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In re Ohio Execution Protocol Litigation

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

June 14, 2018

In re OHIO EXECUTION PROTOCOL LITIGATION,

          Edmund A. Sargus, Jr. Chief Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         Proceeding sua sponte under Fed.R.Civ.P. 4(m), the Magistrate Judge issued on April 16, 2018, an Order to Plaintiffs to Show Cause why Defendants referred to as UNKNOWN PHARMACIES #1-100, UNKNOWN PHARMACISTS #1-100, UNKNOWN DRUG SUPPLIERS #1-25; and JOHN DOES #1-25 (collectively “Drug Source Defendants”) should not be dismissed as parties without prejudice because they had never been served with process (ECF No. 1561). Plaintiffs have responded (ECF No. 1576), the named and served Defendants have replied to that Response (ECF No. 1767), and Plaintiffs have filed a further Reply in support of their position (ECF No. 1783). The question of whether the Drug Source Defendants should be dismissed for lack of service is thus ripe for decision.

         Involuntary dismissal for lack of service of process is a dispositive matter, on which an assigned Magistrate Judge must recommend a disposition, rather than decide the question. Fed.R.Civ.P. 72(b).

         The Parties' Positions

         Plaintiffs

         Plaintiffs assert they have good cause for their failure to make service on any of the unserved Defendants because they do not know who those entities are. They assert

[T]wo factors have combined to prevent Plaintiffs from identifying and serving the Drug Source Defendants, . . .the Ohio Execution Secrecy Bill . . . and this Court's own Protective Order. . . .These two sources of protection have completely shielded the identities of the Drug Source Defendants from Plaintiffs' investigation and, short of serving all pharmacies, pharmacists, and drug manufacturers with contacts in Ohio, Plaintiffs remain unable to identify or serve these parties.

(ECF No. 1576, PageID 69513-14.)

         Plaintiffs assert they “brought their claims against the unknown Drug Source Defendants on the reasonable belief that discovery would allow for ultimate identification, and service, of those parties.” Id. at PageID 69516. As part of that discovery, they have “serv[ed] approximately twenty Rule 45 third-party subpoenas on different pharmacies . . . . Each of the pharmacies that received a Rule 45 subpoena responded that they had no responsive documents.” Id. at PageID 69517. A subpoena to the Ohio State Board of Pharmacy “produced a list of entities with an active Terminal Distributor of Dangerous Drugs License . . . contain[ing] approximately 16, 800 entries.” Id. at PageID 69517-18. A request for a list of licensed pharmacists produced over 13, 000 names. Id. at PageID 69518. Plaintiffs expect the Pharmacy Board to create and produce a list of “those pharmacies engaged in sterile compounding of controlled substances” which is expected to be numerous but fewer than 1600. Id.

         Since their investigations to date have not produced the identity of the Drug Source Defendants, they use the occasion of their Response to argue at some length for a modification of the Protective Order. Id. at PageID 69518-20.

         Defendants

         The State[1] Defendants argue that the conditions which led to the adoption of H.B. 663 and the Protective Order have not changed and that the Protective Order should not therefore be modified. If Plaintiffs cannot identify and serve the Drug Source Defendants without the requested modification, Defendants argue that it follows that identification and service will not be possible, which counts in favor of dismissal (ECF No. 1768, PageID 72228-32). In addition, Defendants argue against allowing pseudonymous “placeholder” Drug Source Defendants to continue to prevent final judgment in the case. Id. at PageID 72232.

         Plaintiffs' ...


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