MOORE v. ASTRAZENECA PHARMACEUTICALS LP
2:18-cv-07351
D.N.J.May 4, 2023Background:
- CMO No. 65 (Dec. 2, 2021) identified 1,535 PPI cases in which plaintiffs had not shown proof of service on AstraZeneca LP, AstraZeneca Pharm. LP, and Merck and ordered plaintiffs to (1) file proof of service, (2) dismiss the AZ defendants, or (3) show cause within 30 days.
- Deadlines were later extended, but 1,181 plaintiffs (Exhibit A) failed to establish timely service under Fed. R. Civ. P. 4(m) or to dismiss the AZ defendants.
- Where service occurred, it was uniformly late — in most cases years after the 90‑day Rule 4(m) period (944 cases >3 years late).
- Plaintiffs offered no factual explanations showing good cause for the delay; many filed near-identical, unsupported responses focused on waiver and discretionary relief rather than reasons for untimely service.
- The AZ defendants had reserved all rights under CMO No. 7; the court found plaintiffs’ waiver arguments unavailing and held plaintiffs had not shown prejudice, actual notice, or conduct by defendants that would justify relief.
- The court denied plaintiffs’ requests for extensions and dismissed the AZ defendants without prejudice in the Exhibit A cases.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs showed good cause under Rule 4(m) to extend service time | Plaintiffs argued tolling and MDL processes justified delay or that defendants waived service defenses | Defendants argued plaintiffs made no showing of good faith or reasonable steps to serve and were largely years late | No good cause shown; Rule 4(m) requires dismissal absent good cause |
| Whether the court should nonetheless exercise discretion to extend time absent good cause | Plaintiffs urged discretionary extension (actual notice via tolling, statute‑of‑limitations concerns) | Defendants pointed to prejudice, lack of actual notice, long delays, and representation by counsel | Court refused discretionary extension after weighing factors (notice, prejudice, SOL, conduct, counsel) |
| Whether defendants waived service defenses by their conduct (motions, answers, appearances) | Plaintiffs claimed waiver where defendants filed motions/answers, short form answers, or appeared in MDL | Defendants cited CMO No. 7 reservation of rights and limited participation that did not concede service | No waiver: CMO No. 7 preserved service defenses; defendants did not meaningfully litigate specific cases to waive service |
| Whether tolling agreement or other MDL communications provided actual notice sufficient to avoid dismissal | Plaintiffs relied on tolling spreadsheets and MDL activity to show defendants knew claims existed | Defendants showed tolling data did not identify specific defendant/product or proof of service; no evidence defendants received process for specific plaintiffs | Tolling/MDL communications did not establish actual legal notice of each individual action; insufficient to avoid dismissal |
Key Cases Cited
- MCI Telecomms. Corp. v. AT&T Co., 71 F.3d 1097 (3d Cir. 1995) (good‑cause standard and Rule 4(m) framework)
- Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298 (3d Cir. 1995) (court discretion to permit extension absent good cause)
- McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191 (3d Cir. 1998) (plaintiff bears burden to justify service delays)
- Chiang v. U.S. Small Bus. Admin., [citation="331 F. App'x 113"] (3d Cir. 2009) (factors guiding discretionary Rule 4(m) relief)
- King v. Taylor, 694 F.3d 650 (6th Cir. 2012) (waiver where defendant actively litigated the particular case)
- Edwards v. Hillman, [citation="849 F. App'x 23"] (3d Cir. 2021) (discretionary relief under Rule 4(m))
- In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 162 F. Supp. 3d 247 (S.D.N.Y. 2016) (defendant conduct can justify relief in certain circumstances but does not automatically waive service defense)