Martinez v. C. R. Bard, Inc. et al

Filing 16

MEMORANDUM OPINION AND ORDER The 14 MOTION by C. R. Bard, Inc. to Dismiss With Prejudice or in the Alternative Motion for Show Cause Order for Failure to Serve a Plaintiff Profile Form or Plaintiff Fact Sheet is DENIED without prejudice, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 2/21/2018. (cc: counsel of record; any unrepresented party) (mks)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: C.R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION

MDL 2187

THIS DOCUMENT RELATES TO:

Martinez v. C. R. Bard, Inc. et al

Civil Action No. 2:16-cv-11200

MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion to Dismiss With Prejudice or in the
Alternative Motion for Show Cause Order for Failure to Serve a Plaintiff Profile Form
or Plaintiff Fact Sheet, filed by C. R. Bard, Inc. (“Bard”) on December 15, 2017
(“Motion”) [ECF No. 14].
Bard moves for relief alleging that the plaintiff failed to provide a completed
Plaintiff Profile Form or Plaintiff Fact Sheet. In moving to dismiss, Bard filed a
motion identical to the one before the court in over one-hundred cases. In every
motion filed Bard’s Certification of Service states:
I hereby certify that on December 15, 2017, I caused the
foregoing document to be electronically filed with the Clerk
of Court using the CM/ECF system, which will send
notification of such filing to the CM/ECF participants
registered to receive service in these cases.
Bard’s Mot. to Dismiss with Prejudice or in the Alternative Mot. for Show Cause for
Failure to Serve a Pl. Profile Form or Pl. Fact Sheet at 10.
As stated, Bard 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, Bard 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, it is ORDERED that Motion to Dismiss With Prejudice or in the
Alternative Motion for Show Cause Order for Failure to Serve a Plaintiff Profile Form
or Plaintiff Fact Sheet 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

February 21, 2018