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.
Opinion
Pending before the court is plaintiffs’ motion to dismiss its Magnusson-Moss Warranty Act Claims (doc. 5). For the reasons given below, the motion is hereby GRANTED, and, accordingly, the case is REMANDED to the Circuit Court of Wyoming County, West Virginia.
Remand Order
For the reasons discussed in the court’s Memorandum Opinion filed today, the court finds that this action was removed improvidently and without jurisdiction. It is therefore ORDERED that this action be, and it is hereby, remanded to the Circuit Court of Wyoming County, West Virginia.
Order
Pending is the plaintiffs’ Motion to Remand the above-styled action to the Circuit Court of Mason County, West Virginia. For the reasons stated below, the Court GRANTS the motion.
Memorandum Opinion and Order
Pending is Defendant Sears, Roebuck and Company’s (“Sears”) motion for summary judgment. The Court GRANTS the motion.
Memorandum Opinion and Order
On June 23, 2003, the defendant, Keith Andrew Lilly, pled guilty to two counts of Aiding and Abetting in the Armed Robbery of a Mail Custodian, in violation of 18 U.S.C. §§ 2114(a) (2003). The probation office then conducted a presentence investigation and prepared a Presentence Investigation Report (PSR). The defendant made two objections to the PSR. First, the defendant objected to the application of a six level increase to his base offense level made pursuant to § 2B3.1.(b)(2) of the United States Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual, § 2B3.1.(b)(2) (Nov. 2002) (USSG or Guidelines). Under § 2B3.1.(b)(2), a defendant’s offense level is increased by six “if a firearm is otherwise used” in the commission of a robbery. USSG § 2B3.1.(b)(2). The court FINDS that the defendant “otherwise used” a firearm when he pointed a gun at the victim and used the gun to coerce and to threaten the victim. See id. Therefore, the PSR correctly increased the defendant’s offense level by six. See id. Second, the defendant objected to the application of a two-level increase to Count One for “restraint of the victim.” USSG § 2B3.1.(b)(4)(B). The court FINDS that the defendant’s act of pointing a gun at the victim during a robbery did not constitute “physical restraint” of the victim within the meaning of USSG § 2B3.1.(b)(4)(B). Therefore, as to Count One, the PSR’s application of the two-level increase for physical restraint was incorrect.
Order
Pending before the court is the motion of the plaintiff, National Medical Care, Inc., d/b/a Fresenius Medical Care North America (Fresenius), for preliminary injuction [Docket 4]. For the reasons discussed below, this motion for preliminary injunction is GRANTED in part and DENIED in part.
Memorandum Opinion and Order
The above-styled matter is currently before the Court on appeal from a decision by the United States Bankruptcy Court for the Southern District of West Virginia, Person J., dated June 4, 2002. Judge Ronald G. Pearson entered a Final Order Dismissing Case in which the court granted Plaintiff's Motion to Dismiss Adversary Proceeding with prejudice and denied Defendant's Motion Requesting an Evidentiary Hearing or any other proceedings in this matter. Additionally, the Final Order Dismissing Case ordered, adjudged, and decreed that the Adversary Proceeding was dismissed with prejudice, each party to bear its own cost, and that there shall be no further proceedings held in this matter before the United States Bankruptcy Court for the Southern District of West Virginia.
Memorandum Opinion and Order
Currently pending before the Court is Plaintiff's Motion to Dismiss or Alternatively Motion to Remand and Supply Memorandum. Also currently pending before the Court is Defendant Indemnity Insurance Company of North America 's Motion to Dismiss With Prejudice. In response to Plaintiff's Motion and in support of its own Motion, Defendant Indemnity Insurance Company of North America filed Defendant Indemnity Insurance Company of North America's Response to Defendant's [sic] Motion to Dismiss or Alternatively Motion to Remand and Supply Memorandum and in Support of Defendant's Motion to Dismiss with Prejudice. In reply thereto, Plaintiff filed Plaintiff's Reply to Defendant Indemnity Insurance Company of North America's Motion to Dismiss With Prejudice. Having reviewed the aforementioned motions, as well as ll relevant case and statutory law, the Court is now prepared to issue its decision.
Memorandum Opinion and Order
Pending are the parties’ cross-motions for summary judgment on all issues. The Court GRANTS Plaintiff’s motion for summary judgment on his claim the Defendants wrongfully denied his pension benefits and DENIES Defendants’ motion for summary judgment on their Counterclaim. Plaintiff’s motion for fees and costs is GRANTED.
Memorandum Opinion and Order
This case involves a challenge to the Environmental Protection Agency's (the EPA's) decision, pursuant to its authority under section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c), to approve the State of West Virginia's antidegradation implementation procedures, a set of procedures designed to prevent the degradation of the State's waters. For the reasons that follow, the court concludes that lhe EPA acted arbitrarily and capriciously in approving West Virginia's antidegradation procedures. With respect to seven particular aspects of West Virginia's program, the EPA failed to ensure that West Virginia's procedures met minimum federal requirements, as defined by the Clean Water Act and the EPA' s own regulations. In some instances there is simply insufficient evidence in the administrative record to support certain aspects of West Virginia's implementation procedures and, correspondingly, the EPA's approval of those procedures. For example, West Virginia has classified the main segments of the Kanawha and Monongahela Rivers as Tier 1 waters, but there is ahnost no evidence in the record about the water quality of these rivers that would justify the decision to deny them the more stringent protection of Tier 2. See infra at IV .1. Nor is there sufficient evidence in the record explaining how Tier 2 review, which is locationspecific and requires public participation, could be done at the time a general section 402 or section 404 permit was issued, rather than at the time new individual discharges are proposed. See infra at IV.4. In other instances, West Virginia's regulations simply fail to require the minimum protections required by the EPA' s regulations, and the EPA' s approval of West Virginia's procedures was based on an unreasonable attempt to eftectively amend the plain meaning of those provisions so as to bring them into line with federal requirements. For example, West Virginia's procedures allow new or expanded discharges from certain wastewater treatment plants to evade Tier 2 review if the new discharge results in a "net decrease in the overall pollutant loading." The EPA approved this provision as consistent with minimum federal standards by, in effect, amending it to apply only when there is a net decrease in the pollutant loading for each pollutant parameter. See infra at IV .3.