When can a defense prevent dismissal of a case?  When the plaintiff wants a dismissal to avoid the defense.

That sums up the Fifth Circuit’s decision today in Hyde v. Hoffmann-La Roche Inc., No. 05-10203 (5th Cir. Dec. 20, 2007).  The plaintiff, George W. Hyde, brought the case in Texas state court.  He alleged physical and psychological injuries from taking Accutane, a prescription drug for treating acne.  Hoffmann-La Roche removed the lawsuit to federal court.  Hyde moved under Rule 41(a)(2) of the Federal Rules of Civil Procedure to dismiss his case voluntarily and without prejudice.  The district court granted the motion.  The Fifth Circuit reversed, holding that a district court abuses its discretion if it allows a voluntary dismissal that may "strip" the defendants of a defense.  Because dismissing could have permitted Hyde to avoid application of a Texas statute of repose, the court concluded, dismissal was improper.

Barry Barnett

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