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In re Depakote Alexander

United States District Court, S.D. Illinois

December 13, 2016



          NANCY J. ROSENSTENGEL, United States District Judge

         On October 24, 2016, the Court issued an Order to Show Cause as to why certain cases should not be dismissed for failure to follow a Court Order.[1] (Doc. 639). This was the second Order to Show Cause concerning the failure by certain Plaintiffs to comply with the requirement to provide claim forms to Defendants. (See Doc. 639) (providing a full recitation of the procedural history of the claim forms issue). In the October 24 Order, the Court warned that failure to file a response by the deadline of November 8, 2016, would result in an immediate dismissal. A variety of responses were filed by some, but not all, of the delinquent Plaintiffs before the deadline passed.

         From the outset, the Court is compelled to note that a small group of Plaintiffs continues to monopolize the Court's attention. Whether it is blatantly failing to plead diversity jurisdiction, accidently dismissing Plaintiffs through filing an incorrect Amended Complaint, [2] or failing to comply with Orders of the Court, these Plaintiffs are drawing upon a disproportionate and unreasonable amount of the Court's time and resources. (See Doc. 667) (concerning the failure to properly allege diversity jurisdiction); see also Case No. 12-cv-1091 (Doc. 59) (concerning the “inadvertent” dismissal of several Plaintiffs' claims).

         Even without these errors, the unique nature of the Depakote mass action continues to challenge the Court's ability to manage the docket. For example, the current litigation is not appropriately consolidated under Rule 23 despite having many of the burdensome characteristics of a class action. Additionally, because the majority of cases were directly filed in the Southern District of Illinois, the mass action avoided the MDL process thereby eliminating the resources and tools usually available for taming complex litigation.[3] These challenges are exponentially compounded by repeated substantive mistakes and failures to comply with the Court's Orders.

         The Court does not view Plaintiffs as one giant party to be held accountable for each other's actions. Indeed, the vast majority of litigants and counsel are doing exactly what is expected and required when proceeding in federal court. Nevertheless, all parties must be mindful that every minute the Court spends dealing with these completely avoidable issues is time taken from the resolution of the mass action. With that in mind, the Court will address each of the Plaintiffs in detail below.

         Nonresponsive Plaintiffs

          In their supplemental response to the original Order to Show Cause entered on May 16, 2016, Plaintiffs indicated that a number of Plaintiffs were “nonresponsive” to counsel. (Doc. 480). Those same individuals, listed below in Table 1, failed to provide any response to the second Order to Show Cause. It has almost been a year since the original deadline elapsed; these Plaintiffs have had ample time to comply with multiple Orders of the Court.

         At the Status Conference, Lead Plaintiffs' Counsel requested an additional thirty days to allow counsel to try to get in touch with the clients in question. Each counsel was aware as of May 2016 that the listed Plaintiffs were nonresponsive and that every effort needed to be made to contact these Plaintiffs. Also, for any Plaintiff who could not be reached, counsel could have filed a motion for an extension of time to comply with the Court Order before the November 8 deadline instead of waiting until the November 17 Status Conference to make such a request. The Court has no confidence that an additional thirty, sixty, or even 365 day extension would make a difference, because the evidence before the Court strongly suggests that these Plaintiffs have abandoned their claims (in fact, almost thirty days have passed since the status conference, and still nothing has been filed). Therefore, the request for additional time is DENIED.

         The Court is faced with a set of Plaintiffs who were aware of the requirements to provide the most basic of information to Defendants and failed to do so. See Exhibit 1 (a draft copy of the claim form Plaintiffs were to provide). Instead of complying with the Court's Order, they cut off all communication for almost a year and counting. The Court warned that dismissal with prejudice was a possible outcome if the parties failed to respond to the second Order to Show Cause. (Doc. 639, at pp. 2-3). It is undisputed that dismissal of these actions for failure to follow a Court Order and failure to prosecute is warranted under the circumstances. Plaintiffs argue, however, that any dismissal should be without prejudice because there are minors involved. (Doc. 692, at p. 40) (“The only thing I would ask is, we're dealing with children, and I don't think that it's appropriate to dismiss their case with prejudice on account of their mother or father being a poor representative for their claim.”)

         Dismissal with prejudice is a harsh sanction that can be employed when Plaintiffs demonstrate a pattern of dilatory or contumacious behavior. Patterson by Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston, 852 F.2d 280, 285 (7th Cir. 1988). The Court is satisfied that such behavior has been demonstrated by the adult Plaintiffs listed in Table 1. By failing to comply with a Court Order and then engaging in “radio silence” for almost a year and counting, Plaintiffs have demonstrated a disregard for the judicial process. Accordingly, the individual claims of the adult representatives listed in Table 1 are DISMISSED with prejudice; this includes their ability to serve as the future representative of the associated minor child in any Depakote litigation.

         As to the minor Plaintiffs listed in Table 1, the case of Patterson by Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston (“Patterson”) is instructive as to how the Court should proceed. 852 F.2d 280 (7th Cir. 1988). In Patterson, the Seventh Circuit affirmed a dismissal with prejudice of a minor's claim for failing to cooperate in discovery and for repeated failures to comply with Court Orders. In doing so, the Court distinguished the “long established” duty of the Court to safeguard a minor's interest by pointing out that all litigants are bound by the conduct of their attorney and by noting the repeated failures to comply with Court Orders. Id. at 284. While the Court finds the conduct in question sufficiently egregious to warrant severe sanctions, the fact that the minor Plaintiffs are the real parties in interest and the conduct in question appears to be attributable entirely to the actions of their representatives, dismissal with prejudice of their claims is not warranted. Accordingly, the individual claims of the minor Plaintiffs listed in Table 1 are DISMISSED without prejudice.[4]

         The culpability for this circumstance does not rest exclusively with the individual Plaintiffs or even their representatives. When the Court set the December 31, 2015 deadline, it was the duty of each counsel to ensure compliance by Plaintiffs with the Court Order. The Court assumes that each counsel, as officers of the Court, executed this duty and knew, as of January 1, 2016, which Plaintiffs where not in compliance with the Court Order and why. Yet it was not until five months later (and only after the issuance of an Order to Show Cause), that the Court was alerted that these Plaintiffs were nonresponsive. The same absence of communication permeated the most recent Order to Show Cause responses. Instead of informing the Court as to the status of the parties in question, as some counsel correctly chose to do, for nearly twenty-three Plaintiffs, no response or indication was received. The Court can appreciate that Plaintiffs' primary focus may be on the large number of meritorious cases within the mass action, but the Court is obligated to manage every active case on its docket, including those considered by some to be the low hanging fruit. (Doc. 692, at pp. 33; 32).

         Finally, the Court notes that Plaintiffs' counsel indicated that they have been unable to contact “Olivia Wilson, mother of Plaintiff Jonathan Wilson.” (Doc. 674 at pp. 2-3). The Court has received no indication that Jonathan Wilson is a minor or otherwise legally incompetent. While the Court understands that an adult child may reside at home where traditional parent/child social roles apply, the law recognizes Jonathan Wilson as a competent litigant until proven to the contrary. As he is not represented by a “next friend” representative, the failure to prosecute his claim and the repeated failure to comply with an Order of this Court fall squarely on his shoulders. Therefore, the individual claim of Jonathan Wilson is DISMISSED without prejudice to ripen into with prejudice thirty days after the ...

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