Opinion
CIVIL ACTION NO. 1:16-cv-2105
12-28-2018
CARL WEIDENHOF, et al., Plaintiffs v. ZIMMER INC., et al., Defendants
(KANE, D.J.) ()
REPORT AND RECOMMENDATION
INTRODUCTION
On March 3, 2009, Carl Weidenhof had knee replacement surgery. He believes the replacement was defective because the artificial knee has caused him great pain. He hired two law firms who filed a complaint on his behalf in 2012 in the Eastern District. His case was transferred to a multi-district litigation court. After two years his case was remanded because the artificial knee he had was not one of the products in the MDL case. Six months later his lawyers withdrew from the case. Since August of 2015 He and his wife have been trying, pro se, to advance a claim against a product manufacturer that his knee implant was defective. THE CURRENT MOTION
Currently pending before the Court is Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint. (Doc. 62). Along with their Motion, Defendants filed a brief in support. (Doc. 63).
On June 18, 2018, I issued an Order advising Plaintiff of his obligation to file brief in opposition pursuant to this Court's Local Rules. (Doc. 64). To date, Plaintiff has not filed a brief in opposition.
For the reasons that follow, IT IS RECOMMENDED that Plaintiffs' Second Amended Complaint be DISMISSED without leave to amend. I. BACKGROUND AND PRODEDURAL HISTORY
On June 7, 2011, upon the filing of a Motion to Transfer, the Judicial Panel on Multi-District Litigation ("MDL Panel") consolidated numerous cases filed in approximately thirteen (13) judicial districts across the country alleging that "high-flex" femoral components (e.g., the Cruciate Retaining (CR) and Legacy Posterior Stabilized (LPS) components, and the "Gender Solutions" versions thereof) and the MIS Tibial component manufactured by Zimmer are prone to premature loosening. See Zimmer NexGen Knee Implant Products Liability Litigation, MDL No. 2272 (J.P.M.L. 2011) (hereinafter "Zimmer MDL I"). On August 8, 2011, the MDL Panel issued an Order transferring these cases to the Northern District of Illinois for pretrial proceedings pursuant to 28 U.S.C. § 1407. See In re: Zimmer NexGen Implant Products Liability Litigation, 1:11-cv-5468 (N.D. Ill. 2011) (hereinafter "Zimmer MDL II").
On April 13, 2012, Plaintiffs Carl and Dena Weidenhof filed their Original Complaint against Defendants Zimmer Inc., Zimmer Holdings, Inc., and Zimmer Orthopaedic Surgical Products, Inc. in the Eastern District of Pennsylvania. (Doc. 1). Plaintiffs' Original Complaint incorporated the Master Long Form Complaint filed in the MDL action. Id. at 1. In their Original Complaint, Plaintiffs alleged that, on March 3, 2009, Mr. Weidenhof received a Zimmer NexGen LPS-Flex knee implant device, and sustained injuries resulting from this device. Id. at 3-4. Plaintiffs advanced the following counts: (1) strict liability due to design defect; (2) strict liability due to failure to warn; (3) strict liability due to manufacturing defect; (4) negligence; (5) negligent misrepresentation; (6) express warranty; (7) breach of express warranty; (8) breach of implied warranty; (9) loss of consortium; (10) violation of 73 P.S. § 201-1 et seq.; (11) unjust enrichment; and (12) punitive damages. Id. at 36-129.
On April 24, 2012, the MDL Panel issued a Conditional Order transferring Weidenhof I to the Northern District of Illinois. Zimmer MDL I, (Doc. 586). On May 2, 2012, the MDL Panel's Conditional Order became final. Zimmer MDL I, (Doc. 603); Zimmer MDL II, (Doc. 463); (Doc. 2).
On July 1, 2014, Defendants filed a Motion requesting that the MDL Judge issue a Suggestion of Remand because the devices implanted in Mr. Weidenhof's knee did not fall within the scope of the MDL Panel's August 2011 Transfer Order. Zimmer MDL II, (Doc. 1114). In support of their Motion, Defendants attached an appendix that identified the products used in Mr. Weidenhof's knee as: NexGen LPS Femoral Component Porous (00-5992-017-92, 60632511); NexGen MIS TM Tibial Tray (00-5954-047-01, 61121230; and Nex Gen LPS-Flex Articular Surface (00-5964-042-10, 60852617). Zimmer MDL II, (Doc. 1115-1). Defendants argued that the MDL Judge had previously ruled that the "TM" or "Trabecular Metal" Tibial Tray and NexGen LPS-Flex Articular Surface components were outside the scope of the MDL action, and that the MDL panel had denied motions to transfer cases involving "non-Flex" components, like the NexGen LPS Femoral component. Zimmer MDL II, (Doc. 1115).
On September 7, 2014, the MDL Judge filed a Suggestion of Remand with the MDL Panel. See Zimmer MDL I, (Doc. 1814-1).
On October 6, 2014, a Conditional Order issued by the MDL Panel remanding Plaintiffs' claims became final. Zimmer MDL I, (Doc. 1814). On October 24, 2014, Plaintiffs' case was transferred back to its originating district, the Eastern District of Pennsylvania. (Doc. 3).
On June 17, 2015, Plaintiffs' counsel filed a Petition for Leave to Withdraw as Counsel. (Doc. 13). On August 3, 2015, the Petition was granted. (Doc. 14). Plaintiffs initially appeared to elect to proceed pro se, but later informed the Court that they were seeking counsel. (Docs. 14, 16, 20, 21). Plaintiffs were granted ample time to retain counsel while this action was pending in the Eastern District of Pennsylvania, but have not done so as of the date of this Report.
After Plaintiffs' counsel's Petition to Withdraw as Counsel was granted on August 3, 2015, the Eastern District issued three orders, each granting Plaintiffs time to find counsel. See Weidenhof II, (Docs. 14, 20-21). The time granted to Plaintiffs by the Eastern District to obtain counsel cumulatively amounted to just under eleven months. See Weidenhof II, (Doc. 21) (finally granting Plaintiffs until June 30, 2016, to obtain counsel).
On October 14, 2016, the District Court in the Eastern District of Pennsylvania entered an Order transferring Plaintiffs' case to the Middle District of Pennsylvania. (Doc. 29).
On February 6, 2017, Plaintiffs were directed to file an Amended Complaint on their claims on liability and damages. (Doc. 44).
On March 7, 2017, Plaintiffs filed an Amended Complaint against Defendants Zimmer, Inc. and "Zimmer Orthopic[sic] Products." (Doc. 45). Plaintiffs' statement of their claim, in its entirety, provided "Knee Replacement 3-09-2009 OIP Orthopedics Camp Hill, PA 17074. Product used was Bad Product. Caused Permanent Disability." Id.
In their statement of the amount in controversy, Plaintiffs appeared to request monetary damages in an amount of no less than $200,000.00 for pain and suffering. Id. In the relief section of their Amended Complaint, however, Plaintiffs assert that, "Pain and suffering will always be an issue! And may lose medical if awarded money from the Court. Also don't know if disability money will continue or not." Id. at 6. The Amended Complaint is signed by Mr. Weidenhof. Id. Dena Weidenhof did not sign the Amended Complaint, despite a prior Order of Court advising Plaintiffs that all filings must be signed by both Carl and Dena Weidenhof. (Doc. 21 n.1).
On April 7, 2017, Defendants filed a Motion to Dismiss. (Doc. 52). Along with their Motion, Defendants filed a corresponding Brief in Support. (Doc. 53).
On April 24, 2017, Mr. Weidenhof filed a Letter in response. (Doc. 54). In his Letter, Mr. Weidenhof alleged that he provided short form discovery to Defendants in connection with the MDL action. Id. Specifically, he alleged that this discovery included documentation from his surgeons and observations by physicians that his knee implant made a "clunking sound" and was "unstable." Id. Mr. Weidenhof also alleged that: (1) his implant was "very loose" allowing the lower part of his leg to move from right to left; (2) the screws in the main bone caused extreme burning and pain; and (3) the size of the spacer used in the implant was too small. Id. The letter was not signed by Dena Weidenhof. We construed Mr. Weidenhof's letter as a Brief in Opposition to Defendants' Motion to Dismiss. (Doc. 58, p. 7).
On May 8, 2017, Defendants filed a reply. (Doc. 55). On June 19, 2017, Mr. Weidenhof sent a letter to this Court requesting oral argument. (Doc. 56). This request was denied. (Docs. 56 & 57).
On March 27, 2018, this Court adopted my Report and Recommendation with regard to Defendants' Motion to Dismiss in which I recommended that Mr. Weidenhof's Amended Complaint be dismissed without prejudice and that Mr. Weidenhof be granted leave to file a Second Amended Complaint. (Docs. 58 & 59).
The first deadline imposed on Plaintiffs for filing their Second Amended Complaint was April 26, 2018. (Doc. 59) (granting Plaintiffs 30 days from March 27, 2018, to address the pleading deficiencies identified in my Report and Recommendation). After failing to file by April 26, 2018, I issued an Order extending Plaintiffs' deadline to file to June 4, 2018. (Doc. 60). On June 4, 2018, Plaintiffs filed a Second Amended Complaint. Weidenhof II, (Doc. 61). The Second Amended Complaint was signed by both Carl and Dena Weidenhof. See id.
On June 18, 2018, Defendants filed a Motion to Dismiss Plaintiffs' Second Amended Complaint and a Brief in Support thereof. (Docs. 62 & 63). The same day, I issued an Order directing that Plaintiffs "shall file a Brief in Opposition to Defendants' Motion on or before July 9, 2018." (Doc. 64). To date, Plaintiffs have not filed the ordered Brief in Opposition to Defendant's Motion to Dismiss. II. LEGAL STANDARD
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to "assume that [the plaintiff] can prove facts that [he] has not alleged . . . ." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, "a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the court of appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility
standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.'" Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment."). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). III. ANALYSIS
While Plaintiff's Second Amended Complaint corrects some deficiencies contained in his Amended Complaint, I find that Plaintiff's Second Amended Complaint, standing on its own, is still too vague and improperly requires Defendants to guess what theories of liability Plaintiff is attempting to advance. Therefore, Plaintiff's Second Amended Complaint fails to meet the requirements of Rule 8 of the Federal Rules of Civil Procedure. Additionally, I find that Plaintiff's Second Amended Complaint should be dismissed under Local Rule 7.6, and under Federal Rule of Civil Procedure 41(b).
Although Plaintiffs' Second Amended Complaint names both Carl and Dena Weidenhof as plaintiffs and is signed by both Carl and Dena Weidenhof, the allegations contained in the Second Amended Complaint provide absolutely no reference to Dena Weidenhof or to how she may or may not have been involved with this lawsuit. Therefore, for the sake of ease, the remainder of this Report and Recommendation will refer to Plaintiff in the singular form in reference to Carl Weidenhof.
A. PLAINTIFF'S SECOND AMENDED COMPLAINT SHOULD BE DISMISSED UNDER LOCAL RULE 7.6
At the outset, under the Local Rules of this Court Plaintiff should be deemed to concur in this motion to dismiss, since he has failed to timely oppose the motion, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on Plaintiff to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.Local Rule 7.6 (emphasis added).
It is well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency 'if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). In this case Plaintiff has not complied with the local rules, or this Court's Order (Doc. 64), by filing a timely response to this motion. These procedural defaults compel the court to consider:
[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to
resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion . . . ." McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).Lease v. Fishel, 712 F. Supp. 2d 359, 371 (M.D.Pa. 2010).
With this basic truth in mind, I acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, "would actually violate the dual mandate which guides this Court and motivates our system of justice: 'that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion'." Id. Therefore, I am obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, Plaintiff has failed to comply with Local Rule 7.6 by filing a timely response to Defendants' Motion to Dismiss. This failure now compels me recommend that the sanction called for under Rule 7.6 be applied, and that Defendants' Motion to Dismiss be granted as unopposed.
B. PLAINTIFF'S SECOND AMENDED COMPLAINT SHOULD BE DISMISSED UNDER RULE 41(B) OF THE FEDERAL RULES OF CIVIL PROCEDURE USING A POULIS ANALYSIS.
Beyond the requirement imposed by Local Rule 7.4, Rule 41(b) of the Federal Rules of Civil Procedure authorizes a Court to dismiss a civil action for failure to prosecute, stating that: "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). Additionally, "[u]nder Rule 41(b), a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order." Qadr v. Overmyner, 642 F. App'x 100, 102 (3d Cir. 2016) (per curium) (citing Fed. R. Civ. P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (recognizing that a court can dismiss a case sua sponte under Rule 41(b)).
Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court, and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, however, is governed by the factors articulated in Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). As the United States Court of Appeals for the Third Circuit has explained:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).Emerson, 296 F.3d at 190.
In exercising this discretion "there is no 'magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, "[i]n balancing the Poulis factors, [courts] do not [employ] a . . . 'mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case." Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992)). Consistent with this view, it is well-settled that "no single Poulis factor is dispositive, [and it is] clear that not all of the Poulis factors need be satisfied in order to dismiss a complaint." Briscoe, 538 F.3d at 263 (internal quotation marks and citations omitted). Moreover, recognizing the broad discretion conferred upon the District Court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson, 296 F.3d at 191; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007).
1. Extent of Plaintiff's Personal Responsibility
Regarding the first Poulis factor, I must address the extent of the Plaintiff's personal responsibility in determining whether he has failed to prosecute under Rule 41(b). I begin by acknowledging that the procedural history of this case has not been easy to navigate without professional experience dealing with the federal courts. In fact, this case has been before five federal judges in three judicial districts. In this instance, however, the procedural complexities do not negate Plaintiff's personal responsibility in failing to prosecute. Throughout this case, Plaintiff has been shown significant lenience appropriate for a party proceeding pro se. See, e.g., (Docs. 20-21) (Orders granting two separate extensions of time for Plaintiff to obtain counsel); (Doc. 26) (Order rescheduling status hearing after Plaintiff failed to appear and warning that further failures to follow court orders may precipitate dismissal of action); (Doc. 60) (sua sponte Order granting Plaintiff additional time to file his Second Amended Complaint). Plaintiff has demonstrated that he is capable of filing documents with the court in a timely manner. See, e.g., (Doc. 16) (Plaintiff filed Letter with the Eastern District within the permitted 60 days, informing court of intent to proceed with case); (Docs. 45) (Plaintiff timely filed Amended Complaint). But despite efforts by the court to show flexibility, Plaintiff only intermittently complied with court orders issued by the Eastern District and by me.
For example, after his case was transferred to me, Plaintiff failed to comply with two significant court orders. First, on March 27, 2018, the Court adopted my recommendation to dismiss Plaintiff's Amended Complaint without prejudice. (Doc. 59). The Court granted Plaintiff thirty (30) days to amend his complaint. Id. Plaintiff failed to amend his complaint within the allowed 30 days. Nevertheless, on May 9, 2018, approximately two weeks after this 30 day period elapsed, I issued an order extending Plaintiff's chance to amend his complaint to June 4, 2018. (Doc. 60). In that Order of May 9, I warned the Plaintiff as follows:
(1) Plaintiffs are placed on notice that . . . [t]he second amended complaint must be complete in all respects; it must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed. The second amended complaint will completely replace the first amended complaint . . . . The second amended complaint must also comply with the pleading requirements of the Federal Rules of Civil Procedure.Id.
(2) Failure to file a second amended complaint may result in the dismissal of this case for failure to prosecute pursuant to Rule 41 of the Federal Rules of Civil Procedure.
Second, on June 4, 2018, Plaintiff filed a Second Amended Complaint, which, as discussed infra, does not comply with Rule 8 of the Federal Rules of Civil Procedure.
Third, after Defendants filed a Motion to Dismiss and Brief in Support thereof, I issued an Order stating that Plaintiff "shall file a Brief in Opposition to Defendants' Motion on or before July 9, 2018." (Doc. 64) (emphasis added). To date, over five months after the deadline, Plaintiff has filed no Brief in Opposition to Defendants' Motion. I find that these failures to move his lawsuit forward are the Plaintiff's personal responsibility and that the first Poulis factor weighs in favor of dismissal.
2. Prejudice to Opposing Party
The second Poulis factor, which requires consideration of the prejudice to the adversary caused by the Plaintiff's failure to abide by court orders, bears substantial weight compared to the others:
"Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment." Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir.1994) (internal quotation marks and citation omitted). Generally, prejudice includes "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Id. at 874 (internal quotation marks and citations omitted) . . . . However, prejudice is not limited to "irremediable" or "irreparable" harm. Id.; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d
683, 693-94 (3d Cir.1988). It also includes "the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy." Ware, 322 F.3d at 222.Briscoe, 538 F.3d at 259-60.
Plaintiff caused significant delays in furthering this lawsuit. These delays are in excess of the lenience properly shown Plaintiff in light of his pro se status and the procedural complexities of this case. First, after Plaintiff's original counsel withdrew, on August 3, 2015, Judge Norma L. Shapiro of the Eastern District issued an Order, stating that "Plaintiff is given 60 days to obtain new counsel or inform the court that he wishes to proceed pro se. Otherwise, the action will be dismissed for lack of prosecution." (Doc. 14). Plaintiff, in a letter filed on September 30, 2015, appeared to indicate to the court that he wished to proceed pro se. (Doc. 16). Nevertheless, after a pretrial conference held on February 10, 2016, Plaintiff was granted until April 11, 2016, to again attempt to seek counsel. Docs. 19-20). Plaintiff, by letter dated April 14, 2016, after the deadline, requested yet another extension of time to find counsel. (Doc. 21). Granting the request, Judge Shapiro gave Plaintiff until June 30, 2016, to find an attorney. Id. Plaintiff never secured legal counsel.
Second, Plaintiff failed to appear at a Status Conference scheduled to be held on September 9, 2016, with Judge Joel H. Slomsky of the Eastern District. (Doc. 26 n.1). In an Order rescheduling the Status Conference, Judge Slomsky warned that despite Plaintiff's pro se status "[i]f Plaintiff continues to fail to follow court orders in this case, the case may be subject to dismissal in accordance with the factors listed in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984)." Id.
Finally, after being transferred to the Middle District, Plaintiff (1) failed to timely file his Second Amended Complaint by the first deadline—April 26, 2018; and (2) failed to file an ordered Brief in Opposition to Defendants' Motion to Dismiss.
These delays, caused by failure to comply with multiple court orders and apparent indecision as to whether or not to hire counsel, have caused prejudice to the Defendants in that they have been prevented from settling this dispute in a timely manner. This case has not progressed for over three years since Plaintiff's original counsel withdrew on August 3, 2015. While lenience was appropriate at times, these failures have cumulatively caused undue delay in excess of what might be tolerated under these circumstances. Although failing to oppose a motion to dismiss likely works to a movant's benefit, I nevertheless find that the delay caused by Plaintiff's lethargy has prejudiced the Defendants. Therefore, I must find that the second Poulis factor weighs in favor of dismissal.
3. History of Dilatoriness
The third Poulis factor demands consideration of Plaintiff's history of dilatoriness. As recounted above, before being transferred to this Court, the record indicates that in the Eastern District, Plaintiff exhibited dilatoriness by (1) failing to obtain counsel or respond to Judge Shapiro's Order to obtain counsel by April 11, 2016, (2) failing to appear for a Status Conference scheduled for September 9, 2016, with Judge Slomsky, (3) failing to ever secure counsel despite being given ample time to secure the same. Moreover, after being transferred to the Middle District, Plaintiff demonstrated dilatoriness by (1) neglecting to file a Second Amended Complaint by the original deadline set for April 26, 2018, and (2) to date, never filing a Brief in Opposition to Defendants' Motion to Dismiss, which I ordered to be filed by July 9, 2018. Despite Judge Slomsky's warning of possible dismissal for continued failure to comply with court orders, the record is replete with evidence of Plaintiff's dilatory conduct. Therefore, I must find that the third Poulis factor weighs in favor of dismissal.
4. Willfulness and/or Bad Faith
The fourth Poulis factor, whether the conduct of the party was willful or in bad faith does not weigh for or against dismissal in this case. In evaluating this factor, I must assess whether Plaintiff's conduct reflects mere inadvertence or willful conduct in that it involved "strategic," "intentional or self-serving behavior," and not mere negligence. Adams, 29 F.3d at 875. I find nothing conclusive in the record that indicates Plaintiff acted willfully or in bad faith as opposed to merely negligently. Therefore, I find that this factor does not weigh in favor of dismissal.
5. Effectiveness of Lesser Sanctions
The fifth Poulis factor, the effectiveness of lesser sanctions, weighs in favor of dismissal. Cases construing Poulis agree that, where the Court is confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Brisco, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. Plaintiff's pro se status limits my ability to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. I have endeavored to use lesser sanctions by ordering Plaintiff to respond to Defendants' Motion to Dismiss. Plaintiff did not obey my order, and has ignored his responsibilities as a litigant. Moreover, Plaintiff has twice been granted leave to amend his complaint. After being excluded by the MDL Panel from the Multi-District Litigation against Zimmer, Plaintiff's Second Amended Complaint represents Plaintiff's third total attempt to state a claim and second attempt as a pro se litigant. I find that a lesser sanction would be ineffective in this case given Plaintiff's failure to adequately address deficiencies expressly outlined in my Report and Recommendation to dismiss Plaintiff's prior Amended Complaint.
For example, in my previous Report and Recommendation, which recommended dismissing Plaintiff's prior Amended Complaint, I explained that Plaintiff's Amended Complaint was "so vague that, even liberally construed, [did not] state a plausible claim." (Doc. 58, p. 2). I noted that:
Plaintiff['s] Amended Complaint recites no well-pleaded facts, and does not articulate a factual basis that would give rise to a legal claim against any named Defendant. This failure makes it virtually impossible for Defendants to ascertain what Zimmer product used in Mr. Weidenhof's knee replacement surgery malfunctioned, how or why it malfunctioned, or what theories of liability Plaintiff[] [is] attempting to advance.(Doc. 58, p. 12).
I also explained that even if I were permitted to consider the new factual allegations contained in Plaintiff's Brief in Opposition, Plaintiff nevertheless failed to "allege what Zimmer implant product caused the knee implant to fail, or allege why the Zimmer Defendants are responsible for an ill-fitting spacer." (Doc. 58, p. 13). I informed the Plaintiff that:
as a matter of law [the] second amended complaint will take the place of their Amended Complaint, effectively invalidating the Amended Complaint . . . . [I]f Plaintiff[] choose[s] to file a second amended complaint it must be a new pleading which stands by itself as an adequate complaint without reference to the complaints already filed . . . .(Doc. 58, pp. 13-14).
Despite the information contained in my Report and Recommendation, which identified deficiencies in Plaintiff's prior Amended Complaint, Plaintiff's Second Amended Complaint remedied only a few of these deficiencies and created new ones. Namely, Plaintiff's Second Amended Complaint fails to "stand[] by itself as an adequate complaint without reference to the complaints already filed" in that it fails to allege when or where Plaintiff's knee surgery took place. It names "Zimmer Inc. et al." as Defendants but fails to identify any parties other than Zimmer, Inc. The Second Amended Complaint also fails to support conclusions with well-pleaded facts, simply concluding that the Zimmer product put Plaintiff in a permanently disabled position without providing enough facts to allow me to reasonably infer Plaintiff's suffering was caused by any Zimmer product itself independent of doctor decisions not to operate. The Second Amended Complaint raises new issues about doctor decisions not to repair Plaintiff's knee due to pending litigation against Zimmer, Inc. without explanation as to why such litigation would prevent a doctor from acting. Most notably, as with the first Amended Complaint, Plaintiff's Second Amended Complaint leaves it "virtually impossible for Defendants to ascertain . . . how or why [the Zimmer product] malfunctioned, or what theories of liability Plaintiffs are attempting to advance." (Doc. 58).
Thus, because orders of the court, prior sanctions, and explanations of how to remedy deficiencies in their complaint have proven ineffective, I find the fifth Poulis factor weighs in favor of dismissal.
6. Meritoriousness of Claim
The final Poulis factor is the merit of Plaintiff's claims. "A claim, or defense, will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense." Poulis, 747 F.2d at 869-70. I find that the sixth Poulis factor weighs in favor of dismissal because Plaintiff has failed to state a claim under Rule 8, discussed in the following section. (see infra, Part III.B).
C. RULE 8 COMPELS DISMISSAL OF PLAINTIFFS' SECOND AMENDED COMPLAINT.
In support of their Motion to Dismiss, Defendants argue that Plaintiff's Second Amended Complaint must be dismissed under Fed. R. Civ. P. 12(b)(6) because it does not meet the requirements of Fed. R. Civ. P. 8. Specifically, Defendants argues that, in his Second Amended Complaint, Plaintiff fails to: (1) identify what part of the knee implant was defective; (2) identify what caused the product to fail; (3) allege the harm caused by the knee implant; and (4) sufficiently identify the parties.
It is well-settled that: "[t]he Federal Rules of Civil Procedure require that a complaint contain 'a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. R. Civ. P. 8(a)(2), and that each averment be 'concise, and direct,' Fed. R. Civ. P. 8(e)(1)." Scibelli v. Lebanon County, 219 F. App'x 221, 222 (3d Cir. 2007). Dismissal under Rule 8 is proper when a complaint "left the defendants having to guess what of the many things discussed constituted [a cause of action]." Binsack v. Lackawanna County Prison, 438 F. App'x 158 (3d Cir. 2011). The failure to plead either any cause of action or specific defendant leaves "defendants having to guess what of the many things discussed constituted [a cause of action]." Id. at 160.
Rule 8 compels dismissal of Plaintiff's Second Amended Complaint. Plaintiff's Second Amended Complaint in its entirety reads as follows:
I, Carl Weidenhof am asking for the Court to find Zimmer Inc. responsible for the pain and suffering I had to endure for three (3) years. Due to the legal litigation against Zimmer Inc. no doctor would revise the product: Zimmer NexGen LPS FlexKnee.
The original Orthopedic surgeon, Dr. Frankeney from OIP, agreed the product was loose, but would not revise due to legal litigation against Zimmer Products. Dr. Frankeney gave me a knee brace and an appointment 2 years later to do the revision.
Three disability doctors tested my ability to walk and found that the severe pain I was in made me incapable of working.
My family doctor at the time put me on morphine and oxycodone for 3 years to endure the pain level I was experiencing.
Finally, Dr. James Fenwick from Hershey Orthopedics found the knee replacement was dysfunctional. In 2012 revised the right knee (3 years later) when the legal timeline had lapsed to all litigations against Zimmer Products.
I suffered 3 years with the Zimmer NexGen LPS FlexKnee in me.
I have documents from all doctors stating the product aforementioned was loose and did not work properly.
I'm asking the Court to find for me compensation for the 3 years of suffering and permanent disabled position the Zimmer Product put me in.(Doc. 61).
Plaintiff fails to meet the standard of Rule 8 because this Second Amended Complaint requires Defendants and me to guess what facts constitute a cause of action. See Binsack, 438 F. App'x at 160.
Nevertheless, Plaintiff's Second Amended Complaint fails even if I were to assume on his behalf that he attempts to state a products liability claim under Pennsylvania law. That Plaintiff intends to state a products liability claim is possible given that he alleges a "Zimmer NexGen LPS FlexKnee" was "dysfunctional" and "did not work properly" and that he asks for compensation for the "3 years of suffering and permanent disabled position the Zimmer Product put [him] in." (Doc. 61). However, Plaintiff fails to give any indication as to whether he alleges strict product liability or negligence, which are two distinct theories under Pennsylvania law. Igwe v. Skaggs, 258 F. Supp. 3d 596, 614 (W.D. Pa. 2017). Regardless, Plaintiff does not allege enough to properly state a claim under either theory.
In Tincher v. Omega Flex, Inc.[, 104 A.3d 328 (Pa. 2014)], the Pennsylvania Supreme Court ruled strict products liability claims are governed by the Restatement (Second) of Torts, § 402A. To prevail on a strict liability claim, a plaintiff must prove "the product was defective, the defect existed when it left the defendant's hands,
and the defect caused the harm." A product may be defective based on a manufacturing defect, design defect, or failure-to-warn defect.Igwe, 258 F. Supp. 3d at 609 (emphasis added).
Plaintiff has not adequately alleged a strict products liability claim because he has not alleged which component of the knee replacement was defective. As explained by Defendants, in his Second Amended Complaint, Plaintiff misidentifies the Zimmer product used in Plaintiff's surgery as a "Zimmer NexGen Flexknee." (Doc. 61, p. 1). Plaintiff also alleges that he has "documents from all doctors stating the product aforementioned was loose and did not work properly." (Doc. 61, p. 2). As noted in my prior Report, and in the procedural history above, Plaintiff's case was remanded back to the Eastern District of Pennsylvania precisely because the Court found a Zimmer NexGen Flexknee was not one of the components used in Plaintiff's knee surgery. Although it appears three Zimmer products were used in Plaintiff's knee surgery, he does not specify which of these products were defective. Although Plaintiff does allege that one or more of the products used in his knee replacement was "loose and did not work properly," he does not allege what he believes caused the "looseness" he experienced (e.g., a manufacturing or design defect).
Furthermore, Plaintiff has not sufficiently alleged that the harm was caused by any Zimmer defect. Rather, Plaintiff alleges that his pain and suffering was caused by "legal litigation against Zimmer Inc.," which he alleges prevented any doctor from repairing his knee. (Doc. 61). As Defendants argue "even if it were true that no surgeon would revise Plaintiff's knee component due to the unrelated NexGen MDL, this does not articulate a factual basis that would give rise to a legal claim against any Zimmer Defendant." (Doc. 63, pp. 8-9). Although Plaintiff asks this court for compensation for "3 years of suffering and [the] permanent disabled position the Zimmer Product put [him] in," the majority of the harm alleged appears to be attributable to the decision of doctors not to repair his knee replacement for three years. Plaintiff does not expressly allege harm or injury attributable to a Zimmer product that is independent of unrelated decisions made by these unidentified doctors.
Plaintiff also does not make sufficient allegations to state a negligence claim. To prevail on a negligence claim against a product manufacturer in Pennsylvania, a plaintiff must show duty, breach, causation, and damages. Igwe, 258 F. Supp. 3d at 614. "Unlike strict liability, negligence 'revolves around an examination of the conduct of the defendant.' 'The standard for establishing liability of a product manufacturer under a negligence theory would be more stringent and, thus, more difficult to satisfy.'" Id. (citing Schwartz v. Abex Corp., 106 F. Supp. 3d 626, 654 (E.D. Pa. 2015)).
Here, Plaintiff alleges no facts that would support a finding that Defendants' conduct breached a duty. And, as discussed above, Plaintiff has not adequately alleged that the Zimmer product caused three years of pain and suffering or Plaintiff's permanently disabled position. Rather, Plaintiff alleges he suffered for three years, not necessarily because of a product defect, but because "no doctor would revise the product" "[d]ue to the legal litigation against Zimmer Inc." (Doc. 61).
Accordingly, I find that Plaintiff failed to meet the burden imposed by Rule 8 and recommend that Plaintiff's Second Amended Complaint be dismissed. V. RECOMMENDATION
Accordingly, IT IS RECOMMENDED THAT Defendants' Motion to Dismiss (Doc. 62) be GRANTED as follows:
(1) Defendants' Motion to Dismiss (Doc. 62) should be DEEMED UNOPPOSED and GRANTED, pursuant to Local Rule 7.2;Date: December 28, 2018
(2) Plaintiff's Second Amended Complaint should be DISMISSED pursuant to Fed. R. Civ. P. 41; and
(3) The Clerk of Court should CLOSE this case.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF RIGHT TO OBJECT UNDER LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: December 28, 2018
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge