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

Filing 21

MEMORANDUM OPINION AND ORDER pursuant to the civil actions referenced herein, denying the 9 MOTION by George White to Dismiss 1 Declaratory Judgment Action and MOTION for Judgment on the Pleadings, and as more fully set forth herein; the guardians ad litem are excused from further duties or appearances in the actions herein. Signed by Judge John T. Copenhaver, Jr. on 7/2/2015. (cc: counsel of record; guardians ad litem; any unrepresented parties) (tmh)

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.

2

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

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

Civil Action No. 2:15-05009

MICHAEL THORNSBURY and
TINA GRACE and
LARRY GRACE,
Defendants.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.

Civil Action No. 2:15-05012

C. MICHAEL SPARKS and
TINA GRACE and
LARRY GRACE,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending in these actions are sixteen motions filed in
the early stages of the cases.
legal issues.

Some of the motions present common

It appears the matters have matured and are best

adjudicated in tandem.

For ease of reference for counsel, and for

the Clerk in terminating the motions from the docket, the matters
are set forth in tabular form below with their filing date and
docket number:
Case Number
2:14-30063

Motion
Filed
By Wesley Kent Varney to
06/01/2015
be excused.

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Docket Entry
17

2:14-30095

2:14-30095

2:14-30098

2:14-30105
2:14-30105

2:14-30127

2:14-30127

2:14-30221

2:14-30221
2:14-30221

2:14-30230

2:14-30230

Motion by Candice Harper
to dismiss or for
judgment on the
pleadings.
Motion by Candice Harper
to extend the time for
her Rule 26(a)(1)
disclosures.
Motion by Donald Ray and
Ruby Stevens to dismiss
or for judgment on the
pleadings.
Motion by Donald Ray and
Ruby Stevens to dismiss
or for judgment on the
pleadings.
By Wesley Kent Varney to
be excused.
Motion by Deloris "Dee"
Sidebottom to dismiss
declaratory judgment
action and for judgment
on the pleadings
Motion by Deloris “Dee”
Sidebottom to extend the
time for her Rule
26(a)(1) disclosures.
Motion by Deloris "Dee"
Sidebottom to dismiss
declaratory judgment
action and for judgment
on the pleadings
Motion by Deloris “Dee”
Sidebottom to extend the
time for her Rule
26(a)(1) disclosures.
By Wesley Kent Varney to
be excused.
Motion by Devco Building
and Construction, Inc.,
and David Heath Ellis
to dismiss declaratory
judgment action and for
judgment on the
pleadings
Motion by Devco Building
and Construction, Inc.,
5

02/06/2015

7

06/16/2015

23

03/02/2015

8

03/02/2015

7

06/01/2015

18

05/19/2015

15

06/16/2015

22

02/06/2015

8

06/16/2015

20

06/01/2015

18

05/19/2015

15

06/16/2015

24

2:14-30287

2:14-30295

2:14-30295

2:15-05009
2:15-05012

and David Heath Ellis to
extend the time for
their Rule 26(a)(1)
disclosures.
Motion by George White
to dismiss or for
03/13/2015
judgment on the
pleadings.
Motion by Devco Building
and Construction, Inc.,
and David Heath Ellis
to dismiss declaratory
05/19/2015
judgment action and for
judgment on the
pleadings
Motion by Devco Building
and Construction, Inc.,
and David Heath Ellis to
06/16/2015
extend the time for
their Rule 26(a)(1)
disclosures.
No motions pending.
No motions pending.

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12

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The motions to dismiss or for judgment on the pleadings
may be separated into two categories.
common contention.

The first raise a single,

For example, the motion to dismiss filed by

Candice Harper in civil action 2:14-30095 asserts that the
declaratory judgment complaint actually confesses a defense and
coverage obligation for the alleged wrongdoing committed by
defendant Michael Thornsbury.

National Union responds, however,

that Ms. Harper has omitted its allegation that Mr. Thornsbury was
not acting within the scope of his duties as a circuit judge when
he committed the wrongdoing alleged, meaning that he would be
entitled neither to a defense or coverage obligation under the

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policy.

The same response is offered to the identical contention

made by the other movants making this single contention.
National Union is correct that evidentiary development
of the scope issue is necessary.

It is, accordingly, ORDERED that

Ms. Harper’s motion to dismiss or for judgment on the pleadings,
along with the motions of the same character found in civil
actions 2:14-30127, 2:14-30221, 2:14-30230, and 2:14-30295, be,
and hereby are, denied.
The second category of motions consist of two
contentions.

The first contention is the same as that discussed

in the motions denied in the paragraph immediately preceding.
the same reasons, the contention is not meritorious.

For

The second

contention is based in abstention principles, with the moving
parties asserting that the applicable factors weigh in favor of
declining the exercise of jurisdiction.

For example, the motions

to dismiss filed by Donald and Ruby Stevens in civil actions 2:1430098 and 2:14-30105 assert that this action should be dismissed
on abstention grounds in favor of ongoing state litigation
alleging constitutional and common law tort claims.
Under the Declaratory Judgment Act, a federal court “may
declare the rights and other legal relations” of parties to “a
case of actual controversy within its jurisdiction[.]”

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28 U.S.C.

§ 2201(a).

As that language indicates, and as our court of

appeals has often noted, the decision “to assert jurisdiction over
declaratory judgment actions” is a discretionary one.

United

Capitol Ins. Co. v. Kapiloff, 155 F.3d 488, 493 (4th Cir. 1998)
(internal quotation marks and citation omitted).

When exercising

that discretion, “district courts must [] take into account
‘considerations of federalism, efficiency, and comity,’” if “a
parallel proceeding is pending in state court[.]”

See id.

(quoting Nautilus Ins. Co. v. Winchester Homes, Inc., 15 F.3d 371,
376 (4th Cir. 1994)).

Four factors guide the court’s inquiry:

(1) whether the state has a strong interest in having the
issues decided in its courts; (2) whether the state courts
could resolve the issues more efficiently than the federal
courts; (3) whether the presence of “overlapping issues of
fact or law” might create unnecessary “entanglement”
between the state and federal courts; and (4) whether the
federal action is mere “procedural fencing,” in the sense
that the action is merely the product of forum-shopping.
Id. (quoting Nautilus, 15 F.3d at 377); see also VRCompliance LLC
v. HomeAway, Inc., 715 F.3d 570, 573-75 (4th Cir. 2013) (reciting
and applying the Kapiloff/Nautilus factors).
The first and fourth factors weigh in favor of retaining
jurisdiction.

As for the first, there appears to be no

particularly strong state interest in adjudicating the insurance
coverage claims at issue.

See Great Am. Ins. Co. v. Gross, 468

F.3d 199, 211 (4th Cir. 2006) (“[T]he questions of state law
raised in the federal action are not difficult or problematic;

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instead, they involve the routine application of settled
principles of insurance law to particular disputed facts.”).
Regarding the fourth factor, it does not appear that National
Union engaged in “procedural fencing” by “rac[ing] to federal
court in an effort to get certain issues that [we]re already
pending before the state courts resolved first in a more favorable
forum,” id. at 211.

Indeed, National Union notes “the claims set

forth in the present declaratory judgment action[s] are not being
litigated in the Underlying Action[s].”

(Resp. at 8).

According

to National Union, “this Court is the only Court that has been
asked to resolve the question of whether insurance coverage exists
under the National Union policy.”

(Id. at 8-9).

The movants do

not challenge that contention.
The same result obtains with the second factor.

Our

court of appeals has explained that, “where two parallel suits are
pending in state and federal court, the first suit should have
priority, absent the showing of balance of convenience in favor of
the second action.”
citation omitted).

Id. at 574 (internal quotation marks and
Inasmuch as the defense and indemnity

questions have not been placed before the state court, the actions
are not parallel.

This same consideration resolves the third

factor in National Union’s favor as well, inasmuch as the minimal

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overlap of factual issues between the state and federal cases
presents little to no concern respecting entanglement.
Inasmuch as the applicable factors weigh in favor of
retained jurisdiction, it is ORDERED that the Stevens’ motions to
dismiss or for judgment on the pleadings in civil actions 2:1430098 and 2:14-30105, along with the same types of motions to
dismiss found in civil action 2:14-30287, be, and hereby are,
denied.
The motions by various parties in civil actions 2:1430095, 2:14-30127, 2:14-30221, 2:14-30230, 2:14-30295, for an
extension of time are based upon an illness in a certain defense
counsel’s family, along with the press of their counsels’ other
case-related responsibilities.

Finding good cause, it is ORDERED

that the motions to extend the time for Rule 26(a)(1) disclosures
be, and hereby are, granted.

The time is extended to and

including July 10, 2015.
The court additionally notes that guardians ad litem
have been appointed as follows for the limited purpose of effecting
service of process on the defendants indicated:
Case Number
2:14-30063
2:14-30105
2:14-30221
2:14-30287
2:15-05012

Defendant
Michael Sparks
Michael Sparks
Michael Sparks
David Baisden
Michael Sparks

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Guardian ad litem
Wesley Kent Varney
Wesley Kent Varney
Wesley Kent Varney
James Cagle
Wesley Kent Varney

The guardians ad litem were directed to obtain from Mr.
Sparks and Mr. Baisden their signed notification respecting
whether they are engaging counsel to represent them in the
relevant actions.

Mr. Sparks has not responded as directed.

He

presently resides in a halfway house and his expected release date
is August 12, 2015.

Mr. Baisden advised the court in writing that

he intends to proceed without counsel.

He is scheduled for

release from FCI Butner on November 25, 2015.

It is, accordingly,

ORDERED that the motions by Wesley Kent Varney to be excused from
hearings be, and hereby are, granted and the guardians ad litem
are excused from further duties or appearances in the
aforementioned actions.

The Clerk is directed to transmit a copy of this order
to all counsel of record, the guardians ad litem, and any
unrepresented parties.
ENTER: July 2, 2015
John T. Copenhaver, Jr.
United States District Judge

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