Moss v. Wyeth Inc.
"The failure to abide by the Court's scheduling order without any showing of good cause is sufficient grounds to deny [a party's] motion for summary judgment," pursuant to NAS Electronics Inc. v. Transtech Electronics PTE, a 2003 decision of the Southern District of New York. In December 2006, the plaintiffs' decedent, Lynn Gardner Moss, passed away. The plaintiffs sued the defendant pharmaceutical company, alleging that Moss' consumption of the defendant's combination hormone replacement drugs, Premarin and Prempro, constituted a substantial factor in her development of breast cancer and death. The plaintiffs mailed a copy of the complaint and a waiver-of-service form to the defendant. Federal Rule of Civil Procedure 4(d) excuses formal service of process, if the defendant signs a waiver of service that is returned to the plaintiff and filed with the court. Service of process takes place when the waiver form is filed. In October 2004, the defendant's representative signed the waiver form and returned it to plaintiffs' counsel. In the midst of jury selection in May 2012, the defendant requested permission to file a motion for summary judgment, which the court granted. The defendant proceeded to argue, for the first time, that the plaintiffs failed to file the signed waiver-of-service form with the court, and the suit was not formally commenced, prior to the expiration of the three-year statute of limitations. When a court issues a scheduling order, a party can file a motion for summary judgment until the deadline in the scheduling order expires. A scheduling order required that the parties file all dispositive motions, on or before Nov. 23, 2011. There was no evidence of new developments in the law or previously undiscoverable facts that merited the late motion for summary judgment. Even if the defendant did not waive formal service in advance, in connection with an earlier multi-district litigation order, the defendant effectively waived any objection to insufficient service of process, because it filed affirmative defenses in 2005 and did not at that time dispute service of process or personal jurisdiction. The court denied the defendant's motion for summary judgment.