Philibert, et al v. Ethicon Inc

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 16, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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

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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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