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: Ayala et al.
American Medical Systems, Inc. Civil Action No. 2:14-cv-16207
R. GOODWIN UNITED STATES DISTRICT JUDGE.
the court are two motions: (1) the Motion to Withdraw as
Counsel of Record, filed by plaintiffs' counsel on
November 13, 2017 [ECF No. 11]; and (2) the Motion to Dismiss
With Prejudice, filed by defendant American Medical Systems,
Inc. (“AMS”) on January 17, 2018 [ECF No. 14].
The plaintiffs have not filed an opposition to either motion,
and the time to respond to each has expired. Thus, both
matters are now ripe for adjudication.
Motion to Withdraw
Motion to Withdraw, Waters & Kraus, LLP; Moulton &
Arney, LLP; and Johnson Law Group seek leave to withdraw as
counsel for plaintiffs Jennifer E. Ayala and Aaron C. Ayala
under Local Rule 83.4. As justification for the withdrawal,
counsel state that the plaintiffs have not responded to
response to the Motion to Withdraw, on November 17, 2017, the
court entered an order staying this action until December 17,
2017. [ECF No. 12]. In the same order, the court also directed
plaintiffs Jennifer E. Ayala and Aaron C. Ayala 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
December 17, 2017, withdrawing counsel filed the necessary
documents in compliance with the order. [ECF No. 13].
Plaintiffs Jennifer E. Ayala and Aaron C. Ayala, 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 of Record is
Motion to Dismiss
January 17, 2018, AMS moved to dismiss this case with
prejudice. In moving for dismissal, AMS argues that the
plaintiffs Jennifer E. Ayala and Aaron C. Ayala have neither
retained new counsel nor filed a notice of intent to proceed
without counsel, in violation of the November 17, 2017 order.
The plaintiffs have not responded to the motion to dismiss,
and the time to file a response has expired.
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
Jennifer E. Ayala and Aaron C. Ayala.
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 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.
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
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 Ballard, 882 F.2d
at 95-96) (finding dismissal with prejudice proper where a
litigant ignored an express warning from a magistrate, who