Hansen v. Procter & Gamble Pharmaceuticals, Inc. et al

Filing 18

MEMORANDUM OPINION AND ORDER. The Actonel Defendants' motion to dismiss under Rule 41(b) is granted. The action is dismissed with prejudice. The Clerk of the Court is respectfully directed to close this case. So ordered. re: 13 MOTION to Dismiss for Lack of Prosecution filed by Procter & Gamble Pharmaceuticals, Inc., Aventis Pharmaceuticals, Inc. (Signed by Judge John F. Keenan on 12/16/2016) (rjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NANCY HANSEN,
Plaintiff,

08 Civ. 7350

-against-

(JFK)

MEMORANDUM OPINION
& ORDER

PROCTER & GAMBLE PHARMACEUTICALS, INC.
AND AVENTIS PHARMACEUTICALS, INC.
Defendants.

----------------------------------------X
JOHN F. KEENAN, United States District Judge:
Before the Court is a motion by Warner Chilcott (US) LLC
and Sanofi-Aventis US LLC (the "Actonel Defendants"), successors
in interest to the above-captioned defendants, to dismiss this
case under Rule 41(b) of the Federal Rules of Civil Procedure
for failure to prosecute.
Plaintiff Nancy Hansen filed the complaint in this case on
August 9, 2008, seeking damages stemming from her alleged use of
the prescription drug Actonel, which she claimed caused her to
develop osteonecrosis of the jaw.

(Compl.

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29.)

The case was

accepted as related to a multi-district litigation pending
before this Court,

In re: Fosamax Products Liability Litigation,

No. 06-MD-1789, involving the prescription drug Fosamax, which
like Actonel is part of a class of drugs called bisphosphonates.
(See id.

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14,)

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According to the complaint, Plaintiff was a resident of
Michigan at the time the complaint was filed.

( Id.

«JJ

4.)

Two

law firms were listed as counsel for Plaintiff on the complaint:
Kabteck Brown Kellner, LLP and Khorrami Pollard & Abir, LLP,
both located in Los. Angeles,

California~

( Id. at 20.)

In June and July of 2016, this Court held status
conferences in a number of cases that are part of, or related
to, the Fosamax MDL.

Before that time, there had been no

activity in this case by either side for nearly eight years.
After this Court set a June 14, 2016 status conference,
Plaintiff's counsel, Richard L. Kellner of Kabteck Brown Kellner
LLP, reported to the Court that his co-counsel, Mr. Khorrami of
Khorrami Boucher Sumner Sanguinetti LLP, was originally in charge
of Plaintiff's case, but that Mr. Khorrami has since been disbarred
and the Khorrami firm has been disbanded.

(See Ltr. from Richard L.

Kellner to the Court (June 10, 2016), ECF No. 6.)

The Court

granted an adjournment of the conference to allow Mr. Kellner time
to investigate the case and attempt to track down Plaintiff.

At a

July 20, 2016 status conference, Mr. Kellner reported that he had
not had any contact with the Plaintiff for five years and had been
unable to locate Plaintiff or obtain the client files from Mr.
Khorrami's firm.
On July 25, 2016, with leave of this Court, the Actonel
Defendants filed a motion dismiss this action under Rule 41(b)
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of the Federal Rules of Civil Procedure for failure to
prosecute.

(ECF No. 13.)

On August 10, 2016, Mr. Kellner filed

an opposition on Plaintiff's behalf.

(ECF No. 15.)

Mr. Kellner

stated that his firm still had no contact information for
Plaintiff and that

~laintiff

firm.

Mr. Kellner further reported that when his

( I d . at 3 . )

had made no attempt to contact the

firm discovered that the Khorrami firm was dissolved, it "used
various resources to locate the client, including skip searches
and private investigators," but was unable to locate her.

(Id.)

Nonetheless, Mr. Kellner requested, on August 10, 2016, an
additional four months to locate Plaintiff.

(Id. at 3.)

In

light of Mr. Kellner's request, on October 20, 2016, the Court
set a status conference for December 12, 2016, to afford counsel
a final opportunity to attempt to reach Plaintiff.

At the

conference, which was adjourned to December 15, 2016, Mr.
Kellner advised the Court that he does not object to dismissal
because, despite diligent attempts to reach Plaintiff, he has
still not been able to do so.
Rule 41(b) provides that "[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. Crv. P. 41(b).

While the decision whether to dismiss

an action under Rule 41(b) is a matter left to a district
court's discretion, the Second Circuit has articulated five
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factors to guide the exercise of that discretion.
should consider:

A court

(1) whether the plaintiff's failure to

prosecute has caused a delay of significant duration;

(2)

whether plaintiff has been given notice that further delay would
result in dismissal;

(3) whether the defendant is likely to be

prejudiced by further delay;

(4) the balance between the need to

alleviate court calendar congestion and plaintiff's right to an
opportunity for a day in court; and (5) the efficacy of lesser
sanctions. United States ex rel. Drake v. Norden Sys., Inc., 375
F.3d 248, 254

(2d Cir. 2004.)

Having considered these factors, the Court finds that
dismissal of this action is warranted.

Plaintiff has made no

effort to prosecute this case for over eight years.

The Court

afforded Plaintiff's counsel an additional four months to locate
Plaintiff after the filing of the motion to dismiss.

Despite

diligent efforts, counsel has been unable to reach Plaintiff and
does not object to dismissal.

In light of Plaintiff's lengthy

failure to advance her case in any way and counsel's fruitless
attempts to reach Plaintiff, the Court is convinced that
continued delay would result in unwarranted court congestion and
prejudice to the defendants.
Accordingly, the Actonel Defendants' motion to dismiss
under Rule 4l(b) is granted.

The action is dismissed with

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prejudice.

The Clerk of the Court is respectfully directed to

close this case.
SO ORDERED.

Dated:

New York, New York
December 16, 2016

~~J~~J
Hon. Jo~. Keenan
United States District Judge

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