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In re Phenylpropanolamine

United States District Court, W.D. Washington
Jan 20, 2004
MDL NO. 1407 (W.D. Wash. Jan. 20, 2004)

Opinion

MDL NO. 1407

January 20, 2004


ORDER GRANTING DEFENDANT CHATTEM, INC.'S AND THE DELACO COMPANY'S MOTION TO DISMISS FOR PLAINTIFFS' FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY


THIS MATTER comes before the Court on Chattem, Inc. and The Delaco Company's (collectively, "defendants") September 10, 2003 Motion to Dismiss for Plaintiffs' Failure to Comply with Court-Ordered Discovery. On March 18, 2002, 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. Defendants now move pursuant to Federal Rules of Civil Procedure 37 and 41 to dismiss the plaintiffs identified in Appendix A of this Order.

The history of this motion merits brief explanation. On July 17, 2003, defendants filed a motion to dismiss the claims of plaintiffs subject to this motion, among others. That motion was unopposed, and it was granted on August 20, 2003. Subsequently, however, defendants were made aware of the concerns of certain plaintiffs regarding service of the July 17, 2003 motion, and the parties jointly requested that the Court set aside the August 20, 2003 Order. On September 15, 2003, this Court set aside the August 20, 2003 Order. Defendants re-filed their motion on September 10, 2003, noting that in the interim, some plaintiffs had served fact sheets, and that these plaintiffs, although included in the July 17, 2003 motion, were omitted from the September 10, 2003 motion. Further, between defendants' re-filing of their motion and the present time, the motion has become moot as to all but the following plaintiffs listed on Appendix A to this Order: Lola Whitehead, Jerry Bates, Elvira Tollman, Helen Green, Enter Renoir, Eileen M. Wright, and William Huff. 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 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.

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 serve 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 cases 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 CMO 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 an opposition on behalf of only one of the plaintiffs, William Huff. Huff argues that his PFS was served on September 15, 2003. Huff's PFS, however, was due on May 8, 2003, and defendants sent him a warning letter on May 12, 2003. Huff did not serve his PFS until five days after defendants re-filed this motion. His delay in providing this information is inexcusable for all the reasons stated above.

Another opposition was filed on behalf of some plaintiffs with regard to whom this motion is now moot. Therefore, the Court need not resolve the dispute that arose regarding whether that opposition was filed in a timely manner. In addition, Plaintiffs' Motion for Leave to File a Surreply is moot, because defendants' motion is moot as to the plaintiffs seeking leave.

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.

APPENDIX A

Docket Number Plaintiff Name

02-1371 Lola Whitehead

02-1760 Jerry Bates

02-1857 Elvia Tillman

02-1858 Helen Green

02-1859 Etter Lenoir

03-1880 Eileen M. Wright

03-74 William Huff


Summaries of

In re Phenylpropanolamine

United States District Court, W.D. Washington
Jan 20, 2004
MDL NO. 1407 (W.D. Wash. Jan. 20, 2004)
Case details for

In re Phenylpropanolamine

Case Details

Full title:IN RE: PHENYLPROPANOLAMINE (PPA) PRODUCTS LIABILITY LITIGATION, This…

Court:United States District Court, W.D. Washington

Date published: Jan 20, 2004

Citations

MDL NO. 1407 (W.D. Wash. Jan. 20, 2004)