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

CHARLESTON DIVISION

MELANIE GARRETT,

Plaintiff,

v. CIVIL ACTION NO. 2:12-cv-09075

ETHICON, INC., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are (1) Defendants’ Motion to Dismiss with Prejudice or for Other Relief, filed on June 22, 2017 [ECF No. 19]; and (2) Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss and Plaintiff’s Motion to Remove from Wave 6, filed on July 6, 2017 [ECF No. 22]. In their Motion, defendants Ethicon, Inc., Ethicon LLC and Johnson & Johnson (collectively “Ethicon”) seek dismissal of plaintiff’s case with prejudice based on plaintiff’s failure to timely serve a Plaintiff Fact Sheet (“PFS”) in violation of Pretrial Order # 251. [ECF No. 19]. In response, plaintiff’s counsel opposes the Motion, indicating that he has repeatedly attempted to communicate with plaintiff with no response. Plaintiff’s counsel requests that plaintiff be removed from Wave 6 because of these communication difficulties. [ECF No. 22]. Ethicon opposes the request for removal from Wave 6. [ECF No. 23]. The court finds, pursuant to Rules 16 and 37 of the Federal Rules of Civil Procedure and after weighing the factors identified in Inc.,

(4th Cir. 1977), that this case should be dismissed without prejudice for plaintiffs failure to comply with discovery deadlines including the filing of a PFS in compliance with the court’s previous pretrial order. Therefore, the court ORDERS that the motion to dismiss [ECF No. 19] is GRANTED in part to the extent Ethicon seeks dismissal and DENIED in part insofar as Ethicon seeks dismissal with prejudice. The court further ORDERS that Plaintiff's Motion to Remove from Wave 6 [ECF No. 22] is DENIED. The court ORDERS that Ethicon, Inc., Ethicon LLC and Johnson & Johnson are dismissed without prejudice. No other defendants remain, and the case is stricken trom the docket and closed. All other pending motions are DENIED as moot. The court DIRECTS the Clerk to send a copy of this order to counsel of record and any unrepresented party. ENTER: October 15, 2019

Ie G ew STATES DISTRICT JUDGE