Case law

Sumpter v. United States

District Court, S.D. West Virginia · Sep 18, 2019

Murphy, including by requiring that he follow the procedures and abide by the standard of care it established. … The FTCA waives sovereign immunity for certain torts committed by employees of the United States but does not waive immunity as to the acts of independent contractors. Logue v.

Powell v. Bank of America, N.A.

842 F. Supp. 2d 966 · District Court, S.D. West Virginia · Feb 2, 2012

Our court of appeals lays a “heavy burden” upon a defendant claiming fraudulent joinder: “In order to establish that a nondiverse defendant has been fraudulently joined, the removing party must establish either: [t]hat there … Grace & Co., 156 F.3d 535 (4th Cir.1998), plaintiffs maintain that BAC’s right of foreclosure is qualified by a duty to act in good faith.

Phillips Construction, LLC v. Daniels Law Firm, PLLC

93 F. Supp. 3d 544 · District Court, S.D. West Virginia · Mar 19, 2015

“The burden of establishing federal jurisdiction is placed upon the party seeking removal,” Mulcahey v. Columbia Organic Chems. … Motors Corp., 636 F.2d 1156, 1160 (8th Cir.1981) (“Section 1441(b) does not qualify the require *554 ment of complete diversity; rather, it further limits jurisdiction based on diversity of citizenship by requiring that no

Daimler Chrysler Financial Services Americas LLC v. Jones (In Re Jones)

397 B.R. 775 · District Court, S.D. West Virginia · Sep 29, 2008

Daimler-Chrysler claims that it qualifies for that exception because it acted to protect and preserve the property after the debtor filed for bankruptcy. … The statute’s references to an “installment obligation,” and to the right to cure in the context of tendering unpaid installment payments, clearly applies to a default in the context of failing to make payments, and not to

McCall v. Apfel

47 F. Supp. 2d 723 · District Court, S.D. West Virginia · Mar 24, 1999

It is well established that a facet of alcoholism is denial. See Adams v. … Tired of “doing the same old job,” failing to wear protective gear, and ceasing to look for work hardly qualify as disabling conditions.

Holbrook v. Aldridge

District Court, S.D. West Virginia · Apr 8, 2021

damages for emotional distress cannot rely on conclusory statements that the plaintiff suffered emotional distress [or] the mere fact that a constitutional violation occurred, but, rather, the testimony must establish … Clearly, Plaintiff has made sweeping claims against multiple individuals.

Citynet, LLC v. Frontier West Virginia, Inc.

District Court, S.D. West Virginia · Nov 7, 2023

against the defendants under the FCA).2 Once the court ruled on the motions to dismiss, the case was stayed for two years while the state defendants unsuccessfully sought the protection of qualified … immunity in an interlocutory appeal.

Ohio Valley Environmental Coalition, Inc. v. United States Army Corps of Engineers

883 F. Supp. 2d 627 · District Court, S.D. West Virginia · Aug 10, 2012

The EPA unequivocally invoked the relevant regulation, and the course of conduct in this case clearly shows that the Corps did not treat the State § 401 certification as conclusive. … Glickman, 81 F.3d 437 (4th Cir.1996) requires the Corps to retain a biologist or other “qualified expert” capable of taking a “hard look” at the impacts of the Reylas permit.

Webb el al v. Kanawha River Terminals, LLC

District Court, S.D. West Virginia · Mar 21, 2022

An exception to an employer’s immunity under the LHWCA exists when the employer is also a vessel owner (a “dual-capacity employer”) and is being sued only in its owner capacity under § 905(b). See id. § 905(b). … It noted that a watercraft need not be used primarily as a means of transportation on water to qualify as a vessel, only that it be “used or capable of being used” as one. Id. at 495-497 (quoting 1 U.S.C. § 3).

Jenkins v. Ballard

District Court, S.D. West Virginia · Sep 25, 2017

established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an … The evidence is going to be Josh Settle has cut a deal, and he’s got what we call immunity.

Charles Terry v. Superintendent Jonathan Frame

District Court, S.D. West Virginia · Jan 16, 2026

After a careful analysis the Magistrate Judge found that the state courts’ habeas determinations were not “contrary to, or an unreasonable application of, clearly established federal law; or based on an unreasonable … First, he found that the state courts’ application of Strickland was not unreasonable because the State’s expert was “well qualified to present the expert testimony and such testimony was relevant, reliable, and admissible

Compton v. Conner

District Court, S.D. West Virginia · Feb 7, 2025

Thus, the FTCA is a limited waiver of sovereign immunity. … The PLRA’s exhaustion requirement clearly applies to Bivens actions. Porter v.

Brown Ex Rel. Brown v. Cabell County Board of Education

714 F. Supp. 2d 587 · District Court, S.D. West Virginia · May 26, 2010

The Court stated that student conduct which materially disrupts classroom work or involves substantial disorder is “not immunized by the constitutional guarantee of freedom of speech.” Id. at 513 , 89 S.Ct. 733 . … Past incidents of gang violence and increased tension caused by intimidation from gang members served as justification for the ban of a slogan clearly associated with that gang.

Withrow v. Sedgwick Claims Management Service, Inc.

841 F. Supp. 2d 972 · District Court, S.D. West Virginia · Jan 25, 2012

Moreover, an employee can qualify for the exemption if his or her primary duty is work directly related to the management or business operations of the employer’s customers. 29 C.F.R. § 541.201 (c). … I agree with the defendant that the undisputed facts show clearly and convincingly that the Claims Examiners’ primary duty included the exercise of discretion and independent judgment.

Oakley v. Coast Professional, Inc.

District Court, S.D. West Virginia · Nov 4, 2021

But the Courts of Appeals that have distinguished Chae have not done so on bases that clearly distinguish this case. … But it does not follow that Congress wanted to provide collection agencies with full immunity from consumer protection laws.

S.M.B. v. Michael York

District Court, S.D. West Virginia · Oct 26, 2017

“Dismissal . . . is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense.” Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996). … Case law provides clear guidance as to what claims may qualify for application of this exception.

Melange Cafe LLC v. Erie Insurance Property & Casualty Company

District Court, S.D. West Virginia · Aug 31, 2020

The Fourth Circuit sets a high standard for defendants attempting to demonstrate fraudulent joinder: “[T]he removing party must establish either: that there is no possibility that the plaintiff would be able to establish … The best way to advance this objective is to accept the parties joined on the face of the complaint unless joinder is clearly improper.

United States v. Wallace

811 F. Supp. 2d 1265 · District Court, S.D. West Virginia · Sep 9, 2011

Taylor, 90 F.3d 903, 908 (4th Cir.1996) (“[A] law enforcement officer’s observations from a public vantage point where he has a right to be and from which the activities or objects he observes are clearly visible do not constitute … Napier’s testimony established beyond peradventure the reliability of the confidential informant.

Cooper v. Norfolk & Western Railway Co.

870 F. Supp. 1410 · District Court, S.D. West Virginia · Nov 18, 1994

Subject Matter Jurisdiction “Whether federal law pre-empts a state law establishing a cause of action is a question of congressional intent.” Hawaiian Airlines v. … Plaintiff clearly is a member of a protected class and he engaged in a protected activity (filed a complaint).

United States v. Powell

929 F. Supp. 231 · District Court, S.D. West Virginia · Jun 7, 1996

In fact, Jones concedes his team took no action on March 1 to establish who owned or resided at the house before seeking consent to enter without a warrant. T. 14. Officer Jones did do the following. … Rodriguez , however, further notes and qualifies as follows: As Stoner [v.