98 results for 'court:"USDC Southern District of West Virginia"'.
J. Goodwin grants the customer's motions for leave to file an amended complaint and for remand of her premises liability suit against the pharmacy retailer for injuries she sustained after tripping over a pallet in one of the isles at the pharmacy's Dunbar location. Since the store manager has been identified, neither he nor the pharmacy's employees are shielded from liability since the manager had possession and control of the store while he was on-duty. Since the customer can state a claim against the manager who is a West Virginia resident, the court no longer retains jurisdiction over the action.
Court: USDC Southern District of West Virginia, Judge: Goodwin, Filed On: April 29, 2024, Case #: 2:23cv705, NOS: Other Personal Injury - Torts - Personal Injury, Categories: Jurisdiction, Premises Liability
J. Copenhaver grants the Board of Education's motion to dismiss the elementary school counselor’s suit claiming the Board violated her right to freedom of speech and the West Virginia Whistleblower Act. The counselor alleged the Board and school officials took retaliatory action against her by, among other things, formally reprimanding her and removing her as the coordinator of the standardized test after she expressed concerns to school officials as well as gave an interview to a Charleston television station about the resumption of a national standardized test to occur on school premises in April 2021 during the Covid-19 pandemic. The court finds since her pleading is grounded in her capacity as a public employee and not a private citizen, she has failed to state a claim on which relief can be granted, and the Board's interest in effectively and efficiently administering the standardized test outweigh the counselor's public airing of her concerns.
Court: USDC Southern District of West Virginia, Judge: Copenhaver, Filed On: April 26, 2024, Case #: 2:23cv314, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Education, Covid-19
J. Chambers grants in part the in-home respiratory care provider’s motion for summary judgment in the former Huntington branch manager's retaliatory discharge suit. While there are disputed issues of material facts on her two claims of retaliatory discharge in violation of the West Virginia Patient Safety Act, the company, despite lying to state and federal regulators why they fired her, did not terminate her employment "in an atrocious, intolerable, or extreme way."
Court: USDC Southern District of West Virginia, Judge: Chambers , Filed On: April 26, 2024, Case #: 3:22cv109, NOS: Employment - Civil Rights, Categories: Health Care, Employment Retaliation
J. Volk grants the government's motion for summary judgment in 27 former Beckley Veterans Medical Center patients' suits claiming they contracted infectious diseases from the uncredentialed use of acupuncture by Dr. Jonathan Yates. The 27 patients' claims are barred by res judicata since they all previously filed suits against Yates for malpractice and, prior to the government filing responsive pleadings, signed releases from any claims arising from Yates' medical negligence including those "unknown" or "unsuspected."
Court: USDC Southern District of West Virginia, Judge: Volk, Filed On: April 24, 2024, Case #: 5:23cv243, NOS: Personal Injury - Medical Malpractice - Torts - Personal Injury, Categories: Government, Health Care, Medical Malpractice
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J. Copenhaver grants the insurance carrier’s motion for summary judgment in the property management company's suit seeking declaratory judgment the carrier was obligated to defend it in a counterclaim Union Carbide filed against the company claiming it bore partial responsibility for damage to not only its property, but also the nearby Davis Creek Watershed from the run-off of toxic chemicals. Since the company has failed to not only prove the existence of a policy from 1987 through 2005, but also any of the policy's material terms, the carrier has no duty to defend or indemnify it.
Court: USDC Southern District of West Virginia, Judge: Copenhaver , Filed On: April 23, 2024, Case #: 2:22cv135, NOS: Insurance - Contract, Categories: Insurance, Business Practices, Contract
J. Eifert denies the class of former care children’s motion for sanctions against the West Virginia Department of Health Services for failing to timely produce individual case files in the class’s pending civil rights suit accusing the state of “systemic deficiencies” in how it operates the foster care system, finding that while the department “made mistakes in preserving and producing information,” it was not done in bad faith or out of disrespect for any court order.
Court: USDC Southern District of West Virginia, Judge: Eifert, Filed On: April 22, 2024, Case #: 3:19cv70, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Sanctions, Discovery
J. Copenhaver denies the homeowner's motion to remand back to Kanawha County Circuit Court her suit seeking to halt the non-judicial foreclosure of her South Charleston home by the deed holder and the substitute trustee. The homeowner's attempt at remand by filing an amended complaint removing a claim under the Fair Debt Collection Practices Act is futile since the court's original jurisdiction was fixed once the deed holder filed its notice for removal, and judicial economy is best served by the court retaining supplemental jurisdiction on her state law claims.
Court: USDC Southern District of West Virginia, Judge: Copenhaver, Filed On: April 18, 2024, Case #: 2:24cv103, NOS: Consumer Credit - Other Suits, Categories: Consumer Law, Housing, Jurisdiction
J. Eifert grants the university's motion for a protective order relating to to the deposition of the university’s president in a student's civil rights suit claiming the university retaliated against her by charging her with violating the Student Code of Conduct for underage drinking after she reported being sexually assaulted by a fellow student at an off-campus watch party. Since she has not shown any "special, additional, or unique information" the president may have on how the university has implemented Title IX polices aside from what others in his administration provided, the court prohibits the student from taking his deposition.
Court: USDC Southern District of West Virginia, Judge: Eifert, Filed On: April 17, 2024, Case #: 3:22cv532, NOS: Education - Civil Rights, Categories: Civil Procedure, Civil Rights, Education
J. Volk grants the coal miner's post-trial motion to file a retainer agreement under seal, and the order awarding attorneyfees and expenses in the successful class action brought against the two management and three coal companies for violations of the Worker Adjustment and Retraining Notification Act. The companies failed to provide notice to the full-time employees of the Burke Mountain Mine Complex in McDowell County of an impending lay-off of more than 50 employees in October 2019. The court amends its judgment order to include the language "This judgment applies to the 164 miners to whom Rule 23(c)(2) notice was directed, none of whom has requested exclusion, and whom the Court finds to be members of the certified class in this matter" and reflect a total award of $1,738,743, a statutory fee award of $110,992 and $45,593 in expenses, and $15,000 to the miner as class representative service fee, with an order to file an amended notice of class judgment by April 15. Additionally, the court denies the companies' renewed motion for judgment as a matter of law or in the alternative a new trial.
Court: USDC Southern District of West Virginia, Judge: Volk, Filed On: March 31, 2024, Case #: 5:20cv165, NOS: Other Labor Litigation - Labor, Categories: Employment, Class Action, Labor
J. Faber adopts the proposed findings and recommendation by the magistrate judge, and grants the public transportation agency's motion for summary judgment in the legally blind passenger's complaint accusing it of civil rights violations when it excluded him from riding the bus after defending himself in a fight with other passengers the day before. The court finds the agency neither violated his constitutional right to self-defense nor denied him access to public accommodations when it placed him on a 30-day suspension from its services due to his violation of the agency's code of conduct when he became verbally abusive with the other passengers after they refused his requests they move to other seats.
Court: USDC Southern District of West Virginia, Judge: Faber, Filed On: March 29, 2024, Case #: 1:21cv425, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Government, Transportation
J. Tinsley grants the power management company's motion for judgment on the pleadings and motion to strike the former employee's first amended complaint of breach of contract for when the company terminated this employment for his alleged refusal to lie, and defamation when the company filed a police report accusing him of absconding with a company-issued laptop. Both the breach of contract and wrongful termination claims the former employee made in his original complaint and one for promissory estoppel he substituted in his first amended complaint are futile since he put a misplaced reliance on the company's code of conduct as "an express or definite promise to alter the at-will employment relationship."
Court: USDC Southern District of West Virginia, Judge: Tinsley, Filed On: March 29, 2024, Case #: 2:22cv567, NOS: Employment - Civil Rights, Categories: Employment, Defamation, Contract
J. Eifert grants in part the class of former foster care children's motion for sanctions under Rule 37(e)(1) for the West Virginia Department of Health Services' failure to preserve all electronically stored information (ESI) requested in discovery. Since the spoliation of evidence did slightly compromise the class's ability to present its case demonstrating “systemic deficiencies” in the foster care system, WVDHS is precluded from arguing the deleted ESI would have shown they did not act with deliberate indifference, and it must reimburse the class for their reasonable attorney fees and costs associated with bringing the motion.
Court: USDC Southern District of West Virginia, Judge: Eifert , Filed On: March 28, 2024, Case #: 3:19cv710, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Government, Discovery
J. Goodwin grants the motion of the vice-president of the mortgage servicing company to dismiss the former customer's predatory lending suit, finding the customer "sets forth few allegations of fact aside from a brief recitation of vague and conclusory assertions." Additionally, the court sanctions the customer for his history of vexatious litigation and prohibits him from filing future pleadings in the Southern District without either seeking leave of the court or retaining the assistance of legal counsel.
Court: USDC Southern District of West Virginia, Judge: Goodwin, Filed On: March 28, 2024, Case #: 2:23cv429, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Sanctions, Housing
J. Chambers grants the transgender woman's motion to amend her complaint to include a claim under the Americans with Disabilities Act, and grants in part the West Virginia Department of Health Service's motion to dismiss the initial complaint seeking injunctive relief for her health maintenance organization to pay for three "medically necessary surgeries" through the state Medicaid program. In addition to demonstrating her ADA claim has merit, the woman makes a plausible denial of equal protection claim when WVDHS "took the 'previously unheard-of step of asking a state court to overturn'" its own Board of Review's eligibility review based solely on her sexual orientation.
Court: USDC Southern District of West Virginia, Judge: Chambers, Filed On: March 27, 2024, Case #: 3:23cv450, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Government, Lgbtq
J. Johnston grants the air ambulance service's motion for summary judgment in its suit challenging the West Virginia Insurance commissioner's enforcement of the Air Ambulance Protection Act. Using the 1993 film '"Groundhog Day" as a backdrop, the court finds the insurance commissioner's continuous attempt to declare the membership-based EMS service as being in the business of insurance futile, since the Airline Deregulation Act of 1978 preempts AAPA.
Court: USDC Southern District of West Virginia, Judge: Johnston , Filed On: March 26, 2024, Case #: 2:21cv105, NOS: Other Statutory Actions - Other Suits, Categories: Health Care, Insurance, Injunction
J. Copenhaver grants in part the motions of the former Wood County sheriff, his chief deputy and the county commission for summary judgment in a former deputy sheriff's suit for sexual discrimination and retaliation. In addition to her failure to establish a prima facie case for retaliation, the court finds the commission is an improper party on that claim and that the former chief deputy is an improper party to her claim of sexual harassment. The commission and former sheriff remain as defendants on the deputy's remaining claim for sex discrimination by way of a hostile work environment under the West Virginia Human Rights Act.
Court: USDC Southern District of West Virginia, Judge: Copenhaver, Filed On: March 20, 2024, Case #: 2:22cv388, NOS: Employment - Civil Rights, Categories: Civil Rights, Government, Employment Discrimination
J. Volk grants the insurance company’s and related defendants' joint motion to lift the stay, and for confirmation and enforcement of the Bermuda arbitrator's awards in the human resource firm's breach of contract suit. The firm's argument to deny recognition of the 2023 awards citing the "public-policy defense" from Article V in the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards is unpersuasive since the claim of the arbitrator's lack of impartiality was foreclosed when they failed to appeal to the Bermuda Supreme Court within 30 days of an arbitration panel's decision.
Court: USDC Southern District of West Virginia, Judge: Volk , Filed On: March 18, 2024, Case #: 5:18cv1082, NOS: Other Contract - Contract, Categories: Arbitration, Insurance, Contract
J. Chambers grants the recreational vehicle manufacturer's motion to dismiss the customer's breach of warranty suit claiming a 2022 Forest River Sandpiper he purchased from a dealer in Ashland, Kentucky, was defective and that multiple attempts to repair the RV were unsuccessful. The court finds the customer signed the warranty registration when he purchased the RV which contained the "magic words" in the forum selection clause that any action must be filed in Indiana. The court stays enforcement of its order to allow the customer to file a motion to transfer.
Court: USDC Southern District of West Virginia, Judge: Chambers, Filed On: March 15, 2024, Case #: 3:23cv570, NOS: Other Contract - Contract, Categories: Business Practices, Warranty, Contract
J. Volk grants the motions of the recreational vehicle manufacturer and the retail outlet to dismiss the customer's breach of warranty suit claiming the outlet sold him a defective 2022 Cardinal 390 FBX 5th Wheel Camper, with both refusing to cancel his retail installment contract and purchase agreement or refund his money when multiple attempts to repair the RV were unsuccessful. Since the forum-selection clauses the customer signed "are mandatory and thus presumptively enforceable" in either Indiana or Texas, the court grants the motions without prejudice under the doctrine of forum non conveniens.
Court: USDC Southern District of West Virginia, Judge: Volk , Filed On: March 13, 2024, Case #: 5:23cv535, NOS: Other Contract - Contract, Categories: Jurisdiction, Warranty, Contract
J. Johnston denies the roofing contractor's motion to dismiss the property management company's beach of contract suit claiming the negligence of the contractor's employees caused a new roof they were installing on the building leased by U-Haul to catch fire, eventually destroying the entire building. The contractor's argument using the West Virginia's "gist of the action doctrine" is unpersuasive, as the West Virginia Supreme Court has long recognized "an independent duty - sounding in tort - to prevent and mitigate accidental fires...[that] exists entirely independent of the parties’ contractual relationship."
Court: USDC Southern District of West Virginia, Judge: Johnston, Filed On: February 29, 2024, Case #: 5:23cv339, NOS: Other Contract - Contract, Categories: Tort, Negligence, Contract
J. Chambers grants the Canadian shoe cover manufacturer's motion to dismiss the registered nurse's product liability suit claiming work-issued shoe covers she wore at the Hershel “Woody” Williams Veterans Affairs Medical Center in Huntington caused her to slip and fall "hard on her left side," injuring her left hip. shoulder and ulnar nerve. The court lacks personal jurisdiction to hear the case since the company not only "did not purposefully avail itself of West Virginia," but also "had no clue its shoe covers would end up in the Mountain State."
Court: USDC Southern District of West Virginia, Judge: Chambers, Filed On: February 29, 2024, Case #: 3:22cv88, NOS: Personal Injury - Product Liability - Torts - Personal Injury, Categories: Health Care, Product Liability, Jurisdiction
J. Eifert denies the university's motion to compel an independent psychological evaluation of the student claiming it's Title IX Office discriminated against her when it charged her with violating the university's Student Code of Conduct for underage consumption of alcohol while at a friend's off-campus apartment as retaliation for reporting she was sexually assaulted. The student's mental condition is not in controversy, and the university has failed to show any good cause for such an examination.
Court: USDC Southern District of West Virginia, Judge: Eifert, Filed On: February 21, 2024, Case #: 3:22cv532, NOS: Education - Civil Rights, Categories: Civil Rights, Education, Discovery
J. Chambers grants in part the residential mortgage servicer's motion to dismiss the homeowner's complaint claiming it improperly foreclosed on the home she inherited from her parents three years earlier without confirming her status as successor-in-interest, then three months later transferred the mortgage to another servicer without still confirming her status as successor-in- interest or responding to her application to assume and modify the loan. Since she fails to allege she is a "borrower" or a "confirmed successor in interest" or meets the definition of a "consumer", her claims under the Real Estate Settlement Procedures and the West Virginia Consumer Credit and Protection acts are dismissed. However, the homeowner has demonstrated the company caused her harm when it intentionally interfered with the deed of trust securing the home to confirm her as successor in interest and assume the parents' home loan, and restricted her ability to qualify for loan mitigation options.
Court: USDC Southern District of West Virginia, Judge: Chambers, Filed On: February 21, 2024, Case #: 3:23cv525, NOS: Foreclosure - Real Property, Categories: Property, Business Practices, Foreclosure
J. Chambers grants summary judgment to the commission and seven deputy sheriffs in a couple's complaint alleging the deputies violated their constitutional rights after they were dispatched to the couple's home in response to two brief 911 calls. After the husband was charged with domestic battery and interfering with a 911 call, deputies returned to the home in April 2022 to execute a search warrant and check on the two daughters' welfare when the mother failed to answer subpoenas to testify. The couple failed to establish the deputies engaged in any unlawful activity during their investigations.
Court: USDC Southern District of West Virginia, Judge: Chambers, Filed On: February 12, 2024, Case #: 3:22cv277, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Government, Police Misconduct
J. Goodwin grants in part a Charleston attorney's motion for attorneys fees in the breach of contract suit two other attorneys filed claiming he unjustly enriched himself in filing civil actions for former students of the Miracle Meadows School, a now-shuttered Seventh Day Adventist boarding school in Harrison County, after working jointly with them to file the first 29 suits that ultimately resulted in a $100 million settlement. Since the two attorneys recognized their claim lacked merit due to the absence of a joint venture agreement in the latter cases and voluntarily dismissed the complaint, and the one attorney failed to file for sanctions, he is entitled to an award of attorneys fees as they relate to responding to the two other attorneys' motion to disqualify the Bailey and Glasser law firm and the omnibus renewed motion to file documents under seal. The court holds in abeyance determining the amount until detailed bills are submitted, which are to be provided within 10 days.
Court: USDC Southern District of West Virginia, Judge: Goodwin, Filed On: February 5, 2024, Case #: 2:22cv604, NOS: Other Contract - Contract, Categories: Business Practices, Attorney Fees, Contract