Brooks v. Davol, Inc. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE: DAVOL, INC./C.R. BARD,
INC., POLYPROPYLENE HERNIA
MESH PRODUCTS LIABILITY
LITIGATION
This document relates to:
Brooks v. Davol, Inc., et al.,
Case No. 2:22-cv-3992
Case No. 2:18-md-2846
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
ORDER
This matter is before the Court on Defendants C.R. Bard, Inc. and Davol, Inc.’s Motion to
Dismiss for Failure to Serve Complaint. (ECF No. 5.) Plaintiff has not responded.
“If a defendant is not served within 90 days after the complaint is filed, the court . . . must
dismiss the action without prejudice against that defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m). Case Management Order 9 sets out an email service
procedure as an alternative to formal service. (CMO 9, MDL 2846, ECF No. 61, PageID 978.)
If a plaintiff follows the procedure in CMO 9, Defendants agree to waive formal service of process.
(Id.)
Plaintiff filed this case on November 14, 2022. (ECF No. 1.) Defendants moved to dismiss
for inadequate service on October 17, 2024. (ECF No. 3.) This Court denied Defendants’ motion
without prejudice because, though Defendants asserted that Plaintiff did not follow the email
service procedure under CMO 9, they did not state whether Plaintiff failed to serve the Complaint
by any proper method. (ECF No. 4.) Defendants then filed the Motion to Dismiss currently before
this Court. (Mot., ECF No. 5.) In the Motion, Defendants confirmed that “Plaintiff has failed to
email a copy of the complaint or serve the complaint by any other proper method per Rule 4.” (Id.,
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PageID 16.) As a result, this Court is now satisfied that dismissal of this case is warranted pursuant
to Rule 4. See Fed. R. Civ. P. 4(m).
Accordingly, the Court GRANTS (ECF No. 5) Defendants’ Motion to Dismiss for Failure
to Serve Complaint. This action is DISMISSED without prejudice. The Clerk is DIRECTED to
enter judgment and close this case.
IT IS SO ORDERED.
1/21/2026 	s/Edmund A. Sargus, Jr.
DATE 	EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
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