MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court are the plaintiff's Motion to Remand [Docket 6] and the defendants' Motion to File Surreply in Response to Plaintiff's Reply Brief on Motion for Remand [Docket 14]. For the reasons discussed below, the plaintiff's Motion to Remand is GRANTED and the defendants' Motion to File Surreply is GRANTED. I. Background This case arises out of a contract dispute between Med-Surg Group, Inc. ("Med-Surg") and...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is defendant's motion to dismiss for selective prosecution, filed November 28, 2011. On July 19, 2011, the United States filed a single count indictment charging defendant with the knowing possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. 922(g)(1) and 924(e) ("federal indictment"). On November 22, 2011, the court held a pretrial motions hearing attended by counsel for...
MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is the Defendant's Motion to Dismiss or Stay Proceedings Pending Arbitration [Docket 15]. For the reasons discussed below, this motion is DENIED. I. Background A. Facts and Procedural Posture Hinkle Contracting Company, LLC ("Hinkle" and "HCC") entered into a contract with the West Virginia Department of Transportation to construct portions of the King Coal Highway project in Mingo County, West...
MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is the plaintiff's Motion to Remand [Docket 6]. For the reasons discussed below, this Motion is DENIED. I. Background On May 12, 2009, the plaintiff, Joel Scaralto, was driving down U.S. Route 35 near Henderson, West Virginia. As Mr. Scaralto made a left-hand turn, he was rear-ended by a truck driven by Walter Ferrell. At that time, Mr. Ferrell was employed by Arnett Holdings, Inc., d/b/a TMC...
MEMORANDUM OPINION CHERYL A. EIFERT, United States Magistrate Judge. This action seeks a review of the decision of the Commissioner of the Social Security Administration (hereinafter "Commissioner") denying Claimant's applications for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. 401-433, 1381-1383f. This case is presently before the Court on the parties' cross motions...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending are (1) the United States' motion to enter the proposed consent decree, filed May 2, 2011, and (2) the motions to dismiss and withdraw claims by Ohio Valley Environmental Coalition, Inc., Sierra Club, and West Virginia Highlands Conservancy, Inc. ("citizen organizations"), filed September 6, 2011. In discussing the circumstances of this case, the court will refer to this litigation as the "Charleston action."...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending before the Court is Defendant Kanawha River Terminals, LLC, and Defendant Kanawha River Terminals, Inc.'s Motion for Summary Judgment (ECF No. 34). For the reasons set forth below, the motion is DENIED. I. Introduction Kanawha River Terminals (KRT) is in the business of transloading coal at four different facilities. Transloading involves loading, unloading, and blending coal from trains and barges. The plaintiff...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. On October 10, 2011, this Court held a hearing to sentence Defendant in the above-captioned case. At the sentencing, Defendant's counsel raised two objections to the presentence report. As ordered at the October 10 hearing and for the reasons given in this memorandum opinion, the Court GRANTS Defendant's first objection and DENIES Defendant's second objection to the presentence report. I. Background On October 26, 2010,...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is the motion of Bank of America, N.A. ("BOA"), for judgment on the pleadings filed April 4, 2011. I. A. The Complaint and Removal Plaintiff Mark C. Cline is a West Virginia citizen. Defendant BOA is a North Carolina citizen and a national bank engaged in the business of consumer lending. Cline's complaint offers very few factual allegations. It appears that he is self employed as a chiropractor. At some...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is defendant's motion to suppress evidence filed June 2, 2011. On June 16, 2011, the court conducted an evidentiary hearing attended by William B. King, II, Assistant United States Attorney, on behalf of the United States and defendant, who appeared in person and by his counsel David R. Bungard, Assistant Federal Public Defender. The discussion following in section I represents the court's findings of fact,...
MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is a Petition for a Writ of Habeas Corpus [Docket 21], pursuant to 28 U.S.C. 2254. The respondents have filed a Motion for Summary Judgment [Docket 34], which has been fully briefed and is now ripe for review. For the reasons provided below, the Motion for Summary Judgment is GRANTED and the Petition for a Writ of Habeas Corpus is DENIED. This case involves the conviction of petitioner Lee Edward...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending before the Court are Plaintiffs' Motion for Partial Summary Judgment (ECF 7), Plaintiffs' Supplemental Motion for Partial Summary Judgment (ECF 13), Defendant's Motion to Dismiss and Motion to Abstain (ECF 23), and Defendant's Cross-Motion for Summary Judgment (ECF 62). A hearing was held on the motions on August 26, 2011. All briefing has been submitted, and the issues are ripe for disposition. For the reasons that...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending before the Court are Defendants' Motion for Summary Judgment (ECF 128) and Plaintiffs' Motion for Class Certification (ECF 130). The issues have been fully briefed and are ripe for disposition. For the following reasons, the motion for summary judgment is GRANTED in part and DENIED in part and the motion for class certification is DENIED. I. BACKGROUND This case, originally filed on December 29, 2009, in the...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is the motion to dismiss of defendant United States of America ("United States"), filed June 25, 2010. The statement of facts set forth in Part I below is taken from the plaintiffs' complaint. I. Plaintiffs are representatives of the estates of their respective deceased husbands Don Israel Bragg ("Bragg") and Ellery Hatfield ("Hatfield"). Bragg and Hatfield were two miners who died during a fire at Aracoma Coal...
MEMORANDUM OPINION & ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is the plaintiff's Motion to Remand and for Attorneys' Fees [Docket 9]. For the reasons explained below, the plaintiff's Motion is GRANTED and this case is hereby REMANDED to the Circuit Court of Kanawha County, West Virginia. The plaintiff is also DIRECTED to file, within fourteen days of the entry of this order, an accounting of its fees and costs. I. Factual and Procedural History On March 8, 2011,...
MEMORANDUM OPINION AND SUMMARY JUDGMENT ORDER THOMAS E. JOHNSTON, District Judge. Pending before the Court are Plaintiff Center for Individual Freedom, Inc.'s (CFIF) Renewed Motion for Summary Judgment [Docket 210] and Plaintiffs Zane Lawhorn and West Virginians for Life, Inc.'s (WVFL) Second Motion for Summary Judgment [Docket 209]. On February 11, 2011, the parties argued both motions at a hearing before the Court. (Docket 225.) The parties agree that no issues of fact remain outstanding...
MEMORANDUM OPINION & ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is the motion by the plaintiff, Logan & Kanawha Coal Co., LLC ("L & K") to Order Service by the U.S. Marshals Service [Docket 5]. For the reasons outlined below, this motion is hereby GRANTED to the extent it requests that this court direct the United States Marshals Service to serve upon the defendant the plaintiff's Motion to Confirm Arbitration Award and other supporting documentation. The plaintiff is...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending before the Court is Claimant Donald Jamal Wilson's pro se Motion to Set Aside Void Judgment. [Doc. No. 55]. For the following reasons, the Court DENIES the motion. I. FACTUAL AND PROCEDURAL HISTORY During the summer and fall of 2006, the Huntington Police Department Drug Unit (HPD) was investigating Mr. Wilson for drug trafficking offenses in the Huntington area. As a result of the investigation, HPD obtained three...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. This is a shareholder challenge to a two-step acquisition in which a third-party corporation has agreed to commence a tender offer for a majority of the target corporation's stock, followed by a back-end merger into a subsidiary of the acquirer. Pending are various motions filed by the parties. For the reasons that follow, the Court GRANTS in part and DENIES in part the defendants' Motion to Proceed in One Jurisdiction,...
MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is the plaintiff's Motion to Remand this action to the Circuit Court of Kanawha County, West Virginia [Docket 5]. For the following reasons, the court FINDS that the plaintiff's claims are not completely preempted and GRANTS the plaintiff's motion to remand. I. Background The plaintiff, William David Richards, worked as a union employee for the defendant Appalachian Power Company ("APCO"), which is...
