Fuentes v. Mentor Worldwide LLC et al

Filing 17

MEMORANDUM OPINION AND ORDER granting 16 MOTION by Coloplast Corp., Mentor Worldwide LLC to Dismiss, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 12/6/2017. (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:

Imelda Fuentes v. Mentor Worldwide LLC, et al.
Civil Action No. 2:13-cv-22598
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendants' Motion to Dismiss [ECF No. 16] filed
by Coloplast Corp. ("Coloplast") and Mentor Worldwide LLC ("Mentor"). 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.
Defendants' Motion arises from this court’s Order [ECF No. 14], entered on
October 20, 2017, denying defendants' first Motion to Dismiss for failure to serve a
Plaintiff Fact Sheet (“PFS”) 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 as requested by
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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defendants, 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 plaintiff a final chance to comply with the deadlines set forth in PTO # 124. I
afforded her 30 days from the entry of the Order to submit to defendants a completed
PFS, with the caveat that failure to do so may result in dismissal of her case with
prejudice upon motion by the defendants. Despite this warning, the plaintiff has
again failed to comply with this court’s orders and did not provide defendants with
her PFS within the 30-day period. Consequently, defendants moved to dismiss with
prejudice.
Because the less drastic sanction instituted against the plaintiff 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 dismissing the defendants with
prejudice is now appropriate. For the reasons explained in my October 20, 2017
Order, it is ORDERED that the Defendants' Motion to Dismiss [ECF No. 16] is
GRANTED.
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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December 6, 2017