Marfork Coal Co. Inc v. Smith

MARFORK COAL COMPANY, INC., Plaintiff/Counter-Defendant,

v. DAVID AARON SMITH, AMBER NICHMAN, ERIC BLEVINS, JOSHUA FRANCISCO GRAUPERA and ISABELLE ROZENDAAL, Defendants/Counter-Claimants.

Civil Action No. 5:10-0069

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

ENTER: March 17, 2011.

MEMORANDUM OPINION AND ORDER

Pending are Plaintiff's Motion to Compel Relevant Deposition Testimony (Document No. 166.) and Defendants' Cross-Motion to Preclude Irrelevant Deposition Questioning and for Protective Order (Document No. 167.). Having considered the parties' Motions and determined that the information which Plaintiff would compel Defendants to provide is not relevant to the parties' claims and defenses and in any event may not be compelled in view of Defendants' First and Fifth Amendment rights, the Court will deny Plaintiff's Motion to Compel and grant Defendants' Cross-Motion to Preclude it and for a Protective Order.

BACKGROUND

On January 25, 2010, Plaintiff, a West Virginia corporation¹ engaged in the mining of coal at the Beetree Surface Mine in Raleigh County, West Virginia, filed a Verified Complaint, a Motion for Temporary Restraining Order and Preliminary Injunction and a Memorandum in Support.(Document Nos. 1, 4, 5 and 8 (Verification of Mr. Michael Bayes, Plaintiff's Director of Security.) By its Verified Complaint (Document No. 1.), Plaintiff alleged that Defendants, members of Climate Ground Zero, Mountain Justice and other environmental groups, unlawfully trespassed upon the Beetree Surface Mine property beginning on January 21, 2010, in protest of mountaintop mining. Plaintiff alleged that as members of these environmental groups, "Defendants themselves and others acting in concert and participating with them, advocate the abolition of mountaintop mining and oppose such mining by corporate entities affiliated with A.T. Massey and Massey Energy." (Id., ¶ 24.) Plaintiff alleged that "[u]pon information and belief, Defendants' intentional and unlawful activities of January 21, 2010, and continuing thereafter, have been orchestrated by themselves and others acting in concert and participating with them so as to be photographed and videotaped so that recordings and/or images can be published and/or uploaded to various websites...." (Id., ¶ 25.) Plaintiff further alleged in requesting injunctive relief that "upon information and belief, Defendants and others acting in concert and participating with them have represented that they will continue to intentionally and unlawfully come onto the Beetree Surface Mine, and other A.T. Massey and Massey Energy affiliated properties, until all mountaintop mining operations cease...." (Id., ¶35.) Plaintiff alleged that the West Virginia State Police arrested Defendants Graupera and Rozendaal and Defendants Smith, Nitchman and Blevins evaded arrest by climbing trees on the property and two of them remained on the property when Plaintiff initiated this matter. Plaintiff alleged that Defendants' actions placed them, Plaintiff's employees and contract personnel in danger and interfered with Plaintiff's business operations on the property causing Plaintiff irreparable harm and would continue to do so unless their actions were enjoined. Plaintiff claimed therefore thatDefendants trespassed upon its property², tortiously interfered with its contractual obligations and production of coal³ and conspired to engage in the tortious actions for the purpose of interfering with Plaintiff's business operations.⁴ Plaintiff requested, among other things, that the District Court enjoin Defendants and their associates from "(a) Trespassing or otherwise congregating on any of the mining properties of corporate entities affiliated with A.T. Massey and Massey Energy, including but not limited to the Marfork's Beetree Surface Mine property in Raleigh County, West Virginia; and (b) Interfering, obstructing, blocking, impeding or tampering with any coal operating equipment, trucks or other vehicles of any of the corporate entities affiliated with A.T. Massey and Massey Energy, including but not limited to Marfork, no matter where such equipment, trucks or other vehicles may be located." Plaintiff also requested compensatory and punitive damages.

The District Court held an evidentiary hearing upon Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction on January 26, 2010 (Document No. 11.), and filed a Memorandum Opinion and Order and an Order Granting in part Plaintiff's Motion for TemporaryRestraining Order on January 27, 2010 (Document Nos. 12 and 13.). Applying the standard which the United States Supreme Court announced in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249(2008)("A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.") and the Fourth Circuit Court of Appeals has recently adopted in The Real Truth About Obama v. Federal Election Commission, 575 F.3d 342, 346-347 (4th Cir. 2009), judgment vacated, 130 S.Ct. 2371, 176 L.Ed.2d 764 (April 26, 2010), the District Court determined that Plaintiff met each of the components of the standard and ordered as follows (Document No. 13.):

Defendants and their officers, agents, servants, employees, and attorneys, and those other persons who are in active concert or participation with Defendants (or their officers, agents, servants, employees or attorneys), who receive actual notice of this Temporary Restraining Order by personal service or otherwise are hereby restrained and enjoined until February 10, 2010, at 3:00 p.m. from doing or causing to be done, the following:

(a) Trespassing or otherwise congregating on any mine properties in the Southern District of West Virginia, including but not limited to Marfork's Beetree Surface Mine property in Raleigh County, West Virginia; and

(b) Interfering, obstructing, blocking, impeding or tampering with any coal operating equipment, trucks or other vehicles of any mining properties, including but not limited to Marfork, no matter where such equipment, trucks or other vehicles may be located in the Southern District of West Virginia.

The District Court further ordered that its Order be served upon Defendants, the Court would hold a hearing upon Plaintiff's Motion for Preliminary Injunction on February 4, 2010, and its Order would become effective when Marfork posted a $100,000 bond.

By Order filed on February 4, 2010, the District Court extended its Temporary Restraining Order until February 24 and scheduled the hearing upon Plaintiff's Motion for PreliminaryInjunction on February 23, 2010. (Document No. 29.) On February 23, 2010, the District Court held a hearing upon Plaintiff's Motion for Preliminary Injunction (Document No. 38.) and extended the Temporary Restraining Order until February 26, 2010. (Document No. 39.) On February 26, 2010, the District Court filed a Memorandum Opinion and Order and an Order Granting Preliminary Injunction. (Document Nos. 43 and 44.)

On March 2, 2010, Defendants filed their Answer and Affirmative Defense. (Document No. 47.) Defendants admitted the allegations in Plaintiff's Verified Complaint pertaining to their residency and therefore diversity of citizenship, venue and the location of the Beetree Surface Mine. Defendants, however, denied allegations pertaining to the required amount necessary for diversity jurisdiction. Defendants refused to answer most of Plaintiff's allegations pertaining to their conduct on January 21, 2010, asserting their privilege under the Fifth Amendment of the United States Constitution. (Id., ¶¶ 19-23, 40-42.)⁵ Defendants asserted as their first affirmative defense "the moral imperative... to protect the environment for future generations which governs any and all actions which they have taken." Defendants further asserted in defense the pollution, destruction of future resources and local and regional heritage, threat to health, morals, safety, comfort, convenience and welfare and nuisance caused by Plaintiff's illegal mining operations.⁶ On June 17, 2010, Defendants filed their Amended Answer and Affirmative Defense.⁷ (Document No. 57.) Defendants' amended answers to the allegations contained in Plaintiff's Complaint are basically the same as those which Defendants stated initially.

THE PARTIES' POSITIONS

Previously, considering the parties' Motions to Compel and for Protective Orders respecting written discovery, the undersigned filed a Memorandum Opinion and Order on January 13, 2011, denying their Motions, and closing the time for written discovery but permitting Plaintiff to take the depositions of Defendants until January 27, 2011. (Document No. 151; Marfork Coal Co., Inc., v. Smith, 2011 WL 111880 (S.D.W.Va.)) The undersigned wrote that "Plaintiff may inquire respecting whether and how the Defendants know each other and planned, convened and executed their plan to protest mountaintop removal mining on its Beetree Surface Mine site in January, 2010. Plaintiff may inquire very narrowly and by leading question only respecting their membership or affiliation with Climate Ground Zero or any other organization advocating against mountaintop removal mining. Plaintiff may not inquire respecting any offices or positions which Defendants may hold in such organization, the organization's training or recruiting practices, Defendants' acquaintances within those organizations who are not Defendants herein or protests at other mine sites. * * * Defendants have indicated that they would like to take the depositions of one of Plaintiff's officersand its expert witness. Defendants shall complete these depositions by January 27, 2011, as well." Marfork Coal Co., Inc., v. Smith, 2011 WL 111880, *12 (S.D.W.Va.).

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