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Spargifiore et al v. Mylan Pharmaceuticals, Inc et al

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

MARIA SPARGIFIORE, et al., Plaintiffs, v. MYLAN PHARMACEUTICALS, INC., et al., Defendants. CIVIL ACTION NO. 2:10-cv-00800

MEMORANDUM OPINION & ORDER

On November 18, 2010, I entered an order requiring plaintiffs' counsel in this action to show cause as to why they did not appear in person at a mandatory docket hearing held on November 17, 2010. Counsel for each plaintiff remaining in MDL 1968 after the settlement agreement opt-out process had been ordered to appear. Counsel was notified that absent any showing of substantial justification, sanctions in the amount of $500.00 would be imposed pursuant to Federal Rule of Civil Procedure 16(f). I entered a further order on November 30, 2010, requiring counsel to inform the court if they intended to proceed with this civil action. Counsel filed timely responses to both orders. Counsel contends in his response to the show cause order that his client is currently deliberating what action she wishes to take with her case, having opted out of the mass settlement. He further contends that he received up to four filing notices a day in this matter in his email. While waiting for his clients' decision, he contends he failed to appear because he "apparently

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overlooked the need to respond to the Court's notices regarding the November 17, 2010, hearing" and as a result, "failed to take the steps necessary to secure Ms. Spargifiore's appearance thereat." I can find no correlation between the plaintiff's state of deliberation and counsel's failure to obey court orders. PTO #67 concerning notice of the mandatory docket conference for the remaining plaintiffs was issued on October 21, 2010. While this is the only notice of the hearing sent by the court, counsel himself states he received "up to four filing notices a day in this matter" and overlooked the need to respond to the "Court's notices" regarding the hearing. Even having admitted to receiving multiple notices of activity in this civil action prior to the mandatory hearing, counsel made no attempt to excuse his appearance before or after the hearing. It was not until he received the court's show cause order that counsel even responded. It is further obvious that counsel did not carefully read the directive of PTO #67 specifically concerning who was to appear at the mandatory hearing. It stated that counsel for each remaining plaintiff was ordered to appear at the hearing. Parties themselves were not ordered to appear unless they were not represented by counsel. I find counsel's response to the show cause order offers, at best, weak justification only for why his client, who was not ordered to do so, failed to appear at the mandatory docket hearing. It offers no explanation for counsel's failure to appear. Having failed to offer any substantial justification for his failure to appear and based upon the authority of Rule 16(f), plaintiffs' counsel is hereby ORDERED to pay a monetary sanction in the amount of $500.00 to the Clerk of Court for the Southern District of West Virginia no later than December 24, 2010. See, e.g. 6A Charles A. Wright, Federal Practice and Procedure

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