Mounts et al v. 3M Company et al

Filing 138

OPINION & ORDER: 1. Court GRANTS in part and DENIES in part DE 56 , DE 59 , DE 62 , and DE 68 ; 2. Court DENIES DE 57 , DE 60 , DE 63 , and DE 69 ; 3. Court GRANTS DE 104 . Plaintiffs SHALL fully com ply with Court's Scheduling Order by no later than October 31, 2024, to extent they have not already done so. On that date, the WT&P Plaintiffs also SHALL FILE in the record a proper motion for reinstatement, identifying each s pecific plaintiff that is in full compliance with Court's Scheduling Order; 4. Court GRANTS DE 66 ; and 5. Court GRANTS in part and DENIES in part DE 99 and DE 100 . The parties SHALL file a joint status report as specified by no later than October 22, 2024. Signed by Judge Robert E. Wier on 9/26/2024. (RCB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
CHARLES MOUNTS, et al.,
Plaintiffs,
v.
3M COMPANY, et al.,
Defendants.
I.

)
)
)
)
)
)
)
)

No. 7:21-CV-86-REW-CJS
OPINION & ORDER

*** *** *** ***

Background
This matter involves a mass tort action brought by hundreds of former coal miners and/or

their spouses for personal injuries allegedly arising from the failure of respirators to protect the
miners against exposure to coal, rock, and dust while working in the mines. See generally Compl.
(DE 1-1 at 9–52). As a result of the allegedly defective respirators, the miners (or, representatively,
their survivors) claim that they suffer from coal worker’s pneumoconiosis (“CWP” or “black lung”
disease), COPD, and other injuries. See id. ¶ 1. Defendants are manufacturers and sellers of the
respirators, or as applicable, their corporate successors-in-interest. See id. ¶¶ 3, 10–11, 12, 18.
Defendants 3M Company f/k/a Minnesota Mining and Manufacturing Company (“3M”), Mine
Safety Appliances Company (“Mine Safety”), American Optical Corporation (“AOC”), Cabot
Corporation (“Cabot”), Cabot CSC Corporation (“Cabot CSC”), Aearo LLC (“Aearo”), and Aearo
Technologies, LLC (“Aearo Tech”) 1 represent the “Manufacturing Defendants.” See id. ¶ 11. The
“Selling Defendants” consist of Defendants Mine Service Company, Inc. (“Mine Service”),

While Aearo Tech is a named defendant in the action, Plaintiffs do not clearly identify it as a
Manufacturing Defendant. However, subsequent filings confirm that Aearo Tech is a Manufacturing
Defendant. See, e.g., DE 1 (Notice of Removal) at 6 n.2.

1

1

Network Supply a/k/a/ Network Supply, Inc. a/k/a Roswell, Inc. (“Network Supply”), Regina Mine
Supply, Inc. (“Regina Mine”), Carbon Mine Supply, LLC (“Carbon Mine”), M & M Mine Supply,
Inc. (“M & M Mine”), and Kentucky Mine Supply Company (“Kentucky Mine”). See id. ¶ 18.
Plaintiffs bring claims for strict liability, negligence, breach of implied warranty, punitive damages,
and, as applicable for a given plaintiff, wrongful death against all defendants. See id. ¶¶ 19–35,
51–61.

Plaintiffs separately allege intentional misrepresentation against the Manufacturing

Defendants. See id. ¶¶ 36–46. Plaintiffs also argue that the Selling Defendants are not immune
from liability under Kentucky’s “middleman” statute. See id. ¶¶ 47–50.
Plaintiffs filed this action on September 29, 2021, in Pike Circuit Court. See Compl.
Defendants later removed the action to this Court. See DE 1. After litigation over remand, the
matter remains before the Court. See DE 42 (Sixth Circuit Order).
On May 30, 2023, the Court entered a scheduling order, directing Plaintiffs to answer a set
of targeted interrogatories and produce certain documents within 60 days. See DE 49 (Scheduling
Order). The Court also warned Plaintiffs that failure to comply with those deadlines would result
in the dismissal of their claims without prejudice. See id. at 3. At that point, Plaintiffs would have
an additional 60 days to comply, and if they failed to do so, the Court would dismiss their claims
with prejudice. See id. The first 60 days came and went with no compliance from any plaintiff.
See DE 54 (Order of Dismissal without Prejudice) at 1. At that time, the Court dismissed Plaintiffs’
claims without prejudice and again warned Plaintiffs that if they failed to comply with the
Scheduling Order by September 29, 2023, the Court would dismiss their claims with prejudice in
a final order. See id. at 1–2.
The parties have since filed various motions, notices, and status reports in the record
consequential to the Court’s Scheduling Order. The Court will address each set of filings as

2

grouped and sequenced most logically. This behemoth, a structure chosen by Plaintiffs’ original
strategies, turns but slowly.
II.

Motions to Reinstate and Sever Claims, for Leave to File First Amended Complaints
By September 29, 2023, Plaintiffs filed notices in the record indicating that they had

answered the interrogatories in compliance with the Scheduling Order. See DE 65 (Notice of
Compliance); DE 70 (Certificate of Service); DE 71 (Certificate of Service). The plaintiffs (by
then) represented by Michael Martin 2 (the “Martin Plaintiffs”) move to reinstate their claims and
sever their claims into separate individual actions. See DE 56 (Pinson Motion); DE 59 (Page
Motion); DE 62 (Gayheart Motion); DE 68 (A. Hall Motion). The Martin Plaintiffs also move for
leave to file first amended complaints in light of their severance requests. See DE 57 (Pinson
Motion); DE 60 (Page Motion); DE 63 (Gayheart Motion); DE 69 (A. Hall Motion).
In response, Defendants agree that the Martin Plaintiffs provided answers to some of the
interrogatories but challenge the sufficiency of those interrogatories. See DE 73 (3M Status
Report) at 1–2; DE 76 3 (Mine Safety Response); DE 77 (Mine Safety Response); DE 78 (3M
Response) at 1–2; DE 79 (AOC, Cabot CSC, and Aearo Tech Response). Defendants further note
that, as of the deadline, none of the plaintiffs had produced the full documents identified in the
Court’s Scheduling Order. See DE 73 at 1; DE 76; DE 77; DE 78 at 2; DE 79. Because Plaintiffs

While Glenn Martin Hammond has withdrawn as counsel for the majority of the plaintiffs in this action,
confusion still remains regarding whether he withdrew his representation for five sets of plaintiffs. See DE
137 (Hammond Withdrawal Order). He has not filed anything substantive in the record since September
28, 2023. See DE 65. Since that time, Martin and Brian Vines have exclusively submitted filings on behalf
of those plaintiffs. Therefore, for purposes of this motion, the Court will assume Martin is the only attorney
representing the Pinson, Page, Gayheart, and A. Hall plaintiffs, and Vines is the only attorney representing
the J. Miller plaintiffs.
2

The briefings of the parties and the arguments raised in those filings are nearly identical as to each
individual Martin Plaintiff. Therefore, the Court will only cite to a representative response or reply in lieu
of a swath of record citations for ease of reference.
3

3

did not fully or timely comply with the Scheduling Order, Defendants request (in a status report
and not in a formal motion, by operation of the prior rubric) that the Court dismiss all plaintiffs’
claims with prejudice. See DE 73 at 2. The Martin Plaintiffs maintain that they inadvertently
failed to produce the documents because counsel was expecting to receive requests for production
and authorization forms from Defendants. See DE 74 (Response to Status Report) at 2–4; DE 92
(Reply) at 2, 4–5. Now, the Martin Plaintiffs represent that they have produced, or are in the
process of producing, the identified documents See DE 92-1 (Exhibit A); DE 92-2 (Exhibit B);
DE 75 (3M Reply) at 3–4.
To fairly process the compliance issues, the Court considers its prior orders and the full
case history. In determining if dismissal is an appropriate sanction for the failure to comply with
a discovery obligation 4 or other court order 5, courts consider the following factors: (1) whether the
plaintiff’s failure to comply is “due to willfulness, bad faith, or fault;” (2) whether “the adversary
was prejudiced” by the plaintiff’s dilatory conduct; (3) whether the plaintiff “was warned that
failure to cooperate could lead to dismissal;” and (4) “whether less drastic sanctions were imposed
or considered before dismissal was ordered.” Mager v. Wisconsin Cent. Ltd., 924 F.3d 831, 837
(6th Cir. 2019). A plaintiff acts with the requisite willfulness, bad faith, or fault upon a showing
that his conduct “display[s] either an intent to thwart judicial proceedings or a reckless disregard
for the effect of [his] conduct on those proceedings.” Mulbah v. Detroit Bd. of Educ., 261 F.3d
586, 591 (6th Cir. 2001) (citation and quotation marks omitted). Still, dismissal is only proper
upon “a clear record of delay or contumacious conduct.” Freeland v. Amigo, 103 F.3d 1271, 1277

Rule 37(b)(2) provides, “If a party . . fails to obey an order to provide or permit discovery, . . . the court .
. . may . . . dismiss[] the action or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v).

4

Pursuant to Rule 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order,
a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b).

5

4

(6th Cir. 1997). The Court is well aware of the staggered system it imposed and the efforts to spur
efficiencies in a case where few are readily apparent.
For the first factor, the Court does not find that the record contains sufficient indication of
the Martin Plaintiffs’ intent to thwart proceedings or their reckless disregard for the impact of the
untimely disclosure on the proceedings before this Court. First, the initial 60-day delay is
seemingly a result of confusion over the legal representation of certain plaintiffs coupled with the
enduring silence of former counsel. See DE 74 at 2 (“While the cases were under the control of
Glenn Hammond, they were dismissed.”); id. at 4 (“Plaintiffs’ counsel attempted to contact Mr.
Hammond about the four Plaintiffs who discharged Mr. Hammond, but Mr. Hammond did not
respond.”); id. at 5 (“. . . Mr. Hammond refuses to communicate with counsel . . .”); DE 55 (Martin
Notice of Appearance). Second, the additional delay in compliance resulted from counsel’s
confusion over the mechanics of the production. See DE 74 at 2–4; DE 92 at 2, 4–5. By all
accounts, the Martin Plaintiffs began producing documents upon counsel’s realization that formal
requests for production and authorization forms were not prerequisites to production. See id.; DE
75 at 3–4. At bottom, the delays were ultimately a product of counsel errors: inaction by former
counsel and misunderstanding by current counsel. The Court, preferential to a merits result, is
“extremely reluctant to [dismiss] a case merely to discipline an errant attorney because such a
sanction deprives the client of his day in court.” Harmon v. CSX Transp., Inc., 110 F.3d 364, 367
(6th Cir. 1997) (citation, quotation marks, and ellipses omitted); see also Mager, 924 F.3d at 838
(“[D]ismissal is usually inappropriate where the neglect is solely the fault of the attorney[.]”)
(citation and quotation marks omitted). Absent any clear record of contumacious conduct or delay
and given the lack of fault attributable to the Martin Plaintiffs themselves, the first factor counsels
heavily against dismissal with prejudice.

5

The second factor also weighs against dismissal with prejudice. After current counsel was
alerted to their mistake, the Martin Plaintiffs initiated the production of the documents within nine
days. See DE 74 at 2; DE 92 at 2. A mere nine-day delay is not substantial enough to prejudice
Defendants, especially in the early phases of discovery and well-before the deadline for statute of
limitations discovery and briefing. See DE 49.
As for the third and fourth factors, both slightly favor dismissal with prejudice. The Court
warned the Martin Plaintiffs in its Scheduling Order, see DE 49, and its subsequent Order of
Dismissal without Prejudice, see DE 54, that failure to timely comply with the dictates of those
orders could result in dismissal with prejudice. The Court also first imposed the less drastic
sanction of dismissal without prejudice. See DE 54.
However, altogether, the balance of factors weighs against dismissal with prejudice,
considering the nature of counsel’s errors and the reasonable steps that the Martin Plaintiffs’ have
taken to comply with the Scheduling Order following an initial delay. Moreover, dismissal is a
harsh sanction of last resort. See Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (“The
dismissal of a claim for failure to prosecute is a harsh sanction which the court should order only
in extreme situations showing a clear record of contumacious conduct by the plaintiff.”) (citation
and quotation marks omitted); Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.
1994) (“Dismissal is the sanction of last resort.”). Really, the Court intended the Scheduling Order
and the Order of Dismissal without Prejudice to spur action in the case and facilitate initial
discovery. That intention has come to fruition, if imperfectly. Accordingly, the Court finds that
reinstating the claims of the Martin Plaintiffs is appropriate; dismissal of those claims with
prejudice is not.

6

The Court therefore GRANTS DE 56, DE 59, DE 62, and DE 68 to the extent the motions
seek to reinstate the claims of the Martin Plaintiffs. As for the sufficiency of the Martin Plaintiffs’
discovery responses, the parties must make every effort to resolve disputes between themselves in
good faith per Local Rule 37.1 before requesting intervention from this Court. Only if the parties
are unable to reach a resolution may they seek relief through a properly filed Rule 37 motion, and
then only per the proper mechanics as detailed in the applicable reference to a Magistrate Judge.
However, the Court DENIES DE 56, DE 59, DE 62, and DE 68 to the extent the motions
seek to sever the claims of the Martin Plaintiffs. The Martin Plaintiffs seek to sever their claims
because the circumstances of each coal miner’s employment, use of the respirators, and medical
conditions “vary considerably” and are “unique” to each miner. See DE 56 at 2. Defendants
largely do not oppose severance but ask that the claims remain subject to coordinated management
by the Court, including through a discovery plan. See DE 78 at 2–3; DE 79.
“[T]he court may at any time, on just terms, add or drop a party,” or “sever any claim
against a party.” Fed. R. Civ. P. 21. The determination of whether to sever a party or claim is
within the broad discretion of the district court. See Thompson Thrift Constr., Inc. v. Hyman
Plumbing Co., Civil Action No. 5:13-050-DCR, 2013 WL 3566353, at *1 (E.D. Ky. July 11, 2013)
(“[T]he determination of whether claims should be severed is a discretionary one.”); 7 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1689 (3d ed.). (“[Q]uestions
of severance are addressed to the broad discretion of the district court.”). The Court should deny
a motion to sever if severance will “result in delay, inconvenience, or added expense to the parties.”
Thompson, 2013 WL 3566353, at *2 .
Relying on its broad discretion in making severance determinations, the Court declines to
sever the claims of the Martin Plaintiffs at this time. The need to promote judicial efficiency and

7

prevent further delay and inconvenience warrant this result. In an action involving hundreds of
plaintiffs with overlapping claims consisting of similar underlying allegations against the same set
of defendants, separate actions would certainly create duplicative discovery and legal briefing.
Such an arrangement is an ineffective use of judicial resources. Therefore, the claims of all
plaintiffs, for now at least, will persist under the umbrella of one action. See Burton v. Zwicker &
Assocs., PSC, CIVIL ACTION NO.: 10-227-WOB-JGW, 2011 WL 13156939, at *4 (E.D. Ky. Jan.
14, 2011) (“Importantly, judicial economy and efficiency are best furthered by having all of
Plaintiffs’ claims resolved in one action. Severance would lead to quintupling the number of trials,
which would be an inefficient usage of the Court’s resources, especially since all Plaintiffs share
at least some of the same causes of action against the same Defendant.”) (Wehrman, Mag. J.).
The Court further notes that Plaintiffs all chose to join under one complaint, the ill-advised
verbiage of which ultimately allowed 3M to pull the entire raft to federal court. Plaintiffs avoided
costs and pursued perceived benefits from joining together, and 3M took advantage of the posture
to effect removal. The Court will coordinate the discovery and motion practice in and under the
originating case. If there are matters to be tried, the Court may sever trials (or parts of trials) in
the way that makes the most overall sense and best contributes to overall progress. Such steps are
to be determined, but the Court will not sever at this point. Nothing about the case at this juncture,
which originates in claimed product and damage/causation commonality, convinces the Court that
post-removal atomization into (potentially) hundreds of distinct cases is justified or warranted.
Since the motions for leave to file first amended complaints are ultimately contingent on
the Martin Plaintiffs’ request to sever their claims into separate actions, the Court DENIES DE
57, DE 60, DE 63, and DE 69. Plaintiffs may specify their factual particulars in discovery.

8

III.

Motions for Extension of Time
The WT&P Plaintiffs 6 request an extension of time to comply with the Court’s Scheduling

Order due to changes in counsel and the number of plaintiffs with which counsel must coordinate
to collect outstanding information. See DE 104 (Motion for Extension) at 1–2. Defendants oppose
the extension, arguing that the WT&P Plaintiffs cannot justify their request under either Rule 16’s
good cause standard or Rule 6’s excusable neglect standard. See DE 106 (3M Response) at 4–11.
The WT&P Plaintiffs respond that they immediately made efforts to comply with the Court’s
Scheduling Order upon learning of the delays caused by their former counsel. See DE 116 (Reply)
at 1, 4.
“[W]hether Rule 6’s ‘excusable neglect’ standard or Rule 16’s ‘good cause’ standard
applies when a party files a motion after the scheduling order deadline . . . is a source of ambiguity”
in the Sixth Circuit. Century Indem. Co. v. Begley Co., 323 F.R.D. 237, 240–41 (E.D. Ky. 2018)
(collecting cases). “In short, the relationship between Rule 16 and Rule 6 is muddled.” Id. at 241.
Rule 16(b)(4) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The primary measure of Rule 16’s ‘good
cause’ standard is the moving party’s diligence in attempting to meet the case management order’s
requirements. . . . Another relevant consideration is possible prejudice to the party opposing the
modification.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (citations and quotation
marks omitted).
Under Rule 6(b), “the court may, for good cause,” grant an extension of time for motions
made after the deadline “if the party failed to act because of excusable neglect.” Fed. R. Civ. P.
Throughout their filings, the parties call these plaintiffs (i.e., the non-Martin, non-Vine Plaintiffs) the
“Hammond Plaintiffs” in reference to former counsel. However, Whiteford, Taylor & Preston, LLP and
Peterson Law Office, PLLC now represent this set of plaintiffs; therefore, the Court will now refer to these
plaintiffs as the “WT&P Plaintiffs” for accuracy.
6

9

6(b)(1)(B). “Neglect exists where the failure to do something occurred because of a simple,
faultless omission to act, or because of a party’s carelessness.” Turner v. City of Taylor, 412 F.3d
629, 650 (6th Cir. 2005). To determine if neglect is excusable, courts consider the following
factors:
(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and
its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether
the delay was within the reasonable control of the moving party, and (5) whether
the late-filing party acted in good faith.
Howard v. Nationwide Prop. & Cas. Ins. Co., 306 F. App’x 265, 266–67 (6th Cir. 2009). Yet,
excusable neglect is “a somewhat ‘elastic concept’ and is not limited strictly to omissions caused
by circumstances beyond the control of the movant.” Id.
The Court finds that the WT&P Plaintiffs have (situationally, and barely) satisfied both the
Rule 16 good cause and Rule 6 excusable neglect standards. Although the former counsel of the
WT&P Plaintiffs certainly lacked diligence in failing to timely produce the documents identified
in the Scheduling Order—due to no fault of the plaintiffs themselves—present counsel has
consistently shown an apparent good faith effort to comply with pending requests since their
appearance. See, e.g., DE 120 (Notice of Service); DE 121 (Status Report); DE 122 (Notice of
Service); DE 123 (Notice of Service). Despite this diligence, counsel has faced obstacles to
obtaining the necessary information from former counsel, circumstances beyond the control of the
WT&P Plaintiffs and their current attorneys. See DE 121 at 2. Understandably, a representation
of this scale—after a seemingly unanticipated change in counsel—inherently comes with
difficulties in initiating and maintaining communications with the many plaintiffs involved. See
id. At this stage, these barriers constitutes good cause under Rule 16.

While the Court

acknowledges that the WT&P Plaintiffs’ delay (a span of approximately three months between the

10

deadline and the motion) is not insignificant, the prejudice to Defendants is limited at this juncture,
when discovery remains in its preliminary stages. The road will be long in this case.
Similarly, and for the same reasons, the WT&P Plaintiffs’ have made the necessary
showings of good cause and excusable neglect under Rule 6. Former counsel was neglectful in
failing to produce the documents identified in the Court’s Scheduling Order by the deadline. The
failure was a careless, or worse, mistake to the detriment of his many clients. Overall, the balance
of factors renders the neglect excusable on these facts. As discussed, during this early phase of
discovery, the length of delay does not pose intolerable prejudice to Defendants or negatively
impact the Court’s proceedings to an insurmountable degree. While the delays in communication
between current counsel and the WT&P Plaintiffs is generally within their control, the sheer
number of plaintiffs, in conjunction with the bumpy transition in counsel, creates complications
atypical of most actions. Given these unique circumstances, some delay is expected. Here, the
primary reason for delay is the culmination of the persistent inattention and sloppiness of former
counsel, a mid-game overhaul of the counsel line-up, and continuous issues in client information
from former counsel—factors beyond the control of the WT&P Plaintiffs and, mostly, their current
counsel. Since their appearance, the WT&P Plaintiffs and their counsel have acted in good faith
to produce the necessary documents, steadily working to respond to outstanding requests. See DE
120; DE 121; DE 122; DE 123. Simply, the Court will not penalize the WT&P Plaintiffs for the
errors of former counsel by completely foreclosing their avenues for relief. See Adrianne N. v.
Comm’r of Soc. Sec., No. 23-12791, 2024 WL 3223915, at *1 (E.D. Mich. May 8, 2024) (“The
Court will not punish Plaintiff for counsel’s mistake.”) (Ivy, Mag. J.).

11

The Court accordingly GRANTS DE 104. 7 If the WT&P Plaintiffs seek to reinstate some
or all of their dismissed claims, the WT&P Plaintiffs SHALL answer the interrogatories and
produce the documents identified in the Court’s Scheduling Order by no later than October 31,
2024, to the extent they have not already done so. On that date, the WT&P Plaintiffs SHALL
FILE in the record a proper motion for reinstatement, identifying each specific plaintiff that has
fully answered the interrogatories and produced the requisite documents in compliance with the
Court’s Scheduling Order. The WT&P Plaintiffs may only seek reinstatement of those complying
plaintiffs and must do so in a single motion.
Again, as with the Martin Plaintiffs, to the extent Defendants challenge the sufficiency of
the WT&P Plaintiffs’ discovery responses, the parties must make every effort to resolve disputes
between themselves in good faith per Local Rule 37.1 before requesting intervention from this
Court. Only if the parties are unable to reach a resolution, and have followed proper pre-motion
mechanics, may they seek relief through a properly filed Rule 37 motion.
In its “substantial discretion” to effectively manage its docket, the Court will dismiss with
prejudice the claims of any plaintiff that has not complied (i.e., that is not listed by WT&P as
compliant) by October 31, 2024. Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th
Cir. 2008) (citation and quotation marks omitted). The Court is conscious of the logistical
intricacies in representing hundreds of plaintiffs, particularly given the enduring issues with the

To the extent Defendants request that the Court dismiss the claims of the WT&P Plaintiffs with prejudice,
the Court incorporates its previous analysis declining to dismiss the claims of the Martin Plaintiffs.
Although the length of delay created by the WT&P Plaintiffs is greater and therefore poses greater risk of
prejudice to Defendants, the Court reiterates that the infancy of discovery assuages the prejudice. Likewise,
since the WT&P Plaintiffs retained new counsel, these plaintiffs have regularly attempted to address the
pending discovery requests pursuant to the Scheduling Order. That is, the record does not evince a “clear”
pattern “of delay or contumacious conduct.” Freeland, 103 F.3d at 1277. Without such a pattern and
mindful that the delays here are primarily due to the negligence and unhelpful influence of former counsel,
the Court refrains from dismissing the claims of the WT&P Plaintiffs with prejudice.

7

12

former counsel. However, as the masters of their own case, Plaintiffs cannot remain inactive. At
a certain point, the perpetual delay escalates the prejudice to the opposing parties to an intolerable
level.
Plaintiffs Jeff and Kathryn Miller, the only set of plaintiffs now represented by Brian Vines,
also timely moved for an extension of time to respond to discovery requests in compliance with
the Scheduling Order. See DE 66 (J. Miller Motion for Extension). As grounds, the J. Miller
Plaintiffs (formerly represented by Hammond) state that they only retained Vines less than two
weeks before the Scheduling Order compliance deadline. See id. No defendant opposed the
motion. The J. Miller Plaintiffs subsequently filed their Certificate of Service in the record. See
DE 89 (Certificate of Service). Finding good cause and given the lack of defense objection, the
Court GRANTS DE 66. See Local Rule 7.1(c) (“Failure to timely respond to a motion may be
grounds for granting the motion.”). The J. Miller Plaintiffs’ responses were timely.
IV.

Motion to Clarify
Defendants subsequently filed a motion to clarify whether and when to proceed with statute

of limitations discovery. See DE 99 (3M Motion to Clarify); DE 100 (Mine Safety Motion for
Joinder); DE 113 (AOC, Cabot CSC, and Aearo Tech Joinder). The Court GRANTS DE 99 and
DE 100 to the extent Defendants seek clarification as to the case schedule for statute of limitations
discovery. However, to the extent Defendants seek to dismiss the plaintiffs’ claims with prejudice,
the Court DENIES DE 99 and DE 100 for the reasons already given. The parties appear to have
conducted at least some discovery regarding the statute of limitations in the interim. See DE 129
(Motion for Summary Judgment). The parties (meaning, all active and remaining litigants in the
case) SHALL file a joint status report detailing the current status of statute of limitations discovery,
and a joint proposed plan for phased discovery and steps in litigation, by no later than October

13

22, 2024. At that point, the Court will conduct a scheduling hearing and map out the schedule in
the case. Discovery on limitations may certainly proceed.
V.

Conclusion
Therefore, in sum, the Court hereby ORDERS:
1.

The Court GRANTS in part and DENIES in part DE 56, DE 59, DE 62, and DE
68;

2.

The Court DENIES DE 57, DE 60, DE 63, and DE 69;

3.

The Court GRANTS DE 104. Plaintiffs SHALL fully comply with Court’s
Scheduling Order by no later than October 31, 2024, to the extent that they have
not already done so. On that date, the WT&P Plaintiffs also SHALL FILE in the
record a proper motion for reinstatement, identifying each specific plaintiff that is
in full compliance with the Court’s Scheduling Order;

4.

The Court GRANTS DE 66; and

5.

The Court GRANTS in part and DENIES in part DE 99 and DE 100. The parties
SHALL file a joint status report as specified by no later than October 22, 2024.

This the 26th day of September, 2024.

14