JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint v. UNITED STATES OF AMERICA

Filing 166

OPINION and ORDER DENYING WITHOUT PREJUDICE 147 MOTION TO DISMISS NONRESPONSIVE PLAINTIFFS WITH PREJUDICE OR, IN THE ALTERNATIVE, FOR ISSUANCE OF AN ORDER TO SHOW CAUSE Signed by District Judge Linda V. Parker. (AFla)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re FTCA Flint Water Cases
Civil Case No. 4:17-cv-11218
(Consolidated)
_________________________/
This Order Relates to:

Honorable Linda V. Parker
United States District Judge

All Cases

OPINION AND ORDER DENYING WITHOUT PREJUDICE
MOTION TO DISMISS NONRESPONSIVE PLAINTIFFS WITH
PREJUDICE OR, IN THE ALTERNATIVE, FOR ISSUANCE OF AN
ORDER TO SHOW CAUSE
The March 2, 2020 Stipulated Case Management Order Number 3 (“CMO
3”) establishes procedures for conducting Bellwether proceedings in this matter.
(See ECF No. 111.) Pursuant to CMO 3, Plaintiffs randomly selected by the
Special Master to be part of the FTCA Disclosure Group (“FTCA Disclosure
Group Plaintiffs”) must complete FTCA Plaintiff fact sheets, along with
authorizations for release of specified records and other specific documents. (Id.
¶ III.D.) CMO 3 provides for a process to address incomplete fact sheets. (Id.
¶ III.G.2.) It also provides that if insufficiencies are not cured through this process,
“the United States may move to dismiss with prejudice that particular Disclosure
Group FTC Plaintiff under Rule 41(b) or Rule 37(b) [of the Federal Rules of Civil
Procedure].” (Id.) The matter is now before the Court on the Government’s

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motion to dismiss on that basis a number of FTCA Disclosure Group Plaintiffs
(“Nonresponsive Plaintiffs”).1 2 (ECF No. 174.) The Government alternatively
asks the Court to issue an order requiring the Nonresponsive Plaintiffs to show
cause as to why their claims should not be dismissed with prejudice. The motion
has been fully briefed. (ECF Nos. 152, 153.)
The Sixth Circuit has identified four factors for a court to consider in
deciding whether to dismiss a case for failure to prosecute pursuant to Rule 41(b):
(1) whether the party’s failure is due to willfulness, bad faith, or
fault; (2) whether the adversary was prejudiced by the
dismissed party’s conduct; (3) whether the dismissed party was
warned that failure to cooperate could lead to dismissal; and (4)
whether less drastic sanctions were imposed or considered
before dismissal was ordered.

1

As of March 24, 2021, when the Government filed its motion, there allegedly
were 75 Nonresponsive Plaintiffs. (ECF No. 147-2.) However, according to
FTCA Plaintiffs Liaison Counsel, fact sheet information had been obtained for
some FTCA Disclosure Group Plaintiffs but counsel was awaiting signatures. (Id.
at Pg ID 3370.) Plaintiff served two additional Plaintiff fact sheets on the
Government prior to April 28, 2021. (See ECF No. 153 at Pg ID 3415 n.1.) While
additional fact sheets may have been returned in the interim, for the reasons
discussed infra, the Court finds it unnecessary to collect that information at this
time.
2

Subsequent to the filing of the pending motion, the parties stipulated to the
amendment of CMO 3 to allow for the immediate selection of a second group of
Disclosure Group Plaintiffs. (ECF No. 162.) As part of the stipulated order, the
Court’s decision with respect to the pending motion “will apply equally to
nonresponsive plaintiffs from the first and second Discovery Groups.” (Id. at Pg
ID 3481.)
2

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Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (citing Knoll v. Am. Tel.
& Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)). “Although typically none of the
factors is outcome dispositive, … a case is properly dismissed by the district court
where there is a clear record of delay or contumacious conduct.” Shafer v. City of
Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (quoting Knoll, 176 F.3d
at 363); see also Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013)
(quoting Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997)). In fact,
because “[t]he dismissal of a claim for failure to prosecute is a harsh sanction,” the
Sixth Circuit has repeatedly advised that it should be “order[ed] only in extreme
situations showing a clear record of contumacious conduct by the plaintiff.” Wu,
420 F.3d at 643 (emphasis added) (quoting Stough v. Mayville Cmty. Schs., 138
F.3d 612, 614-15 (6th Cir. 1998)); see also Schafer, 528 F.3d at 736.
Contumacious conduct is “behavior that is ‘perverse in resisting authority’
and ‘stubbornly disobedient.’” Carpenter, 723 F.3d at 704-05 (quoting Schafer,
529 F.3d at 737) (additional quotation marks and citation omitted). The plaintiff’s
conduct “must display either an intent to thwart judicial proceedings or a reckless
disregard for the effect of [the plaintiff’s] conduct on those proceedings.” Id. at 705
(quoting Wu, 420 F.3d at 643) (additional quotation marks and citation omitted).

3

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The Court is not able to conclude that the Nonresponsive Plaintiffs’ failure to
complete the fact sheets reflects contumacious conduct.3
The failure of the Nonresponsive Plaintiffs to provide their counsel with
usable contact information and to complete the fact sheets may be, as the
Government asserts, “their fault.” (ECF No. at 153 at Pg ID 3417.) But “fault” is
not enough to warrant a dismissal with prejudice. See supra. There is no evidence
that these individuals have been “stubbornly disobedient” or “perverse in resisting
authority.” There is no evidence that they are intentionally disregarding their
obligations as parties to this litigation or ignoring FTCA Plaintiffs Liaison
Counsel. Unlike other cases where dismissal was found appropriate, Plaintiffs,
through their counsel, have otherwise responded when required during the
pendency of these proceedings. Cf. Harmon v. CSX Transp., Inc., 110 F.3d 364,
368 (6th Cir. 1997) (affirming the dismissal of the case and finding the plaintiff’s
conduct to be “stubbornly disobedient and willfully contemptuous” where the
plaintiff, for nearly one year, failed to respond to discovery requests and a motion
to compel, did not comply with a court order, and filed no response to a motion to

3

As the Government points out in its reply brief, the Sixth Circuit has stated that
the plaintiff “has the burden of showing that his failure to comply was due to
inability, not willfulness or bad faith.” United States v. Reyes, 307 F.3d 451, 458
(6th Cir. 2002) (citing Reg’l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d
150, 154 (6th Cir. 1988)). The Court nevertheless believes that it must still find
evidence of contumacious conduct before dismissing a case under Rule 41(b).
4

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dismiss even after the district court granted an extension of time to do so); In re
Aredia & Zometa Prod. Liab. Litig., No. 3:06-1760, 2007 WL 3069635 (M.D.
Tenn. Oct. 18, 2007) (the plaintiff failed to serve a completed fact sheet for almost
a year after receiving several extensions of time to do so and failed to respond to
the defendant’s subsequent motion to dismiss).
Moreover, Plaintiffs identify several circumstances likely impacting the
responsiveness of FTCA Disclosure Group Plaintiffs. (See ECF No. 152 at Pg
3399.) Significantly, economically challenging conditions facing many, if not
most, of the claimants affect their general ability to communicate with counsel and
receive and send information. For the last year and a half, due to the COVID-19
pandemic, communication has been made difficult for individuals regardless of
economic status. However, few would dispute that this obstacle has been
particularly acute for individuals with more limited access to technology.
The failure of Disclosure Group Plaintiffs to complete the fact sheets has not
prejudiced the Government particularly because the parties have amended the
bellwether selection process to avoid significant disruption and cure any
deficiencies caused by their unresponsiveness. There are no scheduled trial dates
or other court deadlines being delayed as a result of these incomplete fact sheets.
For the same reasons, the Court concludes that dismissal also is not
warranted under Rule 37. As the Government acknowledges, the same four factors
5

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relevant to dismissal under Rule 41(b) guide a court in deciding whether dismissal
is appropriate as a sanction under Rule 37. See Mager v. Wisconsin Cent. Ltd., 924
F.3d 831, 837 (6th Cir. 2019) (citing United States v. Reyes, 307 F.3d 451, 458
(6th Cir. 2002)) (listing factors).
Therefore, the Court declines to dismiss the Nonresponsive Plaintiffs or
issue a show cause order threatening to dismiss them at this time.
Accordingly,
IT IS ORDERED that the Motion to Dismiss Nonresponsive Plaintiffs with
Prejudice or, in the Alternative, for Issuance of an Order to Show Cause (ECF No.
147) is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 20, 2021

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