Glenn Warne et al v. McKesson Corporation et al
MEMORANDUM OPINION & ORDER: Defendant Eli Lilly and Company's motion to dismiss 76 is DENIED, without prejudice. The plaintiffs have until 9/3/2015 to effect proper service upon the defendants. Signed by Judge Danny C. Reeves on 7/31/2015.(TJZ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
GLENN WARNE, et al.,
MCKESSON CORPORATION, et al.,
Civil Action No. 2: 15-113-DCR
This matter is pending for consideration of Defendant Eli Lilly and Company’s (“Eli
Lilly”) motion to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure.
[Record No. 76] Eli Lilly argues that the plaintiffs’ Complaint against it was never properly
served in accordance with Rule 4 of the Federal Rules of Civil Procedure. [Id.] However,
after balancing the equitable concerns, the Court will not dismiss the Complaint pursuant to
The plaintiffs initially filed this action on November 13, 2012, in the Superior Court
of Riverside County, California. [Record No. 1] Since its initial filing, this case has been
removed to the United States District Court for the Central District of California, remanded
back to California Superior Court, appealed to the United States Court of Appeals for the
Ninth Circuit, and transferred to this Court. [Record Nos. 1, 39, 68] The plaintiffs allege
that, during that time, they attempted service on Eli Lilly by mail at “818 W. 7th Street, Suite
930, Los Angeles, CA 90017.” [Record No. 95-5] On June 22, 2015, Eli Lilly filed the
current motion to dismiss under Rule 12(b)(5) for deficiencies in service. [Record No. 76]
A Rule 12(b)(5) motion challenges the method of serving the summons and
complaint. Nafziger v. McDermott Inter’l, Inc., 467 F.3d 514, 521 (6th Cir. 2006). The
question presented by the defendant’s motion is whether the manner of service was sufficient
under Rule 12(b)(5). To answer this question, the Court turns to Rule 4 of the Federal Rules
of Civil Procedure, which sets out the proper method and timing of service.
As amended, Rule 4(m) provides that if service “is not made on a defendant within
120 days after the filing of the complaint, the court . . . shall dismiss the action without
prejudice to that defendant or direct that service be effected within a specific time.” FED. R.
CIV. P. 4(m) (2007). The rule further states that, “if the plaintiff shows good cause for the
failure, the court shall extend the time for service for an appropriate period.” Id. In dicta, the
Supreme Court has interpreted the amended rule to “permit a district court to enlarge the
time for service ‘even if there is no good cause shown.” Henderson v. United States, 517
U.S. 654, 658 n.5 (1996) (quoting Fed. R. Civ. P. 4, Advisory Committee Notes); see also
Burnett v. Martin, 2007 U.S. Dist. LEXIS 53939 (E.D. Ky. July 24, 2007). Thus, it is within
this Court’s discretion to extend the deadline for service of process.
The undersigned has considered multiple factors in evaluating the defendant’s
motion. See Vergis v. Grand Victoria Casino & Resort, 199 F.R.D. 216, 218 (S.D. Ohio
2000). First, it was the responsibility of the plaintiffs to serve process in a timely fashion.
This lends some weight to dismissal. However, the Court is more persuaded by the Sixth
Circuit’s overall policy “of resolving disputes on their merits.” Id. Further, Eli Lilly has had
notice of the lawsuit and the related cases since at least March 12, 2013. [Record No. 95-4]
These factors weigh in favor of extending the plaintiff’s deadline to perfect service.
While the Court will not dismiss the claims against Eli Lilly and Company at this
time, counsel for the plaintiffs is advised that, absent a showing that the defendants have
taken action to evade service, it will not grant any further extensions of time to complete
service. Accordingly, it is hereby
ORDERED that Defendant Eli Lilly and Company’s motion to dismiss [Record No.
76] is DENIED, without prejudice. The plaintiffs have until Thursday, September 3, 2015,
to effect proper service upon the defendants.
This 31st day of July, 2015.
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