Gorham v. 3M Company et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
IN RE BAIR HUGGER FORCED AIR 	MDL No. 15-md-2666 (JNE/DTS)
WARMING PRODUCTS
LIABILITY LITIGATION
This Document Relates to: 	REPORT AND RECOMMENDATION
Michael Gorham,
v.
3M Company, et al.,
16-cv-3802
Defendants request dismissal of this case for failure to prosecute based on Plaintiff
Michael Gorham’s failure to comply with his discovery obligations. Dkt. No. 30.
Under Federal Rule of Civil Procedure 41(b), a defendant may move to dismiss an
action “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.”
Fed. R. Civ. P. 41(b). “MDL courts must be given greater discretion to organize,
coordinate and adjudicate its proceedings, including the dismissal of cases for failure to
comply with its orders.” In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig.,
496 F.3d 863, 867 (8th Cir. 2007). When provided sufficient opportunities to cure
noncompliance, dismissal with prejudice is appropriate. See, e.g., MDL Dkt. No. 2921.
Defendants 	served 	discovery 	requests 	and 	requested 	deposition 	dates.
Dkt. No. 17. Gorham failed to serve discovery responses that were due on October 29,
2025. 	Dkt. 	No. 	16. 	On 	November 	10, 	2025, 	Defendants 	requested 	a 	telephonic
conference to discuss outstanding discovery. Id. The Court held a telephonic hearing on
November 25, 2025. There, the Court ordered Gorham to provide discovery responses
and deposition dates by December 19, 2025. See Dkt. Nos. 19, 21. After Defendants’
requested dismissal, Dkt. No. 23, Gorham’s counsel initially represented that he had
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provided discovery answers and a deposition date. See Dkt. No. 25. The Court thus
denied Defendants’ motion to dismiss. Dkt. No. 26. Gorham’s counsel subsequently
clarified that Gorham had not served discovery responses. Dkt. No. 27. Defendants
renewed their request for dismissal. Dkt. No. 30. Discovery responses still had not been
served as of February 2, 2026. See id. at 2. When Defendants noticed Gorham’s
deposition for January 30, 2026, Gorham’s counsel informed Defendants that she was
unable to confirm Gorham was willing and able to proceed with the deposition. Id. at 1–
2.
The Court agrees with Defendants that with-prejudice dismissal is appropriate.
After this case was selected as one of 150 to be worked up for trial, this Court entered an
accelerated scheduling order at plaintiffs’ request. Dkt. Nos. 11–14. Under that scheduling
order, fact discovery commenced on September 29, 2025, and is set to be completed by
February 27, 2026. See Dkt. No. 14 at 3. Despite this accelerated scheduling order,
Gorham has failed to respond to Defendants’ discovery requests for months. When the
Court ordered Gorham to provide discovery responses and deposition dates, Gorham
failed to comply. Gorham’s counsel appears to have made multiple attempts to contact
Gorham without success to remedy these issues. See, e.g., Dkt. No. 30 at 2 (noting
multiple calls, e-mails, and letters to Gorham). Not only has Gorham failed to prosecute
his case, delays such as this threaten to derail the parties’ and the Court’s efforts to move
this MDL forward. With-prejudice dismissal is appropriate here.
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For the reasons set forth above, the Court RECOMMENDS THAT: Defendants’
Motion to Dismiss (Dkt. No. 30) be GRANTED.
Dated: February 9, 2026 	s/ David T. Schultz_________
DAVID T. SCHULTZ
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court. It is not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. LR 72.2(b)(2). All
objections and responses must comply with the word or line limits set for in LR 72.2(c).
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