United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-3556

___________________________

Patricia Freeman

lllllllllllllllllllll Plaintiff - Appellant

v.

Wyeth; Wyeth Pharmaceuticals, Inc.

lllllllllllllllllllll Defendants - Appellees

____________

 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

____________

 Submitted: May 23, 2014

 Filed: August 13, 2014

____________

Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

____________

MELLOY, Circuit Judge.

Patricia Freeman was a plaintiff in a multidistrict litigation ("MDL") suit

brought against Wyeth Pharmaceuticals, Inc., and related entities (collectively,
"Wyeth"). The district court dismissed Freeman's case for failure to prosecute and

1

later denied her motion to reconsider. We affirm.

In early 2009, Freeman sued Wyeth in New York state court, alleging that she

developed breast cancer after using Wyeth's hormone therapy medication, Prempro. 

Wyeth timely removed the case to the United States District Court for the Southern

District of New York. Shortly thereafter, the Judicial Panel on Multidistrict

Litigation transferred the case to the Eastern District of Arkansas as part of the

ongoing In re Prempro Products Liability Litigation, MDL-1507, created in 2003.

The clerk of court for the Eastern District of Arkansas opened an individual

docket for Freeman's case on May 12, 2009. The next day, the clerk filed in

Freeman's docket a memorandum that contained important information (the "transfer

memorandum") regarding the MDL's use of the Case Management/Electronic Case

Files ("CM-ECF") system. Relevant to this appeal, the transfer memorandum

instructed Freeman's attorney as follows:

Attorneys are required to electronically file documents in

the Prempro Products LiabilityLitigation (MDL 1507) and

all related cases, absent unusual circumstances. If you

have not previously registered for electronic filing in the

Eastern District of Arkansas, you must complete the

enclosed Electronic Case Filing Registration Form and

submit it to the Clerk’s office. Attorneys who do not

register for electronic filing will not receive notices of

electronic filing, nor will they receive hard copies of

orders. (See Judge Wilson’s Order of September 19, 2005.)

The Honorable Billy Roy Wilson, United States DistrictJudge for the Eastern 1

District of Arkansas.

-2-
Judge Wilson's Order of September 19, 2005, in turn, read as follows:

In a July 1, 2005 letter, I notified all parties that electronic

filing had arrived in the Eastern District of Arkansas. I

also informed you all that electronic filing would be

required in all MDL-1507 cases. . . . However, many of

you (especially local counsel) have not heeded the call.

Again, all counsel (including local counsel in individual

cases who appear on docket sheets transferred to the

Eastern District of Arkansas) must register on CM-ECF.

. . .

You are once again fully advised in the premises, and, if

you do not register, you will not receive notices of

electronic filing, nor will you receive hard copies of orders.

All counsel are directed to register, here and now.

(emphasisin original). Between May 13, 2009, and November 16, 2012, nothing was

posted to Freeman's individual docket. Then, on November 16, 2012, the district

court issued an order designating Freeman's case (and several others) for discovery.

The order was posted to Freeman's individual docket. In preparation for discovery,

the district court instructed Freeman to provide updated medical authorizations to

Wyeth within three weeks and warned her that "[f]ailure to do so may result in

dismissal for failure to prosecute." The district court had issued a similar warning to

other litigants in the MDL only a few months prior. That warning was posted to the

MDL's main docket and was addressed to "ALL CASES." On January 8, 2013,

Wyeth moved to dismiss Freeman's case because she had not provided the medical

authorizations per the district court's instructions. The district court granted the

motion on January 28, 2013.

-3-
Nearly nine months later, Freeman's attorney filed a Rule 60(b)(1) motion to

set aside the dismissal. In the motion, he represented that he had "monitored the case,

including the time period following its transfer to the Eastern District." Despite his

asserted monitoring, however, he did not register for CM-ECF system in the Eastern

District until October 22, 2013––the day he filed his motion to vacate the dismissal

order. As a consequence of failing to register for the MDL's CM-ECF system,

Freeman's attorney did not receive electronic notices of the filingsin Freeman's case,

including the district court's initial order designating the case for discovery, the

motion to dismiss for failure to prosecute, or the district court's order granting the

motion. The district court denied Freeman's 60(b)(1) motion to set aside the

judgment. Freeman appeals.2

"The denial of a Rule 60(b) motion is reviewed for an abuse of discretion."

Gaydos v. GuidantCorp. (In re Guidant Corp. Implantable Defibrillators Prods. Liab.

Litig., 496 F.3d 863, 866 (8th Cir. 2007) ("In re Guidant Corp."). An abuse of

discretion occurs when the "district court's judgment was based on clearly erroneous

fact-findings or erroneous conclusions of law." Id. Rule 60(b)(1), among other

things, permits a district court to set aside a judgment entered because of a party's

"excusable neglect." In re Guidant Corp., 496 F.3d at 866. To determine whether

conduct is excusable, courts consider several factors, including: "(1) the danger of

prejudice to the non-moving party; (2) the length of the delay and its potential impact

on judicial proceedings; (3) whether the movant acted in good faith; and (4) the

reason for the delay, including whether it was within the reasonable control of the

movant." Id. (citing Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S.

380, 395 (1993). The reason for the delay is a "key factor in the analysis," In re

Guidant Corp., 496 F.3d at 867, but the excusable neglect inquiry "is at bottom an

We note that Freeman does not (and cannot) appeal the underlying Rule 41(b)

2

dismissal; if she did, we would not have jurisdiction to review it. See Fed. R. App.

P. 4(a) (appeals from district court orders, in the absence of a statutory exception,

must be taken within 30 days after the entry of judgment).

-4-
equitable one, taking account of all relevant circumstances surrounding the party's

omission," Pioneer, 507 U.S. at 395. 

In this case, we cannot say that the district court abused its discretion when it

refused to set aside its order of dismissal. We have recognized that "administering

cases in multidistrict litigation is different from administering cases on a routine

docket," In re GuidantCorp., 496 F.3d at 867 (citation omitted), and that to encourage

efficiency, "MDL courts must be given greater discretion to organize, coordinate and

adjudicate its proceedings, including the dismissal of casesfor failure to comply with

its orders," id. Applying this principle to the present case is clear enough: on more

than one occasion, the district court instructed all attorneys to register for the CMECF system and warned that those who did not would not receive electronic filing

notices or hard copies of orders. The requirement to register was set out in the clerk's

transfer memorandum that was posted to Freeman's individual docket. This was

during the time when Freeman's attorney represented that he was monitoring the case. 

Further, the district court's order designating discoveryin Freeman's case, dated

November 16, 2012, warned that failure to provide Wyeth with updated medical

authorizations "may result in dismissal for failure to prosecute." In addition, the

district court had issued a similar warning (which was placed on the MDL's main

docket) three months earlier in denying a motion to dismiss for failure to prosecute

as moot. Judge Wilson strongly hinted then that he would consider dismissal if the

plaintiffs' attorneys did not provide the updated medical authorizations in a timely

fashion. That is what happened here.

It is an unfortunate outcome that Freeman will not receive her day in court due

to her attorney's apparent professional carelessness. And we recognize that our

circuit generally prefers merits dispositions over default judgments. See, e.g., United

States v. Real Props. located at 7215 Longboat Dr., 750 F.3d 968, 975 (8th Cir.

2014). But that interest must be weighed against the unique problems an MDL judge

-5-
faces, especially when the MDL litigation involves hundreds of attorneys

representing thousands of clients. The MDL judge must be given "greater discretion"

to create and enforce deadlines in order to administrate the litigation effectively. This

necessarily includes the power to dismiss cases where litigants do not follow the

court's orders. See In re Guidant Corp., 496 F.3d at 867. In the final analysis, and in

the procedural posture of this appeal––review of a Rule 60(b) motion––we do not

find this to be an "exceptional" case warranting relief. Int'l Bd of Elec. Workers v.

Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir. 2002).

Affirmed.

______________________________

-6-