In re ACTOS Antitrust Litigation

Background

Crosby Tugs, LLC moved under Federal Rule of Civil Procedure 41(a)(2) to dismiss its claims from the antitrust litigation without prejudice. Rule 41(a)(2) allows a plaintiff to seek court-ordered dismissal on terms the court considers proper when the parties have not consented to the dismissal.

The Takeda Defendants—Takeda Development Center Americas, Inc., Takeda Pharmaceutical Company Limited, Takeda Pharmaceuticals U.S.A., Inc., and Takeda America Holdings, Inc.—did not oppose Crosby Tugs leaving the case. They asked the court either to condition the dismissal on Crosby Tugs’ compliance with its discovery obligations or to dismiss the claims with prejudice.

Court’s Analysis

The court explained that a dismissal without prejudice may be improper if it causes the defendants legal prejudice, meaning impairment of a legal interest, claim, or argument beyond merely facing a possible later lawsuit. The court also discussed five factors used in some cases: the plaintiff’s diligence, undue vexatiousness, the progress of the lawsuit and the defendants’ expenses, duplicative expense from relitigation, and the adequacy of the plaintiff’s explanation for seeking dismissal.

The court concluded that an unconditional dismissal would be unwarranted regardless of whether those five factors applied. The Takeda Defendants asserted that Crosby Tugs had materials relevant to Takeda’s defenses and to class certification, including information about Crosby Tugs’ Actos purchases and reimbursements. The court reasoned that allowing Crosby Tugs to remain an absent class member without producing discovery could make it harder for the defendants to address whether individual issues predominate over common ones in the proposed class.

The court also relied on the timing of Crosby Tugs’ request. The parties had been conducting discovery for years, and the Takeda Defendants asserted that Crosby Tugs sought dismissal 144 days after the deadline for substantial completion of discovery, only after the defendants threatened to seek an order compelling discovery. The opinion states that Crosby Tugs did not appear to dispute the defendants’ account of their repeated requests for documents and communications about the proposed dismissal.

The court found that two of the five factors favored Crosby Tugs: there was no evidence of undue vexatiousness or an intent to harass, and any duplicative expense from Crosby Tugs remaining an absent class member would be negligible, assuming that circumstance counted as relitigation. The other three factors favored the Takeda Defendants. Crosby Tugs was not diligent in bringing the motion, the litigation had involved substantial discovery at significant cost, and Crosby Tugs’ explanation that it was unable to continue as a named plaintiff was too vague for the court to determine whether dismissal was compelling.

Ruling

Judge Ronnie Abrams denied Crosby Tugs’ motion for an unconditional dismissal without prejudice. She directed Crosby Tugs to file, by June 28, 2023, a letter stating whether it sought dismissal without prejudice conditioned on compliance with its discovery obligations or dismissal with prejudice. The court directed the Clerk of Court to terminate the motion listed at ECF No. 425. The opinion did not itself dismiss Crosby Tugs’ claims under either option.