Case Document 1 Filed 06/30/17 Page 1 of 11 PageID 1 ELECTRONICALLY FILED IN THE UNITED STATES DISTRICT COURT Jun 30 2017 FOR THE NORTHERN DISTRICT OF WEST VIRGINIA u_s_ DISTRICT COURT Northern District of WV THE MARSHALL COUNTY COAL Civil Action No. (Bailey) COMPANY, THE MARION COUNTY COAL COMPANY, THE MONONGALIA COUNTY COAL COMPANY, THE HARRISON COUNTY COAL COMPANY, THE OHIO COUNTY COAL COMPANY, MURRAY ENERGY CORPORATION, and ROBERT E. MURRAY, Plaintiffs, v. JOHN OLIVER, CHARLES WILSON, PARTIALLY IMPORTANT PRODUCTIONS, LLC, HOME BOX OFFICE, INC, TIME WARNER, INC., and DOES 1 through 10, Defendants. NOTICE OF REMOVAL Pursuant to 28 U.S.C. 1332, 1441, and 1446, Home Box Of?ce, Inc. hereby gives Notice of Removal of the above-captioned action from the Circuit Court of Marshall County, West Virginia, to the United States District Court for the Northern District of West Virginia. The grounds for removal are as follows: I. This Court has original jurisdiction in this suit pursuant to 28 U.S.C. 1332 because the real parties in interest are citizens of different states and a fair reading of the Complaint?s allegations supports a ?nding by a preponderance of the evidence that the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 2. PIaintiffs the Marshall Coal Company, the Marion County Coal Company, the Monongalia County Coal Company, and the Harrison County Coal Company are not of diverse Case Document 1 Filed 06/30/17 Page 2 of 11 PageID 2 citizenship from Home Box Of?ce, Inc. These Plaintiffs, however, are not real parties in interest. There is no reasonable basis in fact and law for their claims under West Virginia law, and hence they were joined in the Complaint solely for the purpose of defeating diversity jurisdiction. As a result, their citizenship must be disregarded in determining this Court?s jurisdiction. See, Burns v. W. S. Li?! Inn, 298 F. Supp. 2d 401 402?03 (SD. W. Va. 2004); Grease]! v. W. S. Life Ins, 293 F. Supp. 2d 390, 3954316 (SD. W. Va. 2004); Mylar: Pharm. Inc. v. PG Pubi?g. Co., No. 2009 WL 5195365, at *2 (ND. W. Va. Dec. 18, 2009); see also Murray Energy Holdings Co. v. Bloomberg, LP. No. 2016 WL 3355456, at *2 (SD. Ohio June 17, 2016). 3. For these reasons, this case is removable under 28 U.S.C. 1332, 1441, and 1446. I. THE REMOVED CASE 4. On or about June 21, 2017, Plaintiffs the Marshall Coal Company, the Marion County Coal Company, the Monongalia County Coal Company, the Harrison County Coal Company, the Ohio County Coal Company, Murray Energy Coal Corporation, and Robert E. Murray ?led a Complaint in the Circuit Court of Marshall County, West Virginia, at Civil Action No. 17-C-l24, against Defendants John Oliver, Charles Wilson, Partially Important Productions, LLC (?Partially Important Productions?), Home Box Of?ce, Inc. Time Warner Inc. (?Time Warner"), and Does 1 through 10. A certi?ed copy of all process, pleadings, and orders from the state court action is attached as Exhibit A. 5. The Marshall Coal Company, the Marion County Coal Company, the Monongalia County Coal Company, and the Harrison County Coal Company are ?incorporated under the laws of Delaware? and have their principal place of business in the State of West Virginia. Compl. 1111 11-14. Case Document 1 Filed 06/30/17 Page 3 of 11 PageID 3 6. Plaintiff the Ohio County Coal Company is ?incorporated under the laws of the State of Ohio? and has its principal place of business in West Virginia. Compl. 1 15. 7. Plaintiff Murray Energy Corporation is ?incorporated under the laws of the State of Ohio? and has its principal place of business in the State of Ohio. Compl.1[ l6. 3. Plaintiff Robert E. Murray is a resident of Ohio. Compl. 1i 7. 9. The Complaint alleges that Defendant John Oliver ?hosts, writes for, and is the executive producer of a show, ?Last Week Tonight with John Oliver,? that is broadcast weekly on Comp]. 1 23. Mr. Oliver is a legal permanent resident of the United States residing in New York. Comp]. 1 23. 10. The Complaint alleges that Charles Wilson is the ?Senior News Producer for Last Week Tonight.? Compl. 11 24. Mr. Wilson is a resident of New York. Comp]. 1] 24. 11. Defendants HBO and Time Warner are Delaware corporations with their principal places of business in New York. Comp]. 11] 22, 26. 12. Defendant Partially Important Productions is a Delaware limited liability company with its principal place of business in New York. Comp]. 1 25. 13. The Complaint alleges that the identities of Docs 1 through 10 are ?presently unknown to Plaintiffs,? but that they ?participated in the events alleged . . . which give rise to the claims asserted by the Plaintiffs.? Compl. 1] 14. The Complaint contains three counts: defamation, false light invasion of privacy, and intentional in?iction of emotional distress. 15. All of the allegations arise from the June 13, 2017 episode of ?Last Week Tonight with John Oliver.? Compi. 1E 29. According to the Complaint, the program concerned ?the decline of obs in the coal industry, the political criticism of President Obarna?s ?war on coal,? Case Document 1 Filed 06/30/17 Page 4 of 11 PageID 4 the recent regulatory rollback by the Trump administration and the prospect going forward of a revival of coal jobs.? Compl. 1 30. The Complaint alleges that the episode was a ?callous, vicious, and false attack upon Mr. Murray and his companies? which caused Plaintiffs substantial damage. Compl. 1, 58?89. 11. DIVERSITY JURISDICTION EXISTS This is a civil action that falls under the Court?s diversity jurisdiction under 28 U.S.C. 1332 because the real parties in interest are diverse and the amount-in?controversy requirement is met. Thus, the action may be removed to this Court under 28 U.S.C. 1441 and 1446. A. Complete Diversity Exists Between the Real Parties in Interest. 17. There is complete diversity of citizenship between Plaintiffs Murray Energy, Mr. Murray, and the named Defendants, who are the only real parties in interest: a. Murray Energy is an Ohio corporation with its principal place of business in Ohio. Compl. 1] 16. It is therefore a citizen of Ohio for diversity purposes. See 28. U.S.C. l332(c)(1). Mr. Murray is, on information and belief, domiciled in Ohio. Compl. 1] 7. c. Mr. Oliver is a legal permanent resident of the United States domiciled in New York. Compl. ?ll 23. (1. Mr. Wilson is domiciled in New York. Compl. ll 24. e. HBO and Time Warner are Delaware corporations with their principal places of business in New York. Compl. 11'? 22, 26. They are therefore citizens of Delaware and New York for diversity purposes. See 28 U.S.C. 1332(c)( Case Document 1 Filed 06/30/17 Page 5 of 11 PageID 5 f. Partially Important Productions is a Delaware limited liability company with its principal place of business in New York. Compl. it 25. It is therefore a citizen of Delaware and New York for diversity purposes. See 28 U.S.C. l332(c)(l). g. The identities of Docs 1 through 10 are ?presently unknown to Plaintiffs.? Compl. 1 27. Their citizenship is therefore ?disregarded? for purposes of the removal analysis. See 28 l44l(b)(l). 18. As a result, complete diversity of citizenship exists between Murray Energy, Mr. Murray, and the named Defendants. None of the named Defendants is a citizen of the forum state, West Virginia. An action between these parties is therefore removable. See 28 U.S.C. l332(a)(l); l441(b)(2). B. The Citizenship of the Marshall Coal Company, the Marion County Coal Company, the Monongalia County Coal Company, and the Harrison County Coal Company Must Be Disregarded Under the Doctrine of Fraudulent Joinder. 19. Under the doctrine of ?fraudulent joinder,? plaintiffs cannot avoid federal diversity jurisdiction through improper joinder of nondiverse plaintiffs. Mylan Pharm. Inc. v. PG Pub! Co, No. 2009 WL 5195865, at *2 (ND. W. Va. Dec. 18, 2009); Grenneli v. W. Life Ins, 298 F. Supp. 2d 390, 395?96 (SI). W. Va. 2004). 20. It is well established that the fraudulent joinder doctrine ?permits a district court to disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.? Mnyes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). Although the Fourth Circuit has not had occasion to address whether the doctrine applies to fraudulently joined plaintiffs, a majority of the courts to have considered the question?including courts in the Northern and Southern Districts of West Virginia?have found that it does. See, Burns v. Late Ins, 298 F. Case Document 1 Filed 06/30/17 Page 6 of 11 PageID 6 Supp. 2d 401, 402-403 (SD. W. Va. 2004); Gr'enneli, 298 F. Supp. 2d at 395?96; Mylar? th'm. Inc, 2009 WL 5195865, at *2 (??The Court can see no logic in prohibiting plaintiffs from defeating diversity jurisdiction by nondiverse defendants, but allowing them to do so through fraudulently joining nondiverse plaintiffs.? (quoting Grennelb); see also, Iowa Pub. Sew. Co. 12. Mad Bow Coo! Ca, 556 F.2d 400, 404 (8th Cir. 1977) the ?nondiyerse? plaintiff is not a real party in interest . . . his or its presence in the case may be ignored in determining jurisdiction?); In re Benjamin Moore (f5 Co, 309 F.3d 296, 298 (5th Cir. 2002); Clear Channel Comma ?ns, Inc. v. Citigroap Glob. We, Inc, 541 F. Supp. 2d 874, 877? 78 (WD. Tex. 2008); Hodach v. CoremorkRX Inc, 374 F. Supp. 2d 1222, 1224 (NB. Ga. 2005); Ferry v. Bckam Am. Corp, 185 F. Supp. 2d 1285, 1291 (MD. Fla. 2002), In re Rezalin Prods. Liob. Ling, 168 F. Supp. 2d 136, 147?49 (S.D.N.Y. 2001). 21. To establish fraudulentjoinder, a defendant must Show that there is no colorable basis on which the fraudulently joined nondiveise party could recover. See Myles Phorm. Inc, 2009 WL 5195865, at *2 (plaintiff must show some ?possibility? of success); see also Moyes, 198 F.3d at 464 (same). 22. The Complaint asserts claims for defamation, false light invasion of privacy, and intentional in?iction of emotional distress. 23. Here, the Complaint sets forth no possible basis of relief upon which the Marshall Coal Company, the Marion County Coal Company, the Monongalia County Coal Company, and the Harrison County Coal Company could recover against Defendants.l 1 The Complaint sets forth no possible basis of relief upon which the Ohio County Coal Company could recover, either, and it is also not a real party in interest. However, the Ohio County Coal Company need not be considered for purposes of the fraudulent joindcr analysis because there is complete diversity of citizenship between the Ohio County Coal Company and the named Defendants. The Ohio County Coal Company is ?incorporated under the laws of the 6 Case Document 1 Filed 06/30/17 Page 7 of 11 PageID 7 24. The absence of allegations involving the Marshall Coal Company, the Marion County Coal Company, the Monongalia County Coal Company, and the Harrison County Coal Company demonstrates that they are not real parties in interest. Instead, they were added to the Complaint as plaintiffs in a transparent attempt to defeat this Court?s exercise of its jurisdiction. 25. The citizenship of the Marshall Coal Company, the Marion County Coal Company, the Monongalia County Coal Company, and the Harrison County Coal Company should therefore be disregarded for the purposes of removal and jurisdiction. See Greenell, 298 F. Supp. 2d at 395?96. C. The Amount?in-Controversy Requirement Is Satis?ed. 28. Plaintiffs do not attempt to quantify the damages sought in this action. But there can be no serious dispute that the amount in controversy plausibly exceeds the jurisdictional requirement of at least $?5,000. See Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014) defendant?s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold?). a. First, the Complaint seeks damages for defamation. The Plaintiffs allege that the allegedly defamatory statements will cause signi?cant damage to ?the largest underground coal mining company in the United States.? Compl.1l 9. Speci?cally, Plaintiffs allege that the allegedly defamatory statements will ?prevent[] them from gaining access to capital needed to operate their businesses or mak[e] it more dif?cult and expensive for them to obtain such capital,? Compl. 1] 63, and ?will cause Plaintiffs to suffer a loss of business opportunities,? Compl. ?l?ll 65-67. State of Ohio? and has its principal place of business in West Virginia. Comp]. 1] 15. It is therefore a citizen of Ohio and West Virginia for diversity purposes. See 28 U.S.C. 1332(c)(1). 7 Case Document 1 Filed 06/30/17 Page 8 of 11 PageID 8 b. Second, the Complaint seeks damages for false light invasion of privacy. Compl. 11 40. Plaintiffs allege that the speech at issue will cause them to ?suffer great mental anguish and emotional distress.? Compl. 1] 73. Plaintiffs further allege that Speech at issue will ?prevent[] them from gaining access to capital needed to operate their businesses or mak[e] it more dif?cult and expensive for them to obtain such capital,? Compi. 1] 75, and will cause them to ?suffer a loss of business opportunities,? Compl. 111] 77-79. c. Third, the Complaint seeks damages for the alleged intentional in?iction of emotional distress of Mr. Murray. The Complaint alleges that ?due to the stress and physical damage caused by the malicious and defamatory conduct of Defendants, and resulting misconduct of others incited by Defendants? conduct, Mr. Murray?s health has signi?cantly worsened, likely ?irther reducing his already limited life expectancy due to his Idiopathic Pulmonary Fibrosis.? Compl.1] 33. d. Fourth, for these various claims, the Complaint seeks not only general damages, but also special damages, punitive damages, and attorneys? fees and costs. Comp]. at 22. e. Fifth, the Complaint seeks permanent injunction prohibiting rebroadcast of the Defamatory Statements and requiring the removal of the Defamatory Statements from public access.? Compl. at 23. is well-established that [i]n a suit for inj unctive relief, the amount in controversy is measured by the value of the object of the litigation.? McCoy v. Norfolk S. Ry. Co., 858 F. Supp. 2d 639, 650 (SD. W. Va. 2012) (quotation marks omitted). There can be little doubt that the sweeping injunctive relief Plaintiffs seek#a prior restraint against the further transmission of a popular television program, which Case Document 1 Filed 06/30/17 Page 9 of 11 PageID 9 the Complaint alleges has already been viewed millions of times, Comp]. 1 SS?would itself satisfy the amount?in-controversy requirement. 29. This Court therefore has jurisdiction of this civil action pursuant to 28 U.S.C. 1332, and the action may be removed pursuant to 28 U.S.C. 1441 and 1446. ALL PROCEDURAL REQUIREMENTS OF REMOVAL HAVE BEEN SATISFIED 30. Copies of all process, pleadings, and orders are attached to this Notice of Removal as Exhibit A. See 28 U.S.C. 1446(a). While the Defendants have not yet been served, such service is not a prerequisite to removal. See, a. g. Vitatos v. Mylan Pharm, Inc, No. 2008 WL 3540462, at *1 (ND. W. Va. Aug. 13, 2008) (holding that defendant had properly removed case to federal court where removal occurred ?prior to service of the Complaint on any of the defendants?). 31. All Defendants consent to removal. 28 U.S.C. l446(b)(2)(A); Mayo v. Bd. of Edna, 713 .3d 735, 742 (4th Cir. 2013); Stevens v. Thornsbirry, No. 1719, 2014 WL 3962478 (SD. W. Va. Aug. 13, 2014). 32. Removal to this Court is proper because it is part of the district and division within which the action is pending. See 28 U.S.C. 129(a); 1446(a). 33. The Defendants will provide written notice of this Notice of Removal to Plaintiffs? counsel and file a copy of this Notice of Removal with the Clerk of the Circuit Court of Marshall County, West Virginia. See 28 U.S.C. 1446(d). Dated: June 30, 2017 By: is! Robert P. Fitzsimmons Case Document 1 Filed 06/30/17 Page 10 of 11 PageID 10 Robert P. Fitzsimmons, Esq. W. Va. State Bar ID. #1212 Clayton J. Fitzsirmnons, Esq. W. Va. State Bar ID. #10323 FITZSIMMONS LAW FIRM, PLLC 1609 Warwood Avenue Wheeling, WV 26003 Phone: (304) 277-1700 Fax: (304)277?1705 E?mail: Attorneysfor Home Box Of?ce, Inc. 10 Case Document 1 Filed 06/30/17 Page 11 of 11 PageID 11 CERTIFICATE OF SERVICE I certify that this June 30, 2017, I caused a copy of the foregoing to be sent by ?rst class mail to counsel for Plaintiffs: Jeffrey A. Grove, Esq. (#6065) David L. Delk, J12, Esq. (#6383) GROVE, DELK, PLLC 44 U2 15th Street Wheeling, WV 26003 is)? Robert P. Fitzsimmons Robert P. Fitzsimmons, Esq. W. Va. State Bar ID. #1212 FITZSIMMONS LAW FIRM, PLLC 1609 Warwood Avenue Wheeling, WV 26003 Phone: (304) 277-1700 Fax: (304)277-1705 E-mai]: 11