HUNTINGTON – Wal-Mart and an Ohio company are asking the federal court to dismiss a suit a Wayne County corporation filed alleging it is owed more than $500,000 for work it performed at the Hurricane Wal-Mart.

Blacktop Industries claims Cleveland Construction, the Ohio corporation, entered into a contract with Wal-Mart in which it agreed to construct a Wal-Mart in Hurricane.

In turn, Cleveland Construction entered into a subcontract with Blacktop for the delivery of asphalt and paving at the Hurricane Wal-Mart, according to the original complaint Blacktop filed Nov. 12 in Wayne Circuit Court.

Although Blacktop performed its duties, it claims it has not been paid $595,012.47 for its work.

Cleveland Construction and Wal-Mart contend the case should be dismissed because Blacktop did not file the case in Lake Circuit Court in Ohio.

Under an agreement Blacktop signed when it agreed to perform subcontract work for Cleveland Construction, any suits it brings against the company must be filed in Lake Circuit Court, according to the motion to dismiss.

"Plaintiff Blacktop failed to adhere to a material term of the Agreement with Defendants Cleveland and Wal-Mart when it filed a Complaint in Circuit Court of Wayne County, West Virginia," the memorandum of law states. "Plaintiff Blacktop was well-aware of the forum selection clause, selecting Lake County, Ohio as the proper place for having the allegations contained in the Complaint determined."

In addition, Cleveland Construction and Wal-Mart removed the case to federal court because Blacktop is a West Virginia corporation, Cleveland Construction is an Ohio corporation and Wal-Mart is a Delaware corporation. Therefore, diversity of citizenship exists.

Both companies also moved the case to federal court because Blacktop is seeking more than $75,000.

In addition to the balance Blacktop claims it is due, it is seeking attorneys' fees, costs, pre- and post-judgment interest and other relief the court deems just.

If the court refuses to dismiss Blacktop's case, Cleveland Construction and Wal-Mart ask that the case be transferred to Lake Circuit Court.

J. Robert Leslie of Tyree, Embree and Leslie in Hurricane will be representing Blacktop.

Paul A. Konstanty of Steptoe and Johnson in Charleston will be representing Cleveland Construction and Wal-Mart.

U.S. District Court case number: 3:09-0100

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