United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Barrett
Johnson & Johnson Civil Action No. 2:13-cv-19979
R. GOODWIN UNITED STATES DISTRICT JUDGE
is (1) a Motion to Strike Delinquent Opposition, filed by
defendant Johnson & Johnson on November 20, 2017
(“Motion to Strike”) [ECF No. 9], and (2) a
Motion to Dismiss for Failure to Timely Effect Service of
Process, filed by defendant Johnson & Johnson on October
5, 2017 (“Motion to Dismiss”). [ECF No. 6]. For
the reasons stated below, both the Motion to Strike and the
Motion to Dismiss are 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
ProductsLiabilityLitigation, 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).
the plaintiff filed her complaint with the court on July 12,
2013 (Complaint [ECF No. 1]). The plaintiff was therefore
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]). In the Motion to Dismiss, the
defendant seeks its dismissal from this case pursuant to
Federal Rules of Civil Procedure 12(b)(5) and 4(m).
her deadline to respond to the Motion to Dismiss had passed,
the plaintiff filed a Response in opposition to the Motion to
Dismiss on November 13, 2017 (“Response”) -
nearly a month late. [ECF No. 8]. In her Response, the
plaintiff does not account for her untimeliness in opposing
the Motion to Dismiss.
November 20, 2017, the defendant filed the Motion to Strike,
requesting the court not consider the Response when
addressing the Motion to Dismiss on grounds that plaintiff
improperly filed it several weeks late. Mot. to Strike 3-4.
The deadline to file a response to the Motion to Strike has
now passed and, as of the date of this order, the plaintiff
has still not filed a response.
Motion to Strike
defendant moves to strike the plaintiff's Response as
untimely under Local Rule of Procedure 7.1(a)(7), which
Memoranda and other materials in response to motions shall be
filed and served on opposing counsel and unrepresented
parties within 14 days from the date of service of
can be no question that the plaintiff filed her Response a
few weeks after the running of her deadline. Because the
plaintiff failed to address the tardiness of her Response,
coupled with the absence of any response to the Motion to
Strike itself, the court finds it appropriate to review the
Motion to Dismiss without consideration of the
plaintiff's Response. See Watson v. Nat'l Union
Fire Ins. Co. of Pittsburgh, PA, No. 5:13-CV-01939, 2013
WL 2000267, at *2 (S.D. W.Va. May 13, 2013) (striking
plaintiff's response, noting that the plaintiff
“did not seek leave of the Court prior to filing his
response” and “did not assert any statement of
good cause, excusable neglect or other explanation to support
his untimely submission”); Pearson v.
Prichard's Excavating & Mobile Home Transp., No.
3:13-CV-19629, 2014 WL 534221, at *1 n.5 (S.D. W.Va. Feb. 10,
2014) (striking defendant's untimely response, noting
that the defendant did not seek leave to extend the 14-day
deadline or “argue that its delay in filing the
Response [was] due to excusable neglect”) (citing
Federal Rule of Civil Procedure 6(b)(1)(b) (“When an
act may or must be done within a specified time, the court
may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because
of excusable neglect.”). The Motion to Strike is
Motion to Dismiss
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 ...