Faulkner v. Ethicon, Inc. et al

Filing 7

ORDER The 5 MOTION by Ethicon, Inc., Johnson & Johnson to Dismiss for Failure to Timely Effect Service of Process is DENIED without prejudice; the plaintiff must serve a completed Complaint and Plaintiff Profile Form on the defendants on or before 6/31/2018; failure to comply with this Order will result in dismissal upon motion by Ethicon. Signed by Judge Joseph R. Goodwin on 5/29/2018. (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:

Betty Faulkner v. Ethicon, Inc. et al.

Civil Action No. 2:14-cv-22377
ORDER

Pending is a Motion to Dismiss for Failure to Timely Effect Service of Process,
filed by defendants Ethicon, Inc. and Johnson & Johnson on March 8, 2018 (“Motion”).
[ECF No. 5] The plaintiff did not respond. For the reasons stated herein, the Motion
is DENIED.
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. 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).
Rule 4(m), 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.
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 (stating that this
order applies to “each member related case previously transferred to, removed to, or
filed in this district,” in addition to cases subsequently filed). Thus, the court excused
the plaintiff from formally serving process on the defendants, if she completed this
simple procedure.
The plaintiff failed to effectuate service by either method within the time
allotted under Federal Rule of Civil Procedure 4(m). The defendants now move to
dismiss this case for insufficient service of process under Federal Rule of Civil
Procedure 12(b)(5).
There are filings on the docket by the plaintiff which may indicate that she
intends to pursue this matter further. Therefore, considering the administrative and
economic realities of multidistrict litigation, I conclude that affording the plaintiff a
final chance to comply with service of process, subject to dismissal if they fail to do
so, is just. See Fed. R. Civ. P. 1 (stating that the Federal Rules of Civil Procedure
“should be construed, administered, and employed by the court and the parties to
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secure the just, speedy, and inexpensive determination of every action and
proceeding”).
The defendants’ Motion is DENIED without prejudice. It is further ORDERED
that the plaintiff must serve a completed Complaint and Plaintiff Profile Form on the
defendants on or before June 31, 2018. Failure to comply with this Order will result
in dismissal upon motion by Ethicon.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: May 29, 2018

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