Case 5:13-cv-28160 Document 1 Filed 11/06/13 Page 1 of 4 PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA JAMES RIVER EQUIPMENT, VIRGINIA, LLC, a Virginia Limited Liability Company, PLAINTIFF, v. Civil Action No. 5:13-28160 JUSTICE ENERGY COMPANY, INC., A West Virginia Corporation, DEFENDANT. COMPLAINT NOW COMES Plaintiff James River Equipment, Virginia, LLC, by and through its counsel, Jason S. Hammond and the law firm of Bailey & Wyant, PLLC, and for its Complaint against the Defendant, Justice Energy Company, Inc., states and avers as follows: I. IDENTIFICATION OF PARTIES AND JURISDICTION 1. Plaintiff James River Equipment, Virginia, LLC, (hereinafter referred to as “James River”) is and was at all times relevant herein a Virginia Limited Liability Company maintaining its principal office address at 11047 Leadbetter Road, Ashland, Virginia, 23005. Plaintiff James River is duly authorized to conduct business in the state of West Virginia. 2. Upon information and belief, Justice Energy Company, Inc. (hereinafter referred to as “Justice Energy”), is a West Virginia Corporation, maintaining its principal office address at 100 Cranberry Drive, Beckley, West Virginia, 25801. Upon information and Case 5:13-cv-28160 Document 1 Filed 11/06/13 Page 2 of 4 PageID #: 2 belief, Justice Energy lists with the West Virginia Secretary of State, Roman Semenov, 100 Cranberry Drive, Beckley, West Virginia, 25801, as its Agent for Service of Process. 3. Jurisdiction and Venue are appropriate in the United States District Court for the Southern District of West Virginia, inasmuch as this suit is between citizens of different states and the amount in controversy exceeds the value of $75,000.00, exclusive of interest and costs, pursuant to 28 U.S.C. §1332. II. FACTS 4. Plaintiff James River incorporates by reference its allegations set forth in paragraphs 1-3, above, as though the same were set forth verbatim herein. 5. On or about April 10, 2013, Defendant Justice Energy began purchasing parts, equipment, and service from the Plaintiff, James River, to service equipment that it owns and operates at various mining sites in southern West Virginia. 6. Pursuant to the terms of the invoices, the amount due for James River’s services was payable upon receipt and interest will be charged after 30 days on the remaining balance at a rate of 1.5% per month and associated collection cost, including Court costs and reasonable attorney’s fees were also agreed to by Justice Energy. 7. Between April 10, 2013, and August 12, 2013, Justice Energy purchased parts, service, and equipment in amount of at least $148,496.14, which amount continues to incur finance charges, collection costs, Court costs, and attorney’s fees. 8. Despite demands for payment by James River, Defendant Justice Energy has failed and/or refused to make payment to James River for the parts, service, and equipment supplied by James River. Defendant Justice Energy had failed and/or refused to pay onto Case 5:13-cv-28160 Document 1 Filed 11/06/13 Page 3 of 4 PageID #: 3 James River sums in the amount of at least $148,496.14, which amount continues to incur finance charges, collection costs, Court costs, attorney’s fees, and expenses. III. BREACH OF CONTRACT 9. Plaintiff James River re-alleges and avers each and every allegation set forth in paragraphs 1-8, above, as though the same were set forth verbatim herein. 10. James River entered into contracts with Justice Energy for the purchase of parts, service, and equipment for the benefit of Justice Energy. 11. James River fully performed all of its duties and obligations under the terms of the invoices and agreements with Justice Energy. 12. Despite full and complete performance on the part of James River, Defendant Justice Energy has failed and/or refused to pay sums due in owing to James River under the terms of the contracts. 13. As a direct and proximate result of the breach of contract by Justice Energy, James River has incurred damages, including but not limited to the following: A. Principal amount: 148,496.14; B. Interest at the contractual rate of 1.5% per month; and C. Costs including Court costs and reasonable attorney’s fees. IV. UNJUST ENRICHMENT 14. Plaintiff James River incorporates by reference its allegations of paragraphs 1-13, above, as though the same were set forth verbatim herein. 15. James River has provided service, equipment, materials, and labor, which are incorporated in the equipment owned or operated by Defendant Justice Energy. The Case 5:13-cv-28160 Document 1 Filed 11/06/13 Page 4 of 4 PageID #: 4 service, equipment, materials and labor provided by James River has conveyed an economic benefit to the Defendant. 16. Justice Energy has received economic benefit by way of the services, equipment, materials and labor provided by James River, and Defendant Justice Energy has not tendered any consideration for this economic benefit. 17. As a direct, proximate and foreseeable result of this breach of contract and unjust enrichment, the Plaintiff, James River, has incurred damages, including but not limited to the following: A. The principal balance of $148,496.14; B. Interest at the rate of 1.5% per month; and C. Associated collections costs, including Court costs and reasonable attorney’s fees. WHEREFORE, James River hereby moves this Court for entry of an Order Granting Judgment in its favor against the Defendant, Justice Energy, in the amount of $148,496.14, along with interest at the contractual rate of 1.5% per month, associated collection costs, attorney’s fees, costs, and expenses, and all further relief deemed just and appropriate. Respectfully Submitted, James River Equipment, Virginia, LLC, By Counsel, /s/ Jason S. Hammond Jason S. Hammond, Esq. (WV Bar #8042) BAILEY & WYANT, PLLC 500 Virginia Street, East, Suite 600 Post Office Box 3710 Charleston, West Virginia 25337-3710 T: (304) 345-4222 F: (304) 343-3133 Jhammond@baileywyant.com JS 44 (Rev. 12/12) Case 5:13-cv-28160 Document 1-1 Filed 11/06/13 Page 1 of 2 PageID #: 5 CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS JAMES RIVER EQUIMENT, VIRGINIA, LLC, a Virginia Limited Liability Company, (b) County of Residence of First Listed Plaintiff JUSTICE ENERGY COMPANY, INC., a West Virginia Corporation, County of Residence of First Listed Defendant Hanover County, VA (EXCEPT IN U.S. PLAINTIFF CASES) NOTE: Raleigh County, WV (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) (c) Attorneys (Firm Name, Address, and Telephone Number) Jason S. Hammond, Esquire (WV Bar #8042) 500 Virginia Street East, Suite 600, PO Box 3710 Charleston, WV 25337-3710 II. BASIS OF JURISDICTION (Place an “X” in One Box Only) ’ 1 U.S. Government Plaintiff ’ 3 Federal Question (U.S. Government Not a Party) ’ 2 U.S. Government Defendant ’ 4 Diversity (Indicate Citizenship of Parties in Item III) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State ’ 1 DEF ’ 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place ’ 4 ’ 4 of Business In This State Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place of Business In Another State ’ 5 ’ 5 Citizen or Subject of a Foreign Country ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ TORTS 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property ’ ’ ’ ’ ’ ’ ’ PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education FORFEITURE/PENALTY PERSONAL INJURY ’ 365 Personal Injury Product Liability ’ 367 Health Care/ Pharmaceutical Personal Injury Product Liability ’ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: ’ 463 Alien Detainee ’ 510 Motions to Vacate Sentence ’ 530 General ’ 535 Death Penalty Other: ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition ’ 560 Civil Detainee Conditions of Confinement ’ 625 Drug Related Seizure of Property 21 USC 881 ’ 690 Other BANKRUPTCY ’ 422 Appeal 28 USC 158 ’ 423 Withdrawal 28 USC 157 PROPERTY RIGHTS ’ 820 Copyrights ’ 830 Patent ’ 840 Trademark ’ ’ ’ ’ ’ ’ LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act ’ ’ ’ ’ ’ SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS ’ 870 Taxes (U.S. Plaintiff or Defendant) ’ 871 IRS—Third Party 26 USC 7609 OTHER STATUTES ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes IMMIGRATION ’ 462 Naturalization Application ’ 465 Other Immigration Actions V. ORIGIN (Place an “X” in One Box Only) ’ 1 Original Proceeding ’ 2 Removed from State Court ’ 3 Remanded from Appellate Court ’ 4 Reinstated or Reopened ’ 5 Transferred from Another District ’ 6 Multidistrict Litigation (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 28 U.S.C 1332 VI. CAUSE OF ACTION Brief description of cause: Breach of Contract ’ CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE CHECK YES only if demanded in complaint: ’ Yes ’ No JURY DEMAND: DEMAND $ DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD /s/ Jason S. Hammond, Esq. (WV Bar No.: 8042) 11/06/2013 FOR OFFICE USE ONLY RECEIPT # AMOUNT Print APPLYING IFP Save As... JUDGE MAG. JUDGE Reset Case 5:13-cv-28160 Document 1-1 Filed 11/06/13 Page 2 of 2 PageID #: 6 JS 44 Reverse (Rev. 12/12) INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) (b) (c) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.