United States District Court, E.D. Pennsylvania
CHRIS JUDAY, et al.
MERCK & CO., INC., et al.
Juday and his wife Pat Juday, no strangers to this court,
have filed a second action against defendants Merck &
Co., Inc. and Merck Sharp & Dohme Corp. This time, they
characterized their complaint as a “Federal Rule
60(d)(1) Independent Action.” They seek to set aside a
summary judgment order entered against them in the first
action, Juday v. Merck & Co., Civil Action No.
16-1547, and to reinstate the complaint in that action.
Defendants have now moved to dismiss the pending complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be
granted. Defendants rely on the doctrine of res judicata.
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in the light most favorable to the plaintiff.
See Phillips v. Cty. of Allegheny, 515 F.3d 224, 230
(3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc.,
542 F.3d 59, 64 (3d Cir. 2008). We must then determine
whether the pleading at issue “contain[s] sufficient
factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim must do more than raise a “mere
possibility of misconduct.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting
Iqbal, 556 U.S. at 679).
motion to dismiss under Rule 12(b)(6), the court may consider
“allegations contained in the complaint, exhibits
attached to the complaint, and matters of public
record” as well as “an undisputedly authoritative
document that a defendant attaches as an exhibit to a motion
to dismiss if the plaintiff's claims are based on the
document.” Levins v. Healthcare Revenue Recovery
Grp. LLC, 902 F.3d 274, 279-80 (3d Cir. 2018) (quoting
Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
first action, Chris Juday claimed that he had suffered
injuries as a result of the administration of Zostavax,
Merck's vaccine to prevent shingles. His wife sued for
loss of consortium. This court granted summary judgment in
favor of both defendants and against the Judays on the ground
that their claims were barred by the statute of limitations.
Juday v. Merck & Co., Inc., 2017 WL 1374527
(E.D. Pa. Apr. 17, 2017). The Court of Appeals affirmed.
Juday v. Merck & Co., Inc., 730 Fed.Appx. 107
(3d Cir. 2018). The undisputed facts in this first action
established that Chris Juday was injected with the Zostavax
vaccine on March 2, 2014 and was aware of the purported
connection between the vaccine and his injury, that is the
onset of shingles, by at least March 13, 2014. He and his
wife did not file their lawsuit until April 5, 2016, which
was after the relevant two-year statute of limitations had
deterred after judgment was entered against them in the first
action, the Judays filed a motion to intervene in another
Zostavax multidistrict litigation action pending before the
undersigned in order to obtain discovery which, in their
view, would aid them in seeking to reopen their first action
that they had lost in this court and the Court of Appeals.
This court, denying the motion to intervene, characterized it
as a “fishing expedition.” Dotter v. Merck
& Co., Inc., et al., No. CV 16-4686, 2018 WL
5303326, at *2 (E.D. Pa. Oct. 24, 2018).
further explained that “it is improper for parties to
institute meritless litigation so as to vitiate without any
valid reason the finality of the judgment against
them.” Id. The court thereafter denied the
Judays' motion for reconsideration. Dotter v. Merck
& Co., Civil Action No. 16-4686 (E.D. Pa. Dec. 17,
same time that the Judays filed their motion for
reconsideration, they moved under Rule 60(b) for relief from
the judgment in their initial action. Again, this court
denied the motion. We commented that “[t]here are no
extraordinary circumstances presented here to justify
relief” and that “unhappiness about an adverse
result is not a basis for undermining the finality of
judgments.” Juday v. Merck & Co., 329
F.R.D. 151, 155 (E.D. Pa. 2018). Plaintiffs have filed a
notice of appeal with respect to this order. That appeal is
in their efforts to overturn this court's and the Court
of Appeals' rulings that their Zostavax claims are
time-barred, the Judays have now filed this independent
action under Rule 60(d)(1) to relieve them from the judgment
entered against them in their first action. They seek to have
that first action reopened and allowed to proceed. The
Judays, for the first time, contend that the statute of
limitations was tolled under the National Childhood Vaccine
Injury Act (“Vaccine Act”), 42 U.S.C. §
to their pending complaint in this second action, the Judays
had filed a petition in the United States Court of Federal
Claims on April 29, 2015. In the petition, Chris Juday sought
compensation under the Vaccine Act, 42 U.S.C. §§
300aa-1, et seq. for his injuries suffered as a result of
Zostavax. On June 11, 2015, 43 days later, his petition was
dismissed on the ground that he had “failed to
demonstrate that he had received a vaccine covered under the
Vaccine Program.” The decision of the Special Master
further stated, “This case is dismissed for
insufficient proof and for failure to prosecute.”
Juday v. Sec. of Health and Human Services, 2015 WL
4053498, at *2 (Fed. Cl., June 11, 2015).
Judays also allege in their pending complaint that they
timely filed an election under § 300aa-21(a) of the
Vaccine Act with the Clerk of the Court of Federal Claims to
file a civil action, and on information and belief they state
that the Clerk informed the defendants about the Judays'