                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                        June 16, 2005
                             FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk

                                 No. 04-31003



TAMMY PHILIBERT; RUDOLPH PHILIBERT,
                                                Plaintiffs-Appellants,


                                    versus

ETHICON, INC., A Subsidiary of
Johnson & Johnson; ET AL,
                                                Defendants,

ETHICON, INC., A Subsidiary of
Johnson & Johnson,
                                                Defendant-Appellee.




             Appeal from the United States District Court
                For the Eastern District of Louisiana


                         (                         )

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     We granted leave to appeal the district court’s denial of

Philibert’s     motion   for    voluntary    dismissal   filed     under     Rule

41(a)(2), Fed. R. Civ. P.         The district court denied the motion,

concluding that dismissal would subject Ethicon to clear legal

prejudice.     As the district court put it, “The question is whether

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
there is any legal prejudice with regard to moving it to Florida.”

The district court explained that suit had been filed in Florida

against the same defendant, as well as another defendant who was

Florida based, giving rise to choice of law issues should he order

the case transferred to Florida.

     Subsequent to our grant of leave to appeal, the district court

in Florida transferred the litigation pending there to the court

below in Louisiana.   We are persuaded to vacate our grant of leave

to appeal in that these subsequent events have fundamentally

changed the issues before the district court and on appeal.

     The leave to appeal is VACATED, and the case is REMANDED to

the district court for further proceedings.




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