Graham v. Bristol-Myers Squibb Company
- James Oetken
- 1:20-cv-08876
- U.S. District Court · Southern District of New York
- 3
Graham v. Bristol-Myers Squibb, Judge Oetken granted Graham’s voluntary dismissal without prejudice and denied two pending dismissal motions as moot.
The case was dismissed without prejudice, allowing the claims to be pursued again in state court; the defendants’ pending motions to dismiss were denied as moot and without prejudice to renewal there.
What happened
In Graham v. Bristol-Myers Squibb Company, Patricia Graham alleged that inhaling asbestos fibers from the defendants’ products caused her malignant mesothelioma. After Revlon removed the case from New York state court, Graham sought voluntary dismissal so she could refile in the New York City Asbestos Litigation court, which uses an expedited calendar; Graham died from her illness in December 2020.
Graham argued that dismissal would cause little or no prejudice because the case had barely progressed and the defendants had filed only a few answers. The defendants argued that Graham might not receive an earlier trial in state court, that they would lose access to a federal forum, and that the dismissal request was an improper litigation strategy.
Judge J. Paul Oetken found that the defendants had not shown substantial prejudice and that the relevant factors favored dismissal. The court granted Graham’s motion under Federal Rule of Civil Procedure 41(a)(2), dismissed the case without prejudice, and denied the two pending motions to dismiss as moot and without prejudice to renewal in state court.
The detailed version
- Graham v. Bristol-Myers Squibb Company · No. 1:20-cv-08876
- James Oetken
- Apr. 7, 2021
Background
Patricia Graham alleged that she developed malignant mesothelioma after inhaling asbestos fibers from products made by the defendants. She filed the action in New York state court in a county that is home to the New York City Asbestos Litigation, which permits terminally ill litigants to use an expedited calendar. Defendant Revlon removed the case to the federal court before Graham served the defendants and filed an answer the same day.
Graham then moved under Federal Rule of Civil Procedure 41(a)(2) for voluntary dismissal. That rule permits a court to dismiss an action on terms it considers proper. Graham requested dismissal without prejudice so she could refile in the state-court asbestos litigation and seek a significantly faster trial. Graham died from her illness in December 2020. The opinion states that her counsel later explained that Graham’s decedents wanted to pursue her state-law claims in that specialized court.
Analysis
The court explained that voluntary dismissal under Rule 41(a)(2) is not automatic, but courts in the Second Circuit generally grant it unless defendants show substantial prejudice. The court applied five factors identified in Zagano v. Fordham University: the plaintiff’s diligence, any undue vexatiousness, how far the case has progressed and the defendants’ preparation and expense, the costs of relitigation, and the adequacy of the explanation for dismissal.
The court found that Graham acted diligently because fewer than 25 days passed between removal and her motion. The case had not reached trial preparation, and the defendants had spent little on it. The court also found no vexatious conduct. Although it considered the later explanation involving Graham’s decedents less compelling than Graham’s original explanation based partly on her terminal illness, the court found the overall explanation adequate.
The court rejected the defendants’ arguments concerning possible COVID-19-related shutdowns, loss of access to a federal forum, alleged vexatiousness, and litigation strategy. It concluded that the defendants had not shown actual prejudice and that all five factors favored dismissal.
Disposition
Judge J. Paul Oetken granted Graham’s motion to dismiss under Rule 41(a)(2). The case was dismissed without prejudice. The court denied the two pending motions to dismiss as moot and without prejudice to renewal in state court, directed the Clerk to close the specified motions, and closed the case. The order did not decide the merits of Graham’s asbestos claims.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.