MEMORANDUM OPINION & ORDER AMUL R. THAPAR, District Judge. "Whenever," the statute says. "Whenever" the Secretary "believes" that a mine operator is engaged in a "pattern of violation" of safety standards—a pattern that, in her "judgment," constitutes a "hazard to the health or safety of miners"—she may come to court for relief. 30 U.S.C. 818(a)(2) (emphasis added); see also Appendix A. The defendant mine operators nonetheless insist the Secretary must first exhaust her own...
MEMORANDUM OPINION AND ORDER JOSEPH M. HOOD, Senior District Judge. Defendant Nicholas County School District has filed a Motion to Dismiss [Record No. 5], Plaintiff has responded [Record No. 7], and Defendant has replied [Record No. 9]. This motion is now ripe for decision. I. FACTUAL BACKGROUND Plaintiff Michelle Green, in her individual capacity and as next friend of her minor child D.G., filed a complaint averring violations of 42 U.S.C. 1983, as well as pendent state claims for...
MEMORANDUM OPINION AND ORDER JOSEPH M. HOOD, Senior District Judge. This matter is before the Court on the Motion for Summary Judgment of Defendants Board of Education of Scott County, Kentucky, and Patricia Putty, individually and in her official capacity as Superintendent of the Scott County Schools (collectively "Defendants") [Record No. 26]. Plaintiff R.K., by next friends, J.K. and R.K., has filed a Response in opposition to the motion [Record No. 32], and Defendants have replied [...
MEMORANDUM OPINION & ORDER AMUL R. THAPAR, District Judge. In the Wild West, the rule was "shoot first, ask questions later." In modern civil litigation, the rule seems to be "remove first, ask questions later." It is common practice for defendants to remove cases from state court to federal court almost reflexively, within just a few weeks of being served. This often creates a problem. A defendant may only remove a case to federal court if he can establish by a preponderance of the evidence...
MEMORANDUM OPINION & ORDER AMUL R. THAPAR, District Judge. There are several motions pending before the Court. Jack Henry has filed a motion to amend the Judgment to include postjudgment interest, R. 233, a motion for attorney's fees, R. 238, and a motion to include postjudgment interest in the amended Judgment and the supersedeas bond, R. 248. The Court will dispose of all of these motions in this Order. The Court will also, in accordance with its Order of October 21, 2010, R. 246, advise...
MEMORANDUM OPINION & ORDER GREGORY F. VAN TATENHOVE, District Judge. This matter is before the Court on Lexmark International, Inc.'s Motion for New Trial [R. 1458] pursuant to Federal Rule of Civil Procedure 59. Lexmark seeks a new trial on three grounds: (1) the jury's verdict in Part I of the Special verdict form was against the weight of the evidence; (2) it was prejudiced before and during trial by various rulings of the Court; and (3) certain jury instructions were erroneous and...
MEMORANDUM OPINION & ORDER AMUL R. THAPAR, District Judge. Disaster strikes. An oil spill contaminates a river and poisons a city's water supply. The environmental calamity affects many property owners and businesses in the city, several of whom sue the oil company responsible for the spill in state court. But one of the businesses harmed by the spill decides to sue the oil company in federal court. Should the federal court dismiss the case because the state court actions arise from the same...
MEMORANDUM OPINION AND ORDER JOSEPH M. HOOD, Senior District Judge. This matter is before the Court on a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, filed by Defendants Curt Folger, individually and in his official capacity as Sheriff of Lincoln County, Kentucky, Dan Gilliam, individually and in his official capacity as Deputy Sheriff of Lincoln County, Kentucky and Don Gilliam, individually and in his official capacity as Deputy Sheriff of Lincoln County, Kentucky (...
MEMORANDUM OPINION AND ORDER AMUL R. THAPAR, District Judge. This case boils down to one issue: Has the plaintiff, John Turner, "incurred" attorney's fees within the meaning of the Equal Access to Justice Act even though he is not yet contractually obligated to pay his attorney He has not. Therefore, Turner's motion for attorney's fees, R. 21, is denied. BACKGROUND On October 9, 2009, 2009 WL 3270216, the Court reversed a finding by the Commissioner of Social Security that the plaintiff,...
MEMORANDUM OPINION AND ORDER DAVID L. BUNNING, District Judge. Plaintiff Gerald Gresh commenced this civil action against Defendants, Waste Services of America, Inc. (WSA), W. Todd Skaggs, James P. Dalton and River Cities Disposal, LLC (RCD), alleging that he was fraudulently induced to refrain from exercising his stock option until after most of WSA's assets had been sold or transferred. Gresh asserted various state law claims, including fraudulent misrepresentation and breach of the...
ORDER KARL S. FORESTER, Senior District Judge. This matter is before the Court on Defendant's motion to dismiss this action for lack of personal jurisdiction. The matter was referred to the Magistrate Judge who, on August 10, 2010, issued a Recommended Disposition [DE 26] that the motion be denied. No objections were filed to the Magistrate Judge's findings of fact and recommendation, and the time for filing same has passed. Although this Court must make a de novo determination of those...
MEMORANDUM OPINION & ORDER DAVID L. BUNNING, District Judge. This action was brought pursuant to 42 U.S.C. 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security. The Court, having reviewed the record and the parties' dispositive motions, will affirm the Commissioner's decision, as it is supported by substantial evidence. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiff Eddie Merida applied for a period of disability and disability...
MEMORANDUM OPINION & ORDER DAVID L. BUNNING, District Judge. Plaintiffs, owners of the registered trademarks "Mentos Pure Fresh" and "Pure White" for chewing gum, commenced the instant action after learning of Defendant's intention to market a competing gum under the name "Dentyne Pure." Plaintiffs assert causes of action for trademark infringement, false description, and false designation of origin under the Lanham Act, 15 U.S.C. 1114(1), 1125(a), as well as trademark infringement and...
MEMORANDUM OPINION AND ORDER JOSEPH M. HOOD, Senior District Judge. This matter is before the court on the Motion for Partial Summary Judgment of Plaintiff J & L Canterbury Farms, LLC ("J & L") [5:07-cv-349-JMH, DE 77]. Defendant GeoStar Corporation ("GeoStar") has responded [5:07-cv-349-JMH, DE 80], stating its opposition to the Motion, and Plaintiff has filed a Reply [5:07-cv-349-JMH, DE 82] in further support of its Motion. The Court being sufficiently advised, this Motion is ripe for...
MEMORANDUM OPINION AND ORDER AMUL R. THAPAR, District Judge. This case presents an interesting choice of law question—whose law should the Court apply when the forum state (Kentucky) has minimal interests and the competing state (Illinois) does not have much of an interest either. While at first blush, this appears to be a difficult question, if Kentucky's presumption for its own law means anything, it means that a court must apply Kentucky's law when there are not overwhelming interests to...
MEMORANDUM OPINION & ORDER DAVID L. BUNNING, District Judge. Plaintiff Harold Wallace avers that he was the victim of a scheme, perpetrated by various individuals and corporate entities, to defraud him by inducing him to enter into a large, high-interest mortgage with unfavorable terms through the use of fraudulent real estate appraisals. Plaintiff's Second Amended Complaint (Doc. # 132) alleges violations of the Racketeering Influenced Corrupt Organizations Act (RICO), 18 U.S.C. 1962(c)-(...
MEMORANDUM OPINION AND ORDER KAREN K. CALDWELL, District Judge. This matter is before the Court on the Motion for Partial Summary Judgment filed by Plaintiff Fifth Third Bank ("Fifth Third"). Rec. 34. This case stems from several loans Fifth Third made to Robert Waxman and Vandalay Racing, LLC ("Vandalay") which Fifth Third claims are in default. These loans were guaranteed by Robert Waxman, Debra Waxman and Vandalay (collectively "Defendants"). Defendants have filed a response in opposition...
OPINION AND ORDER BERTELSMAN, District Judge: This matter is before the court on defendant's motion to dismiss or, in the alternative, motion for summary judgment (Doc. 7). The court heard oral argument on this motion on June 2, 2010, after which it took the motion under advisement. (Doc. 18) Having heard the parties, and having further reviewed this matter, the court now issues the following Opinion and Order. Introduction As explained in the following opinion, this court believes that...
MEMORANDUM OPINION & ORDER GREGORY F. VAN TATENHOVE, District Judge. This matter is before the Court on Defendant Deerbrook Insurance Company's Motion for Summary Judgment [R. 33] and Motion to Exclude Testimony of Hon. Michael McDonald About the Value of Scott's Claim [R. 34]. Plaintiff Patrick Scott has filed Responses [R. 35, 36] in opposition to both motions. Additionally, on May 12, 2010, the Court conducted a hearing on the motions. For the reasons set forth below, both motions are...
OPINION BERTELSMAN, District Judge. This is a legal malpractice action in which federal jurisdiction is based on diversity. The matter is before the court on defendant's motion to dismiss, pursuant to Rule 12(b)(2) and 12(b)(6). FACTUAL AND PROCEDURAL BACKGROUND This case arises out of an allegedly spurious tax shelter which was entered into by plaintiffs, Corporex Companies, LLC, Corporex Realty & Investments, LLC, and Corporex Investments, LLC, based on the legal opinion of defendant...
