Colon et al. v. Bayer Corporation et al.

Filing 8

ORDER: DENYING 5 MOTION to Withdraw as Attorney; GRANTING (with two exceptions) 4 MOTION to Dismiss; and DENYING 6 MOTION to Substitute Party. The motion to withdraw as counsel of record is DENIED. The Court acknowledges the suggestion o f death as to plaintiff Earlene Tyler for the record. However, the motion to substitute Patricia Farland-Coleman is DENIED. Plaintiff Earlene Tyler has 30 days to substitute a plaintiff as a representative in accord with the terms described in the Or der. The motion to dismiss as to the 115 plaintiffs identified in the Order is GRANTED. The Clerk shall terminate the 115 plaintiffs identified in the Order from the docket. The motion to dismiss as to Ashley Harvey is DENIED. The motion to dismiss as to plaintiff Earlene Tyler is DENIED with leave to re-file.Signed by Judge David R. Herndon on 3/27/2015. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------

X

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

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

-----------------------------------------------------------Judge David R. Herndon

Iris Colon, et al. v. Bayer Corporation, et al.
No. 3:14-cv-10317-DRH-PMF

ORDER

ORDER GRANTING LEAVE TO WITHDRAW
HERNDON, District Judge:
I.

INTRODUCTION

Presently before the Court are three motions: (1) defendant’s motion to
dismiss for failure to comply with CMO 12 as to 117 of the 127 plaintiffs (Doc. 4);
(2) attorney John J. Driscoll’s motion to withdraw as counsel of record for a
majority of the named plaintiffs (Doc. 5); and (3) attorney John J. Driscoll’s
suggestion of death as to plaintiff Earlene Tyler and motion to substitute Patricia
Farland-Coleman as Earlene Tyler’s successor in interest (Doc. 6). Each Motion is
addressed in turn below.
II.

ANALYSIS

A. Background
In April 2014, attorney John J. Driscoll filed the above captioned complaint in
state court. The complaint named 127 unrelated plaintiffs. Shortly thereafter, the

action was removed to this multidistrict litigation. After removal, other than the
defendant’s answer, nothing was filed in the case until defendant filed a motion to
dismiss without prejudice for failure to comply with case management order
number 12 (Doc. 4). The motion seeks dismissal of the claims of 117 of the 127
plaintiffs. According to the defendant’s motion, 117 of the 127 plaintiffs have
failed to submit complete plaintiff fact sheets. In other words, only 10 of the 127
plaintiffs have submitted complete plaintiff fact sheets (or for some other reason
have not been included in the present motion to dismiss).
Eight days after the filing of the motion to dismiss, attorney Driscoll filed a
motion to withdraw as counsel of record for a majority of the 127 plaintiffs (Doc.
5). Attorney Driscoll states that withdraw is warranted because the identified
plaintiffs have failed to communicate with counsel.
Approximately one week after filing the motion to withdraw as counsel,
attorney Driscoll filed a suggestion of death and motion to substitute as to one of
the plaintiffs, Earlene Tyler (Doc. 6).
B. Motion to Withdraw
Attorney Driscoll’s motion to withdraw contains several inconsistencies
and/or inaccuracies. For example, the motion seeks to withdraw as counsel of
record for plaintiff Patricia Farland-Coleman. 1 However, as of the filing of the
motion to withdraw, Patricia Farland-Coleman is not a named plaintiff in the

1

Doc. 5-1 p.1 listing plaintiff Patricia Farland-Coleman.

above captioned action. More than a week after filing the motion to withdraw as
counsel of record, attorney Driscoll filed a suggestion of death and a motion to
substitute party as to plaintiff Earlene Tyler (Doc. 6). The motion to substitute
states that Earlene Tyler died on October 1, 2014 and asks the Court to allow
Patricia Farland-Coleman to be substituted in the place and stead of Earlene
Tyler. Patricia Farland-Coleman is one of the “plaintiffs” identified in attorney’s
Driscoll’s motion to withdraw – a “plaintiff” that apparently is not communicating
with counsel. The motion to withdraw also seeks leave to withdraw as counsel of
record for plaintiff Joyce Brodsky, however Joyce Brodsky is not a named party. 2
The Court also notes inconsistencies between the docket text accompanying
the motion to withdraw and the content of the motion to withdraw. For example,
the docket text states that counsel is seeking leave to withdraw as to plaintiff
Wendy Hilton. However, plaintiff Wendy Hilton is not identified in the motion to
withdraw (which means the Court cannot be sure if counsel is seeking leave to
withdraw as to Wendy Hilton and the Court does not have a current address for
this plaintiff).
Considering the inconsistencies and/or inaccuracies in the motion to
withdraw, as well as the timing of its filing (only after defendant filed a motion to
dismiss and well after completed plaintiff fact sheets were due – in this case June

Kali Brodsky is a named party and is listed in the defendant’s motion to dismiss. Kali Brodsky
is referenced in the plaintiffs docket entry accompanying the motion to withdraw but Joyce
Brodsky is the individual referenced in the motion.
2

23, 2014) and the prejudice that would result if the motion were granted, the
Court is DENYING counsel’s motion to withdraw as counsel of record.
Further, even if the Court were to grant counsel’s motion to withdraw, given
the identified plaintiffs alleged failure to communicate with counsel, the Court
would not grant an extension with regard to responding to the pending motion to
dismiss.
C. Motion to Dismiss
As to the defendant’s motion to dismiss without prejudice for failure to
comply with CMO 12, the Court finds as follows:
The plaintiffs 3 identified in the defendant’s motion to dismiss were required
to serve complete Fact Sheets on June 23, 2014. The defendant sent counsel a
Notice of Delinquent Plaintiff Fact Sheet for each plaintiff on October 30, 2014. As
of the filing of the motion to dismiss, the defendant still had not received a
completed plaintiff fact sheet. The time for responding to the defendant’s motion
to dismiss has expired and none of the above captioned plaintiffs has responded.
The Court FINDS that the subject plaintiffs have failed to comply with the
requirements of CMO 12. Accordingly, the motion to dismiss is GRANTED.

3

With the exception of Ashley Harvey and Earlene Tyler. The motion to dismiss as to Ashley
Harvey and Earlene Tyler is DENIED. Although Ashley Harvey is identified in the defendant’s
motion to dismiss and in the accompanying exhibits, she is not a plaintiff of record in this action.
Earlene Tyler is the plaintiff identified in the suggestion of death and the motion for substitution.
The Court addresses Earlene Tyler separately below.

FURTHER, the Court reminds the subject plaintiffs that, pursuant to
CMO 12 Section E, unless they serve the 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.
FURTHER, the Court DIRECTS the Clerk of the Court to terminate the
subject plaintiffs, identified below, from the docket:
1. Anttwona Allen (Brenda Allen on behalf of Anttwona Allen, deceased)
2. Carla Allen,
3. Christina Anderson,
4. Tabatha Ayers,
5. Keleisha Beard,
6. Sarah Bennett,
7. Rose Brock,
8. Kali Brodsky,
9. Melissa Burkett,
10. Lavida Byrd,
11. Pam Cantrell,
12. Pamela Chase ,
13. Rosa Clarke,
14. Colleen Coleman,
15. IrisColon,
16. Deanna Cornish,
17. Regina Cosby,
18. Felicia Covington,
19. Phyllis Deane,
20. Ashley Dryden,
21. Nicole Duncan,
22. Stephanie Durham,
23. Melissa Durrance,
24. Justine Duval,
25. Tina Elder,
26. Janice Evans,
27. Terri Feetage,
28. Winiford Feliciana,
29. Lacey Feltman,
30. Saundra Gary,

31. Donna Gathers,
32. Karolina Gebal,
33. Christy Giles,
34. Maria Gomez,
35. Tanna Hall,
36. Christine Hamilton,
37. Quantina Harris,
38. Angela Harvey,
39. Lori Heaton,
40. Patricia Hill,
41. Richlyn Hill,
42. Wendy Hilton,
43. Tiffany Himes,
44. Keisha Holland,
45. Mareia Holland,
46. Erika House,
47. Bathshua Howard,
48. Regina Ingram-Ford,
49. Karen Isaak,
50. Chelsea Jewell,
51. Shinta Johnson,
52. Tamara Karedes,
53. Vickey Kelly,
54. Kristin Lance,
55. Jessica, Lazcano,
56. Rita Lyons,
57. Jessica Maclachlan,
58. Kristen Mayeaux,
59. Michelle McKee,
60. Tara McQuirter,
61. Roslin Mhoon,
62. Erica Miller,
63. Rebecca Miller,
64. Michelle Moody,
65. Sheryl Morris,
66. ShaCaldra Murphy,
67. Vanessa Myers,
68. Misty Nation,
69. Pat Nicholson,
70. Cynthia Novella,
71. Tonya Osburn,
72. Latrice Patterson,
73. Eva Pelzer,
74. Karla Pepmeyer,
75. Sara Pruitt,
76. Martha Pugh,

77. Holly Records,
78. Kandi Ricciardi,
79. Kaneeshia Riley,
80. Maria Rivera,
81. Amy Roberts,
82. Blanca Robinson,
83. Maria Rodriguez,
84. Elzbieta Schurrman,
85. Elizabeth Scott,
86. April Serven,
87. Samar Shaw-Harris,
88. Mandy Shockley,
89. Charline Sirna (Robert Sirna on behalf of Charline Sirna, deceased)
90. Katy Smart,
91. Nicole Smith,
92. Valerie Smith,
93. Emily Sommers,
94. Carolina Soria,
95. Lameka Spencer,
96. Taryn Staley,
97. Cynthia Steele,
98. Tracy Stone,
99. Cheri Strine,
100.
Diane Sutton,
101.
Jennifer Thompson,
102.
Samantha Thompson,
103.
Felicia Tietjen,
104.
Ronda Valdez (Tabitha Valdez on behalf of Ronda Valdez, deceased,)
105.
Sarah Vanherpe,
106.
Lynette Walker-Bulkley,
107.
Amber Warren,
108.
Kyneta Weatherspoon,
109.
Rasheal Wesley,
110.
Erica Westfield,
111.
Dessie Williams,
112.
Terri Williams,
113.
Karolyn Wright,
114.
Shalaeda Wyrick, and
115.
Jasmine Yablonsky
D. Suggestion of Death and Motion to Substitute as to Earlene Tyler
The Court acknowledges the suggestion of death as to Earlene Tyler. The
Court further notes that Earlene Tyler is one of the subject plaintiffs in the

defendant’s motion to dismiss. As noted in footnote 3 (above), the Court is
denying the motion to dismiss as to Earlene Tyler (with leave to re-file).
Attorney Driscoll asks that Earlene Tyler’s mother, Patricia FarlandColeman be substituted in place and stead of Earlene Tyler. However, in a
previous filing, counsel asserts that he has had no contact with and/or has been
unable to communicate with Patricia Farland-Coleman. Given the lack of contact,
the propriety of granting counsel’s motion to substitute is clearly not appropriate
without a further showing.

The suggestion of death is therefore noted for the

record and plaintiff has 30 days to substitute a plaintiff as a representative.
Should counsel nominate Patricia Farland-Coleman as the representative, said
nomination will have to be accompanied with an affidavit signed by Ms. FarlandColeman that she has met with counsel and she is willing to serve in the
representative capacity.
IT IS SO ORDERED.
Signed this 27th day of March 2015.

Digitally signed
by David R.
Herndon
Date: 2015.03.27
14:18:13 -05'00'
United States District Judge