United States District Court, S.D. West Virginia, Huntington Division
OHIO VALLEY ENVIRONMENTAL COALITION, INC., WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., and SIERRA CLUB, Plaintiffs,
ERP ENVIRONMENTAL FUND, INC. Defendant, APPALACHIAN HEADWATERS, INC., Nonparty in whose favor an has been entered, VCLF LAND TRUST, INC., Nonparty against whom an order may be enforced.
MEMORANDUM OPINION AND ORDER
ROBERTS C. CHAMBERS, UNITED STATES DISTRICT JUDGE
is the Motion by Plaintiffs and Appalachian Headwaters, Inc.
for Appointment of Special Commissioner and Issuance of a
Summons for Ascertainment of Judgment Debtor's Estate,
ECF No. 151. The Court GRANTS the Motion and
APPOINTS Magistrate Judge Cheryl A. Eifert
to serve as a commissioner over this matter.
October 7, 2016, the Court entered a Second Modified Consent
Decree. ECF No. 105. Under the incorporated Selenium
Settlement Agreement, Defendant and VCLF Land Trust, Inc.
(“VCLF”) agreed to donate $6, 000, 000 to
Appalachian Headwaters, Inc. (“Appalachian
Headwaters”). ECF No. 99-1, at 76-77. The required
monthly payments stopped after Appalachian Headwaters
received $3, 000, 000. ECF No. 137-1 ¶¶ 10-23. On
June 24, 2019, the Court granted a Motion to Enforce by
Plaintiffs and issued a Judgment in favor of Appalachian
Headwaters for the arrearage owed of $1, 950, 000. ECF Nos.
138, 139. Defendant and VCLF did not satisfy the Judgment and
continued to disregard their required payments, so the Court
granted a second Motion to Enforce and issued a Judgment of
$1, 050, 000 for the arrearage accrued since the filing of
Plaintiffs' first Motion to Enforce. ECF Nos. 173, 174.
Because Plaintiffs and Appalachian Headwaters have been
unable to satisfy the Judgments, they ask the Court to
appoint a magistrate judge to conduct a debtor examination to
ascertain the real and personal property on which this
Court's Judgments and Writs of Execution have created
liens as a matter of law. ECF Nos. 151, 169.
West Virginia Code § 38-3-6, the Judgements issued by
the Court against Defendant and VCLF on June 24, 2019, and
November 4, 2019, are “a lien on all the real estate of
or to which the defendant . . . is or becomes possessed or
entitled, at or after the date of [the] judgment . . .
.” ECF Nos. 139, 174. Additionally, under West Virginia
Code § 38-4-8, the Writs of Execution issued on July 30,
2019, created a lien on all personal property owned by
Defendant and VCLF. ECF Nos. 149, 150.
of judgment or execution, Federal Rule of Civil Procedure
69(a) allows judgment creditors to institute proceedings as
provided by the state where the Court sits. West Virginia
Code § 38-5-1 provides for such a procedure “[t]o
ascertain the estate on which a writ [of execution] . . . is
a lien, and to ascertain any real estate in or out of this
State to which a debtor . . . is entitled.” On
application by a judgment creditor, a summons is issued
“against the execution debtor, or anyofficer of a
corporation execution debtor having an office in this State .
. . requiring the execution debtor to appear before a
commissioner in chancery . . . 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.” W.Va. Code § 38-5-1.
there is no “commissioner” in the federal
judicial system, this district has held 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. Almost Heaven Ribs, Inc., 3:11-cv-00595, 2012 WL
1567189, at *1 (S.D. W.Va. Apr. 30, 2012) (citing Chicago
Pneumatic Tool Co. v. Stonestreet, 107 F.R.D. 674, 675
(S.D. W.Va. 1985); U.S. Foodservice, Inc. v.
Donahue, 3:10-cv-183, 2010 WL 5067939, at *1 (S.D. W.Va.
Dec. 3, 2010); Byron Originals, Inc. v. Iron Bay Model
Co., 5:05-cv-82, 2006 WL 1004827, at * 1 (N.D. W.Va.
Apr. 12, 2006)). Interrogatory proceedings “essentially
allow a commissioner to join in the questioning during the
deposition of a judgment debtor, ” and 28 U.S.C. §
636(a)(2) specifically confers the power to take depositions
on magistrate judges. Id. (citation and internal
quotation marks omitted). The Federal Magistrate Act permits
this role, as magistrate judges “may be assigned such
additional duties as are not inconsistent with the
Constitution and laws of the United States.”
Id. (citing 28 U.S.C. § 636(b)(3)).
the Court APPOINTS Magistrate Judge Cheryl
A. Eifert as a commissioner for purposes of conducting a
proceeding pursuant to West Virginia Code § 38-5-1. Upon
Plaintiffs' ascertaining of a date and time convenient
for Magistrate Judge Eifert, the Court
DIRECTS the Clerk to issue summonses,
pursuant to Rule 4 of the Federal Rules of Civil Procedure,
directing Defendant and VCLF to appear at the specified date
and time before Magistrate Judge Eifert. In conducting the
proceeding, Magistrate Judge Eifert may enter additional
orders pursuant to the Federal Rules of Civil Procedure or
Chapter 38, Article 5 of the West Virginia Code.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of ...