Practicing in the Western District of Virginia CLE

I attended a very informative and enjoyable CLE yesterday regarding practicing in the Western District of Virginia and section 1983 cases.  The CLE was put on by the Charlottesville Albemarle Bar Association.  Judge Dillon, Magistrate Judge Ballou and Magistrate Judge Hoppe were panelists. 

One interesting fact I learned was that 20% of the civil cases filed in the WDVa are 1983 cases or Bivens cases.  A significant number of these cases are pro se cases filed by prisoners.  Most of those cases are summarily dismissed at the pleadings stage or on summary judgment, but some of them proceed to trial, which can cause problems for the Court.  (Imagine a prisoner in shackles questioning a prison guard on the witness stand or giving the closing argument in a civil rights case.)  I remember Judge Wilson describing situations like this when I was a law clerk. 

The Court wants to create a list of attorneys who would be willing to take on some of these cases pro bono.  Sounds like a very good way for young attorneys to get federal court trial experience.  I expect that more information will soon be available on the Court's website.

New Eminent Domain Law May Require Business-Litigation Approach To Condemnation Cases

The Charlottesville paper recently ran an interesting story about how local road improvement projects will test the limits and scope of the Commonwealth's new eminent domain law.  The new laws are comprised of reforms passed in 2007 and a constitutional amendment passed in 2012.  State Senator Mark Obenshain is quoted as saying: "Property owners seeking remedies under the new legislation may petition the state for up to three years' worth of future profits" which could be based on lost profits.  Previously Virginia's condemnation proceedings measured damage by means of real estate valuations, rather than allowing for recovery of lost profits.  This change in the law may turn condemnation cases into something that more resembles business litigation, with competing economic experts analyzing claims for lost profits.  Property owners seeking to challenge eminent domain takings under the new statute may want to reassess how they negotiate with the Commonwealth and what kind of evidence, witnesses and attorneys they need to prove their case.

Judge Jones Certifies Class Action In Southwest Virginia Natural Gas Case

On Tuesday, October 1, 2013, Judge Jones issued a ruling certifying a class action in a series of five lawsuits in the Western District of Virginia (Abington Division).  In so ruling, Judge Jones accepted the report and recommendation of Magistrate Judge Pamela Meade Sargent.  I discussed Judge Sargent's report and recommendation, and the political controversy it provoked, in this blog post.

Natural gas wells are concentrated in seven counties in Southwest Virginia

The case involves $30 million in natural gas royalties that are sitting in an escrow account.  Virginia law allows energy companies to siphon gas from coal seams without the owner's permission, and then place royalties in an escrow account until ownership can be determined later.

According to the Roanoke Times:

The dispute revolves around the fact that Virginia legislators never declared whether the natural gas pulled from coal seams — called coalbed methane — belongs to the person holding the deed to the coal or the person holding the deed to the gas estate.

Ownership, and access to the royalties, must be decided either in deed-by-deed court battles, in out-of-court arbitration, or by an agreement to split the money among the gas and the coal owners.

Attorneys for the proposed class of landowners argued that a class action was necessary because the cost of an individual lawsuit by a landowner could be more than what is held in some escrow accounts.  Attorneys for the energy companies disagreed and argued that the ownership of mineral and real property interests for each individual case could not be decided in the aggregate by a class action.  At least one of the defendants indicated the intent to appeal the class certification ruling to the Fourth Circuit.

Rule 23(f) of the Federal Rules of Civil Procedure provides: "A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders."

Magistrate Judge Crigler's Last Day On The Job

As previously noted on this blog, today marks the last day on the job for Magistrate Judge Waugh Crigler.  Charlottesville's Daily Progress published a nice article today about his retirement and the simultaneous retirement of his judicial assistant Judy Pace.  Local attorneys will miss them both very much.  The article also explained that, while Judge Crigler's offices were based in Charlottesville, his (yet to be determined) replacement will be based in Harrisonburg.  This will mark the first time since 1978 that Charlottesville has not had a resident trial level judge.  Fourth Circuit judges do not count as trial judges (except, I guess, for the rare occasion when they act as trial judges, such as election redistricting cases).  Of course, district judges from Roanoke and Lynchburg frequently travel to Charlottesville, and less frequently Harrisonburg.  When I clerked for Judge Wilson in Roanoke, we would often travel to Harrisonburg for hearings and trials.  I particularly remember one interesting criminal case in Harrisonburg that resulted in the acquittal of all defendants.  Whoever the new magistrate judge is, he or she will frequently have to travel to the other divisions.  Such is the nature of  being a trial level judge in the Western District of Virginia.

Government Shutdown Not To Impact WDVa

Attorneys in the Western District of Virginia received this notice via email today:

Impact of a Government Shut-Down on the District Court: Should Congress fail to enact a continuing resolution by October 1, 2013, the District Court for the Western District of Virginia will manage with its normal business and operations until further notice. All court proceedings will take place as scheduled and the Clerk's Office will be open to file, process and manage cases.

 I'm a member of the bar of several other U.S. District Courts, and some of these other courts have issued similar notices.  How long does a shutdown have to last before the courts shutdown?  Let's hope we don't have to find out.