BARBARA ROTHSTEIN, District Judge
This matter comes before the court on a motion to dismiss by Wyeth, GlaxoSmithKline Consumer Healthcare, L.P. and Block Drug Company, Inc. to dismiss plaintiffs' claims for failure to serve individual complaints. Having considered the briefs in favor of and in opposition to this motion, the court finds and rules as follows:
The cases listed on Exhibit A were originally filed as part of multi-plaintiff complaints. Under Case Management Order ("CMO") 15, plaintiffs who were party to such complaints are required to file severed individual complaints within 30 days of docketing in this multi-district litigation. After plaintiffs in the instant motion failed to do so, defendants filed a motion to dismiss for failure to comply with CMO 15. On November 18, 2004 the court denied that motion, finding that plaintiffs' counsel's neglect was excusable. The court ordered plaintiffs to file the required complaints, giving a deadline of December 3, 2004.
Plaintiffs subsequently filed individual complaints with the court. In their motion defendants now claim, however, that plaintiffs have failed to serve hard copies of those complaints as required by CMO 15 and the January 21, 2004 Supplemental Order, and have not to date done so, except on defendant Bayer. The instant motion seeks dismissal for failure to comply with CMO 15 and the court's November 18, 2004 order.
Plaintiffs do not dispute that they were under an obligation to serve on defendants hard copies of the individual complaints. Instead, they claim that they did, in fact, mail hard copies of the complaints to defendants in a timely fashion. They submit with their response an affidavit of paralegal Samantha Munoz, who testifies that:
On November 22, 2004, I was request by attorney Timothy O'Brien to send individual complaints by email to the clerk of the U.S. District Court Western District of Washington to be e-filed and e-served according to Judge Rothstein's order of November 18, 2004. On November 22, 2004, I prepared a letter to all counsel enclosing copies of the individual complaints. . . . [A]ll were sent by placing these items in an envelope with proper first class postage addressed to: C. Joyce Hall, Watkins Eager, Post Office Box 650, Jackson, MS 39205, cc: Donna Brown Jacobs, Eugene Naylor, Alexander Alston, Richard Burson, Raymond Brown, Drew Malone, Patrick Buchanan and William Dalehite. This was then deposited in the Downtown Pensacola Post Office's blue drop box located at our office building.
Affidavit of Samantha Munoz at 1-2.
The court first finds that plaintiffs did not timely serve defendants with hard copies of the individual complaints. Even taking Munoz's affidavit as true, the testimony does not establish that plaintiffs mailed hard copies of the complaints to all defendants, only that the complaints were sent to Joyce Hall, counsel for Bayer. The court finds no inequity in so ruling, as it is plaintiffs' responsibility to produce a certificate of service in situations exactly like the one before the court. This they have failed to do.
Having found that plaintiffs have failed to comply with CMO 15, the court must now determine whether dismissal is the proper sanction therefor.
The applicable standard for dismissal for failure to comply with a court order requires a court to evaluate five factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987).
In the cases to which this motion pertains, defendants argue that these five factors weigh in favor of dismissal. They assert that plaintiffs' delay impedes the resolution of these disputes and the ability of the court to manage its docket, problems compounded by the complex nature of the multi-district litigation. Defendants also argue that plaintiffs' delay is prejudicial, impairing defendants' ability both to discover evidence before it is lost, and to accurately gauge their potential liability. Plaintiffs claim that defendants were on notice of the nature of plaintiffs' claims, as plaintiffs served plaintiff fact sheets and electronic versions of the individual complaints. Defendants respond that commencing discovery would have the potential of waiving defendants' right to demand proper service. Defendants also emphasize that this is not plaintiffs' first failure to comply with CMO 15, and that defendants have been forced to file motions and to send plaintiffs' counsel reminders in attempts to cure plaintiffs' dilatory behavior in the past.
The court finds that dismissal under these circumstances is proper. Given the complex nature of the MDL, enforcement of court deadlines is of paramount importance. More than nine months have passed since the docketing of the original multi-plaintiff complaints in these cases, and plaintiffs' noncompliance has effectively prevented defendants from going forward with discovery. Finally, while public policy favors resolution of a case on its merits, plaintiffs' failure to allow discovery to proceed does nothing to ensure such resolution; in fact, quite the contrary.
For the foregoing reasons the court hereby GRANTS defendants' motion to dismiss.
Exhibit A: CMO 15 Complaint Filed, But Defendants Not Served
Plaintiff MDL* Original Multi-Plaintiff Case Docketed CMO 15 in MDL complaint filed Buse, Phillip 04-2391 Phillip Buse, et al. v. Bayer Corp., 6/21/2004 11/22/2004 et al. (MDL # 04-1360) Wright, Richard 04-2398 Phillip Buse, et al. v. Bayer Corp., 6/21/2004 11/22/2004 et al. (MDL # 04-1360) Deere, Richard 04-2393 Richard Deere, et al. v. Bayer 6/21/2004 11/22/2004 Corp., et al. (MDL # 04-1363) Jones, Thelma M. on behalf of the 04-2401 Richard Deere, et al. v. Bayer 6/21/2004 11/22/2003 Estate of Mary J. McGee, Corp., et al. (MDL # 04-1363) deceased Kelly, Sigrett 04-2398 Richard Deere, et al. v. Bayer 6/21/2004 11/23/2004 Corp., et al. (MDL # 04-1363) King, Billy and Vickie 04-2397 Richard Deere, et al. v. Bayer 6/21/2004 11/22/2004 Corp., et al. (MDL # 04-1363) Longine, Eula 04-2399 Richard Deere, et al. v. Bayer 6/21/2004 11/23/2004 Corp., et al. (MDL # 04-1363) Mosby-Jones, Theresa, on behalf 04-2400 Richard Deere, et al. v. Bayer 6/21/2004 11/22/2004 of the Estate of Claudia Mac Corp., et al. (MDL # 04-1363) Moshy, deceased Rivers, John H. and Katherine 04-2396 Richard Deere, et al. v. Bayer 6/21/2004 11/22/2004 Corp., et al. (MDL # 04-1363) Robb, Virginia and Matthew J. 04-2395 Richard Deere, et al. v. Bayer 6/21/2004 11/22/2004 Corp., et al. (MDL # 04-1363) Rominger, Barbara and Kenneth 04-2394 Richard Deere, et al. v. Bayer 6/21/2004 11/22/2004 Corp., et al. (MDL # 04-1363)