Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newhouse v. Ethicon Inc.

United States District Court, S.D. West Virginia, Charleston

July 17, 2018

WILLIAM PERRY NEWHOUSE, and Executor of his Estate, DELVA NEWHOUSE, Plaintiffs,
v.
ETHICON, INC., et al., Defendants.

          ORDER AND NOTICE

          Dwane L. Tinsley United States Magistrate Judge.

         Pending before the court are the plaintiffs' Motion for Objection and to Strike Defendants' Answers/Defenses to Complaint (ECF No. 17), the plaintiffs' Motion for Objection to Defendants' “Statement of Visiting Attorney and Designation of Local Counsel” (ECF No. 18), and the plaintiff's Motion to Demand Jury Trial by Right Endorsed Hereon (ECF No. 23). The undersigned will address each motion in turn.

         A. Motion to Strike Answers/Defenses to Complaint.

         The plaintiffs' Motion for Objection to Strike Answers/Defenses to Complaint (ECF No. 17) requests that the court strike the defendants' Answers to the Complaint, and all defenses raised therein, on the basis that they have been raised and demonstrated to be meritless in other litigation. Thus, the plaintiffs appear to be asserting that the defendants are barred from requesting any pre-trial dismissal of this matter on the basis of res judicata.

         The defendants filed a Response to the plaintiffs' motion asserting that their Answers to the Complaint satisfy the requirements of Rule 8(b)(1) of the Federal Rules of Civil Procedure and that the plaintiffs' assertion that res judicata bars their defenses is without merit because the plaintiffs cannot demonstrate that there is a final judgment on the merits involving the same parties to this litigation. Thus, the defendants further assert that the plaintiffs' motion is an improper attempt to argue the merits of their case and fails to identify any other valid basis to strike the Answers and affirmative defenses preserved therein. The undersigned agrees. Accordingly, for reasons appearing to the court, the plaintiffs' Motion for Objection to Strike Answers/Defenses to Complaint (ECF No. 17) is DENIED.

         B. The plaintiffs' Motion/Objection to Defendants' Statement of Visiting Attorney and Designation of Local Counsel.

         In this motion, the plaintiffs appear to be objecting to the appearance in this action by a visiting attorney, Fred E. Bourn, III, of the law firm of Butler Snow in Ridgeland, Mississippi, with Phillip J. Combs, of Thomas Combs & Spann, designated as local counsel, on the basis that Mr. Bourn has not demonstrated that he possesses a valid law license and, further, has not demonstrated what utility his appearance will bring to the defense of this matter. In response, the defendants assert that Mr. Bourn's appearance herein complies with all of the requirements of Local Rule 83.6 of the Local Rules of Civil Procedure for the United States District Court for the Southern District of West Virginia governing the admission of visiting attorneys.

         The undersigned FINDS that Mr. Bourn and Mr. Combs have complied with the requirements of Local Rule 83.6, and that there is no other valid basis for the plaintiffs' objection. Accordingly, the plaintiffs' Motion/Objection to Defendants' Statement of Visiting Attorney and Designation of Local Counsel (ECF No. 18) is DENIED.

         C. The plaintiffs' Motion to Demand Jury Trial.

         On May 29, 2018, the plaintiff filed a Motion to Demand Jury Trial by Right Endorsed Hereon (ECF No. 23), in which they, again, object to the defendants' filing of Answers preserving potential affirmative defenses on the basis that such defenses are allegedly procedurally barred by res judicata. By way of this motion, the plaintiffs move for an immediate trial by jury. The plaintiffs' motion is premature.

         This matter has been stalled by proceedings to determine whether it should be transferred to a multi-district litigation (MDL) proceeding, MDL 2782, pending in the United States District Court for the Northern District of Georgia. Both the plaintiffs and defendants objected to such transfer and the matter has been returned to this court for further proceedings. Because there are numerous actions which must occur before the court can determine whether a jury trial is appropriate in this matter, the court will treat the plaintiffs' motion as a Jury Demand, preserving the plaintiffs' request for a jury trial. Accordingly, the Motion for Jury Trial (ECF No. 23) is DENIED WITHOUT PREJUDICE.

         D. Time Frame Order for additional proceedings herein.

         This matter is ready to proceed. Pursuant to Fed.R.Civ.P. 16(b) and Local Rule of Civil Procedure 16.1(e), it is hereby ORDERED that the parties shall conform to the following schedule:

08-13-18 Motions under Rule 12(b) of the Federal Rules of Civil Procedure, together with separate supporting briefs, memoranda, affidavits or other ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.