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Memorandum Opinion and Order
Petitioner Morales brought this action pursuant to 28 U.S.C. § 2241 seeking a writ of habeas corpus. By standing order, it was referred to Magistrate Judge R. Clarke Vandervort, who has submitted his Proposed Findings and Recommendation (PF&R). Petitioner requested an extension of time to respond to the PF&R, which was granted, and then filed timely objections. The Court reviews de novo those portions of the Magistrate Judge’s report to which Petitioner objects.
Memorandum Opinion and Order
Edward Lee Lewis was indicted on four counts of mailing threatening communications in violation of 18 U.S.C. § 876 (2002), one count of mailing a threat to the President in violation of 18 U.S.C. §§ 871 & 2(b) (2002), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), & 924(e)(1) (2002). Prior to trial, Lewis filed a motion in limine to exclude the testimony of the Government’s expert witness, forensic document analyst John W. Cawley, III, under Rule 702 of the Federal Rules of Evidence. The court GRANTED the motion, finding that Mr. Cawley’s testimony was not sufficiently reliable to meet the standards for expert testimony under Rule 702, as explicated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). At trial, after the close of the Government’s evidence and at the close of all the evidence, the defendant moved for a judgment of acquittal based on insufficiency of the evidence pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. The court DENIED the motions. The defendant now moves for a judgment of acquittal pursuant to Rule 29(c), and for a new trial pursuant to Rule 33 [Docket 82]. The court DENIES that motion. The court writes to further explain its rulings.
Memorandum Opinion and Order
Defendants/Appellants Michael O. Callaghan, Secretary of the West Virginia Division of Environmental Protection (“DEP”), and the State of West Virginia appeal two orders of the Bankruptcy Court. The first order denied Defendants’ motion for summary judgment and granted the cross-motion for summary judgment filed by the debtor’s Trustee, H. Lynden Graham, Jr. The second order denied Defendants’ motion to dismiss based on Eleventh Amendment immunity and granted the Trustee’s motion for attorneys’ fees and costs. For reasons set forth below, the first judgment of the Bankruptcy Court is REVERSED. The second judgment is VACATED as moot.
Memorandum Opinion and Order
Pending before the court is the plaintiffs request for discovery on the issue of whether the "Change in Control Severance Agreement" between the plaintiff, Richard C. Donovan, and One Valley Bank, the predecessor of the defendant, Branch Banking and Trust Company, constitutes a "plan" under the Employee Retirement Income Security Act of 1947 (ERISA), 29 U.S.C. § 1001, et seq. If ERISA preempts the plaintiffs claims, this court may not consider evidence outside of the administrative record. Quesinberry v. Life Ins. Co. of N Am., 987 F.2d 1017, 1026-27 (4th Cir. 1993 ). The court, therefore, invited the parties to file briefs regarding the existence of a "plan" under ERISA. For the reasons that follow, the court FINDS that the Change in Control Severance Agreement is not a "plan" within the meaning of ERISA and DENIES the plaintiffs request for further discovery on that issue. Because there is diversity between the parties, this court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 (1996). The court will promptly enter a scheduling order.
Memorandum Opinion and Remand Order
Pending are the motions of Plaintiffs in these three related civil actions to remand. Plaintiffs’ motions are GRANTED.
Memorandum Opinion and Order
Pending are the parties’ cross motions for summary judgment, which the Court reinstated for consideration following the Order of July 29, 2002 and the parties’ ensuing supplemental briefing. After considering the parties’ submissions, supplemental materials, and the administrative record, the Court GRANTS Defendants’ motion for summary judgment and DENIES Plaintiff’s cross motion.
Memorandum Opinion and Order
This case is an appeal of the bankruptcy court's Order of October 12, 2000, as amended on November 21, 2000, which denied a motion by Plaintiffs below and Appellants herein to remand their wage payment and collection action to the Circuit Court of Raleigh County, West Virginia. In their brief, Appellants assert the bankruptcy court erred because it did not have jurisdiction over their state action and the removal petition was procedurally and substantively infirm. American Metals & Coal International, Inc. (American), AMCI Resources, Inc. (AMCI), and Westmoreland Coal Company (Westmoreland), Pocahontas Land Corporation (Pocahontas), and Thomas H. Fluharty, Appellees herein, have responded to Appellants' appeal and assert the bankruptcy court's decision should be affirmed because the judge properly found Appellants' case was a "core" proceeding within the meaning of28 U.S.C. § 157, there were no defects in the removal procedure, and the principles of abstention and equitable remand are unwarranted under the circumstances.1 The Court disposes with oral argument because the facts and legal arguments are adequately presented in the briefs and in the record, and the decisional process would not be significantly aided by oral argument. See Fed. R. Bankr. P. 8012.2 For the reasons set forth below, the Court AFFIRMS the decision of the bankruptcy court.
Memorandum Opinion and Order
Pending are 1) Defendant's motion to dismiss and Plaintiff's motions 2) for partial summary judgement and 3) for an extension of time to respond to Defendant's motion.
Memorandum Opinion and Order
Pending is Defendants’ motion to dismiss. The motion is DENIED.
Memorandum Opinion and Order
This civil action, filed originally in the Circuit Court of Greenbrier County, West Virginia, was removed to this court by the defendant. The plaintiffs have filed a motion to remand. For the reasons discussed below, the motion to remand is DENIED.