United States District Court, S.D. West Virginia, Charleston Division
IN RE AMERICAN MEDICAL SYSTEMS, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Costa
American Medical Systems, Inc. Civil Action No. 2:17-cv-01215
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
the court are three motions: the two identical motions
entitled Motion to Withdraw as Counsel for the Plaintiff,
both filed on July 31, 2017 by counsel for the plaintiff [ECF
Nos. 12, 13]; and the Motion to Dismiss With Prejudice filed
by defendant American Medical Systems, Inc.
(“AMS”) on February 2, 2018 [ECF No. 19]. No.
party has filed an opposition to any of these motions, and
all three motions are now ripe for adjudication.
The Two Motions to Withdraw
motions to withdraw, Chester L. Tennyson, Jr. and Richard L.
Tennyson of Tennyson Law Firm seek leave to withdraw as
counsel under Local Civil Rule 83.4. As justification for the
withdrawal, counsel state that the attorney-client
relationship has irretrievably broken down.
response to both of these motions, on August 15, 2017, I
entered an order staying this civil action until September
15, 2017 [ECF No. 14]. In the same order, I directed the
plaintiff to file a statement of intent to proceed without
counsel or to have new counsel enter an appearance by
September 15, 2017. Should the plaintiff fail to comply with
this directive, I warned, AMS could move for appropriate
relief, including the dismissal of this case with prejudice.
September 15, 2017, Chester L. Tennyson, Jr. and Richard L.
Tennyson filed the necessary documents in compliance with the
Order. [ECF No. 16]. The plaintiff, on the other hand, failed
to file any response. Of note, however, the docket in this
case reflects that attorney George G. Burke of the Law
Offices of George G. Burke briefly entered his appearance in
this case on behalf of the plaintiff on September 12, 2017.
[ECF No. 17]. However, shortly thereafter on September 18,
2017, Mr. Burke filed a notice of withdrawal. [ECF No. 18].
reasons stated in the motions, in the absence of any
opposition, and in light of counsels' compliance with
this court's Order, the Motion to Withdraw as Counsel for
the Plaintiff is GRANTED.
B. Motion to Dismiss
February 2, 2018, AMS moved to dismiss this case with
prejudice. In its motion to dismiss, AMS notes that the
plaintiff has neither retained new counsel nor filed a notice
of intent to proceed without counsel, in violation of the
August 15, 2017 Order.
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. While the plaintiff's retention
of counsel between September 12, 2017 and September 18, 2017
complies with a literal interpretation of my directive,
common sense dictates that the plaintiff failed to abide by
the spirit of my order. Moreover, in the several months
since, the plaintiff has given no indication that she intends
to prosecute her claims further. The conduct of the plaintiff
is concerning particularly given the circumstances prompting
counsels' request to withdraw - that they lost all
communication with the plaintiff.
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.
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) ...