                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2080
                         ___________________________

                                    Michael Blaes

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Imerys Talc
             America, Inc., formerly known as Luzenac America

                      lllllllllllllllllllll Defendants - Appellants
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: March 9, 2017
                               Filed: May 26, 2017
                                 ____________

Before RILEY,1 Chief Judge, GRUENDER, Circuit Judge, and SCHREIER,2
District Judge.
                              ____________
SCHREIER, District Judge.


      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, sitting by designation.
       Defendants appeal from the district court’s order dismissing without prejudice
Michael Blaes’s products liability action. Defendants claim that the court should not
have granted the dismissal because Blaes was forum shopping. In the alternative,
defendants contend that dismissal should have been conditioned on the payment by
Blaes of defendants’ costs and fees. We find that the district court did not abuse its
discretion when it dismissed the complaint without prejudice, but the district court
should have analyzed whether costs and fees should have been awarded. We affirm
in part, reverse in part, and remand with instructions.

                                    I. Background

       Shawn Blaes passed away from ovarian cancer on January 12, 2011. Her
husband, Michael Blaes, contends that Shawn’s death was caused by her regular and
prolonged use of talcum-based products known as JOHNSON’S Baby Powder® and
Shower-to-Shower®. On January 10, 2014, Blaes filed a complaint in Missouri state
court in St. Louis County against Johnson & Johnson, Johnson & Johnson Consumer
Companies, Inc. (Johnson & Johnson); Imerys Talc America, Inc. (Imerys); Personal
Care Products Council; Schnucks, Inc.; Schnucks Supermarkets, Inc.; Schnucks Food
& Drugs, Inc.; Schnucks Super Centers, Inc.; and Walgreen Co.

        Defendants timely removed the case to the United States District Court, Eastern
District of Missouri. Blaes later voluntarily dismissed the Schnuck defendants,
Walgreen Co., and Personal Care Products Council. On October 24, 2014, the district
court scheduled the case for a two-week jury trial to start on March 7, 2016. On
February 12, 2016, the district court held a status conference during which Blaes
orally requested a continuance of the March 7, 2016, trial date. Blaes advised the court
that a case with similar facts (Fox trial3) was currently in progress in the Circuit Court


       3
       Hogans v. Johnson & Johnson, 1422-CC09012-01. In Hogans, 64 individuals
and one St. Louis City resident joined and filed suit in the Circuit Court of the City

                                           -2-
of the City of St. Louis and would take longer than two weeks to complete. Thus,
Blaes believed that his trial would take longer than two weeks and would need to be
moved to a new date to accommodate a longer trial. The court denied the oral request
for a continuance, but stated that it would monitor the progress of the ongoing Fox
trial. On February 18, 2016, the district court entered an order resetting the trial date
to July 6, 2016, to accommodate a longer trial. On February 22, 2016, the jury in the
Fox trial awarded Fox $10 million in compensatory damages and $62 million in
punitive damages.

       On March 9, 2016, defendants moved to reset the July 6, 2016, trial date
because it conflicted with another talcum powder case that had previously been
scheduled for trial in New Jersey. Defendants explained that, in total, counsel were
scheduled for six talcum powder trials starting in April 2016 and running through
February 2017, so they would be unavailable for trial in this case until after February
2017. One of the trials defendants listed was Swann v. Johnson & Johnson that was
scheduled for trial in January 2017 in the Circuit Court of the City of St. Louis. On
March 11, 2016, Blaes filed a Motion to Voluntarily Dismiss this action. Defendants
opposed the motion asserting that Blaes was improperly forum shopping. Defendants
argued that Blaes was seeking to refile in the Circuit Court of the City of St. Louis
because a St. Louis jury had just awarded a large plaintiff’s verdict and the district
court in this case had made several unfavorable Daubert rulings against Blaes. On
March 25, 2016, Blaes filed a Reply in Support of his Motion to Voluntarily Dismiss
in which he explained that he planned to refile the case in the Circuit Court of the City
of St. Louis and stated that the case could be tried “starting January 9, 2017, as one of
multiple consolidated trial plaintiffs in Swann v. Johnson & Johnson.” On March 29,
2016, the district court granted Blaes’s motion to dismiss finding that dismissal was




of St. Louis. The first trial was of Jacqueline Fox’s claims. Thus, this trial is referred
to as the Fox trial.

                                           -3-
proper “because this case will likely be refiled and consolidated with Swann v.
Johnson & Johnson, et al.”
                                 II. Discussion

        “We review a district court’s decision to allow a plaintiff to voluntarily dismiss
an action for an abuse of discretion.” Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th
Cir. 2013). The district court “has a range of choice, and [] its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake of
law.” Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984). When deciding
whether to grant a motion for voluntary dismissal, the “district court should consider
. . . ‘whether the party has presented a proper explanation for its desire to dismiss;
whether a dismissal would result in a waste of judicial time and effort; and whether
a dismissal will prejudice the defendants.’” Donner, 709 F.3d at 697 (quoting
Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213-14 (8th Cir. 2011)). A
plaintiff cannot use a motion to voluntarily dismiss to seek a more favorable forum.
Id.

      Defendants contend the district court abused its discretion in granting the
voluntary dismissal because the dismissal wasted judicial time and effort and
prejudiced the defendants, did not address whether the motion was improper forum
shopping or whether Blaes’s basis for dismissal had a reasonable basis in fact and law,
and should have included an award of costs in favor of defendants. Defendants also
argue that the court abused its discretion when it considered Blaes’s arguments for
voluntary dismissal because they were raised for the first time in his reply brief.

       First, this court must analyze whether the district court abused its discretion in
concluding that dismissal would not waste judicial time and effort and would not
prejudice defendants. This court has previously held that when a court dismisses an
action to be refiled in state court, judicial time and effort are not wasted where much
of the evidence may be used in state court. See Kern, 738 F.2d at 971(dismissing a

                                           -4-
case after the trial began so it could be refiled in state court). Legal prejudice is more
than the fact that a defendant might have to defend another action. Id. at 970. Neither
“the expense and effort of drafting and responding to discovery” nor the loss of a
tactical advantage constitute legal prejudice. Mullen v. Heinkel Filtering Sys., Inc.,
770 F.3d 724, 728 (8th Cir. 2014).

       Defendants argue that the dismissal was a waste of judicial time and effort
because the parties had prepared for trial for over two years, and the court had already
overseen discovery and considered some pretrial motions. Defendants also argue that
they were substantially prejudiced by the dismissal because they were deprived of
benefitting from the work they had already completed, the favorable rulings the district
court had already issued, and access to a federal forum. In Kern, the plaintiff filed a
motion to voluntarily dismiss prior to trial, and the district court informed counsel that
it would grant the motion, but “only upon the express condition that, if the case is
refiled in any court, the defendant will be awarded all costs.” Kern, 738 F.2d at 969.
Plaintiff then withdrew her motion. Id. At trial, the court and counsel conferred with
each other prior to calling plaintiff’s final witness, and the court “informally indicated
the view that plaintiff would be unable to make out a submissible fact question for the
jury.” Id. at 970. The plaintiff then renewed her motion to dismiss without prejudice,
and the court granted the motion without any conditions as to costs and expenses. Id.
We upheld the district court’s dismissal because plaintiff had not rested, the defendant
had not moved for a directed verdict, and the dismissal allowed for a state-law issue
to be decided by a state court. Id. at 971.

      In Mullen, after the plaintiffs failed to meet the expert disclosure deadline and
the court ruled that the deadline would not be extended, plaintiffs filed a motion to
dismiss without prejudice stating that they intended to add defendants who would
“more than likely” destroy diversity. Mullen, 770 F.3d at 726-27. The judge granted
the motion to dismiss without stating a reason for the dismissal but indicated that the
case was plagued with discovery disputes. Id. at 727. The court did not award any fees

                                           -5-
to the defendants and ordered the parties to bear their own costs. Id. We upheld the
district court’s decision because the parties had completed very little discovery, and
after the dismissal, the plaintiffs did refile the suit in state court adding a diversity
destroying defendant. Id.

       Here, the district court reasoned that it would be more efficient to add this case
to the multi-plaintiff Swann case with the same issues. The district court did not abuse
its discretion in reaching that conclusion. The trial in this case had not commenced,
the district court had not ruled on several Daubert and other pre-trial motions, much
of the discovery and evidence could be used in state court, and the Swann case
apparently dealt with the same type of ovarian cancer as this case and involved much
of the same evidence.

        Also, the district court observed that defendants had moved to reset the July
2016 trial date, but defendants were unavailable for the remainder of 2016. Thus, the
trial would have to be rescheduled for sometime in early 2017. In their motion,
defendants indicated that “no party will be prejudiced by moving the trial date.”
Docket 261. And defendants identified the Swann trial as one of the previously
scheduled trials that created a conflict for defendants. Thus, the district court
reasonably concluded that the case would likely be tried at an earlier date in state
court, and the dismissal would not prejudice defendants because Blaes’s case would
be consolidated with a previously scheduled trial. We find that the district court’s
reasoning fell within its range of choices and was not an abuse of discretion.

       Second, this court must determine whether the district court properly considered
Blaes’s motivation behind his motion to dismiss. This court has previously held that
it was an abuse of discretion when the district court failed to consider whether a
motion to dismiss was being used for the improper purpose of avoiding an unfavorable
ruling and seeking a more favorable forum. Thatcher, 659 F.3d at 1215. To consider



                                          -6-
whether a motion to dismiss is improper, the district court must address the plaintiff’s
purported reason for the voluntary motion to dismiss. Donner, 709 F.3d at 697.

        Defendants argue that the district court did not consider whether Blaes was
engaging in improper forum shopping, and thus, it abused its discretion. As support,
defendants rely on this court’s decisions in Donner and Thatcher. In Thatcher,
plaintiff filed a motion to voluntarily dismiss without prejudice stating that he
intended to refile in state court with an amended complaint that would avoid federal
jurisdiction. Thatcher, 659 F.3d at 1213. The district court granted the motion to
dismiss without addressing plaintiff’s stated reason for the dismissal. Id. This court
found that the district court abused its discretion because the plaintiff stated that he
intended to try to avoid federal jurisdiction by amending his complaint and the district
court did not discuss it. Id. at 1214-15. We reasoned that the district court should have
addressed plaintiff’s purpose in seeking dismissal because “[i]f the trial court had done
so, it could have concluded that Thatcher was dismissing so he could return to the
more favorable state forum.” Id.

       In Donner, the plaintiff filed a motion to dismiss stating that he planned to add
a diversity-destroying defendant and refile in state court. Donner, 709 F.3d at 696.
Because the plaintiff did not have a viable claim against the proposed diversity
destroying defendant, we concluded that the plaintiff’s true purpose was to seek a
more favorable forum. Id. at 697. Thus, the district court abused its discretion when
it did not analyze whether the plaintiff’s claim against the diversity-destroying
defendant had any basis in fact and law. Id.

       Here, the district court specifically addressed Blaes’s proposed reason for
dismissing the action—in contrast to the court in Thatcher. The district court stated
that Blaes’s reason was proper, would not waste judicial time and effort, and would
not prejudice defendants. But defendants argue that, because the court did not
specifically state that Blaes was not forum shopping, the court did not consider

                                          -7-
whether Blaes was forum shopping. “An appellate court must be mindful that the
district courts are closer to the facts and the parties, and that not everything that is
important about a lawsuit comes through on the printed page.” Kern, 738 F.2d at 970.
Where the parties have submitted arguments opposing and supporting the motion to
voluntarily dismiss, the relevant factors are before the court. Mullen, 770 F.3d at 728.
In defendants’ response to the motion to dismiss, defendants argued that Blaes’s
purpose behind the motion was to refile in a more favorable forum. Thus, the district
court considered both Blaes’s stated reason for wanting to dismiss the action and refile
in state court and defendants’ argument that Blaes was forum shopping. By finding
that Blaes’s stated purpose was proper, the district court implicitly rejected
defendants’ argument that Blaes was forum shopping. Thus, we find that the district
court properly considered Blaes’s purpose for dismissal and did not abuse its
discretion.

       Defendants contend that this case is similar to Donner because the City of St.
Louis is not a proper venue for Blaes’s case, and therefore the district court abused its
discretion by not considering whether Blaes’s plan to refile had any basis in fact or
law. But unlike the facts in Donner where plaintiff did not have a valid claim against
the diversity-destroying defendant, Blaes is currently joined with the Swann case in
the City of St. Louis. Thus, it was not an abuse of discretion for the district court to
come to the same conclusion. Furthermore, if there is a dispute as to the interpretation
of Missouri’s venue statutes, then granting Blaes’s motion to dismiss allowed the
parties to seek a binding state-court decision on the disputed interpretation.

      Defendants allege that they were prejudiced because they were deprived of their
right to a federal forum. Defendants rely on B.S. ex rel. Soderberg v. Forest
Laboratories, Inc., No. 2:15-cv-4002-NKL, 2015 WL 4135508 (W.D. Mo. July 8,
2015), and Wingo v. State Farm Fire & Cas. Co., 2013 WL 4041477 (W.D. Mo.
August 8, 2013), as support. But in both of those cases the courts denied the motions
to dismiss because they found that the plaintiff’s purpose was improper, not because

                                          -8-
the plaintiff had a right to a federal forum.4 Defendants do not cite any support for
their contention that a motion to dismiss should be denied only because the defendants
would be deprived of a federal forum. The law allows a court to grant a voluntary
motion to dismiss so long as it is not wasteful or prejudicial or for the purpose of
forum shopping. Thatcher, 659 F.3d at 1213-14.

       Defendants also argue that Blaes’s motion should have been denied because
Blaes did not provide a reason for seeking voluntary dismissal until his reply brief.
One factor that the district court should consider when deciding a motion to dismiss
is whether the plaintiff has presented a proper explanation for his reason to dismiss.
Id. Blaes did not offer an explanation for his motion to dismiss until his reply brief.


       4
        In Soderberg, the plaintiffs filed their case in the District Court in the District
of New Jersey. Soderberg, 2015 WL 4135508, at *1. The plaintiffs then filed a
motion to voluntarily dismiss without prejudice, and the court granted the dismissal
over the defendants’ objections. Id. The plaintiffs then filed in the Circuit Court of
Cole County in Missouri, and defendants removed it to the District Court in the
Western District of Missouri. Id. The plaintiffs filed another motion to voluntarily
dismiss without prejudice stating that they planned to proceed as part of consolidated
litigation, but they did not state where they planned to refile. Id. at *2. The district
court noted that there was consolidated litigation about the same pharmaceutical drug
in two counties in New Jersey and in St. Louis, Missouri, but the plaintiffs had not
refiled in either place. Id. Thus, the district court reasoned that the true motivation
behind the second motion to dismiss was to refile in a more favorable forum, and the
district court denied the motion. Id.

       In Wingo, the plaintiff filed a motion to dismiss stating that he could refile in
state court with an amended complaint that would avoid federal jurisdiction. Wingo,
2013 WL 4041477, at *1. The district court compared the posture of the case to the
posture in Thatcher. Id. The court stated that “[i]n Thatcher, as here, the expressed
intent of the plaintiff was to amend his complaint in order to avoid federal
jurisdiction,” and that the voluntary motion to dismiss was improper forum shopping.
Id. Thus, the court in Wingo denied the motion to dismiss because it was made with
the intent to seek a more favorable forum. Id.

                                           -9-
In general, the purpose of a reply brief is to “respond to the statement of facts and
arguments of the appellee’s brief.” 5 Am. Jur. 2d Appellate Review § 517 (2017). It
was not improper for the district court to consider the reasons stated in Blaes’s reply
brief because Blaes was responding to defendants’ arguments against granting the
motion. Thus, it was not an abuse of discretion for the district court to consider the
information presented in Blaes’s reply brief.

      Finally, this court must decide whether the district court abused its discretion
because it did not address whether its grant of dismissal should be conditioned on
Blaes paying defendants’ costs and expenses. “[P]ayment to the defendant of the
expenses and a reasonable attorney fee may properly be a condition for dismissal
without prejudice under Rule 41(a).” Kern, 738 F.2d at 972. “The time and effort
invested by the parties, and the stage to which the case had progressed” are the most
important factors to consider when the court decides whether to grant a dismissal with
conditions. Id. In Kern, this court found that it was an abuse of discretion not to award
defendant costs and fees when the trial had already commenced. Id. at 972.

       Here, the parties spent two years working on the case and the court had ruled
on several Daubert motions. Defendants argue that they requested the district court to
at least condition the dismissal on Blaes paying defendants’ costs and fees, but the
district court failed to address the request, which amounts to an abuse of discretion.
We agree that the amount of effort invested and the stage to which the case had
progressed required an analysis of whether costs and expenses should be awarded.
Thus, we remand to the district court for an evaluation of whether costs and fees
should be assessed and the amount, if any.

      Finally, there are several motions pending before this court. Blaes’s motion to
supplement the record, Blaes’s motion to take judicial notice, and Johnson and
Johnson’s motion to supplement the record are granted. Johnson and Johnson’s
emergency motion to enjoin is denied as moot.

                                          -10-
                                   III. Conclusion

      The order of the district court, to the extent that it dismissed the complaint
without prejudice, is affirmed. The decision not to impose conditions is reversed, and
we remand to the district court to analyze whether costs and fees should be assessed
and the amount, if any.

      Also, Blaes’s motion to supplement the record, Blaes’s motion to take judicial
notice, and Johnson and Johnson’s motion to supplement the record are granted.
Johnson and Johnson’s emergency motion to enjoin is denied as moot.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

       Because I believe the district court abused its discretion by failing to address the
issue of forum shopping in its grant of voluntary dismissal, I respectfully dissent from
the bulk of the court’s opinion. While I would find it unnecessary to reach the
alternative question of whether the district court likewise abused its discretion in
granting dismissal without explaining why costs and fees were not awarded, given the
court’s holding on the first issue, I agree that it was impermissible for the district court
to ignore this consideration and, thus, join that portion of the opinion.

      Appellee Michael Blaes initially brought this product-liability action against
nine corporate defendants in the Circuit Court of St. Louis County, alleging that his
wife died from ovarian cancer caused by various products containing talcum powder.
The defendants were served on January 24, 2014 and timely removed the case to
federal district court. After initially moving to remand based on a lack of complete
diversity, Blaes conceded that his claims against the diversity-destroying defendants
were barred by the Innocent Seller Statute, dismissed these claims, and withdrew his
request to return to state court. See Mo. Rev. Stat. § 537.762. Thereafter, the only
remaining defendants were two Johnson & Johnson entities and Imerys Talc America,

                                           -11-
Inc. (collectively, “J&J”). The district court then entered a case-management order,
setting a jury trial to begin on March 7, 2016. Over the intervening months, the parties
completed twenty-four depositions, fully briefed J&J’s Daubert and summary
judgment motions, and resolved several other issues through motions practice. Of
note, the district court denied Blaes’s motion to compel entry to several J&J facilities
and granted J&J’s motions to strike two of Blaes’s expert witnesses.

        On January 28, 2016, the attorneys in this matter began a separate multi-plaintiff
trial involving similar talcum-power product-liability claims in the Circuit Court of the
City of St. Louis. The case, Hogans v. Johnson & Johnson, joined sixty-four unrelated
individuals from twenty-nine states with one St. Louis City resident. No.
1422-CC09012-01 (Mo. Cir. Ct. 22d Sept. 29, 2014). Because the first trial focused
on Alabama resident Jacqueline Fox’s claims, this litigation is often associated with
her name. After the Fox trial was underway, Blaes’s counsel approached J&J with
multiple requests to postpone the trial date. The defendants refused, however,
insisting that the case was ready for trial.

       Blaes then requested—and the district court ordered—a status conference to
occur on February 12, 2016. At the meeting, the court informed Blaes’s counsel that
they would be allowed only two or three expert witnesses and that, in light of prior
talcum-powder trials, the case should be streamlined. The court also noted that Blaes
should not elicit repetitive testimony on the same issues. After receiving this
guidance, Blaes asked for a continuance with leave to reopen discovery. The district
court granted this request and entered an order resetting trial for July 6, 2016.

      On March 9, 2016, J&J moved to reset Blaes’s trial date due to a scheduling
conflict with another talcum-powder trial setting in New Jersey.5 Blaes responded


       5
        The court reads this filing to suggest that J&J “would be unavailable for trial
in this case until after February 2017.” Ante, at 3. Yet the basis for this conclusion

                                          -12-
with a motion to voluntarily dismiss the case without prejudice, pursuant to Federal
Rule of Civil Procedure 41(a)(2). The motion failed to include any justification as to
why dismissal was appropriate, but it is telling that the Fox jury found against J&J
only two weeks earlier and awarded Fox $10 million in compensatory damages and
$62 million in punitive damages. J&J opposed dismissal, arguing that the case was
ready for trial, that the court had already excluded two experts, and that Blaes’s
primary reason for dismissing the case was forum shopping. J&J alternatively
requested that the district court impose several conditions on dismissal, including that
Blaes pay its fees and costs. In his reply brief, Blaes confirmed that he intended to
refile in state court, stating that he “believe[d] he [could] try his case starting January
9, 2017 as one of multiple consolidated trial plaintiffs” in Swann v. Johnson &
Johnson—another multi-plaintiff talcum-powder case pending in the St. Louis City
Circuit Court. See No. 1422-CC09326-01 (Mo. Cir. Ct. 22d Dec. 5, 2014).

       Four days later, before J&J could seek leave to file a sur-reply, see E.D. Mo.
L.R. 4.01(C), the district court granted Blaes’s motion to dismiss. In a two-page
memorandum, the court suggested that dismissal was proper “because this case will
likely be refiled and consolidated with Swann . . . [and] it makes sense for the state
court to hear a multi-plaintiff trial regarding the same type of ovarian cancer.” Yet the
court failed to mention J&J’s forum-shopping claim, and it discussed only scheduling
considerations in concluding that dismissal would not prejudice J&J.

      J&J timely appealed this order. Meanwhile, the St. Louis City Circuit Court
granted the Swann plaintiffs leave to file an amended petition adding Blaes and eleven
other non-residents as intervenors. As J&J notes, however, the Swann court also
ordered that the January 9, 2017 trial would be a single-plaintiff trial chosen by
defendants, thereby undermining Blaes’s efficiency rationale for dismissal of this case.


is unclear to me, as it appears that J&J’s schedule left sufficient time for a three-week
trial in August and September or October through December of 2016.

                                           -13-
To date, nearly fourteen months after the district court granted Blaes’s motion to
dismiss, his trial still has not commenced in the St. Louis City Circuit Court.

       My primary concern with the court’s approach is that it harkens back to an
overly permissive standard for voluntary dismissals that we long ago abandoned. “At
common law, dismissals without prejudice were, in general, freely allowed at any time
before the case was ready for decision.” Kern v. TXO Prod. Corp., 738 F.2d 968, 970
(8th Cir. 1984). However, “[t]he adoption of Rule 41(a) in 1938 completely changed
this practice. The rule limits the right of dismissal at the behest of the plaintiff to the
early stages of the proceedings, thus curbing the abuses of this right that commonly
had occurred under [the earlier approach].” 9 Charles Alan Wright et al., Federal
Practice and Procedure § 2363 (3d ed. 2017). Thus, the current version of Rule
41(a)(2) provides that, after a defendant serves its answer, “an action may be
dismissed at the plaintiff’s request only by court order, on terms that the court
considers proper.” We have previously held that district courts entertaining such
requests must consider: “[1] whether the party has presented a proper explanation for
its desire to dismiss; [2] whether a dismissal would result in a waste of judicial time
and effort; and [3] whether a dismissal will prejudice the defendants.” Donner v.
Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013) (citation omitted).

       J&J’s main argument is that the district court abused its discretion in granting
dismissal without sufficiently examining the first of these factors—whether Blaes had
presented a proper explanation for his request. Specifically, J&J contends that the
district court was required to examine the viability of Blaes’s plan to dismiss and refile
and whether his real motive was to defeat its attempt to remove the case to a federal
forum, particularly in light of the $72 million judgment in Fox and Missouri’s
relatively lax expert-witness standard. See State Bd. of Registration for the Healing
Arts v. McDonagh, 123 S.W.3d 146, 153, 155-56 (Mo. 2003) (en banc) (holding that
Mo. Rev. Stat. § 490.065, rather than Daubert, supplies the standard for the admission
of expert testimony in civil cases in Missouri). I share this concern and believe that,

                                           -14-
at the very least, the district court should have addressed J&J’s forum-shopping
argument.

       We have repeatedly held that “a party is not permitted to dismiss merely to
escape an adverse decision nor to seek a more favorable forum,” Donner, 709 F.3d at
697 (citations omitted), and we have reversed a number of orders granting motions for
voluntary dismissal when the overall circumstances indicate forum shopping as a
motive, see, e.g., id. at 699 (listing cases). As we explained in Thatcher v. Hanover
Insurance Group, Inc., this rule is particularly important in the removal context
because the rule against voluntary dismissal for a more favorable forum “coincides
with other measures which strike a balance between the plaintiff’s right to select a
particular forum and the defendant’s right to remove the case to federal court.” See
659 F.3d 1212, 1214 (8th Cir. 2011) (citations and internal quotation marks omitted).
Thus, given that the district court’s decision to grant dismissal effectively overrode
J&J’s right to remove this case to federal court, it is especially problematic that the
district court failed to address J&J’s forum-shopping claim.

        The court avoids this difficulty by suggesting that “the district court implicitly
rejected defendants’ argument that Blaes was forum shopping,” apparently by finding
that dismissal would advance both parties’ interest in a speedy trial. Ante, at 7. As an
initial matter, I note that Blaes provided absolutely no reason for dismissal in his
initial motion. See Donner, 709 F.3d at 699. Only in reply to J&J’s motion in
opposition to dismissal did Blaes finally assert his timeliness and efficiency
justifications for allowing him to refile in state court. However, I am not convinced
that, “[b]y finding that Blaes’s stated purpose was proper,” the district court was
entitled to conclude that he necessarily was not forum shopping. Id. A plaintiff
certainly could assert a legitimate reason for voluntary dismissal while his or her true
motive lay in securing a more favorable forum. Further, I reject the notion that we
automatically should deem an argument to have been considered by a district court
simply because it was raised in briefing. Otherwise, it is unclear to me how we ever

                                          -15-
could find that the court had abused its discretion by failing to consider “a relevant
factor that should have been given significant weight.” See Mullen v. Heinkel
Filtering Sys., Inc., 770 F.3d 724, 727-28 (8th Cir. 2014).

       Most importantly, however, even assuming that allowing Blaes to refile in state
court would result in a faster and more efficient trial, the court fails to recognize that
granting dismissal also defeated J&J’s right to a federal forum. Based on the
jurisdictional nature of this consideration, we have previously held that district courts
must address forum-shopping concerns before granting a motion to dismiss:

      [T]he determination of whether the motion to dismiss was an improper
      forum-shopping measure, by its very nature, called into question the trial
      court’s subject matter jurisdiction. Defendants exercised their right to
      removal under [diversity jurisdiction], and [the plaintiff] appears to have
      sought dismissal merely to deprive the federal court of jurisdiction. As
      a result, determining whether the district court had subject matter
      jurisdiction was at the crux of the issue of whether the motion to dismiss
      was being used for the improper purpose of seeking a more favorable
      forum. The district court erred in failing to take up the jurisdictional
      question, thereby necessitating remand of this matter.

Thatcher, 659 F.3d at 1215.6 Indeed, if there is any question about the importance of
an out-of-state defendant’s right to remove a case from state court or the fundamental
nature of federal diversity jurisdiction, one need look no further than Article III of the
Constitution and the ratification debates.

       6
         Our previous opinions in Kern v. TXO Production Corp. and Mullen v.
Heinkel Filtering Systems, Inc. appear to support the court’s position at first glance.
However, there was no forum-shopping concern raised in Kern, and our decision in
Thatcher controls as an earlier-in-time opinion to the extent it conflicts with Mullen.
See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“It is a
cardinal rule in our circuit that one panel is bound by the decision of a prior panel .
. . [and as such,] when faced with conflicting panel opinions, the earliest opinion must
be followed . . . .” (citations and internal quotation marks omitted)).

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See U.S. Const. art. III, § 2 (creating diversity jurisdiction); The Federalist No. 80
(Alexander Hamilton).

       Given its failure to address this weighty concern, I would find that the district
court abused its discretion and would remand for consideration of J&J’s forum-
shopping argument. Although I believe this alone is a sufficient basis for reversal, I
also question whether the district court sufficiently addressed the other two mandatory
considerations for granting voluntary dismissal under Rule 41(a)(2)—whether
dismissal would result in a waste of judicial time and effort and whether it would
prejudice the defendants. See Donner, 709 F.3d at 697. While the court is correct that
a loss of tactical advantage is by itself insufficient to defeat a motion for voluntary
dismissal, see Mullen, 770 F.3d 728, it is equally true that “a party is not permitted to
dismiss merely to escape an adverse decision,” Donner, 709 F.3d at 697 (citation and
internal quotation marks omitted). As noted above, Blaes encountered various
setbacks in more than two years of litigation before the district court, including the
denial of his motion to compel entry and the grant of J&J’s motions to strike two of
his expert witnesses. Thus, just as the court concluded with respect to costs and fees,
I believe a fuller explanation was required to conclude that dismissal would not waste
judicial resources or impermissibly prejudice J&J.

      Accordingly, I respectfully dissent from the court’s decision to affirm voluntary
dismissal and concur in its reversal as to the denial of J&J’s motion for costs and fees.
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