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Sawyer v. Matthews

United States District Court, E.D. North Carolina, Western Division

February 13, 2017

DONNELL SAWYER, Plaintiff,
v.
DAVID P. MATTHEWS; JULIE RHOADES; MATTHEWS & ASSOCIATES; WILLIAM N. RILEY; JAMIE R. KENDALL; PRICE WAICUKAUSKI & RILEY, LLC an Indiana limited liability company; and LIZZY SANTIAGO, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court upon the memorandum and recommendation (“M&R”) of United States Magistrate Kimberly A. Swank, wherein it is recommended that the court dismiss this action for failure to comply with the court's orders, pursuant to Federal Rule of Civil Procedure 41(b) (DE 30). Plaintiff has filed a notice and response to the M&R, including a proposed amended complaint, which the court construes as including a motion to amend complaint (DE 32). In this posture, the issues raised are ripe for ruling. For the reasons stated herein, the court adopts the M&R in part, denies the motion to amend, and allows plaintiff opportunity to file complaint as set forth herein.

         BACKGROUND

         Plaintiff, initially represented by counsel, filed complaint in forma pauperis on October 5, 2015, asserting claims of negligence, breach of contract, and fraud, arising out of defendants' legal representation of plaintiff in a prior products liability lawsuit filed in 2006 in Marion County Circuit Court of Indiana (the “Indiana lawsuit”). According to plaintiff, in the prior Indiana lawsuit, plaintiff and other similarly situated individuals asserted that they suffered personal injuries as a result of taking the drug Zyprexa, marketed by Eli Lilly and Company, the defendant in the Indiana lawsuit. In the instant case, plaintiff asserts that defendants, his counsel in the Indiana lawsuit, wrongfully dismissed the lawsuit without his permission, offered him the possibility of a settlement valued at approximately $50, 000.00, and refused to communicate with plaintiff further about continuing the case to trial. In the instant case, plaintiff seeks compensatory damages in excess of $75, 000.00, punitive damages, and trial by jury.

         Upon frivolity review, on October 5, 2015, the magistrate judge directed plaintiff to particularize his complaint as to the citizenship of the members of defendant Waicukouski & Riley, LLC, to enable the court to determine the existence of diversity jurisdiction. Plaintiff moved to amend his complaint to so specify on November 16, 2015, and also requested striking defendant Matthews & Associates as surplusage because it is a sole proprietorship owned by defendant David P. Matthews. On December 29, 2015, the magistrate judge determined that plaintiff's complaint, as so specified, passed frivolity review. The magistrate judge accordingly directed plaintiff on December 29, 2015, to file a revised complaint with the amendments, within 14 days of the order.

         In the meantime, however, on December 22, 2015, plaintiff's counsel moved to withdraw, which motion the court granted the next day, leaving plaintiff as a pro se in forma pauperis plaintiff. After the court's December 29, 2015, order, plaintiff proceeding pro se has never filed the revised complaint as allowed in said order. Instead, plaintiff has attempted on several occasions to file an amended motion asserting additional facts and allegations as to new proposed defendants Eli Lilly Company and Duke University Medical Center. The court denied those further attempts at amendment upon frivolity review, and, on May 19, 2016, the court again directed plaintiff within 14 days to file his revised complaint, with amendments allowed previously in the court's December 29, 2015, order. The court warned plaintiff that failure to file the revised complaint as ordered may result in dismissal of the complaint in its entirety. In the M&R, the magistrate judge recommends finding that plaintiff has failed to file the revised complaint as ordered, and the magistrate judge recommends dismissal for failure to comply with the court's orders. Plaintiff's notice and response, discussed further herein, followed.

         DISCUSSION

         A. Standard of Review

         The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         B. Analysis

         In plaintiff's notice and response to the M&R, plaintiff does not raise specific objection to the magistrate judge's determination that plaintiff failed to comply with the court's prior orders. Finding no clear error, the court ADOPTS this part of the M&R as its own. Plaintiff seeks generally to be excused from his failure to comply with the prior orders due to medical reasons and disability. As noted, plaintiff also seeks to advance a proposed amended complaint, construed now as a motion to amend. The court addresses first plaintiff's motion to amend, followed by a determination of the consequence of plaintiff's failure to follow directives set forth in prior orders.

         Plaintiff's motion to amend must be denied on the basis of futility. The proposed amended complaint suffers from the same flaws as plaintiff's previously proposed amended complaints, including that it seeks to assert new claims against new parties, Eli Lilly & Company and Duke University Medical Center, which claims do not arise out of the same transaction, occurrence, or series of transactions as his claims against the defendants named in this action. In addition, plaintiff's conclusory assertion of “collusion” amongst all defendants (DE 32 at 2), is not supported by facts giving rise to a plausible claim. Accordingly, plaintiff's motion to amend is DENIED.

         With respect to compliance with the court's orders, Plaintiff has been directed twice to file his revised complaint, with revisions allowed on frivolity review on December 29, 2015. At the second opportunity, set forth in order entered May 19, 2016, the court expressly warned plaintiff that failure to file the revised complaint as ordered may result in dismissal of plaintiff's complaint in its entirety. Based upon plaintiff's most recent filing, it appears that plaintiff no longer wishes to proceed on the basis of claims asserted in his original complaint, but wishes to proceed on a new theory against additional defendants. As set forth above, however, the court cannot allow upon frivolity review plaintiff to proceed on the new theory against new defendants. Plaintiff must affirmatively proceed on the basis of his original complaint, or be subject to dismissal of this action for failure to prosecute.

         Accordingly, the court provides plaintiff one more opportunity to affirmatively proceed on the basis of his original action with revisions allowed by the court on December 29, 2015. Such complaint and appended revisions are attached hereto as Exhibit A, for the sake of clarity. If plaintiff wishes to proceed on the basis of such complaint and appended revisions attached hereto as Exhibit A, plaintiff is DIRECTED to return the complaint and appended revisions attached hereto as Exhibit A, by February 24, 2017, to the court for filing and for service by the U.S. Marshal of summons previously prepared. If plaintiff fails to so return the complaint attached hereto as Exhibit A, by February 24, 2017, the clerk is DIRECTED to dismiss this action with prejudice without further order of the court, pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute and failure to comply with the court's orders.

         CONCLUSION

         Based on the foregoing, the court adopts the M&R in part as set forth herein. Plaintiff's proposed amended complaint, construed as a motion to amend (DE 32), is DENIED. If plaintiff seeks to proceed on the basis of his complaint and appended revisions attached hereto as Exhibit A, plaintiff is DIRECTED to return the complaint and appended revisions attached hereto as Exhibit A, by February 24, 2017, to the court for filing and for service by the U.S. Marshal of summons previously prepared. If plaintiff fails to so return the complaint attached hereto as Exhibit A, by February 24, 2017, the clerk is DIRECTED to dismiss this action with prejudice without further order of the court, pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute and failure to comply with the court's orders.

         SO ORDERED.

         Exhibit A

         COMPLAINT

         COMES NOW Plaintiff Donnell Sawyer, by and through his undersigned counsel, and complaining of Defendants David P. Matthews, Lizzy Santiago, Julie Rhoades, Matthews & Associates, William N. Riley, Jamie R. Kendall, and Price Waicukouski & Riley, LLC, an Indiana limited liability company, alleges and says as follows:

         PARTIES AND JURISDICTION

         1. Plaintiff Donnell Sawyer ("Sawyer") is a citizen and resident of the State of Wake County, North Carolina.

         2. Defendant David P. Matthews ("Matthews") is a citizen and resident of Harris County, Texas and, at all times relevant herein, was and remains duly licensed to practice law in the State of Texas. Unless indicated otherwise, at all times relevant herein, Defendant Matthews was acting in the course and scope of her employment and agency with Defendant David P. Matthews P.C. and as the attorney and counsel for Plaintiff.

         3. Defendant Lizzy Santiago ("Santiago") is a citizen and resident of Harris County, Texas and, upon information and belief, at all times relevant herein, was and remains duly licensed to practice law in the State of Texas. Unless indicated otherwise, at all times relevant herein, Defendant Santiago was acting in the course and scope of her employment and agency with Defendant David P. Matthews P.C. and as the attorney and counsel for Plaintiff.

         4. Defendant Julie Rhoades ("Rhoades") is a citizen and resident of Harris County, Texas and upon information and belief, at all times relevant herein, was and remains duly licensed to practice law in the State of Texas. Unless indicated otherwise, at all times relevant herein, Defendant Rhoades was acting in the course and scope of her employment and agency with Defendant David P. Matthews P.C. and as the attorney and counsel for Plaintiff.

         5. Defendant Matthews & Associates, upon information and belief is a sole proprietorship owned by Defendant David P. Matthews and is engaged in the business of providing legal services with its principal place of business in Harris County, Texas.

         6. Defendant William N. Riley ("Riley") is a citizen and resident of Marion County, Indiana and upon information and belief, at all times relevant herein, was and remains duly license to practice law in the State of Indiana. Unless indicated otherwise, at all times relevant herein, Defendant Riley was acting in the course and scope of his representation of and employment and agency with Defendant Price Waicukouski and as the attorney and counsel for Plaintiff.

         7. Defendant Jamie R. Kendall ("Kendall") is a citizen and resident of Marion County, Indiana and upon information and belief, at all times relevant herein, was and remains duly licensed to practice law in the State of Indiana. Unless indicated otherwise, at all times relevant herein, Defendant Riley was acting in the course and scope of his representation of and employment and agency with Defendant Price Waicukouski and as the attorney and counsel for Plaintiff.

         8. Defendant Price Waicukouski & Riley, LLC ("Price Waicukouski") is an Indiana limited liability company which is engaged in the business of providing legal services with its principal place of business in Marion County, Indiana.

         9. Jurisdiction is appropriate in this Court due to complete diversity between the parties and the amount in controversy exceeding the sum of $75, 000.00.

         FACTS

         10. Plaintiff viewed an advertisement in which Defendants, or agents on behalf of the Defendants, advertised and solicited individuals such as Plaintiff, who had taken the drug Zyprexia and had subsequently suffered from diabetes.

         11. As a result of having seen the advertisement, Plaintiff contacted and discussed and consulted with Defendants Matthews, Rhoades, and/or Santiago, as agents, employees, and representatives of the law firm of Abraham Watkins, Nichols, Sorrels, Matthews & Friend ("Abraham Watkins"), a Houston, Texas law firm, about the facts, allegations, circumstances, legal strategies, and damages relating to his potential claim against Eli Lilly and Company and/or other responsible entities and persons in connection with his development of diabetes while taking the drug Zyprexia from on or about January 1, 1996 to on or about August 1, 2003.

         12. Defendants Matthews, Rhoades, and/or Santiago, as agents, employees, and representatives of Abraham Watkins, as well as, upon information and belief, other agents, employees, and representatives of Defendant Abraham Watkins, represented to Plaintiff that they would be willing to represent Plaintiff, as his legal counsel of record in litigation against Eli Lilly and Coitnpany and seek and secure recovery against Eli Lilly and Company.

         13. In reliance upon his previous discussions with the Defendants, as set forth and described herein, Plaintiff agreed to an employment/fee agreement with Abraham Watkins pursuant to which Abraham Watkins agreed to represent Plaintiff in an action against Eli Lilly and Company and/or other responsible entities and persons in connection with Plaintiffs development of diabetes while taking the drug Zyprexa from on or about January 1, 1996 to on or about August 1, 2003.

         14. Pursuant to this agreement, an attorney-client relationship formed between Abraham Watkins, by and thorough its employees, agents, and representatives, including Defendants Matthews, Rhoades, Santiago, as Plaintiffs counsel, and Plaintiff.

         15. On June 30, 2006, pursuant to Plaintiffs agreement with Abraham Watkins, Defendants Riley and Kendall, as attorneys of the law firm of Defendant Price Waicukauski, local counsel retained for Plaintiff and, upon information and belief, and acting at the behest of and in conjunction with Abraham Watkins, filed a multi-count Complaint in the Marion County Circuit Court of Indiana, as Case Number 490070606CT027211, on behalf of Plaintiff and various other similarly situated plaintiffs ("the Indiana Case").

         16. At all times relevant herein, Defendant Price Waicukauski, by and through Defendants Riley and Kendall, acted in conjunction with the other Defendants in this action as local counsel in the Indiana Case, as defined and described herein, and as counsel for the Plaintiff.

         17. In the Complaint underlying the Indiana Case, the Defendants alleged facts and allegations on behalf of Plaintiff and the other named and similarly situated plaintiffs including the following:

         FACTUAL ALLEGATIONS

35. At all relevant times, Defendant [Eli Lilly and Company], through its agents, servants, and employees, was the designer, manufacturer, marketer, advertiser, distributor, and seller of Zyprexa and Zyprexa Zydia, also known as olanzapine (hereinafter individually and collectively referred to as "Zyprexa").
36. Defendant, directly or through its agents, servants, and employees, designed, manufactured, marketed, advertised, distributed, and sold Zyprexa for the treatment of schizophrenia, bipolar disorder, and other "off-label" uses.
37. As a result of the defective nature of Zyprexa, those persons who were prescribed and ingested or injected Zyprexa, including Plaintiffs, have developed diabetes and have suffered and may continue to suffer severe and permanent personal injuries.
38. Defendant concealed its knowledge of Zyprexa's unreasonably dangerous risks from Plaintiffs, other consumers, and the medical and psychiatric communities.
39. In 1996, the United States Food & Drug Administration ("FDA") approved Zyprexa for use for the treatment of Zyprexa.
40. In 2000, the FDA approved Zyprexa for use for the short-term treatment of acute mixed or manic episodes associated with bipolar disorder.
41. In 2004, the FDA approved Zyprexa for maintenance in the treatment of bipolar disorder, also known as manic-depressive illness.
42. Zyprexa is one of Defendant's top-selling drugs.
43. Since Defendant introduced Zyprexa in 1996, it has been prescribed to more than 12 million people worldwide.
44. In 2003, approximately seven million prescriptions for Zyprexa were dispensed resulting in more than $2 billion in sales. In 2003, Zyprexa was the seventh largest selling drug in the country by retail sales.
45. Zyprexa is an atypical antipsychotic medication. Zyprexa, like other antipsychotic medications, may improve symptoms associated with schizophrenia and bipolar disorder such as agitation, delusions, hallucinations, and suspiciousness.
46. Shortly after Defendant began selling Zyprexa, reports of consumers who were using Zyprexa suffering from hyperglycemia, acute weight gain, exacerbation of diabetes, pancreatitis, and other severe diseases and conditions associated began to surface. Defendant knew, or was reckless in not knowing, of these reports. Furthermore, Defendant has been aware of studies and journal articles linking use of Zyprexa with these and other severe and permanent diseases since 1998.
47. Beginning in 1998, scientific journals began to publish studies that established a causal association between using Zyprexa and developing or exacerbating diabetes and development of dangerously high blood sugar levels, i.e., hyperglycemia.
48. Diabetes is associated with long-term complications that affect nearly every part of the body. Diabetes often leads to blindness, heart and blood vessel disease, strokes, kidney failure, amputations, and nerve damage.
49. In July 2002, a study conducted at Duke University further established a relationship between Zyprexa and diabetes. This study documented nearly 300 cases of ...

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