Daniels et al v. Mentor Worldwide LLC et al

Filing 26

MEMORANDUM OPINION AND ORDER The 23 MOTION by Coloplast Corp. to Dismiss is GRANTED and Coloplast is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 2/27/2018. (cc: counsel of record; any unrepresented party) (mek)

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

COLOPLAST CORP.,
PELVIC SUPPORT SYSTEMS
PRODUCTS LIABILITY LITIGATION

MDL No. 2387
______

THIS DOCUMENT RELATES TO:

Tammy L. Daniels, et al. v. Mentor Worldwide LLC, et al.
Civil Action No. 2:13-cv-22492
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant's Motion to Dismiss [ECF No. 23] filed
by Coloplast Corp. ("Coloplast"). The plaintiffs have responded [ECF No. 24], and the
defendant has replied [ECF No. 25]. Thus, this matter is ripe for my review. For the
reasons stated below, the motion is GRANTED.
Defendant's Motion arises from this court’s Order [ECF No. 22], entered on
October 19, 2017, denying defendant's first Motion to Dismiss for failure to serve a
Plaintiff Fact Sheet (“PFS”) [ECF No. 17] in compliance with Pretrial Order (“PTO”)
# 124. 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 (applying the Wilson factors to the
plaintiffs' case).1 Concluding that the first three factors weighed in favor of sanctions
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. 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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as requested by defendant, I nevertheless declined to award the requested sanction
of dismissal with prejudice 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 plaintiffs a final chance to comply with the deadlines set forth
in PTO # 124. I afforded them thirty days from the entry of the Order to submit to
defendant a completed PFS, with the caveat that failure to do so may result in
dismissal of their case with prejudice upon motion by the defendant. Despite this
warning, the plaintiffs have again failed to comply with this court’s orders and did
not provide defendant with a completed PFS within the thirty-day period.
Consequently, defendant moved to dismiss with prejudice.
Because the less drastic sanction instituted against the plaintiffs has had no
effect on their compliance with and response to this court’s discovery orders, which
they have continued to blatantly disregard, I find that dismissing the defendant with
prejudice is now appropriate. For the reasons explained in my October 19, 2017
Order, it is ORDERED that the Defendant's Motion to Dismiss [ECF No. 23] is
GRANTED, and Coloplast is DISMISSED with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

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February 27, 2018