Ledbetter et al v. Ethicon, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER (Motion to Dismiss) denying 4 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson to Dismiss re: 1 Complaint, as more fully set forth herein; the plaintiffs are granted an extension to perfect service of process within 30 days of the entry of this order. Signed by Judge Joseph R. Goodwin on 10/27/2016. (cc: counsel of record; any unrepresented party) (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:
ETHICON, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL No. 2327
THIS DOCUMENT RELATES TO:
Ledbetter, et al. v. Ethicon Inc., et al.
Civil Action: 2:13-cv-00758
MEMORANDUM OPINION AND ORDER
(Motion to Dismiss)
Pending before the court is the defendants’ Motion to Dismiss for failure to
timely effect service process. [ECF No. 4]. The plaintiffs have responded and the
defendants have replied, making this matter ripe for my review. For the reasons
stated below, this motion is DENIED.
I.
Background
On January 15, 2013, the plaintiffs filed this case in the Ethicon Multidistrict
Litigation (“MDL”), which is 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 76,000 cases currently pending, over 30,000 of which are in the
Ethicon 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.
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 so 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.” Pretrial Order No. 20, MDL 2327 [ECF No. 303]. Thus, plaintiffs are
excused from formally serving process on the defendants, provided that they complete
this simple procedure. Nevertheless, the plaintiffs in this case acknowledge that they
failed to effectuate service by either method within the time allotted under the theneffective Rule 4(m) of the Federal Rules of Civil Procedure.1
The plaintiffs do, however, represent that they served the defendants with
their completed Plaintiff Profile Form (“PPF”), signed authorizations, and other
records on March 20, 2013. On March 21, 2013, the defendants sent a deficiency letter
to plaintiffs’ counsel stating that the defendants may seek dismissal of the plaintiffs’
case if they did not receive the information necessary to correct the deficiencies in the
PPF. These communications occurred within 120-days of the filing of the complaint—
the time permitted under Rule 4(m) of the Federal Rules of Civil Procedure for the
timely service of process. As further explained below, the court finds the defendants’
actions amount to a waiver of the defense of untimely service of process.
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On December 1, 2015, an amended version of Rule 4 took effect. Any reference to rule 4(m) is to the 1993 version
in effect at the time the complaint was filed with this court.
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II.
Legal Standard
a. Requirement for Service
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 January 15, 2013.
Complaint [ECF No. 1]. The plaintiffs were required to either serve the defendants
pursuant to Rule 4(m) or comply with Pretrial Order No. 20 by May 15, 2013. The
plaintiffs admit they did not effectuate service within this timeframe, but argue that
they had good cause for this oversight. While the court is unconvinced by the
plaintiffs’ good cause argument, this matter can be resolved by turning to the law
governing waiver.
b. Waiver
The Fourth Circuit has found that lack of service deprives the court of personal
jurisdiction over the defendant, but that the defendant can waive the defense of lack
of personal jurisdiction. Specifically, the court has held that if the defendant is on
notice or inquiry notice of the defense of untimely service of process and does not raise
the defense in either a pre-answer motion or, if no such motion is made, in its answer,
then that defense is waived. Pusey v. Dallas Corp., 938 F.2d 498, 501 (4th Cir. 1991).
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The court further clarifies that a waiver of this defense constitutes submission to the
personal jurisdiction of the court. Id. The Fourth Circuit has also determined that
“Rule 12(h) contemplates an implied waiver of personal jurisdiction by defendants
who appear before a court to deny the allegations of a complaint, but fail to make
personal jurisdiction objections at the time of their appearance.” Foster v. Arletty 3
Sarl, 278 F.3d 409, 413 (4th Cir. 2002) (citing Bethlehem Steel Corp. v. Devers, 389
F.2d 44, 46 (4th Cir. 1968)). In sum, the defense of defective service is waived when
the defendant makes an appearance before the court to deny an allegation of the
complaint or makes a responsive pleading without objecting to the failure to timely
serve.
Other courts also consider the defense of untimely service waived when the
conduct of a defendant leads a plaintiff to believe that service is adequate. See Blachy
v. Butcher, 221 F.3d 896, 910-11 (6th Cir. 2000); Trustees of Cent. Laborers’ Welfare
Fund v. Lowery, 924 F.2d 731, 732-733 (7th Cir. 1991); and Rockwell Med., Inc. v.
Yocum, No. 13-10480, 2013 WL 4760971, at *4 (E.D. Michigan 2013). The Fifth
Circuit adopted the rule that the defendants do not necessarily need to file an answer
to waive personal jurisdiction, rather taking “some step or proceeding in the cause
beneficial to himself or detrimental to the plaintiff other than one contesting only
jurisdiction” can serve as an appearance and waiver of the requirement for personal
jurisdiction. Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278, 281 (5th
Cir. 1987) (quoting Cactus Pipe & Supply v. M/V MONTMARTRE, 756 F.2d 1103,
1108 (5th Cir.1985)). More specifically, the Second Circuit found that the defendant
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waived the defense of defect service of process by attending a conference with a
magistrate and scheduling discovery and motion practice without mentioning the
defect of service, which could have been cured within the limitations period had the
defendant complained. Datskow v. Teledyn, Inc., Cont’l Products Div., 899 F.2d 1298,
1303 (2d Cir. 1990). Thus, many circuits agree that defendants can waive objections
to personal jurisdiction by indicating a willingness to defend the suit or taking other
action that would lead the plaintiff to believe service was adequate.
III.
Analysis
The defendants’ assertion that the court does not have personal jurisdiction
over them is inconsistent with their behavior thus far. While the defendants had not
previously filed any motions or appeared before the court, their interaction with the
plaintiffs clearly led the plaintiffs to believe that service of process was adequate. By
acknowledging receipt of the PPF, demanding additional information, and
threatening to pursue remedy in court if the plaintiff did not comply, the defendants
acknowledged the court’s jurisdiction over this case. Particularly considering the
sensitive nature of the information contained in the PPF, the only reasonable
conclusion is that the defendants manifested their intention to defend the suit and
have waived the defense of untimely service of process. It would indeed be an absurd
result, likely placing the defendants and their counsel in an ethical hole, if this court
allowed the defendants to request the plaintiff provide sensitive medical information
and encourage the plaintiff to expend resources pursuing litigation, only for the
defendants to assert, years later, that this court lacks jurisdiction. When the
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defendants indicate such a clear willingness to engage in litigation, they have waived
any defense for failure to timely serve.
IV.
Conclusion
For the reasons stated above, it is ORDERED that the defendants’ motion to
dismiss with prejudice [ECF No. 4] is DENIED. It is further ORDERED that the
plaintiffs are granted an extension to perfect service of process within 30 days of the
entry of this order. The court DIRECTS the clerk to send a copy of this Order to
counsel of record and any unrepresented party.
ENTER: October 27, 2016
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