Kesterson v. Chattem, Inc.

Filing 20

ORDER - The #17 Notice of Voluntary Dismissal is DEFECTIVE and the Clerk is directed to DISREGARD it in its entirety. Katherine's #15 motion to extend the time for her out-of-state attorneys to file their pro hac vice petitions is GRANTED. The deadline for Katherines attorneys to file their petitions to practice is EXTENDED to 8/5/2021. The briefing on PTI Unions #12 motion to dismiss [ECF NO. 12] is STAYED. Signed by Judge Jennifer A. Dorsey on 7/16/2021. (Copies have been distributed pursuant to the NEF - DRS)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Katherine Kesterson, as Special Administrator
Case No.: 2:21-cv-01179-JAD-EJY
and Heir to the Estate of Scott Kesterson and
4 as Parent and Legal Guardian for Minors C.K.
and H.K,
5
Order Disregarding Notice of Voluntary
Plaintiff
Dismissal, Granting Motion to Extend
6
Time to File Pro Hac Vice Petition, Staying
v.
Briefing on PTI Union’s Dismissal Motion
7
Chattem, Inc.; Barretts Minerals, Inc.; PTI
[ECF Nos. 12, 15, 17]
8 Union, LLC; and Special Minerals, Inc.,
9

Defendants

10

Plaintiff Katherine Kesterson contends in this removed action that defendants Barretts

11 Minerals, Inc.; PTI Union, LLC; and Specialty Minerals, Inc. made, sold, or distributed asbestos12 containing talc products that her late husband, Scott Kesterson, was exposed. She alleges that
13 defendants’ products caused Scott to develop malignant mesothelioma, which he succumbed to
14 in July 2020. So in her capacities as Special Administrator and heir to Scott’s estate and parent
15 and legal guardian for Katherine and Scott’s minor children C.K. and H.K., Katherine sues
16 defendants for negligence, strict liability, false representation, intentional failure to warn, and
17 fraud. 1 Defendant PTI Union moves to dismiss Kathrine’s claims. 2 Katherine’s out-of-state
18 attorneys move to extend the time for them to file pro hac vice petitions. 3 And counsel for PTI
19 Union notice that Katherine, under Federal Civil Procedure Rule 41(a), is voluntarily dismissing
20 her claims against it. 4
21
1

22
23

ECF No. 10-2 (complaint).

2

ECF No. 12.

3

ECF No. 15.

4

ECF No. 17. The Clerk of Court sealed the notice because it states the minor children’s names.

1

But the notice of voluntary dismissal of Katherine’s claims against PTI Union is not

2 signed by Katherine’s attorneys, 5 so it is defective. 6 I assume that this defect is the product of
3 mistake or an attempted end-run around the fact that Katherine’s attorneys have not yet filed
4 their pro hac vice petitions and, thus, cannot take any further action in this case on her behalf. 7 I
5 also imagine that this solution was conceived to avoid further briefing on PTI Union’s dismissal
6 motion. To ensure a clear record in this case and allow the parties time to cure this defect,
7

IT IS THEREFORE ORDERED that the notice of voluntary dismissal [ECF No. 17] is

8 DEFECTIVE; the Clerk of Court directed to DISREGARD ECF No. 17 in its entirety. Either
9 Katherine or PTI Union can file a renewed notice of voluntary dismissal once Katherine can cure
10 this defect.
11

IT IS FURTHER ORDERED that Katherine’s motion to extend the time for her out-of-

12 state attorneys to file their pro hac vice petitions [ECF No. 15] is GRANTED. The deadline for
13 Katherine’s attorneys to file their petitions to practice is EXTENDED to August 5, 2021.
14

IT IS FURTHER ORDERED that the briefing on PTI Union’s motion to dismiss [ECF

15 NO. 12] is STAYED until further order of this court. PTI Union can move to lift this stay if it
16 appears that Katherine will not be voluntarily dismissing her claims against it. Finally, the
17 parties are cautioned that LR IC 6-1(a)(2) instructs that “if the involvement of a minor child must
18 be mentioned, only the initials of the child should be used.”
19

_________________________________
U.S. District Judge Jennifer A. Dorsey
Dated: July 16, 2021

20
21
22

5

See ECF No. 17 at 2 (notice signed only by counsel for PTI Union).

6

A notice of voluntary dismissal signed by Katherine would be defective because she is not
23 proceeding pro se but, in fact, has retained counsel who intend to file pro hac vice applications.
7

L.R. IA 11-2(c).
2