We report, before we discuss today’s case, that we write in a state of high anticipation. Regular readers of this blog may recall that we are huge dog show fans (we have had the same seats to the annual Westminster Kennel Club show – the one that is on TV – for 25 years). We haven’t owned a purebred dog since 2011 when our last standard poodle died. We have a house full of rescues, canine and feline, and are huge supporters of animal rescue – our tax accountant appreciates the “charitable donations” deduction this facilitates each year. But we have always wanted one more standard poodle. It has been a rough year, on both the “macro” and “micro” levels. So, when our dear friend – and the breeder of our departed standards – offered us a chance to co-own a show puppy, we sent a bunch more money to rescues to assuage our conscience and gave ourselves permission to say “yes.” Our puppy, and its siblings, are due to be born this Thursday. When they are five or six weeks old, our friend will decide which is the most promising show dog (both parents are spectacular). The puppy will come live with us a few weeks later, and it will begin its show career at six months old. With us cheering from the sidelines. By next time we post, we should have a birth announcement.
Now on to today’s case. The decision – In re Taxotere Docetaxel Prods. Liab. Litig., 2022 U.S. Dist. LEXIS 132195 (E.D. La. July 26, 2002) – is short, and the discussion will be short, but we think the problem is big – the tip of a much-larger plaintiff-side MDL “iceberg.” The Taxotere MDL follows the typical model: there is a master “long form” complaint on file, and each new plaintiff files a “short form” complaint that ticks off the claims (from the long form complaint) that plaintiff is incorporating. The Taxotere long form complaint was filed in 2016, and the three plaintiffs in today’s decision filed their short form complaints in May 2017. Under Fed. R. Civ. P. 4(m), the plaintiffs were required to serve their short form complaints within 90 days of filing. Nearly five years after filing, none of the three plaintiffs had served the defendant with their short form complaints. In January 2022, all three plaintiffs finally effected service, whereupon the defendant moved to dismiss all of the complaints.
Fed. R. Civ. P. 4(m) provides;
If a defendant is not served within 90 days after the complaint is filed, the court . . . 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.
As the Taxotere court explained, “[t]he burden is on the plaintiff to show good cause as to why service was not effected timely, and the plaintiff must demonstrate least as much as would be required to show excusable neglect.” In re Taxotere, 2022 U.S. Dist. LEXIS 132195 at *3 (internal punctuation and citations omitted). But, the court emphasized, Rule 4(m) afforded the court discretion “to extend the time for service even in the absence of good cause.” Id. (citation omitted). Moreover, the court explained, if claims dismissed for failure to effect service would be time-barred on re-filing, “the dismissal should be treated as a dismissal with prejudice under [Fed. R. Civ. P.] 41(b),” which requires a “clear record of delay or contumacious conduct by the plaintiff and a finding that lesser sanctions would not serve the best interest of justice.” Id. (internal punctuation and citations omitted.
The three Taxotere plaintiffs made no attempt to establish good cause for their nearly-five-year failure to serve their complaints. Instead, they asserted that, under the “dismissal with prejudice” standard, the court should deny the Motions to Dismiss because the record “demonstrate[d] inadvertence, not clear delay or contumacious conduct.” Id. at *4.
And the court found that this more-stringent standard was not satisfied. It held:
Although the delay in effecting service was indeed lengthy, it has not threatened the integrity of the judicial process. Each Plaintiffs’ case is in the same or substantially similar stasis as the thousands of other non-bellwether plaintiffs in this MDL. Likewise, the record does not establish that Plaintiffs’ failure to effect service was the result of contumacious conduct. . . . [I]t is a party’swillful disobedience of a court order [that satisfies this standard]. There is no record of such conduct here. Rather, the evidence reveals that Plaintiffs discovered the deficiency on their own and cured it without the Court’s involvement.
Id. at *5-6 (internal punctuation and citations omitted). The court concluded, “Because there is no clear record of delay or contumacious conduct, the circumstances of these cases do not justify dismissal with prejudice. This Court will, therefore, exercise its discretion under Rule 4(m) and extend the time for service nunc pro tunc to January 31, 2022.” Id. at *6.
But here’s the problem: this decision buys into the plaintiff-favoring herd mentality that, in our humble opinion, corrupts the MDL process. Because these cases were just getting dumped into a docket containing thousands of other cases, the plaintiffs were excused from complying with the service rules. This is the same mentality that allows cases to languish for years, without any threshold showing of merit, in the hope of inclusion in a mass “settlement inventory” down the road. Whether cases are consolidated or not, each plaintiff is an individual, with individual claims. Each plaintiff should be required to comply with the applicable Rules and with the court’s orders or suffer dismissal. And each plaintiff should be required to demonstrate, early in the pendency of a case, that he or she used the defendant’s product and suffered a requisite injury (we favor widespread implementation of Lone Pine orders). Sure, excusing these three plaintiffs from the service deadline may not seem like a big deal within the larger picture. But rules are rules, and consolidation of large groups of cases should not operate to obfuscate individual plaintiffs’ rule violations. Moreover, overlooking plaintiffs’ intermittent service failures permits them to manipulate the docket, advancing cases they like and holding back cases they don’t.
We are scheduled to post again late in the week, and we hope to have puppy news (and maybe pictures!) by then. In the meantime, stay safe out there.