Davis v. Boston Scientific Corp. et al

Filing 10

MEMORANDUM OPINION AND ORDER granting 9 MOTION by Boston Scientific Corp. to Dismiss, as more fully set forth herein. This case is DISMISSED without prejudice. Signed by Judge Joseph R. Goodwin on 4/14/2016. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:

BOSTON SCIENTIFIC CORP.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2326
______

THIS DOCUMENT RELATES TO:

Davis v. Boston Scientific Corp., et al.

Civil Action No. 2:12-cv-4019

MEMORANDUM OPINION AND ORDER
Pending before the court is Boston Scientific Corp.’s (“BSC”) Motion to Dismiss
[ECF No. 9]. The plaintiff has not responded, and the deadline for responding has
expired. Thus, this matter is ripe for my review. For the reasons stated below, the
motion is GRANTED.
BSC’s Motion arises from this court’s Order [ECF No. 8], entered on January
12, 2016, denying BSC’s Motion to Dismiss, including monetary penalties, dismissal
and any other sanction deemed appropriate by the court, for failure to serve a Plaintiff
Profile Form (“PPF”) in compliance with Pretrial Order (“PTO”) # 16. In reaching this
decision, I relied on Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (4th Cir.
1977), in which the Fourth Circuit identified four factors that a court must consider
when reviewing a motion to dismiss on the basis of noncompliance with discovery.

See Order at 4–7 [ECF No. 8] (applying the Wilson factors to Ms. Davis’s case).1

The Wilson factors are as follows: (1) Whether the noncomplying party acted in bad faith; (2) the
amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry
into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular
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Concluding that the first three factors weighed in favor of sanctions as requested by
BSC, I nevertheless declined to award the requested sanctions of either dismissal or
monetary sanctions because it would offend the court’s duty under Wilson’s fourth
factor, which is to consider the effectiveness of lesser sanctions. In recognition of this
duty, I gave the plaintiff a final chance to comply with the deadlines set forth in PTO
# 16. I afforded her 30 business days from the entry of the Order to submit to BSC a
completed PPF, with the caveat that a failure to do so may result in dismissal of her
case upon motion by BSC. Despite this warning, Ms. Davis has again failed to comply
with this court’s orders and did not provide BSC with her PPF within the 30-day
period. Consequently, BSC moved to dismiss this case.
The plaintiff has named John Does # 1–10 as defendants in this case.
Judgment may not be entered against unnamed parties such as John Does # 1–10.

See Price v. Marsh, No. 2:12-cv-05442, 2013 WL 5409811, at *5 (S.D.W. Va. Sept. 25,
2013) (“I simply do not see how it could be possible for a plaintiff to “allege ‘enough
facts to state a claim to relief that is plausible on its face’…without knowing the
identity of the party against whom the claim is being asserted. Moreover, the Fourth
Circuit has determined that a judgment may not be entered against a John Doe
defendant.” (internal citations omitted)). Accordingly, Defendants John Doe 1 – 10
are hereby DISMISSED from this action.
Because the less drastic sanction instituted against Ms. Davis has had no effect
on her compliance with and response to this court’s discovery orders, which she has

sort of noncompliance; and (4) the effectiveness of less drastic sanctions. Mut. Fed. Sav. & Loan
Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (citing Wilson, 561 F.2d at 503–06).

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continued to blatantly disregard, I find that dismissal is now appropriate. For the
reasons explained in my January 12, 2016 Order [ECF No. 8], it is ORDERED that
the defendant’s Motion to Dismiss [ECF No. 9] is GRANTED, and the plaintiff’s case
is DISMISSED without prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: April 14, 2016

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