Opinion
MDL 2789 2:17-MD-2789 (CCC)(LDW)
04-28-2023
IN RE: PROTON-PUMP INHIBITOR PRODUCTS LIABILITY LITIGATION
NOT FOR PUBLICATION
OPINION AND ORDER
CLAIRE C. CECCHI, U.S.D.J.
I. Introduction
This matter comes before the Court upon Case Management Order (“CMO”) No. 65, ECF No. 723, entered on December 2, 2021, which identified 1,535 cases in which AstraZeneca LP (“AZLP”), AstraZeneca Pharmaceuticals LP (“AZPLP”), and Merck & Co. Inc. d/b/a Merck, Sharp & Dohme Corporation (“Merck”) (collectively, the “AZ Defendants”) alleged that service of the summons and complaint had not been effected and in which no proof of service appeared on the docket of the case. CMO No. 65 ordered Plaintiffs in those cases within thirty days to (1) establish that service was effected on the AZ Defendants identified in Exhibit A to CMO No. 65, as required by Rule 4(m) of the Federal Rules of Civil Procedure by filing proof of service, (2) voluntarily dismiss the AZ Defendants, or (3) show cause why the AZ Defendants should not be dismissed within thirty days of entry of the Order. CMO No. 65, at 2 CMO No. 65 ordered Plaintiffs to file their responses on the dockets of the individual cases, and permitted the AZ Defendants to oppose within thirty days of each plaintiff's response. Plaintiffs were specifically advised that “[f]ailure to comply with the terms of this Order will result in the dismissal of the case as to the identified AZ Defendants.” CMO No. 65, at 2.
All references to Rules herein are to the Federal Rules of Civil Procedure.
At the request of the parties, the deadline for Plaintiffs to file responses to CMO No. 65 was extended to March 31, 2022, and then to June 30, 2022. See CMO No. 67, at § I.D, ECF No. 747; CMO No. 70, at ¶ B, ECF No. 769. The deadline for the AZ Defendants to oppose each plaintiff's response was extended to May 15, 2022, then to August 16, 2022, and then to October 17, 2022. See CMO No. 67, at § I.D, ECF No. 747; CMO No. 70, at ¶ B, ECF No. 769; CMO No. 78, at ¶ A, ECF No. 841.
II. Legal Standard
Rule 4 governs the requirements regarding serving a summons. In particular, Rule 4(m) requires that “[i]f a defendant is not served 90 days after the complaint is filed, the court - on motion or on its own after notice to 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.” Fed.R.Civ.P. 4(m). In the Third Circuit, establishing good cause requires a “demonstration of good faith on the part of a party seeking an enlargement and some reasonable basis for noncompliance with the time specified in the rules.” MCI Telecomms. Corp., 71 F.3d at 1097. In the absence of a showing of good cause for failure timely to effect service, the Court has discretion either to dismiss a case or permit an extension. Id. at 1098 (citing Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995)). It is the plaintiff's burden to demonstrate good cause for such failure to effectuate timely service or to persuade the Court to exercise its discretion and not dismiss the AZ Defendants from their cases. Spence v. Lahood, No. 11-3972, 2012 U.S. Dist. LEXIS 80015, at *15 (D.N.J. June 8, 2012) (citing McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998)).
Plaintiffs note that the version of Rule 4 quoted in MCI Telecomms is no longer applicable after an amendment in 1993. The amendment removed “good cause” as an absolute prerequisite for an extension of service. However, as explained above, the good cause standard still exists in Rule 4(m). The amendment merely allows courts, in the absence of good cause, to exercise their discretion to allow an extension if the circumstances warrant. Notably, the Court's Opinion and Order here is based on the current version of Rule 4(m).
III. Discussion
As stated above, CMO No. 65 ordered the identified Plaintiffs within thirty days to either establish that service was properly effectuated pursuant to Rule 4(m), voluntarily dismiss the AZ Defendants, or show cause why the AZ Defendants should not be dismissed. CMO No. 65 did not provide Plaintiffs with an extension of time to serve the Complaint, instead, it directed Plaintiffs to prove that service had in fact been effectuated or to “show cause why the AZ Defendants should not be dismissed.”
The 1,181 Plaintiffs in the cases identified on Exhibit A herein have failed to satisfy the requirements of CMO No. 65. Plaintiffs do not claim to have timely served the AZ Defendants in compliance with Rule 4(m). See CMO No. 7, at § II.D (“Absent agreement of the parties or subsequent Order of the Court, service of process shall be effectuated as required under Rule 4 of the Federal Rules of Civil Procedure.”). While there is disagreement between Plaintiffs and the AZ Defendants concerning the fact or date of service in some of the cases here, it is undisputed that in the cases in which the AZ Defendants were served, service was effected only after CMO No. 65 was entered. In fact, of these 1,181 cases (and utilizing the earlier purported date of service in the event that the parties did not agree on the date of service), service was made between one to two years after the ninety-day period in Rule 4(m) in 9 cases; between two to three years after the ninety-day period in 228 cases; and between three to just over four years after the ninety-day period in 944 cases. Further, no Plaintiff here has dismissed the AZ Defendants from their case. Finally, as further elaborated below, Plaintiffs have not shown cause why the AZ Defendants should not be dismissed. Accordingly, due to untimely service and lack of good cause shown, it is appropriate that the AZ Defendants be dismissed from the cases identified in Exhibit A.
Though not relevant in these cases, the Court notes that AZLP, AZPLP, and Merck agreed to accept service of a Complaint by email at PPIComplaints@icemiller.com. CMO No. 27, at § I.D, ECF No. 260
a. Plaintiffs Do Not Demonstrate Good Cause Mandating an Extension of Time to Serve
Plaintiffs' responses to CMO No. 65 do not demonstrate good cause excusing their lack of timely service pursuant to Rule 4(m). Good cause requires “a demonstration of good faith on the part of the party seeking an enlargement . . . and some reasonable basis for noncompliance with the time specified in the rules.” MCI Telecomms. Corp., 71 F.3d at 1097. To determine whether good cause exists, the Court considers “(1) reasonableness of plaintiff's efforts to serve (2) prejudice to the defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve.” Id. The primary focus must always be on “the plaintiff's reasons for not complying with the time limit in the first place.” Id. Yet here, Plaintiffs have not even attempted to show good cause for their failure to timely serve or addressed the reasons for untimeliness. See, e.g., Pl. Lawrence Lucerne's Resp. to Orders to Show Cause Regarding Service of Process, at 22-24, No. 2:19-cv-04209, ECF No. 8 (“Lucerne Resp.”). Accordingly, as the Court further explains, Plaintiffs have failed to demonstrate good cause for failure to timely serve in compliance with Rule 4(m).
As an initial matter, the Court notes that Plaintiffs responded to CMO No. 65 by filing virtually identical responses that do not reference the AZ Defendants' specific conduct. These responses attached an exhibit with limited information about the Plaintiffs' individual cases, but did not include any documentation to support their assertions in the exhibit. The information in these exhibits filed by Plaintiffs includes such information as the date of alleged service (if any), whether a defendant had filed a notice of appearance, whether a defendant had filed a short form answer, whether a Plaintiff Fact Sheet had been uploaded to Marker Group, whether a Defense Fact Sheet had been served, and whether a defendant had sent a deficiency letter related to the Plaintiff Fact Sheet. See, e.g., Lucerne Resp.; Pl. Michael Lopez's Resp. to Order to Show Cause Regarding Service of Process, Ex. A, No. 2:18-cv-04494, ECF No. 15 (“Lopez Resp.”). In addition, Plaintiffs' briefing does not address any reasons for the failure to timely serve and instead focuses on arguments concerning the AZ Defendants' purported waiver of service and the Court's authority for discretionary extensions. See Houser v. Williams, No. 16-9072, 2020 U.S. Dist. LEXIS 43518, at *6 (D.N.J. Mar. 12, 2020) (finding dismissal warranted where plaintiff did not serve the complaint for months after an agreed-upon extension and then failed to detail any steps he took towards serving defendant within the extended time afforded by the court).
Turning to the factors for evaluating good cause, the first factor examines the reasonableness of the plaintiff's efforts to serve the complaint. As noted, Plaintiffs offer no explanation for the failure to timely serve, nor an adequate description of reasonable steps that Plaintiffs took to effect timely service as required by Rule 4(m). And none of the Plaintiffs at issue here were close to satisfying timely service under Rule 4(m). As previously stated, in all 1,181 cases, service was effected at least one year after the ninety-day period under Rule 4(m) had lapsed; indeed, in 944 cases, or approximately 80 percent, service was effected over three years after the ninety-day period under Rule 4(m) had lapsed. Given Plaintiffs' lack of sufficient efforts to serve the complaint, this factor weighs heavily in favor of the AZ Defendants.
Under the second factor, the Court considers prejudice to the AZ Defendants by lack of timely service. Here, Plaintiffs' failure to serve caused the AZ Defendants to expend time and resources through investigation, consultation with opposing counsel, and advocating for and responding to case management orders - all to determine whether Plaintiffs intended to pursue litigation against them. W. Coasts Quartz Corp. v. M.E.C. Tech, Inc., 2017 WL 1944197, at *2 (D.N.J. May 9, 2017). Moreover, this Court has previously determined that the AZ Defendants had been prejudiced by the delayed service or non-service. See Order Regarding CMO No. 65, at 7, ECF No. 890. Given the prejudice to the AZ Defendants resulting from Plaintiffs' failure to timely serve, this factor also cuts against good cause. And even if Plaintiffs had demonstrated lack of prejudice to the AZ Defendants, “absence of prejudice alone can never constitute good cause to excuse late service.” MCI Telecomms Corp., 71 F.3d at 1097.
Finally, under the third factor, while Plaintiffs have now requested an extension of time to serve the AZ Defendants, they did so only after CMO No. 65 was entered, which was a year or more after the time to serve the AZ Defendants in compliance with Rule 4(m) had lapsed. See, e.g., Lucerne Resp.; Lopez Resp. Plaintiffs have not explained why they did not request an extension of time to serve the AZ Defendants until after CMO No. 65 was entered by this Court. Accordingly, this factor similarly weighs in favor of the AZ Defendants and against Plaintiffs' showing of good cause.
Considering the three factors used to evaluate whether good cause has been demonstrated, Plaintiffs here have not demonstrated good cause for their failure to serve the AZ Defendants in compliance with Rule 4(m).
b. Plaintiffs Have Not Persuaded the Court that a Discretionary Extension is Warranted
In the absence of a showing of good cause mandating an extension to effectuate service, the Court nonetheless has discretion to either dismiss the case or permit extension. Because Plaintiffs have not established good cause, see supra, they must rely on the Court's discretionary authority to excuse failures to comply with Rule 4(m). See Edwards v. Hillman, 849 F. App'x. 23, 25 (3d Cir. 2021) (citing Petrucelli, 46 F.3d at 1305). The Court's exercise of discretion in this area is guided by various factors, including: “actual notice of the legal action; prejudice to the defendant; the statute of limitations on the underlying causes of action; the conduct of the defendant; and whether the plaintiff is represented by counsel, in addition to any other factor that may be relevant.” Chiang v. U.S. Small Bus. Admin., 331 Fed. App'x 113, 116 (3d Cir. 2009); see also Spence, 2012 U.S. Dist. LEXIS 80015, at *15. Here, considering these factors, Plaintiffs have not met their burden in persuading the Court that such discretion should be exercised under these circumstances.
With respect to the first factor-actual notice of the legal action-Plaintiffs argue that the AZ Defendants were on notice of their claims through their tolling agreement, which provided Plaintiffs time to obtain information about their claims before filing a complaint. However, the fact that a plaintiff was on the tolling agreement and may potentially bring a claim against the AZ Defendants or another defendant does not mean that the AZ Defendants had actual legal notice that a particular plaintiff would be pursuing his or her claim against the AZ Defendants in a legal action.
In June 2018, the parties entered into a tolling agreement concerning the statute of limitations. In order to obtain the benefit of tolling under the tolling agreement, a claimant had to provide the following information to all defendants: name and date of birth of the PPI user, name(s) of any derivative claimant(s), city and state of residence, date of first PPI use, date of last PPI use, alleged injury, and name of claimant's counsel. The Plaintiffs' Steering Committee was to compile this information and submit it to the defendants on an Excel spreadsheet on a monthly basis. See Stip. Regarding Tolling of Stats. of Lims., ECF No. 232, at 1-2. The data required to be provided to all defendants in the tolling agreement did not identify specific defendants whose product(s) were allegedly used by individual plaintiffs.
In re Asbestos Prod. Liab. Litig. (No. VI), upon which Plaintiffs rely for their argument that a court may extend the time for proper service if the defendant had “actual notice of the pending action,” is instructive. 2014 WL 1903904, at *1 (E.D. Pa., May 12, 2014); see Lucerne Resp. at 9-10 (citing Asbestos). The issue there concerned the appropriateness of a specific method of service by mail under Ohio law-not untimely service that occurred anywhere from one to four years past the Rule 4(m) deadline. Notably, the court found that the defendants were on “actual legal notice” of the pending action because the plaintiffs provided proof of a green card signed by the defendant, evidencing receipt of the original process papers by defendants' counsel, which the court found acceptable under Ohio state law. Asbestos, 2014 WL 1903904, at *1. By contrast, Plaintiffs here have not offered any similar evidence of actual notice. Indeed, as the AZ Defendants argue, the tolling agreement “covered Plaintiffs who could not yet show proof of use as to a Defendant's product” and, moreover, did not identify a specific defendant or which PPI products were at issue as to a particular potential plaintiff. See, e.g., No. 19-cv-04209, ECF No. 10 at 10 n.3. Therefore, Plaintiffs' reliance on Asbestos is misplaced and they have not demonstrated that the AZ Defendants had actual notice of pending litigation.
Turning to prejudice to the defendant-the second factor-the Court reiterates its analysis when discussing the same factor in the context of good cause. See supra III.a (noting the AZ Defendants expended time and resources through their repeated attempts to determine whether Plaintiffs intended to pursue litigation against them, including their own independent inquiries, as well as meetings with counsel and the special master). Further, this Court has previously found in this MDL (with respect to a different defendant) that “[w]asted time and resources and inconvenience standing alone may constitute sufficient prejudice to warrant dismissal.” CMO No. 63 at 7 (citing Miller v. Advocare, LLC, No. 12-01069, 2013 U.S. Dist. LEXIS 71451, at *8-9 (D.N.J. May 21, 2013). Accordingly, this factor weighs against Plaintiffs' request.
Regarding the statute of limitations, the third factor, Plaintiffs argue that the applicable statute of limitations in most, if not all, of the actions subject to CMO No. 65 has expired. See, e.g., Lucerne Resp. at 21. However, “the expiration of the statute of limitations does not require the court to extend the time for service, as the court has discretion to dismiss the case even if the refiling of the action is barred.” MCI Telecomms. Corp., 71 F.3d at 1098. Given the length of time between filing and service in the cases of these Plaintiffs-in some cases over four years- Plaintiffs' argument that the potential lapse of the statute of limitations warrants extension is not compelling. Relatedly, Plaintiffs have not alleged that the AZ Defendants engaged in any conduct to impede or frustrate timely service. See Spence, 2012 U.S. Dist. LEXIS 80015, at *15 (fourth factor). These factors thus militate against a discretionary extension as well.
The final factor guiding the Court's discretion examines whether the plaintiff is represented by counsel. See Spence, 2012 U.S. Dist. LEXIS 80015, at *15. Plaintiffs here are all represented by counsel. And, in this context, “[e]ven when delay [in service] results from inadvertence of counsel, it need not be excused.” Petrucelli, 46 F.3d at 1307. This factor thus also weighs against a discretionary extension.
Weighing all of the above factors, the Court is not persuaded that exercising its discretion to grant an extension to effectuate service on the AZ Defendants is warranted. Moreover, in addition to the factors counseling against an extension, the Court's conclusion is further supported by Plaintiffs' failure to provide an explanation as to why they did not timely serve the AZ Defendants.
The AZ Defendants also argue that because Plaintiffs did not address their reasons for untimely service (and instead relied chiefly on arguments concerning waiver), Plaintiffs' reply to CMO 65 failed to comply with a court order, requiring dismissal of their cases on that independent basis. See, e.g., No. 19-cv-04209, ECF No. 10 at 6. The AZ Defendants cite certain Poulis factors to support this argument. Id. at 10. As explained above, the Court has considered Plaintiffs' lack of an explanation in its discussion of Rule 4(m) and discretionary extensions.
c. Plaintiffs Have Not Shown that the AZ Defendants Waived their Defense to Untimely Service
Plaintiffs generally assert that the AZ Defendants waived any defense related to untimely service by virtue of their conduct in this MDL litigation. Plaintiffs argue that dismissal of their claims against the AZ Defendants is inappropriate in those cases where (1) the AZ Defendants filed a motion to dismiss without raising service; (2) the AZ Defendants either filed an answer without raising service or answered before service; or (3) the AZ Defendants manifested some intention to defend the case through the AZ Defendants' conduct. See, e.g., Lucerne Resp. at § IV.B; Lopez Resp. at § IV.B. For the below reasons, the Court finds that the AZ Defendants have not waived their defense to untimely service.
The Court first turns to Plaintiffs' argument that the AZ Defendants waived their defense to lack of service in those cases where the AZ Defendants filed a motion to dismiss for purported failure to comply with the tolling agreement without specifically raising the defense. However, the AZ Defendants did not raise service in their motions to dismiss because an alternate procedure, proposed and agreed upon by the parties, was set forth in a stipulated court order, with their defenses expressly preserved by CMO No. 7. See CMO No. 7, ECF No. 112, at 7 (“Defendants also reserve all rights to move to dismiss . . . under Federal Rule of Civil Procedure Rule[] 12. Defendants shall only be permitted to file said motions to dismiss subject to leave of this Court.”). CMO No. 7 thus expressly restricted defendants from moving to dismiss individual plaintiffs under Rule 12 absent leave of this Court. Indeed, the federal rules bar a defendant from later moving to dismiss for insufficient service of process only when the party “could have raised these objections in their [earlier] motion to dismiss the complaint.” Denkins v. William Penn Sch. Dist., No. 20-02228, 2020 WL 5880132, at *3 (E.D. Pa. Oct. 2, 2020); accord Wright & Miller, 5C Fed. Prac. & Proc. Civ. § 1391 (“If one or more of these defenses are omitted from the initial motion but were ‘then available' to the movant, they are permanently lost.”). In filing their authorized dismissal motions pursuant to the tolling agreement and CMO No. 7, the AZ Defendants did not have leave to raise any other defense, including insufficient service as to a particular case. Having understood and agreed that such motions were to be deferred to a later date and with leave of the Court, it is not correct that the AZ Defendants, or any other defendant, waived their defense of service by failing to argue it in their motions to dismiss related to purported violations of the tolling agreement.
Plaintiffs' next argument-that the AZ Defendants waived service either by filing an answer without raising service or by answering before service-is similarly unavailing. Plaintiffs assert that, as a general matter, waiver of service may occur where a defendant files an answer as its first responsive pleading and the answer fails to plead the defense. See, e.g., Lucerne Resp. at 7, 13. Accordingly, Plaintiffs argue that there are three potential scenarios where service has been waived by answer. First, Plaintiffs claim that in any case where the AZ Defendants filed a short form answer, service was waived because the short form answer simply incorporated the AZ Defendants' initial long form answer. This, Plaintiffs maintain, is because the long form answer did not assert the defense of lack of service. See, e.g., Id. at 14. Second, since a defendant's notice of appearance in a specific case may serve as a short form answer, see Case Management Order No. 27 (ECF No. 265), Plaintiffs contend that a notice of appearance after service is functionally the same as a short form answer-it incorporates the long form answer, which does not assert the defense of lack of service. Finally, Plaintiffs argue that a notice of appearance before service waives this defense under the terms of Case Management Order No. 27 for cases filed after September 24, 2018. See, e.g., Lucerne Resp. at 8; see also CMO No. 27, at § 1.A.
As an initial matter, Plaintiffs' individual submissions here do not assert that the AZ Defendants filed a short form answer in any of their cases, and the dockets confirm no such short form answers exist. See, e.g., Lucerne Resp., Ex. A; Lopez Resp., Ex. A; see generally No. 2:19-cv-04209; No. 2:18-cv-04494. Plaintiffs' first argument is thus inapplicable to the cases listed in Exhibit A. Similarly, for the cases which are subject to CMO No. 27's provision that a notice of appearance before service waives the defense (i.e., cases filed on or after September 24, 2018), the dockets clearly reflect that, to the extent the AZ Defendants filed a Notice of Appearance, it was not until after service was (untimely) effected on them and after the entry of CMO 65. This leaves the Plaintiffs whose individual submissions assert the AZ Defendants filed a notice of appearance after service, which, they argue, waived the AZ Defendants' untimely service defense because those notices incorporated the long form answer without further raising such a defense. However, as discussed above, at that point, the AZ Defendants had specifically “reserve[d] all rights to move to dismiss … under Federal Rules of Civil Procedure Rule[] 12” when they (and Plaintiffs) agreed to CMO No. 7. CMO No. 7 at § G. Accordingly, the Court concludes that by filing a notice of appearance in a case in which the AZ Defendants had plainly reserved their right to challenge service, that notice of appearance did not negate the prior reservation and thereby waive the defense.
The Court also notes that even if, contrary to the record, the AZ Defendants had filed a short form answer in any of the cases at issue here, the AZ Defendants' reservation of rights from CMO No. 7 would mean that service was not waived.
Plaintiffs' final argument on waiver is that the AZ Defendants waived their defense of service through their conduct in the PPI litigation either as a whole or in individual cases. In support of their argument as to the AZ Defendants' conduct in the litigation as a whole, Plaintiffs rely on In re Cathode Ray Tube (CRT) Antitrust Litigation, No. 07-5944, 2014 U.S. Dist. LEXIS 78902 (N.D. Cal. June 9, 2014). In that case, certain defendants raised their Rule 12(b)(5) defense to service in a consolidated motion to dismiss, but subsequently abandoned that 12(b)(5) motion in a later filing and then continued to participate in litigation for four years. The court found that under these circumstances those defendants had waived their defense of lack of service. Id. at *84-88. The case is inapposite, however, as the AZ Defendants never previously raised-and subsequently abandoned-the defense of service in any of the cases identified here, and indeed was unable to without leave of the Court under CMO No. 7, as agreed to by the parties. Similarly, Plaintiffs' reliance on In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 162 F.Supp.3d 247 (S.D.N.Y. Jan. 21, 2016), is misplaced. There, the plaintiff's timely but defective service on the defendant's prior (and thus incorrect) address combined with the defendant's actions in participating in the litigation (including attending MDL status conferences in which the particular case was discussed and waiting until after the statute of limitations had expired before moving to dismiss the complaint for lack of service) contributed to the plaintiff being “lulled into believing it had effectively served” the defendant. Id. at 250. The court thus found that the defendant's conduct justified the court's exercising its discretion to extend the time for service, but, importantly, the court did not find that the defendant had waived its defense. Id. at 48-50. Plaintiffs here have not asserted that they timely served the AZ Defendants at the wrong address or were otherwise lulled into thinking that they had in fact properly served the AZ Defendants before CMO No. 65 was entered. Therefore, neither In re CRT nor In re MTBE justifies Plaintiffs' argument.
Additionally, Plaintiffs' general response argues that the AZ Defendants waived their defense of service by participating in the litigation of individual cases, citing In re: Ethicon, Inc., No. 2:13-cv-00758, 2016 U.S. Dist. LEXIS 148765 (S.D.W.V. Oct. 27, 2016). But there, the defendants acknowledged receipt of a plaintiff profile form, requested additional information from the plaintiffs regarding their claims, and threatened to pursue a remedy in court if the plaintiff did not comply with their request. Id. at *6. By contrast, none of the Plaintiffs in the 1,181 cases herein claim that they received a deficiency letter related to their Plaintiff Fact Sheet, or that the AZ Defendants threatened to pursue a judicial remedy if the plaintiff did not cure the deficiency. In short, unlike in the Ethicon case, none of these Plaintiffs has demonstrated that the AZ Defendants have meaningfully participated in the litigation in their particular case. Further, the Court rejects Plaintiffs' suggestion to impute the AZ Defendants' conduct in defending themselves in cases not subject to CMO No. 65 to suggest that the AZ Defendants waived their defense of service of process in the specific cases identified in Exhibit A hereto.
Plaintiffs also assert that the AZ Defendants have waited too long to assert their defense of service. Plaintiffs rely on the Sixth Circuit's decision in King v. Taylor; however, in that case, unlike here, the defendant actively litigated the case by, among other things, filing a joint Rule 26(f) report, participating in depositions, seeking to extend discovery deadlines, and joining in a status report in that particular case, and only moved to dismiss for lack of service at the summary judgment stage. King v. Taylor, 694 F.3d 650, 659-61 (6th Cir. 2012). Here, however, none of the 1,181 cases identified in Exhibit A is a Bellwether case or a Wave case and thus the AZ Defendants have not participated in discovery in the individual cases like the defendant in Taylor did. Further, as noted previously, stipulated CMO No. 7 precluded the AZ Defendants from filing a motion to dismiss for lack of service without leave of the Court.
IV. Conclusion
CMO No. 65 required Plaintiffs to (1) show they timely served the AZ Defendants pursuant to Rule 4(m), (2) dismiss the AZ Defendants from their case, or (3) show cause why this Court should not dismiss the AZ Defendants from their cases. Plaintiffs whose cases are on Exhibit A have failed to meet their burden of demonstrating good cause for failure to comply with CMO No. 65 and effectuate timely service, and have failed to persuade the Court to exercise its discretion not to dismiss the AZ Defendants from their cases. Accordingly, this Court denies Plaintiffs' requests for extensions and orders the AZ Defendants to be dismissed without prejudice from the cases identified in Exhibit A.
To the extent Plaintiffs in the cases identified in Exhibit A hereto have raised in their briefing any arguments not expressly addressed herein, the Court has considered and rejected them.
Accordingly, IT IS on this 24 day of April, 2023;
ORDERED that the AZ Defendants shall be DISMISSED without prejudice from the cases identified in Exhibit A hereto.
SO ORDERED.
Exhibit Omitted