International Union, United Mine Workers of America et al v. Consol Energy, Inc. et alRESPONSES.D.W. Va.July 25, 2018IN THE UNITED STATED DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Bluefield Division INTERNATIONAL UNION, UNITED | MINE WORKERS OF AMERICA, | JAMES ASBURY, ROGER BEAVERS, LARRY | BREWSTER, CLINTON FIELDS, ARNOLD | MARRS, and EUGENE SCHRADER. | | | Plaintiffs. | | v. | Civil No. 16-12506 | Hon. David A. Faber CONSOL ENERGY, INC., and its wholly owned | subsidiaries: HELVETIA COAL COMPANY, | ISLAND CREEK COAL COMPANY, LAUREL | RUN MINING COMPANY, and CONSOL | AMONATE FACILITY, LLC. | | Defendants. | | --------------------------------------------------------------- PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE SUBSIDIARY DEFENDANTS’ MOTION TO DISMISS This case has taken a long road through two courts to get to this point, where all the parties’ claims are at last pending before the same Court for a decision on their merits. Before presenting arguments in opposition to the Defendant subsidiary companies’ motion to dismiss, Plaintiffs will summarize the proceedings to date. I. Summary of Proceedings to Date The dispute at issue in this case began with a series of communications Defendant CONSOL Energy, Inc. sent for itself and the shell subsidiary Defendants (collectively, “CONSOL”) to Plaintiffs and other beneficiaries of the Employer Plan, a collective bargaining agreement with the Plaintiff United Mine Workers of America (“UMWA”) providing for lifetime retiree health benefits that was negotiated in conjunction with the 2011 National Bituminous Coal Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 1 of 28 PageID #: 2297 2 Wage Agreement (“2011 NBCWA”). Second Amended Compl., ECF No. 78 at 2-3, 6. In those communications, sent between March 2016 and January 2017, CONSOL threatened that it was exiting the coal industry and intended to terminate the defined health benefits provided through group insurance under the Employer Plan. Second Amended Compl., ECF No. 78 at 8-10, 12, 14. It purported in at least one communication to beneficiaries sent January 12, 2017 to have modified the terms of the Employer Plan to eliminate the Resolution of Dispute (“ROD”) arbitration mechanism and require them to bring all disputes to the Western District of Pennsylvania (“WDPa”). ECF No. 8, Ex. 32. On November 10, 2016, the UMWA invoked the ROD mechanism at Article III A(10)(b) of the Employer Plan, which specifies that: “The Trustees of the UMWA Health and Retirement Funds will resolve any disputes, including excessive fee disputes, to assure consistent application of the Plan provisions under the 2011 Wage Agreement.” ECF No. 8, Ex. 8 at 76. The form filed by a UMWA official named one individual miner receiving benefits under the Employer Plan for purposes of identifying the relevant beneficiary group, but the UMWA indicated in that form that the dispute covered all beneficiaries of the Employer Plan where it specifically requested an order from the Trustees that “CONSOL must notify its retirees that it cannot make any changes in their benefits without the agreement of the UMWA.” ECF No. 8, Ex. 21. On December 22, 2016, the UMWA transmitted a letter to CONSOL asking that it take no further action pending a decision by the Trustees of the UMWA Health and Retirement Funds (hereafter “Trustees”) on ROD No. 11-0143. ECF No. 8, Ex. 28. On December 23, 2016, the UMWA, together with individual retired miners who are members of the UMWA, filed in this Court the original complaint alleging a breach of the Employer Plan and seeking a preliminary injunction prohibiting CONSOL from unilaterally terminating the Employer Plan benefits or Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 2 of 28 PageID #: 2298 3 sending retired miner beneficiaries additional letters threatening such termination pending the disposition of ROD dispute No. 11-0143 challenging its authority to do so. Compl., ECF No. 1. On January 2, 2017 - ten days after the UMWA and retired miners filed their Complaint in this Court commencing this case, CONSOL commenced an action in the WDPa in the name of its wholly-owned subsidiary companies that are Defendants in this action. Helvetia Coal Co. et al v. UMWA, Civ No. 17-00002 (WDPa. filed Jan. 2, 2017) (hereafter “First WDPa Action”). In their WDPa complaint, CONSOL sought, inter alia: (1) a declaration that ROD No. 11-0143 is not arbitrable and an order enjoining its arbitration; (2) a declaration that the ROD process is not applicable to retiree health benefits disputes that arise after the 2011 NBCWA expired on December 31, 2016, and an order enjoining arbitration of ROD No. 11-0143; and, (3) a declaration that CONSOL’s substitute HRA scheme does not breach the requirements of the Employer Plan. See First WDPa Action, Compl., ECF at No. 1; See also Helvetia Coal Co. et al v. UMWA, 2017 WL 3669415 at *2-3 (W.D. Pa. Aug. 23, 2017) (summarizing complaint allegations in opinion and order transferring the case). On January 20, 2017, CONSOL filed a motion to dismiss Plaintiffs’ original complaint filed in this Court, claiming the Court lacked jurisdiction because it was the shell subsidiary companies and not the parent CONSOL Energy, Inc. that was party to the labor agreements at issue and the court lacked personal jurisdiction over the subsidiaries. ECF No. 13. CONSOL’s motion sought, in the alternative, a transfer of this case to the WDPa. Id. On January 24, 2017, in an effort to avoid needless litigation over CONSOL’s motion to dismiss, the UMWA and retired miner Plaintiffs filed its First Amended Complaint for the sole purpose of adding as Defendants to this case the shell subsidiary Defendants. ECF No. 16. All four subsidiaries were served copies of Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 3 of 28 PageID #: 2299 4 the amended complaint on January 25, 2016 at their identical registered address - CONSOL Energy corporate headquarters. ECF Nos. 25-28. On January 17, 2017, CONSOL filed in the WDPa a Motion for Partial Summary Judgment declaring ROD No. 11-0143 not arbitrable. First WDPa Action, ECF No. 10. On January 23, 2017, CONSOL filed in the WDPa a Motion for Preliminary Injunction to stay arbitration of ROD No. 11-0143. First WDPa Action, ECF No. 14. Both Motions requested relief predicated on a finding that CONSOL’s obligation to arbitrate ROD disputes arising under the Employer Plan had terminated upon the December 31, 2016 expiration of the 2011 NBCWA. On March 8, 2017, the WDPa denied CONSOL’s emergency request for an order staying the arbitration. The arbitration proceeded, and CONSOL participated under protest. Second Amended Compl., ECF 78 at 15. On January 26, 2017, the UMWA filed a Motion to Dismiss the First WDPa Action on the grounds that this case in the Southern District of West Virginia was first-filed. First WDPa Action, ECF No. 20. The WDPa stayed the deadlines for the UMWA to reply to CONSOL’s Motion for Partial Summary Judgment and reserved judgment on the UMWA’s Motion to Dismiss until completion of briefing, but announced that “[i]n the interim, the Court will defer to the US District Court for the Southern District of West Virginia.” First WDPa Action, ECF No. 25. On February 1, 2017, a hearing was held before this Court on Plaintiffs’ Motion for a Preliminary Injunction enjoining CONSOL from terminating or modifying the retiree health benefits provided through the Employer Plan. ECF No. 35. At hearing and in post-hearing briefing, the parties presented evidence and argument as to: (1) whether the court had subject matter jurisdiction over the dispute and personal jurisdiction over the parties; (2) CONSOL’s continuing obligation to arbitrate ROD No. 11-0143 despite expiration of the 2011 NBCWA; (3) the threat of Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 4 of 28 PageID #: 2300 5 irreparable harm to the arbitration process in the absence of injunctive relief; and (4) the other equitable principles necessary to injunctive relief. ECF Nos. 39, 42, 45. On March 17, 2017, this Court issued an Opinion and Order granting Plaintiffs’ Motion for a Preliminary Injunction, granting CONSOL Energy’s motion to dismiss its shell subsidiaries for want of personal jurisdiction, and denying CONSOL’s request to transfer the case to the WDPa. ECF Nos. 50 and 51; Int’l Union v. Consol Energy, Inc., 243 F. Supp. 3d 755 (S.D.W. Va. 2017). In granting the injunction, this Court found that “CONSOL Energy is signatory to a collective bargaining agreement at issue in this matter” as demonstrated by a letter evidencing CONSOL Energy’s sponsorship of the Employer Plan. Id. at 762. The Court further found that “in fact and deed, Defendant CONSOL Energy is the agent of Defendant subsidiaries, none of which have employees or other personnel to make any significant operational or administrative decisions or exercise control over the Employer Plan independent of Defendant CONSOL Energy” and concluded “that Defendant CONSOL Energy is the real party in interest and is subject to the court's power to issue an injunction.” Id. at 762. In its March 17, 2017 Opinion and Order, this Court also concluded that “ROD [No. 11- 0143] requesting an order from the Trustees addressing pre-and post-expiration communications unjustifiably threatening termination of the Employer Plan is arbitrable.” Id. at 764. The injunction prohibited CONSOL from making changes to the retiree healthcare plan pending issuance of the arbitration decision and “further order of the Court.” ECF No. 51 at p.1. CONSOL Energy filed an interlocutory appeal of the preliminary injunction. See UMWA v. CEI, No. 17-1378 (4th Cir. filed March 23, 2017) (dismissed as moot on November 27, 2017 following issuance of the arbitration award). Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 5 of 28 PageID #: 2301 6 On August 23, 2017, following briefing and argument, the WDPa issued an opinion and order concluding with respect to the UMWA’s Motion to Dismiss that “[w]hile neither the parties nor the issue in the two cases perfectly align, the Court finds that the subject matter of these cases, the real parties in interest and the legal questions presented in these cases are so substantially similar as to warrant application of the first-filed rule.” First WDPa Action, ECF No. 40 at p.7. In its discussion of the “significant overlap” of issues raised in this case and First WDPa Action, the WDPa noted that “the arbitrability of the underlying dispute” was litigated in this case and “the West Virginia court implemented the preliminary injunction, in part, to prevent a premature non- arbitral decision . . . .” Id. Rather than dismiss the case, the WDPa found “significant interests of judicial economy that will be best served by transferring this case to the West Virginia court, which has expended substantial time and thoughtful consideration to the legal questions surrounding this factual situation.” Id. at pp.7-8. On August 24, 2017, the WDPa transferred the First WDPa Action to this Court. First WDPa Action, ECF No. 41. Shortly after its transfer, the CONSOL subsidiaries attempted to avoid a final determination from this Court as to the validity of the ROD decision by voluntarily and unilaterally dismissing their transferred complaint. Helvetia Coal Company et al v. United Mine Workers of America, Civ No. 17-03876, ECF No. 42. CONSOL was able to unilaterally dismiss the transferred case since it had not yet been consolidated with this case and the UMWA had not yet filed an answer in First WDPa Action prior to its transfer. On October 31, 2017, the Trustees issued a final and binding decision on ROD No. 11- 0143. [CITE]. In that decision, the Trustees decided, inter alia, that CONSOL is only permitted to make changes to the Employer Plan upon joint agreement with the UMWA, and that the proposed Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 6 of 28 PageID #: 2302 7 changes CONSOL described in its submissions to the Trustees describing the HRA scheme would not provide the level of health benefits mandated in the Employer Plan. ECF No. 78, Ex. 1. On October 31, 2017 Plaintiffs filed a Motion for Leave to File a Second Amended Complaint, seeking to supplement the pleadings with a request for an order against all Defendants confirming the ROD decision. ECF No. 67. In addition, Plaintiffs sought a declaration that CONSOL Energy and its subsidiaries violated their fiduciary duties under the Employee Retirement Income Security Act (“ERISA”) by sending misleading communications to the individual retired miner plaintiffs and other retired coal miners, their widows and dependents. CONSOL opposed Plaintiffs' Motion for Leave, repeating the argument that the parent CONSOL Energy, Inc. was not answerable for the conduct at issue and arguing that Plaintiffs' ERISA claim would be futile. On the same day Plaintiffs requested leave to supplement their original Complaint in this case, October 31, 2017, CONSOL made its second attempt to flee a final decision on the merits from this Court, filing yet another a duplicative action in the WDPa. Helvetia Coal Co. v. UMWA, 17-CIV-1417 (W.D.Pa. filed Oct. 31, 2017) (hereafter, “Second WDPa Action”). In that case, CONSOL sought, inter alia, an order vacating the ROD decision. The UMWA responded by filing in the Second WDPa Action a motion to dismiss, requesting transfer of CONSOL’s complaint to this Court under the first-filed rule for consolidation with this case. Second WDPa Action, ECF Nos. 15 and 28. The UMWA later filed an answer for the purpose of preventing the shell subsidiaries from unilaterally dismissing the case following an anticipated order from the WDPa transferring it to this Court. Second WDPa Action, ECF No. 32. On May 28, 2018, this Court issued an opinion and order granting Plaintiffs leave to amend their first-filed Complaint to include claims against all Defendants, parent and subsidiaries, for Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 7 of 28 PageID #: 2303 8 enforcement of the ROD decision and for equitable relief pursuant to the Employee Retirement Income Security Act (“ERISA”). ECF No. 77. The Court decided that “in order to untangle the specific actions taken by each defendant and to become fully aware of the responsibilities allocated under the Employer Plan, the court allows Plaintiffs’ ERISA claims against all Defendants to proceed.” The UMWA and individual retired miners filed their Second Amended Complaint on May 23, 2018. ECF No. 78. Service of the Second Amended Complaint was completed on each of the shell subsidiary Defendants at their parent company’s corporate headquarters in the Western District of Pennsylvania, a district where Defendants reside and may be found. ECF Nos. 92-95. On June 26, 2018, the WDPa issued an opinion and order transferring the Second WDPa Action to this Court. Second WDPa Action, ECF No. 35. The WDPa found that this Court was ‘first filed’ and that there was sufficient overlap of parties and issues to warrant transfer under the first-filed rule.1 The WDPa noted, [t]he West Virginia Court’s allowance of the Union Plaintiff’s second amended complaint means that the Southern District of West Virginia will decide whether ROD No. 11-0143 will be confirmed or vacated, and the court’s judgment will cover CONSOL’s four subsidiary companies as defendants." Id. at 12. The Second WDPa was transferred to this Court and assigned Case No. 18-01095. On July 10, 2018, Plaintiffs filed a Motion pursuant to FRCP 42(a) to Consolidate the instant case with the Second WDPa Action recently transferred here from the WDPa. The motion to consolidate remains pending, along with motions to dismiss filed separately by CONSOL Energy, Inc. and its shell subsidiaries, and Plaintiff UMWA’s motion to dismiss two of the counts in the Second WDPa Action. 1 Defendants’ arguments that the Second WDPa Action is first-filed are contrary to two decisions of the WDPa that this Court is first-filed as well as this Court’s decision to proceed with this case in the face of repeated objections that the WDPa is the more appropriate venue. Any first-filed argument is moot following the WDPa’s two decisions to transfer the matter to this Court. Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 8 of 28 PageID #: 2304 9 II. Argument A. Plaintiffs Have Standing to Pursue Their LMRA Claim Where one party has standing to obtain relief, a court will not examine whether its co- parties have standing to seek the same relief. See Horne v. Flores, 557 U.S. 433 (2009) (“Because the Superintendent clearly has standing to challenge the lower courts' decisions, we need not consider whether the legislators also have standing to do so.”); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) (holding because “one individual plaintiff ... has demonstrated standing,” the Court “need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit”). The Fourth Circuit has recognized the Supreme Court in Horne and Arlington Heights held that "once the Court decided that a single party had standing, it made no difference to the resolution of either case whether any other party had standing." Wikimedia Found. v. Natl. Sec. Agency, 857 F.3d 193, 217 (4th Cir. 2017). The only argument Defendants press in support of their argument this Court lacks subject matter jurisdiction over their LMRA claim is that the individual retirees lack standing to pursue Count I for enforcement of the ROD decision. But the retirees are co-Plaintiffs to this case with their Union, the UMWA. And Defendants do not contest the UMWA’s standing to seek enforcement of the ROD decision. Because the UMWA has standing under the LMRA, the Court need not consider whether the individual retiree Plaintiffs also have standing. B. Plaintiffs’ ERISA Count May Proceed to Decision Defendants argue Plaintiffs' ERISA Count should be dismissed for failure to state a claim under Rule 12(b)(6) and also assert one Plaintiff, the UMWA, lacks standing to pursue the Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 9 of 28 PageID #: 2305 10 ERISA Count, which should therefore be dismissed for lack of subject matter jurisdiction in accordance with Rule 12(b)(1). Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide “a short and plain statement of the claim showing ... entitle[ment] to relief.” Fed.R.Civ.P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The required “short and plain statement” must provide “‘fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545, (2007). In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 570). But a district court will grant a Rule 12(b)(1) motion to dismiss “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Where, as here, a motion to dismiss pursuant to 12(b)(1) is based on allegations that a complaint fails to establish standing, the standard of review applicable to Rule 12(b)(6) motions should be applied to Defendants' motions pursuant to Rule 12(b)(1). Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Application of the Rule 12(b)(6) standard requires that the court “accept as true all of the factual allegations contained in the complaint.” South Carolina Dept. Of Health And Environmental Control v. Commerce and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004). The court must also “draw[ ] all reasonable ... inferences from th[e] facts in the plaintiff's favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 10 of 28 PageID #: 2306 11 1. Plaintiffs Have Standing to Bring Their ERISA Count As discussed more fully, above, in Section II(A) of this Response In Opposition, it is sufficient for the purposes of establishing subject matter jurisdiction to demonstrate that at least one of the Plaintiffs to this case has standing. CONSOL does not dispute that the individual retirees have standing under ERISA to bring this suit. Therefore, Plaintiffs have standing. Even if it were necessary to separately examine whether the UMWA has standing, ERISA claims in this action are not brought on behalf of the UMWA itself, but on behalf of the CONSOL Energy, Inc. retirees whom it represents. As the Supreme Court has stated, an association has standing to asset the rights of its members if: (1) the association’s members would have standing to sue in their own right, (2) the interests the association seeks to protect are germane to the organization’s purpose, and (3) the claim asserted and the relief requested do not require the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advert. Comm’n., 432 U.S. 333, 343 (1977). See, Retail Indus. Leaders Ass’n v. Fielder, 435 F.Supp.2d 481, 485 (D.Md. 2006) (An association may have standing in its own right, based on injuries suffered to the association itself, or through “associational standing,” by which it asserts the rights of its members.) Courts have specifically applied this doctrine to labor unions. As stated by Judge Posner writing for the Court of Appeals for the Seventh Circuit, “[t]he union in such a case is not seeking anything for itself; the real plaintiffs in interest are plan participants.” S. Ill. Carpenters Welfare Fund v. Carpenters Welfare Fund of Ill., 326 F.3d 919, 922 (7th Cir. 2003). Other courts have reached similar conclusions. See, e.g., Pennsylvania Fed’n, Bhd. Of Maint. of Way Emp. v. Norfolk S. Corp. Thoroughbred Ret. Inv. Plan, No. 02-9049, 2004 WL 228685, at *10, 11 (E.D.Pa. Feb. 4, 2004) (even though ERISA precludes a union from suing solely on its own Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 11 of 28 PageID #: 2307 12 behalf, a union “may sue under ERISA using associational standing,”); Commc’ns Workers of Am. v. Am. Tel. & Tel., 828 F.Supp. 73, 74-75 (D.D.C. 1993) (holding that a union has standing under ERISA if it satisfies the requirements of Article III associational standing), rev’d on other grounds, 40 F.3d 426 (D.C. Cir. 1994); Haw. Teamster & Allied Workers, Local 996 v. City Express, Inc., 751 F.Supp. 1426, 1430 (D.Haw. 1990) (holding that a union has standing under ERISA if it suffered injury in fact, arguably falls within the zone of interests protected by ERISA, and shows that ERISA does not preclude suit); Harju v. Olson, 709 F.Supp.2d 699 (D. Minn. 2010) (finding union had associational standing to bring ERISA suit to protect its members). Here, the UMWA is seeking to vindicate the rights of its members and is not seeking anything for itself. Consequently, the UMWA has associational standing to sue on behalf of its members who would have standing to sue in their own right as plan participants or beneficiaries. 2. The Retiree Plaintiffs Exhausted the ROD Process A claim for breach of fiduciary duty is a statutory violation claim. Therefore, a plaintiff is “not required to avail himself of administrative remedies before bringing suit in federal court alleging breaches of fiduciary duties as defined by ERISA.” Smith v. Sydnor, 184 F.3d 356, 357 (4th Cir. 1999). In any event, in this case, Plaintiffs have exhausted their administrative remedies. In fact, Plaintiffs have successfully exhausted their administrative remedies. As stated in the ROD itself, the ROD was filed both by a retiree and by the UMWA, the entity that represents CONSOL Energy, Inc.’s retirees. Second Amended Complaint, ECF No. 8, Ex. 21. Thus, the Plaintiff retirees have exhausted their administrative remedies through their representative, the UMWA. In fact, the arbitration decision resulting from the ROD found in Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 12 of 28 PageID #: 2308 13 favor of the retiree and the UMWA and against CONSOL Energy, Inc., it is precisely that decision that this case is intended to enforce. Moreover, as stated in the 2011 NBCWA: The Trustees of the UMWA Health and Retirement Funds shall resolve any disputes, as provided in Section (e)(5), including excessive fee disputes, to assure consistent application of the health plan provisions in the Employer Benefit Plans and of the managed care programs authorized by this Agreement. ECF No. 8, Ex. 8 at 76 (emphasis added). Thus, unlike a typical administrative remedy that is only applicable to a single person, the arbitration decisions issued pursuant to the ROD process are binding upon all of the employers and all of the plans maintained pursuant to that Agreement. Thus, because they are all bound by the arbitration decision in this case, each of the retirees has effectively exhausted his administrative remedies and has a right to seek enforcement of the result of that remedy. 3. Plaintiffs State a Valid Claim for Equitable Relief Under ERISA for Which Adequate Remedies Are Available to Redress Harm Defendants’ argument that Plaintiffs are estopped from alleging the shell subsidiaries breached their fiduciary duties under ERISA by sending the misleading communications is odd in light of Plaintiffs’ repeated allegation and argument (and this Court’s finding) that the parent company has at all material times acted as the agent of its shell subsidiaries. Plaintiffs have pled a valid cause of action for breach of fiduciary duties against both the parent company and its subsidiaries, which led the Court to decide that “in order to untangle the specific actions taken by each defendant and to become fully aware of the responsibilities allocated under the Employer Plan, the court allows Plaintiffs’ ERISA claims against all Defendants to proceed.” Opinion and Order Granting Leave to Amend, ECF No. 77 at 12. Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 13 of 28 PageID #: 2309 14 This Court has already determined in connection with its decision granting Plaintiffs’ leave to amend, that “the Second Amended Complaint states redress available under Section 502(a)(3).” ECF No. 77 at 13-14. And Defendants’ arguments that ERISA cannot provide Plaintiffs’ relief under Section 502(a)(3) are inconsistent with the Supreme Court’s interpretation of that provision: We have interpreted the term “appropriate equitable relief” in § 502(a)(3) as referring to “‘those categories of relief’” that, traditionally speaking (i.e., prior to the merger of law and equity) “ ‘were typically available in equity.’ ” * * * First, what the District Court did here may be regarded as the reformation of the terms of the plan, in order to remedy the false or misleading information CIGNA provided. The power to reform contracts (as contrasted with the power to enforce contracts as written) is a traditional power of an equity court, not a court of law, and was used to prevent fraud. * * * Second, the District Court's remedy essentially held CIGNA to what it had promised, namely, that the new plan would not take from its employees benefits they had already accrued. This aspect of the remedy resembles estoppel, a traditional equitable remedy. CIGNA Corp. v. Amara, 563 U.S. 421, 439-41 (2011) (citations omitted). The relief sought by Plaintiffs is to require CONSOL Energy, Inc. to continue to provide benefits at the same levels absent agreement from the UMWA. Whether that relief is implemented by enforcement of the arbitration decision or through equitable reformation of the unlawfully-modified plan document, the relief sought is equitable in nature. And it is necessary to undo the harm of Defendants’ misleading communications. Under ERISA, a plan fiduciary has a duty to refrain from misleading communication with plan beneficiaries and an affirmative duty to disclose certain information to correct incorrect beliefs. Phelps v. C.T. Enterprises, Inc., 394 F.3d 213, 221 (4th Cir. 2005). Both making misleading statements and failure to correct false belief may constitute breach of fiduciary duty. See Varity Corp., 516 U.S. at 506; see also, Griggs v. E. DuPont de Nemours & Co., 237 F.3d Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 14 of 28 PageID #: 2310 15 371, 373 (4th Cir. 2001). When a defendant deceives the plan beneficiary by making misleading statement, fiduciary duty is breached. See Varity Corp., 516 U.S. at 506 (holding that when fiduciary deceives plan’s beneficiaries in order to save employer money at beneficiaries’ expense violates fiduciary duty provision of ERISA). Similarly, when a defendant leads a participant to have false belief about his eligibility, the defendant also breaches its fiduciary duty. See Griggs v. E.. DuPont de Nemours & Co., 237 F.3d at 373 (holding the defendant breached its fiduciary duty by leading participant to believe that he was eligible for a tax-deferred lump sum distribution and then failing to notify participant when defendant learned participant’s election to receive such distribution would not be permitted by law). In the Second Amended Complaint, Plaintiffs allege that CONSOL Energy, Inc., for itself and as agent for its subsidiaries, sent a series of misleading communications to its participants and beneficiaries. Second Amended Compl. ¶¶ 26, 39-41. Initially, these communications warned the participants that significant changes were imminent in their health benefits and encouraged them to contact the UMWA. Ibid, ¶ 26. The effect of these communications was to sow anxiety among the retirees. Eventually, the false information became more specific, going so far as to notify Medicare-eligible retirees that their group health coverage could be terminated entirely. Id at ¶ 40, 41. CONSOL Energy, Inc., however, had no authority to make its threatened changes. Indeed, at the time the later representations were made in January 2017, the ROD challenging CONSOL Energy, Inc.’s authority to make the changes was already pending. Rather than acknowledge that its authority to make its threatened changes was in dispute and under challenge, Defendant doubled-down on its threats and purported to eliminate its adherence to the ROD process, going so far as to send retirees what it purported to be a modification to the Employer Plan requiring that all challenges to its unlawful actions be made in the Western Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 15 of 28 PageID #: 2311 16 District of Pennsylvania. ECF No. 8, Ex. 32. In short, CONSOL Energy, Inc., for itself and as agent for its shell subsidiaries, was playing a game of chicken with the peace of mind of its elderly retirees. C. None of Defendants’ Procedural Arguments Has Merit Notwithstanding numerous contrary decisions from both this Court and the Western District of Pennsylvania, the shell subsidiary Defendants continue to maintain that “procedural deficiencies” weigh in favor of dismissing this case in deference to their own action to vacate the ROD decision they filed in the Western District of Pennsylvania. Not even the recent transfer of that case has deterred continued pursuit of this line of argument in the subsidiaries’ Motion to Dismiss where it takes the form of objections service of process, venue and personal jurisdiction. 1. Service of Process On Defendants Was Authorized By Statute Defendants’ arguments that service of process was invalid are without merit. Where Congress has authorized nationwide service of process by federal courts under specific federal statutes, so long as the assertion of jurisdiction over the defendant is compatible with the due process requirements of the Fifth Amendment, the service of process is sufficient to establish the jurisdiction of the federal court over the person of the defendant. Hogue v. Milodon Engr., Inc., 736 F.2d 989, 991 (4th Cir. 1984) (holding that the “propriety of process issuing from federal courts sitting in cases arising under federal law is not tested by the same yardstick as is the constitutional limitation upon service of process issuing from state courts because the issues involved necessarily are often national in character.”) The section of ERISA that provides for venue and nation-wide service of process, Section 502(e)(2), states: Where an action under this title is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 16 of 28 PageID #: 2312 17 a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found. 29 U.S.C. § 1132(e)(2). See Trustees of the Plumbers and Pipefitters Nat. Pension Fund v. Plumbing Services, Inc., 791 F.3d 436, 443-44 (4th Cir. 2015) (“ERISA provides for nationwide service of process.”) Where service is rendered under a statute that provides for nation-wide service of process, the analysis is whether the defendant has minimum contacts with the United States, not the forum state. And if defendant does, only the Fifth Amendment’s due process requirements must be met, and “it is only in highly unusual cases that inconvenience will rise to a level of constitutional concern.” ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 627 (4th Cir. 1997). Service of the Second Amended Complaint was completed on each of the shell subsidiary Defendants at their parent company’s corporate headquarters in the Western District of Pennsylvania, where Defendants reside and may be found. ECF Nos. 92-95. Defendants unquestionably have minimum contacts with the United States and they have raised no due process objections cognizable under the Fifth Amendment. Proper service has been rendered. 2. Venue In This Court Is Authorized By Statute On a motion to dismiss under Rule 12(b)(3), a plaintiff must "make only a prima facie showing of proper venue in order to survive a motion to dismiss. In assessing whether there has been a prima facie venue showing, we view the facts in the light most favorable to the plaintiff." Aggarao v. MOL Ship Mgt. Co., Ltd., 675 F.3d 355, 365-66 (4th Cir. 2012) (internal citation omitted). With respect to venue under ERISA, “Congress intended in ERISA cases to give a plaintiff's choice of forum somewhat greater weight than would typically be the case, as evidenced by ERISA's ‘liberal venue provision.’” Trustees of the Plumbers and Pipefitters Nat. Pension Fund v. Plumbing Services, Inc., 791 F.3d 436, 444 (4th Cir. 2015). Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 17 of 28 PageID #: 2313 18 This Court would adhere to Congress’s intent that Plaintiffs’ choice of this forum be given greater weight by applying its rule that "federal courts may exercise their discretion to hear claims as to which venue [is] lacking if those claims arise out of a common nucleus of operative fact with claims as to which venue is proper." C.H. James & Co., Inc. v. Fed. Food Marketers Co., 927 F. Supp. 187, 189 (S.D.W. Va. 1996). The rule is applied by other courts in this district. See e.g., D'Addario v. Geller, 264 F. Supp. 2d 367, 393 (E.D. Va. 2003) ("Despite lack of venue over a claim, the court may exercise its discretion to apply the principle of pendent venue to claims that arise out of a common nucleus of operative facts, after considering factors such as judicial economy, convenience, and the avoidance of piecemeal litigation.") Under the doctrine of pendent venue, Plaintiffs need only make a prima facie showing of venue under one of the two statutes through which they seek relief, since the facts giving rise to the dispute at issue in the ROD decision for which enforcement is sought are the same facts underlying the claim for relief under ERISA. Through both causes of action, Plaintiffs seek relief from Defendants’ misleading communications in which it threatened to terminate or modify the Employer Plan without consent of the Union. A prima facie showing venue under one of the two statutes is sufficient. And Plaintiffs are able to make a prima facie showing of venue under the provisions of either statute. 1. Venue As Provided By the LMRA A section of the LMRA governing venue provides that: (c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 18 of 28 PageID #: 2314 19 29 USC § 185(c). Though the statute speaks to ‘jurisdiction’ it has widely been held to provide for venue. C. Appalachian Coal Co. v. United Mine Workers of Am., 376 F. Supp. 914, 928 (S.D.W. Va. 1974) ("While the provisions of this section have been cast in terms of ‘jurisdiction’ they have consistently been construed as providing a basis for venue."). See also Doby v. Safeway Stores, Inc., 523 F. Supp. 1162, 1168 (E.D. Va. 1981) It is undisputed that UMWA officers and agents are engaged in representing or acting for employee members in this District. This, without more, is sufficient to establish venue in this Court under the LMRA. 2. Venue As Provided In ERISA ERISA’s venue statute provides that an action “may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found.” 29 U.S.C. § 1132(3)(2). Only one of these alternative grounds must be proved to establish venue. And this provision must be interpreted in light of “the policy of (ERISA) to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, ... by providing for ... ready access to the Federal courts.” Bostic v. Ohio River Co. (Ohio Div.) Basic Pension Plan, 517 F. Supp. 627, 630 (S.D.W. Va. 1981) (quoting ERISA at 29 U.S.C. § 1001(b)). Indeed, the legislative history stating it was intent of ERISA “provide the full range of legal and equitable remedies available in both state and federal courts and to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under state law for recovery of benefits due to participants" prompted this Court to conclude that “Congress intended to open the federal forum to ERISA claims to the fullest extent possible.” Id. at 630-31 (emphasis supplied.) Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 19 of 28 PageID #: 2315 20 ERISA provides for venue in this Court because this District is where the breach took place. Additionally, it is a district where at least one defendant may be found. a. The breach took place in this district In Bostic, this Court engaged in an extensive discussion of ERISA’s venue provision, and correctly interpreted the statute consistent with the legislative intent that it be used to remove jurisdiction and procedural hurdles. Id. at 632. On the prong of the section providing for venue “where the breach took place,” this Court in Bostic held that a breach takes place wherever the claimant worked to earn credit necessary to become eligible for the plan benefits in question. Id. at 634-37. The court explained that it is mindful that the practical effect of this decision is that, under these circumstances, venue has been found to be appropriate in the district where the plaintiff resides. However, after reviewing the ERISA statute and its legislative history and particularly the concern expressed therein for participants, their rights, and their ease of access to the courts and applying what pertinent law is available, it is the feeling of the court that it has no choice but to come to this conclusion. Id. at 637. Courts in this Circuit continue to apply the same standard. See e.g., Longo v. Trojan Horse Ltd., 992 F. Supp. 2d 612, 618 (E.D.N.C. 2014) (noting "alleged breach under ERISA is deemed to have 'occurred in the district where the beneficiary receives his benefits' to conclude "[t]wo of the named plaintiffs in the instant matter reside in [this district], and venue is therefore proper here.") In this case, Plaintiffs’ complaint and the evidentiary record developed to date demonstrate that individual retired miner Plaintiffs reside in this District and worked for CONSOL’s operations in this district, earning a sufficient amount of credit to become eligible under the terms of the Employer Plan for the lifetime health benefits at issue. As in Bostic, this is sufficient to establish venue under ERISA. Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 20 of 28 PageID #: 2316 21 b. At least one Defendant resides or may be found in this district ERISA does not define the phrase in its venue statute “may be found in this district.” Applying the broad view of ERISA’s venue provision to the interpretation of the phrase “may be found in this district,” this Court in Bostic held that a defendant ‘may be found’ in any district in which the court has personal jurisdiction over the defendant. Id. at 632-33. Similarly, ERISA's venue statute does not define the term “resides.” Another court in this Circuit more recently found the defendant “resides” in the district for purposes of ERISA’s venue provision was satisfied because it had personal jurisdiction over the defendant by virtue of ERISA’s nationwide service provision. Abercrombie v. Contl. Cas. Co., 295 F. Supp. 2d 604, 608 (D.S.C. 2003) (holding that where defendant is subject to personal jurisdiction in South Carolina under ERISA's nationwide service of process provision, it resides in South Carolina for purposes of the ERISA venue statute). Courts in other circuits regularly apply the same rule. The Tenth Circuit in Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206 (10th Cir. 2000), considered the term ‘resides’, relying on the general venue provision applicable in all civil cases, 29 U.S.C. § 1391(c). That provision states that “for purposes of venue ... a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” Thus, under ERISA, “a corporation resides wherever personal jurisdiction is proper.” Id. See also McCracken v. Automobile Club of S. California, Inc., 891 F. Supp. 559, 562 (D. Kan. 1995) ("Because the defendants are corporations with sufficient minimum contacts to the United States, the court has personal jurisdiction over them. Accordingly, by the terms of § 1391(c), the defendants are deemed to reside in Kansas, and by the terms of § 1132(e)(2), venue is therefore proper in Kansas."); Nieves v. Houston Industries, Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 21 of 28 PageID #: 2317 22 Inc., 771 F. Supp. 159, 161 (M.D. La. 1991) ("For the purposes of ERISA, the term “found” has been defined to include a district where there exists personal jurisdiction over a defendant.") At least one Defendant to this case can unquestionably be found in this District as this Court has already determined it has personal jurisdiction over Defendant CONSOL Energy, Inc. and the parent waived any argument to personal jurisdiction at the outset of this case. Though it is only necessary under the statute that a single Defendant be found in this district, the corporate subsidiary defendants also reside and are found in this district inasmuch as this Court has personal jurisdiction over them pursuant to ERISA’s nationwide service provision, and also for the additional reasons discussed below. 3. Personal Jurisdiction The Fourth Circuit has held a court need not make a premature decision as to the existence of personal jurisdiction before discovery and hearing on a pre-answer motion to dismiss under 12(b)(2). Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The court explained: When a court's personal jurisdiction is properly challenged by a Rule 12(b)(2) motion, the jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence. See generally 2A Moore's Fed. Prac. ¶ 12.07[2.-2]. If the existence of jurisdiction turns on disputed factual questions the court may resolve the challenge on the basis of a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. But when, as here, the court addresses the question on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis in order to survive the jurisdictional challenge. Id. In considering a challenge on such a record, the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction. Id. Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 22 of 28 PageID #: 2318 23 In this case, Plaintiffs submit that the Court should not address the question of personal jurisdiction prior to addressing their pending Motion to Consolidate this case with the recently transferred Second WDPa Action, where consolidation will moot the question. And the Court should not address the question of personal jurisdiction prior to Plaintiffs receiving a fair opportunity to conduct discovery directed toward questions of personal jurisdiction, including but not limited to whether the parent company, over which this Court has already established personal jurisdiction, is an agent or alter ego of the shell subsidiaries for jurisdictional purposes. Nevertheless, the pleadings and record evidence in this case support a prima facie showing that this Court has personal jurisdiction over the shell subsidiaries as well as their parent. a. The Court may exercise pendent personal jurisdiction over the subsidiaries The Fourth Circuit has held that pendent personal jurisdiction, derived from the doctrine of pendent subject matter jurisdiction, allows courts to assert personal jurisdiction over a defendant with respect to a claim for which there is no independent basis of personal jurisdiction if that claim arises out of a common nucleus of operative fact with a claim in the same suit over which the court does have personal jurisdiction. See ESAB Group, 126 F.3d at 628. In this respect, pendent jurisdiction is a “discretionary power which is exercised in furtherance of ‘judicial economy, convenience and fairness to the litigants.’” Id. (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). In ESAB Group, the Fourth Circuit applied the doctrine of pendent personal jurisdiction in a case where service was rendered on an out of state defendant pursuant to a nation-wide service of process provision to find personal jurisdiction over that defendant for purposes of the entire case, including state law claims for which personal jurisdiction could not be independently established. 126 F.3d at 627. See also Combe Inc. v. Dr. August Wolff GmbH & Co. KG Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 23 of 28 PageID #: 2319 24 Arzneimittel, 283 F. Supp. 3d 519, 522 (E.D. Va. 2017) (defendant had waived personal jurisdiction on one claim, so court found pendent personal jurisdiction over a claim arising out of common facts). Several other circuit courts have adopted and applied the doctrine of pendent personal jurisdiction. See, e.g., IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir. 1993); Oetiker v. Jurid Werke, G.m.b.H., 556 F.2d 1, 4-5 (D.C. Cir. 1977); Robinson v. Penn Central Co., 484 F.2d 553, 555 (3d Cir. 1973); Travis v. Anthes Imperial Ltd., 473 F.2d 515, 529-30 (8th Cir. 1973). Here, service on the shell subsidiary Defendants pursuant to ERISA’s nation-wide service of process provision established this Court’s personal jurisdiction over them for purposes of the entire case, including both federal claims arising out of the same facts.2 b. Plaintiffs presence before this Court in the transferred case establishes personal jurisdiction Personal jurisdiction over the shell subsidiaries is also supported by the WDPa’s transfer to this Court of their own LMRA claim filed against the UMWA in that court. Personal jurisdiction over a plaintiff, in the forum in which the plaintiff filed suit, is not lost when the entire case is transferred to a forum in which the plaintiff could have sued this defendant. In In re Genentech, 566 F.3d 1338 (Fed.Cir. 2009), the Federal Circuit applied this principle, explaining that “[t]here is no requirement under § 1404(a) that a transferee court have jurisdiction over the plaintiff or that there be sufficient minimum contacts with the plaintiff; there is only a 2 Defendants contend the Court's preliminary ruling entered with its preliminary injunction order that it lacked personal jurisdiction over the shell subsidiaries is the law of the case. "In general, a court’s decisions at the preliminary injunction phase do not constitute law of the case in further proceedings and do not limit or preclude the parties from litigating the merits.” Metro. Reg'l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 948 F. Supp. 2d 538, 551 (D. Md. 2013). This is especially true where Plaintiffs had no prior opportunity during the preliminary injunction hearing to develop evidence or the arguments pertaining to personal jurisdiction presented here. Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 24 of 28 PageID #: 2320 25 requirement that the transferee court have jurisdiction over the defendants in the transferred complaint.” Id. at 1346. Another court addressing a similar case explained The minimum-contacts concerns inhere when a party is haled into court without its consent upon pain of a default judgment. These concerns are not present when a plaintiff is forced to litigate his case in another forum. Barring a counterclaim, plaintiff will not have judgment entered against him in the new forum; even with a counterclaim, plaintiff chose to initiate litigation enabling the counterclaim. Murray v. Scott, 176 F. Supp. 2d 1249, 1255-56 (M.D. Ala. 2001). CONSOL chose to initiate litigation in the WDPa and therefore the companies are not denied due process by having to defend against a claim that presents identical factual and legal questions in this Court. Defendants’ appearance before this Court in the transferred case, without more, establishes this Court’s personal jurisdiction over them. c. Minimum contacts of the parent can be imputed to the subsidiaries to make a prima facie case of personal jurisdiction Courts in this Circuit have held that personal jurisdiction over a parent corporation, even if established only through waiver, can be used to exert jurisdiction over out of state subsidiaries for which it acts as agent or alter ego. "When a court has engaged in traditional veil piercing, the court may exercise personal jurisdiction vicariously over an individual if the court has jurisdiction over the individual’s alter ego company... Moreover, a court may exercise jurisdiction over an entity if its alter ego participated fully in the proceedings [below] and therefore waived any objections to lack of service of process." Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 391-92 (4th Cir. 2018) (internal citations omitted).3 See also Mylan 3 Note, the Fourth Circuit issued its decision in Sky Cable, LLC after the Supreme Court’s two recent decisions addressing personal jurisdiction, neither one of which foreclosed an agency or alter-ego theory of jurisdiction. In Goodyear Dunlop Tires Operations, S.A. v. Brown, the Supreme Court noted, but did not address the question of piercing the corporate veil for jurisdictional purposes. 564 US 915, 930 (2011). The Court did, however, point to the relevant authority: “the issue of jurisdictional merger is comparable to the corporate law question of Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 25 of 28 PageID #: 2321 26 Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 61-62 (4th Cir. 1993) (Maryland ‘agency’ test for deciding whether to pierce veil separating parent corporations from subsidiaries for jurisdictional purposes allows court to attribute actions of subsidiary to foreign parent only if parent exerts considerable control over activities of subsidiary; central to exertion of such control is whether significant decisions of subsidiary must be approved by parent); Shinn v. Greeness, 218 F.R.D. 478 (M.D.N.C. 2003) (motorist's allegation that executive officers of trucking company owned truck involved in motor vehicle accident with motorist was sufficient to establish prima facie case of principal-agent relationship between executive officers and truck driver under law of North Carolina, supporting exercise of personal jurisdiction over officers in action brought by motorist). Here, the Court exercises personal jurisdiction over the parent CONSOL Energy, Inc. for the reasons described in its March 17, 2017 opinion and order granting injunctive relief, including general jurisdiction and waiver. ECF No. 50. Plaintiffs have alleged and the Court has found facts sufficient to establish that the parent company’s wholly owned subsidiaries exercise no control or decision-making authority with respect to the Employer Plan and Defendants’ conduct giving rise to this case. See Consol Energy, Inc., 243 F. Supp. 3d at 762 (“In fact and deed, Defendant CONSOL Energy is the agent of Defendant subsidiaries, none of which have employees or other personnel to make any significant operational or administrative decisions or exercise control over the Employer Plan independent of Defendant CONSOL Energy.”). Indeed, the parent company’s own witness testified that there are no persons at any of the subsidiaries companies who could even potentially exercise such control or make decisions. ECF No. 38 at piercing the corporate veil.” Id. And in Daimler AG v. Bauman, the Court specifically noted the agency theory of jurisdiction was not presented to it. 571 U.S. 117, 135 (2014) (“[W]e need not pass judgment on invocation of an agency theory in the context of general jurisdiction.") Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 26 of 28 PageID #: 2322 27 126-127. Sufficient facts have been found and/or pled to establish a prima facie case that for jurisdictional purposes, the exercise of personal jurisdiction over the parent corporation acting as agent may be imputed to its wholly-owned shell subsidiaries. III. Conclusion Plaintiffs respectfully request that this Court dismiss the Defendants’ motions to dismiss and grant Plaintiffs’ motion to consolidate this case with the recently transferred Second WDPa Action. Then, this matter can proceed without further delay to enforcement of the ROD decision and a final ruling on all parties’ claims arising out of the common facts that gave rise to it. Respectfully submitted, /s/ Arthur Traynor______ Arthur Traynor, Counsel to the UMWA Visiting Attorney, admitted Pro Hac Vice International Union, United Mine Workers of America 18354 Quantico Gateway Drive, Ste. 200 Triangle, VA 22172 Ph: (703) 291-2400 atraynor @ umwa.org /s/ Charles F. Donnelly____ Charles F. Donnelly, General Counsel W.V. Bar No. 1039 International Union, United Mine Workers of America 1300 Kanawha Boulevard East Charleston, WV 25301 Ph: (304) 346-0341 cdonnelly @ umwa.org Counsel for Plaintiffs Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 27 of 28 PageID #: 2323 28 CERTIFICATE OF SERVICE I hereby certify that on July 25, 2018, a true and correct copy of this Opposition to Defendants’ Motion to Dismiss was served electronically via the Court’s electronic filing ECF system on the following counsel of record in this action: Jan L. Fox STEPTOE & JOHNSON P. O. Box 1588 Charleston, WV 25326-1588 304.353-8000 Fax: 304.353-8180 Email: Jan.Fox@steptoe-johnson.com John Woodrum OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1909 K Street, N.W., Suite 1000 Washington, DC 20006 Telephone: 202.887.0855 Facsimile: 202.887.0866 Email: jwoodrum@odnss.com /s/ Arthur Traynor___________ Arthur Traynor Counsel for Plaintiffs Case 1:16-cv-12506 Document 101 Filed 07/25/18 Page 28 of 28 PageID #: 2324
