Newhouse et al v. Ethicon Inc et al

Filing 26

ORDER AND NOTICE The 17 MOTION by Delva Newhouse, William Perry Newhouse for Objection and to Strike Defendants' Answers/Defenses to Complaint is DENIED; the 18 Motion for Objection to Defendants' Statement of Visiting Attorney and Designation of Local Counsel is DENIED; and the 23 MOTION by Delva Newhouse, William Perry Newhouse to Demand Jury Trial by Right Endorsed Hereon is DENIED WITHOUT PREJUDICE. The parties shall conform to the following schedule: Mot ions under Rule 12(b) of the Federal Rules of Civil Procedure, together with separate supporting briefs, memoranda, affidavits or other such matter in support thereof due by 8/13/2018; Last day for Rule 26(f) meeting is 9/10/2018; Last day to fil e Rule 26(f) meeting report is 9/17/2018; Scheduling Conference is set for 10/01/2018 at 10:00 a.m.; Last date for entry of Scheduling Order is 10/11/2018; and Last day to make Rule 26(a)(1) disclosures is 10/15/2018. Signed by Magistrate Judge Dwane L. Tinsley on 7/17/2018. (cc: counsel of record; plaintiff) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
WILLIAM PERRY NEWHOUSE,
and Executor of his Estate, DELVA NEWHOUSE,
Plaintiffs,
v.

Case No. 2:17-cv-02735

ETHICON, INC., et al.,
Defendants.
ORDER AND NOTICE
Pending 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 in turn.
A.

Motion to Strike Answers/Defenses to Complaint.

The 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 judicata.
The 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.
B.

The plaintiffs’ Motion/Objection to Defendants’ Statement of
Visiting Attorney and Designation of Local Counsel.

In this 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.
The 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 DENIED.

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C.

The plaintiffs’ Motion to Demand Jury Trial.

On May 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 premature.
This 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
PREJUDICE.
D.

Time Frame Order for additional proceedings herein.
This 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 such matter in support thereof.

09-10-18

Last day for Rule 26(f) meeting.

09-17-18

Last day to file Rule 26(f) meeting report. See L.R. Civ.P. 16.1(b) and
Fed. R. Civ. P. Form 35.

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10-1-18

Scheduling conference at 10:00 a.m. before United States
Magistrate Judge Dwane L. Tinsley, at the Robert C. Byrd United
States Courthouse, 300 Virginia Street East, Room 5400,
Charleston, West Virginia. All pro se parties and lead and/or local
counsel are directed to appear in person, and all out-of-town counsel
may appear by telephone. At the scheduling/status conference, the
parties shall be prepared to discuss the following:
(a)

the discovery to be completed and the amount of time
necessary for its completion;

(b)

the further formulation and simplification of issues, including
possible elimination of claims or defenses;

(c)

the possibility of entering into stipulations regarding issues
for trial;

(d)

the possibility of obtaining admissions regarding facts and
documents; and

(e)

other matters that will assist the parties in reaching a final
resolution of this matter.

10-11-18

Entry of scheduling order.

10-15-18

Last day to make Rule 26(a)(1) disclosures.

The provisions of Fed. R. Civ. P. 14 and 15 with respect to the time in which thirdparty claims and to amend pleadings without leave of court are not affected by this Order
and Notice. Pursuant to L.R. Civ. P. 16.1 and 73.1, the parties are informed of their
opportunity to consent to the exercise by a magistrate judge of civil jurisdiction over the
case, including entry of judgment, as authorized by 28 U.S.C. ' 636. The parties may
consent by filing a Consent to Jurisdiction by a United States Magistrate Judge (F.R. Civ.
P. Form 34), or by so indicating on the Report of Parties' Planning Meeting and
Scheduling Order Worksheet, all of which are available on the court's website.

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The Clerk is directed to mail a copy of this Order to the plaintiff and to transmit a
copy to counsel of record.
ENTER:

July 17, 2018

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