Novartis scores another dismissal based on an Aredia®/Zometa® plaintiffs' failure to comply with Federal Rule 25.



D. Conn. -- United States District Court for the District of Connecticut


On August 1, 2014, the Honorable Janet B. Arterton, U.S. District Judge in Connecticut, ordered the dismissal with prejudice of the suit filed against Novartis in 2012 by Connecticut residents Arthur and Sandra Falls.  Judge Arterton’s ruling denied a tardy motion for substitution filed by plaintiffs’ counsel and granted Novartis’s motion to dismiss based on the plaintiffs’ violation of Federal Rule of Civil Procedure 25, which governs substitutions for parties who have died.  This is the 16th Aredia®/Zometa® case that has been dismissed by a federal district based on the failure to timely substitute a proper party for a deceased plaintiff.  A number of additional Aredia®/Zometa® cases have been dismissed voluntarily by the plaintiffs after apparent violations of Rule 25.

When Arthur Falls died in 2013, Novartis filed a Suggestion of Death for Mr. Falls after his counsel failed to do so.  Pursuant to Rule 25(a), the filing and service of a Suggestion of Death triggers a 90-day period in which a substitution motion must be filed on behalf of a person qualified to replace the deceased litigant.  The determination of who is qualified to become a substitute plaintiff is based on the state law where the plaintiff resided.  In Connecticut, only a duly appointed executor or administrator of a deceased litigant may continue a lawsuit following the death of that person.

Judge Arterton’s ruling focused on the fact that Rule 25’s 90-day deadline could have been extended if an appropriate motion had been filed under Federal Rule 6, demonstrating the party’s or his/her counsel’s “excusable neglect” for not filing a proper substitution motion within 90 days.  But counsel for Mr. Falls filed no Rule 6 motion and although he did claim excusable neglect in his tardy motion for substitution filed on behalf of Mrs. Falls, the court concluded that counsel did not satisfy the Supreme Court’s definition of “excusable neglect” set out in Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380 (1993).  In particular, the court rejected plaintiffs’ counsel’s arguments that his omissions were “inadvertent” and “excusable” because counsel was working very hard on many other Aredia®/Zometa® cases and because Novartis would not be prejudiced by granting more time for the substitution to take place.

Focusing on the Supreme Court’s guidance in Pioneer Inv. Servs. Co. and several decisions by the U.S. Court of Appeals for the Second Circuit, Judge Arterton addressed each of the factors for determining excusable neglect when a filing deadline has been ignored and found none of them satisfied.  The four factors are (1) the danger of prejudice to the opposing party, (2) the length of the delay and its potential impact, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.  After comparing each of these standards to the conduct of the plaintiffs’ counsel in theFalls case, the court found “no valid justification for moving for substitution three months late,” particularly because “attorney inadvertence on its own is not excusable neglect for an untimely motion for substitution.”  2014 WL 3810246, at *4.  The court also noted that the Second Circuit has “taken a hard line” on violations of time limits established by law, particularly where there is no showing of good reason and good faith for the delay.  Id. at *3.

Finally the court found no good-faith justification for the prolonged delay by the plaintiffs’ counsel in light of the fact that he was both aware of the requirements of Rule 25 and he received specific notice that he needed to move for a proper substitution in the Falls case.  Again citing the Supreme Court’s holding in Pioneer Inv. Servs. Co., Judge Arterton found that plaintiffs must be held accountable for the acts and omissions of their attorneys, which meant that their case must be dismissed.

Novartis is represented in this matter by Firm partner Ranjit S. Dhindsa.