UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS

Case No. 3:19md2885

LIABILITY LITIGATION

This Document Relates to:

Lonnie Burgus, 7:20cv00007

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

This matter is before the Court on Plaintiff Lonnie Burgus’s Motion to 

Dismiss Without Prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). 

Mr. Burgus seeks dismissal without prejudice based on DOEHRS data recently 

produced by the Department of Defense. See Pl.’s Mot. to Dismiss, ECF No. 9, at 

4. Defendants oppose Plaintiff’s request for dismissal without prejudice, and insist

Plaintiff’s case should instead be dismissed with prejudice. See generally Defs.’ 

Opp., ECF No. 10. 

BACKGROUND

On February 27, 2020, Mr. Burgus was selected randomly by the Court as an 

alternate for the bellwether trial pool pursuant to the procedures for bellwether 

selection set forth in Pretrial Order Nos. 23 and 24. See Pretrial Order No. 29, ECF 

No. 1015. Discovery, including case-specific discovery, has been ongoing since 

then. On June 2, 2020, the Court entered an Order setting forth the process by which 

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the bellwether trial pool would be grouped into four trial groups, Groups A, Group 

B, Group C, and Group D. See Pretrial Order No. 40, ECF No. 1158. 

At the June 12, 2020 bi-weekly Leadership call, Plaintiff’s Leadership 

informed the Court that a recent production of DOEHRS data, including audiograms,

from the Department of Defense disclosed that Mr. Burgus suffered significant 

hearing loss nearly a decade before his use of the Combat Arms Earplug Version 2 

(CAEv2). See Defs.’ Opp. at Ex. 2, June 12, 2020 Leadership Teleconference Tr., 

Case No. 3:19md2885 ECF No. 1198, at 8:20-9:6. Accordingly, the Court paused 

the process for placing the remaining alternate bellwether plaintiffs, including Mr. 

Burgus, into the remaining trial groups.

Pursuant to Case Management Order No. 13 (ECF No. 1203), the Court was 

recently advised that Mr. Burgus no longer wished to proceed as a bellwether

Plaintiff, and Mr. Burgus was removed from the bellwether trial pool. 

DISCUSSION

Mr. Burgus requests dismissal without prejudice per Rule 41(a)(2) because 

the reason for his seeking dismissal—the DOEHRS data—was only recently 

discovered “through no fault of his own or his attorneys,” and Defendants would not 

suffer any prejudice from a dismissal without prejudice. See Pl.’s Mot. at 4. 

Rule 41(a)(2) is meant to “primarily . . . prevent voluntary dismissals which 

unfairly affect the other side, and to permit the imposition of curative conditions.” 

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Arias v. Cameron, 776 F.3d 1262, 1268 (11th Cir. 2015). Under Rule 41(a)(2), an 

action that has proceeded past service of an answer or motion for summary judgment 

by the opposing party may be dismissed at the plaintiff’s request, but “on terms that 

the court considers proper.” Accordingly, the court has discretion to dismiss the 

case with or without prejudice. See Macort v. Prem, Inc., No. 04-15081, 2005 WL 

8151794, at *3 (11th Cir. Mar. 29, 2005); see also Arias, 776 F.3d at 1269 (“[T]he 

court should . . . attach[] such conditions to the dismissal as are deemed 

appropriate.”). 

In reaching its determination, the court should weigh the relevant equities and 

“do justice between the parties,” McCants v. Ford Motor Co., 781 F.2d 855, 857 

(11th Cir. 1986), keeping in mind that “dismissal [with prejudice] is the most severe

sanction that a court may apply,” United States v. $70,670.00 in U.S. Currency, 929 

F.3d 1293, 1301 (11th Cir. 2019), cert. denied sub nom. Salgado v. United States, 

206 L. Ed. 2d 713 (Apr. 6, 2020) (alteration in original) (quoting Durham v. Fla. E. 

Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967)). “[I]n most cases, dismissal 

[without prejudice] should be granted unless the defendant will suffer clear legal 

prejudice, other than the mere prospect of a subsequent lawsuit, as a result.” See 

McCants, 781 F.2d at 856-57. Determining clear legal prejudice requires courts to 

ask the “crucial” question of “[w]ould the defendant lose any substantial right by the 

dismissal.” Pontenberg v. Bos. Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001). 

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The Eleventh Circuit has affirmed district court denials of plaintiffs’ motions to 

dismiss without prejudice based on findings of clear legal prejudice against 

defendants where defendants have spent extensive time and expense on discovery, 

motions practice, and trial preparation, and where motions for summary judgment 

on the merits of the claims were pending1

. See, e.g., McBride v. JLG Indus., Inc., 

189 F. App’x 876, 878 (11th Cir. 2006); Stephens v. Georgia Dep’t of Transp., 134 

F. App’x 320, 323 (11th Cir. 2005); Fisher v. Puerto Rico Marine Mgmt., Inc., 940 

F.2d 1502, 1503 (11th Cir. 1991); see also McCants, 781 F.2d at 860 (“A plaintiff 

ordinarily will not be permitted to dismiss an action without prejudice under Rule 

41(a)(2) after the defendant has been put to considerable expense in preparing for 

trial.”). That plaintiff could obtain a tactical advantage over defendant in future 

litigation, however, is no bar to voluntary dismissal without prejudice. See McCants, 

781 F.2d at 856-57.

Defendants will not suffer clear legal prejudice from dismissal of Mr. Burgus 

without prejudice. Mr. Burgus was selected as an alternate in the bellwether trial 

pool, and was not selected for any trial group, let alone the first trial group, Group 

A. Discovery remains ongoing, and as of the date of this Order, fact discovery in 

only Group A is set to close on October 2, 2020. See Pretrial Order No. 43, ECF 

1 But see Potenberg, 252 F.3d at 1258 (“[T]he mere attempt to avoid an adverse summary 

judgment ruling in and of itself, particularly where there is no evidence of bad faith, does not 

constitute plain legal prejudice.”). 

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No. 1204. Defendants do not argue, and the Court does not find, that dismissal of 

Mr. Burgus without prejudice would waste substantial time and costs Defendants 

have spent preparing his case for trial so as to clearly prejudice Defendants. Nor 

does Mr. Burgus’s motion for dismissal without prejudice come at a time when 

motions for summary judgment on the merits of Plaintiff’s claims are pending.2

 Moreover, Defendants do not argue that Mr. Burgus has otherwise engaged 

in prejudicial dilatory tactics by seeking dismissal without prejudice. Mr. Burgus’s

case has been pending for only seven months, and thus far, he has complied with the 

Court’s orders. Instead, Defendants warn that permitting Mr. Burgus to dismiss his 

case without prejudice could incentivize other bellwether plaintiffs to “jump ship.” 

See Defs.’ Opp. at 9. Although the undersigned appreciates Defendants’ position, 

the potential that additional bellwether plaintiffs will follow suit and seek dismissal 

without prejudice does not amount to clear legal prejudice here. With that said, the 

undersigned recognizes the importance of efficient case management, particularly in 

an MDL, and maintaining the integrity of the bellwether process to the just and 

2 Mr. Burgus cites the recently produced DOEHRS data as the reason for his seeking 

dismissal. See Pl.’s Mot. at 4. He does not specifically point to what in the DOEHRS data 

influenced his motion, but it is possibly because the DOEHRS data show Mr. Burgus suffered 

significant hearing loss well before the CAEv2 was made available to military servicemen and 

women. See Defs.’ Opp. at Ex. 1; Defs.’ Opp. at Ex. 2, June 12, 2020 Leadership 

Teleconference Tr. 8:20-9:9, 11:13-19 (Plaintiffs’ Leadership noting that it was “an issue that 

may require the case not to proceed in some form or fashion”). Because there are no pending 

motions on the merits of any plaintiff’s claims, including causation, the Court is reluctant to find 

that Mr. Burgus’s motion is motivated to avoid an impending adverse ruling. 

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speedy determination of the litigation. See Fed. R. Civ. P. 1; see also In re FEMA 

Trailer Formaldahyde Prod. Liab. Litig., 628 F.3d 157, 163 (5th Cir. 2010) (“Courts 

must be exceedingly wary of mass litigation in which plaintiffs are unwilling to 

move their cases to trial.”). Should additional bellwether plaintiffs seek dismissal

without prejudice as their cases progress in discovery or head to trial, the Court may 

find dismissal with prejudice warranted. 

Accordingly:

1. Plaintiff’s Motion to Dismiss Without Prejudice, ECF No. 9, is 

GRANTED.

2. This action is hereby DISMISSED WITHOUT PREJUDICE.

3. The Clerk is directed to close the file in its entirety for all purposes.

SO ORDERED, on this 13th day of July, 2020.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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