United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Ethicon, Inc., et al. Civil Action No. 2:13-cv-22370 THIS DOCUMENT RELATES TO Gardiner, et al.
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. 30]. 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 28, 000 cases currently pending, over 17, 000
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
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 plaintiffs from formally serving
process on the defendants here, if they completed this simple
procedure. Nevertheless, the plaintiffs in this case failed
to effectuate service by either method within the time
allotted under Federal Rule of Civil Procedure
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 plaintiffs filed their complaint with the court on July
12, 2013 (Complaint [ECF No. l]). Therefore, the plaintiffs
were required to either serve the defendants under Rule 4 or
comply with Pretrial Order # 20 by approximately November 11,
2013, but never effectuated service by either method.
(Defs.' Mot. to Dismiss [ECF No. 30]).
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
plaintiffs have 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 Spring&eld Public
Schools, 362 F.3d 143, 145 (1st Cir. 2004);
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.
there remains other defendants in this case that did not join
the motion to dismiss, the court ORDERS that only Ethicon,
Inc., Ethicon, LLC and Johnson & Johnson be DISMISSED
from this case without prejudice.
court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented party