Son v. Merck & Company, Inc.

Filing 48

MEMORANDUM OPINION AND ORDER. #98604 For the reasons set forth herein, Plaintiff's case is DISMISSED WITH PREJUDICE pursuant to Rule 37(b). (Signed by Judge John F. Keenan on 3/2/10) (djc) Modified on 3/3/2010 (ajc).

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------x IN RE: Fosamax Products Liability : Litigation, MDL No. 1789 : -----------------------------------x This Document Relates to: : Cynthia Son v. Merck & Co., Inc., : 1:08-cv-04180-JFK -----------------------------------x

1:08-cv-04180-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 Cynthia Son ("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 filed her case in this Court on May 1, 2008. In a letter dated May 8, 2008, Merck reminded Plaintiff

of her obligation to provide a completed PPF by June 30, 2008, sixty days after the filing of the complaint. On June 26,

2008, Merck gave Plaintiff a 30-day extension of time to provide a PPF. August 12, 2008. Merck sent Plaintiff a letter dated December 2, 2008, noting the deficiencies in the PPF produced on August 12, 2008, and requesting the omitted information within 30 days. Merck granted Plaintiff a 30-day extension of time to An incomplete PPF finally was produced on

respond to the deficiency letter, making the due date February 2, 2009. On March 11, 2009, Plaintiff's counsel obtained an

additional extension of time to respond and notified Merck that it had filed a motion to withdraw as counsel for Ms. Son. On April 20, 2009, the Court granted Plaintiff's counsel's motion to withdraw as attorney in the matter. Court directed Ms. Son to notify 2 the court whether The she

intended to retain new counsel or represent herself.

The

Court also reminded Ms. Son that her failure to provide a completed PPF would lead to the dismissal of her case.

Plaintiff still has not provided a completed PPF or otherwise responded. On December 10, 2009, 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 3

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 WL 50887, at *3 (S.D.N.Y. Jan. 19, 2001) (citing Baba v. Japan Travel Bureau, Int'l, Inc., 16