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Allen v. C. R. Bard, Inc.

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

January 13, 2020

CAROLYN ALLEN, et al., Plaintiffs,
v.
C. R. BARD, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. Background

         This 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].

         II. Legal Standards

         A. Rule 25

         Rule 25 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 dismissed.

         Fed. R. 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. 5(b)(1).

         Whether 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 remaining parties.”).

         B. PTO # 289

         In 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 ...

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