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Gina Laforge, An Individual v. Gynecare

September 12, 2011

GINA LAFORGE, AN INDIVIDUAL,
PLAINTIFF,
v.
GYNECARE, INC., A CALIFORNIA CORPORATION; ETHICON, INC., A NEW JERSEY CORPORATION; JOHNSON & JOHNSON, A NEW JERSEY CORPORATION; AND DOE MANUFACTURES ONE THROUGH ONE HUNDRED,
DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Claudia Wilken

MICHELLE A. CHILDERS (SBN #197064) michelle.childers@dbr.com NATHAN D. CARDOZO (SBN #259097) nathan.cardozo@dbr.com DRINKER BIDDLE &REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105-2235 Telephone: (415) 591-7500 Facsimile: (415) 591-7510 Attorneys for Defendants ETHICON, INC. (on its own behalf and behalf of its Division, ETHICON WOMEN'S HEALTH & UROLOGY, and erroneously sued as GYNECARE, INC.); and JOHNSON & JOHNSON

JOINT STIPULATION AND [PROPOSED] ORDER RE DISMISSAL OF PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE

Complaint Filed: October 20, 2010

Trial Date: Not set

WHEREAS, counsel for Plaintiff Gina LaForge has requested that counsel for Defendants Ethicon, Inc. and Johnson & Johnson enter into negotiations regarding the response of Defendants 24 to an anticipated motion of Plaintiff to dismiss the above-captioned litigation pursuant to Federal Rule of Civil Procedure 41(a)(2) without prejudice for the purpose of re-filing the above-26 captioned action in the state courts of New Jersey; and

WHEREAS, counsel for Plaintiff also represents eleven (11) other Plaintiffs who have 11 28 similar lawsuits that are pending against Defendants Ethicon, Inc. and Johnson & Johnson in Federal or State court of six different States, viz., the States of California, Indiana, Maryland, 2 Missouri, New Mexico, and Washington, with 10 of those suits pending in federal district court; 3 and 4

WHEREAS, counsel for Plaintiff has indicated that said counsel would file similar 5 motions to dismiss without prejudice in ten (10) pending federal district court actions all for the 6 purpose of re-filing each one of those actions in the state courts of New Jersey; and 7

WHEREAS, counsel for Plaintiff has requested that counsel for Defendants consider a 8 global resolution of how the Plaintiffs and Defendants may reach a mutual stipulation and 9 agreement regarding the dismissal without prejudice of all eleven (11) lawsuits, thereby 10 facilitating the dismissal of those actions and conserving the resources of the Federal judicial 11 system; and 12

WHEREAS, the "primary purpose of Rule 41(a)(2) is to protect the interests of the 13 defendant, although the court should weigh the equities and do justice to all the parties in the 14 case" and therefore, a "dismissal without prejudice should be denied when the defendant will 15 suffer 'plain legal prejudice' but should normally be granted in the absence of such prejudice," 16 see 8 Moore's Federal Practice ¶ 41.40[5][a], at p. 41-141 (3d ed. 2010); and 17

WHEREAS, counsel for Defendants have indicated the willingness of Defendants to enter 18 into negotiations that would result in the dismissal without prejudice of the foregoing eleven (11) 19 lawsuits so long as the relative legal positions that exist between the parties in each of the eleven 20

(11) lawsuits will not be prejudiced either now upon dismissal or when counsel for the eleven 21

(11) Plaintiffs re-file their current lawsuits in any subsequent judicial forum; and 22

WHEREAS, Plaintiffs have agreed that the legal status quo that now exists between the 23 parties in their separate pending lawsuits should be preserved and maintained in any future 24 proceeding that is re-filed by any Plaintiff against Defendants; and 25 Plaintiff Gina LaForge and Defendants Ethicon, Inc. and Johnson & Johnson therefore 26 mutually STIPULATE and AGREE to the conditional dismissal of Plaintiff's Complaint without 27 prejudice, and in accordance with the terms of their MUTUAL AGREEMENT and 28 STIPULATION, the Court, pursuant to Federal Rule Civil Procedure 41(a)(2), hereby finds and ORDERS as follows:

1. The Complaint of Plaintiff is hereby conditionally dismissed without prejudice 3 subject to (a) Plaintiff agreeing and stipulating that the conditions set forth in this paragraph and 4 paragraphs 2-12 below shall be imposed in any and all lawsuits that Plaintiff subsequently files 5 against Defendants or either of them ("Defendants") in any state or federal court located in any 6 state, territory, or possession of the United States of America or in any court in the District of 7 Columbia related to the subject matter of Plaintiff's Complaint filed in the case sub judice 8 ("Plaintiff's subsequent ...


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