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Lisa Bain, et al v. Astrazeneca

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


October 30, 2012

LISA BAIN, ET AL., PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL., DEFENDANTS.
LISA SAUNDERS, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL.,
DEFENDANTS.
KIMBERLY KESSLER, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL.,
DEFENDANTS.
CYNTHIA ARNOLD, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL.,
DEFENDANTS.
ANGEL COLON, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL., DEFENDANTS.
MARK COFFEY, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL.,
DEFENDANTS.
SHARON DISTON, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL.,
DEFENDANTS.
DAMON BROWN, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL.,
DEFENDANTS.
DENNIS O'BRIEN, ET AL.,
PLAINTIFFS,
v.
ASTRAZENECA, LP, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DISMISSING CLAIMS OF CERTAIN PLAINTIFFS AND REQUIRING MILLER FIRM TO SHOW CAUSE WHY MONETARY SANCTIONS SHOULD NOT BE IMPOSED ON COUNSEL

The Court DISMISSES the claims of the sixty-five non- 2 responsive Plaintiffs listed in Exhibit C to this order. The 3 Court also ORDERS Plaintiffs' counsel, the Miller Firm, LLC, to 4 show cause, within three days of the date of this order, why 5 monetary sanctions should not be imposed upon counsel for its 6 ongoing and repeated failures to comply with the Court's orders. 7

BACKGROUND

On February 9, 2011, the parties filed a stipulated motion, 9 stating that the parties had entered into a Master Settlement 10 Agreement (MSA) to resolve the claims of all Plaintiffs in these actions and asking the Court to establish a qualified settlement fund. The Court granted the parties' motion on February 18, 2011. 13

On August 24, 2012, the Court noted that Plaintiffs' counsel 14 had not informed the Court of the status of the parties' settlement on behalf of any Plaintiff since February 18, 2011, and 16 ordered Plaintiffs' counsel to file a status report within two 17 weeks of the date of that order, or by Friday, September 7, 2012. 18

At that time, the Court also directed Plaintiffs' counsel to 19 finalize settlements for any Plaintiffs who intended to 20 participate in the Master Settlement Agreement (MSA) within four 21 weeks of the date of that order. The Court further ordered that, 22 when the claims of any individual Plaintiff were resolved, 23

Plaintiffs' counsel must seek and file, within three days, a 24 stipulation of dismissal as to that Plaintiff. 25 26 27 28

On September 11, 2012, four days after the deadline, Plaintiffs' counsel filed a status report.*fn1 Counsel stated, among 3 other things, that five Plaintiffs have rejected the terms of the 4 MSA.*fn2 5

On September 17, 2012, the Court filed a further order, 6 noting several deficiencies in the status report and further 7 noting that, although Plaintiffs' counsel indicated that 263 8 Plaintiffs had fully resolved their claims by September 11, 2012, 9 counsel had not filed stipulations of dismissal as to those 10 Plaintiffs. The Court ordered counsel to file a further status report and to file stipulations of dismissal as to those Plaintiffs within three days. 13

On September 20, 2012, Plaintiffs' counsel filed the further 14 status report, indicating that seventy-seven Plaintiffs had failed to respond to counsel's extensive efforts to contact them and had 16 not indicated whether they will or will not participate in the 17 MSA. 18

On September 21, 2102, one day after the deadline, the 19 parties filed stipulations of dismissal as to 306 of the 418 20 21 Plaintiffs named in these cases.*fn3 On that same date, the parties 2 jointly moved for an extension of time until Monday, October 22, 3 2012 to finalize the claims of twenty-nine remaining Plaintiffs, 4 listed in Exhibit A to this order, who intended to participate in 5 the MSA and for an order to show cause why the claims brought by 6 the seventy-seven non-responsive Plaintiffs should not be 7 dismissed with prejudice. 8

On September 26, 2012, the Court granted the motion, extended 9 the deadline to October 22, 2012 to finalize the claims of the 10 twenty-nine Plaintiffs who intended to participate in the MSA, and ordered the seventy-seven non-responsive Plaintiffs to show cause, within twenty-one days of the date of the order, or by October 17, 13 2012, why their cases should not be dismissed with prejudice. The 14 Court also stated that these non-responsive Plaintiffs alternatively could have new counsel appear before this Court on 16 their behalf, or could communicate with counsel regarding their 17 agreement to or rejection of the MSA. The Court further ordered 18 Plaintiffs' counsel to file, within twenty-two days from the date 19 of the order, or by October 18, 2012, a declaration stating 20 whether the non-responsive Plaintiffs had since communicated with 21 counsel regarding their agreement to or rejection of the MSA. 2

Finally, the Court required Plaintiffs' counsel to provide notice 3 of the order to the non-responsive Plaintiffs based on the best 4 available contact information, and to file a certification that 5 such notice has been sent, with three days of the date of the 6 order. 7

On September 28, 2012, Plaintiffs' counsel filed a 8 certificate of mailing stating that counsel had served each of the 9 seventy-seven non-responsive Plaintiffs with a copy of the Court's 10 September 26, 2012 order by mailing a copy of the order to the last known address for each Plaintiff. *fn4

On October 17 and 19, 2012, Plaintiffs' counsel filed a 13 motion on behalf of twelve of the seventy-seven non-responsive 14 Plaintiffs, stating that these twelve Plaintiffs had contacted counsel about the September 26, 2012 Order and had expressed a 16 desire to participate in the MSA; the names of these twelve 17 Plaintiffs are listed in Exhibit B to this order. Plaintiffs' 18 counsel requested that the Court allow these twelve Plaintiffs 19 until October 22, 2012 to finalize their claims. 20

On October 19, 2012, the Court granted the request, extended 21 the deadline for the twelve Plaintiffs to finalize their 22 participation in the MSA until October 22, 2012, and discharged 23 the order to show cause as to them. The Court also noted that 24 Plaintiffs' counsel had not filed a declaration stating whether 25 the other sixty-five non-responsive Plaintiffs, who are listed in 2 Exhibit C to this order, had communicated with counsel regarding 3 their agreement to or rejection of the MSA after the Court had 4 issued its order to show cause, although counsel was required to 5 do so by the previous day. The Court sua sponte extended the 6 deadline for Plaintiffs' counsel to file the declaration until 7 October 22, 2012. 8

On October 30, 2012, twelve days after the original deadline 9 and eight days after the extended deadline, Plaintiffs' counsel 10 filed a declaration attesting that the sixty-five Plaintiffs listed in Exhibit C had not contacted the firm personally or 12 through new counsel since the Court issued the order to show 13 cause. Counsel provides no explanation for the failure to file 14 this declaration by October 18 or 22.

DISCUSSION

Plaintiffs' counsel attests that the firm provided notice of 17 the Court's order to the seventy-seven non-responsive Plaintiffs 18 and that the sixty-five Plaintiffs listed in Exhibit C have not 19 contacted counsel. The Court notes that these sixty-five 20

Plaintiffs also have not contacted the Court separately or had new 21 counsel appear before this Court on their behalf. Accordingly, 22 the Court DISMISSES the claims of the Plaintiffs listed in Exhibit 23

C with prejudice. 24

The Court notes that all claims by the forty-one Plaintiffs 25 listed in Exhibits A and B were required to be finalized by 26 October 22, 2012, and that Plaintiffs' counsel was required to 27 obtain and file a stipulation of dismissal as to any claim within 28 three days of it being resolved. Thus, for each of these Plaintiffs, such stipulations should have been filed no later than 2 October 25, 2012. However, counsel has not filed stipulations of 3 dismissal as to any of these Plaintiffs. Counsel has not sought 4 further extensions of these deadlines, although the Court has 5 granted multiple extensions in the past when such extensions have 6 been requested. Counsel also has missed deadlines repeatedly in 7 these cases in the past two months without providing explanations 8 or seeking extensions. 9

Accordingly, the Court ORDERS the Miller Law Firm, LLC to 10 show cause why monetary sanctions should not be imposed in the amount of $500 for each day in which Plaintiffs' counsel is out of compliance with the Court's orders. Counsel shall file a response 13 within three days of the date of this order. 14

IT IS SO ORDERED.


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