Opinion
MDL NO. 1407.
December 3, 2004
ORDER GRANTING IN PART AND DENYING IN PART WYETH'S MOTION TO DISMISS
Defendant Wyeth has filed a motion on behalf of all defendants, under Fed.R.Civ.P. 41(b) and/or 37(b) (2)(C), to dismiss plaintiffs listed on Attachment A for failure to timely serve a completed plaintiff fact sheet ("PFS") in accordance with Case Management Order 6 ("CMO 6"). Four groups of plaintiffs have filed oppositions, which the court addresses in turn below.
A. Fed.R.Civ.P. 41(b) and 37(b) (2)(C) Motion to Dismiss
Under both rules, the applicable standard for dismissal requires a court to evaluate 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 cases to which this motion pertains, defendant argues that these five factors weigh in favor of dismissal. Defendant asserts that plaintiffs' delay impedes the resolution of these disputes and the ability of the court to manage its docket, problems compounded by the complex nature of the multi-district litigation. Defendant also argues that plaintiffs' delay is prejudicial to defendant, impairing its ability to discover evidence before it is lost. Defendant also points out that it has sent warning letters to plaintiffs and that such warnings have gone unheeded. Finally, while public policy favors resolution of a case on its merits, plaintiffs' failure to allow discovery to proceed does nothing to ensure such resolution; in fact, quite the contrary.
The court has received four opposition briefs to defendant's motion, addressed in turn below.
B. Individual Plaintiffs' Oppositions
1. Thomas Taylor v. American Home Products, et al., C03-2983
Plaintiff Thomas Taylor has submitted an opposition brief, asserting that his failure to return his PFS to defendant in a timely manner is a result of excusable neglect on the part of his counsel. Counsel assert that delay is the fault of the irresponsible actions of a secretary in charge of completing and serving the PFS in accordance with CMO 6 (a secretary who subsequently quit without notice or a status report of cases under her purview). Apparently the secretary was representing to counsel that the CMO 6 deadlines were being met, when in fact they were not. Counsel were not alerted to this problem until they were served with the instant motion to dismiss. Two weeks after the filing of this motion, Wyeth was served the PFS.
The court finds that in this case counsel's oversight is a result of reasonable reliance on their secretary's misrepresentations, and therefore excusable neglect. Moreover, Wyeth — which did not file a brief in reply to Taylor's opposition — has apparently suffered little or no actual prejudice, nor has litigation been delayed unreasonably. The motion to dismiss as to this plaintiff is therefore DENIED.
2. Verna Dunlap v. Bayer, C04-353, etc.
This brief was filed on behalf of the following plaintiffs; Verna Dunlap, C04-353 (plaintiffs filed the brief in C04-14, the multi-party complaint, but motion was filed in C04-353); Loretta Harris, C04-351; Roy Allen Scott, C04-354; James Thigpen, C04-742 (plaintiffs filed the brief in C04-19, the multi-party complaint, but motion was filed in C04-742); C04-19; Arthur Council, C02-2611; Evelyn Rawls, C04-352; Betty Ruth Rainey, C04-741; Jennie Lee Tate, C04-740; and Charles Lauderdale, C04-379.
The law firm of Byrd, Gibbs and Martin has filed an opposition on behalf of a group of plaintiffs it represents in this MDL. Plaintiffs' brief is titled "Response to Defendant Wyeth's Motion to Dismiss with Prejudice for Failure to Comply with Court-Ordered Discovery Pursuant to CMO 6 on Behalf of All Defendants and/or Motion and Memorandum to Vacate Order Dismissing Claims with Prejudice for Failure to Substantially Comply with Case Management Orders 6 and 6A and Order Denying Motion for Reconsideration in Mississippi Cases and Memorandum of Law in Support Thereof." The embedded "Motion to Vacate" relating to Council v. Bayer, C02-2611, a case not subject to Wyeth's motion to dismiss, is an improper attempt to file a motion, and is hereby stricken. Moreover, the motion is wholly without merit, as this court has already dismissed Council and denied a motion for reconsideration.
As for the remainder of plaintiffs' brief devoted to opposing Wyeth's motion to dismiss, several plaintiffs claim they were never served with a 15-day warning letter, an assertion defendant disputes by way of affirmation. Plaintiffs argue, in essence, that since they were not served warning letters, they did not have an obligation under CMO 6 to serve a timely PFS.
Several plaintiffs claim they were not served such letters until several weeks after the instant motion was filed. Defendant admits these letters were sent, in error, and that a subsequent letter was sent to plaintiffs explaining this error. Plaintiffs appear to be claiming that these erroneously sent letters somehow "reset" the PFS deadline, an argument the court finds to be without merit.
Plaintiffs' argument in this respect is unavailing; it is CMO 6, not a warning letter, that triggers a plaintiff's responsibility to complete the fact sheet. It is undisputed in this case that plaintiffs were served the fact sheets. They do not submit any explanation whatsoever for failure to complete and return this court-ordered discovery in a timely fashion. Given plaintiffs' failure to offer explanation for their oversight, Wyeth's motion as to these plaintiffs is hereby GRANTED.
3. Shivers v. Rhodes Robby Drugs, Inc., C04-17
The plaintiffs in Shivers offer no excuse as to why they failed to submit a PFS in a timely fashion, though they represent that they served a PFS immediately upon the filing of this motion to dismiss. Nevertheless, plaintiffs also request dismissal of all defendants except Thompson Medical with prejudice, so that a pending settlement agreement with Thompson may be undisturbed. Defendant's reply does not include an objection to this request, and the court therefore GRANTS plaintiffs' request to dismiss all defendants but Thompson with prejudice. The motion to dismiss as to Thompson is DENIED.
Plaintiffs' request for the court to order Wyeth to uphold its purported agreement to stipulated dismissal is less well-received. Wyeth disputes that it promised to remove the Shivers case from its dismissal list, and instead only represented that it would do so only with permision of all defendants on whose behalf this motion was filed, permission that was not granted. Plaintiffs make no response. Their request is therefore denied.
4. "Certain Plaintiffs' Response"
Attorney W. Thomas McCraney, III filed an opposition on behalf of "Certain Plaintiffs," claiming that failure to file the timely fact sheets resulted from an administrative mix-up between lead and local counsel, on account of which counsel was not served the 30-day warning letter. Counsel also represents that he was distracted by an impending trial in another case, and was diligently working to complete individual complaints and fact sheets in these and other cases.
These excuses are unavailing. The purported mix-up was clearly immaterial to counsel's failure, as counsel was able to file a PFS in at least two of the cases to which the mix-up also was related, demonstrating that counsel was certainly aware of CMO 6 obligations. Moreover, the court has before rejected such administrative problems as an excuse for failure to respond to discovery in a timely manner, finding that "service of a PFS on any attorney designated as `lead attorney/attorney to be noticed' for a given plaintiff will be deemed sufficient" and "co-counsel representing a plaintiff will have the burden of properly coordinating representation." Malone v. Novartis Consumer Health, Inc., C03-210, June 22, 2004 Order Granting Motion for Reconsideration at 2. The remaining excuses — impending trial and deadlines for filing individual severed complaints — amount to little more than a description of the routine demands of legal practice, and do not excuse plaintiffs from filing a timely PFS or at the very least requesting an extension therefore.
C. Conclusion
No plaintiffs other than those discussed above filed objections to Wyeth's motion to dismiss. For the foregoing reasons, the motion to dismiss filed on behalf of all defendants is GRANTED as to those plaintiffs listed on Attachment A, except as to Taylor v. American Home Products, et al., C03-2983, and as to defendant Thompson in Shivers v. Rhodes Robby Drugs, Inc., C04-17, as to which the motion is DENIED.