United States District Court, S.D. West Virginia, Charleston Division
IN RE AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
American Medical Systems, Inc. THIS DOCUMENT RELATES TO: Rose Apuzzi Civil Action No. 2:14-cv-28603
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the plaintiff's Motion Pursuant to
Federal Rule of Civil Procedure 59(e) to Amend and/or
Reconsider the Court's Order of March 8, 2017. [ECF No.
20]. The plaintiff asks me to alter or amend my March 8, 2017
Order [ECF No. 18], which denied the plaintiff's Rule
60(b) Motion [ECF No. 14] for relief from my November 17,
2016 Judgment Order [ECF No. 10] dismissing the
plaintiff's case with prejudice for failure to file a
Plaintiff Profile Form (“PPF”). Defendant
American Medical Systems, Inc. (“AMS”) responded,
and in its response moved under Rule 37(b)(2)(C) for monetary
sanctions. [ECF No. 25]. The plaintiff has replied. [ECF No.
26]. Thus, the motion is ripe for review. For the reasons
stated below, the plaintiff's Rule 59(e) Motion is DENIED
and AMS's Rule 37(b)(2)(C) Motion is DENIED.
case resided in one of seven MDLs assigned to me by the
Judicial Panel on Multidistrict Litigation concerning the use
of transvaginal surgical mesh to treat pelvic organ prolapse
and stress urinary incontinence. In the seven MDLs, there are
approximately 60, 000 cases currently pending, approximately
4, 000 of which are in the AMS MDL, MDL 2325. Pursuant to
Pretrial Order No. 19 (“PTO # 19”), each
plaintiff is required to submit a completed PPF to AMS within
60 days of filing a Short Form Complaint. PTO # 19 at ¶
1b, No. 2:12-md-2325, entered Oct. 4, 2012. [ECF No. 302].
PTO # 19 further provided that “[i]f a plaintiff does
not submit a PPF within the time specified in this Order,
defendants may move immediately to dismiss that
plaintiff's case without first resorting to . . .
deficiency cure procedures.” Id. at ¶ 1g.
present case, the plaintiff, by her counsel, filed her Short
Form Complaint in this MDL on November 7, 2014. Short Form
Compl. [ECF No. 1]. Attorney Eric H. Weitz filed the Short
Form Complaint, and Mr. Weitz was designated as trial counsel
on behalf of the law firm of Messa & Associates, P.C.
Id. At that time, Mr. Weitz was listed on CM/ECF as
the lead attorney for the plaintiff and two email addresses
at Messa & Associates were set up to receive electronic
notices through CM/ECF: EWeitz@messalaw.com and
firstname.lastname@example.org. The former email address was for Mr.
Weitz and the latter was for paralegal Ariel Tobin.
See Aff. of Joseph L. Messa, Jr. (“Messa
Aff.”) at ¶¶ 5-7 [ECF No. 20-1]. Mr. Weitz
was the only attorney who entered an appearance at that time;
he and the paralegal were the only individuals at Messa &
Associates receiving CM/ECF filings regarding the
plaintiff's case. Id. at ¶¶ 8-9.
to PTO # 19, the plaintiff's PPF was due to AMS by
January 6, 2015. On March 17, 2015, Ms. Tobin left Messa
& Associates. Messa Aff. at ¶ 10. On May 25, 2016,
AMS sent a letter to the plaintiff's counsel warning that
AMS would seek sanctions up to and including dismissal if the
plaintiff did not submit a completed PPF within fourteen
days. [ECF No. 16-1, Ex. A.] On June 22, 2016, AMS filed a
Motion to Dismiss the plaintiff's case for failure to
submit a PPF, which was 533 days late at that time. [ECF No.
5]. On July 15, 2016, Mr. Weitz left Messa & Associates.
Messa Aff. at ¶ 11.
the plaintiff did not respond to AMS's motion to dismiss,
rather than dismiss the case, on August 2, 2016, I entered an
Order (“First Order”) granting the plaintiff an
additional thirty business days to submit her PPF. [ECF No.
6]. In the First Order, I engaged in an extensive analysis of
the four Wilson factors a district court in the
Fourth Circuit must consider before levying a harsh sanction
such as dismissal. See Mut. Fed. Sav. & Loan
Ass'n v. Richards & Assocs., Inc., 872 F.2d 88,
92 (4th Cir. 1989) (citing Wilson v. Volkswagen of Am.,
Inc., 561 F.2d 494, 503-06 (4th Cir. 1977)). I concluded
that recourse under Rule 37 was justified, but the plaintiff
should be afforded one more chance to comply with discovery.
[ECF No. 6]. I also warned that failure to comply within the
thirty business day period would result in dismissal upon
motion by AMS. Id. Eighty-seven days later, on
October 28, 2016, AMS again moved to dismiss the
plaintiff's case for failing to provide her PPF. [ECF No.
8]. Again, the plaintiff did not respond. On November 17,
2016, I entered an Order (“Second Order”), with
an accompanying Judgment Order, granting AMS's Motion and
dismissing the plaintiff's case with prejudice. [ECF Nos.
9, 10]. Seventy-seven days later, on February 2, 2017,
attorneys Joseph L. Messa and Irene M. McLafferty of Messa
& Associates, P.C. both entered appearances in this case.
[ECF Nos. 12, 13]. Also on that day-758 days after the
original PPF due date-the plaintiff submitted a PPF to AMS
and moved to vacate the dismissal pursuant to Federal Rule of
Civil Procedure 60(b) on the ground that her failure to
timely provide a PPF was the result of excusable neglect.
[ECF No. 14]. In her Rule 60(b) Motion, the plaintiff argued
that “just prior” to my First Order, the only
attorney listed on CM/ECF as her counsel “abruptly left
the law firm” and the firm did not become aware that
the plaintiff's case was dismissed until January 21,
2017. Id. at 3. After briefing on the matter, on
March 8, 2017, I entered an Order (“Third Order”)
denying the plaintiff's Rule 60(b) Motion for relief from
the Judgment Order. It is that denial of Rule 60(b) relief,
rather than the underlying judgment, that the plaintiff
requests I alter or amend in the Rule 59(e) Motion at hand.
Rule of Civil Procedure 60(b) authorizes a district court to
grant relief from a final judgment for five enumerated
reasons or for ‘any other reason that justifies
relief.'” Aikens v. Ingram, 652 F.3d 496,
500 (4th Cir. 2011) (internal citations omitted). The five
enumerated reasons for relief from final judgment under Rule
60(b) are: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence not available at
trial; (3) fraud; (4) a void judgment; and (5) a satisfied or
discharged judgment. Fed.R.Civ.P. 60(b)(1)-(5). The sixth
“catchall” reason “may be invoked in only
‘extraordinary circumstances' when the reason for
relief from judgment does not fall within the list of
enumerated reasons given in Rule 60(b)(1)-(5).”
Aikens, 652 F.3d at 500. Furthermore, the Fourth
Circuit has required that “[i]n all cases, a Rule 60(b)
movant must act in a timely fashion, must demonstrate a lack
of prejudice to the non-movant, and must proffer a
meritorious defense.” Augusta Fiberglass Coatings,
Inc. v. Fodor Contracting Corp., 843 F.2d 808, 811 (4th
59(e) provides: “A motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the
judgment.” Fed.R.Civ.P. 59(e). The Fourth Circuit has
recognized three grounds under which a district court may
grant a Rule 59(e) motion: “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice.” Pac.
Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403
(4th Cir. 1998) (citations omitted). “[I]f a party
relies on newly discovered evidence in its Rule 59(e) motion,
the party must produce a legitimate justification for not
presenting the evidence during the earlier proceeding.”
Id. (internal quote marks and citations omitted).
This allows the district court to correct its own errors
without appellate proceedings, however,
“reconsideration of a judgment after its entry is an
extraordinary remedy which should be used sparingly.”
Id. (quoting 11 Wright et al., Federal Practice
and Procedure § 2810.1 at 124 (2d ed. 1995)).
“A court must not extend the time to act under Rule
[59(e)].” Fed.R.Civ.P. 6(b)(2); see also Alston v.
MCI Commc'ns Corp., 84 F.3d 705, 706 (4th Cir.
Rule of Civil Procedure 37(b)(2) provides that a court may
issue “just orders” when a party fails to provide
or permit discovery. Fed.R.Civ.P. 37(b)(2)(A). In the MDL
world, this authority is particularly significant. An MDL
judge bears the “enormous” task of
“mov[ing] thousands of cases toward resolution on the
merits while at the same time respecting their individuality,
” and to carry out this task in a smooth and efficient
manner, the judge must establish and, more importantly,
enforce rules for discovery. In re Phenylpropanolamine
Prods. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir.
2006). Rule 37(b)(2) supplies the tool for this enforcement,
allowing a judge to impose sanctions when a party fails to
comply with the court's discovery orders. See
Id. at 1232 (“[A] willingness to resort to
sanctions, sua sponte if necessary, may ensure compliance
with the [discovery] management program.” (internal
citation omitted)); see also Freeman v. Wyeth, 764
F.3d 806, 810 (8th Cir. 2014) (“The MDL judge must be
given ‘greater discretion' to create and enforce
deadlines in order to administrate the litigation
effectively.”) Subpart 37(b)(2)(C) provides, in ...