No Second Chance at Service for Taxotere Plaintiffs

We posted last year about plaintiffs who were dismissed from the Taxotere MDL for failure to serve defendants. To put it simply, the Federal Rules still apply in an MDL. 153 plaintiffs didn’t comply with the Rules, and their cases were dismissed. Not knowing when to walk away, as Kenny Rogers instructs, a number of these plaintiffs filed for reconsideration. The MDL Court rightly shut them down.

Plaintiffs filed their motions under Fed. R. Civ. P. 59(e) and 60(b). Rule 59(e) relief is to “correct a manifest error of law or fact” or to address newly acquired evidence or a change in the law, while 60(b) permits relief from judgment if there is “mistake, inadvertence, surprise, or excusable neglect,” newly discovered evidence, fraud, along with other reasons, including a catch-all for “extraordinary” circumstances. Plaintiffs could not meet these standards, and the Court denied reconsideration.  See In re: Taxotere (Docetaxel) Prods. Liab. Litig., No. MDL 16-2740, 2024 WL 1603571, at *1 (E.D. La. Apr. 12, 2024).

For the most part, plaintiffs’ arguments were a rehashing of arguments already made. The Court easily rejected these arguments, finding no error of law in its conclusion that there was contumacious conduct in counsel ignoring their obligation to serve defendants. The Federal Rule requiring service should be enough, but here the Court also specifically warned plaintiffs at a hearing that they needed to properly serve defendants and issued a CMO extending the time for service. That was more than enough to justify dismissal. The Court also rejected the argument that plaintiffs should get a pass because defendants didn’t notify them of the deficiencies. This should be obvious, but it is not defendants’ job to ensure plaintiffs comply with the rules.  As the Court put it, service is “an obligation of the plaintiff and the plaintiff only.” Id. at *1. The Court found support for its ruling in Fifth Circuit holdings that mistake of counsel is not enough for Rule 59/Rule 60 relief.

Along with the motion, the majority of the plaintiffs also submitted “newly discovered evidence,” which was anything but. Plaintiffs submitted affidavits of the unfortunate paralegals and legal assistants explaining how they screwed up service. Of course, there is nothing “newly discovered” about this evidence because the facts were known before the dismissals. And the Court wasn’t persuaded by the evidence given the extension of time already given. Plaintiffs also submitted evidence that defendants had engaged in the litigation (and thus knew about the cases) and had warned them about other deficiencies, but not this one. Nothing about this was “new” evidence, and again, as the Court had already observed, it’s the plaintiff’s job to ensure service, not defendants’.

Finally, the Court rejected plaintiffs’ Hail Mary “manifest injustice” argument. There wasn’t injustice of any kind given the long delay and contumacious conduct, and certainly not the “extraordinary” manifest kind. It would be bad enough to tolerate non-compliance with the rules in an individual case, but to do so in an MDL would be “disastrous.” Id. at *8. 

Plaintiffs may think that they can use the MDL system to skirt the rules, but this opinion confirms that strict adherence to the rules is more important—not less—in the MDL setting.