Fielder v. R.V. Coleman Trucking, Inc. et al

Filing 234

MEMORANDUM OPINION AND ORDER GRANTING AS FRAMED PLAINTIFFS MOTION FORADDITIONAL PEREMPTORY CHALLENGES. Plaintiffs motion request for additionalperemptory challenges ECF No. 218 is GRANTED AS FRAMED. Signed by Senior Judge Frederick P. Stamp, Jr on 2/26/2018. (copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JASON FIELDER,
Plaintiff,
v.

Civil Action No. 1:16CV23
(STAMP)

R.V. COLEMAN TRUCKING, INC.,
ARKOS FIELD SERVICES, LP,
EQT CORPORATION,
EQUITRANS, LP d/b/a EQT MIDSTREAM,
and EQT PRODUCTION COMPANY,
Defendants,
and
R.V. COLEMAN TRUCKING, INC.,
Third-Party Plaintiff,
v.
MEC CONSTRUCTION, LLC,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING AS FRAMED PLAINTIFF’S MOTION FOR
ADDITIONAL PEREMPTORY CHALLENGES
I.

Procedural History

On January 8, 2018, the parties appeared by counsel for a
pretrial conference in the above styled civil action.
pretrial

conference,

the

plaintiff

raised

the

issue

At the
of

the

appropriate manner in which to handle peremptory challenges in
the

above

civil

action,

which

beginning on March 20, 2018.

is

now

scheduled

for

trial

This Court expressed its original

position at the initial pretrial conference regarding allocation of
peremptory challenges by stating that there would likely be an

award of some extra peremptory challenges, but that issue would be
the manner in which the peremptory challenges would be taken.
Following the pretrial conference, this Court entered an order (ECF
No. 192) directing the parties to submit briefs as to, among other
issues, the number of peremptory strikes the parties will be
permitted given the configuration of the parties and the alignment
of certain interests amongst defendants.
II.

Contentions of the Parties

Plaintiff filed a motion request for additional peremptory
challenges

and

memorandum

of

law

in

support

(ECF

No.

218).

Plaintiff cites to 28 U.S.C. § 1870, and moves the Court for
additional peremptory challenges stating that, because there is one
plaintiff and three defendants, “it would be unfairly prejudicial
to allow the Plaintiff only three peremptory challenges and then
allow

the

Defendants

challenges.”

to

have

ECF No. 218 at 2.

a

total

of

nine

peremptory

Plaintiff moves this Court to

allow the plaintiff to have nine peremptory challenges and to allow
the defendants collectively to have nine peremptory challenges so
that all parties can be assured a fair and impartial jury.
218 at 4.

ECF No.

Plaintiff contends that “[w]hile there is a difference

of opinion between the Defendants on issues of liability, it is
clear that all of the Defendants are in lockstep against the
Plaintiff on the issues of damages.”

ECF No. 218 at 2.

Further,

plaintiff argues that “the Defendants will ultimately be able to
collaborate on the striking of jurors because their interests are

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all aligned (1) against the Plaintiff, and (2) in the type of juror
they will be seeking.”

Id.

Plaintiff states that it is patently

unfair to allow these defendants to have three times the number of
peremptory challenges than the plaintiff has and doing so would
clearly skew the jury in favor of the defendants.
R.V.

Coleman

Trucking,

Inc.

(“R.V.

Coleman”)

filed

a

memorandum of law regarding the number of peremptory challenges
(ECF No. 223), and asserts that defendants “should be provided
separate and peremptory strikes during jury selection in this
matter as Defendants have competing and adverse interests.”
No. 223 at 2.

ECF

R.V. Coleman submits that plaintiff and defendants

should be allocated three separate strikes each. ECF No. 223 at 2.
R.V. Coleman asserts that none of the defendants share counsel, the
defendants in this matter certainly have divergent interests, to
some degree each defendant has blamed the other co-defendants for
the accident at issue, and all defendants have asserted crossclaims or third-party claims against one another.

ECF No. 223 at

3.
MEC Construction, LLC (“MEC Construction”) filed a memorandum
of law regarding the number of peremptory challenges (ECF No. 227),
and asserts that “[i]n considering the question of whether to allow
additional peremptory challenges to the Plaintiff, it is important
to note the various claims which are asserted among the parties:
1.) Plaintiff’s claims for negligence against R. V. Coleman and
Arkos; 2.) R.V. Coleman’s third-party deliberate intent claim for

3

contribution and implied indemnity against MEC; 3.) Arkos’ crossclaim for contribution and/or indemnity against R.V. Coleman; and
4.) Plaintiffs cross-claim for deliberate intent against MEC.” MEC
Construction

asserts

the

interests

of

the

defendants

are

conflicting and divergent, other than on the sole limited issue of
plaintiff’s damages, and that the interests of plaintiff are, to a
significant extent, aligned with one of the defendants, R.V.
Coleman as they both have asserted the same deliberate intent claim
against MEC Construction, and both will be relying upon the same
evidence and legal standards in an effort to place liability upon
MEC Construction.

ECF No. 227 at 2-3.

MEC Construction argues

that an analysis of the Kominar factors1 reveals the following
considerations: (1) each of the defendants is charged with separate
and distinct acts of wrongdoing; (2) the alleged wrongdoing of each
of the defendants occurred at different points in time; (3) the
fault of the defendants will be subject to apportionment pursuant
to West Virginia Code § 55-7-24; (4) the defendants do not share a
common theory of defense, and in fact, the claims against MEC
Construction, brought pursuant to the deliberate intent statute,
are vastly different from the claims against R.V. Coleman and Arkos
Field Services, LP (“Arkos”), which are judged on the basis of
negligence, while the plaintiff and defendant R.V. Coleman share a
common theory in the prosecution of their claims against MEC

1

Kominar v. Health Mgmt. Assocs. of W. Virginia, Inc., 220 W.
Va. 542, 648 S.E.2d 48 (2007)
4

Construction; and (5) cross-claims have been filed, with each party
being represented by separate counsel.

MEC Construction argues

that based on the application of the factors recognized by the
Supreme Court of Appeals of West Virginia, separate challenges for
each of the defendants are proper and necessary for a fair trial
and there is no basis to provide the plaintiff with additional
challenges. In light of the above considerations, MEC Construction
requests the Court allow each party to this case three peremptory
challenges.
Arkos Field Services, LP filed a memorandum in opposition (ECF
No. 229) to plaintiff’s motion requesting additional peremptory
challenges and requests that the Court deny plaintiff’s motion for
additional

peremptory

challenges

to

challenges

plaintiff

in

this

and

assign

action

and

three

peremptory

three

peremptory

challenges to each of the three defendants totaling nine peremptory
challenges for the defendants.
III.

ECF No. 229 at 3-4.
Discussion

Following a review of the briefs submitted by the parties, any
authority cited therein, and a review of the pleadings and other
materials to date, this Court feels that its original position
expressed at the initial pretrial conference regarding allocation
of peremptory challenges is appropriate in this particular case.
In particular, this Court has noted the factors set forth in Murphy
v. Miller, 671 S.E.2d 714 (2008), Kominar v. Health Mgmt. Assocs.
of W. Virginia, Inc., 648 S.E.2d 48 (2007), and other cases in

5

which the West Virginia Supreme Court sets forth those factors
which should be considered, among others, in deciding whether or
not

to

assign

peremptory

particular manner.

challenges

among

the

parties

in

a

This Court notes that although the plaintiff

asserts that “it is clear that all of the Defendants are in
lockstep against the Plaintiff on the issues of damages,” (ECF No.
218 at 2), that it not necessarily the case, as there will likely
be an issue of apportionment and allocation of damages amongst the
defendants.

This

Court

notes

that

although

the

respective

interests of the defendants are aligned in part, they are not fully
aligned and could be considered “antagonistic or hostile.”
IV.
Accordingly,

Conclusion

peremptory

challenges

will

be

taken

in

the

following manner:
Third-Party
Plaintiff

Defendant

Defendant

Defendant

Fielder

R.V. Coleman

Arkos

MEC

3

2

2

2

3

2

2

2

2

2

2

2

2

1

1

1

10

7

7

7

In this manner, 39 jurors will be placed in the jury box and
a total of 31 peremptory challenges will be allowed, resulting in
a

jury

of

eight.

Plaintiff’s

motion

request

for

additional

peremptory challenges (ECF No. 218) is GRANTED AS FRAMED.

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IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
DATED:

February 26, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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