Herrera v. Coloplast Corp.
MEMORANDUM OPINION AND ORDER The 24 MOTION by Coloplast Corp. to Dismiss and the 25 RENEWED CROSS-MOTION for an Order to be Relieved as Counsel are DENIED, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 3/6/2018. (cc: counsel of record; any unrepresented party) (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PELVIC SUPPORT SYSTEMS
PRODUCTS LIABILITY LITIGATION
MDL No. 2387
THIS DOCUMENT RELATES TO:
Barbara Herrera v. Coloplast Corp.
Civil Action No. 2:15-cv-01733
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant's Motion to Dismiss [ECF No. 24] filed
by Coloplast Corp. ("Coloplast"). The plaintiff has responded [ECF No. 25], and the
defendant has replied [ECF No. 26]. Also pending is the plaintiff’s Renewed CrossMotion for an Order to Be Relieved as Counsel [ECF No. 25], to which the defendant
has responded [ECF No. 26]. Thus, both matters are ripe for my review. For the
reasons stated below, the Motion to Dismiss [ECF No. 24] and the Cross-Motion for
an Order to Be Relieved as Counsel [ECF No. 25] are DENIED.
Defendant's Motion arises from this court’s Order [ECF No. 22], entered on
December 1, 2017, denying defendant's first Motion to Dismiss [ECF No. 19] for
plaintiff’s failure to meet and confer with defendant’s counsel to engage in good faith
discussions about the possibility of settlement in compliance with Pretrial Order
(“PTO”) # 134. 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 (applying the Wilson factors to the
plaintiff's case).1 Concluding that the first three factors weighed in favor of sanctions
as requested by defendant, 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 PTO # 134. I afforded
her thirty days from the entry of the Order to meet and confer with defendant to
discuss settlement, with the caveat that failure to do so may result in dismissal of her
case with prejudice upon motion by the defendant.
In response to the Order, on December 19, 2017, plaintiff’s counsel initiated a
telephonic meet-and-confer with defendant’s counsel and engaged in good faith
discussions about the possibility of settlement, but was unable to reach a resolution.
Pl.’s Opp’n to Def.’s Mot. to Dismiss ¶ 4 [ECF No. 25]. On February 6, 2018, defendant
filed a motion to dismiss with prejudice, on the basis that plaintiff’s counsel had failed
to engage in the court-ordered meet-and-confer. In its reply, the defendant conceded
that plaintiff’s counsel had in fact communicated regarding the possibility of
settlement, but continued to seek dismissal of the plaintiff’s case based on the
plaintiff’s apparent lack of interest in pursuing her claims. Def.’s Opp’n to Pl.’s CrossMot. & Reply in Further Supp. of Def.’s Mot. to Dismiss ¶ 1–2 [ECF No. 26].
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).
In addition, plaintiff’s counsel states that “[s]ignificant differences have arisen
and remain between [counsel and the plaintiff] as to the appropriate approach to our
representation of her in this case, and an irrevocable breach has developed.” Id. at ¶
8. Therefore, plaintiff’s counsel seeks leave to withdraw as counsel of record for the
By agreeing to appear on behalf of the plaintiff’s interest in this case, counsel
accepted the ethical responsibility to pursue this matter diligently and through to its
conclusion. Model Code of Prof’l Responsibility r. 1.3 (Am. Bar Ass’n 1980). Similar
ethical considerations “confer upon the client the ultimate authority to determine
the purposes to be served by legal representation.” Id. at r. 1.2. Attorneys, on the
other hand, are obliged to “abide by a client’s decisions” concerning the objectives of
representation. Id. (emphasis added). Fundamental disagreements with a client
permits an attorney to withdraw from the representation in certain cases, such as
cases wherein the disagreement is irreconcilable. Here, the court is reluctant to grant
counsel’s request as it is certain to disrupt the effective administration of justice. In
the absence of any persuasive argument that the present disagreement between
counsel and the plaintiff, as described by counsel, is a sufficient basis to support a
finding that irreconcilable differences exist—without more—I find that counsel has
failed to demonstrate the requisite good cause to withdraw as counsel under Local
Because plaintiff’s counsel did in fact engage in good faith discussions about
the possibility of settlement with defendant’s counsel, I FIND that the plaintiff has
made a good faith attempt at compliance with this court’s December 1, 2017 Order.
Therefore, it is ORDERED that the Defendant's Motion to Dismiss [ECF No. 24] is
DENIED. It is further ORDERED that the plaintiff’s Renewed Cross-Motion for an
Order to Be Relieved as Counsel [ECF No. 25] is DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and to any unrepresented party.
March 6, 2018
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