Heather Isringhausen Gvillo May 30, 2014, 1:28pm

PHILADELPHIA (Legal Newsline) - Asbestos Multidistrict Litigation Judge Eduardo Robreno has adopted a recommendation, granting shipowner defendants' motion to dismiss based on untimely, unspecific green cards.

On May 12, Robreno adopted the report and recommendation proposed by Magistrate Judge Elizabeth Hey in MDL docket 875 in the United States District Court for the Eastern District of Pennsylvania, granting in part and denying in part specific shipowner defendants' motion to dismiss.

Robreno granted the shipowner defendants' motions to dismiss where the plaintiffs failed to provide green cards specifically pertaining to certain defendants. However, he denied shipowner defendants' motions to dismiss where plaintiffs did provide specific green cards despite serving the defendants after the 120-day service of process deadline.

Citing the Bartel decision, Hey wrote that the MDL court held that service of process was proper under Ohio law if the plaintiffs could provide sufficient evidence verifying and confirming the defendant received notice of the pending action.

The court also concluded that a signed returned green card from the defendant was sufficient proof that the defendant received the original process papers.

As a result, Hey was directed to oversee the process of allowing the defendants to challenge the "authenticity and genuineness" of the green cards produced by the plaintiffs.

Therefore, Hey ordered the plaintiffs involved in shipowner cases to provide defendants with copies of the certified green cards in October.

The defendants responded on Dec. 16, challenging the authenticity and genuineness of the green cards. They alleged the plaintiffs' green cards did not evidence service and argued the cases should be dismissed.

Then on March 19, Hey issued a report and recommendation suggesting the defendants' motions be granted in part and denied in part.

Hey recommended the motions be denied for defendants who were specifically provided green cards and the motions be granted - thus dismissing the defendants - for cases where the plaintiff failed to provide green cards to specific defendants.

The defendants objected to Hey's recommendation on April 2, arguing the plaintiffs' green cards do not satisfy their burden of establishing service upon the defendants.

However, Hey found that this argument was explicitly rejected in the Bartel decision and chose not to revisit to issue.

They further contended that the plaintiffs' evidence is unreliable and not verifiable, arguing that internal database printouts and affidavits submitted in connection to the green cards cannot be relied upon.

The "defendants state that 'there is no way to verify the information presented, or to confirm that the 'green card' shown on the page does in fact pertain to service of the complaint for the plaintiff listed or started,'" the recommendation states.

The court disagreed. Hey stated that the plaintiffs produced the green cards, which sufficiently satisfied their burden of proving service of process.

The defendants also argued service should not be extended when the plaintiffs failed to serve the defendant within 120 days of filing a complaint. They claim 'good cause' does not exist, thus service deadlines should not be extended.

Hey wrote in her recommendation that according to the Rules of Procedure, the court must dismiss an action without prejudice if a defendant is not served within 120 days after the complaint is filed.

However, if a plaintiff can prove good cause for the failure, then the court must extend the service time allotted.

Hey added that the Third Circuit "interpreted this rule to mean that, even without good cause, the court can, in its discretion, provide additional time to cure rather than dismiss the defendants."

The plaintiffs do not argue that the defendants were untimely served, but they assert there will be no prejudice if the court allows them to cure the defect.

Because the plaintiffs provided green cards for the cases, the court concluded that any defect relating to untimely service could be cured by an extended timeframe.

Therefore, Hey recommended denying the defendants' motion to dismiss in cases where the plaintiff provided sufficient evidence of service of process by green card to each defendant.

Hey also recommended the court to make no ruling on cases governed by Michigan law, meaning those defendants' motions to dismiss are still pending.

In his adoption of the recommendation, Robreno also granted the plaintiffs' motion for reconsideration.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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