National Union Fire Insurance Co. of Pittsburgh, PA et al v. Southern Coal Corporation

Filing 34

ORDER FOR APPEARANCE AND EXAMINATION directing an examination of Southern Coal in aid of execution is set for 8/2/2019 11:00 AM in Charleston before Magistrate Judge Dwane L. Tinsley; one or more representatives of the judgment debtor Southern C oal are hereby Ordered to appear as more fully set forth herein; further directing the issuance of a summons to Southern Coal to appear at the aforementioned date and time shall be served on counsel of record for Southern Coal; Southern Coal sh all answer upon oath such questions as shall be propounded by counsel for National Union, or by the said Magistrate, and to convey or assign to the United States Marshal for the Southern District of West Virginia such money, bank notes, securities , evidences of debt, other personal property, choses in action or other intangible personal property as may be ordered for the enforcement and payment of the judgment, including interest and costs, outstanding. Signed by Magistrate Judge Dwane L. Tinsley on 6/18/2019. (cc: counsel of record) (ts)

Case 2:18-mc-00048 Document 34 Filed 06/18/19 Page 1 of 4 PageID #: 174

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

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Civil Action No. 2:18-mc-00048

ORDER FOR APPEARANCE AND EXAMINATION
Plaintiff National Union Fire Insurance Company of Pittsburgh, PA (“National Union”)
caused a Writ of Execution to issue against judgment debtor Southern Coal Corporation (“Southern
Coal”) by the Clerk of this Court on July 9, 2018. “The procedure on execution – and in
proceedings supplementary to and in aid of judgment or execution – must accord with the
procedure of the state where the court is located . . . .” Fed. R. Civ. Proc. 69(a).
Under West Virginia law, a judgment creditor is entitled to “institute interrogatory
proceedings before a ‘commissioner in chancery’ . . . to enforce an existing judgment.” U.S.
Foodservice, Inc. v. Donahue, No. 3:10-CV-00183, 2010 WL 5067939, at *1 (S.D.W. Va.
Dec. 3, 2010).
More precisely, W. Va. Code § 38-5-1 provides that:
upon application of the execution creditor, the clerk of the court from which the
execution issued . . . shall issue a summons against the execution debtor, or any
officer of a corporation execution debtor having an office in this State . . . requiring
the execution debtor to appear before a commissioner in chancery of the county
from which the summons issued . . . to answer upon oath such questions as shall be
propounded at such time and place by counsel for the execution creditor, or by the
commissioner.

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Because “there is no ‘commissioner’ in the federal judicial system, federal courts have
ruled that a magistrate judge may serve in that role for purposes of conducting proceedings in aid
of execution under West Virginia Code § 38–5–1.” U.S. Foodservice, Inc. v. Donahue, No. 3:10cv-183, 2010 WL 5067939, at *1 (S.D.W. Va. Dec. 3, 2010); see also Chicago Pneumatic Tool
Co. v. Stonestreet, 107 F.R.D. 674 (S.D.W. Va. 1985); Byron Originals, Inc. v. Iron Bay Model
Co., No. 5:05-cv-82, 2006 WL 1004827, at *1 (N.D.W. Va. Apr. 12, 2006). Magistrate judges in
this district have frequently been appointed to preside over proceedings in aid of execution, as part
of the need to “modif[y] state procedure to conform with federal practice.” Clark v. Wilbur, 913
F. Supp. 463, 468 (S.D.W. Va. 1996), aff'd sub nom. Clark v. Allen, 139 F.3d 888 (4th Cir. 1998).
The parties are notified that an examination of Southern Coal in aid of execution will
commence on the 2nd day of August, 2019, at 11:00 a.m., at the Robert C. Byrd United States
Courthouse, 300 Virginia Street, East, Room 5400, Charleston, West Virginia. The examination
will be conducted by counsel for National Union, with the participation of the United States
Magistrate Judge acting as Special Commissioner. One or more representatives of the judgment
debtor Southern Coal are hereby Ordered to appear at the date and time specified herein to testify
under oath and furnish information to aid in enforcement of the money judgment or to answer
concerning property or debt. It is the duty of Southern Coal to designate one or more of the
following to appear and be examined: officers, directors, managing agents, or other persons who
are familiar with the property and debts of Southern Coal. The deposition shall be taken before a
Certified Shorthand Reporter or other qualified notary.
It is FURTHER ORDERED that the issuance of a summons to Southern Coal to appear at
the aforementioned date and time shall be served on counsel of record for Southern Coal. Southern
Coal shall answer upon oath such questions as shall be propounded by counsel for National Union,
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Case 2:18-mc-00048 Document 34 Filed 06/18/19 Page 3 of 4 PageID #: 176

or by the said Magistrate, and to convey or assign to the United States Marshal for the Southern
District of West Virginia such money, bank notes, securities, evidences of debt, other personal
property, choses in action or other intangible personal property as may be ordered for the
enforcement and payment of the judgment, including interest and costs, outstanding in the above
matter.
The Clerk is directed to transmit a copy of this Order to counsel of record.
18th
ENTER: June ________, 2019

______________________________________
Dwane L. Tinsley
United States Magistrate Judge

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Case 2:18-mc-00048 Document 34 Filed 06/18/19 Page 4 of 4 PageID #: 177

Submitted by:
Richard F. Shearer
Shook, Hardy & Bacon L.L.P.
2555 Grand Blvd.
Kansas City, MO 64108
Stuart A. McMillan
William Lorensen
Bowles Rice LLP
600 Quarrier Street
Charleston, WV 25301
Copies to:
John F. Hussell, IV
Andrew Ellis
Wooton Davis Hussell & Ellis, PLLC
300 Summers St., Suite 1230
P.O. Box 3971
Charleston, WV 25339

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