United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Ethicon, Inc., et al. THIS DOCUMENT RELATES TO Kelly Davis
R. GOODWIN UNITED STATES DISTRICT JUDGE
is a Motion to Dismiss for Failure to Timely Effect Service
of Process, filed by defendants Ethicon, Inc. and Johnson
& Johnson on October 5, 2017 (“Motion”).
[ECF No. 10]. For the reasons stated below, the Motion is
case resides in one of seven MDLs assigned to me by the
Judicial Panel on Multidistrict Litigation concerning the use
of transvaginal surgical mesh to treat pelvic organ prolapse
and stress urinary incontinence. In the seven MDLs, there are
approximately 31, 000 cases currently pending, over 17, 500
of which are in the Ethicon, Inc. MDL, MDL 2327. Managing the
MDLs requires the court to streamline certain litigation
procedures in order to improve efficiency for the parties and
the court. Some of these management techniques simplify the
parties' responsibilities. For instance, the Federal
Rules of Civil Procedure require a plaintiff to serve the
defendant a summons and a copy of the complaint. Fed.R.Civ.P.
4(c)(1). However, in this MDL, the defendants agreed to waive
formal service of process as long as the plaintiff sends by
email or certified mail “the short form complaint and,
if in their possession, a sticker page or other medical
record identifying the product(s) at issue in the
case.” See Pretrial Order #20, In re:
Ethicon, Inc. Pelvic Repair System Products Liability
Litigation, No. 2:12-md- 2327,
Thus, the court excused the plaintiff from formally serving
process on the defendants here, if she completed this simple
procedure. Nevertheless, the plaintiff in this case failed to
effectuate service by either method within the time allotted
under Federal Rule of Civil Procedure 4(m).
defendants move to dismiss this case for insufficient service
of process under Federal Rule of Civil Procedure 12(b)(5).
Rule 4(m), which governs the sufficiency of service of
If a defendant is not served within 120 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
the plaintiff filed her complaint with the court on August
24, 2012 (Complaint [ECF No. 1]). Therefore, the plaintiff
was required to either serve the defendants under Rule 4 or
comply with Pretrial Order # 20 on or about December 26,
2012, but never effectuated service by either method.
(Defs.' Mot. to Dismiss [ECF No. 10]).
instant Motion, the defendants are seeking their dismissal
from this case pursuant to Federal Rules of Civil Procedure
12(b)(5) and 4(m). The deadline to file a Response to the
Motion has passed and, as of the date of this order, the
plaintiff has still not filed a Response. As a result, the
court ORDERS that the Motion to Dismiss for
Failure to Timely Effect Service of Process, filed by
defendants Ethicon, Inc. and Johnson & Johnson, is
GRANTED. See Osborne v. Long, 2012
WL 851106, at *10 n.5 (S.D. W.Va. 2012) (referencing
authority for the proposition that federal courts may grant a
motion to dismiss without reaching the merits on the grounds
that the plaintiffs failure to respond operates as a
concession to that motion, or that dismissal is appropriate
as a sanction for failure to prosecute) (citing Fox v.
American Airlines, Inc., 389 F.3d 1291, 1294-1295 (D.C.
Cir. 2004); Pomerleau v. West Springfield Public
Schools, 362 F.3d 143, 145 (1st Cir. 2004);
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.
Ethicon, Inc., Ethicon, LLC, and Johnson & Johnson are
the only named defendants in this case, the court ORDERS that
this case be DISMISSED without prejudice. The court
DIRECTS the Clerk to send a copy of this
Order to counsel of record and any unrepresented party.
 As used herein, Ethicon, Inc. and
Johnsons & Johnson includes any of these entities former
or present parent companies, subsidiaries, affiliated
companies, directors, officers, design surgeons, employees,
distributors, detail representatives named in an action
pending in MDL No. 2327.
 Any reference to rule 4(m) is to the
1993 version in effect at the time the plaintiffs filed the