Hilliard et al v. Johnson & Johnson et al (TV1)
Filing
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ORDER TO SHOW CAUSE. Show Cause Response due by 6/25/2018.Signed by Magistrate Judge Susan K Lee on 6/6/2018. (SAC, )Order mailed to Hilliard.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
S.C.H., a minor, b/n/f/ and mother,
CAROLYN SUE HILLIARD and
CAROLYN SUE HILLIARD, individually,
Plaintiffs,
v.
JOHNSON & JOHNSON, and
ETHICON, INC.,
Defendants.
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Case No. 1:17-cv-8-TAV-SKL
ORDER TO SHOW CAUSE
On April 16, 2018, the Court entered an order permitting attorney Charles A. Flynn
(“Attorney Flynn”) and his firm, Patrick, Beard, Schulman, and Jacoway, P.C., to withdraw as
counsel of record for S.C.H., a minor (“minor Plaintiff”), and his mother, Carolyn Sue Hilliard
(“Plaintiff Hilliard”), individually and as next friend of minor Plaintiff [Doc. 31]. Plaintiff Hilliard
advised the Court that she had made some efforts to secure new counsel, but needed additional
time to attempt to find new counsel to represent her individually and as next friend to her sevenyear-old son, minor Plaintiff.
The Court ordered that this matter be stayed (except for any reply Defendants may file in
connection with their then pending motion to dismiss [Doc. 23]) until May 16, 2018 to protect the
interests of the minor Plaintiff during the attorney search process, but specifically ordered that no
pending deadlines in the Scheduling Order [Docs. 11 & 20] were extended. The Court’s Order
noted that in the event Plaintiff Hilliard was unable to secure new counsel, Plaintiff Hilliard had
the option of representing herself on her own claims in this matter; however, Plaintiff Hilliard
could not represent minor Plaintiff or otherwise pursue minor Plaintiff’s claims without counsel.1
The Court further ordered that no later than May 16, 2018, Plaintiff Hilliard must either (1) have
new counsel file a notice of appearance on behalf of Plaintiff Hilliard individually and minor
Plaintiff or (2) file a written notice informing the Court how Plaintiff Hilliard intends to proceed
in this case with respect to her claims and the claims of minor Plaintiff [Doc. 31 at Page ID # 299].
Plaintiff Hilliard was forewarned that any failure to fully comply with the Order of the Court could
result in the imposition of sanctions up to and including the dismissal of her case with prejudice.
To date, Plaintiff Hilliard has failed to make the required filing with the Court.
Accordingly, Plaintiff Hilliard SHALL file on or before June 25, 2018, a response to this order to
SHOW CAUSE why her case should not be dismissed for failure to prosecute pursuant to Federal
1
Under both Tennessee and federal law, “[p]arents cannot appear pro se on behalf of their minor
children because a minor’s personal cause of action is her own and does not belong to her parent
or representative.” Vandergriff v. Parkridge Hosp., 482 S.W.3d 545, 553 (Tenn. Ct. App. 2015)
(citations omitted) (holding that parents “must be licensed to practice law in order to file a
complaint” on behalf of their child or “to appear as advocates for her in court”); see also Shepherd
v. Wellman, 313 F.3d 963, 970-71 (6th Cir. 2002) (same rule under federal law). While state and
federal rules allow parents to “sue or defend” on behalf of minors, these rules do not “authorize a
parent to practice law while acting on behalf of the child.” Vandergriff, 482 S.W.3d at 553
(discussing Tenn. R. Civ. P. 17.03); see also Fed. R. Civ. P. 17(c). Rather, they allow parents to
maintain claims on behalf of minors because “minors cannot maintain lawsuits in their own
names” or contract with counsel. Vandergriff, 482 S.W.3d at 552 (citations omitted).
2
Rule of Civil Procedure 41(b).2 Any failure to timely file a response showing good cause will
result in the dismissal of this action.
SO ORDERED.
ENTER.
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE
2
Under Fed. R. Civ. P. 41(b), the Court is authorized to sua sponte dismiss an action for a
plaintiff’s failure to prosecute the case or to comply with procedural rules or any order of the Court.
Fed. R. Civ. P. 41(b); Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).
3
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