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

Filing 20

Memorandum in Support re 3 MOTION to Remand to State Court Plaintiffs' Reply in Support of Their Motion to Remand filed by Robert E. Murray. (Grove, Jeffrey)

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.: 5:17-CV-99
Judge John Preston Bailey

Plaintiffs,
CIVIL ACTION NO. 17-C124

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

Judge Cramer
(Marshall County Circuit
Court)

Defendants.
PLAINTIFFS’ REPLY IN SUPPORT
OF THEIR MOTION TO REMAND
I.

INTRODUCTION
Less than a week before a scheduled hearing in state court on Plaintiffs‟ motion for a

temporary restraining order, Defendants attempted to invoke this Court‟s jurisdiction and
removed this case on the basis of supposed fraudulent joinder of four plaintiffs. Now, however,
with the scheduled date of that hearing and several additional weeks having passed, Defendants
have abandoned any effort to address the one issue that governs whether their removal of this
case was appropriate, or even had any reasonable basis. Defendants have retreated from any
discussion of this issue even though it forms the primary basis of the claims of each of the four
non-diverse Plaintiffs. That is, nowhere have Defendants made any mention of whether false
statements that the CEO of a coal company lied about the cause of death of coal miners who died
while working for his organization reflect upon the coal mining business of that company.

1
10310172 v1

Despite the prominence of that controlling issue – the core focus of Plaintiffs‟ motion to
remand – Defendants have ignored it in their brief. Defendants know that they cannot in good
faith contend that false statements that the CEO of a company lied about the cause of death of
coal mining employees killed while working for his organization somehow do not reflect upon
that company‟s coal mining business. So, rather than concede the obvious, and thereby
effectively consent to remand, Defendants instead pretend that their false statements are not
about the life and death of employees. Indeed, Defendants meticulously omit from their entire
brief any mention that six Murray Energy miners and three rescue workers died at The Crandall
Canyon Mine in Utah.
And, to further avoid the issue, Defendants also pretend that the non-diverse Plaintiffs
base their claims on the mere assertion that “defamatory statements about corporate executives
are also generally applicable to their corporations.” Def‟s Mem. [Doc. No. 13] at 1. While such
an assertion could of course be easily defeated if it was actually raised, Plaintiffs never
contended anything of the sort. Nor is there any room for Defendants to genuinely have had the
mistaken belief that Plaintiffs were ever suggesting the foolish contention that defamatory
statements about executives are generally applicable to their corporations. The absurdity of that
supposed argument aside, it could not have been more clear to Defendants that Plaintiffs
contended no such thing. That is because Plaintiffs (unacknowledged by Defendants)
specifically relied upon the same language from the same section of the same treatise that
Defendants identify as the correct standard (and Plaintiffs quoted that language twice). See Pl.
Remand Mem. at 2 & 9 (quoting Restatement (Second) of Torts § 561 cmt. on cl. (a) (Am. Law
Inst. 1977) for proposition that communications about an officer can defame the corporation if

2
10310172 v1

“they also reflect discredit upon the method by which the corporation conducts its business”); see
also Def‟s Mem. at 18 (same).
As obvious as Defendants are making it that they are ducking the central issue in the
case, they nevertheless say nothing about whether false statements that a CEO of a company lied
about the cause of death of coal miners who died while working for his organization reflect
discredit upon the coal mining business of that company. In their opening brief, Plaintiffs boldly
contended that this “reflect discredit” principle of defamation law, which renders all the
corporate Plaintiffs proper parties, is “indisputable.” Pl. Mem. at 2. By failing to even address,
much less dispute, that principle as it applies to the corporate Plaintiffs‟ actual claims,
Defendants have confirmed that they also cannot meaningfully dispute that all the corporate
Plaintiffs are proper parties, or that there was no fraudulent joinder.
Given that Defendants could not even address Plaintiffs‟ actual claims in their brief
opposing remand, they did not have an objectively reasonable basis to remove this case. As
such, not only is remand required, but Defendants should pay Plaintiffs‟ costs and fees for this
motion.
II.

REMAND IS REQUIRED.
By avoiding any discussion in their brief of the one issue that matters most – and that was

squarely and repeatedly presented to them as the principal basis of the non-diverse Plaintiffs‟
claims – Defendants have confirmed that they cannot justify removal of this case. Moreover,
even apart from that primary grounding for the claims of the non-diverse Plaintiffs, they also
have a right to relief based on a second fundamental principle, the group libel doctrine. Plus, the
Defendants‟ efforts to attempt to escape the application of the universally accepted mutual
defenses doctrine only underlines their desperation.

3
10310172 v1

A.

By Refusing To Address The Obvious And Controlling Issue That Was
Repeatedly Highlighted For Them, Defendants Concede They Have No
Justification For Removal.

In their short thirteen-page remand brief, Plaintiffs focused primarily on a single issue
that Defendants ignored in the entirety of their twenty-five page response.
Plaintiffs could not have been more clear in their remand brief that the main basis for the
non-diverse Plaintiffs‟ claims is that the false statements that the CEO of those Plaintiffs lied
about the deaths of employees killed during the line of work reflect discredit on the business of
those corporate Plaintiffs. Over and over, Plaintiffs emphasized the “reflect discredit” principal
of defamation law. See, e.g., Pl‟s Mem. at 2 (“the legal proposition that communications about
the officer of a company can defame the corporation if they reflect discredit upon it, is not some
attempt to creatively extend the outer reaches of liability. To the contrary, it is a fundamental
tenet long ingrained in the law of defamation.”); see also id. (“„communications defamatory of
its officers, agents or stockholders‟ also defame the corporation if „they also reflect discredit
upon the method by which the corporation conducts its business.‟”) (quoting Restatement
(Second) of Torts § 561 cmt. on cl. (a) (Am. Law Inst. 1977)); id. at 9 (“„communications
defamatory of its officers, agents or stockholders‟” also defame the corporation if “„they also
reflect discredit upon the method by which the corporation conducts its business.‟”) (quoting
Restatement § 561 cmt. on cl. (a)); id. (“„an accusation of misconduct on the part of corporate
officers when acting as and for the corporation, which discredits the corporation in its trade or
business, is defamation against the corporation.‟”) (quoting 53 C.J.S. Libel and Slander;
Injurious Falsehood § 60 (2017 Update)).
And again and again, Plaintiffs also underscored that false statements that the CEO of a
company lied about the cause of death of employees killed while performing their job duties for

4
10310172 v1

his organization reflect discredit on the company. See, e.g., Pl‟s Mem. at 11 (“Defendant not
only has accused Mr. Murray of professional misconduct involving dishonesty, it is a false
accusation of dishonesty about Murray Energy mining operations, and the death of Murray
Energy employees in their line of work for the Murray Energy organization.”); id. (“Those
defamatory statements falsely conveying that Mr. Murray is dishonest and lies about employee
safety, therefore, reflect discredit upon the method by which the Plaintiffs do business.”); see
also id. at 5-6 (“Defendants falsely implied that Mr. Murray not only lied about the cause of that
tragic mine collapse, but that he had no evidence to support his statements that an earthquake
triggered the collapse. . . These Defamatory Statements about disregarding safety for profit and
making baseless misrepresentations about employee deaths „reflect discredit upon the methods
by which Plaintiffs do business.‟”); id. at 9 (“to constitute defamation of the company, it is not
necessary that such defamatory comments about its executive – such as that he allegedly lied,
without any supporting evidence, about the cause of death of employees who were killed during
the line of work – concern such a serious matter to the corporation and its people as is at issue
here.”).
Despite the fact that the non-diverse Plaintiffs highlighted the chief basis for their claims,
repeatedly and extensively making it the focal point of their brief, it was addressed by
Defendants – not at all. Through the use of two key tactics, Defendants avoided any discussion
of whether false statements that the CEO of a company lied about the deaths of his
organization‟s employees killed during the line of work reflect discredit upon the company.
First, Defendants carefully omitted from their brief any reference to the tragic deaths that
occurred as a result of the collapse of the Crandall Canyon Mine. Defendants do not even
mention in their brief that anyone died, much less acknowledge that it was coal mining

5
10310172 v1

employees of the Murray Energy organization that were killed.

In this way, Defendants

sidestepped having to confront an impossible task. They evaded having to try to argue in good
faith that false statements about a CEO supposedly lying and trying to cover up the true cause of
death of his coal mining employees who died in the line of duty for his organization somehow do
not reflect on the business of the coal mining companies that he runs within that organization.
Second, since Defendants were filing a response brief and therefore had to respond to
something, they simply made up an argument and pretended that Plaintiffs raised it. In this
regard, Defendants state that “In the context of corporations, the rule is not, as Plaintiffs assert,
that defamatory statements about corporate executives are also generally applicable to their
corporations.” Def‟s Mem. at 17-18. Plaintiffs, of course, never asserted anything like that.1
What is more, Defendants cannot reasonably claim to be genuinely mistaken about what
Plaintiffs actually did argue. That is because Plaintiffs, in setting forth the “reflect discredit”
standard, not only quoted the same language from the same treatise as Defendants, but Plaintiffs
quoted that very same language twice (and then repeatedly, throughout their brief, used the
“reflect discredit” test to show that the non-diverse Plaintiffs are proper parties). See Pl‟s Mem.
at 2, 5-6, 9 & 11. By feigning ignorance of the point that Plaintiffs made so conspicuously and
repeatedly, therefore, Defendants have confirmed that they have no legitimate response.
On top of all that, Defendants also further mischaracterize Plaintiffs‟ allegations,
reinforcing that Defendants have no basis to challenge the non-diverse Plaintiffs‟ claims as they
are actually pled. Defendants contend that “The bare assertion that „the public equates the
1

The four cases Defendants cite effectively rejecting this irrelevant proposition (that Plaintiffs never
made) are likewise irrelevant. See Def‟s Mem. at 18 (citing Kirch v. Liberty Media Corp., 449 F.3d 388,
398-99 (2d Cir. 2006); Eyal v. Helen Broad. Corp., 583 N.E.2d 228, 232-33 (Mass. 1991); Affrex, Ltd. v.
Gen. Elec. Co., 555 N.Y.S.2d 903, 904-05 (App. Div. 1990); Cohn v. NBC, 414 N.Y.S.2d 906, 909 (App.
Div. 1979). Similarly, the cases Defendants cite where the plaintiffs give no indication as to why the nondiverse parties are in the case but simply rely on “collective allegations” also have no bearing here. See
Def‟s Mem. at 17 (citing cases concerning insufficiency of mere “collective allegations.”).

6
10310172 v1

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.” Def. Mem. at 19. Plaintiffs, however, alleged much more than that. Plaintiffs also
explained why the public equates the mining business of each corporate Plaintiff (including the
non-diverse Plaintiffs) with Mr. Murray. Mr. Murray is the President, CEO, and Sole Director of
each of those Plaintiffs. See Pl.‟s Mem. at 6 (citing Compl. ¶ 7). In addition, Mr. Murray is also
listed by the Mine Safety and Health Administration as the “Current Operator” for all the mines
owned by those Plaintiffs. Id. Furthermore, those Plaintiffs, along with the other corporate
Plaintiffs and their affiliates, comprise an organization that is known as “Murray Energy.” Id.
(citing Compl. ¶ 16). As such, the non-diverse Plaintiffs are clearly proper parties not just
because false statements about their CEO lying about the deaths of coal miners killed while
working for his organization reflect discredit on their coal mining business. Rather, it is also all
the more obvious that they are proper parties because the discredit to their business from those
false statements about their CEO is made even more evident by the fact that he is officially
designated as the “Current Operator” of each of their coal mines and because they are part of an
organization that bears his name.
In the end, to constitute proper parties, the non-diverse Plaintiffs need only a “glimmer of
hope” of “a slight possibility of a right to relief.” Hartley v. CSX Trasp., Inc., 187 F.3d 422, 426
(4th Cir. 1999).

Here, the non-diverse Plaintiffs‟ claims plainly afford them such an

unmistakable right to relief that the Defendants cannot even contest those claims as they are
actually alleged.
Defendants‟ removal of this case was therefore inappropriate and remand is required.

7
10310172 v1

B.

In Addition To That Primary And Uncontested Basis, The Non-Diverse
Plaintiffs Also Have Another Fundamental Principle Grounding Their
Claims.

Although the non-diverse Plaintiffs have already demonstrated that they have a far higher
likelihood of a right to relief than is necessary for them to qualify as competent parties, it bears
mentioning that they also have an additional well-established basis on which to seek relief – the
group libel doctrine. Here again, Defendants‟ efforts to distort the non-diverse Plaintiffs‟ claims
accentuates that Defendants cannot confront those claims as they are actually pled.
As if Plaintiffs were making such an argument, Defendants contend that it is not
“enough” that the non-diverse Plaintiffs “are all part of the same corporate family.” Def‟s Mem.
at 19. Of course that alone would not be enough. But it is also undeniably the law that “One
who publishes defamatory matter concerning a group or class of persons is subject to liability to
an individual member of it if, but only if, (a) the group or class is so small that the matter can
reasonably be understood to refer to the member, or (b) the circumstances of publication
reasonably give rise to the conclusion that there is particular reference to the member.” Evans v.
Chalmers, 703 F.3d 636, 659-60 (4th Cir. 2012) (Wlkinson, J. concurring) (quoting Restatement
(Second) of Torts § 564A (American Law Inst. 1977)). Notwithstanding that this exact principle
and these authorities were quoted in Plaintiffs‟ Brief,2 Defendants do not mention, much less
discuss, either Evans v. Chalmers or that section of the Restatement, in their response brief.
And Defendant cites no cases contradicting the primary principle that follows from Evans
v. Chalmers and § 564A of the Restatement, which is that defamation of a group constitutes
defamation of a member of that group if there are only roughly twenty-five or so members.3 Nor

Pl.‟s Mem. at 11-12.
Restatement (Second) of Torts § 564A (American Law Inst. 1977) (example of group with 25 members).
The cases Defendants cite involving massive global enterprises with diverse businesses or hundreds of
entities are inapposite. See Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1090-91 (D.C. Cir. 2007)
2
3

8
10310172 v1

do Defendants acknowledge Plaintiffs‟ allegation that the non-diverse Plaintiffs, along with the
other corporate Plaintiffs, “are part of a group that is known as „Murray Energy.‟” Pl.‟s Mem. at
11 (quoting Compl. ¶ 16). And, while Defendants admit that John Oliver spoke of “Murray
Energy,” Def‟s Mem. at 21, Defendants fail to address the key aspects of the cases cited by
Plaintiffs in which courts allowed multiple companies known by a group name to pursue
defamation claims based on statements referencing that name. See Excellus Health Plan, Inc. v.
Tran, 287 F. Supp. 2d 167, 170 & 176 (W.D. N.Y. 2003) (various limited partnerships and
limited liability companies allowed to pursue defamation claims based on statements referring to
“Promedicus” where those entities were affiliated with the same health group); see also Conseco
Group Risk Management Co. v. Ahrens Fin. Systems, Inc., 2001 WL 219627, at **9-10 (N.D. Ill.
March 6, 2001) (defamatory statements regarding “Conseco” applied to a group of three different
corporate entities in the same organization).
Therefore, for this separate and independent reason as well, the non-diverse Plaintiffs are
proper parties and remand is required.
C.

Defendants’ Efforts To Dodge The Application Of The Universally Accepted
Mutual Defenses Doctrine Underscores That They Are Grasping At Straws.

On several levels, Defendants‟ attempt to avoid the mutual defenses doctrine in order to
try to apply the fair report privilege to certain allegations about a bonus program reinforces that
they have no legitimate justification for removal.
First, the mutual defenses doctrine – the principle that the fraudulent joinder analysis
cannot involve consideration of defenses that apply equally to “diverse and non-diverse” parties
alike – is both inherently logical and universally accepted. See McDowell Pharmacy, Inc. v.
(massive global enterprise involving diverse businesses); see also Church of Scientology Int’l v. Time
Warner, Inc., 806 F. Supp. 1157, 1161 (S.D.N.Y. 1992) (hundreds of entities). So too, the case involving
entities that are not part of the same organization is also irrelevant. See Alvord-Polk, Inc. v. F.
Schumacher & Co., 37 F.3d 996, 1016 (3d Cir. 1994) (entities not part of any cohesive organization).

9
10310172 v1

West Virginia CVS Pharmacy, L.L.C., 2012 WL 2192167, at *5 (S.D. W.V. June 14, 2012) (“The
court has found no circuits that have rejected the common defense rule when squarely presented
with it”). Defendants are relegated to arguing that Johnson v. American Towers, LLC, 781 F.3d
693 (4th Cir. 2015) eradicated the doctrine in this Circuit, sub silentio, and against the authority
of every other Circuit to address it. See Def‟s Mem. at 13. That simply cannot be, as the mutual
defenses doctrine was never even raised or mentioned in Johnson,4 and the Fourth Circuit has
mandated that “Judicial decisions do not stand as binding „precedent‟ for points that were not
raised, not argued, and hence not analyzed.” U.S. v. Rand, 835 F.3d 451, 463 (4th Cir. 2016).
The mutual defense doctrine therefore applies here, just as it does everywhere else. Indeed, it
has been recognized after Johnson that “No circuit has rejected the mutual defenses doctrine
when squarely presented with it.” Powers v. Wireless Horizon, Inc., 2017 WL 550581, at *7
(E.D. Mo. Feb. 10, 2017).
As such, Defendants‟ citation to a blog on the internet notwithstanding,5 Defendants‟
attempt to apply the fair report privilege to certain allegations about a bonus program is invalid
under the mutual defenses doctrine because that defense is equally applicable to the diverse and
non-diverse parties alike. See, e.g., Grinston v. Cypress Media, LLC, 2011 WL 833969, at *3
(S.D. Ill. Feb. 21, 2011) (holding that mutual defense rule barred application of fair report
privilege to fraudulent joinder analysis because that defense applies to “diverse and non-diverse”
parties “alike”).
Second, even if the mutual defenses doctrine somehow did not bar consideration of the
fair report privilege in the fraudulent joinder analysis, the fair report privilege would not apply
anyway to the relevant allegations about the bonus program. By definition, the fair report

4
5

Brief of Appellants, Johnson v. American Towers, 2013 WL 5402286 (Sept. 27, 2013).
See Def‟s Mem. at 14 (citing blogger‟s view of Johnson).

10
10310172 v1

privilege applies only to reports of government actions or proceedings, it does not cover “any
matter added to the report.” Tharp v. Media General, Inc., 2011 WL 13142634, at *2 (D. S.C.
Oct. 21, 2011) (citation omitted); see Horne v. WTVR, LLC, 2017 WL 1330200, at *5 (E.D. Va.
April 6, 2016) (fair report privilege did not apply because the defendant “did more than simply
report what” was said by the government).
Here, the defamatory statement about the bonus program is that “A few years back,
Murray proposed a program where miners could receive bonuses based on the amount of coal
they extracted.” See Ex. 2 to Def‟s Mem. at 22:11 to 22:17. That statement is not protected by
the fair report privilege because nowhere in the NLRB decision does it say that Mr. Murray
proposed a bonus program, let alone one where miners could receive bonuses based on the
amount of coal they extracted. See Ex. 5. And, that statement is defamatory because, as
explained in Plaintiffs‟ remand brief, Defendants never broadcasted that this program was at all
times predicated on safety compliance and performance measures. See Pl‟s Mem. at 4 (citing
Compl. ¶ 49). Indeed, Defendants omitted that the very title of the bonus program was the
“Safety and Production Bonus Plan.” Id. at 5. And Defendants failed to state that employees
found violating safety standards would face automatic disqualification from receiving bonuses
under the program. Id. Plaintiffs simply did not base their claims on the facts Defendants
summarized from the NLRB proceeding (i.e., that miners rejected a bonus program, sixty-two of
them voided their checks and a couple wrote vulgar messages on them, see Def‟s Mem. at 23).
As such, the fair report privilege would have no bearing even if its application were not barred
by the mutual defenses doctrine.
Third, even if consideration of the fair report privilege were not barred by the mutual
defenses doctrine, and even assuming it applied to the allegations about the bonus program, it

11
10310172 v1

would still be essentially irrelevant to whether the non-diverse Plaintiffs were fraudulently
joined. As Defendants themselves admit, they are in any event arguing that the fair report
privilege applies to a “single paragraph in the Complaint.” Def‟s Mem. at 23. And that solitary
paragraph concerns solely a bonus program, and has nothing to do with the primary basis of the
non-diverse Plaintiffs‟ claims, the false statements that their CEO lied about the true cause of
death of his coal miner employees that were killed while working for his organization.
That Defendants would argue that the Fourth Circuit silently eradicated a universally
accepted doctrine barring consideration of a defense where the defense would not be applicable
anyway, and even if it did apply, would only pertain to one paragraph of the complaint, further
demonstrates that they have no justification for removal.
III.

DEFENDANTS’ SHOULD PAY PLAINTIFFS’ COSTS AND FEES.
Perhaps recognizing that an award of fees and costs is warranted here given that they

have no “objectively reasonable basis for seeking removal,”6 Defendants argue that Plaintiffs
have waived their right to fees and costs by requesting them in their remand motion and not
separately arguing for them in their memorandum. See Def‟s Mem. at 24. But this contention by
Defendants is just as baseless as their removal. The sole case they cite in supposed support of
their waiver argument, dPi Teleconnect LLC v. Owens, 413 F. App‟x 641, 646 (4th Cir. 2011),
had nothing to do with removal or the district court‟s power to decide whether to award fees on
remand and concerned only the question of when an issue is waived on an appeal to the Fourth
Circuit.7 That is a critical difference because an award of attorneys‟ fees on remand is a

6

Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
Moreover, there was a waiver in dPi Teleconnect because there was no argument on an issue in that
appeal in either the opening brief or on reply. See id. at 646. Plaintiffs, of course, are expressly arguing
in their reply brief, and are addressing the relevant question – whether Defendants had an objectively
reasonable basis for removal – at the logical time, after Defendants have had the opportunity to fully set
forth their bases for removal in their memorandum.
7

12
10310172 v1

collateral issue that can be addressed not only where it is not argued in the remand papers, but
can indeed be raised by a separate motion in the district court – even after the case has already
been remanded to state court. See Stallworth v. Greater Cleveland Regional Transit Authority,
105 F.3d 252, 255-57 (6th Cir. 1997) (holding district court could issue an award of fees and
costs on a motion filed after remand). There is, therefore, no waiver.
As discussed more fully above, Defendants have demonstrated that they had no
objectively reasonable basis for removal because they have not even been able to address the
actual claims made by the non-diverse Plaintiffs. With no legitimate justification for removal,
and no alternative short of consenting to remand, Defendants have been forced to pretend that
Plaintiffs have taken positions they never did. What is more, when the non-diverse Plaintiffs‟
actual claims are considered, fundamental and well-established principles dictate that they are
proper parties. The non-diverse Plaintiffs obviously have far more than the glimmer of hope of a
slight possibility of relief that is itself sufficient to show that removal was improper, and an
award of their fees and costs is therefore appropriate. See, e.g., Loudin v. J.P. Morgan Trust Co.,
481 B.R. 388, 396 (S.D. W.Va. 2012) (granting fees and costs because Defendant‟s only
argument for removal was unreasonable); see also Caufield v. EMC Mortgage Corp., 803 F.
Supp. 2d 519, 529-30 (S.D. W.Va. 2011) (granting fees and costs and explaining that “The
purpose of awarding attorneys‟ fees upon remand is to reimburse a party for the costs associated
with responding to an improper removal.”) (citation omitted).
This is especially so because, not only are the non-diverse Plaintiffs‟ claims based on
longstanding principles of defamation law, but Defendants had to know this because they share
certain of the same outside counsel representing the New York Times in The Marshall County

13
10310172 v1

Coal Co., et. al, v. The New York Times Co.8 At the time they removed, Defendants knew from
the briefing in the New York Times case that the claims of the corporate Plaintiffs here – the
same as those that have filed suit in the New York Times case – are grounded in firmly
established tenets of defamation law. What is more, Defendants also knew that the non-diverse
Plaintiffs did not sue in this case to defeat diversity, as those same Plaintiffs had just sued the
New York Times in that case where they were completely diverse and the matter was removed
without objection. Defendants have no real response to this point in their brief opposing remand,
stating in one breath that the non-diverse Plaintiffs were joined “for the sole purpose of defeating
diversity jurisdiction” and then undercutting their own assertion with the statement that “it is
unnecessary to consider all of Plaintiffs‟ potential motives.” Def‟s Mem. at 3 & 9 n.5.
On top of the fact that Defendants must have known removal was inappropriate, given
that Defendants also filed their improper notice of removal less than a week before the scheduled
hearing on Plaintiffs‟ motion for a temporary restraining order, an award of fees and costs is all
the more warranted.
IV.

CONCLUSION
Plaintiffs motion to remand should be granted, with an award of the requested fees and

costs.

8

5:17-cv-79 (N.D. W. Va. (filed May 3, 2017).

14
10310172 v1

Dated: July 28, 2017

Respectfully submitted,

/s/ Jeffrey A. Grove
Of Counsel for Plaintiff
Jeffrey A. Grove, Esq. (#6065)
David L. Delk, Jr., Esq. (#6883)
GROVE, HOLMSTRAND & DELK, PLLC
44 1/2 15th Street
Wheeling, WV 26003
[phone]
[phone] (facsimile)

15
10310172 v1

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.: 5:17-CV-99
Judge John Preston Bailey

Plaintiffs,
CIVIL ACTION NO. 17-C124

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

Judge Cramer
(Marshall County Circuit
Court)

Defendants.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Service of the foregoing PLAINTIFFS’
REPLY IN SUPPORT OF THEIR MOTION TO REMAND was electronically filed
with the Clerk of this Court on the 28th day of July, 2017, by using the CM/ECF system
who shall provide electronic notice of such filing to the following:
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
(Counsel for Home Box Office, Inc.)
__/s/ Jeffrey A. Grove
Of 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
[phone] / [phone] (facsimile)
16
10310172 v1