KLINENBERG v. ABBOTT LABORATORIES, 2:18-cv-07706-CCC-LDW

Background

The Court entered Case Management Order No. 65 directing plaintiffs in 1,535 PPI cases to (within 30 days) file proof of service on AstraZeneca LP, AstraZeneca Pharmaceuticals LP, and Merck (the AZ Defendants), voluntarily dismiss those defendants, or show cause why they should not be dismissed under Fed. R. Civ. P. 4(m).
Deadlines for plaintiffs’ responses and defendants’ oppositions were extended multiple times; many plaintiffs filed largely identical responses with limited case-specific proof or explanation.
In 1,181 cases identified on Exhibit A plaintiffs failed to show timely service: where service occurred it was one to over four years after the 90-day Rule 4(m) window had lapsed (944 cases >3 years late).
Plaintiffs did not present reasons amounting to "good cause" for late service, and the AZ Defendants showed prejudice from plaintiffs’ delay and wasted litigation resources.
The parties’ earlier Case Management Order No. 7 preserved defendants’ rights to assert Rule 12 defenses with leave of court, and the Court found the AZ Defendants had not waived service defenses by prior motions, appearances, or conduct in the MDL.
The Court denied plaintiffs’ requests for extensions (both mandatory for good cause and discretionary) and dismissed the AZ Defendants without prejudice in the cases listed on Exhibit A.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs proved "good cause" under Rule 4(m) to extend time for service	Tolling agreement and MDL procedures justify extension / plaintiffs had notice via tolling	No adequate explanation for delays; plaintiffs made no showing of reasonable, diligent efforts to serve	No good cause shown; factor analysis (efforts, prejudice, prior extension requests) favors dismissal
Whether Court should use its discretion to extend service time absent good cause	Court should exercise discretion because defendants had notice (tolling) and statute of limitations issues	Discretion should be denied given prejudice, lengthy delays, lack of defendant conduct to impede service, and counsel representation	Court declined to exercise discretion; dismissed defendants without prejudice
Whether AZ Defendants waived defense of insufficient service by prior motions/answers/appearances	AZ Defendants’ motions to dismiss, short answers, or notices of appearance incorporated long-form answers lacking Rule 12(b)(5) defenses, so they waived service defense	CMO No. 7 expressly preserved defendants’ Rule 12 rights; defendants lacked leave to raise other defenses earlier; no meaningful participation in individual cases that would constitute waiver	No waiver found; reservation of rights under CMO No. 7 and record conduct preserved service defense
Whether tolling agreement or other MDL activity gave AZ Defendants "actual notice" of each plaintiff’s action	Tolling agreement and MDL communications put AZ Defendants on notice of plaintiffs’ claims	Tolling spreadsheets did not identify defendants or product use per plaintiff; no proof of receipt of process or similar actual notice	Tolling did not establish actual legal notice of specific suits; plaintiffs’ reliance on tolling insufficient

Key Cases Cited

Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298 (3d Cir. 1995) (discusses district court discretion under Rule 4(m))
McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191 (3d Cir. 1998) (plaintiff bears burden to show good cause for late service)
Chiang v. U.S. Small Bus. Admin., [citation="331 Fed. App'x 113"] (3d Cir. 2009) (factors guiding district court’s discretionary extensions under Rule 4(m))
King v. Taylor, 694 F.3d 650 (6th Cir. 2012) (defendant’s active litigation participation may affect waiver analysis)
In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 162 F. Supp. 3d 247 (S.D.N.Y. 2016) (defendant conduct can justify extension though not necessarily amount to waiver)
Edwards v. Hillman, [citation="849 F. App'x 23"] (3d Cir. 2021) (recognizing discretionary relief when good cause not shown)