Byrd et al v. Bayer Healthcare Pharmaceuticals, Inc., et al

Filing 31

ORDER GRANTING 29 MOTION to Vacate 5 Order on Motion to Dismiss as to Certain Plaintiffs. 5 Order on Motion to Dismiss is hereby VACATED as to the following plaintiffs: 1.Cori Castro, 2.Terry Enriquez, 3.Melissa Hawes, 4.Bonnie Mc Gregor, 5.Kiri Miranda, 6.Nancy Paul, 7.Terri Sellers, and 8.Mary Stanley. FURTHER THE CLERK OF THE COURT IS DIRECTED TO REINSTATE THE CLAIMS OF THE SAME. FURTHER, 26 MOTION to Dismiss With Prejudice and 27 MOTION for Extension of Time to File Response/Reply are DENIED as MOOT. Signed by Chief Judge David R. Herndon on 5/20/2013. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
_________________________________________
)
IN RE YASMIN AND YAZ (DROSPIRENONE))
3:09-md-02100-DRH-PMF
MARKETING, SALES PRACTICES AND
)
PRODUCTS LIABILITY LITIGATION
)
MDL No. 2100
_________________________________________
)
This Document Relates to:
KIMBERLY BYRD, et al.,
Plaintiffs,

Civil No. 3:11-cv-12890-DRH-PMF

v.
BAYER HEALTHCARE
PHARMACEUTICALS INC. and
BAYER PHARMA AG,
Defendants.
ORDER ADDRESSING PLAINTIFF FACT SHEET MATTERS
HERNDON, Chief Judge:
I. INTRODUCTION
This matter is before the Court for case management. The following three
motions are pending in the above captioned matter: (1) Bayer HealthCare
Pharmaceuticals, Inc.’s (“Bayer”) motion to convert the Court’s without prejudice
Plaintiff Fact Sheet (“PFS”) dismissal into a with prejudice PFS dismissal (Doc.
26); (2) the plaintiff’s motion for an extension of time to respond Bayer’s motion
for a with prejudice dismissal (Doc. 27); and (3) the plaintiff’s motion to vacate
the Court’s order of dismissal without prejudice as to certain plaintiffs (Doc. 29).

For the reasons discussed below, the motion to vacate the Court’s order of
dismissal without prejudice as to certain plaintiffs (Doc. 29) is GRANTED. The
motion to dismiss with prejudice (Doc. 26) has been WITHDRAWN (Doc. 28).
Therefore, the motion to dismiss with prejudice (Doc. 26) and the plaintiffs’
motion for an extension of time to respond thereto (Doc. 27) are DENIED as
MOOT.
II. BACKGROUND
A. Without Prejudice Dismissal of Certain Plaintiffs’ Claims
The above captioned matter was opened on September 14, 2011. At the
time of filing, the case included 93 plaintiffs. On February 9, 2012, Bayer filed a
motion to dismiss 53 of the 93 plaintiffs, without prejudice, for failure to comply
with the PFS requirements (Doc. 4). The plaintiffs did not file a responsive
pleading and on March 1, 2012, the Court granted Bayer’s motion to dismiss as to
53 of the 93 plaintiffs (Doc. 5).
B. The Plaintiffs’ Initial Handling of the 53 PFS Dismissals
1. The Plaintiffs’ Counsel Submitted Completed PFSs for 17 of the 53
Dismissed Plaintiffs
In April 2012, counsel for the plaintiffs filed motions to vacate the order of
dismissal as to 17 of the 53 dismissed plaintiffs. The motions stated the subject
plaintiffs had completed their PFS requirements (Doc. 7, Doc. 9). In May and
June 2012, the Court granted the motions to vacate and reinstated the claims of
these 17 plaintiffs (Doc. 15, Doc. 20).

2. The Plaintiffs’ Counsel Sought a Deadline Extension for 20 of the 53
Dismissed Plaintiffs
In April 2012, counsel for the plaintiffs filed a motion for extension of time
as to 20 of the 53 dismissed plaintiffs (Doc. 10). 1 The motion for extension asked
the Court to stay the enforcement of the “with prejudice” provision of CMO 12
(MDL 2100 Doc. 836 Section E.1) for an additional 90 days (Doc. 10; Doc. 11).
The Court granted the plaintiffs’ motion for extension of time (Doc. 13).
The extension stayed the enforcement of the “with prejudice” provision of
CMO 12 for an additional 90 days (MDL 2100 Doc. 836 Section E.1). Specifically,
the Court gave the subject plaintiffs until July 30, 2012 to complete their PFS
requirements (Doc. 18). The Court explained that the extension did not vacate the
order of dismissal and did not reinstate the subject plaintiffs’ claims (Doc. 18).
Rather, it gave the plaintiffs 150 days (as opposed to 60 days) to comply with their
PFS requirements prior to being subject to a with prejudice dismissal upon the
1

The April 2012 motion for extension of time applied to the following plaintiffs:
1. Terry Enriquez,
2. Donna Bearden,
3. Rachel Burgess,
4. Cori Castro,
5. Desiree Castro-Cheatham,
6. Erica Cox,
7. Jennifer Giglio,
8. Jessica Gutierrez,
9. Melissa Hawes,
10. Stephanie Lyghts,
11. Keshia Matthews,
12. Janet McCarthy,
13. Bonnie McGregor,
14. Kiri Miranda,
15. Jessica Raya,
16. June Robles,
17. Terri Sellers,
18. Mary Stanley,
19. Ashley Weber, and
20. Nancy Paul

defendants’ motion (Doc. 18). The Court expressly noted that if the subject
plaintiffs failed to take action by July 30, 2012, the plaintiffs’ actions would be
subject to dismissal with prejudice upon Bayer’s motion for dismissal with
prejudice (Doc. 18).
3. No Action Was Taken With Regard to 16 of the 53 Dismissed
Plaintiffs
As to the remaining 16 dismissed plaintiffs, counsel did not take any
subsequent action (i.e. a stay of enforcement was not requested and no pleadings
were filed indicating that these plaintiffs had submitted completed PFSs).
Accordingly, as to these 16 plaintiffs, Bayer could have filed a motion seeking with
prejudice dismissal 60 days after the Court’s March 1, 2012 without prejudice
dismissal (Doc. 5). Had Bayer sought a with prejudice dismissal at that time, the
subject plaintiffs’ claims would have been subject to dismissal upon the filing of
that motion.
III. MOTIONS CURRENTLY PENDING
A. Motion to Vacate and Reinstate
The plaintiffs have filed a motion to vacate the Court’s March 1, 2012 Order
of dismissal as to the following plaintiffs: Cori Castro, Terry Enriquez, Melissa
Hawes, Bonnie McGregor, Kiri Miranda, Nancy Paul, Terri Sellers, and Mary
Stanley (Doc. 29). Counsel for the plaintiffs states that these individuals are now
in compliance with their PFS requirements (Doc. 29). Bayer is not opposed (Doc.
30).

Accordingly, the motion is GRANTED. The order of dismissal without
prejudice, entered on March 1, 2012, is hereby VACATED as to the following
plaintiffs: Cori Castro, Terry Enriquez, Melissa Hawes, Bonnie McGregor, Kiri
Miranda, Nancy Paul, Terri Sellers, and Mary Stanley. Further, the Clerk of the
Court is DIRECTED to reinstate the same.
B. Motion to Dismiss With Prejudice
On April 2, 2013, Bayer filed a motion to convert certain PFS dismissals
without prejudice into PFS dismissals with prejudice (Doc. 26) in accord with
Section E.1 of CMO 12 (MDL 2100 Doc. 836). The motion seeks an order
dismissing with prejudice the claims of 21 of the 53 dismissed plaintiffs. 2 On
April 16, 2013, counsel for the plaintiffs filed a motion for extension of time on
behalf of the 21 plaintiffs identified in Bayer’s motion for with prejudice dismissal
2

The motion asks the Court to convert the without prejudice dismissals of the following plaintiffs’
claims into with prejudice dismissals pursuant to CMO 12:
1. Kassandra Alvarez,
2. Donna Bearden,
3. Rachel Burgess,
4. Desiree Castro-Cheatham,
5. Erica Cox,
6. Laura Currier,
7. Bilma Fernandez,
8. Jennifer Giglio,
9. Jessica Gutierrez,
10. Sonja Keys,
11. Stephanie Lyghts,
12. Natasha Macklin,
13. Renee Manning,
14. Keshia Matthews,
15. Janet McCarthy,
16. Jessica Raya,
17. June Robles,
18. Jennifer Schmekel,
19. Toni Thomas,
20. Ashley Weber, and
21. Shelattae Whitaker

(Doc. 27) (Section 2.A., Above). Counsel for the plaintiffs contends the parties
entered into an agreement in which Bayer agreed to suspend PFS obligations and
refrain from seeking dismissal with prejudice (with respect to other plaintiffs)
(Doc. 27). On May 1, 2013, without explanation, Bayer filed a notice of withdrawal
of its motion for with prejudice dismissal of the subject 21 plaintiffs (Doc. 28).
Accordingly, the motion to dismiss with prejudice the claims of the
subject plaintiffs is MOOT.
C. Motion for Extension of Time
The plaintiffs’ motion for an extension of time to respond to the motion for
with prejudice dismissal is also Moot. Nonetheless, the Court will take a moment
to clarify some issues with respect to this motion.
The motion requested an “extension of 30 days to respond” to Bayer’s
motion for with prejudice dismissal. This request indicates a misunderstanding of
the deadlines and procedures governing CMO 12. Pursuant to CMO 12, a plaintiff
is given 14 days to respond to a motion to dismiss without prejudice for failure to
comply with PFS requirements. If the plaintiff’s claim is dismissed without
prejudice for failure to comply with PFS requirements, the plaintiff is given 60
days to cure any alleged PFS deficiencies and seek to vacate or otherwise contest
the order of dismissal. If the plaintiff fails to take any action during that 60 day
period, the plaintiff’s action is subject to dismissal with prejudice on the day the
defendant’s motion for a with prejudice dismissal is filed. This deadline is
outlined in Section E of CMO 12, which states as follows:

Unless Plaintiff has served Defendants with a completed PFS or has
moved to vacate the dismissal without prejudice within 60 days after
entry of any such Order of Dismissal without Prejudice, the order will
be converted to a Dismissal With Prejudice upon Defendants’ motion.
(MDL 2100 Doc. 836 § E) (emphasis added). In addition, when an action is
dismissed without prejudice for failure to comply with PFS requirements, the
Court’s order of dismissal includes the following warning:
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.
(See e.g., Doc. 5 p. 10) (emphasis in original).
Thus, CMO 12 does not contemplate any responsive pleading time after the
motion for with prejudice dismissal is filed. Rather, the time for addressing PFS
deficiencies (in order to avoid a with prejudice dismissal) is in the 60 days after
the claim is dismissed without prejudice. This is so regardless of any responsive
pleading time automatically generated by CMECF. 3 If counsel fails to resolve PFS
deficiencies during this time period and instead waits for a motion for with
prejudice dismissal to be filed, he or she risks having the client’s case dismissed

3

The Court has consistently taken steps to remind the parties that the deadlines in CMO 12 and
other Case Management Orders always trump any responsive pleading deadline automatically
generated by CMECF. As the Court explained in its order of dismissal without prejudice for
failure to comply with PFS requirements (and as it does in all such dismissals), the deadlines
provided for in CMO 12 trump any generic responsive pleading deadlines automatically generated
by CMECF (Doc. 5 p. 5 n.8). This is consistent with the Court’s Local Rules. 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.”).SDIL-EFR 3. The Court also has
an explicit reminder regarding this rule and CMO 12 on the MDL 2100 website.
See http://www.ilsd.uscourts.gov/documents/mdl2100/Mdl2100Reminders.pdf

with prejudice upon the defendants filing of the motion for with prejudice
dismissal. 4
Because CMO 12 does not allow for a responsive pleading period after a
motion for with prejudice dismissal is filed, the plaintiffs’ motion for an extension
of time could only be construed as a motion asking the Court to stay enforcement
of the “with prejudice” dismissal provision of CMO 12. Considering the 21
plaintiffs identified in the plaintiffs’ motion for extension of time have had more
than a year to complete their PFS requirements, it is unlikely that such a motion
would have been granted.
The Court has taken the additional time to discuss this matter because 28 5
of the 53 plaintiffs dismissed without prejudice on March 1, 2012 continue to be

4

Considering the size of this MDL, the Court cannot individually revise every responsive pleading
deadline generated by CMECF that conflicts with the deadlines provided for in CMO 12 and other
controlling Case Management Orders.
5
The claims of the following plaintiffs were dismissed without prejudice for failure to comply with
PFS requirements on March 1, 2012 (Doc. 5). These plaintiffs continue to be at risk of having their
claims dismissed WITH prejudice UPON the filing of Bayer’s motion for a with prejudice dismissal:
1. Kassandra Alvarez,
2. Sherri Bazemore,
3. Donna Bearden,
4. Kelly Blankenship,
5. Rachel Burgess,
6. Kimberly Byrd,
7. Desiree Castro-Cheatham,
8. Erica Cox,
9. Laura Currier,
10. Bilma Fernandez,
11. Jennifer Giglio,
12. Jessica Gutierrez,
13. Lateycia Johnson,
14. Sonja Keys,
15. Stephanie Lyghts,
16. Natasha Macklin,
17. Renee Manning,
18. Keshia Matthews,

at risk for with prejudice dismissal upon the Bayer’s motion to dismiss with
prejudice. 6 Despite the various motions, notices of withdrawal, and alleged
agreements between counsel, the without prejudice dismissal is still in effect for
28 of the 53 plaintiffs (and has been in effect for over a year). Accordingly, it is
critical that counsel for plaintiffs is fully aware of the deadlines and procedures
governing CMO 12.
IV. CONCLUSION
For the reasons discussed above, the Court ORDERS as follows:
Motion to Vacate Order on Motion to Dismiss (Doc. 29): The motion is
GRANTED. The order of dismissal without prejudice, entered on March 1, 2012,
is hereby VACATED as to the following plaintiffs:
1.
2.
3.
4.
5.
6.
7.
8.

Cori Castro,
Terry Enriquez,
Melissa Hawes,
Bonnie McGregor,
Kiri Miranda,
Nancy Paul,
Terri Sellers, and
Mary Stanley
Further, the Clerk of the Court is DIRECTED to reinstate the same.

6

19. Janet McCarthy,
20. Christina Murray-Myers,
21. Jessica Raya,
22. June Robles,
23. Jennifer Schmekel,
24. Lea Slawson,
25. Betty Stevens,
26. Toni Thomas,
27. Ashley Weber, and
28. Shelettae Whitaker
The stay of enforcement of CMO 12 (applicable to 20 plaintiffs) expired on July 30, 2012.

The motion to dismiss with prejudice (Doc. 26) has been WITHDRAWN
(Doc. 28). Therefore, the motion to dismiss with prejudice (Doc. 26) and the
plaintiffs’ motion for an extension of time to respond thereto (Doc. 27) are
DENIED as MOOT.
SO ORDERED:
Digitally signed by
David R. Herndon
Date: 2013.05.20
11:03:33 -05'00'
Chief Judge
United States District Court

Date: May 20, 2013