Apuzzi v. American Medical Systems, Inc.

Filing 9

MEMORANDUM OPINION AND ORDER granting 8 MOTION by American Medical Systems, Inc. to Dismiss, as more fully set forth herein; this action is dismissed with prejudice. Signed by Judge Joseph R. Goodwin on 11/17/2016. (cc: counsel of record; any unrepresented party) (bdr)

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:

Apuzzi v. American Medical Systems, Inc.

Civil Action No. 2:14-cv-28603

MEMORANDUM OPINION AND ORDER
Pending before the court is defendant, American Medical Systems, Inc.’s
(“AMS”) Motion to Dismiss. [ECF No. 8]. 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. 6], entered on August 2,
2016 denying AMS’s Motion for Sanctions, including monetary penalties and
dismissal with prejudice, for failure to serve a Plaintiff Profile Form (“PPF”) in
compliance with Pretrial Order (“PTO”) # 19. 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
[ECF No. 6] (applying the Wilson factors to Ms. Apuzzi’s case).1 Concluding that the

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

first three factors weighed in favor of sanctions as requested by AMS, I nevertheless
declined to award the requested sanctions of either dismissal or monetary sanctions
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 # 19. I afforded
her 30 business days from the entry of the Order to submit to AMS a completed PPF,
with the caveat that a failure to do so may result in dismissal of AMS as a defendant
in her case upon motion by AMS. Despite this warning, Ms. Apuzzi has again failed
to comply with this court’s orders and did not provide AMS with her PPF within the
30-day period. Consequently, AMS moved to dismiss with prejudice.
Because the less drastic sanction instituted against Ms. Apuzzi 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 August 2, 2016 Order [ECF No. 6], it is ORDERED
that the defendant’s Motion to Dismiss [ECF No. 8] is GRANTED, and AMS is
DISMISSED with prejudice.

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).

2

The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

3

November 17, 2016