Guidry v. Bristol Myers Squibb Co et al

Filing 28

SUA SPONTE MEMORANDUM RULING setting forth reasons for DISMISSING this case with prejudice in accordance with the provisions of FRCP Rule 41(b). Signed by Magistrate Judge Kathleen Kay on 7/12/2017. (crt,Whidden, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

JERRY GUIDRY

:

VERUS

:

BRISTOL MYERS SQUIBB CO., ET AL

:

CIVIL ACTION NO. 2:16-cv-609

MAGISTRATE JUDGE KAY

SUA SPONTE MEMORANDUM RULING

Plaintiff, Jerry Guidry, filed suit in the 36th Judicial Court, Parish of Beauregard on April
7, 2016, naming Bristol Myers Squibb Company and AstraZeneca Pharmaceuticals LP as
defendants (hereinafter collectively referred to as “defendants”). Doc. 1, att. 1, pp. 1-19. The suit
was removed to this court on May 4, 2016, on the basis of diversity jurisdiction. Doc. 1.
Defendants answered the allegations in the suit and the matter was set for a scheduling
conference on December 1, 2016. Docs. 14, 15, 16. At this conference, the matter was not set for
trial; instead, the court allowed the parties to engage in limited discovery concerning medical
causation and continued the scheduling conference to July 6, 2017. Doc. 19.
Prior to the July conference, on May 24, 2017, counsel for plaintiff filed a motion to
withdraw. Doc. 22. The motion was set for hearing by telephone on June 8, 2017. Doc. 24. At
the hearing counsel for plaintiff informed the court that, beginning in August of 2016, she began
having difficulty contacting her client. See Doc. 27, Digital Audio File. Counsel stated that she
attempted to contact her client by tlephone and by mail on numerous occasions in order to obtain
medical records and/or medical authorizations requested by defense and which were vital to the

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case. Id. Near the end of March 2017 counsel received medical authorizations signed by plaintiff’s
wife, Gayla Guidry, who represented to counsel by letter that she had power of attorney to act on
her husband’s behalf. Id. In the meantime, counsel stated that she did some online research and
discovered an obituary for plaintiff dated February 22, 2017. Id.
Counsel for plaintiff stated that she called and sent letters, by both certified and regular
mail, to plaintiff and his wife using the contact information that she had and searching online for
any other ways to reach them. Id. Counsel explained in the letters the need to obtain probate
documents in order to do a substitution of parties. Id. When she received no response, counsel
sent a letter on April 10, 2017, by both certified and regular mail, explaining that she was going to
file a motion to withdraw. The certified letter was returned unclaimed and counsel stated that she
had no response following the letter. On May 23, 2017 counsel filed the motion to withdraw.
At the hearing on the motion to withdraw the court granted counsel’s motion and ordered
the Clerk of Court to send an order to plaintiff, his wife, or their legal representative notifying
them of the telephonic scheduling conference set for July 6, 2017, and ordering that they participate
in the conference. Doc. 25. Such order was issued on June 8, 2017, and mailed to plaintiff at his
last known address. Doc. 26.
On July 6, 2017, defense counsel called Chambers for the scheduling conference. No one
called Chambers on behalf of plaintiff.
Federal Rules of Civil Procedure Rule 41(b) permits dismissal of claims “[i]f the plaintiff
fails to prosecute or to comply with ... a court order ...” The district court also has the inherent
authority to dismiss an action sua sponte, without motion by a defendant. Link v. Wabash R.R.Co.,
370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962). “The power to invoke this

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sanction is necessary in order to prevent undue delays in the disposition of pending cases and to
avoid congestion in the calendars of the District Courts.” Id. at 629-30.
The court finds that plaintiff has caused undue delays in the prosecution of this case and
has furthermore failed to comply with orders of this court. For these reasons, the court concludes
that plaintiff’s suit should be DISMISSED with prejudice in accordance with the provisions of
FRCP Rule 41(b). A separate judgment to that effect will be executed.
THUS DONE AND SIGNED in Chambers this 12th day of July, 2017.

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