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In re Ethicon, Inc. Pelvic Repair System Products Liability Litigation

United States District Court, S.D. West Virginia, Charleston Division

December 12, 2017

IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
v.
Ethicon, Inc., et al. THIS DOCUMENT RELATES TO: Febus Civil Action No. 2:12-cv-04039

          ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending is a Motion to Dismiss for Failure to Timely Effect Service of Process, filed by defendants Ethicon, Inc. and Johnson & Johnson[1] on October 5, 2017 (“Motion”). [ECF No. 30]. For the reasons stated below, the Motion is GRANTED.

         I. Background

         This 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, http://www.wvsd.uscourts.gov/MDL/ethicon/pdfs/PTO20.pdf (stating that this order applies to “each member related case previously transferred to, removed to, or filed in this district, ” in addition to cases subsequently filed). 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).[2]

         II. Analysis

         The 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 process, provides:

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.

         Here, the plaintiff filed her complaint in the Middle District of Tennessee on July 13, 2012 (Complaint [ECF No. 1]). The Judicial Panel on Multi-District Litigation transferred this case to the Ethicon MDL on August 3, 2012. Therefore, the plaintiff was required to either serve the defendants under Rule 4 or comply with Pretrial Order # 20 by approximately November 12, 2012, but never effectuated service by either method. (Defs.' Mot. to Dismiss [ECF No. 30]).

         In the 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 plaintiff's 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. 1991)).

         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. Because there remains other defendants in this case that did not join the motion to dismiss, the court ORDERS that only Ethicon, Inc., Ethicon Women's Health and Urology, Gynecare, and Johnson & Johnson be DISMISSED from this case without prejudice.

         The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

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Notes:

[1] As used herein, Ethicon, Inc. and Johnson & Johnson includes any of these entities former or present parent companies, subsidiaries, affiliated companies, directors, officers, design surgeons, employees, distributors, or detail ...


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