Filed: Mar. 26, 2018
Latest Update: Mar. 26, 2018
Summary: MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN , District Judge . Pending before the court is Defendant's Motion to Dismiss [ECF No. 11] filed by Boston Scientific Corporation ("BSC"). The plaintiff has responded [ECF No. 12], and the matter is ripe for my review. For the reasons stated below, the motion is GRANTED. BSC's Motion arises from this court's Order [ECF No. 9], entered on August 28, 2017, denying BSC's first Motion to Dismiss for failure to serve a Plaintiff Fact Sheet ("PFS")
Summary: MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN , District Judge . Pending before the court is Defendant's Motion to Dismiss [ECF No. 11] filed by Boston Scientific Corporation ("BSC"). The plaintiff has responded [ECF No. 12], and the matter is ripe for my review. For the reasons stated below, the motion is GRANTED. BSC's Motion arises from this court's Order [ECF No. 9], entered on August 28, 2017, denying BSC's first Motion to Dismiss for failure to serve a Plaintiff Fact Sheet ("PFS") ..
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MEMORANDUM OPINION AND ORDER
JOSEPH R. GOODWIN, District Judge.
Pending before the court is Defendant's Motion to Dismiss [ECF No. 11] filed by Boston Scientific Corporation ("BSC"). The plaintiff has responded [ECF No. 12], and the matter is ripe for my review. For the reasons stated below, the motion is GRANTED.
BSC's Motion arises from this court's Order [ECF No. 9], entered on August 28, 2017, denying BSC's first Motion to Dismiss for failure to serve a Plaintiff Fact Sheet ("PFS") [ECF No. 7] in compliance with Pretrial Order ("PTO") # 165. In reaching this decision, I relied on Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (4th Cir. 1977), in which the Fourth Circuit identified four factors that a court must consider when reviewing a motion to dismiss on the basis of noncompliance with discovery. See Order at 4-6 (applying the Wilson factors to the plaintiff's case).1 Concluding that the first three factors weighed in favor of sanctions as requested by BSC, I nevertheless declined to award the requested sanction of dismissal with prejudice because it would offend the court's duty under Wilson's fourth factor, which is to consider the effectiveness of lesser sanctions. In recognition of this duty, I gave the plaintiff a final chance to comply with the deadlines set forth in PTO # 165. I afforded her thirty days from the entry of the Order to submit to BSC a completed PFS, with the caveat that failure to do so may result in dismissal of her case with prejudice upon motion by BSC. Despite this warning, the plaintiff has again failed to comply with this court's orders and did not provide BSC with a completed PFS within the thirty-day period. Consequently, BSC moved to dismiss with prejudice.
Because the less drastic sanction instituted against the plaintiff has had no effect on her compliance with and response to this court's discovery orders, which she has continued to blatantly disregard, I find that dismissing BSC with prejudice is now appropriate. For the reasons explained in my August 28, 2017 Order, it is ORDERED that BSC's Motion to Dismiss [ECF No. 11] is GRANTED, and BSC is DISMISSED with prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any unrepresented party.
