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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.

Bradley Miller, et al. v. John S. Jeffers, et al. 05/05/2001
3:97-cv-01214

Order Granting Dismissal of Defendant Apfel

Defendant Kenneth S. Apfel, Commissioner of the Social Security Administration (SSA), moved to dismiss the Third Amended Complaint on two grounds.  First, Defendant Apfel contends that Plaintiffs’ claims against him are barred by the Administrative Procedures Act (APA) which precludes judicial review of decisions “committed to agency discretion.”  Second, Defendant Apfel asserts that Plaintiffs failed to exhaust their administrative remedies and cannot justify waiver of the exhaustion requirement.  For the reasons that follow, the Court agrees with Defendant Apfel’s first argument and, therefore, GRANTS his motion and DISMISSES him from this action.1

Author:
Robert C. Chambers
Erie Insurance Property & Casualty Company v. Rebecca Keneda, et al. 04/25/2001
5:00-cv-00360

Memorandum Opinion and Order

Pending are cross-motions for summary judgment on behalf of Plaintiff Erie Insurance Property & Casualty (Erie) and Defendant Susan Keneda.1 As discussed below, the Court GRANTS Plaintiff’s motion and DENIES Defendant’s motion.

Author:
Charles H. Haden II
Margaret Toppings, et al. v. Meritech Mortgage Services, Inc., et al. 04/23/2001
2:00-cv-01055

Memorandum Opinion and Order

Pending is the joint motion to compel arbitration and dismiss or, in the alternative, to stay the case, filed by Defendants Chase Manhattan Bank and Saxon Mortgage. The Court DENIES the motion without prejudice.

Author:
Charles H. Haden II
James S. Sias and Carrie K. Mabry v. Wal-Mart Stores, Inc. 04/12/2001
2:01-cv-00022

Memorandum Opinion and Order

Pending is Plaintiff Carrie K. Mabry' s (Mabry) motion to dismiss Defendant Wal-Mart Stores, Inc.'s (Wal-Mart) Counterclaim.1 The Court GRANTS the motion.

Author:
Charles H. Haden II
Theresa L. Tucker v. United States of America and Raleigh General Hospital 04/06/2001
5:00-cv-00495

Memorandum Opinion and Order

This action arises out of the alleged negligence of John H. Pellegrini, D.O., in performing an hysterectomy on Plaintiff, and of defendant Raleigh General Hospital (“Raleigh General”) in granting and continuing staff privileges to Dr. Pellegrini. At the time of the surgery, Dr. Pellegrini was an agent and employee of an entity covered by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.

Author:
Mary S. Feinberg
The West Virginia Highlands Conservancy v. Gale A. Norton, et al. 04/05/2001
2:00-cv-01062

Memorandum Opinion and Order

Pending is the motion of Defendant Director, West Virginia Division of Environmental Protection (DEP, the State Defendant) to dismiss this action because, inter alia, it is barred by the Eleventh Amendment of the United States Constitution.2  The motion is DENIED.

Author:
Charles H. Haden II
Michael H. Holland, et al. v. Kitchekan Fuel Corporation, et al. 04/04/2001
1:99-cv-00398

Opinion and Order

Before the court is the Renewed Motion to Dismiss Jumacris Mining, Inc. ("Jumacris") filed on June 9, 2000. Also pending are the objections, filed on April 28, 2000, of Jumacris to an order of the magistrate judge granting plaintiffs’ motion to compel discovery. For the reasons discussed below, the Renewed Motion to Dismiss Jumacris Mining, Inc. is GRANTED. The objections to the magistrate judge’s discovery order are rendered moot by the dismissal of Jumacris and are therefore overruled. The stay, which the court imposed by order of June 5, 2000, is lifted; a new scheduling order will be entered consistent with this opinion.

Author:
David A. Faber
Raymond Junior Hawkins v. Howard Painter 04/04/2001
5:98-cv-00997

Memorandum Opinion and Order

This matter comes once again before the Court on review of the Magistrate Judge's Findings and Recommendations.  Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.   By order dated September 29, 1999, this Court reviewed the objections to Magistrate Judge Feinberg's Findings and Recommendations which recommended to this Court that this case be remanded to the state court for appointment of counsel and an evidentiary hearing.  Noting that the Court lacked authority to remand to the state court, this Court referred the case back to the Magistrate for further proceedings.  The Magistrate appointed the Federal Public Defender's Office to represent the petitioner.  Petitioner's newly appointed counsel reviewed the pro se petition and narrowed the issues presented.  Thereafter, the Magistrate held a two day evidentiary hearing on the issues raised in the petition.  After the hearing, Judge Feinberg submitted her Findings and Recommendations on September 29, 2000.  Thereafter, on October 13, 2000, Petitioner submitted objections to the Findings and Recommendations.  Upon de novo review of the petitioner's objections and the entire record, the Court ACCEPTS in part and REJECTS in part the Findings and Recommendations of the Magistrate Judge, but nevertheless DENIES Petitioner's Petition for a Writ of Habeas Corpus for the reasons that follow.

Author:
Robert C. Chambers
Ohio River Valley Environmental Coalition, Inc., et al. v. Michael C. Callaghan, et al. 03/09/2001
3:00-cv-00058

Memorandum Opinion Concerning the Preliminary Injunction

This matter is before the Court upon a motion by Plaintiffs Ohio River Valley Coalition and the Citizens Coal Council for a preliminary injunction.  After holding a five-day hearing on the matter, the Court DENIES the preliminary injunction sought by Plaintiffs for the following reasons.

Author:
Robert C. Chambers
State of West Virginia v. United States Department of Health and Human Services, et al. 03/07/2001
2:98-cv-01150

Memorandum Opinion and Order

Pending before the court are the plaintiffs Motion for Preliminary Injunction and the parties' cross-motions for summary judgment. The plaintiff filed this suit against the United States Department of Health and Human Services ("DHHS"), its then-Secretary, Donna Shalala and then Administrator of the Heath Care Financing Administration ("HCFA"), Nancy-Ann Min DeParle,1 asking the court to declare that the 1993 amendments to 42 U.S.C. § I 396p are unconstitutional and to enjoin the defendants from enforcing the amendments. At issue is the requirement in these amendments that states recover from the estates of certain Medicaid recipients reimhursement for nursing home and other long-term care benefits (hereinafter the "estate recovery program").

Author:
Joseph R. Goodwin

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