Filed: May 07, 2018
Latest Update: May 07, 2018
Summary: MEMORANDUM OPINION & ORDER JOSEPH R. GOODWIN , District Judge . Pending before the court is the Defendant's Motion to Dismiss with Prejudice [ECF No. 13] filed by Boston Scientific Corporation ("BSC"). BSC seeks dismissal of the case with prejudice based on the plaintiff's failure to provide a completed Plaintiff Fact Sheet in accordance with Pretrial Order # 175 [ECF No. 11]. The Certificate of Service attached to BSC's Motion, which is signed by counsel for BSC, states the following: I
Summary: MEMORANDUM OPINION & ORDER JOSEPH R. GOODWIN , District Judge . Pending before the court is the Defendant's Motion to Dismiss with Prejudice [ECF No. 13] filed by Boston Scientific Corporation ("BSC"). BSC seeks dismissal of the case with prejudice based on the plaintiff's failure to provide a completed Plaintiff Fact Sheet in accordance with Pretrial Order # 175 [ECF No. 11]. The Certificate of Service attached to BSC's Motion, which is signed by counsel for BSC, states the following: I h..
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MEMORANDUM OPINION & ORDER
JOSEPH R. GOODWIN, District Judge.
Pending before the court is the Defendant's Motion to Dismiss with Prejudice [ECF No. 13] filed by Boston Scientific Corporation ("BSC"). BSC seeks dismissal of the case with prejudice based on the plaintiff's failure to provide a completed Plaintiff Fact Sheet in accordance with Pretrial Order # 175 [ECF No. 11].
The Certificate of Service attached to BSC's Motion, which is signed by counsel for BSC, states the following:
I hereby certify that on April 12, 2018, I electronically filed the foregoing with the Clerk using the CM/ECF system which will send notification of such filing to the CM/ECF participants registered to receive service in the member cases.
Def.'s Mot. to Dismiss with Prejudice 3. As stated in the Certificate of Service, BSC can only certify delivery of the Motion to those parties that have registered to receive service through the CM/ECF system. Here, according to the record in this case, the plaintiff has not registered to receive service by electronic means. See Fed. R. Civ. P. 5(b)(2)(E) (stating that service by electronic means is permissible only when the person to be served consents in writing).
Before the court can address the merits of the Motion, BSC must certify that it has served these documents on the plaintiff appropriately. See Fed. R. Civ. P. 5(a)(1) (requiring pleadings filed after the original complaint to be served on every party); Fed. R. Civ. P. 5(d)(1) ("Any paper . . . that is required to be served—together with a certificate of service" must be filed "within a reasonable time after service.").
Therefore, the court ORDERS that the Motion to Dismiss with Prejudice is DENIED without prejudice.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.
