A Dollar General store in Martinsburg

MARTINSBURG – Attorneys for Dollar General are concerned that they are being forced to give a potential client list to plaintiffs attorneys representing a former employee in a class action lawsuit.

Steptoe & Johnson attorney Larry J. Rector, who is representing Dollar General in the lawsuit, filed an emergency motion on May 9 that requests U.S. District Judge Gina Groh reconsider a discovery order that requires the company to turn over contact information for potential class members.

Stephanie N. Paulino filed the lawsuit in 2012, alleging the company violated the West Virginia Wage Payment and Collection Act when it failed to pay her final wages within 72 hours of her termination.

Dollar General says it is premature to offer information on former employees who were fired within the past five years, as U.S. Magistrate Judge James E. Seibert ordered on Feb. 8.

“If defendants are required to produce names and contact information of the former employees, it will work manifest injustice to the defendants and former non-party employees due to (1) the irreversible nature of the production of names and contact information and (2) the privacy interests of non-party employees,” the motion says.

Dollar General is arguing that certification for the proposed class is improper. If it wins its argument, it will not be able to undo the release of the contact information of former employees, it says.

“Moreover, Plaintiff and her lawyers will have access to highly confidential information to which they ultimately have no legal need or right to effectively litigate this matter,” the motion says.

Hammer

Waddell

“Additionally, this confidential information could become a client list for Plaintiff’s counsel and result in further litigation for Defendants which is fundamentally unjust and contrary to the intent and purpose of class litigation and Rule 23.”

Paulino and the proposed class are represented by Martinsburg attorneys David Hammer – of Hammer, Ferretti and Schiavoni – and Harry P. Waddell.

They filed a response to the emergency motion on May 13, claiming it is Dollar General’s fourth attempt to restrict discovery on the same issue.

“Defendants’ latest motion for reconsideration is frivolous and without basis in law or fact, and, therefore, made with improper purpose,” the response says.

“Although Defendants deny that they seek to ‘unnecessarily delay these proceedings,’ nearly seven months have passed without Plaintiff having received the full discovery to which she is entitled to under the Rules and as ordered successively by Magistrate Judge Seibert and by this Court.”

The response also says the conduct of Dollar General’s attorneys has needlessly slowed the pace of the case and added fees and costs to Paulino’s claims.

Previously, the two sides argued over $720 in attorneys fees.

Dollar General was ordered to pay fees for extra work Paulino’s attorneys had to perform in order to fight a discovery dispute. Both Hammer and Waddell requested fees that amounted to $400 per hour, but Dollar General argued that figure should be reduced to $300 per hour.

The total difference when considering the amount of time worked was only $720. Groh agreed with Dollar General’s argument and used the $300 figure in an order filed May 13.

Overall, the fees and expenses awarded to Hammer were $7,620 and $1,800 to Waddell.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

The Waffle House on Edwin Miller Blvd. in Martinsburg

MARTINSBURG – A Berkeley County man who was beaten outside a Waffle House has settled his claim that the restaurant didn’t provide a safe environment for $7,500.

Hurshell V. Ricks II filed a lawsuit against Ricardo Lewis, Theo Washington, Congress Foods – doing business as Waffle House – and John Does 1-2 in Berkeley County Circuit Court over a July 2009 incident.

Ricks claimed Washington and a John Doe assaulted him while a Waffle House security guard looked on.

Ricks has incurred $12,000 in medical bills, and his $7,500 settlement will be retained until the precise amount being paid by Medicaid is known.

Ricks filed his original complaint on July 1, 2011. It alleged that he was invited by Lewis to the Waffle House on Edwin Miller Boulevard in Martinsburg to eat on July 5, 2009.

Once there, he was introduced to John Doe 2, who was identified by Lewis as a Waffle House security guard, the complaint says.

Lewis asked Ricks to speak with Washington and John Doe 1 outside the Waffle House entrance and told him Doe 1 would escort him, the complaint says. Once outside, Washington and Doe 1 allegedly began to beat him in the face.

“Plaintiff turned back to the door for help and Defendant Doe 2 said ‘no,’ locked the door, failed to both intervene and render aid in the attack and then went over to where Defendant Lewis was seated,” the complaint says.

Congress Foods fought the lawsuit in a motion to dismiss and a motion for summary judgment, arguing it was not a named defendant in the original lawsuit and the statute of limitations tolled once it was added to an amended complaint.

It was represented by Tracey A. Rohrbaugh of Bowles Rice in Martinsburg.

On Sept. 20, the plaintiff filed a motion for default judgment as to Lewis. It was granted Oct. 1 by Judge Gray Silver III, who set up a damages hearing.

Waffle House objected to the damages hearing while its motion to dismiss was pending. It also said it planned to file cross-claims against its co-defendants.

“(T)he damages caused by Defendant Lewis, if any, should be determined by a jury during the trial of this matter,” Rohrbaugh wrote.

Silver agreed and cancelled the hearing.

Patrick G. Henry III served as mediator. Ricks was represented by Paul Taylor

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Tommy D. Clay claims the defendant failed to properly maintain its water lines and caused him property damage at his place of business, according to a complaint filed May 13 in Kanawha Circuit Court.

Clay claims the defendant’s negligence included failing to properly maintain water lines; failing to properly repair water lines; failing to properly provide required maintenance to its water lines and the areas immediately surrounding the water lines; failing to exercise reasonable care in connection with the maintenance of the defendant’s property, easements and rights-of-way; and failing to take proper corrective and remedial action necessary to prevent the expansion and growth of sinkholes on Clay’s property.

After the first sinkhole developed, Clay promptly notified the defendant and requested immediate action, according to the suit. However, the defendant failed to take proper action to repair its leaking water lines or to prevent the enlargement of the sinkhole.

Clay claims as a result, a second large sinkhole developed, causing substantial property damage.

When the defendant repaired the pipe, it did so in a negligent manner, which caused further leaking and property damage, according to the suit.

Clay claims the defendant repeatedly refused to repair the water lines and to prevent the enlargement of the sinkholes, despite being put on notice multiple times.

The sinkholes are now so large that Clay’s business has been obstructed and virtually closed down, according to the suit.

Clay is seeking compensatory damages with pre-judgment interest. He is being represented by John W. Alderman III of the Law Offices of John W. Alderman III.

The case has been assigned to Circuit Judge Louis H. Bloom.

Kanawha Circuit Court case number: 13-C-934

Patricia and Hope Jaeger filed a lawsuit May 17 in Berkeley Circuit Court against the Berkeley County Health Department, alleging it has no right to deny them a second two-week temporary food permit as they save money to open a restaurant.

The lawsuit alleges they have been told a temporary food permit shall not be granted twice at the same address and are challenging that decision. They are representing themselves.

The Jaegers say they sought to open a commercial food establishment but lacked the funds to purchase equipment or rent a facility, so they discussed options with the Health Department.

On the Health Department’s suggestion, the Jaegers began with a two-week temporary food permit for an establishment on Route 11.

“A long list of regulations was met, the inspection took place and the permit was granted,” the complaint says.

“We sold $1,600 worth of food in two very strenuous weeks and made a lot of people happy. Everyone who stopped thanked us emphatically for ‘being here.’”

Toothpickin’ was on a busy highway in an isolated location not surrounded by other retail, they say. After investing more time and money for a second two-week period, the Jaegers were turned down for another permit.

They say they were humiliated telling potential customers they were shut down by the Health Department. They seek $20,000 in damages and a series on temporary permits to be issued until they have enough money for a permanent facility.

“We only want a fair chance at making something useful and profitable from our property on busy Route 11,” the complaint says.

The case has been assigned to Judge Gray Silver III.

Berkeley Circuit Court case number 13-c-381.

Steptoe

BRIDGEPORT – A new book details the 100-year history of the Steptoe & Johnson law firm and how it rose to prominence in West Virginia and beyond.

The book, “Firmly Rooted: The First One Hundred Years of Steptoe & Johnson,” was written by Robert M. Steptoe, Jr. – grandson to one of the firm’s founders – in celebration of its centennial.

“Firmly Rooted” takes readers on a journey through the history of Steptoe & Johnson which began with founders Philip P. Steptoe and Louis A. Johnson in Clarksburg in 1913 at a time when Clarksburg was a hub for business and culture. It follows the major developments of the firm from its humble beginning to a multi-state firm with nearly 300 attorneys and 14 offices in six states. It also discusses many of the historic events that helped develop the firm and the region.

The book contains nearly 500 pages and more than 140 photos as well as extensive appendices and endnotes. It begins with a forward by John W. Fisher II, William J. Maier, Jr., Dean Emeritus, West Virginia University College of Law.

“For a law firm or any business to exist after 100 years is very special; and the good news is that our firm is thriving,” Steptoe said. “The history of the firm and its founders are both so unique that it made writing the book a joy and a challenge.”

“The entire Steptoe & Johnson family is grateful for Bob’s hard work and dedication to make the book a reality,” Steptoe & Johnson CEO Susan Brewer said. “Our first 100 years shaped who we are, and we look forward to what the next 100 years will bring.”

Steptoe served as Managing Partner of the firm from 1989 until 2008 and Chairman from 2009 until 2012. He is now a Member of the firm practicing labor and employment law in the Bridgeport, W.Va. office.

Steptoe & Johnson plans on a limited release of the book and will donate copies to educational institutions and public libraries throughout the region.

Mani

CHARLESTON – A couple are suing Kanawha Valley Regional Transportation Authority for injuries sustained from a head-on collision.

On Feb. 11, 2012, Kristin M. Holstein was driving a 2004 Hyundai Elantra on Hull Avenue near the intersection with U.S. 60 in Cedar Grove when a KRT bus crossed left-of-center on Hull Avenue into her lane of travel and struck the vehicle head-on, according to a complaint filed May 15 in Kanawha Circuit Court.

Holstein claims the driver of the bus was an employee of KRT and was acting in the scope of his employment at the time of the collision.

As a result of the collision, Holstein suffered severe and permanent physical and mental injuries, including a closed head injury, according to the suit.

Holstein claims KRT is responsible for the negligent acts and omissions of the driver of the bus that collided with her car.

As a result of the defendant’s negligence, Holstein’s husband, Brian E. Holstein, also incurred damages, according to the suit.

The Holsteins are seeking compensatory damages. They are being represented by Jonathan R. Mani of Mani, Ellis & Layne PLLC.

The case has been assigned to Circuit Judge Charles E. King.

Kanawha Circuit Court case number: 13-C-955

May 13
Robert H. Maynard vs. the Kroger Co.
PA- Michael C. Walker; J- F. Jane Hustead
* On Feb. 1, Maynard was at Kroger when he allegedly slipped and fell on ice that had accumulated on the parking lot. Maynard is seeking compensatory damages.
Case number: 13-C-322

Heavens

CHARLESTON – Two women are suing Russell Insurance Services LLC for being negligent and causing them harm.

John Russell, individually and as an agent of United American Insurance Company; and Motorists Life Insurance Company, individually and as principal of John Russell were also named as defendants in the suits.

The defendants sold insurance to Jackie Lee Broyles and Mary Francis Bishop, according to two complaints filed May 13 in Kanawha Circuit Court.

The plaintiffs claim the defendants committed errors, omissions and/or acts of negligence that caused economic and emotional harm to Broyles and Bishop.

Motorists knew or should have known of Russell and Russell Insurance’s acts of wrongdoing against the plaintiffs and other policy holders and took no action against the Russell defendants to prevent them from harming the plaintiffs, according to the suit.

The plaintiffs claim Motorists is directly liable to them for all harm caused to them by Russell and Russell Insurance because of Motorists’ negligence in hiring, retaining, training and/or supervising Russell and Russell Insurance.

The errors, omissions and wrongdoing of the defendants were, at times, committed in a willful, wanton and reckless manner, according to the suit.

Broyles and Bishop are seeking compensatory and punitive damages with pre- and post-judgment interest. They are being represented by Christopher J. Heavens of Heavens Law Offices.

The cases have been assigned to Circuit Judge Tod J. Kaufman.

Kanawha Circuit Court case numbers: 13-C-932, 13-C-939

May 2
Adam West and Bethany West vs. Nationstar Mortgage LLC f/k/a Centex Home Equity Company; and Mark Greenlee
PA- Colten L. Fleu, Jennifer Wagner
* The Wests claim the defendants engaged in predatory lending practices and caused them damages. The Wests are seeking compensatory and punitive damages.
Case number: 13-C-131

May 7
Ricky Henderson and Tracy Henderson vs. GE Capital Bank
PA- Benjamin Sheridan
* The Hendersons claim GE violated the West Virginia Consumer Credit and Protection Act by continuing to attempt to collect debt from them after they were represented by counsel. The Hendersons are seeking compensatory and punitive damages.
Case number: 13-C-142

Deborah Huffman vs. Dish Network LLC and Frontier Communications of America Inc.
PA- Benjamin Sheridan
* Huffman filed for Chapter 7 bankruptcy protection on Feb. 8. She claims the defendants have violated the West Virginia Consumer Credit and Protection Act. Huffman is seeking compensatory and punitive damages.
Case number: 13-C-145

Norma J. Howell vs. Brianna M. Shabdue and Four Paws Pet Salon LLC
PA- Bernard E. Layne III; J- Joseph K. Reeder
* On May 8, 2011, Howell was a restrained front seat passenger of a 2005 Kia Amanti being driven by her husband. She claims Shabdue, for unknown reasons, crossed the center line of the two-lane highway and struck her vehicle and caused her injuries. At the time of the collision, Shabdue was operating a vehicle owned by Four Paws. Howell is seeking compensatory and punitive damages with pre- and post-judgment interest.
Case number: 13-C-146

May 15
Cathy Casto vs. T.P. Chevrolet Inc.
PA- Mark A. Atkinson, Paul L. Frampton Jr.
* Casto was employed by T.P. She claims the defendant discriminated against her because of her disability. Casto is seeking compensatory and punitive damages with pre-judgment interest.
Case number: 13-C-155

Goodwin

HUNTINGTON – The Putnam County Board of Education will have to pay a fired electrician $50,000 as a result of a consent judgment entered into with the U.S. Department of Labor.

Seth D. Harris, the acting Secretary of Labor, brought a complaint on April 29 on behalf of Michael Kelly, who was fired in 2011 after requesting time off to care for his mother. The Labor Department alleged the Board of Education was in violation of the Family Medical Leave Act.

The complaint was signed by John F. Gianola, an Assistant U.S. Attorney under U.S. Attorney for the Southern District of West Virginia R. Booth Goodwin II.

“By attempting to force Mr. Michael Kelly to resign and ultimately terminating his employment based, at least in part, on his request for FMLA leave, Defendant, as an employer subject to the provisions of the Act, violated the provisions of Section 105 of the Act… in that Defendant discriminated or retaliated against Mr. Michael Kelly for the exercise of rights provided under the Act or for opposing a practice made unlawful by the Act,” the complaint said.

Kelly began his full-time employment with the Putnam Board of Education on Nov. 7, 2007. More than three years later, he told Assistant Superintendent Brad Hodges he needed to care for his mother, who suffered from Alzheimer’s and dementia.

Kelly had learned that his mother’s dementia had worsened to the point that he assisted living facility could no longer provide adequate care, the complaint says.

On Feb. 3, 2011, Kelly asked for a leave of absence, but Hodges refused, the complaint says. Hodges allegedly informed Kelly that he should resign to avoid being fired.

The next day, Human Resources manager Barbara Brazeau asked Kelly when she would receive his resignation, the complaint says. On Feb. 7, 2011, Kelly told her that he would not be resigning.

Later that month, Superintendent Harold Hatfield accused Kelly of incompetency, insubordination and willful neglect of duty as a result of his absence and prior absences, the complaint says.

On Feb. 16, 2011, Kelly attempted to provide Hatfield with a written FMLA request, but Hatfield allegedly refused to accept the document and told Kelly he would be fired.

In a letter dated Feb. 16, 2011, Kelly was suspended without pay and was told his termination would be recommended at a coming meeting, the complaint says. The board voted unanimously to fire him on Feb. 22.

The complaint said Kelly was never provided with his rights under FMLA . Kelly had been employed full-time for at least 12 months, had performed at least 1,250 hours of service during the previous 12 months, had not taken any leave as FMLA leave prior to his request and 84 people were assigned to his work location, the complaint said.

The two sides entered a joint motion to enter the consent judgment on May 17, and U.S. District Judge Robert C. Chambers granted it the same day.

In addition to the $50,000 payment to Kelly, the Putnam Board of Education will be required to take certain educational steps. They are:

-Designate at least one manager, whose name will be submitted to the Labor Department, to be responsible for ensuring the enforcement of FMLA;

-Post FMLA enforcement posters at conspicuous places, with at least one in each of the Putnam County schools to be seen by employees;

-Provide training to managers in supervisors in the procedural requirements of FMLA;

-Provide managers, supervisors and employees with an accurate FMLA handbook explaining the procedural requirements of FMLA;

-Review all denied requests for employee leave for the 2012-13 school year to ensure it did not interfere with any right provided under FMLA; and

-Review information of any employee who alleges FMLA violations.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.