MEMORANDUM OPINION AND ORDER IRENE C. BERGER, District Judge. The Court has reviewed Defendant John Hajash's Motion for Summary Judgment [Docket 31], Defendant Greg Kade's Motion for Summary Judgment [Docket 37], and the Motion for Summary Judgment of Defendants Danny Moore, Raleigh County Commission, Raleigh County Sheriff's Department and Steve Tanner [Docket 39]. After careful consideration of the supporting memoranda, responses and replies, the Court GRANTS in part and DENIES in...
MEMORANDUM OPINION & ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is Class Counsel's Motion for Award of Attorney Fees, Incentive Awards for Class Representatives, and Reimbursement of Expenses [Docket 215]. Class Counsel 1 seek a fee award equivalent to 25% of the Settlement Fund. Class Counsel also seek $96,113.54 for out-of-pocket expenses and a $25,000 incentive award for each named Class Representative. I. Introduction The fees requested by Class Counsel in this case,...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending before the Court are Apogee Coal Company, LLC ("Apogee") and Hobet Mining LLC's ("Hobet") 1 motions to modify the consent decrees (Docs. 149 & 61) in civil actions 3:07-cv-0413 and 3:08-cv-0088, respectively; Plaintiffs' motion for contempt (Doc. 156) in 3:07-cv-0413; and the scope and terms of injunctive relief in 3:09-cv-01167. A trial on the motions was held from August 9, 2010, until August 12, 2010. After trial,...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is the motion, filed May 19, 2010, of the United States to dismiss the plaintiff's claim arising under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680 ("TCA"), pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. I. Background In October 2009, plaintiff Michael Holbrook initiated this action against the United States under the FTCA, alleging that the Federal...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is the appeal of Par Industrial Corporation ("Par") of the September 8, 2006, order of the bankruptcy court in which the bankruptcy court granted the motion for summary judgment of plaintiff Nitro Corporation ("Nitro") and permitted Nitro to enforce the sale by Par to Nitro of property described in two options to purchase. I. On September 4, 1987, Par and Nitro entered into a contract ("Option I") in which Nitro...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is the Attorney General's motion to remand, filed October 13, 2009. I. West Virginia law requires pharmacists to "substitute a less expensive equivalent generic name drug" for prescriptions for a brand name drug unless the generic drug is unsuitable for the particular patient. W. Va. Code 30-5-12b(b). Further, West Virginia law requires that "[a]ll savings in the retail price of the [generic] prescription. . ....
MEMORANDUM OPINION AND ORDER THOMAS E. JOHNSTON, District Judge. Pending is Defendant Heywood Smith IV's Motion to Dismiss Counts 1 and 2 of the Indictment [Docket 23]. For the reasons set forth below, the Motion is DENIED. I. BACKGROUND On April 13, 2010, the grand jury returned a two-count indictment against Defendant, Heywood Smith IV, charging him with possessing a firearm after a misdemeanor domestic violence conviction, in violation of 18 U.S.C. 922(g)(9). (Docket 2 at 1.) Count...
MEMORANDUM OPINION AND ORDER IRENE C. BERGER, District Judge. The Court has reviewed Defendant's Objection to Order Denying Defendant's Motion to Elect [Docket 249]. After careful consideration, the Court overrules Defendant's objection, affirms the July 26, 2010, Memorandum Opinion [Docket 241] of United States Magistrate Judge R. Clarke VanDervort, and denies Defendant's Motion to Elect [Docket 165]. I. Background and Procedural Posture Defendant currently faces two counts of stalking by...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending are the motions for summary judgment of defendant GreenPoint Mortgage Funding, Inc. ("GreenPoint") and defendant Countrywide Home Loans Servicing, LP ("Countrywide"), filed March 15, 2010, and March 29, 2010, respectively. Also pending is GreenPoint's motion to dismiss Count V of the Third Amended Complaint, filed April 29, 2010. 1 I. Undisputed Facts Plaintiff William Croye purchased his home at 1815 Orchard...
ORDER ROBERT C. CHAMBERS, District Judge. Pending are the following motions: (1) Defendants and Counterclaimants Baychar Holdings, LLC, Baychar, Inc., Baychar, and Baychar Technologies, Inc.'s. (collectively referred to as the Baychar Defendants') Motion for Summary Judgment [doc. no. 123]; (2) Plaintiff and Counterclaim Defendant Rubberlite, Inc.'s Rule, 56(b) and 56(d)(1) Motion for Partial Summary Judgment/Adjudication [doc. no. 112]; and (3) Plaintiff and Counterclaim Defendant James...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending before the Court is a Motion to Dismiss by Defendants The West Virginia Regional Jail and Correctional Facility Authority (WVRJA) and Terry L. Miller. [Doc. No. 16]. Upon consideration of the arguments by the parties, the Court DENIES Defendants' motion. I. FACTS On October 9, 2009, Plaintiff Michael Cantley, individually and on behalf of a Class of others similarly situated, filed his First Amended Complaint. In...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending before this Court is Defendants' motion for summary judgment (Doc. 168). For the reasons stated below, the Court GRANTS in part and DENIES in part the motion. General Background This case arises out of the search of a home, on July 8, 2005, and into the early hours of July 9, 2005. Although some material facts remain at issue, the following general description of the search is undisputed. On July 8, 2005, between...
MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is the Motion to Dismiss [Docket 18] by the defendant, Birchenough Mortgage Services, Inc. ("BMS"). By its motion, BMS asks the court to dismiss this case for improper venue. BMS alternatively asks that this case be transferred to the United States District Court for the Northern District of West Virginia. The Motion is DENIED. I. Background This motion presents an issue that appears to have been...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is defendants' motion to dismiss, filed February 9, 2010. I. Statement of Facts Plaintiff is a resident of Kanawha County. (Compl. 1). Defendant Ronald Duerring is a resident of Kanawha County and the Superintendent of the Kanawha County Board of Education. ( Id. at 2). Defendant Kanawha County Board of Education ("the Board") is a political subdivision of the State of West Virginia with its principal office...
AMENDED MEMORANDUM OPINION AND ORDER 1 ROBERT C. CHAMBERS, District Judge. This suit, brought on October 23, 2009, and as amended November 9, 2009, seeks declaratory judgment and injunctive relief based on alleged violations of: (1) the effluent limits for selenium in WV/NPDES Permit 1022911, and (2) the performance standards and terms and conditions of surface mining permit S-5008-06. Pending before the Court are Plaintiffs Ohio Valley Environmental Coalition, Inc., West Virginia Highlands...
MEMORANDUM OPINION ORDER ROBERT C. CHAMBERS, District Judge. Pending before the Court are Plaintiff Fifth Third Bank's ("Fifth Third") Motion for Summary Judgment (Doc. 53) and Defendants Victor A. McClure and McClure Properties, Inc.'s ("Defendants") Omnibus Motion in Limine (Doc. 69). For the following reasons, Plaintiff's motion is GRANTED and Defendants' motion is DENIED as moot. Background This case, filed on March 27, 2008, and as amended on May 2, 2008, concerns a commitment...
MEMORANDUM OPINION AND ORDER JOHN T. COPENHAVER, JR., District Judge. Pending is plaintiffs' motion for preliminary injunction seeking a continuation of retiree healthcare benefits with respect to retirees who retired prior to the current June 1, 2006, collective bargaining agreement ("CBA"). On February 18, 2010, the court conducted the preliminary injunction hearing. I. A. Introduction On November 13, 2009, plaintiffs, who are retired employees from a facility operated by one or more of...
MEMORANDUM OPINION AND ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is the defendants' Motion to Transfer Pursuant to 28 U.S.C. 1404 [Docket 11]. The motion is GRANTED. I. Background This is a products liability case. According to the Complaint, Salli Rae Leonard, a resident of Holland, Michigan, was prescribed 75 mcg fentanyl transdermal system patches (the "patch"). The patch administers the pain drug fentanyl to the user's bloodstream through the skin. Ms....
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. Pending is the defendant's Motion to Dismiss (Doc. 20). For the reasons explained below, the motion is DENIED. Background In December 2008, the defendant's girlfriend, Adrianne Beasley, purchased a 12-gauge, pump-action shotgun to give him as a Christmas gift. In affidavit, Ms. Beasley explains that she and the defendant, Mr. Tooley, had previously spoken about getting a gun for protection. They lived in a dangerous...
MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge. This suit, brought on October 23, 2009, and as amended November 9, 2009, seeks declaratory judgment and injunctive relief based on alleged violations of: (1) the effluent limits for selenium in WV/NPDES Permit 1022911, and (2) the performance standards and terms and conditions of surface mining permit S-5008-06. Pending before the Court are Plaintiffs Ohio Valley Environmental Coalition, Inc., West Virginia Highlands Conservancy,...
