Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zanowick v. Baxter Healthcare Corp.

United States Court of Appeals, Ninth Circuit

March 9, 2017

Richard Zanowick, an individual; Joan Clark-Zanowick, an individual, Plaintiffs-Appellees,
v.
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,
v.
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

         Appeal 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

          Steven 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 Corporation.

          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.

          Benno Ashrafi, Tyler Stock, and Josiah Parker, Weitz & Luxenberg, P.C., Los Angeles, California, for Plaintiffs-Appellees.

          Before: Milan D. Smith, Jr. and John B. Owens, Circuit Judges, and Edward R. Korman, [***] District Judge.

         SUMMARY [****]

         Fed. R. Civ. P. 25

         The 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).

         On 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 with prejudice.

         The 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.

          OPINION

          OWENS, CIRCUIT JUDGE

         Defendants-Appellants 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.

         I. Factual Background and Procedural History

         In July 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.

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.