In re: Taxotere Prod Liability ( 2020 )

Case: 19-30640 Document: 00515492836 Page: 1 Date Filed: 07/16/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-30640
IN RE: TAXOTERE (DOCETAXEL) PRODUCTS LIABILITY LITIGATION
-------------------------------------------------------- United States Court of Appeals
Fifth Circuit
FILED
DOROTHY KUYKENDALL, July 16, 2020
Plaintiff - Appellant Lyle W. Cayce
Clerk
v.
ACCORD HEALTHCARE, INCORPORATED; HOSPIRA, INCORPORATED;
SANDOZ, INCORPORATED; SANOFI-AVENTIS, U.S., L.L.C.; SUN
PHARMA GLOBAL FZE; SUN PHARMACEUTICAL INDUSTRIES,
INCORPORATED, agent of Caraco Pharmaceutical Laboratories, Limited;
MCKESSON CORPORATION, doing business as McKesson Packaging;
HOSPIRA WORLDWIDE, L.L.C., formerly known as Hospira Worldwide,
Incorporated; SANOFI U.S. SERVICES, INCORPORATED, formerly known
as Sanofi-Aventis U.S., Incorporated,
Defendants - Appellees
Appeal from the United States District Court for the
Eastern District of Louisiana
Before CLEMENT, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Dorothy Kuykendall alleges that she used defendants’ prescription
chemotherapy drug from 2011 to 2012 and now suffers from permanent hair
loss. As a plaintiff in this multidistrict litigation (“MDL”), she was required to
Case: 19-30640 Document: 00515492836 Page: 2 Date Filed: 07/16/2020
No. 19-30640
serve defendants with a completed fact sheet disclosing details of her personal
and medical history soon after filing her short form complaint. When she failed
to do so, the district court dismissed her case with prejudice. For the following
reasons, we AFFIRM.
I.
Defendants are manufacturers of Taxotere, a prescription chemotherapy
drug commonly prescribed to patients diagnosed with breast cancer, and
Docetaxel, the generic version of Taxotere. According to plaintiffs, defendants
were aware that their drugs caused hair loss yet failed to warn potential users
of this negative side effect. See In re Taxotere (Docetaxel) Prods. Liab. Litig.,
220 F. Supp. 3d 1360, 1361 (J.P.M.L. 2016). In 2016, the Judicial Panel on
Multidistrict Litigation consolidated all cases with similar claims and
transferred them to the Eastern District of Louisiana. Id. As of December 2019,
there were 11,971 individual actions pending in this MDL. 1
Soon after the cases were consolidated, the district court issued several
pretrial orders intended to streamline the discovery process and ensure the
efficient management of plaintiffs’ claims. In Amended Pretrial Order No. 22,
the court ordered each plaintiff to complete a Plaintiff Fact Sheet (“PFS”)
within seventy-five days of the date that her case was docketed in the MDL.
The PFS required each plaintiff to answer detailed questions about her race,
family, medical history, cancer diagnosis, and treatment regimen. In addition
to the PFS, plaintiffs were required to provide defendants with authorizations
for the release of medical records.
1 U.S. Judicial Panel on Multidistrict Litigation, MDL Statistics and Report:
Distribution of Pending MDL Dockets by District (Dec. 16, 2019), available at
https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDLs_by_District-December-16-
2019.pdf.
2
Case: 19-30640 Document: 00515492836 Page: 3 Date Filed: 07/16/2020
No. 19-30640
If a plaintiff failed to complete and serve the necessary disclosures by the
deadline, defendants were directed to file a notice of deficiency on MDL
Centrality, an electronic database. After receiving a notice of deficiency,
plaintiffs had thirty days to submit a compliant PFS. If they failed to do so,
defendants were permitted to serve a notice of non-compliance upon Plaintiffs’
Liaison Counsel. 2 Plaintiffs were then given an additional thirty days to cure
the deficiencies. If a plaintiff still failed to provide the “complete and verified
disclosures” by that deadline, defendants could add the plaintiff to the court’s
“call docket” for the next scheduled hearing. The district court’s pretrial order
explicitly warned plaintiffs that their cases could be dismissed if they failed to
establish good cause during the hearing for their continued discovery
deficiencies.
Dorothy Kuykendall filed a short form complaint on November 29, 2018.
Accordingly, her PFS was due seventy-five days later, on February 12, 2019.
After she failed to file the required form by the deadline, defendants served her
with a notice of non-compliance on March 26, 2019. 3 Under Pretrial Order No.
22A, the notice of non-compliance gave Kuykendall an additional thirty days,
or until April 25, 2019, to serve defendants with the necessary information.
When Kuykendall again failed to cure the deficiencies, the defendants
placed her name on the call docket for the next court hearing, scheduled for
2 The court appointed liaison counsel for plaintiffs and defendants.
3 There is no record that defendants served Kuykendall with a notice of deficiency
before they served her with the notice of non-compliance. However, at the May 29, 2019
hearing, Kuykendall did not object to the fact that she did not receive a notice of deficiency
before the notice of non-compliance, and instead admitted that she had failed to provide any
PFS prior to a few days before the hearing. On appeal, she likewise does not object to the fact
that she was not provided with an initial notice of deficiency before the hearing.
3
Case: 19-30640 Document: 00515492836 Page: 4 Date Filed: 07/16/2020
No. 19-30640
May 21, 2019. Next to Kuykendall’s name, the defendants included a notation
stating “No PFS submitted.”
The court was unable to address Kuykendall’s case during the May 21
conference, so it scheduled a follow-up conference for May 29, 2019. On May
21, Kuykendall uploaded a few documents to MDL Centrality, including a
signed declaration and two photographs, but she did not file a PFS. Five days
later, Kuykendall finally submitted a PFS, though the document was missing
responses to several important questions, including spousal information,
weight and height information, and information regarding her prescribing
doctor.
At the May 29 hearing, the defendants acknowledged that Kuykendall
had submitted a PFS after the original hearing date but before the rescheduled
hearing. However, defense counsel informed the court that Kuykendall’s PFS
contained “a significant number of blanks,” including “the date of cancer
diagnosis, the cancer markers that go to staging, the dates of chemotherapy
treatment, the name of the prescribing oncologist, prior medication history,
and a list of other medical providers.” Kuykendall’s counsel acknowledged that
her PFS was incomplete, but reported that it was his belief that “[a]ll of the
appropriate boxes have been checked.” He further explained that any
remaining blanks were caused by the “difficulty” of obtaining information from
clients, including “health insurance information [and] identifying each
pharmacy drugstore.”
The court gave Kuykendall an additional thirty days to cure the
deficiencies identified by defendants during the hearing. On July 1, 2019, after
the court’s extension had expired and Kuykendall had not provided an updated
PFS, the defendants sent Kuykendall a notice of deficiency that identified the
continued omissions and deficiencies in her PFS. Two days later, on July 3,
defendants included Kuykendall on a list of plaintiffs whose cases were subject
4
Case: 19-30640 Document: 00515492836 Page: 5 Date Filed: 07/16/2020
No. 19-30640
to immediate dismissal. In a short order without analysis, the district court
dismissed Kuykendall’s case with prejudice on July 11, 2019.
That same day, Kuykendall filed a letter in which she claimed to be
“blindsided” by the list of deficiencies alleged by the defendants during the May
29 hearing. The letter faulted the defendants for seeking immediate dismissal,
rather than giving Kuykendall an additional thirty days to respond to the most
recent notice of deficiency. Though the letter was dated July 9, it was not filed
on the docket until July 11. Just a few days before filing the letter, but several
days after the court’s thirty-day extension had expired, Kuykendall submitted
a first and second amended PFS on MDL Centrality. Those forms included
some previously missing information, but they continued to omit certain
information, including her children’s addresses and her height.
Construing Kuykendall’s letter as a motion for reconsideration, the court
issued a decision supplementing its dismissal order. The court explained that
Kuykendall’s counsel was provided with ample notice of the deficiencies in her
PFS, and concluded that Kuykendall’s failure to upload new documents to
MDL Centrality during the thirty-day extension period demonstrated that she
“made no effort to comply with the Court’s order.” Kuykendall filed a timely
notice of appeal on August 8, 2019.
II.
We review a district court’s imposition of sanctions, including the
dismissal of a case with prejudice, for an abuse of discretion. See, e.g., Law
Funder, L.L.C. v. Munoz, 924 F.3d 753, 758 (5th Cir. 2019) (per curiam);
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam). “A
trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” In re Deepwater
Horizon (Barrera), 907 F.3d 232, 234 (5th Cir. 2018) (per curiam) (quoting
5
Case: 19-30640 Document: 00515492836 Page: 6 Date Filed: 07/16/2020
No. 19-30640
Elementis Chromium L.P. v. Coastal States Petroleum Co., 450 F.3d 607, 610
(5th Cir. 2006)). 4
III.
District courts are vested with the power to “manage their own affairs so
as to achieve the orderly and expeditious disposition of cases.” Woodson v.
Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995) (quoting Link v. Wabash R.R.
Co., 370 U.S. 626, 630–31 (1962)). This power necessarily includes the “power
. . . to control [the court’s] docket by dismissing a case as a sanction for a party’s
failure to obey court orders.” Id. Because of the severity of such a sanction,
however, we have “limited the district court’s discretion in dismissing cases
with prejudice.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992). “[W]e have previously deemed dismissal with prejudice to be a
‘draconian remedy’ and a ‘remedy of last resort.’” F.D.I.C. v. Conner, 20 F.3d
1376, 1380 (5th Cir. 1994) (quoting Batson v. Neal Spelce Assocs., 765 F.2d 511,
515 (5th Cir. 1985)).
4 Defendants argue that we should review Kuykendall’s arguments on appeal for plain
error because she failed to raise them in the district court. We reject this argument.
Kuykendall preserved her objection to the dismissal of her case when she appeared at the
district court’s show-cause hearing and filed a letter challenging the defendants’ request for
a dismissal. These actions distinguish Kuykendall’s case from Law Funder, 924 F.3d at 759,
where we reviewed a dismissal for plain error because the dismissed party “fail[ed] to oppose
[plaintiff’s] motion to sanction.” We also review Kuykendall’s argument about the appropriate
legal test governing a dismissal with prejudice for an abuse of discretion. Although
Kuykendall did not make this argument to the district court, it is unclear when she could
have done so. See Topalian v. Ehrman, 3 F.3d 931, 936 (5th Cir. 1993) (explaining that a
district court need not make specific factual findings or articulate a specific legal test before
issuing sanctions); Oprex Surgery (Baytown), L.P. v. Sonic Auto. Emp. Welfare Benefit Plan,
704 F. App’x 376, 378 (5th Cir. 2017) (per curiam); see also In re Phenylpropanolamine (PPA)
Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (“Although it is preferred, it is not
required that the district court make explicit findings in order to show that it has considered
[the applicable] factors.” (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992))).
In similar cases, we have reviewed the entirety of a plaintiff’s challenge to a dismissal for an
abuse of discretion, including the determination of the appropriate legal standard. See, e.g.,
Barrera, 907 F.3d at 234–35; In re Deepwater Horizon (Cepeda), 765 F. App’x 980, 981–82
(5th Cir. 2019) (per curiam). In any case, as we explain, Kuykendall’s challenge to her
dismissal fails under any standard of review.
6
Case: 19-30640 Document: 00515492836 Page: 7 Date Filed: 07/16/2020
No. 19-30640
Here, the parties have two primary disagreements: (1) which of two legal
standards governs a district court’s involuntary dismissal in the context of an
MDL, and (2) whether the district court erred in applying the applicable legal
standard to Kuykendall’s case.
A.
Kuykendall argues that the district court’s dismissal order can be
affirmed only if it satisfies the fact-intensive six-factor test articulated in Law
Funder. Under Law Funder, a dismissal with prejudice will be affirmed if (1)
it is “just”; (2) it is “related to the particular ‘claim’ which was at issue in the
order”; (3) the violation was willful or in bad faith; (4) “the client, rather than
counsel, is responsible for the violation”; (5) the violation caused substantial
prejudice to the opposing party; and (6) “a lesser sanction would not
‘substantially achieve the desired deterrent effect.’” 924 F.3d at 758–59 (first
quoting Compaq Comput. Corp. v. Ergonome Inc., 387 F.3d 403, 413 (5th Cir.
2004); then quoting Conner, 20 F.3d at 1380–81). In contrast, defendants argue
that the district court’s dismissal order need only meet the two-factor test
articulated by this court in the context of the Deepwater Horizon MDL. See,
e.g., Barrera, 907 F.3d at 235.
Our cases have used variable language to describe the appropriate test
for evaluating a district court’s order dismissing a case with prejudice. In one
line of cases involving dismissals for discovery order violations, we have
suggested that litigation-ending sanctions must meet a multi-factor, fact-
intensive test. See, e.g., Conner, 20 F.3d at 1380–81; see also Oprex Surgery,
704 F. App’x at 377; Law Funder, 924 F.3d at 758. In another group of cases
involving dismissals for “docket management” purposes, we have articulated a
two-factor test, affirming dismissals with prejudice as long as (1) there is a
“clear record of delay or contumacious conduct by the plaintiff,” and (2) “lesser
sanctions would not serve the best interests of justice.” See Price v. McGlathery,
7
Case: 19-30640 Document: 00515492836 Page: 8 Date Filed: 07/16/2020
No. 19-30640
792 F.2d 472, 474 (5th Cir. 1986) (per curiam) (quoting Rogers v. Kroger Co.,
669 F.2d 317, 320 (5th Cir. 1982)); see also Sealed Appellant v. Sealed Appellee,
452 F.3d 415, 417 (5th Cir. 2006). Even when evaluating these two factors,
however, we have explained that other “aggravating” factors—such as “the
extent to which the plaintiff, as distinguished from his counsel, was personally
responsible for the delay, the degree of actual prejudice to the defendant, and
whether the delay was the result of intentional conduct”—may also be relevant
to the analysis. Rogers, 669 F.2d at 320 (collecting cases). In Sealed Appellant,
we clarified the distinction between “requisite” factors and additional, or
aggravating, factors. 452 F.3d at 418 & n.4. While “aggravating factors must
‘usually’ be found” to support a dismissal with prejudice, “we have not said that
they must ‘always’ be found.” Id.
We need not completely reconcile these competing standards here. See
Barrera, 907 F.3d at 235 n.1 (observing that there have been “variations in the
standard’s precise language” but that “[w]e need not decide the exact
parameters”). Several of our recent decisions stemming from the Deepwater
Horizon MDL have clarified that the two-factor test articulated in Rogers
applies to a district court’s dismissal with prejudice in the unique context of an
MDL. In Barrera, we affirmed the district court’s dismissal of several plaintiffs
in the Deepwater Horizon MDL for failure to comply with a pretrial order
mandating that each individual plaintiff file a “wet-ink signature.” Id. at 234.
We upheld the district court’s dismissal order after we observed that the
plaintiffs had exhibited a “clear record of delay or contumacious conduct by the
plaintiff” and that “lesser sanctions would not service the best interests of
justice.” Id. Citing our decision in Sealed Appellant, we declined to consider
any “aggravating factors,” such as the willfulness of the violation or the party
responsible for the violation. Id. at 235 n.1.
Since Barrera, we have repeatedly applied this same two-factor test to
8
Case: 19-30640 Document: 00515492836 Page: 9 Date Filed: 07/16/2020
No. 19-30640
evaluate dismissal orders that resulted from plaintiffs’ failure to comply with
the district court’s discovery orders in the Deepwater Horizon MDL. See, e.g.,
In re Deepwater Horizon (Park Nat’l Corp.), 805 F. App’x 262, 265 (5th Cir.
2020) (per curiam) (using two-factor test to affirm dismissal of several
plaintiffs who failed to comply with a pretrial order mandating the submission
of discovery responses); Cepeda, 765 F. App’x at 981–82 (same). We have
explained that the complexity of managing an MDL necessitates a standard
that gives district courts greater flexibility to dismiss a plaintiff for a discovery
violation. See Barrera, 907 F.3d at 235 (“[T]here is a special deference required
in the context of an MDL.”); see also In re Asbestos Prods. Liab. Litig. (No. VI),
718 F.3d 236, 248 (3d Cir. 2013) (observing that “the very purpose of the
centralization before the transferee judge is the efficient progress of the cases
in preparation for trial”); In re Fannie Mae Sec. Litig., 552 F.3d 814, 822 (D.C.
Cir. 2009) (“District judges must have authority to manage their dockets,
especially during massive litigation such as [an MDL], and we owe deference
to their decisions whether and how to enforce the deadlines they impose.”).
Other circuits have echoed these principles in evaluating similar MDL
dismissals in the context of missing Plaintiff Fact Sheets. See In re PPA Prods.
Liab. Litig., 460 F.3d at 1227 (observing that district courts must have the
“‘power to manage their dockets’ without being subject to endless non-
compliance with case management orders” (quoting Ferdik, 963 F.3d at 1261));
Nwatulegwu v. Boehringer Ingelheim Pharm., Inc., 668 F. App’x 173, 175 (7th
Cir. 2016) (“Strict adherence to case management orders is necessary to
manage multidistrict litigation.”). 5 The Deepwater Horizon two-factor test
helps animate the goals of strict enforcement and efficient management by
5Though the Ninth Circuit and the Seventh Circuit each use slightly different
standards than the Deepwater Horizon two-factor standard, both cited cases underscore the
importance of giving greater flexibility to district courts to enforce their MDL pretrial orders.
9
Case: 19-30640 Document: 00515492836 Page: 10 Date Filed: 07/16/2020
No. 19-30640
making it easier for district courts to dismiss non-complying plaintiffs in
MDLs. We therefore apply this two-factor test to the district court’s dismissal
of Kuykendall’s case.
B.
The district court was not required to make specific factual findings on
each of the Deepwater Horizon prongs before dismissing Kuykendall’s case. See
Topalian, 3 F.3d at 936; Oprex Surgery, 704 F. App’x at 378. Our independent
review of the record confirms that both prongs are satisfied, and, as a result,
the district court did not abuse its discretion in dismissing Kuykendall with
prejudice.
i.
First, there is “a clear record of delay or contumacious conduct by the
plaintiff.” Barrera, 907 F.3d at 235. Despite numerous extensions and grace
periods, Kuykendall consistently failed to submit a complete PFS. Her initial
PFS was due on February 12, 2019, but she failed to submit any version of the
required PFS—even an incomplete one—by that deadline. Under the terms of
Amended Pretrial Order 22, she had until April 25, 2019 to submit a complete
PFS after the defendants filed a notice of non-compliance, but she missed that
deadline as well. The next deadline was May 21, 2019—the date of the original
call docket hearing—but she also failed to submit a PFS to MDL Centrality
before that date. Although Kuykendall eventually submitted a PFS before the
rescheduled May 29 hearing, that document was incomplete, missing “readily
ascertainable information like her place of birth, her current weight and
height, and whether she has certain health conditions such as low iron.” Even
when the district court gave her an additional thirty-day extension to cure
those gaps, Kuykendall failed to submit a revised document before the new
10
Case: 19-30640 Document: 00515492836 Page: 11 Date Filed: 07/16/2020
No. 19-30640
deadline expired. 6 Though she eventually submitted two amended PFSs soon
after that deadline, those documents also were missing information, including
her height and her children’s addresses.
Altogether, Kuykendall failed to comply with the court’s order to submit
a complete PFS for nearly five months. This is similar to the plaintiffs’ conduct
in Barrera, where we held that there was a clear record of delay. See 907 F.3d
at 234 (finding delay where plaintiffs failed to submit wet-ink signatures for
several months after the deadline); see also Park Nat’l Corp., 805 F. App’x at
265 (finding clear record of delay when plaintiffs were non-compliant for two
months). As in Barrera, Kuykendall was given ample notice of the potential
consequences of her failure to comply with the district court’s orders. Pretrial
Order No. 22A warned plaintiffs that failure to comply with the PFS
requirements could lead to “possible dismissal with prejudice or other
appropriate relief.” Despite this warning, Kuykendall did not seek additional
extensions or provide an explanation for her failure to submit a PFS. See
Barrera, 907 F.3d at 234. And hundreds of other plaintiffs complied with the
court’s orders, “demonstrating it was not logistically impossible” to do so within
the timeline set forth in the court’s pretrial orders. Id. at 235.
Kuykendall argues that her delay was not nearly as long as the delay in
6 We are not persuaded by Kuykendall’s argument that the district court erred when
it deviated from the procedures set forth in its pretrial orders and imposed a thirty-day
extension for Kuykendall’s PFS, rather than requiring the defendants to first provide
Kuykendall with a written deficiency notice. Kuykendall did not object to these procedures
during the May 29 hearing, so we review her challenge for plain error only. See Law Funder,
924 F.3d at 759. “We review a district court’s interpretation of its own orders with deference,
particularly in the MDL context.” In re Asbestos Prods. Liab. Litig., 718 F.3d at 243. It was
not plainly erroneous for the district court to determine that the notice provided to
Kuykendall during the May 29 hearing was sufficient to replace the notice typically provided
in the form of a notice of deficiency. Furthermore, the procedures used by the district court
here—specifically, addressing deficient cases during a monthly “call docket”—have been
explicitly endorsed by the Federal Judicial Center. Margaret S. Williams et al., Plaintiff Fact
Sheets in Multidistrict Litigation Proceedings, Federal Judicial Center and Judicial Panel on
Multidistrict Litigation (2019).
11
Case: 19-30640 Document: 00515492836 Page: 12 Date Filed: 07/16/2020
No. 19-30640
many other cases where we have affirmed dismissal orders. Because this case
involves an MDL, however, the district court was empowered to “establish [a]
schedule[] with [a] firm cutoff date[].” In re PPA Prods. Liab. Litig., 460 F.3d
at 1232 (emphasis added). Though a delay of five months might be
“insignificant” in some contexts, “administering cases in multidistrict
litigation is different from administering cases on a routine docket.” In re
Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867
(8th Cir. 2007) (quoting In re PPA Prods. Liab. Litig., 460 F.3d at 1229). As a
result, Kuykendall exhibited a clear record of delay sufficient to meet the first
prong in the Deepwater Horizon test.
ii.
The record also demonstrates that lesser sanctions would not have
“serve[d] the best interests of justice.” Barrera, 907 F.3d at 236. “Lesser
sanctions include assessments of fines, costs, or damages against the
plaintiff[,] . . . conditional dismissal, dismissal without prejudice, and explicit
warnings.” Id. at 236 (quoting Thrasher v. City of Amarillo, 709 F.3d 509, 514
(5th Cir. 2013) (cleaned up)). Kuykendall was given several extensions by the
district court, but she continuously failed to file a complete PFS on MDL
Centrality. “Providing plaintiff with a second or third chance” is itself “a lenient
sanction, which, when met with further default, may justify imposition of the
ultimate sanction of dismissal with prejudice.” Callip v. Harris Cty. Child
Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985) (per curiam) (cleaned up).
Though Kuykendall provided other forms of discovery and eventually
submitted a partial PFS, she consistently failed to comply with the court’s
initial order—to provide a complete PFS by the required deadline. Given this
record, it is “unclear what lesser sanctions could have been appropriate
following the district court’s warnings and second chances.” Barrera, 907 F.3d
at 236. Therefore, the record also supports a showing on the second prong of
12
Case: 19-30640 Document: 00515492836 Page: 13 Date Filed: 07/16/2020
No. 19-30640
the Deepwater Horizon test. See Park Nat’l Corp., 805 F. App’x at 266 (“Timely
responses to PTOs are necessary for long-pending cases to move toward
resolution, and counsel has not identified a lesser sanction that would have
effectively served this aim.”).
C.
Finally, the district court did not abuse its discretion in denying
Kuykendall’s motion for reconsideration. Because Kuykendall’s letter was
received by the court after the dismissal, the district court construed the July
11 letter as a motion for reconsideration. Under Federal Rule of Civil
Procedure 59(e), a party may move to alter or amend a judgment “no later than
28 days after the entry of the judgment.” The district court’s denial of a Rule
59(e) motion is reviewed for an abuse of discretion. See Midland W. Corp. v.
F.D.I.C., 911 F.2d 1141, 1145 (5th Cir. 1990).
Kuykendall’s motion did not comply with any of the requirements for a
Rule 59(e) motion. She failed to identify “an intervening change in the
controlling law,” “newly discovered evidence that was previously unavailable,”
or “a manifest error of law or fact.” Demahy v. Schwarz Pharma, Inc., 702 F.3d
177, 182 (5th Cir. 2012). Although Kuykendall uploaded a new PFS in between
the end of the deadline and the date of the dismissal order, her late partial
compliance with the court’s orders failed to change the fact that she had
persistently ignored the previous deadlines. Kuykendall was on notice that
dismissal with prejudice was a potential consequence of her inaction, and the
court did not abuse its discretion by refusing to reconsider its decision to issue
a litigation-ending sanction. See, e.g., In re Asbestos Prods. Liab. Litig., 718
F.3d at 248 (observing that “the very purpose of the centralization” of an MDL
“is the efficient progress of the cases in preparation for trial”).
IV.
For the foregoing reasons, the district court’s order is AFFIRMED.
13