Opinion
MDL NO. 1407
January 22, 2004
THIS MATTER comes before the Court on Chattem, Inc, and The Delaco Company's (collectively, "defendants") October 27, 2003 Motion to Dismiss for Plaintiffs' Failure to Comply with Court- Ordered Discovery. On March 18, 2000, the Court entered Case Management Order ("CMO") No. 6 in which the Court set a schedule and protocol for conducting all case-specific fact discovery within MDL 1407. Specifically, CMO No. 6 requires each plaintiff to complete a Plaintiff Fact Sheet ("PFS") and serve it upon Defendants within forty-five days of receipt of the PFS. On May 2, 2003, the Court entered CMO No. 13, requiring counsel for plaintiffs naming more than one manufacturing defendant in their complaint to file and serve an affirmation setting forth the PPA product or products allegedly ingested by each plaintiff and the defendant or defendants whom the plaintiff claims is the manufacturer of those products. Under CMO Nos. 13 and 13A, which the Court entered on June 21, 2003, a defendant who is not named in the affirmation can move to dismiss the claims against it.
Defendants now move to dismiss the plaintiffs in the cases identified in Appendix A of this Order for either failing to file affirmations or Plaintiffs Fact Sheets ("PFS"), pursuant to CMO 6, or for failing to identify defendants' products in the affirmations or PFS that were filed. Since the time this motion was filed, Defendants have informed the Court that they have withdrawn the motion as to the following plaintiffs: Mildred Schlegel, Carol Adams, DeAnno Fetzer, and Anna Faye Miller. Having reviewed the pleadings filed in support of and in opposition to this motion, the Court finds and rules as follows:
I. DISCUSSION
Before dismissing a case for non-compliance with court-ordered discovery, the Court must weigh five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), in the present case, plaintiffs have failed to timely file fact sheets as required by CMO No, 6. Accordingly, the Court finds that dismissal is appropriate in light of the factors set forth in Malone.
As a result of the dismissal of plaintiffs' claims against defendants for failure to comply with CMC No. 6, the Court need not reach defendants' arguments with respect to plaintiffs' alleged violations of CMO No. 13.
First, both the public's interest in the expeditious resolution of litigation and the court's need to manage its docket dictate dismissal. The plaintiffs subject to this Order have failed to fulfill their obligation to move their cases forward. Such lack of diligence does not servo the public interest in expeditious resolution of litigation.See Nourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) ("dismissal in this instance serves the public interest in expeditious resolution of litigation as well as the court's need to manage the docket because Plaintiff's noncompliance has caused the action to come to a complete halt, thereby allowing Plaintiff to control the pace of the docket rather than the Court").
Second, the unreasonable delay in completing the fact sheets prejudices the Defendants' ability to proceed with the cases effectively. The PFS is designed to give each defendant the specific information necessary to defend the case against it. Without that discovery device, a defendant is unable to mount its defense because it has no information about the plaintiff or the plaintiff's injuries outside the allegations of the complaint, The unreasonable delay in producing this information, therefore, severely prejudices the Defendants, warranting dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002).
Third, inasmuch as the disposition of cases should be on the merits, here, in light of the inability of the named plaintiffs to provide any information regarding the critical elements of their claims, it is impossible to dispose of the case on the merits. Plaintiffs are uniquely in the possession of the information being sought. Their inability or unwillingness to furnish this information is not excusable. See In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir 1996) ("policy [of disposing cages on their merits] lends little support to appellants, whose total refusal to provide discovery obstructed resolution of their claims on the merits.["].
Last, there are no less drastic sanctions remaining. All the plaintiffs at issue have received warning letters from the defendants. The Court has already imposed the sanction of preventing remand of the cases where discovery requirements have not been met. See CMC 10 ¶ 2 (Nov. 21, 2002). The Court also ordered that the time for completing case-specific discovery will not begin to run until a substantially complete PFS has been provided to defendants. Id. ¶ 3, In the situation where the Court has been lenient and provided plaintiffs with second and third chances following procedural defaults, "further default may justify imposition of the ultimate sanction of dismissal with prejudice." Malone, 833 F.2d at 132 n. 1 (quotingCallip v. Harris County Child Welfare Dep't. 757 F.2d 1513, 1521 (5th Cir. 1985)).
The Court received oppositions on behalf of only three plaintiffs: Sara Williams, Doris Bonds and Linda DeWoody. Plaintiff Sara Williams does not claim to have filed a PFS, but draws the Court's attention to a motion to amend her complaint to substitute another defendant for Chattem, Inc. and The Delaco Company. This motion has been granted, and defendants' motion is moot as to Sara Williams.
Counsel for Doris Bonds and Linda DeWoody filed an opposition for these two plaintiffs. With respect to Doris Bonds, whose PFS was served only after defendants' motion was filed, counsel explains that he suffered serious injuries in February and June of 2003, and was unable to return to work until August of that year. With respect to Linda DeWoody, he concedes that she has yet to submit a PFS, but indicates that he has been unable to reach her. Defendants point out in reply that each of these plaintiffs received warning letters, and that at no time did counsel contact defendants to request an extension of time. Plaintiffs' failure comply with court-ordered discovery, and failure to seek additional time within which to do so, is inexcusable for all the reasons stated above.
Accordingly, the Court finds it appropriate to dismiss the named plaintiffs' claims against defendants with prejudice. For the foregoing reasons, defendants' motion to dismiss for failure to comply with court-ordered discovery is GRANTED. The claims by the plaintiffs listed in Appendix A against Chattem, Inc. and The delaco Company are DISMISSED with prejudice.
Exhibit 1
A B C D E F G H I J K PFS Date MDL Date PFS Warning Affirmation Docket Date Action Docketed PFS Date Date Letter Affirmation Date Number Case Name Plaintiff Name State Commenced in MDL Due Rec'd Sent Due Date Received 1 CO3-610 McColley, Sheila Marie McColley, Sheila Mane N.J. 11/04/02 06/15/03 08/18/03 09/12/03 no aff. due 6 CO3-0630 Small, Kametha Small, Kametha TX 11/06/02 06/14/03 08/18/03 09/12/03 no aff. due 8 CO3-1101 Britton. Sandra Allen Linda MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 9 CO3-1101 Britton, Sandra Barley, Mike MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 10 CO3-1101 Britton, Sandra Blackwelder, Josie MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 11 CO3-1101 Britton, Sandra Britton, Sandra MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 12 CO3-1101 Britton, Sandra Bums, Laura L. MS 02/12/03 07/03/03 09/15/03 09/Z2/03 08/02/03 13 CO3-1101 Britton, Sandra Cook, Loretta MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 14 CO3-1101 Britton, Sandra Couch, Mary Sue MS 03/12/03 07/03/03 09/15/03 09/22/03 08/02/03 15 CO3-1101 Britton, Sandra Daniels, Nona MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 16 CO3-1101 Britton, Sandra Doh, Musa MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 17 C03-1101 Britton, Sandra Harris, Deborah MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 18 CO3-1101 Britton, Sandra Kaylor, American MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 19 CO3-1101 Britton, Sandra Madison, While MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 20 CO3-1101 Britton, Sandra Moms, Peggy Lynn MS 02/12/03 07/03/03 09/15/03 09/Z2/03 08/02/03 21 CO3-1101 Britton. Sandra Morris, Roy Wayne MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 22 CO3-1101 Britton, Sandra Otis. Daniel MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 23 CO3-1101 Britton, Sandra Pharo, Diana J. MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 24 CO3-1101 Britton, Sandra Powers, Carl MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 25 CO3-1101 Britton, Sandra Roberts, Rosa L MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 26 CO3-1101 Britton, Sandra Rosamond, Betty C. MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 27 CO3-1101 Britton, Sandra Strong, Leigh MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 28 CO3-1101 Britton, Sandra Sutton, Lois MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 29 CO3-1101 Britton, Sandra Walker, Pamela MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 30 CO3-1101 Britton, Sandra Walker, Toni MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 31 CO3-1101 Britton, Sandra Williams, Majoriette MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 32 CO3-1101 Britton, Sandra Wilson, Beverly MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 33 CO3-1101 Britton, Sandra Witcher, Desda MS 02/12/03 07/03/03 09/15/03 09/22/03 08/02/03 34 C03-0390 Banks, Kathleen Lashawn Banks, Kathleen Lashawn AL 11/04/02 04/10/03 08/15/03 08/27/03 06/02/03 05/14/03 35 C03-1342 Kell, Eunice Diane Kell, Eunice Diane AL 11/02/02 07/18/03 09/15/03 09/22/03 no aff. due 05/12/03 36 CO3-1094 Hill, Demetrius S. Hill, Demetrius S, AL 11/05/02 07/18/03 09/15/03 09/22/03 no aff.due 05/14/03 37 C03-0598 Bonds, Doris Bonds, Doris MS 12/27/02 04/30/03 08/18/03 09/12/03 06/02/03 06/25/03 38 C03-0596 Dewoody, Linda Dewoody, Linda MS 01/03/03 04/29/03 08/18/03 09/12/03 no aff.due 07/08/03