United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO Pace, et al.
Ethicon, Inc., et al. Civil Action No. 2:13-cv-19876
R. GOODWIN UNITED STATES DISTRICT JUDGE
is a Motion to Dismiss for Failure to Timely Effect Service
of Process, filed by defendant Ethicon, Inc. on October 5,
2017 (“Motion”). [ECF No. 6]. For the reasons
stated below, the Motion is GRANTED.
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
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 plaintiffs from formally serving
process on the defendant 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
defendant moves 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. 1]). Therefore, the plaintiffs
were required to either serve the defendant 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. 6]).
instant Motion, the defendant seeks its 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
defendant Ethicon, Inc., 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.
there remains other defendants in this case that did not join
the motion to dismiss, the court ORDERS that only Ethicon,
Inc. be DISMISSED from this case without prejudice.
In addition, because BOSTON SCIENTIFIC, CORP. remains in this
case as a named defendant, the court ORDERS
that this civil action be TRANSFERRED to MDL
2326. The Clerk is DIRECTED to disassociate
this civil action as a member case in MDL 2327 and
re-associate it with MDL 2326.
court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented party.
 Any reference to rule 4(m) is to the
1993 version in effect at the time the plaintiffs filed the