The Southern District of West Virginia offers a database of opinions starting in the year 2001, listed by year and judge. For a more detailed search, enter the keyword or case number in the search to the right or sort using the drop-downs below.
Memorandum Opinion and Order
Pending is the plaintiff’s motion to remand to state court and for attorney’s fees and costs related to that motion [Docket 24]. For the following reasons, the court GRANTS the motion to remand and REMANDS the case to state court. The court DENIES the motion for costs and attorney’s fees.
Memorandum Opinion and Order
Pending is Defendants’ motion to recuse or disqualify the Office of the United States Attorney (US Attorney) for the Southern District of West Virginia or such of its members as the Court may deem appropriate. A hearing was held on the motion December 9, 2002. Present were the Defendants, in person, and by counsel, John G. Hackney, Jr., counsel for Dyess, Thomas J. Gillooly, counsel for Spencer, and Robert A. Ratliff, counsel for Bartram. The Government was represented by Assistant United States Attorney (AUSA) Philip H. Wright and AUSA Monica K. Schwartz. The Court took the matter under advisement and, having reviewed Defendants’ arguments presented at the hearing and in written briefs, now GRANTS Defendants’ motion to disqualify the Office of the United States Attorney for the Southern District of West Virginia.
Memorandum Opinion and Order
Currently pending before the Court are motions to dismiss filed by Defendant Citifinancial Mortgage Company, Inc. (hereinafter Citifinancial) and Defendant Creve Coeur Mortgage Associates, Inc. (hereinafter CCM). In its motion, CCM adopts and incorporates by reference four of the arguments made by Citifinancial. In addition, CCM seeks to dismiss a claim by Plaintiffs Dorothy L. Polis and Marshall G. Jarrell that CCM engaged in the unauthorized practice of law as contained in Count V of the Amended Complaint. By Order entered on October 22, 2002, the Court granted Plaintiffs’ motion to dismiss Count V with prejudice. Therefore, the Court DENIES as moot CCM’s motion to dismiss this claim against it. As to the remaining arguments made by Defendants Citifinancial and CCM, the Court GRANTS in part Defendants’ motion to dismiss Count I and DENIES Defendants’ motion to dismiss the remaining counts.
Memorandum Opinion and Order
This civil action is a so-called "first party bad faith claim"1 that Defendant and its counsel engaged in unfair trade practices in connection with Plaintiff's claim for underinsured motorist insurance coverage benefits following a 1999 fatal accident. For the purpose of this Memorandum Opinion and Order, the court assumes to be true the allegations that Plaintiff's son, Charles Mordesovitch, a pedestrian, was killed when he was struck by a vehicle operated by a drunk driver who had become intoxicated at a bar. Plaintiff, represented by Christopher Heavens, was insured by Defendant. In the underlying action, Plaintiff sued the driver, the bar, and Defendant (which was represented by the law firm of Kesner, Kesner & Bramble) . Plaintiff and Defendant executed a settlement agreement in which Defendant paid the $300,000 limits of its underinsured motorist coverage to Plaintiff, and Plaintiff signed a "Release, Settlement and Subrogation Agreement." The Agreement provided that "Westfield shall be subrogated to the extent of its payment of underinsurance and medical payments to [Plaintiff]." Plaintiff continued his action against the bar and ultimately recovered the full limits of the liability insurance coverage available to the bar. Plaintiff established that the estate had not been made whole by the settlement with the bar's insurer, and Defendant ultimately waived its subrogation claim. Plaintiff then filed the instant action, alleging that Defendant, acting through its adjuster Eric Sikorski and the Kesner law firm, engaged in unfair trade practices by improperly seeking subrogation from the proceeds of the settlement with the bar. Plaintiff contends "that Westfield illegally sought subrogation from the plaintiff and his family, and then attempted in bad faith to delay the plaintiff's settlement with another tortfeasor as a way of pressuring the plaintiff to pay money to Westfield." (Plaintiff's Response, # 66, at 2.)
Memorandum Opinion and Order
Pending is Plaintiff’s motion to remand this civil action, removed from the Circuit Court of Greenbrier County, West Virginia, based on diversity jurisdiction. The Court GRANTS the motion.
Memorandum Opinion and Order
Pending before the court is a motion by Appellee H. Lynden Graham Jr., trustee of the bankruptcy estate of Shawnee Hills, Inc., to dismiss the appeal filed by Appellant Huntington National Bank. Graham argues that the appeal should be dismissed because it is both legally and equitably moot. After a hearing and full briefing from the parties, the court GRANTS Graham’s motion to dismiss [Docket 5] and DISMISSES the appeal as equitably moot.
Judgement Order
This is an action alleging unauthorized use of communications in violation of 47 U.S.C. § 605. Plaintiff, Entertainment by J&J, Inc., alleges that the Defendants, Gridiron, Inc., a West Virginia corporation d/b/a/ Gridiron Sports Bar, Tina Runyon, and Donny Kyle, unlawfully and willfully intercepted and exhibited the closed-circuit telecast of the September 18, 1999, championship boxing match between Oscar De La Hoya and Felix Trinidad for commercial gain. Plaintiff filed a motion for entry of default as to Defendants and an entry of default was entered by the Clerk on March 7, 2001. On April 11, 2001, the Court ordered a hearing set for Wednesday, May 2, 2001 for a determination of Plaintiff's request for the maximum amount in statutory damages totaling $170,000 pursuant to 47 U.S.C. §§ 553 and 605. On May 2, 2001, at the aforesaid damages hearing, the Court was informed that Defendants had not been served with notice of hearing. Therefore, the Court ordered that the hearing be continued until Defendants could be served with notice of the damages hearing. The Court rescheduled the damages hearing for June 19, 2001. For administrative reasons, the Court again rescheduled the damages hearing, moving the date of said hearing from June 19, 2001 to June 21, 2001.
Memorandum Opinion and Order
Currently pending before the Court is Plaintiff and Third Party Defendants' Motion for Summary Judgment_ and Plaintiff and Third Party Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment. In response, Defendant/fhird Party Plaintiff filed its Response to Plaintiff's Motion for Summary Judgment and Plaintiff and Third Party Defendants filed Plaintiff and Third Party Defendants' Reply Memorandum of Law in Support of Their Motion for Summary Judgment. Also currently pending before the Court is Defendant/Third Party Plaintiff's Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment. In response, Plaintiff and Third Party Defendants filed Plaintiff and Third Party Defendants' Memorandum of Law in Opposition to West Virginia's Motion for Summary Judgment and Defendant/Third Party Plaintiff filed its Reply Memorandum in Support of West Virginia's Motion for Summary Judgment. Having reviewed said motions, all memoranda both in support and opposition, as well as all relevant case and statutory law, the Court hereby GRANTS Plaintiff and Third Party Defendants' Motion for Summary Judgment, DENIES Defendant/Third Party Plaintiff's Motion for Summary Judgment, and DISMISSES WITH PREJUDICE the Third Party Complaint.
Memorandum Opinion and Judgment Order
Currently pending before the Court is Plaintiff's Motion to Remand and Plaintiff's Memorandum of Law in Support of Motion to Remand. In response, Defendant filed a Memorandum of Law in Opposition to Plaintiff's Motion to Remand. Also currently pending before the Court is Defendant's, The Arthur B. Hodges Center, Inc.'s, Motion to Dismiss and Memorandum in Support of Defendant's, The Arthur B. Hodges Center, Inc.'s, Motion to Dismiss. Plaintiff filed Plaintiff's Response to Defendant's Motion to Dismiss and Defendant filed its Reply to Plaintiff's Response to Defendant's Motion to Dismiss. Having reviewed both motions, all memoranda of law both in support and opposition, as well as all relevant case and statutory law, the Court is now prepared to issue its decision.
Memorandum Opinion and Order
Pending before the court is the plaintiff’s motion to remand, in which the plaintiff contends that the defendants’ notice of removal to this court was premature. [Docket 6]. The defendants argue that their notice of removal was timely, as it was filed in accordance with the language of 28 U.S.C. § 1446(b). Section 1446(b) allows removal within thirty days of a defendant’s receipt of a document “from which it may first be ascertained that the case . . . has become removable.” 28 U.S.C. § 1446(b) (2002). For the reasons discussed herein, the court FINDS that a case may not be removed pursuant to the second paragraph of § 1446(b) until a pleading giving rise to federal jurisdiction has been filed. As the defendants’ notice of removal was filed upon the entry of a state court order granting the plaintiff leave to amend her complaint to assert federal claims, rather than upon the filing of the amended complaint itself, the defendants’ removal was premature. Accordingly, the court GRANTS the plaintiff’s motion to remand.