Roanoke Is Back On The Map

Politico Magazine has published a very good story about the rebirth of Roanoke's downtown and its transformation from a railroad ghost town to a vibrant, outdoorsy, high-tech city.

I have commented before about how the changing economy in cities like Charlottesville and Roanoke would change the legal community as well as the reputation and docket in the Western District of Virginia.  Just as UVa has played a large role in Charlottesville's "innovation" economy, Roanoke's economic growth is fueled in large part by nearby Virginia Tech and its investment in the new medical school and neuroscience institute.  This technology driven growth means that the Western District of Virginia will continue to see more complex business litigation and intellectual property related disputes.

On a personal note, this sentence in the article's lede took me by surprise: "A decade ago, the U.S. Census counted 15 people living in Roanoke's downtown."  It seems I was one of those 15 people.  Actually, it was more than a decade ago, while clerking for Judge Wilson, I lived in a small apartment a couple blocks away from the federal courthouse, close to Center on the Square.  Back then, most people thought I was crazy to live downtown, but now I look like a trendsetter!  

Virginia GOP Settles Copyright Lawsuit Brought By On-Line Publisher

Valerie Garner, publisher of the Roanoke Free Press website, has settled her copyright lawsuit against the Virginia Republican Party related to the unauthorized use of a photograph she took of Delegate Sam Rasoul.  This photograph was the subject of prior litigation between Garner and a political blogger who used the same photograph on his website.  In 2015, Judge Conrad issued an opinion denying the blogger's motion to dismiss based on the fair use doctrine.  The case settled shortly thereafter.  In the most recent case against the Virginia Republican Party, Garner alleged that the GOP use the same photograph in a campaign mailer, without her permission.  The GOP had filed a partial motion for summary judgment arguing that Garner was not entitled to statutory damages or attorney fees under the Copyright Act.  While that summary judgment motion was pending, the parties settled the case, for $9,000 and a promise not to use the photograph again, according to news reports.

Senate Approves Judicial Nomination of Elizabeth Dillon

The Western District of Virginia has a new judge.

Yesterday, the US Senate confirmed the nomination of Salem attorney Elizabeth Dillon to replace Judge Wilson, who retired in August.  Judge Dillon will be the first female judge in the Western District of Virginia.  Like her predecessor and the author of this blog, Judge Dillon is a graduate of Wake Forest University School of Law.

Dillon has been a practicing attorney in the Roanoke/Salem area for many years is also a former city attorney for the City of Roanoke.  President Obama nominated Dillon on September 18, 2014, after Virginia's two senators had recommended her and Ward Armstrong for the spot.  The Virginia Lawyers Weekly article about the confirmation is here.

The Senate Judiciary Committee has published Judge Dillon's answers to written questions submitted by Senators, including Senator Chuck Grassley and Senator Ted Cruz.  Many of the questions are overtly political and most of the answers are boilerplate, but there were some interesting parts.  For example, this is how Judge Dillon described the most important attribute of a judge:

"The most important attribute of a judge is to have the utmost respect for the tremendous responsibility of the position. A judge who recognizes and respects the responsibility of the position will respect the rule of law, the litigants, and the lawyers, and will serve with integrity, fairness, and impartiality. I have the utmost respect for the tremendous responsibility of the position and would be honored to serve should I be confirmed."

We are looking forward to Judge Dillon's tenure as the newest federal judge in the Western District of Virginia.

Contaminated Oysters in Virginia Restaurant Enough for Jurisdiction Under "Stream of Commerce" Test

Contaminated oysters served at a Roanoke restaurant were placed in the "stream of commerce" by a Connecticut seafood supplier, and thus served as the basis for the Western District of Virginia to exercise personal jurisdiction over the out-of-state seafood supplier. 

Since the oysters at issue traveled through several different distributors and suppliers before reaching Frankie Rowland's Steakhouse in Roanoke, the original supplier had argued that the was no personal jurisdiction over him given his lack of contacts with Virginia.  Judge Conrad, however, held that although the oysters were initially sold outside of Virginia, they were placed in the "stream of commerce" and purposefully availed to the Virginia market.  Therefore, it was foreseeable that the oysters would end up in Virginia and the supplier haled into court there.

The obvious lesson to be learned from this case is to eat locally sourced oysters, such as those served in Charlottesville's new Rocksalt restaurant.  There will be no jurisdictional issues if you get sick from eating the Olde Salts from Chincoteauge, Virginia or the Rappahannocks from the Middle Peninsula.

Judge Turk's Legacy Remembered By Lawyers And Judges

All of the local papers ran stories this week about Judge Turk's passing and the fond memories that lawyers and judges had of Judge Turk's unique and warm sense of justice.  Judge Turk, who was appointed by Richard Nixon, served as a federal judge in the Western District of Virginia for 41 years before passing away Sunday evening at age 91.  The News and Advance ran a story with many colorful anecdotes of Judge Turk's merciful rulings and sentencings in criminal cases. 

One of his most famous civil cases was a prison literature case in which Judge Turk struck down a policy that denied inmates access to novels "Ulysses" by James Joyce and "Lady Chatterley's Lover" by D.H. Lawrence, which had been banned because of their sexually explicit passages.  He also presided over the 1981 libel case Jerry Falwell brought against Larry Flynt of Hustler magazine. 

Before becoming a judge, Turk practiced law at the Radford firm of Dalton, Poff and Turk--a firm with three very famous names in the Western District of Virginia.  Ted Dalton, known as Mr. Republican, ran unsuccessfully for Governor of Virginia when the Byrd machine still dominated Virginia politics.  Dalton later was appointed to the federal bench.  His nephew and adopted son, John Dalton, was elected Governor of Virginia in 1977. 

Turk's other law-partner Richard Poff served in the House of Representatives for many years, was the author of the 25th Amendment to the United States Constitution, and was considered for the Supreme Court, prior to Nixon's appointment of fellow Virginian Lewis Powell.  Poff went on to serve on the Virginia Supreme Court.  The federal courthouse in Roanoke, where Judge Turk presided for so many years, was named for Poff.

This legacy continues after Judge Turk's death.  His former law clerk, Glen Conrad, was appointed to replace Judge Turk as a federal judge when he took senior status in 2003.  Judge Turk has two sons who are prominent in the legal community in Southwest Virginia: Jimmy Turk, a high-profile defense attorney in Montgomery County; and Bobby Turk, a Montgomery County Circuit Court Judge.  There are countless members of the legal community in Southwest Virginia that feel a connection to and fondness towards Judge Turk.

Current United States Attorney Timothy J. Heaphy said in a statement: "[Judge Turk's] tradition of shaking hands with defendants after their cases concluded was a perfect manifestation of his essential humanity and his ability to recognize the good in all people, regardless of circumstance."

Judge Wilson to Retire August 1

Judge Samuel G. Wilson announced that he will retire August 1 after twenty four years as a United States District Judge for the Western District of Virginia.  I served as a law clerk for Judge Wilson in Roanoke, Virginia during my first year after law school, and I cannot say enough good things about him as a jurist and a person.  Judge Wilson's decision is a bit unusual considering that most federal judges go on senior status when they turn 65, instead of retiring outright.  More surprising, especially if you didn't know Judge Wilson, is that after retiring, he plans to spend a year in Taipei teaching American criminal justice at National Taiwan University.  I can't say that I saw that coming, but his decision to tackle a new adventure in a different part of the world is not surprising.  The Roanoke Times has a very nice article describing Judge Wilson's "rapid trajectory" as a prosecutor, lawyer, magistrate judge and then being named the youngest federal judge in Western Virginia.  Judge Wilson is quoted as saying: "Going somewhere different an taking on a challenge is kind of my way of easing out of it.... I suppose one of the reasons I'm leaving is I think it's important to put power down and see the world the way everyone else sees it."

Judge Wilson Dismisses Claim of Defectively Manufactured Tree Stand

In this Western District of Virginia products liability case, the plaintiff alleged he was injured in a fall from a defectively manufactured tree stand while hunting in Floyd County.  Plaintiff's expert claimed that the tree stand may have been defective because of inadvertent introduction of hydrogen into the steel during manufacturing, but both plaintiff's and defendant's experts agreed that there was not enough evidence for them to conclude with any confidence that this had occurred.  Plaintiff argued that his expert's opinion was not final and requested additional discovery, including discovery of third party manufacturers of the tree stand.  Judge Wilson, however, ruled that plaintiff already had adequate time for discovery and only recently asked for additional time to "finalize" expert opinions after defendant had deposed the expert and moved for summary judgment.  The Court stated: "Experts should not be moving targets whose opinions are constantly changing and being supplemented in order to overcome proper pretrial procedures."

The case is  Bambarger v. Ameristep Inc. No. 7:12cv280 (W.D. Va. Nov. 29, 2013) (Roanoke Division).

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."

Mandatory Minimum Sentences for Drug Cases in the Western District of Virginia

Although the focus of this blog is civil litigation, I read an interesting story in the Roanoke Times about mandatory minimum sentencing in the Western District of Virginia.  In a recent speech to the American Bar Association, Attorney General Eric Holder announced that he was directing US Attorneys to change the way they charged certain non-violent, low-level drug offenses in order not to trigger the "draconian" mandatory minimum sentences.

According to Timothy Heaphy, the US Attorney for the WDVa, no major change is needed for the Western District of Virginia because drug offenders are not being subject to the harsh measures that concerned Attorney General Holder.  For the most part, Heaphy said that he has already been operating as Holder requested, stating: "This is an evolutionary step, not a new thing for us."  The Roanoke Times also quotes Chief Judge Glen Conrad as saying "This United States Attorney's Office has been fair in the way it charges individuals."

The article contained some interesting statistics that appear to show that, as a percentage, there are more criminal drug cases in the Western District of Virginia than the national average.  And that the average drug-related sentence (91 months) was higher in the WDVa than the national average (72 months).  Heaphy explained that this was because he has focused on major drug cases: "We probably more than some places around the country have already changed our approach to drug charging... We have pivoted toward charging only folks that are more sophisticated," with the rest being charged in state courts.

When drug cases are broken down by drug type, the statistics show that there are fewer marijuana and cocaine cases in WDVa than in the rest of the country, but more meth and "other" cases.  I suspect a good portion of the "other" category is Oxycontin, given the history of that drug's abuse in Southwest Virginia.  In 2011, the kingpin of a multi-state OxyContin distribution ring was convicted and sentenced to 10 years imprisonment in the Western District of Virginia.

Heaphy said that he plans to further tighten charging and sentencing practices, by bringing charges that would impose mandatory minimums only in cases in which there are certain aggravating circumstances.  One interesting statistic that was not available in the article is the percentage of cases in which defendants were subject to mandatory minimums in the Western District of Virginia as compared to the national average.

Welcome to the WDVa Law Blog









  This blog will focus on noteworthy civil cases, news and administrative procedure in the United States District Court for the Western District of Virginia. I have a special affinity for this part of the Commonwealth and its federal court. I grew up in Bedford County, just outside Lynchburg, Virginia -- the center of the seven divisions in the WDVa. After law school, I served as a law clerk for then Chief Judge Samuel G. Wilson in Roanoke, Virginia. After a brief hiatus in North Carolina, I returned to the Commonwealth and have been practicing law in Charlottesville, Virginia, home of my alma mater, the University of Virginia. Although not as famous as the Eastern District of Virginia's "rocket docket," I find the Western District to be appropriately expeditious in moving cases forward, courteous towards lawyers, thoughtful in their deliberations and fair to all litigants. I am looking forward to writing more about significant cases and developments within the Western District of Virginia.