Barrett v. Johnson & Johnson

Filing 10

ORDER granting 6 MOTION by Johnson & Johnson to Dismiss for Failure to Timely Effect Service of Process and 9 MOTION by Johnson & Johnson to Strike Delinquent Opposition to 8 Response or, in the Alternative, to File Supplement to Defend ant's Reply in Support of Motion to Dismiss; directing that because Johnson & Johnson is the only named defendant in this case, this case is DISMISSED without prejudice, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 1/3/2018. (cc: counsel of record; any unrepresented party) (ts)

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 2327

THIS DOCUMENT RELATES TO:

Barrett v. Johnson & Johnson

Civil Action No. 2:13-cv-19979

ORDER
Pending is (1) a Motion to Strike Delinquent Opposition, filed by defendant
Johnson & Johnson on November 20, 2017 (“Motion to Strike”) [ECF No. 9], and (2)
a Motion to Dismiss for Failure to Timely Effect Service of Process, filed by defendant
Johnson & Johnson on October 5, 2017 (“Motion to Dismiss”). [ECF No. 6]. For the
reasons stated below, both the Motion to Strike and the Motion to Dismiss
are GRANTED.
I.

Background
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.
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

Products

Liability

Litigation,

No.

2:12-md-

2327, http://www.wvsd.uscourts.gov/MDL/ethicon/pdfs/PTO_20.pdf. Thus, the court
excused the plaintiff from formally serving process on the defendants here, if she
completed this simple procedure. Nevertheless, the plaintiff in this case failed to
effectuate service by either method within the time allotted under Federal Rule of
Civil Procedure 4(m). 1
Here, the plaintiff filed her complaint with the court on July 12, 2013
(Complaint [ECF No. 1]). The plaintiff was therefore required to either serve the
defendant under Rule 4 or comply with Pretrial Order # 20 by approximately
November 11, 2013, but never effectuated service by either method. (Defs.’ Mot. to
Dismiss [ECF No. 6]). In the Motion to Dismiss, the defendant seeks its dismissal
from this case pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m).
Although her deadline to respond to the Motion to Dismiss had passed, the
plaintiff filed a Response in opposition to the Motion to Dismiss on November 13,

Any reference to rule 4(m) of the Federal Rules of Civil Procedure is to the 1993 version in effect at
the time the plaintiffs filed the complaint with this court.

1

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2017 (“Response”) – nearly a month late. [ECF No. 8]. In her Response, the plaintiff
does not account for her untimeliness in opposing the Motion to Dismiss.
On November 20, 2017, the defendant filed the Motion to Strike, requesting
the court not consider the Response when addressing the Motion to Dismiss on
grounds that plaintiff improperly filed it several weeks late. Mot. to Strike 3-4. The
deadline to file a response to the Motion to Strike has now passed and, as of the date
of this order, the plaintiff has still not filed a response.
II.

Analysis
A. Motion to Strike
The defendant moves to strike the plaintiff’s Response as untimely under Local

Rule of Procedure 7.1(a)(7), which provides:
Memoranda and other materials in response to motions
shall be filed and served on opposing counsel and
unrepresented parties within 14 days from the date of
service of the motion.
There can be no question that the plaintiff filed her Response a few weeks after the
running of her deadline. Because the plaintiff failed to address the tardiness of her
Response, coupled with the absence of any response to the Motion to Strike itself, the
court finds it appropriate to review the Motion to Dismiss without consideration of
the plaintiff’s Response. See Watson v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA,
No. 5:13-CV-01939, 2013 WL 2000267, at *2 (S.D. W. Va. May 13, 2013) (striking
plaintiff’s response, noting that the plaintiff “did not seek leave of the Court prior to
filing his response” and “did not assert any statement of good cause, excusable neglect
or other explanation to support his untimely submission”); Pearson v. Prichard’s

Excavating & Mobile Home Transp., No. 3:13-CV-19629, 2014 WL 534221, at *1 n.5
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(S.D. W. Va. Feb. 10, 2014) (striking defendant’s untimely response, noting that the
defendant did not seek leave to extend the 14-day deadline or “argue that its delay in
filing the Response [was] due to excusable neglect”) (citing Federal Rule of Civil
Procedure 6(b)(1)(b) (“When an act may or must be done within a specified time, the
court may, for good cause, extend the time . . . on motion made after the time has
expired if the party failed to act because of excusable neglect.”). The Motion to Strike
is GRANTED.
B. Motion to Dismiss
The defendant moves 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.
As noted above, the plaintiff failed to effectuated service timely. In the absence
of a response in opposition on the record, the court ORDERS that the Motion to
Dismiss for Failure to Timely Effect Service of Process, filed by defendant 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 the 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,
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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 Johnson & Johnson is the only named defendant in this case, the court
ORDERS that this case be DISMISSED without prejudice. The court DIRECTS the Clerk
to send a copy of this Order to counsel of record and any unrepresented party.
ENTER: January 3, 2018

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