Judge Robert E. Richardson issued an order October 2 dismissing action against all but three defendants in what is commonly referred to as “the Green Box case,” more formally known as Pocahontas County Solid Waste Authority (Plaintiff) vs Larry W. Alderman, Bernard L. Bailey, and others (Defendants).
The dismissal was due to lack of activity and or lack of proper service of process.
The case involves claims against more than 250 individuals or entities for alleged failure to pay the annual Solid Waste or Green Box fee.
Robertson writes in the order, “some of the claims asserted in this matter date back to 2007. Approximately eight years have elapsed since the earliest of the claims at issue arose, and two years of that period can be attributed to the Plaintiff’s failure to serve the Defendants promptly upon the filing of this action. Over such an extended period of time, the memories of witnesses are likely to fade or become distorted, and evidence may become misplaced or lost.”
The court dismissed the case, without prejudice, against all the defendants except Henry A. Jaeger, III, John Leyzorek and Tom Stratton.
Jaeger, Leyzorek and Stratton have appeared and have filed motions or responsive pleadings in this case. However, none of them took issue with the inadequacy of the process or the service of process, therefore they have waived that defense, the order states.
The order cites several problematic areas in this matter:
• The Supreme Court of appeals of West Virginia has not endorsed or approved the practice of suing numerous defendants on claims related only in that all of the defendants are alleged to owe a debt to the same plaintiff.
• The single civil action has resulted in unduly cumbersome litigation, and has obscured the Plaintiff’s failure to properly handle the most basic of tasks relative to this case, such as identifying the parties.
• The joinder of numerous defendants would also result in unnecessary and unfair burdens upon the defendants. Although the claims against them are not connected in any meaningful way, each defendant would be required to serve each of the other defendants with all pleadings and motions, and hearings and other courtroom proceedings would be unworkable.
• The court has original jurisdiction over civil actions in which the amount in dispute exceeds $2,500. The amounts claimed by the Plaintiff as green box fees and associated civil penalties for any particular residence at issue in this case do not exceed $1,546.80.
• The Plaintiff attempted to notify defendants by way of certified mail, without restricted delivery. A significant number of return receipts show that letters were delivered to someone other than the addressee. At least 80 letters were returned as undeliverable or unclaimed.
• Several defendants had been dropped from the case.
• Because the defendants were not properly served with process, the court has no jurisdiction over them, “except to the extent that they have waived the right to object to defective service of process.”
In summation the court dismissed without prejudice Pocahontas County Solid Waste’s claims against all remaining defendants, other than Jaeger, Leyzorek and Stratton.
As to the previously mentioned defendants and as alternative grounds for all other Defendants, except Graham Eugene Lee, Marie Dixon Lee, Judy Ann Barker, William Foe and Pamela Foe, “such dismissal is upon the grounds that the Defendants were improperly joined in this action, and upon severance, the claims against such Defendants do not meet the threshold for the Court to have jurisdiction over those claims.”
The Pocahontas County Solid Waste Authority may refile its claims against any one or more of the Defendants in Magistrate Court, “but is cautioned to comply with all applicable legal requirements concerning service of process, and to avoid improper joinder of parties.”
The order further states that “the parties are advised that this Order does not in any manner address the merits of the Plaintiff’s claims or of any defenses that may be asserted by any one or more of the Defendants.