State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, No. 23838

CourtSupreme Court of West Virginia
Writing for the CourtSTARCHER; MAYNARD
Citation489 S.E.2d 266,200 W.Va. 289
Parties, 156 L.R.R.M. (BNA) 2910 STATE of West Virginia ex rel. UNITED MINE WORKERS OF AMERICA, LOCAL UNION 1938, Dana V. Bender, Clarence D. Dixon, Dennis D. Harris, Paul G. Isner, Donald D. Lloyd, Jerry A. Marco, Mason E. Payne, Larry I. Pigott, Dwight L. Riegel, Jimmie G. Samples, James H. Shiflett, Ronald L. Thorne and Wayne A. Woodall, Petitioners, v. The Honorable John L. WATERS, Judge of the Circuit Court of Barbour County, and Energy Marketing Company, Inc., a West Virginia Corporation, Respondents.
Decision Date16 July 1997
Docket NumberNo. 23838

Page 266

489 S.E.2d 266
200 W.Va. 289, 156 L.R.R.M. (BNA) 2910
STATE of West Virginia ex rel. UNITED MINE WORKERS OF
AMERICA, LOCAL UNION 1938, Dana V. Bender, Clarence D.
Dixon, Dennis D. Harris, Paul G. Isner, Donald D. Lloyd,
Jerry A. Marco, Mason E. Payne, Larry I. Pigott, Dwight L.
Riegel, Jimmie G. Samples, James H. Shiflett, Ronald L.
Thorne and Wayne A. Woodall, Petitioners,
v.
The Honorable John L. WATERS, Judge of the Circuit Court of
Barbour County, and Energy Marketing Company,
Inc., a West Virginia Corporation, Respondents.
No. 23838.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 14, 1997.
Decided Feb. 24, 1997.
Dissenting Opinion of Justice Maynard
July 16, 1997.

Page 269

[200 W.Va. 292] Syllabus by the Court

1. "Although the effect of an ex parte order granting a preliminary injunction remains the same under W.Va.Code § 53-5-8, a court shall grant such an injunction only if it clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition. The applicant's attorney must certify to the court the efforts, if any, which have been made to give the notice and the reasons supporting any claim that notice should not be given." Syllabus Point 3, Ashland Oil, Inc. v. Kaufman, 181 W.Va. 728, 384 S.E.2d 173 (1989).

2. "In determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated upon a Rule 60(b) motion, the trial court should consider: (1) the degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party." Syllabus Point 3, Parsons v. Consolidated

Page 270

[200 W.Va. 293] Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979).

3. "A state court may enjoin pickets from engaging in obstructive, disruptive, or intimidating behavior. Such conduct is not protected under the National Labor Relations Act, and is clearly subject to state court control in the first instance, even though the National Labor Relations Board is considering an unfair labor practice charge filed by a union arising out of the same incident." Syllabus Point 2, Riesbeck Food Markets, Inc. v. United Food and Commercial Workers, Local Union 23, 185 W.Va. 12, 404 S.E.2d 404 (1991).

4. Upon a party's claim of pre-emption of state court jurisdiction by proceedings before the National Labor Relations Board, a circuit court should conduct an evidentiary hearing and make findings of fact and conclusions of law to determine whether there is a need for the continued exercise of state court jurisdiction, or whether the circuit court should defer to the jurisdiction of the NLRB.

Charles F. Donnelly, Hostler & Donnelly, L.C., Charleston, for Petitioners.

Anthony Julian, Charles Anderson, Fairmont, for Respondents.

STARCHER, Justice:

This is a writ of prohibition in which the petitioners, a labor union local and thirteen of its members, seek to prohibit the respondent circuit judge from exercising jurisdiction in a case arising out of a labor dispute.

In the underlying case, the respondent judge issued a preliminary injunction restraining the petitioners' "picket-line" conduct at the request of the respondent coal company without any notice to the petitioners. Subsequently the judge entered a default judgment against the petitioners, making the injunction permanent and adjudging the petitioners liable for damages; the judge later denied the petitioners' motion to set aside the default judgment and to defer jurisdiction to the National Labor Relations Board.

We find that the ex parte preliminary injunction was issued in violation of petitioners' due process rights and should be vacated. Additionally, we hold that the petitioners' motion to set aside the default judgment should have been granted. We also find that the record in the proceedings below does not support the circuit court's continued exercise of its jurisdiction in this case. We grant the writ as moulded.

I.

Facts and Background

On July 15, 1996, the respondent Energy Marketing Co., Inc. ("Energy Marketing") filed a complaint in the Circuit Court of Barbour County, naming as defendants Local 1938 of the United Mine Workers of America ("Local 1938") and thirteen individuals 1 (the union local and the individuals are collectively hereinafter referred to as "petitioners").

The complaint alleged: (1) that Energy Marketing (the plaintiff below) was in the process of mining coal at a Barbour County mine that Energy Marketing had purchased from Rauer Coal Corporation ("Rauer") in a bankruptcy sale; (2) that the petitioners (the defendants below) were Local 1938 and its members who were formerly employed by Rauer; and (3) that the petitioners had "stopped, harassed, and threatened coal truck drivers ... hired by Energy Marketing ... to transport its coal to market ..." from the former Rauer mine.

The complaint further alleged that Energy Marketing was "without a remedy at law to protect its business from the economic hardships caused by the refusal of the truck drivers to fulfill the contracts due to threats of violence." No dates, times, or places for the petitioners' alleged conduct were further specified in the complaint. The complaint had been verified by Energy Marketing's president on July 13, 1996.

Page 271

[200 W.Va. 294] The complaint sought a "Temporary Restraining Order" [sic] 2 against petitioners "enjoining them from interfering with the extradition [sic] and transportation of coal ..." by Energy Marketing. The complaint also made a claim for money damages against the petitioners "in amounts adequate to compensate plaintiff for any and all losses occasion [sic] by the actions of the defendants."

On the same day that the complaint was filed (July 15, 1996) Energy Marketing's counsel went to the Taylor County chambers 3 of the respondent judge and asked the judge to issue a preliminary injunction against petitioners. Based on counsel's statements, 4 the respondent judge signed an "Order Granting Plaintiff's Request for Temporary Injunction."

The July 15, 1996 preliminary injunction order was brief. The order did not contain findings of fact or conclusions of law, or state any reasons for its issuance. The order preliminarily enjoined the petitioners from "obstructing in any manner ... [Energy Marketing's] access to or from their property ... [or] interfering with the extradition [sic] and transportation of coal by ... [Energy Marketing] to and from its property ... in any manner whatsoever." The order stated that no bond would be required of Energy Marketing, but gave no reason for not requiring a bond.

Subsequently, Energy Marketing had copies of the preliminary injunction order and the complaint personally served upon the union members named in the complaint. Three union members were served on July 15, the day the order was signed; five were served on the next day, July 16; one was served on July 18; one on July 19; one on July 22; one on July 23; and one on August 15, 1996.

On July 17, 1996, the petitioners filed an unfair labor practice charge against Energy Marketing with the National Labor Relations Board ("NLRB"), pursuant to the National Labor Relations Act, 29 U.S.C. Secs. 151-169 [1988]. The charge complained that Energy Marketing had "discriminated in terms of hiring against the former employees of Rauer Coal Company, based on their concerted activity and status as union members." This NLRB charge is pending.

On about August 28, 1996, without notice to the petitioners, Energy Marketing tendered to the respondent judge a proposed default judgment order. 5 On August 29, 1996, the respondent judge signed the order. As with the July 15, 1996 preliminary injunction order, the default judgment order did not contain any findings of fact or conclusions of law (other than reciting the nonappearance of the petitioners and the consequent entitlement of Energy Marketing to judgment by default.)

Using the same wording as the July 15, 1996 preliminary injunction order, the August 29, 1996 default judgment order made permanent the restrictions on the petitioners which had been preliminarily ordered. The default judgment order also ruled that Energy Marketing was entitled to collect damages, attorney fees, and court costs from the

Page 272

[200 W.Va. 295] petitioners. Lastly, the order set October 9, 1996 for a hearing on the amount of damages owed by the petitioners to Energy Marketing.

On September 9, 1996, the petitioners filed an answer and counterclaim. The answer denied all of Energy Marketing's allegations of harassment, threats, and illegal interference with coal transportation. The petitioners' counterclaims included: (1) tortious interference with petitioners' contractual rights; (2) violations of the West Virginia Human Rights Act, W.Va.Code, 5-11-1 et seq. [1967]; and (3) violations of federal labor law based upon the refusal of Energy Marketing to honor alleged collective bargaining agreements. Invoking, inter alia, West Virginia Rules of Civil Procedure 60(b), the petitioners filed with their answer and counterclaim a "Motion to Dismiss the Complaint and Vacate the Injunction and Judgment." 6

On October 9, 1996, the respondent judge heard argument on the petitioners' motion to dismiss the complaint and vacate the default judgment. The petitioners' counsel asserted that the petitioners' picketing was entirely peaceful, and argued that the circuit court should defer jurisdiction to the NLRB, because the pending NLRB charges pre-empted the circuit court's jurisdiction. The petitioners' counsel also contended, inter alia, that the lack of notice to the petitioners required the voiding of the injunction and the default...

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21 practice notes
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...supporting any claim that notice should not be given." Syl. pt. 1, in part, United Mine Workers of Am., Local Union 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997) (quoting Syl. pt. 3, in part, Ashland Oil, Inc. v. Kaufman, 181 W.Va. 728, 384 S.E.2d An examination of the injunctiv......
  • State ex rel. McGraw v. Telecheck Services, Inc., No. 30731.
    • United States
    • Supreme Court of West Virginia
    • May 16, 2003
    ...reviewed such orders in considering petitions seeking writs of prohibition. See, e.g., State ex rel. U.M.W.A. Local 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (prohibition to review court's grant of preliminary injunction); Truby v. Broadwater, 175 W.Va. 270, 332 S.E.2d 270 (prohibition ......
  • State ex rel. McGraw v. TELECHECK SERVICES, No. 30731.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2003
    ...reviewed such orders in considering petitions seeking writs of prohibition. See, e.g., State ex rel. U.M.W.A. Local 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997) (prohibition to review court's grant of preliminary injunction); Truby v. Broadwater, 175 W.Va. 270, 332 S.E.2d 284 (1985)......
  • Bailey v. Norfolk and Western Ry. Co., No. 26004.
    • United States
    • Supreme Court of West Virginia
    • December 15, 1999
    ...the jurisdiction of the court in any pending proceeding." State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, 200 W.Va. 289, 297, 489 S.E.2d 266, 274 (1997). See Chesapeake & Ohio Sys. Fed'n v. Hash, 170 W.Va. 294, 299, 294 S.E.2d 96, 101 (1982). Moreover, &qu......
  • Request a trial to view additional results
19 cases
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...supporting any claim that notice should not be given." Syl. pt. 1, in part, United Mine Workers of Am., Local Union 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997) (quoting Syl. pt. 3, in part, Ashland Oil, Inc. v. Kaufman, 181 W.Va. 728, 384 S.E.2d An examination of the injunctive ord......
  • State ex rel. McGraw v. Telecheck Services, Inc., No. 30731.
    • United States
    • Supreme Court of West Virginia
    • May 16, 2003
    ...reviewed such orders in considering petitions seeking writs of prohibition. See, e.g., State ex rel. U.M.W.A. Local 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (prohibition to review court's grant of preliminary injunction); Truby v. Broadwater, 175 W.Va. 270, 332 S.E.2d 270 (prohibition ......
  • State ex rel. McGraw v. TELECHECK SERVICES, No. 30731.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2003
    ...reviewed such orders in considering petitions seeking writs of prohibition. See, e.g., State ex rel. U.M.W.A. Local 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997) (prohibition to review court's grant of preliminary injunction); Truby v. Broadwater, 175 W.Va. 270, 332 S.E.2d 284 (1985)......
  • Bailey v. Norfolk and Western Ry. Co., No. 26004.
    • United States
    • Supreme Court of West Virginia
    • December 15, 1999
    ...to the jurisdiction of the court in any pending proceeding." State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, 200 W.Va. 289, 297, 489 S.E.2d 266, 274 (1997). See Chesapeake & Ohio Sys. Fed'n v. Hash, 170 W.Va. 294, 299, 294 S.E.2d 96, 101 (1982). Moreover, "the cour......
  • Request a trial to view additional results

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