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We have long lamented the apparent relaxation of the Federal Rules of Civil Procedure in multidistrict litigation, and it happened again recently in the Zostavax MDL.  We understand that the purpose of MDLs is to conduct coordinated pretrial proceedings, and we understand an MDL judge’s inclination to take a broader view of case management.  But the MDL statute grants just one extraordinary power—an MDL transferee judge “may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions.”  

The Federal Rules still apply.  Yet, they seem to have given way recently in Zostavax in a way that roundly benefited the plaintiffs.  At issue were 43 cases that one plaintiffs’ attorney filed over the course of a year, but did not serve.  It was undisputed that there was no excuse.  Counsel was “under the impression” that she had served the cases, but apparently the staff member who gave her that impression was mistaken.  The defendant therefore contacted counsel more than one year after the last-filed complaint and asked counsel to provide good cause for the delay, or else the defendant would file motions to dismiss.  Counsel promptly served the complaints—all of them long after Rule 4(m)’s 90-day deadline and some nearly two years after the deadline.  In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., No. 2:18-md-02848, 2023 U.S. Dist. LEXIS 138412, at *10-*11 (E.D. Pa. Aug 8, 2023). 

The defendant moved to dismiss, and the plaintiffs requested extensions.  And even though the district court found bluntly that “plaintiffs have not shown good cause why served had not been made,” it still granted extensions.  The district court acknowledged that the plaintiffs had no excuse.  The defendant, however, knew about the filing of all the actions, and its attorneys entered their appearances in each of the cases within days after they were filed.  Under the “totality of the circumstances,” it was the “better course” to allow the actions to proceed.  Id. at *14-*17. 

We have written quite a lot about the Zostavax MDL and have commented favorably on many of its rulings.  That includes entering a Lone Pine order aimed at weeding out worthless claims and entering well-reasoned orders on expert issues that knocked out many others.  Heck, the court’s order enforcing its earlier Lone Pine order was one of our top ten decisions of 2022

The order saving these plaintiffs from their failure to serve their complaints is decidedly out of character, and we have a number of beefs with it.  First, this is just one example of MDL judges interpreting federal rules in ways that favors plaintiffs.  We understand that MDL judges today deal with increasingly large numbers of cases, but large numbers do not themselves call for extraordinary relaxation of the rules. 

Second, the district court here faulted the plaintiffs for waiting too long, but it also faulted the defendant.  Why?  Because the defendant knew about the cases, entered appearances in the cases, and still waited up to two years to bring the lack of service to counsel’s attention.  For those of us in California, entering an appearance rings alarm bells because entering a general appearance in California state court waives service of process.  But this is federal court, where there is no such waiver.  As for the purported delay, the defendant had no duty to act, let alone raise the service issue before the court.  Sure, Rule 12 allows defendants to raise insufficient process and insufficient service of process as a defense, but these plaintiffs served no process at all.  We therefore question the district court’s finding that “Plaintiffs have not complied with Rule 4(m), and [the defendant] has not complied with the spirit if not the letter of Rule 12.”  Id. at *16.  The defendant had no duty to act, let alone file a Rule 12 motion to challenge the “sufficiency” of service that was never attempted. 

Third, not only did these plaintiffs get a second chance, most of them appear to have gained a significant advantage.  Thirty-four of the cases were in a group that the district court previously dismissed for lack of proof.  These 34 were not, however, in that order because they had not been served.  Id. at *12-*13.  As a result, this is an instance where the plaintiffs’ dilatory behavior saved their claims:  Instead of having their cases dismissed for lack of proof, they survived by hiding in the weeds, and now they get a second go.  We don’t expect any better outcome, but still. 

The core problem is the district court’s conclusion that “[b]oth sides waited far too long.”  What kind of standard does this erect for defendants?  Parties routinely monitor filings, so every sophisticated defendant, and even some who are not so sophisticated, will be aware of new filings.  Defendants have no duty to prompt their adversaries to serve their complaints, yet this district court seemingly faulted the defendant for failing to do exactly that.  We do not see the equivalence between plaintiffs and defendants on this one.