UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
September 12, 2011
GINA LAFORGE, AN INDIVIDUAL,
GYNECARE, INC., A CALIFORNIA CORPORATION; ETHICON, INC., A NEW JERSEY CORPORATION; JOHNSON & JOHNSON, A NEW JERSEY CORPORATION; AND DOE MANUFACTURES ONE THROUGH ONE HUNDRED,
The opinion of the court was delivered by: Judge: Hon. Claudia Wilken
MICHELLE A. CHILDERS (SBN #197064) email@example.com NATHAN D. CARDOZO (SBN #259097) firstname.lastname@example.org 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[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 lawsuit") and (b) that the parties' compliance with the terms of the 9 settlement contract shall be one of the material terms of their contract and this order. 10
2. The time of filing Plaintiff's subsequent lawsuit shall be deemed to be the time of 11 filing Plaintiff's original action against Defendants for purposes of calculating the limitations 12 period that applies to Plaintiff's claims, rather than the actual date when Plaintiffs file their 13 subsequent litigation in New Jersey. Any statute of limitations, prescription, or repose that 14 applies to Plaintiff's Complaint filed in the case sub judice, if shorter in duration than any other 15 statute of limitations, prescription, or repose that may apply in Plaintiff's subsequent lawsuit, 16 shall apply in Plaintiff's subsequent lawsuit in lieu of any other statute of limitations, 17 prescription, or repose. 18
3. Any state statute that places a cap, ratio, or other limitation upon the amount of 19 non-economic damages or the amount of punitive damages that may be recovered by Plaintiff and 20 applies to Plaintiff's Complaint filed in the case sub judice, if lower than the amount of the caps, 21 ratios, or other limitations contained in any such state statute, if any, that may apply in Plaintiff's 22 subsequent lawsuit, shall apply in Plaintiff's subsequent lawsuit in lieu of any other such state 23 statute. 24
4. Plaintiff(s) shall not file Plaintiff's subsequent lawsuit without first producing to 25 counsel for Defendants copies of medical records and hospital records of Plaintiff which allegedly 26 show that Plaintiff was allegedly implanted with one or more medical devices manufactured by Defendant Ethicon, Inc., including the physician's notes of each one of Plaintiff's implanting 28 surgeons and treaters whom Plaintiffs consulted about the conditions leading to Plaintiff's surgery(ies). 2
5. The Order of the United States District Court for the Northern District of California which severed the parties to the original action in which Plaintiff was a party and 4 transferred the Plaintiff's claims to this District Court ("Order to sever and transfer"), Order 5 Granting Defendants' Motion to Sever Under Rule 21 and Transfer Under 28 U.S.C. § 1406(a) or, 6 in the Alternative, 28 U.S.C. § 1404(a), (Apr. 6, 2011), was an appealable order to the United 7 130 F.3d 1348, 1349 (9th Cir. 1997). Because the time within which Plaintiff may take an appeal 9 from the Order to sever and transfer has run, see Fed. R. App. Pro. 4(a)(1)(A), the Order to sever 10 and transfer is now final and is res judicata between Plaintiff and Defendants as to those issues 11 decided by said Order to sever and transfer. Accordingly, the final Order to sever and transfer 12 will not be treated as a nullity and will not be vacated by this District Court as a result of its 13 conditional dismissal of this action, see National R.R. Passenger Corp. v. International Ass'n of 14 Machinists & Aerospace Workers, 915 F.2d 43, 48 (1st Cir. 1990), and the Order to sever and 15 transfer is entitled to be given stare decisis effect in any forum. 16 17 otherwise responding in the manner required by law in Plaintiff's subsequent lawsuit, Defendant 18 may also assert and allege any other defenses that are available under the laws of the forum State 19 in which Plaintiff's subsequent lawsuit is filed. 20
7. The parties agree that it would be difficult to calculate actual damages, beyond 21 recovery of costs and attorneys' fees, arising from a material breach of this Agreement. As such, 22 the parties agree that in the event either party breaches this Agreement, which governs the 23 disposition and dismissal of eleven (11) lawsuits, the breaching party shall be subject to one, but 24 only one, legal action for said breach and shall pay to the non-breaching party the sum of $15,000 25 as liquidated damages. The parties agree that this amount constitutes a reasonable estimate of 26 damages and that this amount does not constitute and should not be construed as a penalty.
States Court of Appeal for the Ninth Circuit under 28 U.S.C. § 1291. See Coughlin v. Rogers, 8 6. Upon being served with a summons and complaint and when answering or The failure of Plaintiff or her counsel to adhere to any of the preceding conditions is a 2 material breach of her MUTUAL AGREEMENT AND STIPULATION with Defendants.
PURSUANT TO THE FOREGOING MUTUAL AGREEMENT AND STIPULATION, IT IS SO ORDERED, this the ________ of _________, 2011.
BY THE COURT
Honorable Claudia Wilken United States District Judge
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