United States District Court, D. Minnesota
In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Charles
3M Co., et al. 17-cv-286 Morgan
3M Co., et al. 17-cv-1441 Hecht
3M Co., et al. 17-cv-2395
N. ERICKSEN, UNITED STATES DISTRICT JUDGE
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
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.
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.
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).
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.
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
The Court DISMISSES the above-captioned Plaintiffs with
prejudice for failing PTO 14.
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.
For Plaintiffs Theodore Hecht (17-cv-2395) and Rhonda Morgan
(17-cv-1441), neither Plaintiff nor Plaintiff's counsel
responds to the Motion.
Court DISMISSES these two cases with
prejudice under Rule 41(b) for Plaintiffs' failure
to comply with PTO 14 and to prosecute their cases.
Plaintiff Kimberly Charles (17-cv-286) does not oppose the
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 ...