Pickell et al v. Ethicon, Inc. et al, No. 2:2013cv01589 - Document 22 (S.D.W. Va. 2020)

Court Description: MEMORANDUM OPINION AND ORDER directing that the 4 Amended Short Form Complaint is STRICKEN from the docket; the 17 Motion to Dismiss for Lack of Subject Matter Jurisdiction Based on Predeceased Plaintiff is denied as moot; Janet Pickell and Mr. Pickell's only claim for loss of consortium are DISMISSED without prejudice; the Clerk is directed to close this case and strike it from the docket. Signed by Judge Joseph R. Goodwin on 11/5/2020. (cc: counsel; any unrepresented party) (kew)

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Pickell et al v. Ethicon, Inc. et al Doc. 22 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION JANET PICKELL, ET AL., Plaintiffs, v. Civil Action No. 2:13-cv-01589 ETHICON, INC., ET AL., Defendants. MEMORANDUM OPINION AND ORDER Plaintiffs’ counsel filed this civil action on January 29, 2013, on behalf of Janet and John Pickell. [ECF No. 1]. On July 29, 2013, plaintiffs filed an Amended Short Form Complaint naming: Janet Pickell (deceased), John Pickell, Sharon A. Pernell and Kathy F. Webb (co-administrators). [ECF No. 4]. On February 8, 2019, plaintiffs’ counsel filed a Suggestion of Death noting the death of Janet Pickell “during the pendency of this action.” [ECF No. 15]. Defendants then filed a motion to dismiss and attached Ms. Pickell’s death certificate indicating she died on May 15, 2012. [ECF No. 17, 17-1]. The court ORDERS that the Amended Short Form Complaint filed at ECF Number 4 is STRICKEN because it improperly named new plaintiffs without seeking leave of court pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. Turning to the plaintiffs named in the original Short Form Complaint, Janet and John Pickell, because the plaintiff Janet Pickell was deceased prior to the time this case was filed, she cannot bring a lawsuit in her own name. “[A] lawsuit filed in the name of a deceased individual is a nullity over which this Court has no jurisdiction.” In re Engle Cases, No. 3:09-cv-1000-J-32JBT, 2013 WL 8115442, at *2 (M.D. Fla. Jan. 22, 2013). Accordingly, the court ORDERS that the plaintiff Janet Pickell is DISMISSED without prejudice. As to plaintiff John Pickell, the only remaining plaintiff in this action, his claim for loss of consortium is derivative of Ms. Pickell’s claims. See Scattaregia v. Shin Shen Wu, 495 Dockets.Justia.com A.2d 552, 553 (Pa. Super. Ct. 1985). Because Ms. Pickell’s claims are dismissed by this order, the court ORDERS that Mr. Pickell’s only claim for loss of consortium must be dismissed without prejudice as well. The court further ORDERS that Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction based on Predeceased Plaintiff [ECF No. 17] is DENIED as moot. The Clerk is directed to close the case and strike it from the docket. The court DIRECTS the Clerk to file a copy of this Order and to send a copy of this Order to counsel and any unrepresented party. ENTER: November 5, 2020 2

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