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In re American Medical Systems, Inc.

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: Ayala et al.
v.
American Medical Systems, Inc. Civil Action No. 2:14-cv-16207

          ORDERs

          JOSEPR R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Discussion

         A. Motion to Withdraw

         In the 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 multiple communications.

         In 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].[1] 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.[2] 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, 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 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 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.

         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 Jennifer E. Ayala and Aaron C. Ayala.

         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 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 Ballard, 882 F.2d at 95-96) (finding dismissal with prejudice proper where a litigant ignored an express warning from a magistrate, who ...


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