Mintz et al v. Ethicon, Inc. et al
Filing
11
MEMORANDUM OPINION AND ORDER granting 10 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss With Prejudice re: 1 Complaint, as more fully set forth herein; this case is DISMISSED with prejudice. Signed by Judge Joseph R. Goodwin on 12/4/2015. (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:
Mintz, et al. v. Ethicon, Inc., et al.
Civil Action No. 2:14-cv-24093
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 10]. Plaintiffs have 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
8],
entered
on
September 25, 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. 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 8], at 3–6 (applying the Wilson
factors to the plaintiffs’ case)).1 Concluding that the first three factors weighed in favor of sanctions
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).
as requested by Ethicon, I nevertheless declined to award the requested sanction of $100 for each
day the plaintiffs' 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 plaintiffs “a final chance to comply with discovery.” (Id. at 6–7). I afforded the plaintiffs 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, the plaintiffs have again refused to comply with this court’s orders and did
not provide Ethicon with their PPF within the 30-day period. Consequently, Ethicon moved to
dismiss the case 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 the plaintiffs have continued
to blatantly disregard, I find that dismissal with prejudice is now appropriate. For the reasons
explained in my September 25, 2015 Order [Docket 8], it is ORDERED that Ethicon’s Motion to
Dismiss with Prejudice [Docket 10] is GRANTED, and 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: December 4, 2015
2
I also ordered plaintiff's counsel to send a copy of the order to the plaintiffs via certified mail, return receipt
requested, and file a copy of the receipt (id. at 7), and counsel has complied [Docket 9].
2
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