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In re Bair Hugger Forced Air Warming Devices Products Liability Litigation

United States District Court, D. Minnesota

December 18, 2017

In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Charles
v.
3M Co., et al. 17-cv-286 Morgan
v.
3M Co., et al. 17-cv-1441 Hecht
v.
3M Co., et al. 17-cv-2395

          ORDER

          JOAN N. ERICKSEN, UNITED STATES DISTRICT JUDGE

         Defendants 3M Company and Arizant Healthcare Inc. move to dismiss the above three cases for Plaintiffs' failure to comply with a court order, Pretrial Order No. 14 (“PTO 14, ” Dkt. No. 117). Motion, 15-md-2666 Dkt. No. 1018. These Plaintiffs do not oppose the Motion, and, for that reason and others elaborated below, the Court GRANTS the Motion.

         I. Dismissal with prejudice is proper when a plaintiff has failed PTO 14 because that court order includes months' worth of opportunities to cure noncompliance and express notice of dismissal risk for failing to do so.

         The Court may dismiss a case with prejudice when “the plaintiff fails to prosecute or to comply with a court order.” Fed.R.Civ.P. 41(b). Even if silent, 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). If a plaintiff has failed to respond to a discovery request and the follow-up court order, and the court has given her an opportunity to cure noncompliance and express notice about her dismissal risk for failing to do so, the court may dismiss her case with prejudice. Id.

         PTO 14 has built-in opportunities to cure noncompliance, and it expressly notifies plaintiffs about their dismissal risk for failing to do so. So, when those opportunities to cure have run, a plaintiff's continued noncompliance is a pattern of intentional delay for which the Court may dismiss her case with prejudice under Rule 41(b). Recall that, in PTO 14, the Court ordered Plaintiffs to respond to a request for information in lieu of discovery. See PTO 14 ¶¶ 1-4 (requiring service of a “Plaintiff Fact Sheet” or “PFS” for each Plaintiff, verification under oath of those PFSs, and PFS completeness as to “core” facts); cf. Fed. R. Civ. P. 33 (providing for discovery by interrogatories). PTO 14 includes opportunities to cure. Id. ¶¶ 6-8 (providing that dismissal can happen only after a meet-and-confer and then “two sequential court conferences” each one month apart). And PTO 14 expressly warns of dismissal. Id. ¶¶ 4, 8 (requiring Defendants to send deficiency letters and emails and then 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 warned Plaintiffs' counsel and other plaintiffs in this MDL about dismissal in rulings on two earlier motions to dismiss for failing PTO 14. See Order, 15-md-2666 Dkt. No. 622 (July 24, 2017); Order, 15-md-2666 Dkt. No. 577 (June 16, 2017).

         Under PTO 14, Plaintiffs must 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 to advance to trial, Plaintiffs must disclose these facts on the schedule that, in agreement with Defendants, they submitted to the Court for adoption. These policies are advanced only by enforcing PTO 14's terms.

         As to the lesser sanction of dismissal without prejudice, Plaintiffs must explain why it would be effective given that prior warnings have failed. See First Gen., 958 F.2d 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.

         II. The Court DISMISSES the above-captioned Plaintiffs with prejudice for failing PTO 14.

         Defendants have validly moved to dismiss the above-captioned Plaintiffs. Plaintiffs have either not served PFSs, see PTO 14 ¶ 2 (requiring service), or served deficient PFSs, see Id. ¶ 4 (listing “core deficiencies” that justify dismissal). Defendants have timely notified Plaintiffs of these defects. See Id. ¶ 6. Because Plaintiffs have failed to cure these defects despite notice and appearing on the status-conference agenda for two sequential months (October 17, 2017 [Dkt. No. 959] and November 15, 2017 [Dkt. No. 1014]), dismissal is proper. See PTO 14 ¶ 8.

         A. For Plaintiffs Theodore Hecht (17-cv-2395) and Rhonda Morgan (17-cv-1441), neither Plaintiff nor Plaintiff's counsel responds to the Motion.

         The Court DISMISSES these two cases with prejudice under Rule 41(b) for Plaintiffs' failure to comply with PTO 14 and to prosecute their cases.

         B. Plaintiff Kimberly Charles (17-cv-286) does not oppose the Motion.

         For Plaintiff Kimberly Charles, her counsel submitted a log of failed attempts to contact her. Charles's Resp. 2, 15-md-2666 Dkt. No. 1025. This submission does not oppose the Motion because it neither disputes Defendants' contentions nor excuses Plaintiff's noncompliance with PTO 14. Compare Order 2, 15-md-2666 Dkt. No. 622 (deeming log of “unsuccessful attempts to enlist the client's cooperation” non- opposition), with Charles's Resp. 2 (“The undersigned counsel attempted to reach Plaintiff numerous times including . . . May 9, 2017. . . .”). Still, counsel requests a 120-day extension or dismissal with prejudice. Charles's Resp. 2-3. The Court rejects these requests because Charles's noncompliance is unexcused. Id. at 1 (admitting that “the undersigned counsel is without any knowledge of circumstances that may preclude Plaintiff from responding to the counsel's contact attempts”). And, counsel does not ...


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