The Marshall County Coal Company et al v. Oliver et al

Filing 13

Memorandum in Opposition re 3 MOTION to Remand to State Court filed by Home Box Office, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Fitzsimmons, Robert)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THE MARSHALL COUNTY COAL
COMPANY, THE MARION COUNTY COAL
COMPANY, THE MONONGALIA COUNTY
COAL COMPANY, THE HARRISON
COUNTY COAL COMPANY, THE OHIO
COUNTY COAL COMPANY,
MURRAY ENERGY CORPORATION, and
ROBERT E. MURRAY,

Civil Action No. 17-cv-00099
Judge John P. Bailey

Plaintiffs,
v.
JOHN OLIVER, CHARLES WILSON,
PARTIALLY IMPORTANT PRODUCTIONS,
LLC, HOME BOX OFFICE, INC., TIME
WARNER INC., and DOES 1 through 10,
Defendants.

DEFENDANT HOME BOX OFFICE, INC.’S MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION TO REMAND

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1 
BACKGROUND .............................................................................................................................3 
A. 

The Plaintiffs ............................................................................................................4 

B. 

The Defendants ........................................................................................................4 

C. 

The Sunday, June 18 Episode ..................................................................................5 

D. 

Plaintiffs’ Allegations ..............................................................................................7 

ARGUMENT ...................................................................................................................................8 
A. 

The Fraudulent Joinder Standard ...........................................................................10 

B. 

The Fraudulent Joinder Doctrine Applies to Fraudulently Joined Plaintiffs .........11 

C. 

The Mutual Defenses Doctrine Does Not Preclude Removal ...............................13 

D. 

The Non-Diverse Plaintiffs Have No Possibility of Success Because the
Complaint Fails To Allege that the Episode Was “Of and Concerning”
Them ......................................................................................................................15 

E. 

The Non-Diverse Plaintiffs Have No Possibility of Success Because the
Fair Report Privilege Also Bars Certain Claims ....................................................23 

F. 

The Non-Diverse Plaintiffs Cannot Prevail on Their Emotional Distress or
False Light Claims as a Clear Matter of State Law ...............................................24 

G. 

Plaintiffs Are Not Entitled to Attorneys’ Fees or Costs ........................................24 

CONCLUSION ..............................................................................................................................24 

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TABLE OF AUTHORITIES
CASES
17th St. Assocs., LLP v. Markel Int’l Ins., 373 F. Supp. 2d 584 (E.D. Va. 2005) .........................10
Afftrex, Ltd. v. Gen. Elec. Co., 555 N.Y.S.2d 903 (App. Div. 1990).......................................18, 22
AIDS Counseling & Testing Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000 (4th
Cir. 1990) ...........................................................................................................................15, 22
Allen v. Pfizer, Inc., 2016 WL 7338595 (D.S.C. Jan. 15, 2016) ..............................................12, 13
Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996 (3d Cir. 1994) .......................................20
Arrington v. Nationwide Mut. Fire Ins., 2015 WL 852056 (W.D. Ky. Feb. 26,
2015) ........................................................................................................................................17
Beavers v. DePuy Orthopaedics, Inc., 2012 WL 1945603 (N.D. Ohio May 30,
2012) ........................................................................................................................................17
Berry v. Safer, 293 F. Supp. 2d 694 (S.D. Miss. 2003) ...........................................................15, 16
Boyer v. Snap-On Tools Corp., 913 F.2d 108 (3d Cir. 1990) ........................................................14
Burns v. W. S. Life Ins., 298 F. Supp. 2d 401 (S.D. W. Va. 2004) ................................................11
Chamberlaine & Flowers, Inc. v. Smith Contracting, Inc., 341 S.E.2d 414 (W. Va.
1986) ........................................................................................................................................24
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993) ......................................................23
Church of Scientology Int’l v. Time Warner, Inc., 806 F. Supp. 1157 (S.D.N.Y.
1992) ........................................................................................................................................21
Clear Channel Commc’ns, Inc. v. Citigroup Glob. Mkts., Inc., 541 F. Supp. 2d
874 (W.D. Tex. 2008) ..............................................................................................................11
Cohn v. NBC, 414 N.Y.S.2d 906 (App. Div. 1979) .................................................................18, 19
Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W. Va. 1983) ..............................................15
dPi Teleconnect LLC v. Owens, 413 F. App’x 641 (4th Cir. 2011)...............................................24
Eberspaecher N. Am., Inc. v. Van-Rob, Inc., 2007 WL 2332470 (E.D. Mich. Aug.
15, 2007) ..................................................................................................................................11
Eyal v. Helen Broad. Corp., 583 N.E.2d 228 (Mass. 1991) ..........................................................18

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Foslip Pharm., Inc. v. Metabolife Int’l, Inc., 92 F. Supp. 2d 891 (N.D. Iowa 2000) ....................11
Fowler v. Curtis Publ’g Co., 78 F. Supp. 303 (D.D.C. 1948) .......................................................20
Gales v. CBS Broad., Inc., 269 F. Supp. 2d 772 (S.D. Miss. 2003) ........................................15, 16
Grennell v. W. S. Life Ins., 298 F. Supp. 2d 390 (S.D. W. Va. 2004) ...........................................11
Griggs v. State Farm Lloyds, 181 F.3d 694 (5th Cir. 1999) ..........................................................17
Guider v. Hertz Corp., 2004 WL 1497611 (M.D.N.C. June 28, 2004) .........................................17
Hodach v. Caremark RX, Inc., 374 F. Supp. 2d 1222 (N.D. Ga. 2005) ........................................11
Iowa Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400 (8th Cir. 1977) ...................................11
Jankovic v. Int’l Crisis Grp., 494 F.3d 1080 (D.C. Cir. 2007) ......................................................20
Johnson v. Am. Towers, LLC, 781 F.3d 693 (4th Cir. 2015) ................................................. passim
Kans. State Univ. v. Prince, 673 F. Supp. 2d 1287 (D. Kan. 2009) ..............................................11
Kennedy v. Children’s Serv. Soc’y, 17 F.3d 980 (7th Cir. 1994)...................................................20
Kirch v. Liberty Media Corp., 449 F.3d 388 (2d Cir. 2006) ..............................................18, 19, 22
Lerma v. Univision Commc’ns, Inc., 52 F. Supp. 2d 1011 (E.D. Wis. 1999) ................................12
Lewis v. Time, Inc., 83 F.R.D. 455 (E.D. Cal. 1979) .....................................................................10
Lyons v. Trott & Trott, 905 F. Supp. 2d 768 (E.D. Mich. 2012) ...................................................17
Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) ................................................................24
Mayes v. Rapoport, 198 F.3d 457 (4th Cir. 1999) ...............................................................5, 10, 22
Med. Lab. Consultants v. ABC (In re Med. Lab. Mgmt. Consultants), 931 F. Supp.
1487 (D. Ariz. 1996) ................................................................................................................10
Mitchell v. Random House, Inc., 703 F. Supp. 1250 (S.D. Miss. 1988) ........................................20
Montanaro v. State Farm Mut. Auto. Ins., 29 F. Supp. 3d 662 (D.S.C. 2014) ..............................17
Murray Energy Holdings Co. v. Bloomberg, L.P., 2016 WL 3355456 (S.D. Ohio
June 17, 2016) ......................................................................................................................3, 12
Mylan Pharm. Inc. v. PG Publ’g Co., 2009 WL 5195865 (N.D. W. Va. Dec. 18,
2009) ........................................................................................................................................11

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Oliva v. Chrysler Corp., 978 F. Supp. 685 (S.D. Tex. 1997) ........................................................12
Pritt v. Republican Nat’l Comm., 1 F. Supp. 2d 590 (S.D. W. Va. 1998) .....................................17
Reuber v. Food Chem. News, Inc., 925 F.2d 703 (4th Cir. 1991) (en banc)..................................23
Rosenblatt v. Baer, 383 U.S. 75 (1966) .........................................................................................15
Salisbury v. Purdue Pharma, L.P., 166 F. Supp. 2d 546 (E.D. Ky. 2001) ....................................17
Sims v. Shell Oil Co., 130 F. Supp. 2d 788 (S.D. Miss. 1999) ......................................................12
Smallwood v. Ill. Cent. R.R., 385 F.3d 568 (5th Cir. 2004) ...........................................................14
Sodibar Sys., Inc. v. Simon, 2014 WL 1276441 (D. Md. Mar. 26, 2014) ......................................11
Spence v. Flynt, 647 F. Supp. 1266 (D. Wyo. 1986) .....................................................................10
Susko v. Cox Enters., Inc., 2008 WL 4279673 (N.D. W. Va. Sept. 16, 2008) ..............................24
Swearingen v. Parkersburg Sentinel Co., 26 S.E.2d 209 (W. Va. 1943) ......................................20
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284 (11th Cir. 1998) ......................................10, 23
Walton v. Bayer Corp., 643 F.3d 994 (7th Cir. 2011) ...................................................................14
Willfred Coal Co. v. Sapp, 193 Ill. App. 400 (Ill. App. Ct. 1915) .................................................22
Youghiogheny Commc’ns-Tex., LLC v. eSecuritel Holdings, LLC, 2012 WL
868786 (W.D. Tex. Mar. 13, 2012) .........................................................................................11
OTHER AUTHORITIES
28 U.S.C. § 1332 ..........................................................................................................................3, 8
28 U.S.C. § 1441 ..........................................................................................................................5, 8
28 U.S.C. § 1446 ..............................................................................................................................8
13F Charles Alan Wright et al., Federal Practice & Procedure § 3641.1 (3d ed.
2009) ........................................................................................................................................12
E. Farish Percy, Defining the Contours of the Emerging Fraudulent Misjoinder
Doctrine, 29 Harv. J.L. & Pub. Pol’y 569 (2006)....................................................................12
Matthew C. Monahan, Note, De-Frauding the System: Sham Plaintiffs and the
Fraudulent Joinder Doctrine, 110 Mich. L. Rev. 1341 (2012) ...............................................12
Restatement (Second) of Torts § 561.............................................................................................18
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INTRODUCTION
The Plaintiffs—Robert Murray (“Murray”), Murray Energy Corporation (“Murray
Energy”), and five wholly-owned subsidiaries of Murray Energy—have moved to remand this
action to state court on the basis of incomplete diversity. The Court should deny Plaintiffs’
motion because the Complaint does not allege that any statements were directed at the four nondiverse Plaintiffs, and they are, therefore, not real parties in interest. In addition, certain of the
statements of which Plaintiffs complain are clearly protected by the privilege to report on official
proceedings. There is, therefore, no “possibility” or “glimmer of hope” that these Plaintiffs
could recover against Defendants. Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir.
2015).
The Complaint’s factual allegations concern Murray and Murray Energy only. The
majority of the allegations and the heart of the lawsuit focus on Last Week Tonight with John
Oliver’s discussion of a mine collapse at the Crandall Canyon Mine in Utah, which was operated
by a subsidiary of Murray Energy, called UtahAmerican Energy, Inc. (“UtahAmerican”). That
company is not joined as a plaintiff, but five other corporate subsidiaries that operate mines in
West Virginia and Ohio are named plaintiffs. None of those subsidiaries was connected in any
way to the mine collapse in Utah. Tellingly, UtahAmerican, which is incorporated in Utah and
would not defeat diversity, is not a plaintiff.
In addition to its primary focus on the mine collapse, the Complaint contains a single
paragraph that alleges frivolously that Defendants’ discussion of a bonus program instituted by
Murray left out important facts. The Complaint conspicuously omits, however, that Last Week
Tonight’s discussion of the bonus program was presented to viewers as coming from the
National Labor Relations Board judicial decision that provided the entire basis for those
statements, and therefore renders them privileged as a matter of law. One of the Plaintiffs—the
1

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Marion County Coal Company—was a party to the NLRB case, but the Complaint is just as
silent about this fact as it is about the existence of the NLRB opinion itself.
Other than in the Complaint’s caption and the paragraphs identifying the Murray Energy
subsidiaries as parties, the Complaint does not mention the Marshall County Coal Company, the
Marion County Coal Company, the Monongalia County Coal Company, or the Harrison County
Coal Company (“the non-diverse Plaintiffs”).1 Nevertheless, the Complaint asserts on behalf of
each of these non-diverse Plaintiffs the same three claims it asserts on behalf of Murray and
Murray Energy, including claims for intentional infliction of emotional distress and false light
invasion of privacy that are frivolous as to the corporate Plaintiffs because, as a matter of law,
they can only be brought by natural persons.
Plaintiffs’ Motion to Remand simply rehashes the allegations in the Complaint without
offering any explanation of how the non-diverse Plaintiffs can state a claim other than by virtue
of their affiliation with Plaintiffs Murray and Murray Energy, which does not provide a colorable
basis for recovery. As even a cursory review of hornbook defamation law reveals, to state a
claim for defamation, a plaintiff must allege that the defamatory statements were “of and
concerning” that particular plaintiff. It is not enough that the plaintiff have some connection or
affiliation with the party that is the subject of the alleged defamation. Because the Complaint
fails to allege that the challenged statements were directed at the non-diverse Plaintiffs, these
parties have no possibility of relief.
Pursuant to the doctrine of fraudulent joinder, which applies to fraudulently joined
plaintiffs and defendants alike, the non-diverse Plaintiffs’ citizenship must be disregarded for the

1

There are similarly no allegations about the fifth Murray Energy subsidiary Plaintiff, the Ohio
County Coal Company. As a citizen of Ohio, however, its presence does not destroy diversity
jurisdiction.
2

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purpose of determining jurisdiction. Murray and Murray Energy have joined those non-diverse
plaintiffs for the sole purpose of defeating diversity jurisdiction, just as a federal court in Murray
Energy’s home state of Ohio found that Murray Energy has done recently. See Murray Energy
Holdings Co. v. Bloomberg, L.P., 2016 WL 3355456, at *3-6 (S.D. Ohio June 17, 2016).
This Court’s exercise of jurisdiction is proper because complete diversity of citizenship
exists among the real parties in interest, and it is uncontested that the remaining requirements of
28 U.S.C. § 1332 are met. The Court should deny Plaintiffs’ Motion to Remand.
BACKGROUND
Last Week Tonight with John Oliver is a half-hour television program that presents a
satirical look at the week in news and politics. Produced by Partially Important Productions,
LLC and distributed on Home Box Office, Inc.’s (“HBO”) premium pay television service, new
episodes premiere on Sunday night. Each episode generally begins with a satirical look at some
of the news highlights from the previous week, and then moves to a “main story” that tackles an
important and often-overlooked issue of public interest and importance, such as civil forfeiture or
payday loans, in an in-depth and humorous manner.
Plaintiffs claim they were injured by the main story from the episode of Last Week
Tonight that premiered on June 18, 2017 (the “Episode”). On June 21, 2017, Plaintiffs filed suit
against Defendants in the Circuit Court of Marshall County, West Virginia, asserting defamation,
intentional infliction of emotional distress, and false light invasion of privacy. On June 28,
Plaintiffs moved for a temporary restraining order and preliminary injunction. On June 30, HBO
removed to this Court with the consent of the other named Defendants, because while certain

3

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Plaintiffs and Defendants appear to share Delaware citizenship, those Plaintiffs have been
fraudulently joined for the purpose of defeating diversity jurisdiction.2
A.

The Plaintiffs

Robert Murray, who resides in Ohio, is the CEO of Murray Energy, which was
incorporated and has its principal place of business in Ohio. Compl. ¶¶ 7, 16. Murray also is the
CEO of a number of subsidiaries of Murray Energy, including the Marshall County Coal
Company, the Marion County Coal Company, the Monongalia County Coal Company, and the
Harrison County Coal Company (the “non-diverse Plaintiffs”)—which are incorporated in
Delaware. Compl. ¶¶ 7, 11-14, 16. The fifth additional corporate Plaintiff, the Ohio County
Coal Company, was incorporated in Ohio. Compl. ¶ 15. The primary business of the four nondiverse Plaintiffs is to operate coal mines in West Virginia that bear their corporate names.
Compl. ¶¶ 11-14.
B.

The Defendants

John Oliver is a legal permanent resident of the United States who resides in New York.
Compl. ¶ 23. Charles Wilson resides in New York. Compl. ¶ 24. HBO and Time Warner Inc.
were incorporated in Delaware and have their principal places of business in New York. Compl.
¶¶ 22, 26. Partially Important Productions is a Delaware limited liability company with its
principal place of business in New York.3 Compl. ¶ 25. The Complaint names Does 1 through

2

HBO bases this Opposition on the allegations of the Complaint and documents it incorporates
by reference. By stating the facts as pleaded, HBO does not admit any of the Complaint’s
allegations. HBO expressly preserves all rights, remedies, and defenses available in defense of
this lawsuit, including all personal jurisdiction and other defenses.
3

Partially Important Productions has no member—natural or corporate—that is a citizen of Ohio
or West Virginia, and complete diversity of citizenship exists, therefore, between it and
Defendants Murray, Murray Energy, and the Ohio County Coal Company. See Ex. 1
(Declaration of David Martin).
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10 whose identities are “presently unknown to Plaintiffs,” Compl. ¶ 27, and whose citizenship,
therefore, is disregarded for purposes of removal analysis. See 28 U.S.C. § 1441(b)(1).
C.

The Sunday, June 18 Episode

The Sunday, June 18 episode of Last Week Tonight with John Oliver included a segment
about issues surrounding the coal mining industry in the United States. This “main story”
opened with Oliver recounting how President Trump had particular success “connect[ing] with
mining communities during the campaign.” See Ex. 2 at 6:23.4 The story included a number of
video clips from news programs and other sources.
Plaintiff Murray was introduced about five minutes in. Oliver explained that many
involved in the coal industry blame President Obama for its job losses, and that Murray was
among the “loudest” critics of President Obama’s policies. Id. at 11:00. Video clips of Murray
harshly criticizing the former president on several news shows were shown, after which the story
did not return to Murray for another six minutes. During this time, Oliver presented data on job
losses in the industry and criticized coal executives, including former Massey Energy CEO Don
Blankenship, for their approach to miner safety.
When the segment returned to Murray, Oliver noted that, after Last Week Tonight
contacted the company, Murray Energy sent cease-and-desist letters threatening “immediate
litigation” that would be pursued “to the level of the Supreme Court of the United States.” Id. at
19:58 - 21:10; see Compl. ¶¶ 20, 30, 32, 36; Ex. 3 at 1, 4 (June 12, 2017 letter); Ex. 4 at 1 (June
16, 2017 letter). Although Murray Energy has claimed in the past that it would “never” sue “to

4

The Episode is incorporated by reference into the Complaint and may be considered here. See
Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999) (when considering fraudulent joinder, a
court may consider “entire record” (internal quotation marks omitted)). Exhibit 2 is a DVD of
the Episode.
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chill free speech,” Oliver noted that Murray had a history of lawsuits against the media. Ex. 2 at
20:30. Oliver jokingly compared Murray to a “geriatric Dr. Evil,” the campy villain from the
Austin Powers movies. Id. at 20:50.
Oliver then discussed a lawsuit Murray Energy had filed “to block a rule aimed at
reducing miners’ exposure to coal dust that causes black lung.” Id. at 21:45. Oliver noted that
Murray had opposed the regulation because he “insisted that the rule was illegal, destructive, and
did nothing for miners’ health.” Id. at 22:00.
Next, the main story discussed a program proposed by Murray that gave miners bonuses
based upon the amount of coal they extracted. Accompanied by an on-screen graphic showing
the first page of the National Labor Relations Board judicial decision, Oliver explained that the
bonus program was voted down by miners based on concerns that it would create incentives to
disregard safety measures, but that the company imposed it anyway, saying the miners could
void their bonus checks if they did not want to participate. Id. at 22:30. Sixty-two miners did so,
including one who wrote “eat shit, Bob” on his check, and another who wrote “kiss my ass,
Bob.” Id. at 22:50. Oliver displayed images of those two checks, which were cited and
discussed in the National Labor Relations Board opinion. Id.; see Ex. 5 at 4-5 (Decision, NLRB
Case Nos. 06-CA-148388 and 06-CA-149117).
The segment then moved to the 2007 collapse at the Crandall Canyon Mine in Utah,
including a video clip of a press conference immediately after the accident in which Murray
claimed that the collapse “was caused by an earthquake, not something that Murray Energy or
UtahAmerican did.” Ex. 2 at 23:40. The segment next explained that the official Mine Health
and Safety Administration investigation concluded that the collapse was caused by
“unauthorized mining practices” and there was “no evidence that a naturally-occurring

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earthquake caused the collapse,” and showed a video clip of Congressional testimony from a
victim’s relative. Id. at 24:05.
On a lighter note consistent with the satirical tone of Last Week Tonight, Oliver then
shared an “apocryphal tale” from Murray company lore, which is that Murray was approached
by a squirrel who encouraged him to launch his mining company. Id. at 25:30. Oliver made
clear that Murray’s representative denied that this ever actually happened. Id. at 25:50. The
story then shifted back to the subject of jobs. Oliver confirmed that Murray has provided
thousands of jobs to mining communities, and observed that for those communities, that fact
might understandably outweigh everything else.
Then, after discussing whether or not the coal jobs that have been lost will come back,
Oliver returned to the tale of the squirrel. Oliver reiterated that he believed that Murray had
never been spoken to by a squirrel, then a costumed actor playing a squirrel entered the stage. In
a parody of the bonus checks voided by Murray’s workers, the squirrel held up a large check
made out to “Eat Shit, Bob,” with the memo line “Kiss My Ass.” Id. at 29:45.
D.

Plaintiffs’ Allegations

The Complaint takes issue with four aspects of the segment. First and foremost,
Plaintiffs fault the segment’s treatment of the collapse of the Crandall Canyon Mine, which is
located in Utah and operated by UtahAmerican, which is not a Plaintiff. See Compl. ¶¶ 33-45.
Plaintiffs complain that the segment did not discuss Murray’s efforts to save trapped miners in
the Utah mine, Compl. ¶ 37, and that the segment falsely suggested there was no evidence to
support Murray’s view that the mine collapse was caused by an earthquake, Compl. ¶¶ 38-41.
Plaintiffs argue that Defendants’ statements “falsely convey[] that Mr. Murray is dishonest and
lies about employee safety.” Mot. at 11.
Second, Plaintiffs complain that Oliver said “Mr. Murray and Murray Energy ‘appear[ed]
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to be on the same side as black lung’” due to their opposition to a regulation to limit miners’
exposure to coal dust. Compl. ¶ 46.
Third, the Complaint alleges that Defendants falsely stated that “Mr. Murray and the
other Plaintiffs implemented bonus policies that sacrificed the health and safety of their
employees.” Compl. ¶ 49. What the segment reported on this point was taken directly—in fact,
quoted—from the NLRB judicial decision pictured on the screen. See Ex. 2 at 22:30 - 23:05.
Fourth, the Complaint objects to certain alleged “character assassinations” of Murray,
including that he “looks like a geriatric Dr. Evil.” Compl. ¶ 51. On the basis of this alleged
conduct, the Complaint asserts claims for defamation, intentional infliction of emotional distress,
and false light invasion of privacy, on behalf of all seven plaintiffs—Murray, Murray Energy,
and the five corporate subsidiaries.
ARGUMENT
Defendant HBO’s removal pursuant to 28 U.S.C. §§ 1441 and 1446 was proper because
the Court has jurisdiction pursuant to 28 U.S.C. § 1332. The only Plaintiffs who are real parties
in interest are Murray and Murray Energy, and neither shares citizenship with any Defendant.
Plaintiffs do not contest that the other requirements for diversity jurisdiction are satisfied. The
non-diverse Plaintiffs were included for the sole purpose of trying to avoid diversity jurisdiction,
and, under the fraudulent joinder doctrine, their citizenship must be disregarded for purposes of
determining diversity jurisdiction.
Plaintiffs make three arguments in favor of remand to the state court. First, they contend
that because the Fourth Circuit has not yet decided whether the fraudulent joinder doctrine
applies to fraudulently joined plaintiffs (in addition to fraudulently joined defendants), this Court
should remand to the state court. Mot. at 7. While it is true that the Fourth Circuit has not yet
addressed the issue, courts in both the Northern and Southern Districts of West Virginia have
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joined the vast majority of federal courts to have considered the issue, and confirmed that the
fraudulent joinder doctrine applies equally to fraudulently joined plaintiffs and defendants alike.
See Part B below.
Second, Plaintiffs argue that, pursuant to the “mutual defenses doctrine,” the court should
not consider any defenses that apply equally to the non-diverse and diverse Plaintiffs alike. Mot.
at 8. However, this doctrine is not recognized in the Fourth Circuit, and even where it is
recognized, it does not bar a finding of fraudulent joinder where, as here, the defenses would not
be dispositive of all of the claims. See Part C below.
Third, Plaintiffs argue that the non-diverse Plaintiffs were properly joined because (1) the
allegedly defamatory statements about Murray necessarily defame any company of which he was
chief executive; or, alternatively, (2) defamation directed towards any of the numerous
companies that are owned by Murray Energy gives rise to claims by all members of that
extended corporate family, including the non-diverse Plaintiffs. Mot. at 9-12. None of these
arguments provides a colorable basis for a claim by the non-diverse Plaintiffs.5

5

Plaintiffs also make the point that the same subsidiary corporations, including the non-diverse
Plaintiffs here, also filed suit as plaintiffs in Marshall County Coal Company, et al. v. New York
Times Co., No. 5:17-cv-79, currently pending before this Court. While there is complete
diversity on the face of that complaint due to the New York citizenship of the lone defendant, it
is unnecessary to consider all of Plaintiffs’ potential motives for including the West Virginia
plaintiffs in another case led by Ohio plaintiffs but filed in West Virginia, which also originally
was filed in state court. Moreover, The New York Times has moved to dismiss their claims as a
matter of law on the ground that its statements were not “of and concerning” the corporate
plaintiffs, essentially making many of the same points defendants rely on here. See id., Doc. No.
5 at 15-19. Plaintiffs also argue that the Episode “specifically referenced coal-mining jobs in
West Virginia,” Mot. at 6, but the two references to West Virginia in the Episode were not made
in connection with Murray, Murray Energy, or the statements challenged in the Complaint. See
Ex. 2 at 6:40, 14:10. Rather, they were part of a description of a campaign rally by President
Trump and a statement that West Virginia has a very low number of solar jobs per capita. Id.
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A.

The Fraudulent Joinder Standard

“‘Fraudulent joinder is a judicially created doctrine that provides an exception to the
requirement of complete diversity.’” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)
(alteration omitted) (quoting Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.
1998)). The fraudulent joinder doctrine “permits a district court to disregard, for jurisdictional
purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case,
dismiss the nondiverse defendants, and thereby retain jurisdiction.” Mayes, 198 F.3d at 461.
The doctrine applies equally to non-diverse Plaintiffs.
To establish fraudulent joinder, the removing party must show that “there is no possibility
that the plaintiff would be able to establish a cause of action . . . in state court.” Johnson v. Am.
Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015) (internal quotation marks omitted). “The party
alleging fraudulent joinder bears a heavy burden—it must show that the plaintiff cannot establish
a claim even after resolving all issues of law and fact in the plaintiff’s favor.” Id. (internal
quotation marks omitted). However, “in determining whether an attempted joinder is fraudulent,
the court is not bound by the allegations of the pleadings, but may instead consider the entire
record, and determine the basis of joinder by any means available.” Mayes, 198 F.3d at 464
(internal quotation marks omitted).
In cases implicating First Amendment interests, it is appropriate to give efforts to avoid
diversity jurisdiction “heightened scrutiny,” and this Court should do so here. See 17th St.
Assocs., LLP v. Markel Int’l Ins., 373 F. Supp. 2d 584, 596 & n.7 (E.D. Va. 2005); see also
Lewis v. Time, Inc., 83 F.R.D. 455, 461-62 (E.D. Cal. 1979); Spence v. Flynt, 647 F. Supp. 1266,
1272 (D. Wyo. 1986). “[T]he underlying goals of diversity and removal jurisdiction”—
including avoiding local prejudice and guaranteeing the vindication of federal rights—“strongly
support the retention of jurisdiction in cases involving the First Amendment.” Med. Lab.
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Consultants v. ABC (In re Med. Lab. Mgmt. Consultants), 931 F. Supp. 1487, 1491 (D. Ariz.
1996) (finding fraudulent joinder and retaining jurisdiction in defamation case with “significant
First Amendment ramifications” where national television network was sued for broadcasting
program on “issue of undeniable public concern”).
B.

The Fraudulent Joinder Doctrine Applies to Fraudulently Joined Plaintiffs

Plaintiffs’ argument that the fraudulent joinder doctrine does not apply to fraudulently
joined plaintiffs is against the clear weight of authority and common sense. As one West
Virginia federal court has observed, there is “no logic in prohibiting plaintiffs from defeating
diversity jurisdiction by fraudulently joining nondiverse defendants, but allowing them to do so
through fraudulently joining nondiverse plaintiffs.” Grennell v. W. S. Life Ins., 298 F. Supp. 2d
390, 396 (S.D. W. Va. 2004); see also Sodibar Sys., Inc. v. Simon, 2014 WL 1276441, at *3 (D.
Md. Mar. 26, 2014); Mylan Pharm. Inc. v. PG Publ’g Co., 2009 WL 5195865, at *2 (N.D. W.
Va. Dec. 18, 2009); Burns v. W. S. Life Ins., 298 F. Supp. 2d 401, 402-03 (S.D. W. Va. 2004).
The overwhelming majority of federal courts—including the only federal appellate court
to have addressed the issue—agree that the fraudulent joinder doctrine applies to fraudulently
joined plaintiffs. See, e.g., Iowa Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400, 404 (8th
Cir. 1977) (“[I]f [a] ‘nondiverse’ plaintiff is not a real party in interest . . . his or its presence . . .
may be ignored in determining jurisdiction.”); Youghiogheny Commc’ns-Tex., LLC v. eSecuritel
Holdings, LLC, 2012 WL 868786, at *3 (W.D. Tex. Mar. 13, 2012), report and recommendation
adopted, 2012 WL 12931480 (W.D. Tex. Apr. 10, 2012); Kans. State Univ. v. Prince, 673 F.
Supp. 2d 1287, 1295 (D. Kan. 2009); Clear Channel Commc’ns, Inc. v. Citigroup Glob. Mkts.,
Inc., 541 F. Supp. 2d 874, 877-78 (W.D. Tex. 2008); Eberspaecher N. Am., Inc. v. Van-Rob, Inc.,
2007 WL 2332470, at *4 (E.D. Mich. Aug. 15, 2007); Hodach v. Caremark RX, Inc., 374 F.
Supp. 2d 1222, 1224 (N.D. Ga. 2005); Foslip Pharm., Inc. v. Metabolife Int’l, Inc., 92 F. Supp.
11

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2d 891, 907-09 (N.D. Iowa 2000); Lerma v. Univision Commc’ns, Inc., 52 F. Supp. 2d 1011,
1014 (E.D. Wis. 1999); Sims v. Shell Oil Co., 130 F. Supp. 2d 788, 796 (S.D. Miss. 1999); Oliva
v. Chrysler Corp., 978 F. Supp. 685, 689 (S.D. Tex. 1997).6
Seeking to avoid this overwhelming weight of authority, Plaintiffs illogically argue that
without specific Fourth Circuit experience, any “doubts” about the propriety of removal should
be resolved in favor of remand. Mot. at 7. Murray has previously made and lost this very
argument in another fraudulent joinder case. See Murray Energy Holdings Co. v. Bloomberg,
L.P., 2016 WL 3355456, at *3 (S.D. Ohio June 17, 2016) (rejecting the reasoning in Myers
Indus., Inc. v. Young, 2013 WL 4431250 (N.D. Ohio Aug. 16, 2013)). The court rejected
Murray’s argument in that case, as this Court should do here, because it determined that the
“thumb on the scale” in favor of remand “was inapplicable to the question of whether a particular
federal legal doctrine applies.” Id. Rather, that doctrine applies only to “underlying factual
issues and substantive state law at issue in the claims.” Id.
Plaintiffs cite Allen v. Pfizer, Inc., 2016 WL 7338595 (D.S.C. Jan. 15, 2016), in support
of their “doubts” argument, but that case is of no help to them. The court in Allen did not
remand that case because the Fourth Circuit had not decided whether the fraudulent joinder
doctrine applied to plaintiffs, as Plaintiffs here argue. To the contrary, the court “assum[ed]

6

Other authorities also strongly support this approach. See 13F Charles Alan Wright et al.,
Federal Practice & Procedure § 3641.1, at 566 (3d ed. 2009) (“the federal courts must make
their own determination whether a particular party plaintiff has any possible legal interest in the
outcome of the litigation, and if he or she does not, then that person’s citizenship will be
considered irrelevant for purposes of determining the existence of diversity jurisdiction”); E.
Farish Percy, Defining the Contours of the Emerging Fraudulent Misjoinder Doctrine, 29 Harv.
J.L. & Pub. Pol’y 569, 606-08 (2006) (“[I]t would make little sense to limit fraudulent
misjoinder to cases where a non-diverse or in-state defendant had been misjoined [because]
[p]laintiffs may also attempt to defeat removal jurisdiction by joining non-diverse plaintiffs.”);
Matthew C. Monahan, Note, De-Frauding the System: Sham Plaintiffs and the Fraudulent
Joinder Doctrine, 110 Mich. L. Rev. 1341, 1363-64 (2012).
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arguendo” that the doctrine did apply to plaintiffs, but—rather than decide the merits of the
defendants’ fraudulent joinder theory, which was based on a “novel” argument related to
Missouri personal jurisdiction law—it found that federal subject matter jurisdiction was lacking
for an entirely different reason. Id. at *3-5.
This Court should adopt the position taken by all of the district courts within this Circuit
that have decided the issue, which is supported by logic and common sense, and hold as a matter
of federal law that the fraudulent joinder doctrine applies equally to plaintiffs and defendants.
C.

The Mutual Defenses Doctrine Does Not Preclude Removal

Plaintiffs next argue that courts analyzing fraudulent joinder cannot consider “defenses
that apply equally to all parties.” Mot. at 8. That argument fails for two reasons.
First, it is inconsistent with the Fourth Circuit’s decision in Johnson v. American Towers,
LLC, 781 F.3d 693 (4th Cir. 2015). In Johnson, the plaintiff—a prison guard who had been shot
in his home at the direction of an inmate who used a cell phone to hire the assailant—brought
negligence claims under South Carolina law in South Carolina state court against wireless phone
service providers and the owners of towers that lease space to those providers. The defendants
removed the case to federal court, and the district court denied the plaintiff’s later motion to
remand on the grounds that, among other things, complete diversity existed because a nondiverse tower-owner defendant had been fraudulently joined. Id. at 701.
On appeal, the Fourth Circuit agreed, concluding that there was “no possibility” that the
plaintiff could prevail against that non-diverse defendant, because the plaintiff’s state law claims
were preempted by federal law. Id. at 705-06. Having determined that the district court had
diversity jurisdiction, the Fourth Circuit then granted the wireless provider defendants’ motion to
dismiss, finding that, among other things, the plaintiffs’ state law claim was preempted by
federal law. Id. at 707. Critically, the same preemption defense could be raised equally by all
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the defendants; but, rather than vacate the opinion of the district court and remand to the state
court, the Fourth Circuit instead held that the defense established the fraudulent joinder of one
defendant and the failure of the plaintiffs’ claim against the others. Thus, as one commentator
noted in an analysis of Johnson, “the ‘common defense exception’ that holds sway in some
circuits, plainly does not exist in the Fourth Circuit.” James M. Beck, “Common” Defense No
Bar to Removal in Preemption Case, Drug & Device L. (Apr. 8, 2015) (emphasis added),
https://www.druganddevicelawblog.com/2015/04/common-defense-no-bar-to-removal-in.html.
Plaintiffs disregard Johnson in their discussion of this doctrine, and the only case they cite from
within this Circuit, McDowell Pharmacy, Inc. v. W. Va. CVS Pharmacy, L.L.C., was decided
prior to Johnson. 2012 WL 2192167, at *5 (S.D. W. Va. June 14, 2012).
Second, even if the mutual defenses doctrine was the law in this Circuit, it would apply
only where all defendants raise a “dispositive defense” that “involve[s] identical legal and factual
issues.” Boyer v. Snap-On Tools Corp., 913 F.2d 108, 113 (3d Cir. 1990). In other words,
where the doctrine is recognized, its reach is limited to situations where the defense asserted as
to the non-diverse party is “equally dispositive” of the claims brought by diverse and non-diverse
plaintiffs alike. Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 575 (5th Cir. 2004) (en banc); see
also Snap-On Tools Corp., 913 F.2d at 113. It does not apply, for example, where a non-diverse
plaintiff’s claim is “weaker” than a diverse plaintiff’s claim. Cf. Walton v. Bayer Corp., 643
F.3d 994, 1001 (7th Cir. 2011). Here, the “of and concerning” defense, which is dispositive of
the claims brought by the fraudulently-joined Plaintiffs, is not applicable to the claims brought
by the diverse Plaintiffs, Murray and Murray Energy.

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D.

The Non-Diverse Plaintiffs Have No Possibility of Success Because the
Complaint Fails To Allege that the Episode Was “Of and Concerning” Them

Plaintiffs’ Complaint is focused on statements directed at Murray and Murray Energy,
largely about mining operations at the Crandall Canyon Mine in Utah. It does not allege that any
statements were directed at the four non-diverse Plaintiffs, which all are subsidiary corporations
that operate mines in West Virginia. Compl. ¶¶ 11-14. Without any allegation that the
challenged statements were actually about those specific Plaintiffs, there is “no possibility” that
these non-diverse Plaintiffs could recover against Defendants. Johnson, 781 F.3d at 704.
Under both the First Amendment and West Virginia law,7 the only party entitled to assert
a claim for defamation is the party at whom the allegedly false statements are “specifically
directed.” Rosenblatt v. Baer, 383 U.S. 75, 81-82 (1966); Crump v. Beckley Newspapers, Inc.,
320 S.E.2d 70, 77 (W. Va. 1983) (requiring “reference to the plaintiff”). “In order to actionably
defame an individual, a publication must contain some ‘special application of the defamatory
matter’ to the individual,” such that “[t]he ‘circumstances of the publication . . . reasonably give
rise to the conclusion that there is a particular reference’ to the individual.” AIDS Counseling &
Testing Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000, 1005 (4th Cir. 1990) (citations omitted).
In two Mississippi defamation cases, for example, a federal court retained jurisdiction
because the challenged statements by non-diverse defendants were not “of and concerning” the
plaintiffs. See Gales v. CBS Broad., Inc., 269 F. Supp. 2d 772, 775, 777-80 (S.D. Miss. 2003),
aff’d per curiam, 124 F. App’x 275 (5th Cir. 2005); Berry v. Safer, 293 F. Supp. 2d 694, 696-701
(S.D. Miss. 2003). In Gales and Berry, individuals who had served as jurors in Jefferson
County, Mississippi, sued CBS and other defendants in Mississippi state court for statements

7

For purposes of the remand and TRO motions only, Defendants assume without conceding
application of West Virginia law to issues not controlled by federal law.
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made in a segment titled “Jackpot Justice” on the CBS News magazine program 60 Minutes. Id.
The plaintiffs included jurors who had awarded a $150 million verdict in a high-profile
pharmaceutical case, and the defendants included two Mississippi residents who had made
statements on 60 Minutes about Jefferson County jurors being “disenfranchised people” who
“stick it” to big corporate defendants. Id. The court noted that a “‘trial court may . . . at the
earliest stages’” consider “‘whether the statement at bar . . . is “of and concerning” the
plaintiff.’” Gales, 269 F. Supp. 2d at 780 (second alteration in original) (quoting Robert O.
Sack, Libel, Slander, and Related Problems 533-34 (1980)); Berry, 293 F. Supp. 2d at 700
(same). The court denied the motions to remand, finding “no possibility of recovery for
defamation” against the two Mississippi defendants where the complaints had failed to allege
facts sufficient to establish that the non-diverse defendants’ statements “were ‘of and
concerning’ or ‘clearly directed toward’ the plaintiffs.” Gales, 269 F. Supp. 2d at 780-84; Berry,
293 F. Supp. 2d at 700-04. The alleged statements “d[id] not refer to any of the plaintiffs by
name,” and the references to “jurors” and “the jury,” while referring to a group, “lack[ed] the
specificity required to impose liability.” Id.
So too here. As in Gales and Berry, Plaintiffs’ Complaint does not mention the nondiverse Plaintiffs by name except to identify them as parties. See Compl. ¶¶ 11-14. It does not
allege that any statements were directed at those subsidiary companies. It does not identify any
harm suffered specifically by the non-diverse Plaintiffs. Consistent with the fact that the prelitigation correspondence was sent on Murray Energy’s letterhead and only concerned “Mr.
Murray” and “Murray Energy,” Compl. ¶¶ 32, 36; Ex. 3 at 1; Ex. 4 at 1, those are the only two
Plaintiffs specifically named in the allegations of the Complaint. Where, as here, a complaint
fails to make any specific allegations about a party, and relies instead on collective allegations

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directed at “plaintiffs” or “defendants,” numerous courts have found fraudulent joinder of the
party. See, e.g., Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999); Arrington v.
Nationwide Mut. Fire Ins., 2015 WL 852056, at *3 (W.D. Ky. Feb. 26, 2015); Lyons v. Trott &
Trott, 905 F. Supp. 2d 768, 772 (E.D. Mich. 2012); Beavers v. DePuy Orthopaedics, Inc., 2012
WL 1945603, at *4-5 (N.D. Ohio May 30, 2012); Salisbury v. Purdue Pharma, L.P., 166 F.
Supp. 2d 546, 550 (E.D. Ky. 2001).8
The only allegation of the Complaint that even remotely attempts to meet the “of and
concerning” requirement is the vague and conclusory allegation that “the public equates the
mining business of each Plaintiff with Mr. Murray.” Compl. ¶ 10. Based on that allegation,
Plaintiffs appear to make two related arguments: (1) that defamatory statements about Murray
relate to and defame all of the companies of which he is CEO and President, Mot. at 9-11; and
(2) that all of the corporate Plaintiffs are part of the same corporate family and defamatory
statements directed at “Murray Energy” necessarily defame all of Murray Energy’s subsidiaries.
Mot. at 12. Neither of these arguments can satisfy the constitutionally mandated “of and
concerning” requirement.
1. Allegations About Murray as CEO. In the context of corporations, the rule is not, as
Plaintiffs assert, that defamatory statements about corporate executives are also generally

8

The defamation cases cited by Plaintiffs do not support remand here, as the “of and
concerning” requirement was not at issue. See Mot. at 12-13; Montanaro v. State Farm Mut.
Auto. Ins., 29 F. Supp. 3d 662, 668 (D.S.C. 2014) (finding defendant not fraudulently joined
where court could not conclude that particular defendant had not himself “also sen[t] such a
letter or make a statement that included the language quoted in the Complaint”); Guider v. Hertz
Corp., 2004 WL 1497611, at *5 (M.D.N.C. June 28, 2004) (affidavit attached to complaint
claimed that alleged fraudulently joined defendant had personally made false statements and
issue of qualified privilege was uncertain); Pritt v. Republican Nat’l Comm., 1 F. Supp. 2d 590,
592 (S.D. W. Va. 1998) (complaint alleged that defendants had “individually” committed
tortious acts).
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applicable to their corporations. Mot. at 9. “A corporation is not defamed by communications
defamatory of its officers, agents or stockholders unless they also reflect discredit upon the
method by which the corporation conducts its business.” Restatement (Second) of Torts § 561
cmt. on cl. (a) (Am. Law Inst. 1977). Corporations and their officers or agents are not
interchangeable. When a statement is made about one or the other, the statement must still “have
been understood by a reasonable reader as being, in substance, actually about [the plaintiff who
is bringing suit].” Kirch v. Liberty Media Corp., 449 F.3d 388, 398-99 (2d Cir. 2006).
Where statements about a CEO or other officer or owner of a business are not “actually
about” the business of the corporation, the corporation cannot maintain a cause of action. See
Eyal v. Helen Broad. Corp., 583 N.E.2d 228, 232-33 (Mass. 1991) (“reject[ing] the corporation’s
argument that the defendants[] defamed it by allegedly defaming [the corporation’s owner]”
where alleged statement did not reference corporation and “insinuated nothing” about it); Afftrex,
Ltd. v. Gen. Elec. Co., 555 N.Y.S.2d 903, 904-05 (App. Div. 1990) (concluding statement that
“the owner of Afftrex, is also an evil man” was not sufficiently “of and concerning” Afftrex
because, in context, the statement “reflect[s] directly on [the individual]” in connection with his
former employment, rather than on the business (internal quotation marks omitted)); Cohn v.
NBC, 414 N.Y.S.2d 906, 909 (App. Div. 1979) (concluding that statement about individual that
was law firm’s “principal producer of income” was not “of and concerning” law firm where the
law firm “was never mentioned” and it “d[id] not complain of . . . any defamatory portrayal or
utterance directed against it”), aff’d, 408 N.E.2d 672 (N.Y. 1980).9

9

The cases cited by Plaintiffs do not support Plaintiffs’ argument that defaming a corporate
officer thereby defames every corporation of which he is an officer. See Mot. at 9-10 (citing
cases). In each situation, the allegations were sufficiently connected to the business of the
particular corporate plaintiff to permit a claim by that corporation. In Whitney Information
Network, Inc. v. Weiss, the court found that “several” “explicit references” to the corporate
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The bare assertion that “the public equates the mining business of each Plaintiff with Mr.
Murray,” Compl. ¶ 10, is simply not enough to establish that each statement about Murray was
also about the business of each of his companies. See Kirch, 449 F.3d at 398, 401 (broad
allegation that “‘exclusive agent’” was known publicly as “the ‘face’” of the corporation was
insufficient to support defamation claim by agent); Cohn, 414 N.Y.S.2d at 909 (“mere
conclusory assertion that the reputation of the firm is inextricably tied to Cohn as its principal
producer of income” cannot give rise to claim by law firm for defamation because “[n]o such
derivative claim for defamation exists”).
2. Allegations About Murray Energy. Nor is it enough for the non-diverse Plaintiffs to
argue that they are all part of the same corporate family as Murray Energy Corporation, and that
statements about Murray Energy are therefore also “of and concerning” them. Defamatory
statements about a parent company do not give rise to claims for defamation by subsidiary
corporations. It is well settled in the case of natural persons that a defamatory statement about
one family member does not give rise to a claim by other family members, even though other

plaintiff “easily satisfy the ‘of and concerning’ element.” 2008 WL 731024, at *6 (E.D.N.Y.
Mar. 18, 2008). In VECC, Inc. v. Bank of Nova Scotia, statements that a corporation’s agent was
potentially conducting a “scam” in connection with opening a bank account in the name of the
corporate plaintiff were deemed to satisfy the requirement that the statement “tend to ‘reflect
discredit upon the method by which the corporation conducts its business.’” 296 F. Supp. 2d
617, 620, 623 & n.4 (D.V.I. 2003) (citation omitted). In Market Choice, Inc. v. New England
Coffee Co., the challenged statements were in the context of conversations “about the possibility
of doing business with [a competitor] rather than [the corporation and founder],” and another
challenged statement was in connection with a notification that the corporation was no longer
authorized to conduct certain business. 2009 WL 2590651, at *6 (W.D.N.C. Aug. 18, 2009). In
Q-Tone Broadcasting Co. v. MusicRadio of Maryland, the statements were made to a client of
the corporation and included that the executive “sexually approached male clients” and was
“likely to ‘put the move’ on the client.” 1996 WL 494177, at *1 (Del. Super. Ct. Apr. 22, 1996).
In Perlman v. Vox Media, Inc., the challenged statements specifically referenced the corporation
and were arguably “straightforward facts,” but the court found that, in context, they could
defame the corporation by “reflect[ing] discredit on the way [the corporation] does business.”
2015 WL 5724838, at *8, *17 (Del. Ch. Sept. 30, 2015).
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family members may suffer injury as a result. See Fowler v. Curtis Publ’g Co., 78 F. Supp. 303,
304 (D.D.C. 1948) (“A person who is injured by reason of the fact that someone else is libeled,
has no right of recovery. Any detriment that he sustains is damnum absque injuria.”), aff’d, 182
F.2d 377 (D.C. Cir. 1950); Mitchell v. Random House, Inc., 703 F. Supp. 1250, 1255-56 (S.D.
Miss. 1988) (“‘[T]he defamation of one family member does not normally give rise to a cause of
action by another family member . . . unless it can be shown that the libel in question was
published of and concerning them.’” (citation omitted)), aff’d, 865 F.2d 664 (5th Cir. 1989).
The same principle applies to corporate families. A subsidiary corporation may claim
some indirect injury when its parent corporation is defamed—although here no such injury is
alleged. But unless the defamatory communication makes reference to the subsidiary
corporation, it has no claim for defamation. See Jankovic v. Int’l Crisis Grp., 494 F.3d 1080,
1089–90 (D.C. Cir. 2007) (holding that statements about a bank were not “of and concerning”
other corporations with shared ownership).
Plaintiffs attempt to satisfy the “of and concerning” requirement by invoking the “group
libel” cases, which hold that a member of a group may assert a defamation claim if a statement is
clearly aimed at each member of the group, or if the statement is made about a group that is so
small that suspicion is cast on each member of the group. See Kennedy v. Children’s Serv.
Soc’y, 17 F.3d 980, 983 (7th Cir. 1994); Swearingen v. Parkersburg Sentinel Co., 26 S.E.2d 209,
214 (W. Va. 1943) (permitting claim by individual where statements were “directed toward the
city council and mayor, which was a small restricted group of five persons, and . . . may apply to
any member thereof”); Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1016 (3d Cir.
1994) (group of roughly 20 wallpaper dealers was too “amorphous and ill-defined” to “support a

20

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conclusion that any of the plaintiffs’ individual reputations were injured”).10 The critical
requirement in such cases, which does not exist here, is that the statement be reasonably
construed as referring to the particular member of the group. See, e.g., Church of Scientology
Int’l v. Time Warner, Inc., 806 F. Supp. 1157, 1161 (S.D.N.Y. 1992) (reference to “Scientology”
does not give rise to a claim by particular Scientology organization), aff’d sub nom. Church of
Scientology Int’l v. Behar, 238 F.3d 168 (2d Cir. 2001).
The “group libel” cases have no application here, because in this case John Oliver did not
speak of a group at all: he spoke specifically of Bob Murray and Murray Energy. And none of
Plaintiffs’ claims allege that anything in the story that forms the basis for those claims cast
suspicion on any of the non-diverse Plaintiffs.
Thus, for example, Plaintiffs’ principal complaint concerns the statements about the
Crandall Canyon Mine collapse. Compl. ¶¶ 33-45. They allege that Defendants implied that
“Mr. Murray lied about the cause of the mine collapse.” Compl. ¶ 43. But that mine is located
in Utah, Compl. ¶ 37, and, as mentioned in the segment, that mine was operated by
UtahAmerican, which is not a Plaintiff. The non-diverse Plaintiffs operate four mines in West
Virginia, Compl. ¶¶ 11-14. There is simply no colorable claim that any statements about the
Crandall Canyon Mine collapse were “of and concerning” these Plaintiffs or their mines in West

10

The cases cited by Plaintiffs do not support the point that an alleged membership in a “group”
necessarily permits claims by individual group members. See Mot. at 12. In Excellus Health
Plan, Inc. v. Tran, the court found that the “statements . . . are sufficiently focused on individual
Promedicus executives and physicians” so as to permit claims by those parties. 287 F. Supp. 2d
167, 175 (W.D.N.Y. 2003). In Long v. Egnor, the court “assume[d], without deciding, that . . .
all five Board members had the right to bring this libel action because it is a small group” of five.
346 S.E.2d 778, 786 (W. Va. 1986). Another case cited by Plaintiffs, Conseco Group Risk
Management Co. v. Ahrens Financial Systems, Inc., provides no support at all, as it contained no
discussion of group libel or whether statements specific to one plaintiff were “of and concerning”
other plaintiffs. 2001 WL 219627, at *9-10 (N.D. Ill. Mar. 6, 2001).
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Virginia. See AIDS Counseling & Testing Ctrs., 903 F.2d at 1005.11 The same is true with
Plaintiffs’ other allegations referencing “Murray Energy” and “Mr. Murray and the other
Plaintiffs.” See Compl. ¶¶ 46, 49.
To the extent Plaintiffs allege that Defendants implied “Mr. Murray is a liar in general,”
that is a statement about him personally, not about all of the many corporations that he runs. It
lacks the requisite “‘special application of the defamatory matter’ to the individual” plaintiff to
give rise to a claim by the non-diverse Plaintiffs. See AIDS Counseling & Testing Ctrs., 903
F.2d at 1005. Likewise, the description of Murray as “a geriatric Dr. Evil,” Compl. ¶ 51, and
alleged characterization of Murray and Murray Energy as “villainous,” Compl. ¶ 47, are akin to
the description of the corporate owner as “an evil man,” which was not “of and concerning” a
particular business that the man owned, because, in context, that business was not implicated by
the statement. See Afftrex, Ltd., 555 N.Y.S.2d at 905. Such statements, alleged to be directed at
Murray and Murray Energy, were not “actually about” the trade or business of the four nondiverse Plaintiffs and cannot support claims by those Plaintiffs. See Kirch, 449 F.3d at 399.
Without a viable claim that the challenged statements set forth in the complaint were “of
and concerning” the non-diverse Plaintiffs, these Plaintiffs have no possibility of success. The
Court should, therefore, disregard the citizenship of the non-diverse Plaintiffs for jurisdictional
purposes, dismiss the non-diverse Plaintiffs, and retain jurisdiction over the case. Mayes, 198
F.3d at 461; Johnson, 781 F.3d at 704.

11

In contrast, in the case cited by Plaintiffs, Willfred Coal Co. v. Sapp, 193 Ill. App. 400, 414
(Ill. App. Ct. 1915), only one business was potentially implicated by statements allegedly
implying that a corporate executive was dishonest. See Mot. at 11.
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E.

The Non-Diverse Plaintiffs Have No Possibility of Success Because the Fair
Report Privilege Also Bars Certain Claims

Claims based upon the single paragraph of the Complaint that alleges Defendants “falsely
broadcasted that Mr. Murray and the other Plaintiffs implemented bonus policies that sacrificed
the health and safety of their employees,” Compl. ¶ 49, are also clearly barred by the fair report
privilege. That privilege shields the media from liability for its coverage of “official
[government] actions or proceedings, so long as the report was accurate and either complete or
fairly abridged.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993); see also
Reuber v. Food Chem. News, Inc., 925 F.2d 703, 712 (4th Cir. 1991) (en banc). West Virginia
law requires plaintiffs to plead and prove the absence of such a privilege as an “essential
element[]” of their claim for defamation. See Crump, 320 S.E. at 77.
The main story from the Episode accurately summarized a National Labor Relations
Board judicial decision about the bonus program and quoted directly from that decision,
displaying those quotes on the screen. See Ex. 2 at 22:30 - 23:05; Ex. 5. Critically, the
Complaint not only fails to argue that the Episode’s summary of the NLRB decision was
incorrect in any way, it withholds from the Court the fact that the NLRB decision itself is what
the segment displayed and discussed. Every factual statement made about the bonus program—
that the miners rejected the bonus program because of safety concerns, that sixty-two miners
voided their bonus checks, and that two of them had vulgar messages for Murray—came straight
from the decision, and was clearly presented as such. Ex. 5 at 4-5.
Thus, even if the Court were to assume, arguendo, that the allegations in this single
paragraph of the Complaint are “of and concerning” any particular non-diverse Plaintiff, the
claim made in that paragraph is entirely barred by the fair report privilege. There is therefore

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Case 5:17-cv-00099-JPB Document 13 Filed 07/21/17 Page 29 of 31 PageID #: 190

“no possibility that the plaintiff would be able to establish a cause of action” based on this claim.
Johnson, 781 F.3d 693 at 704 (emphasis and internal quotation marks omitted).
F.

The Non-Diverse Plaintiffs Cannot Prevail on Their Emotional Distress or
False Light Claims as a Clear Matter of State Law

As a clear matter of West Virginia law, the non-diverse Plaintiffs cannot prevail on their
false light and intentional infliction of emotional distress claims because these claims can only be
brought by natural persons. See Chamberlaine & Flowers, Inc. v. Smith Contracting, Inc., 341
S.E.2d 414, 417 (W. Va. 1986) (“a corporation cannot recover for the tort of outrage or infliction
of severe emotional distress”); Susko v. Cox Enters., Inc., 2008 WL 4279673, at *5 (N.D. W. Va.
Sept. 16, 2008) (holding that corporation “cannot assert a claim for false light invasion of
privacy”). With these claims as well, there is “no possibility” of success for the non-diverse
Plaintiffs. Johnson, 781 F.3d at 704.
G.

Plaintiffs Are Not Entitled to Attorneys’ Fees or Costs

Plaintiffs fail to provide any support for their request for an award of attorneys’ fees or
costs, which is mentioned only in their motion and not addressed in their memorandum. Failure
to argue the issue amounts to a waiver. See dPi Teleconnect LLC v. Owens, 413 F. App’x 641,
646 (4th Cir. 2011). Because HBO has an “objectively reasonable basis for seeking removal”
and no “unusual circumstances” exist, Plaintiffs’ request for fees should be denied even if their
motion is granted. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
CONCLUSION
For the foregoing reasons, the Court should deny Plaintiffs’ Motion to Remand. HBO
requests a hearing on this Motion.

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Case 5:17-cv-00099-JPB Document 13 Filed 07/21/17 Page 30 of 31 PageID #: 191

Dated: July 21, 2017

Respectfully submitted,

By: /s/ Robert P. Fitzsimmons
Robert P. Fitzsimmons, Esq.
W. Va. State Bar I.D. #1212
Clayton J. Fitzsimmons, Esq.
W. Va. State Bar I.D. #10823
FITZSIMMONS LAW FIRM PLLC
1609 Warwood Avenue
Wheeling, WV 26003
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]
Kevin T. Baine (pro hac vice)
Thomas G. Hentoff (pro hac vice)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street NW
Washington, D.C. 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Home Box Office, Inc.

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Case 5:17-cv-00099-JPB Document 13 Filed 07/21/17 Page 31 of 31 PageID #: 192

CERTIFICATE OF SERVICE
I certify that this 21st day of July, 2017, I caused a copy of the foregoing to be electronically
filed using the CM/ECF system. Electronic notice of this filing will be provided via CM/ECF to
counsel for Plaintiffs:
Jeffrey A. Grove, Esq. (#6065)
David L. Delk, Jr., Esq. (#6883)
GROVE, HOLMSTRAND & DELK, PLLC
44 1/2 15th Street
Wheeling, WV 26003

/s/ Robert P. Fitzsimmons
Robert P. Fitzsimmons, Esq.
W. Va. State Bar I.D. #1212
FITZSIMMONS LAW FIRM PLLC
1609 Warwood Avenue
Wheeling, WV 26003
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]

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