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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

August 1, 2018

IN RE AMERICAN MEDICAL SYSTEMS, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
v.
American Medical Systems, Inc. THIS DOCUMENT RELATES TO: Whatley Civil Action No. 2:13-cv-15664

          ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Before the court are two motions: (1) the Motion to Dismiss With Prejudice (hereinafter, the “First Motion to Dismiss”), filed by defendant American Medical Systems, Inc. (“AMS”) on March 6, 2017 [ECF No. 19]; and (2) the Motion to Dismiss With Prejudice (hereinafter, the “Second Motion to Dismiss”), filed by AMS on July 11, 2018 [ECF No. 25]. Plaintiff Nipie E. Whatley did not file a Response to either motion, and the time to do so has expired. Therefore, these matters are ripe for adjudication.

         In addition, on June 13, 2018, the court conducted a Mandatory Settlement Conference as to the plaintiff's claims against AMS. When the plaintiff did not appear in person at the settlement conference as required, by Order entered on June 12, 2018 (the “Show Cause Order”), the court directed the plaintiff to show cause on or before July 6, 2018, why her case should not be dismissed with prejudice pursuant to Rule 16(f) of the Federal Rules of Civil Procedure [ECF No. 23]. The plaintiff, in a Letter- Form Response dated June 18, 2018, submitted to the chambers of the undersigned judge a response to the court's Show Cause Order [ECF No. 24], which was submitted to the Clerk of court and entered on the docket on July 2, 2018.

         Among the issues raised in these filings is the plaintiff's sometimes dilatory conduct, particularly her failure to abide by several of this court's directive. The court must now decide whether sanctions are appropriate and, if so, whether the court has no recourse but to dismiss this case with prejudice. For the reasons stated below, the court finds that alternative sanctions lesser than dismissal of this civil action are appropriate at this time. To avoid the dismissal of this case, the plaintiff must abide by the terms expressed below.

         I. Background

         The complications present in this case now began long ago. On January 9, 2014, after a hearing on counsels' motion to withdraw, [1] the court granted plaintiff' counsels' request to withdraw as attorney of record due to irreconcilable differences. [ECF No. 15]. Left representing herself, the court advised the plaintiff of her obligations to comply with the various discovery orders entered in this litigation, one of several thousand products liability actions consolidated by the Multidistrict Litigation Panel in the AMS MDL, 2325 MDL, before this court.

         Approximately thirty-three months later, without any progress in this case, the court entered Pretrial Order (“PTO”) # 223, which required the plaintiff in this case to submit a completed Plaintiff Fact Sheet (“PFS”) with verifications and authorizations by November 21, 2016. Having failed to do so timely, or cure following a notice of delinquency, AMS filed the First Motion to Dismiss With Prejudice on March 6, 2017.

         The case remained static until, on March 19, 2018, I entered an order directing the plaintiff to meet and confer with settlement counsel for AMS on or before May 14, 2018, and to engage in good faith discussions about the possibility of settlement. See PTO # 251. Should this case remain unresolved after May 18, 2018, I apprised the parties in the same PTO, the court would compel their presence in Charleston, West Virginia, at the Robert C. Byrd United States Courthouse for a Mandatory Settlement Conference, which would be confirmed by a later court order. In addition, I warned any failure to comply with PTO # 251 may result in a substantial sanction, including the dismissal of this case with prejudice.

         Pursuant to PTO # 251, on May 22, 2018, I directed the parties and their counsel of record to appear in person at the Robert C. Byrd United States Courthouse for a Mandatory Settlement Conference scheduled between June 6-8, 2018. See PTO # 253. Again, I warned that any failure to comply with this directive may result in a substantial sanction, including the dismissal of this case with prejudice.

         Despite these warnings, the plaintiff failed to appear in person at the Mandatory Settlement Conference as directed. Thereafter, the court directed the plaintiff to show cause justifying her failure to comply with PTO # 251 and PTO # 253. In the same Show Cause Order, I warned for the third time that failure to show cause would result in the dismissal of this case pursuant to Rule 16(f) of the Federal Rules of Civil Procedure with prejudice. The plaintiff did respond, explaining that she seeks to hold AMS accountable for her alleged harm while appealing that the court withhold an order entering dismissal. AMS, in turn, filed its Second Motion to Dismiss, arguing that dismissal is appropriate because the plaintiff's response to this court's show cause order does not adequately justify her absence from the Mandatory Settlement Conference.

         II. Legal Standard

         Rule 16(a)(5) of the Federal Rules of Civil Procedure permits the court to issue orders regarding pretrial conferences for the purpose of facilitating settlement. Fed.R.Civ.P. 16(a)(5). Rule 16(f) provides a court may issue any just order, including those authorized by Rule 37(b)(2)(A)(ii)-(vii) if a party fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order. Id. 16(a)(5), (f). Rule 37(b)(2), in turn, sets forth a list of sanctions available when a party fails to comply with a court order, including “dismissing the action or proceeding in whole or in part.” Id. 37(b)(2)(A)(v). Before levying dismissal or default as a sanction under Rule 37, a court generally must first consider four factors:

(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. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (citing Wilson v. Volkswagon of America, Inc., 561 F.2d 494, 503-04 (4th Cir. 1977), cert. ...


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