United States District Court, E.D. Wisconsin
GUY D. DALEY, STARLYNN DALEY, DANA HEAL, SHARON HEAL, ROBERT NIELSEN, and DEBRA NIELSEN, Plaintiffs, and MEDICARE, WISCONSIN PIPE TRADES HEALTH FUND, UNITED HEALTH CARE CONTINENTAL, and WEA TRUST, Involuntary Plaintiffs,
PORTLAND ORTHOPAEDICS LIMITED, PORTLAND ORTHOPAEDICS INC., SYMMETRY MEDICAL INC., MIPRO ORTHO PTE LTD, METALICITY LIMITED, PLUS ORTHOPAEDICS INC., PLUS ORTHOPAEDIC HOLDING AG, SMITH & NEPHEW INC., SMITH & NEPHEW PLC, ORCHID ORTHOPEDIC SOLUTIONS LLC, MAXX HEALTH INC., MAXX ORTHOPEDICS INC., MIPRO U.S. INC., PLUS ORTHOPAEDICS LLC, and JOHN DOE CORPORATIONS 1-50, Defendants.
Stadtmueller U.S. District Judge
matters are pending before the Court. First, on February 22,
2018, Plaintiffs and Defendant Orchid Orthopedic Solutions,
LLC (“Orchid”) filed a joint stipulation of
dismissal of the claims against Orchid without prejudice.
(Docket #32). The Court will adopt that stipulation.
See Fed. R. Civ. P. 41(a)(1)(A)(ii).
Plaintiffs have filed an unopposed motion for leave to file
their first amended complaint. (Docket #33). They report that
the amended complaint achieves several goals. First, it will
clarify information about Defendants Plus Orthopaedics Inc.
and Plus Orthopaedics, LLC. Second, it will remove Plaintiff
Debra Nielsen as a party. Third, it will join a new
defendant, DiSanto Technology, Inc., whose identity was only
recently discovered. Id. at 2. In light of the
parties' agreement on the matter of amendment and the
early stage of the case, the Court will grant leave to file
the first amended complaint. See Fed. R. Civ. P.
15(a)(2). However, the Court will direct Plaintiffs to
re-file their amended complaint-this time without an
accompanying motion for leave to do so-because the amended
complaint they attached to their motion bears the wrong date.
See (Docket #33-1 at 34). With that minor correction,
the amended complaint will be accepted.
Plaintiffs are reminded, as they were at the scheduling
conference last month, that the status of many of the
defendants in the case remains unclear. Some defendants have
not been served-or, at least, proof of service has not been
filed with the Court. For domestic defendants, including
Portland Orthopaedics Inc. and Symmetry Medical Inc., the
time for service expired nearly two months ago, and
Plaintiffs never requested or were granted an extension of
time to effect service. See Fed. R. Civ. P. 4(m);
Cardenas v. City of Chicago, 646 F.3d 1001, 1006
(7th Cir. 2011). Moreover, filing an amended complaint does
not restart the service clock except as to the new defendant,
DiSanto Technology, Inc. Bolden v. City of Topeka,
441 F.3d 1129, 1148 (10th Cir. 2006); Del Raine v.
Carlson, 826 F.2d 698, 705 (7th Cir. 1987); 4B Fed.
Prac. & Proc. Civ. § 1137 (4th ed. 2017). Of course,
the time limit in Rule 4(m) by its terms does not apply to
service on foreign corporations, Fed.R.Civ.P. 4(m), which in
this action include Portland Orthopaedics Limited, Mipro
Ortho PTE LTD, and Metalicity Limited. Finally, the following
defendants have been served but have not appeared through
counsel: Plus Orthopaedic Holding AG, Plus Orthopaedics LLC,
and Smith & Nephew PLC.
series of procedural shortcomings requires tidying up. Toward
that end, Plaintiffs must complete several tasks by
March 15, 2018. For the unserved domestic
defendants, Plaintiffs must file proofs of service showing
that service occurred within the original service period. If
they do not, the Court will dismiss them without further
notice. See Fed. R. Civ. P. 4(m) (once the service
period has expired, the district court must dismiss unserved
defendants unless an extension of time is granted). For the
unserved foreign defendants, Plaintiffs must file a notice
describing their efforts at service to date and the expected
time frame for service to be perfected. Finally, for the
defendants that have been served but have not appeared,
Plaintiffs must file appropriate affidavits for entry of
default under Rule 55 for each such defendant or suffer that
they too will be dismissed without prejudice. See
Fed. R. Civ. P. 55(a).
IT IS ORDERED that the parties'
stipulation of dismissal as to Defendant Orchid Orthopedic
Solutions, LLC (Docket #32) be and the same is hereby
ADOPTED; all of Plaintiffs' claims
against Orchid Orthopedic Solutions, LLC be and the same are
hereby DISMISSED without prejudice, each
party to bear its own costs, and Orchid Orthopedic Solutions,
LLC be and the same is hereby DISMISSED from
IS FURTHER ORDERED that Plaintiffs' unopposed
motion to file their first amended complaint (Docket #33) be
and the same is hereby GRANTED;
IS FURTHER ORDERED that Plaintiffs shall re-file a
corrected version of their first amended complaint (Docket
#33-1) as directed above no later than March 15,
IS FURTHER ORDERED that Plaintiffs shall, no later
than March 15, 2018, file proofs of service
as to the unserved domestic defendants, file a notice
regarding service as to the unserved foreign defendants, and
affidavits for entry of default as to the defendants who have
been served but have not appeared, all as directed above.
The document bears the date of filing
of the original complaint, September 26, 2017, but should be
dated February 22, 2018, the date the motion for leave was
filed. Of course, relation back under Rule 15(c) will not be
affected by the date on the document, see Fed. R.
Civ. P. 15(c), but filings with the Court should usually
reflect the date of their filing.
The large number of defendants in this
case stems primarily from the bankruptcy of the manufacturer
and distributor of Plaintiffs' hip implants, Defendants
Portland Orthopaedics Limited and Portland Orthopaedics Inc.
(Docket #33-1 ¶¶ 62-63). It is not clear whether
these companies still exist and, if not, whether they are
properly named as defendants. This issue should also be
addressed, if necessary, in Plaintiffs' notice.
Some of the entities that have been
served but for which no appearance has been entered have
related entities that are represented by counsel in this
case. If all that is required is an entry by existing counsel