Shook, Inc. Heavy & Environmental Division v. City of Moundsville Water Board
| Shook, Inc. Heavy & Environmental Division |
| City of Moundsville Water Board |
| 5:2010cv00028 |
| March 2, 2010 |
| US District Court for the Northern District of West Virginia |
| Wheeling Office |
| XX US, Outside State |
| Frederick P. Stamp |
| Contract: Other |
| 28 U.S.C. ยง 1332 Diversity-Other Contract |
| Plaintiff |
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Filing
23
DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS FILED ON FEBRUARY 12, 2010 22 ; GRANTING, IN PART, DEFENDANT MOUNDSVILLE'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(2) 4 TO THE EXTENT PLAINTIFF SHOOK HAS NOT ITS BURDEN OF SHOWING T HAT THE EXERCISE OF PERSONAL JURISDICTION OVER DEFENDANT MOUNDSVILLE COMPORTS WITH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT; DENYING, IN PART, DEFENDANT MOUNDSVILLE'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(2) 4 TO THE EXTENT I T SEEKS AN ORDER DISMISSING THIS CASE AND, INSTEAD, TRANSFERRING VENUE TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA UNDER 28 U.S.C. 1406(a) and 28 U.S.C. 1631; GRANTING DEFENDANT MOUNDSVILLE'S ALTERNATIVE MOTION TO TRANSFER VENUE 4 ; DIRECTING THE CLERK OF COURT TO TRANSFER THIS CASE TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA IN WHEELING, WEST VIRGINIA UNDER 28 U.S.C. 1404(a); AND TERMINATING THE CASE OF THE DOCKET OF THIS COURT. Signed by Judge Walter H Rice on 3/2/2010. (jwd1) [Transferred from Ohio Southern on 3/2/2010.]
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Filing
22
REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Defendant Moundsvilles Motion to Dismiss under Fed. R. Civ. P. 12(b)(2) be GRANTED, in part, to the extent that Plaintiff Shook has not met its burden of showing that the exercise of p ersonal jurisdiction over Defendant Moundsville comports with the Due Process Clause of the Fourteenth Amendment. Yet rather than dismissal, venue of this case should be transferred to the United States District Court for the Northern District of Wes t Virginia under 28 U.S.C. §1406(a) and 28 U.S.C.§1631; 2. Defendant Moundsvilles Motion to Dismiss under Fed. R. Civ. P. 12(b)(2) be DENIED in part to the extent it seeks an Order dismissing this case; and 3. Defendant Moundsvilles Alterna tive Motion to Transfer Venue 4 of this case to the United States District Court for the Northern District of West Virginia under 28 U.S.C. §1404(a) be GRANTED and the Clerk of Court be directed to so transfer this case. Objections to R&R due by 3/1/2010. Signed by Magistrate Judge Sharon L Ovington on 2/12/2010. (jwd1) [Transferred from Ohio Southern on 3/2/2010.]
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Filing
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DISCLOSURE - This civil case has been referred by District Judge Rice for pretrial management under 28 U.S.C. § 636(b) (Doc. No. 14). The Magistrate Judge wishes to disclose the following facts to counsel: from 1947 until his death in 1977, Rob ert L. Merz, the Magistrate Judge's father, was an employee of Chas. H. Shook, Inc., the corporate predecessor of the Plaintiff; from 1962 until 1977, he was an owner of 20% of the shares of that entity (all other shareholders held larger p ercentages). When Robert L. Merz died, his stock was subject to a buyback agreement which was immediately carried out by the undersigned as executor of the estate. The undersigned has never owned any interest in the company. However, he was employed by the company during summers from 1961 through 1967, as were his two brothers during their high school and college years. The undersigned is not aware of which persons are currently active in the ownership or management of the company. In the unders igned's opinion, these facts are not disqualifying in themselves and do not create an appearance of impropriety if the undersigned remains assigned to the case. In the interest of candor, the facts are disclosed so that counsel can make their ow n judgment on that question. Counsel's attention is directed to S. D. Ohio Civ. R. 7.1.1(d). Given Judge Rice's direction in the Preliminary Pretrial Conference Order that a report and recommendations be filed on the pending Motion to Dismiss for Lack of In Personam Jurisdiction "as soon as possible," the parties are urged to consider this matter as promptly as possible. Signed by Magistrate Judge Michael R Merz on 10/27/2009. (kpf1) [Transferred from Ohio Southern on 3/2/2010.]
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| Plaintiff: Shook, Inc. Heavy & Environmental Division | |
| Represented By: | Peter Daniel Welin |
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| Defendant: City of Moundsville Water Board | |
| Represented By: | Michael William Krumholtz |
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