Johnson v. HCR ManorCare, LLC et al
Filing
8
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY MOTION TO REMAND 3 AND REMANDING CASE to the Circuit Court of Harrison County, West Virginia. Signed by District Judge Irene M. Keeley on 10/28/15. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROGER JOHNSON, Individually
and on behalf of the Estate of
Carol June Johnson,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:15CV189
(Judge Keeley)
HCR MANORCARE LLC, HCR MANORCARE,
INC., HCRMC OPERATIONS, LLC, HCR
MANORCARE HEARTLAND, LLC, MANORCARE,
INC., HCR HEALTHCARE, LLC, HCR
MANORCARE SERVICES, INC., HEALTH
CARE AND RETIREMENT CORPORATION
OF AMERICA, LLC, HEARTLAND EMPLOYMENT
SERVICES, LLC, HEARTLAND OF CLARKSBURG
WV, LLC, HCR MANORCARE WEST VIRGINIA
PROPERTIES, LLC, STACY WELLMAN, JOHN
DOES 2 THROUGH 10, UNIDENTIFIED ENTITIES
1 THROUGH 10,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
Pending before the Court is the emergency motion to remand
filed by the plaintiff, Roger Johnson, individually and on behalf
of the Estate of Carol June Johnson.
For the reasons that follow,
the Court GRANTS the emergency motion to remand (Dkt. No. 3), and
REMANDS the case to the Circuit Court of Harrison County, West
Virginia.
BACKGROUND
This case stems from the alleged injuries suffered by the
decedent, Carol June Johnson (“Mrs. Johnson”), during her stay at
JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
Heartland of Clarksburg, a skilled nursing facility in Clarksburg,
West Virginia, from July 16, 2013, until her death on October 2,
2013 (Dkt. No. 1 at 2).
Ralph Johnson, who is Mrs. Johnson’s
husband, filed this suit as the representative of her estate in the
Circuit Court of Harrison County on July 14, 2014.
Id.
On
February 12, 2015, he filed a first amended complaint to substitute
Roger
Johnson
(“Johnson”),
representative of her estate.
On
October
26,
2015,
the
son
of
Mrs.
Johnson,
as
the
before
the
Id.
approximately
one
week
scheduled trial in state court, the defendants removed the case
(Dkt. No. 1; Dkt. No. 3-2), claiming that Johnson had fraudulently
joined Stacy Wellman (“Wellman”), a West Virginia citizen and the
only diversity-destroying defendant (Dkt. No. 1 at 5).
That same
day, Johnson filed an emergency motion to remand, arguing that he
had not fraudulently joined Wellman, and that removal was an
improper attempt to delay the state court trial (Dkt. No. 3).
Given the time-sensitive nature of the motion and the seriousness
of its allegations, the Court ordered the defendants to file a
response the next day, which they did (Dkt. No. 6).
Johnson is a West Virginia citizen for purposes of this
litigation because the Estate of Mrs. Johnson is a citizen of West
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
Virginia.
Id. at 3.
The parties do not dispute that the corporate
defendants in this litigation are diverse from the Estate.1
3-4; Dkt. No. 4 at 2.
Id. at
Wellman, the only individual defendant, was
the administrator of Heartland of Clarksburg during Mrs. Johnson’s
stay (Dkt. No. 1 at 5).
The defendants contend that Johnson
fraudulently joined Wellman, who was acting within the scope of her
employment as administrator at the time of Mrs. Johnson’s injury
and death.
Id. at 5-8.
Apparently, certain comments this Court
made during a recent scheduling conference in an unrelated case in
a different procedural posture have prompted the defendants to
1
HCR ManorCare, LLC, is a Delaware limited liability company,
and a citizen of Delaware and Ohio (Dkt. No. 1 at 3).
HCR
ManorCare, Inc., is a Delaware corporation with its principal place
of business in Ohio.
Id. at 4.
HCRMC Operations, LLC, was a
Delaware limited liability company, and a citizen of Delaware and
Ohio. Id. HCR ManorCare Heartland, LLC, is a Delaware limited
liability company and a citizen of Delaware and Ohio. Id. Manor
Care, Inc., is a Delaware corporation with its principal place of
business in Ohio. Id. HCR Healthcare, LLC, is a Delaware limited
liability company, and a citizen of Delaware and Ohio. Id. HCR
Manor Care Services, Inc., was an Ohio corporation with its
principal place of business in Ohio.
Id.
Health Care and
Retirement Corporation of America, LLC, is an Ohio limited
liability company, and a citizen of Delaware and Ohio.
Id.
Heartland Employment Services, LLC, is an Ohio limited liability
company, and a citizen of Delaware and Ohio. Id. Heartland of
Clarksburg, WV, LLC, is a Delaware limited liability company, and
a citizen of Delaware and Ohio. Id. HCR ManorCare West Virginia
Properties, LLC, now known as West Virginia Properties, LLC, is a
Delaware limited liability company, and a citizen of Delaware and
California. Id.
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
contend that an individual claim against Wellman is improper under
West Virginia law.2
Id. at 7.
Importantly, Wellman filed a motion for summary judgment in
state court, arguing this very issue (Dkt. No. 3-3 at 7).
In a
letter ruling issued on October 16, 2015, the Honorable Thomas A.
Bedell, Judge of the Circuit Court of Harrison County, West
Virginia, rejected Wellman’s contention that she did not act
outside the scope of her employment as administrator, denying her
motion for summary judgment.
Id. at 9.
At bottom, the defendants
are asking this Court to revisit Judge Bedell’s conclusion by
finding
that
Johnson
has
failed
to
present
any
evidence
Wellman’s conduct outside the scope of her employment.
of
See id.
The questions presented by the parties’ briefing are:
(1)
whether the Court lacks jurisdiction to reconsider Judge Bedell’s
summary judgment ruling under the Rooker-Feldman doctrine; and, (2)
whether the notice of removal was untimely filed pursuant to 28
2
During a recent scheduling conference in Rowan v.
Extendicare, Inc., No. 1:15CV114, the Court denied the plaintiff’s
motion to add a diversity-destroying administrator as a defendant
based on the failure of the complaint to allege any acts or
omissions outside the scope of her employment (Dkt. No. 21 at 2627; Dkt. No. 23). That case was filed in state court on June 2,
2015 (Dkt. No. 1 at 1), and minimal discovery had occurred.
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
U.S.C. § 1446(c).
An affirmative ruling on either of these ground
would necessitate remand.
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 (4th Cir. 1994).
limited jurisdiction.
“Federal courts are courts of
They possess only that power authorized by
the Constitution and statute, which is not to be expanded by
judicial decree.”
Id.
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).
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
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.).
If the
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., 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
facts.”
fraud
in
the
plaintiff’s
pleading
of
jurisdictional
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.
6
Any shades of
JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
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
Counseling and Testing Centers v. Group 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 Publications, 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.
ANALYSIS
A.
The Rooker-Feldman Doctrine
Rooker-Feldman is a “jurisdictional” doctrine barring the
losing party in state court “‘from seeking what in substance would
be appellate review of the state judgment in a United States
district court.’”
Amer. Reliable Ins. Co. v. Stillwell, 336 F.3d
311, 316 (4th Cir. 2003) (quoting Johnson v. DeGrandy, 512 U.S.
997, 1005-06 (1994)).
The Court may raise Rooker-Feldman sua
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JOHNSON V. HCR MANORCARE
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MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
sponte.
Id. (citing Jordahl v. Democratic Party of Va., 122 F.3d
192, 197 n.5 (4th Cir. 1997)). Rooker-Feldman stems from the ideas
that (1) only the United States Supreme Court has the authority to
review state court judgments; and, (2) Congress has empowered the
federal district courts to exercise only original jurisdiction.
Id. (citing Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 19899 (4th Cir. 2000)).
Rooker-Feldman applies whenever litigants institute a federal
action in an attempt to seek review of a state court decision,
regardless of how the attempt is styled or presented.
Id.
The
“controlling question” is whether the party “seeks the federal
district court to review a state court decision and thus pass upon
the merits of that state court decision, not whether the state
court judgment is currently subject to reversal or modification”
Jordahl, 122 F.3d at 202.
The Rooker-Feldman doctrine “is in no
way dependent upon the temporal procedural posture of the state
court judgment.”
Id.
Instead, it “reinforces the important
principle that review of state court decisions must be made to the
state appellate courts, and eventually to the Supreme Court, not by
federal district courts or courts of appeals.”
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Id.
JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
In the instant case, Rooker-Feldman is implicated because the
defendants
seek
relief
judgment ineffectual.”
that
Id.
would
“render
the
[state
court]
The defendants seek a determination
from this Court that Wellman was fraudulently joined because she
undertook no action outside the scope of her employment as an
administrator (Dkt. No. 1 at 9).
Judge Bedell, however, was
presented with the same argument in Wellman’s motion for summary
judgment (Dkt. No. 3-3 at 7 (“[Wellman] further avers that the
Plaintiff has provided no evidence of any acts on her part that
would have been outside her role as the Administrator of Heartland
of Clarksburg”)). Judge Bedell denied Wellman’s motion for summary
judgment as to this issue, finding that “[s]ufficient factual
circumstances, legal authority and articulated argument have been
advanced by the Plaintiff to withstand [Wellman’s] Motion for
Summary Judgment . . ..”
Id.
He therefore denied Wellman’s
motion, and directed Johnson to prepare an order reflecting that
ruling.
Id.
The defendants’ argument that Judge Bedell has not yet issued
a “judgment” is unconvincing, particularly because they removed the
case before Judge Bedell could enter any further orders (Dkt. No.
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
6 at 11).3
Judge Bedell issued a letter ruling denying Wellman’s
motion for summary judgment and directing Johnson to prepare an
appropriate order (Dkt. No. 3-3 at 7).
Although the West Virginia
Trial Court Rules provide that opposing counsel may object to “the
wording or content” of a proposed order, they also make clear that
such objections are not a second opportunity to argue the merits of
the motion.
See W. Va. Trial Court Rule 24.01(d) (“Objecting,
proposing modifications, or agreeing to the form of a proposed
order shall not affect a party’s rights to appeal the substance of
the order”).
Even if Judge Bedell’s order were not final, Rooker-
Feldman clearly applies to interlocutory orders of state courts.
Amer. Reliable, 336 F.3d at 319-20 (“The fact that such an order
may be theoretically subject to modification does not impact the
Rooker-Feldman analysis.
It is sufficient that a state court
render a decision resolving an issue that is the basis for the
federal action, even if the decision comes in the form of an
interlocutory or preliminary order”).
For all of the reasons discussed, the Court finds that the
defendants’ fraudulent joinder argument is an attempt to seek
3
The defendants raised this issue in the context of res
judicata, not the Rooker-Feldman doctrine, which the Court has
raised sua sponte (Dkt. No. 6 at 11).
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
adjudication of the same claim rejected by Judge Bedell.
It
therefore lacks jurisdiction over the matter under Rooker-Feldman,
necessitating
remand.
See
Amer.
Reliable,
336
F.3d
at
321
(affirming the decision of the district court remanding the case
pursuant to Rooker-Feldman).
B.
Timeliness of Removal
Even if Rooker-Feldman
were inapplicable, the defendants
failed to remove the case within one year after commencement of the
action, as required by 28 U.S.C. § 1446(c).
A defendant generally
may remove a case within thirty days after receiving the initial
pleading or summons, or within thirty days after receiving “a copy
of an amended pleading, motion, order or other paper from which it
may first be ascertained that the case is one which is or has
become removable.”
28 U.S.C. §§ 1446(b)(1), (3).
The right to remove under § 1446 has an outer limit, however.
The defendant cannot remove a case based on diversity jurisdiction
“more than 1 year after commencement of the action, unless the
district court finds that the plaintiff has acted in bad faith in
order to prevent a defendant from removing the action.”
§ 1446(c)(1).
28 U.S.C.
Section 1446(c) is “an absolute bar” to removal of
diversity cases more than one year after a case has commenced,
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
unless the Court makes a finding of bad faith.
See Belcher v.
Flagstaff Bank, F.S.B., No. 2:12CV1211, 2012 WL 6195541, at *2
(S.D.W. Va. Dec. 12, 2012) (quoting Lovern v. General Motors Corp.,
121 F.3d 160, 163 (4th Cir. 1997)).
To determine when an action “has commenced,” courts look to
the law of the state from which the action originated.
Id.
In
West Virginia, a civil action “is commenced by filing a complaint
with the court.”
W. Va. R. Civ. P. 3(a).
Importantly, the one-
year limitation does not reset based on amendments made to the
original complaint. Belcher, 2012 WL 6195541, at *2 (remanding the
case, which was removed more than one year after the original
complaint was filed but less than one year after filing of the
amended complaint, despite the fact that removal occurred directly
following dismissal of the non-diverse defendant).
The contours of the bad faith exception are murky in the
Fourth Circuit.
See, e.g., Ramirez v. Johnson & Johnson, No.
2:15CV9131, 2015 WL 4665809, at *3 (S.D.W. Va. Aug. 6, 2015).
A
guiding principle, however, is that the plaintiff is the “master of
the complaint,” and may avoid federal jurisdiction by drafting his
complaint
to
exclusively
rely
on
state
law.
Id.
(internal
quotations omitted) (citing Pinney v. Nokia, Inc., 402 F.3d 430,
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
442 (4th Cir. 2005)).
The use of strategy to defeat federal
jurisdiction does not constitute bad faith.
Id.
Furthermore, “a
defendant alleging bad faith by a plaintiff bears an arduous burden
that requires evidence of forum manipulation.” Id. (citing cases).
The defendants contend that they first became aware that
Wellman had been fraudulently joined when they were served with
Johnson’s responses to their motions for summary judgment on
October 2, 2015 (Dkt. No. 1 at 10).
They argue that, in those
responses, Johnson failed to allege any independent action by
Wellman outside the scope of her employment, which put them on
notice of Wellman’s fraudulent joinder.
Id.
Even if the Court
believed that the defendants were unaware of this information prior
to October 2, 2015, they failed to remove the case within the oneyear limit imposed by § 1446(c).
The original complaint was filed on July 14, 2014 (Dkt. No. 1
at 11).
The defendants filed their notice of removal on October
26, 2015, approximately fifteen months later (Dkt. No. 1 at 1).
The amended complaint, although filed within one year of the notice
of removal, is irrelevant to the analysis under § 1446.
2012 WL 6195541, at *2.
Belcher,
Therefore, remand is required unless the
defendants establish that Johnson acted in bad faith by including
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JOHNSON V. HCR MANORCARE
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MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
Wellman as a defendant.
The defendants argue that Johnson sued
Wellman in bad faith for the following reasons:
already
dismissed
one
of
three
claims
(1) Johnson has
against
Wellman;
(2)
Wellman’s only involvement in the lawsuit has been her deposition;
and (3) Johnson’s counsel have dismissed administrators similarly
situated to Wellman on the eve of trial in other cases (Dkt. No. 1
at 11-12; Dkt. No. 6 at 5).
Standing alone, these actions do not support a finding of bad
faith.
Although the defendants suggest that Wellman’s involvement
should somehow be greater, the fact that Wellman was deposed stands
in stark contrast to other cases where a defendant’s participation
was far less substantial.
See, e.g., Lawson v. Parker Hannifin
Corp., No. 4:13CV923, 2014 WL 1158880, at *6 (N.D. Tex. Mar. 20,
2014) (finding bad faith when the plaintiff failed to serve the
defendant with discovery requests or notice his deposition).
The alleged pattern of dismissing nursing home administrators
on the eve of trial, even if true, is far from the “consistent plan
and practice” asserted by the defendants (Dkt. No. 6 at 5).
According to the defendants, plaintiff’s counsel has explained the
dismissal of these other administrators as “trial strategy.”
at 7.
Id.
Other than suspicious timing, the defendants have presented
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1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
no evidence that plaintiff’s counsel is systematically engaging in
forum manipulation.
See Hamilton San Diego Apartments, LP v. RCB
Capital Markets, LLC, No. 14CV01856, 2014 WL 7175598, at *4 (S.D.
Cal. Dec. 11, 2014) (finding no bad faith because the plaintiff
“did not consistently fail to take steps to prosecute the claims”
against
the
plausible
defendant).
non-diverse
reasoning”
for
defendant,
the
and
dismissal
“provided
of
the
consistent
non-diverse
Given the procedural posture of this case, a finding
of bad faith would be unwarranted.
See Ramirez, 2015 WL 4665809,
at *2 (“Under Fourth Circuit law, removal statutes generally must
be strictly construed against removal”); Adkins, 856 F.Supp.2d at
820 (“[F]raudulent joinder claims are subject to a rather blackand-white analysis in this circuit.
Any shades of gray are
resolved in favor of remand”); Marshall, 6 F.3d at 232-33 (noting
that the Court must resolve all issues of fact and law in the
plaintiff’s favor).
For all of the reasons discussed, the Court GRANTS Johnson’s
emergency motion to remand (Dkt. No. 3) and REMANDS the case to the
Circuit Court of Harrison County, West Virginia.
It is so ORDERED.
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JOHNSON V. HCR MANORCARE
1:15CV189
MEMORANDUM OPINION AND ORDER GRANTING EMERGENCY
MOTION TO REMAND [DKT. NO. 3] AND REMANDING CASE
The Court directs the Clerk to transmit copies of this Order
to counsel of record and to the Clerk of the Circuit Court of
Harrison County, West Virginia.
DATED:
October 28, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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