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Deborah Daughetee and Steve Daughetee v. Chr Hansen

March 17, 2011

DEBORAH DAUGHETEE AND STEVE DAUGHETEE, PLAINTIFFS,
v.
CHR HANSEN, INC., A WISCONSIN CORPORATION; AMERICAN POPCORN CO., AN IOWA CORPORATION; BUSH AND DIAMOND FOODS, INC. BOAKE ALLEN, INC., A VIRGINIA CORPORATION; CONAGRA FOODS, INC., A DELAWARE CORPORATION; DIAMOND FOODS, INC., A DELAWARE CORPORATION; FIRMENICH, INC., A DELAWARE CORPORATION; GENERAL MILLS, INC., A DELAWARE CORPORATION; GIVAUDAN FLAVORS CORPORATION, A DELAWARE CORPORATION; INTERNATIONAL FLAVORS & FRAGRANCES, INC., A NEW YORK CORPORATION; ODELL'S, A NEVADA CORPORATION; SENSIENT FLAVORS, L.L.C., A WISCONSIN LIMITED LIABILITY COMPANY; SYMRISE, INC., A NEW JERSEY CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Mark W. Bennett U. S. District Court Judge Northern District OF Iowa

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTIONS TO VOLUNTARILY DISMISS DEFENDANTS O'DELL'S

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

On May 10, 2010, plaintiffs Deborah Daughetee and Steven Daughetee ("the Daughetees") filed their First Amended Complaint against defendants, all manufacturers of microwave popcorn or popcorn butter-flavorings, including defendants O'Dell's and Diamond Foods, Inc. ("Diamond Foods"), alleging claims of negligence, breach of warranty and loss of consortium. The Daughetees' claims stem from Deborah's alleged respiratory injury resulting from her exposure to popcorn containing butter flavorings containing diacetyl. The First Amended Complaint alleges that this court has subject matter jurisdiction by virtue of diversity of citizenship of the parties, 28 U.S.C. § 1332.

After O'Dell's and Diamond Foods each filed motions to dismiss for improper venue, the Daughetees filed motions to voluntarily dismiss both defendants without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) (docket nos. 128 and 129). In their motion to dismiss O'Dell's, the Daughetees assert that, after investigating, it "appears" that O'Dell's's products did not cause or contribute to Deborah's respiratory condition. On the other hand, in their motion to voluntarily dismiss Diamond Foods, the Daughetees maintain that they are seeking to dismiss Diamond Foods because it "appears" that General Mills, Inc. ("General Mills"), as predecessor to Diamond Foods, is assuming liability for the microwave popcorn it manufactured, distributed, or sold during the relevant time periods of this lawsuit. Diamond Foods filed a response to the Daughetees' motion to voluntarily dismiss in which it argues that the Daughetees' reason for seeking to dismiss, that General Mills will bear any liability for the Daughetees' claims involving Pop Secret Popcorn, warrants dismissal with prejudice. Diamond Foods further asserts that the Daughetees' reason for not seeking to dismiss with prejudice, that they might have to re-file their suit against Diamond Foods if they later learn that it has liability for products that caused or contributed to Deborah's respiratory condition, smacks of game playing. No other defendants have responded to this motion. Although O'Dell's has not filed a response to the Daughetees' motion to voluntarily dismiss, defendants General Mills, Bush Boake Allen Inc. ("Bush Boake"), Conagra Foods, Inc. ("Conagra"), CHR Hansen, Inc. ("CHR Hansen"), Givaudan Flavors Corp. ("Givaudan"), International Flavors & Fragrances, Inc.("IFF" ) and Sensient Flavors, L.L.C. ("Sensient") each filed a resistance to the Daughetees' motion or joined a resistance filed by another defendant. These defendants argue that the Daughetees' motion to voluntarily dismiss O'Dell's should be denied because the Daughetees have not provided a sufficient reason to permit the dismissal. These defendants further contend that O'Dell's's dismissal would waste judicial time and effort since the Daughetees are free to re-file against it. In addition, they argue that dismissal of O'Dell's would prejudice the remaining defendants because dismissal would deprive them ...


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