Bova, et al. v. Merck & Co., Inc.

Filing 14

MEMORANDUM OPINION AND ORDER: #99049 For the reasons set forth above Plaintiff's case is dismissed with prejudice pursuant to Rule 37 (b). So Ordered (Signed by Judge John F. Keenan on 6/15/2010) (js) Modified on 6/16/2010 (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: : Lori Bova v. Merck & Co., Inc., : 1:09-cv-06381-JFK -----------------------------------x

1:09-cv-06381-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 Lori Bova ("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 July 16, 2009. In a letter dated August 5, 2009, Merck

reminded Plaintiff of her obligation to provide a completed PPF by September 14, 2009, sixty days after the case was transferred to this Court. When Plaintiff failed to provide

a PPF by this deadline, Merck sent a deficiency letter dated September 29, 2009. The letter informed Plaintiff that,

pursuant to CMO 3, she had thirty days to cure the deficiency, otherwise Merck would "move to dismiss [this] action and/or seek other appropriate relief." Although not required to do

so, Merck provided Plaintiff extensions of time to cure the deficiency until December 17, 2009. When Plaintiff did not

provide a PPF by that date, Merck again reminded Plaintiff of her obligation to provide a PPF in an email dated December 30, 2009. Plaintiff still has not provided a PPF. On April 2, 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 2

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 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 in this MDL must provide defendant with a completed PPF. There can be no doubt that Plaintiff 3

understood this obligation.

Merck sent several letters and Despite this, Plaintiff

emails reminding her counsel of it.

disregarded her discovery obligations under CMO