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Opinions

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.

Jeffrey Neal Graham and Rene Rose Graham v. The West Virginia Division of Highways 02/06/2003
5:02-cv-01432

Memorandum Opinion and Order

Defendant removed this case to this Court on December 12, 2002.  Plaintiffs moved for remand, asserting Defendant’s removal petition was untimely and that this Court lacked subject matter jurisdiction over the action.  Defendant contended its removal petition was filed timely and that federal question jurisdiction, pursuant to 28 U.S.C. § 1331, provided a basis for removal of the action. For the reasons that follow, the Court GRANTS Plaintiffs’ motion for remand, and ORDERS the case be REMANDED to the Circuit Court of Raleigh County, West Virginia.

Author:
Robert C. Chambers
Frank Mordesovitch v. Westfield Insurance Company 01/22/2003
2:02-cv-00078

Memorandum Opinion and Order

By memorandum opinion and order entered November 27, 2002, the court denied without prejudice, motions to compel filed by Plaintiff (Document ## 75 and 78) in which Plaintiff sought to compel Defendant to produce certain information and documents and, where a privilege was asserted by Defendant, to produce all allegedly privileged information and documents to the court for in camera review.  (Document # 82.)  In his motions to compel, Plaintiff argued that the attorney-client privilege and work product doctrines did not apply in this first party insurance bad faith action and, as such, Defendant should be required to turn over protected information.  The court rejected Plaintiff’s arguments and determined that it was appropriate to apply established principles of attorney-client privilege and work product doctrine to the discovery at hand.  At the time of the court’s November 27, 2002, memorandum opinion and order, the court had not seen a privilege log that had been prepared by Defendant.

Author:
Mary E. Stanley
Joe C. Boland v. Georgie Boy Manufacturing, Inc. and Freightliner Custom Chassis Corporation 01/21/2003
2:02-cv-01343

Memorandum Opinion and Order

Pending is the motion of Defendant Georgie Boy Manufacturing, Inc. (Georgie Boy) to dismiss pursuant to Rule 12(b)(6).  Fed. R. Civ. P. 12(b)(6).  After Georgie Boy’s motion was filed, Plaintiff Joe C. Boland (Boland) was given leave to amend and add a second count to the Complaint.  Count One of the Amended Complaint, filed January 10, 2003, remains identical to the single count of the original Complaint, which Georgie Boy moves to dismiss.  Accordingly, the Court construes the motion as one to dismiss Count One of the Amended Complaint. That motion is DENIED.

Author:
Charles H. Haden II
The West Virginia Highlands Conservancy v. Gale A. Norton and Jeffrey D. Jarrett 01/09/2003
2:00-cv-01062

Memorandum Opinion and Order

Pending is the motion of Plaintiff West Virginia Highlands Conservancy (WVHC) for summary judgment and a permanent injunction on Count 9 of its Second Amended and Supplemental Complaint.  For reasons discussed below, the Court DENIES the motion without prejudice.  Plaintiff’s motion for summary judgment on approval by the Office of Surface Mining (OSM) of certain other state program amendments also pends.  That motion is GRANTED in part and DENIED in part.

Author:
Charles H. Haden II
Ohio Valley Environmental Coalition, Inc., et al. v. Christie Whitman 01/07/2003
3:02-cv-00059

Memorandum Opinion and Order

Pending is a motion by the plaintiffs, the Ohio Valley Environmental Coalition et al., to supplement the administrative record submitted by the defendant, Christine Todd Whitman, Administrator of the Environmental Protection Agency (EPA) [Docket 49].  For the following reasons, this motion is GRANTED in part and DENIED in part.  Also pending is a motion by the EPA to file the administrative record out of time [Docket 40].  This motion is GRANTED.

Author:
Joseph R. Goodwin
HealthNet, Inc. v. Health Net, Inc. 01/07/2003
2:01-cv-00835

Memorandum Opinion and Order

Pending before the court are the parties’ cross-motions for summary judgment concerning the plaintiff’s use of the “HealthNet” service mark and the plaintiff’s motion for oral argument on these motions.  The plaintiff, HealthNet, Inc., filed this action on September 12, 2001, seeking a declaratory judgment that its use of the mark “HealthNet” is not likely to cause confusion and thus does not constitute trademark infringement and/or unfair competition under the Lanham Act, 15 U.S.C. §§ 1051-1127, as against the defendant’s mark “Health Net.”  The defendant, Health Net, Inc., asserts counterclaims for trademark infringement and for false designation of origin and false impression of association.

Author:
Joseph R. Goodwin
Berek Glucksberg and Elsa Glucksberg v. William Polan, et al. 12/17/2002
3:99-cv-00129

Memorandum Opinion and Order

Pending before the court is a motion by R. R. Fredeking, II and Kim Wolfe, Sheriff of Cabell County, in their capacities as co-administrators de bonis non of the estate of Lincoln M. Polan, to intervene in this matter pursuant to Fed. R. Civ. P. 24 as true parties in interest and for relief from this court’s judgment of January 28, 2002, against the estate of Lincoln M. Polan, pursuant to Fed. R. Civ. P. 60.  For the following reasons, the motion to intervene is GRANTED and R. R. Fredeking, II and Kim Wolfe, Sheriff of Cabell County, in their capacities as co-administrators d.b.n. of the estate of Lincoln M. Polan, are SUBSTITUTED for defendants William Polan and Charles Edwin Polan.  The motion for relief from judgment is GRANTED, and this court’s judgment of January 28, 2002 is VACATED.  Finally, William Polan, Charles Polan, and Scott Andrews are hereby ORDERED to show cause why they should not be sanctioned for the reasons given in this memorandum opinion and order.1

Author:
Joseph R. Goodwin
Massey Energy Company v. Don L. Blankenship, et al. 12/16/2002
2:02-cv-01111

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.

Author:
Joseph R. Goodwin
United States of America v. Calvin Dyess, et al. 12/13/2002
2:99-cr-00012

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.

Author:
Charles H. Haden II
Dorothy L. Polis and Marshall G. Jarrell v. American Liberty Financial, Inc., et al. 12/09/2002
3:02-cv-00514

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.

Author:
Robert C. Chambers

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