Mountain Valley Pipeline, LLC v. Dosier et al

Filing 97

MEMORANDUM OPINION AND ORDER: The Court the court DENIES plaintiffs 96 motion to lift the stay in this case to serve the four remaining defendants,but GRANTS plaintiff an additional sixty days to serve the four defendants after resolution of the bankruptcy action involving defendant Green Valley Coal Company. Signed by Judge David A. Faber on 02/24/2016. (cc: attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
MOUNTAIN VALLEY PIPELINE, LLC
Plaintiff,
v.

CIVIL ACTION NO. 5:15-03858

KENNETH DOSIER, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion to lift the
stay in this case for the limited purpose of requesting an order
of publication as to certain defendants or, in the alternative,
an additional sixty days to serve these defendants after the
bankruptcy stay is lifted.

(Doc. No. 96).

Plaintiff represents

that it has taken considerable steps to serve four defendants in
this case, but has been unable to do so.
include:

These defendants

Barry C. Pallay, Hilry Gordon, Linda E. Harrington,

and Caitlyn A. Gragg.

Id. at 1–2.

For the reasons that follow,

plaintiff’s motion is GRANTED in part and DENIED in part.
On August 5, 2015, defendant Green Valley Coal Company
filed a notice of suggestion of pendency of bankruptcy.
No. 94).

(Doc.

The notice stated that Alpha Natural Resources, Inc.

and certain of its direct and indirect subsidiaries, including
defendant Green Valley Coal Company, filed voluntary petitions
for relief in the United States Bankruptcy Court for the Eastern

District of Virginia.

Id.

Pursuant to the automatic stay

provision imposed by Section 362 of the Bankruptcy Code, the
court ordered that all proceedings in this case be stayed until
resolution of the bankruptcy claim of defendant Green Valley
Coal Company.

(Doc. No. 95).

The automatic stay provision of Section 362 immediately
protects a debtor who is engaged in other litigation.
Section 362(a)(1) of Chapter 11 of the Bankruptcy Code
stays the commencement or continuation . . . of a
judicial . . . action or proceeding against the debtor
that was or could have been commenced before the
commencement of the case under this title, or to recover
a claim against the debtor that arose before the
commencement of the case under this title.
Kreisler v. Goldberg, 478 F.3d 209, 213 (4th Cir. 2007) (quoting
11 U.S.C. § 362(a)(1)) (internal quotation marks omitted).

Upon

imposition of the automatic stay, “[o]nly the bankruptcy court
with jurisdiction over the case has the authority to grant
relief from the stay of judicial proceedings against the
debtor.”

Maritime Elec. Co., Inc. v. United Jersey Bank, 959

F.2d 1194, 1204 (3d Cir. 1991) (internal citations omitted).
“Once a stay is in effect, without relief from the bankruptcy
court, the parties themselves cannot validly undertake any
judicial action material to the . . . claim against the debtor.”
Constitution Bank v. Tubbs, 68 F.3d 685, 692 (3d Cir. 1995)
(internal quotations omitted).

2

In this case, plaintiff does not state whether it has moved
the bankruptcy court for relief from the automatic stay.
Plaintiff has not indicated, either, whether the relief it seeks
in this court could have adverse effects upon the interests of
the debtor, defendant Green Valley Coal Company, or whether this
requested judicial action is material to the claim against the
debtor.

As a result, the court finds that it does not have

jurisdiction to grant relief from the automatic stay.
However, plaintiff has demonstrated good cause for an
additional sixty days to serve these four defendants.

Under

Federal Rule of Civil Procedure 4(m), a plaintiff must serve a
defendant within 120 days from the filing of the complaint or
face dismissal of the action.1

But, “if the plaintiff shows good

cause for the failure [to serve], the court must extend the time
for service for an appropriate period.”

Fed. R. Civ. P. 4(m).

In this case, plaintiff has taken a number of steps to serve
each of these four defendants, including attempts made by
private process servers and the Sheriff’s Office.

Because

plaintiff has undertaken due diligence in an attempt to serve

1

Recent amendments to the Federal Rules of Civil Procedure
reduced the time for service from 120 days to 90 days. However,
at the time that plaintiff initiated this action and at the time
the instant motion was filed, the time for service was still 120
days.
3

these defendants, Rule 4(m) provides that the court must extend
the time for service.
Accordingly, the court DENIES plaintiff’s motion to lift
the stay in this case to serve the four remaining defendants,
but GRANTS plaintiff an additional sixty days to serve the four
defendants after resolution of the bankruptcy action involving
defendant Green Valley Coal Company.

The Clerk is directed to

send copies of this Order to counsel of record and to any
unrepresented party.
IT IS SO ORDERED this 24th day of February, 2016.
ENTER:

David A. Faber
Senior United States District Judge

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