Hernandez v. Siemens Corporation
MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth. (aej)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
NOV 2 7 201?
Civil No. SA-16-CV-00539-RCL
SIEMENS MEDICAL SOLUTIONS
Denying Newton B. Schwartz's Motion to Withdraw as Counsel
Denying Plaintiff's Motion for a New Trial
Denying Defendants' Motion for Sanctions
The Court has before it the following motions and all responses and replies thereto:
Newton B. Schwartz, Sr. and Law Offices of Newton B. Schartz's Unopposed Renewed
Motion to Withdraw as Additional Counsel of Record ("Motion to Withdraw"). (ECF
Plaintiffs Motion for a New Trial (FRCVP 59 (a) (1 )(B)) [sic] ("Motion for a New Trial").
Defendants' Motion for Sanctions ("Motion for Sanctions"). (ECF #46).
For the reasons given in this Memorandum Opinion, the Court will DENY the Motion to
Withdraw, DENY the Motion for a New Trial, and DENY the Motion for Sanctions.
The merits of plaintiff Adam Hernandez's factual allegations are not at issue in the
present motions. For that reason, the Court will provide only a brief summary of his claims for
the purpose of providing context for the much more relevant (to the present motions) procedural
history of this case.
Mr. Hernandez alleged that in February 2014 be was in Metropolitan Hospital in San
Antonio "for medical treatment of his recorded injuries," (ECF #21 at 3). He claimed that as part
of his treatment he received an MRJ from a machine "designed, manufactured andlor marketed by
one or more of the Siemens Defendants." (Id. at 17). This machine, he alleged, was "defectively
designed, manufactured and/or marketed" and gave him "severe bums, permanent, painful, and
disabling personal injuries. (Id.). He brought a personal injury / product liability suit against the
defendants on the basis of these allegations. (ECF #1; ECF #9; ECF #21).
The Court finds it helpful to divide the procedural background of this case into three
phases. The first consists of all actions taken from the initial filing of this lawsuit until the
dismissal of Mr. Hemandez's original and first proposed amended complaint. The second consists
of all actions taken from Mr. Hernandez's refiling of his complaint until this Court's order
dismissing the case with prejudice. The third consists of all actions taken since that time.
A. Phase One
Mr. Hernandez filed his original complaint in the 225th Judicial District Court of Bexar
County on February 8, 2016. (ECF #1). Defendant Siemens removed the action to this court on
June 13, 2016, and filed a motion to dismiss for failure to state a claim pursuant to Rule I 2(b)(6)
of the Federal Rules of Civil Procedure. (ECF #1; ECF #4). In response to the motion to dismiss,
Mr. Hernandez filed several motions for leave to file an amended complaint and a proposed
amended complaint. (ECF #9; ECF #14; ECF #15).
Judge Xavier Rodriguez dismissed both the original and the proposed amended
complaint on October 17, 2016. (ECF #20). Concerning the original complaint, Judge Rodriguez
found that "the only material factual allegations iii the complaint are that Hernandez was burned
by a defective MRI machine manufactured by Siemens." (ECF #20 at 4). He also found that the
proposed amended complaint merely "recites statements of law interspersed with conclusory
references to Siemens." (Id.). He found these conclusory allegations, which did not include "an
explanation of the defect or how it caused [Mr. Hemandez'sJ injury," to be insufficient under
federal pleading standards to sustain a claim. (Id. at 6). But Judge Rodriguez did not dismiss the
case. Instead, he granted leave for Mr. Hemandez to file a new amended complaint within 14 days
that addressed the concerns raised Over the sufficiency of the allegations. (Id at 7).
B. Phase Two
Mr. Hernandez timely filed a new complaint per Judge Rodriguez's instructions on
October 31, 2016. (ECF #21). That same day, he also filed a "supplemental petition" with
additional factual allegations. (ECF #22). Three weeks later, the defendants moved to strike the
supplemental petition pursuant to Rules 12(1) and 15 and to dismiss the new amended complaint
pursuant to Rule I 2(b)(6).
Mr. Hernandez never filed a response to these motions.
He never amended his
complaint again, either. On December 9, 2016, the defendants requested that the Court treat their
motions to strike the supplemental petition and to dismiss the new amended complaint as
unopposed and to dismiss all claims with prejudice. (ECF #25). For six more months Mr.
Hernandez did nothing about these motions.
Finally, on June 1, 2017, Mr. Hernandez filed a "Motion for a Continuance of Hearing
and Ruling to Defendant's Motion to Dismiss." (ECF #34). The Court interpreted this motion,
which was largely incomprehensible, as a request for an extension of time either to amend Mr.
Hemandez' s complaint or to respond to the motion to dismiss in light of "a very recent settlement
offer." (ECF #34 at 1; ECF #40). The defendants filed their response to this motion, denying that
they had made any settlement offer; accusing plaintiff's counsel of filing the motion for a dilatory
purpose; and asserting that Benton Musslewhite, one of Mr. Hemandez's attorneys, was not
admitted to practice law before the United States District Court for the Western District of Texas.
(ECF #36; ECF #36-1; ECF #36-2), True to form, neither Mr. Hernandez nor his counsel
responded to any of these allegations.
Around that same time, Mr. Hernandez also filed a motion to compel the Metropolitan
Hospital to produce documents related to the MRI machine; (ECF #39). Mr.NewtonB. Schwartz,
one of Mr. Hernandez's attorneys, also filed his first motion to withdraw as Mr. Hernandez's
counsel, which would "leave Benton Musslewhite, Sr. as attorney in charge." (ECF #33 at 4).
After providing ample opportunity for Mr. Hernandez to respond to any of the motions
pending against him, this Court finally ruled on all pending motions on June 23, 2017. (ECF #40).
In its ruling, the Court did the following (among other things):
Struck Mr. Hernandez's motion for continuance under Rule 11(a) because it
was signed only by Mr. Musslewhitean attorney not authorized to practice
law before this Court. In so ruling, the Court found the motion "not only
extremely untimely, but also inappropriate, given counsel's apparent reliance
on false statements and the unauthorized practice of law before this Court."
(Id. at 6-7).
Struck Mr. Hemandez's supplemental petition in its entirety under Rules 12(f)
and 15(a) (all independently sufficient) and for being untimely. (Id. at 6).
Dismissed Mr. Hernandez's amended complaint for failure to state a claim
upon which relief could be granted under Rule 12(b)(6). (Id. at 7).
Denied all other motions before the Court as moot (including Mr. Hernandez's
motion to compel discovery and Mr. Schwartz's original motion to withdraw
as counsel). (Id).
Dismissed Mr. Hernandez's case with prejudice. (Id. at 8).
To be clear, the Court found that plaintifFs counsel had lied to the Court, engaged in the
unauthorized practice of law, failed to respond in a timely manner to any of the defendant's
motions or responses, and failed to state a cognizable claim despite being given three tries. The
dismissal with prejudice should have been the end of the case before this Court. But it was not.
C. Phase Three
Beginning on the very day that the Court issued its order that this case be dismissed
with prejudice (June 23), a flurry of motions practice began again. That day, Mr. Schwartz
submitted his current Motion to Withdraw. (ECF #42). He also filed an attachment to the Motion
to Withdraw purporting to show that Mr. Musslewhite's pro hac vice application and filing fee had
been submitted. (Id. at 2; ECF #42). One month later, Mr. Hemandez (still represented by Messrs.
Schwartz and Musslewhite) filed his Motion for a New Trial.
(ECF #45). The defendants
responded to the Motion for a New Trial one week later, and included in their response a Motion
for Sanctions. (ECF #46). These motions are now fully briefed and the Court will address them
Mr. Schwartz's Motion to Withdraw
An attorney may not withdraw as counsel of record in a case unless s/he can
demonstrate that certain requirements have been met. Whether these requirements have been met
is "entrusted to the sound discretion of the [trial] court." (In re Wynn, 889 f.2d 644, 646 (5th Cir.
1989) (internal citation omitted)).
The first requirement is that an attorney may withdraw as counsel only "upon leave of
the court and a showing of good cause and reasonable notice to the client." (Id). Second, even if
good cause exists, an attorney may withdraw as counsel only if the lawsuit will not be "disrupted
bythe withdrawal of counsel." (Broughten v. Voss634 F.2d 880, 882 (5th Cir: 1981)). So if the
attorney's withdrawal would cause "undue delay in the proceedings, prejudice the client," or
otherwise not be in the interests ofjustice, then the motion for withdrawal should be denied. (Am.
Res. Techs., Inc. v. Oden, No. 3:13-cv-04419-B, 2014 WL 6884243 (ND. Tex. Dec. 8, 2014)).
And finally, a withdrawing attorney must comply with any relevant local rules. Local
Rule AT-3 governs the withdrawal of attorneys in the Western District of Texas. It says:
An attorney seeking to withdraw from a case must file a motion
specifying the reasons for withdrawal and providing the name and
office address of the successor attorney. If the successor attorney is
not known, the motion must set forth the client's name, address, and
telephone number, and must bear either the client's signature or a
detailed explanation why the client's signature could not be obtained
after due diligence.
If all of these requirements are met, then an attorney may withdraw,
First, Mr. Schwartz makes a showing of good cause for which he should be allowed to
withdraw and has he provided his client, Mr. Hernandez, with reasonable notice of his intent to
withdraw. Mr. Schwartz asserts that his renewed Motion to Withdraw "renews and reaffirms" his
original motion to withdraw from May 15, 2017. (ECF #42 at 1). In the original motion, he
claimed that one of the reasons for which he intended to withdraw was because he has "received
no payments of any funds for anything from Plaintiff or Benton Musslewhite and I have paid for
all expenses in this case." (ECF #33 at 3). Not getting paid in accordance with an agreement
between the attorney and the client constitutes good cause for the lawyer to withdraw.
Disciplinary Rules Prof'I Conduct R. 1.15(b)(5)); For now, the Court will assume that Mr.
Schwartz's representations about not receiving due compensation are true. Therefore, the Court
finds that Mr. Schwartz has made a showing of good cause for withdrawal. In addition, Mr.
Schwartz states that he has spoken with Mr. Hernandez several times about his intent to withdraw
and even sent him a copy of his first motion to withdraw. (ECF #42 at 3; ECF #33 at 3). This
qualifies as reasonable notice to Mr. Schwartz's client of Mr. Schwartz's intent to withdraw.
Second, the Court thinks this lawsuit
not be disrupted by Mr. Schwartz's
withdrawalthis opinion and the orders associated with it will put an end to this lawsuit at the
Therefore, the Court finds that Mr. Schwartz meets the second requirement for
withdrawing as counsel in this case.
Third, Mr. Schwartz has not fully complied with Local Rule AT-3. As required by
Rule AT-3, Mr. Schwartz has filed a motion specifying the reasons for which he seeks to withdraw.
But the Court finds that Mr. Schwartz has not complied with the remainder of Rule AT-3. The
remainder of the Rule requires that Mr. Schwartz provide the name and office address of his
successor attorney. Both the original and renewed Motions to Withdraw name Mr. Musslewhite
as Mr. Schwartz's only successor. (ECF #42 at 2 ("All future responsibility remains.
again in Benton Musslewhite."); ECF #33 at
("Plaintiff has been and is represented from the
outset of his injuries by lead and sole counsel Charles Benton Musslewhite, Sr. who will continue
to do so hereafter."). But Mr. Musslewhite, as has already been established, is not admitted to
practice law before the Western District of Texas. (ECF #40 at 5-6; ECF #36-1; ECF #36-2).
Mr. Schwartz claims that Mr. Musslewhite's "pro hac vice [a]pplication and $201 filing
fee" were filed and paid on June 23, 2017. (ECF #42 at 2), As evidence of this assertion, Mr.
Schwartz attached to his motion a scan of an envelope addressed to "Attorney Admissions" at the
Sari Antonio federal courthouse. (Id.). Mr. Schwartz should be ashamed of submitting such flimsy
evidence to this Court. There is no scan or other proof of the contents of the envelope. There is
no motion for admission pro hac vice reflected on the Court's docket. Ultimately, the Court has
received neither an electronic nor a hard-copy motion for Mr. Musslewhite to be admitted pro hac
vicea scan of the front of an envelope cannot change this because an envelope is not a motion.
The Court cannot grant or deny a motion that it does not have.
So Mr. Musslewhite has not been admitted to practice law in the Western District of
Texas. This means that Mr. Schwartz is attempting to name a successor whose actions before this
Court would constitute (and previously have constituted) the unauthorized practice of law. This
will not do. Naming as successor an attorney ineligible to practice is no better than naming no
successor at all. And so the Court will hold Mr. Schwartz's petition to the same standard as if he
had named no successor.
When the successor attorney is not known, the motion to withdraw must, per Rule AT3, provide "the client's name, address, and telephone number" and "bear either the client's
signature" or a detailed explanation of why the signature could not be obtained. Neither Mr.
Schwartz's original nor his renewed Motion to Withdraw contains Mr. Hernandez's phone number
and neither bears either Mr. Hernandez's signature or a detailed explanation of why Mr. Schwartz
could not get it. Therefore, Mr. Schwartz's Motion to Withdraw fails to meet the requirements of
Local Rule AT-3.
Because Mr. Schwartz's Motion to Withdraw does not meet all of the requirements,
the Court will DENY the motion.
Plaintiff's Motion for a New Trial
Mr. I-Iernandez moves this Court for a New Trial pursuant to Rule 59(a)(l)(B). (ECF
#45). For reasons the Court will explain below, the Court will, also analyze this motion as if it
were a motion under Rule 59(e) to alter or amend this Court's judgment dismissing the case.
A. Motions for New Trials
Motions for new trials are governed by Rule 59 of the Federal Rules of Civil Procedure.
It says that a "court may, on motion, grant a new trial on all or some of the
(b) after a nonjury trial, for any reason for which a rehearing has heretofore
been granted in a suit in equity in federal court." (Fed. R. Civ. P. 59(a)(l )(B)).
B. Motions to Alter or Amend a Judgment
Motions to alter or amend a judgment are governed by Rule 59(e). It says that a
"motion to alter or amend a judgment must be filed no later than 28 days after the entry of the
judgment." (Fed. R. Civ. P. 59(e)). The Fifth Circuit has emphasized that "[r}econsideration of a
judgment after its entry is an extraordinary remedy that should be used sparingly." (Templet
HydroChem Inc. ,367 F.3d 473, 479 (5th cir. 2004) (citing Clancy
Emps. Health Ins. Co., 101
F.Supp.2d 463, 465 (E.D. La. 2000)); see also
MARY KAY KANE, FED. PRAC. & PROC.
CHARLES A. WRIGHT, ARTHUR R. MILLER
at 124 (2d ed. 1995)). The purpose of a motion
to alter or amend a judgment is not to "rehash evidence, legal theories, or arguments that could
have been offered or raised before the entry ofjudgment." (Templet, 367 F.3d at 479 (citing Simon
United States, 891 F.2d 1154, 1159 (5th Cir. 1990))). Rather, its purpose is to "allow a party
to correct manifest errors oflaw or fact [in the judgment] or to present newly discovered evidence."
(Id. (quoting Waitman v.
Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (internal quotations
A. Mr. Hernandez's M?tion for a New Trial Pursuant tO Rule 59(a)(1)(B)
Mr. Hernandez's Motion for a New Trial is undercut by one very simple factthere
has been no trial on this matter. Rule 59(a)(l)(B) authorizes a court to grant a new trial only "after
a nonjury trial." But there has been no nonjury trial in this case. There has been no trial at all.
Therefore, the Motion for a New Trial will be DENIED insofar as it is actually a motion for a new
B. Mr. Hernandez's Motion to Alter or Amend the
Because a Motion for a New Trial is clearly inapplicable to this case, and because Mr.
Hernandez's motion contains many arguments more characteristic of a motion for reconsideration
than a motion for a new trial, the Court will also analyze Mr. Hernandez's motion as though it
were a motion under Rule 59(e) to alter or amend this Court's judgment dismissing with prejudice
Mr. Hernandez's case.
The motion submitted by Messrs. Schwartz and Musslewhite is nearly unintelligible.
But the Court agrees with the defendants' characterization of the motion as asking the Court to
reverse its order of dismissal and to reopen the, case for two reasons: (1) ,because Mr. Hemandez
seeks to compel production of documents from Metropolitan Methodist Hospital for this Court's
review and to supplement the reáord on appeal, and (2) beôause some of the Federal Rules of Civil
Procedure (including Rules 8(a), 1 2(b)(6), 12(c), and 5 6(a)) involved in the Court's dismissal of
Mr. Hemandez's case are unconstitutional. (ECF #45
atl-4; ECF #46 at 3).
Mr. Hernandez's first basis for seeking to alter or amend the Court's dismissal of his
he seeks additional production/evidence from the Metropolitan
Methodist Hospitalis unpersuasive. It is true that one purpose of a motion under Rule 59(e) is
to give the Court the opportunity to reconsider its decision in light of newly discovered evidence.
367 F.3d at 479). But Mr. Hemandez here is not presenting the Court with newly
discovered evidence. Rather, he is asking the Court to help him discover new evidence that he
hopes will bolster his case. That is not an appropriate function for a Rule 59(e) motion.
Mr. Hemandez's second basis for seeking to alter the Court's previous judgmentthat
certain of the Federal Rules of Civil Procedure are unconstitutionalis likewise unpersuasive. If
Mr. Hemandez truly believed that dismissing his case under Rule 1 2(b)(6) for failing to state a
claim pursuant to the pleading standards articulated in Rule 8(a) and the Supreme Court's Twombly
decisions was an unconstitutional act, then he had many opportunities to raise that
argument before now. For example, he could have raised the argument in a response to any of the
motions to dismiss that have been filed in this case. (E.g. ECF #4; ECF #2 1). But he did not,
despite having many months to do so after each of the motions to dismiss. And because a motion
to alter or amend a judgment is not the proper place to raise novel "legal theories or arguments
that could have been offered or raised before the entry of judgment," the Court will not entertain
Mr. Hernandez's constitutional arguments
367 F.3d at 479).
Because Mr. Hemandez's motion identifies neither newly discovered evidence nor
manifest çrrors of law for the Court's consideration, the Court will DENY the Motion for a New
Trial to the extent that it is interpreted to be a motion to alter or amend this Court's previous
Defendants' Motion for Sanctions
The defendants ask the Court to sanction Messrs. Schwartz and Musslewhite in the
amount of the defendants' counsel's attorney's fees incurred preparing their response to Mr.
Hernandez's Motion for a New Trial. (ECF #46 at 3, 5, 14). They ask that the Court impose
sanctions pursuant to Rule 11(c) and pursuant to the Court's inherent authority to sanction
attorneys under 28 U.S.C. § 1927. (Id. at 5).
The Court declines to impose sanctions at this time. The Court first notes that the
defendants did not follow the proper procedures for pursuing sanction pursuant to Rule 11, which
requires that a motion for sanctions pursuant to Rule
"not be filed or presented to the court if
the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected
within 21 days after service." (Fed. R. Civ. P.
But the defendants filed their motion
only 7 days after Mr. Hernandez filed the Motion for a New Trial. For that reason, sanctions under
are not appropriate.
Even lithe Court were to entertain Mr. l-lernandez's constitutional arguments, it would find against Mr. Hernandez.
The Federal Rules of Civil Procedure are promulgated by the Supreme Court, the ultimate arbiters of constitutionality
in our system. As such, it would be an unprecedented move for this Court to find the Supreme Court's own rules to
be unconstitutional. Therefore, even if Mr. Hernandez's constitutional arguments had been timely raised, it would not
be a "manifest error of law" for the Court to reject Mr. Hernandez's arguments, and a motion to alter or amend the
Court's judgment would be denied.
The use of the Court's inherent authority to impose sanctions is purely discretionary.
And this Court does not like to impose sanctions absent a showing of maliciousness or bad faith.
Messrs. Schwartz and Musslewhite have made many, many errors in the course of this
making false representations to the Court, engaging in the unauthorized practice of law, failing to
respond to dispositive motions, filing incomprehensible and untimely motions, etc. Despite these
failings, the Court does not get the impression that Messrs. Schwartz's and Musslewhite' s
prosecution of this most recent phase of the case has been malicious or in bad
profoundly incompetent. As such, any punitive measures that Messrs. Schwartz and Musslewhite
may deserve is better meted out by the bar than by the Court.
For these reasons, the Court will DENY the defendants' motion for sanctiOns.
That Messrs. Schwartz and Musslewhite made false representations to the Court would normally be evidence
enough of bad faith to warrant sanctions. But those misrepresentations were made during an earlier phase of this
litigation. The defendants only seek as sanctions their costs incurred responding to Messrs. Schwartz' and
Musslewhite's mislabeled and poorly reasoned Motion for a New Trial. And while that motion is horribly drafted
and ultimately will be denied, it is not malicious and is not related to Messrs. Schwartz' and Musslewhite's earlier
For the reasons given above, the Court will take the following actions:
DENY Newton B. Schwartz's Motion to Withdraw (ECF #42).
DENY the plaintiffs Motion for a New Trial (ECF #45).
DENY the defendant's Motion for Sanctions (ECF #46).
A separate order will follow.
day of November, 2017.
HONRABLE ROYCE LAMBERTH
UNITED STATES DISTRICT JUDGE
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