Dedecker v. Matrixx Initiatives Incorporated et al

Filing 9

ORDER granting (Doc. 1486, filed in MDL-2096) Defendants's Motion to Dismiss the Claims of Plaintiffs Carla Henry and Nicolin Dedecker. FURTHER ORDERED DISMISSING Carla Henry v. Matrixx Initiatives, Inc., et al., No. CV 10-2082-PHX-FJM, and Nicolin Dedecker v. Matrixx Initiatives, Inc, et al., No. CV 11-0041-PHX-FJM with prejudice. Signed by Judge Frederick J Martone on 8/5/11. (Original Order field in MDL-2096, Doc. 1503) (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN RE: Zicam Cold Remedy Marketing,)
Sales Practices, and Products Liability)
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Litigation.
_________________________________ )
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THIS DOCUMENT RELATES TO:
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Carla Henry v. Matrixx Initiatives, Inc., )
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et al.,
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No. CV 10-2082-PHX-FJM
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and
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Nicolin Dedecker v. Matrixx Initiatives,)
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Inc., et al.,
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No. CV 11-0041-PHX-FJM.
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No. 09-md-2096-PHX-FJM
ORDER

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The court has before it defendants’ motion to dismiss with prejudice the claims of

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plaintiff Carla Henry Carla Henry v. Matrixx Initiatives, Inc., et al., No. CV 10-2082-PHX-

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FJM, and Nicolin Dedecker, Nicolin Dedecker v. Matrixx Initiatives, Inc, et al., No. CV

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11-0041-PHX-FJM (doc. 1486) and defendants’ reply (doc. 1501). Plaintiffs have not

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responded, and the time to do so has passed.

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Defendants served all personal injury plaintiffs with a plaintiff fact sheet (“PFS”) and

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discovery on whether plaintiffs “sniffed” the Zicam product. Case Management Order 2

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requires every personal injury plaintiff to complete the PFS, and return it within forty-five

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days of receipt (doc. 398). If a plaintiff fails to serve a completed PFS, defendants’ lead

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counsel must send a warning letter to plaintiff’s counsel requesting compliance within fifteen

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days. If plaintiff does not then respond, defendants may move for appropriate relief.

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Plaintiffs Henry and Dedecker have not provided responses to any discovery served by

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defendants. Defendants have sent two letters to plaintiffs advising them of the deficiencies.

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We previously granted plaintiffs’ counsel’s motions to withdraw based on plaintiffs’ failure

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to respond to counsel’s repeated attempts to elicit discovery responses. Order of March 25,

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2011 (doc. 1396); Order of April 28, 2011 (doc. 1441).

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We may dismiss an action where a party fails to obey a court order on discovery. Fed.

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R. Civ. P. 37(b)(2)(A)(v); In re Phenylpropanolamine (PPA) Products Liability Litig., 460

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F.3d 1217, 1226 (9th Cir. 2006). As an MDL court, our discretion to dismiss is broadened

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by our responsibility to “promote the just and efficient conduct of actions that are

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coordinated or consolidated for pretrial purposes.” In re Phenylpropanolamine, 460 F.3d at

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1252. In addition, plaintiffs’ failure to respond to this motion is grounds for dismissal.

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LRCiv 7.2(i) (if “counsel does not serve and file the required answering memoranda . . . such

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non-compliance may be deemed a consent to the denial or granting of the motion and the

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Court may dispose of the motion summarily.”).

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Therefore, in accordance with plaintiffs’ ongoing refusal to participate and with their

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decision not to oppose defendants’ motion, we dismiss plaintiffs’ claims with prejudice. And

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while thorough analysis of the five-factor test for dismissal for failure to comply with

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discovery is impossible without plaintiffs’ responses to defendants’ motion, a brief analysis

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makes plain that dismissal is appropriate. See In re Phenylpropanolamine, 460 F.3d at 1226

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(listing five factors to be considered prior to dismissal). First, “the public’s interest in

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expeditious resolution of litigation” favors dismissal. Plaintiffs have ignored repeated

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opportunities to comply with court orders, and have shown no interest in prosecuting their

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claims. Second, our need to manage our docket supports dismissal. We have made clear that

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the timely cooperation of all parties is vital to the management of such complex litigation.

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Third, defendants have been prejudiced by plaintiffs’ delays in providing the requested

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discovery responses. Defendants lack basic information about plaintiffs’ alleged injuries.

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Fourth, while public policy favors disposition of these claims on their merits, plaintiffs’

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refusal to participate renders such a resolution impossible. Finally, a less drastic sanction

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would not be effective. Plaintiffs have ignored repeated warnings that their failure to
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cooperate could lead to dismissal of their claims (including from their own lawyers), and

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there is no reason to believe an additional warning would lead to a different result.

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IT IS THEREFORE ORDERED GRANTING defendants’ motion to dismiss the

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claims of plaintiffs Carla Henry and Nicolin Dedecker (doc. 1486). IT IS FURTHER

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ORDERED DISMISSING Carla Henry v. Matrixx Initiatives, Inc., et al., No. CV 10-2082-

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PHX-FJM, and Nicolin Dedecker v. Matrixx Initiatives, Inc, et al., No. CV 11-0041-PHX-

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FJM with prejudice.

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DATED this 5th day of August, 2011.

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