David A. Faber

This case arose after the court entered a $25 million judgment in favor of the FDIC against accounting firm Grant Thornton for claims related to the failure of First National Bank of Keystone, involving securitizations and professional services. The remaining issue was whether and how much settlement credit Grant Thornton should receive for the FDIC's prior settlement with the bank's law firm, Kutak Rock. The court granted Grant Thornton's motion for a settlement credit after making supplemental findings of fact and conclusions of law, including that the settlement was made in good faith and applying principles of West Virginia law on damages and contribution to determine the credit amount based on losses from specific securitizations.

business & regulatoryproceduretorts & liability

This case involved a breach of contract claim by Ralph Repass against Northwestern Mutual Life Insurance Company over the denial of lifetime total disability benefits under a policy purchased in 1988. The policy required the insured to be totally disabled—meaning unable to perform the principal duties of his occupation—by December 28, 2000, and to remain so through December 28, 2005, in order to qualify for lifetime benefits after the initial coverage period ended. Repass, who had received partial disability benefits after a back injury, argued he met the criteria, but the court found the policy language unambiguous and determined that he could still perform most of the principal duties of his occupation as president and CEO based on the evidence. The court granted summary judgment to Northwestern, concluding there was no genuine issue of material fact and the insurer had not breached the contract by denying the lifetime benefits.

business & regulatory

This case is a shareholder derivative action brought by plaintiff Vernon Mercier on behalf of Massey Energy Company against its directors and officers, alleging breaches of fiduciary duty for failing to oversee compliance with environmental and mine safety laws. The suit followed a parallel state court action that resulted in a settlement approved by the Kanawha County Circuit Court, which included broad releases covering the defendants here. After the plaintiff declined to appeal the state judgment, he filed an amended complaint in federal court claiming the state settlement lacked preclusive effect due to inadequate notice. The court granted the defendants' motions to dismiss both the original and amended complaints, holding that the state court settlement barred the claims and that the plaintiff had not satisfied the requirements for maintaining a derivative action under Federal Rule of Civil Procedure 23.1 and Delaware law.

business & regulatoryprocedure

This case involved a former employee's claim for short-term disability benefits under an employer-sponsored plan administered by MetLife, following a recurrence of his congestive heart failure and cardiomyopathy after he had returned to work. The plan defined disability as a condition preventing performance of essential job functions, verified by a physician, and benefits could extend up to 26 weeks if criteria were met. MetLife denied the recurrent claim, finding insufficient medical support for ongoing disability after March 2006, despite additional records and an EKG submitted on appeal. The court denied the defendants' summary judgment motion and granted the plaintiff's in part, ordering remand to the plan administrator for further reconsideration of the claim in light of the evidence and plan terms.

labor & employmentbusiness & regulatory

In United States v. Graham, Robert Graham sought a Certificate of Innocence under 28 U.S.C. § 2513 after his conviction for stealing $31,129 from his employer by cashing out sick leave without required board approval was reversed on appeal for insufficient evidence, following his service of 13 months in prison. The district court denied the motion, finding that Graham failed to meet the statutory requirements of proving he did not commit the charged acts or that his conduct constituted no offense, and that he did not by misconduct or neglect bring about his prosecution. The court reasoned that the evidence, while not proving guilt beyond a reasonable doubt, showed Graham was at least negligent in failing to seek board approval for the cash-out and that his actions involved broader abuses of trust that contributed to the prosecution. The ruling emphasized that reversal for evidentiary insufficiency does not automatically entitle a defendant to a certificate of innocence.

criminal lawprocedure

In this case, Ford Motor Credit appealed a bankruptcy court's confirmation of Roger Robertson's Chapter 13 plan, which proposed paying Ford's secured claim of about $30,000 on a 2006 pickup truck without interest over 60 months. The district court vacated the confirmation order and remanded for further proceedings. The court held that the claim qualified as a 910 Motor Vehicle Claim under the hanging paragraph of 11 U.S.C. § 1325(a), which prevented bifurcation under § 506 but did not render the claim unsecured. As a result, the plan had to provide the creditor with the present value of its allowed secured claim, requiring payment of interest at the rate set in Till v. SCS Credit Corp.

business & regulatorypropertyprocedure

This case involved a widow's deliberate intention wrongful death claim under West Virginia Code section 23-4-2 against her deceased husband's employer and a section foreman, originally filed in state court. Defendants removed the action to federal court asserting diversity jurisdiction under 28 U.S.C. § 1332, but the plaintiff moved to remand, arguing incomplete diversity. The court granted the motion to remand to the Circuit Court of McDowell County, holding that it lacked jurisdiction because 28 U.S.C. § 1332(c)(2) deems the legal representative of a decedent's estate a citizen only of the decedent's state (Virginia), and the foreman defendant shares citizenship with the decedent's state of residence. The court applied the rule requiring complete diversity between all plaintiffs and defendants, strictly construed removal jurisdiction, and declined to reach the motion to dismiss.

proceduretorts & liability

The Town of Davis filed a state-court condemnation action to acquire two tracts of land, including a spring and stream, from West Virginia Power & Transmission Co. and Canaan Valley Institute in order to protect its municipal water supply. Canaan Valley Institute removed the case to federal court under the federal officer removal statute, 28 U.S.C. § 1442, asserting that the property had been purchased with NOAA federal grant funds and remained subject to federal oversight and disposition restrictions. The court denied the town’s motion to remand, holding that the federal interest in the property permitted removal under § 1442(a)(2). It also granted in part a motion to join the United States Department of Commerce and the West Virginia Division of Natural Resources, and allowed the National Youth Science Foundation to intervene based on its contractual interest in the land.

propertyprocedurefederal power

This case arose from the collapse of First National Bank of Keystone after senior management perpetrated a long-running fraud centered on originating and securitizing high-risk mortgage loans, retaining undervalued residual interests on the bank's books, and concealing the scheme from regulators and directors; the FDIC, as receiver, sued the bank's outside auditor Grant Thornton for professional negligence in its audits and related work. After a bench trial, the court held Grant Thornton liable under West Virginia law, finding that its failure to detect the fraud allowed the bank to continue operating and incur additional losses. The core reasoning applied standards for auditor liability and comparative contributory negligence, rejected defenses based on regulator conduct or management misconduct as intervening causes, and measured damages by the difference between the bank's position at the time a proper audit would have led to closure and its actual worsened position upon failure.

torts & liabilitybusiness & regulatory

The case involved coal company plaintiffs who lost a large jury verdict in state court and sued the official court reporter in federal court after delays and alleged deficiencies in producing the trial transcript, claiming violations of their federal and state due process rights as well as state-law negligence and fraud. The court granted the defendant's motion to dismiss, holding that the federal constitutional claims failed to establish a basis for jurisdiction or a valid claim under 42 U.S.C. § 1983 because the reporter's actions did not constitute a due process violation. It then declined to exercise supplemental jurisdiction over the remaining state-law claims under 28 U.S.C. § 1367(c)(3) and dismissed them without prejudice, allowing them to be pursued in state court.

civil rightsprocedurefederal power

The case involved the estate of Claude Green, Jr., who died of a heart attack after police chief Robert Bowman allegedly prevented bystanders from performing CPR and delayed emergency assistance because Bowman incorrectly assumed Green was HIV-positive due to his relationship with a man. The plaintiff sued the City of Welch and Bowman under 42 U.S.C. § 1983, the Americans with Disabilities Act, the West Virginia Human Rights Act, and state wrongful death law, claiming the officer's actions reduced Green's survival chances. On the defendants' motion to dismiss, the court allowed the wrongful death claims under § 1983 and the ADA to proceed, finding they adequately stated a basis for relief, but dismissed the WVHRA claim on the ground that it abated upon the decedent's death under West Virginia law treating such claims as personal injury actions. The court denied the plaintiff's request for a hearing as unnecessary.

civil rightsproceduretorts & liability

In Snodgrass v. New Century Mortgage Corp., plaintiffs who are Chapter 13 debtors filed an adversary proceeding in bankruptcy court against multiple defendants alleging claims related to two separate loans secured by their property: a 2004 construction loan from Home Partners Credit Corporation (HPCC) and a 2005 permanent financing loan from New Century Mortgage Corporation. HPCC moved to withdraw the reference of the claims against it and Southern W.V. Appraisal Group, Inc. to the district court under 28 U.S.C. § 157(d) and to sever those claims from the rest. The court granted the motion, finding mandatory withdrawal appropriate because resolution required substantial and material consideration of non-Title 11 federal statutes regulating interstate commerce, and severance proper under Federal Rules of Bankruptcy Procedure 7021 and Civil Procedure 21 because the claims involved different loans, defendants, contracts, and facts and were not logically related.

procedurebusiness & regulatory

This case is a breach of contract action in which Charter Communications sued WDRL-TV, Inc. and Melvin Eleazer for indemnification under an Out of Market Retransmission Consent Agreement for copyright fees Charter paid when retransmitting WDRL's signal in West Virginia. The court granted partial summary judgment, holding that the agreement is valid and unambiguous under West Virginia law and requires defendants to indemnify Charter for $274,376.45 in copyright royalties plus the attorney's fees incurred in this litigation. The ruling rests on the principle that courts enforce plain contract language according to its ordinary meaning without alteration. Summary judgment was denied on the remaining question of whether Eleazer is personally liable or whether liability is confined to the corporate entity, which will be resolved at trial.

business & regulatoryprocedure

This case is a breach of contract dispute in which Charter Communications sued WDRL-TV and its president/owner Melvin Eleazer for failing to indemnify copyright fees incurred under a retransmission consent agreement for carrying the station's signal. The court denied Eleazer's motion to dismiss for lack of diversity jurisdiction, lack of personal jurisdiction, and failure to state a claim. It reasoned that plaintiffs had supplied evidence establishing the parties' diverse citizenship, that the complaint's allegations of contracting activities in West Virginia and Eleazer's alter-ego status sufficed for personal jurisdiction, and that the well-pleaded claims against Eleazer individually and as alter ego could not be dismissed at this stage.

business & regulatoryprocedure

The case involved a plaintiff injured while swimming in Lake Sherwood at Monongahela National Forest when his foot struck a protruding concrete anchor used to secure buoys marking a swimming area. He sued the United States under the Federal Tort Claims Act for negligence in the placement and maintenance of the anchors. The court granted the defendant's motion for summary judgment, ruling that West Virginia's Recreational Use Statute shields landowners, including the federal government via the FTCA, from liability for recreational users absent willful or malicious injury or a qualifying charge for entry to the premises, neither of which was shown here based on the evidence of the buoy system and the $3 parking fee.

torts & liabilityfederal power

In Walker v. Rubenstein, a state prisoner filed a federal habeas corpus petition under 28 U.S.C. § 2254 challenging his conviction after state courts upheld it on direct review and denied collateral habeas relief. The district court adopted the magistrate judge's recommendation to grant the state's motion to dismiss, ruling that the petition was untimely under the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1)(A), which begins running upon the conclusion of direct review rather than after state collateral proceedings. The court further held that equitable tolling did not apply, as the petitioner failed to demonstrate diligent pursuit of rights or extraordinary circumstances beyond his control that prevented timely filing, consistent with standards from Pace v. DiGuglielmo and Fourth Circuit precedent. The petition was therefore dismissed with prejudice.

criminal lawprocedure

This case involved a third-party complaint by Engine Components, Inc. against Paul Fournet Air Service, Inc., seeking contribution and indemnification for alleged negligence in aircraft maintenance that contributed to a plane crash. The court addressed Paul Fournet's motion to dismiss for lack of personal jurisdiction in West Virginia. The court granted the motion, holding that the defendant, a Louisiana corporation, lacked sufficient minimum contacts with West Virginia to satisfy due process requirements. The only alleged contacts—a single phone call during flight and the plane's prior landing in the state—were insufficient to show purposeful direction toward the forum state, consistent with precedents like World-Wide Volkswagen.

proceduretorts & liability

The case involved U.S. Bank entities acting as trustees for loan trusts originated by Keystone and KMC, seeking reimbursement from the FDIC (as receiver for the insolvent Keystone) for trustee fees, attorneys' fees, costs, and indemnification under custodial and servicing agreements, along with disputes over loan repurchases and documentation issues. The court ruled on cross-motions for summary judgment, granting them in part and denying them in part after analyzing FIRREA provisions on claim filing deadlines, contract repudiation authority, successor liability, and the scope of indemnification clauses. Core reasoning focused on whether claims were timely filed within statutory periods, whether agreements created enforceable obligations for the FDIC, and the extent to which prior litigation fees qualified for reimbursement under the contracts.

business & regulatoryfederal powerprocedure

This case involves PinnOak Resources and its affiliate suing several insurance companies and an adjuster in West Virginia state court for breach of contract, bad faith, and unfair trade practices related to unpaid claims from methane explosions at a coal mine. The defendants removed the case to federal court, arguing diversity jurisdiction due to fraudulent joinder of a non-diverse defendant and federal question jurisdiction under the New York Convention for an arbitration clause in one policy. The court held that diversity jurisdiction was lacking because the adjuster was not fraudulently joined, but federal question jurisdiction existed over the arbitration claim of one insurer. It therefore remanded all claims except those against that insurer to state court while retaining jurisdiction over the arbitration issue.

procedurebusiness & regulatory

The case involved a wrongful death suit brought by Sylvia Vass after her husband, a West Virginia truck driver, was fatally injured in Virginia when cargo fell on him due to negligent loading by Volvo employees at a Virginia facility. The plaintiff filed the action in West Virginia state court seeking damages under the West Virginia wrongful death statute, but Volvo moved to dismiss for failure to state a claim. The court granted the motion under Rule 12(b)(6), holding that West Virginia choice-of-law rules (lex loci delicti) required application of Virginia substantive law to the incident that occurred entirely in Virginia, even though West Virginia public policy would substitute its comparative negligence rule for Virginia's contributory negligence defense. The plaintiff was granted leave to amend the complaint to assert a claim under Virginia law.

torts & liabilityprocedure