Maxwell v. Boston Scientific Corporation

Filing 21

MEMORANDUM OPINION & ORDER The 20 MOTION by Boston Scientific Corporation to Dismiss With Prejudice is DENIED without prejudice. Signed by Judge Joseph R. Goodwin on 5/7/2018. (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:

BOSTON SCIENTIFIC CORP.
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL No. 2326

THIS DOCUMENT RELATES TO

Cheryl Maxwell v. Boston Scientific Corporation
Civil Action No. 2:13-cv-29827
MEMORANDUM OPINION & ORDER
Pending before the court is the Defendant’s Motion to Dismiss with Prejudice
[ECF No. 20] filed by Boston Scientific Corporation (“BSC”). BSC seeks dismissal of
the case with prejudice based on the plaintiff’s failure to provide a completed Plaintiff
Fact Sheet in accordance with Pretrial Order # 175 [ECF No. 17].
The Certificate of Service attached to BSC’s Motion, which is signed by counsel
for BSC, states the following:
I hereby certify that on April 11, 2018, I electronically filed
the foregoing with the Clerk using the CM/ECF system
which will send notification of such filing to the CM/ECF
participants registered to receive service in the member
cases.
Def.’s Mot. to Dismiss with Prejudice 3. As stated in the Certificate of Service, BSC
can only certify delivery of the Motion to those parties that have registered to receive
service through the CM/ECF system. Here, according to the record in this case, the
plaintiff has not registered to receive service by electronic means. See Fed. R. Civ. P.

5(b)(2)(E) (stating that service by electronic means is permissible only when the
person to be served consents in writing).
Before the court can address the merits of the Motion, BSC must certify that
it has served these documents on the plaintiff appropriately. See Fed. R. Civ. P.
5(a)(1) (requiring pleadings filed after the original complaint to be served on every
party); Fed. R. Civ. P. 5(d)(1) (“Any paper . . . that is required to be served—together
with a certificate of service” must be filed “within a reasonable time after service.”).
Therefore, the court ORDERS that the Motion to Dismiss with Prejudice is
DENIED without prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

2

May 7, 2018