162 F. Supp. 3d 247

IN RE: METHYL TERTIARY BUTYL ETHER (“MTBE”) PRODUCTS LIABILITY LITIGATION This document relates to: Commonwealth of Pennsylvania v. Exxon Mobil Corporation, et al., 14 Civ. 6228.

Master File No. 1:00-1898

MDL 1358 (SAS)

M21-88

14 Civ. 6228

United States District Court, S.D. New York.

Signed January 21, 2016

*248Robin Greenwald, Esq., Robert Gordon, Esq., Weitz & Luxenberg, P.C., 180 Maiden Lane, New York, NY 10038, (212)558-5500, Liaison Counsel for Plaintiffs

James A. Donahue, III, Esq., Pennsylvania Office of Attorney General, 1435 Strawberry Square, Harrisburg, PA 17120, (717) 787-4530, Linda C. Barrett, Esq., Pennsylvania Governor’s Office of General Counsel, 333 Market Street, Harrisburg, PA 17101, (717) 783-6563, Michael D. Ax-line, Esq., Duane Miller, Esq., Miller, Ax-line & Sawyer, 1050 Fulton Avenue, Suite 100, Sacramento, CA 95825, (916) 488-6688, Daniel Berger, Esq.', Tyler E. Wren, Esq., Berger & Montague, P.C., 1622 Locust Street, Philadelphia, PA 19102, (215) 875-3098, Stewart L. Cohen, Esq., Robert L. Pratter, Esq., Michael Coren, Esq., Cohen, Plaeitella & Roth, 2001 Market Street, Suite 2900, Philadelphia, PA 19103, (215) 567-3500, Counsel for the Commonwealth

Lisa A. Gerson, Esq., McDermott, Will & Emery, LLP (NY), 340 Madison Avenue, New York, NY 10017, (212) 547-5400, Liaison Counsel for Defendants

Peter Ligh, Esq., Meghana D. Shah, Esq., Travis J. Mock, Esq., Sutherland Asbil & Brennan LLP, 1114 Avenue of the Americas, New York, NY 10036, (212) 389-5000, Counsel for Vitol S.A., Inc.

MEMORANDUM OPINION AND ORDER

SHIRAA. SCHEINDLIN, UNITED STATES DISTRICT JUDGE.

1. INTRODUCTION

This is a consolidated multi-district litigation (“MDL”) relating to contamination — actual or threatened — of groundwater from various defendants’ use of the gasoline additive methyl tertiary butyl ether (“MTBE”) and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. In this case, the Commonwealth of Pennsylvania (“the Commonwealth”) alleges that defendants’ use and handling of MTBE has contaminated, or threatens to contaminate groundwater within its jurisdiction. Familiarity with the underlying facts is presumed for the purposes of this Order.

Defendant Vitol S.A., Inc. now moves to dismiss for insufficient service of process. Should that motion be denied, Vitol also requests, with the Commonwealth’s consent,1 that the Court dismiss counts III, V, and VI of the Amended Complaint consistent with this Court’s decision dated July 2, 2015, which dismissed those counts as to similarly situated defendants.2 For the following reasons the motion to dismiss for insufficient service of process is DENIED, and the motion to dismiss counts III, V, and VI of the Amended Complaint is GRANTED.

The initial Complaint in this action was filed on June 19, 2014, in Pennsylvania state court. Subsequently, the Commonwealth attempted to serve process on Vitol at an address in New York and received electronic confirmation of delivery on July 7, 2014.3 The case was then removed to the *249Eastern District of Pennsylvania on July 17, 2014, and transferred to this MDL on August 18, 2014.4

Following the filing of the Amended Complaint on October 30, 2014, the Commonwealth served its first set of interrogatories on defendants.5 When Yitol did not respond to these interrogatories, the Commonwealth contacted Vitol and learned for the first time on August 18, 2015, that Vitol had never been served in this matter because Vitol no longer maintained an office at the New York address to which the Complaint was mailed.6 Upon learning this, the Commonwealth served Vitol for the first time on October 14, 2015.7

II. DISCUSSION

There is no dispute that the Commonwealth failed to properly serve Vitol within the 120-day time period permitted by Federal Rule of Procedure 4(m).8 Rule 4(m) permits service outside this period if the plaintiff can demonstrate good cause for its failure to properly serve the defendant within 120 days. The Commonwealth, however, has failed to proffer good cause for its failure to properly serve Vitol. It asserts, without further discussion, that it “exercised due diligence in attempting to serve Vitol”9 when it mailed the Complaint to an office that Vitol had not occupied since at least 2006 and only confirmed receipt by an online package tracker.10

Even when a plaintiff has not demonstrated good cause for its failure to serve, a court may, in its discretion, allow service' outside the 120-day time period.11 In making this determination, courts typically consider four factors.

(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (8) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiffs request for relief from the provision.12

I conclude an extension is warranted in this case. The instant motion is an obvious attempt by Vitol to gain the benefit of the statute of limitations if the Complaint were to be dismissed and the Commonwealth made to bring a new action against Vitol more than fifteen months after the original Complaint was filed. Vitol *250concedes it had notice of the Complaint, although it declines to specify the date it acquired such notice.13 Nonetheless, attorneys representing Vitol, including the attorneys representing Vitol on this motion, appeared at MDL status conferences — as early as October 1, 2014 — where the Pennsylvania case was discussed.

Whether Vitol concealed the lack of service is at best neutral in this case. In consolidated proceedings such as this one, concealment takes on a different flavor where the defendant is already actively participating in the related litigation.14 While Vitol’s never affirmatively indicated that it had been served, its silence for over a year — despite knowing it had been named in the Complaint and despite being present in court with the Commonwealth numerous times — can be viewed as an attempt to build a case for dismissal for lack of service.15 Taken together with the electronic confirmation that the Complaint was delivered to an office the Commonwealth thought to be occupied by Vitol, the Commonwealth was in essence lulled into believing it had effectively served Vitol.

Finally, Vitol would suffer little if any prejudice by being included in the case at this juncture. Vitol’s participation in status conferences reveals that it was apprised not only of the filing of the case but of its ongoing progress, and the Commonwealth’s consent to dismissing certain counts of the Amended Complaint undermines Vitol’s claim of prejudice because it “has been deprived of opportunities to participate in motion practice.”16 Taken together, the factors weigh in favor of granting an extension.

III. CONCLUSION

For the foregoing reasons Vitol’s motion to dismiss for insufficient service of process is DENIED, and the motion to dismiss counts III, V, and VI of the Amended Complaint is GRANTED.

SO ORDERED.

In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation
162 F. Supp. 3d 247

Case Details

Name
In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation
Decision Date
Jan 21, 2016
Citations

162 F. Supp. 3d 247

Jurisdiction
United States

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