CASE MANAGEMENT ORDER No. 72 Disposition of Unserved Cases

DAVID R. HERNDON, District Judge.

This Document Relates to: All Cases

This Order applies to cases properly filed in or transferred to this MDL. A number of cases are pending in which plaintiffs have failed to serve defendants within the time prescribed by CMO 9, CMO 31, or Rule 4 of the Federal Rules of Civil Procedure. It is therefore ordered that:

1. Within seven days of entry of this Order, defendants shall provide notice of this Order to plaintiffs in cases that defendants are aware of and in which defendants have no record of service. This notice shall be provided via letter by U.S. mail to plaintiff's counsel of record; if the plaintiff is unrepresented, then via letter to the plaintiff. PSC Liaison counsel shall be copied, for purposes of establishing mailing date. Service of this notice will be effective three days after the date of mailing of the letter. Failure by defendants to provide notice in any case in which it subsequently is discovered that any defendant has not been properly served shall not constitute a waiver of any objection to failure of service of process in any such case.

2. If a plaintiff believes that she already served defendants, plaintiff shall produce to defendants within 14 days of notice from defendants a receipt or other evidence of proof of service. Production of such proof shall satisfy the plaintiff's obligation under this Case Management Order.

3. Plaintiffs who have not served defendants or who have no proof of service as described above shall serve defendants pursuant to Case Management Order 9 within 45 days of the above-referenced notice from defendants.

4. Sixty days after notification to plaintiffs under Paragraph 1, defendants shall file a notice of failure-to-serve in the Master Docket and in each case that allegedly remains unserved. This notice shall not constitute an appearance, waiver of objection to non-service, or submission to jurisdiction with respect to the un-served case. If a plaintiff believes that she timely served her case, including pursuant to Paragraph 3 above, and that the notice of failure-to-serve is mistaken or that her case has been included on this list in error, plaintiff shall file proof of service within 15 days by filing same in her case.

5. Thirty days after the filing of Defendants' list, the Court will dismiss any still un-served case without prejudice pursuant to Federal Rule of Civil Procedure 4(m), absent (a) receipt of proof of service from plaintiff pursuant to Paragraph 4, or (b) a showing of good cause by plaintiff.

IT IS SO ORDERED.