Opinion
No. C-02-1015 MMC
September 5, 2003
ORDER GRANTING REQUEST FOR DISMISSAL
By order filed March 20, 2003, plaintiff's Request for Dismissal of this purported class action was denied without prejudice because plaintiffs failed to (1) provide notice of the proposed dismissal to the absent class members pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, or (2) otherwise establish that notice was not required pursuant to Diaz v. Trust Territory of the Pacific Islands, 876 F.2d 1401, 1408-09 (9th Cir. 1989). See id. (holding that "[n]otice to the class of pre-certification dismissal is not . . . required in all circumstances" under Fed.R.Civ.P. 23(e), and discussing circumstances under which such notice may not be mandated).
Plaintiffs' counsel was directed to present a proposed notice to the class or to make a further showing as to why such notice was not necessary. In the above-referenced order, the Court noted the concern inDiaz that requiring notice to the class before dismissal serves the purpose of "protect[ing] the class from prejudice it would otherwise suffer if class' members have refrained from filing suit because of knowledge of the pending class action," Diaz, 876 F.2d at 1409, and advised plaintiffs that if they wished to avoid providing notice to the class, they must present declarations by plaintiffs' counsel regarding any contact with class members or the scope and magnitude of publicity surrounding the action.
On June 5, 2003, plaintiffs filed a "Further Response to Order to Show Cause Why the Court Should Not Order That Some Form of Notice Be given to the Class Pursuant to FRCP 23." ("Response"), along with declarations from six attorneys. In their response, and substantiated in their filed declarations, plaintiffs state that no significant publication of this action occurred that could have resulted in absent class members refraining from filing suit, no one at plaintiffs' counsel's firm had any contact with any absent class members who would be prejudiced by dismissal of this case, and national class actions being prosecuted in other districts prevent absent class members from being prejudiced by dismissal of this action.
On July 15, 2003, the case was reassigned to the undersigned. Having reviewed the plaintiffs' submissions, and in light of the fact that (1) plaintiffs' action has not been served, (2) two substantially similar actions, Wax v Aventis Pasteur, CV-02-2018, and Mead v. Aventis Pasteur, No. 0107-07137, are pending in the Eastern District of New York and Multnomah County Circuit Court in Oregon, respectively, in which all of the remedies sought in this case are being pursued, and (3) plaintiffs' submissions respecting the dearth of publicity surrounding the filing of the instant action, the Court finds that the concern articulated in Diaz as to potential prejudice to absent class members is not implicated.
Accordingly, plaintiffs' Motion to Dismiss is hereby GRANTED and the instant action is hereby DISMISSED. The Clerk shall close the file.
IT IS SO ORDERED.