of Law, at 22. Because discovery is in its nascent stage the Court has concluded that a Motion for Summary Judgment is premature at this time. See supra, Part II.C. Thus, the Motion to Dismiss will be denied without prejudice to defendant Morse's right to raise this issue in a Motion for Summary Judgment after completion of discovery.
For the reasons set forth above the Motion to Dismiss will be granted in part and denied in part, the Motion to Strike will be granted, and the Motion for Summary Judgment will be denied as premature.
An appropriate order follows.
AND NOW, to wit, this 4th day of June, 1997, upon consideration of the Motion of Defendants, Health and Welfare Fund of the Philadelphia Bakery Employers and Food Driver Salesmen's Union Local No. 463 and Teamsters Local Union No. 676 and Gerald J. Morse, Jr., to Strike and to Dismiss or, in the Alternative, for Summary Judgment (Document No. 4, filed April 8, 1997), Memorandum of Law of Plaintiffs, Robert and Anne Marie Kuestner, in Opposition to Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (Document No. 6, filed May 6, 1997), and Reply Brief of Defendants in Support of Their Motion to Dismiss Plaintiffs' Complaint (Document No. 8, filed May 16, 1997), for the reasons set forth in the Memorandum accompanying this Order, IT IS ORDERED that Defendants' Motion to Strike and to Dismiss or in the Alternative is GRANTED IN PART and DENIED IN PART, as follows:
1. The Motion to Dismiss plaintiffs' claim for declaratory judgment with respect to Avonex is GRANTED ;
2. The Motion to Dismiss plaintiffs' claim for declaratory judgment with respect to Betaseron and other injectable drugs is DENIED ;
3. The Motion to Dismiss Count III, plaintiffs' fraud claim, is GRANTED ;
4. The Motion to Dismiss Count V, plaintiffs' bad faith claim, is DENIED ; and,
5. The Motion to Strike plaintiffs' jury demand with respect to their Employee Retirement Income Security Act claims is GRANTED.
IT IS FURTHER ORDERED that the Alternative Motion for Summary Judgment is DENIED AS PREMATURE without prejudice to defendants right to file a second Motion for Summary Judgment after completion of discovery.
IT IS FURTHER ORDERED that the denial of defendants' Motion to Dismiss as to certain issues is WITHOUT PREJUDICE to defendants right to address those issues by motion for summary judgment after completion of discovery and/or at trial.
BY THE COURT:
JAN E. DUBOIS, J.