Newhouse et al v. Ethicon Inc et al

Filing 69

ORDER denying 66 MOTION by Delva Newhouse, William Perry Newhouse to Demand the Magistrate Be Removed From Case for Good Cause and Prejudice; the status conference previously ordered to take place on 4/11/2019 will be expedited to 3/28/2019 at 11:00 a.m. in Courtroom 5400, Robert C. Byrd Courthouse, 300 Virginia Street East, in Charleston, West Virginia in order to resolve other pending motions; Delva Newhouse and counsel for the defendants are expected to appear in person; it is further ORDERED that Ms. Newhouse shall bring with her to the hearing certain documents identified herein. Signed by Magistrate Judge Dwane L. Tinsley on 3/8/2019. (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,
Plaintiff,
v.

Case No. 2:17-cv-02735

ETHICON, INC. et al.,
Defendants.
ORDER
A.

Motion for Removal of Magistrate Judge.

Pending before the court is Delva Newhouse’s “Motion to Demand the Magistrate
be Removed from Case for Good Cause and Prejudice” (ECF No. 66). In particular, Ms.
Newhouse seeks the removal of the referral of this matter to the undersigned because
“[n]o consent was ever given by either party for this Magistrate Judge to proceed over this
case as required by clearly established Federal Civil Court Rule 53(a)(2), 28 U.S.C. §
636(c), and 28 U.S.C. § 455.” (ECF No. 66 at 1). The motion further asserts that the
undersigned has “failed to issue any type of Report and Recommendation(s) on any
claims/motions, in order to protect Fellow Members of the BAR and Defendants
Corporate Interests at the expense of irreparable harms/injuries, sufferings, and deaths
of the Plaintiff and innocent U.S. Citizens.” (Id.)
Ms. Newhouse appears to misunderstand the referral of this matter to the
undersigned. While 28 U.S.C. § 636(c) permits the parties to consent to a magistrate

judge conducting any or all proceedings in a jury or nonjury civil matter, including the
entry of a final judgment, section 636(b)(1) permits a district judge to designate a
magistrate judge to hear and determine any pretrial matter, and for certain enumerated
motions or types of proceedings, to submit proposed findings of fact and
recommendations for disposition to the presiding district judge. Because the plaintiff is
proceeding pro se, this matter was referred by Standing Order (ECF No. 5) to the
undersigned United States Magistrate Judge to consider all pretrial proceedings and to
submit proposed findings and recommendations for disposition, pursuant to 28 U.S.C. §
636(b)(1)(A) and (B). 28 U.S.C. § 636(b)(1); see also Kerr v. Marshall Univ. Bd. of
Governors, 824 F.3d 62, 72 and n.7 (4th Cir. 2016) (“Section 636(b) permits a district
court to assign any pretrial matter to a magistrate judge.”).
Thus, this matter is properly referred to the undersigned, pursuant to 28 U.S.C. §
636(b)(1) and section 636(c) is n0t presently implicated. Moreover, no dispositive
motions have been filed that have required the submission of a Report and
Recommendation containing proposed findings of fact and recommendation for
disposition under section 636(b)(1)(B).
To the extent that Ms. Newhouse’s motion seeks to disqualify the undersigned
United States Magistrate Judge, such a motion is governed by 28 U.S.C. § 455.
Specifically, the plaintiff’s motion appears to implicate subsections (a) and (b)(1) of that
statute. Title 28, United States Code, Section 455(a) provides, in pertinent part, that a
magistrate judge “shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). Subsection (b) also mandates
disqualification where a magistrate judge “has a personal bias or prejudice concerning a
party. . . .” 28 U.S.C. § 455(b)(1).
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The standard for determining disqualification is “whether another, not knowing
whether or not the judge is actually impartial, might reasonably question his impartiality
on the basis of all the circumstances.” United States v. DeTemple, 162 F.3d 279, 286 (4th
Cir. 1998); Aiken County v. BSP Division of Envirotech Corp., 866 F.2d 661, 679 (4th Cir.
1989). This is an objective standard and recusal under section 455(b)(1) “is required only
if actual bias or prejudice is proved by compelling evidence.” Brokaw v. Mercer County,
235 F.3d 1000, 1025 (7th Cir. 2000) (concluding that a reasonable person would not be
convinced of bias based on judicial rulings alone). The plaintiff bears the burden of
proving facts that justify recusal. DeNardo v. Municipality of Anchorage, 974 F.2d 1200,
1201 (9th Cir. 1992).
In accordance with the provisions of 28 U.S.C. §§ 455(a) and (b)(1), the
undersigned denies having any personal bias or prejudice concerning the parties herein,
and firmly believes that his impartiality cannot reasonably be questioned in this case. Ms.
Newhouse’s assertions appear to be based solely on the fact that the undersigned has not
issued a Report and Recommendation for disposition in this matter or expedited the
proceedings for an immediate jury trial without discovery or other pretrial proceedings,
and her dissatisfaction with the undersigned’s rulings in the matter thus far.
Therefore, the undersigned FINDS that there is no valid basis for disqualification
of the undersigned or re-assignment of this matter. Accordingly, it is hereby ORDERED
that the “Motion to Demand the Magistrate be Removed from Case for Good Cause and
Prejudice” (ECF No. 66) is DENIED.

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B.

Rescheduling of status conference.

In order to resolve the issue of substitution of the proper plaintiff and to address
other pending motions and further proceedings in this matter, the status conference
previously ordered to take place on April 11, 2019 will be expedited.

It is hereby

ORDERED that a status conference will take place in this matter on Thursday, March
28, 2019 at 11:00 a.m. in Courtroom 5400, Robert C. Byrd Courthouse, 300
Virginia Street East, in Charleston, West Virginia. Delva Newhouse and counsel
for the defendants are expected to appear in person.
It is further ORDERED that Ms. Newhouse shall bring with her to the hearing the
following documents or evidence: (1) a copy of the Order appointing her as the executrix
of the estate of William Perry Newhouse, III; (2) evidence that Mr. Newhouse’s sons have
renounced any interest they may have in the estate and that there are no other
beneficiaries; and (3) evidence that there are no other creditors of the estate. Ms.
Newhouse should be prepared to discuss the status of the settlement of Mr. Newhouse’s
estate.
The Clerk is directed to mail a copy of this Order to the plaintiff and to transmit a
copy to counsel of record.
ENTER:

March 8, 2019

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