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It is time, once again, to talk about Multidistrict Litigation (MDL) case management.  But this time there will be more gratitude than grousing.

We wince when we hear judges talk about managing litigation.  Such management seems to be about many things (mostly about forcing settlement), and not much about deciding legal issues, and definitely not enough about disposing of garbage cases.  Litigation mismanagement, or nonmanagement, is an especially vexing problem in MDLs. Take a look at a docket sheet for an MDL and you will see many Case Management Orders (CMOS).  But do those CMOs have any teeth?  Often, not.  Plaintiffs still park meritless cases in MDLs, waiting to get their crumbs from inventory or global settlements.  

But sometimes a CMO in an MDL truly can have a salutary effect, even if some waiting is involved.  That’s what happened in In re Taxotere Docetaxel Prods. Liab. Litig., 2023 U.S. Dist. LEXIS 144998 (E.D. La. Aug. 18, 2023).  By now, most of you probably have some sort of handle on the Taxotere litigation.  Plaintiffs claimed that a chemotherapy drug caused permanent alopecia.  The claims brought included failure to warn and misrepresentation.  

Three plaintiffs in the Taxotere MDL failed to serve the defendants for several years, in complete disregard of CMO 35 in the MDL, which provided that “it is Plaintiffs’ responsibility to ensure that service is effected on or before August 31, 2022, after which Plaintiffs’ claims against no served Defendants will be subject to dismissal with prejudice in accordance with Federal Rule of Procedure 4(m).”  Rule 4(m) permits the court to dismiss a case without prejudice if the plaintiff fails to serve a defendant within 90 days of filing the complaint.  That’s all fine and good, but a dismissal without prejudice is not such a big deal.  (We used to call it lukewarm beer, and then we discovered that some lukewarm beer was pretty good.) A much much much better dismissal with prejudice is warranted when “there is a clear record of delay or contumacious conduct by the plaintiff” and “lesser sanctions would not serve the best interest of justice.” Dismissals with prejudice in the Fifth Circuit typically include considerations as to whether the delay was caused by the plaintiff or the attorneys, whether the defendant suffered actual prejudice, and whether the delay was caused by intentional conduct.  The defendants in the Taxotere MDL filed a Fed. R. Civ. P. 12(b)(5) motion to dismiss for lack of service.  The defendants thought they had a clear case of inexcusable delay and contumacious conduct.  They were right.

At a July 2022 status conference, the court issued a “final opportunity and direct warning” to all plaintiffs in the MDL that they needed to comply with CMO 35 and effect service by August 31, 2022.  One of the three plaintiffs tried to effect service in October 2022.  The other two did not even make that tardy effort.  The plaintiff who was tardy argued excusable neglect, based on the attorney’s good faith belief that there had been effective service.  The other two not even assert an excuse; rather, they argued that a Rule 4(m) dismissal without prejudice would actually be with prejudice, because the claims would be time-barred, and that the conduct at issue did not meet the heightened test (“contumacious” – remember?) for a dismissal with prejudice.  

Under Fifth Circuit precedent, the court had ample discretion.  A court could extend the time for service even when good cause is lacking, and one reason might be concern that the applicable statute of limitations would bar the refiled action. Why a court would ladle out such ill-conceived mercy is well past the capacity of our flinty hearts to understand.  But no worries (from the defense perspective) here, because the plaintiffs had earned no mercy. They had gone at least three years, and as many as five, in not serving the complaints.  We’ve been throwing the word “contumacious” around a bit, so let’s get the Taxotere court’s definition of that term: it is “the stubborn resistance to authority which justifies a dismissal with prejudice.” A classic form of such stubborn resistance is willful disobedience of a court order.  

That is precisely what happened here. The court gave a direct warning and issued a clear CMO that the plaintiffs willfully disregarded. The court, consequently, refused to exercise its discretion to ignore Rule 4. What about the fact that dismissal now would make refillings too late?  Too bad.  Indeed, the court saw the statute of limitations as the source of actual prejudice to the defendants.  Dismissal, not some lesser sanction, is warranted due to the prejudice to the defendant resulting from the failure to serve process within the statute of limitations period.  Defendants are entitled to peace after the statute of limitations expires.  

In the end, time is the most precious resource.  Time is undefeated. As Auden wrote, “Oh let not Time deceive you/you cannot conquer Time.”