Blankenship

Perdue

ALEXANDRIA, Va. – U. S. District Judge James Cacheris has refused jurisdiction in a defamation suit that Massey Energy Company and company president Don Blankenship filed against West Virginia Consumers for Justice.

Cacheris also refused to transfer the suit to federal court in West Virginia.

In a Sept. 26 order, he sent the suit back to Fairfax County circuit court in Alexandria, where Massey Energy and Blankenship filed it.

Jury trial is set in Fairfax County next April 17.

Massey Energy and Blankenship claim damages from statements West Virginia Consumers for Justice made in the Supreme Court of Appeals campaign of 2004.

Blankenship supported Republican candidate Brent Benjamin. West Virginia Consumers for Justice supported incumbent Darrell McGraw. Benjamin won.

In July 2005 Massey Energy and Blankenship sued West Virginia Consumers for Justice and its president, Kenneth Perdue, in Fairfax County.

The choice of courts surprised some, because Massey Energy is West Virginia's biggest coal company and Blankenship is one of its most powerful figures.

Massey Energy, however, has its principal place of business in Richmond, Virginia. It owns and operates coal mines in Virginia. The advertisements aired in Virginia.

Massey Energy and Blankenship claimed West Virginia Consumers for Justice made a false and defamatory statement that Massey Energy was convicted of contaminating West Virginia drinking water.

They claimed West Virginia Consumers for Justice made a false and defamatory statement that Massey Energy eliminated jobs and health insurance for hundreds of West Virginia families.

They also alleged a business conspiracy between West Virginia Consumers for Justice and television station WVNS, Channel 59, in broadcasting the statement about contamination of drinking water.

Channel 59 settled its part of the claim.

The case moved along in normal fashion until Aug. 10, when West Virginia Consumers for Justice filed a bankruptcy petition at U. S. bankruptcy court in Charleston.

West Virginia Consumers for Justice listed assets of $1,534 and potential liability of $300 million from the Fairfax County lawsuit.

On Aug. 28, West Virginia Consumers for Justice removed the Fairfax County suit to U. S. district court in Alexandria, arguing that bankruptcy created a federal issue.

The group did not want the suit to remain in U. S. court in Alexandria. Its president, Kenneth Perdue, immediately moved for transfer to U. S. court in Charleston.

Massey Energy and Blankenship asked Judge Cacheris to abstain from hearing the suit, to deny transfer to Charleston, and to remand the suit to Fairfax County.

Cacheris in his Sept. 26 order declared that the case called for mandatory abstention.

He rejected an argument of West Virginia Consumers that a personal injury claim created an exception to mandatory abstention.

He wrote that the exception "is limited to a narrow range of claims that involve an actual physical injury."

He wrote that a business conspiracy clearly involved no personal injury.

He also rejected an argument of West Virginia Consumers for Justice that Fairfax County court could not adjudicate the case in a timely manner.

He wrote, "…not only will this claim clearly be timely adjudicated, but it will also probably reach adjudication with more celerity than any other forum."

Celerity means speed. The Latin root, celer, appears in acceleration.

To seal the decision, Cacheris wrote that he would choose to remand the suit to Fairfax County even if mandatory abstention did not apply.

He quoted federal law that a district court may abstain in the interest of justice or in the interest of comity with state courts or respect for state law.

He wrote, "…both comity with state courts and respect for state law compel this court to abstain from hearing this case."

He wrote, "…it is irrefutable that the state court has heard and ruled on a multitude of significant pre-trial motions, scheduled a final trial, and organized its regular operations to meet this case's needs."

He wrote, "This court recognizes that the state court possesses greater familiarity, has expended substantial resources, and has made considerable sacrifices in reasonable reliance upon the parties' intentions to litigate this case."

He wrote, "…this case finds itself in federal district court solely because one defendant has filed bankruptcy over a year after the case was commenced."

He wrote, "In sum, all of Plaintiffs' claims are unique to Virginia state law and have nothing to do with any bankruptcy statute nor any federal law."




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