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Memorandum Opinion and Order
Pending are Defendants' motion to dismiss for failure to state a claim and lack of federal jurisdiction and Plaintiffs' motion for preliminary injunction. The Court GRANTS in part and DENIES in part Defendants' motion to dismiss. Finding a federal question, the Court retains jurisdiction of this action. Plaintiffs' motion for preliminary injunctive relief is DENIED.
Memorandum Opinion and Show Cause Order
On July 25, 2000, following a preliminary injunction hearing, the Court issued its Memorandum Opinion and Order Granting Preliminary Injunction. This Opinion elaborates and enlarges the initial ruling.
Memorandum Opinion and Order
Pending are Plaintiffs’ motions to remand and to stay this action until the Court rules on the remand motion. The Court DENIES the motion to remand. The motion to stay is DENIED as moot.
Memorandum Opinion and Order
Pending is Defendants’ motion for summary judgment on all issues. The Court GRANTS the motion on Count IV, breach of fiduciary relationship, but DENIES it on all other claims and counts.
Memorandum Opinion and Order
This appeal presents the question whether 28 U.S.C. ' 1930(a)(6) requires payment of post-confirmation quarterly fees on only those disbursements made pursuant to the debtor=s reorganization plan or, as the appellant United States Trustee (Trustee) contends, upon all postconfirmation disbursements. I conclude that quarterly fees must be paid on all post-confirmation disbursements and therefore reverse the contrary holding of the bankruptcy court and remand for further proceedings.
Memorandum Opinion and Order
Granting Preliminary Injunction
At a hearing on Plaintiffs' application for a preliminary injunction came Plaintiffs by J. Michael Murray, Jeremy A. Rosenbaum, and Kyle G. Lusk and came Defendant, in person, and by Jeffrey G. Blaydes, Gene Hal Williams, and Scott Johnson, Assistant Attorneys General of West Virginia. The parties submitted the issue on joint stipulations, oral arguments, and the briefs previously submitted. On that basis, the Court GRANTS the preliminary injunction application. A more expansive Memorandum Opinion and Order will follow.
Memorandum Opinion and Order
A federal jury convicted Mark Henderson of four counts, including counts of conspiring and attempting to commit drug offenses proscribed by 21 U.S.C. § 841. As has been the typical practice in federal drug prosecutions, the indictment did not charge, nor did the jury find, an amount of drugs attributable to Henderson. This court concludes that a recent Supreme Court opinion, Apprendi v. New Jersey, 2000 WL 807189 (U.S. June 26, 2000), mandates that in cases in which the government seeks increased penalties, the amount of drugs involved in a violation of section 841 is an element of the offense that must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because the authority to determine that element now rests in the hands of the jury, this court could not sentence Henderson pursuant to an increased statutory penalty range. The United States Sentencing Guidelines, however, required the court to sentence Henderson to a term of at least 35 years imprisonment.
Finding of Fact
Conclusions of Law
Pursuant to the evidence adduced at the trial on May 30 and 31, 2000, the court makes the following findings of fact, by a preponderance of the evidence, and the following conclusions of law.