United States District Court, N.D. West Virginia
MICHAEL D. MICHAEL, as the Administrator of the ESTATE OF JACK D. MICHAEL, and JUDITH A. KUHN, as the Administratrix of the ESTATE OF PAUL F. HENDERSON, et al., Plaintiffs,
CONSOLIDATION COAL COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT.
NO. 99] AND GRANTING DEFENDANT'S MOTION TO DISMISS [DKT.
M. KEELEY UNITED STATES DISTRICT JUDGE
before the Court are the Report and Recommendation
(“R&R”) of United States Magistrate Judge
(ret.) John S. Kaull (dkt. no. 99), and the motion to dismiss
filed by the defendant, Consolidation Coal Company
(“CCC”) (dkt. no. 4). This case stems from the
deaths of seventy-eight miners as a result of a tragic coal
mining explosion in 1968. Ultimately, the Court concludes
that the Plaintiffs' wrongful death claim is barred by
the then applicable two-year limitation period, and was not
tolled by either the discovery rule or the fraudulent
concealment doctrine. Accordingly, the Court ADOPTS the
R&R and GRANTS the defendant's motion to dismiss.
fateful day of November 20, 1968, the Consol No. 9 coal mine
(“the Mine”), located near Farmington, West
Virginia, exploded and caught fire, resulting in the deaths
of seventy-eight coal miners. Following ten years of recovery
efforts, the Mine was permanently sealed in November of 1978.
time of the explosion, the Mine had four ventilation fans
that controlled the level of methane buildup resulting from
the mining operations. The No. 3 fan, which is the only fan
at issue in this case, was located at Mod's Run near the
4 North area of the Mine (“Mod's Run fan”).
Each fan was controlled by a “FEMCO Supervisory
Control” safety alarm system (“FEMCO”),
which was designed to trigger a red light and audible alarm
in the Mine's lamp house whenever the fan slowed down or
stopped. When triggered, the alarm would notify the
underground miners of the situation; if the fan remained
inoperable for more than twelve minutes, the alarm would shut
down electricity to the Mine.
next twenty-two years, inspectors from various state and
federal agencies conducted multiple investigations into the
fire and explosion at the Mine. One of the inspectors was
Larry L. Layne (“Layne”), who worked for the Mine
Safety and Health Administration (“MSHA”). Layne
filed a memorandum of his investigation on September 15,
1970, in which he reported the following:
On September 5, 1970, 12am-8am shift, the Mods Run substation
was energized for the first time since the explosion of
November 20, 1968. The electrician (name withheld by request)
reported that while energizing the substation he found
evidence to indicate that the FEMCO fan alarm system for
Mod's Run fan had been rendered inoperable prior to the
explosion. The fan alarm system had been bridged with jumper
wires; therefore, when the fan would stop or slow down, there
was no way of anyone knowing about it because the alarm
system was bypassed . . . .
(Dkt. No. 1-19 at 13).
March, 1990, nearly twenty years after Layne wrote his
memorandum, MSHA issued an investigation report, stating in
. . . [t]he ventilation along the Main West headings was
inadequate overall, and most probably non-existent in some
areas between 1 South and 4 North. On the day before the
explosion . . . methane accumulated to about four percent on
the right side of the 7 South section for a distance of
approximately 1, 000 feet out by the working section because
of inadequate ventilation and the lack of sufficient
ventilation controls . . . and the FEMCO Supervisory Control
(fan monitoring and mine power cutoff system) was not
operating properly at the time the explosion occurred, as
mining operations continued at the face after the explosion.
the Plaintiffs acknowledge that they became aware of
Layne's memorandum sometime in 2008, they allege that it
was not until June 9, 2014, that they learned that the chief
electrician at the Mine, Alex Kovarbasich
(“Kovarbasich”), was the person who had rendered
the FEMCO alarm on the Mod's Run fan
inoperable. Thus, they claim that, from November 20,
1968 until June 14, 2014, they never knew the identity of the
person responsible for rendering the fan inoperable, nor
could they have discovered his identity through the exercise
of reasonable diligence. Further, they contend that neither
Kovarbasich nor CCC ever disclosed that the Mod's Run fan
was “intentionally rendered inoperable by mine
management.” Id. at 14.
November 6, 2014, the Plaintiffs and class representatives,
Michael D. Michael, as the Administrator of the Estate of
Jack D. Michael, and Judith A. Kuhn, as the Administratrix of
the Estate of Paul F. Henderson (collectively
“Plaintiffs”), brought suit in the Circuit Court
of Marion County, West Virginia “on behalf of a class
of the estates of the seventy-eight (78) coal miners, ”
against CCC and Albert Marano, Sheriff of Harrison County
(“Sheriff”), as Administrator of the Estate of
Kovarbasich, who had died on August 3, 1992. The complaint
alleges one count of “fraud, concealment and
nondisclosure.” Id. at 19.
December 11, 2014, CCC removed the case to this Court based
on diversity jurisdiction. It argued that the Plaintiffs had
fraudulently joined Kovarbasich to destroy diversity, (dkt.
no. 1), and that the Harrison County Commission had
improperly appointed Sheriff Marano as Administrator of the
Kovarbasich Estate. It contended that the Estate, which had
been closed since April 25, 1994, should never have been
reopened. It also argued that Kovarbasich was not a proper
defendant because any claims against him were barred by the
statute of limitations and the doctrine of laches.
to Fed.R.Civ.P. 12(b)(6), CCC moved to dismiss the suit
against it on December 17, 2014, on the basis that the
Plaintiffs' claims were barred by the statute of
limitations. (Dkt. No. 4). Shortly after that, the Plaintiffs
filed a motion to remand the case to the Circuit Court of
Marion County. They denied that Kovarbasich had been
fraudulently joined, or that their claims were barred by the
statute of limitations. They also moved to stay consideration
of CCC's motion to dismiss until after the Court ruled on
their motion to remand. (Dkt. No. 10).
February 9, 2015, while the parties' motions were
pending, the Plaintiffs moved to “Preserve Evidence and
Promptly Perpetuate the Testimony of Leonard Sacchetti and
Request Immediate Hearing.” (Dkt. No. 22). The motion
asserted that Leonard Sacchetti (“Sacchetti”), a
former electrician at the Mine, had personal knowledge of the
identity of the individual who had bypassed the FEMCO alarm
on the Mod's Run fan in 1968. Because Sacchetti was
ninety years old, the Plaintiffs sought an order authorizing
them to promptly take his videotaped deposition. The Court
granted the motion and ordered that, in recognition of
Sacchetti's advanced age, the parties work together to
establish parameters for the deposition.
after Sacchetti's deposition, on April 6, 2015, the
Plaintiffs filed a motion to “Preserve Evidence and
Promptly Perpetuate the Testimony of Larry Layne and Request
Immediate Hearing.” (Dkt. No. 57). They asserted that
Layne knew the identity of the person who had reported to him
that someone had bridged the Mod's Run fan. As they had
when seeking Sacchetti's deposition, the Plaintiffs
maintained that, because of Layne's advanced age (80
years old at the time), it was imperative to promptly secure
his testimony. On April 10, 2015, Magistrate Judge Kaull
permitted the Plaintiffs to depose Layne on a date certain
more than 180 days from the entry of his order, which would
allow them time to initiate any process required under 29
C.F.R. §§ 2.20 et seq.(Dkt. No. 57 at
5). In addition, he authorized the defendants to conduct
discovery of certain enumerated categories of information
relevant to the deposition of Layne. Id.
April 10, 2015, after it learned that the Circuit Court of
Harrison County was reviewing CCC's appeal of the County
Commission's appointment of the Sheriff as Administrator
of Kovarbasich's Estate, the Court stayed a ruling on the
pending motions, noting that, in the interests of federalism,
comity, and judicial economy, the surest way to avoid
“the possibility of inconsistent adjudications and
unnecessary entanglement between the federal and state court
systems in West Virginia” was to stay any ruling on the
motion to remand pending a decision from the Supreme Court of
Appeals of West Virginia (“Supreme Court of
Appeals”). (Dkt. No. 56 at 3-4).
the stay, on July 31, 2015, the Plaintiffs sought leave to
amend their complaint in order to add Sacchetti as a
defendant. (Dkt. No. 64). They contended that they had only
become aware of his role in bridging the Mod's Run fan on
April 3, 2015. CCC opposed the motion, contending that, in
“direct and intentional violation of this Court's
April 10, 2015 Order [limiting discovery], ” the
Plaintiffs had met with Layne on April 3, 2015, and had
secured his affidavit. (Dkt. No. 68 at 2). In CCC's view,
because Plaintiffs' motion for leave to amend rested
solely on an improperly obtained affidavit, the Court should
strike it as improper. Id. Alternatively, CCC asked
the Court to strike Layne's affidavit and any reference
to it from the motion to amend, and to afford the affidavit
no consideration in deciding that motion. Id.
Finally, it sought to prohibit the Plaintiffs from
introducing Layne's affidavit or any testimony from it
into evidence in the case. Id.
Court referred these motions to Magistrate Judge Kaull, who
concluded that the Plaintiffs had not violated any court
order or 29 C.F.R. §§ 2.20, et seq.(Dkt.
No. 97 at 7-10). Accordingly, he denied CCC's attempt to
strike Layne's affidavit or testimony. Id. at
10. As to the Plaintiffs' motion for leave to amend their
complaint, Magistrate Judge Kaull indicated he would address
that issue and CCC's objections in a forthcoming R&R.
September 29, 2015, Magistrate Judge Kaull entered an R&R
that recommended the Court deny the Plaintiffs' motion
for leave to amend the complaint. (Dkt. No. 99). It also
concluded that, despite having characterized their complaint
as one for fraud, the Plaintiffs actually had alleged claims
for wrongful death and deliberate intent, both of which have
a two-year statute of limitations. Id. at 13-15. It
further concluded that, as to the claims against Sacchetti,
neither the discovery rule nor the fraudulent concealment
doctrine tolled the statute of limitations because neither
had been available in wrongful death actions in
1968. Id. at 21. Because the statute of
limitations barred any claim against Sacchetti, the R&R
recommended that the Court deny, as futile, the
Plaintiffs' motion for leave to add him as a defendant.
Id. at 21, 39.
September 30, 2015, the Court stayed all proceedings in this
case pending a ruling by the Circuit Court of Harrison County
on CCC's appeal from the Harrison County Commission's
decision to reopen the Kovarbasich Estate. (Dkt. No. 100).
Two days later, Circuit Court Judge John Lewis Marks vacated
and reversed the Commission's decision, and ordered that
the Estate be re-closed. Judge Marks also denied the
Plaintiffs' motion to stay his order pending their appeal
to the Supreme Court of Appeals. After this quick turn of
events prompted the Court to lift its stay in the case on
October 2, 2015, the Plaintiffs filed objections to
Magistrate Judge Kaull's recommendation that their
complaint pled claims for wrongful death and deliberate
intent, not fraud. (Dkt. No. 106). They contended that their
claim was for fraud, and also argued that, even if their
complaint was construed to state claims for wrongful death
and deliberate intent, the statute of limitations on those
claims had been tolled by both the discovery rule and
fraudulent concealment doctrine. Id. In response,
CCC contended that the Court should adopt the R&R. (Dkt.
on the closure of the Kovarbasich Estate, Sheriff Marano and
CCC moved to dismiss the Estate as a party to this action.
(Dkt. Nos. 118 and 122). The Plaintiffs, however, argued that
the Court should not decide that motion prior to deciding
their motion to remand, and that, because they were in the
process of appealing Judge Marks's order, it should stay
the case in its entirety pending a ruling from the Supreme
Court of Appeals on the re-closure of the Estate. (Dkt. No.
121). The Court agreed and stayed all proceedings pending a
decision from the Supreme Court of Appeals. (Dkt. No. 124).
March 8, 2016, the Plaintiffs moved to lift the stay on a
limited basis in order to depose Layne, noting that the
parties had exchanged discovery relevant to Layne's
knowledge of the incidents, and their concern about his
advanced age. (Dkt. No. 125). CCC opposed lifting the stay,
because it was waiting for the DOL to release documents it
needed to properly depose Layne. (Dkt. No. 127). The Court
denied the motion to lift the stay on March 10, 2016. (Dkt.
November 10, 2016, the Supreme Court of Appeals affirmed
Judge Marks's decision to re-close the Kovarbasich
Estate. In re: Estate of Alex Kovarbasich, No.
15-1032, 2016 WL 6651583 (W.Va. 2016). Following that, the
Court lifted its stay and scheduled a status conference with
the parties. (Dkt. No. 139). During that conference, it
denied the motion to remand, granted the motion to dismiss
the Estate of Kovarbasich, and permitted the parties to
proceed with Layne's deposition and other limited
discovery. (Dkt. No. 141). The Court also found that none of
that discovery would impede its ability to rule on
Plaintiffs' objections to the R&R and CCC's
motion to dismiss. Id.
as a result of a dispute between the parties about
Layne's deposition, on March 3, 2017, the Court ordered
that the deposition should proceed, and Layne was deposed on
March 8, 2017. (Dkt. No. 158).
STANDARD OF REVIEW
Fed.R.Civ.P. 12(b)(6) Motion to Dismiss
reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual
allegations contained in the complaint.'”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). However, while a complaint does not need detailed
factual allegations, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires more than
mere labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed,
courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986). In
considering whether the facts alleged are sufficient,
“a complaint must contain ‘enough facts to state
a claim to relief that is plausible on its face.'”
Anderson, 508 F.3d at 188 (quoting Twombly,
550 U.S. at 547).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
“But in the relatively rare circumstances where facts
sufficient to rule on an affirmative defense are alleged in
the complaint, the defense may be reached by a motion to
dismiss filed under Rule 12(b)(6), ” so long as
“all facts necessary to the affirmative defense
‘clearly appear on the face of the
complaint.'” Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007) (quoting Richmond,
Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244,
250 (4th Cir. 1993)).
Amendment Pursuant to Fed.R.Civ.P. 15
the federal civil rules, a plaintiff may amend a complaint
“once as a matter of course” within either 21
days after serving the complaint, or 21 days after service of
a responsive pleading or a motion under Rule 12(b), (e), or
(f), whichever is earlier. Fed.R.Civ.P. 15(a)(1). “In
all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's
leave. The Court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2).
granting or denying a motion to amend is within the
discretion of the Court, Scott v. Family Dollar Stores,
Inc., 733 F.3d 105, 121 (4th Cir. 2013), the Fourth
Circuit has interpreted Rule 15(a)(2) to require that
“leave to amend a pleading should be denied only when
the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or
the amendment would have been futile.” Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962));
See also Edwards v. City of Goldsboro, 178 F.3d 231
(4th Cir. 1999).
to amend is futile when the amended complaint would not
survive a motion to dismiss, Perkins v. United
States, 55 F.3d 910, 917 (4th Cir. 1995), or “when
the proposed amendment is clearly insufficient or frivolous
on its face.” Johnson, 785 F.2d at 510;
Burns v. AAF-McQuay, Inc., 980 F.Supp. 175, 179
(W.D. Va. 1997) (noting that proper standard of review when
amendment is challenged on grounds of futility is whether the
proposed amendment states a claim upon which relief can be
granted). When assessing futility, “a district court
may look to ‘substantive or procedural
considerations.'” Jones v. HSBC Bank USA,
N.A., 444 Fed.Appx. 640, 643 (4th Cir. 2011) (quoting
Davis v. Piper Aircraft, 615 F.2d 606, 613 (4th Cir.
contends that the Plaintiffs' objections to the R&R
simply reiterate arguments previously addressed by Magistrate
Judge Kaull. The issues that are dispositive of the
recommendation to deny the Plaintiffs leave to amend their
complaint to add Sacchetti, however, are also dispositive of
CCC's motion to dismiss, which was not the subject of the
R&R. Therefore, because Plaintiffs' objections relate
to issues that are germane to both the R&R and the motion
to dismiss, the Court will review de novo the
R&R, the parties' pleadings, and the applicable case
at the outset, although the Plaintiffs label their case as
one for fraudulent concealment, Magistrate Judge Kaull
rejected that argument, finding they had pled a claim for
wrongful death, to which the two-year statute of limitations
applied. Because neither the discovery rule nor the doctrine
of fraudulent concealment applied to wrongful death actions
in 1968, he recommended that the Court deny Plaintiffs'
motion to amend as futile. In their objections, the
Plaintiffs argue that, because the Supreme Court of Appeals
later extended the discovery rule and fraudulent concealment
doctrine to wrongful death actions, the Court should
retroactively apply them in this case.
contends that, even if retroactively applied, the statute of
limitations would still bar the Plaintiffs' wrongful
death claim. It also argues that any claim against Sacchetti
would fail because he owed no duty of disclosure to the
reasons that follow, the Court GRANTS CCC's motion to
dismiss the claims against it, and DENIES the Plaintiffs'
motion for leave to add Sacchetti as a defendant as such an
amendment would be futile.
The Nature of the Plaintiffs' Claims
Judge Kaull determined that the Plaintiffs' complaint
alleged claims of wrongful death or deliberate intent. At
common law, there was no cause of action for wrongful death.
Thus, “the right or cause of action for wrongful death,
if maintainable, exists under and by virtue of the provisions
of the wrongful death statute . . . .” Baldwin v.
Butcher, 184 S.E.2d 428, 429 (W.Va. 1971); see also
Miller v. Romero, 413 S.E.2d 178, 181, (W.Va. 1991)
overruled in part, Bradshaw v. Soulsby, 558
S.E.2d 681 (2001) (“In Baldwin . . . we held
that no right of action for wrongful death existed separate
and apart from the wrongful death statute.”). West
Virginia's wrongful death statute, codified at W.Va. Code
§ 55-7-5 and § 55-7-6, provides for who may bring
such a suit, the amount and distribution of damages, and the
period of limitation for commencing such an action.
Plaintiffs assert that, due to CCC and Sacchetti's
fraudulent concealment, they were unable to discover and file
a wrongful death action on a timely basis. (Dkt. No. 1-19
(“Defendants deprived plaintiffs of their right to
obtain relief against defendants under West Virginia's
wrongful death statute.”)). They contend that,
“[p]ursuant to W.Va. Code § 55-7-6 (1967), ”
they are entitled to $110, 000 per deceased coal miner, the
maximum recovery allowed under the statute in 1968.
Id. at 56.
Court agrees that the Plaintiffs' claims sound in
wrongful death. An allegation of fraud that prevents the
bringing of a wrongful death suit can hardly be said to exist
“separate and apart from the wrongful death
statute.” Miller, 413 S.E.2d at 181. Indeed,
any fraud claim in this case is no more than a thinly veiled
argument in support of Plaintiffs' contention that the
two-year limitation period regarding wrongful death actions
should be tolled based on fraudulent concealment.
Nevertheless, tracking Magistrate Judge Kaull's R&R,
the Court will consider all claims alleged or potentially
alleged in the complaint.