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Edwards v. Cardinal Health

June 29, 2007

REBECCA EDWARDS, AND ERIC EDWARDS, HUSBAND AND WIFE, PLAINTIFFS
v.
CARDINAL HEALTH, INC., ET AL., DEFENDANTS



The opinion of the court was delivered by: Magistrate Judge Blewitt

MEMORANDUM AND ORDER

I. Background

On August 17, 2006, this product liability action was filed by Plaintiffs Rebecca and Eric Edwards, in the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1332. At the time of filing, Plaintiffs were represented by counsel. (Doc. 1). On September 22, 2006, Plaintiffs filed, through counsel, an Amended Complaint. (Doc. 3). Basically, Plaintiffs allege that Defendants manufactured a defective insulated cold pack which Plaintiff Rebecca Edwards claims caused her chemical burns to her chest when she used it as directed by Defendants.

On October 18, 2006, Defendant Cardinal Health 200, Inc. "(CH200"), filed its Answer to the Amended Complaint with Affirmative Defenses. (Doc. 6).*fn1

After the filing of Defendant's Answer to the Amended Complaint, a joint case management conference was scheduled by the District Court. (Doc. 8). However, the parties then consented to proceed before the undersigned pursuant to 28 U.S.C. § 636(c), and on December 7, 2006, this case was re-assigned to the undersigned. (Doc. 10). An Order was issued on December 13, 2006, setting up a telephonic scheduling conference for January 3, 2007. (Doc. 11). On December 22, 2006, counsel for Plaintiffs filed a Motion to Withdraw as Counsel for Plaintiffs. (Doc. 12). Consequently, on December 29, 2006, the Court issued an Order granting the Motion of Plaintiffs' counsel to withdraw, and gave Plaintiffs sixty (60) days to secure new counsel and have their new counsel enter an appearance. (Doc. 14). The case management conference that was set for January 3, 2007 was cancelled and was to be rescheduled when Plaintiffs' new counsel entered an appearance. (Id.).*fn2

Plaintiffs did not secure new counsel within the 60-day period allowed by the December 29, 2006 Order, and no new counsel entered an appearance for Plaintiffs. Thus, on March 8, 2007, the Court issued an Order scheduling a telephonic scheduling/status conference for March 19, 2007 to determine how Plaintiffs wished to proceed with their case, i.e. by trying to obtain new counsel or by proceeding pro se. (Doc. 15). The March 8, 2007 Order also directed Plaintiffs to contact the Court to advise it of their telephone number for purposes of the conference. Plaintiffs did not contact the Court with their telephone number as directed by the March 8, 2007 Order.

Plaintiffs did not request a continuance of the March 19, 2007 conference. Plaintiffs made no contact with this Court whatsoever and violated the March 8, 2007 Order. The March 19, 2007 conference had to be canceled since the Plaintiffs failed to abide by this Court's Order. Subsequently, in light of the continued inactivity in this case, and in an effort to move this case forward, the Court issued another Order on March 20, 2007, which directed as follows:

1. The telephonic scheduling/status conference originally scheduled for March 19, 2007 is RESCHEDULED.

2. The conference shall be conducted on April 9, 2007 at 10:00 a.m.

3. The conference shall be initiated by the Court.

4. On or by April 2, 2007, pro se Plaintiffs Rebecca Edwards and Eric Edwards shall contact the Court at 570-207-5740 to advise of the telephone number at which they may be reached for the conference.

5. The purpose of the conference is to discuss the status of Plaintiffs' retention of counsel to represent them in this matter, pursuant to the Court's Order of December 29, 2006. (Doc. 14).

6. Failure of Plaintiffs to comply with this Order by supplying a telephone number at which they may be reached for this conference, and by making themselves available to participate in the conference, may result in t he dismissal of this matter for failure to prosecute the action and to comply with the Orders of the Court, pursuant to Fed.R.Civ.P. 41(b). (Doc. 16, p. 2).

Once again, Plaintiffs failed to comply with this Court's Order since they did not contact the Court with their telephone number. The re-scheduled conference of April 9, 2007 had to be canceled in light of Plaintiffs' non-compliance with this Court's Order.

As stated, on December 22, 2006, counsel for Plaintiffs filed a Motion for Leave to Withdraw as Counsel, citing his failure to secure an expert witness report opining that the cold pack at issue was defective. Counsel also stated that Plaintiffs did not oppose his request to withdraw as their counsel. (Doc. 12). On December 29, 2006, Plaintiffs' counsel's Motion was granted. The previously set case management scheduling conference of January 3, 2007 was canceled, and Plaintiffs were afforded sixty (60) days from the date of the December 29, 2006 Order to retain new counsel to represent them in this matter. (Doc. 14). Said Order further stated that, upon the entry of appearance of Plaintiffs' new counsel, the Court would schedule a case management conference at which the case management deadlines would be ...


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