Oakley v. Merck & Co., Inc.

Filing 67

MEMORANDUM OPINION & ORDER re: 63 MOTION to Dismiss by Merck Sharp & Dohme Corp. (formerly known as Merck & Co., Inc.) filed by Merck & Co., Inc. For the reasons further set forth in this Order, Plaintiff's case is DISMISSEDWITH PREJUDICE pursuant to Rule 37(b).SO ORDERED. (Signed by Judge John F. Keenan on 4/27/2010) (tve)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------x IN RE: Fosamax Products Liability : Litigation : : ------------------------------------x This Document Relates to: : : Dorothy Oakley v. Merck & Co., Inc.,: 1:07-cv-03652-JFK : ------------------------------------x

1:07-cv-03652-JFK Memorandum Opinion & Order

JOHN F. KEENAN, United States District Judge: Defendant Merck Sharp & Dohme Corp. ("Merck") moves pursuant to Federal Rules of Civil Procedure 16(f), 37(b), and 41(b) to dismiss this case with prejudice because plaintiff Dorothy Oakley ("Plaintiff") has failed to provide a Plaintiff Profile Form ("PPF") as required by Case Management Order No. 3 ("CMO 3"). Plaintiff has not opposed the motion. For the

reasons provided below, the motion is GRANTED. Background Section 10.3 of CMO 3 requires plaintiffs in all cases consolidated in this multi-district litigation ("MDL") to submit completed PPFs to defense counsel within sixty days of the date that the case is filed with this Court or, for cases transferred here, the date that the conditional transfer order becomes final. CMO 3 further provides that Merck may

send a deficiency letter to a plaintiff who has not submitted a completed PPF within sixty days. Upon receipt of the

deficiency letter, the plaintiff has thirty days to cure the deficiency. If the plaintiff fails to provide a PPF within

the cure period, CMO 3 permits the "defendants to move for sanctions, including without limitation, attorneys fees,

dismissal without prejudice, or dismissal with prejudice." Plaintiff's case was transferred to this Court on May 8, 2007. In a letter dated May 15, 2007, Merck reminded

Plaintiff of her obligation to provide a completed PPF by July 9, 2007. An incomplete PPF was produced on July 9, 2007. Merck sent Plaintiff a letter dated March 11, 2008, noting the deficiencies in the PPF produced on July 9, 2007, and requesting the omitted information within 30 days. did not receive a response within 30 days. Merck

On January 21,

2009, Merck again wrote a letter to Plaintiff, requesting the information that was not included in the PPF produced on July 9, 2007. withdraw On February 3, 2009, Plaintiff's counsel moved to as counsel in the matter. The Court granted

counsel's motion on August 7, 2009. On November 19, 2009, Merck sent a letter directly to Ms. Oakley, which enclosed its March 11, 2008 deficiency letter and the Court's August 7, 2009 Order. In the letter, Merck

sought to learn whether Ms. Oakley had retained new counsel and also provided that it would seek to dismiss the case if 2

she did not provide a completed PPF within 30 days. has not provided a completed PPF.

She still

On January 8, 2010, Merck filed this motion to dismiss the case with prejudice as a sanction for Plaintiff's noncompliance with CMO 3. Plaintiff has not opposed the

motion nor offered to provide a completed PPF. Discussion Rule Internationale 37(b) Pour governs the instant motion. Societe Et The

Participations

Industrielles

Commerciales, S. A. v. Rogers, 357 U.S. 197, 207 (1958).

rule provides that a district court may impose sanctions "as are just" upon a party who fails to obey a discovery order. Fed. R. Civ. P. 37(b)(2). The court has discretion to impose

a sanction of dismissal only if the failure to comply resulted from "willfulness, bad faith, or any fault." Societe

Internationale, 357 U.S. at 207; Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d. 130 (2d Cir. 2007). Here, dismissal is an available sanction because Plaintiff's disobedience was willful. "Noncompliance with

discovery orders is considered willful when the court's orders have been clear, when the party has understood them, and when the party's noncompliance is not due to factors beyond the party's control." Davis v. Artuz, No. 96 Civ. 7699 (GBD), 2001 3

WL 50887, at *3 (S.D.N.Y. Jan. 19, 2001) (citing Baba v. Japan Travel Bureau, Int'l, Inc., 165 F.R.D. 398, 402-03 (S.D.N.Y. 1996), aff'd, 111 F.3d 2 (2d Cir. 1997)). CMO 3 clearly

states that every plaintiff i