VERNON A. THOMPSON, JR. and FLORIA M. GRIFFIN v. JANSSEN PHARMACEUTICALS, INC. a/k/a ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERNON A. THOMPSON, JR. and
FLORIA M. GRIFFIN,
Plaintiffs-Appellants,
v.
JANSSEN PHARMACEUTICALS, INC.
a/k/a ORTHO-MCNEIL-JANSSEN
PHARMACEUTICALS, INC., and
JOHNSON & JOHNSON, INC.
Defendants-Appellees.
No. 17-56769
D.C. No.
2:16-cv-02628-PSG-AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Phillip S. Gutierrez, District Judge, Presiding
Submitted March 5, 2019**
Pasadena, California
Before: FERNANDEZ and OWENS, Circuit Judges, and DONATO,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
FILED
MAR 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Plaintiffs Vernon A. Thompson, Jr. and his mother, Floria M. Griffin,
(together, “Thompson”) appeal from the district court’s order denying their motion
for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2). The
district court also granted summary judgment in favor of defendants Janssen
Pharmaceuticals, Inc. and Johnson & Johnson (together, “Janssen”), but Thompson
does not appeal the summary judgment order. We have jurisdiction pursuant to 28
U.S.C. § 1291. We affirm.
We have “long held that the decision to grant a voluntary dismissal under
Rule 41(a)(2) is addressed to the sound discretion of the District Court, and its
order will not be reversed unless the District Court has abused its discretion.”
Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982).
When ruling on a motion for voluntary dismissal without prejudice, the district
court “must determine whether the defendant will suffer some plain legal prejudice
as a result of the dismissal.” Westlands Water Dist. v. United States, 100 F.3d 94,
96 (9th Cir. 1996) (citations omitted). Legal prejudice is “prejudice to some legal
interest, some legal claim, [or] some legal argument.” Id. at 97. A district court
may consider whether the plaintiff has asked for a voluntary dismissal to avoid a
likely adverse ruling. Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988).
Here, the district court considered permissible factors in evaluating prejudice
and denying the Rule 41(a)(2) motion. The district court found that granting the

-- 2 of 3 --

3
motion might require Janssen to face litigation on this claim in state court although
it had already engaged in substantial discovery and reached the summary judgment
stage in federal court. The district court noted that Thompson had offered no
expert disclosures or expert reports to support his product liability claims against
Janssen, and filed the Rule 41(a)(2) motion only after becoming aware that Janssen
would seek summary judgment. The district court also found that Thompson had
not adequately explained why he delayed so long in requesting a voluntary
dismissal to refile in a similar state court proceeding that he had known about for
many months. Because the district court’s determinations were not based on an
erroneous view of the law or a clearly erroneous assessment of the facts, it did not
abuse its discretion.
AFFIRMED.

-- 3 of 3 --