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Order
Pending before the court are the plaintiffs and defendant's cross motions for summary judgment. After reviewing the motions, memoranda of law, and exhibits, the court DENIES the plaintiffs motion for summary judgment and GRANTS the defendant's motion for summary judgment.
Order
Pending before the court is the defendants’ Motion to Dismiss Plaintiff’s Amended Complaint or for Summary Judgment [Docket 17]. After a thorough review of the pending motion, responses, and supplemental memoranda, the court FINDS that it would be premature to treat the motion as one for summary judgment. Accordingly, the court will treat the defendants’ motion as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is GRANTED IN PART and DENIED IN PART. In addition, the court ORDERS the parties to engage in limited discovery and then brief the court for summary judgment purposes.
Order
Pending before the court are the government’s and defendant’s cross motions for summary judgment. After reviewing the motions, memoranda of law, and exhibits, the court GRANTS IN PART and DENIES IN PART the defendant’s motion for summary judgment. The court DENIES the government’s motion for summary judgment.
Amended Order
Pending is Defendant’s motion to dismiss for failure to state a claim upon which relief can be granted. For the reasons set forth herein, the motion is DENIED.
Order
Pending before the court is the Plaintiff’s Motion for Entry of Judgment By Default Against Defendant John Borich [Docket 9]. A review of the motion and of the court’s file indicates that the defendant, John Borich, has failed to answer or otherwise defend this action in a timely manner. Accordingly, the court DIRECTS the Clerk to enter a default, pursuant to Fed. R. Civ. P. 55(a), against Mr. Borich.
Order
Pending before the court is the plaintiff’s Motion to Amend the Second Amended Complaint and to Remand. [Docket 51]. For the reasons stated below, the court GRANTS the plaintiff’s motion to amend and to remand [Docket 51] and REMANDS this case Circuit Court of Kanawha County, West Virginia. All other pending motions in this case are DENIED AS MOOT.
Memorandum Opinion
The defendant, William H. Johnson, pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which prohibit the possession of a firearm by a convicted felon. On August 12, 2004, the defendant appeared before the court for sentencing. Pursuant to United States Sentencing Guidelines (the Guidelines), the base offense level for this crime is 14. U.S. Sentencing Guidelines Manual § 2K2.1(a)(6)(A) (2003). The pre-sentence report recommended a two-point enhancement because the defendant had stolen the gun involved in the offense from his brother’s home. Id. at § 2K2.1(b)(4). The total offense level recommended by the probation officer was therefore 16. After a three-point reduction for acceptance of responsibility, the offense level was 13. Id. at § 3E1.1(a). The probation officer attributed four criminal history points to the defendant, placing him in criminal history category III. Id. at §5A. Based on a total offense level of 13 and a criminal history category of III, the recommended sentencing range was 18-24 months. Id.
Order
Pending before the court are the United States’ Motion to File Out of Time [Docket 58] and six motions to file briefs in excess of page limitations [Docket 48, 53, 59, 90, 94, and 97]. For reasons appearing to the court, these motions are hereby GRANTED.
Order
Pending before the court are the plaintiffs’ Motion to Clarify the Court’s August 13, 2004, Order [Docket 113], the Motion of Consol of Kentucky, Inc. to Intervene as Defendant [Docket 114], the Intervening Mining Associations’ Motion for Reconsideration of the Court’s August 13, 2004, Order [Docket 116], and Green Valley Coal Company’s Motion for Reconsideration of the Order of August 13, 2004 [Docket 118]. For the reasons stated below, all pending motions [Dockets 113, 114, 116, 118] are DENIED.
Order
Before the Court is Plaintiff’s motion to remand (doc. no. 7). The Court finds it lacks subject matter jurisdiction over this action. Plaintiff’s motion is therefore GRANTED and this case is REMANDED to the Circuit Court of Roane County, West Virginia.