Crawford et al v. C R Bard Incorporated et al

Filing 3

ORDER granting Defendants' Motion to Dismiss (doc. 18559 in Lead MDL-15-2641) See Order for Details. Signed by Senior Judge David G Campbell on 8/7/19. (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN RE: Bard IVC Filters Products
Liability Litigation,

No. MDL 15-02641-PHX-DGC
ORDER

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The parties’ memorandum and exhibits regarding settlement (Tracks 1 and 2) and

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non-settlement (Track 3) cases raise issues concerning (1) the filing of duplicate cases,

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(2) cases in which Defendants have received no plaintiff profile form (“PPF”) or a

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deficient PPF, and (3) cases that have not been served on Defendants. See Docs. 19445,

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19798. The Court will address each issue.

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1.

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The Court previously dismissed duplicative complaints filed in this MDL.

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Docs. 16343 at 4-5, 18540 at 2 (citing M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1091

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(9th Cir. 2012) (“It is well established that a district court has broad discretion to control

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its own docket, and that includes the power to dismiss duplicative claims.”)). Defendants

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have identified two additional plaintiffs who have filed more than one complaint in this

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MDL: Malcom Fortune and Kristin McCullough. Doc. 19798-9 (Exhibit H). The Court

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will dismiss Ms. McCullough’s duplicative complaint in Case No. CV-18-01692. Her

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initial complaint in Case No. CV-17-01516 remains part of the MDL. Mr. Fortune’s

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duplicative complaint in Case No. CV-18-1426 already has been dismissed. See Docs.

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18450, 19458.

Duplicate Cases.

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2.

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Cases with PPF Issues.
a.

Defendants’ motions to dismiss cases with no PPF.

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Case Management Order No. 5 requires each Plaintiff who directly files a short

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form complaint in this MDL to provide a PPF to Defendants within 60 days of filing the

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complaint. Doc. 365 at 1. If no PPF is received within the 60-day period, Defendants

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were to send an overdue letter to Plaintiff’s counsel giving Plaintiff an additional 20 days

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to provide a PPF. Id. at 2. Defendants may seek dismissal of the case if Plaintiff fails to

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provide a PPF during this grace period. Id.

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Defendants have moved to dismiss eighteen cases in which no PPF has been filed.

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Docs. 18520, 18557-59, 18561, 18576, 18581, 18833, 18925-26, 19455, 19459-61,

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19497-500. In each case, Plaintiff failed to serve a PPF within 60 days of filing the

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complaint and within 20 days of receiving the overdue letter. See id.

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The McBride case already has been dismissed because it involved a duplicative

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complaint. See Doc. 16343 at 5. Defendants no longer seek dismissal of the two Track 2

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cases (Harpster and Romero) in which PPFs have now been filed, or the six Track 1 cases

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with no PPF (Brooks, Deane, Outland, Schwirian, Waller, and Woods). The motions to

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dismiss these cases will be denied. See Docs. 18520, 18561, 18581, 19455, 19460,

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19497-500.

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In two Track 2 cases (Brown and Madison), Plaintiffs’ counsel states that he has

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diligently sought to contact Plaintiffs to inform them of the settlement discussions and

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obtain information needed to prepare a PPF, but he has not heard back from either

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Plaintiff. Docs. 19090 at 1, 19095 at 1. He requests additional time to locate Plaintiffs

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and provide the requisite PPFs. Id. at 2. Defendants do not object.

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Plaintiffs Brown and Madison shall have until August 22, 2019 to provide

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Defendants with a substantially complete PPF. See Doc. 365 at 2. Defendants’ motions

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to dismiss will be denied without prejudice. See Docs. 18557, 18833. Defendants may

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seek dismissal if either Plaintiff fails to provide a substantially complete PPF by the

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August 19 deadline.

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No response brief has been filed in the other seven cases (Cervantes, Crawford,

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Greene, Martinez, Morris, Orr, and Pospisil). The Court will grant the motions to dismiss

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these cases. See Docs. 18558-59, 18576, 18925-26, 19459, 19461; see also Doc. 365

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at 1-2; LRCiv 7.2(i) (the lack of a response may be deemed a consent to the granting of

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the motion and the Court may dispose of the motion summarily).

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b.

Direct-Filed Track 3 cases with no PPF or deficient PPFs.

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On July 26, 2019, Defendants identified 70 Track 3 cases with no PPF or a

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deficient PPF. Doc. 19798-11 (Exhibit K). In many of these cases, the PPF was not due

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until August 3, 2019.

See id.

In other cases, the 60-day period for providing a

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substantially complete PPF has expired. Defendants have sent overdue or deficiency

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letters to Plaintiffs’ counsel in some of these cases, but have received no response. Id.;

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see Doc. 365 at 2.1

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Defendants seek complete PPFs in these Track 3 cases in order to propose a

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transfer forum based on the place of filter implant. Doc. 19798-11. Defendants propose

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that Plaintiffs should be required to provide PPFs within 14 days of the Court’s order. Id.

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Plaintiffs do not object to this proposal. See id.

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Each Plaintiff identified on Exhibit K, other than Cervantes and Martinez, shall

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have until August 22, 2019 to provide PPFs to Defendants. The PPFs shall include the

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place of filter implant. By August 29, 2019, the parties shall file an updated exhibit

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indicating whether a proper PPF has been provided in each case. The Court may dismiss

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any case in which no proper PPF has been provided.

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3.

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Case Management Order No. 4 requires Plaintiffs who file a short form complaint

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to send a request for waiver of service to Defendants pursuant to Rule 4 of the Federal

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Rules of Civil Procedure. Doc. 363 at 4. Rule 4(m) provides that “if a defendant is not

Direct-Filed Track 3 Cases Without Proper Service.

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Defendants moved to dismiss two of the cases, Cervantes and Martinez.
Docs. 18558, 18925. These cases will be dismissed for reasons stated above.

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served within 90 days after the complaint is filed, the court – on motion or on its own

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after notice to the plaintiff – must dismiss the action without prejudice against that

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defendant or order that service be made within a specified time.”

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Defendants have identified 100 cases that have not been served on Defendants.

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Doc. 19798-7 (Exhibit G). The 90-day service period under Rule 4(m) has not expired in

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most of these cases. See id. Indeed, many cases were filed on or shortly before May 31,

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2019 – the date the MDL closed to new cases. Id.

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Each Plaintiff identified on Exhibit G shall have until August 29, 2019 to send the

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short form complaint and a request for waiver of service to Defendants’ counsel. See

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Doc. 363 at 4; Fed. R. Civ. P. 4(d)(1), (m); see also United States v. 2,164 Watches, Inc.,

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366 F.3d 767, 772 (9th Cir. 2004) (district courts have “broad discretion” under

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Rule 4(m) to extend time for service). By September 6, 2019, the parties shall file an

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updated exhibit indicating for each case whether service has been completed by the

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August 29 deadline and, if not, Plaintiff shall state the reasons for the delay. The Court

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may dismiss any case in which service has not been completed absent Plaintiff showing

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good cause for the failure to serve. See Fed. R. Civ. P. 4(m).

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IT IS ORDERED:

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1.

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Plaintiff Kristin McCollough’s duplicative complaint filed in CV-18-01692

is dismissed. Her initial complaint filed in CV-17-01516 remains part of the MDL.
2.

Defendants’ motions to dismiss the following cases are granted:

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• Cervantes, Alice, CV-18-00473 (Doc. 18558);

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• Crawford, Shirley, CV-17-03305 (Doc. 18559);

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• Greene, Taylor, CV-18-00260 (Doc. 18576);

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• Martinez, Carlos, CV-18-00595 (Doc. 18925);

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• Morris, John, CV-17-03608 (Doc. 18926);

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• Orr, Mary Beth, CV-18-01109 (Doc. 19459); and

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• Pospisil, Paul, CV-18-00703 (Doc. 19461).

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3.

The following motions to dismiss are denied: Docs. 18520, 18557, 18561,

18581, 18833, 19455, 19460, 19497-500.
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Each Plaintiff identified on Exhibit K (Doc. 19798-11), other than

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Cervantes and Martinez, shall have until August 22, 2019 to provide substantially

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complete PPFs to Defendants. By August 29, 2019, the parties shall file an updated

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exhibit indicating whether a proper PPF has been provided in each case.

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5.

Each Plaintiff identified on Exhibit G (Doc. 19798-7) shall have until

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August 29, 2019 to send the short form complaint and a request for waiver of service to

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Defendants’ counsel. By September 6, 2019, the parties shall file an updated exhibit

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indicating for each case whether service has been completed by the August 29 deadline

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and, if not, Plaintiff shall state the reasons for the delay.

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Dated this 7th day of August, 2019.

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