                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

PHARMACEUTICAL CARE                                :
MANAGEMENT ASSOCIATION,                            :
                                                   :
               Plaintiff,                          :        Civil Action No.:      04-1082 (RMU)
                                                   :
               v.                                  :        Re Document Nos.: 93, 95
                                                   :
DISTRICT OF COLUMBIA et al.,                       :
                                                   :
               Defendants.                         :

                                  MEMORANDUM OPINION

           GRANTING THE PLAINTIFF’S MOTION TO DISMISS WITHOUT PREJUDICE;
            DENYING THE DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE

                                       I. INTRODUCTION

       This matter is before the court on the plaintiff’s motion to dismiss its remaining claims

without prejudice and the defendants’ motion to dismiss the remaining claims with prejudice.

The plaintiff, the Pharmaceutical Care Management Association, brought suit against the District

of Columbia and its mayor. The plaintiff alleges that a District of Columbia law that aimed to

regulate a sector of the pharmaceutical industry violated the constitutional rights of the plaintiff’s

organizational members and impermissibly intruded upon an area of federal regulation. Having

recently received a favorable ruling by the Circuit on its preemption claim, the plaintiff now

moves to dismiss its remaining constitutional claims without prejudice. The defendants move to

dismiss the plaintiff’s remaining claims with prejudice. Because the plaintiff’s motion satisfies

the prerequisites of Rule 41(a)(2), the court grants the plaintiff’s motion and denies the

defendants’ motion.
                     II. FACTUAL & PROCEDURAL BACKGROUND

       The plaintiff is a national trade association that represents various businesses known as

pharmaceutical benefits managers (“PBMs”). Compl. ¶ 8. PBMs act as intermediaries between

health benefit providers and the 200 million Americans who receive prescription drugs through

their health plans. Id.

       In 2004, the D.C. Council passed the Access Rx Act. See generally D.C. CODE §§ 48-

832.01 et seq. Title II of the Access Rx Act imposed various fiduciary and disclosure duties on

PBMs. Mem. Op. (Dec. 21, 2004) at 2. Following passage of the Access Rx Act, the plaintiff

commenced this action, alleging that Title II of the Access Rx Act violated a number of statutory

and constitutional provisions. See generally Compl. Specifically, the plaintiff alleged that Title

II impermissibly intruded upon an area of federal regulation and that Title II otherwise ran afoul

of the Fifth Amendment’s Takings Clause, the Commerce Clause and the First Amendment. Id.

¶¶ 27-66.

       Following a series of procedural twists and turns,1 this court granted in part the plaintiff’s

motion for partial summary judgment on the grounds that federal law preempted Title II. See

generally Mem. Op. (Mar. 19, 2009). The defendants appealed, and the Circuit affirmed in part

and reversed in part, holding that federal law indeed preempted certain provisions of the Access

Rx Act. See generally Pharm. Care Mgmt. Ass’n v. District of Columbia, 613 F.3d 179 (D.C.

Cir. 2010). Nevertheless, the Circuit held that several other provisions of the Act were not


1
       The procedural history of this case is laid out in full in a number of opinions issued by this court
       and the Circuit. See generally Pharm. Care Mgmt. Ass’n v. District of Columbia, 613 F.3d 179,
       182-83 (D.C. Cir. 2010); Mem. Op. (Mar. 19, 2009) at 1-2; Pharm. Care Mgmt. Ass’n v. District
       of Columbia, 522 F.3d 443, 445-46 (D.C. Cir. 2008); Mem. Op. (Mar. 6, 2007) at 1-2; Mem. Op.
       (Dec. 21, 2004) at 1-2.




                                                    2
similarly displaced by federal law. Id. at 186. The Circuit remanded to allow this court to

adjudicate the plaintiff’s remaining constitutional claims. Id. at 190.

       In the wake of the Circuit’s ruling, the plaintiff has filed its current motion to dismiss its

remaining claims without prejudice. See generally Pl.’s Mot. to Dismiss Without Prejudice

(“Pl.’s Mot.”). The defendants filed an opposition, see generally Defs.’ Opp’n to Pl.’s Mot. to

Dismiss Without Prejudice (“Defs.’ Opp’n”), and a contemporaneous motion to dismiss the

remaining claims with prejudice, see generally Defs.’ Mot. to Dismiss with Prejudice (“Defs.’

Mot.”). With these motions now ripe for review, the court turns to the parties’ arguments and the

relevant legal standards.


                                           III. ANALYSIS

                        A. Legal Standard to Dismiss Under Rule 41(a)2

       Federal Rule of Civil Procedure 41(a) governs voluntary dismissal of an action. FED. R.

CIV. P. 41(a)(1). Under Rule 41(a)(2), “an action shall not be dismissed at the plaintiff’s instance

save upon order of the court and upon such terms and conditions as the court deems proper.”

2
       As a threshold matter, the parties disagree as to whether the court should consider the plaintiff’s
       motion under Rule 41(a)(2) as the defendants contend, Defs.’ Mot. at 3, or as an amendment –
       presumably under Rule 15(a) – as proposed by the plaintiffs, see Pl.’s Reply at 5 n.5. Rule
       41(a)(2) provides for the voluntary dismissal of a civil action by court order, whereas Rule 15(a)
       allows a plaintiff to amend its complaint so as to eliminate certain claims from an action. See
       FED. R. CIV. P. 15(a), 41(a)(2). Ultimately, an amendment under Rule 15(a) may have the same
       practical effect as a Rule 41(a)(2) motion if the amendment would eliminate all of a plaintiff’s
       outstanding claims against a defendant. MOORE’S FED. PRAC. § 42.21[2] (3d ed. 2004).
       Accordingly, some courts have suggested that the choice of rules under these circumstances is
       technical or immaterial. Wakefield v. N. Telecom, 769 F.2d 109, 114 (2d Cir. 1985); Wilson v.
       Crouse-Hinds Co., 556 F.2d 870, 873 (8th Cir. 1977). At least one member of this court has
       applied Rule 41(a)(2) when a plaintiff has received a favorable ruling on some claims and moves
       to dismiss without prejudice all of its remaining claims. See, e.g., Unitronics (1989) (R “ G) Ltd.
       v. Gharb, 532 F. Supp. 2d 25, 26-27 (D.D.C. 2008). The plaintiff here is in a nearly identical
       procedural posture. Because the plaintiff here seeks to voluntarily dismiss all that meaningfully
       remains of its action, this court will consider its motion to dismiss under Rule 41(a). See
       Unitronics, 532 F. Supp. 2d at 26-27.




                                                    3
FED. R. CIV. P. 41(a)(2); Taragan v. Eli Lilly & Co., 838 F.2d 1337, 1339 (D.C. Cir. 1988).

Dismissals under Rule 41(a)(2) “generally [are] granted in the federal courts unless the defendant

would suffer prejudice other than the prospect of a second lawsuit or some tactical

disadvantage.” Conafay v. Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986); see also 9 FED.

PRAC. & PROC. 2d § 2364. A court applying Rule 41(a)(2) therefore must consider whether the

plaintiff seeks the motion for voluntary dismissal in good faith, and whether the dismissal would

cause the defendant “legal prejudice” based on factors such as any excessive delay or lack of

diligence by the plaintiff in prosecuting the action, an insufficient explanation by the plaintiff for

taking nonsuit and the stage of the litigation. In re Vitamins Antitrust Litig., 198 F.R.D. 296, 304

(D.D.C. 2000).

      B. The Court Grants the Plaintiff’s Motion and Denies the Defendants’ Motion

       The defendants argue that the court should deny the plaintiff’s motion because granting

the motion would cause legal prejudice to befall the defendants. Defs.’ Mot. at 3. The

defendants ask that the court dismiss the plaintiff’s remaining claims with prejudice and

definitively rule on the constitutionality of Title II. Id. at 4. Without a favorable ruling on the

merits, the defendants contend, Title II’s constitutionality would remain uncertain. Id. The

defendants reason that the current uncertainty about Title II’s constitutionality would effectively

prevent public enforcement of the Access Rx Act. Id. The defendants also argue that their

“extensive briefing” and “other preparation efforts” would be “entirely wasted” if the case were

dismissed without prejudice. Id. Finally, the defendants assert that the “public interest” lies in a

speedy resolution of the important constitutional issues that have been raised in this litigation.

Id.




                                                  4
         The plaintiff contends that voluntary dismissal will not cause the defendants any legal

prejudice. See generally Pl.’s Reply. Specifically, the plaintiff argues that the specter of future

litigation does not constitute legal prejudice under Rule 41(a)(2). Id. at 5. Furthermore, the

plaintiff argues that the defendants’ years of efforts litigating this matter have only been wasted

inasmuch as the defendants elected to defend a law that this court and the Circuit have deemed

unconstitutional. Id. Finally, the plaintiff argues that the defendants’ claim that any remaining

legal uncertainties will “effectively” prevent enforcement of the law is baseless, as any and all

laws may be subjected to some future legal challenge.3 Id.

         At the outset, the court notes that the defendants do not contend that the plaintiff has

prosecuted this case with undue delay or bad faith. See Defs.’ Mot. at 4. The court thus turns to

the question of whether any of the defendants’ allegations amount to legal prejudice under Rule

41(a).

         It is beyond quibble that the prospect of a second lawsuit does not constitute legal

prejudice. See, e.g., Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 217 (1947) (explaining

that a voluntary dismissal should be granted “unless the defendant would suffer some plain legal

prejudice other than the mere prospect of a second lawsuit”); Jones v. Sec. Exch. Comm’n, 298

U.S. 1, 19 (1936) (holding that a complainant should be granted the right to dismiss a claim

unless it would “prejudice the defendants in some other way than by the mere prospect of being


3
         The plaintiff also argues that its remaining claims are moot given the Circuit’s ruling that parts of
         Title II are preempted by federal law. Pl.’s Mot. at 2. Moreover, the plaintiff contends that the
         remaining claims are not ripe given that the Access Rx Act may be subject to further amendment.
         Id. at 4-6. Because the court determines that no legal prejudice would result from its decision to
         grant the plaintiff’s motion, however, these arguments need not be reached. See, e.g., Unitronics,
         532 F. Supp. 2d at 26-27 & n.1 (D.D.C. 2008) (declining to decide whether or not a plaintiff’s
         remaining claim was moot and instead allowing voluntary dismissal under Rule 41(a)(2)); Black
         Ride III, Inc. v. West, 2005 WL 1522055, at *3 (D.D.C. June 28, 2005) (holding that even a
         defendant’s motion to dismiss for lack of subject matter jurisdiction or failure to state a claim
         does not deprive a plaintiff of its right to voluntarily dismiss its claims under Rule 41(a)).


                                                      5
harassed and vexed by future litigation of the same kind”); Conafay, 793 F.2d at 353 (“[W]e

simply observe that dismissals have generally been granted in the federal courts unless the

defendant would suffer prejudice other than the prospect of a second lawsuit or some tactical

disadvantage.”). In addition, the mere fact that a defendant may have incurred substantial

expense prior to dismissal does not amount to legal prejudice. In re Vitamins, 198 F.R.D. at 304-

05. Finally, litigation expenses are not deemed “wasted” if they may be of use in future

litigation. Hisler v. Gallaudet Univ., 344 F. Supp. 2d 29 (D.D.C. 2004).

        Arguing that they would be legally prejudiced without a ruling on the merits, the

defendants rely heavily on their contention that Title II’s constitutionality is “uncertain” and that

enforcement of the law would be stymied in the absence of a favorable ruling on the merits.

Defs.’ Mot. at 4. In essence, the defendants argue that granting the plaintiff’s motion may

subject the defendants to future litigation over the constitutionality of the Access Rx Act.

Although the defendants are correct, the fear of future litigation does not constitute legal

prejudice under Rule 41(a)(2). Conafay, 793 F.2d at 353; see also Westland Water Dist. v.

United States, 100 F.3d 94, 96 (9th Cir. 1996) (holding that “uncertainty” caused by the specter

of future litigation is “insufficient to establish plain legal prejudice”).

        Moreover, the court is not convinced that the defendants’ efforts have thus far been

wasted. If the constitutionality of Title II is litigated in the future, then the defendants’ expenses

towards litigation will not have been in vain because its preparations may be put to good use.

Hisler, 344 F. Supp. 2d at 37. In any event, even “substantial expenses prior to dismissal do not




                                                    6
amount to legal prejudice” under Rule 41(a)(2). In re Vitamins, 198 F.R.D. at 304-05.4

       Finally, the court is not convinced that the public interest lies in the immediate resolution

of any and all questions surrounding the constitutionality of the Access Rx Act. The defendants

here insist that the threat of future litigation may delay implementation of the law and harm the

public interest. Defs.’ Mot. at 4. However, the defendants’ “public interest” argument is nothing

more than a thinly veiled reiteration of the defendants’ earlier claim that they may be subject to

future litigation, an argument that has no legal merit. Conafay, 793 F.2d at 353. Moreover, the

court is hesitant to rush headlong into a legal controversy that the parties do not mutually wish to

pursue. The premise of our adversarial system is that courts “do not sit as self-directed boards of

legal inquiry and research, but essentially as arbiters of legal questions presented and argued by

the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Thus, the

public interest lies in resolving these constitutional issues when the defendants are faced with a

legal adversary that wishes to pursue its case in full.

       In sum, the defendants have not made a showing of legal prejudice under Rule 41(a)(2).

Accordingly, the court grants the plaintiff’s motion to dismiss its remaining claims without

prejudice and denies the defendants’ motion.




4
       The defendants have included a last-minute request for this court to condition the plaintiff’s
       voluntary dismissal on the payment of the defendants’ litigation expenses. Defs.’ Reply at 3. A
       court may choose to condition the dismissal of the plaintiff’s claims on payment of the
       defendant’s litigation expenses. In re Vitamins, 198 F.R.D. at 304-05; Piedmont Resolution v.
       Johnston, Rivlin & Foley, 178 F.R.D. 328, 331-32 (D.D.C. 1998). The court sees no reason to do
       so here because the plaintiff has been diligent in prosecuting its claim and has not engaged in
       vexatious or dilatory tactics. Cf. In re Vitamins, 198 F.R.D. at 304-06 (imposing conditions on
       voluntary dismissal when the plaintiffs showed a lack of diligence and had proceeded with
       unnecessary delay); Hubbard v. United States, 545 F. Supp. 2d 1, 7-8 (D.D.C. 2008) (same).



                                                  7
                                      IV. CONCLUSION

       For the foregoing reasons, the court grants the plaintiff’s motion to voluntarily dismiss its

remaining claims without prejudice and denies the defendants’ motion to dismiss the plaintiff’s

remaining claims with prejudice. An Order consistent with this Memorandum Opinion is

separately and contemporaneously issued this 12th day of July, 2011.


                                                               RICARDO M. URBINA
                                                              United States District Judge




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