UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS 

LIABILITY LITIGATION 

This Document Relates to: 

MICHELLE BLUM, 

CASE NO. 7:20-CV-00122-MCR/GRJ 

 

Case No. 3:19-md-2885 

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones 

PLAINTIFF’S REPLY TO 

PLAINTIFF’S MOTION TO 

DISMISS WITHOUT PREJUDICE 

PLAINTIFF’S REPLY TO DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION TO DISMISS WITHOUT PREJUDICE 

 Pursuant to Rule 41(a)(2), Plaintiff Michelle Blum, by and through her 

undersigned counsel, has respectfully requested dismissal of this action without 

prejudice, with each party to bear its own costs. Defendants argue that the dismissal 

should be with prejudice and that Plaintiff should be ordered to pay Defendants’ 

costs. Plaintiff submits this reply in support of her Motion to Dismiss Without 

Prejudice. See Dkt. 21 at 1. 

1. DISMISSAL SHOULD BE WITHOUT PREJUDICE. 

Legal Standard 

 “[A] district court has discretion to grant a voluntary dismissal without 

prejudice even when a defendant objects and asserts he is entitled to a judgment on 

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the merits.” Fretwell v. Kansas City Life Ins. Co., 643 F. Supp. 2d 1317, 1328 (N.D. 

Fla. 2009) (emphasis added). As Rule 41(a)(2) itself states, such motions should be 

granted “on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). A motion 

for dismissal without prejudice should ordinarily be granted “unless the defendant 

will suffer clear legal prejudice, other than the mere prospect of a subsequent 

lawsuit, as a result.” McCants v. Ford Motor Co., 781 F.2d 855, 856 (11th Cir. 1986); 

see also Holiday Queen Land Corp. v. Baker, 489 F.2d 1031, 1032 (5th Cir. 1974); 

Durham v. Fla. E. Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967). “[T]he crux of 

the inquiry is whether the defendant would lose any substantial right by the 

dismissal,” and “[f]ew scenarios meet that standard.” Griffin v. Texas Roadhouse, 

Inc., 2017 WL 5476802, at *1-2 (N.D. Fla. Mar. 14, 2017) (citations and internal 

quotation marks omitted). 

Argument 

Until June 3, 2021, Ms. Blum did not know when her bellwether case would 

be set for trial. See Dkt. 17. Ms. Blum complied with all the Court’s directives to get 

her case ready for trial on an unknown date and should not be penalized for her 

participation in the rigorous Bellwether Plaintiff process. 

Despite Defendants’ contrary insinuations, Ms. Blum is not simply dismissing 

her claim because she “no longer has faith” in her claims. Defs.’ Br. at 5. Defendants 

were informed prior to Ms. Blum’s motion that she wishes to dismiss her suit 

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because of family circumstances beyond her control that prevent her from attending 

trial in the October 18-29, 2021 time frame set by the Court. Specifically, Ms. Blum 

is a single mom who takes care of her special needs son that lives with her 

permanently, and she cannot leave him alone for 10+ days straight without adequate 

supervision and support. Defendants are well aware of the special needs of Ms. 

Blum’s son, as his special needs are the documented reason she was unable to 

continue her military service 1 and Defendants confirmed his special needs and 

lifelong dependence on Ms. Blum during her deposition as well.2

 After the Court’s 

order was issued on June 3, 2021, Ms. Blum attempted to make alternate supervision 

arrangements for her son that would allow her to be away from him for the required 

amount of time for trial, but she was unsuccessful in doing so. Once it was clear she 

could not find alternate arrangements for her son during the required time frame and 

advised her attorneys of this, the undersigned counsel filed the motion to dismiss in 

due course on July 2, 2021. Considering these uncontrollable family circumstances, 

Ms. Blum seeks dismissal without prejudice. 

Ms. Blum is a former servicemember who fulfilled all her obligations, hoping 

that trial would be set for a time that would allow her to attend the full trial. Despite 

this sincere hope, her case was set for a time when she cannot leave her special1 See Plaintiff’s Exhibit A, attached hereto and incorporated herein.

2 See Plaintiff’s Exhibit B, attached hereto and incorporated herein.

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needs son and cannot find alternate supervision for him for the lengthy time required 

to try her case before a jury. She has therefore clearly demonstrated good cause for 

a dismissal without prejudice. 

Moreover, Defendants would suffer no prejudice as a result of the dismissal. 

The Court and the Parties have contemplated from the beginning that certain cases 

may fall out of the bellwether pool for various circumstances outside of the Court or 

the Parties’ control, even after discovery, which is why alternates were chosen and 

worked up for trial. As such, no prejudice exists, much less the “clear legal 

prejudice” required by the Eleventh Circuit. 

Indeed, “the sanction of dismissal [with prejudice] is the most severe sanction 

that a court may apply, and its use must be tempered by a careful exercise of judicial 

discretion.” 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) (citation and internal quotation marks omitted). Courts “have generally 

permitted it only in the face of a clear record of delay or contumacious conduct by 

the plaintiff.” Id.; cf. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337-

38 (11th Cir. 2005) (“[A] dismissal with prejudice is an extreme sanction that may 

be properly imposed only when: (1) a party engages in a clear pattern of delay or 

willful contempt (contumacious conduct); and (2) the district court specifically finds 

that lesser sanctions would not suffice.”). Plaintiff Blum engaged in no such delay 

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or contumacious conduct. Plaintiff therefore respectfully requests that the Court 

issue an Order granting Plaintiff’s Motion to Dismiss this action without prejudice. 

2. EACH PARTY SHOULD BEAR ITS OWN COSTS. 

Legal Standard 

Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute, 

these rules, or a court order provides otherwise, costs—other than attorney’s fees—

should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). A “prevailing 

party” is “one who has been awarded some relief by the court.” Buckhannon Bd. & 

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05 

(2001). To determine whether a litigant is a “prevailing party,” the Eleventh Circuit 

applies a two-prong test, requiring (1) a situation where a party has been awarded by 

the court at least some relief on the merits of his claim, or (2) a judicial imprimatur 

on the change in the legal relationship between the parties. Smalbein ex rel. Estate 

of Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003) (citations 

and quotations omitted) (following Buckannon, 532 U.S. at 604-05). 

Argument 

The Court’s granting of Plaintiff’s voluntary motion to dismiss does not meet 

either prong of the Eleventh Circuit’s test to elevate Defendants to prevailing party 

status. Allowing Plaintiff to dismiss her case because of family circumstances 

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beyond her control is not an adjudication of her claims or an award by the court of 

relief to Defendants on the merits of her claims, nor does such a dismissal amount 

to a judicial imprimatur on the change in the legal relationship between the parties. 

Therefore, Defendants are not entitled to reimbursement of their costs under Rule 

54(d). E.g., Wood v. McCarty, 2011 WL 13112571, at *2 (N.D. Fla. Aug. 3, 2011) 

(“Under all the circumstances, as a matter of discretion, I conclude that the case 

should be dismissed without prejudice and without conditions.”). Further, 

Defendants’ argument for costs is at odds with Fed R. Civ. P. 41(d). Under Rule 

41(d), the Court may tax costs of a previously dismissed action when 

a plaintiff commences a second action on the same claim against the same defendant. 

This has not occurred here—and the fact that it may occur in the future demonstrates 

why an award of costs is not appropriate now. Defendants’ argument ignores the 

plain language of Rule 41, providing a mechanism for relief should Plaintiff renew 

her claims against Defendants. Defendants are essentially asking the Court interpret 

Rule 41(a)(2) together with Rule 54(d) to mean that costs are to be imposed in every 

post-answer voluntary dismissal granted by the court. Such an interpretation is not 

warranted here and the equities in this case are not served by such an interpretation. 

Despite Defendants’ arguments to the contrary, Plaintiff had every intention 

of bringing her case to trial, as evidenced by Plaintiff’s own investment of time and 

money into the prosecution of her case. However, the timing of the trial, first 

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noticed one month ago, conflicts with Ms. Blum’s family obligations—obligations 

that Defendants know have affected her life for over a decade—including her ability 

to continue her military service, her occupational choices, and where she resides. 

Lastly, the dismissal of Ms. Blum’s action does not create waste or “inject[] 

inefficiencies” into the bellwether process, as Mr. Adkins’ case can slide into this 

open trial spot without objection from either party. Defs.’ Br. at 9. For these reasons, 

the Court should order each party to bear its own costs. 

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CONCLUSION 

As no clear legal prejudice exists to Defendants as a result of the dismissal of 

Plaintiff’s case without prejudice, Plaintiff respectfully requests that the Court issue 

an Order granting Plaintiff’s Motion to Dismiss this current action without prejudice, 

with each party to bear its own attorneys’ fees and costs. 

 Respectfully submitted, 

/s/ Michael A. Burns

 Michael A. Burns 

FL Bar No. 0973130 

Caroline L. Maida (Admitted Pro Hac Vice) 

TX Bar No. 24078906 

Email: epefile@mostynlaw.com 

Mostyn Law 

3810 W. Alabama St. 

Houston, TX 77027 

Telephone: (713) 714-0000 

Facsimile: (713) 714-1111 

 Counsel for Plaintiff 

 

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CERTIFICATE OF SERVICE 

I do hereby certify that on this 8th day of July 2021, a true and correct copy 

of the foregoing was electronically filed with the Clerk of Court and served using 

the CM/ECF system. 

s/ Michael A. Burns 

Michael A. Burns 

 

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