Lockard et al v. Novartis Pharmaceuticals Corporation et al

Filing 8

REPORT AND RECOMMENDATION that the Magistrate Judge recommends that the motion to dismiss as to Lockard be denied and the Motion to dismiss as to Whipple be granted and that her case be dismissed as to all Defts without prejudice re (4 in 3:08-cv-00710, 6 in 3:08-cv-00583, 1642 in 3:06-md-01760). Signed by Magistrate Judge Joe Brown on 11/4/08. Associated Cases: 3:06-md-01760, 3:08-cv-00583, 3:08-cv-00710(km)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION In Re: AREDIA and ZOMETA PRODUCTS LIABILITY LITIGATION (MDL No. 1760) This Document Relates to 3:08-cv-00583 (Lockard) 3:08-cv-00710 (Whipple) ) ) ) ) ) ) ) )

No. 3:06-MDL-01760 Judge Campbell/Brown

TO: THE HONORABLE TODD J. CAMPBELL REPORT AND RECOMMENDATION The Defendant Novartis Pharmaceutical Corporation (NPC) has filed a motion to dismiss the cases of Lockard, 3:08-583 and Whipple, 3:08-710, on the grounds that the Plaintiffs have failed to serve NPC within the 120 days required by Rule 4(m) of the Federal Rules of Civil Procedure (Docket Entry 1642). The

Defendant APP Pharmaceuticals LLC (APP) joined in NPC's motion insofar as it relates to the Plaintiff Whipple, 3:08-710 (Docket Entry 1642). Both Defendants make special appearances solely to

contest the Court's jurisdiction due to a lack of service of process. The two Plaintiffs have responded through counsel (Docket Entry 1702). For the reasons stated below, the Magistrate Judge

recommends that the motion be denied as to Lockard and granted as to Whipple.

DISCUSSION In the Lockard case the Plaintiff notes that the

complaint was filed in April 2008, and transferred to this Court on June 10, 2008. They advised that they have now served summonses on the five Defendants in that case on either October 16, 17, or 18, 2008.1 They further advised that the PFS has been completed and will be
served by November 10, 2008. Novartis is correct that Federal Rules of Civil Procedure 4(m) does require service of process within 120 days and, that upon that failure, the Court can dismiss the complaint without prejudice. However, as the Plaintiff points out, this dismissal is not mandatory. Under the

circumstances of this case, the Magistrate Judge does not believe that NPC has suffered any prejudice in the matter, particularly since it appears that the Plaintiff Lockard is in the process of serving the PFS. Accordingly, provided that the Plaintiff Lockard files proof of service in this matter by November 10, 2008, the Magistrate Judge recommends that the motion to dismiss as to this Plaintiff be Denied. Counsel for the Plaintiff Whipple has advised that she does not wish to pursue her case and does not oppose the dismissal of her case (Docket Entry 1702). A review of the file in her case reveals that she

has issued summonses as to Teva Parenteral Medicines, Inc., Novartis Pharmaceutical Corporation, Abraxis Pharmaceutical Products, Aesgn, Inc., and Bedford Laboratories, and Hospira, Inc. The docket sheet for this

Counsel for all Plaintiffs should check their files to be sure service of process has been completed. This is not rocket science. It is a simple review of the basic file.

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case does not show that any of the summonses were, in fact, served. Novartis has denied being served (Docket Entry 1642), and APP that

(erroneously named as Abraxis Pharmaceutical Products) also allege they have not been served (Docket Entry 1652).

In view of counsel's statement that Plaintiff Whipple does not wish to pursue her case, the Magistrate Judge construes this as a request to dismiss the case without prejudice as to all Defendants. Accordingly, the Magistrate Judge recommends that these two Defendants' motions (Docket Entries 1642 and 1652) as to this Plaintiff be granted and that, additionally, in view of the statement of Plaintiffs' counsel that the entire case be dismissed without prejudice. RECOMMENDATION For the reasons stated above, the Magistrate Judge recommends that the motion to dismiss as to Lockard be Denied and the motion to dismiss as to Whipple be granted and that her case be dismissed as to all Defendants without prejudice. Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days from receipt of this Report and Recommendation in which to file any written objections to this Recommendation, with the District Court. Any party opposing said objections shall have ten (10)

days from receipt of any objections filed in this Report in which to file any responses to said objections. Failure to file specific objections

within ten (10) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v.

Arn, 474 U.S. 140 106 S. Ct. 466, 88 L.Ed.2d 435 (1985), Reh'g denied, 474 U.S. 1111 (1986).

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ENTERED this 4th day of November, 2008. /s/ JOE B. BROWN United States Magistrate Judge

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