Bodle v. Johnson & Johnson Consumer Inc.

Filing 31

ORDER by Judge Edward M. Chen Granting 29 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 5/6/2022)

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JAMES F. MURDICA (SBN 315412)
[e-mail]
SANDRA M. KO (SBN 260863)
[e-mail]
BARNES & THORNBURG LLP
2029 Century Park East, Suite 300
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
JOHNSON & JOHNSON CONSUMER INC.
(erroneously sued as JOHNSON & JOHNSON
CONSUMER, INC.)
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

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ELIZABETH BODLE,

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Case No. 3:21-CV-07742-EMC

Plaintiff,

[PROPOSED] ORDER GRANTING
DEFENDANT JOHNSON & JOHNSON
CONSUMER INC.’S MOTION TO DISMISS
ACTION UNDER FED. R. CIV. P. 41(b)

v.
JOHNSON & JOHNSON CONSUMER,
INC.

[Filed Concurrently With Notice of Motion and
Motion to Dismiss Action Under Fed. R. Civ. P.
41(b); Memorandum of Points and Authorities in
Support Thereof]

Defendant.

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Judge:
Hearing Date:
Hearing Time:
Courtroom:

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B ARNES &
T HORNBURG LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

Hon. Edward M. Chen
June 9, 2022
1:30 p.m.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
The Motion to Dismiss Action pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure of Defendant Johnson & Johnson Consumer Inc. (“JJCI”) regularly came on for hearing
before this Court on June 9, 2022. Plaintiff and JJCI were represented by counsel.
After reviewing and considering the Motion and papers filed in support thereof, the
Opposition, and Reply, the arguments of counsel at the hearing, and all other matters presented to
the Court, IT IS HEREBY ORDERED THAT:
-1-

[PROPOSED] ORDER GRANTING DEFENDANT JOHNSON & JOHNSON CONSUMER INC.’S
MOTION TO DISMISS ACTION UNDER FED. R. CIV. P. 41(b)
Case No. 3:21-CV-07742-EMC

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(1)

The Court GRANTS JJCI’s Motion to Dismiss Action;

(2)

Plaintiff failed to file a Second Amended Complaint within 60 days of the Court’s
Order at the February 24, 2022 hearing and in its Minute Entry Order (Dkt. 28);

(3)

The following five factors set forth in Yourish v. Cal. Amplifier, 191 F.3d 983
(9th Cir. 1999), weigh in favor of dismissal of this action, with prejudice, under
Fed. R. Civ. P. 41(b):
(a)

litigation, strongly supports dismissal because Plaintiff has had ample

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time to plead plausible claims against JJCI, but has not done so;
(b)

Complaint within the 60 days after the February 24, 2022 hearing has

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caused this action to come to a halt, allowing Plaintiff—not this Court—

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to control the pace of the docket;
(c)

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file a Second Amended Complaint;
(d)

opportunity to plead plausible claims against JJCI, but has failed to do so,

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either because Plaintiff cannot or because she has chosen not to further

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B ARNES &
T HORNBURG LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

The fourth factor, the public policy favoring disposition of the case on its
merits, does not weigh against dismissal because Plaintiff has had ample

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The third factor, the risk of prejudice to Defendant JJCI, strongly favors
dismissal because Plaintiff has provided no reason for her failure to timely

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The second factor, the Court’s need to manage its docket, also strongly
supports dismissal because Plaintiff’s failure to file a Second Amended

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The first factor, the public’s interest in expeditious resolution of this

amend her complaint; and
(e)

The fifth factor, the availability of less drastic alternatives, also does not
weigh against dismissal because Plaintiff was well aware of the deadline
to file a Second Amended Complaint but did not do so, nor has Plaintiff
requested any lesser relief to maintain her action.

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[PROPOSED] ORDER GRANTING DEFENDANT JOHNSON & JOHNSON CONSUMER INC.’S
MOTION TO DISMISS ACTION UNDER FED. R. CIV. P. 41(b)
Case No. 3:21-CV-07742-EMC

S

R NIA

DATED: May 6, 2022

D
RDERE
IS SO O FIED
IT
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AS MO

Hon. Edward M. M. Chen
Chen
ard
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Judge E

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UNIT
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IT IS SO ORDERED.

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B ARNES &
T HORNBURG LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

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[PROPOSED] ORDER GRANTING DEFENDANT JOHNSON & JOHNSON CONSUMER INC.’S
MOTION TO DISMISS ACTION UNDER FED. R. CIV. P. 41(b)
Case No. 3:21-CV-07742-EMC