Martinez et al v. Ethicon, Inc. et al
ORDER granting 4 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson to Dismiss; defendants Ethicon, Inc., Ethicon LLC, and Johnson & Johnson are DISMISSED from this case without prejudice; Boston Scientific Corporation remains in this case as a named defendant; this civil action is TRANSFERRED to MDL 2326; and the Clerk is DIRECTED to disassociate this civil action as a member case in MDL 2327 and re-associate it with MDL 2326. Signed by Judge Joseph R. Goodwin on 12/8/2017. (cc: Clerk of the JPMDL; counsel of record; any Modified on 12/8/2017 (mek).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
IN RE: ETHICON, INC.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
THIS DOCUMENT RELATES TO:
Martinez et al. v. Ethicon, Inc. et al.
Civil Action No. 2:12-cv-09463
Pending is a Motion to Dismiss for Failure to Timely Effect Service of Process,
filed by defendants Ethicon, Inc. and Johnson & Johnson 1 on February 23, 2016
(“Motion”). [ECF No. 4]. For the reasons stated below, the Motion is GRANTED.
This case resides in one of seven MDLs assigned to me by the Judicial Panel
on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat
pelvic organ prolapse and stress urinary incontinence. In the seven MDLs, there are
approximately 28,000 cases currently pending, over 17,000 of which are in the
Ethicon, Inc. MDL, MDL 2327. Managing the MDLs requires the court to streamline
certain litigation procedures in order to improve efficiency for the parties and the
court. Some of these management techniques simplify the parties’ responsibilities.
As used herein, Ethicon, Inc. and Johnsons & Johnson includes any of these entities former or
present parent companies, subsidiaries, affiliated companies, directors, officers, design surgeons,
employees, distributors, detail representatives named in an action pending in MDL No. 2327.
For instance, the Federal Rules of Civil Procedure require a plaintiff to serve the
defendant a summons and a copy of the complaint. Fed. R. Civ. P. 4(c)(1). However,
in this MDL, the defendants agreed to waive formal service of process as long as the
plaintiff sends by email or certified mail “the short form complaint and, if in their
possession, a sticker page or other medical record identifying the product(s) at issue
in the case.” See Pretrial Order #20, In re: Ethicon, Inc. Pelvic Repair System
2327, http://www.wvsd.uscourts.gov/MDL/ethicon/pdfs/PTO_20.pdf. Thus, the court
excused the plaintiffs from formally serving process on the defendants here, if they
completed this simple procedure. Nevertheless, the plaintiffs in this case failed to
effectuate service by either method within the time allotted under Federal Rule of
Civil Procedure 4(m). 2
The defendants move to dismiss this case for insufficient service of process
under Federal Rule of Civil Procedure 12(b)(5). Rule 4(m), which governs the
sufficiency of service of process, provides:
If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period.
Here, the plaintiffs filed their complaint with the court on December 20, 2012
Any reference to rule 4(m) is to the 1993 version in effect at the time the plaintiffs filed the
complaint with this court.
(Complaint [ECF No. 1]). Therefore, the plaintiffs were required to either serve the
defendants under Rule 4 or comply with Pretrial Order # 20 by or about April 19,
2013, but never effectuated service by either method. (Defs.’ Mot. to Dismiss [ECF
In the instant Motion, the defendants are seeking their dismissal from this
case pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m). The deadline to
file a Response to the Motion has passed and, as of the date of this order, the plaintiffs
have still not filed a Response. As a result, the court ORDERS that the Motion to
Dismiss for Failure to Timely Effect Service of Process, filed by defendants Ethicon,
Inc. and Johnson & Johnson, is GRANTED. See Osborne v. Long , 2012 WL 851106,
at *10 n.5 (S.D.W. Va. 2012) (referencing authority for the proposition that federal
courts may grant a motion to dismiss without reaching the merits on grounds that
the plaintiff's failure to respond operates as a concession to that motion, or that
dismissal is appropriate as a sanction for failure to prosecute) (citing Fox v. American
Airlines, Inc., 389 F.3d 1291, 1294–1295 (D.C. Cir. 2004); Pomerleau v. West
Springfield Public Schools, 362 F.3d 143, 145 (1st Cir. 2004); Stackhouse v.
Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)).
Because there remains other defendants in this case that did not join the
motion to dismiss, the court ORDERS that only Ethicon, Inc., Ethicon LLC, and
Johnson & Johnson be DISMISSED from this case without prejudice. In
addition, because Boston Scientific Corporation remains in this case as a named
defendant, the court ORDERS that this civil action be TRANSFERRED to MDL 2326
The Clerk is DIRECTED to disassociate this civil action as a member case in MDL
2327 and re-associate it with MDL 2326.
The court further DIRECTS the Clerk to send a copy of this Order to counsel
of record and any unrepresented party.
ENTER: December 8, 2017
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