This post is from the non-Reed Smith side of the blog.

Today would not be the first time that we complained about current MDL processes and the need for changes that embrace early and rigorous vetting of plaintiffs’ claims.  There is no dispute that MDLs contain an abundance of meritless claims and, therefore there should be no dispute that having clear procedures for identifying them and weeding them out is in everyone’s best interest.  Unfortunately, it often takes years not only to shine light on the problem plaintiffs but also to get them dismissed.  Don’t get us wrong, when it comes to dismissals we firmly believe better late than never.  As it turns out, in the Proton Pump litigation late was not necessarily better.

Eighteen months ago, the Proton Pump MDL court recognized that almost 1000 pending plaintiffs had failed to serve their complaints on defendant.  In re Proton Pump Inhibitor Products Liability Litigation, 2023 WL 3173373, at *1 (D.N.J. May 1, 2023).  The court ordered those plaintiffs to either file proof of service, dismiss the defendant, or show good cause why the defendant should not be dismissed.  Importantly, the order did not give plaintiffs an extension of time to serve the complaint.  Id. at *2.  But that did not stop 640 plaintiffs from serving defendant after entry of the order (another 61 failed to serve at all).  And none of these plaintiffs were just a few days late.  Where service was made, it was between one and four years after the time allowed by Rule 4.  Id.  

The first issue the court decided was whether any of the plaintiffs demonstrated good cause warranting an extension of time to serve.  Since they served virtually identical good cause statements with no mention of defendant’s conduct and little mention of plaintiff’s individual cases—it was not a reach for the court to find good cause was missing. 

The factors for deciding good cause are the reasonableness of plaintiff’s efforts to serve, prejudice to the defendant, and whether plaintiff moved for an extension of time.  Considering the cookie-cutter submissions, plaintiffs offered the court no explanation for failing to serve nor an adequate description of any efforts made to serve.  The defendants had been prejudiced by expending time and resources just “to determine whether plaintiffs intended to pursue litigation against them.”  Id. at *3.  And plaintiffs did not move for an extension until after the court’s show cause order which was at least one year after the time to serve in each case. 

Finding no good cause, plaintiffs asked the court to grant a discretionary extension.  But plaintiffs also failed to meet those standards.  The first factor is actual legal notice.  Plaintiff argued that defendant was on notice of their claims because they were on a tolling agreement.  But at most, the tolling agreement informed defendant that these plaintiffs may potentially bring a claim, not that any particular plaintiff did file an actual claim.  Id.  Nor did the court find it persuasive that the statute of limitations had run for most plaintiffs given the length of time between filing and service and no allegations of any conduct by defendant to impede proper service.  Id. at *4.  Finally, all plaintiffs were represented by counsel and inadvertence of counsel need not be excused.  Id. 

Plaintiffs’ next argument was that defendant had waived its defense to untimely service by filing motions to dismiss that did not raise the issue, filing answers, or by engaging in the litigation overall.  Untimely service is a waivable defense.  But defendant’s motion to dismiss was governed by an order in the case that allowed it to only move to dismiss for failure to comply with the tolling agreement and expressly preserved all other defenses, which could only be raised with leave of court.  Since all other defenses were deferred, defendant did not waive its untimely service defense.  Id. at *5.  Nor did defendant file any answers in any of the cases at issue, negating that argument.  Finally, while defendant did participate in and defend against the litigation generally, plaintiff could not identify any specific action it took in any of the particular cases at issue that would suggest a waiver by conduct.  Id. at *6.  Therefore, all 640 cases were dismissed without prejudice.  It may have taken a few years to get there, but in the end it’s a good decision that thinned the MDL herd.