Allen v. Bayer Corporation

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: PHENYLPROPANOLAMINE (PPA) 
PRODUCTS LIABILITY LITIGATION,*
No. 04-35370
SHANTELL ALLEN, on behalf of
Allen, Vera, et al.,*  D.C. No.
MD-01-01407-BJR*
Plaintiffs-Appellants,
v.
BAYER CORPORATION, et al.,
Defendants-Appellees.

LEON ANDERSON, JR., et al.,*  No. 04-35562
Plaintiffs-Appellants,
v.  D.C. No.
MD-01-01407-BJR*
BAYER CORPORATION, et al.,
Defendants-Appellees.

*A complete list of the appellants and appellees with district court case
numbers is set forth in a separate, unpublished order filed contemporane-
ously with this opinion. Certain appellants on that list were dismissed in
this court’s orders filed on January 14, 2005, and February 21, 2006. The
names of some of the dismissed appellants who were lead plaintiffs in
multi-plaintiff cases have been retained on the caption for reference pur-
poses only.
10293
10294 IN RE PHENYLPROPANOLAMINE
LESLIE ACKEL, et al.,*  No. 04-35588
Plaintiffs-Appellants,
v.  D.C. No.
MD-01-01407-BJR*
BAYER CORPORATION, et al.,
Defendants-Appellees.

BRIDGETT ARRINGTON, et al.,*  No. 04-35611
Plaintiffs-Appellants,
v.  D.C. No.
MD-01-01407-BJR*
BAYER CORPORATION, et al.,
Defendants-Appellees.

CALVIN MCGRIGGS, et al.,*  No. 04-35614
Plaintiffs-Appellants,
v.  D.C. No.
CV-03-03428-BJR*
DELACO COMPANY, et al.,
Defendants-Appellees.

BETTY CLINTON, et al.,*  No. 04-35621
Plaintiffs-Appellants,
v.  D.C. No.
MD-01-01407-BJR*
DELACO COMPANY, et al.,
Defendants-Appellees.

IN RE PHENYLPROPANOLAMINE 10295
DONNA SASSEEN,  No. 04-35884
Plaintiff-Appellant,
v.  D.C. No.
CV-03-03279-BJR
IDE INTERSTATE INC., et al.,
Defendants-Appellees.

ELIZABETH PAGE,  No. 04-36137
Plaintiff-Appellant,
v.  D.C. No.
CV-03-01343-BJR
BAYER CORPORATION,
Defendant-Appellee.

MARIE RILEY, 
Plaintiff-Appellant,
v.
No. 05-35105
WYETH, obo itself and its
unincorporated division, Wyeth  D.C. No.
CV-03-02073-BJR
Consumer Healthcare, fka
Whitehall-Robins Healthcare
formerly known as American
Home Products Corporation, et al.,
Defendants-Appellees.

10296 IN RE PHENYLPROPANOLAMINE
KEVA K. ALFORD, on behalf of all 
wrongful death beneficiaries of
Henry Dexter, et al.,*
Plaintiffs-Appellants,
and
EDDIE BULLOCK, et al.,
Plaintiffs,
v. No. 05-35121
WYETH, obo itself and its
unincorporated division, Wyeth  D.C. No.
CV-04-00399-BJR*
Consumer Healthcare, fka
Whitehall-Robins Healthcare
formerly known as American
Home Products Corporation, et al.,
Defendants-Appellees,
and
NOVARTIS PHARMACEUTICALS
CORPORATION, et al.,
Defendants.

BOBBY HOLMES, et al.,  No. 05-35129
Plaintiffs-Appellants,
v.  D.C. No.
CV-01-02061-BJR
BAYER CORPORATION,
Defendant-Appellee.

IN RE PHENYLPROPANOLAMINE 10297
MELODY MCDANIEL, 
Plaintiff-Appellant, No. 05-35147
v.  D.C. No.
WAL-MART STORES, INC., et al., CV-03-03226-BJR
Defendants-Appellees.

SAMANTHA SAMUELS, et al.,  No. 05-35184
Plaintiffs-Appellants,
v.  D.C. No.
CV-01-02059-BJR
BAYER CORPORATION,
OPINION
Defendant-Appellee.

Appeals from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted
February 7 and 8, 2006**—Seattle, Washington
**Eighteen appeals, several consolidated, were randomly assigned to
two panels, one consisting of Judges D. Nelson, Rymer, and Fisher, the
other of Judges Leavy, Rymer, and Fisher. The Nelson/Rymer/Fisher
panel heard argument on February 7, 2006 in Hill v. Bayer, No. 05-35219,
and Anderson v. Bayer, No. 04-35875. The panel unanimously found
Womack v. SmithKline Beecham, No. 04-35933, Page v. Bayer, No. 04-
36137, Ackel v. Bayer, No. 04-35588, Arrington v. Bayer, No. 04-35611,
McGriggs v. Delaco, No. 04-35614, Riley v. Wyeth, No. 05-35105,
Holmes v. Bayer, No. 05-35129, McDaniel v. Wal-Mart Stores, No. 05-
35147, and Samuels v. Bayer, No. 05-35184, suitable for decision without
oral argument. Disposition of these cases has priority over cases heard by
the Leavy/Rymer/Fisher panel on February 8, 2006 in Burrage v. Bayer,
No. 03-35953, Allen v. Bayer, No. 04-25370, Leon Anderson v. Bayer, No.
04-35562, and Lorrilla Hill v. Bayer, No. 04-85518. This panel unani-
mously found Clinton v. Delaco, No. 04-35621, Sasseen v. IDE Interstate,
10298 IN RE PHENYLPROPANOLAMINE
Filed August 29, 2006
Before: Dorothy W. Nelson, Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges; and Edward Leavy,
Pamela Ann Rymer and Raymond C. Fisher, Circuit Judges.1
Opinion by Judge Rymer;
Partial Concurrence and Partial Dissent by Judge Rymer
No. 04-35884, and Alford v. Bayer, No. 05-35121, suitable for decision
without oral argument.
This opinion resolves all appeals except Womack v. SmithKline Bee-
cham, No. 04-35933, Hill v. Bayer, No. 05-35219, Anderson v. Bayer, No.
04-35875, Burrage v. Bayer, No. 03-35953, and Lorilla Hill v. Bayer, No.
04-35518, for which separate unpublished dispositions have been filed.
1
All judges participated in deciding, and sign the opinion with respect
to, Parts I, II and III which are common to all appeals. Judges Nelson and
Leavy participated in deciding — and sign an opinion only with respect
to — those appeals assigned to the panel of which they were respectively
a member. For convenience, we note panel composition for discrete
appeals Part by Part.
IN RE PHENYLPROPANOLAMINE 10303
COUNSEL
Damon A. Kirin, Murray Law Firm, New Orleans, Louisiana,
for plaintiffs-appellants Allen, Anderson, Clinton, Riley,
Holmes and Samuels; Michael J. Miller, Miller & Associates,
Alexandria, Virginia, for plaintiff-appellant Hill.
Randolph S. Sherman (argued), Kaye Scholer, LLP, New
York, New York, and D. Joseph Hurson (signed the briefs),
Lane Powell Spears Lubersky LLP, Seattle, Washington, for
the defendants-appellees.
Stephen B. Murray, Sr., Murray Law Firm, New Orleans,
Louisiana, for plaintiffs-appellants Ackel, Arrington, and
McGriggs.
Terry O. Tottenham, Fulbright & Jaworski LLP, Austin,
Texas, and Douglas A. Hofmann, Williams, Kastner & Gibbs,
PLLC, Seattle, Washington, for the defendants-appellees.
Leila H. Watson, Cory Watson Crowder & DeGaris, P.C.,
Birmingham, Alabama, for plaintiff-appellant Sasseen.
D. Joseph Hurson, Lane Powell Spears Lubersky LLP, Seat-
tle, Washington, for the defendants-appellees.
10304 IN RE PHENYLPROPANOLAMINE
David B. Vermont, Herman, Mathis, Casey, Kitchens &
Gerel, LLP, Alexandria, Virginia, for plaintiff-appellant Page.
W. Thomas McCraney, III, McCraney & Montagnet, PLLC,
Jackson, Mississippi, for plaintiffs-appellants McDaniel and
Alford.
Frank A. Wood, Jr., Watkins & Eager PLLC, Jackson, Missis-
sippi, for defendant-appellee Bayer Corporation.
Alan J. Lazarus, Drinker Biddle & Reath LLP, San Francisco,
California, for all defendants-appellees SmithKline Beecham
Corporation (dba Glaxosmithkline) and GlaxoSmithKline
Consumer Healthcare, L.P.
OPINION
RYMER, Circuit Judge:
These appeals are from judgments of dismissal entered in
a multidistrict litigation (MDL) proceeding for failure to com-
ply with case management orders. The orders were entered
with the agreement of all sides that they were necessary to
move hundreds of cases and thousands of plaintiffs toward
resolution on the merits. The district court found that many
plaintiffs inexcusably failed to do what was required, and dis-
missed their actions. Some appeal. We must decide whether
these dismissals were a clear error of judgment.
The principles that guide a court’s discretion to dismiss are
well settled, but we have never addressed how they play out
in the context of multidistrict litigation. We conclude that
while the rules are the same as for ordinary litigation on an
ordinary docket — that is, a court determining whether to dis-
miss an action on account of a plaintiff’s noncompliance with
a court order must weigh the public’s interest in expeditious
IN RE PHENYLPROPANOLAMINE 10305
resolution of litigation; the court’s need to manage its docket;
the risk of prejudice to the defendants; the public policy
favoring the disposition of cases on their merits; and the avail-
ability of less drastic sanctions — multidistrict litigation is
different because of the large number of cases that must be
coordinated, its greater complexity, and the court’s statutory
charge to promote the just and efficient conduct of the
actions. 28 U.S.C. § 1407. As a result, the considerations that
inform the exercise of discretion in multidistrict litigation may
be somewhat different, and may tip the balance somewhat dif-
ferently, from ordinary litigation on an ordinary docket.
Recognizing this, we cannot say that the district court
abused its discretion in dismissing the cases before us, except
for McGriggs and Sasseen, as to which we reverse.2
I
Phenylopropanolamine (PPA) was used in many deconge-
stants and weight-control products until the Food and Drug
Administration (FDA) issued a public health advisory on
November 6, 2000 warning that this ingredient potentially
increased the risk of hemorrhagic stroke. See U.S. Food &
Drug Admin., Ctr. for Drug Evaluation & Research, Pub.
Health Advisory Subject: Safety of Phenylpropanolamine,
Nov. 6, 2000, http://www.fda.gov/cder/drug/infopage/ppa/
advisory.htm (last visited Feb. 26, 2006). The advisory stated
that the FDA was taking steps to remove PPA from drug
products and to request drug companies to discontinue mar-
keting products containing PPA. Id.; see also U.S. Food &
Drug Admin., Ctr. for Drug Evaluation & Research, Phenyl-
propanolamine (PPA) Information Page, http://www.fda.gov/
cder/drug/infopage/ppa/default.htm (last visited Feb. 26,
2006).
2
The disposition as to McGriggs is authored by Judge Fisher, joined by
Judge D. Nelson.
10306 IN RE PHENYLPROPANOLAMINE
As a result, lawsuits were filed in state and federal courts
throughout the country against pharmaceutical companies by
persons claiming injury for ingestion of a product containing
PPA. On motion of plaintiffs in one such action in the Eastern
District of Louisiana, the Judicial Panel on Multidistrict Liti-
gation found that fourteen actions then pending in several dis-
trict courts were rooted in complex core questions concerning
the safety of PPA and that centralization was necessary to
eliminate duplicative discovery, prevent inconsistent pretrial
rulings, and conserve the resources of the parties, their coun-
sel, and the judiciary. See In re Phenylpropanolamine (PPA)
Prods. Liab. Litig. No. 1407, 173 F. Supp. 2d 1377, 1379
(J.P.M.L. 2001). Accordingly, on August 28, 2001, the Panel
designated the Western District of Washington as the appro-
priate forum for MDL 1407, and ordered the PPA actions to
be transferred and assigned to Hon. Barbara Jacobs Rothstein
for pretrial consolidation and coordination.3 Id. at 1380.
MDL 1407 got under way with an initial status conference
on November 16, 2001. It addressed the leadership structure
for counsel, and issues relating to discovery, experts, use of
technology, class actions, and federal-state coordination. The
court appointed Lead and Liaison Counsel for plaintiffs and
defendants on November 21 and a Plaintiffs’ Steering Com-
mittee on January 17, 2002. As part of its duties, the Plain-
tiffs’ Steering Committee was to assist all plaintiffs in MDL
1407 by overseeing discovery, communicating with plaintiffs’
lawyers, making court appearances, attending status confer-
ences, and preparing motions and responses regarding case-
wide discovery matters.
At the court’s direction, the parties submitted an agreed-
3
More than 3300 actions were eventually listed on the docket in MDL
1407. See Judicial Panel on Multidistrict Litigation, Distrib. of Pending
MDL Dockets (as of Jan. 10, 2006), http://www.jpml.uscourts.gov/
Pending_MDLs/PendingMDL-January-06.pdf; http://www.jpml.uscourts.
gov/Pending_MDLs/pending_mdls.html.
IN RE PHENYLPROPANOLAMINE 10307
upon Case Management Order (CMO) 1, which set out basic
procedures and a master framework for discovery. Among
other things, this order, filed January 29, 2002, states that “[a]
party’s failure to either produce a relevant document or iden-
tify same as withheld pursuant to a privilege may be viewed
by the Court as an infraction of its orders, justifying appropri-
ate sanctions.” CMO 1 at ¶ VIII. It also provides that notice
by the court to Plaintiffs’ Liaison Counsel and Defendants’
Liaison Counsel of any matter or ruling relating to all actions
would be considered as notice to all MDL 1407 parties, and
that service on Liaison Counsel would constitute service on
all plaintiffs’ and all defendants’ counsel, respectively. Id. at
¶ III C, D.
A series of eighteen case management orders followed.
They were applicable MDL-wide to all PPA actions trans-
ferred to MDL 1407, and governed both MDL-wide and case-
specific issues. Case Management Orders were posted on the
court’s public website for the PPA litigation (http://
www.wawd.uscourts.gov/mdl). The primary orders at issue in
these appeals are CMOs 6, 10, and 19, which control pretrial
management of discovery, and CMOs 13 and 15, which con-
cern product identification.
Case Management Order 6, filed March 18, 2002, set forth
the basic principles for taking fact discovery of plaintiffs. No
objections were lodged to the order in its final form. It
requires all case-specific discovery to occur during the time
periods permitted in the order, and adopts a “Plaintiff’s Fact
Sheet” (PFS) protocol in lieu of interrogatories to streamline
the process. The PFS is a questionnaire to be signed under
oath seeking information about the plaintiffs’ injuries, medi-
cal history, current medical condition, identification of the
product claimed to have caused injury, specifics of the injury
suffered, and the identity of the plaintiffs’ healthcare provid-
ers. It also includes blank authorizations to be signed by
plaintiffs to allow defendants to collect medical and other
records. (CMO 6A replaced several authorizations in CMO 6
10308 IN RE PHENYLPROPANOLAMINE
that did not comply with federal statutory provisions, but
made no other changes.) CMO 6 set a case-specific cut-off
date of February 28, 2003 for all cases docketed in the MDL
by February 12, 2002, and for cases docketed after February
28, 2003, case-specific discovery was to be completed within
12 months of the docket date. Plaintiffs in every case cur-
rently docketed were ordered to complete a Plaintiff’s Fact
Sheet no later than 45 days after a blank PFS was transmitted
by defendants, and plaintiffs in all cases transferred to MDL
1407 thereafter were to complete a PFS within 45 days after
service. The PFS was the starting point for defendants’ assess-
ment of plaintiffs’ claims and the precondition for proceeding
with further discovery, including depositions; defendants
could not take case-specific fact depositions sooner than 120
days after the plaintiff served a completed Fact Sheet. CMO
6 provided that Defendants’ Liaison Counsel was to send a
warning letter to any plaintiff who failed to serve a Fact Sheet
within the time allowed; if the plaintiff still failed to furnish
complete responses within 30 days of the warning letter,
defendants could seek appropriate relief if a meet and confer
did not resolve the issues.
There were approximately 439 cases in the MDL when
CMO 6 was entered; eight months later, there were more than
1,500 plaintiffs in 736 cases either in, or pending transfer to,
MDL 1407. The court found that despite the efforts of the
Defendants’ and the Plaintiffs’ Steering Committees, many
plaintiffs had failed to comply with CMO 6’s requirement to
complete a Plaintiff’s Fact Sheet. Therefore, the court entered
CMO 10 on November 22, 2002 “to provide for the timely
completion of discovery.” CMO 10 provides that the one-year
period for completion of discovery would not begin to run
until a substantially complete PFS and accompanying authori-
zations were provided to defendants, and that no case would
be considered for remand until the plaintiff had complied with
the discovery requirements set forth in the court’s prior
orders, the court had determined that the discovery obliga-
tions of the plaintiff had been completed, and defendants had
IN RE PHENYLPROPANOLAMINE 10309
sufficient time to complete case-specific discovery. It also
states that “[n]othing in this Order shall prevent defendants
from seeking additional remedies or sanctions against any
plaintiff for failure to comply with the discovery obligations
set out in prior CMOs, on a case-by-case basis.”
CMO 19 was entered on June 23, 2004. The court noted
that it had issued CMO 10 after learning that plaintiffs had not
complied with the requirements of CMO 6, and found that
despite the requirements of CMOs 6 and 10, changes were
necessary to provide for the timely completion of case-
specific discovery in the MDL cases. CMO 19 ordered plain-
tiffs to complete a Plaintiff’s Fact Sheet in all respects and
serve it within 45 days after transmission of the blank PFS.
For cases where no PFS was returned, Defendants’ Liaison
Counsel were to send a letter warning that the case was sub-
ject to dismissal, after which the plaintiff would have an addi-
tional 15 days to comply. If a PFS were received on time but
was not completed in all respects, a deficiency letter was to
be sent allowing an additional 15 days to serve a completed
PFS and warning that the case was subject to dismissal if one
were not received.
Meanwhile, the court addressed two different product iden-
tification problems in CMOs 13 and 15. The first set of cases
involved individuals who claimed to have ingested one or
more PPA-containing products. CMO 13, entered on May 2,
2003, requires each plaintiff in a multi-defendant case to file
and serve within 30 days an Affirmation setting forth the PPA
product he or she allegedly ingested and the manufacturer of
that product. It authorizes defendants to submit a proposed
order of dismissal with prejudice of the claims of any plain-
tiffs who failed to identify them in the PFS or in their Affir-
mation, and to seek additional sanctions with regard to
discovery and PFS obligations.
The other set of cases involved unrelated claims of numer-
ous plaintiffs who were joined without specifying which prod-
10310 IN RE PHENYLPROPANOLAMINE
ucts they allegedly ingested or the manufacturers of the
products that allegedly caused their injuries. By way of exam-
ple, the court noted that there were 29 pending cases out of
Louisiana that attempted to join over 1000 plaintiffs, with one
case alone (not on appeal) accounting for over 500 PPA plain-
tiffs. Therefore, it entered CMO 15 on May 29, 2003, direct-
ing each plaintiff in a multi-plaintiff case to file and serve an
individual, new complaint within 30 days to provide specific
allegations regarding the products allegedly ingested, the
dates on which the products were ingested, the injury alleged,
and the dates of injury. CMO 15A, issued August 26, 2003,
supplemented CMO 15 by providing for dismissal with preju-
dice of all jointly-filed complaints, including those plaintiffs
for whom a timely filed individual severed complaint was not
filed, as of the effective date of the order (October 26, 2003).
The court held a status conference on July 31, 2003 to
address the problem of noncompliance with both the discov-
ery and the product-identification CMOs. Liaison Counsel,
members of the Plaintiffs’ Steering Committee and Discovery
Steering Committee, and Lead Counsel appeared. During this
session, Judge Rothstein stated from the bench:
I right now will tell you that any case that has not
complied with my discovery order will be dismissed.
Now, that sounds simple, because there are some
cases you can tell right off the bat there are no fact
sheets, no medical records; they will be dismissed.
But then you get into the more complicated cases
that I think [counsel] was about to address, but I’m
going to go into it myself. And that is cases that have
not complied with my order to break down multi-
plaintiff cases into single plaintiff cases with a spe-
cific complaint that sets out the facts for the case.
Now, when hundreds of cases are filed with
exactly the same complaint, I would say, by defini-
IN RE PHENYLPROPANOLAMINE 10311
tion, you’re in violation of the order. And if a motion
is brought, I will dismiss those cases.
Now, if there’s an answer that for some reason,
justifiable reason really and truly all of those plain-
tiffs were exactly the same and had the same injury
from the same product against the same defendant on
the same day, if you can convince me that that’s the
case, I will certainly not dismiss the case.
But the time has come to figure out which of these
cases are real and which of them aren’t. And if dis-
covery hasn’t been complied with, there’s a strong
presumption on my part that the case should be dis-
missed . . . .
A minute entry documenting the July 31, 2003 status confer-
ence and indicating that “[t]he court instructed the Defendants
to diligently pursue filing motions to dismiss for failure to
comply with CMO 6, 13, and 15” was posted on the district
court’s electronic docketing system, PACER/CM-ECF, on
August 7, 2003 as “Document 1922,” and a few months later
on the court’s public MDL website. See W.D. Wa. PPA Litig.
Website, http://www.wawd.uscourts.gov/mdl.
Defendants moved to dismiss the claims of plaintiffs who
did not comply with these orders. The district court denied
some requests, and granted others. Appeals were not taken
from a great number of dismissal orders,4 but timely appeals
were filed in the matters now before us. We shall consider the
factual background, and procedural posture, of these cases
individually once we have discussed the general standards by
which we review dismissals for failure to comply with court
4
For example, more than 850 claims were dismissed pursuant to defen-
dants’ motions to dismiss for failure to comply with CMO 6 in Allen,
Anderson, Hill, and Clinton; of these, 237 pursue a challenge to these dis-
missals in the Allen, Anderson, and Clinton consolidated appeals.
10312 IN RE PHENYLPROPANOLAMINE
orders, and the MDL context in which these dismissals were
ordered.
II
[1] The principles that apply to dismissals for violation of
pretrial orders are well established, as are the standards that
govern appellate review. Courts are to weigh five factors in
deciding whether to dismiss a case for failure to comply with
a court order: “(1) the public’s interest in expeditious resolu-
tion of litigation; (2) the court’s need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public pol-
icy favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.” Malone v. U.S. Postal
Serv., 833 F.2d 128, 130 (9th Cir. 1987) (quoting Thompson
v. Hous. Auth. of City of Los Angeles, 782 F.2d 829 (1986)
(per curiam)). These factors are “not a series of conditions
precedent before the judge can do anything,” but a “way for
a district judge to think about what to do.” Valley Eng’rs Inc.
v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
We review for abuse of discretion. “Although it is pre-
ferred, it is not required that the district court make explicit
findings in order to show that it has considered these factors
and we may review the record independently to determine if
the district court has abused its discretion.” Ferdik v. Bonze-
let, 963 F.2d 1258, 1261 (9th Cir. 1992) (as amended);
Malone, 833 F.2d at 130; Henderson v. Duncan, 779 F.2d
1421, 1424 (9th Cir. 1986). “ ‘Dismissal is a harsh penalty
and is to be imposed only in extreme circumstances.’ Never-
theless, we will overturn a dismissal sanction only if we have
a definite and firm conviction that it was clearly outside the
acceptable range of sanctions.” Malone, 833 F.2d at 130(quoting Henderson, 779 F.2d at 1423) (internal citation omit-
ted).
Expeditious resolution of litigation. As the first of the Fed-
eral Rules of Civil Procedure reflects, the public has an over-
IN RE PHENYLPROPANOLAMINE 10313
riding interest in securing “the just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1. Orderly and
expeditious resolution of disputes is of great importance to the
rule of law. By the same token, delay in reaching the merits,
whether by way of settlement or adjudication, is costly in
money, memory, manageability, and confidence in the pro-
cess. We defer to the district court’s judgment about when
delay becomes unreasonable “because it is in the best position
to determine what period of delay can be endured before its
docket becomes unmanageable.” Moneymaker v. CoBen (In
re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994).
Court’s need to manage its docket. “District courts have an
inherent power to control their dockets. In the exercise of that
power they may impose sanctions including, where appropri-
ate, default or dismissal.” Thompson, 782 F.2d at 831. “It is
incumbent upon us to preserve the district courts’ power to
manage their dockets” without being subject to endless non-
compliance with case management orders. Ferdik, 963 F.2d at
1261. Rule 16, the central pretrial rule, authorizes a court to
manage cases so that disposition is expedited, wasteful pre-
trial activities are discouraged, the quality of the trial is
improved, and settlement is facilitated. It recognizes “the need
for adopting special procedures for managing potentially dif-
ficult or protracted actions that may involve complex issues,
multiple parties, difficult legal questions, or unusual proof
problems.” Fed. R. Civ. P. 16(c)(12). The goal is to get cases
decided on the merits of issues that are truly meritorious and
in dispute. Subsection (f) puts teeth into these objectives by
permitting the judge to make such orders as are just for a
party’s failure to obey a scheduling or pretrial order, including
dismissal. Rule 37(b)(2)(C) allows dismissal for failure to
comply with discovery plans and orders, and Rule 41(b) per-
mits dismissal for failure of the plaintiff to prosecute or to
comply with any order of court. In addition, the Supreme
Court has recognized that dismissal “must be available to the
district court in appropriate cases, not merely to penalize
those whose conduct may be deemed to warrant such a sanc-
10314 IN RE PHENYLPROPANOLAMINE
tion, but to deter those who might be tempted to such conduct
in the absence of such a deterrent.” Nat’l Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per
curiam). So have we. See Allen v. Exxon Corp. (In re the
EXXON VALDEZ), 102 F.3d 429, 433 (9th Cir. 1996). This
factor is usually reviewed in conjunction with the public’s
interest in expeditious resolution and, as with the first factor,
we give deference to the district court “since it knows when
its docket may become unmanageable.” In re Eisen, 31 F.3d
at 1452.
Risk of prejudice to the defendant. “A defendant suffers
prejudice if the plaintiff’s actions impair the defendant’s abil-
ity to go to trial or threaten to interfere with the rightful deci-
sion of the case.” Adriana Int’l Corp. v. Thoeren, 913 F.2d
1406, 1412 (9th Cir. 1990); Malone, 833 F.2d at 131; In re
Eisen, 31 F.3d at 1453. Failing to produce documents as
ordered is considered sufficient prejudice. Adriana, 913 F.2d
at 1412. Late tender is no excuse. See, e.g., In re Eisen, 31
F.3d at 1453; Fair Hous. of Marin v. Combs, 285 F.3d 899,
906 (9th Cir. 2002); Henry v. Gill Indus., Inc., 983 F.2d 943,
947, 948 (9th Cir. 1993). The law also presumes prejudice
from unreasonable delay. In re Eisen, 31 F.3d at 1453 (quot-
ing Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.
1976)); Morris v. Morgan Stanley & Co., 942 F.2d 648, 652
(9th Cir. 1991) (as amended) (presuming from elapsed time
that defendants’ ability to defend a case has been prejudiced).
The presumption may be rebutted and if there is a showing
that no actual prejudice occurred, that fact should be consid-
ered when determining whether the district court exercised
sound discretion. In re Eisen, 31 F.3d at 1452-53 (quoting
Anderson, 542 F.2d at 524). A plaintiff may proffer an excuse
for delay that, if “anything but frivolous,” shifts the burden of
production to the defendant to show at least some actual prej-
udice; if it does, the plaintiff must persuade the court that the
claims of prejudice are illusory or relatively insignificant in
light of his excuse. Id. at 1453 (quoting Nealey v. Transporta-
cion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir.
IN RE PHENYLPROPANOLAMINE 10315
1980)); Hernandez v. City of El Monte, 138 F.3d 393, 401
(9th Cir. 1998) (reiterating that the burden of production shifts
to the defendant to show at least some actual prejudice only
after the plaintiff has given a non-frivolous excuse for delay).
In this circumstance prejudice, delay, and excuse all inform
the district court’s discretion. Prejudice normally consists of
loss of evidence and memory, In re Eisen, 31 F.3d at 1453;
it may also consist of costs or burdens of litigation, although
it may not consist of the mere pendency of the lawsuit itself,
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
That the case is “an involved, complex case increases the
prejudice from the delay. Early preparation and participation
are essential in such circumstances.” Anderson, 542 F.3d at
525 (citation omitted). The district court’s finding of preju-
dice “deserves ‘substantial deference’ because ‘the district
court is in the best position to assess prejudice.’ ” Computer
Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116 (9th Cir.
2004) (quoting Anheuser-Busch v. Natural Bev. Distribs., 69
F.3d 337, 354) (9th Cir. 1995)).
Disposition on the merits. We have often said that the pub-
lic policy favoring disposition of cases on their merits
strongly counsels against dismissal. See, e.g., Hernandez, 138
F.3d at 399. At the same time, a case that is stalled or unrea-
sonably delayed by a party’s failure to comply with deadlines
and discovery obligations cannot move forward toward reso-
lution on the merits. Thus, we have also recognized that this
factor “lends little support” to a party whose responsibility it
is to move a case toward disposition on the merits but whose
conduct impedes progress in that direction. See, e.g., In re the
EXXON VALDEZ, 102 F.3d at 433 (noting that plaintiffs’
total refusal to provide discovery obstructed resolution of
their claims on the merits); In re Eisen, 31 F.3d at 1454 (giv-
ing weight to the plaintiff’s failure to specify why it is impor-
tant that his actions be resolved on their merits); Morris, 942
F.2d at 652 (observing that it is the responsibility of the mov-
ing party to move toward disposition on the merits).
10316 IN RE PHENYLPROPANOLAMINE
Availability of less drastic sanctions. “ ‘The district court
abuses its discretion if it imposes a sanction of dismissal with-
out first considering the impact of the sanction and the ade-
quacy of less drastic sanctions.’ ” Malone, 833 F.2d at 131-32(quoting United States v. Nat’l Med. Enters., Inc., 792 F.2d
906, 912 (9th Cir. 1986)).5 Factors that indicate whether a dis-
trict court has considered alternatives include: “(1) Did the
court explicitly discuss the feasibility of less drastic sanctions
and explain why alternative sanctions would be inadequate?
(2) Did the court implement alternative methods of sanction-
ing or curing the malfeasance before ordering dismissal? (3)
Did the court warn the plaintiff of the possibility of dismissal
before actually ordering dismissal?” Id. at 132. While helpful
and encouraged, explicit discussion of alternatives is not nec-
essary for a dismissal order to be upheld. Id. Warning that
failure to obey a court order will result in dismissal can itself
meet the “consideration of alternatives” requirement. Estrada
v. Speno & Cohen, 244 F.3d 1050, 1057 (9th Cir. 2001);
Malone, 833 F.2d at 132-33; Adriana, 913 F.2d at 1413;
Ferdik, 963 F.2d at 1262. Although a warning is not always
required, Adriana, 913 F.2d at 1413; Malone, 833 F.2d at
132; Anheuser-Busch, 69 F.3d at 353, we focus more closely
on the lack of warning and absence of consideration of less
drastic alternatives when the dismissal is sua sponte rather
than in response to a noticed motion. See Oliva v. Sullivan,
958 F.2d 272, 274 (9th Cir. 1992). Compare In re Eisen, 31
F.3d at 1455, and Morris, 942 F.2d at 652 (rejecting a warn-
ing requirement in a case involving a noticed motion to
dismiss), with Oliva, 958 F.2d at 274 (reversing a dismissal
5
Malone notes that “[a]lternative sanctions include: ‘a warning, a formal
reprimand, placing the case at the bottom of the calendar, a fine, the impo-
sition of costs or attorney fees, the temporary suspension of the culpable
counsel from practice before the courts, . . . dismissal of the suit unless
new counsel is secured . . . preclusion of claims or defenses, or the imposi-
tion of fees and costs upon plaintiff’s counsel. . . .” Id. at 132 n.1 (quoting
Titus v. Mercedes Benz of N. Am., 695 F.2d 746, 749 n.6 (3rd Cir. 1982)).
Giving another chance following a failure to comply is also a sanction,
albeit a lenient one. Id.IN RE PHENYLPROPANOLAMINE 10317
because the court sua sponte dismissed a case without consid-
ering alternative sanctions or giving a warning), and Hamilton
v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir.
1987) (reversing a district court’s sua sponte dismissal of a
case because it failed to warn prior to dismissal). However,
for the prior implementation of a lesser sanction to be a per-
suasive factor, it must have occurred after the plaintiff’s viola-
tion of a court order. See Yourish v. Cal. Amplifier, 191 F.3d
983, 992 (9th Cir. 1999); Pagtalunan, 291 F.3d at 643.
[2] We have been guided by the same dismissal factors in
complex as well as ordinary cases. For example, we applied
these factors in determining whether dismissal for failure to
comply with discovery obligations was warranted in the liti-
gation arising out of the EXXON VALDEZ oil spill, which
involved “scores of lawsuits and thousands of litigants.” 102
F.3d at 433. There, we also took note of the fact that, even
though the appeal concerned only a fraction of the parties in
the overall litigation, the district court appropriately consid-
ered the importance of sanctions as a deterrent to noncompli-
ance by the thousands of other plaintiffs in the litigation. Id.However, we have never before addressed the issue of dis-
missals for failure to comply with case management orders in
the context of multidistrict litigation. As we recognized in
Toussaint v. McCarthy, “the scope of review will be directly
related to the reason why that category or type of decision is
committed to the trial court’s discretion in the first instance.”
801 F.2d 1080, 1088 (9th Cir. 1986). As we shall explain,
administering cases in multidistrict litigation is different from
administering cases on a routine docket, so the lens through
which the district court — and we, in turn — view transgres-
sions, and sanctions, is different as well.
III
[3] The goal of the multidistrict litigation process is to
“promote the just and efficient conduct” of “civil actions
involving one or more common questions of fact” that are
10318 IN RE PHENYLPROPANOLAMINE
pending in different districts. 28 U.S.C. § 1407(a). If realized,
hundreds or — as here, thousands — of cases, coordinated,
will proceed toward resolution on the merits with less burden
and expense overall than were each litigated through pretrial
individually.
Section 1407 arose out of the federal courts’ experience
with a massive prosecution of electrical equipment manufac-
turers for antitrust violations, which had been rendered man-
ageable only by conducting joint pretrial proceedings. See
H.R. Rep. No. 1130, 90th Cong., 2d Sess. 1 (1968), reprinted
in 1968 U.S.C.C.A.N. 1898, 1899.6 Although the parties had
voluntarily agreed to consolidate their cases in that instance,
Congress saw a need to create a mandatory version of that
procedure to govern cases such as “civil antitrust actions . . .,
common disaster (air crash) actions, patent and trademark
suits, products liability actions and securities law violation
actions, among others.” Id. at 1900. It therefore created the
Judicial Panel on Multidistrict Litigation and conferred on the
Panel the power to consolidate pretrial proceedings for such
cases and to assign them to a single judge who would coordi-
nate them.
This procedure was meant to “assure uniform and expedi-
tious treatment in the pretrial procedures in multidistrict liti-
gation.” Id. at 1901. Without it, “conflicting pretrial discovery
demands for documents and witnesses” might “disrupt the
functions of the Federal courts” as they nearly had in the elec-
trical equipment company cases. Id. at 1899. One of the
Panel’s first rulings described the alternative as “multiplied
delay, confusion, conflict, inordinate expense and inefficien-
cy.” In re Plumbing Fixture Cases, 298 F. Supp. 484, 495
6
The judges who coordinated the electrical engineering cases contrib-
uted their experience to the Manual on Complex and Multidistrict Litiga-
tion, which was developed in tandem with the proposed legislation that
ultimately became § 1407. Charles A. Wright, Arthur R. Miller, & Edward
H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3861 (2d ed. 1986).
IN RE PHENYLPROPANOLAMINE 10319
(J.P.M.L. 1968). It was thought that consolidation and central
coordination would avoid these dangers and would yield sig-
nificant benefits of economy and speed. As a former Execu-
tive Attorney to the Panel and the Executive Editor of the
Manual for Complex and Multidistrict Litigation wrote: “Im-
plicit in Section 1407 is the assumption that the transferee
judge will, as did the judges in the electrical equipment com-
pany cases, establish a national unified discovery program to
avoid delay, repetition and duplication and to insure that the
litigation is processed as efficiently and economically as pos-
sible.” John T. McDermott, “The Judicial Panel on Multidis-
trict Litigation,” 57 F.R.D. 215, 217 (1973).
Transfer proceedings may be commenced either on the
Panel’s own initiative or — as in MDL 1407 — by motion of
any party. 28 U.S.C. § 1407(c). The Panel analyzes each
group of cases in light of the statutory criteria and the primary
purposes of the MDL process to determine whether transfer
is appropriate. See In re Food Lion, Inc., F.L.S.A. Effective
Scheduling Litig., 73 F.3d 528, 532 (4th Cir. 1996); see also
Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION
§ 20.131 at 220 (4th Ed. 2004) (citing In re Plumbing Fixture
Cases, 298 F. Supp. 484 (J.P.M.L. 1968)); MULTIDISTRICT LIT-
IGATION MANUAL § 5.16 (noting that factors considered by the
Panel also include the progress of discovery, docket condi-
tions, familiarity of the transferee judge with the relevant
issues, and the size of the litigation). A transfer is effective
when the order of transfer is “filed in the office of the clerk
of the district court of the transferee district.” 28 U.S.C.
§ 1407(c). When the transfer becomes effective, “the jurisdic-
tion of the transferor court ceases and the transferee court has
exclusive jurisdiction.” MANUAL FOR COMPLEX LITIGATION
§ 20.131 at 220; see also MULTIDISTRICT LITIGATION MANUAL,
§ 9.1 (explaining that upon transfer of the litigation “the
divestment of [the transferor court’s] jurisdiction is com-
plete”). A transferee judge exercises all the powers of a dis-
trict judge in the transferee district under the Federal Rules of
Civil Procedure and “may make any pretrial order that the
10320 IN RE PHENYLPROPANOLAMINE
transferor court might have made in the absence of a trans-
fer.” Stanley A. Weigel, The Judicial Panel on Multidistrict
Litigation, Transferor Courts and Transferee Courts, 78
F.R.D. 575, 578-79 (1978); see also 28 U.S.C. § 1407(b)
(authorizing the transferee judge to “exercise the powers of a
district judge in any district for the purpose of conducting pre-
trial depositions”). This includes authority to decide all pre-
trial motions, including dispositive motions such as motions
to dismiss, motions for summary judgment, motions for invol-
untary dismissal under Rule 41(b), motions to strike an affir-
mative defense, and motions for judgment pursuant to a
settlement. See Weigel, 78 F.R.D. at 582-83; MANUAL FOR
COMPLEX LITIGATION § 20.131 at 222; 15 Charles A. Wright,
Arthur R. Miller, & Edward H. Cooper, FEDERAL PRACTICE
AND PROCEDURE § 3866, 618 (2d ed. 1986); In re Am. Cont’l
Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1532-
33 (9th Cir. 1996), rev’d on other grounds sub nom. Lexecon
Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26(1998) (noting that “the transferee court is empowered to dis-
pose of the cases transferred to it by means of summary judg-
ment or dismissal”); In re Donald J. Trump Casino Sec. Litig.
—Taj Mahal Litig., 7 F.3d 357, 367-68 (3rd Cir. 1993) (hold-
ing that Ҥ 1407 empowers transferee courts to enter a dispo-
sitive pre-trial order terminating a case”).
Once pretrial proceedings are completed in the MDL, the
Panel remands individual cases to the district court in which
the action was originally filed for trial. 28 U.S.C. § 1407(a)
(“Each action so transferred shall be remanded by the panel
at or before the conclusion of such pretrial proceedings to the
district court from which it was transferred unless it shall have
been previously terminated . . . .”). When remand occurs
depends upon the circumstances of the litigation and the rec-
ommendation of the transferee court. MANUAL FOR COMPLEX
LITIGATION § 20.133 at 225 (noting that “[t]he Panel looks to
the transferee court to suggest when it should order remand,
but that court has no independent authority to . . . remand”).
In MDL 1407, for instance, Judge Rothstein entered CMO 17
IN RE PHENYLPROPANOLAMINE 10321
on November 18, 2003, superseded by CMOs 17A, B, and C,
that detailed the procedures and conditions she would con-
sider before determining that a case was “ripe for remand.”
These conditions included completion of discovery permitted
by CMOs 1, 6, 6A, 10, 13, 13A, and 15. After an MDL action
is remanded, the transferor court resumes exclusive jurisdic-
tion over further proceedings. Id. at 226.
[4] A district judge charged with the responsibility of “just
and efficient conduct” of the multiplicity of actions in an
MDL proceeding must have discretion to manage them that is
commensurate with the task. The task is enormous, for the
court must figure out a way to move thousands of cases
toward resolution on the merits while at the same time
respecting their individuality. The court is also confronted
with substantial legal questions, such as, in MDL 1407, FDA
issues, Daubert7 motions, questions of joinder and federal
jurisdiction, class certification, timeliness of claims, and cau-
sation. For it all to work, multidistrict litigation assumes
cooperation by counsel and macro-, rather than micro-, judi-
cial management because otherwise, it would be an impossi-
ble task for a single district judge to accomplish. Coordination
of so many parties and claims requires that a district court be
given broad discretion to structure a procedural framework for
moving the cases as a whole as well as individually, more so
than in an action involving only a few parties and a handful
of claims. As the Court of Appeals for the First Circuit put it,
a district court must be able to “uncomplicate matters” and
counsel must, for their part, “collaborate with the trial judge
from the outset in fashioning workable programmatic proce-
dures, and thereafter alert the court in a timely manner as
operating experience points up infirmities warranting further
judicial attention.” Masaro v. Chesley (In re San Juan Dupont
Plaza Hotel Fire Litig.), 111 F.3d 220, 229 (1st Cir. 1997)
(internal quotation marks and citations omitted); see also MAN-
7
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (setting
standards for admissibility of expert opinions).
10322 IN RE PHENYLPROPANOLAMINE
UAL FOR COMPLEX LITIGATION, § 10 at 7 (“Fair and efficient
resolution of complex litigation requires at least that (1) the
court exercise early and effective supervision (and, where
necessary, control); (2) counsel act cooperatively and profes-
sionally; and (3) the judge and counsel collaborate to develop
and carry out a comprehensive plan for conduct of pretrial . . .
proceedings.”).
Pretrial plans will necessarily vary with the circumstances
of the particular MDL. However, the district judge must
establish schedules with firm cutoff dates if the coordinated
cases are to move in a diligent fashion toward resolution by
motion, settlement, or trial. See Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 172 (1989). As happened in MDL
1407, the multidistrict process contemplates involvement of
representative counsel in formulating workable plans. Once
established in consultation with counsel, time limits and other
requirements must be met and, “when necessary, appropriate
sanctions are imposed . . . for derelictions and dilatory tac-
tics.” MANUAL FOR COMPLEX LITIGATION § 10.13 at 13. “Close
judicial oversight and a clear, specific, and reasonable man-
agement program, developed with the participation of coun-
sel, will reduce the potential for sanctionable conduct because
the parties will know what the judge expects of them . . . .
Although sanctions should not generally be a management
tool, a willingness to resort to sanctions, sua sponte if neces-
sary, may ensure compliance with the management program.”
Id. at §10.151 at 15.
In sum, multidistrict litigation is a special breed of complex
litigation where the whole is bigger than the sum of its parts.
The district court needs to have broad discretion to administer
the proceeding as a whole, which necessarily includes keep-
ing the parts in line. Case management orders are the engine
that drives disposition on the merits.8 With this in mind, we
8
A great number of MDL 1407 plaintiffs complied with the court’s
orders, and their cases moved forward with relative speed. In some
IN RE PHENYLPROPANOLAMINE 10323
turn to the discrete appeals that arise from dismissals for fail-
ure to comply with CMOs 6, 10, 13, 15, and 19.
IV
Allen and Anderson9
In these consolidated appeals, Shantell Allen, et al., and
Leon Anderson,10 et al., appeal dismissal of their actions with
prejudice for failure to comply with CMOs 6 and 6A. CMO
6A simply changed the form of the authorizations required by
CMO 6, so we treat the appeals as involving CMO 6.
Almost all cases included in the Allen and Anderson
appeals were transferred to MDL 1407 in December 2002.
Completed Fact Sheets were due for most members of the
Allen group and all members of the Anderson group in March
or April, 2003. Both groups were among the first to be subject
to a motion to dismiss for noncompliance with CMO 6, and
were dismissed in a pair of orders issued on October 22 and
24, 2003.
Allen and Anderson argue that dismissal was too severe a
sanction and that noncompliance with the case-specific dis-
covery requirements of CMO 6 was not the result of willful-
ness, fault, or bad faith. They proffered several excuses in the
instances, settlement resulted. See In re Phenylpropanalomine (PPA)
Prods. Liab. Litig., 227 F.R.D. 553 (W.D. Wa. 2004) (certifying class and
approving settlement for plaintiffs alleging injury due to ingestion of Dex-
atrim). In others, remand for trial. Remand procedures were adopted
November 18, 2003, see CMO 17, http://www.wawd.uscourts.gov/mdl,
and the district court recommended remands in the first wave of cases in
March, 2004. Id.9
Allen and Anderson are before Judges Leavy, Rymer, and Fisher.
10
Leon Anderson, the lead plaintiff in case No. 04-35562, was dis-
missed as a party to the appeal for lack of jurisdiction pursuant to our
order dated February 21, 2006. We retain his name in this opinion for con-
venience to designate the group for whom he was formerly lead plaintiff.
10324 IN RE PHENYLPROPANOLAMINE
district court, including the difficulty in locating clients, the
debilitating nature of the injuries at issue, and the burden of
complying with other case management orders (CMOs 13 and
15). The district court was not persuaded, observing that no
additional time had been requested, and that the CMO 13 and
15 obligations stemmed from the plaintiffs’ own choice to file
mass-joinder cases against numerous defendants. Allen and
Anderson also contend that some of their plaintiffs tried to
cure deficiencies before the defendants moved to dismiss or
before the court’s order was entered. Allen points out that her
group served 114 Fact Sheets after the motion was filed, but
the district court found that many of them were incomplete.
This finding is not challenged on appeal. Anderson notes that
his group submitted a spreadsheet and supporting correspon-
dence establishing that three plaintiffs served some discovery
on August 27 or 29, but this was well past the deadlines in
CMO 6 and does not excuse failure to take timely action. See,
e.g., In re Eisen, 31 F.3d at 1453; Fair Hous., 285 F.3d at
906.
[5] Rule 37 sanctions, including dismissal, may be imposed
where the violation is “ ‘due to willfulness, bad faith, or fault
of the party.’ ” Fair Hous., 285 F.3d at 905 (quoting the stan-
dard articulated in United States v. Kahaluu Constr. Co., Inc.,
857 F.2d 600, 603 (9th Cir. 1988)) (emphasis added). “Dis-
obedient conduct not shown to be outside the litigant’s control
meets this standard.” Fair Hous., 285 F.3d at 905; Virtual
Vision, Inc. v. Praegitzer Indus., Inc. (In re Virtual Vision,
Inc.), 124 F.3d 1140, 1143 (9th Cir. 1997). Our review of the
record indicates that failure to comply with CMO 6 was not
outside Allen’s or Anderson’s control. See In re Virtual
Vision, 124 F.3d at 1145 (holding that a litigant’s failure to
advise counsel of his whereabouts and failure to keep abreast
of the status of his case indicates a lack of due diligence); W.
Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523
(9th Cir. 1990) (holding that “the faults and defaults of the
attorney may be imputed to, and their consequences visited
upon, his or her client”); Malone, 833 F.2d at 134 (same);
IN RE PHENYLPROPANOLAMINE 10325
Anderson, 542 F.2d at 526 (same); see also Link v. Wabash
R.R., 370 U.S. 626, 633 (1962). Thus, dismissal was an avail-
able sanction.
[6] The district court addressed the Malone, or dismissal, fac-
tors,11 and did not abuse its discretion in concluding that dis-
missal was appropriate. The court observed that many of the
cases subject to its dismissal order had been pending for close
to, or over, a year without forward movement, and that such
lack of diligence does not serve the public interest in expedi-
tious resolution of litigation. This is consistent with Yourish,
where we explained that dismissal serves the public interest
in expeditious resolution of litigation as well as the court’s
need to manage the docket when a plaintiff’s noncompliance
has caused the action to come to a halt, thereby allowing the
plaintiff, rather than the court, to control the pace of the
docket. 191 F.3d at 990. Sound management of the court’s
docket also counsels in favor of sanctions as a deterrent to
others, particularly in the context of an MDL proceeding
where there are thousands of plaintiffs and tag-along cases are
continually being added. The first two factors therefore weigh
heavily in favor of dismissal.
[7] The district court found that the unreasonable delay in
completing Fact Sheets prejudiced the defendants’ ability to
proceed with the cases effectively. It explained that the pur-
pose of the Plaintiff’s Fact Sheet was to give each defendant
the specific information necessary to defend the case against
it, and that without this device, a defendant was unable to
mount its defense because it had no information about the
plaintiff or the plaintiff’s injuries outside the allegations of the
11
The district court and parties refer to the dismissal factors as “Malone
factors,” probably because our opinion in Malone provides a comprehen-
sive discussion of them. 833 F.2d at 130-134. We recognized the impor-
tance of the same five factors before Malone was decided, but conforming
to the practice frequently followed in MDL 1407, we, too, refer to them
interchangeably as “Malone” or “dismissal” factors.
10326 IN RE PHENYLPROPANOLAMINE
complaint. We defer to this assessment. The court also found
that Allen’s and Anderson’s inability or unwillingness to fur-
nish the information requested in a timely fashion was not
excusable. Deference is due to this finding as well. Failure to
produce information without a good reason increases the risk
of prejudice from unavailability of witnesses and loss of
records. See Pagtalunan, 291 F.3d at 642-43 (recognizing that
unnecessary delay inherently increases the risk that witnesses’
memories will fade and evidence will become stale). This fac-
tor, too, supports the district court’s determination.
The court found there were no less drastic sanctions
remaining. It noted that the named plaintiffs received warning
letters from defendants that prompted no response. It also
noted that the sanction of preventing remand of the cases
where discovery requirements were unmet had previously
been imposed in CMO 10, and that it had ordered the time for
completing case-specific discovery not to begin to run until a
substantially complete PFS was furnished. Having provided
second and third chances following procedural defaults, the
district judge believed the ultimate sanction of dismissal was
justified. As the recitation of events was correct, and the dis-
trict judge was in the best position to evaluate their import,
this factor weighs in favor of dismissal.
Finally, the district court acknowledged that disposition
should be on the merits, but found that in light of the inability
of many of the named plaintiffs to provide any information
that only they possessed regarding the critical elements of
their claims, it was impossible to dispose of the case on the
merits. Allen and Anderson quarrel with the “impossibility”
of it, but we agree with the district court’s basic assessment
because, in a proceeding such as this, where the plaintiffs
themselves prevent their cases from moving forward, the pub-
lic policy favoring resolution on the merits cannot weigh
much, if at all, in their favor. See In re the EXXON VALDEZ,
102 F.3d at 433; Morris, 942 F.2d at 652 (placing responsibil-
ity on the plaintiff to move towards disposition on the merits).
IN RE PHENYLPROPANOLAMINE 10327
[8] Accordingly, the district court did not abuse its discre-
tion in dismissing these actions.
V
Alford12
Keva Alford and Earlene Johnson were dismissed (along
with other individuals originally named as part of the Alford
action) with prejudice for failure to comply with CMO 6.
Alford failed to file a timely PFS, and Johnson failed to file
authorizations.
Johnson was served with a blank PFS on February 3, 2004,
which meant that her completed Fact Sheet was due on March
19, 2004. On March 17, 2005, Johnson sought an extension
until April 19, 2004, which the district court granted. Johnson
timely submitted her PFS on April 19, 2004, but she did not
submit the required authorization forms that were necessary
to obtain her medical records and financial documents. On
June 8, 2004, an omnibus motion was filed under Fed. R. Civ.
P. 41(b) seeking the sanction of dismissal, pursuant to Fed. R.
Civ. P. 37(b)(2)(C), for actions where the plaintiffs had failed
to provide a timely, completed PFS. On June 14, 2004, six
days after the motion was filed and nearly two months after
the authorizations were due, Johnson supplemented her PFS
with the required authorizations.
Alford was served with blank Fact Sheets on March 16,
2004, which she was required to complete by April 9, 2004.
She filed nothing. Defendants’ Liaison Counsel sent Alford a
warning letter dated April 13, 2004, which stated:
You must serve a completed Plaintiff’s Fact Sheet
upon [defense counsel] . . . within 30 days of the
date of this warning letter . . . . Should you fail to
12
Alford is before Judges Leavy, Rymer, and Fisher.
10328 IN RE PHENYLPROPANOLAMINE
provide complete responses within the allowed time-
frame, defendants will be entitled to move the Court
for appropriate relief.
Please be advised that, should you fail to comply
with this deadline, the period for fact witness discov-
ery will not begin to run until you serve a substan-
tially complete Plaintiff’s Fact Sheet . . . .
Alford did not serve completed Fact Sheets within thirty days
of the warning or request an extension of time to complete
them. As a result, she was also included in the June 8, 2004
motion to dismiss. By then, Fact Sheets had been submitted
on behalf of only two of the thirty-two plaintiffs in the Alford
action.
In response to the motion to dismiss, Alford’s counsel, W.
Thomas McCraney, III, argued that he had assumed that a
copy of the warning letter had been sent to Herrington &
White, PLLC, lead counsel in Alford’s case, and thought Her-
rington & White would request more time. However,
McCraney never tried to verify that Herrington & White had
received the letter; he claimed that he was heavily involved in
a two-week trial on an unrelated matter at the beginning of
May, and was busy filing separate complaints as required by
CMO 15.
The district court granted the motion to dismiss. It was not
persuaded by McCraney’s claim that the failure to file timely
Fact Sheets was a result of an administrative mix-up, noting
that he had demonstrated awareness of CMO 6 obligations by
actually filing a timely PFS in at least two cases. The court
also noted that service of a PFS on a lead attorney for a given
plaintiff was deemed sufficient. Finally, the district court
found that counsel’s trial commitments and the deadlines for
filing individual complaints are routine demands of legal
practice which do not excuse failure to file timely Fact Sheets
or, at the least, to request an extension of time.
IN RE PHENYLPROPANOLAMINE 10329
[9] Johnson and Alford argue that dismissal was too harsh
a sanction, but our review of the record indicates that failure
to comply with CMO 6 was not outside Johnson’s and
Alford’s control. See W. Coast Theater, 897 F.2d at 1523(holding that “the faults and defaults of the attorney may be
imputed to, and their consequences visited upon, his or her
client”); Malone, 833 F.2d at 134 (same); Anderson, 542 F.2d
at 526 (same); see also Link, 370 U.S. at 633.
Alford differs from Allen in that the district court did not
explicitly discuss the Malone factors. However, the court had
gone through the Malone factors in its foundational analysis
of failure to comply with CMO 6 in early rulings such as
Allen, and we assume that Judge Rothstein, one of the most
experienced district judges in the country, understood the dis-
missal factors as they applied to MDL 1407. In any event,
considering the record in light of those factors ourselves, we
conclude that the district court had discretion to dismiss the
Johnson and Alford actions. The first two factors strongly
support the court’s decision. As we have discussed, this was
complex, multidistrict litigation involving thousands of plain-
tiffs who claimed to have suffered PPA-related injury. “[T]he
weight of the docket-managing factor depends upon the size
and load of the docket . . . .” Pagtalunan, 291 F.3d at 644(Trott, J., concurring). Here, given the size and complexity of
MDL 1407, the docket-managing factor is weighted heavily
in favor of dismissal.
CMO 6 set forth a framework for streamlined discovery.
When “despite the efforts of the Defendants’ and the Plain-
tiffs’ Steering Committee,” many plaintiffs were still delin-
quent eight months later, the court entered CMO 10 to
increase the incentive for compliance by foreclosing remand
until plaintiffs had completely complied with discovery
orders. Neither individually nor collectively could the MDL
cases move forward toward settlement or trial until compli-
ance was achieved. Further, noncompliance with discovery
orders diverted the court’s attention from time it could have
10330 IN RE PHENYLPROPANOLAMINE
devoted to other matters. See Ferdik, 963 F.2d at 1261 (“It is
incumbent upon us to preserve the district courts’ power to
manage their dockets without being subject to . . . endless . . .
noncompliance . . . .”).
Johnson and Alford contend that some delay in completing
Fact Sheets was inevitable, but they took this decision away
from the district court, where it belongs, by ignoring the order
instead of asking for relief. See Pagtalunan, 291 F.3d at 642(“The trial judge is in the best position to determine whether
the delay in a particular case interferes with docket manage-
ment and the public interest.”). The information called for
was solely within the plaintiffs’ knowledge. It was basic
information about ingestion and injury that was critical to
plaintiffs’ cases as well as to the defense, for without the
information plaintiffs’ claims would lack merit. CMO 6
arranged for it to be transmitted to defendants in a form that
is far simpler and easier to deal with than interrogatories, the
more customary form of first-stage discovery that can be both
cumbersome and tedious.
[10] Prejudice from unreasonable delay is presumed. In re
Eisen, 31 F.3d at 1452-53. Failure to produce documents as
ordered is sufficient prejudice, whether or not there is belated
compliance. Id. at 1453 (taking action after the defendant’s
motion to dismiss was pending does not excuse taking no
action before); Payne v. Exxon Corp., 121 F.3d 503, 508 (9th
Cir. 1997) (noting that last-minute tender of documents does
not cure prejudice or restore other litigants on a crowded
docket to the opportunity to use the courts); see also Adriana,
913 F.2d at 1413 n.6 (recognizing that refusal to produce evi-
dence presumptively shows that an asserted claim or defense
is meritless). The risk of prejudice is exacerbated where each
delay potentially affects the discovery and remand schedule in
hundreds of other cases. Although a plaintiff’s excuse for
default or delay is relevant, the district court found Alford and
Johnson’s explanation unavailing. We defer to this finding,
which is not clearly erroneous. Computer Task Group, 364
IN RE PHENYLPROPANOLAMINE 10331
F.3d at 1116 (holding that appellate court owes deference to
the district court’s finding that excuses are not credible). We
also note that CMO 15, which counsel maintained was con-
suming his time, itself states that “[n]othing in this Case Man-
agement Order shall delay the production of Plaintiff Fact
Sheets by plaintiffs named in multiple plaintiff cases.” CMO
15, ¶ 3. Therefore, the prejudice factor weighs in favor of dis-
missal.
The availability of less drastic sanctions was not discussed
by the district court, nor did Johnson or Alford propose any.
They maintain that to the extent they were in violation of
CMO 6, no lesser sanction was imposed before proceeding
directly to dismissal. While true as to them individually,
CMO 10 reflects the court’s awareness of widespread non-
compliance with CMO 6 and consideration of alternative
measures to remedy it. Although the court did not individually
warn Johnson and Alford of the possibility of dismissal for
failure to comply, the text of CMO 1, and of Rules 37(b)(2)
and 41(b), give notice that dismissal is a possible sanction for
failure to obey pretrial discovery orders. Valley Eng’rs, 158
F.3d at 1056-57. Also, the district court warned all MDL 1407
plaintiffs that any case where plaintiffs failed to comply with
discovery orders would be dismissed; other cases had been
dismissed for failure to comply with CMO 6, see, e.g., Allen
v. Bayer, No. 04-35370; Anderson v. Bayer, No. 04-35562,
and this, too, amounted to a warning that similar conduct
would result in a similar sanction. See Valley Eng’rs, 158
F.3d at 1057. In addition, the court had instructed defendants
diligently to pursue filing motions to dismiss for failure to
comply with CMO 6 before Alford and Johnson let the dead-
line go by. Although composed of hundreds of actions, MDL
1407 was a unified proceeding for pretrial purposes so its
MDL-wide rulings applied to all parties. Further, in accor-
dance with CMO 6’s compliance plan, Defense Liaison Coun-
sel’s April 13, 2004 letter advised Alford that she was in
default of CMO 6 obligations and warned that appropriate
relief would be requested unless complete responses were
10332 IN RE PHENYLPROPANOLAMINE
forthcoming within 30 days (the extra time frame allowed by
CMO 6 for compliance after warning). These warnings satisfy
this factor in this case. See, e.g., Ferdik, 963 F.2d at 1262
(recognizing that a warning can satisfy the “consideration of
alternatives” requirement); Malone, 833 F.2d at 132 & n.1
(noting that a warning is an alternative sanction, and that case
law suggests that warning a plaintiff that failure to obey a
court order will result in dismissal can suffice).
The fifth factor — public policy favoring disposition of
cases on the merits — normally weighs against dismissal.
However, failure to comply with CMO 6 obligations brought
these MDL actions to a standstill. Noncompliant plaintiffs
bear responsibility for halting movement toward a merits res-
olution. The consequences are compounded in multi-plaintiff
actions in multidistrict litigation. This substantially neutral-
izes the negative effect of this factor in the context of this pro-
ceeding.
[11] On balance, we conclude that dismissal was not an
abuse of discretion.
IN RE PHENYLPROPANOLAMINE 10333
Volume 2 of 2
10338 IN RE PHENYLPROPANOLAMINE
VI
Clinton13
Betty Clinton, Barbara Evans, Paulette Green, and Joe
Johnson were served with a blank PFS on March 21, 2002
after their actions were transferred to MDL 1407 in late 2001
and early 2002. Completed Fact Sheets and authorization
forms were due May 6, 2002. While Clinton and Green
applied for extensions, and Green received one, all members
of the Clinton group served a late, and incomplete, Fact Sheet
(including Green, who didn’t provide hers until after her
extension expired). Numerous deficiency letters were sent to
13
The Clinton appeals are before Judges Leavy, Rymer, and Fisher.
IN RE PHENYLPROPANOLAMINE 10339
each up to the time motions to dismiss were filed March 5,
2004. The district court found that plaintiffs in the Clinton
actions failed to comply with the discovery plan set forth in
CMOs 6 and 10 despite ample opportunity to comply, as well
as warnings that failure to comply would result in appropriate
sanctions — including dismissal. It also found outstanding
deficiencies as to all the Clinton discovery responses.
[12] Clinton, Evans, Green, and Johnson argue that dis-
missal was too severe a sanction and that noncompliance was
not the result of willfulness, bad faith, or fault. Additionally,
they posit that the delay in their cases was only slight, and
was due to counsel’s difficulty obtaining the required infor-
mation from clients who had been injured by ingestion of
PPA-containing products. We disagree that the delay was
“slight,” as it continued for nearly two years. While the dis-
trict court made no express finding of fault, we may review
the record to determine whether it contains evidence of will-
fulness, bad faith, or fault. See In re Virtual Vision, 124 F.3d
at 1143. Our review indicates that failure to comply with
CMO 6 was not outside Clinton’s control, thus satisfying the
fault standard for imposing Rule 37 sanctions. Fair Hous.,
285 F.3d at 905; In re Virtual Vision, 124 F.3d at 1143-44; W.
Coast Theater, 897 F.2d at 1523. No member of the Clinton
group substantiated counsel’s claim of incapacitation or
explained why alternative approaches, such as a protective
order or further extensions of time, were not pursued. Dis-
missal was therefore an available sanction.
[13] Considering the dismissal factors here leads us to con-
clude that dismissal was not an abuse of discretion. For rea-
sons we have already explained, the first two tip in favor of
dismissal. Prejudice is presumed from unreasonable delay, In
re Eisen, 31 F.3d at 1452-53, and the Clinton group failed to
file a PFS that was not deficient within the deadline set by the
court, or for two years thereafter. See Pagtalunan, 291 F.3d
at 643 (observing that unreasonable delay inherently increases
the risk of prejudice from faded memories and stale evi-
10340 IN RE PHENYLPROPANOLAMINE
dence). Although two of these plaintiffs asked for extensions
(and one received a year of additional time), substantially
complete Fact Sheets were not submitted until after the
motion to dismiss was filed two years after originally due.
This neither excuses, nor cures, prejudice. Fair Hous., 285
F.3d at 906; Payne, 121 F.3d at 508.
While the district court did not explicitly discuss the avail-
ability of less drastic sanctions in its dismissal order, it found
that the Clinton group had received warnings. See Ferdik, 963
F.2d at 1262. It is also apparent from the record that the court
considered progressive sanctions, as we have already
explained.
Finally, given plaintiffs’ responsibility for moving their
cases toward resolution, public policy favoring disposition of
cases on the merits offers little support in their favor.
In these circumstances, dismissal was within the court’s
discretion.
VII
Page14
Elizabeth Page appeals dismissal of her action with preju-
dice for failure to comply with CMO 19. Page’s action was
transferred to MDL 1407 on August 7, 2003. Bayer served a
blank PFS on Page on August 19, 2003, so she was required
by CMO 6 to furnish a complete Fact Sheet by October 3,
2003. On October 7, Bayer sent a warning letter to Page
informing her that she was not complying with CMO 6. On
November 17, 2003, Page returned the PFS, but Bayer noted
a number of deficiencies, including a lack of release forms
and incomplete answers to questions regarding health and
14
Page is before Judges D. Nelson, Rymer, and Fisher.
IN RE PHENYLPROPANOLAMINE 10341
employment issues, of which it informed Page by a warning
letter on March 10, 2004. Page did not respond to the letter.
On March 16, 2004, Mohammad Syed, an associate at the
law firm representing Page who was involved in her case, but
was not counsel of record, departed for a vacation in the Mid-
dle East. Due to “administrative red tape,” the trip was pro-
longed and the record does not reflect when, or if, he returned.
On April 14, 2004, Bayer sent a third warning letter again
notifying Page of deficiencies in the PFS; a fourth was sent
on May 14, 2004. Finally, on May 17, 2004, Page responded
by sending the requested forms. The next day, Page informed
Bayer of Syed’s absence, requested that Bayer resend the
warning letters, and promised to correct the deficiencies “as
soon as practical.” Bayer resent the letters the next day via
fax. On August 9, 2004, having still not received the supple-
mental PFS that Page had promised, Bayer sent a fifth warn-
ing letter, which informed Page that, pursuant to CMO 19,
Bayer would seek dismissal if Page did not send a complete
PFS. On August 23, 2004, the post-warning grace period
allowed under CMO 19 expired. On September 2, 2004,
Bayer sought dismissal of Page’s case, and on September 7,
2004, the district court issued an Order to Show Cause (OSC)
why Page’s case should not be dismissed. On September 20,
2004, Page responded to the order and appended a supple-
mental PFS, which addressed many, but not all, of Bayer’s
asserted deficiencies.
Page admitted that there were “absences” and “failing[s] in
Plaintiff’s fact sheet” and that Bayer was “certainly entitled to
complete answers to the questions on the fact sheet.” She con-
ceded that Bayer “certainly was within its rights” to seek dis-
missal under CMO 19 and that she had committed “error in
failing to transmit” the supplemental Fact Sheet to Bayer. She
accepted “responsibility for that delay.” Nevertheless, Page
tried to excuse the delay by arguing that the revised PFS had
been completed some time prior to the motion to dismiss, but
had simply not been given to Bayer because “counsel . . .
10342 IN RE PHENYLPROPANOLAMINE
inadvertently forgot to send those responses.” Page argued
that the errors and omissions in the original PFS were merely
technical. In light of that inadvertence, Syed’s absence from
the country, and the alleged mildness of the omissions, Page
argued that dismissal was too harsh a sanction. The district
court found that Page’s excuses were not a reasonable justifi-
cation for the delay and that Bayer had been prejudiced.
Page now argues that the district court erred as a matter of
law because her original PFS was “complete in all respects”
as defined by CMO 19. Even if Page had not waived this
issue by failing to raise it in district court, Page conceded that
Bayer was within its rights to seek dismissal for violation of
CMO 19, that there were absences and failings in her PFS,
and that she failed to transmit the supplemental Fact Sheet to
Bayer. Page also maintains that Bayer had answers to the
PFS’s requests for technical information in other forms, but
we rejected a similar argument in Computer Task Group. 364
F.3d at 1117. The reason is that “[a]n important purpose of
discovery is to reveal what evidence the opposing party has,
thereby helping determine which facts are undisputed — per-
haps paving the way for a summary judgment motion — and
which facts must be resolved at trial.” Id. Finally, it is not
without significance that Page never sought a protective order
or other relief from her discovery obligations.
[14] Although the district court’s order does not explicitly
reflect a Malone analysis, it was entered with reference to the
parties’ memoranda, which did. In any event, we can review
the record independently and, having done so, conclude that
the dismissal factors support the district court’s determination.
As we have discussed, the first two factors strongly support
the court’s dismissal. The district court found prejudice,
which is presumed from unreasonable delay. In re Eisen, 31
F.3d at 1453. Page failed to submit a compliant PFS for over
a year, and this suffices to show prejudice even if there is
belated compliance. Payne, 121 F.3d at 508. Although a
plaintiff’s excuse for default or delay is relevant, the district
IN RE PHENYLPROPANOLAMINE 10343
court found that Page proffered no reasonable justification.
The public policy favoring disposition on the merits is not
compelling when it is thwarted by the plaintiffs’ failure to
move their cases along. While the availability of less drastic
sanctions was not discussed in the order, the district court can
sometimes meet the “consideration of alternatives” require-
ment by issuing a warning that a party’s failure to obey a
court order will result in dismissal. See Estrada, 244 F.3d at
1057; Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33.
The logistical complexity involved in multidistrict litigation
makes it impossible to issue personalized warnings to each
one of thousands of parties and give second (or, in some
cases, third, fourth, or fifth) chances based on each party’s
unique circumstances. An MDL court facing widespread non-
compliance with its orders may satisfy the need for consider-
ation of lesser sanctions, as the district court did here, by
implementing progressively more severe penalties and issuing
warnings in MDL-wide case management and scheduling
orders, served at the outset of a party’s transfer to the MDL.15
The progression from CMO 6 to CMO 19 indicates that alter-
natives were considered; Bayer followed the compliance plan
incorporated into these case management orders in this case;
and, in the wake of widespread noncompliance with earlier
discovery orders, the parties to MDL 1407 had been warned
by the district judge that future noncompliance could lead to
dismissal. Accordingly, we conclude the district court ade-
quately considered its alternatives before dismissing Page’s
action. Thus, in light of the full Malone analysis, the district
court did not abuse its discretion.
15
While our case law suggests some temporal guidelines for issuance of
a warning in ordinary litigation, see Pagtalunan, 291 F.3d at 643 (suggest-
ing a warning may be inadequate if it did not occur after the plaintiff’s
violation of a court order), such guidelines have no salience in the MDL
context and would make it impossible to administer the vast number of
cases in an MDL. As these guidelines have never been extended to the
MDL context, we decline to extend them now as doing so would render
an MDL unworkable.
10344 IN RE PHENYLPROPANOLAMINE
VIII
Riley, Holmes, Samuels, and McDaniel16
Marie Riley, Bobby Holmes and his family, Melody
McDaniel, and Samantha Samuels, et al. appeal dismissal of
their actions with prejudice for failure to comply with CMO
19.
Riley’s case was transferred to MDL 1407 on April 29,
2003; a year later, Bayer sent a deficiency notice with respect
to the incomplete PFS that Riley had submitted, signed by her
daughter who was not a party. Although she then supple-
mented the PFS, it, too, was unsigned. Bayer sent another
deficiency notice August 12, warning of its intent to seek dis-
missal if completed documents were not received within 15
days (the additional period allowed by CMO 19). An OSC
was served under CMO 19; counsel responded that Riley was
unable to complete the PFS due to her deteriorating health,
but that her daughter had personal knowledge of Riley’s
stroke as well as ingestion of PPA-containing products and
that a power of attorney was being sought for her. None was
obtained by November 17, 2004, when the dismissal order
was entered. The court noted that no justification was offered
for the daughter’s failure to obtain a power of attorney for
nearly five months, and that defendants were prejudiced by
this considerable delay.
Samuels’s case was transferred January 11, 2002, before
CMO 6 was entered. Five deficiency letters were sent
between May 31, 2002 and July 14, 2004; the final letter had
a CMO 19 warning. Samuels submitted an unsigned supple-
mental response, without authorizations, to Bayer on July 20,
2004; an OSC was issued September 9; and Samuels provided
a signed PFS October 11, 2004 two weeks after the time to
respond to the OSC expired. The district court found that
16
The Riley appeals are before Judges D. Nelson, Rymer, and Fisher.
IN RE PHENYLPROPANOLAMINE 10345
Samuels had been given numerous warnings, which she had
consistently ignored, and that her excuse — counsel had writ-
ten to her on July 21, 2004 emphasizing the importance of
signing the PFS and providing signed releases that would be
turned over to defense counsel upon receipt — was unpersua-
sive. It found prejudice on account of Samuels’s failure to
comply with court-ordered discovery.
Holmes’s case was transferred January 10, 2002. He died
shortly before his PFS was due (May 7). Co-plaintiffs sent
unsigned, unverified PFS responses. Three deficiency notices
were sent between May 31, 2002 and January 2003; Holmes’s
daughter was deposed in April 2004, but lacked key informa-
tion about her father’s injury and ingestion of PPA; two more
deficiency letters were sent on May 11 and August 13, 2004,
the last one with a CMO 19 warning. An OSC was issued on
September 7, to which counsel responded that he had located
Holmes’s former girlfriend who was percipient to the stroke,
and that he was preparing another supplemental PFS. The
court noted that counsel made no attempt to explain why two
years had elapsed from the original PFS due date before try-
ing to locate the girlfriend; that despite repeated requests,
extensions, and warnings, counsel still had failed to file a PFS
that was complete in all respects; and that no reasonable justi-
fication was offered for the failure. It also found prejudice to
the defense by failure to comply with court-ordered discov-
ery.
Finally, McDaniel’s case was transferred to MDL 1407 on
September 24, 2003. Bayer sent a deficiency notice with
respect to her incomplete PFS on March 8, 2004; she
responded with a supplement signed by counsel; another defi-
ciency notice with a CMO 19 warning was sent August 11,
2004, and an OSC was issued September 7, 2004. McDaniel
indicated that her counsel had difficulty locating her after she
moved from Mississippi to Missouri and disconnected her
phone. She also sent Bayer an unsigned supplemental
response. On October 8, 2004 after the time for responding to
10346 IN RE PHENYLPROPANOLAMINE
the OSC had lapsed, McDaniel fowarded signed authorization
forms to Bayer. The court observed that it was undisputed that
McDaniel had failed to serve a timely PFS that was complete
in all respects, and noted of the proffered excuse that counsel
had not sought an extension of the deadline from the court on
account of inability to reach McDaniel. It found that counsel’s
inability to communicate with his client was not sufficient
justification for failure to comply with court-ordered discov-
ery; that adequate warnings had been given of the conse-
quences of failure to comply with CMO 19; and that the
defendants were prejudiced by this failure.
A
Bayer, the lead defendant in Holmes’s case, contends that
the Holmes appeal is untimely. We address this first, as our
jurisdiction depends upon the filing of a timely notice. We
believe that Holmes filed on time. Holmes brought a motion
for reconsideration within 10 days of the district court’s entry
of judgment, thereby tolling his time to file a notice of appeal.
He then filed his notice of appeal within 30 days of the district
court’s denial of his motion for reconsideration. This com-
ports with the rules and gives us jurisdiction. See Fed. R. App.
P. 4(a)(4)(A)(vi); Fed. R. App. P. 4(a)(7); Mt. Graham Red
Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992).
B
[15] Riley, Holmes, and Samuels argue that the district
court abused its discretion by dismissing their claims without
finding willfulness, fault, or bad faith as our precedent
requires for Rule 37 sanctions. See, e.g., Fair Hous., 285 F.3d
at 905. Beyond this, Riley and Holmes maintain that counsel
had difficulty locating the information needed to cure defi-
ciencies in the PFS due to Holmes’s death and Riley’s mental
and physical condition; Samuels claims that she served an
unsigned copy of a supplemental PFS; and McDaniel con-
tends that she substantially complied with CMO 19 and thus
IN RE PHENYLPROPANOLAMINE 10347
was not at fault. The district court found no reasonable justifi-
cation for failure to file a PFS on time, which is tantamount
to a determination of fault. Our review of the record also indi-
cates that failure to comply with CMO 19 was not outside the
litigants’ control, which satisfies the standard for imposing
sanctions. Id.; In re Virtual Vision, 124 F.3d at 1143-44; W.
Coast Theater, 897 F.2d at 1523. None of these parties sought
more time or the court’s approval for a different approach to
allow for unusual difficulties. Nor does substantial compli-
ance show the absence of fault, as McDaniel maintains,
because CMO 19 requires complete compliance. Her failure
to sign the PFS was unexplained, and there is no indication
that she was unable to stay in touch with counsel. Thus, dis-
missal was an available sanction for each of these parties.
Weighing the dismissal factors, we conclude that the dis-
trict court had discretion to dismiss. Although the district
court did not explicitly discuss Malone in this case, it was not
required to. See, e.g., Ferdik, 963 F.2d at 1261. Our review
of the record indicates that the first two factors strongly sup-
port the district court’s decision. CMO 6 set forth a frame-
work for discovery that was tightened in CMO 10 when many
plaintiffs failed to comply, and again in CMO 19 when delin-
quencies still existed more than two years later. The Riley
actions had been pending in MDL 1407 for one to three years,
during which period defense discovery, triggered by com-
pleted Fact Sheets, could not begin.
The district court found prejudice and we are not firmly
convinced this is wrong, as prejudice is presumed from unrea-
sonable delay. In re Eisen, 31 F.3d at 1452-53. These actions
were stalled for anywhere from one to three years. Without a
completed PFS, a defense could not be mounted, the structure
for MDL 1407 discovery — carefully-tailored by court and
counsel — was thwarted, and the actions could not move
toward remand. Failure to produce documents as ordered is
prejudicial, whether or not there is belated compliance.
Payne, 121 F.3d at 508. A plaintiff’s excuse for default or
10348 IN RE PHENYLPROPANOLAMINE
delay is relevant, and the district court found no reasonable
justification for the conduct here. Samuels offered no expla-
nation at all; Holmes’s co-plaintiffs failed to explain why they
waited two years to try to find another witness who might
provide the requested information; Riley’s claims of incapaci-
tation are unsubstantiated and her daughter did not obtain a
power of attorney until after her action had been dismissed;
and McDaniel did not indicate why timely communication
was impossible. Accordingly, the prejudice factor weighs
heavily in favor of dismissal, and the fourth factor — public
policy favoring disposition of cases on the merits — offers lit-
tle support to plaintiffs in these circumstances.
Although the district court did not explicitly consider the
availability of less drastic sanctions, it is apparent from the
record that progressive sanctions had been considered. The
court had tried in CMO 10 to compel compliance with CMO
6 by deferring the start of a one-year discovery period until
the PFS was completed; when that didn’t work, it entered
CMO 19 requiring submission of a PFS complete in all
respects and providing for a warning program that the defense
followed in these actions. In each of these cases, letters were
sent giving notice of deficiencies, affording Riley, Samuels,
Holmes, and McDaniel successive opportunities to comply
with the court’s orders, and warning of dismissal under CMO
19 should the deficiencies not be corrected. There is no reason
the court should have believed that any of these parties would
comply in the future. In addition, the text of Fed. R. Civ. P.
37(b)(2) gives notice that dismissal is a possible sanction for
failure to obey discovery orders; CMO 1 warns that failure to
produce required documents will be treated as an infraction of
a court order justifying appropriate sanctions; and the district
judge advised all MDL 1407 parties on July 31, 2003 that any
case that had not complied with her discovery orders would
be dismissed. As Judge Rothstein explained, “the time has
come to figure out which of these cases are real and which of
them aren’t. And if discovery hasn’t been complied with,
there’s a strong presumption on my part that the case should
IN RE PHENYLPROPANOLAMINE 10349
be dismissed.” Further, these dismissals were entered only
after the parties had been given an opportunity to explain
delay and urge alternative sanctions. In light of the number
and clarity of warnings, the court’s findings that these parties
ignored the warnings, and the progression of CMOs 6, 10, and
19, this factor supports dismissal. See Ferdik, 963 F.2d at
1262.
We conclude that dismissal was within the court’s discre-
tion.
IX
Ackel, Arrington, and McGriggs17
Leslie Ackel, et al., Bridgett Arrington, et al., and Calvin
McGriggs, et al. appeal dismissal of their actions for failure
to file new individual complaints as required by CMOs 15 and
15A, and from denial of their motions for reconsideration.
None of the parties to Ackel, Arrington, or McGriggs filed a
severed complaint before the deadline set in CMO 15 (June
29, 2003), or requested an extension. However, the Arrington
and McGriggs plaintiffs filed new individual complaints
between August 4 and August 19, and the Ackel plaintiffs fol-
lowed suit between August 27 and October 14, 2003.
CMO 15 applied to numerous cases that joined unrelated
claims of multiple plaintiffs who allegedly took a PPA-
containing product without specifying which product was
ingested or which manufacturer caused their injuries. The
court found as to all such actions that the threshold require-
ments for permissive joinder under Rules 20 and 21 of the
Federal Rules of Civil Procedure, which provide that multiple
plaintiffs may “assert any right to relief jointly, severally, or
in the alternative in respect of or arising out of the same trans-
17
Ackel, Arrington, and McGriggs are before Judges D. Nelson, Rymer,
and Fisher.
10350 IN RE PHENYLPROPANOLAMINE
action, occurrence, or series of transactions or occurrences
and if any question of law or fact common to all these persons
will arise in the action,” could not be met because the
multiple-plaintiff cases did not seek relief arising from the
same transaction or occurrence. Thus, severance of the indi-
vidual plaintiffs was proper. In addition, the court noted that
under Rule 21(b), “[t]he court may make such orders as will
prevent a party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom the party
asserts no claim and who asserts no claim against the party,
and may order separate trials or make other orders to prevent
delay or prejudice.” Accordingly, it ordered individual new
complaints, which would relate back to the date of the origi-
nal complaint, to be filed within 30 days in all cases that con-
tained multiple plaintiffs.
CMO 15A, entered August 26, 2003, served as an adjunct
to CMO 15 to give the parties a mechanism for resolving
“noncompliant” severed complaints and dismissal of original
multi-plaintiff complaints. It allowed defendants to move to
dismiss with prejudice the original case as to those plaintiffs
who failed properly to file an individual new complaint, and
as to those plaintiffs who filed an individual new complaint
which did not identify a product manufactured by the moving
defendant. CMO 15A also provided that upon motion, non-
compliant complaints must be refiled with the appropriate
information within 30 days, otherwise dismissal with preju-
dice would result. In addition, CMO 15A states that 86 origi-
nal multiple-plaintiff complaints, including Ackel and
McGriggs (of which Arrington was then a part) shall be dis-
missed with prejudice as of the effective date of the order (60
days later, or October 26, 2003), which includes any plaintiffs
for whom an individual severed complaint was not timely
filed. Simultaneously, the district court entered a separate
order providing: “Pursuant to Case Management Orders 15
and 15A, the original multiple plaintiff Complaints listed in
Exhibit A to this Order are hereby DISMISSED WITH PREJ-
UDICE.” Ackel and McGriggs are listed in this Exhibit.
IN RE PHENYLPROPANOLAMINE 10351
By October, some plaintiffs who had filed untimely severed
complaints were taking the position that CMO 15A extended
the deadline for filing by 60 days. Defense Liaison Counsel
disputed this interpretation, arguing that the August 26, 2003
order dismissed both the original multiple-plaintiff complaints
and the claims of plaintiffs who failed to file severed com-
plaints within the 30 days prescribed in CMO 15. Given an
opportunity to respond by the court, counsel in Arrington
admitted to filing late but argued that defense counsel had
agreed to extensions; no responses were filed in Ackel and
McGriggs. On October 30, the court entered an order holding
that CMO 15 makes clear on its face that new individual com-
plaints were to be filed in any pending multi-plaintiff cases
within 30 days, that is, by June 29, 2003, and that nothing in
CMO 15A alters that 30-day period. We accept the court’s
finding of what its order requires. See Yourish, 191 F.3d at
991. The court then directed defendants to file a single pro-
posed order of dismissal in all cases in which plaintiffs filed
untimely new individual complaints, which they did as to
Ackel, Arrington, and McGriggs.
The court rejected Arrington’s argument that defendants
had agreed to extensions, and Ackel’s that filing severed com-
plaints late — but before the proposed orders of dismissal had
been served — rendered the issue of compliance moot. It
denied Arrington’s and McGriggs’s motion to reconsider
based on oversight of counsel, noting that it is the responsibil-
ity of all attorneys to keep track of deadlines relevant to their
clients’ cases. Beyond this, the court determined that dis-
missal was warranted under the Malone factors. In particular,
it found that the practical effect of failure on the part of plain-
tiffs in multiple-plaintiff cases to file severed complaints
specifying the products ingested and the manufacturers caus-
ing injury in a timely fashion prevented the cases from mov-
ing forward. It also noted that failure to comply with CMO 15
diverted the court’s time and resources, and prejudiced defen-
dants because without the information contained in the sev-
ered complaints, their ability to defend these cases was
10352 IN RE PHENYLPROPANOLAMINE
seriously compromised. Further, the court stated that it was
impossible to dispose of unsevered cases on the merits, and
that unwillingness to file severed complaints or delay in doing
so was not excusable.
A
Ackel and Arrington
[16] Ackel and Arrington contend that dismissal is too
harsh a sanction and that their delay in filing new individual
complaints was not the result of willfulness, fault, or bad
faith. To be clear, these are not Rule 37 dismissals for failure
to make discovery; rather, they are dismissals for failure to
comply with court-ordered severance. Regardless, the district
court found their excuses for failing to comply with the
court’s severance order insufficient, which is tantamount to a
determination of fault. Nothing in the record indicates that
failure to comply with CMO 15 was outside their control. See
Fair Hous., 285 F.3d at 905; In re Virtual Vision, 124 F.3d
at 1143-44; W. Coast Theater, 897 F.2d at 1523.
Considering the dismissal factors, we agree with the district
court’s assessment of the impact that failing to file severed
complaints has on the public interest in expeditious resolution
and on its own docket. CMO 15 itself is not challenged on
appeal, so whether severance was a needless formality for
some individual plaintiffs misses the point of the overall need,
and requirement, to break out the allegations in multiple-
plaintiff cases. The first two factors therefore weigh strongly
in favor of dismissal.
Prejudice is the more difficult question in this case, as the
delay in complying was between five and twelve weeks. Five
weeks may not seem like too much, but the district court is
in the best position to measure the effect of delay on the
defendants in these cases and overall. The situation that led to
CMOs 13 and 15 had been building for two years during
IN RE PHENYLPROPANOLAMINE 10353
which defendants in multiple-party complaints did not know
what they were defending. In addition, the risk of prejudice is
related to the reason for default. See, e.g., Malone, 833 F.2d
at 131; Yourish, 191 F.3d at 992. In Yourish, for example, we
upheld a dismissal with prejudice when the plaintiff failed to
file an amended complaint within the 60 days allowed by a
district court order, noting among other things that the paltry
excuse for default on the judge’s order indicates prejudice to
defendants from the delay. Here, Ackel proffered no excuse,
and the district court found Arrington’s conduct inexcusable.
[17] At least two hundred actions were subject to CMO 15
and the court was forced to deal with more than 127 individu-
als who filed a severed complaint late. Nevertheless, the dis-
trict court was careful to consider the particular situation and
explanation offered by these plaintiffs, with the exception of
the McGriggs plaintiffs, whose circumstances the court did
not address adequately. As to the other plaintiffs, however,
Judge Rothstein discriminated among them by holding that
the delay caused by a group of ten who filed their severed
complaints one day after the deadline was inconsequential.
How much delay is too much delay is a matter quintessen-
tially within the discretion of the district judge, who is best
situated to balance the degree of delay, the importance of
prompt compliance, the effect on her docket and defendants,
and the justification. Whether any of us would have drawn the
line differently is not the issue; the district court here, fully
informed, believed the Ackel and Arrington delay was conse-
quential. See Estrada, 244 at 1056 (reiterating that “ ‘the
question is not whether this court would have, as an original
matter, imposed the sanctions chosen by the trial court, but
whether the trial court exceeded the limits of its discretion’ ”
(quoting Halaco Eng’g Co. v. Costle, 843 F.2d 376, 379 (9th
Cir. 1988)). In the circumstances of MDL 1407, we cannot
say that the district judge lacked discretion to make this call.
Ackel and Arrington also rely on the fact that they had
already furnished Fact Sheets and Affirmations naming the
10354 IN RE PHENYLPROPANOLAMINE
drugs ingested and the respective manufacturers, so defen-
dants could not have been prejudiced by their failure to repeat
the same information in a severed complaint. However, that
compliant pleadings are ultimately filed does not compel a
district court to conclude that failure to comply with a court
order doesn’t matter. See Computer Task Group, 364 F.3d at
1116 (rejecting similar argument); Payne, 121 F.3d at 508.
Nor are we impressed with the argument advanced by the
Ackel and Arrington plaintiffs that there could be no prejudice
because it took defendants over five months from the June 29,
2003 deadline to ask the court for assistance. That delay came
about only because of a dispute between plaintiffs and defen-
dants about the effect of the August 26 order dismissing these
actions with prejudice.
The district court did not explicitly discuss availability of
less drastic sanctions in its order, but it implicitly did by
rejecting the Ackel plaintiffs’ contention that dismissal was
too harsh a remedy. Also, the fact that the court examined
each case discretely — with the exception of the McGriggs
plaintiffs, whose situation the court did not properly consider
— and determined that no sanctions were warranted in some,
and that dismissal was warranted only absent a convincing
reason for failure to comply with CMO 15 in others, indicates
the court was sensitive to an appropriate level of sanction.
We do not have a firm conviction that the district court
“committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors” in Ackel and
Arrington. Ferdik, 963 F.2d at 1260; Yourish, 191 F.3d at 992(applying standard).
B
McGriggs18
18
The disposition as to McGriggs is authored by Judge Fisher, joined by
Judge D. Nelson. Judge Rymer dissents.
IN RE PHENYLPROPANOLAMINE 10355
The McGriggs plaintiffs were dismissed because they filed
severed complaints between August 9 and August 19, five
weeks after the June 29, 2003 deadline set by CMO 15. On
August 26, at least a week after the McGriggs plaintiffs filed
their severed complaints, the district court entered CMO 15A,
which provided for dismissal with prejudice of all jointly filed
complaints, including the complaints of those like the
McGriggs plaintiffs, for whom a timely severed complaint
had not been filed by the June 29 deadline. Although Fed. R.
Civ. P. 37(b)(2) and 41(b) provide notice that dismissal is a
possible sanction for failure to obey pretrial discovery orders,
see Valley Eng’rs, 158 F.3d at 1056-57, CMO 15 gave no
explicit warning. And although the district court orally
admonished plaintiffs that failure to file severed complaints
could result in dismissal, it did so only on July 31, 2003 —
more than a month after the June 29, 2003 deadline had
passed.
The court’s rationale in entering CMO 15 was sensible:
each defendant in MDL 1407 needed and was entitled to
know the particular plaintiff who was suing it, why that plain-
tiff was suing it and which product was at issue. Applied to
the McGriggs plaintiffs, this rationale does not justify the
sanction they suffered.
DISCUSSION
[18] The McGriggs plaintiffs comprise two subsets: the
McGriggs plaintiffs and the Harris plaintiffs (“the McGriggs
plaintiffs”). The district court’s Malone analysis is inadequate
with respect to both subsets because the court did not
acknowledge that the initial multiparty complaint each subset
filed was already detailed, identifying Bayer as the only
defendant in the case of the McGriggs subset, and Delaco
(and Delaco’s successor) in the case of the Harris subset.
These original multiparty complaints made clear, respectively,
that Alka Seltzer Plus Cold and Bayer, and Dexatrim and
Delaco (and Delaco’s successor), were the sole drugs and
10356 IN RE PHENYLPROPANOLAMINE
defendants at issue, and the original complaints alleged spe-
cific harms suffered by each plaintiff on precise dates.
Although the McGriggs and Harris plaintiffs were necessarily
subject to the global application of CMO 15, they rightly
argue that filing severed complaints (which they did do, a
month and a half late) did not provide the court or defendants
with any information they did not previously have. This can-
not be said of the Ackel and Arrington plaintiffs, who were
also dismissed with the McGriggs plaintiffs, because their
original multiparty complaints were not so specific. Whereas
“the practical effect of [the] failure on the part of [the Ackel
and Arrington plaintiffs] to file severed complaints specifying
the products ingested and the manufacturers causing injury
. . . [was to] prevent[ ] the cases from moving forward,” supra
p. 10351, no evidence suggests the McGriggs plaintiffs’ late
compliance caused any such delay.
[19] The McGriggs plaintiffs’ failure timely to obey the
court’s orders was not prejudicial to the public’s interest in
the expeditious resolution of litigation or the court’s manage-
ment of the case, much less to defendants. Defendants did not
lack details about the injuries alleged by the McGriggs plain-
tiffs. The defendants named in the original McGriggs com-
plaint knew what they were defending against. MDL 1407
litigants with no liability exposure in the McGriggs cases
were not forced to expend unnecessary resources in cases in
which they were not true parties.
[20] The McGriggs plaintiffs blamed their noncompliance
with CMO 15 on an oversight of their counsel, who did not
think to file separate complaints because the original com-
plaint specifically identified the products and defendants at
issue. Given that these excuses were “anything but frivolous,”
defendants had an obligation to show actual prejudice suf-
fered by the delay, see In re Eisen, 31 F.3d at 1452-53, a
showing they did not make, and cannot make, because they
had all the information CMO 15 required in the McGriggs
plaintiffs’ original complaint (as opposed to the Ackel and
IN RE PHENYLPROPANOLAMINE 10357
Arrington plaintiffs, whose multiparty complaints were not so
detailed). Indeed, far from impairing defendants’ “ability to
go to trial,” Adriana, 913 F.2d at 1412, the McGriggs plain-
tiffs’ detailed original complaint allowed discovery to pro-
ceed, and written discovery to be completed. Accordingly,
defendants cannot show loss of memory or evidence. See In
re Eisen, 31 F.3d at 1453. Although “the district court is in
the best position to measure the effect of delay on the defen-
dants in these cases and overall,” supra p. 10352, and
although a district court is not compelled “to conclude that
failure to comply with a court order doesn’t matter” because
“compliant pleadings are ultimately filed,” supra p. 10354,
the circumstances the McGriggs plaintiffs present show the
limits of these prudential notions. Ultimately, a district court
must acknowledge and evaluate the unique circumstances an
individual MDL plaintiff presents and act accordingly. Here,
the district court’s neglect in doing something so basic means
that we cannot defer to its finding of prejudice.
[21] Fundamentally, the McGriggs plaintiffs’ delay in pro-
viding information they had already given did not cause prej-
udice sufficient to warrant dismissal (as opposed to a different
kind of sanction), especially in view of the public policy
favoring resolution on the merits. “It is too late in the day and
entirely contrary to the spirit of the Federal Rules of Civil
Procedure for decisions on the merits to be avoided on the
basis of such mere technicalities.” Foman v. Davis, 371 U.S.
178, 181 (1962). In Malone, Exxon, Adriana and Morris, we
approved of the harsh punishment of dismissal because we
had “no doubt” about the clearly substantiated, prejudicial
effect of the parties’ egregious conduct. See Malone, 833 F.2d
at 131; In re the EXXON VALDEZ, 102 F.3d at 433 (“The
appellants’ total failure to respond to discovery and the time
consumed by attempting to secure compliance prejudiced
appellees.”) (emphasis added); Adriana, 913 F.2d at 1412
(“Here, the repeated failure of Adriana to appear at scheduled
depositions compounded by their continuing refusal to com-
ply with court-ordered production of documents constitutes an
10358 IN RE PHENYLPROPANOLAMINE
interference with the rightful decision of the case.”) (emphasis
added); Morris, 942 F.2d at 652 (plaintiffs’ two-year failure
to move toward disposition on the merits where they unneces-
sarily delayed, failed to respond to correspondence, failed to
appear at meetings and misrepresented intentions prejudiced
defendants and obstructed resolution of their claim on the
merits). But defendants who must show actual prejudice — as
here, where the McGriggs plaintiffs proffered a serious
excuse — may not make this showing by mere assertion.19
Contrary to the dissent’s assertion (Dissent at 10366), we
cannot in these circumstances summarily rely on a case like
Computer Task Group, 364 F.3d at 1116, for the proposition
that failure to produce discovery required by a court order is
not excused because the same information may be available
elsewhere. In Computer Task Group, a recalcitrant defendant
engaged in a “baseless two year fight against each and every
discovery request and court order” and did so “willfully and
with the intent of preventing meaningful discovery from
occurring.” 364 F.3d at 1116. In contrast to the McGriggs
plaintiffs’ conduct, there the district court found that the
defendant violated five court orders over a seven-month
period
by failing to provide clear answers to interrogatories,
giving contradictory responses, making frivolous
objections, filing frivolous motions[, ] failing to pro-
vide the information [the opposing party] sought[,]
19
We elsewhere, supra p. 10324, cite Fair Housing of Marin, 285 F.3d
at 905, and In re Virtual Vision, 124 F.3d at 1143, for the proposition that
“[d]isobedient conduct not shown to be outside the litigant’s control meets
th[e predicate] standard [of fault].” However, not all disobedient conduct
is of the same order, and a conclusory assertion of prejudice will not show
why the disobedient conduct in Fair Housing and Virtual Vision is analo-
gous to conduct under review. Although the McGriggs plaintiffs’ late fil-
ings were not outside their control, their behavior is not comparable to the
parties’ abusive behavior in Fair Housing and Virtual Vision. See, e.g.,
Virtual Vision, 124 F.3d 1143-44.
IN RE PHENYLPROPANOLAMINE 10359
. . . fail[ing] to pay one of the monetary sanctions[,]
. . . failing to produce important financial documents
and “throwing up a series of baseless smoke screens
[that] [took] the form of repeated groundless objec-
tions and contradictory excuses,” which were “ab-
surd” and “completely unbelievable.”
Id. at 1115 (quoting the district court). The defendant blamed
the loss of documents on an earthquake, a dropped computer
and a residential move. Id. We agreed that these frivolous
excuses “unnecessarily delayed the litigation, burdened the
court and prejudiced [the plaintiff],” particularly because
“most of the documents [the plaintiff] sought . . . were never
produced, despite court orders to do so, and most of what [the
defendant] did submit came in two years after it was
requested, and after discovery had already ended.” Id. at 1116(emphasis added). This delay “seriously prejudiced [the plain-
tiff], as key depositions had already been taken.” Id.On that egregious record, we upheld the district court’s
finding that the defendant’s “over-all disruptive discovery
practice regarding the interrogatories and requests to produce
was done willfully and intentionally to stall and prevent [the
plaintiff] from conducting meaningful discovery,” and that it
“ha[d] clogged the Court’s docket, protracted th[e] litigation
by years, and made it impossible for [the plaintiff] to proceed
to any imaginably fair trial.” Id. Under these circumstances,
we held that the “failure to produce documents as ordered . . .
is considered sufficient prejudice.” Id.The McGriggs plaintiffs’ conduct is nothing like the defen-
dant’s in Computer Task Group, nor is it analogous to the
conduct of the MDL 1407 plaintiffs whose dismissals we
affirm. Even if the McGriggs plaintiffs’ belated compliance
did not generally cure what minimal prejudice defendants suf-
fered, if any, their conduct was not willful or egregious, and
they did not refuse to participate in discovery or engage in
lengthy delays that “deprived [defendants] of any meaningful
10360 IN RE PHENYLPROPANOLAMINE
opportunity to follow up on [the] information, or to incorpo-
rate it into their litigation strategy.” Payne, 121 F.3d at 508.
Nor did the McGriggs plaintiffs confound their own efforts to
advance their cases. Rather, they reasonably believed their
complaints were in compliance with the intent of the CMOs
and that it was therefore unnecessary for them to file a sev-
ered complaint or affirmation. To the extent the McGriggs
plaintiffs were wrong, they rectified their deficiencies within
five weeks of the due date of CMO 15. Although we generally
recognize that “an involved, complex case increases the preju-
dice from the delay,” Anderson, 542 F.2d at 525, we cannot
affirm the district court’s dismissal because of any prejudice
the McGriggs plaintiffs’ actions caused.
We also reject defendants’ argument that if the district
court excused the McGriggs plaintiffs for their late filing, it
would have broadcast a message to all MDL 1407 litigants
that CMOs could be disobeyed with impunity. Even were that
true, dismissal was not the only sanction that could send the
necessary message; lesser punishments tailored to the plain-
tiffs’ violation can be equally effective. We have identified
examples:
a warning, a formal reprimand, placing the case at
the bottom of the calendar, a fine, the imposition of
costs or attorney fees, the temporary suspension of
the culpable counsel from practice before the court,
. . . dismissal of the suit unless new counsel is
secured[,] . . . preclusion of claims or defenses, or
the imposition of fees and costs upon plaintiff’s
counsel. . . .
Supra p. 10316 n.5 (quoting Malone, 833 F.2d at 130, 132 n.1
(internal quotation marks and citations omitted). One obvious
penalty would have been monetary sanctions imposed on
plaintiffs or their counsel in an amount sufficient to “send a
message.”20 But we do not know why this or some other sanc-
20
Clients are often several steps removed from the conduct of multidis-
trict litigation, since even their representatives depend on the performance
IN RE PHENYLPROPANOLAMINE 10361
tion would not have worked, because the district court did not
address alternatives.21
If we endorsed the court’s failure to impose lesser sanctions
under these circumstances, we would risk making dismissal
too attractive (and too available) an option for defendants to
pursue and a MDL court to impose. This is all the more true
where, as here, the court dismissed the McGriggs plaintiffs
sua sponte instead of in response to a noticed motion. As we
note elsewhere, supra p. 10316, such an action requires us to
focus more closely on the lack of warning and the failure to
consider less drastic alternatives. See Oliva, 958 F.2d at 274.
But when a party’s conduct is not egregious or when a party
receives insufficient warning, the failure to consider any alter-
natives at all limits the deference we give a MDL court. Plain-
tiffs should not be casualties of a court’s readiness to skip to
the most drastic sanction to deter other, more culpable plain-
tiffs.
[22] In sum, although we grant additional deference to a
district court administering a MDL proceeding, due process
and fundamental fairness may not be sacrificed to provide
assembly-line justice. The McGriggs plaintiffs “retain[ed]
their individual identities,” In re Career Academy Antitrust
Litig., 57 F.R.D. 569, 570 (E.D. Wisc. 1972), when they were
of proxies such as Lead and Liaison Counsel and Plaintiffs’ Steering Com-
mittees. Where attorney sanctions are practicable, they may serve the
heightened logistical needs of multidistrict litigation without overshadow-
ing the interests of the parties represented.
21
The dissent suggests that we err in reversing dismissal of the
McGriggs plaintiffs and Sasseen, No. 04-35884, infra p. 10364, because
if every MDL plaintiff ignored a CMO simply because he thought it super-
fluous, “the very purpose of the MDL . . . would be subverted.” (Dissent
at 10367.) As we explain above, we do not condone the noncompliance
of the McGriggs plaintiffs or Sasseen. We hold only that dismissal — as
opposed to another, more appropriate sanction — is not warranted under
the circumstances they present.
10362 IN RE PHENYLPROPANOLAMINE
involuntarily transferred to MDL 1407, and their arrival in the
litigation did not “change the[ir] rights [as] parties.” In re
Equity Funding Corp. of America Sec. Litig., 416 F.Supp.
161, 176 (C.D.Cal. 1976) (quoting Johnson v. Manhattan
R.R., 289 U.S. 479, 496-97 (1933)). Because the district court
failed to provide the McGriggs plaintiffs the individualized
consideration to which they were entitled, we reverse its dis-
missal and remand for further proceedings.
X
Sasseen22
Donna Sasseen appeals dismissal of her action with preju-
dice for failure to file an Affirmation setting forth the PPA
products that she ingested and the alleged manufacturers or
distributors of such products, as required by CMO 13.
Sasseen’s complaint, transferred to MDL 1407 on Novem-
ber 12, 2003, named multiple defendants and thus was subject
to CMO 13, issued on May 2, 2003, and CMO 13A, issued
on June 21, 2003, requiring plaintiffs in multi-defendant cases
to file an Affirmation within thirty days of the order or the
date their case was docketed in the MDL listing the products
allegedly ingested and the manufacturers of those products.
Both provide that “if the Affirmation fails to disclose the
ingestion by [the] plaintiff of a PPA-containing product man-
ufactured and/or distributed by a named defendant, then such
defendant is authorized to submit to the Court the name of the
plaintiff who alleges use of a PPA product, requesting dis-
missal of that defendant with prejudice with regard to claims
brought by the named plaintiff.” Each also states that defen-
dants may seek “additional remedies or sanctions against any
plaintiff with regard to discovery obligations set out in this
CMO, prior CMOs and/or identification of defendants’ prod-
ucts in a Plaintiff Fact Sheet.” CMO 13A simplified the
22
Sasseen is before Judges Leavy, Rymer, and Fisher.
IN RE PHENYLPROPANOLAMINE 10363
paperwork required to be filed with proposed dismissals, but
did not change the Affirmation requirement itself.
Sasseen’s Affirmation was due on December 15, 2003,
which she concedes is a deadline she did not meet. On Febru-
ary 3, 2004, Defendants’ Liaison Counsel filed a motion to
dismiss eleven cases, of which Sasseen’s was one, pursuant to
Rule 37(b)(2)(C) and Rule 41(b). Sasseen’s February 9, 2004
response included an untimely Affirmation, which listed the
same products and defendants set forth in her complaint.
The district court dismissed for reasons stated in the motion
to dismiss. These included that CMOs 13 and 13A established
a procedure whereby a defendant not named in an Affirmation
or the Plaintiff’s Fact Sheet could move to be dismissed with
prejudice from that individual plaintiff’s case; however, fail-
ure to file any Affirmation prevented defendants from taking
advantage of this procedure, thus causing them to spend
unnecessary resources conducting discovery in cases in which
their product may not be at issue. Also, failure to file Affirma-
tions warranted dismissal under the Malone factors because:
(1) The defendants’ inability to move to be dismissed unnec-
essarily prolonged their involvement in this litigation, and the
public interest in expeditious resolution of litigation is not
served by plaintiffs who fail to file court-ordered Affirmations
designed to narrow the field of potentially culpable defen-
dants and to clarify the issues for trial. (2) Failure to conduct
discovery impeded the court’s ability to manage its docket, as
it does not reflect the true parties to each individual action. (3)
Defendants who had no liability exposure were being forced
to expend unnecessary resources to participate in cases in
which they were not true parties, and could not make use of
the court-sanctioned method of seeking dismissal upon receipt
of an Affirmation. Further, plaintiffs had control over who the
parties to their actions would be, as well as exclusive knowl-
edge of what products they allegedly ingested. (4) Although
public policy favors trying cases on their merits, it also favors
the principle that litigants should be ready to prosecute claims
10364 IN RE PHENYLPROPANOLAMINE
when brought, and should not bring suit against a party who
is not liable for their alleged injuries. (5) A less drastic sanc-
tion was available to these plaintiffs. If they had filed Affir-
mations, defendants could have utilized the court-sanctioned
method of dismissing individual defendants pursuant to
CMOs 13 and 13A instead of seeking to dismiss these cases
in their entirety.
[23] Sasseen argues that she complied with the intent of
CMO 13 to give proper notice to the defendants because her
complaint pled with specificity the products she ingested and
the defendants who manufactured them. As Sasseen is basi-
cally in the same posture as McGriggs, it is controlled by it
and accordingly, we reverse.
XI
Conclusion
MDL 1407 is quite a complicated proceeding, involving
hundreds of actions and thousands of individual claims
against many defendants. In consultation with Lead and Liai-
son Counsel and steering committees, the district court crafted
case management orders to “uncomplicate” the multidistrict
proceedings. Congress contemplated that an MDL court
should do this to secure the “just and efficient conduct” of
actions coordinated for pretrial purposes under 28 U.S.C.
§ 1407(a).
The orders themselves are not at issue; they were not
objected to, relief from them was not sought, and they are not
challenged on appeal. They sought to move individual cases
forward by simplifying the discovery process (CMOs 6, 10,
and 19), and by severing multiple-plaintiff claims and claims
by plaintiffs against multiple defendants into manageable
actions against true defendants (CMOs 13 and 15).
Many plaintiffs, some of whom pursue the appeals that are
before us, chose not to comply. All had a chance to explain
IN RE PHENYLPROPANOLAMINE 10365
why not, and the district court found the explanations want-
ing.
Failure to comply with case management orders in MDL
proceedings such as MDL 1407, where both sides agree that
the orders serve the important interest of moving the cases
along, adversely affects the public interest, as well as the par-
ties’ private interest, in expeditious resolution of litigation. A
district court cannot manage its docket if such orders are not
respected. This harms plaintiffs with meritorious claims
whose progress toward resolution is bogged down by others
who will neither put up nor shut up; defendants who do not
know against whom or what they are defending and so can
neither conduct case-specific discovery, seek an early exit by
summary adjudication, nor assess the potential value of the
plaintiffs’ claims for settlement; and the public, whose access
to the courts is impeded when judicial resources are diverted
from the proper administration of justice to dealing with
recalcitrant parties.
In these cases both the orders and the court’s expectations
were clear. The court was responsive to proper requests for
relief, and, with the exception of the McGriggs plaintiffs and
Sasseen, excused defaults that were non-consequential. How-
ever, the court needed to enforce its orders in cases that were
stalled by noncompliance so that the coordinated cases for
which it was responsible could be resolved on the merits by
motion, settlement, or remand for trial.
Accordingly, we conclude that while the factors which
guide a court’s discretion in ordinary cases on an ordinary
docket also inform an MDL court’s decision to invoke dis-
missal as a sanction for failure to comply with its orders, the
court’s discretion is necessarily informed, and broadened, by
the number of actions, their complexity, and its charge in the
multidistrict context to promote the just and efficient conduct
of actions that are coordinated or consolidated for pretrial pur-
poses. The district court acted within its discretion in deciding
10366 IN RE PHENYLPROPANOLAMINE
that dismissal of the cases before us, except for McGriggs and
Sasseen, was warranted. We therefore uphold its judgment in
Allen, Anderson, Alford, Clinton, Page, Riley, Holmes,
McDaniel, Samuels, Ackel, and Arrington. We reverse as to
McGriggs and Sasseen.
AFFIRMED IN PART AND REVERSED IN PART.
RYMER, Circuit Judge, dissenting as to McGriggs and con-
curring as to Sasseen, with whom LEAVY, Circuit Judge,
joins, concurring as to Sasseen:
I would also affirm in McGriggs, for the same reasons we
affirm in Ackel and Arrington. I am constrained to concur in
Sasseen as it is materially indistinguishable from McGriggs.
However, I disagree that either case should be resolved as the
majority resolves McGriggs. In a nutshell, failure to make dis-
covery required by a court order is not excused by the fact
that the same information may be available elsewhere. See,
e.g., Computer Task Group, Inc. v. Brotby, 364 F.3d 1112,
1117 (9th Cir. 2004). Honoring this rule is particularly impor-
tant in the context of a multidistrict litigation proceeding such
as MDL 1407, where hundreds of cases asserted claims based
on ingestion of more than one PPA-containing product, and
indiscriminately listed numerous manufacturers as defendants.
CMO 13 was crafted to, and did, provide a sensible process
for sorting this out. Even though some individual complaints
may already have done so, many did not. The case manage-
ment orders necessarily applied to all cases in which more
than one product and more than one manufacturer were
named. Sasseen, for example, sought no relief from this obli-
gation. Indeed, it could not have been simpler for her to com-
ply because all that was required was that she identify the
manufacturer and the product — something she says she
knew, and in fact had already done.
IN RE PHENYLPROPANOLAMINE 10367
While the sanction of dismissal probably would not have
been imposed were either McGriggs or Sasseen an individual
case on an ordinary docket, the need for an order such as
CMO 13 would not have arisen, either. Deciphering which
complaints properly matched up products and defendants
would entail reading tens of thousands of pieces of paper. I
believe that Judge Rothstein properly “uncomplicated” the
process by the device of requiring plaintiffs in multi-
defendant cases to file a single piece of paper with all the nec-
essary information. Rather than complying, Sasseen decided
for herself to ignore the order. If all MDL plaintiffs were to
do likewise, the very purpose of the MDL — to conduct trans-
ferred actions in a “just and efficient” way — would be sub-
verted.
Therefore, I would affirm across the board.