Unreachable plaintiff has lawsuit against Consol tossed

By John O'Brien | May 7, 2013

Goodwin


CHARLESTON – Consol Energy and subsidiary Amvest West Virginia Coal have won a lawsuit brought by a man who now can’t be contacted.

On May 3, U.S. District Judge Joseph R. Goodwin, of the Southern District of West Virginia, dismissed James F. Taylor’s lawsuit against the two for failure to prosecute. Taylor had alleged in a complaint filed in Marion County Circuit Court in 2011 that the defendants wrongfully terminated his employment.

“While it is possible that a monetary fine or other sanction short of dismissal might cause the plaintiff to spring into action, that is mere speculation,” Goodwin wrote.

“The plaintiff has not participated in this lawsuit, and the first three factors from (a 1990 decision in Hillig v. Commissioner of Internal Revenue) weigh so heavily in favor of dismissal for failure to prosecute that the court will not allow this lawsuit to stretch on for any longer by attempting to discover whether a lesser sanction would get the lawsuit back on track.”

The defendants have attempted to take Taylor’s deposition several times but have not been successful.

Taylor’s former counsel, Timothy R. Conaway of Conaway & Conaway in Madison, said he had trouble contacting Taylor in response to the defendants’ Jan. 8 request to take Taylor’s deposition.

Conaway filed a motion to withdraw as Taylor’s counsel in January, and Goodwin gave Taylor until Feb. 10 to object. Having received no response, Goodwin granted the motion, and Taylor has not obtained a new attorney.

The defendants again attempted to schedule a deposition by sending mail to Taylor’s two listed addresses but received no response.

The factors involved in a failure to prosecute request, as laid out by the Hillig decision, are:

-The plaintiff’s degree of personal responsibility;

-The amount of prejudice caused the defendant;

-The presence of a drawn out history of deliberately proceeding in a dilatory fashion; and

-The effect of sanctions less drastic than dismissal.

“Although the defendants have no doubt been frustrated by the existence of this lawsuit, the court prefers not to close off a plaintiff’s potentially legitimate right to recovery before it has considered any of the merits of the case,” Goodwin wrote.

The defendants were represented by Bryan R. Cokeley and Matthew B. Hansberry of Steptoe & Johnson in Bridgeport.

Taylor began working at the defendants’ Fola Operations in 2000 as an equipment operator and was later promoted to foreman and environmental technician.

He said he suffered a serious injury that required time off before his employment was terminated in 2011.

Consol idled its Fola Operations, a surface mine, in 2012, resulting in layoffs of 318 employees and reassignments for 147 others.

In December, the company announced it would complete the idle of its Fola Operations and would layoff 131 surface and office employees.

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

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