Case law

Gilmore v. Saad

District Court, N.D. West Virginia · Jul 30, 2019

Ct. 2243 (2016)[,]” his Commonwealth of Virginia drug conviction fails to categorically qualify as a “federally Controlled Substance element that is included within the felony drug offense definition … In his report and recommendation, the magistrate judge correctly noted that the petitioner has not met the second prong under the Wheeler2 test — that the “settled substantive law [that established

Carroll v. Adams

District Court, N.D. West Virginia · Mar 6, 2023

. § 846 does not qualify as a controlled substance offense, so he does not qualify for the career offender enhancement. … The phrase “subsequent to” clearly implies a requirement to first file a direct appeal and § 2255 motion before filing a § 2241, if filing pursuant to the savings clause of § 2255.

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Coffindaffer

183 F. Supp. 2d 842 · District Court, N.D. West Virginia · Jun 16, 2000

If the hardship balance tilts sharply and clearly in the plaintiffs favor, the required proof of likelihood of success is substantively reduced. … There is also a clearly demonstrated prospect of destruction of goodwill and the misuse of client confidential information. See Merrill Lynch v.

Bates v. Saad

District Court, N.D. West Virginia · Mar 13, 2018

discredited by the video and documentary evidence submitted to the Court for in camera review; (4) as government officials performing discretionary functions, the defendants are entitled to qualified … immunity; (5) the plaintiff’s claims regarding his disciplinary actions over his incident report are not cognizable in a Bivens action but must be brought under 28 U.S.C. § 2241; (6) the plaintiff

Kempker v. United States

District Court, N.D. West Virginia · Sep 7, 2021

Defendant argues that Plaintiff’s case should be dismissed because Plaintiff cannot establish that a duty of care owed to him was breached, sufficient to maintain any negligence claims, and a … Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial Life & Accident Ins.

Brown v. United States

District Court, N.D. West Virginia · Jul 25, 2023

Further, the magistrate found that the FTCA’s quarantine exception applies and provides the Defendant with immunity from suit for any claim related to a quarantine. … The Plaintiff objects to the magistrate’s finding that the Defendant is immune from suit for any claim related to quarantine.

Tustin v. Motorists Mutual Insurance Company

668 F. Supp. 2d 755 · District Court, N.D. West Virginia · Nov 10, 2009

However, case law clearly establishes that settlement of a dispute does not warrant vacatur under Rule 60(b). … Similarly, a party’s desire to avoid the potential legal precedent set by an order does not qualify for Rule 60(b)(6) relief. Neumann, 398 F.Supp.2d at 493 .

Murphy v. Secretary, U.S. Department of Homeland Security

District Court, N.D. West Virginia · Jul 11, 2019

The Plaintiff argues that he was more than qualified for the armed security guard position because he was a retired Federal Law Enforcement Officer of 25 years who was previously employed as a Special Agent Security Officer … The federal agency itself is immune from suit. See, e.g., Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1105-07 (D.C.

STONEWALL JACKSON MEMORIAL HOSPITAL v. American United Life Insurance Company

963 F. Supp. 553 · District Court, N.D. West Virginia · Apr 30, 1997

Under the terms of the Plan, each qualified participant is assigned a pro rata portion of the employer’s lump sum annual contribution. … After careful scrutiny of ERISA’s language and legislative history, the Court concluded that Congress had clearly intended ERISA’s § 502(a)(1)(B) to provide the exclusive vehicle for resolution of such disputes.

Otis Elevator Co. v. City of Grafton

72 F. Supp. 833 · District Court, N.D. West Virginia · Aug 1, 1947

Elevator Manufacturing Company, is a corporation of Ohio; is registered to do business in the State of West Virginia; has designated the State Auditor, Charleston, West Virginia, as its resident agent; and has a regular and established … He was scarcely qualified to express the opinion that he did, and to reach it he had to disregard language in the Lind-quist et al. claims which clearly distinquish them from the claims of Larson.

Hall v. Herwitz

District Court, N.D. West Virginia · Apr 15, 2020

Plaintiff’s Objection does not dispute Magistrate Judge Mazzone’s determination that at least three of his prior civil cases qualify as strikes under the three strike provision. … Finally, plaintiff’s Objection ends by listing several cases which plaintiff states are the “clearly established laws exist[ing] at [the] time of [his] claims.” [Doc. 14 at 8–10].

Cotter v. Prudential Financial

238 F.R.D. 567 · District Court, N.D. West Virginia · Nov 7, 2006

To qualify for the abuse of discretion standard, the terms of the plan must “clearly grant discretion.” Gallagher v. Reliance Std. Life Ins. Co., 305 F.3d 264, 269 (4th Cir.2002). … District courts may consider evidence outside the administrative record “only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review.” Id.

Mullins v. Johnson

District Court, N.D. West Virginia · Mar 26, 2024

The complained-of statement, while unflattering, is clearly a matter of opinion, which does not contain a clearly provable assertion of fact. … In addition to asserting that Plaintiff’s claims in Counts I, II, III, IV, V, VIII, and IX are insufficiently pled and lack merit, the Defendants also contend that (1) qualified immunity shields

Wise v. Travelers Indemnity Co.

192 F. Supp. 2d 506 · District Court, N.D. West Virginia · Feb 22, 2002

As previously established, the Fourth Circuit has consistently followed *516 the Pacor test. … This clearly appears to be the situation faced before the Court in the present case.

Clay v. Saad

District Court, N.D. West Virginia · Jan 10, 2018

Ct. 2243 (2016), his prior convictions in Kentucky no longer qualify as predicate controlled substance offenses, thus rendering him “actually innocent” of the career offender enhancement (Dkt. … Courts will uphold those portions of a recommendation to which no objection has been made unless they are “clearly erroneous.” See Diamond v. Colonial Life & Accident Ins.

Rattay v. Medtronic, Inc.

482 F. Supp. 2d 746 · District Court, N.D. West Virginia · Apr 3, 2007

Under § 360e, unless it qualifies for an exception, a Class III medical device must be subjected to PMA scrutiny before it can be marketed and sold in the United States. … These claims clearly relate to the safety and effectiveness of Medtronic’s product.

Cox v. Wilson

District Court, N.D. West Virginia · Oct 10, 2017

Rather, he argues that his Connecticut drug conviction does not “categorically” qualify as a felony offense. … Rather, he argues that his Connecticut drug conviction does not “categorically” qualify as a felony offense. In his Objections, petitioner relies on Mathis v.

Teel v. Chesapeake Appalachia, LLC

906 F. Supp. 2d 519 · District Court, N.D. West Virginia · Oct 25, 2012

Clearly, the reservation and the later lease do not provide Chesapeake with the explicit right to construct waste pits or dispose -of drill cuttings and other materials within those pits. … The plaintiffs are correct in stating that permits do not provide immunizations from common law standards. FPL Farming Ltd. v. Envtl. Processing Sys., L.C., 351 S.W.3d 306, 310 (Tex.2011); see Moundsville Water Co. v.

Landis v. Jarden Corp.

5 F. Supp. 3d 808 · District Court, N.D. West Virginia · Mar 14, 2014

Even if these materials qualified as public records based merely upon their inclusion in the investigative file — a dubious proposition, given that most are neither records of (1) the office’s activities, (2) matters observed … First, these materials are clearly inadmissible for purposes of proving notice, as they were released after A.N.’s accident occurred. See, e.g., Exum v. Gen. Elec.

Sheehan v. Lincoln National Life

257 B.R. 449 · District Court, N.D. West Virginia · Jan 5, 2001

The Court has reviewed the transcript of the hearing held before the bankruptcy court on October 17, 2000, and finds that its findings of fact are not clearly erroneous. … the auspices of an insider that employed the debtor at the time that the debtor’s rights under such plan or contract arose; (B) Such plan is on account of age or length and service; and (C) Such plan or contract does not qualify