We blogged a lot about the Taxotere MDL.  From Lone Pine orders to denials of motions to amend in remand cases, we reported on some pretty good decisions.  The MDL court also dismissed a number of plaintiffs who failed to make timely service on the defendants, which we blogged about here and here. Today’s decision addresses a plaintiff who appealed her dismissal for failing to make timely service. Reeder v. Hospira, Inc. (In re Taxotere Docetaxel Prods. Liab. Litig.), 2025 U.S. App. LEXIS 4735 (5th Cir. Mar. 6, 2025).

Plaintiff filed her lawsuit in 2017. The defendant removed the case before service and it was transferred to the MDL. The MDL court then provided the plaintiff multiple opportunities to effect service—including warnings that failure to make service would result in dismissal with prejudice. Despite those multiple opportunities and explicit warnings, plaintiff never served the defendant. Five years after plaintiff filed the complaint, in 2022, the defendant move to dismiss. The MDL court dismissed the plaintiff’s claims with prejudice.

On appeal the Fifth Circuit noted that, where dismissals for failure to prosecute under Rule 41(b) are with prejudice, it employs a “searching” examination. The Fifth Circuit will affirm a Rule 41(b) dismissal with prejudice only on a showing of “(1) a clear record of delay or contumacious conduct by the plaintiff and (2) where lesser sanctions would not serve the best interests of justice.” Id. at *3 (internal quotations omitted).  The Fifth Circuit also considers whether certain aggravating factors are present, including whether the plaintiff rather than counsel was responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was intentional.

The court held that all of the necessary criteria for affirmance were satisfied. First, there was an incontrovertible record of delay. The delay of five years, in the face of “gracious extensions and warnings by the district court,” left no question on this point.

Second, the court held that a lesser sanction would not have served the best interests of justice. By providing the plaintiff a second and third chance at service, the district court effectively employed a lesser form of sanction—which the plaintiff ignored. Under these circumstances, the court could not identify a lesser sanction that would have served the best interests of justice.

Finally, the court found that at least one of the aggravating factors was present—prejudice to the defendant.  That prejudice resulted from the plaintiff’s failure to serve within the statute of limitations period.  In the Fifth Circuit the failure to serve within the limitations period is “extremely prejudicial because it affects all the defendant’s preparations.”  Id. at *5.  Once the statute of limitations has run, a defendant who has not been served “is entitled to expect that it will no longer have to defend the claim.”  Id.

Plaintiff had her second and third chances to serve the complaint in the MDL court. The Fifth Circuit saw no reason to give her another one.