Opinion
Civil Action No. 00-3513, Section "C" (5)
January 23, 2003
Before the Court is Defendants', Metabolife International, Inc.'s and Mike Ellis' ("Metabolife") Motion to Dismiss for Failure to Respond to Discovery (Rec. Doc. 218) and Plaintiffs' Motion for Leave of Court to Update in Response to Motion to Dismiss. (Rec. Doc. 227). For the following reasons Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Accordingly, Plaintiffs' motion to update is DENIED.
On November 19, 2002, Magistrate Chasez granted Metabolife's motion to compel discovery responses and ordered Plaintiffs to respond to written discovery by December 3, 2002, or have their claims dismissed with prejudice. (Rec. Doc. 205). Plaintiffs moved for an extension, which the magistrate granted and permitted Plaintiffs to make a "rolling production" of the discovery responses, including signed medical authorizations, which was to be completed no later than December 20, 2002. (Rec. Doc. 213).
Plaintiffs then filed a motion set for hearing before the magistrate judge for an extension of time concerning the December 20, 2002 deadline. Contrary to Defendants' representation to the Court that the magistrate denied this motion ( see Rec. Doc. 229, p. 2), on January 8, 2003, the magistrate judge deferred the issue stating that "the motion for extension of time, will by necessity, be resolved by the Chief Judge in the context of defendants' pending motion to dismiss." (Rec. Doc. 228).
Defendants contend that seventy-one plaintiffs failed to comply with the December 20, 2002 deadline. These seventy-one plaintiffs include: sixty-nine (69) plaintiffs who have failed respond to written discovery; and three (3) plaintiffs who have responded but have failed to provide signed medical authorizations, which would permit Metabolife to obtain their medical records directly from their healthcare providers.
According to Defendants, Brenda Cherry-Milson (398) provided a medical authorization signed by another individual. Sandra A. Williams (35) and Latioka L. Williams provided medical authorizations instructing the healthcare provider to produce medical records to counsel for plaintiff rather than to Metabolife directly.
Plaintiffs counter that they are attempting to contact these individuals by certified mail and that Metabolife has failed to show that untimely responses have caused any prejudice. Further, Plaintiffs submit that with respect to the three defective responses, Metabolife has failed to make a showing of good cause to warrant dismissal of these three claims with prejudice. Plaintiffs submit they will remedy these defects in short order.
While this motion was pending, on January 10, 2003, Plaintiff filed the subsequent Motion to Update, wherein, Plaintiffs seek to prevent the dismissal with prejudice of sixteen (16) plaintiffs, who have completed and tendered proper discovery responses to Metabolife after the December 20, 2002 deadline.
Included in this list of sixteen plaintiffs are Brenda Cherry-Wilson, Sandra A. Williams and Latioka L. Williams, all of whom according to Plaintiffs have cured their defective yet timely responses.
Metabolife counters that the magistrate's order was unequivocal and that all sixteen of these plaintiffs must be dismissed for failure to timely respond. Further, Metabolife submits that as of January 13, 2003, it has only received discovery responses from four (4) of the sixteen (16) listed persons in Plaintiffs' motion to update. Additionally, Metabolife submits that on January 9, 2003, it received discovery responses from Donna V. Caronna (543), a person who was included in Metabolife's motion to dismiss but not included on Plaintiffs motion to update. (Rec. Doc. 229, p. 3).
Metabolife received discovery responses from Nellie Calvey (111) on January 9, 2003; from Woodrow Calvey (109) on January 9, 2003; from Cynthia Richardson (398) on January 8, 2003; and from Mary Ann Schiro (592) on January 8, 2003. (See Rec. Doc. 229, Exs. C D).
Upon review of the motions, memorandum, the record as a whole, and the applicable law pursuant to Rule 37(2)(C) of the Federal Rules of Civil Procedure, IT IS ORDERED that Defendants', Motion to Dismiss for Failure to Respond to Discovery is GRANTED with respect to the sixty-nine (69) plaintiffs who failed to respond to written discovery by December 20, 2002. IT IS FURTHER ORDERED that Defendants' Motion is DENIED with respect to Brenda Cherry-Wilson, Sandra A. Williams and Latioka L. Williams, all of whom timely responded with defective responses, which Plaintiffs have subsequently cured. The parties shall bear their own costs.
The Court notes the duration of this ongoing discovery dispute and the fact that by Court Order, dated May 2, 2002, sixty-one (61) plaintiffs were dismissed in this matter for failure to respond to written discovery and again on October 28, 2002, an additional forty-nine (49) plaintiffs were dismissed for failure to comply with the Court's Order to supply proof of claim forms.
IT IS FURTHER ORDERED that Plaintiffs' Motion for Leave of Court to Update in Response to Motion to Dismiss is DENIED.