Richard Zanowick, an individual; Joan Clark-Zanowick, an individual, Plaintiffs-Appellees,
Baxter Healthcare Corporation, sued individually and as successor-in-interest to American Hospital Supply Corporation and American Scientific Products Erroneously Sued As Baxter International, Inc., Defendant-Appellant. Richard Zanowick, an individual; Joan Clark-Zanowick, an individual, Plaintiffs-Appellees,
Fisher Scientific Company, LLC, Erroneously Sued As Thermo Fisher Scientific, Inc., sued individually and Successor by merger to Fisher Scientific International, Inc., Defendant-Appellant.
Submitted February 13, 2017 [**] Pasadena, California
from the United States District Court for the Central
District of California William G. Young, [*] District
Judge, Presiding D.C. No. 2:14-cv-06519-WGY-PLA
J. Thompson and Ethan E. Trull, Nixon Peabody LLP, Chicago,
Illinois; Ronald F. Lopez, Nixon Peabody LLP, San Francisco,
California, for Defendant-Appellant Baxter Healthcare
Michael J. Pietrykowski, Gordon Rees Scully Mansukhani LLP,
Oakland, California; John T. Williams, Jason H. Nash, and
Joanne Moon, Hinkhouse Williams Walsh LLP, Chicago, Illinois
for Defendant-Appellant Fisher Scientific Company L.L.C.
Ashrafi, Tyler Stock, and Josiah Parker, Weitz &
Luxenberg, P.C., Los Angeles, California, for
Before: Milan D. Smith, Jr. and John B. Owens, Circuit
Judges, and Edward R. Korman, [***] District Judge.
Civ. P. 25
panel affirmed the district court's order granting
plaintiffs' motion to voluntarily dismiss their action
without prejudice pursuant to Fed.R.Civ.P. 41(a)(2).
October 12, 2014, plaintiff Richard Zanowick died, and
plaintiffs failed to file a timely motion to substitute a new
party as required by the 90-day deadline in Fed.R.Civ.P.
25(a)(1). Plaintiff Joan Clark-Zanowick moved to dismiss the
action voluntarily without prejudice, or alternatively, to
substitute a new party or extend the Rule 25(a)(1) deadline.
Defendants contended that Rule 25(a)(1) required dismissal
panel held that Rule 25(a)(1) permitted the district court to
allow a late substitution if requested, and did not require
the district court to dismiss the federal action with
prejudice. The panel also held that the district court did
not abuse its discretion in granting the Rule 41(a)(2) motion
for dismissal without prejudice.
Baxter Healthcare Corporation and Fisher Scientific Company,
LLC (collectively, defendants) appeal from the district
court's order granting Plaintiffs-Appellees Richard
Zanowick and Joan Clark-Zanowick's (collectively,
Zanowick or plaintiffs) motion to voluntarily dismiss their
action without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2). Defendants argue that the district court
should have dismissed the action with prejudice due to
Federal Rule of Civil Procedure 25(a)(1). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Factual Background and Procedural History
2014, Richard Zanowick sued defendants in state court, and
alleged that their products exposed him to asbestos, leading
to terminal mesothelioma. Mrs. Joan Clark-Zanowick also sued
for loss of consortium. In August 2014, defendants removed
the case to federal court on diversity grounds.
October 12, 2014, Mr. Zanowick died. On November 17, 2014,
plaintiffs filed and electronically served a notice of Mr.
Zanowick's death. Federal Rule of Civil Procedure
25(a)(1) then required plaintiffs to file, by February 19,
2015, a ...