United States District Court, S.D. Ohio, Eastern Division
ROSA L. WIBLEY, Plaintiff,
MEDTRONIC, INC., Defendant.
Deavers Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on Defendant's Motion to
Dismiss Plaintiff's Amended Complaint (Doc. 26).
Plaintiff opposed Defendant's Motion (Doc. 31) and
Defendant replied in support (Doc. 32). However, since
Defendant's reply, Plaintiff has filed her own Motion to
Dismiss the Amended Complaint (Doc. 36). Defendant opposed
Plaintiff's Motion for Leave (Doc. 39) and Plaintiff
replied in support (Doc. 40). These motions are now ripe for
review. For the following reasons, Plaintiff's Motion is
GRANTED and Defendant's Motion is
DENIED as moot.
case arises from Plaintiff's receipt and use of a pain
pump manufactured by Medtronic. Plaintiff suffered from
chronic pain in her back and used the Medtronic pump to help
control the pain via daily morphine injections. (Doc. 21, Am.
Compl. at ¶¶ 45-46). The pump was installed by Dr.
Bruce Massau. (Id. at ¶ 45). The Medtronic pump
installed in Plaintiff was eventually recalled by Medtronic
because the pumps were allegedly defective. (Id. at
having the pain pump installed, Plaintiff continued to
experience chronic pain and saw Dr. Massau to determine the
cause of the pain. (Id. at ¶¶ 84-85). In
February 2016, Massau found that a Medtronic catheter
attached to the pump had failed. (Id. at
¶¶ 87-90). He replaced the catheter, and restarted
the pump. (Id.). Plaintiff continued to experience
chronic pain, over-dosing, under-dosing, and drug withdrawal
symptoms while using the pump. (Id. at ¶ 92).
Massau removed the pump in October 2016 because the pump
failed to provide consistent morphine dosage. (Id.
at ¶¶ 93-94). Plaintiff then filed suit in this
since the filing of the Amended Complaint, Plaintiff alleges
that although Massau originally told her that he installed a
new pump in February 2016, there is no evidence he actually
installed a new pump at that time. (Doc. 36, Pl.'s Mot.
at 3). Plaintiff also now alleges that Medtronic
representatives were present for at least one of
Plaintiff's medical procedures-an August 26, 2016,
procedure. Plaintiff argues that Massau and the others
responsible for her care at that time are necessary and
indispensable parties. Her Motion to Dismiss asks this Court
to either join these parties and remand the case to state
court or to dismiss this case without prejudice. Defendant
argues that the Court should rule on its Motion to Dismiss.
The Court will first address Plaintiff's Motion.
moves this Court to dismiss her case in its entirety, or to
grant joinder of new parties and remand the case back to
state court. Defendant argues that joinder is unnecessary and
inappropriate and that Plaintiff's Amended Complaint
should be dismissed with prejudice for the reasons stated in
Defendant's Motion to Dismiss. Because Plaintiff has
moved for voluntary dismissal or joinder in the alternative,
meaning that Plaintiff need not meet the explicit rules for
joinder if dismissal is otherwise appropriate under Rule
motion for voluntary dismissal should be granted unless
“‘the defendant would suffer “plain legal
prejudice” as a result of a dismissal without
prejudice, as opposed to facing the mere prospect of a second
lawsuit.'” Bridgeport Music, Inc. v.
Universal-MCA Music Pub., Inc., 583 F.3d 948, 953 (6th
Cir. 2009) (quoting Grover by Grover v. Eli Lilly and
Co., 33 F.3d 716, 718 (6th Cir. 1994)). “In
determining whether such prejudice would result, courts
typically consider ‘the defendant's effort and
expense of preparation for trial, excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
action, insufficient explanation for the need to take a
dismissal, and whether a motion for summary judgment has been
filed by the defendant.'” Bridgeport
Music, 583 F.3d at 953 (quoting Grover, 33 F.3d
all of the factors weigh against a finding of legal
prejudice. Although the Court understands that Defendant has
expended costs in filing two separate motions to dismiss, the
Court also notes that the legal arguments for dismissal in
both of Defendant's Motions are nearly identical.
(Compare Doc. 7, Def.'s 1st Mot. Dismiss with
Doc. 26, Def.'s 2d Mot. Dismiss). The remaining factors
weigh in favor of dismissal. Most of the deadlines in this
case have been either stayed or extended and Defendant has
not alleged that it has expended extensive discovery costs
that would need to be repeated if this case is refiled. This
means the effort and expense exerted by Defendant so far in
this case is limited. Although Plaintiff waited until after
Defendant filed two Motions to Dismiss, the delay in filing
this motion is not excessive. Further, it appears Plaintiff
has been diligent because she stated that she recently
discovered evidence of medical malpractice on the part of
Defendant and Dr. Massau through the use of subpoenas.
Regarding Plaintiff's explanation for requesting
dismissal, she has sufficiently explained that she wishes to
bring a medical malpractice claim against Medtronic and Dr.
Massau. Last, Defendant has not filed a motion for summary
judgment. The Court finds that voluntary dismissal under Rule
41(a)(2) is appropriate.
on the foregoing, this action is DISMISSED without
prejudice. Defendant's Motion to Dismiss and
Motion for Protective Order and Stay Discover are
DENIED as moot. The Clerk shall
REMOVE Documents 26, 33, and 36 from the
Court's pending motions list and close the case.