Horne v. Lightning Energy Services, LLC et al

Filing 13

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. NO. 2 AND DENYING PLAINTIFF'S MOTION TO REMAND (DKT. NO. 4 ). The Court dismisses this civil action, with prejudice. Signed by District Judge Irene M. Keeley on 8/12/15. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AARON SHANE HORNE,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV84
(Judge Keeley)

LIGHTNING ENERGY SERVICES, LLC,
a Delaware limited liability company,
LIGHTNING TRUCKING SERVICES, LLC,
a Delaware limited liability company,
TRACY S. TURNER,
Defendants.
MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
Pending before the Court is the motion to remand filed by the
plaintiff, Aaron Shane Horne (“Horne”), and the motion to dismiss
filed by the defendant, Tracy S. Turner (“Turner”).

For the

following reasons, the Court DENIES the motion to remand (Dkt. No.
4), GRANTS the motion to dismiss (Dkt. No. 2), and DISMISSES the
case WITH PREJUDICE.
BACKGROUND
Defendant Lightning Energy Services, LLC (“Lightning Energy”)
hired Horne as its Chief Operating Officer in November 2011.
Lightning Energy subsequently placed Horne in operational control
of Lightning Trucking Services, LLC (“Lightning Trucking”), an LLC
of which Lightning Energy is the sole member (Dkt. No. 1-2 at 2).
On January 14, 2013, Lightning Energy and Lightning Trucking
terminated Horne’s employment.

Horne claims he is owed $36,000 in

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
compensation from 2012 (Dkt. No. 1-2 at 2).

The West Virginia

Unemployment Compensation Commission (“WVUCC”) reviewed Horne’s
termination and determined that he had not been terminated for good
cause.

At the direction of Turner, Lightning Energy and Lightning

Trucking have continued to seek judicial review of the WVUCC’s
determination (Dkt. No. 1-2, at 3).

Further, Horne contends that,

after his termination, Turner reported him to law enforcement for
embezzlement

of

assets

and

property

of

Lightning

Energy

and

Lightning Trucking (Dkt. No. 1-2 at 3).
I.

The First Action (No. 14-C-10-1)
In January 2014, Horne filed suit in the Circuit Court of

Harrison County, West Virginia, against Lightning Energy, Lightning
Trucking, Charles Hamrick, August Schultes, and Turner, alleging
abuse of process, defamation, and violation of the West Virginia
Wage Payment and Collection Act (“WVWPCA”), W. Va. Code § 21-54(b). The defendants filed a motion for summary judgment as to all
claims, and a motion to dismiss Turner for improper service of
process.
On March 15, 2015, the Honorable John Lewis Marks, Jr.,
Circuit Court Judge, dismissed the motion for summary judgment as
to the abuse of process claim, but granted the motion to dismiss
and dismissed Turner with prejudice because Horne had not perfected
2

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
service upon Turner (Dkt. No. 2-2).1

The trial as to the remaining

defendants began on April 14, 2015, and concluded on April 22, 2015
with a jury verdict of no liability (Dkt. No. 1-5).
II.

The Second Action (1:15CV84)
On April 14, 2015, Horne filed a second lawsuit in the Circuit

Court

of

Harrison

County

against

Lightning

Energy,

Lightning

Trucking, and Turner, alleging claims of defamation, abuse of
process,2 and a violation of the WVWPCA.

The complaint included an

ad damnum clause, which stated that “[t]he total damages sought by
the plaintiff inclusive of all interest, costs, attorney fees and
punitive damages does not exceed $75,000.00.” (Dkt. No. 1-2, at 4).
On April 15, 2015, while Turner was waiting in the Harrison County
Courthouse to testify in the first state court action, Horne’s
counsel served Turner with the summons and complaint in this case.
On May 15, 2015, the defendants filed a notice of removal,
invoking this Court’s diversity jurisdiction.

Horne is a citizen

1

Horne contends that the dismissal “with prejudice” was in
error, and is seeking amendment of the order in the circuit court
to reflect dismissal of Turner “without prejudice” pursuant to Rule
4(k) of the West Virginia Rules of Civil Procedure (Dkt. No. 7 at
2).
2

The defendants do not address the abuse of process claim
(Dkt. No. 1-2 at 3, ¶¶ 12-14) in their motion to dismiss or reply
(Dkt. No. 9).
3

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
of West Virginia (Dkt. 2-1 at 1).
(Dkt. No. 1 at 2).

Turner is a citizen of Texas

Lightning Trucking is a Delaware limited

liability company whose sole member is Lightning Energy, which is
also a Delaware limited liability company (Dkt. No. 1 at 2).

In

paragraph 10 of the notice of removal, Turner lists the members of
Lightning Energy, asserting that “none . . . are citizens of West
Virginia[.]”

Turner,

however,

then

states

that

“[d]efendant

Lightning Energy . . . has a member who owns a minority interest
and is a citizen of West Virginia.” (Dkt. No. 1 at 2-3).

Due to

these seemingly contradictory statements, the Court ordered the
defendants to clarify the citizenship of the parties (Dkt. No. 10).
On August 3, 2015, the defendants clarified that none of the four
LLCs that are members of Lightning Energy is a citizen of West
Virginia,3 but that an individual member, Charles Hamrick, owns a
minority interest and is a citizen of West Virginia (Dkt. No. 11).

3

The structure is as follows (Dkt. No. 11):
•
Lightning Trucking has one member, Lightning Energy.
•
Lightning Energy has five members: Lightning Funding,
LLC, Global Development Co., LLC, Interra Holdings, LLC,
Rockhound Oilfield Services, LLC, and Charles Hamrick.
•
The four LLC members are not citizens of West Virginia.
Charles Hamrick is a West Virginia citizen.
•
Tracy Turner is a member of Interra Holdings, LLC (Dkt.
No. 9 at 4).
4

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
On May 15, 2015, Turner filed a motion to dismiss, arguing
that this action is identical to the first action from which he was
dismissed with prejudice prior to trial, and which ultimately
resulted in a jury verdict against Horne on all counts.

On June

12, 2015, Horne filed a motion to remand, contending that he had
limited the amount in controversy to $75,000 or less (Dkt. No. 4).4
On July 17, 2015, the defendants responded, arguing that Horne had
not successfully limited his recovery and that, more likely than
not, were he to prevail in his suit, Horne would recover more than
$75,000 (Dkt. No. 8).
Turner contends that if either Lightning Trucking or Lightning
Energy has West Virginia citizenship due to Hamrick’s minority
interest, the citizenship of Lightning Trucking and Lightning
Energy should be disregarded under the doctrine of fraudulent
joinder because (1) Horne’s defamation claim is barred by the
statute of limitations, and (2) the same claims have been tried
already, resulting in a verdict against Horne (Dkt. No. 11 at 2).

4

It
12(b)(6)
Stafford
773, 774

is generally improper for the Court to decide a Rule
motion before ruling on a pending motion to remand.
EMS, Inc. v. J.B. Hunt Transport., Inc., 270 F.Supp.2d
(S.D.W. Va. 2003).
5

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
LEGAL STANDARD
When an action is removed from state court, a federal district
court must determine whether it has original jurisdiction over the
plaintiff’s claims.

Kokkonen v. Guardian Life Ins. Co. Of Am.,

511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994).
are courts of limited jurisdiction.

“Federal courts

They possess only that power

authorized by the Constitution and statute, which is not to be
expanded by judicial decree.”

Id. at 377, 114 S.Ct. at 1675.

Federal courts have original jurisdiction primarily over two
types of cases, (1) those involving federal questions under 28
U.S.C. § 1331, and (2) those involving diversity of citizenship
under 28 U.S.C. § 1332.

When a party seeks to remove a case based

on diversity of citizenship under 28 U.S.C. § 1332, that party
bears the burden of establishing “the amount in controversy exceeds
the sum or value of $75,000, exclusive of interests and costs, and
is between citizens of different states.”

28 U.S.C. § 1332.

Courts should resolve any doubt “about the propriety of removal in
favor of retained state court jurisdiction.”

Marshall v. Manville

Sales Corp., 6 F.3d 229, 232-33 (4th Cir. 1993).
The doctrine of fraudulent joinder is a narrow exception to
the complete diversity requirement.

Jackson v. Allstate Ins. Co.,

132 F.Supp.2d 432, 433 (N.D.W. Va. 2000) (Broadwater, J.).
6

If the

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
doctrine applies, the Court can exercise removal jurisdiction even
though a non-diverse party is a defendant.

Id. (citing Mayes v.

Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).

The Court can

disregard the citizenship of and dismiss the non-diverse defendant,
thereby retaining jurisdiction over the case.

Mayes, 198 F.3d at

461.
The removing party bears the “heavy burden of showing that
there is no possibility of establishing a cause of action against
[a] non-diverse party” by clear and convincing evidence.

Jackson,

132 F.Supp.2d at 433 (citing Hartley v. CSX Transp. Inc., 187 F.3d
422, 424 (4th Cir. 1999)); Clutter v. Consolidation Coal Co., No.
1:14CV9, 2014 WL 1479199, at *4 (N.D.W. Va. Apr. 15, 2014) (Stamp,
J.).

In the alternative, the removing party can establish that

“there has been outright fraud in the plaintiff’s pleading of
jurisdictional facts.”

Pritt v. Republican Nat. Committee, 1

F.Supp.2d 590, 592 (S.D.W. Va. 1998). “[F]raudulent joinder claims
are subject to a rather black-and-white analysis in this circuit.
Any shades of gray are resolved in favor of remand.”

Adkins v.

Consolidation Coal Co., 856 F.Supp.2d 817, 820 (S.D.W. Va. 2012).
The Court must resolve all issues of fact and law in the
plaintiff’s

favor,

but,

in

doing

allegations of the pleadings.”

so,

“is

not

bound

by

the

Marshall, 6 F.3d at 232-33; AIDS
7

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
Counseling and Testing Ctrs. v. Grp. W Television, Inc., 903 F.3d
1000, 1004 (4th Cir. 1990).

Instead, the Court can consider “the

entire record, and determine the basis of joinder by any means
available.”

AIDS Counseling, 903 F.3d at 1004 (quoting Dodd v.

Fawcett Publ’ns, Inc., 329 F.2d 82, 85 (10th Cir. 1964)).

The

standard for fraudulent joinder is more favorable to the plaintiff
than the standard for a Rule 12(b)(6) motion to dismiss.

Mayes,

198 F.3d at 464.
When ruling on a motion to remand based on fraudulent joinder,
the Court cannot consider post-removal filings “to the extent that
they present new causes of action or theories not raised in the
controlling petition filed in state court.”
Lloyds, 181 F.3d 695, 700 (5th Cir. 1999).

Griggs v. State Farm
A plaintiff cannot

“‘re-plead the complaint [after removal] in an attempt to divest
this court of jurisdiction by hindsight.’” McCoy v. Norfolk S. Ry.
Co., 858 F.Supp.2d 639, 642 n. 1 (S.D.W. Va. 2012) (quoting Justice
v. Branch Banking & Trust Co., No. 2:08-230, 2009 WL 853993, at *7
(S.D.W. Va. Mar. 24, 2009)).

The Court must determine removal

jurisdiction “on the basis of the state court complaint at the time
of removal, and . . . a plaintiff cannot defeat removal by amending
it.”

Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265

(5th Cir. 1995).

Nonetheless, “if at any time before final
8

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”

28 U.S.C. § 1447(c).

ANALYSIS
According to the defendants, if the Court finds that either
Lightning Trucking or Lightning Energy is a West Virginia citizen
due to Hamrick’s minority interest in Lightning Energy, it should
disregard the citizenship of the LLCs under the doctrine of
fraudulent joinder because Horne’s defamation claim is barred by
the statute of limitations, and “because the . . . same claims
asserted in the instant lawsuit were previously tried against
[Lightning Energy and Lightning Trucking] and resulted in a verdict
of no liability.” (Dkt. No. 11 at 2).
I.

Citizenship of the Defendant LLCs
Pursuant to 28 U.S.C. § 1332, a federal district court has

original jurisdiction over all civil actions between citizens of
different states where the amount in controversy exceeds $75,000.
See 28 U.S.C. § 1332(a)(1).

Generally, § 1332 requires complete

diversity among parties, which means that the citizenship of all
defendants

must

be

different

from

the

citizenship

of

all

plaintiffs.

See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68, 117

S.Ct.

472-73

467,

(1996).

For

9

the

purposes

of

diversity

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
jurisdiction, the citizenship of a limited liability company is
determined by the citizenship of all of its members, regardless of
the characterization of that membership.

Gen. Tech. Applications,

Inc. v. Exro Ltda, 388 F.3d 114, 121 (4th Cir. 2004) (emphasis
added); see, e.g., Carden v. Arkoma, Assocs., 494 U.S. 185, 192,
110 S.Ct. 1015, 1019 (1990) (“We have never held that an artificial
entity, suing or being sued in its own name, can invoke the
diversity

jurisdiction

of

the

federal

courts

based

on

the

citizenship of some but not all of its members.”) (emphasis added);
Fadal Machining Ctrs., LLC v. Mid-Atl. CNC, Inc., 464 F. App’x 672,
673-74 (9th Cir. 2012) (holding that the characterization of a
membership
determining

as

being

a

citizenship,

minority
as

interest

citizenship

is

is

irrelevant

determined

by

when
all

members).
The defendants admit that Charles Hamrick, a West Virginia
citizen, is a member of Lightning Energy.

Regardless of how minor

Hamrick’s interest is, the citizenship of an LLC is determined by
the citizenship of all of its members.
sole member of Lightning Trucking.

Lightning Energy is the

Accordingly, both Lightning

Energy and Lightning Trucking are West Virginia citizens for the
purposes of diversity jurisdiction.

10

The Court therefore is bound

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
to remand the case unless the doctrine of fraudulent joinder
applies.
II.

See Mayes, 198 F.3d at 464.

Fraudulent Joinder
The defendants argue that the Court should disregard the West

Virginia citizenship of Lightning Energy and Lightning Trucking
under the doctrine of fraudulent joinder (Dkt. No. 1 at 3). First,
the defendants argue that Horne’s defamation claim is barred by the
statute of limitations.

Second, they contend that res judicata

precludes Horne from bringing his claims based on his prior action
against the defendants in West Virginia court.
A.

Statute of Limitations

Under West Virginia law, a statute of limitations begins
running when the right to sue accrues.

See Syl. pt. 1, Jones v.

Trustees of Bethany College, 351 S.E.2d 183 (W. Va. 1986).
action

for

defamation

is

subject

to

a

one-year

limitations under W. Va. Code, 55-2-12 [1959].”

statute

“An
of

Garrison v.

Herbert J. Thomas Mem’l Hosp. Ass’n, 438 S.E.2d 6, 13 (W. Va. 1993)
(citations omitted) (emphasis in original).

“[I]n defamation

actions, the period of the statute of limitations begins to run
when the fact of the defamation becomes known, or reasonably should
have become known, to the plaintiff.”

11

Padon v. Sears, Roebuck &

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
Co., 411 S.E.2d 245, 248 (W. Va. 1991) (adopting the “discovery
rule” for defamation claims).
In West Virginia, however, “[t]he Legislature has enacted a
savings statute providing that a lawsuit in which the initial
pleading was timely filed that is subsequently dismissed for any
reason not based upon the merits of the case, may be refiled within
one year.”

Cava v. National Union Fire Ins. Co. of Pittsburgh,

Pa., 753 S.E.2d 1, 8-9 (W. Va. 2013) (citations omitted).

The

savings statute, in part, states:
Extension of period for new action after dismissal or
reversal where the action is timely filed[:]
(a) For a period of one year from the date of an order
dismissing an action or reversing a judgment, a party may
refile the action if the initial pleading was timely
filed and: (i) the action was involuntarily dismissed for
any reason not based upon the merits of the action; or
(ii) the judgment was reversed on a ground which does not
preclude a filing of new action for the same cause.
W. Va. Code § 55-2-18.

Subsection (b) of W. Va. Code § 55-2-18

states that, for the purposes of subsection (a), “a dismissal not
based upon the merits of the action includes, but is not limited to
. . . a dismissal for failure to have process timely served,
whether or not the party is notified by the court of the pending
dismissal.”

W. Va. Code § 55-2-18(b).

“W. Va. Code § 55-2-18(a)

is a highly remedial statute that should be liberally construed to
allow a party who has filed a timely action to have their case
12

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
decided on the merits.”

Cava, 753 S.E.2d at 8-9 (quoting Employer

Fire Ins. Co. v. Biser, 242 S.E.2d 708 (W. Va. 1978)).
Applying the West Virginia savings statute to this case, Horne
filed his first complaint on January 8, 2014 (Dkt. No. 7 at 4), in
which he alleged that Turner had “reported to law enforcement
authorities in Harrison County, West Virginia, that the plaintiff
had engaged in unlawful conduct including, but not limited to, the
embezzlement of assets and/or property of the [defendants].” (Dkt.
No. 2-1 at 5).

There is no dispute that Horne timely filed his

initial defamation claim in state court.
Turner was dismissed from the suit on March 25, 2015, for lack
of service, which was not a dismissal on the merits.
§ 55-2-18(b).

W. Va. Code

Horne subsequently served Turner with the second

complaint on April 15, 2015. Consequently, pursuant to W. Va. Code
§ 55-2-18(a), Horne was able to re-file his defamation claim until
March 25, 2016.

Horne’s defamation claim is not time-barred, and

the Court declines to dismiss it on that basis.
B.

Res Judicata

The doctrine of res judicata precludes relitigation of the
same claim.
1990).

See Sattler v. Bailey, 400 S.E.2d 220, 225 (W. Va.

Under res judicata, “a judgment on the merits in a prior

suit bars a second suit involving the same parties or their privies
13

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
based on the same cause of action.”

Porter v. McPherson, 479

S.E.2d 668, 676 (W. Va. 1996) (quoting Parklane Hosiery Co., Inc.
v. Shore, 439 U.S. 322, 326, n. 5, 99 S.Ct. 645, 649 (1979)).
Under West Virginia law, res judicata is comprised of three
elements:
First, there must have been a final adjudication on the
merits in the prior action by a court having jurisdiction
of the proceedings. Second, the two actions must involve
either the same parties or persons in privity with those
same parties. Third, the cause of action identified for
resolution in the subsequent proceeding either must be
identical to the cause of action determined in the prior
action or must be such that it could have been resolved,
had it been presented, in the prior action.
Syl. pt. 4, Blake v. Charleston Area Medical Center, Inc., 498
S.E.2d 41, 44 (W. Va. 1997).
i.
Turner

must

Final Adjudication on the Merits
first

establish

that

there

was

a

final

adjudication on the merits by a court having jurisdiction.

“A

final decision [is one] that ends the litigation on the merits and
leaves nothing more for the court to do but execute the judgment.”
Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513,
519-20 (2000) (internal citations omitted).

“An erroneous ruling

of the court will not prevent the matter from being res judicata.”
Syl. pt. 1, Conley v. Spillers, 301 S.E.2d 216, 217 (W. Va. 1983)
(emphasis in original).

Furthermore, “[i]t is not essential that
14

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
the matter should have been formally put in issue in a former suit,
but it is sufficient that the status of the suit was such that the
parties might have had the matter disposed of on its merits.”
Blake, 498 S.E.2d at 48 (internal quotations omitted) (emphasis in
original).
It is undisputed that there was a final judgment on the merits
in

the

first

action

by

a

court

having

jurisdiction

of

the

proceedings. Horne’s claims were litigated in the Circuit Court of
Harrison County, and at the end of trial, the jury returned a
verdict against him on all counts (Dkt. No. 1-5 at 1-2).
ii.

Cause of Action

Turner must also establish that the cause of action identified
for resolution in the instant suit is identical to the cause of
action in the prior litigation.

See Blake 498 S.E.2d at 44.

A

“cause of action” is “the fact or facts which establish or give
rise to a right of action, the existence of which affords a party
a right to judicial relief.”

Id. at 48.

“The test to determine if

the . . . cause of action involved in the two suits is identical is
to inquire whether the same evidence would support both actions or
issues.”

Id.

If the two cases require substantially different

evidence to sustain them, the second cannot be said to be the same
cause of action and barred by res judicata.”
15

Id.; see also Slider

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
v. State Farm Mut. Auto. Ins. Co., 557 S.E.2d 883, 888 (W. Va.
2001) (when the claims are not identical, courts must apply the
“same evidence” test to determine “whether two claims should be
deemed to be the same for purposes of claim preclusion.”).
Here,
identical.

Horne’s

alleged

causes

Both complaints allege:

of

action

are

virtually

(1) abuse of process, (2)

defamation, and (3) violation of W. Va. § 21-5-4(b) (Dkt. Nos. 1-2;
2-1).

In the first complaint, Horne asserts that the “decision of

the defendants, including, but not limited to, the individual
defendant, Charles Hamrick, is being done with a malicious purpose
and is an abuse of the legal process.” (Dkt. No. 2-1 at 4).

In the

second complaint, Horne similarly asserts that the “decision of the
defendants,

including,

but

not

limited

to,

the

individual

defendant, Tracy S. Turner, is being done with a malicious purpose
and is an abuse of the legal process.” (Dkt. No. 1-2 at 3).

This

claim, and the others, are nearly identical in both form and
substance, with mere omissions and substitutions of names.

The

prayer for relief in both complaints is also virtually identical,
beyond the addition of requests for “[c]ompensation for unpaid
wages” and “[j]udicial determination that the plaintiff is the
owner of an equity interest in one or both of the limited liability

16

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
company

defendants.”5

Furthermore,

the

facts

alleged

in

both

complaints are virtually identical, with no substantive changes
beyond the removal or substitution of references to Charles Hamrick
and August Schultes, defendants from the first action.
These are the precise issues and facts on which Horne received
a jury verdict of no liability in the first action, and as such,
Turner has satisfied the second element of res judicata.
iii. Same Party or their Privies
Finally, the state court action must have involved the same
parties, or persons in privity with those parties. “Privity is not
established . . . from the mere facts that persons may happen to be
interested in the same question or in proving the same facts.”
State v. Miller, 459 S.E.2d 114, 124 (W. Va. 1995) (citations
omitted).

Rather, “the key consideration for its existence is the

sharing of the same legal right by the parties allegedly in
privity, so as to ensure that the interest of the party against
whom preclusion is asserted have been adequately represented.”
West Virginia Human Rights Comm’n v. Esquire Grp., Inc., 618 S.E.2d
463, 469 (W. Va. 2005) (emphasis added).

5

In the first action, the jury delivered a verdict that
included a finding that Horne was not entitled to an ownership
interest in Lightning Energy (Dkt. No. 1-5 at 1).
17

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
Privity “is merely a word used to say that the relationship
between one who is a party on the record and another is close
enough to include that other within the res judicata.”

Rowe v.

Grapevine Corp., 527 S.E.2d 814, 826 (W. Va. 1999) (citations
omitted).

Virtual representation is a variety of privity that

“precludes

relitigation

of

any

issue

that

[has]

once

been

adequately tried by a person sharing a substantial identity of
interests with a nonparty.”
S.E.2d 452, 454 (1987).

Galanos v. Nat’l Steel Corp., 358

“[T]he privity concept is fairly elastic

under West Virginia law, as elsewhere.” Gribben v. Kirk, 466 S.E.2d
147, 157 n. 21 (W. Va. 1995).
As

an

initial

matter,

defendants

Lightning

Energy

and

Lightning Trucking are named in both complaints in identical
capacities, and as such are bound as the same parties from the
prior action.

Esquire Grp., 618 S.E.2d at 469.

The remaining

defendant, Turner, was not a party in the first action at the time
of the jury verdict, having been dismissed for lack of service of
process.

He has, however, satisfied the primary concern on which

the privity requirement focuses, fairness towards the party against
whom res judicata is raised.

Horne was a party to the first action

and received a full opportunity to litigate these same claims.

18

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
Furthermore, Turner has such significant interest of identity
with Lightning Trucking and Lightning Energy as to trigger virtual
representation.

Galanos v. Nat’l Steel Corp., 358 S.E.2d at 454.

As alleged by Horne in both actions, Turner was the “manager and/or
director of the defendant, Lightning Energy Services, LLC, and at
all times relevant hereto was a principal decision maker of the
defendant, Lightning Trucking Services, LLC.”

Turner shares a

substantial identity of interest with August Schultes and Charles
Hamrick, as the claims alleged against these parties all arose out
of the same factual circumstance, that is, their roles as managers,
directors, or principal decision makers of the respective LLCs.
Additionally, the same legal interests defended in the prior
litigation by Lightning Energy and Lightning Trucking have been
implicated in this action.

The nature of the claims, seeking

unpaid wages stemming from Horne’s termination, indicates that
Horne

is

seeking

recovery

from

Turner

representative or member of the LLCs.

in

his

capacity

as

a

This matter was resolved in

the prior action, and furthermore, there has been no divergence in
legal interests between this action and the prior action.
Accordingly, Turner was in privity with the defendants from
the prior action.

Horne’s claims therefore are barred by the

principles of res judicata.

Horne has no possibility of recovery
19

HORNE V. LIGHTNING ENERGY SERVICES, LLC

1:15CV84

MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS [DKT NO. 2] AND DENYING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 4]
against any of the named defendants, who have invoked the doctrine
of fraudulent joinder.
omitted).

Jackson, 132 F.Supp.2d at 433 (citations

Based on that, the Court therefore GRANTS Turner’s

motion to dismiss and DISMISSES this case WITH PREJUDICE.
CONCLUSION
For the reasons discussed, the Court DENIES the plaintiff’s
motion to remand (Dkt. No. 4), GRANTS the defendant’s motion to
dismiss (Dkt. No. 2), and DISMISSES this case WITH PREJUDICE.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order to
counsel of record.
DATED:

August 12, 2015.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

20