Elkins v. Bayer Healthcare Pharmaceuticals, Inc. et al

Filing 7

ORDER granting 6 Motion to Dismiss. Signed by Chief Judge David R. Herndon on 10/24/2011. (slj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS

IN RE: YASMIN AND YAZ
(DROSPIRENONE) MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY
LITIGATION

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3:09-md-02100-DRH-PMF
MDL No. 2100
Order Dismissing

This Document Relates to:
Rebecca Bach v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13149-DRH-PMF

Sarah Blagg v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-13192-DRH-PMF

Melissa Carli-Walton and Leo Walton v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-11571-DRH-PMF

Carmaletia L. Cruz, et al. v.
Bayer Pharmaceuticals Corp., et al. 1

No. 3:10-cv-12481-DRH-PMF

Lindsey Davis v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-12778-DRH-PMF

Diana Elkins v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-12934-DRH-PMF

Carissa Funk v. Bayer Corp., et al.

No. 3:10-cv-12453-DRH-PMF

Alesia Goff-Thomas and Andy Thomas v.
Bayer Schering Pharma AG, et al.

No. 3:10-cv-12367-DRH-PMF

Natasha Hartsell v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-11655-DRH-PMF

Paulette Monica v. Bayer Corp., et al.

No. 3:10-cv-11790-DRH-PMF

Rebecca Orr v. Bayer Corp., et al.

No. 3:10-cv-11636-DRH-PMF

1

This order applies to plaintiff Carmaletia L. Cruz only.

Kimberly S. Ray v. Bayer Corp., et al.

No. 3:11-cv-20089-DRH-PMF

Glenda Taylor v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-12947-DRH-PMF

Jill Whitehouse v.
Bayer HealthCare Pharmaceuticals, Inc., et al.

No. 3:10-cv-11639-DRH-PMF

BAYER HEALTHCARE PHARMACEUTICALS INC.’S MOTION
TO DISMISS WITHOUT PREJUDICE
This matter is before the Court on defendant Bayer HealthCare
Pharmaceuticals Inc.’s (“Bayer”) motion, pursuant to Case Management Order 12
(“CMO 12”),2 for an Order dismissing plaintiffs’ claims in the above-captioned
matters without prejudice for failure to comply with their Plaintiff Fact Sheet
(“PFS”) obligations.3
Under Section C of CMO 12, each Plaintiff is required to serve
Defendants with a completed PFS, including a signed Declaration, executed
record release Authorizations, and copies of all documents subject to the requests
for production contained in the PFS which are in the possession of Plaintiff.

2

The Parties negotiated and agreed to CMO 12, which expressly provides that the
discovery required of plaintiffs is not objectionable. CMO 12 § A(2).
3

Bayer also filed identical motions to dismiss in LeKeisha M. Coleman v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:11-cv-10466-DRH-PMF; Tracie Jo
Espinoza v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13058DRH-PMF; and Kimberly Harris and Tommy Harris v. Bayer HealthCare
Pharmaceuticals, Inc., et al. No. 3:10-cv-12949-DRH-PMF. The motions filed in
Harris and Coleman were subsequently withdrawn. A stipulation of dismissal
was filed by the parties in Espinoza.

2

Section B of CMO 12 further provides that a completed PFS is due “45 days from
the date of service of the first answer to her Complaint or the docketing of her
case in this MDL, or 45 days from the date of this Order, whichever is later.”
Accordingly, plaintiffs in the above-captioned matters were to have
served completed PFSs on or before August 5, 2011. See Exhibit A to Bach 3:10cv-13149 Doc. 6.4 Per Section E of CMO 12, Notice of Overdue Discovery was
sent on or before August 26, 2011. See Exhibit B to Bach 3:10-cv-13149 Doc. 6.
As of today’s date, Plaintiffs in the above-captioned matters still have not served
completed PFSs.

Plaintiffs’ completed PFSs are thus more than one month

overdue.
Under Section E of CMO 12, plaintiffs were given 14 days from the
date of Bayer’s motion, in this case 14 days from September 27, 2011, to file a
response either certifying that they served upon defendants and defendants
received a completed PFS, and attaching appropriate documentation of receipt or
an opposition to defendant’s motion.5

4

Identical motions were filed in each of the above captioned cases. For ease of
reference the Court refers to the motion and exhibits filed in Bach v. Bayer
HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv-13149-DRH-PMF.
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Responses to Bayer’s motion to dismiss were due 14 days from September 27,
2011 regardless of any response date automatically generated by CM/ECF. The
Court has previously noted in orders in this MDL and during a status conference
in this MDL that when deadlines provided by CM/ECF conflict with orders of
this Court, the Court ordered deadline will always control. See United States
District Court for the Southern District of Illinois, Electronic Filing Rules,
Rule 3 (The “filer is responsible for calculating the response time under the
federal and/or local rules. The date generated by CM/ECF is a guideline only,
and, if the Court has ordered the response to be filed on a date certain, the
3

To date, none of the plaintiffs in the above captioned member actions
has filed a response. Because the Plaintiffs in the above captioned cases have
failed to respond to Bayer’s allegations, the Court finds that these plaintiffs have
failed to comply with their PFS obligations under CMO 12. Accordingly, the Court
hereby ORDERS as follows:
x

The above captioned member actions are DISMISSED WITHOUT
PREJUDICE for failure to comply with the requirements of CMO 12.

x

Further, the Court reminds plaintiffs that, pursuant to CMO 12 Section E,
unless plaintiffs serve defendants with a COMPLETED PFS or move to
vacate the dismissal without prejudice within 60 days after entry of this
Order, the Order will be converted to a Dismissal With Prejudice upon
defendants’ motion.

SO ORDERED
Digitally signed by David R.
Herndon
Date: 2011.10.24 11:11:11 -05'00'

Chief Judge
United States District Court

Date: October 24, 2011

Court's order governs the response deadline.”). The deadlines provided by
CM/ECF are generated automatically based on the generic responsive pleading
times allowed under the rules and do not consider special circumstances (such as
court orders specific to a particular case or issue).
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