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In re Bair Hugger Forced Air Warming Devices Products Liability Litigation

United States District Court, D. Minnesota

June 20, 2018

In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates To: Downs
v.
3M Co., 17-cv-2156 Brack
v.
3M Co., 17-cv-2451 Church
v.
3M Co., 17-cv-2509 Flynn
v.
3M Co., 17-cv-2533 Reinker
v.
3M Co., 17-cv-2638 Garland Holmes
v.
3M Co., 17-cv-2647 Wolfson
v.
3M Co., 17-cv-2809 Moore
v.
3M Co., 17-cv-2901 Finney
v.
3M Co., 17-cv-3049 Peter & Jequita Holmes
v.
3M Co., 17-cv-3255 Stringer
v.
3M Co., 17-cv-3383 Pledger
v.
3M Co., 17-cv-3502 Guyton
v.
3M Co., 17-cv-3662 Wolf
v.
3M Co., 17-cv-3953 Holcomb
v.
3M Co., 17-cv-4429 Beck
v.
3M Co., 17-cv-4805 Duckworth
v.
3M Co., 17-cv-4825 Scott
v.
3M Co., 17-cv-4880 Thyrion
v.
3M Co., 17-cv-4892 Pew
v.
3M Co., 17-cv-4896 Cheney
v.
3M Co., 17-cv-4984 Kelley
v.
3M Co., 17-cv-5302 Minnigan-Judd
v.
3M Co., 17-cv-5469 Plaintiff

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         Defendants 3M Company and Arizant Healthcare, Inc., moved to dismiss twenty-seven member cases in the Bair Hugger MDL, including the above-captioned. For seventeen cases, Defendants assert Plaintiffs' failure to comply with Pretrial Order No. 14 (“PTO 14, ” MDL Dkt. No. 117). Mot., MDL Dkt. No. 1272. For the other ten, Defendants assert lack of subject-matter jurisdiction. MDL Dkt. No. 1283. Defendants have withdrawn their Motion as to Plaintiff Ronnie Lewis (17-cv-5375). MDL Dkt. No. 1288. Defendants have also withdrawn their Motion as to Plaintiffs Tommy & Belinda Reed (17-cv-5202) and John & Betty Spry (17-cv-5199). MDL Dkt. No. 1296. The Court now decides the Motions as to the twenty-three above-captioned cases. The Court will decide the Motion as to joint Plaintiff Loretta & Royce Hylander (16-cv-2518) later. See MDL Dkt. No. 1284.

         I. Defendants' Motion [MDL Dkt. No. 1272] to dismiss under Pretrial Order No. 14 is granted in part and denied in part.

         Plaintiffs must complete and serve Plaintiff Fact Sheets in lieu of interrogatories. See Dismissal Order 1-2 (July 24, 2017), MDL Dkt. No. 622. Because PTO 14 triggers express warnings of dismissal and gives plaintiffs opportunities to cure noncompliance, the Court may dismiss a case with prejudice if plaintiff has failed to comply with that Order despite those warnings and opportunities. Dismissal Order 1-3 (Dec. 21, 2017), MDL Dkt. No. 1028; see Fed. R. Civ. P. 41(b) (allowing dismissal for failure to comply with court orders). The Court may also dismiss a case for failure to prosecute. Fed.R.Civ.P. 41(b). Defendants here have made an initial showing that fourteen of the above-captioned cases should be dismissed under PTO 14. See MDL Dkt. Nos. 1274-1275. So, to resist dismissal, the Plaintiffs must oppose the Motion. See PTO 14 ¶ 8.

         A. The Motion is granted as to the twelve Plaintiffs or Joint Plaintiffs who did not respond to it.

         Plaintiffs Louis Beck (17-cv-4805), Jay Cheney (17-cv-4984), Laura Duckworth (17-cv-4825), Gwendolyn Finney (17-cv-3049), Sharida Guyton (17-cv-3662), April Holcomb (17-cv-4429), Peter & Jequita Holmes (17-cv-3255), Charles Kelley (17-cv-5302), Stephanie Minnigan-Judd (17-cv-5469), Richard Pew (17-cv-4896), Sheree Scott (17-cv-4880), and Leslie Thyrion (17-cv-4892) did not respond to and so do not oppose the Motion. The Court thus GRANTS the Motion as to these twelve cases and DISMISSES them with prejudice under PTO 14 and for failing to prosecute.

         B. The Motion is granted as to Plaintiff Susan Reinker, who has stopped communicating with counsel and has not disputed the Motion's merits.

         For Plaintiff Susan Reinker (17-cv-2638), counsel responds to the Motion but does not dispute that Reinker has failed to comply with PTO 14. To oppose the Motion, Reinker 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), MDL Dkt. No. 622. Her counsel instead explains that she last communicated with him in 2015. MDL Dkt. No. 1289 ¶ 1. This explanation does not go to the Motion's merits. So, Reinker has not opposed the Motion, as she had to. The Court thus GRANTS the Motion as to her and DISMISSES her case with prejudice under PTO 14 and for failure to prosecute.

         C. The Motion is denied without prejudice to renew as to Plaintiff Michael Moore.

         Counsel for Plaintiff Michael Moore (17-cv-2901) suggests Moore's death. MDL Dkt. No. 1291 ¶ 5. To allow substitution under Pretrial Order No. 23, MDL Dkt. No. 1039, which was ordered on Defendants' request, Defendants' Motion as to Moore is DENIED without prejudice to renew. See, e.g., Order on Defs.' Mar. 2018 Mot. 4 (denying Defs.' Mot. as to Pl. Shirley Slaughter), MDL Dkt. No. 1167.

         II. Defendants' Motion [MDL Dkt. No. 1283] to dismiss for lack of subject-matter jurisdiction is granted as to nine Plaintiffs who died before Complaints were filed in those Plaintiffs' name.

         For Plaintiffs Charlene Brack (17-cv-2451), William Church (17-cv-2509), Mark Downs (17-cv-2156), Jeffrey T. Flynn (17-cv-2533), Garland Holmes (17-cv-2647), Porter Pledger (17-cv-3502), Debra Stringer (17-cv-3383), Jerri Wolf (17-cv-3953) and Marje Wolfson (17-cv-2809), someone sued in their name after they had died:

Plaintiff

Case No.

Died

Complaint

Brack

17-cv-2451

Oct. 2016

Jul-17

Church

17-cv-2509

May-17

Jul-17

Downs

17-cv-2156

Apr. 2017

Jun-17

Flynn

17-cv-2533

Mar. 2016

Jul-17

Holmes, Garland

17-cv-2647

Jan. 2017

Jul-17

Pledger

17-cv-3502

Feb. 2017

Aug. 2017

Stringer

17-cv-3383

Feb. 2017

Jul-17

Wolf

17-cv-3953

Jun-17

Aug. 2017

Wolfson

17-cv-2809

Oct. 2016

Jul-17

         The dead cannot invoke federal jurisdiction. The Court thus must dismiss these nine cases for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(h)(3). When “a case originally filed in federal court does not belong there” because of a lack of subject-matter jurisdiction, “generally the appropriate remedy is to dismiss without prejudice.” Wallace v. ConAgra ...


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