Dible v. Ethicon, Inc. et al

Filing 15

MEMORANDUM OPINION AND ORDER granting 13 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice for Plaintiff's Failure to Serve her Plaintiff Profile Form, as more fully set forth herein. This case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 9/1/2015. (cc: counsel of record; any unrepresented party) (ts)

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

ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2327
______

THIS DOCUMENT RELATES TO:
Dible, v. Ethicon, Inc., et al.

Civil Action No. 2:13-cv-15626

MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion to Dismiss with Prejudice filed by Ethicon, Inc. and
Johnson & Johnson (collectively “Ethicon”). [Docket # 13]. Plaintiff has not responded, and the
deadline for responding has expired. Thus, this matter is ripe for my review.
Ethicon’s Motion arises from this court’s Order [Docket # 12], entered on June 10, 2015,
denying Ethicon’s Motion for Sanctions, including monetary penalties, dismissal and any other
sanction deemed appropriate by the court, for failure to file a Plaintiff Profile Form (“PPF”) in
compliance with Pretrial Order # 17 [Docket # 9]. 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 [Docket # 12], at 3–6 (applying the Wilson factors to
Ms. Dible’s case)).1 Concluding that the first three factors weighed in favor of sanctions as

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 sort of
noncompliance; and (4) the effectiveness of less drastic sanctions.

requested by Ethicon, I nevertheless declined to award the requested sanction of $100 for each day
the plaintiff's PPF was late 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 discovery.” (Id. at 7). I afforded her 30 business days from
the entry of the Order to submit to Ethicon a completed PPF, with the caveat that a failure to do so
“will result in dismissal with prejudice upon motion by the defendant.” (Id.).2 Despite this warning,
Ms. Dible has again refused to comply with this court’s orders and did not provide Ethicon with
her PPF within the 30-day period. Consequently, Ethicon moved to dismiss the case with prejudice.
Because the less drastic sanction instituted against Ms. Dible has had no effect on her
compliance with and response to this court’s discovery orders, which she has continued to blatantly
disregard, I find that dismissal with prejudice is now appropriate. For the reasons explained in my
June 10, 2015 Order [Docket # 12], Ethicon’s Motion to Dismiss with Prejudice [Docket # 13] is
GRANTED. This case is DISMISSED with prejudice. The court DIRECTS the Clerk to send a
copy of this Order to counsel of record and any unrepresented party.
ENTER: September 1, 2015

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).
2
 I also ordered plaintiff's counsel to send a copy of the order to the plaintiff via certified mail, return receipt
requested, and file a copy of the receipt (id. at 7), and counsel has complied [Docket # 14].  

2