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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

February 13, 2018

American Medical Systems, Inc. Civil Action No. 2:13-cv-17532 THIS DOCUMENT RELATES TO: Gandara, et al.



         Before the court are two motions: (1) the Amended Motion to Withdraw, filed by plaintiffs’ counsel on November 13, 2017 [ECF No. 14]; and (2) the Motion to Dismiss, filed by defendant American Medical Systems, Inc. (“AMS”) on January 17, 2018 [ECF No. 17]. Both motions are unopposed and the matters are ripe for adjudication. For purposes of clarity, I will discuss each motion in turn.

         I. Discussion

         A. Amended Motion to Withdraw

         In the Amended Motion to Withdraw, Waters & Kraus, LLP and The Jordan Law Group seek leave to withdraw as counsel for plaintiffs Jeanne Gandara and Salvador Cortez under Local Rule 83.4. As justification for the withdrawal, counsel state that the plaintiffs have not responded to multiple communications.

         In response to the Motion, on November 17, 2017, the court entered an order (“Order”) staying this action until December 17, 2017. [ECF No. 15]. The court also directed counsel to send a copy of the Order and their motion to the plaintiffs via email and regular mail to their last known address, and ordered the plaintiffs to file a statement of intent to proceed without counsel or to have new counsel enter an appearance by December 17, 2017. Should the plaintiffs fail to comply with this directive, the court warned, AMS could move for appropriate relief, including the dismissal of this case with prejudice.

         By December 17, 2017, Waters & Kraus, LLP and The Jordan Law Group filed the necessary documents in compliance with the Order. [ECF No. 16]. The plaintiffs, on the other hand, failed to file any response. For the reasons stated in the motion, in the absence of any opposition, and in light of counsels’ compliance with this court’s Order, the Amended Motion to Withdraw is GRANTED.

         B. Motion to Dismiss

         On January 17, 2018, AMS moved to dismiss this case with prejudice. In its motion to dismiss, AMS notes that the plaintiffs have neither retained new counsel nor filed a notice of intent to proceed without counsel, in violation of the November 17, 2017 Order.

         Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may move for dismissal of a civil action “[i]f the plaintiff fails to prosecute or comply with these rules or a court order.” Fed. R. Civ. P. 41(b). In this case, the plaintiffs failed to respond to a specific directive of the court – either retain new counsel or file a notice of intent to proceed without counsel by December 17, 2017. The conduct of the plaintiffs is concerning particularly given the circumstances prompting counsels’ request to withdraw – that they lost all communication with the plaintiffs.

         The court is aware that this individual case is among several thousands of civil actions grouped in one of seven MDLs assigned to me by the Judicial Panel on Multidistrict Litigation. As an added measure of precaution, the court stayed this case, secured a greater means of actual notice by directing withdrawing counsel to certify delivery of the motion to withdraw and a copy the court’s Order to the plaintiffs last known mailing and email addresses, and provided thirty days in which the plaintiffs could respond. To date, despite the warning of sanctions, the plaintiffs have still not complied with this court’s Order or requested an enlargement of time to respond.

         I recognize that dismissal is “not a sanction to be invoked lightly.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). Generally, courts must consider certain criteria addressing the propriety of dismissal as a sanction given the particular circumstances of the case:

(1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.

Id. “A district court need not engage in a rigid application of this test, however, when a litigant has ignored an express warning that failure to comply with an order will result in the dismissal of his claim.” Taylor v. Huffman, No. 95-6380, 1997 WL 407801, at * 1 (4th Cir. July 22, 1997) (citing Balard, 882 F.2d at 95-96) (finding dismissal with prejudice proper where a litigant ignored an express warning from a magistrate, who advised ...

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