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Amended Memorandum Opinion1
Plaintiff Barbara Kitchen brings this action against Defendant Summers Nursing and Rehabilitation Center, LLC (formerly known as Summers Continuous Care Center, LLC) (Summers) alleging wrongful discharge and failure to accommodate in violation of the Americans with Disabilities Act (ADA) and the West Virginia Human Rights Act (WVHRA).2 Pending before the Court is Summers’ Motion for Summary Judgment [Docket 80]. For the reasons stated below, the motion is GRANTED.
Memorandum Opinion and Order
The court is called upon to decide, pursuant to Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, whether defendants Aquamine and Victaulic (“Defendants”) have shown good cause for certain documents, marked “CONFIDENTIAL” prior to disclosure to Plaintiffs during discovery, to remain confidential and subject to the court’s form protective order.
Memorandum Opinion and Order
Pending before the court are the respondents’ Motions to Dismiss Petition for Injunction under Section 10(j) of the National Labor Relations Act [Dockets 26 & 30]. The respondents argue that the petition for an interim injunction should be dismissed on two independent grounds. First, the respondents urge dismissal because the petitioner lacks the legal authority to bring the petition on behalf of the National Labor Relations Board. Second, the respondents argue that injunctive relief is not “just and proper” under § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j).
Memorandum Opinion and Order
I conducted a sentencing hearing on April 9, 2008. After calculating the relevant guideline range, hearing argument and evidence, and analyzing the relevant 18 U.S.C. § 3553(a) factors, I imposed a variance sentence of 30 months imprisonment, followed by a supervised release term of 4 years, which is below the guideline imprisonment range of 37 to 46 months. In this Memorandum Opinion, I explain why the conversion ratios contained in U.S.S.G. § 2D1.1 app. note 10(D) result in unwarranted sentencing disparities.
Memorandum Opinion
Pending before the Court are Plaintiff’s Motion for Summary Judgment [Docket 16] and the IRS’s Cross-Motion for Summary Judgment [Docket 18].1 This matter is before the Court on Plaintiff’s appeal for re-determination of the validity of taxes assessed for the tax periods ending September 30, 1993 and December 31, 1993, respectively. Plaintiff originally challenged the validity of the assessments in a collection due process (CDP) hearing before the IRS Appeals Office, which upheld the assessments. Pursuant to 26 U.S.C. §§ 6320(c) and 6330(d), Plaintiff appealed the IRS’s determination to the Tax Court. Finding that it lacked jurisdiction,2 the Tax Court dismissed Plaintiff’s appeal and instructed her to re-file her appeal in the appropriate United States District Court. On July 21, 2006, Plaintiff timely filed her appeal in this Court. The parties agreed to resolve the case on cross-motions for summary judgment, (See Docket 22 ¶ 3), and the Court heard oral argument on the cross-motions. For the reasons set forth below, the Court GRANTS Plaintiff’s Motion for Summary Judgment [Docket 16] and DENIES the IRS’s Cross-Motion for Summary Judgment [Docket 18].
Memorandum Opinion and Statement of Reasons
In 2005, the Supreme Court determined that the mandatory Sentencing Guidelines regime violated the Sixth Amendment right to a jury trial and remedied this violation by excising the two provisions of the Sentencing Reform Act that made the Guidelines mandatory, thus rendering them advisory. United States v. Booker, 543 U.S. 220, 232-36, 258-63 (2005). In the wake of Booker, this court and many other district courts struggled to understand the bounds of their newfound sentencing discretion and attempted to strike a balance between the advice provided by the Guidelines and the policy instructions contained in 18 U.S.C. § 3553(a). The courts of appeals had the difficult task of reviewing such sentences for “reasonableness,” relying on the same waypoints for navigation. Id. at 264. I originally sentenced Mr. Moreland to a term of 120 months in prison and a supervised release term of 96 months. United States v. Moreland, 366 F. Supp. 2d 416 (S.D. W. Va. 2005) (Moreland I). The Fourth Circuit vacated the sentence and remanded, finding that term of imprisonment unreasonable and instructing this court to impose a sentence of not less than twenty years. United States v. Moreland, 437 F.3d 424, 437-38 (2006) (Moreland II).
Memorandum Opinion and Order
Pending before the Court are: (1) Defendant Charles E. (Eric) Gwinn’s Motion to Dismiss [Docket 102]; (2) Defendant David P. Murphy’s Motion to Set Aside Entry of Default [Docket 112] and Motion to Dismiss [Docket 118];1 (3) Defendant Charles E. (Charlie) Gwinn’s Motion for Judgment on the Pleadings [Docket 119]; and (4) Defendant Thomas M. Binetti’s Motion to Dismiss [Docket 121].2
Memorandum Opinion and Order
Pending is defendants’ (the “defendants” or “judges”) motion for summary judgment, filed November 5, 2007.
Memorandum Opinion
Pending before the Court is the United States’ Motion for Summary Judgment [Docket 34]. This matter is before the Court on the United States’ Complaint for Federal Taxes [Docket 1], wherein the United States seeks to recover unpaid taxes from Dr. Francis J. Whelan by foreclosing on a parcel of real property in Wyoming County, West Virginia. The action originally named as defendants Dr. Whelan, his three sons, Joseph, David, and Benjamin Whelan, and Ronnie and Wilma Barker, who allegedly had an interest in the real property at issue. Since then, Dr. Whelan has passed away and his son Benjamin, the personal representative of his estate, has been substituted as a party defendant.1 Further, the Barkers have relinquished their interest in the property and been dismissed from the case. (Docket 32 at 1.) Discovery has closed, and the parties agreed to resolve the case on summary judgment. (Docket 29 ¶¶ 7-10.) For the reasons set forth below, the United States’ Motion for Summary Judgment [Docket 34] is GRANTED IN PART and DENIED IN PART.
Memorandum Opinion and Order
Pending before this Court is Defendant’s Motion to Dismiss (Doc. 24) and a Supplemental Motion to Dismiss Hobet Mining, LLC for Lack of Subject Matter Jurisdiction (Doc. 38). A hearing was held on these motions, January 7, 2007. For the reasons explained below, the Motion to Dismiss (Doc. 24) is DENIED; the Supplemental Motion to Dismiss (Doc 38) is DENIED without prejudice.