Riley v. American Medical Systems, Inc.

Filing 20

MEMORANDUM OPINION AND ORDER granting 18 RENEWED MOTION by American Medical Systems, Inc. to Dismiss Plaintiff Starla M. Riley's Complaint With Prejudice for Failure to Comply with Pre-Trial Order #223, as more fully set forth herein. AMS is DISMISSED with Prejudice. Signed by Judge Joseph R. Goodwin on 6/20/2017. (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:

AMERICAN MEDICAL SYSTEMS, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2325
______

THIS DOCUMENT RELATES TO:

Starla M. Riley v. American Medical Systems, Inc.
Civil Action No. 2:14-cv-21376

MEMORANDUM OPINION AND ORDER
Pending before the court is defendant, American Medical Systems, Inc.’s
(“AMS”) Motion to Dismiss with Prejudice. [ECF No. 18]. 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.
AMS’s Motion arises from this court’s Order [ECF No. 17], entered on March
21, 2017, denying AMS’s first Motion to Dismiss with Prejudice for failure to serve a
Plaintiff Fact Sheet (“PFS”) in compliance with Pretrial Order (“PTO”) # 223. 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 4–6 [ECF No. 17] (applying the Wilson factors to the plaintiff’s
case). 1 Concluding that the first three factors weighed in favor of sanctions as
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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requested by AMS, 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 # 223. I afforded her 30 days from the entry of the Order to submit to AMS a
completed PFS, with the caveat that failure to do so may result in dismissal of AMS
as a defendant in her case upon motion by AMS. Despite this warning, the plaintiff
has again failed to comply with this court’s orders and did not provide AMS with her
PFS within the 30-day period. Consequently, AMS 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 AMS is now appropriate.
For the reasons explained in my March 21, 2017 Order [ECF No. 17], it is ORDERED
that the defendant’s Motion to Dismiss [ECF No. 18] is GRANTED, and AMS 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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June 20, 2017