Medical Assurance Company Inc The v. Weinberger MD et al

Filing 617

MEMORANDUM OPINION AND ORDER granting in part and denying in part 607 Motion to Dismiss 313 Counterclaim by Commissioner of Insurance and Administrator of the Indiana Patient's Compensation Fund. GRANTING the motion as to the Verhoeve Defen dants, Regan Colglazier, Karen Friedman, Ashley Hart, Paul Keeton, Michael Keck, John Nosich, Austin Nunn, Jessica Pavey, Louana Polley, Joseph Warrick, Robert White, Jennifer Brouilette, David Brouilette, Steven Polley, Christiane Williams, Ibrahim Yoldash, Kathleen Hiott, and Terrance Luchene and DENYING the motion as to Verhoeve Defendant Anthony Perry. Signed by Judge Jon E DeGuilio on 1/13/14. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
THE MEDICAL ASSURANCE
COMPANY, INC.
Plaintiff,
v.
MARK S. WEINBERGER, M.D., et al.
Defendants.

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CAUSE NO. 4:06-CV-117 JD

MEMORANDUM OPINION AND ORDER
Now before the Court is the Motion for Voluntary Dismissal [DE 607] filed by Stephen
W. Robertson, Commissioner of Insurance and Administrator of the Indiana Patient’s
Compensation Fund (the “Fund”). The Fund seeks to dismiss its counterclaim [DE 313] with
prejudice against nineteen individuals it identifies as Verhoeve Defendants. The motion indicates
that the Verhoeve Defendants do not object to the motion, and no other party has responded
within the time allotted.
The Court notes, however, that Anthony Perry, one of those nineteen individuals, was
never actually named as a counter-defendant with regard to the Fund’s counterclaim. The Fund
brought its counterclaim only against the Verhoeve Defendants, “[a]s defined in Paragraph 8 of
Medical Assurance’s Second Amended Complaint (Dkt. 53).” [DE 313 n.1]. Mr. Perry was not
named in that paragraph of Medical Assurance’s Second Amended Complaint, but was rather
included among the “Remaining Claimants,” identified in paragraph 10 of that complaint, against
whom the Fund did not assert its counterclaim. [DE 53 ¶ 10].
The motion is therefore DENIED as to Anthony Perry because the Fund has not plead
against Mr. Perry the counterclaim it seeks to dismiss. However, the Court GRANTS the motion

as to the remaining eighteen individuals identified in docket entry 607, and the Fund’s
counterclaim against those individuals is DISMISSED WITH PREJUDICE pursuant to Federal
Rule of Civil Procedure 41(a)(2).
SO ORDERED.
ENTERED: January 13, 2014

/s/ JON E. DEGUILIO
Judge
United States District Court

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