United States District Court, S.D. West Virginia, Charleston Division
IN RE COLOPLAST CORP., PELVIC SUPPORT SYSTEMS PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Barbara Herrera
Coloplast Corp. Civil Action No. 2:15-cv-01733
MEMORANDUM OPINION AND ORDER
R. GOODWIN, JUDGE
before the court is Defendant's Motion to Dismiss [ECF
No. 24] filed by Coloplast Corp. ("Coloplast"). The
plaintiff has responded [ECF No. 25], and the defendant has
replied [ECF No. 26]. Also pending is the plaintiff's
Renewed Cross-Motion for an Order to Be Relieved as Counsel
[ECF No. 25], to which the defendant has responded [ECF No.
26]. Thus, both matters are ripe for my review. For the
reasons stated below, the Motion to Dismiss [ECF No. 24] and
the Cross-Motion for an Order to Be Relieved as Counsel [ECF
No. 25] are DENIED.
Motion arises from this court's Order [ECF No. 22],
entered on December 1, 2017, denying defendant's first
Motion to Dismiss [ECF No. 19] for plaintiff's failure to
meet and confer with defendant's counsel to engage in
good faith discussions about the possibility of settlement in
compliance with Pretrial Order (“PTO”) # 134. In
reaching this decision, I relied on Wilson v. Volkswagen
of America, Inc., 561 F.2d 494 (4th Cir. 1977), in which
the Fourth Circuit identified four factors that a court must
consider when reviewing a motion to dismiss on the basis of
noncompliance with discovery. See Order at 4-7
(applying the Wilson factors to the plaintiff's
case). Concluding that the first three factors
weighed in favor of sanctions as requested by defendant, I
nevertheless declined to award the requested sanction of
dismissal with prejudice because it would offend the
court's duty under Wilson's fourth factor,
which is to consider the effectiveness of lesser sanctions.
In recognition of this duty, I gave the plaintiff a final
chance to comply with PTO # 134. I afforded her thirty days
from the entry of the Order to meet and confer with defendant
to discuss settlement, with the caveat that failure to do so
may result in dismissal of her case with prejudice upon
motion by the defendant.
response to the Order, on December 19, 2017, plaintiff's
counsel initiated a telephonic meet-and-confer with
defendant's counsel and engaged in good faith discussions
about the possibility of settlement, but was unable to reach
a resolution. Pl.'s Opp'n to Def.'s Mot. to
Dismiss ¶ 4 [ECF No. 25]. On February 6, 2018, defendant
filed a motion to dismiss with prejudice, on the basis that
plaintiff's counsel had failed to engage in the
court-ordered meet-and-confer. In its reply, the defendant
conceded that plaintiff's counsel had in fact
communicated regarding the possibility of settlement, but
continued to seek dismissal of the plaintiff's case based
on the plaintiff's apparent lack of interest in pursuing
her claims. Def.'s Opp'n to Pl.'s Cross-Mot.
& Reply in Further Supp. of Def.'s Mot. to Dismiss
¶ 1-2 [ECF No. 26].
addition, plaintiff's counsel states that
“[s]ignificant differences have arisen and remain
between [counsel and the plaintiff] as to the appropriate
approach to our representation of her in this case, and an
irrevocable breach has developed.” Id. at
¶ 8. Therefore, plaintiff's counsel seeks leave to
withdraw as counsel of record for the plaintiff.
agreeing to appear on behalf of the plaintiff's interest
in this case, counsel accepted the ethical responsibility to
pursue this matter diligently and through to its conclusion.
Model Code of Prof'l Responsibility r. 1.3 (Am. Bar
Ass'n 1980). Similar ethical considerations
“confer upon the client the ultimate authority to
determine the purposes to be served by legal
representation.” Id. at r. 1.2. Attorneys, on
the other hand, are obliged to “abide by a
client's decisions” concerning the objectives of
representation. Id. (emphasis added). Fundamental
disagreements with a client permits an attorney to
withdraw from the representation in certain cases, such as
cases wherein the disagreement is irreconcilable. Here, the
court is reluctant to grant counsel's request as it is
certain to disrupt the effective administration of justice.
In the absence of any persuasive argument that the present
disagreement between counsel and the plaintiff, as described
by counsel, is a sufficient basis to support a finding that
irreconcilable differences exist-without more-I find that
counsel has failed to demonstrate the requisite good cause to
withdraw as counsel under Local Rule 83.4.
plaintiffs counsel did in fact engage in good faith
discussions about the possibility of settlement with
defendant's counsel, I FIND that the
plaintiff has made a good faith attempt at compliance with
this court's December 1, 2017 Order. Therefore, it is
ORDERED that the Defendant's Motion to
Dismiss [ECF No. 24] is DENIED. It is
further ORDERED that the plaintiffs Renewed
Cross-Motion for an Order to Be Relieved as Counsel [ECF No.
25] is DENIED.
court DIRECTS the Clerk to send a copy of
this Order to counsel of record and to any unrepresented
 The Wilson factors are as
follows: (1) Whether the noncomplying party acted in bad
faith; (2) the amount of prejudice his noncompliance caused
his adversary, which necessarily includes an inquiry into the
materiality of the evidence he failed to produce; (3) the
need for deterrence of the particular sort of noncompliance;
and (4) the effectiveness of less drastic sanctions. Mut.
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