Hilliard et al v. Johnson & Johnson et al (TV1)

Filing 39

MEMORANDUM AND OPINION finding that the Court will GRANT defendants Johnson &Johnson and Ethicon, Inc.s 34 Motion to Dismiss, in that plaintiffs claims against Johnson & Johnson and Ethicon, Inc. will be DISMISSED WITHOUT PREJUDICE.Signed by Chief District Judge Thomas A Varlan on 7/12/2018. A copy of this Order has been sent via U.S. Mail to Carolyn Sue Hilliard. (MDG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
SCH, a minor, b/n/f and mother,
)
CAROLYN SUE HILLIARD and
)
CAROLYN SUE HILLIARD, individually, )
)
Plaintiffs,
)
)
v.
)
)
JOHNSON & JOHNSON, and
)
ETHICON, INC.,
)
)
Defendants.
)

No.:

1:17-CV-8-TAV-SKL

MEMORANDUM OPINION
This civil case is before the Court on defendants Johnson & Johnson and Ethicon,
Inc.’s Motion to Dismiss for Failure to Prosecute and for Failure to Comply with a Court
Order [Doc. 34]. Defendants filed this motion in response to plaintiffs’ failure to secure
new counsel and prosecute this case. For the reasons discussed herein, the Court will grant
defendants’ Motion to Dismiss.
I.

Background
Plaintiffs, SCH, a minor, b/n/f and mother, Carolyn Sue Hilliard and Carolyn Sue

Hilliard, individually, filed this suit in the Circuit Court of Hamilton County, Tennessee
on December 1, 2016, alleging that defendant Ethicon, Inc.’s Prolene Mesh was a defective
product due to its “unreasonably dangerous design” and inadequate warning label [Doc.
35, Ex. A]. Plaintiffs further alleged that SCH suffered damages caused by the defective

nature of the Prolene Mesh implanted in his esophagus [Id.]. Specifically, the Prolene
Mesh allegedly caused a blockage in SCH’s esophagus, resulting in his inability to eat or
drink fluids [Id.]. On January 18, 2017, this case was removed to this Court [Doc. 35].
On January 9, 2018, defendants were told that plaintiffs intended to nonsuit the case
[Id.]. Then, on January 20, 2018, plaintiffs’ counsel, Charles Flynn, informed defendants
that he intended to withdraw from the case and that Ms. Hilliard would seek new counsel
[Id.]. This new information led the parties to agree to an Unopposed Motion for Extension,
which was granted on February 13, 2018 [Id.]. On February 8, 2018, plaintiffs’ counsel’s
Motion to Withdraw was denied [Id.]. On March 2, 2018, defendants filed a Notice of
Video Deposition of Carolyn Sue Hilliard, but were forced to cancel [Id.]. Defendants then
filed a Motion to Dismiss for Lack of Prosecution on March 22, 2018, due to undue delay
that defendants attributed to plaintiffs [Id.]. Plaintiffs’ counsel then filed a second Motion
to Withdraw on March 22, 2018, which was granted on April 16, 2018 [Id.].
Magistrate Judge Susan K. Lee held a hearing on April 11, 2018, to address
plaintiffs’ counsel’s second Motion to Withdraw [Id.]. At this hearing, the Court counseled
Ms. Hilliard on the importance of finding new representation [Id.]. Due to Ms. Hilliard’s
previous failed attempts to secure new counsel, the Court stayed the matter for thirty days
until May 16, 2018, in order to give Ms. Hilliard enough time to find a new attorney [Id.].
However, the Court’s April 16, 2018, order warned Ms. Hilliard that failure to either (1)
have new counsel file a notice of appearance on behalf of plaintiffs, or (2) file a written

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notice informing the Court how she intends to proceed in this case, could result in sanctions
up to and including dismissal of her case with prejudice [Doc 31]. Defendants filed this
Motion to Dismiss for Lack of Prosecution [Doc. 34] on May 23, 2018, seven days after
plaintiffs’ deadline. There still has been no notice of appearance by new counsel, written
notice of Ms. Hilliard’s plan to prosecute this case, or response to defendants’ motion to
dismiss.
II.

Motion to Dismiss
Defendants filed their Motion to Dismiss under Federal Rule of Civil Procedure

41(b), which states, “If a 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” [Id.]. Rule 41(b)
is available “as a tool to effect ‘management of [a court’s] docket and avoidance of
unnecessary burdens on tax-supported courts [and] opposing parties.’” Knoll v. Am. Tel.
& Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (quoting Matter of Sanction of Baker, 744
F.2d 1438, 1441 (10th Cir. 1984)). Before a court may grant a motion to dismiss for failure
to prosecute, the court must analyze four factors, which include: “(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.” Id. While none of these factors is outcome

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dispositive, courts typically dismiss cases “where there is a clear record of delay or
contumacious conduct.” Id.
A.

Willfulness, Bad Faith, Or Fault

A plaintiff’s failure to prosecute may be caused by willfulness, bad faith, or fault if
her conduct displays “either an intent to thwart judicial proceedings or a reckless disregard
for the effect of [her] conduct on those proceedings.” Wu v. T.W. Wang, Inc., 420 F.3d
641, 643 (6th Cir. 2005) (quoting Mulbah v. Detroit Bd. Of Educ., 261 F.3d 586, 591 (6th
Cir. 2001)). However, this does not mean that defendants have to demonstrate that
plaintiffs took “any positive steps to delay the trial or prevent it from being reached by
operation of the regular machinery of the court.” Bendix Aviation Corp. v. Glass, 32 F.R.D.
375, 377 (E.D. Penn. 1961). A plaintiff may fail to prosecute her case by doing nothing,
“knowing that until something is done there will be no trial.” Id.
Ms. Hilliard’s failure to prosecute her and her son’s claims is willful and exhibits
disregard toward the progress of these proceedings. Plaintiffs actively participated in
litigation prior to the withdrawal of their attorney, Charles Flynn. Since his withdrawal as
their attorney, Ms. Hilliard has failed to secure a replacement, and while she may represent
herself concerning her own claims, she is unable to represent SCH. Judge Lee warned Ms.
Hilliard that this case may be dismissed in her April 16, 2018, order [Doc. 31] advising her
of the necessity and importance of securing new representation. Moreover, the order
granted Ms. Hilliard leniency by affording her an avenue by which she could continue the

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action in the event she had not yet found an attorney by the deadline. In this event, she
was merely required to file a written notice with the Court explaining her plan going
forward.
By failing to have a new attorney file a notice of appearance or failing to file notice
of her plan to prosecute this case, Ms. Hilliard willfully failed to comply with an order of
the Court. Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980) (finding that a
failure to prosecute includes failing to comply with pre-trial orders). While Ms. Hilliard
was a pro se litigant at the time of the deadline and remains a pro se litigant at this time,
there is no reason to grant her the latitude that is usually afforded to pro se litigants when
it comes to complex, sophisticated legal issues. See Jourdan v. Jabe, 951 F.2d 108, 109
(6th Cir. 1991). No sophisticated legal issue was involved in complying with the Court’s
order. Even if Ms. Hilliard was unable to secure a new attorney, she could have complied
with the Court’s order by filing a written notice informing the Court of her plan to prosecute
this case. Her unwillingness to keep the Court updated indicates a willful failure to
prosecute.
B.

Prejudice

The second factor is whether the defendants have been prejudiced by the plaintiffs’
actions. To demonstrate prejudice, defendants must show more than delay. Stewart v.
Deutsche Bank Nat. Trust Co., No. 3:08-cv-475, 2010 WL 1882068, at *2 (E.D. Tenn. May
11, 2010). Instead, defendants must establish that the delay “result[ed] in the loss of

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evidence, increased difficulties of discovery, or greater opportunity for fraud and
collusion.” Berthelsen v. Kane, 907 F.2d 617, 621 (6th Cir. 1990). The Sixth Circuit has
further explained that prejudice can be created by delay if the defendants “waste[d] time,
money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to
provide.” Schafer v. City of Defiance Police Dept., 529 F.3d 731, 739 (6th Cir. 2008).
While defendants were inconvenienced and delayed by plaintiffs’ counsel’s failure
to properly file his withdrawal motion and by Ms. Hilliard’s canceled video deposition,
these types of delay are to be expected in a civil action. Defendants have failed to show
how they have been prejudiced beyond having to wait months for the case to progress.
This factor weighs in favor of plaintiffs because defendants suffered no significant
prejudice.
C.

Fair Warning

Less drastic sanctions are ordinarily more appropriate than dismissal in cases where
there has been no notice to the plaintiff of the Court’s consideration of dismissal as a
possible sanction. Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir. 1988). However, in
this case, Ms. Hilliard was notified of the possibility of dismissal by Judge Lee in her order
granting plaintiffs’ attorney’s motion to withdraw [Doc. 31]. The order stated, “Plaintiff
Hilliard is forewarned that any failure to fully comply with this order could result in the
imposition of sanctions up to and including the dismissal of her case with prejudice” [Id.].
In addition, Local Rule 83.13 describes a pro se litigant’s duty to monitor the progress of

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her case and warns her that failure to timely respond to an order may result in dismissal of
the case.

Ms. Hilliard’s disregard of these warnings weighs in favor of granting

defendants’ motion to dismiss.
D.

Alternative Sanctions

While courts should consider sanctions short of dismissal, district courts have the
authority to dismiss a complaint “as the first and only sanction.” Harmon v. CSX Transp.,
Inc., 110 F.3d 364, 368 (6th Cir. 1997). This Court has considered alternative solutions
and has decided that dismissing plaintiffs’ complaint without prejudice strikes the proper
balance between “the court’s need to manage its docket, the public’s interest in expeditious
resolution of litigation, and the risk of prejudice to a defendant” and “the policy which
favors disposition of cases on their merits.” Little v. Yeutter, 984 F.2d 160, 162 (6th Cir.
1993) (citation omitted). Dismissal without prejudice is a particularly appropriate remedy
in this case because there is a minor involved. SCH should not be prevented from refiling
his claim due to Ms. Hilliard’s inaction. However, Ms. Hilliard’s disregard of the Court’s
order indicates that dismissal is proper under Rule 41(b). Further, because plaintiffs did
not respond to defendants’ motion to dismiss, this Court has discretion to grant defendants’
motion as unopposed. E.D. Tenn. L.R. 7.2. (“Failure to respond to a motion may be
deemed a waiver of any opposition to the relief sought”). Dismissal is therefore appropriate
due both to plaintiffs’ failure to comply with the Court’s order and failure to respond to
defendants’ motion to dismiss.

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III.

Conclusion
For the reasons discussed herein, the Court will GRANT defendants Johnson &

Johnson and Ethicon, Inc.’s Motion to Dismiss [Doc. 34], in that plaintiffs’ claims against
Johnson & Johnson and Ethicon, Inc. will be DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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