Wilmoth et al v. Bayer Corporation et al

Filing 8

ORDER granting 7 Motion to Dismiss without prejudice. Signed by Chief Judge David R. Herndon on 9/23/2011. (dsw)

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

This Document Relates to:
Rachel Colletti, et al. v.
Bayer Corp., et al.1

No. 3:10-cv-11838-DRH-PMF

Morgan Haley v. Bayer HealthCare
Pharmaceuticals, Inc., et al.

No. 3:10-cv-13534-DRH-PMF

Katrina Lewis v. Bayer Corp., et al.

No. 3:10-cv-12075-DRH-PMF

Blanca Rodriguez v. Bayer Corp., et al.

No. 3:10-cv-10015-DRH-PMF

Denise Wilmoth and Michael
Wilmoth v. Bayer Corp., et al.

No. 3:10-cv-13706-DRH-PMF

Ashten Luayne Wolfe, et al. v.
Bayer Corp., et al.2

No. 3:10-cv-20403-DRH-PMF

ORDER GRANTING
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”),3 for an Order dismissing plaintiffs’ claims in the above-captioned

1

This order applies only to plaintiff Rachael Colletti.

2

This order applies only to plaintiff Rachel Moore.

3

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

matters without prejudice for failure to comply with their Plaintiff Fact Sheet
(“PFS”) obligations.
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. 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 July 3, 2011 (Collette, 3:10-cv-11838 Doc. 9-1).4
Per Section E of CMO 12, Notice of Overdue Discovery was sent on or before July
29, 2011 (Collette, 3:10-cv-11838 Doc. 9-2). As of the filing of the present motion
to dismiss, plaintiffs in the above-captioned matters still had not served
completed PFSs. Plaintiffs’ completed PFSs were thus more than two months
overdue when Bayer filed its motion to dismiss.
Under Section E of CMO 12, plaintiffs were given 14 days from the
date of Bayer’s motion, in this case 14 days from August 30, 2011, to file a
response either certifying that they served upon defendants and defendants

4

Bayer filed identical motions to dismiss (and identical exhibits) in each of the
above captioned cases. Accordingly, for ease of reference, when discussing the
motion to dismiss the Court cites only to the motion filed in the Collette Case
(3:10-cv-11838 Doc. 9, Doc. 9.1, and Doc. 9.2).
2

received a completed PFS, and attaching appropriate documentation of receipt or
an opposition to defendant’s motion.5
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 the PFS obligations under CMO 12. Accordingly, the Court
hereby ORDERS as follows:
The following member actions are DISMISSED without prejudice for failure to
comply with the requirements of CMO 12.
x

Morgan Haley v. Bayer HealthCare Pharmaceuticals, Inc., et al. No. 3:10-cv13534-DRH-PMF is dismissed without prejudice

x

Katrina Lewis v. Bayer Corp., et al.
dismissed without prejudice

x

Blanca Rodriguez v. Bayer Corp., et al. No. 3:10-cv-10015-DRH-PMF is
dismissed without prejudice

x

Denise Wilmoth and Michael Wilmoth v. Bayer Corp., et al. No. 3:10-cv13706-DRH-PMF is dismissed without prejudice

5

No. 3:10-cv-12075-DRH-PMF is

Responses to Bayer’s motion to dismiss were due 14 days from August 30, 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 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).
3

The claims of the following plaintiffs are DISMISSED without prejudice for
failure to comply with the requirements of CMO 12:
x

The claims of plaintiff Rachel Colletti (Rachel Colletti, et al. v. Bayer
Corp., et al. No. 3:10-cv-11838-DRH-PMF) are dismissed without prejudice

x

The claims of plaintiff Rachel Moore (Ashten Luayne Wolfe, et al. v.
Bayer Corp., et al No. 3:10-cv-20403-DRH-PMF) are dismissed without
prejudice

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: 2011.09.23 10:33:01 -05'00'

Chief Judge
United States District Court

Date: September 23, 2011

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