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

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

February 28, 2018

IN RE AMERICAN MEDICAL SYSTEMS, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Gonzalez
v.
American Medical Systems, Inc. Civil Action No. 2:16-cv-08344

          ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         Before the court are two motions: (1) the Motion to Withdraw as Counsel, filed by plaintiff's counsel on August 16, 2017 [ECF No. 7]; and (2) the Motion to Dismiss With Prejudice, filed by defendant American Medical Systems, Inc. (“AMS”) on January 17, 2018 [ECF No. 10]. The plaintiff has not filed a response to either motion, and the time to respond to each has expired. Thus, both matters are now ripe for adjudication. For purposes of clarity, I will discuss each motion in turn.

         I. Discussion

         A. Motion to Withdraw

         In the Motion to Withdraw, Clayton A. Clark, Scott A. Love, and W. Michael Moreland of Clark, Love, & Hutson seek leave to withdraw as counsel for plaintiff Arelia Gonzalez under Local Rule 83.4. As justification for the withdrawal, counsel state that the plaintiff has not responded to multiple communications.

         In response to the Motion to Withdraw, on September 5, 2017, the court entered an order (“Order”) staying this action until October 5, 2017. [ECF No. 8]. In the same order, the court also directed the plaintiff to file a statement of intent to proceed without counsel or to have new counsel enter an appearance by October 5, 2017.[1] Should the plaintiff fail to comply with this directive, the court warned, AMS could move for appropriate relief, including the dismissal of this case with prejudice.

         By October 5, 2017, Clayton A. Clark, Scott A. Love, and W. Michael Moreland filed the necessary documents in compliance with the Order. [ECF No. 9]. The plaintiff, 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 Motion to Withdraw as Counsel is GRANTED.

         B. Motion to Dismiss

         On January 17, 2018, AMS moved to dismiss this case with prejudice. In moving for dismissal, AMS argues that the plaintiff has neither retained new counsel nor filed a notice of intent to proceed without counsel, in violation of the September 5, 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 plaintiff 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 October 5, 2017. The conduct of the plaintiff is concerning particularly given the circumstances prompting counsels' request to withdraw - that they lost all communication with the plaintiff.

         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, directed withdrawing counsel to certify delivery of the motion to withdraw and a copy the court's order to the plaintiff's last known mailing and email addresses, and provided thirty days in which the plaintiff could respond. To date, despite the warning of sanctions, the plaintiff has 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.” Ba lard 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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