Loss of Valid Statute of Limitations Defense after Re-Filing Not a Bar to Dismissal Without Prejudice

U.S. District Court for the District of Maryland, June 12, 2020

Family members (plaintiffs) of the decedent Cynthia Cartwright alleged exposure to asbestos-containing talcum powder attributed to defendants Cyprus Amax Minerals Company, Avon Products Inc., and Johnson & Johnson Consumer Inc. (JJCI), which the plaintiffs claim resulted in the decedent’s fatal mesothelioma. The plaintiffs initially filed an action in Maryland, and JJCI moved to federal court.  Cyprus and Avon subsequently moved to dismiss based on personal jurisdiction, whereas JJCI moved for partial judgment on the pleadings.  In response, the plaintiffs did not oppose the motions, but moved to voluntarily dismiss the action, without prejudice, in order to re-file in Maine. 

After Avon and Cyprus filed their motions, the plaintiffs’ counsel communicated to the defendants that the plaintiffs sought to dismiss the Maryland action and re-file in Maine, which has a 6-year statute of limitations. JJCI objected, noting the plaintiffs had missed Maryland’s 3-year statute of limitations with regard to the survival action (although the plaintiffs did not miss the wrongful death statute of limitations) by one month. Regardless, the plaintiffs moved for voluntary dismissal without prejudice under Federal Rule 41(a)(2). JJCI opposed, arguing that the loss of the statute-of-limitations defense to the survival action was overly prejudicial. In reply, the plaintiffs argued the Maine statute of limitations would have applied anyway so re-filing did not pose any prejudice. JJCI sought leave to file a sur-reply to contest this claim.

In dismissing, without prejudice, on personal jurisdiction grounds as to Cyprus and Avon, the court noted the complaint did not establish any connection between the case and Maryland: The decedent was a Maine resident at the time of her death and had never lived in Maryland, none of the surviving plaintiffs lived in Maryland, no allegations were made as to decedent using talcum powder in Maryland, JJCI is a New Jersey corporation, Cyprus is a Delaware corporation with its principal place of business in Arizona, and Avon is a New York corporation.

The court also granted the plaintiffs’ motion to voluntarily dismiss the claims against JJCI, without prejudice, and denied JJCI’s request to file a sur-reply, even though the court agreed with JJCI that Maryland’s 3-year statute of limitations would have applied. Nevertheless, the court concluded that the totality of the circumstances favors dismissal, even if JJCI were to lose a tactical advantage. The court considered four factors in weighing prejudice caused by a voluntary dismissal: i) opposing party’s effort and expense in preparing for trial; ii) excessive delay or lack of diligent on movant’s part; iii) insufficient explanation of the need for dismissal; and iv) present stage of litigation (i.e., whether a summary judgment motion is pending). As for these factors as applied by the Curtin court, it found: i) discovery hadn’t even begun yet so parties had spent little effort to date; ii) the plaintiffs timely sought relief as soon as JJCI denied consent for dismissal; iii) if voluntary dismissal were not granted, the plaintiffs might be forced to proceed with two separate lawsuits (against JJCI in Maryland and against Avon and Cyprus in Maine); and iv) the litigation was in very early stages. In response to JJCI’s argument that it was losing its statute-of-limitations defense, which was considered prejudicial in various Circuit Courts, the District Court noted that the Fourth Circuit had not so found, and the loss of such a defense was not a bar to dismissal without prejudice.