Clark v. Novartis Pharmaceuticals Corporation

Filing 37

ORDER: Mr. Vecchione is ORDERED to pay a sanction in the amount of $1,000.00 for the blatant disregard for the orders of the court described herein. Signed by Magistrate Judge Joe Brown on 11/19/13. Associated Cases: 3:06-md-01760, 3:07-cv-01043(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
In Re:
AREDIA® AND ZOMETA® PRODUCTS
LIABILITY LITIGATION
(MDL No. 1760)
This Document Relates to:
3:07-CV-01043 (Clark, Mary Alice)

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No. 3:06-MD-1760
Judge Campbell/Brown

ORDER
The Magistrate Judge entered an order on September 9, 2013 instructing plaintiff to file an
amended motion to substitute “not later than September 30, 2013.” (MDL Doc. 6969; Related Case
32) In his order, the Magistrate Judge cautioned plaintiff that:
failure to amend by September 30, 2013 may result in the Magistrate
Judge recommending that this case be dismissed with prejudice for
failure to comply with the Case Management Order, and for failure
to comply with Rule 25(a)(1), Fed. R. Civ. P. Appropriate sanctions
may be recommended as well. No extensions of time will be granted
absent good cause shown.
Plaintiff did not comply with the Magistrate Judge’s order by the date specified, nor did she request
an extension of time to do so. Plaintiff still has not filed an amended motion to substitute more than
fifty days after the fact.
On October 10, 2013, ten days after plaintiff was required to comply with the Magistrate
Judge’s prior order, defendant Novartis Pharmaceuticals Corporation (NPC) filed a motion to
dismiss for failure to comply with the orders of the court.1 (MDL Doc. 7047; Related Case 33)
Plaintiff filed a response to NPC’s motion to dismiss on November 15, 2013 – nearly two weeks

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A copy of NPC’s motion to dismiss was served electronically on counsel for plaintiff on October 10, 2013.
(MDL Doc. 7047, p. 4; Related Case 33)

after the time required under the Case Management Order (CMO). (MDL Doc. 7143; Related Case
36) Plaintiff asserts without elaboration that “[d]ue to the personal circumstances of Mr. Richards
and Ms. Harrison, an extended period of time was required to make contact and address the situation
with them.” (MDL Doc. 7143, p. 2; Related Case 36) In her response, plaintiff requests that the
court “withhold judgment on Defendant’s currently pending Motion to Dismiss and allow Plaintiff
a short period to file a Supplemental Response to said Motion and amend her original Motion to
Substitute . . . .” (MDL Doc. 7143, p. 2; Related Case 36)
Plaintiff’s vague reference to “personal circumstances” does not constitute good cause for
her failure to comply with the Magistrate Judge’s September 9, 2013 order. Plaintiff’s vague
reference to “personal circumstances” would not have constituted good cause for an extension of
time had she filed for an extension of time to comply with the Magistrate Judge’s September 9, 2013
order. Plaintiff’s vague reference to “personal circumstances” does not constitute good cause for an
extension of time to file an amended motion to substitute fifty days late. Plaintiff’s vague reference
to “personal circumstances” does not constitute good cause for her failure to file a response to NPC’s
motion to dismiss within the time frame specified by the CMO.
Plaintiff’s motion for a “short period” of time to file a supplemental response to NPC’s
motion to dismiss is DENIED. Plaintiff has had ample time to respond to NPC’s motion to dismiss
as evidenced by the fact that she already has. (MDL Doc. 7143; Related Case 36) Plaintiff’s request
for an unspecified “short period” of time to comply with the Magistrate Judge’s September 9, 2013
order is DENIED as well.
Notwithstanding the foregoing, the court is loathe to punish individual plaintiff’s for the
failings of counsel. As stated many times before, the court’s preference is to adjudicate cases on the
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merits. Therefore, plaintiff shall file an amended motion to substitute with the required supporting
documentation not later than November 29, 2013. Plaintiff is forewarned that failure to comply with
this order by November 29, 2013 may result in a recommendation that this case be dismissed for
failure to comply with the orders of the court. No further extensions of time will be granted absent
good cause shown, including why plaintiff has failed to file an amended motion for substitution in
the two-plus months since the Magistrate Judge entered his original order on September 9, 2011.
Plaintiff’s failure to comply with the Magistrate Judge’s September 9, 2013 order by the date
specified, her failure to request an extension of time to do so, her failure to comply with the CMO
in filing her response to NPC’s motion to dismiss, and her failure to comply with the Magistrate
Judge’s September 9, 2011 order more than two months after that order was entered, combine to
suggest plaintiff’s wilful disregard for the orders of the court. In short, plaintiff’s actions/inactions
have transformed this matter from a purely substitution issue into a one that appears to challenge the
court’s authority to move this case forward.
For the reasons explained above, Mr. Vecchione is ORDERED to pay a sanction in the
amount of $1,000.00 for the blatant disregard for the orders of the court described herein. See
Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991); Youn v. Track Inc., 324 F.3d 409, 420 (6th
Cir. 2003)(both cases standing for the proposition that the district court has the inherent power to
sanction a party when that party refuses to comply with the court’s orders). Mr. Vecchione is
ORDERED to pay the full amount of the sanction to the Clerk of Court for the United States District
Court, Middle District of Tennessee not later than thirty (30) days after the date of entry or this order
on the docket. Mr. Vecchione is FOREWARNED that failure to pay the amount ordered to the
Clerk of Court within the time frame specified may result in additional sanctions.
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In addition to the foregoing, Mr. Vecchione is ORDERED to reimburse NPC for reasonable
costs of litigation that NPC incurred due to plaintiff’s failure to comply with the orders of the court.
Mr. Vecchione will have fourteen (14) days to object to any such application that NPC may file to
recover its costs.
It is so ORDERED.
ENTERED this 19th day of November, 2013.

/s/Joe B. Brown
Joe B. Brown
United States Magistrate Judge

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