United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION: DENYING NEWTON B. SCHWARTZ'S
MOTION TO WITHDRAW AS COUNSEL DENYING PLAINTIFFS MOTION FOR A
NEW TRIAL DENYING DEFENDANTS' MOTION FOR
LAMBERTH, UNITED STATES DISTRICT JUDGE
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 #42).
• Plaintiff s Motion for a New Trial (FRCVP 59 (a)
(1)(B)) [sic] ("Motion for a New Trial"). (ECF
• Defendants' Motion for Sanctions ("Motion for
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.
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.
Hernandez alleged that in February 2014 he 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 MRI from
a machine "designed, manufactured and/or 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 burns, 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).
II. Procedural Background
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. Hernandez'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
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 12(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).
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 in 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. Hernandez's] 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. Hernandez
to file a new amended complaint within 14 days that addressed
the concerns raised over the sufficiency of the allegations.
(Id. at 7).
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(f) and 15 and to
dismiss the new amended complaint pursuant to Rule 12(b)(6).
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.
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. Hernandez'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
plaintiffs counsel of filing the motion for a dilatory
purpose; and asserting that Benton Musslewhite, one of Mr.
Hernandez'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.
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. Newton'B. 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).
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