National Union Fire Insurance Company of Pittsburgh, PA v. Thornsbury et al

Filing 10

MEMORANDUM OPINION AND ORDER these nine civil actions were filed on or about 12/16/2014 and are in varying stages of development; pursuant to the 8 MOTION by Donald Ray Stevens and Ruby Stevens to dismiss and for judgment on the pleadings, direct ing that Michael Thornsbury file a responsive pleading or otherwise move by 3/10/2015; Wesley Kent Varney is appointed as guardian ad litem for Michael Sparks and James M. Cagle is appointed as guardian ad litem for David Baisden; the appointments ar e for the limited purpose of effecting service of process and the guardians forthwith delivery of a copy of that which is served upon them to Mr. Sparks and Mr. Baisden, together with prompt notification to the court that they have done so; such noti fication is to be accompanied by a writing signed by each defendant as to whether they are engaging counsel to represent them in this action; counsel for the parties who have appeared are directed to meet and confer by 3/20/2015 to discuss the suitab ility of consolidating these cases, or common issues found therein, for adjudication of any matters that are found to recur in all or a majority of these civil actions; and counsel are directed to report in writing to the court by 4/1/2015 respecting a proposed plan. Signed by Judge John T. Copenhaver, Jr. on 3/6/2015. (cc: counsel of record; guardians ad litem; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30063

MICHAEL SPARKS and
CARL CONLEY,
an individual,
Defendants.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30095

MICHAEL THORNSBURY and
CANDICE HARPER,
Defendants.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30098

MICHAEL THORNSBURY
DONALD RAY STEVENS and
RUBY STEVENS,
Defendants.

NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30105

MICHAEL SPARKS
DONALD RAY STEVENS and
RUBY STEVENS,
Defendants.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30127

MICHAEL THORNSBURY and
DELORIS “DEE” SIDEBOTTOM
Defendants.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30221

MICHAEL SPARKS
DELORIS “DEE” SIDEBOTTOM,
Defendants.

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NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30230

MICHAEL THORNSBURY and
DAVID HEATH ELLIS
DEVCO BUILDING AND CONSTRUCTION, INC.,
a West Virginia Corporation,
Defendants.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30287

DAVID BAISDEN and
GEORGE WHITE,
Defendants.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:14-30295

JARROD FLETCHER and
DAVID HEATH ELLIS and
DEVCO BUILDING AND CONSTRUCTION, INC.,
a West Virginia Corporation
MEMORANDUM OPINION AND ORDER
These nine civil actions were filed on or about
December 16, 2014.

They are in varying stages of development.

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On December 16, 2014, civil action 2:14-30063 was
instituted.

On January 14, 2015, National Union Fire Insurance

Company of Pittsburgh, PA, (“NUFIC”) moved to appoint a guardian
ad litem to represent defendant Michael Sparks.

On February 11,

2015, defendant Carl Conley filed an “Opposition” to the request
for declaratory judgment, followed on February 23, 2015, by
NUFIC’s response thereto.

No reply has been received.

John

Patrick L. Stephens represents Mr. Conley.
On December 17, 2014, civil action 2:14-30095 was
instituted.

On February 6, 2015, defendant Candice Harper moved

to dismiss and for judgment on the pleadings, followed on
February 18, 2015, by NUFIC’s response thereto.
been received.

No reply has

The motion asserts that the applicable policy of

insurance provides coverage for the wrongs alleged by Ms. Harper
against Mr. Thornsbury.

Mr. Thornsbury is required to file a

responsive pleading or otherwise move on or before March 10,
2015.

Mr. Thornsbury is represented by Guy R. Bucci.

Ms.

Harper is represented by Michael O. Callaghan and Joshua R.
Martin.
On December 17, 2014, civil action 2:14-30098 was
instituted.

On March 2, 2015, defendants Donald Ray Stevens and

Ruby Stevens moved to dismiss.

The motion asserts that the

applicable policy of insurance provides coverage for the wrongs

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alleged by the Stevens against Mr. Thornsbury and that the court
should abstain from the controversy.

Mr. Thornsbury is required

to file a responsive pleading or otherwise move on or before
March 10, 2015.

Mr. Thornsbury is represented by Mr. Bucci.

The Stevens are represented by Kevin W. Thompson and David R.
Barney, Jr.
On December 17, 2014, civil action 2:14-30105 was
instituted.

On March 2, 2015, defendants Donald Ray Stevens and

Ruby Stevens moved to dismiss.

The motion is similar, if not

identical, in substance to that filed by the Stevens in civil
action 2:14-30098.

Mr. Sparks has not been served and NUFIC has

not moved for the appointment of a guardian ad litem.

The

Stevens are represented by Mr. Thompson and Mr. Barney.
On December 17, 2014, civil action 2:14-30127 was
instituted.

Mr. Thornsbury is required to file a responsive

pleading or otherwise move on or before March 10, 2015.
Sidebottom has not been served.

Ms.

Mr. Thornsbury is represented

by Mr. Bucci.
On December 17, 2014, civil action 2:14-30221 was
instituted.
litem.

On January 14, 2015, NUFIC moved for a guardian ad

On February 6, 2015, Ms. Sidebottom moved to dismiss,

followed on February 13, 2015, by NUFIC’s response thereto.

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No

reply has been received.

The motion asserts that the applicable

policy of insurance provides coverage for the wrongs alleged by
Ms. Sidebottom against Mr. Sparks.

Ms. Sidebottom is

represented by Mr. Callaghan and Mr. Martin.
On December 17, 2014, civil action 2:14-30230 was
instituted.

Mr. Thornsbury is required to file a responsive

pleading or otherwise move on or before March 10, 2015.

It does

not appear that the remaining defendants have been served.

Mr.

Thornsbury is represented by Mr. Bucci.
On December 17, 2014, civil action 2:14-30287 was
instituted.

On February 16, 2015, counsel appeared for

defendant George White.
Thompson and Mr. Barney.

Mr. White is represented by Mr.
It does not appear that service has

been accomplished upon defendant David Baisden, who is presently
incarcerated.
On December 17, 2014, civil action 2:14-30295 was
instituted.
answered.

On February 26, 2015, defendant Jarod Fletcher

He is represented by Robert B. Kuenzel.

It does not

appear that the remaining defendants have been served.
One impediment to the just, speedy and final
adjudication of this action is the absence of those defendants
who are presently in custody and unserved, namely, Mr. Sparks

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and Mr. Baisden.

The Federal Rules of Civil Procedure require

that federal courts follow state law regarding who has the
capacity to be sued.

Rule 17(b)(1) provides that “[c]apacity to

sue or be sued is determined . . . for an individual who is not
acting in a representative capacity, by the law of the
individual’s domicile,” which appears to be West Virginia as
opposed to the places of incarceration.
17(b)(1).

Fed. R. Civ. P.

The West Virginia Rules of Civil Procedure require

that when a civil suit is brought against an incarcerated
person, service be made on
that person’s committee, guardian, or like fiduciary . . .
or, if there be no such committee, guardian, or like
fiduciary . . . service of process shall be made upon a
guardian ad litem appointed under Rule 17(c).
W. Va. R. Civ. P. 4(d)(4).
Additionally, West Virginia Rule of Civil Procedure
17(c) provides as follows:
Whenever an infant, incompetent person, or convict has a
representative, such as a general guardian, curator,
committee, conservator, or other like fiduciary, the
representative may sue or defend on behalf of the infant,
incompetent person, or convict. An infant, incompetent
person, or convict who does not have a duly appointed
representative may sue by a next friend or by a guardian ad
litem. The court or clerk shall appoint a discreet and
competent attorney at law as guardian ad litem for an
infant, incompetent person, or convict not otherwise
represented in an action, or shall make such other order as
it deems proper for the protection of the infant,
incompetent person, or convict. A guardian ad litem is
deemed a party for purposes of service; failure to serve a
guardian ad litem in circumstances where service upon a

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party is required constitutes failure to serve a party.
W. Va. R. Civ. P. 17(c).

West Virginia Rule 17(c) is in accord

with state statutory and decisional law.

See W. Va. Code § 28-

5-36; Quesinberry v. Quesinberry, 191 W.Va. 65, 70 (1994);
Craigo v. Marshall, 175 W. Va. 72, 75-76 (1985).

The law

regarding capacity of prisoners was “enacted to alleviate the
harsh common law rule allowing a convict to be sued, but not to
appear in court to defend his case.”

Craigo, 175 W. Va. at 74.

In accordance with these authorities, the court will
appoint guardians ad litem for Mr. Sparks and Mr. Baisden for
the limited purpose of effecting service upon them.
For the reasons stated, it is ORDERED that Wesley Kent
Varney be, and hereby is, appointed as guardian ad litem for Mr.
Sparks and James M. Cagle be, and hereby is, appointed as
guardian ad litem for Mr. Baisden.

The appointments are for the

limited purpose of effecting service of process and the
guardians forthwith delivery of a copy of that which is served
upon them to Mr. Sparks and Mr. Baisden, together with prompt
notification to the court that they have done so.

Such

notification is to be accompanied by a writing signed by each
defendant as to whether they are engaging counsel to represent
them in this action.

It is further ORDERED as follows:

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1.

That counsel for the parties who have appeared be, and
hereby are, directed to meet and confer on or before
March 20, 2015, to discuss the suitability of
consolidating these cases, or common issues found
therein, for adjudication of any matters that are
found to recur in all or a majority of the abovestyled civil actions; and

2.

That counsel be, and hereby are, directed to report in
writing to the court on or before April 1, 2015,
respecting a proposed plan for such a complete or
partial consolidation.

The Clerk is directed to transmit a copy of this
written opinion and order to all counsel of record, the
guardians ad litem, and any unrepresented parties.
ENTER:

March 6, 2015

John T. Copenhaver, Jr.
United States District Judge

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