United States Court of Appeals
For the Eighth Circuit
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No. 13-3556
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Patricia Freeman
lllllllllllllllllllll Plaintiff - Appellant
v.
Wyeth; Wyeth Pharmaceuticals, Inc.
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: May 23, 2014
Filed: August 13, 2014
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Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Patricia Freeman was a plaintiff in a multidistrict litigation ("MDL") suit
brought against Wyeth Pharmaceuticals, Inc., and related entities (collectively,
"Wyeth"). The district court1 dismissed Freeman's case for failure to prosecute and
later denied her motion to reconsider. We affirm.
In early 2009, Freeman sued Wyeth in New York state court, alleging that she
developed breast cancer after using Wyeth's hormone therapy medication, Prempro.
Wyeth timely removed the case to the United States District Court for the Southern
District of New York. Shortly thereafter, the Judicial Panel on Multidistrict
Litigation transferred the case to the Eastern District of Arkansas as part of the
ongoing In re Prempro Products Liability Litigation, MDL-1507, created in 2003.
The clerk of court for the Eastern District of Arkansas opened an individual
docket for Freeman's case on May 12, 2009. The next day, the clerk filed in
Freeman's docket a memorandum that contained important information (the "transfer
memorandum") regarding the MDL's use of the Case Management/Electronic Case
Files ("CM-ECF") system. Relevant to this appeal, the transfer memorandum
instructed Freeman's attorney as follows:
Attorneys are required to electronically file documents in
the Prempro Products Liability Litigation (MDL 1507) and
all related cases, absent unusual circumstances. If you
have not previously registered for electronic filing in the
Eastern District of Arkansas, you must complete the
enclosed Electronic Case Filing Registration Form and
submit it to the Clerk’s office. Attorneys who do not
register for electronic filing will not receive notices of
electronic filing, nor will they receive hard copies of
orders. (See Judge Wilson’s Order of September 19, 2005.)
1
The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
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Judge Wilson's Order of September 19, 2005, in turn, read as follows:
In a July 1, 2005 letter, I notified all parties that electronic
filing had arrived in the Eastern District of Arkansas. I
also informed you all that electronic filing would be
required in all MDL-1507 cases. . . . However, many of
you (especially local counsel) have not heeded the call.
Again, all counsel (including local counsel in individual
cases who appear on docket sheets transferred to the
Eastern District of Arkansas) must register on CM-ECF.
...
You are once again fully advised in the premises, and, if
you do not register, you will not receive notices of
electronic filing, nor will you receive hard copies of orders.
All counsel are directed to register, here and now.
(emphasis in original). Between May 13, 2009, and November 16, 2012, nothing was
posted to Freeman's individual docket. Then, on November 16, 2012, the district
court issued an order designating Freeman's case (and several others) for discovery.
The order was posted to Freeman's individual docket. In preparation for discovery,
the district court instructed Freeman to provide updated medical authorizations to
Wyeth within three weeks and warned her that "[f]ailure to do so may result in
dismissal for failure to prosecute." The district court had issued a similar warning to
other litigants in the MDL only a few months prior. That warning was posted to the
MDL's main docket and was addressed to "ALL CASES." On January 8, 2013,
Wyeth moved to dismiss Freeman's case because she had not provided the medical
authorizations per the district court's instructions. The district court granted the
motion on January 28, 2013.
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Nearly nine months later, Freeman's attorney filed a Rule 60(b)(1) motion to
set aside the dismissal. In the motion, he represented that he had "monitored the case,
including the time period following its transfer to the Eastern District." Despite his
asserted monitoring, however, he did not register for CM-ECF system in the Eastern
District until October 22, 2013––the day he filed his motion to vacate the dismissal
order. As a consequence of failing to register for the MDL's CM-ECF system,
Freeman's attorney did not receive electronic notices of the filings in Freeman's case,
including the district court's initial order designating the case for discovery, the
motion to dismiss for failure to prosecute, or the district court's order granting the
motion. The district court denied Freeman's 60(b)(1) motion to set aside the
judgment. Freeman appeals.2
"The denial of a Rule 60(b) motion is reviewed for an abuse of discretion."
Gaydos v. Guidant Corp. (In re Guidant Corp. Implantable Defibrillators Prods. Liab.
Litig., 496 F.3d 863, 866 (8th Cir. 2007) ("In re Guidant Corp."). An abuse of
discretion occurs when the "district court's judgment was based on clearly erroneous
fact-findings or erroneous conclusions of law." Id. Rule 60(b)(1), among other
things, permits a district court to set aside a judgment entered because of a party's
"excusable neglect." In re Guidant Corp., 496 F.3d at 866. To determine whether
conduct is excusable, courts consider several factors, including: "(1) the danger of
prejudice to the non-moving party; (2) the length of the delay and its potential impact
on judicial proceedings; (3) whether the movant acted in good faith; and (4) the
reason for the delay, including whether it was within the reasonable control of the
movant." Id. (citing Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S.
380, 395 (1993). The reason for the delay is a "key factor in the analysis," In re
Guidant Corp., 496 F.3d at 867, but the excusable neglect inquiry "is at bottom an
2
We note that Freeman does not (and cannot) appeal the underlying Rule 41(b)
dismissal; if she did, we would not have jurisdiction to review it. See Fed. R. App.
P. 4(a) (appeals from district court orders, in the absence of a statutory exception,
must be taken within 30 days after the entry of judgment).
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equitable one, taking account of all relevant circumstances surrounding the party's
omission," Pioneer, 507 U.S. at 395.
In this case, we cannot say that the district court abused its discretion when it
refused to set aside its order of dismissal. We have recognized that "administering
cases in multidistrict litigation is different from administering cases on a routine
docket," In re Guidant Corp., 496 F.3d at 867 (citation omitted), and that to encourage
efficiency, "MDL courts must be given greater discretion to organize, coordinate and
adjudicate its proceedings, including the dismissal of cases for failure to comply with
its orders," id. Applying this principle to the present case is clear enough: on more
than one occasion, the district court instructed all attorneys to register for the CM-
ECF system and warned that those who did not would not receive electronic filing
notices or hard copies of orders. The requirement to register was set out in the clerk's
transfer memorandum that was posted to Freeman's individual docket. This was
during the time when Freeman's attorney represented that he was monitoring the case.
Further, the district court's order designating discovery in Freeman's case, dated
November 16, 2012, warned that failure to provide Wyeth with updated medical
authorizations "may result in dismissal for failure to prosecute." In addition, the
district court had issued a similar warning (which was placed on the MDL's main
docket) three months earlier in denying a motion to dismiss for failure to prosecute
as moot. Judge Wilson strongly hinted then that he would consider dismissal if the
plaintiffs' attorneys did not provide the updated medical authorizations in a timely
fashion. That is what happened here.
It is an unfortunate outcome that Freeman will not receive her day in court due
to her attorney's apparent professional carelessness. And we recognize that our
circuit generally prefers merits dispositions over default judgments. See, e.g., United
States v. Real Props. located at 7215 Longboat Dr., 750 F.3d 968, 975 (8th Cir.
2014). But that interest must be weighed against the unique problems an MDL judge
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faces, especially when the MDL litigation involves hundreds of attorneys
representing thousands of clients. The MDL judge must be given "greater discretion"
to create and enforce deadlines in order to administrate the litigation effectively. This
necessarily includes the power to dismiss cases where litigants do not follow the
court's orders. See In re Guidant Corp., 496 F.3d at 867. In the final analysis, and in
the procedural posture of this appeal––review of a Rule 60(b) motion––we do not
find this to be an "exceptional" case warranting relief. Int'l Bd of Elec. Workers v.
Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir. 2002).
Affirmed.
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