Clay v. Consol Pennsylvania Coal Company

Filing 143

MEMORANDUM OPINION AND ORDER OVERRULING DEFENDANTS 133 OBJECTIONS TOTHE MAGISTRATE JUDGES ORDER AND DENYING DEFENDANTS 134 MOTION TO STAY THE ORDER AS MOOT. AFFIRMS the magistrate judges order granting in part and denying in part plaintiffs motion to enter onto land, and denying defendants motion for a protective order 113 . Signed by Senior Judge Frederick P. Stamp, Jr on 5/15/13. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TONY B. CLAY,
Plaintiff,
v.

Civil Action No. 5:12CV92
(STAMP)

CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
McELROY COAL COMPANY and
CONSOL ENERGY, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
OVERRULING DEFENDANTS’ OBJECTIONS TO
THE MAGISTRATE JUDGE’S ORDER AND
DENYING DEFENDANTS’ MOTION TO
STAY THE ORDER AS MOOT
I.

Background

On June 21, 2012, the plaintiff, Tony B. Clay, filed a
complaint against the defendants, Consol Pennsylvania Coal Company,
LLC, McElroy Coal Company, and CONSOL Energy, Inc. The plaintiff’s
complaint contains six separate counts.

In his complaint, the

plaintiff specifically alleges a hostile work environment claim, a
race discrimination claim, an age discrimination claim, a wrongful
termination claim, a retaliation claim, and an intentional or
reckless infliction of emotional distress claim.
plaintiff

seeks

compensatory

damages,

punitive

As relief, the
damages,

and

attorneys’ fees.
This matter was referred to United States Magistrate Judge
James E. Seibert who was designated and authorized to consider the

record and do all things proper to decide any nondispositve pretrial motions filed in this case, excluding motions in limine.
Thereafter, discovery disputes arose and the parties filed various
motions in relation to said disputes. The two motions currently at
issue are plaintiff’s motion to enter onto the defendants’ property
and defendants’ motion for a protective order, which sought to
prevent such entry.

The magistrate judge conducted a haring on

these motions.
The magistrate judge granted the plaintiff’s motion to enter
on to the defendants’ land insomuch as it sought inspection of the
motorbarn, the locker rooms, and the physical offices of the two
management level employees.

As such, the magistrate judge denied

the defendants’ motion for a protective order.

The magistrate

judge’s order also instructed the parties that they may file
written objections to his order within fourteen days after being
served with a copy of the order.
objections

to

the

magistrate

The defendants did file timely
judge’s

order.

The

plaintiff

thereafter, filed a response to the defendants’ objections.

For

the reasons set forth below, however, this Court affirms the order
of the magistrate judge and overrules the defendants’ objections.
Further, this Court denies the defendants’ motion to stay the
magistrate judge’s order as moot.

2

II.

Applicable Law

As to nondispositive pretrial matters, a magistrate judge’s
ruling may be reversed only on a finding that the order is “clearly
erroneous or is contrary to law.”

Fed. R. Civ. P. 72(a); 28 U.S.C.

§ 636(b)(1). “A finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake
has been committed.”

United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).

In light of the broad discretion given

to a magistrate judge in the resolution of nondispositive discovery
disputes, the court should only overrule a magistrate judge’s
determination if this discretion is abused.

Detection Sys., Inc.

v. Pittway Corp., 96 F.R.D. 152, 154 (W.D. N.Y. 1982).
III.

Discussion

The defendants object to the magistrate judge’s order because
they feel the order improperly forces the defendants to make
certain areas available for the plaintiff’s inspection without
requiring that plaintiff and those accompanying the plaintiff
execute a release and waiver of liability (the “release”).

The

defendants request that this Court decline to adopt the magistrate
judge’s order insomuch as it denies the defendants’ motion for a
protective order in its entirety, and instead grant the defendants’
motion for a protective order to the extent that it seeks to
require the plaintiff and those accompanying him on the inspection

3

to execute a release prior to entrance into the McElroy Mine or
upon property controlled by McElroy Coal.

The requested form of

release and its related documents is attached to the defendants’
objections as Exhibit B.
In support of the defendants’ objections, they argue that it
is corporate policy to have every non-employee sign a release who
enters the McElroy Mine or property controlled by McElroy Coal.
The

defendants

state

that

the

release,

while

releasing

the

defendants for liability for personal injury, explains to the those
signing it that they may face certain hazards and must take certain
safety

precautions.

The

defendants

contend

that

while

the

magistrate judge recognized these dangers, he failed to require
within the order a “simple fix” presented by the defendants that
addresses both liability for personal injury and the risks and
dangers

associated

with

entering

the

mine.

Therefore,

the

defendants state that the order is clearly erroneous.
The plaintiff responds by stating that there was no testimony
or argument at the hearing on the motions concerning the signing of
any release.

Further, the plaintiff states that the only mention

of any release in the briefs on the motion was contained in one
sentence, which was a footnote included in the defendants’ motion
for protective order. This sentence states: “If CONSOL is ordered
to permit Plaintiff to inspect the underground McElroy Mine, CONSOL
must require that Plaintiff and each member of his entourage

4

execute releases and waivers of all claims for injury to person or
property which might result during any inspection.”
n.2.

ECF No. 91 *6

The plaintiff argues that as such, the defendants seek “too

much too late.”
This Court agrees with the plaintiff and finds that the
magistrate judge’s order was not clearly erroneous.

This Court

cannot find any mention of any requested release in the transcript
of the hearing held before the magistrate judge concerning the
motion for protective order and motion to enter on defendants’
land.

Further, as the plaintiff notes, the only mention contained

in the briefing of these two motions concerning any such release is
found in a footnote, which does not even request that the Court
require the plaintiff to sign a release.

Instead, the footnote

makes the broad statement that the defendants “must require” the
plaintiff and others to sign the release.

This Court does not

believe that such a statement properly raised the issue of whether
the Court should or should not require the plaintiff to sign any
type of release.

Certainly, the specific contents of defendants’

requested release is never mentioned in either its motion or at the
hearing.

As such, this Court does not have a “definite and firm

conviction that a mistake has been committed.”

Therefore, it does

not find that the magistrate judge’s order was clearly erroneous,
as the magistrate judge cannot be expected to rule on issues not

5

put before him, especially since he conducted a hearing at which
all aspects of the motions could have been raised and addressed.
The defendants’ motion to stay this action requested that this
action be stayed pending this Court’s decision on the defendants’
objections.

As this Court has now addressed and overruled the

defendants’ objections, the defendants’ motion to stay is denied as
moot.
IV.
For

the

reasons

stated

Conclusion
above,

this

Court

OVERRULES

the

defendants’ objections (ECF No. 133) and AFFIRMS the magistrate
judge’s order granting in part and denying in part plaintiff’s
motion to enter onto land, and denying defendants’ motion for a
protective order (ECF No. 113). Further, this Court DENIES AS MOOT
the defendants’ motion to stay (ECF No. 134).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

May 15, 2013

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

6