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In re American Medical Systems, Inc., Pelvic Repair System Products Liability Litigation

United States District Court, S.D. West Virginia, Charleston Division

May 30, 2017

American Medical Systems, Inc. THIS DOCUMENT RELATES TO: Rose Apuzzi Civil Action No. 2:14-cv-28603



         Pending 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.

         I. Background

         This 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.

         In the 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: and 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.

         Pursuant 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.

         Although 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.

         II. Legal Standards

         A. Rule 60(b)

         “Federal 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 Cir. 1988).

         B. Rule 59(e)

         Rule 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. 1996).

         C. Rule 37(b)

         Federal 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 ...

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