Thompson v. Cook Incorporated et al
Filing
27
MEMORANDUM OPINION AND ORDER dismissing plaintiff's claims against defendants Cook Incorporated, Cook Biotech, Inc., and Cook Medical, LLC with prejudice; because no other defendants remain in the case, the plaintiff's case is closed and stricken from the docket. Signed by Judge Joseph R. Goodwin on 8/29/2017. (cc: plaintiff, via certified mail, return receipt requested; counsel of record) (brn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:
COOK INCORPORATED,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2440
THIS DOCUMENT RELATES TO:
Delana R. Thompson v. Cook Inc., et al.
Civil Action No. 2:13-cv-31208
MEMORANDUM OPINION AND ORDER
On July 21, 2017, pursuant to Rules 16(a)(5) and 37(b)(2)(A) of the Federal Rules of Civil
Procedure, I granted a motion to show cause and took under advisement a motion to dismiss made
by defendants Cook Incorporated, Cook Biotech, Inc., and Cook Medical, LLC (formerly known
as Cook Medical, Inc.) (“Cook”) for the plaintiff’s failure to appear at a mandatory settlement
conference. [ECF No. 23]. 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 ruling on a motion to dismiss under Rule 37(b)(2)(A). See Order at 4–6 [ECF
No. 23] (applying the Wilson factors to Ms. Thompson’s case).1 Concluding that the first three
factors weighed in favor of sanctions as requested by Cook, I nevertheless declined to award
dismissal 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 ordered that the plaintiff
pay Cook a $500.00 monetary sanction and that, in the event the plaintiff failed to pay Cook
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. 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).
$500.00 within thirty days, the plaintiff’s claims against Cook would be dismissed with prejudice
without further notice to the plaintiff. I also directed the Clerk to send a copy of the Order to the
plaintiff via certified mail, return receipt requested, and to post the Order on the court’s website
for thirty days. On August 23, 2017, Cook advised me that the plaintiff has not complied with my
Order. In addition, the plaintiff has not filed a pleading or responded to my Order.
Accordingly, the court ORDERS that the plaintiff’s claims against Cook are DISMISSED
with prejudice. Because no other defendants remain in the case, the plaintiff’s case is closed and
stricken from the docket.
The court DIRECTS the Clerk to send a copy of this Order to the plaintiff via certified
mail, return receipt requested, and to counsel.
ENTER:
2
August 29, 2017
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