McSpadden et al v. American Medical Systems, Inc.

Filing 69

MEMORANDUM OPINION AND ORDER The 62 MOTION by American Medical Systems, Inc. to Dismiss With Prejudice is GRANTED in part to the extent AMS seeks dismissal and DENIED insofar as AMS seeks dismissal with prejudice; the court ORDERS that the case is dismissed without prejudice and stricken from the court's docket. Signed by Judge Joseph R. Goodwin on 9/30/2019. (cc: counsel of record; any unrepresented party) (st)

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

__________________________________________________________
Joanne O’Toole v. American Medical Systems, Inc.

2:14-cv-025540

MEMORANDUM OPINION AND ORDER
Pending is a Motion to Dismiss Plaintiff Joanne O’Toole’s Complaint with
Prejudice for Failure to Comply with Pre-Trial Order # 280 filed by defendant
American Medical Systems, Inc. (“AMS”) on July 15, 2019. [ECF No. 62]. AMS cites
to plaintiff’s failure to timely serve a Plaintiff Fact Sheet (“PFS”) in violation of AMS
Pretrial Order # 280. In response, plaintiff’s counsel concedes that plaintiff has not
completed a PFS, but asserts dismissal should be without prejudice. [ECF No. 64].
Plaintiffs also failed to respond to requests for admission or the motion to deem those
requests for admission admitted, and the requests for admission were deemed
admitted by order entered September 5, 2019. [ECF No. 68]. 1
The court finds, pursuant to Rules 16 and 37 of the Federal Rules of Civil
Procedure and after weighing the factors identified in Wilson v. Volkswagen of Am.,

Inc., 561 F.2d 494, 503-06 (4th Cir. 1977), that this case should be dismissed without
prejudice for failure to provide a PFS in compliance with the court’s previous order.

1

The court is aware of plaintiff’s counsel’s desire to withdraw as counsel. [ECF No. 61].

Therefore, the court ORDERS that the Motion to Dismiss filed by AMS [ECF
No. 62] is GRANTED in part to the extent AMS seeks dismissal and DENIED insofar
as AMS seeks dismissal with prejudice.

The court ORDERS that the case is

dismissed without prejudice and stricken from the court’s docket.
The court DIRECTS the Clerk to send a copy of this order to counsel of record.
ENTER:

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September 30, 2019