Dedecker v. Matrixx Initiatives Incorporated et al
Filing
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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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