argued submitted san francisco california: April 14, 1993.
Appeal from the United States District Court For the Northern District of California. DC No. CV-91-00271-FMS. Fern M. Smith, District Judge, Presiding
Before: Schroeder, Pregerson, D.w. Nelson, Circuit Judges.
Emily Tibbetts ("Tibbetts"), by and through her parent and guardian ad litem Mary Tibbetts, brought suit against Syntex Corporation, Syntex Laboratories, Inc., and Syntex U.S.A., Inc. (collectively "Syntex") to recover for injuries received as a result of consuming "Neo-Mull-Soy," an infant formula manufactured by Syntex. Tibbetts appeals from the district court's grant of summary judgment in favor of Syntex. We affirm.
I. Expiration of the Statute of Limitations
The district court granted summary judgment in favor of Syntex on the grounds that the applicable statute of limitations had run. Tibbetts was a Florida resident during all relevant times; Syntex is a California resident. We apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496 (1941). California restricts forum shopping by foreign plaintiffs by "borrowing" the statute of limitations from the state in which the cause of action arose. See Cal. Civ. Proc. Code § 361.*fn1 The district court found that Tibbetts' cause of action had arisen in Florida and that, pursuant to Fla. Stat. § 95.11 Tibbetts' claims were subject to a limitations period of no more than four years.
Unlike California, Florida does not toll its statute of limitations for personal actions during a plaintiff's minority. See Slaughter v. Tyler, 171 So. 320, 323 (Fla. 1936), overruled in part on other grounds, Manning v. Serrano, 97 So.2d 688 (Fla. 1957); Fla. Stat. § 95.051(1)(h), (2). Tibbetts argues that California would apply its own tolling provision to the instant action and that the four-year limitations period would not commence until plaintiff reached the age of majority.*fn2 The district court rejected Tibbetts' reasoning and applied Florida law in its entirety, holding that the statute of limitations began to run when Mary Tibbetts received notice of her daughter's claim. We agree.*fn3
The district court's interpretation is supported by the plain reading of the statutes. Because § 361 applies only to non-citizens, § 352 tolls the claims of all resident minors. Under the district court's interpretation, § 361 precludes § 352 protection only for a nonresident minor who brings suit in California. As the district court noted, "if the California legislature had intended to extend this exception to nonresident minors, it would have so provided." Moreover, we have already noted "the general rule that the borrowed statute of limitations is accepted with all its accouterments." Conner v. Spencer, 304 F.2d 485, 486 (9th Cir. 1962) (rejecting the argument that "Oregon's borrowing statute borrows only Idaho's limitation period and not its tolling statute") (citation omitted). There is no conflict between these provisions.*fn4
II. Denial of Motion For Voluntary Dismissal
After Syntex moved for summary judgment, Tibbetts unsuccessfully moved for a voluntary dismissal of her action under Fed. R. Civ. P. 41(a)(2). "A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the district court's sound discretion and the court's order will not be disturbed unless the court has abused its discretion." Stevedoring Servs. of Am. v. Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989). In considering the motion, the district court must assess "whether the defendant will suffer some plain legal prejudice as a result of the dismissal." Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982). "Plain legal prejudice" requires a defendant to face more than "the prospect of a second lawsuit" or the loss of "some tactical advantage." Id.; see also James W. Moore, Jo Desha Lucas, and Jeremy C. Wicker, 5 Moore's Federal Practice P 41.05 (2d ed. 1993) (describing general rules).
Relying on Phillips v. Illinois Central Gulf Railroad, 874 F.2d 984 (5th Cir. 1989), the district court concluded that Syntex would suffer clear legal prejudice by losing its statute of limitations defense.
We agree that the mere prospect of a second lawsuit on the same facts is not sufficiently prejudicial to the defendant to justify denial of a Rule 41(a)(2) motion to dismiss. . . . In this case, however, the facts in the second lawsuit would differ in that the defendant would be stripped of an absolute defense to the suit -- the difference between winning the case without a trial and abiding the unknown outcome of such a proceeding. If this does not constitute clear legal prejudice to the defendant, it is hard to envision what would.
Id. at 987. Similarly, the district court here concluded that Syntex would be prejudiced by having to defend the suit in another state where the statute of limitations had not run. This was not an abuse of discretion.*fn5
III. Award of Discovery Costs
Pursuant to the grant of summary judgment, Syntex filed a motion for taxation of costs in the amount of $4,720.05 for the depositions of Tibbetts' parents. On October 28, 1991, the district court ruled that Syntex was entitled to costs in the amount of $3,000. The district court's award of costs is reviewed for abuse of discretion. Alflex Corp. v. Underwriters ...