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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1 2 3 4 5 6 7 8 9 JAMES F. MURDICA (SBN 315412) JMurdica@btlaw.com SANDRA M. KO (SBN 260863) SKo@btlaw.com BARNES & THORNBURG LLP 2029 Century Park East, Suite 300 Los Angeles, California 90067 Telephone: (310) 284-3880 Facsimile: (310) 284-3894 Attorneys for Defendant JOHNSON & JOHNSON CONSUMER INC. (erroneously sued as JOHNSON & JOHNSON CONSUMER, INC.) UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 11 12 ELIZABETH BODLE, 13 14 15 16 17 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. 18 Judge: Hearing Date: Hearing Time: Courtroom: 19 20 21 22 23 24 25 26 27 28 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. 5 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 1 2 3 4 5 6 7 8 (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 9 10 11 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 13 caused this action to come to a halt, allowing Plaintiff—not this Court— 14 16 to control the pace of the docket; (c) 19 file a Second Amended Complaint; (d) opportunity to plead plausible claims against JJCI, but has failed to do so, 21 either because Plaintiff cannot or because she has chosen not to further 22 24 25 26 27 28 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 20 23 The third factor, the risk of prejudice to Defendant JJCI, strongly favors dismissal because Plaintiff has provided no reason for her failure to timely 17 18 The second factor, the Court’s need to manage its docket, also strongly supports dismissal because Plaintiff’s failure to file a Second Amended 12 15 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. -2- [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 DI AS MO Hon. Edward M. M. Chen Chen ard d Judge E ER 6 A H 5 w LI RT 4 FO NO 3 UNIT ED 2 IT IS SO ORDERED. RT U O 1 S DISTRICT TE C TA N F D IS T IC T O R C 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES -3- [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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