Allen v. Pfizer, Inc. et al

Filing 29

ORDER DISMISSING CASE. Signed by Judge Charles R. Breyer on 9/25/09. (fj, COURT STAFF) (Filed on 9/29/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIS MATTER having come before the Court on the Pfizer Defendants' Expedited Motion to Dismiss Plaintiffs' Claims with Prejudice; the parties having received due notice and having had the opportunity to be heard; and this Court having considered all submissions made in support of and in opposition to the motion, finds as follows: Plaintiffs listed in the caption to this Order have failed to comply with Pretrial Order No. 31 ("PTO 31") and Pretrial Order No. 31A ("PTO 31A") by failing to provide Defendants with a completed Docket Data Sheet ("DDS") and documents responsive to the requests -1[PROPOSED] ORDER GRANTING PFIZER DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' CLAIMS WITH PREJUDICE ­ M:05-CV-01699-CRB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IN RE BEXTRA AND CELEBREX MARKETING, ) SALES PRACTICE, AND PRODUCT LIABILITY ) ) LITIGATION ) ) ) This Document Relates to: ) ) Allen, Shirley 06-2646 CRB ) Belcher, Pearly 06-2081 CRB ) Boatwright, James M. 06-2443 CRB ) Cameron, Sr., John W. 06-6081 CRB ) Clawson, Claudean P. 06-4046 CRB ) Goins, Kay F. 08-1858 CRB ) Laney, Mary L. 05-4781 CRB ) Lopez, Juana 06-2101 CRB ) Lynch, Cynthia Ulett 07-3745 CRB ) Masterson, William G. 07-1529 CRB ) White, Margaret Sue 06-2864 CRB CASE NO. MDL No. 1699 [PROPOSED] ORDER GRANTING PFIZER DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' CLAIMS WITH PREJUDICE PTO 31 COMPLIANCE MOTION NO. 3 Date: September 25, 2009 Time: 10:00 a.m. Judge: Hon. Charles R. Breyer

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contained in the DDS (collectively, "the material required by PTO 31 and PTO 31A"). Plaintiffs also have failed to comply with the order issued by the Special Master, Judge Fern M. Smith (Ret.) on August 24, 2009, requiring plaintiffs to provide the material required by PTO 31 and PTO 31A within seven (7) days of entry of that Order or face dismissal with prejudice ("the Compliance Order"). Plaintiffs' failure is particularly egregious given the numerous efforts the Court and the parties have made to provide notice of plaintiffs' discovery obligations. (See Pfizer Defs.' Mem. of P. & A. in Supp. of Mot., at 3-5; Declaration of Michelle W. Sadowsky in Supp. of Pfizer Defs.' Mot. to Dismiss, ¶¶ 4-19.) Based on these failures, the Court also finds as follows: (1) The public's interest in expeditious resolution of this litigation is compromised by

Plaintiffs' failure to comply with PTO 31 (Ms. Lynch) and PTO 31A (all plaintiffs other than Ms. Lynch) and the Special Master's Compliance Order. This Court and the public have an overriding interest in securing the just, speedy, and inexpensive determination of every action. Plaintiffs' delay is unreasonable and has impeded the resolution of these matters. (2) The Court's need to manage its docket is compromised by plaintiffs' failure to

comply with PTO 31 (Ms. Lynch) and PTO 31A (all plaintiffs other than Ms. Lynch) and the Special Master's Compliance Order. The Court cannot effectively move forward with the cases in which plaintiffs have provided the required discovery when other plaintiffs have failed to do so. Dismissal of these Plaintiffs will serve to appropriately penalize these Plaintiffs for their noncompliance and also will encourage other plaintiffs to comply with this Court's case management orders. (3) Defendants are prejudiced by plaintiffs' failure to comply with PTO 31 (Ms.

Lynch) and PTO 31A (all plaintiffs other than Ms. Lynch) and the Special Master's Compliance Order. Without the material required by PTO 31 and PTO 31A, the Pfizer Defendants cannot meaningfully evaluate plaintiffs' cases for resolution or evaluate other alternatives for disposing of plaintiffs' cases. (4) The public policy favoring disposition on the merits is overridden by plaintiffs'

failure to comply with PTO 31 (Ms. Lynch) and PTO 31A (all plaintiffs other than Ms. Lynch) -2[PROPOSED] ORDER GRANTING PFIZER DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' CLAIMS WITH PREJUDICE ­ M:05-CV-01699-CRB

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and the Special Master's Compliance Order. The Court finds that plaintiffs' failure to provide the required material obstructs resolution of their claims on the merits. A case that is stalled or unreasonably delayed by a party's failure to comply with deadlines and discovery obligations cannot move forward toward resolution on the merits. Accordingly, this dismissal factor does not weigh in favor of Plaintiffs at all. (5) There are no less drastic sanctions available to force plaintiffs to comply with this

Court's orders. The Court finds that PTO 31 and PTO 31A (by reference to PTO 31) and the Special Master's Compliance Order both provide specific warnings stating that plaintiffs' claims may be dismissed with prejudice for failure to comply with their obligations. The Court also finds that plaintiffs received warning letters from Defendants that prompted no response. Accordingly, after weighing the dismissal factors discussed in Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), and In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217 (9th Cir. 2006), and in light of this Court's role in overseeing this multidistrict litigation, the Court hereby finds that dismissal of these plaintiffs' claims with prejudice is warranted. THEREFORE, IT IS HEREBY ORDERED THAT the Pfizer Defendants' Expedited Motion is GRANTED and the claims of the plaintiffs listed in this caption are DISMISSED WITH PREJUDICE.

25 Dated: September __, 2009

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IT IS SO ORDERED.

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-3[PROPOSED] ORDER GRANTING PFIZER DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' CLAIMS WITH PREJUDICE ­ M:05-CV-01699-CRB

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HONORABLE CHARLES R.E ORDER BREYER IS SODISTRICT JUDGE T UNITEDISTATES

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