United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is Defendant C. R. Bard, Inc.'s Motion
to Dismiss for Failure to Comply with Pretrial Order 289 and
Failure to Prosecute, filed June 27, 2019. [ECF No. 18].
Plaintiffs have not responded to the Motion, but C. R. Bard,
Inc. (“Bard”) filed a reply [ECF No. 20], making
the motion ripe for consideration. For the reasons stated
below, Bard's Motion is GRANTED to the
extent Bard seeks dismissal without prejudice pursuant to
Rule 25(a) and PTO # 289.
action resides in one of seven MDLs originally assigned to me
by the Judicial Panel on Multidistrict Litigation concerning
the use of transvaginal surgical mesh to treat pelvic organ
prolapse (“POP”) and stress urinary incontinence
(“SUI”). This particular case involves Texas
co-plaintiffs, one of whom, Ms. Allen, was implanted at Cedar
Park Surgery Center in Cedar Park, Texas with the Align
Urethral Support System, a mesh product manufactured by Bard.
Short Form Compl. [ECF No. 1] ¶¶ 1-12. On February
6, 2019, plaintiffs' counsel filed a Suggestion of Death
noting that Ms. Allen died on May 23, 2016. Suggestion of
Death [ECF No. 15].
governs the process for substituting or dismissing a case
after a plaintiff has died. See Fed. R. Civ. P. 25.
The rule provides:
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the
decedent's successor or representative. If the motion is
not made within 90 days after service of a statement noting
the death, the action by or against the decedent must be
Civ. P. 25(a)(1). This rule also states that, “[a]
motion to substitute, together with a notice of hearing, must
be served on the parties as provided in Rule 5 and on
nonparties as provided in Rule 4. A statement noting death
must be served in the same manner.” Fed.R.Civ.P.
25(a)(3). The above-mentioned 90-day clock does not begin to
run until the decedent's successors or representatives
are served with a statement noting death. See Farris v.
Lynchurg, 769 F.2d 958, 962 (4th Cir. 1985). If the
successor or representative is a party to the action, service
must be made on the party's attorney. Fed. Civ. P.
a claim is extinguished is determined by the substantive law
of the jurisdiction in which the cause of action arose.
See Robertson v. Wegmann, 436 U.S. 584, 587 n.3
(1991) (explaining that a claim is not extinguished if the
jurisdiction allows the action to survive a party's
death). Traditionally, state statutes expressly state whether
a claim survives a deceased party and to whom survivorship is
allowed. Id. at 589. If a case includes multiple
plaintiffs, the death of one plaintiff does not cause an
abatement of the claims for the remaining parties.
See Fed.R.Civ.P. 25(a)(2) (“After a
party's death, if the right sought to be enforced
survives only to or against the remaining parties, the action
does not abate, but proceeds in favor of or against the
PTO # 289
Pretrial Order (“PTO”) # 289, the court required
that “[f]or any case in which plaintiff's counsel
subsequently learns of the death of his or her client,
plaintiff's counsel shall file the suggestion of death
within 120 days of counsel's learning of the
death.” Pretrial Order # 289, p. 3, 2:10-md-2187 [ECF #
6915]. In addition, the court directed that
within the same 120-day period, plaintiff's counsel must
serve the suggestion of death on the parties and appropriate
nonparties as described above, and file proof of such service
with the court. The ninety-day substitution period provided
by Rule 25(a) will commence upon the filing and proper
service of the suggestion of death. In the event that
plaintiff's counsel fails to file the suggestion of death
and properly serve it on the appropriate nonparties, the
ninety-day substitution period will commence 120 days ...