Starnes v. 3M Company, 0:16-cv-00826

Background

MDL litigation concerning Bair Hugger forced-air warming devices; Defendants 3M and Arizant moved to dismiss multiple plaintiff actions for noncompliance with Pretrial Order No. 14 (PTO 14), which required timely, verified Plaintiff Fact Sheets (PFSs) and a cure process for deficiencies.
Defendants moved to dismiss 22 actions; two plaintiffs stipulated to dismissal, one motion withdrawn, two plaintiffs (Brannon, Pettersen) addressed at hearing, several plaintiffs did not oppose and many failed to provide verified or complete PFSs.
PTO 14 set a multi-step cure procedure (meet-and-confer, two sequential status conferences one month apart) and warned that defendants could move to dismiss for persistent noncompliance.
Court held a hearing, denied dismissal without prejudice as to Brannon and Pettersen (facts: late service by Brannon; hospice care for Pettersen), stayed dismissal for two decedent plaintiffs (Rivers, Upton) for two weeks to allow explanation of successors’ authority.
The Court dismissed with prejudice 17 cases under Fed. R. Civ. P. 41(b) for failure to prosecute and failure to comply with PTO 14, finding prior warnings and cure opportunities had failed and lesser sanctions were unjustified.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal with prejudice is appropriate for failure to comply with PTO 14	Plaintiffs (variously) argued late attempts to cure, personal difficulties, lack of contact, or death justify extension or lesser sanction	Defendants argued plaintiffs failed to serve verified, complete PFSs or failed to cure core deficiencies after notice and the PTO 14 cure process	Court dismissed 17 actions with prejudice under Rule 41(b); denied requests for extensions or lesser sanctions absent justification
Whether late or eleventh‑hour PFS service cures noncompliance	Butkus and others argued late PFS or partial service should avoid dismissal	Defendants argued late or deficient PFSs are insufficient where PTO 14 deadlines and cure procedures were already exhausted	Court rejected late/deficient cures, citing past warnings and refusal to allow "double‑dipping" into PTO 14 cure periods; dismissed with prejudice
How to treat decedent plaintiffs regarding PFS compliance	Counsel sought extension citing plaintiffs’ deaths and need to establish successors’ authority	Defendants relied on PTO 14 and argued long notice of death and inaction	Court stayed dismissal for two weeks for Rivers and Upton to allow explanation and possible compliance by successors
Whether counsel’s lack of client cooperation excuses noncompliance	Some counsel submitted logs of unsuccessful contact and sought dismissal without prejudice or extension	Defendants maintained counsel cannot substitute inability to reach client for compliance	Court found counsel’s logs insufficient to excuse noncompliance and dismissed those cases with prejudice

Key Cases Cited

First Gen. Res. Co. v. Elton Leather Corp., 958 F.2d 204 (8th Cir. 1992) (pattern of intentional delay after cure opportunities justifies dismissal with prejudice under Rule 41(b))
Rodgers v. Curators of Univ. of Missouri, 135 F.3d 1216 (8th Cir. 1998) (late attempts to cure may be insufficient to avoid dismissal when delay is longstanding and cure is untimely)