Momenta Pharmaceuticals, Inc. et al v. Amphastar Pharmaceuticals, Inc. et al, No. 1:2011cv11681 - Document 584 (D. Mass. 2014)
Court Description: Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "For the foregoing reasons, the defendants' motion for entry of final judgment (Docket No. 507 ) is, to the extent of entry of judgment at this juncture, ALLOWED, but otherwise DENIED. So ordered."(Moore, Kellyann)
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See Greene v. Ab Coaster Holdings, Inc., No. 1038, 2012 WL 2342927, at *7 (S.D. Ohio June 20, 2012); Eastman -6- Mach. Co. v. Diamond Needle Corp., No. 99-0450, 2000 WL 1887827, at *1 (W.D.N.Y. Dec. 18, 2000). The First Circuit Court of Appeals has held that a court faced with a motion to dismiss under Fed. R. Civ. P. 41(a) should dismiss without prejudice unless the defendant will suffer legal prejudice as a result. Colon-Cabrera v. Esso Standard Oil Co., 723 F.3d 82, 87 (1st Cir. 2013) (citing P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir. 1981)). Factors that may justify dismissing with prejudice include the defendant’s effort and expense of preparation for trial, excessive delay and the lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation of the need to take a dismissal, and the fact that a motion for summary judgment has been filed by the defendant. Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000) (quoting Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969)). The Court may also consider whether plaintiffs sought to “circumvent an expected adverse result” in dismissing the ‘466 claims. Am. Sci. & Eng’g, Inc. v. Kelly, No. 99-10365, 2000 WL 307462, at (D. Mass. Mar. 16, 2000) (citations omitted). The prospect of a second suit or of the plaintiff gaining a tactical advantage in the current suit does not, however, justify dismissing with prejudice. Leith, 668 F.2d at 50. -7- B. Application As an initial matter, the Court finds that plaintiffs properly amended their complaint under Fed. R. Civ. P. 15(a), despite the fact that they informed the Court that they were withdrawing certain claims more than one year after the April, 2012 deadline for amending pleadings (Docket Nos. 139, 450). That delay was justified because defendants delayed producing testing records that plaintiffs needed to prove or disprove their infringement theories with respect to the ‘466 patent. See Foman, 371 U.S. at 182; Acosta-Mestra, 156 F.3d at 52. The remaining issue is whether plaintiffs’ claims with respect to the ‘466 patent should be dismissed with or without prejudice when the Court enters final judgment. Notwithstanding the fact that defendants may have incurred significant expense in preparing their defense of the ‘466 patent claims, the Court will dismiss plaintiffs’ claims without prejudice. Unlike the situation in the related Teva action, plaintiffs have a valid excuse for their delay in withdrawing their claims under the ‘466 patent. See Urohealth, 216 F.3d at 160. Plaintiffs advised the Court that discovery provided pursuant to an April, 2013 order of Magistrate Judge Collings revealed that, contrary to statements in previously-produced documents, defendants had not used the process claimed by the ‘466 patent in its commercial manufacturing process. Based upon that discovery, plaintiffs -8- notified defendants and the Court a month or so later that they were withdrawing their claims with respect to the ‘466 patent. As a result, the Court finds that plaintiffs did not engage in undue delay and were reasonably diligent despite the fact that they withdrew their claims after defendants filed their motion for summary judgment. See id. Moreover, it would be inequitable in this case to dismiss plaintiffs’ claims with prejudice simply because they were withdrawn after defendants filed their motion for summary judgment considering that the reasons for the delay were largely within defendants’ control. ORDER For the foregoing reasons, the defendants’ motion for entry of final judgment (Docket No. 507) is, to the extent of entry of judgment at this juncture, ALLOWED, but otherwise DENIED. So ordered. /s/ Nathaniel M. Gorton Nathaniel M. Gorton United States District Judge Dated January 24, 2014 -9-
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