Atminsky v. Merck & Co., Inc. et al
Filing
150
MEMORANDUM OPINION AND ORDER. Plaintiff's motion to dismiss under Rule 41(b) is denied. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Plaintiff is ordered to personally serve the Actonel Defendants with the complaint within 14 d ays of the date of this Order. The parties are directed to appear by telephone for a status conference on November 9, 2016, at 11:00 A.M., to discuss the possibility of resolving this case before remand. SO ORDERED. re: 143 FIRST MOTION to Dism iss for Lack of Prosecution filed by Procter & Gamble Pharmaceuticals, Inc., Aventis Pharmaceuticals, Inc. (Telephone Status Conference set for 11/9/2016 at 11:00 AM before Judge John F. Keenan.) (Signed by Judge John F. Keenan on 10/20/2016) (rjm).
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 10/20/2016
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
----------------------------------------X
SOUTHERN DISTRICT OF NEW YORK
EMA AYMINSKY,
-----------------------------------------------------------x
In re FANNIE MAE 2008 SECURITIES
Plaintiff,
LITIGATION
:
:
:
-against:
-----------------------------------------------------------x
08 Civ. 7831 (PAC)
08 MD 2013 (PAC)
09 Civ. 1019 (JFK)
MEMORANDUM OPINION
OPINION & ORDER
& ORDER
PROCTER & GAMBLE PHARMACEUTICALS INC.
AND AVENTIS PHARMACEUTICALS, INC.,
Defendants.
HONORABLE PAUL A. CROTTY, United States District Judge:
----------------------------------------X
JOHN F. KEENAN, United States District Judge:
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BACKGROUND
Before the Court is a motion by Defendants Warner Chilcott
The early years of this decade saw a boom in home financing which was fueled, among
(US), LLC and Sanofi US Services Inc.
1
(the "Actonel Defendants")
other things, by low interest rates and lax credit conditions. New lending instruments, such as
to dismiss this case under Rule 41(b) of the Federal Rules of
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Civil Procedure for failure to prosecute.
For the reasons set
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
forth below, the motion is denied.
assumption that the market would continue to rise and that refinancing options would always be
Plaintiff Ema Ayminsky originally filed this case in the
available in the future. Lending discipline was lacking in the system. Mortgage originators did
U.S. District Court for the Eastern District of Virginia against
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
Merck
&
Co.,
Inc.
("Merck") and Procter
&
Gamble Pharmaceuticals
originators sold their loans into the secondary mortgage market, often as securitized packages
Inc., alleging that her use of the prescription drugs Fosamax
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
and Actonel caused her to develop osteonecrosis of the jaw.
On
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
December 14, 2007, Plaintiff filed an amended complaint in the
and home prices began to fall. In light of the changing housing market, banks modified their
lending practices and became unwilling to refinance home mortgages without refinancing.
Warner Chilcott (US), LLC is the successor in interest to
Procter & Gamble Pharmaceuticals, Inc., and Sanofi US Services
Inc. 1 Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint”is to the Amended Complaint,
(formerly known as sanofi-aventis U.S. Inc.) are the
successorJune 22,interest to of this Motion, Pharmaceuticals, Inc. (Seetaken as true.
dated in 2009. For purposes Aventis all allegations in the Amended Complaint are
Defs.' Mem. at 1.)
1
1
1
Eastern District of Virginia adding Aventis Pharmaceuticals,
Inc., the other Actonel Defendant.
On December 20, 2007, the Judicial Panel on Multidistrict
Litigation entered a conditional transfer order transferring
Plaintiff's Fosamax-related claims to this Court as a member of
In re: Fosamax Products Liab. Litig., No. 06-MD-1789 (the
"MDL"), but separating and simultaneously remanding the Actonelrelated claims to the Eastern District of Virginia.
The Actonel
Defendants opposed the transfer, arguing that the claims against
them should also be transferred to this Court.
With the consent
of counsel for both Merck and the Actonel Defendants, Plaintiff
filed a notice of voluntary dismissal in the Eastern District of
Virginia action and re-filed the case in this Court on January
31, 2008.
The parties agree that the Actonel Defendants were
never served with the complaint after the re-filing in this
Court.
The case was accepted as a member of the MDL on February
15, 2008.
Following several bellwether trials and the execution of a
March 24, 2014 Master Settlement Agreement, Plaintiff and Merck
entered into a stipulated dismissal of Plaintiff's Fosamaxrelated claims, which the Court entered on August 21, 2015.
(Stipulation and Order of Dismissal with Prejudice, ECF No.
138.)
On June 14, 2016, the Court held a status conference,
with counsel for both sides appearing, to address Plaintiff's
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Actonel-related claims.
With leave of court, on July 1, 2016,
the Actonel Defendants filed the instant motion to dismiss under
Rule 41(b)
for failure to prosecute.
The Actonel Defendants argue that Rule 41(b) dismissal of
Plaintiff's Actonel-related claims is warranted because
Plaintiff abandoned those claims by failing to serve the Actonel
Defendants or prosecute her Actonel-related claims after the
case was filed in this Court.
41(b)
Mindful that dismissal under Rule
is a "harsh remedy to be utilized only in extreme
situations," U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d
248, 254
(2d Cir. 2004), the Court disagrees.
As no scheduling
order was entered with respect to Plaintiff's Actonel-related
claims, it would not have been unreasonable for Plaintiff's
counsel to conclude that those claims would be addressed
following the resolution of Plaintiff's Fosamax-related claims,
which were the basis for this case's inclusion in the MDL.
While approximately 10 months elapsed between the dismissal of
Plaintiff's Fosamax-related claims and the June 14, 2016
conference, Plaintiff did not violate any court orders and was
not warned that further delay would result in dismissal.
Under
the circumstances, the Court finds that Plaintiff's right to
have her claims decided on the merits outweighs any congestion
to the Court's calendar or prejudice to the Actonel Defendants
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from allowing the case to proceed.
Accordingly, Plaintiff's
motion to dismiss under Rule 41(b) is denied.
Pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, Plaintiff is ordered to personally serve the Actonel
Defendants with the complaint within 14 days of the date of this
Order.
The parties are directed to appear by telephone for a
status conference on November 9, 2016, at 11:00 A.M., to discuss
the possibility of resolving this case before remand.
SO ORDERED.
Dated:
New York, New York
October 20, 2016
~1~.yy~
JOHN F. KEENAN
United States District Judge
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