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!  

Malicious Prosecution Case to Continue Against Patrick Henry Community College Athletic Director

Historic Henry County Courthouse

An affair between a college coach and a basketball player, a disputed confrontation between parents and a college administrator, accusations of assault and kidnapping, fifteen days in jail, claims of false arrest and malicious prosecution, and a mystery video tape: this case sounds more like a soap opera than a federal lawsuit.

A new opinion from Judge Kiser involving salacious accusations against the Patrick Henry Community College women's basketball team and athletic director is anything but boring.  See Robinson v. Davis, Case No. 4:15-cv-00040 (Dec. 30, 2015).

The plaintiffs are the parents of a former female student and basketball player at Patrick Henry Community College.  During the 2012 season, the plaintiffs learned that the coach of the women's basketball team was having an affair with another one of the players.  As a result, they removed their daughter from the team and confronted the Athletic Director in a meeting at his office.  The complaint alleges that the AD became upset, belligerent and verbally aggressive towards the parents--yelling at them to get out of his office and threatening to call the police.  

The parents claim they did nothing to physically threaten the AD or basketball coach, but apparently the AD has a different version of the facts because he swore out a warrant against the father for felony abduction, kidnapping and assault, and against the mother for assault.  The parents were arrested after their return to their Virginia Beach home.  The father was held in jail for fifteen days before being released and the charges against him dropped by the prosecutor.  The mother, who was also incarcerated for a time, was found not guilty of the assault charge.

The parents then filed a malicious prosecution and false arrest lawsuit against the Athletic Director and the sheriff's deputy who agreed to file the charges despite, according to the parents, a video tape of the incident "showing no criminal actions."  The case was transferred from Virginia Beach to Henry County, where it was then removed to the Western District of Virginia after the parent's filed an amended complaint adding federal question claims under Section 1983.

The case then came before Judge Kiser on a motion to dismiss.  The Court denied the motion as to the malicious prosecution and false imprisonment claims because, taking the facts alleged in the complaint to be true, there was no probable cause for the arrests.  The Court could not infer, as defendants' requested, that there was more to the altercation than alleged in the complaint because all facts and inferences must be view in the light most favorable to plaintiff on a motion to dismiss.  

Similarly, the Court declined to consider the video of the incident -- which defendants claim shows that the parents became irate, blocked the AD in his office and had to be dragged away by their daughter.  Although the video was referenced in the complaint, the Court determined that its contents should not be considered on a motion to dismiss because the complaint itself did not rely on what was in the video.  (The video will however be considered on any summary judgment motion).

The Court, however, granted the motion to dismiss with respect to the Section 1983 claim against the Athletic Director because his actions were not "under color of state law."  Although he was a state employee, nothing suggested that his alleged conduct (trumping up charges against the parents) was made possible because he was a state employee.  The Court explained:

To put it another way, anyone can lie to the police  Because the [Athletic Director's] actions were no more than what any private citizen could do, there is not a sufficient nexus between [his] actions and the state to convert this private tort into a federal wrong.

The case will now proceed in federal court in Danville, unless somehow the 1983 claim against the sheriff's deputy is dismissed, in which case the case may be remanded back to state court.

Charlottesville as a "Hotbed for Innovation": Fastest Growing Area in US for Venture Capital Funding

Where a court is located often determines the type of cases that it hears.  For example, the "Rocket Docket" of the Eastern District of Virginia hears a large number of patent and technology-related cases both because of the speed at which it dispenses justice and also the many technology companies in Northern Virginia--not to mention that the Patent and Trademark Office is a few blocks away from the Alexandria courthouse.

The Western District of Virginia, however, is not traditionally known for its patent docket or technology-related cases.  When I clerked for Judge Wilson in Roanoke, one of the biggest cases the court heard that year was a RICO conspiracy involving (alleged) moonshiners in Franklin County.  Growing up in nearby Lynchburg, I often heard Franklin County referred to as the "moonshine capital of world."  While the homemade distillation of spirits certainly involves some measure of technology, that RICO trial was certainly not a technology-based case.  At the time, it was not surprising that the court heard more moonshining cases than patent cases.

All of that may be about to change, however, given the recent growth of tech start-ups in the region.  This growth is largely fueled by the universities--the University of Virginia, Virginia Tech and James Madison University--located in Charlottesville, Blacksburg and Harrisonburg.

According to an article in today's Daily Progress, the Charlottesville area is the fastest growing area in the country for venture capital investment since 2010.  The largest investments were in technology companies, many of which got their start from academic research associated with UVa.  The article explains:

The Center for Innovative Technology also was involved with most of the companies receiving venture capital funding.  The center works to promote the technology industry around the state, and since 2004 it has invested seed money in numerous technology and life-science companies around the state, including local biotechnology and semiconductor companies.
...
As the market in Charlottesville has grown, [the center's investment director] said, word is spreading that it's a good place for tech startups -- it has a high concentration of talented people, a nice location and access to a major university...

The number of local companies receiving venture capital funding has increased 55 percent annually since 2010, and the amount of investment dollars pumped into the Charlottesville market has increased by $157 million.

This type of growth--fueled by the confluence of nearby universities, public-private partnerships, low taxes and livable communities--reminds me of the success of North Carolina's Research Triangle Park.  Womble Carlyle's early commitment to technology led us to open an office in RTP in the 1990s.  As a law firm, we have seen first hand how a technology driven economy can transform a region, including its courts and legal market.  Let's hope the same thing (without the traffic, of course) is happening here in Charlottesville.

Former Magistrate Judge Crigler Awarded For Leadership By Virginia State Bar

Retired Magistrate Judge Waugh Crigler will receive a Leadership in Education award from the Virginia State Bar.  The award recognizes individuals for leadership in improving and enhancing legal education and professionalism among the academy, bench and bar. 

The Virginia State Bar's announcement explains:

"Crigler has a long and distinguished career as a lawyer, judge, and teacher. He has served as a faculty member for the VSB’s Harry L. Carrico Professionalism Course since 1995. In 1998, he was appointed to the bar’s Standing Committee on Professionalism, and later became its vice chair. He helped to develop a curriculum for a professionalism program that was instituted in all law schools in the commonwealth in 2000. He served as chair or co-chair of the Law School Professionalism program until 2003, and remains an active faculty member for the program.

Crigler has served on the board of governors of the State Bar’s Litigation Section since 2009.  In 2006, he was elected to the board of governors of the State Bar’s Section on the Education of Lawyers in Virginia, and has served as vice chair since 2010. While serving on these boards, Judge Crigler has written numerous articles advancing trial skills and professional and ethical practice."

 Judge Crigler is currently an alternative dispute resolution facilitator at the McCammon Group.

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.

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.

Court Declines To Dissolve Prayer Injunction After Supreme Court's Town of Greece Decision

In March 2013, Judge Urbanski issued an injunction prohibiting Pittsylvania County from opening its board of supervisors meetings with sectarian prayers associated with any one religion as a violation of the Establishment Clause.  That case is currently on appeal before the Fourth Circuit.

In May 2014, the US Supreme Court issued a 5-4 decision upholding the constitutionality of non-coercive sectarian invocations by invited clergy and laypeople at city council meetings.  See Town of Greece v. Galloway, 572 U.S. ___ (2014).    Given this new Supreme Court decision on public prayer, many localities that had been subject to injunctions have petitioned courts to modify those injunctions to conform with Town of Greece. 

Pittsylvania County filed a Rule 60(b)(5) motion in Western District of Virginia seeking to modify the Court's prior order.  The Court, however, held that it was without jurisdiction to modify its permanent injunction because the matter was on appeal to the Fourth Circuit.  There is a limited exception allowing the Court to rule on matters "in aid of the appeal."  Under this exception, the Court is permitted to entertain the motion and issue a short order if the Court is inclined to grant the motion, thus allowing the movant to request a limited remand from the Fourth Circuit for that purpose. 

After considering the merits of Pittsylvania County's request, Judge Urbanski determined that the Court was inclined to modify the injunction "to a very limited extent, i.e., to make it clear, consistent with Town of Greece, that opening prayers offered at the start of the Pittsylvania County Board of Supervisors meetings need not be generic or nonsectarian."  The Court, however, would deny the request to dissolve the injunction altogether because of factual differences between this case and Town of Greece. 

First, Pittsylvania County did not invite clergy or laypersons to offer invocations, as was the case in Town of Greece.  Instead, the prayers were led by the board members themselves.  "Thus, in contrast to Town of Greece, where the town government had no role in determining the content of the opening invocations at its board meetings, the government of Pittsylvania County itself, embodied in its elected Board members, dictated the content of the prayers opening official Board meetings."

Second, the Pittsylvania board of supervisors often directed the public to participate in the prayers by asking them to stand.  For example one board of supervisor began his prayer by stating: "If you don't want to hear this prayer, you can leave.  Please stand up."

In summary, the Court held that the active role of the board of supervisors in leading the prayers, dictating their content and directing public participation distinguished this case from Town of Greece.

It will be interesting to see how the Fourth Circuit rules in the appeal.

While it must have been irresistible for Pittsylvania County to try to dissolve the permanent injunction order after Town of Greece, given the decision by Judge Urbanski, it would have been better for the County not to have filed the Rule 60(b)(5) motion.  The Fourth Circuit can now see that the District Court would have granted the injunction anyway, even after considering the new Supreme Court precedent.  Thus, not only does this case involve an interesting constitutional question, but it is also instructive on matters of litigation and appeal strategy.

Fraud Claim Against Lender Dismissed

"Courts have held that there is no duty on a lender to ensure that a loan is suitable for a borrower," wrote Judge Jones in a recent case dismissing a fraud and misrepresentation claim brought by a home owner against the lender.  In this case, the plaintiffs alleged that the loan officer told them that their income qualified them for the loans they were seeking, when in fact plaintiffs' income was not high enough to meet debt to income ratio utilized by mortgage lenders.  The Court found that these allegations were not sufficiently specific to meet the heightened pleading standards of Rule 9.  "Without more, plaintiffs' allegations essentially amount to an assertion that the lender convinced them to take out a loan they couldn't afford," which is not a basis for fraud.

The Court cited several cases stating that lenders do not act on behalf of borrowers, do not have a duty to determine a borrower's ability to repay a loan, and that borrowers have to "rely on their own judgment and risk assessment to determine whether or not to accept the loan."  Alternatively, the Court found that the claims were barred by the statute of limitations.  The case, Muncy v. Centex Home Equity Company, LLC, was pending in the Abingdon division of the Western District of Virginia.

This case is another example of the steady stream of cases brought by borrowers against lenders related to lending or foreclosure practices.  Most of the cases, like this one, are dismissed in the preliminary stages of litigation.  However, there is still a significant cost to lenders in having to defend all cases brought against them, even the most frivolous.

Click here for more information on Womble Carlyle's Financial Services Litigation team.

Legal and Political Controversy Over Proposed Atlantic Coast Pipeline

The 550-mile Atlantic Coast Pipeline that is projected to run through the heart of Central Virginia has generated much political controversy and is now the subject of a new federal lawsuit.  

Although Governor McAuliffe has supported the pipeline, environmental groups and some landowners have been highly critical of the project.  Environmental groups have started petitions opposing the pipeline and landowners have raised issues regarding the path of the pipeline and the ability of gas companies to enter and condemn private land for the pipeline.

A recent lawsuit file in the Charlottesville Division of the Western District of Virginia seeks to declare unconstitutional a Virginia statute that allows gas companies the right to enter private property to survey the proposed path for the pipeline.  The lawsuit challenges the statute as authorizing an unlawful taking for private purposes and a taking without just compensation in violation of both the United States Constitution and the newly strengthen provisions of the Virginia Constitution.  As reported by the newspaper, Dominion says that it will not survey anyone's land without permission from the landowner or a court order affirming Dominion's right to survey.

"Happiness Is The Truth"

Charlottesville, Virginia has been named the happiest city in the United States.  It also will be home to the newest (unofficial) office of Womble Carlyle.  Coincidence?  Yes, probably.

A recent study from a Harvard professor ranked Charlottesville as the happiest city in the US.  Just down the road, Richmond was rated the "most contented" metropolitan area with over one million people.  Norfolk/Virginia Beach, hometown of the "Happy" songwriter Pharrell, came in second.  There must be something about Virginia!

The study suggested that people are willing to sacrifice happiness if the price is right. "Indeed, the residents of unhappier metropolitan areas today do receive higher real wages -- presumably as compensation for their misery."  Which explains Northern Virginia.  Just kidding!

In unrelated news, I'm happy to announce that Womble Caryle will soon be opening a new office space in Charlottesville to serve as a staging area for Virginia-based litigation outside of the Washington beltway.  Charlottesville is one of the headquarters of the Western District of Virginia.  Additionally, from this central location, an attorney can travel to just about any courthouse in the Commonwealth in under two hours.  The location and opening date for the "Charlottesville office" have not been finalized.  I will announce more after the details are worked out.

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."

Trade Dress and the Functionality Doctrine: At the Intersection of Trademark and Patent Law

Earlier this week, the Fourth Circuit reversed the dismissal of a Lanham Act claim for trade dress infringement involving a pixel pattern embossed on an absorbent textile-like product used in medical supplies, hygiene products and food packages.  Judge Wilson (Roanoke Division of the Western District of Virginia) had dismissed the trade dress claim because he found the dot pattern to be functional and thus not protectable as trade dress.

Trade dress -- the visual appearance of a product or its packaging that signifies the source of the product to consumers -- is protected under trademark law.  However, if a product feature is determined to be functional, then that feature is not protected by trademark law.  The only way to protect a functional feature of a product's design is under patent law.  A product feature is functional if it is essential to the use or purpose of the product or affects the cost or quality of the product.  To put it simply, a feature is functional if it is the reason the device works as opposed to being merely ornamental.  Sometimes the distinction is difficult to determine.

One of the issues on appeal was the effect of the utility patents that plaintiff had obtained on the same product.  The Supreme Court has held that a utility patent is strong evidence that the features claimed therein are functional, and thus not protectable trade dress.  The plaintiff argued, however, that its utility patents covered the manufacturing process and materials, but did not pertain to a particular embossing pattern, which was the aspect of the product that plaintiff argued was protected as trade dress.  The Fourth Circuit noted that the diagrams on the utility patents show hexagonal shapes, rather than the circular dots or pixels depicted in the trademark. 

Patent

Trademark

The Fourth Circuit found that while the utility patents were evidence of the dots' functionality, they were not dispositive.  The court should look at other factors, such as the availability of functionally equivalent designs.  In light of these factual questions, the Fourth Circuit determined that there was a genuine issue of material fact regarding "whether a specific embossing pattern is the reason the device works or merely an ornamental, incidental, or arbitrary aspect of the device."  Therefore the dismissal was reversed and the case remanded for further proceedings.

The case demonstrates an interesting area of intellectual property law that is at the crossroads of trademarks and patents.

The case is McAirlaids, Inc. v. Kimberly-Clark Corporation, --- F.3d --- (4th Cir. June 25, 2014).

More Sports and Antitrust

My colleague Amanda Ames has written an interesting article about the O'Bannon v. NCAA case, which is all over the news these days.  Additionally, Law360 published an article that I wrote about LCA v. Virginia High School League.  This is the antitrust case in the Western District of Virginia, previously discussed on this blog, in which a private school is seeking to force its admission into a public school sports league.  A description of my article is available here, and you can read the whole thing with a Law360 subscription here.

Defendant Who Defeated Preliminary Injunction And Obtained Dismissal For Failure To Prosecute Is Not A "Prevailing Party" In Patent Case

The "prevailing party" in a patent case is entitled to attorney fees from the losing side under 35 U.S.C. 285.  However what constitutes a "prevailing party" sometimes can be difficult to determine.  Judge Moon recently held that a defendant who defeated a motion for preliminary injunction and obtained a dismissal of all claims for failure to prosecute was not a "prevailing party" despite the defendant's success.  The lawsuit, filed in the Charlottesville Division of the Western District of Virginia, involved patent infringement of a pocketed bra design.  The court's rational for denying the motion for fees was based upon existing precedent regarding similar circumstances.  A plaintiff who obtains a preliminary injunction is not a "prevailing party" because preliminary injunction proceedings are a necessarily abbreviated inquiry into the merits of a case.  Therefore, the court concluded that if a plaintiff who obtains a preliminary injunction is not a "prevailing party" then it logically follows that a defendant who defeats a preliminary injunction is similarly not a "prevailing party."  Also, the court's subsequent dismissal, without prejudice, of plaintiff's claims for failure to prosecute was not an adjudication on the merits and therefore did not confer "prevailing party" status.  The case is styled Robinson v. Bartlow, No. 3:12cv024 (W.D.Va. 2014).

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).

Banks to Settle Lawsuit Challenging Merger

As previously noted on this blog, certain shareholders of Charlottesville-based Stellar One bank had filed a federal lawsuit in the Western District of Virginia challenging the merger between Stellar One and Union First Bankshares of Richmond.  The Richmond Times Dispatch reports today that the banks plan to settle the lawsuit, although the amount and terms of the settlement are unclear.  The merger, which is valued at $445.1 million, is expected to close on January 1 and has received all regulatory approvals.  The surviving entity, Union First Market, would be one of the largest community banks in Virginia with $7.1 billion in assets.  Part of those assets (a very small part) is Stellar One's lien on my house.  Looks like I will have to change the payee on my mortgage payments next year.

New Western District Magistrate Judge Appointed

Joel C. Hoppe has been appointed the new magistrate judge for the Western District of Virginia.  Mr. Hoppe, a Richmond native, is currently an assistant federal public defender in Charlottesville and Harrisonburg.  He is a 1998 graduate of the University of Virginia, and a 2002 graduate of the University of Richmond's T.C. Williams School of Law.  Mr. Hoppe clerked for magistrate judges in both the Eastern and Western Districts of Virginia, worked for several years in the state Attorney General's Office before entering private practice.  Hoppe will take the bench early next year for the beginning of his initial eight year term as magistrate judge.  Although his offices will be in Harrisonburg, I assume that he will also handle the magistrate duties for cases in the Charlottesville division.  I look forward to appearing before Judge Hoppe in the near future.

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.