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In re Bair Hugger Forced Air Warming Devices Products Liability Litigation

United States District Court, D. Minnesota

February 15, 2018

In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Gruetzmacher
v.
3M Co. 17-cv-998 Garcia
v.
3M Co. 17-cv-1017 Husman
v.
3M Co. 17-cv-1139 Pickens
v.
3M Co. 17-cv-1215 Sparks
v.
3M Co. 17-cv-1250 Peters
v.
3M Co. 17-cv-1323 Jadwin
v.
3M Co. 17-cv-1407 Osborne
v.
3M Co. 17-cv-2099 Nunn
v.
3M Co. 17-cv-2231 Taylor
v.
3M Co. 17-cv-2319 Blancett
v.
3M Co. 17-cv-2383 Pickett
v.
3M Co. 17-cv-2415 Suchan
v.
3M Co. 17-cv-2452 Rashad
v.
3M Co. 17-cv-2589 McCall
v.
3M Co. 17-cv-2726 Ghidella
v.
3M Co. 17-cv-3103 Gawthorp
v.
3M Co. 17-cv-3187 McLaughlin
v.
3M Co. 17-cv-3233 Mazer
v.
3M Co. 17-cv-3819 Miller
v.
3M Co. 17-cv-3823 Loving
v.
3M Co. 17-cv-3895 Gilliam
v.
3M Co. 17-cv-3948 Rietz
v.
3M Co. 17-cv-3954 Reeves
v.
3M Co. 17-cv-3956 O'Connell
v.
3M Co. 17-cv-4094 Butler
v.
3M Co. 17-cv-4177

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         Defendants 3M Company and Arizant Healthcare, Inc., move to dismiss the twenty-six above-captioned member cases in the Bair Hugger MDL for Plaintiffs' failure to comply with Pretrial Order No. 14 (PTO 14, Dkt. No. 117), which orders service and completion of Plaintiff Fact Sheets in lieu of interrogatories. Mot., 15-md-2666 Dkt. No. 1068. Because PTO 14 causes express warnings of dismissal and gives plaintiffs opportunities to cure noncompliance, the Court may dismiss a case with prejudice if its plaintiff has failed to comply with PTO 14 despite those warnings and opportunities. Dismissal Order 1-3 (Dec. 21, 2017), 15-md-2666 Dkt. No. 1028; see Fed. R. Civ. P. 41(b) (allowing dismissal for failure to comply with court order). The Court may also dismiss a case for plaintiff's failure to prosecute. Fed.R.Civ.P. 41(b). Defendants here have made an initial showing that the above-captioned Plaintiffs should be dismissed for failing to comply with PTO 14. 15-md-2666 Dkt. No. 1070. So, to resist dismissal, these Plaintiffs must oppose the Motion. See PTO 14 ¶ 8.

         I. The Motion is granted as to the sixteen Plaintiffs who have not responded to it.

         Plaintiffs Maria Garcia (17-cv-1017), Dawn Gawthorp (17-cv-3187), Michael Ghidella (17-cv-3103), Lisette & Melvin, Sr., Gilliam (17-cv-3948), Laura Gruetzmacher (17-cv-998), Raymond Husman (17-cv-1139), Patti & Todd Jadwin (17-cv-1407), Dorothy Loving (17-cv-3895), Stormy McCall (17-cv-2726), Kenneth Nunn (17-cv-2231), Karen L. O'Connell (17-cv-4094), Christopher Peters (17-cv-1323), Michael Pickens (17-cv-1215), William O Reeves (17-cv-3956), Mary & Paul, III, Rietz (17-cv-3954), and Mildred Sparks (17-cv-1250) do not respond to and so do not oppose the Motion. The Court thus GRANTS the Motion as to these sixteen Plaintiffs and DISMISSES their cases with prejudice for failing to comply with PTO 14 and failing to prosecute.

         II. The Motion is granted as to the seven Plaintiffs who have stopped communicating with counsel and have not disputed the Motion's merits.

         For Plaintiffs Constance Blancett (17-cv-2383), Marc Mazer (17-cv-3819), Robert McLaughlin (17-cv-3233), Carol Miller (17-cv-3823), Vanessa Osborne (17-cv-2099), Paul Pickett (17-cv-2415) and Kevin Rashad (17-cv-2589), counsel responds to the Motion but does not dispute that these seven Plaintiffs have failed to comply with PTO 14. To oppose the Motion, Plaintiffs must dispute its merits. See Dismissal Order 2 (July 24, 2017) (deeming counsel's log of “unsuccessful attempts to enlist [plaintiff's] cooperation” non-opposition), 15-md-2666 Dkt. No. 622. Plaintiffs' counsel instead explains that Plaintiffs have stopped communicating with counsel:

Plaintiff

Case No.

Last Contact

Citation in 15-md-2666

Blancett

17-cv-2383

July 2015

Dkt. No. 1080 ¶¶ 1, 5

Mazer

17-cv-3819

Nov. 2017

Dkt. No. 1074 ¶¶ 6, 11

McLaughlin

17-cv-3233

Dec. 2017

Dkt. No. 1088 ¶¶ 7-8

Miller

17-cv-3823

Sept. 2017

Dkt. No. 1077, at 2

Osborne

17-cv-2099

July 2015

Dkt. No. 1082 ¶¶ 1, 5

Pickett

17-cv-2415

July 2015

Dkt. No. 1084 ¶¶ 1, 5

Rashad

17-cv-2589

July 2015

Dkt. No. 1086 ¶¶ 1, 5

         This explanation does not go to the Motion's merits.

         For McLaughlin in particular, counsel also asserts, without documentation, that McLaughlin reported “experiencing some ongoing medical issues” in December. McLaughlin's Resp. ¶ 7, Dkt. No. 1088. Counsel also notes that “McLaughlin has not made an attempt to contact [counsel] since” that report. Id. Counsel's request for a sixty-day extension is denied because McLaughlin has not substantiated his report and continues to not communicate with counsel.

         The Court thus GRANTS the Motion as to these seven Plaintiffs and DISMISSES their cases with prejudice for failing to comply with PTO 14 and failing to prosecute.

         III. As to the three Plaintiffs who died before counsel filed Complaints for them, the Court dismisses their cases without prejudice for lack of subject-matter jurisdiction.

         For Plaintiffs James A. Butler (17-cv-4177), John Suchan (17-cv-2452) and Mary Taylor (17-cv-2319), counsel David W. Hodges of Kennedy Hodges, LLP (Houston, Texas) responds that these three Plaintiffs have died. E.g., Taylor's Resp. ¶ 6, 15-md-2666 Dkt. No. 1094. Hodges needs more time “to obtain the necessary information and authority” from Plaintiffs' successor before serving a Plaintiff Fact Sheet. E.g., id. ¶ 10.

         The Court must dismiss these three Plaintiffs' cases for lack of subject-matter jurisdiction. Although Defendants have not challenged subject-matter jurisdiction here, if “the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). A dead person cannot invoke federal jurisdiction as a plaintiff. As for these three Plaintiffs, all were dead when Hodges filed a Complaint for them:

Plaintiff

Case No.

Died

Complaint

Butler

17-cv-4177

Feb. 2016

Sept. 2017

Suchan

17-cv-2452

Aug. 2016

July 2017

Taylor

17-cv-2319

Apr. 2017

June 2017


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