Michael v. The Harrison County Coal Company et al

Filing 24

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS [ECF NO. 10 ]. The Court ORDERS the following: Defendants' motion to dismiss Count One is GRANTED; Count One is DISMISSED WITH PREJUDICE; Defendants motion to dismiss Plaintiff's c laim for punitive damages is GRANTED; Any and all claims for punitive damages are DISMISSED WITH PREJUDICE; Defendants' motion to dismiss the claim for injunctive relief is GRANTED WITH RESPECT TO itemization of the material damages, informat ion about the cost to repair the damages, and opinion as to the diminution in value of Plaintiff's structures and facilities caused by the same; and Plaintiff's claims under Count Three as to itemization of the material damages, information about the cost to repair the damages, and opinion as to the diminution in value of Plaintiff's structures and facilities caused by the same are DISMISSED WITH PREJUDICE. Signed by District Judge Thomas S. Kleeh on 6/21/2019. (wrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
JEFFREY H. MICHAEL,
Plaintiff,
v.

Civ. Action No. 1:18-CV-58
(Judge Kleeh)

THE HARRISON COUNTY COAL COMPANY,
a Delaware Corporation, and
CONSOLIDATED COAL COMPANY,
a Delaware Corporation,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
Pending before the Court is a Motion to Dismiss the Amended
Complaint. That motion is fully briefed and ripe for consideration.
For the reasons discussed below, the Court will grant the motion.
I.

PROCEDURAL HISTORY

The Plaintiff, Jeffrey H. Michael (“Plaintiff”), originally
filed this action in the Circuit Court of Marion County, West
Virginia, alleging that the Defendants, the Harrison County Coal
Company (“HCCC”) and Consolidated Coal Company (“CCC”) (together,
“Defendants”), damaged Plaintiff while conducting long-wall mining
operations under and adjacent to his property. On June 25, 2018,
Plaintiff filed an Amended Complaint. ECF No. 9. Defendants then
filed a Motion to Dismiss the Amended Complaint, which is the

MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
subject of this Order. ECF No. 10. This case was transferred to
United States District Judge Thomas S. Kleeh on December 1, 2018.
II.

FACTUAL BACKGROUND

For the purposes of the pending Motion to Dismiss, the facts
reiterated here are regarded as true. See Erickson v. Pardus, 551
U.S.

89,

94

(2007).

Plaintiff

owns

an

interest

in

land

in

Mannington District, Marion County, West Virginia. ECF No. 9 at
¶ 1. Beginning in March 2016, Defendants began conducting longwall mining operations under and adjacent to Plaintiff’s property.
Id. ¶ 4. During and after the mining operations, Plaintiff noticed
damages to his property, to the structures on the property, and to
his natural water supplies. Id.
Plaintiff alleges that “[a]s a direct and proximate result of
the negligent, illegal or improper long-wall mining operations
conducted by the Defendants,” he has suffered and continues to
suffer from the following damages: damage to the residence, horse
barn, riding arena, barn, and other outbuildings; loss of natural
water sources; diminution of the total value of the property; loss
of the use of the property and/or structures on it; annoyance and
inconvenience; functional impairment of the surface lands; and
loss of income. Id. ¶ 5. He alleges that Defendants have failed to
correct the damages or adequately compensate him despite being
aware of the problems with the land. Id. ¶ 6.
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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
Based on these allegations, Plaintiff brings three claims:
(1) a common law claim for damages, based on negligent or illegal
mining operations; (2) a statutory claim under the Surface Coal
Mining and Reclamation Act (“SCMRA”); and (3) injunctive relief.
The claim for injunctive relief asks the Court to order Defendants
to comply with the SCMRA and provide an itemization of the material
damages caused by their mining operations. Plaintiff also requests
punitive damages, along with compensatory damages, pre-judgment
and

post-judgment

interest,

expert

fees,

attorneys’

fees

and

costs, and such other further relief as the Court deems proper.
III. STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a complaint
does not “state a claim upon which relief can be granted.” In
ruling on a motion to dismiss, a court “must accept as true all of
the factual allegations contained in the complaint.” Anderson v.
Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson
v. Pardus, 551 U.S. 89, 94 (2007)). A court is “not bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
A motion to dismiss under Rule 12(6)(b) tests the “legal
sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186,
192 (4th Cir. 2009). A court should dismiss a complaint if it does
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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
not contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Plausibility exists “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009).

The

factual

allegations “must be enough to raise a right to relief above a
speculative level.” Twombly, 550 U.S. at 545. The facts must
constitute more than “a formulaic recitation of the elements of a
cause of action.” Id. at 555. A motion to dismiss “does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin,
980 F.2d 942, 952 (4th Cir. 1992).
IV.

DISCUSSION

Defendants moved to dismiss Count One (the common law claim),
along with the request for punitive damages and the claim for
injunctive relief as it relates to the request for itemization.
The Court will examine each in turn.
A.

Count One
In Count One of the Amended Complaint, Plaintiff asserts a

common law claim and alleges that Defendants acted negligently,
illegally, or improperly in their long-wall mining operations,
directly and proximately causing damages to Plaintiff. See ECF No.
4

MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
9 at ¶¶ 1–6. Defendants moved to dismiss this cause of action based
on support waivers in the coal severance deeds affecting the
property. See ECF No. 11 at 4. In his Response, Plaintiff concedes
that he has no common law claim due to the waivers. See ECF No. 12
at 4. Therefore, the Court dismisses Count One.
B.

Punitive Damages
Plaintiff requests punitive damages within Count II of the

Amended Complaint, arguing that Defendants’ violations of their
mining permit and the SCMRA were “willful, wanton, intentional,
conscious,

reckless,

and

malicious,

demonstrating

outrageous

indifference to the safety and welfare of the Plaintiff.” ECF No.
9 at ¶¶ 9–13. Plaintiff does not specifically request punitive
damages under Count One. Because the Court dismissed the common
law claim in Count One, to the extent Plaintiff requests punitive
damages for Count One, the Court dismisses those as well.
Plaintiff’s

other

claims

stem

from

the

SCMRA

and

its

regulations. Defendants argue that neither the SCMRA, W. Va. Code
§ 22-3-1, et seq., nor its accompanying rules, W. Va. Code R. § 382-1, et seq., allow for the recovery of punitive damages. ECF No.
11 at 5. In Plaintiff’s Response, he writes that the Supreme Court
of

Appeals

of

West

Virginia

(“Supreme

Court”)

has

held

that

punitive damages are recoverable here because “[w]here there is
intentional rather than merely negligent disregard of the law
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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
designed to protect the public against a particular abuse, and
where such intentional disregard of the law permits injury from
the exact abuse sought to be avoided, punitive damages may be
assessed in addition to compensatory damages.” ECF No. 12 at 6–7
(citing Syl. Pt. 1, Addair v. Huffman, 195 S.E.2d 739 (W. Va. 1973)
(emphasis removed)). In their Reply, Defendants argue that the
SCMRA does not include a provision authorizing punitive damages,
and, so, they are not recoverable. ECF No. 13 at 4.
As this Court has noted, under West Virginia law, a statute’s
silence on punitive damages “is not dispositive on the issue of
the availability of that remedy.” Virden v. Altria Grp., Inc., 304
F. Supp. 2d 832, 850 (N.D.W. Va. 2004). For instance, the Supreme
Court has awarded punitive damages under the West Virginia Human
Rights Act (“WVHRA”) despite the statute’s silence on the issue.
Id. (referring to Haynes v. Rhone-Poulenc, Inc., 521 S.E.2d 331,
336 (W. Va. 1999)). The Haynes court reasoned that punitive damages
could be appropriate because the statute provided for “any other
legal or equitable relief as the court deems appropriate.” Id.
(citing Haynes, 521 S.E.2d at 345).
In Virden, the plaintiff sought punitive damages under the
West Virginia Consumer Credit and Protection Act (“WVCCPA”). Id.
The Court noted that the WVCCPA did not include the broad language
found in the WVHRA, pointing out that it did not provide for “any
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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
other . . . legal . . . relief.” Id. (emphasis added). It then
listed the available legal remedies under the WVCCPA and noted
that the language did not support a finding that punitive damages
were available. Id. Therefore, the Court concluded that punitive
damages are not available under the WVCCPA. Id.
Here, under the SCMRA, the statute provides that when the law
is violated, “[a]ny person or property who is injured through the
violation by any operator of any rule, order or permit issued
pursuant to this article may bring an action for damages, including
reasonable attorney and expert witness fees, in any court of
competent jurisdiction.” W. Va. Code § 22-3-25(f). A court “may
award

costs

of

litigation,

including

reasonable

attorney

and

expert witness fees, to any party whenever the court determines
such award is appropriate.” Id. § 22-3-25(d). Neither the statute
nor the regulations provides any reference to punitive damages.
Like

in

Virden,

there

is

no

explicit

authorization

for

punitive damages. The Court, as it did in Virden, will examine the
language included in the statute. The language here is not as broad
as

it

was

in

Haynes.

In

Haynes,

the

statute

included

“any

other . . . legal . . . relief.” Such is not the case here. The
statute

here

references

only

“damages”

and

includes

only

attorneys’ fees, witness fees, and costs of litigation. The Court
is hesitant to find that punitive damages apply under the SCMRA
7

MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
when they are not mentioned in the statute and the Supreme Court
has not come to that conclusion on its own. The Supreme Court,
just over a year ago and at the request of the Fourth Circuit, had
an opportunity to address the damages available under such a claim
and did not expressly declare that punitive damages were available.
See Syl. Pt. 13, McElroy Coal Co. v. Schoene, 813 S.E.2d 128 (W.
Va. 2018) (outlining damages available for claims asserted under
statute or state regulation). Importantly, “federal courts sitting
in diversity rule upon state law as it exists and do not surmise
or suggest its expansion.” St. Paul Fire & Marine Ins. Co. v.
Jacobson, 48 F.3d 778, 783 (4th Cir. 1995). For these reasons, the
Court will dismiss Plaintiff’s claim for punitive damages.
C.

Injunctive Relief
In the Amended Complaint, Plaintiff asks the Court to compel

Defendants “to provide him an itemization of the material damages
they believe are caused by their longwall mining operations, the
costs to repair the damages and their opinion as to the diminution
in value of Plaintiff’s structures and facilities caused by the
same.” ECF No. 9 at ¶ 18. He further requests that the Court grant
him an injunction compelling Defendants to comply with the SCMRA
and its regulations. Id.
Defendants moved to dismiss the claim for injunctive relief
as it pertains to the request for an itemization because such a
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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
request is not among the exclusive remedies set forth in the
legislative rules. ECF No. 11 at 1–2. Defendants describe this
claim as a “discovery request improperly packaged as a claim for
relief.” Id. at 6. In his Response, Plaintiff argues that the
“obligation to turn over the information in question is a necessary
implication flowing from their requirement to correct material
damage to Plaintiff’s surface land.” ECF No. 12 at 5.
Neither the SCMRA nor its applicable regulations require a
coal mine operator to provide a surface owner with an itemization
or other information about the property’s condition or cost of
repairs. Therefore, this portion of the claim for injunctive
relief — which, by its nature, is asking the Court to order
compliance with the law — is not one upon which relief can be
granted. Plaintiff has cited no law that indicates that a coal
mine operator must do this.
It is clear that the SCMRA’s remedies available to surface
owners are exclusive. In McElroy Coal Co. v. Schoene, the Supreme
Court of Appeals of West Virginia partially answered certified
questions from the United States Court of Appeals for the Fourth
Circuit concerning SCMRA claims and damages. 813 S.E.2d 128 (W.
Va. 2018). A surface owner may recover monetary damages, including
for annoyance and inconvenience, if the injury to the owner’s
person or property was because of a violation of a rule, order, or
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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
permit issued under the SCMRA. Id. at Syl. Pt. 13. The Supreme
Court instructed that if there is no violation of a rule, order,
or permit, or if there is no evidence that a violation caused the
claimed injury, a surface owner is limited to the remedies provided
for in the West Virginia Code of State Rules, §§ 38-2-16.2c. to
38-2-16.2.c.2, for damages that are a natural result of underground
mining. Id. at 142 (emphasis added). Those remedies are as follows:
16.2.c. Material Damage. Material damage in
the context of this section and 3.12 of this
rule means: any functional impairment of
surface
lands,
features,
structures
or
facilities; any physical change that has a
significant adverse impact on the affected
land’s capability to support current or
reasonably
foreseeable
uses
or
causes
significant loss in production or income; or
any significant change in the condition,
appearance or utility of any structure from
its pre-subsidence condition. The operator
shall:
any
material
damage
16.2.c.1.
Correct
resulting from subsidence caused to surface
lands, to the extent technologically and
economically feasible, by restoring the land
to a condition capable of maintaining the
value and reasonably foreseeable uses which it
was capable of supporting before subsidence;
16.2.c.2. Either correct material damage
resulting from subsidence caused to any
structures or facilities by repairing the
damage or compensate the owner of such
structures or facilities in the full amount of
the diminution in value resulting from the
subsidence.
Repair
of
damage
includes
rehabilitation, restoration, or replacement
of
damaged
structures
or
facilities.
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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
Compensation may be accomplished by the
purchase prior to mining of a non-cancelable
premium-prepaid
insurance
policy.
The
requirements of this paragraph only apply to
subsidence
related
damage
caused
by
underground mining activities conducted after
October 24, 1992[.]
W. Va. Code R. §§ 38-2-16.2c — 38-2-16.2.c.2 (emphasis added).
Applying the Supreme Court’s interpretation of the SCMRA, the
Court finds Defendants’ arguments persuasive. As discussed above,
the statute provides that a court “may award costs of litigation,
including reasonable attorney and expert witness fees, to any party
whenever the court determines such award is appropriate.” W. Va.
Code § 22-3-25(d). The remedies listed in the regulations, to which
a surface owner is limited for subsidence that is a natural result
of underground mining, include (1) correction of damages and (2)
compensation for damages. 1 The regulations do not provide a surface
owner with the option to seek either an itemization of damages or
an operator’s opinion as to damages. If Plaintiff desires this
information, he can request it through discovery. He could, then,
use it to bolster his attempt to compel Defendants to comply with
the

requirements

of

the

SCMRA

and

its

regulations.

However,

This Court, like the Fourth Circuit, turns to Justice Workman’s
astute analysis in her separate opinion: “the relief provided under
the regulations is ‘available not as “damages” in an action under
the statute; it is a remedy available by operation of law.’”
Schoene v. McElroy Coal Co., 740 F. App’x 249, 257 (4th Cir. 2018)
(citation omitted).
1

11

MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
Defendants have no obligation under SCMRA or its regulations to
produce this information by operation of law. It is not a claim
upon which this Court may grant relief. Defendants’ motion to
dismiss the itemization request will be granted.
V.

CONCLUSION

For the reasons stated above, the Court GRANTS Defendants’
Motion to Dismiss the Amended Complaint [ECF No. 10]. The Court
ORDERS the following:
•

Defendants’ motion to dismiss Count One is
GRANTED;

•

Count One is DISMISSED WITH PREJUDICE;

•

Defendants’ motion to dismiss Plaintiff’s
claim for punitive damages is GRANTED;

•

Any and all claims for punitive damages are
DISMISSED WITH PREJUDICE;

•

Defendants’ motion to dismiss the claim for
injunctive relief is GRANTED WITH RESPECT
TO itemization of the material damages,
information about the cost to repair the
damages, and opinion as to the diminution
in value of Plaintiff’s structures and
facilities caused by the same; and

•

Plaintiff’s claims under Count Three as to
itemization
of
the
material
damages,
information about the cost to repair the
damages, and opinion as to the diminution
in value of Plaintiff’s structures and
facilities caused by the same are DISMISSED
WITH PREJUDICE.

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MICHAEL V. HCCC

1:18-CV-58

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS [ECF NO. 10]
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to Counsel of record.
DATED: June 21, 2019
___________________________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

13