Gardiner et al v. Ethicon, Inc. et al
ORDER granting 30 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson to Dismiss for Failure to Timely Effect Service of Process; 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. Signed by Judge Joseph R. Goodwin on 12/11/2017. (cc: counsel of record; any unrepresented party) (kp)
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:
Gardiner, et al. v. Ethicon, Inc., et al.
Civil Action No. 2:13-cv-22370
Pending is a Motion to Dismiss for Failure to Timely Effect Service of Process,
filed by defendants Ethicon, Inc. and Johnson & Johnson1 on October 5, 2017
(“Motion”). [ECF No. 30]. 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 Johnson & Johnson includes any of these entities former or present
parent companies, subsidiaries, affiliated companies, directors, officers, design surgeons, employees,
distributors, or 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 July 12, 2013
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 approximately
November 11, 2013, but never effectuated service by either method. (Defs.’ Mot. to
Dismiss [ECF No. 30]).
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 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, 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.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party
ENTER: December 11, 2017
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