UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS

 Case No. 3:19md2885 

LIABILITY LITIGATION 

This Document Relates to: 

Duchesne, 7:20cv28568 

 

Judge M. Casey Rodgers 

Magistrate Judge Hope T. Cannon 

ORDER 

 On July 7, 2020, Plaintiff Derek J. Duchesne’s case was dismissed with 

prejudice, in part, for failing to file a Notice of Designated Forum or pay a filing fee 

by the court-imposed deadlines, which were twice extended by the Court, sua 

sponte. See ECF No. 6. Pending before the Court is Duchesne’s Motion for 

Reconsideration and for Reinstatement of his case under Federal Rule of Civil 

Procedure 60, ECF No. 10, arguing the case should be reopened due to mistakes and 

unforeseen circumstances that led to the dismissal of his case. The Court finds no 

adequate justification for relief, and thus, Duchesne’s motion is due to be denied. 

 In March 2020, Duchesne submitted a request to transition to the active docket 

through MDL Centrality. See ECF No. 10 at 1. BrownGreer processed Duchesne’s 

request, and a Request for Transition to the 3M MDL Docket was filed on his 

individual docket by the Court on April 2, 2020. The Request for Transition states, 

in part, “[o]n receipt of the form, the Court will transfer this case from the 

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administrative docket” to the active docket. Additionally, the Request to Transition 

warned that a filing fee must be paid, and a Notice of Designated Forum must be 

filed on the individual docket within 10 days of the date the case is transferred to the 

active docket.1 See ECF No. 2. The Court further notified Duchesne’s counsel by 

email that his case was transferred to the active docket on April 3, 2020 and provided 

the deadlines for submitting the Short Form Complaint and Notice of Designated 

Forum.2 See ECF No. 3. 

Duchesne has thrice disregarded the Court’s orders to pay a filing fee and file 

a Notice of Designated Forum, even after he was warned that failure to comply with 

the orders would result in dismissal of his case. Duchesne also twice disregarded the 

Court’s order to serve his Short Form Complaint, and his counsel disregarded the 

Court’s order to file a motion to appear pro hac vice. Counsel never sought an 

extension of the deadlines for compliance or otherwise offered an explanation for 

his inaction. Accordingly, the Court dismissed Duchesne’s case with prejudice under 

Rules 16(f) and 37(b)(2)(A)(ii)-(vii) for failure to comply with the Court’s pretrial 

1

 Counsel contends that on April 29, 2020, he asked BrownGreer to withdraw the Request 

to Transition. See ECF No. 10 at 2. By this time, however, the request had already been processed 

by the Court and filed on Duchesne’s individual docket. As a result, had Duchesne wished to 

withdraw the request, he should have filed a request to withdraw with the Court. 

2

 Counsel asserts that Duchesne “had not received any information or notification about the 

case’s transition.” This is incorrect. The Court has confirmed that counsel was notified by email 

on April 3, 2020, that the administrative case filing was transferred to the active docket. The Court 

has further confirmed that counsel was notified by email on June 8, 2020, and June 18, 2020, of 

the Court’s orders extending the deadline to perfect the filing and warning that Duchesne’s case 

would be dismissed for failure to comply.

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orders. Duchesne now seeks relief from judgment under Rules 60(b)(1) and 60(b)(6) 

arguing confusion, mistakes, and unforeseen circumstances in the case’s transition 

constitute excusable neglect. Alternatively, Duchesne requests relief under Rule 

60(a) arguing a mistake on his Request for Transition form led to the dismissal. 

Duchesne’s request for relief due to mistake, inadvertence, surprise, or 

excusable neglect under Rule 60(b)(1) is time barred as the motion was filed over 

10 months after the applicable one-year deadline.3 See Fed. R. Civ. P. 60(c)(1). 

Duchesne’s requests for relief under Rules 60(b)(6) and 60(a), although not time 

barred, are also denied for the following reasons. 

Regarding Rule 60(b)(6), Duchesne does not articulate distinct grounds for 

relief under this provision. Instead, his arguments under Rule 60(b)(6) match his 

arguments under Rule 60(b)(1). This is improper since these provisions are 

“mutually exclusive” such that arguments made under Rule 60(b)(6) must be distinct 

from arguments under Rule 60(b)(1). See Pioneer Invest. Srvs. Co. v. Brunswick 

Assocs. Ltd. P’ship, 507 U.S 380, 393 (1993). Moreover, as Duchesne was likely 

trying to do here, Rule 60(b)(6) cannot be used to avoid 60(b)(1)’s time bar. See id. 

Therefore, the Court finds no adequate grounds for relief under Rule 60(b)(6). 

3 Counsel asserts he was unaware of the July 7, 2020 Order dismissing Duchesne’s case 

until May 2022. However, the Court has confirmed that counsel was notified of this Order by 

email on July 7, 2020.

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Regarding his request under Rule 60(a), Duchesne incorrectly contends that a 

court error warrants relief. There was no court error; instead, Duchesne and his 

counsel continually disregarded the Court’s orders to properly transition his case 

which resulted in the subsequent dismissal. Duchesne acknowledges he submitted a 

request to transition. See ECF No. 10 at 5. This request met the requirements of 

Pretrial Order No. 22, regardless of Duchesne’s status of being selected for a 

bellwether pool.4 See In re 3M Combat Arms Earplug Prod. Liab. Litig., Pretrial 

Order No. 22, ECF No. 898 at 9 (explaining that an administrative case is ready to 

transition if the plaintiff fulfilled his or her initial census obligations). At that point, 

Duchesne was on notice, that pursuant to the Court’s prior orders in the MDL, his 

case would transition to the active docket, triggering the filing requirements and 

further indicating his need to keep apprised of changes to his individual docket. 

Additionally, as reflected in his email exchange with BrownGreer, Duchesne’s 

counsel was informed that he would “receive an electronic ECF notification from 

the court when the transfer is complete.” See ECF No. 10-4 at 3. This reinforced that 

counsel would receive updates through the ECF system and that Duchesne and his 

counsel should be monitoring the docket for these communications. To this end, the 

4

 The Court notes Duchesne’s Request for Transition mistakenly is marked “Yes” that his 

case was selected for the bellwether pool. However, this typographical error is irrelevant to the 

Court’s analysis. Duchesne does not contend the Request for Transition includes any mistake in 

affirmatively indicating he fulfilled his initial census obligations. 

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Court notified Duchesne that the transition approval and the subsequent orders had 

been entered on his individual docket, providing ample opportunity for him to 

contact the Court directly to correct any perceived error, request clarification, or 

notify the Court that he wished to withdraw his request to transition. Duchesne did 

none of these things. Thus, relief under Rule 60(a) is similarly unwarranted. 

Accordingly, Duchesne’s motion for relief from judgment is DENIED. 

SO ORDERED, on this 23rd day of December, 2022. 

M. CASEY RODGERS 

 UNITED STATES DISTRICT JUDGE 

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