Johnson v. C R Bard Incorporated ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTICT OF ARIZONA 8 9 IN RE: Bard IVC Filters Products No. MDL 15-02641-PHX-DGC 10 Liability Litigation, CASE MANAGEMENT ORDER NO. 50 11 12 13 Pursuant to Case Management Order (“CMO”) No. 49, Plaintiffs’ counsel – 14 Matthews & Associates and Freese & Goss – have filed a final status report identifying 15 cases previously dismissed without prejudice that are now (1) ripe for reinstatement in this 16 MDL and transfer to their home districts, or (2) subject to dismissal with prejudice for 17 failure to prosecute. See Docs. 21778, 21967, 22012. The Court will reinstate the 18 dismissed cases listed on Attachment A. See Doc. 22012-2.1 The Court will dismiss the 19 cases listed on Attachment B with prejudice pursuant to Federal Rule of Civil Procedure 20 41(b). See Doc. 22012-1. 21 A. Cases to Be Reinstated. 22 In December 2020, the parties filed a status report identifying previously dismissed 23 cases that were ripe for reinstatement. Doc. 21750; see also Docs. 21740 (CMO 48), 21776 24 (updated status report). A number of cases had been voluntarily dismissed without 25 prejudice and without being settled, the parties having entered into a tolling agreement so 26 they could continue settlement discussions outside the confines of this MDL. See 27 28 1 After reinstatement, the Court will issue a separate order transferring these cases to appropriate districts for further litigation consistent with the MDL. 1 Doc. 21526 at 1-2. Some Plaintiffs in these cases have since opted out of the proposed 2 settlements. See id. Because CMO 42 – which governs the settlement process in this 3 MDL – does not permit cases that have failed to settle to be dismissed from the MDL 4 without prejudice only to be refiled as new cases, the Court concluded that the dismissal 5 orders in these opt-out cases must be vacated and the cases reinstated in the MDL. See 6 Docs. 16343, 21527, 2154. 7 In CMO 49, the Court reinstated more than 150 previously dismissed opt-out cases. 8 Doc. 21778 at 2, 21778-1. Counsel have now identified an additional 19 dismissed cases 9 in which the Plaintiffs have opted out of the settlement. Docs. 22012 at 1, 22012-2. Those 10 cases, which are listed on Attachment A, will be reinstated in the MDL and then sent to 11 their home districts for further litigation consistent with the MDL. 12 B. Cases to Be Dismissed with Prejudice Under Rule 41(b). 13 On January 27, 2021, a telephonic status hearing was held to address 200 dismissed 14 cases in which the Plaintiffs either cannot be located, are not responding to counsel’s 15 inquiries, are deceased with no known heirs, or had not yet made a decision on the offered 16 settlements. See Docs. 21734, 21777. The Court gave counsel until March 15, 2021 to 17 locate, contact, and secure settlement decisions from these Plaintiffs. Doc. 21778 at 2. 18 Counsel agreed that the Court should dismiss with prejudice any cases in which, by 19 March 15, the Plaintiffs or their heirs cannot be located, the Plaintiffs remain 20 nonresponsive, or the Plaintiffs fail to make a settlement decision. See id. 21 A telephonic status hearing was held March 19 to discuss counsel’s updated status 22 report. See Docs. 21962, 21967. Counsel stated that there remain 129 dismissed cases 23 without settlement decisions. Doc. 21962 at 2. The Court denied counsel’s request for an 24 additional 60 days to locate and obtain settlement decisions from the Plaintiffs in these 25 cases. Doc. 21967 at 1. The Court stood by the March 15 deadline because two years has 26 been ample time to locate the Plaintiffs and give them the opportunity to accept or opt out 27 of the settlement. Id. 28 1 Counsel have now filed a status report identifying the cases in which the Plaintiffs 2 or their heirs still cannot be located or where the Plaintiffs remain nonresponsive to 3 counsel’s inquiries. Doc. 22012 at 1, 22012-1. Pursuant to Rule 41(b), the Court will 4 dismiss these cases with prejudice for failure to prosecute. 5 Rule 41(b) authorizes the Court to dismiss a case where the plaintiff “fails to 6 prosecute or to comply with these rules or a court order.” The Ninth Circuit has developed 7 a five-part test to determine whether a dismissal sanction is appropriate: “(1) the 8 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 9 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 10 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 11 In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) 12 (citations omitted). “These factors are ‘not a series of conditions precedent before the judge 13 can do anything,’ but a ‘way for a district judge to think about what to do.’” Id. (quoting 14 Valley Eng’rs, Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). 15 1. Expeditious Resolution of Litigation. 16 “As the first of the Federal Rules of Civil Procedure reflects, the public has an 17 overriding interest in securing ‘the just, speedy, and inexpensive determination of every 18 action.’” Id. at 1227 (quoting Fed. R. Civ. P. 1).2 “Orderly and expeditious resolution of 19 disputes is of great importance to the rule of law. By the same token, delay in reaching 20 the merits, whether by way of settlement or adjudication, is costly in money, memory, 21 manageability, and confidence in the process.” Id. 22 More than two years ago – on March 21, 2019 – the Court accepted the parties’ 23 proposed settlement schedule and advised them that the Court “does not intend to delay 24 remand or transfer of MDL cases after a reasonable opportunity to settle.” Doc. 16343 at 5 25 (CMO 42). The Court set a stipulated dismissal deadline of May 1, 2020 for settled cases. 26 27 28 2 There is no MDL exception to Rule 1. Indeed, Congress has directed MDL judges “to promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a). 1 Id. at 7. The Court later extended the May 1 deadline to November 2, 2020, and then again 2 to March 15, 2021. Docs. 21518, 21740. 3 The Plaintiffs identified in counsel’s status report have had ample time to either 4 accept or opt out of the settlement. The failure to make a timely settlement decision has 5 prevented the expeditious resolution of their cases. This factor weighs in favor of dismissal 6 under Rule 41(b). See Phenylpropanolamine, 460 F.3d at 1234 (affirming a dismissal 7 sanction where the district court had “observed that many of the cases subject to its 8 dismissal order had been pending for close to, or over, a year without forward movement, 9 and that such lack of diligence does not serve the public interest in expeditious resolution 10 of litigation”). 11 2. Docket Management. 12 “A district judge charged with the responsibility of ‘just and efficient conduct’ of 13 the multiplicity of actions in an MDL proceeding must have discretion to manage them that 14 is commensurate with the task. The task is enormous, for the court must figure out a way 15 to move thousands of cases toward resolution on the merits while at the same time 16 respecting their individuality. . . . [T]he district judge must establish schedules with firm 17 cutoff dates if the coordinated cases are to move in a diligent fashion toward resolution by 18 motion, settlement, or trial.” Id. at 1231 (citations omitted). 19 The Court closed this MDL to new cases nearly two years ago. Doc. 18079. As 20 noted, the Court initially set a May 1, 2020 deadline for settlement decisions in all pending 21 cases, and later extended the deadline to March 15, 2021. See Docs. 16343, 21518, 21740. 22 The time has come to conclude the MDL, and for the remaining non-settled MDL cases to 23 be sent to their home districts for further litigation or to be dismissed with prejudice. See 24 Doc. 21740 at 2. 25 3. Prejudice to Defendants. 26 A defendant suffers unfair prejudice where the plaintiff “impair[s] the defendant’s 27 ability to go to trial or threaten[s] to interfere with the rightful decision of the case.” 28 Phenylpropanolamine, 460 F.3d at 1227. Defendants in this case clearly are prejudiced by 1 Plaintiffs’ failure to make a settlement decision or prosecute their claims. This factor 2 weighs in favor of dismissal. 3 4. Dispositions on the Merits. 4 The Ninth Circuit has “often said that the public policy favoring disposition of cases 5 on their merits strongly counsels against dismissal.” Id. (citation omitted). But a case that 6 “is stalled or unreasonably delayed by a party’s failure to [prosecute] cannot move forward 7 toward resolution on the merits.” Id. Thus, this factor “lends little support” to Plaintiffs – 8 “whose responsibility it is to move [their cases] toward disposition on the merits but whose 9 conduct impedes progress in that direction.” Id.; see also id. at 1234 (“[In an MDL] 10 proceeding such as this, where the plaintiffs themselves prevent their cases from moving 11 forward, the public policy favoring resolution on the merits cannot weigh much, if at all, 12 in their favor.”). 13 5. Availability of Less Drastic Sanctions. 14 In CMO 42, the Court expressed serious concerns about MDL cases being dismissed 15 without prejudice and with the prospect of later being refiled as new cases. Doc. 21527 16 at 2. First, if an MDL case is dismissed without prejudice and the Plaintiff files a new 17 case later, the new case will not have been part of this MDL and the Court’s and parties’ 18 extensive work on common issues will not be law of the case. Nor will the judge in the 19 new case have the benefit of the lengthy explanatory order prepared by the Court about the 20 MDL or the designation of records prepared by the parties. See, e.g., Doc. 19899. Second, 21 the Court made clear in CMO 42 that it required the parties to achieve settlement or face 22 remand or transfer, but the parties sought instead to avoid the Court’s requirement by 23 dismissing cases without settlement and without prejudice to refiling under a tolling 24 agreement. 25 The Court has concluded that the cases in which the Plaintiffs have been 26 nonresponsive or where they or their heirs cannot be located should be dismissed with 27 prejudice. See Docs. 21778, 21967. Plaintiffs’ counsel have agreed to dismissals with 28 prejudice in these cases. See Doc. 21778 at 2. 1 6. Rule 41(b) Summary. 2 The first three factors for determining whether a dismissal sanction is appropriate — 3 || expeditious resolution of the litigation, the Court’s need to manage its docket, and prejudice 4|| to Defendants — weigh in favor of dismissal. See Taylor v. Wal-Mart Corp., No. CV14- 5 1034-PHX-DGC, 2014 WL 3864541, at *1 (D. Ariz. Aug. 6, 2014) (“[T]he first, second, || and third factors favor dismissal. Plaintiff’s failures to... communicate[] or obey court 7\| deadlines... prevent the case from proceeding in the foreseeable future.”). The fourth 8 || factor —the policy favoring disposition of the cases on the merits — weighs only slightly, if 9|| at all, against a dismissal sanction because the cases cannot be resolved on the merits where || the Plaintiffs have failed to prosecute their claims. With respect to the fifth factor, the 11 |} Court finds that dismissal with prejudice is the only justifiable sanction for the Plaintiffs’ 12|| failure to prosecute. See Taylor v. United States, No. CV-09-2393-PHX-DGC, 2010 WL 13 || 2836953, at *1 (D. Ariz. July 19, 2010) (dismissing case with prejudice given that 14]| “additional extensions of time would likely elicit the same lack of response” from the 15 || plaintiff). 16 IT IS ORDERED: 17 1. The dismissal orders in the cases listed on Attachment A are vacated (see || Doc. 22012-2). The Clerk is directed to reinstate each case in this MDL. 19 2. The cases listed on Attachment B (see Doc. 22012-1) are dismissed with || prejudice. 21 Dated this 14th day of April, 2021. 22 DS aul 6 D anwndk @. Cater phtl 5 David G. Campbell 56 Senior United States District Judge 27 28 -6- AttachmCeAntS AE –M CAaNseAsG TEoM BEe NRTei nOstRaDteEdR a nNdO T. r5a0n sferred (April 14, 2021) Plaintiff Current Case Number Transferee Court Trammell, Joseph 2:19-cv-03782-PHX-DGC Ark. E.D. Dominguez, Dora 2:18-cv-01488-PHX-DGC Cal. C.D. Wetzel, David J. 2:19-cv-03719-PHX-DGC Cal. C.D. Johnson, Janice L. 2:16-cv-03899-PHX-DGC Cal. E.D. Vincent, Patrick E. 2:18-cv-03807-PHX-DGC Fla. M.D. Barrett, Lori 2:17-cv-04481-PHX-DGC Iowa Przykucki, Robert 2:19-cv-03736-PHX-DGC Mich. E.D. Lashley, Ken 2:18-cv-01646-PHX-DGC Mo. E.D. Powell, Mylus 2:19-cv-04072-PHX-DGC Mo. E.D. Leus, George 2:15-cv-01623-PHX-DGC Mo. W.D. Miller, Linda 2:17-cv-00370-PHX-DGC Mo. W.D. Braden, Kevin 2:17-cv-00047-PHX-DGC Mont. Narayan, Ashwin A. 2:16-cv-00617-PHX-DGC Ohio S.D. Dobson, Delores 2:17-cv-04311-PHX-DGC Okla. N.D. Janes, Debora L. 2:16-cv-03899-PHX-DGC S.D. Schaaf, Julie A. 2:18-cv-03784-PHX-DGC Tenn. W.D. Stansell, Jason 2:17-cv-01079-PHX-DGC Tex. E.D. Langley, Shana 2:19-cv-03765-PHX-DGC Va. E.D. Weatherford, Garry 2:19-cv-03779-PHX-DGC Va. W.D. AttachmCAenStE B M – ACNasAeGs TEoM BEeN DTi sOmRisDseEdR W NitOh. P5r0e judice (April 14, 2021) Billy C. Adams CV18-03355-PHX-DGC Jacqueline Z. Allen CV18-02840-PHX-DGC Sandra Andrus CV18-04549-PHX-DGC Luanne K. Aviles CV19-00621-PHX-DGC Gary Barber CV17-04064-PHX-DGC William H. Blake CV17-04309-PHX-DGC Michelle M. Blythe CV18-04335-PHX-DGC Eugene Bowski CV17-04174-PHX-DGC Margaret Brazeale CV16-03789-PHX-DGC Bobbie E. Brechbill as PR for Donald E. Brechbill CV19-00654-PHX-DGC Don Brenner CV18-00105-PHX-DGC Tamesha Brooks CV17-03170-PHX-DGC Cheryl Brown CV17-03672-PHX-DGC Dena Brumfield CV17-00416-PHX-DGC Merloren V. Butts CV17-03257-PHX-DGC James D. Byirt CV17-03716-PHX-DGC Gibson A. Cameron, III CV19-02445-PHX-DGC Nellie Campbell CV17-04191-PHX-DGC John Carter CV17-03635-PHX-DGC Ronald Coleman CV18-03530-PHX-DGC David Cox CV18-01859-PHX-DGC Jeffrey Curtis CV18-00101-PHX-DGC Christopher W. Cusak CV18-04472-PHX-DGC George Davis CV18-04507-PHX-DGC James Davis, Jr. CV19-00810-PHX-DGC Kimberly A. Davis CV18-04625-PHX-DGC Anthony Deanda CV17-04254-PHX-DGC Gisela B. Deason CV19-00631-PHX-DGC Brad V. DeMeere CV18-03539-PHX-DGC Ben Dickerson, Jr. CV17-01244-PHX-DGC Michelle Draper as PR for Stacy Draper CV17-02646-PHX-DGC Veronda J. Dunlap CV17-03333-PHX-DGC Steven Dyson CV17-02811-PHX-DGC Gordon Eric Edelmann CV16-03163-PHX-DGC Vincent M. Fazio CV19-01031-PHX-DGC Linda Foote CV18-03647-PHX-DGC Steve Frey CV17-04144-PHX-DGC AttachmCAenStE B M – ACNasAeGs TEoM BEeN DTi sOmRisDseEdR W NitOh. P5r0e judice (April 14, 2021) Hilda Garcia CV18-03707-PHX-DGC Shacora R. Gardner-Chasen CV19-00637-PHX-DGC Marie Gaston-Jefferson CV19-02973-PHX-DGC Jerri L. Gordon CV19-03008-PHX-DGC Veronica Gordon CV16-02056-PHX-DGC Louise Greene CV17-00011-PHX-DGC Jacqueline Hamilton CV16-01885-PHX-DGC Shrell Harris CV17-04190-PHX-DGC Susan Hobbs CV17-04178-PHX-DGC Dover Jackson CV18-01607-PHX-DGC Lisa Jenks CV19-02475-PHX-DGC Sheliba Jiles CV19-00470-PHX-DGC Clifford Jones CV17-03846-PHX-DGC Andera King CV19-04007-PHX-DGC Pierre J. Lacroze CV17-03020-PHX-DGC Michael Lance CV16-03395-PHX-DGC Timothy Leanier CV19-02654-PHX-DGC Anthony B. Lewis CV17-03595-PHX-DGC Benjamin Lewis CV17-01279-PHX-DGC Matthew W. Lightbody CV18-04486-PHX-DGC Carmen Madrid CV19-00112-PHX-DGC Diane Makosky CV19-03206-PHX-DGC Richard G. Man CV17-03258-PHX-DGC Doris A. Martin CV18-03704-PHX-DGC Robin Meininger CV19-04012-PHX-DGC Michael Melton CV19-02454-PHX-DGC Michelle K. Messner CV18-04581-PHX-DGC Michael Miller and Judie Miller CV18-02195-PHX-DGC Maria Muniz and Jose Perez CV16-02088-PHX-DGC Mildred Myers CV18-04448-PHX-DGC Ray W. Neal CV17-01162-PHX-DGC JoAnn E. Neff and William Neff CV17-01165-PHX-DGC Marianne Nissen CV17-03622-PHX-DGC Carol S. Perella CV19-00665-PHX-DGC Karla Powell-Barbosa CV17-02695-PHX-DGC Brent A. Querry CV17-03673-PHX-DGC Natalia A. Rebollo CV17-03791-PHX-DGC AttachmCAenStE B M – ACNasAeGs TEoM BEeN DTi sOmRisDseEdR W NitOh. P5r0e judice (April 14, 2021) Joe Reed CV19-01965-PHX-DGC Lisa Reynolds CV19-04075-PHX-DGC Schwann Richardson CV17-04267-PHX-DGC Fiordalisa Salcedo CV17-00621-PHX-DGC Jered J. Salmon CV16-00196-PHX-DGC Edward Scott CV19-00065-PHX-DGC Ardelia Sellars CV19-01928-PHX-DGC Margie W. Shaw CV18-01782-PHX-DGC Norman Shedd CV18-04049-PHX-DGC James Singleton CV18-03945-PHX-DGC Brandi Sitar CV17-03848-PHX-DGC Christopher R. Smith CV17-04185-PHX-DGC Helen Douglas Smith CV16-04124-PHX-DGC Lisann St. Clair CV19-03108-PHX-DGC Amy Stokes CV19-02451-PHX-DGC Kristina Strickland CV18-03802-PHX-DGC Aaron Sydnor CV17-00233-PHX-DGC Michael Taylor CV17-02987-PHX-DGC Ella M. Tervasi CV18-04416-PHX-DGC Stephen E. Tessier CV17-04365-PHX-DGC Felicia Thomas CV19-00325-PHX-DGC Nicole Thomas CV18-00402-PHX-DGC Rosilyn R. Thomas CV19-00596-PHX-DGC Deborah Thompson CV19-01377-PHX-DGC Mike H. Thompson CV18-03890-PHX-DGC Dudley F. Turpin CV17-03080-PHX-DGC Quanita Underwood and Robert Underwood CV16-00614-PHX-DGC James Urgo CV17-04470-PHX-DGC Michael Van Holt CV19-04287-PHX-DGC Linda G. Vargas CV18-03937-PHX-DGC Shayla Wadsworth CV18-02741-PHX-DGC Anita Wagner CV19-00862-PHX-DGC Jamie Wagner as PR for Sally R. Wagner CV18-03388-PHX-DGC Paul M. Walker CV17-04411-PHX-DGC Cassandra Waller CV17-04266-PHX-DGC Jamie Wenger CV18-00983-PHX-DGC Antwoin Weston CV18-03852-PHX-DGC AttachmCAenStE B M – ACNasAeGs TEoM BEeN DTi sOmRisDseEdR W NitOh. P5r0e judice (April 14, 2021) James D. White CV18-03788-PHX-DGC Tonya White Mountain CV18-01962-PHX-DGC Nancy Will CV16-02195-PHX-DGC Verdia Williams CV18-03998-PHX-DGC Cora Williford CV17-02201-PHX-DGC Otis Woods CV17-04677-PHX-DGC Karen Wysinger CV17-03921-PHX-DGC Sidney Young CV18-04498-PHX-DGC