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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 28, 2018

IN RE AMERICAN MEDICAL SYSTEMS, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Costa
v.
American Medical Systems, Inc. Civil Action No. 2:17-cv-01215

          ORDER

          JOSEPR R. GOODWIN, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Discussion

         A. The Two Motions to Withdraw

         In both 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.

         In 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.[1] 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.

         By 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].

         For the 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.[2]

B. Motion to Dismiss

         On 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.

         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. 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.

         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.

         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) ...

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