1 Case 5:12-cv Document 1 Filed 10/19/12 Page 1 of 9 PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON JEFFREY C. SKEENS, as Administrator of the Estate of Grover Skeens, CAROLYN D. DAVIS, as Administratrix of the Estate of Charles T. Davis and OWEN T. DAVIS, as Administrator of the Estate of Cory Davis, Petitioners, 5: v. Civil Action No. Judge: ALPHA NATURAL RESOURCES, INC., ALPHA APPALACHIA HOLDINGS, INC., f/k/a MASSEY ENERGY COMPANY, Respondents. COMPLAINT TO ENFORCE CONTRACTUAL NON-PROSECUTORIAL AGREEMENT AS IT RELATES TO PAYMENT OF CRIMINAL RESTITUTION OR, IN THE ALTERNATIVE, TO ENFORCE PAYMENTS UNDER PRIOR SETTLEMENT AGREEMENTS The Petitioners, Jeffrey C. Skeens, as Administrator of the Estate of Grover Skeens, Carolyn D. Davis, as Administratrix of the Estate of Charles T. Davis and Owen T. Davis, as Administrator of the Estate of Corey Davis (collectively, Petitioners ), by and through counsel, J. Michael Ranson, Cynthia M. Ranson and Ranson Law Offices; and G. Patrick Jacobs and Jacobs Law Office, state and claim as follows:
2 Case 5:12-cv Document 1 Filed 10/19/12 Page 2 of 9 PageID #: 2 1. That this is an action to enforce a federal Non-Prosecution Agreement under which Alpha Natural Resources, Inc., Alpha Appalachia Holdings, Inc., f/k/a Massey Energy Company (collectively Respondents ) agreed to pay the Petitioners and other persons One Million Five Hundred Thousand Dollars ($1,500,000.00) in criminal restitution. 2. That Petitioner, Jeffrey C. Skeens is the Administrator of the Estate of Grover Skeens, a miner killed in the Upper Big Branch Explosion. 3. That Petitioner, Carolyn D. Davis is the wife and the Administratrix of the Estate of Charles T. Davis, a miner killed in the Upper Big Branch Explosion. 4. That Petitioner, Owen T. Davis is the father and the Administrator of the Estate of Cory Davis, a miner killed in the Upper Big Branch Explosion. 5. That further, the Petitioners bring this petition on behalf of the estates of other miners who were killed in the Upper Big Branch explosion, who have not received criminal restitution and/or full settlements as agreed to by Respondents, or who have been defrauded by Respondents. The said deceased miners are listed as Appendix C in Non-Prosecution Agreement (Exhibit A attached hereto). 6. Respondent Alpha Natural Resources, Inc. is a Virginia corporation doing business in West Virginia. 7. Respondent Alpha Appalachia Holdings, Inc., formerly known as Massey Energy Company, is a Delaware corporation doing business in West Virginia. 8. Respondents Alpha Natural Resources, Inc. and Appalachia Holdings, Inc., purchased Massey Energy Company, and at all times herein, entered into a Non- Prosecution Agreement in the Southern District of West Virginia, in which they
3 Case 5:12-cv Document 1 Filed 10/19/12 Page 3 of 9 PageID #: 3 agreed to pay One Million Five Hundred Thousand Dollars ($1,500,000.00) in criminal restitution to the beneficiaries of the miners killed at Upper Big Branch. 9. That Petitioners respectfully request that this Court certify the estates listed on Appendix C of the Non-Prosecution Agreement as a class, pursuant to Rule 23 of the Federal Rules of Civil Procedure. 10. That when the Upper Big Branch mine exploded, a sonic blast carrying shock waves, debris, projectiles and poisonous gases, among other items, shot down the mine shafts and out various portals. 11. That the effects of the explosion in the immediate area caused death to many miners, including without limitation, said Grover Skeens, Charles T. Davis and Cory Davis. 12. That unbeknownst to Petitioners, a Non-Prosecution Agreement was entered into between Respondents and the United States Attorney s Office for the Southern District of West Virginia ( USAO ) and the United States Department of Justice ( USDOJ ). 13. That as part of said Non-Prosecution Agreement, Respondents agreed to the following: As restitution for the victims injured in the UBB explosion, Alpha agrees to pay, or to cause Massey or its affiliates to pay, at least $1,500,000 to each of the families of the fallen miners and to two individuals affected by the UBB explosion. (emphasis added). 14. That Appendix C of the Non-Prosecution Agreement states that $16,500,000 was previously or anticipated to be paid as part of settlements with the families of eleven of the fallen miners in the actions. (emphasis added).
4 Case 5:12-cv Document 1 Filed 10/19/12 Page 4 of 9 PageID #: That at no time prior to the signing of said Non-Prosecution Agreement, had Petitioners been paid any criminal restitution as part of any settlement, nor have they been paid since that date. 16. That Petitioners and those listed on Appendix C of the Non-Prosecution Agreement did settle their respective civil wrongful death suits with the above Defendants for Sum X and Terms Y In negotiating Sum X and Terms Y, the Non-Prosecution Agreement clearly set forth what was being paid and the terms of said payment. 18. That specific Y terms were executed by Petitioners and their families listed on Appendix C, and Term Y will set forth for what claims Sum X resolved. 19. That as a matter of law, the settlements for which Sum X were paid and received were solely civil wrongful death claim proceeds, and all of these settlements were approved by various circuit courts in West Virginia as such. 20. That as part of the approval process, West Virginia law requires that testimony and/or evidence be given and representations be made to the Court regarding the terms of the settlement and the amounts of the settlement. 21. That the transcript of those hearings, if released by the Court, will verify the basis upon which Sum X was paid to those listed on Appendix C. 22. That at no time prior to resolving their respective cases with the Respondents was an amount for criminal restitution ever disclosed and/or discussed with Petitioners. 1 The amount of settlement is under a confidentiality agreement. In fact, the Respondents are in breach of that agreement. Upon an Order from this Court the amounts and terms can be disclosed, as well as those terms set forth in the settlement documents. The Petitioners ask this Court to examine those documents regarding the criminal restitution issue.
5 Case 5:12-cv Document 1 Filed 10/19/12 Page 5 of 9 PageID #: That any representation that monies were paid to Petitioners or any member of Appendix C as criminal restitution prior to the date of executing the Non- Prosecution Agreement by the defendants is fraudulent. 24. That the estates of the deceased miners named in the Non-Prosecution Agreement in Appendix D were all paid Five Hundred Thousand Dollars ($500,000.00) in criminal restitution shortly after the signing of the Non- Prosecution Agreement, and they were apparently paid an additional One Million Dollars ($1,000,000.00) in criminal restitution under the Non-Prosecution Agreement. 25. That said the Five Hundred Thousand Dollars ($500,000.00) in criminal restitution paid to Appendix D recipients was not paid as part of a civil wrongful death settlement but was paid to the estates of the deceased miners to be distributed according to the laws of descent and distribution as set forth in the Non-Prosecution Agreement. 26. The families listed on Appendix C have not been paid any criminal restitution. 27. That Respondents committed this misrepresentation and/or fraud in order to avoid paying any criminal restitution to the injured miners listed in Appendix C. 28. That it is clear from the agreement that Respondents intended to use, and have in fact used, monies from a settlement with the individuals named in the Non- Prosecution Agreement as restitution money, even though such a representation was never made to these Petitioners, or to anyone on Appendix C, and even though Petitioners agree to such terms. 29. That Respondents made false public announcement that restitution was paid, or would be paid when, in fact, no such payments have been paid to Petitioners.
6 Case 5:12-cv Document 1 Filed 10/19/12 Page 6 of 9 PageID #: 6 COUNT I ENFORCEMENT OF NON-PROSECUTION AGREEMENT 30. That the preceding paragraphs are realleged as if restated herein. 31. That Respondents agreed as part of the Non-Prosecution Agreement to pay One Million Five Hundred Thousand Dollars ($1,500,000.00) in criminal restitution to family members listed on Appendix C. 32. That Respondents have failed to make said payments. 33. That Respondents should be required to make the payment as set forth in the Non-Prosecution Agreement. COUNT II ENFORCEMENT OF SETTLEMENT AGREEMENTS 34. That the preceding paragraphs are realleged as if restated herein. 35. That Petitioners did not, and were not required to, sign a release in exchange for criminal restitution. 36. That if it is Respondents representation that One Million Five Hundred Thousand Dollars ($1,500,000.00) of Sum X was paid for criminal restitution and not part of the payment for the settlement of the civil wrongful death claim, then the settlement amount agreed upon to settle the wrongful death claim is now due and owing to each of the Petitioners in the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) to each petitioner. 37. That Respondents should be required the pay the full sums due and owning as Sum X, as agreed by the parties and as approved by the circuit courts of West Virginia.
7 Case 5:12-cv Document 1 Filed 10/19/12 Page 7 of 9 PageID #: 7 COUNT IIII FAILURE TO PAY FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) TO THE ESTATES 38. That the preceding paragraphs are realleged as if restated herein. 39. That in the event the Court would find as a matter of law that the previous settlement should be designated as payment of criminal restitution then only One Million Dollars ($1,000,000.00) of settlement monies was designated as settlement monies. 40. That Five Hundred Thousand Dollars ($500,000.00) of criminal restitution was paid to the Estates of Appendix D and the same amount should be paid to Estates set forth in Appendix C. COUNT IV FRAUD 41. That the preceding paragraphs are realleged as if restated herein. 42. That in the event Respondents intended to use settlement money paid in civil wrongful death claims as criminal restitution as well, then Respondents defrauded Petitioners and those listed on Appendix C, inasmuch as they informed Petitioners and the circuit courts of West Virginia that said payment of Sum X was for payment of settlement of the civil wrongful death claims, and the Petitioners have been harmed as a result of said fraud.
8 Case 5:12-cv Document 1 Filed 10/19/12 Page 8 of 9 PageID #: 8 WHEREFORE, Petitioners, as victims of the Upper Big Branch Mine explosion, seek the following relief: a. That the Court recognize those on Appendix C as a Class; b. That the Court order Respondents to pay One Million Five Hundred Thousand Dollars ($1,500,000.00) to each Petitioner as criminal restitution; c. That, if any of the previous settlements monies paid to these Petitioners is designated and/or defined as criminal restitution, the Court order the full amount of the civil wrongful death settlements be paid to Petitioners, forthwith; d. That, if the Court allows prior civil wrongful death settlements to satisfy criminal restitution payments, the Court order Respondents to pay the remaining Five Hundred Thousand Dollars ($500,000.00) of criminal restitution owed to the estates of those miners listed on Appendix C; e. Punitive damages for any fraud that was committed. f. That Respondents pay all costs and attorney fees associated with this action; g. Any other relief that the Court believes is just and equitable. /s/ J. Michael Ranson J. Michael Ranson State Bar # 3017 Cynthia M. Ranson State Bar # 4983 George B. Morrone, III, State Bar #4980 Ranson Law Offices, PLLC 1562 Kanawha Blvd., East Post Office Box 3589 Charleston, West Virginia (304) JEFFREY C. SKEENS, as Administrator of the Estate of Grover Skeens, CAROLYN D. DAVIS, as Administratrix of the Estate of Charles T. Davis and OWEN T. DAVIS, as Administrator of the Estate of Cory Davis, By Counsel
9 Case 5:12-cv Document 1 Filed 10/19/12 Page 9 of 9 PageID #: 9 G. Patrick Jacobs State Bar # MacCorkle Avenue, SE Charleston, WV (304) Counsel for Petitioners
10 Case 5:12-cv Document 1-1 Filed 10/19/12 Page 1 of 2 PageID #: 10 JS 44 (Rev. ) 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 Jeffrey C. Skeens, as Administrator of the Estate of Grover Skeens, Alpha Natural Resources, Inc., Alpha Appalachia Holdings, Inc., f/k/a Carolyn D. Davis, as Administratrix of the Estate of Charles T. Davis and Massey Energy Company Owen T. Davis, as Administrator of the Estate of Corey Davis (b) County of Residence of First Listed Plaintiff Bexar, Texas County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Ranson Law Offices, POB 3589, Charleston, WV 25336, Attorneys (If Known) and Jacobs Law Office, 7020 MacCorkle Avenue, SE, Charleston, WV II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff) (For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an X in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC False Claims Act 120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC Withdrawal 400 State Reapportionment 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC Antitrust 140 Negotiable Instrument Liability 367 Health Care/ 430 Banks and Banking 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 450 Commerce & Enforcement of Judgment Slander Personal Injury 820 Copyrights 460 Deportation 151 Medicare Act 330 Federal Employers Product Liability 830 Patent 470 Racketeer Influenced and 152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark Corrupt Organizations Student Loans 340 Marine Injury Product 480 Consumer Credit (Excl. Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY 490 Cable/Sat TV 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 850 Securities/Commodities/ of Veteran s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) Exchange 160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 890 Other Statutory Actions 190 Other Contract Product Liability 380 Other Personal 740 Railway Labor Act 864 SSID Title XVI 891 Agricultural Acts 195 Contract Product Liability 360 Other Personal Property Damage 751 Family and Medical 865 RSI (405(g)) 893 Environmental Matters 196 Franchise Injury 385 Property Damage Leave Act 895 Freedom of Information 362 Personal Injury - Product Liability 790 Other Labor Litigation Act Med. Malpractice 791 Empl. Ret. Inc. 896 Arbitration REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Security Act FEDERAL TAX SUITS 899 Administrative Procedure 210 Land Condemnation 440 Other Civil Rights 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act/Review or Appeal of 220 Foreclosure 441 Voting Sentence or Defendant) Agency Decision 230 Rent Lease & Ejectment 442 Employment Habeas Corpus: 871 IRS Third Party 950 Constitutionality of 240 Torts to Land 443 Housing/ 530 General 26 USC 7609 State Statutes 245 Tort Product Liability Accommodations 535 Death Penalty IMMIGRATION 290 All Other Real Property 445 Amer. w/disabilities Mandamus & Other 462 Naturalization Application Employment 550 Civil Rights 463 Habeas Corpus Amer. w/disabilities Prison Condition Alien Detainee Other 560 Civil Detainee - (Prisoner Petition) 448 Education Conditions of 465 Other Immigration Confinement Actions V. ORIGIN 1 Original Proceeding VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY DATE FOR OFFICE USE ONLY (Place an X in One Box Only) Transferred from 2 Removed from 3 Remanded from 4 Reinstated or 5 another district 6 Multidistrict State Court Appellate Court Reopened (specify) Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause: Complaint to Enforce Contractual Non-Prosecutorial Agreement As It Relates to Payment of Criminal Restitution CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: UNDER F.R.C.P. 23 JURY DEMAND: Yes No (See instructions): JUDGE SIGNATURE OF ATTORNEY OF RECORD 10/19/2012 /s/ J. Michael Ranson DOCKET NUMBER RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
11 JS 44 Reverse (Rev. ) Case 5:12-cv Document 1-1 Filed 10/19/12 Page 2 of 2 PageID #: 11 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) 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. (b) 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.) (c) 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.C.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 and 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; 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 clerks 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 seven 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 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 When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge s decision. 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 dollar amount (in thousands of dollars) 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.