Frye et al v. The Marshall County Coal Company et al
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED RULING DENYING DEFENDANTS' MOTION TO DISMISS: Denying as moot 5 Motion to Dismiss. Signed by Senior Judge Frederick P. Stamp, Jr on 8/3/17. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARK H. FRYE and LISA FONNER,
Civil Action No. 5:17CV88
THE MARSHALL COUNTY COAL COMPANY,
a Delaware corporation
and McELROY COAL COMPANY,
a Delaware corporation,
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED RULING
DENYING DEFENDANTS’ MOTION TO DISMISS
Counsel for the defendants, The Marshall County Coal Company
and McElroy Coal Company, removed this civil action to this Court
from the Circuit Court of Marshall County, West Virginia. The case
arises from the defendants’ longwall mining and oil and gas well
plugging operations under and adjacent to certain property in
Marshall County. The plaintiffs are Mark H. Frye (“Mr. Frye”), the
owner of the subject property, and Lisa Fonner (“Ms. Fonner”), a
complaint alleges that, during and subsequent to the defendants’
operations, the plaintiffs noticed damage to the property, the
structures thereon, and the natural water supplies. The plaintiffs
allege that the defendants have failed to correct the damages or
plaintiffs also allege that Ms. Fonner has contracted Klebsiella
Pneumoniae as a result of the back-up of gray water/septic water in
the basement of the residence.
Count II of the original complaint
alleges that the defendants have violated their duty to the
plaintiffs to maintain the value and reasonably foreseeable use of
the overlying surface lands, in addition to several other duties.
Count II also asks for punitive damages. Count III of the original
complaint is a stand-alone claim for punitive damages.
The defendants have filed a partial motion to dismiss.
motion asks the Court to dismiss (1) the Count III stand-alone
claim for punitive damages, (2) any general requests and/or claims
for punitive damages contained with the complaint, and (3) Ms.
Fonner’s claims for property damage and claims for “annoyance and
inconvenience” arising out of the alleged property damage.
defendants argue that Count III should be dismissed because there
is no separate cause of action for punitive damages in West
The defendants contend that the general request for
punitive damages should also be dismissed because the complaint
does not provide any facts in support of a punitive damages claim.
Lastly, the defendants assert that Ms. Fonner does not have
standing to pursue any claim for, or arising out of, property
damage because she does not own the property at issue.
The plaintiffs did not respond to the defendants’ partial
motion to dismiss.
However, after the defendants filed their
partial motion to dismiss, the plaintiffs timely filed a amended
The amended complaint removes the stand-alone claim
for punitive damages but still includes a general request for
punitive damages. The amended complaint also removes any propertyrelated damage claim as to Ms. Fonner.
The parties, by counsel, appeared before this Court for a
status and scheduling conference on August 1, 2017.
ruled on the partial motion to dismiss at that time, and this
memorandum opinion and order serves to confirm that ruling.
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.
Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
unreasonable conclusions, or arguments.”
Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.
5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
The Rule 12(b)(6) motion also must be distinguished from a
motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.
purposes of the motion to dismiss, the complaint is construed in
allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
This Court found that two of the assertions in the partial
motion to dismiss have been remedied by the amended complaint.
First, the amended complaint removed Count III, the stand-alone
claim for punitive damages. Second, the amended complaint withdrew
all property-related damages claims as to Ms. Fonner.
remaining property-related damages claims are as to Mr. Frye, which
the partial motion to dismiss did not challenge.
Thus, the Court
denied as moot both of those parts of the partial motion to
As to the general claim for punitive damages, this Court
plaintiffs for the purposes of the partial motion to dismiss.
Court found that the plaintiffs have made factual allegations that
could result in an award of punitive damages.
Discovery will be
required to determine whether punitive damages are appropriate in
this case, but, at the motion to dismiss stage, this Court must
accept as true the plaintiffs’ allegations that punitive damages
Thus, the partial motion to dismiss could not be
granted based on the defendants’ argument that there are no facts
alleged that sufficiently support a claim for punitive damages.
Rather, the allegations relating to the request for punitive
damages are matters to be developed in discovery.
Given that it cannot be determined at that stage whether
punitive damages are justified, the Court looked at only whether
the plaintiffs have adequately pled their claims such that there
are plausible grounds for relief under West Virginia law.
Virginia law allows for an award of punitive damages “[i]n actions
of tort, where gross fraud, malice, oppression, or wanton, willful,
or reckless conduct or criminal indifference to civil obligations
enactment authorizes it.”
73, 96 (W. Va. 2014).
Manor Care, Inc. v. Douglas, 763 S.E.2d
The plaintiffs allege in their amended
replacement, repair or compensation to Plaintiff for his damages
malicious, demonstrating outrageous indifference to the safety and
welfare of the Plaintiff.”
ECF No. 6 at 5.
Thus, the defendants have adequately pled the general request
for punitive damages.
More detailed factual allegations at this
stage are not necessary.
Based upon the standard of review for
motions to dismiss, this Court found that the general request for
punitive damages contains sufficient specificity to warrant denial
of the motion to dismiss.
For the reasons set forth above, the defendant’s partial
motion to dismiss (ECF No. 5) was DENIED AS MOOT as to Count III of
the original complaint and as to Ms. Fonner’s claim for property
The partial motion to dismiss was DENIED as to
any general requests or claims for punitive damages contained
within the complaint.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
August 3, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?