United States District Court, S.D. West Virginia, Charleston
WILLIAM PERRY NEWHOUSE, and Executor of his Estate, DELVA NEWHOUSE, Plaintiffs,
ETHICON, INC., et al., Defendants.
ORDER AND NOTICE
L. Tinsley United States Magistrate Judge.
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
Motion to Strike Answers/Defenses to Complaint.
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
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.
The plaintiffs' Motion/Objection to Defendants'
Statement of Visiting Attorney and Designation of Local
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.
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
The plaintiffs' Motion to Demand Jury Trial.
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
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
Time Frame Order for additional proceedings herein.
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 ...