Smith et al v. State Farm Mutual Automobile Insurance Company et al

Filing 103

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING MOTION TO AMEND OR CORRECT COMPLAINT, DENYING REQUEST FOR ORAL ARGUMENT AND LIFTING STAY: Granting 95 Motion for Partial Summary Judgment; Denying 96 Motion to Amend/Correct; and Setting Scheduling/Status Conference for 6/23/2014 11:00 AM in Judge Stamp Chambers before Senior Judge Frederick P. Stamp Jr.; Motions terminated: 95 MOTION for Summary Judgment on Counts I, IV, and V AND REQUEST FOR O RAL ARGUMENT filed by Lindsay Fitzsimmons, Christi Miller, State Farm Mutual Automobile Insurance Company, State Farm Fire & Casualty Company, 96 MOTION to Amend/Correct For Leave to Amend First Amended Class Action Complaint fi led by Monzola R. Adkins, Michelle Smith, Judy Ann Adkins, Donovan Smith, and 102 Second MOTION to Amend/Correct which is not a motion but a Supplemental Memorandum to 99 Response in Opposition to Motion, filed by State Farm Mutual Automobile Insurance Company. STAY is LIFTED. Counts I, IV, & V of 39 First Amended Complaint are Dismissed. Signed by Senior Judge Frederick P. Stamp, Jr on 6/4/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONOVAN SMITH and MICHELLE SMITH,
husband and wife,
JUDY ANN ADKINS and MONZOLA R. ADKINS,
husband and wife and
all other similarly situated persons,
Plaintiffs,
v.

Civil Action No. 5:12CV23
(STAMP)

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
STATE FARM FIRE & CASUALTY COMPANY,
CHRISTI MILLER, individually,
LINDSAY FITZSIMMONS, individually and
all other similarly situated persons,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT,
DENYING MOTION TO AMEND OR CORRECT COMPLAINT,
DENYING REQUEST FOR ORAL ARGUMENT
AND LIFTING STAY
I.

Procedural History

This is a putative class action that was originally filed in
the Circuit Court of Ohio County, West Virginia.
then removed to this Court.

The action was

In their amended complaint, the

plaintiffs are challenging the underinsured motorist (“UIM”) and
medical payments coverage portions of the defendant’s, State Farm
Mutual Automobile Insurance Company (“State Farm”), automobile
insurance policies in West Virginia. The amended complaint alleges
that the “non-duplication of benefits” and “reimbursement” language
of these portions of the policy is against West Virginia law and

public policy and seeks to have it declared void as a result.

The

amended complaint also contains a UIM claim brought by the named
plaintiffs.
This case was previously stayed by this Court pending a
decision in a West Virginia Supreme Court of Appeals case known as
State Farm Mut. Auto. Ins. Co. v. Schatken, 737 S.E.2d 229 (W. Va.
2012), in which the plaintiffs in that action also claimed that the
non-duplication language in the State Farm insurance policy was
void.

The Schatken decision was subsequently rendered, the West

Virginia Supreme Court finding that the non-duplication of benefits
language was not void.

The defendants then moved for summary

judgment as to the plaintiffs’ claims in the amended complaint
which make this allegation (Counts I, IV, and V).

Count I is a

class action claim; Count IV asserts that State Farm and the other
defendants1 violated West Virginia Code § 33-6-31(b), the West
Virginia

Unfair

Trade

Practices

Act,

by

applying

the

“non-

duplication of benefits” policy to the named plaintiffs’ claims;
and Count V asserts claims of breach of contract, breach of
covenants of good faith and fair dealing, and common law bad faith.
Thereafter, the plaintiffs filed a motion to amend or correct the
amended complaint in order to assert amended claims that they argue

1

The Court will refer to “State Farm and the other defendants”
simply as “State Farm” throughout this order.
This is not an
implication that the Court is only considering the plaintiffs’
class action claims as against State Farm instead of the defendants
collectively.
2

would not fall under the guise of Schatken. Both motions have been
fully briefed.
II.

Facts

The named plaintiffs, Donovan Smith and Michelle Smith (“the
Smiths”)

and

Judy

Ann

Adkins

and

Monzola

R.

Adkins

(“the

Adkinses”), were involved in accidents with uninsured motorists.
They settled claims against the uninsured motorists’ insurance
policies for the coverage limits of $20,000.00.

Further, medical

payments were made under the Smiths’ policy with State Farm for
$11,879.25 and under the Adkinses’ policy for $22,956.76.

After

those medical payments were paid, State Farm applied the nonduplication of benefits policy which allows State Farm to deny
further coverage under the plaintiffs’ UIM policy for the same
damages that were already paid via the medical payments.

The

plaintiffs argue in their amended complaint that such action by
State Farm violates West Virginia Code § 33-6-31(b).

However,

State Farm contends in its motion for summary judgment that it has
not violated § 33-6-31(b) and that the West Virginia Supreme Court
has held that the “non-duplication of benefits” policy is not a
violation of that section in Schatken.
The plaintiffs filed a short response to the defendants’
motion for summary judgment, in which they also request oral
argument on the matters raised in the motion. The plaintiffs argue
that the Schatken decision does not mandate the dismissal of Counts

3

I, IV, and V in this case, because that ruling left many unresolved
issues

with

regard

to

State

Farm’s

application

of

the

non-duplication of benefits language to UIM claims. The defendants
did not reply to this response.
In addition, the plaintiffs filed a motion to amend their
first amended complaint, in which they also request oral argument.
In the motion to amend, the plaintiffs request that this Court
grant the plaintiffs leave to amend in order to clarify their
claims following the ruling in Schatken.

The defendants responded

in opposition to this motion, arguing that Schatken foreclosed all
of the plaintiffs’ claims relating to the non-duplication of
benefits language.

As such, they claim, the plaintiffs’ motion to

amend is futile and should be denied.

The plaintiffs replied,

reiterating that Schatken did not foreclose their claims.
The defendants then filed a supplemental memorandum opposing
the plaintiffs’ motion for leave to file an amended class action
complaint in which the defendants cite a United States District
Court for the Southern District of West Virginia case, Walker v.
State Farm Mutual Automobile Insurance Company, Civil Action 5:11
CV 00529, 2013 WL 500882 (S.D. W. Va. Feb. 11, 2013).

The

defendants assert that the court in Walker dismissed the same type
of post-Schatken proposed amended claims as those proffered by the
plaintiffs in this action.

4

Thereafter,

the

defendants

filed

a

second

supplemental

memorandum opposing the plaintiffs’ motion for leave to file an
amended class action complaint. In that memorandum, the defendants
state that the Schatken trial court, after remand from the West
Virginia Supreme Court, was presented a similar motion to amend to
assert similar, additional theories as those the plaintiffs are
attempting to assert with this motion.
denied by the trial court.

The Schatken motion was

The defendants argue that because the

same type of relief is being sought with the plaintiffs’ motion,
that this Court should deny the plaintiffs’ motion to amend for the
same reasons given by the Schatken trial court.
For the reasons that follow, this Court grants the defendants’
motion for summary judgment, denies the plaintiffs’ motion to
amend, and lifts the stay in this action.

Further, this Court

notes that the parties have requested oral argument.

However,

given the Schatken ruling and the supplemental cases that have
followed Schatken, along with the briefs submitted by the parties,
this Court did not find that oral argument would be beneficial and
that request is denied.
III.
A.

Applicable Law

Summary Judgment
Summary

judgment

is

appropriate

if

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine

5

issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

The

party seeking summary judgment bears the initial burden of showing
the absence of any genuine issues of material fact.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex

“The burden then

shifts to the nonmoving party to come forward with facts sufficient
to create a triable issue of fact.”

Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing

sufficient

to

establish

the

existence

of

an

element

essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex, 477 U.S. at 322.

In

reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
B.

Motion to Amend
Federal

Rule

of

Civil

Procedure

15(a)(1)(A)

states,

in

pertinent part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive
pleading.”

If a party seeks to amend its pleadings in all other

6

cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”
Rule

15(a)

The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).

grants

the

district

court

broad

discretion

concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith, or dilatory
motive

on

the

part

of

the

movant,

repeated

failure

to

cure

deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment or
futility of the amendment.”

Foman v. Davis, 371 U.S. 178, 182

(1962); see also Ward Elec. Serv. v. First Commercial Bank, 819
F.2d 496, 497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743
F.2d 1049, 1052 (4th Cir. 1984).
IV.
The

parties

have

made

Discussion
similar

arguments

in

both

the

defendants’ motion for partial summary judgment and the plaintiffs’
motion to amend the complaint.

Thus, this Court will consider the

motions together but will apply each motion’s separate standard.
The plaintiffs assert that there are four issues that were not
considered by the Schatken court that arise in this matter:
(1) whether the defendants may assert the nonduplication language, comparative fault, and other
liability defenses against plaintiffs’ UIM claims where
the medical payments were paid;
(2) whether the defendants may assert the nonduplication language and defenses regarding causation,
reasonableness and/or necessity of medical expenses in

7

UIM claims where there were medical payments and UIM
expenses;
(3) whether the defendants are required to pay UIM for
all legally entitled damages from the tortfeasor because
of the defendants’ violations of the insurance agreements
and § 33-6-31(b); and,
(4) whether the defendants have an obligation to pay the
pro-rata share where there are attorneys’ fees and costs.
As to Claims 1, 2, and 3, the plaintiffs expand upon their
arguments by contending that the defendants have forfeited their
right to argue comparative fault, causation, reasonableness, and/or
necessity as they have conceded those issues by paying the medical
expenses

under

the

medical

payments

policy.

Further,

the

plaintiffs provide a hypothetical scenario wherein they attempt to
illustrate how the defendants could be unjustly enriched if they
are allowed to assert these defenses.

Thus, the plaintiffs argue

that they should be allowed to put forward the argument that the
defendants must either choose to assert the defenses listed above
or apply the non-duplication of benefits language.

Lastly, the

plaintiffs argue that it is unclear from the defendants’ answer as
to whom they are asserting the defenses listed above and thus the
defendants

cannot

argue

that

they

were

only

reserving

those

defenses for alleged unnamed class members.
As to Claim 4, the plaintiffs contend that the defendants are
required to pay their pro-rata share of attorneys’ fees and costs
because counsel for the plaintiffs have had to recover proceeds
from the tortfeasor’s insurance and have brought a claim of damages
under the UIM policy which will create a “common fund.”
8

Thus, the

defendants should be required to pay their pro-rata share because
they have benefitted from the settlement the plaintiffs received
from the tortfeasor by deducting that from the payments the
defendants must provide to the plaintiffs. Finally, the plaintiffs
argue that Schatken did not address this issue and thus it has not
been implicitly or expressly foreclosed.

The above claims, the

plaintiffs assert, create a justiciable controversy.
In response, the defendants argue that under State Farm’s
insurance

policies,

the

plaintiffs

are

precluded

from

being

unjustly enriched by double recovery for their medical expenses.
Hence, the defendants assert, that State Farm applied the nonduplication of benefits language.

Further, the defendants contend

that the plaintiffs’ claims above are futile and merely speculative
as to what the defendants may do at some point in the future under
hypothetical

circumstances.

consideration of this Court.

Thus,

they

are

not

ripe

for

Additionally, the defendants assert

that the defenses mentioned by the plaintiffs are defenses that the
defendants have reserved on behalf of any unnamed underinsured
motorist to the claims of absent class members.
Finally, the defendants argue that the plaintiffs are not
entitled to attorneys’ costs and fees because in this action, State
Farm has not sought reimbursement for benefits paid to an insured
persons who successfully recovered from the tortfeasor pursuant to
a subrogation clause.

The non-duplication of benefits clause is

9

not a “recovery” against a wrongdoer, but simply a provision that
prevents a duplicate recovery of the same damages.

Here, State

Farm has waived both subrogation and reimbursement and is not
asking

the

plaintiffs

to

return

any

money

to

State

Farm.

Additionally, the defendants argue that the West Virginia Supreme
Court implicitly rejected this argument because the plaintiffs in
Schatken made the argument in their brief and, although the court
did not comment on the argument, it was implicitly rejected because
the court upheld the non-duplication provision.
A.

Claims 1 Through 3
The parties’ main point of disagreement is grounded in the

following sentence of the West Virginia Code: “No sums payable as
a result of underinsured motorists’ coverage shall be reduced by
payments made under the insured’s policy or any other policy.”

W.

Va. Code Ann. § 33-6-31(b). This disagreement arose in conjunction
with the following non-duplication of benefits policy language
contained in the plaintiffs’ insurance policies with State Farm:
“The most we will pay for all damages resulting from
bodily injury to any one insured injured in any one
accident including all damages sustained by other
insureds as a result of that bodily injury is the lesser
of:
1.
The limit shown under “each Person”; or
2.
The amount of all damages resulting from that
bodily injury, reduced by:
a.
the sum of the full policy limits of
all applicable liability policies insuring ay
persons or organizations who are or may be
held legally liable for that bodily injury;
. . .

10

c.
any damages that have already been
paid or that are payable as expenses under
Medical Payments Coverage of this policy, the
medical payments coverage of any other policy,
or other similar vehicle insurance.
ECF No. 95 Ex. C *18.
In regards to the above code section and its significance when
paired with a non-duplication of benefits provision, the West
Virginia Supreme Court held in Schatken:
that a ‘non-duplication’ of benefits provision in an
underinsured motorist policy which permits an insurer to
reduce an insured’s damages by amounts received under
medical payments coverage does not violate the ‘no sums
payable’ language of W. Va. Code § 33-6-31(b), insofar as
it does not serve to reduce the underinsured motorist
coverage available under the insured’s policy.
Schatken, 737 S.E.2d at 237.

Further, the United States District

Court for the Southern District of West Virginia has held that
based on the above holding, the same contentions as raised by the
plaintiffs in this action should be dismissed:
Inasmuch as the West Virginia Supreme Court of Appeals
has considered the very insurance policy language at
issue in this case and arguments questioning the validity
of State Farm’s non-duplication of benefits language,
similar to those made here, and concluded that State
Farm’s non-duplication of benefits language does not
contravene West Virginia law and public policy, the Court
finds that Plaintiff is not entitled to judgment as a
matter of law on his declaratory judgment action.
However, such relief is proper in favor of Defendant.
Walker v. State Farm Mut. Auto. Ins. Co., 5:11-CV-00529, 2013 WL
500882, *5 (S.D. W. Va. Feb. 11, 2013).

Further, the Walker court

found the above summarily because the plaintiff did not object to
State

Farm’s

argument

that

the
11

Schatken

court’s

ruling

was

dispositive of the issues before the Walker court.

Id. (noting

that there was no objection because State Farm had submitted
supplemental briefing citing Schatken and the plaintiff had not
responded to State Farm’s supplemental briefing).
In this case, it seems that this Court must find as the Walker
court

found.

Based

on

the

amended

complaint

filed

by

the

plaintiffs and the ruling in Schatken, the defendants’ motion for
partial summary judgment would necessarily be granted as there
would be no genuine issues of material fact as to Counts I, IV, and
V.

Further, the plaintiffs do not contend that Schatken was

incorrectly decided but rather are basing their arguments on the
four claims addressed above that they argue were not addressed in
Schatken. However, this Court does not find that such an amendment
should be granted as it would be futile.
A court may deny a motion to amend if it finds that the
amendment proposed would be futile.
182 (1962).

Foman v. Davis, 371 U.S. 178,

An amendment would be futile where the claims that

form the amendment do not create a justiciable controversy.

“[A]

federal court has neither the power to render advisory opinions nor
‘to decide questions that cannot affect the rights of litigants in
the case before them.’”

Torres v. O’Quinn, 612 F.3d 237, 259 (4th

Cir. 2010) (citations omitted).
justiciable

controversy

“a

Rather, in order to set forth a

suit

.

.

.

‘must

be

a

real

and

substantial controversy admitting of specific relief through a

12

decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts.’”

Id. (citations omitted).

The claims asserted by the plaintiffs in their proposed second
amended complaint would require this Court to consider a set of
facts that have not yet occurred.

This amendment is similar to

that asserted by the plaintiff in Schatken after the case was
remanded to the trial court.

The Schatken trial court reasoned

that because the West Virginia Supreme Court had already found that
the reimbursement provision was not before the court, as State Farm
had not sought reimbursement from the plaintiffs, the court could
not then allow the plaintiffs to seek an amendment making those
arguments already precluded by the higher court as non-justiciable.
Schatken v. State Farm, et al., Civil Action No. 10-C-367, *1-3 (W.
Va. Circ. Ct. July 11, 2014) (“Schatken II”).

Thus, although the

plaintiffs attempt to pursue the amendment as not being precluded
by the Schatken decision, this Court finds that Claims 1 through 3
are precluded because those claims would be futile as the Schatken
decisions have precluded such arguments.

Both courts found that

such arguments do not provide the basis for a real and substantial
controversy and thus this Court cannot now find that a judicable
controversy exists based on similar claims.
Further, the plaintiffs argue that the affirmative defenses
asserted by the defendants block a summary judgement decision as

13

those types of defenses were not reviewed by the Schatken court.
However,

this

argument

also

fails

substantial controversy exists.

to

show

that

a

real

and

In its fifteenth affirmative

defense in its answer to the plaintiffs’ amended complaint, the
defendants clearly states that they are reserving the defenses
listed by the plaintiffs “on behalf of any unnamed, underinsured
motorist . . .”

ECF No. 40 *22.

Further, the underinsured

motorists that were involved in the accidents underlying the
plaintiffs’ claims were named in the plaintiffs’ amended complaint.
ECF No. 39 *8-9. Thus, the plaintiffs’ argument that it is unclear
based on the defendants’ answer against whom those defenses are
asserted is unfounded.

Accordingly, the plaintiffs’ motion to

amend is denied as to Claims 1 through 3.
B.

Claim 4
The plaintiffs cite two West Virginia Supreme Court cases and

two Washington Supreme Court cases for their assertion that the
defendants are required to pay attorneys’ fees and costs for a
“common fund” that will be created based on the UIM damages. Given
this assertion, the plaintiffs argue that this case provides a new
issue not considered by the Schatken court.

However, this Court

finds that those cases are not applicable to the case at hand as
the defendants are not seeking reimbursement from the plaintiffs.
The

plaintiffs

cite

both

Ferrell

v.

Nationwide

Mutual

Insurance Company, 617 S.E.2d 790 (W. Va. 2005), and Federal Kemper

14

Insurance Company v. Arnold, 393 S.E.2d 699 (W. Va. 1990), to
support their argument that attorneys’ fees and costs should be
provided in this action.

The West Virginia Supreme Court did not

deal with this issue in Schatken although it was argued in the
briefing in that action.

However, the Schatken

trial court

addressed this argument in denying the plaintiffs’ motion to amend.
In considering the above argument, the Schatken trial court
found that neither Ferrell nor Arnold were applicable.
II, No. 10-C-367 at *3.

Schatken

However, the court did not give any

reasoning for this finding.

Further, the court went on to find

that the West Virginia Supreme Court rejected the plaintiffs’
position as to attorneys’ fees and costs because that argument was
“clearly asserted in the content of the appeal [and was] considered
resolved in the favor of State Farm given the clear rejection of
Plaintiffs’ theories.”

Id. (citing Clemons v. Mississippi, 494

U.S. 738, 747 n.3 (1990); Kirby Forest Indus., Inc. v. United
States, 467 U.S. 1, 8 n.10 (1984)).
This

Court

also

finds

that

Ferrell

and

Arnold

are

distinguishable. Those two cases indicate that attorneys’ fees and
costs are required when a common fund is created by the plaintiff
and the insurance company seeks subrogation.

However, in this

case, State Farm is seeking neither subrogation nor reimbursement.
This was likely the reasoning behind the Schatken II court’s
finding as to these cases.

15

Further, this Court agrees with the Schatken II court that the
West Virginia Supreme Court, in not reviewing the attorneys’ fees
and costs argument asserted in the plaintiffs’ brief, rejected this
argument.

The United States Supreme Court has adopted such a

scheme of reasoning.

Clemons, 494 U.S. at 747 n.3 (finding that a

lower court implicitly rejected arguments by refusing to address
them); Kirby Forest Indus., 467 U.S. 8 n. 10.2

However, in an

abundance of caution, this Court will address why the Washington
cases, which are not binding on this Court, are distinguishable
from this action.
Specifically, Matsyuk is distinguishable because the Court
held that attorneys’ fees and costs had to be paid where the
plaintiff recovered from both the tortfeasor’s liability policy and
the

tortfeasor’s

personal

injury

protection

(“PIP”)

policy.

Matsyuk v. State Farm Fire & Cas. Co., 272 P.3d 802, 804 (Wash.
2012).

Further, the court made clear that its rule covered three

scenarios all of which involve PIP policies in conjunction with
either a liability policy, UIM policy, or both.

Id. at 807.

Thus,

these scenarios are different where in this case, the plaintiffs
are claiming that they would seek a common fund based on the

2

The Supreme Court in Kirby Industries noted that: “The
District Court did not expressly rule upon petitioner’s contention
that the stipulation entered into by the parties on the opening day
of trial established the date of the taking.
But, by awarding
interest as of the date of the filing of the complaint, the court
implicitly rejected petitioner’s submission on that issue.”
16

damages they seek against their own insurance company rather than
damages from the tortfeasor’s insurance company.
Winters

also fails as it also deals with PIP coverage.

Winters v. State Farm Mut. Auto. Ins. Co., 31 P.3d 1164, 1166
(Wash. 2001) opinion corrected, 63 P.3d 764 (Wash. 2002). Further,
Winters revolves around the issue of subrogation which is not
addressed nor has arisen in this action. Id. Accordingly, Winters
also has no dispositive effect on this matter.
As such, given the conducted analysis, this Court finds that
the plaintiffs’ amendment would be futile and thus their motion to
amend should be denied.

Therefore, the defendants’ motion for

partial summary judgment must be granted as Schatken precludes the
claims that have been asserted in the plaintiffs’ amended complaint
in Counts I, IV, and V.

Thus, there is no genuine issue of

material fact as to those counts.

Further, in granting the motion

for partial summary judgment and dismissing Counts I, IV, and V,
this Court finds that the motion to stay this action should be
lifted and will set a status and scheduling conference in this
matter to determine what steps need to be taken in this proceeding
at this point in time.
V.

Conclusion

Based on the above, the defendants’ motion for partial summary
judgment (ECF No. 95) is hereby GRANTED.

Thus, Counts I, IV, and

V of the plaintiffs’ first amended complaint (ECF No. 39) are

17

DISMISSED. Further, the plaintiffs’ motion to amend or correct the
first amended complaint (ECF No. 96) is DENIED.
stay in this action is hereby LIFTED.

Accordingly, the

The parties are therefore

ORDERED to appear for a status and scheduling conference on June
23, 2014 at 11:00 a.m. in the chambers of Judge Frederick P. Stamp,
Jr.,

Federal

Building,

1125

Chapline

Street,

Wheeling,

West

Virginia 26003.
The Court will permit those out-of-town attorneys having their
offices further than forty (40) miles from the point of holding
court to participate in the conference by telephone.

However, any

such attorney shall advise the Court as soon as possible prior to
the conference of his or her intention to participate by telephone
and shall (1) inform all counsel of his or her appearance by
telephone; (2) confer with other out-of-town attorneys to determine
if they wish to appear by telephone; (3) advise the Court of the
name of the attorney who will initiate the conference call and all
such attorneys appearing by telephone; and (4) initiate a timely
conference telephone call with such attorneys to the Court at
304/233-1120 at the time of the scheduled conference. If the
attorneys cannot reach agreement as to the initiator of the call,
the Court will make that determination.
Finally, the Court notes that ECF No. 102 has been designated
as a motion although it is not a motion by the defendants.

Rather,

ECF No. 102 is a supplemental memorandum to the defendants’
18

response in opposition to the plaintiffs’ motion to amend.

As

such, the Clerk of Court is DIRECTED to terminate the designation
as a motion of ECF No. 102 as it is not a motion.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

June 4, 2014

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

19