United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant W. L. Gore &
Associates, Inc.'s Motion to Dismiss Plaintiff's
Complaint, filed September 13, 2019. (ECF No. 7).
The motion is fully briefed and ready for disposition.
Roosevelt Johnson alleges that on or about August 5, 2008,
while in federal custody, he suffered substantial and
permanent injuries as a result of a design defect in the
Gore-tex mesh manufactured by Defendant and implanted in
Plaintiff's pelvic region. On August 5, 2013, Plaintiff,
through his attorney, Mr. Daniel R. Brown, filed a products
liability suit against Defendant W. L. Gore & Associates,
Inc. in the Circuit Court for the City of St. Louis,
Missouri. (See Missouri Courts docket sheet,
attached to Defendant's motion as Exh. 1). A summons was
issued the next day, August 6, 2013. (Id.).
Plaintiff voluntarily dismissed the suit on September 21,
2015, without ever having served Defendant. (Id.).
his attorney Plaintiff refiled his suit on September 20,
2016, and a summons was issued on September 21,
2016. (See Missouri Courts docket
sheet, attached to Defendant's motion as Exh. 2).
Plaintiff then waited almost three additional years, until
July 8, 2019, to serve Defendant with a copy of the Summons
and Complaint. (Id.; see also
Defendant's Notice of Removal, ¶ 2). Thus, nearly
six years elapsed from the time Plaintiff first filed suit to
the time he served Defendant.
August 7, 2019, Defendant timely removed Plaintiff's suit
to this Court on the basis of diversity jurisdiction. (ECF
No. 1). As noted above, Defendant filed the instant Motion to
Dismiss on September 13, 2019, claiming Plaintiff's suit
must be dismiss for failure to prosecute and failure to state
a claim. (ECF No. 7). Because it is dispositive, the Court
addresses only the first contention.
41(b) of the Federal Rules of Civil Procedures provides in
relevant part as follows:
If the plaintiff fails to prosecute….a defendant may
move to dismiss the action or any claim against it. Unless
the dismissal order states otherwise, a dismissal under this
subdivision (b)….operates as an adjudication on the
deciding whether to dismiss under Rule 41(b), the Court must
weigh “‘the court's need to manage its
docket, the public interest in expeditious resolution of
litigation, and the risk of prejudice to defendants from
delay' against ‘the policy favoring disposition of
cases on their merits.'” Boyle, 571 F.3d
at 741 (quoting Nealey v. Transportacion Maritima
Mexicana, S.A., 662 F.2d 1275, 1279 (9th Cir.
1980) (internal quotations and citation omitted)).
respect to the Court's need to manage its docket and the
public interest in the expeditious resolution of litigation,
the Court notes that after waiting the full five years
allowable under the statute of limitations to file his
initial lawsuit in August of 2013, Plaintiff failed to pursue
his action in any way prior to dismissing the case
voluntarily over two years later. Furthermore, no activity
occurred in the present case during the nearly three years
that elapsed prior to service and removal.
to the “‘conflicting policies' of the risk of
prejudice to the defendant caused by the delay versus the
policy favoring disposition of cases on their merits”,
see Boyle, 571 F.3d at 742 (citation omitted), the
Court notes Plaintiff waited nearly eleven years from the
time of his alleged injury even to serve Defendant with
notice of his claim against it. Plaintiff attempts to justify
his delay as follows: “Due to his incarceration, and
substantial distance from the Eastern District of Missouri,
[Plaintiff] was unable to meaningful (sic) participate in the
prosecution of his claim.” (Plaintiff's Opp., P.
1). As noted above, however, Plaintiff has been represented
by the same counsel throughout these proceedings, and said
counsel had every opportunity to effect service on Defendant
regardless of Plaintiff's incarceration, but failed to do
consideration, the Court finds Plaintiff's implausible
justification for his delay to be equivalent to offering no
reason at all. Therefore, because Plaintiff has failed to
come forth with an excuse for his delay, the Court need not
address whether Defendant suffered actual prejudice as a
result. See Boyle, 571 F.3d at 743 (citing
Nealey, 662 F.2d at 1281 (“[W]here a plaintiff
has come forth with an excuse for his delay that is anything
but frivolous, the burden of production shifts to the
defendant to show at least some actual prejudice.”)).
See also Frihat v. CitiMortgage, Inc., 2009 WL
10705297, at *3 (W.D. Mo. Dec. 1, 2009) (internal quotations
and citations omitted) (“Thus, a failure to diligently