal unless it inferred from the Court “cannot be District prejudice would result in substantial to the certainty”); record reasonable defendant other than second lawsuit Inc., LeCompte Chip, 528 F.2d v. Mr. also view, disadvantage. my some tactical (5th Cir.1976); Collins v. Sea- cf. *5 suggests the Rule involved the work Co., 681 F.2d board Coastline Railroad filing developing an answer or a motion (11th Cir.1982).6 1335 We therefore enough for is to alone pro- the record with instructions to remand any to right eliminate dismis- for reasons the court’s determination. vide judge sal—so that the district can for that decide, reflection, Should deny the reason alone motion instead is then leave proper, that dismissal be merely conditioning payment this remand the to sought for court to case any If expenses. fees and there is restric- appropriate disposi- the District Court for (2), implicit subparagraph tion it is that order issue is some unless there why, despite affirmative reason So Ordered. 41.05(1] position supra, Lucas & J. at 41-50- The dissent advances the that the Dis Wicker, ¶ (rev. 1985). obligation provide never trict Court has an 41-52 2d ed. denying plaintiffs voluntary for mo reasons a Moreover, authority sole cited the dis- agree. dismiss. at 1. We cannot tion to Moreover, Dissent position inapposite. for is In Bodecker sent argument unpersuaded we are P-46, v. Local Union No. 640 F.2d 182 explanation require decision an that our Cir.1981), did not file their motion the circumstances of the District Court under day until the first trial. The Dis- dismiss practice is with our this case inconsistent expressly trict never on the dismis- ruled ruling explanation such without on matters as for the sal motion but held defendants Contrary for of time. Id. motions extension affirming opinion to its merits. In a footnote assertions, the District Court’s deci the dissent's merits, Eighth the District Court on the deny brought a sion to motion to Circuit observed both the eleventh-hour nature controversy ac to consolidate a into one order plaintiffs’ failure of the motion to dismiss and appel both did have substantial costs for tion appeal failure to to stress on (i.e., separate forcing them to lants actions) Eighth Circuit af- rule on the motion. view, judicial economy. and for our de of the firmed the District Court’s facto denial 41(a)(2) contemplates a more considered motion, but, interestingly light dissent's of the balancing equities than is called and subtle finding approach, without waiver of garden-variety a re when a court rules on for circumstances, objection. Under similar See, Kern, quest for an extension of time. result, might likely very for it reach same 970; Cynamid v. F.2d at American Co. 738 explana- an would be senseless to remand for McGhee, (5th Cir.1963); Ala F.2d deci- tion when the basis for the District Court’s Industries, Filene’s, v. F.2d mance Inc. (or reasonably patently sion is obvious at least denied, (1st Cir.), cert. 146-47 certain). Not so here. 5 J. S.Ct. 7 L.Ed.2d 33 Moore, summary judg- (enabling appeal answer or for him ensuing ad ment, voluntary appropriate. judgment) dismissal is verse proceeds but instead on litigate the merits. See v. Alston Bow- justi whatever But that can ins, 733 F.2d 163-64 fy district court’s denial of a Rule Queen Baker, Holiday Corp. Land v. dismissal, 41(a)(2) order of those reasons Cf. (5th Cir.1974) (denial of vol denial, specified in the need not be which untary dismissal reviewed where explanation. made Bo can be See forward); go not did Durham v. Florida P-46, v. Local No. 640 F.2d decker Union (5th Cir.1967) (8th Cir.1981). Ry., East Coast 186 n. 5 Not all exer (same). every policy There is reason supported by cises of discretion must be treating of reasons. This issues the two situations statements court alike—if indeed stronger to file innumerable orders—on motions there not even for apply reason pleadings explicitly permitted by our ing waiver egregious rule to less time, rules, on motions for extension of on less harmful of wrongfully error denied rehearing, agency on motions that, I am dismissal. aware as record, for remand of the to name points out, majority opinion Moore’s few—without of reasons. states rule Federal Practice demanding no basis for more of the otherwise, with no discussion other than (still assuming, If con district here. citation of authority. See 5 J. view, trary my preju that “substantial &J. Lucas Moore’s Federal Practice shown) judge must be dice” reasonable 1985). But none ¶ prejudice have found could substantial of the cases cited either discusses the waiv case, the facts can reverse point, holding rejecting er or constitutes a not, discretion; abuse the order waiver, since the denials dismissal were not, sure, sort of stand. That is uniformly upheld. Holmgren Mas fail-safe, superabundant protection Inc., 516 sey-Ferguson, Cir. prejudicial error that we to more accord 1975); Industries, Standard Inc. Mobil determinations; entirely but it seems to me (10th Cir.), Oil 475 F.2d *6 cert. adequate when is at issue what is whether denied, 414 U.S. 94 S.Ct. plaintiff required persist shall in a (1973); Armstrong L.Ed.2d v. Frostie course that he himself under Co., Cir.1971); La-Tex took now but wishes abandon over Div., Supply Co. Trailer Fruehauf objection already of a defendant who has (5th Cir.), denied, cert. put appreciable expense been a —and 942; 92 S.Ct. 30 L.Ed.2d 256 submitting course no more heinous than Lines, Gamer Missouri-Pacific adjudication by parties’ dispute Cir.1969). It seems to me that once impartial procedures fair and of a federal pursued has the matter to court. judgment, a that in way mistake affects Finally, if prejudice” even “substantial the fairness of the outcome or the court’s required if a statement of even parties jurisdiction over not be should establishing prejudice were the reasons work, invocable make the court’s later necessary in the circumstances here retroactively, leaving waste time— I presented, objec- not hear still claim, here, already adjudged fairly to be appellant, proceeded tions of this who litigated again squan elsewhere. Such a depositions take contest the motion dering judicial resources not be summary judgment after his motion allowed. treat a denied. would plaintiff’s motion for dismissal

like a defendant’s for directed ver- plaintiff’s case:

dict at conclusion objection

the movant’s denial is waived unwilling objection

he is to rest his