Opinion
Case No. 1:01-CV-9000, (MDL Docket No. 1401).
December 5, 2005
MEMORANDUM AND ORDER
I.
For the reasons stated below, the Court now ORDERS as follows. John A. Girardi, who is counsel for the Knights, shall appear in person before the Court on December 19, 2005 at 3:00 p.m., and SHOW CAUSE why he should not be held in contempt of Court.
Mr. Girardi shall be released from his obligation to appear and show cause if, and only if, the following occurs before 12:00 noon on December 16, 2005: (1) Mr. Girardi files in state court a motion to dismiss with prejudice the entire case known as Knight v. Sulzer Orthopedics, Inc., case no. BC-320467, Superior Court of the State of California, Los Angeles Cty.; (2) the state court grants that motion; (3) Mr. Girardi submits to this Court a sworn affidavit averring that he has complied with these provisions, together with a copy of the state court order of dismissal; and (4) Mr. Girardi complies with the directives this Court set out in its earlier Injunction Order.
In its Knight Injunction Order, the Court directed: "The Court ORDERS that counsel for the Knights shall: (1) immediately transmit a copy of this Order to (a) their clients, and (b) the relevant state court; and (2) thereafter submit to this Court a letter confirming compliance with this provision." See docket no. 3006 at 1. The Court has not yet received any letter from the Knights.
Finally, the Court ORDERS Sulzer to transmit a copy of this Order to the relevant state court.
II.
Earlier, defendant Sulzer filed a motion asking this Court to enjoin the continued prosecution of the case of Knight v. Sulzer Orthopedics, Inc., case no. BC-320467, Superior Court of the State of California, Los Angeles Cty. Sulzer explained that the plaintiffs in that case, Valerie and Adam Knight: (1) are members of the Settlement Class in this Multi-District Litigation; (2) did not opt out of the Settlement Agreement; and (3) were, accordingly, bound by all of the terms of the Settlement Agreement, including provisions prohibiting them from pursuing claims in other fora related to the implantation of an Affected Product. The Court found this motion well-taken and granted the requested relief on September 27, 2005, "enjoin[ing] the continued prosecution by the Knights of their claims in state court." Order at 8 (docket no. 3006) (" Knight Injunction Order"). This Order applied equally, of course, to the Knights and also to any attorney acting as their agent.
The Knights did not take an appeal from the Knight Injunction Order. Thereafter, however, counsel for the Knights appeared in state court and indicated an intention to proceed with some of the claims stated in the Knights' complaint. Because this conduct appeared to be in direct contravention of the Knight Injunction Order, Sulzer has filed a motion asking this Court to enforce the Knight Injunction Order and to impose sanctions upon the Knights. See docket no. 3029. The Knights have not opposed this motion.
Also, the Knights have not pursued the Court's suggestion that they might still be eligible to obtain Settlement benefits by seeking a CAP 29 extension of time. See Knight Injunction Order at 9-10.
Sulzer's unopposed motion for immediate injunctive relief and for sanctions appears well-taken, and the Court believes it could reasonably grant the motion in full right now. Rather than imposing sanctions at this juncture, however, the Court concludes it is appropriate to first allow counsel for the Knights to: (1) appear in person to explain why sanctions should not be imposed; and (2) avoid any chance for sanction, and a hearing thereon, by submitting materials to this Court showing the state court case has been dismissed with prejudice. Accordingly, the Court directs the parties to comply with the directives set out above in section I of this Order.