Case law

Cooper v. Mirandy

District Court, N.D. West Virginia · Mar 12, 2018

fourth claims for relief are time barred under the Anti-Terrorism 2 and Effective Death Penalty Act of 1996 (the “AEDPA”), which establishes … “[T]he ADA prohibits a public entity from discriminating against a qualified individual with a disability on the basis of disability.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

Patterson v. NewRez LLC

District Court, N.D. West Virginia · Jan 25, 2022

Although the Plaintiffs clearly have delayed in asserting their rights, such delay is not so unreasonable as to bar their claims. … Therefore, because they have failed to clearly demonstrate any detrimental change in their positions, the corporate defendants cannot establish that the Plaintiffs claims in Counts 1, 3, 4, and

Fout v. EQT Production Company

District Court, N.D. West Virginia · Aug 5, 2019

Moreover, “when a party is blameless, his attorney’s negligence qualifies as a ‘mistake’ or as ‘excusable neglect’ under Rule 60(b)(1).” Augusta Fiberglass Coatings, Inc. v. … First, as the defendant correctly notes, the terms of the Kay Co. class settlement do not establish any policy.

Herto v. Murphy

District Court, N.D. West Virginia · Aug 12, 2024

established Federal law.” … The undersigned concludes that this decision was not contrary to, or involving an unreasonable application of, clearly established Federal law.

Kornegay v. Lintner

District Court, N.D. West Virginia · Nov 20, 2024

The Court also discussed the well-established two-step inquiry which courts are to use for determining whether a Bivens claim may proceed: First, we ask whether the case presents “a new Bivens context” - i.e … The Fields case, however, is clearly distinguishable from the present one.

Abraham Linc Corporation v. Spinnaker Insurance Company

District Court, N.D. West Virginia · Jul 16, 2024

Defendants further argue that Plaintiff’s mere receipt of an email from a fraudster does not qualify as an unauthorized entry or change of electronic data or computer system within a computer … There is clearly a dispute of fact as to whether the condition precedent was satisfied, which cannot be determined at this stage of the litigation.

Chanze v. Air Evac EMS, Inc.

District Court, N.D. West Virginia · Nov 1, 2018

The affirmative defense of preemption may be resolved on a motion to dismiss, provided the facts necessary to determine the issue clearly appear on the face of the complaint. … services indiscriminately when called upon by third party professionals, together with its certification as an air carrier by the Department of Transportation and court cases affirming this status, qualify

Biogen International GMBH v. Mylan Pharmaceuticals Inc.

District Court, N.D. West Virginia · Jun 18, 2020

Although the immune system is a self-defense system that combats viruses and bacteria that would harm the human body, MS confuses the immune system into attacking 4 … Cir. 2010), involving a two-step inquiry: “The first part is determining what exactly is that ‘relevant art’ at issue, the second is determining who qualifies as a ‘person of ordinary

Kolenich v. Highmark West Virginia, Inc.

District Court, N.D. West Virginia · Jan 21, 2020

In response, plaintiffs argue that “[djefendant improperly asserts a blanketed immunity under... … ERISA’s “civil enforcement remedies were intended to be exclusive,” fd. at 54, and thus ERISA contains “express pre-emption provisions” that are “deliberately expansive, and designed to ‘establish pension [and welfare

Bates v. United States

District Court, N.D. West Virginia · Nov 30, 2020

Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. … FTCA As noted in the R&R, the FTCA is a comprehensive legislative scheme by which the United States has waived its sovereign immunity to

Gallant v. Mattress Giant Corp.

District Court, N.D. West Virginia · Dec 1, 2017

Cases should only be dismissed as frivolous when the legal theories are “indisputably meritless,” or where the claims rely on factual allegations which are “clearly baseless.” Id. at 327; see also Denton v. … In addition, “it is well established that although libel is generally perpetrated by written communication, it also includes defamation through the publication of pictures or photographs.”

Weller v. JP Morgan Chase Bank, National Association

District Court, N.D. West Virginia · Aug 18, 2017

While evidence of Chase’s attempt to collect from Kimberly is not plentiful, it is enough to qualify her as a consumer “allegedly obligated” to pay on the loan. See Croye, 740 F. Supp. 2d at 798. … The existence of fraud is generally a question of fact left to the jury, “but that does not automatically immunize the case from summary judgment.” Croye, 740 F.

Jenkinson v. Highmark West Virginia, Inc.

District Court, N.D. West Virginia · Jun 3, 2019

Jenkinson no longer qualified for coverage at Magee and needed to be removed to a nursing home. Highmark reasoned Mr. Jenkinson’s continued stay at Magee was no longer medically necessary because Mr. … Jenkinson cannot establish physical harm because he has not been denied treatment or service. Highmark states it authorized his admission to a nursing home capable of caring for him.

Patel v. Wilke

District Court, N.D. West Virginia · Jan 18, 2022

The ALJ held that while Plaintiff (Complainant) is within a Title VII protected class due to his national origin, he is otherwise qualified for the position due to his residency and admitting privileges, and he was not … The ALJ concluded the decision by finding that Plaintiff (Complainant) “did not establish by a preponderance of the evidence that the Agency discriminated against him based on his national origin[.]”

The Truth Tellers, LLC v. Levine

District Court, N.D. West Virginia · Mar 20, 2023

The note provided for repayment of the money invested with interest at the time of maturity or for conversion into preferred stock in Indeco upon a qualified financing. … Meador was critically involved in establishing the Appellant and contributing to its finances.

Heller v. National Bank

33 F. Supp. 250 · District Court, N.D. West Virginia · May 7, 1940

Burt of the same city qualified as executors of her last will and testament and codicil thereto attached. Said last will and testament and codicil reads as follows: “Will of Laura M. Burt “I, Laura M. … Conclusions of Law There are certain well-established principles of law which govern all cases involving the interpretation of wills.

Petrovsky v. United States Attorney General

District Court, N.D. West Virginia · Apr 24, 2018

Here, he has clearly established the first element of his claims; he served as his co-worker’s designated EEOC representative, and accordingly, engaged in protected activity. … After reviewing all of the submissions, Warden Deboo and AW Odom determined that Petrovsky was the best qualified applicant for the position and selected him to fill the vacancy (Dkt.

Bennett v. Skyline Corp.

52 F. Supp. 3d 796 · District Court, N.D. West Virginia · Oct 3, 2014

They correctly point out that this relationship establishes the potential for joint and several liability (Dkt. No. 17 at 14; Dkt. No. 1-2 at 3). … The Court found, however, that “conspiracy is an intentional act, and not a negligent one,” immunizing Rivesville from the civil conspiracy charge. Id.

Gaer v. American Public Education, Inc.

895 F. Supp. 2d 763 · District Court, N.D. West Virginia · Dec 8, 2011

Thus, assuming an efficient market, this regulation is well established and known to informed investors. … These are all simply market risks which are clearly beyond APEI’s control.

Campbell v. Kuhnle Brothers, Inc.

District Court, N.D. West Virginia · Sep 17, 2024

“For an interference to qualify as ‘substantial,’ the interference must amount to a ‘real and appreciable invasion of the plaintiff's interests,’ which means ‘more than slight inconvenience … The Supreme Court of Appeals of West Virginia has stated that “cases will obviously be infrequent in which ‘mental disturbance,’ not so severe as to cause physical harm, will clearly