United States District Court, D. Minnesota
In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Starnes
3M Co., et al. No. 16-cv-826 Hartzel
3M Co., et al. 16-cv-1338 Newcomb
3M Co., et al. 16-cv-1834 Rivers
3M Co., et al. 16-cv-1847 Busby
3M Co., et al. 16-cv-2156 Pettersen
3M Co., et al. 16-cv-2212 Upton
3M Co., et al. 16-cv-2374 Nadeau
3M Co., et al. 16-cv-2395 Davis
3M Co., et al. 16-cv-2661 Miller, et al.
3M Co., et al. 16-cv-2711 Brannon
3M Co., et al. 16-cv-2750 Hood, et al.
3M Co., et al. 16-cv-2787 Novak
3M Co., et al. 16-cv-2959 Butkus
3M Co., et al. 16-cv-4353 Gill
3M Co., et al. 16-cv-4412 Burks
3M Co., et al. 16-cv-4418 Stouffer
3M Co., et al. 17-cv-188 Raymond
3M Co., et al. 17-cv-299 Sanders
3M Co., et al. 17-cv-350 Perez
3M Co., et al. 17-cv-597
N. ERICKSEN, UNITED STATES DISTRICT JUDGE
3M Company and Arizant Healthcare Inc. moved to dismiss
twenty-two actions, including those listed above, for
Plaintiffs' failure to comply with a court order,
Pretrial Order No. 14 (“PTO 14”). Mot. to Dismiss
(“Motion”), 15-md-2666 Dkt. No. 637. Defendants
withdrew the Motion as to Terry and Dana Hood (16-cv-2787).
Hulse Ltr., 15-md-2666 Dkt. No. 664. Plaintiffs Joanne
Buttacavoli (16-cv-2626) and Althea Magee (16-cv-2481)
stipulated to dismiss their claims with prejudice. Stip.,
16-cv-2626 Dkt. No. 7; Stip., 16-cv-2481 Dkt. No. 7.
Plaintiffs Edward Brannon (16-cv- 2750) and John W. Butkus,
Jr. (16-cv-4353) opposed late. Brannon's Opp'n,
15-md-2666 Dkt. No. 677 (filed Aug. 16, 2017, due Aug. 10,
2017); Butkus's Opp'n, 15-md-2666 Dkt. No. 668 (filed
Aug. 14, 2017, due Aug. 10, 2017). The remaining Plaintiffs
did not oppose. The Court held a hearing on the Motion on
August 17, 2017 and decided the Motion on the record. The
Court now memorializes its rulings and provides more
Denial of Motion without prejudice to renew as to Plaintiffs
Brannon and Pettersen
hearing, counsel for Plaintiffs Edward Brannon (16-cv-2750)
and Raymond Pettersen (16-cv-2212) responded. The night
before the hearing, Brannon served a Plaintiff Fact Sheet
(“PFS”) that he believes complies with PTO 14. At
the hearing, Plaintiffs' counsel asserted that Pettersen
cannot comply with PTO 14 because he is in hospice care. On
these facts, the Court DENIED the Motion as
to Brannon and Pettersen without prejudice to renew.
Dismissal with prejudice as to remaining seventeen
Court GRANTED the Motion for the remaining
seventeen cases. The Court may dismiss an action with
prejudice “[i]f the plaintiff fails to prosecute or to
comply with a court order.” Fed.R.Civ.P. 41(b). Even if
a mere failure to respond, noncompliance with a court order
can “constitute a pattern of intentional delay
meriting dismissal with prejudice” under Rule 41(b).
First Gen. Res. Co. v. Elton Leather Corp., 958 F.2d
204, 206 (8th Cir. 1992) (affirming dismissal under R. 41(b)
when plaintiffs failed to respond to a discovery request and
the follow-up court order, because the trial court gave them
an opportunity to cure and an express warning about
dismissal). By PTO 14, the Court here ordered Plaintiffs to
respond to a request for information in lieu of discovery.
See PTO ¶¶ 2-4 (requiring PFS service,
verification and “core” facts). The Court
provided an opportunity to cure. Id. ¶¶
6-8 (providing that dismissal can happen only after a
three-week long meet-and-confer process and then “two
sequential court conferences” each one month apart).
And the Court warned expressly of dismissal. Id.
¶ 8 (warning that “Defendants may make a motion
for dismissal for failure to comply with this Court's
Pretrial Order as to the allegedly delinquent party”).
Besides, when Defendants moved to dismiss the Plaintiffs
here, the Court had already ruled on two earlier motions to
dismiss as to other plaintiffs failing to comply with PTO 14.
Order, 15-md-2666 Dkt. No. 622 (July 24, 2017); Order,
15-md-2666 Dkt. No. 577 (June 16, 2017). Thus, if PTO
14's opportunity to cure has run, a plaintiff's
continued noncompliance is a pattern of intentional delay for
which the Court may dismiss her action with prejudice under
Court need not consider lesser sanctions if, as here,
“plaintiffs are preventing the defendants from
completing discovery.” First Gen., 958 F.2d at
206. Even if the Court were to consider the proffered lesser
sanction of dismissal without prejudice, Plaintiffs must
explain why this lesser sanction would be effective given
that prior warnings had failed. See Id. at 206
(affirming dismissal with prejudice because “the
district court already found lesser sanctions
ineffective”). These failed prior warnings include
those built into PTO 14 and the prior dismissal orders as to
other plaintiffs, described above. Plaintiffs here did not
explain why lesser sanctions would work when prior warnings
had failed. See, e.g., Perez's Resp., 15-md-2666
Dkt. No. 655. Dismissal with prejudice was thus the
provides for service of PFSs in lieu of interrogatories.
Cf. Fed. R. Civ. P. 33. By completing PFSs,
Plaintiffs disclose facts material to their claims that would
otherwise be disclosed in traditional discovery. To allow the
Court to manage this MDL and to allow the parties to fairly
negotiate settlement or advance to trial, Plaintiffs must
disclose these facts on the schedule that they negotiated and
submitted to the Court for adoption. See Manual for
Complex Litigation § 22.83 (4th ed. 2004)
(recommending that, with the parties' guidance, courts
create tools other than interrogatories to “prevent
multiple requests for the same information”).
argued that Plaintiffs had either not served PFSs,
see PTO 14 ¶ 2 (requiring service), or if they
had served, served unverified and deficient PFSs, see
Id. ¶ 3 (requiring verification under oath);
id. ¶ 4 (listing “core
deficiencies” in responses that justify dismissal).
Defendants cited defects in PFS responses about core facts
such as medical condition (PFS section IV, parts 1, 7, 8 and
10), insurance coverage (PFS section V, all parts) and
alleged economic damages (PFS section VII, parts 1-2).
Defendants had timely notified Plaintiffs of these defects.
See PTO 14 ¶ 6. Because Plaintiffs had failed
to resolve these defects despite notice and appearing on the
status-conference agenda for two sequential conferences (June
9, 2017 and July 14, 2017), Defendants had validly moved to
dismiss. See Id. ¶ 8.
Plaintiffs Marilyn Burks (16-cv-4418), Larry Gill
(16-cv-4412), Thomas and Janet Miller (16-cv-2711), Lise
Nadeau (16-cv-2395), Jerline Newcomb (16-cv-1834), Daniel
Novak (16-cv-2959) and Phyllis Starnes (16-cv-826) did not
respond to the Motion.
Court DISMISSED these seven actions with
prejudice under Rule 41(b) for Plaintiffs' failure
to comply with PTO 14 and to prosecute their cases.
Plaintiffs Jeffery Busby (16-cv-2165), Lolethia Davis
(16-cv-2661), Rex Hartzel (16-cv-1338), Debora Perez
(17-cv-597), Philip Raymond (17-cv-299), Minnie Rivers
(16-cv-1847), Walter Sanders (17-cv-350), William Stouffer
(17-cv-188) and Patrick Upton (16-cv-2374) did not oppose the
nine cases listed above, counsel submitted a log of attempts
to solicit Plaintiffs' interest in prosecuting their
cases. These submissions did not oppose the Motion because
they neither disputed Defendants's contentions nor
excused Plaintiff's noncompliance. Compare
Order, 15-md-2666 Dkt. No. 622, at 2 (deeming log of
“unsuccessful attempts to enlist the client's
cooperation” non-opposition), with, e.g.,
Perez's Resp., 15-md-2666 Dkt. No. 655 ¶¶ 4-6
(“Efforts to contact [Plaintiff] to inform her of the
Plaintiff Fact Sheet and other necessary steps of the
litigation . . . were unsuccessful. . . .”). In fact,
all these Plaintiffs had not responded to counsel for at
least six months. See, e.g., Perez's Resp.
¶¶ 4-6. Still, counsel requested a 120-day
extension or dismissal without prejudice. The Court rejected
these requests as unjustified. See, e.g.,
id. ¶ 7 (“[T]he undersigned counsel is
without any knowledge of circumstances that may preclude
Plaintiff from responding to the counsel's contact. . .
.”). The Court thus DISMISSED these
nine actions with prejudice under Rule 41(b) for
Plaintiffs' failure to prosecute and failure to comply
with PTO 14.
Plaintiff John W. Butkus, Jr. (16-cv-4353) opposed the Motion
late and cured ...