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

Filing 22

REPLY to Response to Motion re 21 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Plaintiffs' Reply Regarding Their Motion for a Temproary Restraining Order filed by Robert E. Murray. (Grove, Jeffrey)

Case 5:17-cv-00099-JPB Document 22 Filed 07/28/17 Page 1 of 4 PageID #: 911

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

CIVIL ACTION NO. 17-C124
Judge Cramer
(Marshall County Circuit
Court)

Defendants.
PLAINTIFFS’ REPLY REGARDING
THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER
Five days before a scheduled state court hearing on Plaintiffs’ motion for a temporary
restraining order and preliminary injunction (the “Motion”), and on the brink of the July 4th
holiday weekend, Defendants avoided that hearing by purporting to invoke this Court’s
jurisdiction. Nearly a month has passed since Plaintiffs filed their Motion and Defendants just
now have responded (without offering any explanation for their delay). Nevertheless, given the
baseless contentions asserted by the Defendants in their attempts to escape the West Virginia
state courts, and the clear authorities belying those contentions, this Court is without jurisdiction
over this case and cannot properly decide the Motion.
A Federal court lacking jurisdiction over an action also lacks jurisdiction to decide the
merits of any part of that action. See Roach v. West Va. Regional Jail & Correctional Facility
Auth., 74 F.3d 46 (4th Cir. 1996) (reversing the district court for granting defendants’ motion to

10318002 v2

Case 5:17-cv-00099-JPB Document 22 Filed 07/28/17 Page 2 of 4 PageID #: 912

dismiss where action should have been remanded). Courts accordingly have refused to rule on
pending temporary restraining orders and preliminary injunctions in circumstances such as this.
See, e.g., New Day Fin., LLC v. Katz, Civil No. CCB-15-2245, 2015 U.S. Dist. LEXIS 114289 at
*12 (D. Md. Aug. 28, 2015) (“This court prefers not to opine on an exigent dispute when its
jurisdiction remains in doubt.”); Red Barn Farms, LLC v. GE Capital Corp., No. 1:09CV747,
2011 U.S. Dist. LEXIS 23213 at *22 (N.C.M.D. Mar. 8, 2011) (refusing to consider motion for
temporary restraining order and preliminary injunction where jurisdiction over action was
lacking); Time Warner Entertainment v. Foster Mgmt., 1:96CV00347, 1996 U.S. Dist. LEXIS
14587 *12-13 (“Because this Court did not have jurisdiction over this case, it could not rule on
the merits of [Plaintiff’s preliminary injunction] motion.”); BJT, Inc. v. Molson Breweries USA,
848 F. Supp. 54, 57 (E.D.N.C. 1994) (“In light of the court's resolution of plaintiff's motion to
remand, this court lacks jurisdiction to hear the defendants' motion to dissolve the temporary
restraining order.”); Osborne v. Osborne, 554 F. Supp. 566, 569 (D. Md. 1982) (“The above
canvassing of elementary authorities requires that defendant’s removal petition borders on the
frivolous. As a consequence, no federal jurisdiction exists and remand is mandatory under 28
U.S.C. § 1447(c). Defendant's motion for a temporary restraining order will not be considered.”).
For the reasons set forth in Plaintiff’s Memorandum of law in Support of Plaintiff’s
Motion to Remand [Docket No. 4, filed on July 7, 2017] and Plaintiff’s Reply in Support of
Their Motion to Remand [Docket No. 20, filed on July 28, 2017], the Court lacks jurisdiction
over this action. As such, the Court also cannot properly decide the Motion, which jurisdiction is
properly vested in the state courts of West Virginia.

Case 5:17-cv-00099-JPB Document 22 Filed 07/28/17 Page 3 of 4 PageID #: 913

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)

Case 5:17-cv-00099-JPB Document 22 Filed 07/28/17 Page 4 of 4 PageID #: 914

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 REGARDING THEIR MOTION FOR A TEMPORARY RESTRAINING
ORDERwas 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)