United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
before the Court is Defendants' Motion to Dismiss with
Prejudice for Failure to Prosecute, or in the Alternative,
Motion for Summary Judgment Based on Lack of Proximate
Causation Evidence (Doc. 14). For the reasons set forth
below, the Court grants the Motion to Dismiss with Prejudice
and grants the Motion for Summary Judgment Based on Lack of
Proximate Causation Evidence.
Lisa Stone is one of more than 600 claimants in the Depakote
mass action revolving around the teratogenicity warning in
the Depakote label and the alleged failure of
Defendants to adequately warn of the true risks of
birth defects. Claims based on the alleged personal injuries
of Lisa Stone's daughter, B.F. (born in 1992), were first
filed in California state court on April 8, 2013. Abbott
removed those claims to the United States District Court for
the Southern District of California on September 19, 2013.
(Doc. 14-1). The parties agreed to voluntarily dismiss those
claims on July 8, 2015, with certain agreed upon conditions.
(Doc. 14-2). On July 28, 2015, Stone refiled her claim in the
Southern District of Illinois (see Doc. 1).,
alleging that her daughter experienced heart defects due to
prenatal exposure to Depakote and died as a
summer of 2016, the Court began ordering the parties to
depose the doctor who prescribed Depakote to the biological
mother of the injured party during the critical period before
conception. This witness (hereinafter referred to as the
“key prescribing physician”) is unquestionably a
critical witness in each claim in the mass action. On October
31, 2016, Lisa Stone, along with several other Plaintiffs,
were selected to depose the key prescribing physician in
their cases. (Case No. 12-CV-52, Docs. 653, 653-1, at p. 3).
Plaintiffs were instructed to “alert the Court
concerning any prescribing physicians who cannot be located
and/or produced for deposition within this timeframe as soon
as possible but in any event before the expiration of the 90
day deadline.” (Case No. 12-CV-52, Doc. 653, at p. 2).
Unfortunately, the key prescribing physician has never been
deposed in this case, and a “No-Prescriber
Report” was not filed until nearly nine months
after the initial October 31, 2016 Order. (Doc. 15).
addition, Plaintiff demonstrated consistent dilatory conduct
between the October 31, 2016 Order and the October 27, 2017
response to Defendants' motion to dismiss. Specifically,
Plaintiff failed to meet the deadlines established by the
Court, and her counsel failed to appear at the required
discovery conferences as instructed by Magistrate Judge
Williams. See (Doc. 14-6, pp. 2-4; Doc 14-9, pp.
3-5). For example, counsel failed to appear at the January
24, 2017 Discovery Dispute Conference (“DDC”),
and the Court entered an order that Plaintiff “either
provide the appropriate prescriber and update Abbott and/or
update Abbott as to why there cannot be one identified, in
which case a report will be filed within 14 days.”
(Doc. 14-9, at p. 28, lines 21-24; see also Case No.
12-CV-52, Doc. 765, at p. 1-2). Plaintiff did not file a
report by the deadline.
Plaintiff's counsel again failed to appear at the DDC on
April 12, 2017 and provide the necessary update as to the
prescriber, Magistrate Judge Williams ordered the parties to
file a No-Prescriber Status Report “no later than May
3, 2017.” (Case No. 12-CV-52, Doc. 914, at p. 3;
see also Doc. 14-11, at p. 28). Plaintiff failed to
submit the no-prescriber report by May 3, 2017 and had to be
instructed again by Magistrate Judge Williams to
file the report (Doc. 14-6, at p. 18). During the June 22,
2017 discovery conference-at which Plaintiff's counsel
again failed to appear, -Magistrate Judge Williams recommended
that Defendants file a motion to dismiss for failure to
prosecute. (Doc. 14-12, at p. 17, lines 13-15; Case No.
12-CV-52, Doc. 1001, at p. 2).
after Defendants filed the Motion to Dismiss on August 1,
2017 (Doc. 14), it took a separate Order to Show Cause
(entered on October 17, 2017) before Plaintiff's counsel
bothered to respond to the Motion to Dismiss. Critically, the
“response” never actually addresses the dilatory
conduct by Plaintiff or the lack of proximate causation
evidence in her case.
defendant may move to dismiss an action if the plaintiff
fails to prosecute the case. Fed.R.Civ.P. 41(b). Dismissal
based on failure to prosecute “operates as an
adjudication on the merits.” Id. Dismissal
with prejudice is a harsh sanction that can be employed when
a plaintiff demonstrates 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). There is “[n]o exact rule . . . as to
when a court is justified in dismissing a case for failure to
prosecute. Each case must be looked at with regard to its own
particular procedural history and the situation at the time
of dismissal.” Stevens v. Greyhound Lines, 710
F.2d 1224, 1228 (7th Cir. 1983) (quoting Scarver v.
Allen, 457 F.2d 308, 309 (7th Cir. 1972)).
Court provided Plaintiff numerous opportunities to advance
her claim and prosecute the case, and yet she failed to meet
deadlines and appear at required hearings. While there is not
a “rigid rule” requiring the Court to warn
Plaintiff's counsel, Fischer v. Cingular Wireless
LLC, 446 F.3d 663, 665 (7th Cir. 2006), the Court
nevertheless explicitly warned Plaintiff of the possibility
of dismissal and the need to respond. (Doc. 16.) Following
the Court's warning, Plaintiff finally responded to the
motion to dismiss in the form of a declaration by attorney
Elliott Kanter. (Doc. 17). The two page declaration does not
explain why it took eight months to file the required status
report, why Plaintiff repeatedly failed to appear at the
required DDCs, or even what proximate causation evidence
remains to prove her claim.
Plaintiff did eventually file the No-Prescriber Report, it
was only docketed after months of unreasonably dilatory
conduct. Plaintiff failed to comply with the deadlines of
numerous Court orders, failed to attend at least four DDCs,
and twice (intentionally or not) misstated the status of the
case to the Court. Failing to comply with deadlines and
failing to attend Court conferences is by itself conduct that
justifies dismissal. Daniels v. Brennan, 887 F.2d
783, 788 (7th Cir. 1989) (dismissal affirmed due to
“plaintiff's counsel's failures to appear and
comply with court deadlines”); Lockhart v.
Sullivan, 925 F.2d 214, 218 (7th Cir. 1991) (dismissing
for failure to prosecute based on “plaintiff's
unexplained failure to attend the status hearing, her own
deposition, the scheduled discovery conference and her
failure to otherwise cooperate with discovery”).
Plaintiff's failure to file a timely response to the
pending motion further demonstrates “a lack of desire
to prosecute the action[, ]” which is yet another
reason to dismiss the case. Patterson, 852 F.2d at
Plaintiff's misstatements as to the status of the case,
which clouded the actual reason for the delay in scheduling
the prescribing physician deposition, demonstrate a disregard
of the judicial process. In the context of a mass action, the
Court has a special interest in dismissing claims for failure
to prosecute in order to “keep administrative control
over [its] own dockets and to deter other [plaintiffs] from
engaging in similar dilatory behavior.” Washington
v. Walker, 734 F.2d 1237, 1239 (7th Cir. 1984). If every
plaintiff involved in this mass action followed the actions
presented in this case, the Court would never be able to
reach a timely and efficient disposition of the claims at
issue. For these reasons, the Court GRANTS
Defendants' motion to dismiss (Doc. 14).
alternatively move for summary judgment concerning the
apparent lack of proximate causation evidence in
Plaintiff's claim. (Doc. 14, pp. 6-10). The local rules
provide that an adverse party in a civil case has thirty days
after service of a motion for summary judgment in which to
file a response. S. D. Ill. L. R. 7.1(c)(1). “Failure
to timely file a response to a motion may, in the Court's
discretion, be considered an admission of the merits of the
motion.” Id. at 7.1(c). Defendants'
alternative motion for summary judgment was not buried or
hidden in their submission; it was explicitly ...