In re Ohio Execution Protocol Litig.

370 F.Supp.3d 812

IN RE: OHIO EXECUTION PROTOCOL LITIGATION,

This Order relates to: All Plaintiffs.

Case No. 2:11-cv-1016

United States District Court, S.D. Ohio, Eastern Division.

Signed March 26, 2019

OPINION AND ORDER DISMISSING UNKNOWN DRUG SOURCE DEFENDANTS

EDMUND A. SARGUS, JR., Chief United States District Judge

This consolidated § 1983 case raising multiple Constitutional challenges to the manner in which Ohio carries out executions is before the Court on the following:

• The Magistrate Judge's Show Cause Order of April 16, 2018 (ECF No. 1561);

• Plaintiffs' Response (ECF No. 1576);

• Defendants' Response (ECF No. 1768);

• Plaintiffs' Reply (ECF No. 1783);

• The Magistrate Judge's Report and Recommendations of June 14, 2018 (ECF No. 1798);

• Plaintiffs' Objections (ECF No. 1814);

• Recommittal Order (ECF No. 1821);

• Defendants' Response (ECF No. 1858);

• The Magistrate Judge's Supplemental Report and Recommendations of August 15, 2018 (ECF No. 1907);

• Plaintiffs' Objections (ECF No. 1913); and

• Defendants' Response in Opposition to Plaintiffs' Objections (ECF No. 1919).

On June 14, 2018, the Magistrate Judge sua sponte directed the parties to show cause why UNKNOWN PHARMACIES # 1-100, UNKNOWN PHARMACISTS # 1-100, UNKNOWN DRUG SUPPLIERS # 1-25, and JOHN DOES # 1-25 ("Drug Source Defendants") should not be dismissed as parties without prejudice, since they had never been served with process. (ECF No. 1561.) Plaintiffs responded on May 1, 2018 (ECF No. 1576); State Actor Defendants responded on May 22, 2018 (ECF No. 1768); and Plaintiffs replied on June 1, 2018 (ECF No. 1783). In a Report and Recommendations dated June 14, 2018 (ECF No. 1798) and a Supplemental Report and Recommendations dated August 15, 2018 (ECF No. 1907), the Magistrate Judge recommended that the Drug Source Defendants be dismissed as parties without prejudice pursuant to Federal Rules of Civil Procedure Rule 4(m) because they have never been served with process.

"Any dispositive report and recommendation by a magistrate judge is subject to de novo review ‘of those portions of the report or specified proposed findings or recommendations to which objection is made.’ " Render v. Warden, S. Ohio Correctional Facility , 889 F.Supp.2d 1014, 1019 (S.D. Ohio 2012) (citing Tuggle v. Seabold , 806 F.2d 87, 92 (6th Cir. 1986) ; 28 U.S.C. § 636(b)(1)(C) ; Fed. R. Civ. P. 72(b)(3) ). The de novo review of a magistrate judge's report and recommendation is non-deferential and requires the district court to "give fresh consideration to those issues to which specific objection has been made." United States v. Raddatz , 447 U.S. 667, 675, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (citation omitted).

Rule 4(m) of the Federal Rules of Civil Procedure provides in relevant part:

If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. * * *

Fed. R. Civ. P. 4(m). Under a plain reading of Rule 4(m), a plaintiff's failure to effectuate service on a defendant necessitates dismissal without prejudice, absent a showing of good cause. See, e.g. , Nafziger v. McDermott Intern., Inc. , 467 F.3d 514, 521 (6th Cir. 2006) ("Dismissal of the action ‘shall’ follow unless the ‘plaintiff shows good cause’ for failure to meet the [90]-day deadline." (quoting Fed. R. Civ. P. 4(m) );¹ see also Moncrief v. Stone , 961 F.2d 595, 596 (6th Cir. 1992). If a plaintiff shows good cause for the failure to comply with Rule 4(m), the district court must extend the time for effectuating service for an appropriate time. Moncrief v. Stone , 961 F.2d 595, 596 (6th Cir. 1992).

It is undisputed that the unknown Drug Source Defendants have never been served in the more than two-and-a-half years since Plaintiffs first named them as defendants in the Third Amended Complaint (ECF No. 546). The next question for the Court to resolve, therefore, is whether the Plaintiffs have demonstrated good cause for their failure to effectuate timely service.

According to the Sixth Circuit, one step toward establishing good cause is for the plaintiff to "show he/she made a reasonable and diligent effort to effect service." Habib v. General Motors Corp. , 15 F.3d 72, 74 (6th Cir. 1994) (citing Electrical Specialty Co. v. Road & Ranch Supply, Inc. , 967 F.2d 309, 312 (9th Cir. 1992) ). To that point, courts have held that "half-hearted efforts" do not constitute good cause. See, e.g. , Friedman v. Estate of Presser , 929 F.2d 1151, 1157 (6th Cir. 1991) (citing Lovelace v. Acme Markets, Inc. , 820 F.2d 81, 84, (3rd Cir. 1987) ; Hart v. United States , 817 F.2d 78, 81 (9th Cir. 1987) ; Braxton v. United States , 817 F.2d 238, 240 (3rd Cir. 1987) ; Geiger v. Allen , 850 F.2d 330, 333 (7th Cir. 1988) ).

Plaintiffs argue that they had good cause for their failure to serve the unknown Drug Source Defendants because both Ohio's Execution Secrecy Bill, Ohio Rev. Code § 2949.221 -.222 ("secrecy bill") and this Court's protective orders (ECF Nos. 629 and 838) prevented Plaintiffs from learning the identities of the Drug Source Defendants.² (ECF No. 1576, at PageID 69513-16.) Plaintiffs insist that despite every avenue for discovering the identities of the Drug Source Defendants being impeded, Plaintiffs have made good faith efforts to learn those identities. (Id. , at PageID 69517-18.) Plaintiffs point to the fact that they served twenty Rule 45 third-party subpoenas on different compounding pharmacies required to produce documents to the Ohio Department of Rehabilitation and Correction ("ODRC"), and a Rule 45 subpoena on the Ohio State Board of Pharmacy, to obtain the identities of possible Drug Source Defendants, only to learn that the compounding facilities had no responsive documents and to receive from the Ohio State Board of Pharmacy a list of tens of thousands of possible entities. Plaintiffs thus renew their requests for the Court to modify its protective orders, and also implore the Court to await the Ohio Supreme Court's decision in a case involving challenges to Ohio's Execution Secrecy Law, to wit: State ex rel. Hogan Lovells U.S., L.L.P. v. Department of Rehab. & Corr. , No. 2016-1776. (ECF No. 1576, at PageID 69518-21.)

The Magistrate Judge found "that Plaintiffs have acted diligently in their efforts to discover the identity of the Drug Source Defendants by seeking to set aside the secrecy bill and opposing the protective order[,]" but that Plaintiffs had not demonstrated good cause for their failure to effect timely service because "the evidence is equivocal regarding efforts to learn the identities of the Drug Source Defendants by means other than discovery from the State Defendants." (ECF No. 1798, at PageID 73347.) The Magistrate Judge noted that the service of Rule 45 subpoenas was not fruitful and questioned how a decision by the Ohio 818Supreme Court in Hogan Lovells would solve Plaintiff's dilemma. (Id. at PageID 73347-48.) The Magistrate Judge thus found no good cause and no reason to modify the protective orders in this case. (Id. at PageID 73349.)

Plaintiffs object first to what they characterize as the Magistrate Judge's legal error in failing to begin his analysis by determining whether there was good cause for the Plaintiffs' failure to effect timely service. (ECF No. 1814, at PageID 74146-47.) In his Supplemental Report and Recommendations, the Magistrate Judge noted, "[a]ctually, the first finding Rule 4(m) requires is whether service has been made within ninety days of filing the complaint. If not, the Court ‘must dismiss the action without prejudice’ against the unserved defendant." (ECF No. 1907, at PageID 74764.)

Upon de novo review, the Court agrees with the Magistrate Judge and OVERRULES Plaintiff's objection. As the Court noted above, under a plain reading of Rule 4(m), a plaintiff's failure to effectuate service on a defendant necessitates dismissal without prejudice, absent a showing of good cause. See, e.g. , Nafziger v. McDermott Intern., Inc. , 467 F.3d 514, 521 (6th Cir. 2006) ("Dismissal of the action ‘shall’ follow unless the ‘plaintiff shows good cause’ for failure to meet the [90]-day deadline." (quoting Fed. R. Civ. P. 4(m) ); see also Moncrief v. Stone , 961 F.2d 595, 596 (6th Cir. 1992). Whether a plaintiff can demonstrate good cause is not the first determination that Rule 4(m) requires.

Next, Plaintiffs agree with the Magistrate Judge's conclusion that they were diligent in their efforts to identify the Drug Source Defendants by challenging Ohio's secrecy bill and the Court's protective orders, but object to the Magistrate Judge's characterization of the evidence of Plaintiffs' efforts to identify the Drug Source Defendants going forward as "equivocal." (ECF No. 1814, at PageID 74147-48.) As the Court noted above, the Magistrate Judge stated that the service of Rule 45 subpoenas was not fruitful and questioned how a decision by the Ohio Supreme Court in Hogan Lovells would solve Plaintiffs’ dilemma. (Id. at PageID 73347-48.) Ultimately, the Magistrate Judge concluded that "there is not, at present, reasonable prospect of identification and service[ ]" upon the unknown Drug Source Defendants. (Id. at PageID 73349.) In their objections to the Magistrate Judge's failure to find good cause, Plaintiffs construe the Magistrate Judge to have "found at least some evidence in Plaintiffs' favor[ ]" as to their efforts to identify the Drug Source Defendants. (ECF No. 1814, at PageID 74147.) "[D]espite the paucity of the Magistrate Judge's conclusions respecting good cause," Plaintiffs continue, "there is no other finding that would otherwise undermine at least the implicit finding of good cause arising from the finding that Plaintiffs have been diligent in their efforts ." (I...