Elawyers Elawyers
Washington| Change

In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, 15-2666 (JNE/FLN). (2018)

Court: District Court, D. Minnesota Number: infdco20180621c52 Visitors: 6
Filed: Jun. 20, 2018
Latest Update: Jun. 20, 2018
Summary: ORDER JOAN N. ERICKSEN , District Judge . Defendants 3M Company and Arizant Healthcare, Inc., moved to dismiss twenty-seven member cases in the Bair Hugger MDL, including the above-captioned. For seventeen cases, Defendants assert Plaintiffs' failure to comply with Pretrial Order No. 14 ("PTO 14," MDL Dkt. No. 117). Mot., MDL Dkt. No. 1272. For the other ten, Defendants assert lack of subject-matter jurisdiction. MDL Dkt. No. 1283. Defendants have withdrawn their Motion as to Plaintiff Ro
More

ORDER

Defendants 3M Company and Arizant Healthcare, Inc., moved to dismiss twenty-seven member cases in the Bair Hugger MDL, including the above-captioned. For seventeen cases, Defendants assert Plaintiffs' failure to comply with Pretrial Order No. 14 ("PTO 14," MDL Dkt. No. 117). Mot., MDL Dkt. No. 1272. For the other ten, Defendants assert lack of subject-matter jurisdiction. MDL Dkt. No. 1283. Defendants have withdrawn their Motion as to Plaintiff Ronnie Lewis (17-cv-5375). MDL Dkt. No. 1288. Defendants have also withdrawn their Motion as to Plaintiffs Tommy & Belinda Reed (17-cv-5202) and John & Betty Spry (17-cv-5199). MDL Dkt. No. 1296. The Court now decides the Motions as to the twenty-three above-captioned cases. The Court will decide the Motion as to joint Plaintiff Loretta & Royce Hylander (16-cv-2518) later. See MDL Dkt. No. 1284.

I. Defendants' Motion [MDL Dkt. No. 1272] to dismiss under Pretrial Order No. 14 is granted in part and denied in part.

Plaintiffs must complete and serve Plaintiff Fact Sheets in lieu of interrogatories. See Dismissal Order 1-2 (July 24, 2017), MDL Dkt. No. 622. Because PTO 14 triggers express warnings of dismissal and gives plaintiffs opportunities to cure noncompliance, the Court may dismiss a case with prejudice if plaintiff has failed to comply with that Order despite those warnings and opportunities. Dismissal Order 1-3 (Dec. 21, 2017), MDL Dkt. No. 1028; see Fed. R. Civ. P. 41(b) (allowing dismissal for failure to comply with court orders). The Court may also dismiss a case for failure to prosecute. Fed. R. Civ. P. 41(b). Defendants here have made an initial showing that fourteen of the above-captioned cases should be dismissed under PTO 14. See MDL Dkt. Nos. 1274-1275. So, to resist dismissal, the Plaintiffs must oppose the Motion. See PTO 14 ¶ 8.

A. The Motion is granted as to the twelve Plaintiffs or Joint Plaintiffs who did not respond to it.

Plaintiffs Louis Beck (17-cv-4805), Jay Cheney (17-cv-4984), Laura Duckworth (17-cv-4825), Gwendolyn Finney (17-cv-3049), Sharida Guyton (17-cv-3662), April Holcomb (17-cv-4429), Peter & Jequita Holmes (17-cv-3255), Charles Kelley (17-cv-5302), Stephanie Minnigan-Judd (17-cv-5469), Richard Pew (17-cv-4896), Sheree Scott (17-cv-4880), and Leslie Thyrion (17-cv-4892) did not respond to and so do not oppose the Motion. The Court thus GRANTS the Motion as to these twelve cases and DISMISSES them with prejudice under PTO 14 and for failing to prosecute.

B. The Motion is granted as to Plaintiff Susan Reinker, who has stopped communicating with counsel and has not disputed the Motion's merits.

For Plaintiff Susan Reinker (17-cv-2638), counsel responds to the Motion but does not dispute that Reinker has failed to comply with PTO 14. To oppose the Motion, Reinker must dispute its merits. See Dismissal Order 2 (July 24, 2017) (deeming counsel's log of "unsuccessful attempts to enlist [plaintiff's] cooperation" non-opposition), MDL Dkt. No. 622. Her counsel instead explains that she last communicated with him in 2015. MDL Dkt. No. 1289 ¶ 1. This explanation does not go to the Motion's merits. So, Reinker has not opposed the Motion, as she had to. The Court thus GRANTS the Motion as to her and DISMISSES her case with prejudice under PTO 14 and for failure to prosecute.

C. The Motion is denied without prejudice to renew as to Plaintiff Michael Moore.

Counsel for Plaintiff Michael Moore (17-cv-2901) suggests Moore's death. MDL Dkt. No. 1291 ¶ 5. To allow substitution under Pretrial Order No. 23, MDL Dkt. No. 1039, which was ordered on Defendants' request, Defendants' Motion as to Moore is DENIED without prejudice to renew. See, e.g., Order on Defs.' Mar. 2018 Mot. 4 (denying Defs.' Mot. as to Pl. Shirley Slaughter), MDL Dkt. No. 1167.

II. Defendants' Motion [MDL Dkt. No. 1283] to dismiss for lack of subject-matter jurisdiction is granted as to nine Plaintiffs who died before Complaints were filed in those Plaintiffs' name.

For Plaintiffs Charlene Brack (17-cv-2451), William Church (17-cv-2509), Mark Downs (17-cv-2156), Jeffrey T. Flynn (17-cv-2533), Garland Holmes (17-cv-2647), Porter Pledger (17-cv-3502), Debra Stringer (17-cv-3383), Jerri Wolf (17-cv-3953) and Marje Wolfson (17-cv-2809), someone sued in their name after they had died:

Plaintiff Case No. Died Complaint Brack 17-cv-2451 Oct. 2016 July 2017 Church 17-cv-2509 May 2017 July 2017 Downs 17-cv-2156 Apr. 2017 June 2017 Flynn 17-cv-2533 Mar. 2016 July 2017 Holmes, Garland 17-cv-2647 Jan. 2017 July 2017 Pledger 17-cv-3502 Feb. 2017 Aug. 2017 Stringer 17-cv-3383 Feb. 2017 July 2017 Wolf 17-cv-3953 June 2017 Aug. 2017 Wolfson 17-cv-2809 Oct. 2016 July 2017

The dead cannot invoke federal jurisdiction. The Court thus must dismiss these nine cases for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(h)(3). When "a case originally filed in federal court does not belong there" because of a lack of subject-matter jurisdiction, "generally the appropriate remedy is to dismiss without prejudice." Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1033 (8th Cir. 2014). And so, the Court DISMISSES these nine cases without prejudice.

IT IS SO ORDERED.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer