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

Filing 29

OBJECTIONS Plaintiffs' Objection to the Motion for Leave to File Brief Amicus Curiae to 26 MOTION for Leave to File Brief Amicus Curiae by Robert E. Murray. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Grove, Jeffrey)

Case 5:17-cv-00099-JPB Document 29 Filed 08/07/17 Page 1 of 5 PageID #: 972

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’ OBJECTION TO THE
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
Plaintiffs object to the Motion for Leave to File Brief Amicus Curiae (Doc. No. 26) (the
“Motion”) filed by the American Civil Liberties Union of West Virginia Foundation (the
“ACLU”). As set forth in Plaintiffs’ Reply Regarding Their Motion for a Temporary Restraining
Order (Doc. No. 22), which is hereby incorporated by reference, Plaintiffs respectfully object to
the Court granting any relief other than remand in this case, including allowing the ACLU to
interject its biased views, because this Court does not have subject matter jurisdiction over this
action.
Further, the Motion fails to cite any legal authority whatsoever that might permit the
ACLU to serve as amicus curiae in this case. The Motion cites only to Rule 29(a) of the Federal
Rules of Civil Procedure, which says nothing of amicus curiae briefs, and is wholly irrelevant.
Had the ACLU cited to the relevant case law concerning potential amicus briefs in district courts,

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Case 5:17-cv-00099-JPB Document 29 Filed 08/07/17 Page 2 of 5 PageID #: 973

those authorities, as discussed below, would have revealed that courts exercising their discretion
on such matters appropriately consider whether a proposed amicus is biased.1
More troubling, the ACLU fails to disclose its indisputable and disqualifying bias,
notwithstanding that several district courts have noted that impartiality is a key factor to consider
when evaluating whether to permit a non-party to serve as amicus curiae. See, e.g., United
States v. Gotti, 755 F. Supp. 1157, 1159 (E.D.N.Y. 1991) (denying motion because “[r]ather than
seeking to come as a „friend of the court‟ and provide the court with an objective, dispassionate,
neutral discussion of the issues, it is apparent that the NYCLU has come as an advocate for one
side.”); Lehigh v. Engle, 535 F. Supp. 418, 420 (N.D. Ill. 1982) (holding that at trial court level,
“if the proffer comes from an individual with a partisan, rather than an impartial view, the
motion for leave to file an amicus brief is to be denied.”).
From the tone of its brief alone, it is obvious that the ACLU is not a “friend of the court”
offering a dispassionate view of the issues. Moreover, the ACLU‟s economic motivations for
assisting Defendants and its prejudice against Plaintiffs are a matter of public record. As for its
economic interests, in November of 2016, Defendant Oliver used “Last Week Tonight with John
Oliver” to encourage viewers to donate to numerous left-leaning organizations, which—not
surprisingly—resulted in an immediate surge of millions of dollars in donations to the ACLU,
among others. See Exhibit A hereto. Defendant Time Warner furthered the effort to add to the
ACLU‟s coffers by reporting on Oliver‟s call for donations the next day. See Exhibit B hereto.
Consequently, the ACLU‟s statement in the Motion that “no party, party‟s counsel, or other
person…contributed money intended to fund preparing or submitting the brief” lacks appropriate

1

The bias factor, as applied by district courts, is not set forth in Federal Rule of Appellate Procedure 29,
which of course governs appellate proceedings anyway, and therefore can only be used by district courts
for guidance in some respects. As such, regardless of whether the ACLU meant to cite to the Rule of
Appellate Procedure rather than the Civil Rule, its presentation of the pertinent standard is incomplete.

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Case 5:17-cv-00099-JPB Document 29 Filed 08/07/17 Page 3 of 5 PageID #: 974

and complete disclosure. And with respect to the ACLU‟s political bias and prejudice against
Plaintiffs, that is on public display, and can be easily gleaned from the vulgar language on
Exhibit C.

Dated: August 7, 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)
Eric Baisen, Esq. (pro hac vice)
William M. Alleman, Jr., Esq. (pro hac vice)
Michael J. Barrie, Esq. (pro hac vice)
Benesch, Friedlander, Coplan & Aronoff
222 Delaware Avenue
Suite 801
Wilmington, DE 19801
[phone]

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Case 5:17-cv-00099-JPB Document 29 Filed 08/07/17 Page 4 of 5 PageID #: 975

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.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Service of the foregoing PLAINTIFFS’
OBJECTION TO THE MOTION FOR LEAVE TO FILE BRIEF AMICUS
CURIAE was electronically filed with the Clerk of this Court on the 7th day of August,
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
Kevin T. Baine (pro hac vice)
Thomas G. Hentoff (pro hac vice)
Williams & Connolly, LLP
725 Twelfth Street NW
Washington, DC 20005
(Counsel for Home Box Office, Inc.)

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Case 5:17-cv-00099-JPB Document 29 Filed 08/07/17 Page 5 of 5 PageID #: 976

__/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)
Eric Baisen, Esq. (pro hac vice)
William M. Alleman, Jr., Esq. (pro hac vice)
Michael J. Barrie, Esq. (pro hac vice)
Benesch, Friedlander, Coplan & Aronoff
222 Delaware Avenue
Suite 801
Wilmington, DE 19801
[phone]

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