Knoles v. Teva Pharmaceuticals USA, Inc. et al

Filing 82

ORDER DISMISSING SECOND AMENDED COMPLAINT AS TO ALL REMAINING DEFENDANTS; AND DISMISSING ACTION WITHOUT PREJUDICE. Signed by Judge Beth Labson Freeman on 11/5/2019. (blflc1S, COURT STAFF) (Filed on 11/5/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MARLESSA KNOLES,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-06580-BLF

v.
TEVA PHARMACEUTICALS USA, INC.;
TEVA BRANDED PHARMACEUTICALS
PRODUCTS R&D, INC.; FEI WOMEN’S
HEALTH LLC; ORTHO-MCNEIL
PHARMACEUTICAL, LLC; and
DURAMED PHARMACEUTICALS,

ORDER DISMISSING SECOND
AMENDED COMPLAINT AS TO ALL
REMAINING DEFENDANTS; AND
DISMISSING ACTION WITHOUT
PREJUDICE

Defendants.
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On October 17, 2019, the Court granted the Teva Defendants’ motion to dismiss the

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second amended complaint (“SAC”) for lack of personal jurisdiction, without leave to amend. See

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Order, ECF 81.

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The Court also ordered Plaintiff to show cause, in writing and on or before October 31,

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2019, why the second amended complaint should not be dismissed with respect to the three

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remaining defendants, FEI Women’s Health LLC, Ortho-McNeil Pharmaceutical, LLC, and

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Duramed Pharmaceuticals. See Order, ECF 81. The Court stated its view that these defendants

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are subject to dismissal on the bases that they were added in violation of the Court’s express order

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and they have not been timely served with process as required under Federal Rule of Civil

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Procedure 4(m). See id.

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Plaintiff has not responded to the Order to Show Cause and the deadline for response has

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elapsed. The Court finds that dismissal of the second amended complaint with respect to the

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remaining Defendants is warranted under Federal Rules of Civil Procedure 41(b) and 4(m).

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Federal Rule of Civil Procedure 41(b) allows for involuntary dismissal of an action “[i]f

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the plaintiff fails to prosecute or to comply with these rules or a court order.” Rule 41(b) permits a

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court to dismiss an action sua sponte. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).

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Before imposing dismissal as a sanction, “the district court must consider five factors: (1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives.” Yourish v. Calif. Amplifier, 191

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F.3d 983, 990 (9th Cir. 1999) (internal quotation marks and citation omitted).

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Plaintiff has failed to comply with this Court’s orders or with the service requirements of
Rule 4(m). In its Order Granting Motion to Substitute, the Court granted Plaintiff’s request for

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United States District Court
Northern District of California

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leave to amend to add “Paragard” as a defendant. See Order Granting Motion to Substitute, ECF

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70. The order prohibited Plaintiff from adding any other new parties or claims without express

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leave of the Court. See id. Plaintiff nonetheless filed her SAC adding Defendants FEI Women’s

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Health LLC, Ortho-McNeil Pharmaceutical, LLC, and Duramed Pharmaceuticals, in direct

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contravention of the Court’s explicit order. See SAC, ECF 71. Plaintiff then failed to effect

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service of process on these defendants within 90 days of filing her SAC, as required under Rule

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4(m). See Fed. R. Civ. P. 4(m) (requiring service of process within 90 days after complaint is

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filed). Plaintiff also failed to respond to the Court’s Order to Show Cause why the SAC should

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not be dismissed as to Defendants FEI Women’s Health LLC, Ortho-McNeil Pharmaceutical,

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LLC, and Duramed Pharmaceuticals.

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Plaintiff’s failure to comply with the Court’s orders and with Rule 4(m) can serve as

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grounds for dismissal if the factors set forth above favor dismissal. See Yourish, 191 F.3d at 986.

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Here, four of the five factors strongly favor dismissal. Dismissal serves the public’s interest in

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expeditious resolution of litigation (factor 1), because Plaintiff’s failure to serve the SAC on the

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remaining defendants and failure to respond to the Court’s Order to Show Cause effectively have

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stalled the case. Plaintiff’s conduct has interfered with the Court’s need to manage its docket

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(factor 2), because Plaintiff has ignored the Court’s orders and the requirements of the Federal

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Rules of Civil Procedure. Failure to dismiss this action would prejudice the remaining defendants
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(factor 3), who are entitled to notice and resolution of Plaintiff’s claims. The public policy

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favoring disposition of cases on their merits (factor 4) does not favor dismissal. However, the

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Court sees little point in imposing less severe sanctions (factor 5), because Plaintiff has shown no

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interest in complying with this Court’s orders or with Rule 4(m). Accordingly, the Court

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concludes that the SAC is subject to dismiss as to all remaining defendants under Rule 41(b).

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In addition, Rule 4(m) provides an independent basis for dismissal. The rule provides that

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“[i]f a defendant is not served within 90 days after the complaint is filed, the court – on motion or

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on its own 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.” Fed. R. Civ. P. 4(m). The
Court’s Order to Show Cause gave Plaintiff notice that the Court was considering dismissal of the

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United States District Court
Northern District of California

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SAC as to all remaining defendants for failure to effect service of process within 90 days. See

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Order, ECF 81. Plaintiff failed to ask for additional time or otherwise respond.

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For these reasons, the SAC is DISMISSED as to Defendants FEI Women’s Health LLC,
Ortho-McNeil Pharmaceutical, LLC, and Duramed Pharmaceuticals.
The SAC having been dismissed as to the Teva Defendants for lack of personal

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jurisdiction, and as to the remaining Defendants for failure to prosecute and failure to effect

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service of process, the action is hereby DISMISSED WITHOUT PREJUDICE as to all

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Defendants.

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: November 5, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge

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