United States District Court, S.D. West Virginia, Charleston Division
IN RE COLOPLAST CORP. PELVIC SUPPORT SYSTEMS PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Smith
MEMORANDUM OPINION AND ORDER
R.GOODWIN UNITED STATES DISTRICT JUDGE.
December 4-5, 2018, the court conducted a Mandatory
Settlement Conference as to the plaintiff's claims
against defendants Coloplast Corporation, RTI Biologics
and/or Mentor Worldwide LLC (“Coloplast”). When
the plaintiff did not appear in person at the settlement
conference as required, by Order entered on December 6, 2018,
the court directed the plaintiff to show cause on or before
January 4, 2019, why the case should not be dismissed with
prejudice pursuant to Rule 16(f) of the Federal Rules of
Civil Procedure [ECF No. 45]. Having failed to show cause,
and for the reasons stated below, the court
DISMISSES this case WITH
September 21, 2018, I entered an order directing the
plaintiff to meet and confer with settlement counsel for
Coloplast on or before November 2, 2018, and to engage in
good faith discussions about the possibility of settlement.
See Pretrial Order (“PTO”) # 140. Should
this case remain unresolved after November 2, 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 # 140
may result in a substantial sanction, including the dismissal
of this case with prejudice.
to PTO # 143, on November 8, 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 December 4-5, 2018. See
PTO # 143. 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.
these warnings, the plaintiff failed to comply with PTO # 140
and PTO # 143, including failing to appear in person at the
Mandatory Settlement Conference as directed. Nothing in the
record suggests that the plaintiff believed in good faith
that she was relieved from the obligation to engage in good
faith settlement discussions with Coloplast or attend the
Mandatory Settlement Conference.
by Order, the court directed the plaintiff to show cause
justifying the failure to comply with PTO # 140 and PTO #
143. In the same 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. Nonetheless, the plaintiff did not
comply with this third and final warning.
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. . 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. denied, 434 U.S. 102
applying these factors to this case, I must be cognizant of
the realities of multidistrict litigation and the unique
problems an MDL judge faces. Specifically, when handling six
MDLs, case management becomes of utmost importance. See
In re Phenylpropanolamine Prods. Liab. Litig.,
460 F.3d 1217, 1231 (9th Cir. 2006)
the “enormous” task of an MDL court in
“figur[ing] out a way to move thousands of cases toward
resolution on the merits while at the same time respecting
their individuality”). I must define rules for
discovery and settlement conferences and strictly adhere to
those rules, with the purpose of ensuring that pretrial
litigation flows as smoothly and efficiently as possible.
See Id. at 1232 (“[T]he district judge must
establish schedules with firm cutoff dates if the coordinated
cases are to move in a diligent fashion toward resolution by
motion, settlement, or trial.”); see also Fed.
R. Civ. P. 1 (stating that the Federal Rules of Civil
Procedure “should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding”). In turn, counsel must collaborate with
the court “in fashioning workable programmatic
procedures” and cooperate with these procedures
thereafter. In re Phenylpropanolamine, 460 F.3d at
1231-32. Pretrial orders-and the parties' compliance with
those orders and their deadlines-“are the engine that
drives disposition on the merits.” Id. at
1232. A “willingness to resort to sanctions” in
the event of noncompliance can ensure that the engine remains
in tune, resulting in better administration of the vehicle of
multidistrict litigation. Id.; see also Freeman
v. Wyeth, 764 F.3d 806, 810 (8th Cir. 2014) (“The
MDL judge must be given ‘greater discretion' to
create and enforce deadlines in order to administrate the
litigation effectively. This necessarily includes the power
to dismiss cases where litigants do not follow the