Barfield et al v. Wyeth Inc

Filing 88

MEMORANDUM RULING re 86 MOTION to Dismiss Goldline Laboratories Inc filed by Goldline Laboratories Inc. Signed by Judge S Maurice Hicks on 6/25/12. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

SHELIA D. BARFIELD, ET AL.

CIVIL ACTION NO. 09-2012

VERSUS

JUDGE S. MAURICE HICKS, JR.

WYETH INC., ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is defendant Goldline Laboratories Inc.’s (“Goldline”) Motion to
Dismiss. (Record Document 86). Goldline’s Motion to Dismiss is based on improper service
of process and the plaintiffs’ failure to comply with a Court order. Plaintiffs have not filed
an opposition to this motion. For the reasons that follow, Goldline’s Motion to Dismiss
(Record Document 86) is GRANTED.
Goldline brings this Motion to Dismiss for improper service of process under Federal
Rule of Civil Procedure 12(b)(5) for the second time. (Record Document 80, 86). In its
previous Memorandum Order denying Goldline’s original motion to dismiss, this Court
noted that plaintiffs had failed to properly serve Goldline. Even still, the Court exercised its
discretion under Rule 4m and granted plaintiffs an additional twenty-one days from May 2nd,
2012 to “provide the Court evidence of proper service on Goldline.” (Record Document 85
at 2). The Court warned that failure to do so would lead to this matter being “dismissed with
prejudice.” See id.
“If proper service is not made within 120 days of filing the complaint, the action is
subject to dismissal, without prejudice, by the district court after notice to the plaintiff.”
Young v. Scott Const. Equip. Co., LLC, 07-0863, 2008 WL 559692 (W.D. La. Feb. 29,

2008). Also, “[i]f the plaintiff fails...to comply with...a court order, a defendant may move to
dismiss the action or any claim against it.” Fed. R. Civ. P. 41 (b). “Unless the dismissal
order states otherwise, a dismissal under this subdivision (b) and any dismissal not under
this rule...operates as an adjudication on the merits.” See id.
Goldline’s Motion to Dismiss in unopposed. Further, as of the drafting of this
Memorandum Ruling, plaintiffs have not filed any evidence of proper service on Goldline.
Therefore, this matter must be dismissed for improper service of process and failure to
comply with a Court order. See Young v. Scott Construction Equipment Co., L.L.C., 2008
WL 559692.
Accordingly,
IT IS ORDERED that Goldline’s Motion to Dismiss (Record Document 86) be and
is hereby is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ case be and hereby is DISMISSED
WITH PREJUDICE.
The Clerk is ordered to close this matter.
THUS DONE AND SIGNED at Shreveport, Louisiana, on this 25th day of June,
2012.