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Stop us if you have heard this before.  One of the big problems with MDLs in the era of unchecked lawyer advertising, litigation funding, and the focus of MDL judges on mass settlement is that a high percentage of plaintiffs never have to do any heavy lifting between filing their cases and participating in some group settlement.  One of the consequences of this dynamic, absent reasonable Lone Pine orders or other meaningful requirements imposed on all plaintiffs, is that lots of plaintiffs’ cases remain pending in an MDL when they would not if they were being litigated as individual cases.  We all have experience with deceased plaintiffs (without a motion to substitute or other notice), plaintiffs who did not know they had a lawsuit, plaintiffs with multiple lawsuits, plaintiffs whose counsel have no idea how to reach them, plaintiffs who are now incarcerated, and a range of other fact patterns that should typically end a case.  In MDLs, however, plaintiffs’ counsel remain ignorant or intentionally silent about these issue while settlement negotiations count these cases as if they were legitimate.  That is pretty messed up.  What is maybe even more messed up is how often it seems that MDL courts forgive plaintiffs for these issues and noncompliance with court orders.

Well, there is apparently a level of flouting of deadlines and orders that even one of the most notorious, at least on this Blog, of MDL judges cannot tolerate.  (Some examples include here, here, here, and here.)  Diaz v. Ethicon, Inc., No. 2:18-cv-00893, 2023 U.S. Dist. LEXIS 23016 (S.D.W. Va. Feb. 10, 2023), comes from one of the remaining pelvic mesh MDLs, all overseen by the same judge and the subject of many prior posts.  With a few exceptions (like here), the decisions from these MDLs have been quite plaintiff-friendly, shall we say.  Back when there were five pending MDLs before the same judge with approximately 100,000 pending cases between them, the number of dismissals for failure to comply with court orders or due to basic hurdles like statutes of limitations or repose were fleetingly few.  Whereas some MDLs have been willing to let counsel withdraw after a plaintiff rejects settlement urged by her counsel, which usually results in a dismissal when the plaintiff cannot find new counsel by a specified deadline, this judge did not.  The result was that there were many plaintiffs whose counsel remained in the case against their will and, perhaps, gave less than complete attention to prosecuting the case than they might have otherwise.

In Diaz, we see nothing about fallout between plaintiff and her counsel.  Instead, plaintiff’s counsel left his law firm nine months after her case was filed in the MDL.  That was also one month after the case was listed on a wave discovery order establishing a number of deadlines for her case.  Twenty-months later, after blowing all the deadlines, a show cause order was entered, which gave plaintiff a month to justify why her case should not be dismissed without prejudice.  (Yes, the default for an involuntary dismissal under Fed. R. Civ. P. 41(b) is with prejudice, so even this order was on the lenient side.)  Plaintiff did nothing and her case was dismissed.  Her original attorney remained counsel of record and received all three of these orders.  Five months after the entry of the wave order, the law firm where her counsel of record used to work tried to settle her case.  Almost two years after her case was dismissed, plaintiff filed a motion under Fed. R. Civ. P. 60(b)(6) to have the judgment undone, offering a number of somewhat contradictory excuses for why her lawyers—counsel of record and his former firm—failed to prosecute her case.

In case the title and lead in to this post left some question, the Diaz court was not inclined to grant extraordinary relief because of extraordinarily bad—but maybe not extraordinarily rare—lawyering.  Plaintiff failed the three “threshold requirements” that the court analyzed and probably would have failed others if analyzed.  First, the motion was untimely because it was not brought “within a reasonable time.”  2023 U.S. Dist. LEXIS 23016, *5.  (It is a quirk of Rule 60(b) that a motion under subsections (1), (2), or (3) must be brought within a year, but the rest have the fuzzier deadline.)  Plaintiff’s counsel claimed to have only learned of the orders “recently,” presumably late 2022, which the court deemed “either entirely false or, if true, it is unacceptable, as any reasonable attorney should have been aware of the circumstances.”  Id.  This is not something any lawyer wants to see in a court order.  After running through some of the facts above—we could add more given some of the standing orders and practices in these MDLs—the court added that, “while Ms. Diaz’s attorneys were careless, Ms. Diaz also could have been more diligent in inquiring into the status of her case between 2020 and 2022.”  Id. at *6.  We have not seen many courts impose such a duty on a represented party, but it makes sense in this context.

Second, letting plaintiff undo her dismissal would be unfairly prejudicial to the defendant, which “relied on the finality” of the dismissal for lack of prosecution.  Id. at *8.  We might quibble with expecting finality from a dismissal without prejudice, but we have also seen many courts blow past the idea that a defendant in an MDL or serial litigation is prejudiced by reviving one more case.  As we noted recently, the rights of parties are not supposed to be different just because their case is in an MDL, but that is not always how it seems.

Third, plaintiff clearly did not show that “exceptional circumstances exist that would justify vacating” the judgment.  The general rule that “a lawyer’s ignorance or carelessness” is not enough applied, but the occasional exception where the lawyer completely abandons the case did not.  Id. at *8-9.

[Plaintiff’s counsel’s] conduct is better characterized as disorganized or careless, rather than abandonment.  While I am sympathetic to Ms. Diaz’s predicament, she selected her attorneys and must live with the consequences of their representation.

Id. at *9.  Our reaction to reading that was a little like this.  Without saying the magic word, the court also nudged plaintiff toward bringing a malpractice suit against her counsel.  That is an unusual nudge and, as we have seen, a malpractice suit could end up back in the same MDL.  Hopefully, such a case would not end up dragging the manufacturer back in.